California State Employees Association (Rubin) (PERB 1042S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MICHAEL 	RUBIN,
Charging 	Party,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-28-S
PERB Decision No. 	1042-S
March 24, 	1994
Appearance; 	Cathy Hackett 	on behalf 	of Michael 	Rubin.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION AND 	ORDER
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	of a Board agent's dismissal 	of
an unfair practice 	charge 	filed by Michael Rubin 	(Rubin). 	The
Board agent 	found that 	the 	charge, 	alleging 	that 	the 	California
State Employees Association 	(CSEA) 	violated section 3519.5(b) 	of
the Ralph C. 	Dills Act 	(Dills Act), 	did not 	state a prima facie
case.
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	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.
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The 	Board has 	reviewed the 	original 	and amended charge, 	the
warning and dismissal 	letters, 	and Rubin's appeal. 	The Board
finds 	the Board agent's 	dismissal 	to be 	free 	of prejudicial
error, 	attaches 	the dismissal and warning letters, 	and adopts
them as 	the decision of 	the Board 	itself.2
The unfair practice 	charge 	in Case No. 	SF-CO-28-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
2In his dismissal 	letter dated November 30, 	1993, 	the Board
agent 	refers 	to an attached warning 	letter dated November 	15,
1993, 	which explained why the 	charge did not 	state a prima 	facie
case. 	In that warning letter, 	we note an inadvertent 	omission of
the word 	"not:"
The 	facts alleged do 	[not] 	establish that 	the
Association attempted 	to prevent 	Rubin 	from
conducting any meetings 	in 	facilities 	not
provided by 	the Association.
(Warning letter, 	p. 	2.)
We 	also note 	that 	the 	November 	30 	dismissal 	letter corrected
that 	error.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
November 30, 	1993
Michael 	Rubin
1519 	E. 	17th Street
Oakland, 	California 	94606
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Michael 	Rubin v. 	California State 	Employees Association
Unfair Practice Charge No. 	SF-CO-28-S
Dear Mr. 	Rubin:
The above-referenced unfair practice 	charge, 	filed on October 26,
1993, 	alleges 	that 	the California State Employees Association
(Association) 	retaliated against Michael 	Rubin and 	coerced him by
ordering him to 	cease 	conducting a meeting 	of 	the 	Caucus 	for a
Democratic Union. 	This 	conduct 	is 	alleged to violate Government
Code section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated November 	15,
1993, 	that 	the above-referenced charge did not 	state a prima
facie 	case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts which would correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it prior to
November 23, 	1993, 	the charge would be dismissed.
On November 29, 	1993, 	you filed an amended charge. 	The amended
charge 	notes 	that 	the meeting proposed 	to 	be 	held by Charging
Party was 	planned 	to 	occur after 	the 	events 	scheduled by 	the
Association, 	essentially, 	during the participants' 	"free time"
between 	consecutive 	days 	of 	the Association's 	Committee meeting.
The 	amended 	charge 	adds 	further 	evidence 	concerning 	the purposes
of 	the 	Caucus 	for a Democratic Union. 	The amended charge does
not 	dispute 	the Association's 	assertion 	that 	room where 	the
meeting 	was 	scheduled had been paid 	for by 	the Association.
These additional 	facts 	fails 	to 	cure 	the 	deficiencies 	noted in
the attached November 15, 	1993 	letter. 	The Dills Act does not
guarantee 	an employee 	organization member 	the 	right 	to 	conduct 	a
meeting 	in 	facilities provided by 	the 	employee 	organization. 	The
facts 	alleged do 	not 	establish 	that 	the Association attempted 	to
prevent 	Rubin 	from 	conducting 	any meetings 	in 	facilities 	not
provided by 	the Association.
Therefore, 	I am dismissing the 	charge based on the 	facts and
reasons 	set 	forth above and in my November 15, 	1993 	letter.

November 29, 	1993
Page 	2
Right 	to Appeal
Pursuant 	to 	Public Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board 	itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be 	timely filed, 	the original 	and five 	copies
of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or Express 	United States mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies 	of a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each 	copy 	of 	a 	document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file a document
with 	the 	Board 	itself, 	must be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party 	regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
(

November 29, 	1993
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By
DC	INN GINOZA
Regional Attorney
Attachment
cc: 	Mark DeBoer
(

STATE OF CALIFORNIA 	(' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
November 15, 	1993
Michael 	Rubin
1519 	E. 	17th Street
Oakland, 	California 	94606
Re: 	WARNING LETTER
Michael 	Rubin v. 	California 	State 	Employees Association
Unfair Practice Charge No. 	SF-CO-28-S
Dear Mr. 	Rubin:
The above-referenced unfair practice 	charge, 	filed on October 26,
1993, 	alleges 	that 	the California State Employees Association
(Association) 	retaliated against 	Michael 	Rubin and 	coerced him by
ordering him to 	cease 	conducting a meeting 	of 	the 	Caucus 	for a
Democratic Union. 	This 	conduct 	is 	alleged to violate Government
Code section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
Investigation of 	the 	charge 	revealed the 	following. 	Michael
Rubin 	is 	an employee of 	the 	State of 	California and 	is 	employed
within State bargaining unit 	#4, 	as defined by the 	Public
Employment Relations Board 	(PERB). 	Rubin is a member of the
Association, 	the exclusive 	representative 	of bargaining unit 	#4.
Rubin also 	serves 	on 	the 	Bargaining Unit 	Negotiating 	Committee
(Committee) 	for the Association as an elected representative, 	and
in that 	capacity, 	communicates with other State 	employees
regarding 	the 	collective bargaining activities 	of 	the
Association. 	In addition, 	Rubin is an active member of 	the
Caucus 	for a Democratic Union 	(Caucus), 	an organization composed
of Association members, 	and in that 	capacity, 	has advocated 	for
changes 	in 	internal 	election procedures 	for the Association 	in
ways 	opposed by 	the 	statewide 	leadership 	of 	the Association.
On or about October 9, 	1993, 	Rubin was attending a meeting of 	the
Committee 	in Sacramento. 	During 	the period of 	time 	scheduled 	for
the 	Committee meeting, 	Rubin announced a 	separate meeting of 	the
Caucus 	in his 	hotel 	room, 	which was paid 	for by the Association.
Wyvon Matthews, 	Chair of 	the Committee, 	delivered a letter to
Rubin 	ordering 	him to 	"cease 	and 	desist" 	from conducting 	the
meeting. 	The 	charge alleges 	that 	the Association's 	"current
efforts 	to punish 	[Rubin] 	are motivated by a desire 	to retaliate
against 	employees 	for their protected activities" 	and 	threaten
and 	coerce him because 	of 	his 	protected activities.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state a prima 	facie violation of 	the Dills Act 	for 	the
reasons 	that 	follow.

(
November 15, 	1993
Page 2
Although the charge frames 	the violation in this 	case both as one
of retaliation or discrimination and interference, 	a more logical
reading of 	the 	facts 	suggests 	simply a violation involving
interference. 	The employee organization is alleged in this case
to have attempted to directly restrain alleged protected
activities, 	rather than indirectly through a retaliatory adverse
action.
In order to state a prima facie violation involving interference,
the 	charging party must demonstrate harm to rights guaranteed
under the Dills Act. 	(Gov. Code, sec. 3519.5(b); Carlsbad
Unified School District 	(1978) 	PERB Dec. No. 	89.) 	However, 	there
is nothing in the Dills Act which guarantees an employee
organization member the right 	to conduct a meeting in facilities
provided by the employee organization. 	That appears to be the
case here. 	The Association asserts that its policies do not
permit 	the use of 	its funds 	for use in organizing activities not
authorized or sponsored by the Association and that Rubin was
attempting to conduct a Caucus meeting in a room paid for by the
Association. 	The facts alleged do establish that the Association
attempted to prevent Rubin from conducting any meetings 	in
facilities not provided by the Association.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the 	charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal 	from you before November 23. 	1993. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney
(