California State Employees Association (Hutchinson) (PERB 1380S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CESSALY D. 	HUTCHINSON,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
)
)
) 	Case No. 	SF-CO-40-S
PERB Decision No. 	1380-S
February 29, 	2000
)
)
Appearance: 	Cessaly D. 	Hutchinson, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by
Cessaly D. 	Hutchinson 	(Hutchinson) 	to a Board agent's dismissal
(attached) 	of her unfair practice 	charge. 	The 	charge alleged
that 	the 	California State 	Employees Association 	(CSEA) 	violated
the Ralph C. 	Dills Act 	(Dills Act) 	section 3519.5.1
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519.5 	states 	that:
It 	shall be unlawful 	for an employee
organization to:
(a) 	Cause or attempt 	to cause the state to
violate 	Section 3519.
(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.
)
)
)
)
)
________________ )

(c) 	Refuse or fail 	to meet and confer in
good 	faith with a 	state 	agency employer of
any of 	the employees 	of which it 	is 	the
recognized 	employee 	organization.
(d) 	Refuse to participate 	in good faith in
the mediation procedure 	set 	forth 	in Section
3518.
After reviewing the 	entire 	record, 	including 	the unfair
practice 	charge, 	the warning and dismissal 	letters, 	and the
appeal, 	the Board hereby affirms 	the dismissal, 	as modified by
the 	following 	discussion.
DISCUSSION
Hutchinson 	filed 	the 	instant 	unfair practice 	charge 	against
CSEA on October 4, 	1999, 	alleging that 	the various acts 	cited in
the 	charge violate 	the Dills Act 	because 	they permit 	CSEA 	"to
interfere with the 	employer-employee 	relationship, 	in order to
control 	the member."
According 	to 	the Board agent's warning 	letter, 	Hutchinson
was 	terminated 	from her position with 	the 	State 	of 	California
(Department of Transportation) 	(State) 	in September 1998.2 She
filed 	the 	instant 	unfair practice 	charge more 	than a year 	later,
in October 	1999. 	In California State 	Employees Association
(Hard, 	et al.) 	(1999) 	PERB Decision No. 	1368-S, 	the Board held
that 	where 	the 	charge 	involves 	conduct 	between an employee
organization 	and 	a 	terminated 	employee 	which 	occurred 	subsequent
2See also, 	California State Employees Association
(Hutchinson) 	(1999) 	PERB Decision No. 	1355-S, 	in which the Board
dismissed an 	earlier unfair practice 	charge 	in which Hutchinson
alleged, 	among other things, 	that 	CSEA orchestrated her
termination.
22

to 	the 	termination of 	that 	individual 	from State employment, 	the
former employee 	lacks 	standing 	to 	file 	an unfair practice 	charge
against 	the 	employee 	organization based on 	that 	conduct.3 (Id.
at p. 	21.)
In the 	case at bar, 	most 	of Hutchinson's allegations 	involve
conduct 	by CSEA that 	occurred 	subsequent 	to her 	termination 	from
State employment. 	For those allegations, 	Hutchinson lacks
standing 	to 	file 	an unfair practice 	charge 	against 	CSEA because
she was 	not 	an employee 	at 	the 	time 	of 	the alleged 	interference.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-40-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
3However, 	that 	holding does 	not 	alter the 	longstanding 	rule
that 	terminated employees 	have 	the 	right under the Dills Act 	to
challenge 	the 	termination 	itself 	as 	discriminatory, 	because 	such
persons were 	State 	employees 	at 	the 	time 	of 	the allegedly
unlawful 	conduct 	that 	formed the basis 	of 	the 	charge.
(California Union of Safety Employees 	(Trevisanut. 	et al.) 	(1993)
PERB Decision No. 	1029-S, 	at p. 	9.)
33

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) 439-6940
December 22, 	1999
Cessaly D. 	Hutchinson
.
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Cessaly D. 	Hutchinson v. 	California 	State 	Employees
Association
Unfair Practice 	Charge No. 	SF-CO-40-S
Dear Ms. 	Hutchinson:
The 	above-referenced 	unfair practice 	charge 	filed 	on 	October 	4,
1999, 	alleges 	that 	the California 	State Employees Association
(Association) 	has 	continued attempts 	to 	incorporate 	the 	Civil
Service Division despite 	a vote 	rejecting 	such an action. 	This
conduct 	is 	alleged to violate 	Government 	Code 	section 	3519.5 	of
the Ralph C. 	Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached 	letter dated December 	13,
1999, 	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
December 21, 	1999, 	the charge would be dismissed.
I 	have 	not 	received either 	an 	amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained in my December 	13, 	1999 	letter.
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain
the 	case name 	and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be provided to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of 	business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United States 	mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
===-~- 	-- - -

Dismissal 	Letter
SF-CO-40-S
December 22, 	1999
Page 2
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135 (a); 	see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A 	document 	is 	also 	considered 	"filed" 	when 	received 	by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may 	be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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.

Dismissal 	Letter
SF-CO-40-S
December 22, 	1999
Page 3
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 Regs., 	tit. 	8, 	sec. 	32132.)
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
DONN GIN0ZA
Regional 	Attorney
Attachment
cc: 	Nancy T. 	Yamada

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(41 5) 439-6940
December 13, 	1999
Cessaly D. 	Hutchinson
Re: 	WARNING LETTER
Cessaly D. 	Hutchinson v. 	California 	State 	Employees
Association
Unfair 	Practice 	Charge No. 	SF-CO-40-S
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge 	filed 	on 	October 	4,
1999, 	alleges 	that 	the 	California 	State Employees Association
(Association) 	has 	continued attempts 	to 	incorporate 	the 	Civil
Service Division despite 	a vote 	rejecting 	such an action. 	This
conduct 	is 	alleged 	to violate 	Government 	Code 	section 	3519.5 	of
the Ralph C. 	Dills Act 	(Dills Act).
Investigation of 	the 	charge 	revealed 	the 	following. 	Cessaly D.
Hutchinson was 	employed as 	a Legal 	Analyst 	for 	the 	Legal 	Division
of Department 	of 	Transportation 	(Department) 	until 	her
termination 	in September 	1998. 	During this period of 	time, 	she
was 	active 	in the Association, 	serving 	as 	a 	chief 	steward and a
president 	of 	the Association's 	District 	Labor Council 	(DLC) 	750.
The Association 	is 	a 	large 	employee 	organization 	that 	exclusively
represents 	numerous 	bargaining units 	within 	the 	State.
Organizationally, 	the Association 	is 	divided 	into 	four divisions.
These divisions 	include 	the Civil 	Service Division, 	Retirees
Division, 	Supervisors Division, 	and State University Division.
The 	Civil 	Service 	Division 	is 	divided geographically 	into 	56
DLCs. 	A DLC 	is governed similarly to a local union chapter. 	It
elects 	a president 	and other officers. 	Each DLC president 	serves
on the Association's 	Civil 	Service Division Council 	(Council).
The Council 	governs 	the 	Civil 	Service Division, 	although the
Association Board 	of 	Directors 	has 	ultimate 	authority 	over 	the
Civil 	Service 	Division. 	The Association Board of 	Directors
governs all 	of 	the 	four divisions.
Perry Kenny 	is 	president 	of 	the Association. 	Hutchinson alleges
that 	Kenny has 	long 	advocated 	incorporation of 	the 	civil 	Service
Division as 	a 	separate 	entity 	from the Association.
Incorporation of 	the 	Civil 	Service 	Division 	is 	viewed 	as 	a means
to 	remove 	the 	division 	from the 	control 	of 	the 	Board 	of
Directors. 	In 1995, 	Kenny, 	then-director of the Civil 	Service
----

Warning 	Letter
SF-CO-40-S
December 13, 	1999
Page 2
Division, 	prepared 	a 	set 	of 	bylaws 	for 	an 	incorporated 	Civil
Service 	Division 	that 	would 	have 	given him 	"complete 	autonomy"
over the division, 	according to Hutchinson. 	In 1995, 	Hutchinson
asked to 	see 	a 	copy of 	the bylaws, 	but 	was 	refused.
On or about 	October 	2, 	1999, 	the Association leadership voted
against 	incorporation. 	Notwithstanding the vote, 	it was 	reported
that Jim Hard, 	a proponent of 	incorporation, 	was planning to 	file
incorporation papers 	on or about October 4, 	1999.
Hutchinson alleges 	that 	the 	1995 	Kenny bylaws 	"may possibly re-
surface" 	and be 	filed, 	instead of the Hard bylaws, 	in accordance
with 	an organized-crime plan 	for 	takeover 	of 	the Association.
Hutchinson alleges 	that Kenny, 	Frank Sulla, 	William Cook, 	and
Frank Guilelmino, 	also known as 	the 	"big 	four," 	actually control
the Association 	and 	that 	these 	individuals 	have 	ties 	to 	organized
crime.
Hutchinson 	contends 	that 	to 	allow 	the 	filing 	of 	the 	Kenny bylaws
would violate 	the 	Dills Act 	because 	Kenny would 	attain 	complete
control 	of 	the Association. 	He would have 	the 	ability to
terminate Association 	employees 	in 	the 	Civil 	Service 	Division.
Hutchinson also 	alleges 	that 	Kenny controls 	the 	Board 	of
Directors 	because 	he 	controls 	the 	expense 	account 	reimbursing
directors 	for travel.
Hutchinson 	further 	alleges 	that 	her 	termination was 	orchestrated
by 	Kenny 	and 	Guilelmino 	because 	she 	openly 	opposed 	incorporation
in 	1995. 	She 	refers 	to previous 	allegations 	contained 	in unfair
practice 	charge 	number 	SF-CO-39-S. 	That 	case was 	dismissed on
July 	12, 	1999 	by the undersigned; 	the 	dismissal 	was upheld by
Public Employment Relations Board 	(PERB) 	on October 	7, 	1999.
Finally, 	Hutchinson alleges 	that 	the 	Board of Directors 	is
planning 	to put 	the 	Civil 	Service 	Division 	into 	receivership 	and
that 	this 	would 	also 	allow Kenny to 	dominate 	the 	division by
appointing 	"figurehead" 	officers.
Based on the 	facts 	stated above, 	the 	charge 	as 	presently written
fails 	to 	state prima 	facie violation of 	the Dills Act 	for 	the
reasons 	that 	follow.
Hutchinson 	alleges 	that 	the various 	acts 	cited 	in 	the 	charge
violate 	the 	Dills Act 	because 	they permit 	the Association 	"to
interfere 	with 	the 	employer-employee 	relationship, 	in order 	to
control 	the member." 	She 	does 	not 	specify whether 	the 	employer-
employee 	relationship 	to which she 	refers 	is 	the 	one 	between the

Warning 	Letter
SF-CO-40-S
December 13, 	1999
Page 3
Association member 	and 	the 	State 	or 	the 	Association
employee/member and the Association. 	Presumably, 	she 	refers 	to
both.
To 	the 	extent 	that 	Hutchinson 	alleges 	that 	Kenny 	is 	interfering
with 	the 	relationship 	between 	the Association 	employee/member 	and
the Association, 	the 	charge 	contains 	only speculative
allegations. 	There 	is no 	indication that 	the bylaws, 	which
allegedly will 	grant 	greater control 	to 	Kenny, 	have 	actually been
filed, 	or 	that 	they will 	have 	any force 	and effect 	given that 	the
Association 	has 	voted 	against 	incorporation.1 The 	charge
provides 	no 	clear 	evidence 	that 	Kenny would 	in 	fact 	exercise
undue 	control 	by virtue 	of 	the 	terms 	of 	the 	bylaws. 	Although she
claims 	she does not 	have access 	to the bylaws, 	if 	they are 	filed
with the 	Department 	of 	Corporations, 	they will 	then become
matters 	of public 	record. 	The 	same 	defect 	exists with respect 	to
the 	allegation 	regarding 	the plan 	to put 	the 	Civil 	Service
Division 	into 	receivership. 	The 	Board of 	Directors 	has 	not 	yet
acted to place 	the 	Civil 	Service Division into 	receivership; 	it
is 	unclear how 	receivership would 	cede 	undue 	control 	to 	Kenny.
To 	the 	extent 	that 	Hutchinson 	alleges 	that 	Kenny and 	others 	are
interfering with her 	employment 	relationship with 	the 	State, 	the
charge 	is 	merely 	a 	repeat 	of 	the 	claim dismissed 	in unfair
practice 	charge 	number SF-CO-39-S. 	There 	are no new allegations
that 	cure 	the 	defects 	cited 	in 	the 	dismissal 	decision upheld by
PERB. 	Furthermore, 	since Hutchinson was 	terminated 	in September
1998, 	she has 	not 	had an employment 	relationship with the 	State
for over one 	year. 	Her new allegations 	are 	therefore 	untimely.
(Gov. Code, 	sec. 	3514.5 (a).)
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 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner 	of 	the 	charge 	form. 	The 	amended 	charge 	must 	be
served on 	the 	respondent's 	representative 	and the 	original 	proof
-
of 	service must 	be 	filed with PERB. 	If 	I 	do not 	receive 	an
1Hutchinson 	notes 	that Association 	attorneys 	are 	prepared to
file 	an 	injunction against 	the 	bylaws 	if 	they are 	filed.

Warning 	Letter
SF-CO-40-S
December 13, 	1999
Page 4
amended 	charge 	or 	withdrawal 	from you before 	December 	21, 	1999,
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney