California Union of Safety Employees (Coelho) (PERB 1032S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RICHARD L. 	COELHO,
Charging 	Party,
v.
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Respondent.
Case No. 	LA-CO-48-S
PERB Decision No. 	1032-S
January 6, 	1994
Appearances: 	Richard L. 	Coelho, 	on his own behalf; 	James P.
Whalen, 	Legal Representative, 	for California Union of Safety
Employees.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California Union of 	Safety Employees 	(CAUSE) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found that 	CAUSE violated section 3519.5(b) 	of 	the Ralph C. 	Dills
Act 	(Dills Act or Act)1 when it violated its duty of 	fair
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519.5 	states, 	in
pertinent part:
It 	shall 	be unlawful 	for an employee 	organization
to:
(b) 	Impose 	or threaten to 	impose 	reprisals 	on
employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise 	to
interfere with, 	restrain, 	or coerce employees
because 	of 	their exercise 	of 	rights 	guaranteed by
this 	chapter.
)
)
)
)
)
)
)
)
)
)
_____________ )

representation and discriminated against 	Richard L. 	Coelho
(Coelho).
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	CAUSE'S
statement 	of 	exceptions 	and Coelho's 	response 	thereto. 	The Board
has 	also 	considered 	informational 	briefs 	filed by 	interested
parties.2 The Board affirms 	in part, 	and reverses 	in part, 	the
conclusions 	of 	the ALJ in accord with 	the 	following discussion.
PROCEDURAL 	HISTORY
On February 21, 	1992, 	Coelho filed an unfair practice charge
with PERB against 	CAUSE. 	Based on the allegations 	in the 	charge,
the 	PERB general 	counsel 	issued a complaint 	on June 9, 	1992. 	The
charge alleged that on or about December 31, 	1991, 	CAUSE, 	through
its agent Sam McCall 	(McCall), 	chief legal 	counsel, 	took adverse
action against 	Coelho by 	filing a 	citizen's 	complaint 	against 	him
with his 	employer, 	the State of California, 	Department of Fish
and Game 	(DFG). 	Coelho alleged that 	CAUSE'S action was a
reprisal 	for his protected activities, 	including his
representation of 	other members 	with 	complaints 	against 	CAUSE.
Coelho 	further alleged that 	CAUSE'S 	refusal 	to 	represent 	him
during 	the 	DFG 	investigation which 	resulted 	from the 	citizen's
complaint 	was 	for purely discriminatory reasons.
2The 	California School 	Employees Association, 	California
Association of 	Psychiatric Technicians, 	California State
Employees Association, 	California Department 	of 	Forestry
Employees 	Association and 	the 	California Teachers 	Association
sought 	and were 	granted permission 	to 	file 	informational 	briefs
in this 	case.
22

FACTUAL 	SUMMARY
The parties 	stipulated that Coelho 	is a State employee, and
CAUSE 	is 	a 	recognized employee 	organization within 	the meaning 	of
the Dills Act.
Coelho has 	been employed by the DFG as 	a 	fish and game
warden 	for approximately 	thirteen and 	one-half 	years 	in 	the
wildlife 	protection division 	in 	the 	San Bernardino 	County area.
Coelho 	is 	a member of 	State Bargaining Unit 	7 	(Protective
Services 	and Public 	Safety) 	which 	is 	exclusively represented by
CAUSE. 	Coelho had been a member of 	CAUSE 	since 	the beginning of
its 	exclusive representation of Unit 	7, 	but 	resigned from
membership 	in March 	1992.
In 1987, 	Coelho and John Slaughter 	(Slaughter), 	another fish
and game warden, 	filed an unfair practice 	charge with PERB
against 	CAUSE. 	In December 1987, 	the parties entered into a
stipulated 	settlement 	and 	the 	charge 	was 	subsequently withdrawn.3
CAUSE President Cecil Riley 	(Riley), 	McCall, 	Coelho and Slaughter
were 	the 	signatories 	to 	the 	settlement agreement.
Citizen's 	Complaint Against 	Coelho
In late 	1991, 	Coelho 	filed a small 	claims action against
CAUSE, 	seeking monetary damages 	of 	$5,000 	for CAUSE'S alleged
failure 	to honor a provision of 	the 	1987 	settlement agreement
3Official 	notice 	is 	taken of 	PERB 	records maintained 	in 	this
case. 	Those records 	indicate that 	the charge, 	designated as 	PERB
Case No. 	LA-CO-30-S, 	was 	filed June 30, 	1987 and withdrawn on
January 12, 	1988.
W
	3

pertaining 	to 	several 	unresolved grievances 	which had been 	filed
in 1984 	and 1985.
Coelho and McCall 	appeared 	in this action on December 17,
1991, 	at 	the Twin Peaks Justice Court 	in Big Bear, 	California.
After Coelho 	objected 	to McCall's 	appearance as 	an attorney 	for
CAUSE 	in the 	small 	claims 	court action, 	the presiding judge
continued the matter to January 21, 	1992, 	over McCall's
objections.
Outside 	the 	courthouse, 	Coelho and McCall 	exchanged remarks
concerning 	the developments 	in 	the 	courtroom, 	escalating 	into a
shouting match. 	The 	facts 	are 	disputed 	regarding who 	first
yelled at 	whom and what 	actions were 	taken by the parties.
Slaughter, 	who had accompanied Coelho 	to the 	court hearing,
testified that McCall became 	irate, 	approached Coelho 	in an
aggressive manner, 	accused him of 	harassment 	and 	stated 	that 	he
was 	going 	to 	file a 	complaint 	against 	Coelho with the DFG.
According to McCall, 	Coelho yelled some remarks, 	appeared
extremely agitated and started 	to 	follow him, 	waving papers 	in
his 	face. 	McCall 	testified that 	Coelho appeared upset 	and 	full
of 	anger, 	causing him to be 	concerned about his 	own safety. 	When
McCall 	threatened 	to 	file 	a 	complaint 	against 	Coelho with 	the
local 	sheriff's office, 	which is located next to the court, 	for
attempting 	to 	intimidate a witness, 	Coelho 	told him to do 	it.
McCall 	went 	back 	into 	the 	court building and 	requested 	that
the bailiff 	escort 	him to his 	car because 	of 	Coelho's
"threatening" 	conduct and the possibility that 	Coelho, 	who 	is
4

authorized to 	carry a weapon off-duty, 	might be armed. 	By the
time McCall 	and the bailiff 	exited 	the building, 	and McCall
started 	toward the 	sheriff's 	office, 	Coelho and Slaughter were
leaving 	the area 	in their 	individual vehicles. 	According 	to all
witnesses, 	the 	entire 	incident 	lasted just a few minutes.
On December 31, 	1991, 	McCall 	filed a written citizen's
complaint 	with 	the DFG concerning 	Coelho's 	alleged misconduct 	on
December 	17. 	The 	letter was 	on CAUSE 	letterhead and was 	signed
by McCall 	as 	CAUSE'S 	chief 	legal 	counsel. 	McCall 	filed the
complaint 	after conferring with Riley, 	among others.
McCall 	testified that, 	to his knowledge, 	the citizen's
complaint against Coelho, 	an individual member, 	was a first 	for
CAUSE and was 	"unique" 	in that 	sense. 	McCall 	stated in the
complaint:
I 	am writing 	to 	file 	an 	official 	personnel
complaint 	on the 	conduct 	of 	one of your wardens,
Mr. 	Richard Coehlo 	[sic]. 	I realize that this 	is
an unusual 	step 	for a 	labor union to 	take but 	I
feel 	that 	I have no other choice as 	I am concerned
for 	the 	safety of 	other 	staff members 	from CAUSE
who are 	involved 	in matters 	also 	involving
Mr. 	Coehlo 	[sic].
The 	letter 	set 	forth a 	lengthy narrative 	of 	the December 	17
incident 	and McCall's 	perceptions 	about 	Coelho's 	lack of
emotional 	control 	and his 	alleged hostile 	attitude 	toward 	CAUSE.
McCall 	further emphasized his 	concern 	for 	the 	safety of 	CAUSE
staff members who participated 	in matters 	in which Coelho was
involved either as 	a party or as 	a 	representative.
Coelho was notified by DFG on February 7, 	1992, 	that 	the
complaint 	had been 	filed and 	that 	as 	a 	result 	DFG would undertake
5

an 	internal 	investigation. 	Shortly after 	receiving notice 	of 	the
complaint, 	Coelho called Charles Solt 	(Solt), 	a CAUSE labor
representative, 	and requested representation during 	the
investigation. 	Coelho was 	aware 	of 	a CAUSE publication which
outlined a variety 	of 	membership benefits 	and 	services 	which
included a 	statement 	that members 	would 	receive 	representation
for disciplinary and 	internal 	affairs 	investigations. 	Coelho
raised with Solt 	the possibility of 	a 	conflict 	of 	interest 	with
CAUSE'S 	representation and 	suggested 	that 	CAUSE might 	have 	to
seek outside 	representation 	for him. 	After 	checking with his
supervisor, 	Solt 	told Coelho that he was 	ordered not 	to 	represent
him, 	but 	did not 	identify who 	so directed him. 	During 	the
hearing, 	McCall 	testified that he 	told Solt 	that 	CAUSE 	could not
represent 	Coelho because 	of 	the existence of a conflict 	of
interest.
The 	investigation of McCall's 	citizen 	complaint 	was
conducted by DFG through formal 	interviews 	of Coelho, 	Slaughter,
McCall 	and the Twin Peaks 	Justice Court bailiff, 	followed by a
lengthy written 	report. 	Coelho did not 	have 	a 	representative
during 	the 	investigation.
On April 	10, 	1992., 	DFG notified Coelho and McCall 	that 	the
investigation was 	completed and 	that 	it 	had determined 	that 	the
charges were 	not 	sustained.
CAUSE'S 	Representation 	Services
According to McCall, 	CAUSE has guidelines 	that are used to
decide when 	the union will 	provide what 	he 	referred 	to as
66

"extraneous 	services" 	to members. 	Representation during such
proceedings 	as 	internal 	investigations 	falls 	within 	this 	category
and 	is 	decided on a 	case-by-case basis.
Following 	Coelho's 	request, 	McCall 	and Riley discussed 	the
possibility of 	seeking outside 	representation for Coelho, 	but
rejected 	the 	idea because 	they 	felt 	it 	would not provide 	the
necessary 	insulation 	for CAUSE 	from the 	case. 	The 	inability to
control 	legal 	costs 	was 	also a 	factor 	in deciding whether to hire
or allow Coelho 	to 	retain outside 	counsel 	at 	CAUSE'S 	expense.
Coelho's 	Representation Activity
On September 19, 	1991, 	Joseph Baima 	(Baima), 	a DFG warden,
filed an unfair practice 	charge with PERB. 	The 	PERB general
counsel 	issued a complaint 	in that 	case on November 26, 	199I.4
Coelho was 	served with a 	copy of 	the 	complaint 	as 	Baima's
representative. 	He 	represented Baima at 	the 	PERB 	informal
conference on January 6, 	1992, 	and at 	the formal hearing
conducted on March 3 	and 4, 	1992. 	McCall was listed as 	the
representative 	for CAUSE 	in this matter, 	and was 	also a witness
at 	the 	formal hearing.
McCall 	referred 	to Coelho's 	appearance 	in this matter
against CAUSE in his December 31, 	1991, 	complaint letter to DFG,
stating 	that 	it was necessary to have a 	second CAUSE
representative present 	"to provide a measure 	of 	security" 	because
4The Board 	issued a decision in that 	case, 	California Union
of Safety Employees 	(Baima) 	(1993) 	PERB Decision No. 	967-S, 	on
January 19, 	1993.
7
---- -- -
7

of 	"Coelho's 	attitude 	towards 	the union and his 	exhibited 	conduct
and 	demeanor."
ALJ'S 	PROPOSED 	DECISION
The ALJ 	concluded that 	CAUSE 	unlawfully 	retaliated against
Coelho when 	it 	filed 	the 	citizen's 	complaint 	against 	him with his
employer. 	Applying 	the 	test 	for discrimination and 	retaliation
set 	out 	in Novato Unified School District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	the ALJ found that the filing of the complaint
against 	Coelho 	did not 	constitute 	adverse 	action under Novato.
The 	ALJ 	therefore 	applied 	the 	discrimination and 	interference
test 	set 	forth 	in Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad). 	Under Carlsbad, 	the ALJ found that
CAUSE 	unlawfully 	retaliated 	against 	Coelho 	after balancing 	the
harm to 	Coelho's 	exercise 	of 	protected 	rights against 	CAUSE'S
unsubstantiated 	concerns 	about 	the 	safety and welfare 	of 	CAUSE
staff.
The ALJ also 	found 	that 	CAUSE violated 	its 	duty 	of 	fair
representation when 	it 	refused 	to 	represent 	Coelho 	in 	the
internal 	investigation. 	While 	acknowledging 	that 	representation
in an 	internal 	investigation 	is 	a 	"voluntary act" 	on the part 	of
the union, 	the ALJ held, 	under Lane v. 	I.U.O.E. 	Stationary
Engineers 	(1989) 	212 Cal.App.3d 164 	[260 Cal.Rptr. 	634] 	(Lane).
that 	even 	if 	the 	obligation to 	represent 	Coelho during 	the
investigation was 	a voluntary undertaking, 	CAUSE had a duty
"akin" 	to 	the duty of 	fair representation to act 	fairly, 	honestly
and 	in good 	faith 	in determining whether 	or not 	to provide 	him
8

with such 	representation. 	The ALJ 	concluded that 	the manner 	in
which 	CAUSE 	handled 	Coelho's 	request 	for 	representation did not
meet 	this 	standard of 	care.
CAUSE'S 	EXCEPTIONS
CAUSE 	excepts 	to 	the ALJ's 	conclusion 	that 	the 	citizen's
complaint 	filed by 	CAUSE 	against 	Coelho was 	unfounded. 	CAUSE
states 	that 	the 	resulting DFG 	investigation 	found 	that 	the
evidence was 	inconclusive 	and 	that 	this 	finding 	supports 	its
position that 	there was 	good cause 	for CAUSE to 	file 	the
complaint against 	Coelho with DFG. 	CAUSE therefore asserts 	that
the ALJ erred 	in 	finding 	that 	CAUSE 	filed 	the 	complaint 	against
Coelho as 	a reprisal 	for his 	exercise 	of protected activities.
CAUSE 	also 	contends 	that 	the ALJ erred 	in 	concluding 	that
CAUSE violated 	its 	duty 	of 	fair 	representation when 	it 	refused 	to
represent 	Coelho 	in 	the 	internal 	investigation which 	resulted
from the 	citizen's 	complaint 	filed by McCall. 	CAUSE asserts 	that
it 	had no absolute 	duty 	to 	represent 	Coelho 	in this
investigation. 	Rather, 	CAUSE argues 	that 	this 	type of service is
not 	mandatory and 	that 	it 	undertakes 	these 	extra-contractual
services 	only after 	evaluating 	each 	claim on a 	case-by-case
basis.
Further, 	CAUSE excepts 	to the ALJ's 	failure 	to recognize
that 	a 	conflict 	of 	interest 	existed between Coelho and CAUSE with
regard 	to 	representation during 	the 	internal 	investigation.
Since 	CAUSE was 	both a witness 	and 	the 	complaining party 	in 	the
investigatory action, 	CAUSE argues 	that 	it was both legally and
9

practically precluded 	from 	representing 	Coelho 	because 	of 	a
conflict 	of 	interest.
INFORMATIONAL 	BRIEFS
The 	briefs 	filed by 	the 	interested parties5 are 	similar 	in
that 	they 	focus 	primarily on 	the ALJ's 	application of 	Lane 	in
this 	case, 	and the 	resulting 	finding 	that 	CAUSE violated 	its 	duty
of 	fair representation. 	The 	California School 	Employees
Association 	(CSEA) 	notes 	that 	PERB has 	repeatedly held 	that 	the
duty of 	fair 	representation applies 	only 	to union 	conduct 	where
the union possesses 	the 	exclusive means by which a worker 	can
obtain the 	remedy sought. 	CSEA contends 	that 	the ALJ in this
case 	erroneously 	reversed 	this 	precedent 	based 	on 	the 	Lane
decision, 	finding 	that a union could violate 	the duty of 	fair
representation 	even where 	representation was 	extra-contractual.
The 	California Teachers Association 	(CTA) 	supports 	CSEA's
contention that 	the ALJ's 	finding departs 	from PERB's well-
established precedent. 	CTA asserts 	that 	PERB 	is 	without
jurisdictional 	authority 	to 	apply a 	duty 	of 	fair 	representation
to 	the 	extra-contractual 	services 	offered by an 	exclusive
representative. 	CTA further notes, 	however, 	that PERB has clear
jurisdiction 	to 	enforce 	the Dills Act prohibition against
employee 	organization 	discrimination 	or 	retaliation 	against
bargaining unit 	employees 	for 	the 	exercise 	of protected 	rights
regardless 	of 	the 	extent 	of 	the duty of 	fair representation.
5Ante. fn. 	2.
10

DISCUSSION
Filing 	the 	Citizen's 	Complaint
Dills Act 	section 3519.5(b) 	prohibits 	discrimination or
retaliation by an 	employee 	organization against 	an 	employee 	for
engaging 	in conduct protected by the Dills Act. 	In Novato. 	the
Board described 	the 	test 	it 	applies 	in determining whether an
employer 	unlawfully 	discriminated 	or 	retaliated 	against 	an
employee 	because 	of 	the 	exercise 	of 	rights protected by the
Educational 	Employment Relations Act. 	In State of 	California
(Department of Developmental Services) 	(1982) 	PERB Decision
No. 	228-S, 	the Board applied the test 	for resolving allegations
of 	discrimination and 	retaliation 	set 	out 	in Novato 	to 	charges
filed under the Dills Act. 	The Board has 	also held that 	the
standard 	applied 	to 	cases 	involving 	employer misconduct 	is
appropriate 	in 	cases 	involving 	employee 	organization misconduct.
(State 	of 	California 	(Department 	of 	Developmental 	Services)
(1983) 	PERB Decision No. 	344-S.)
In order to 	establish a violation of 	section 3519.5(b) 	under
Novato 	the 	charging party bears 	the burden of 	showing 	that:
1) 	he engaged in protected activity; 	2) 	the respondent knew of
the activity; 	3) 	the 	respondent 	took action adverse 	to his
interest; 	and 4) 	there was an unlawful motivation for the
respondent's action. 	Once this 	is established, 	the burden shifts
to 	the 	respondent 	to demonstrate 	that 	it would have 	taken the
same action regardless 	of 	the protected conduct.
11

In this 	case, 	Coelho engaged 	in protected activity by 	filing
an unfair practice 	charge 	against 	CAUSE 	in 	1987 	which 	resulted 	in
a 	stipulated 	settlement. 	He 	also 	filed numerous 	grievances 	and
represented another 	employee 	in an unfair practice 	charge 	against
CAUSE 	in November 	1991. 	CAUSE 	clearly had knowledge 	of 	Coelho's
activities 	as 	CAUSE was 	the 	respondent 	in the unfair practice
cases. 	In addition, 	CAUSE President 	Cecil 	Riley and McCall were
signatories 	to 	the 	stipulated settlement 	of 	Coelho's 	1987 	unfair
practice 	charge.
Coelho must 	also demonstrate 	that 	the 	respondent 	took
adverse 	action against 	him. 	The 	test 	which must be 	satisfied 	is
whether a 	reasonable person under 	the 	same 	circumstances 	would
consider 	the 	action 	to have 	an adverse 	impact 	on 	the 	employee's
employment. 	(Palo Verde Unified School District 	(1988) 	PERB
Decision No. 	689; 	Newark Unified School District 	(1991) 	PERB
Decision No. 	864.) 	In this 	case, 	CAUSE filed a citizen's
complaint 	against 	Coelho, 	which CAUSE knew would prompt 	an
investigation by his 	employer. 	Such an action 	could 	cause 	a
reasonable person 	to be 	concerned about 	the potential 	adverse
effect 	of 	the 	complaint 	and ensuing 	investigation on his
employment 	relationship. 	The 	fact 	that 	the 	complaint 	and
investigation did not 	result 	in action being 	taken against 	Coelho
by his 	employer does 	not 	eliminate 	the 	adverse nature 	of 	CAUSE'S
conduct. 	Accordingly, 	in this case, 	CAUSE'S 	filing of the
complaint 	constituted an action adverse 	to 	Coelho's 	interests.
12

In the absence of direct 	evidence, 	an inference of unlawful
motivation may be drawn 	from the 	record as 	a whole, 	as 	supported
by circumstantial 	evidence. 	While 	timing alone 	is 	not 	sufficient
to 	establish unlawful motivation, 	it 	can be 	considered a 	factor.
(Moreland Elementary School 	District 	(1982) 	PERB Decision
No. 	227.) 	In this 	case, 	CAUSE'S action in filing the complaint
against 	Coelho 	closely 	followed 	Coelho's 	action 	to 	seek
resolution of 	the 	settlement 	agreement 	in small 	claims 	court 	and
his 	representation of 	another 	employee 	in his 	action against
CAUSE.
Further, 	the Board has 	held that 	adverse 	conduct based on
unsubstantial 	allegations may 	raise 	an 	inference 	of 	unlawful
motivation. 	(State 	of California 	(Department 	of 	Parks 	and
Recreation) 	(1983) 	PERB Decision No. 	328-S.) 	CAUSE'S attempt to
justify 	filing 	the 	citizen's 	complaint 	by 	claiming 	concerns 	about
the 	safety and welfare 	of 	other CAUSE 	staff members 	involved 	in
matters 	concerning Coelho 	is pretextual. 	Other 	than the verbal
confrontation between Coelho and McCall 	on December 17, 	1991,
CAUSE presents 	no evidence 	of violent 	conduct 	or threats 	of
violence by Coelho 	toward any CAUSE 	employee 	or member 	of 	the
public 	to 	lend legitimacy to 	its 	claim of 	a 	safety concern.
For 	these 	reasons and the 	fact 	that 	there 	existed a 	four-
year dispute between Coelho and CAUSE 	over 	final 	disposition of
his 	1987 unfair practice 	charge, 	the Board concludes 	that 	CAUSE'S
motivation 	in 	filing 	the 	citizen's 	complaint 	was 	to 	retaliate
against 	Coelho, 	and that 	the 	complaint would not 	have been 	filed
13

but 	for Coelho's 	exercise of protected rights. 	Accordingly, 	the
Board finds 	that 	CAUSE violated Dills Act 	section 3519.5(b) 	when
it 	filed 	the 	citizen's 	complaint against 	Coelho.
Refusal 	to Represent 	in the 	Internal 	Investigation
Although 	the Dills Act 	does 	not 	contain a 	specific 	section
setting 	forth an 	employee 	organization's 	duty 	of 	fair
representation, 	the Board has 	inferred such a duty 	from the 	fact
that 	the Act 	provides 	for exclusive 	representation. 	(California
State Employees' 	Association 	(Lemmons, 	et al.) 	(1985) 	PERB
Decision No. 	545-S.)
The 	duty 	of 	fair 	representation 	requires 	an 	exclusive
representative 	to 	fairly and 	impartially 	represent 	all 	employees
in 	the bargaining unit. 	The 	duty is breached when the 	exclusive
representative's 	conduct 	toward a unit member 	is 	arbitrary,
discriminatory or 	in bad 	faith. 	(Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No. 	124.) 	However, 	no
duty of 	fair 	representation 	is 	owed to a unit member unless 	the
exclusive 	representative possesses 	the 	exclusive means 	by which
an 	employee 	can 	obtain a particular 	remedy. 	(California 	Faculty
Association 	(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H; 	San
Francisco 	Classroom Teachers Association, 	CTA/NEA 	(Chestangue)
(1985) 	PERB Decision No. 	544.)
I ,
In this 	case, 	relying on Lane, 	the ALJ found that a union
must maintain 	the 	same 	standard of 	duty of 	fair 	representation
for the voluntary services 	it provides 	to 	its members as 	it does
its 	statutory duties. 	In concluding 	that 	the application of 	this
14

duty also applies 	to a union's 	decision whether 	to provide 	the
voluntary service, 	the ALJ 	found that 	CAUSE'S decision not 	to
represent 	Coelho 	in 	the 	internal 	investigation was made 	in an
arbitrary and bad 	faith manner and 	therefore violated 	its 	duty of
fair 	representation.
The Board reverses 	this 	finding. 	The Dills Act 	duty of 	fair
representation does 	not 	apply 	to 	representation 	in 	the DFG's
internal 	investigation of 	a 	citizen's 	complaint 	because 	that
forum is 	unconnected with any aspect 	of 	negotiation 	or
administration 	of 	a 	collective 	bargaining agreement 	and 	CAUSE
does 	not 	exclusively control 	the means 	to 	the particular remedy.
(California State Employees Association 	(Parisi) 	(1989) 	PERB
Decision No. 	733-S.) 	As 	CAUSE had no obligation to represent
Coelho in the DFG internal 	investigation, 	it did not violate 	the
Dills Act 	duty of 	fair representation when 	it 	refused 	to provide
him representation in that 	forum. 	Furthermore, 	contrary to the
decision of 	the ALJ, 	the Board finds 	Lane 	is 	inapposite here.
The 	rationale 	in 	the 	Lane decision applies 	a standard of 	care
"akin" 	to a duty of 	fair representation only after a union has
affirmatively undertaken 	representation 	in 	circumstances 	where
representation is not mandatory. 	In this case, 	CAUSE never
undertook 	the 	voluntary 	service 	of 	providing 	representation 	to
Coelho during the internal 	investigation. 	Therefore, 	Lane 	is not
applicable to the 	circumstances 	of 	this 	case.6
6The Board does not, 	in this case, 	reach the question of
what duty or standard of 	care, 	if any, 	attaches 	to 	representation
in extra-contractual 	services, 	once assumed, 	or the extent of
15

PERB's 	jurisdiction to resolve 	these disputes.
In California State Employees' 	Association 	(O'Connell)
(1989) 	PERB Decision No. 	753-H 	(O'Connell), 	the Board concluded
that 	the 	prohibition against 	an employee 	organization's
discrimination or retaliation against 	employees 	because 	of 	their
protected activity 	is 	not 	limited to 	those 	functions 	of 	the
exclusive 	representative 	which 	carry with 	them the 	duty 	of 	fair
representation. 	The Board in O'Connell 	described its 	statutory
authority in reprisal 	cases, 	stating:
An 	inquiry must 	go 	forth under 	Carlsbad
Unified School 	District 	(1979) 	PERB Decision
No. 	89 	and/or Novato Unified School District
(1982) 	PERB Decision No. 	210, 	as to whether
the actions 	were motivated by a 	charging
party's 	exercise 	of protected rights.
(Emphasis 	in original.)
Thus, 	any alleged employee 	organization discrimination or
retaliation against 	employees 	because 	of 	their protected activity
is 	within 	the 	Board's 	statutory authority to 	review to 	determine
if 	a violation has 	occurred. 	(California State 	Employees
Association 	(Garcia) 	(1993) 	PERB Decision No. 	1014-S.)
Therefore, 	while CAUSE did not breach its duty of 	fair
representation by refusing 	to 	represent 	Coelho 	in 	the 	internal
investigation, 	the Novato test must be applied to determine 	if
CAUSE'S 	refusal 	to 	represent 	is 	evidence 	of motivation to
retaliate 	or discriminate.
Applying Novato. 	the protected activity 	in which Coelho was
involved 	is 	the 	same 	activity present 	in 	the 	discrimination
violation analyzed above. 	CAUSE was 	aware 	of 	that 	activity and
16

its 	refusal 	to provide Coelho with representation 	in 	the 	internal
investigation which 	resulted 	directly 	from 	its 	unlawful 	citizen's
complaint 	against 	him was 	an action adverse 	to his 	interest 	since
employer 	sanctions 	impacting 	his 	employment 	relationship 	could be
the result.
Sufficient 	evidence 	exists 	to 	establish CAUSE'S 	unlawful
motivation. 	As an affirmative defense, 	CAUSE asserts 	that a
conflict 	of 	interest 	prevented 	it 	from representing 	Coelho during
DFG's 	internal 	investigation. 	CAUSE also 	claims 	that 	retention
of 	outside 	counsel 	would not 	eliminate 	the 	inherent 	conflict
which 	results 	from CAUSE'S 	filing 	of 	the 	citizen's 	complaint.
CAUSE'S 	assertions 	are not persuasive. 	The primary effect
of 	CAUSE'S 	complaint 	against 	Coelho was 	to expose him to an
internal 	investigation. 	CAUSE'S unlawful motivation 	in 	filing
the 	complaint 	extends 	to and forms 	the basis 	of 	its 	refusal 	to
represent 	Coelho 	in 	the 	internal 	investigation which 	resulted
from the 	complaint. 	CAUSE 	can not use a 	conflict 	of 	interest
which 	is 	the 	creation of 	its 	own unlawful 	act 	to avoid
accountability 	for 	the 	retaliatory effects 	of 	its 	discrimination
against Coelho. 	Therefore, 	the Board concludes 	that CAUSE
violated Dills Act 	section 3519.5(b) 	when 	it 	refused to 	represent
Coelho 	in 	the DFG 	internal 	investigation 	in 	retaliation 	for his
exercise 	of protected rights.
REMEDY
The 	Board 	is 	authorized 	to 	remedy violations 	of 	the 	Dills
Act. 	Section 3514.5(c) 	grants 	the Board the power to:
17

. 	. 	. 	issue a decision and order directing an
offending 	party 	to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such affirmative
action, 	including but not 	limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will effectuate the policies of
this 	chapter.
In order to remedy the unfair practices 	of 	CAUSE, 	prevent 	it
from benefiting 	from its 	conduct 	and 	to 	effectuate 	the 	purposes
of 	the Dills Act, 	it 	is appropriate to order CAUSE to cease and
desist 	from discriminating against 	Coelho.
Where a question of 	denial 	of 	representation 	is 	an 	issue,
the 	ordinary remedy with an unfair practice 	is 	to 	issue an order
that 	the 	respondent 	provide 	representation 	to 	the aggrieved
employee. 	However, 	since 	the DFG internal 	investigation has
already been concluded, 	there 	is 	no point 	in ordering CAUSE 	to
provide 	representation to 	Coelho.
Since 	Coelho 	represented himself 	during 	the 	investigation
and presented no 	evidence 	of 	loss 	of wages 	or other 	expenses
incurred 	in 	connection with this 	representation, 	a make whole
order 	is 	also 	inappropriate.
In order 	to prevent 	CAUSE 	from benefiting 	from its 	act 	of
unlawful 	discrimination, 	it 	is appropriate to require CAUSE to
notify 	the DFG and Coelho 	that 	it 	is 	withdrawing 	the 	complaint
that was 	filed against Coelho on or about December 31, 	1991,
remove any records 	that 	CAUSE may have 	of 	the 	complaint 	and
notify Coelho 	in writing 	that 	this 	action has been taken. 	A
similar 	remedy was 	ordered by 	the 	National 	Labor Relations 	Board
after 	it 	determined 	that 	seven local 	unions 	discriminated against
18

a member when 	their 	officers 	filed 	intra-union 	charges 	because 	he
testified 	on behalf 	of 	his 	employer and against 	a 	fellow member
at 	an arbitration hearing. 	(See United Mine Workers 	of America.
Local 	1058. 	et al. 	(1990) 	299 NLRB 389 	[135 LRRM 1044].)
It 	is 	further appropriate 	that 	CAUSE be directed to post 	a
notice 	incorporating 	the 	terms 	of 	this 	order at 	all work
locations 	where notices 	to members 	of 	State Bargaining Unit 	7 	are
customarily posted. 	The posting of 	such a notice, 	signed by an
authorized agent 	of 	CAUSE, 	will provide employees with notice
that 	CAUSE acted 	in an unlawful manner, 	is being 	required to
cease and desist 	from this 	activity, 	and will 	comply with the
terms 	of 	the order. 	It also effectuates 	the purposes 	of 	the
Dills Act 	that 	employees be 	informed of 	the 	resolution of 	this
controversy and 	CAUSE'S 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Placerville Union School District 	(1978) 	PERB Decision
No. 	69.)
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the entire 	record of 	this 	case, 	it 	is 	found that 	the
California Union of 	Safety Employees 	(CAUSE) 	violated
section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act). 	CAUSE
violated 	the Dills Act by discriminating against 	Richard L.
Coelho 	(Coelho) 	when it 	filed a citizen's 	complaint against him
with his employer, 	the State of California, 	Department of 	Fish
and Game 	(DFG), 	and when it 	refused to provide him representation
in the 	resulting 	investigation of 	that 	complaint.
19

Pursuant to section 3514.5(c) 	of the Dills Act, 	it 	is hereby
ORDERED that 	CAUSE, 	its 	chief 	executive officer and its
representative 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Filing 	citizen's 	complaints 	against 	Coelho and
refusing 	to 	represent 	him in 	retaliation 	for his 	exercise 	of
rights protected by 	the Dills Act.
2. 	In any like or related manner, 	restraining or
coercing 	Coelho 	in 	the 	exercise 	of 	rights 	guaranteed him by 	the
Dills Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Notify the DFG and Coelho 	in writing 	that 	CAUSE 	is
formally withdrawing 	the 	citizen's 	complaint 	filed against 	Coelho
on or about December 31, 	1991.
2. 	Remove all 	records 	from CAUSE'S 	files 	of 	the
complaint 	against 	Coelho and notify Coelho 	in writing 	that 	this
action has been 	taken.
3. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	CAUSE 	customarily posts 	notices 	to
members 	of 	State Bargaining Unit 	7, 	copies 	of 	the notice attached
hereto as 	an appendix. 	The notice must be 	signed by an
authorized agent 	of 	CAUSE, 	indicating 	that 	CAUSE will 	comply with
the 	terms 	of 	this 	Order. 	Such posting 	shall be maintained 	for a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable steps
20

shall 	be 	taken to 	ensure 	that 	the notice 	is 	not 	reduced 	in size,
altered, 	defaced 	or 	covered with any other material.
4. 	Make written notification of 	the actions 	taken 	to
comply with 	this 	Order to 	the 	Sacramento Regional 	Director of 	the
Public 	Employment 	Relations 	Board 	in accord with 	the 	director's
instructions.
Chair Blair and Member Garcia 	joined 	in 	this 	Decision.
21

APPENDIX 	NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	LA-CO-48-S,
Richard L. 	Coelho v. 	California Union of Safety Employees, 	in
which all parties had the 	right 	to participate, 	it has been found
that 	the 	California Union of 	Safety Employees 	(CAUSE) 	has
violated section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
CAUSE violated 	the 	Dills 	Act 	by discriminating 	against 	Richard 	L.
Coelho 	(Coelho) 	when it 	filed a citizen's 	complaint against him
with his employer, 	the State of California, 	Department of 	Fish
and Game 	(DFG), 	and by refusing to provide him representation in
the 	resulting 	investigation of 	that 	complaint.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Filing 	citizen's 	complaints 	against 	Coelho and
refusing 	to 	represent 	him in retaliation 	for his 	exercise 	of
rights 	protected by 	the Dills Act.
2. 	In any like or related manner, 	restraining or
coercing 	Coelho 	in 	the 	exercise 	of 	rights 	guaranteed him by 	the
Dills Act.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Notify the DFG and Coelho 	in writing that 	CAUSE 	is
formally withdrawing 	the 	citizen's 	complaint 	filed against 	Coelho
on or about December 31, 	1991.
2. 	Remove all 	records 	from CAUSE'S 	files 	of 	the
complaint 	against 	Coelho 	and notify 	Coelho 	in writing 	that 	this
action has been taken.
DATED: 	CALIFORNIA UNION 	OF
SAFETY 	EMPLOYEES
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED WITH ANY
OTHER MATERIAL.