State of California (Department of Forestry) and State of California (Governor's Office of Employee Relations) (PERB 0174S)

STATE
	OF
	CALIFORNIA
DECISICN
	OF
	THE
PUBLIC
EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA
	DEPARI'MENT
	OF
	FORESTRY
EMPLOYEES 	ASS_9CIATION,
Charging
	Party,
v.
S1'ATE
	OF
	CALIFORNIA
	(DEPARfMENT
OF
	FORESTRY),
Respondent.
,
Case
No.
	S-CE-4-S
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CALIFORNIA 	DEPARTMENT
	OF
	FORES'rRY
EMPLOYEES
	ASSOCIATION,
Charging
	Party,
v.
STA'rE 	OF
	CALIFORNIA,
	GOVERNOR'S
OFFICE
	OF
	EMPLOYEE 	RELATIONS,
Respondent.
Case No.
	S-CE-19-S
PERB
	Decision	
No.	
174-S
September 	21, 	1981
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___________________ )
CALIFORNIA 	CORREC'rIONAL
	OFFICERS
ASSOCIATION,
Charging
	Party,
v.
S'rATE
	OF
	CALIFORNIA,
	GOVERNOR'S
OFFICE
	OF
	EMPLOYEE 	RELATIONS,
Respondent.
Case
No.
	S-CE-18-S
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)_____________________ )
~Eearances: 	Russell
	L.
	Richeda, 	Attorneys 	(Carroll, 	Burdick
	&
McDonough)	
for	
the	
California
Department 	of
	Forestry
	Employees'
Association	
and
	the
California Correctional OfficersAssociation; 	Barbara
	T.
	Stuart, 	Attorney	
for	
the 	Governor's
Office 	of
Employee
Relations,
	(now
Department 	of Personnel
Administration).

Before 	Gluck,
	Chairperson;
	Jaeger,
	and
	•rovar,
	Members.
DECISION
Both
	charging
	parties,
	the
	California
Department 	of
	Forestry
Employees
Association
	(hereafter
	CDFEA)
	and
	the
	California
Correctional 	Officers
	Association 	(hereafter
	CCOA),
	as
	well
	as
the 	respondents,
	S_t
ate 	of
	California,
	Department
	of
	Forestry
(hereafter
	CDF)
	and
	the 	Governor's Office
	of
	Employee
	Relations
(hereafter
	GOER),
	filed
	exceptions
	to 	the 	attached 	hearing
officer
I s
	proposed
	decision
	which 	found
	the 	res pendents
	violated
sections
	3519
(a),
	(b)
	and 	(d)
	of
	the
S_tate Employer-Employee
Relations
	Act
	(hereafter
	SEERA)
.1	
In
	his 	findings, 	the 	hearing
l 	SEERA
	is
	codified
	as 	Government
	Code
	section
	3512
	et
seq.
	All 	further 	statutory
	references
	are 	to 	the
	Government
Code
	unless 	otherwise 	noted. 	Section
	3519
	reads
	in 	pertinentpart:
It
	shall
	be
	unlawful 	for 	the
	state
	to:
(a)
	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.
(b) 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this	
chapter.
(d) 	Demi
nate 	or
	inter£ ere 	with	
the
formation 	or 	administration 	of
	any
	employee
organization, 	or 	contribute 	financial
	or
other 	support 	to
	it,
	or 	in	
any 	way	
encourageemployees 	to
	join	
any	
organization 	in
preference 	to 	another.
2

officer 	determined 	that 	the 	regulations 	issued 	by 	CDF2 	and
GOER3 	restricting 	supervisors' 	participation 	in 	pre-election
2cDFEA 	challenged 	the 	following 	four 	subdivisions 	of
Section 	2173.3 	of 	CDF's 	Manual 	of 	Instructions 	(hereafter
Manual):
Pre-Election 	Conduct
During 	the 	election 	period, 	managers 	and
supervisors 	should 	exercise 	care 	to 	avoid
committing 	unfair 	practices. 	In 	addition 	to
the 	guidelines 	which 	have 	been 	outlined 	in
the 	Unfair 	Labor 	Practices 	section,
managers/supervisors 	should 	give 	attention
to 	the 	following:
A. 	Do 	not 	support 	one 	organization 	in
preference 	to 	another 	or 	take 	any
advocacy 	role 	in 	the 	election.
B. 	Avoid 	the 	appearance 	of 	supporting 	a
particular 	organization 	through 	bumper
stickers 	or 	other 	means.
D. 	Avoid 	criticism of 	any 	employee
organization, 	verbal 	or 	written.
E. 	Do 	not 	attend 	any 	rank 	and 	file
employee 	organization meetings.
In 	charging 	parties' 	brief 	to 	the 	hearing 	officer, 	they
volunteered 	that 	many 	of 	their 	concerns 	with 	respect 	to 	the
Manual 	were 	satisfied 	by 	the 	settlement 	agreement 	in 	Case
No. 	S-CE-5-S. 	However, 	as 	they 	did 	not 	waive 	their 	objections
to 	the 	Manual, 	the 	legality 	of 	all 	four 	subdivisions 	will 	be
considered 	by 	the 	Board.
3Both 	CDFEA 	and 	CCOA challenge 	the 	following 	nine
subsections 	of 	the 	Guide 	to 	Pre-Election 	Conduct 	for 	State
Managerial 	and 	Supervisory 	Employees 	(hereafter 	Guide):
A. 	Maintaining 	a 	Position on 	Neutrality
Management 	employees 	(including
3

activities
	during
	nonworking
	periods
	away 	from
	the
	work
locations:
	deny
	nonsupervisory
	employees
	their 	right
	to
	a
	free
flow
	of
	communication
	from
	supervisors
	who
	belong
	to
	the
	same
supervisors)
	must
	maintain
	a
	position
of
	neutrality
	during 	the
	pre-election
period
	and
	avoid
	actions
	which
indicate
	support 	or 	opposition
	to
	anemployee
	organization,
	such
	as:
1. 	Displaying
	emblems,
	ashtrays,
	or
other
	insignia
	on
	State
	property
which
	signify
	a
	particular
employee
	organization.
2. 	Displaying
	employee
	organization
bumper
	stickers
	on
	State 	cars
	or
on
	private 	vehicles
	parked
	on
State 	property.
3. 	Attending 	organizing
	rallies
	and
meetings 	scheduled
	to
	recruit
rank-and-file
	employees
	or
	solicit
contract
	demands.
B. 	Communicating
	with
	Employees
You 	may
	answer
	general 	questions 	regarding
SEERA
	and
	the
	process 	for
	its
implementation.
	However:
1.
	If
	additional
	information
	is
requested, 	refer
	the
	employee
	to
your
	departmental
	Employee
Relations 	Officer.
2. 	Refer
	Employees
	with 	questionsabout
	specific
	employee
organizations 	to 	that 	organizationfor 	answers.
3.	
Avoid 	remarks 	which 	imply
	that
employee
	organizations 	in 	general
or 	that	
a
	specific
	employee
4

organization; 	deny 	employee 	organizations 	the 	right 	to
represent 	their 	members 	by 	hindering 	supervisors 	from
performing 	as 	office 	holders; 	and 	require 	internal
restructuring 	of 	employee 	organizations 	which 	have 	supervisors
as 	members, 	respectively. 	As 	explained 	below, 	the 	Public
Employee 	Relations 	Board 	(hereafter 	PERB 	or 	the 	Board) 	reverses
that 	decision.
PROCEDURAL 	HISTORY AND 	FACTS
The 	procedural 	history 	and 	findings 	of 	fact 	of 	the 	hearing
officer 	are 	free 	from 	prejudicial 	error 	and 	are 	adopted 	as 	the
findings 	of 	the 	Board 	itself.
DISCUSSION
Charging 	parties 	allege 	that 	the 	Manual 	and 	Guide 	violate
the 	right 	of 	rank-and-file 	employees 	to 	join 	and 	participate 	in
organization 	is 	detrimental 	to 	the
best 	interests 	of 	the 	employee.
4. 	Do 	not 	discuss 	employee 	organizing
activities, 	project 	the 	results 	of
bargaining 	or 	compare 	employee
organizations.
7. 	Do 	not 	monitor 	the 	activities 	of
employees 	to 	determine 	their
support 	for 	employee 	organizations.
8. 	Do 	not 	question 	employees 	about
their 	or 	others' 	attitudes
towards, 	or 	membership 	in,
employee 	organizations.
5

activities
	of
	employee
	organizations
	as 	provided 	for
	under
section
	35154 	and
	the
	rights
	of
	an 	employee
	organization
	to
represent
	its
	members
	as 	provided 	for
	under
	section
	3515.5.
5
In
	essence,
	charging
	parties
	argue
	that 	rank-and-file
	employees
have
	a
	right
	to
	receive
	information
	from
	supervisors
	concerning
the
	rank-and-file 	election
	campaign
	and 	employee
	organizations
have
	a
	right
	to
	use
	their
	supervisory
	members
	to 	disseminate
such
	information
	to 	rank-and-file
	employees.
4section
	3515
	reads:
Except 	as
	otherwise
	provided
	by
	the
Legislature,
	state
	employees
	shall
	have
	the
right
	to
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose
	of
representation
	on
	all
	matters 	of
employer-employee
	relations.
	State
employees
	also
	shall
	have
	the
	right
	to
refuse 	to 	join
	or
	participate
	in 	the
activities
	of
	employee
	organizations,
	except
that
	nothing
	shall
	preclude 	the
	parties
	from
agreeing
	to
	a
	maintenance
	of
	membership
provision,
	as 	defined 	in
	subdivision
	(h)
	of
Section 	3513, 	pursuant 	to
	a 	memorandum
	ofunderstanding. 	In
	any
	event,
	state
employees
	shall
	have
	the
	right
	to 	represent
themselves
	individually
	in
	their
	employment
relations
	with 	the
	state.
5section
	3515.5 	reads:
Employee	
organizations 	shall
	have
	the	
rightto 	represent 	their
	members	
in	
their
employment
	relations
	with 	the
	state,
	except
that
	once 	an 	employee
	organization
	is
recognized 	as 	the 	exclusive 	representative
of
	an
	appropriate	
unit,	
the 	recognizedemployee	
organization	
is
	the 	only
6

In 	State 	of 	California, 	Department 	of 	Forestry 	(3/25/80)
PERB 	Decision 	No. 	119-S, 	this 	Board, 	reversing 	a 	hearing
officer's 	dismissal 	of 	charges 	based 	on 	the 	restrictions
imposed 	on 	supervisors 	by 	the 	Manual, 	held 	at 	page 	12:
[i]f 	the 	right 	of 	rank-and-file 	employees 	to
belong 	to 	the 	same 	employee 	organizations 	as
supervisors 	and 	their 	right 	to 	elect
supervisors 	to 	offices 	in 	those
organizations 	is 	to 	have 	meaning, 	they 	must
have 	the 	right 	to 	freely 	exchange
information 	and 	ideas 	regarding 	those
organizations 	with 	all 	members, 	including
supervisors.
This 	right 	of 	rank-and-file 	employees 	is 	not 	an 	unfettered 	one,
as 	the 	Board 	explained 	on 	page 	13 	of 	the 	same 	decision:
[t]he 	right 	of 	rank-and-file 	employees 	to
the 	participation of 	supervisory 	members 	in
their 	employee 	organizations 	must 	be
balanced 	against 	the 	duty 	of 	the 	state
employer 	to 	protect 	itself 	against 	unfair
practice 	charges.
The 	Board, 	in 	balancing 	these 	competing 	interests, 	notes
that 	the 	Guide 	and 	the 	Manual 	apply 	only 	to 	the 	period
preceding 	the 	SEERA 	elections. 	It 	is 	the 	Board's 	intention
that 	these 	elections 	be 	conducted 	in 	an 	environment 	which 	is
organization 	that 	may 	represent 	that 	unit 	in
employment 	relations 	with 	the 	state.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who 	may
join 	and 	may 	make 	reasonable 	provisions 	for
the 	dismissal 	of 	individuals 	from
membership. 	Nothing 	in 	this 	section 	shall
prohibit 	any 	employee 	from 	appearing 	in 	his
own 	behalf 	in 	his 	employment 	relations 	with
the 	state.
7

conducive
	to
	the
	casting
	of
	a
	free
	and
	uncoerced
	vote
	by
employees.
	The
	environment
	should
	also
	allow
	for
	the
	greatest
possible
	interchange
	of
	information
	consistent
	with
	protection
of 	the
	rights
	of
	all
	participants.
As
	the
	State
	employer
	may
	be
	held
	responsible
	for
	the
actions
	of
	supervisors 	acting 	within
	their
	actual
	or
	apparent
authority
	(see Antelope
Valley
Community
College
	District
(7/18/79)
	PERB
	Decision
No.
	97),
	it:
.••
	has
	a
	legitimate
	interest
	inregulating,
	within 	permissible 	boundaries,
the 	actions
	and
	conduct 	of
	its
	supervisory
employees
	by
	restricting
	supervisors
	from
holding
	themselves
	out
	as
	spokespersons 	for
the
	state
	while
	engaged
	in 	organizational
activity
	and 	by
	disavowing 	improper 	conduct
or
	action
	by
	supervisors
	to 	the
	extent
	that
such
	activity
may 	be
	viewed 	as
	authorized
	by
the
	state
	employer.
	(Citation
	omitted)
State
	of
	California,
	Department 	of
	Forestry,
~upra,
	at
	page
	14.
It
	is
	often
	a
	difficult
	task 	to
	determine 	during 	the
sensitive 	pre-election
	period
	when 	a
	supervisor 	crosses 	the
line 	separating 	legal
	discussion 	with
	a
	subordinate
	and
	illegal
coercion 	of 	the
	rank-and-file
	employee.
	It
	is
	the 	respondent'
s
position 	that
	the
	Manual
	and
	Guide
	are 	the
	least 	intrusive
means
	of
	protecting
	itself
	from
	the 	unfair 	practices
	which
arise
	when
	supervisors 	cross 	the
	line.
The 	employee
	organizations
	argue
	that,
	although
	supervisors
constitute
	a
	minority of
	their
	membership, 	they 	play
	an
extraordinarily 	important 	role 	in 	guiding 	their 	respective
8

organizations
	through
	the
	pre-election
	period.
	This
	role,
	is
however,
	one 	which
	could
	be
	performed
	by
	rank-and-file
employees.
	Al
though
	the
	supervisory
members
	of
	the 	charging
parties
	possibly
	possess
	greater
	knowledge,
	with 	regard 	to
their
	respective
	work
	places
	and
	employee
	organizations,
	their
small
	numbers
	in
	comparison
	to
	each
	organization's 	overall
membership
	belie
	a
	finding 	of
	such
	extraordinary
	value 	to
	the
organization
	and
	its
	rank-and-file
	employees.
Balancing 	the
	several
	competing
	interests,
	the
	Board
	finds
that
	enforcement 	of
	the
	Manual
	and
	Guide
	during 	the
	critical
pre-election
	periods
	does
	not
	constitute
	a
	violation
	of
	SEERA.
The 	Board
	rejects
	the
	distinction
	made 	by
	the
	hearing
	officer
which
	struck
	down
	enforcement 	of
	the
	Guide 	and Manual
	away
	from
the
	work
	location
	and
	off
	work
	time.
	The
	State
	employer's
interest
	in
	remaining
	free
	from
	unfair
	practice
	charges
	is
	no
less
	jeopardized
	by
	supervisors 	acting 	in 	violation
	of
	the
Manual
	or
	Guide
	away
	from
	the
	work
	place 	than
	at
	the
	work
place.
	A
supervisor,
	well-known 	as 	such
	by
	employees, 	does 	not
by
	reason 	of 	leaving	
the	
work
	site
	become 	a
	rank-and-file
employee.
	The
	supervisory-subordinate 	relationship
	remains 	as
does	
the
	possibility 	that
	an	
unfair	
practice 	will 	occur.
The
	Board
	therefore 	finds	
the 	Manual 	and
	the 	Guide
	to
	be
legal 	limitations	
of	
supervisors
1	
conduct 	during	
the
	critically
sensitive 	period 	prior 	to	
the	
elections	
and	
dismisses	
the
charges.
9

ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	in
	this
case,
	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that:
	the
unfair
	practice
	charges
	filed
	by
	the
	California
	Department
	of
Forestry
	Employees
	Association
	and
	the
	California 	Correctional
Officers
	Association
	against
	the
	State
	of
	California,
Department
	of
	Forestry
	and
	Governor's 	Office 	of
	Employee
Relations 	are
	DISMISSED.
By:
'sehri
	W.
	Jaeger,
	Meitiber	
Irene
	Tovar,
	Member
Harry 	Gluck, 	Chairman,
	concurring:
The
	issue 	here
	is
	not 	whether
	the
	State's
	"competing
interests" 	justify
	a
	violation
	of 	the
	organizations'
	SEERA
rights,
	but
	whether
	charging
	parties
	have
	a
	protected
	right
	to
utilize
	supervisors
	as
	organizers
	of
	rank-and-file
	employees.
I
	conclude
	that
	they
	do
	not.
Charging
	parties
	rely
	on
	section
	3522.3
	of 	the
	Act 	which
authorizes 	supervisory
	employees
	to 	join
	and
	participate 	in
employee
	organizations 	of
	their
	choice
	and 	on
	section
	3518.7
which
	prohibits
	managerial
	and
	confidential
	employees 	from
holding
	elective 	offices 	in 	that
	employee
	organization
	which
also 	represents 	rank-and-file
	employees.
	By
	implication,
10

they 	argue,
	supervisors
	are
	permitted
	to
	hold
	office
	in
	such
organizations
	and
	therefore
	cannot
	be
	restrained
	from
performing
	organizational
	activities.1 including 	the
	organizing
of 	rank-and-file
	employees.
Accepting 	arguendo
	the 	charging
	party's
	position 	that
	the
statute's
	silence
	as 	to 	the
	supervisors'
	right
	to 	hold
	office
is
	equivalent
	to
	permission
	to
	do
	so,
	the
	supervisors'
	right
	to
participate
	in
	organizational
	activities
	must
	be
	considered 	in
light
	of
	section
	3522.2
	which
	prohibits 	participation
	by
supervisory
	employees
	in
	matters
	concerning
	rank-and-file
employees
	and
	section
	3522
	which
	expressly
	excludes
	supervisors
from
	coverage
	of 	the
	SEERA
	except
	as
	specifically 	authorizea.l
lsection
	3522
	reads:
Except 	as 	provided
	by
	Sections
	3522.1
	to
3522.9,
	inclusive,
	supervisory
	employees
shall
	not
	have
	the
	rights
	or
	be 	covered
	by
any
	provision
	or
	definition 	established
	by
this
	chapter.
Section
	3522.2
	reads:
{a}
	Supervisory
	employees
	shall
	not
participate
	in
	the 	handling
	of 	grievances
	on
beha
	of
	nonsupervisory
	employees.
Nonsupervisory 	employees
	shall
	not
participate
	in 	the 	handling 	of 	grievances
	on
behalf 	of 	supervisory
	employees.
(b)
	Supervisory
	employees 	sha 	not
par 	cipate 	in
	meet 	and
	confer 	sessions
	on
beha
	of
	nonsuperv
	y
	employees.
Nonsupervisory 	employees
	shall
	not
11

Sections 	3522.4 	and 	3522.6 2 complete 	the 	circle 	by
demonstrating 	that 	the 	inclusion 	of 	supervisors 	in 	the 	SEERA 	is
designed 	to 	exclude 	them 	from 	its 	special 	provisions 	and
participate 	in 	meet 	and 	confer 	sessions 	on
behalf 	of 	supervisory 	employees.
(c) 	The 	prohibition 	in 	subdivisions 	(a) 	and
(b) 	shall 	not 	be 	construed 	to 	apply 	to 	the
paid 	staff 	of 	an 	employee 	organization.
(d) 	Supervisory 	employees 	shall 	not 	vote 	on
questions 	of 	ratification 	or 	rejection 	of
memorandums 	of 	understanding 	reached 	on
behalf 	of 	nonsupervisory 	employees.
2sec tion 	35 22. 4 	reads:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	supervisory 	employee
members 	in 	their 	employment 	relations,
including 	grievances, 	with 	the 	employer.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who may
join 	and 	may 	make 	reasonable 	provisions 	for
the 	dismissal of 	employees 	from 	membership.
Nothing 	in 	this 	section 	shall 	prohibit 	any
employee 	from 	appearing 	on 	his 	or 	her 	own
behalf 	or 	through 	his 	or 	her 	chosen
representative 	in 	his 	or 	her 	employment
relations 	and 	grievances 	with 	the 	public
employer.
Section 	3522.6 	reads:
Upon 	request, 	the 	state 	shall 	meet 	and
confer 	with 	employee 	organizations
representing 	supervisory 	employees. 11 Meet
and 	confer" 	means 	that 	they 	shall 	consider
as 	fully 	as 	the 	employer 	deems 	reasonable
such 	presentations 	as 	are 	made 	by 	the
employee 	organization 	on 	behalf 	of 	its
supervisory 	members 	prior 	to 	arriving 	at 	a
determination 	of 	policy 	or 	course 	of 	action.
12

provide 	them 	with 	continued 	access 	to 	the 	rights 	they 	enjoyed
vis-a-vis 	the 	State 	under 	SEERA's 	predecessor 	statute.3
Thus, 	it 	seems 	beyond 	dispute 	that 	the 	Legislature 	intended
to 	include 	in 	the 	SEERA 	the 	well-established 	principle 	that 	the
State, 	as 	the 	employer, 	is 	entitled 	to 	the 	undivided 	loyalty 	of
its 	supervisory 	cadre 	in 	matters 	involving 	its 	relationship
with 	rank-and-file 	employees.4
The 	apparent 	anomaly 	of 	permitting 	supervisors 	to 	belong 	to
organizations 	of 	their 	choice 	(thus, 	including 	those 	with
rank-and-file 	employee 	membership) 	while 	prohibiting 	their
participation 	in 	rank-and-file 	organizing 	is 	not 	without
federal 	parallel. 	Supervisors' 	continued 	membership 	in 	labor
organizations 	is 	authorized 	by 	section 	14(a) 	of 	the 	National
Labor 	Relations 	Act 	and 	has 	been 	found 	not 	to 	constitute 	in 	and
of 	itself 	grounds 	for 	an 	unfair 	labor 	practice 	charge5 	but
their 	participation 	in 	the 	representation of 	nonsupervisory
employees 	violates 	that Act.6
3Geor ge 	Brown 	Act, 	Government 	Code 	Section 	35 25 	et 	seq.
4s ee 	Fair field--Suisun 	Unified 	School 	District 	(3/25/80)
PERB 	Decision No. 	121, 	where 	PERB-found-'tfiTs-prTnciple
applicable 	even 	under 	a 	statute 	(EERA) 	which 	permits
supervisors 	to 	have 	bargaining 	units 	and 	negotiate 	in 	good
faith.
5Nassau 	and 	Suffolk 	Contractors Assn. 	(1957) 	118 	NLRB 	174
[40 	LRRM 	1146]. 	. 	-
6NLg~ 	v. 	Valentine 	Su9.~f§t._I~9_ 	(5th 	Cir. 	1954) 	211 	F.2nd
317 	[33 	LRRM 	2679]; 	Pan9les 	Master 	Markets 	(1971) 	190 	NLRB 	332
13

The
	State,
	as 	the
	employer, 	has
	an
	undeniable
	right 	to
remain
	neutral
	in
	the
	face 	of
	organizational
	activity.
	It
	has
a
	correlative 	right
	to
	require
	that
	its
	representatives·--
manager
ial
	and
	supervisory--observe
	and
	maintain
	that
neutrality.
	For
	this
	reason
	I
	concur
	in
	that
	portion
	of 	the
majority
	opinion
	which
	asserts
	the
	right
	of 	the
	State
	to
protect
	itself
	from
	unfair
	practice
	charges.
	The
	danger
	to
	the
State 	resulting
	from
	the
	participation
	of
	its
	supervisory
personnel 	in
	rank-and-file
	organizing
	made
	the 	issuance
	of
these
	rules
	reasonable,
	if
	not 	necessary,
	for
an 	employer
	may
	properly
	be
	held 	responsible
for
	interfering 	in
	the
	affairs
	of
	a
	union
because
	of
	participation
	by
	his 	supervisors
even
	though
	such
	participation
	was
	not
expressly 	authorized
	or
	ratified.?
However,
	I
	do
	not
	find
	in 	State
	of
	California, 	De~tment
of
	Forestry,
	su2r~, 	the
	meaning
	the
	majority
	seems
	to
	ascribe.
Communications 	between
	supervisory
	and
	rank-and-file
	members
	of
an 	employee
	organization
	encompass
	many
	activities
	other
	than
the 	organizing 	involved
	here.
	It
	is
	beyond
	the
	reach of
	this
decision
	to
	identify
	them.
	Suffice
	it
	to 	say
	that
	the
	State
	of
California,Department of 	Forestry 	decision
	was
	not 	intended 	to
[77
	LRRM
	1596];
	University 	of 	Chicag~L_ibrary
	(1973)
	205
NLRB
	220
	[83
	LRRM	
1678].
7Plumbers 	Local
	636
	v.
	NLRB 	(1961) 	287
	F.2d 	354, 	[17	
LRRM
2457];
	Aiso-NLCRB	
v.
	Park 	Edge--Sheridan Meats, 	Inc. 	(1963)
	323
P.2d
	956
	[54-LRRM 	24IT].
14

create
	rights
	not
	granted
	by
	the
	SEERA
	and
	that
	supervisors'
involvement
	in 	rank-and-file
	organizing
	for
	representation
is
	not
	a
	protected
	right
	to
	which
	charging
	parties
	may
	lay
claim.
I
	concur
	in
	the 	dismissal 	of
	all
	charges.
Hrry
	GlUck,
	Chairman
15

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA DEPARTMENT OF FORESTRY
EMPLOYEES ASSOCIATION,
Charging P arty,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
FORESTRY),
Respondent.
)
)
)
)
)
)
)
)
)
}
)
)
)
)
)
)
}
)
)
)
)
}
}
)
)
Case No. S-CE-4-S
S-CE-19-S
CALIFORNIA CORRECTIONAL OFFICERS
ASSOCIATION,
C harging P arty,
v.
STATE QF,CALIFORNIA (DEPARTMENT OF
CORRECTIONS} ,
Respondent.
case No. S-CE-18-S
PROPOSED DECISION
· (10/28/80)
Appearances: Ronald Yank and Russell L. Richeda, Attorneys
(Carroll, Burdick & McDonough) for the California Department of
Forestry Employees' Association and the California Correctional
Officers Association; Barbara T. Stuart, Attorney for the
Governor's Office of Employee Relations.
Before Ronald E. Blubaugh, H earing Officer.
PROCEDURAL HISTORY
This case raises difficult questions concerning
restrictions on supervisory participation in the pre-election
campaign for exclusive representatives under the State Employer

Employee
	Relations
	Act
	(hereafter
	SEERA). 	A number
	of
employees
	whom
	the
	state
	has
	designated 	as
	supervisors 	are
members 	and
	high-ranking
	officers
	in 	the
	two
	employee
organizations
	which
	filed
	these 	charges.
	The
	organizations
challenge
	guidelines
	issued
	by
	the 	Governor's
	Office 	of
Employee
	Relations 	(hereafter
	GOER
	or
	State)
	which
	they 	contend
to
	be
	in
	violation
	of
	SEERA.
The
	first
	charge
	in
	this
	sequence
	was
	filed
	on
September 	22,
	1979 	by
	the
	California
	Department
	of 	Forestry
Employees
	Association
	(hereafter
	CDFEA
or 	Forestry
	Employees
Association).
	This 	charge
	alleges 	that
	the
	Department
	of
Forestry
	in
	May
	of
	1978
	had
	amended
	its
	personnel
	manual
	so 	as
to
	"drastically"
	curtail
	the
	rights
	of 	supervisors 	to
participate
	in
	the
	election
	process.
	The
	charge
	also 	alleges
that
	CDFEA
	is
	harmed
	as
	an
	organization
	because
	it
	is
	"deprived
of
	an
	important
	means
	of
	demonstrating 	the
	range
	and
	nature 	of
its
	membership."
	Finally,
	the 	charge	
alleges
	that	
"rank
	and
file
	employees
	are
	directly
	harmed" 	by
	the 	policy
	change
because
	it
	deprives
	them
	of 	their 	"traditional
	communication
channel 	for 	learning 	the 	preferences
	and
	rationales 	of
	their
supervisors 	concerning
	employee
	organizations."
	The
	Forestry
Employees
	Association 	alleges 	that
	the
	new
	policy
	amounts
	to
	a
2

violation
	of
	Government
	Code
	section
	3519(a),
	(b) 	and
	(d)l
and
	sections
	3522.3,
2	
3522.4,3	
and
	3522.8.4
1
Government
	Code
	section
	3519
	provides:
It
	shall
	be
	unlawful
	for
	the
	state
	to:
(a) 	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.
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
(c)
	Refuse
	or
	fail
	to
	meet
	and
	confer 	in
good
	faith
	with
	a
	recognized
	employee
organization.
(d) 	Dominate
	or
	interfere
	with
	the
formation 	or
	administration of
	any 	employee
organization,
	or
	contribute 	financial
	or
other 	support
	to
	it,
	or 	in
	any 	way
	encourageemployees
	to 	join
	any
	organization	
in
preference 	to 	another.
{e)
	Refuse
	to 	participate	
in	
good	
faith	
in
the 	mediation 	procedure
	set
	forth
	in 	Section3518.
2unless 	otherwise 	indicated,
	all
	references 	are 	to 	the
Government 	Code.
	Section
	3522.3
	provides:
Supervisory
	employees	
shall	
have 	the	
rightto	
form,	
join,	
and	
participate	
in 	the
activities	
of
	employee	
organizations 	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on	
all	
matters 	of 	supervisoryemployee-employer
	relations
	as
	set 	forth 	in
Section 	3522.6. 	Supervisory 	employees	
also
shall
	have 	the	
right 	to 	refuse 	to 	join
	or
participate
	in 	the	
activities 	of
	employee
organizations	
and
	shall
	have 	the	
right 	to
represent 	themselves 	individually 	in
	their
3

On
	September
	11,
	1978,
	a
	hearing
	officer
	for
	the
	Public
Employment
	Relations
	Board
	(hereafter
	PERB
	or
	Board)
	dismissed
the 	charge.
	The
	hearing
	officer
	found
	that
	the
	PERB
	lacks
jurisdiction
	to 	resolve
	through
	the 	unfair
	practice
	provisions
of
	the
	SEERA
	a
	charge
	that
	the
	policy
	interfered
	with 	the
	right
of 	supervisors 	to
	form 	and
	participate
	in 	the
	activities
	of
employee
	organizations
	in
	violation
	of
	sections
	3519(a},
3522.3,
	3522.4
	and
	3522.8.
	The
	hearing
	officer
	also
	dismissed
the
	allegation 	that
	the
	policy
	interfered
	with 	the
	rights 	of
employment
	relations
	with
	the 	public
employer.
3Government 	Code
	section
	3522.4
	provides:
Employee
	organizations
	shall
	have
	the
	right
to 	represent
	their
	supervisory
	employeemembers
	in
	their
	employment
	relations,
including 	grievances,
	with
	the
	employer.
Employee
	organizations
	may
	establish
reasonable
	restrictions
	regarding
	who may
join
	and 	may make
	reasonable 	provisions 	for
the 	dismissal 	of
	employees 	from membership.
Nothing
	in
	this
	section
	shall 	prohibit
	any
employee 	from
	appearing
	on
	his
	or 	her
	own
behalf 	or 	through
	his
	or 	her 	chosen
representative
	in
	his
	or 	her
	employment
relations
	and
	grievances 	with 	the
	public
employer.
4Government 	Code	
section
	3522.8
	provides:
The
	state
	employer 	and 	employee
organizations 	shall 	not
	interfere 	with,
intimidate, 	restrain,
	coerce, 	or
discriminate 	against 	supervisory 	employees
because 	of 	their 	exercise 	of 	their 	rights
under	
this 	article.
4

rank-and-file
	employees5	
by
	depriving
	them
	of 	the
	opportunity
to
	learn
	the
	preferences
	and
	rationales
	of
	their
	supervisors.
With
	regard
	to
	the
	allegation 	that
	by
	limiting
	the
participation
	of 	supervisors
	the
	State
	had
	infringed
	upon
CDFEA's
	rights
	under
	section
	3515.s,6 	the 	hearing
	officer
concluded
	that
	CDFEA
	has
	no
	right
	to
	have
	supervisory
	members
participate
	in
	an
	organizing
	campaign
	directed
	at
nonsupervisory
	employees.
5Government
	Code
	section
	3515
	provides:
Except 	as
	otherwise provided
	by
	the
Legislature,
	state
	employees
	shall
	have
	the
right
	to
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing
	for 	the 	purpose
	of
representation
	on
	all
	matters
	cf
employer-employee
	relations. 	State
employees
	also
	shall
	have
	the
	right
	torefuse 	to 	join
	or
	participate
	in 	the
activities
	of
	employee
	organizations,
	except
that
	nothing
	shall
	preclude 	the
	parties
	from
agreeing
	to
	a
	maintenance
	of
	membership
provision,	
as	
defined 	in 	subdivision 	(h) 	ofSection 	3513, 	pursuant
	to
	a 	memorandum
	of
understanding.
	In
	any
	event,
	state
employees
	shall
	have
	the
	right 	to 	represent
themselves
	individually 	in
	their
	employment
relations
	with 	the
	state.
6Government Code	
section
	3515.5 	provides:
Employee
	organizations 	shall	
have 	the	
rightto 	represent 	their	
members 	in	
their
employment
	relations
	with 	the
	state,
	except
that
	once 	an 	employee	
organization
	is
recognized 	as 	the 	exclusive 	representative
of	
an 	appropriate	
unit,	
the 	recognizedemployee	
organization 	is	
the 	only
organization 	that	
may	
represent 	that 	unit	
in
5

CDFEA
	excepted
	to
	all
	portions
	of 	the
	dismissal
	except 	the
determination
	that
	the
	policy
	did
	not
	have
	the
	effect
	of
interfering
	with
	the
	internal
	affairs
	of
	CDFEA
	in
	violation
	of
section
	3519(d).
	On
	March
	25,
	1980,
	the
	PERB
	issued 	Decision
No.
	119-S which
	upheld
	part
	and
	reversed
	part
	of 	the
dismissal.
	The
	PERB
	upheld
	dismissal of
	that
	portion 	of 	the
charge
	alleging
	that
	the
	State
	had
	interfered
	with
	the
	rights
of 	supervisors 	to
	form 	and
	participate
	in 	the
	activities
	of
employee
	organizations 	in
	violation
	of
	sections
	3519(a),
3522.3,
	3522.4
	and
	3522.8.
	However,
	insofar
	as 	the 	charge
pertained 	to 	alleged 	violations
	of 	the
	rights
	of 	nonsupervisors
the
	PERB
	reversed 	the
	dismissal.
	The
	PERB
	ordered
	a
	hearing
	on
the
	allegation 	that
	the 	policy 	violated 	section
	3519(a) 	and
3519(b)
	with 	regard 	to 	the
	rights 	of
	nonsupervisors
	and
	the
employee
	organization.
	Because
	the 	dismissal 	of 	the
	alleged
violation
	of 	section
	3519(d)
	was
	not 	appealed, 	the
	PERB
	did
	not
pass	
on
	the 	correctness 	of
	that
	decision.
A
settlement 	conference
	was
	conducted
	in
	this
	matter
	on
April
	21,
	1980,
	but
	it
	was
	not 	successful.
	On
	April
	28, 	1980
employment	
relations	
with 	the
	state.
Employee
	organizations
	may
	establishreasonable
	restrictions
	regarding
	who may
join
	and 	may make
	reasonable 	provisions	
for
the 	dismissal 	of 	individuals
	from
membership. 	Nothing 	in
	this 	section 	shallprohibit
	any 	employee 	from 	appearing 	in	
his
own	
behalf 	in	
his	
employment
	relations 	with
the	
state.
6

the
	Forestry
	Employees
	Association
	filed
	a
	second
	charge,
	case
No.
	S-CE-19-S,
	alleging
	new
	violations
	of
	section
	3519(a)
	and
(b)
	through 	promulgation
	by
	the
	State
	in 	January
	1980
	of
	a
"Guide
	to 	Pre-Election
	Conduct
	for
	State
	Managerial
	and
Supervisory
	Employees." 	Also
	on
	April
	28, 	1980,
	the
	California
Correctional 	Officers
Association
	(hereafter 	Correctional
Officers
	Association
	or
	CCOA)
	filed
	charge
	S-CE-18-S 	which
contains
	allegations 	essentially 	identical
	to
	those
	found
	in
the
	Forestry
	Employees
	Association's
	charge,
	S-CE-19-S.
Through
	a
	stipulation
	by
	the
	parties,
	all
	three 	cases
	were
consolidated 	for 	hearing
	on
	Mayland
	2,
	1980.
	At
	the
	hearing,
the
	State
	made 	a
	general 	denial 	of 	the
	allegations
	in
	S-CE-18-S
and
	S-CE-19-S.
	The
	State
	earlier
	had
	denied 	the
	allegations
	in
charge
	S-CE-4-S. 	Also
	at
	the 	hearing, 	the
	two
	employee
organizations
	amended
	charges
	S-CE-18-S
	and
	S-CE-19-S
	to
	add
the
	allegation 	that
	the
	State's
	alleged
	conduct
	also
	amounted
to
	a
	violation
	of 	section 	3519(d).
The
	final 	briefs
	in 	these 	matters
	were
	received
	on
September 	24, 	1980 	and 	the 	matter
	was
	submitted 	for	
decision.
FINDINGS
	OF 	FACT
Two
	related
	but 	separate 	policies
	concerning
	pre-election
conduct 	are
	under
	attack 	in 	these 	charges.
	The
	first
	of 	these
policies
	was
	put 	into effect 	at
	the 	State
	Department
	of
Forestry 	in
	May
	of 	1978. 	That 	policy, 	incorporated 	as 	section
7

2173.3
	of
	the
	Department
	of
	Forestry
	Manual
	of
	Instructions,?
placed
	certain
	restrictions
	on
	the
	pre-election
	conduct
	of
?section
	2173.3
	of
	the
	Department
	of
	Forestry's
	May
	1978
directive
	reads
	as
	follows:
Pre-Election
	Conduct
During
	the
	election
	period,
	managers
	and
supervisors
	should
	exercise 	care 	to
	avoidcommitting
	unfair
	practices.
	In
	addition 	tothe 	guidelines
	which
	have 	been
	outlined
	in
the 	Unfair
	Labor
	Practices 	section,
managers/supervisors
	should
	give
	attention
to
	the
	following:
A.
	Do
	not 	support
	one
	organization
	in
preference 	to
	another 	or 	take
	any
advocacy
	role
	in
	the
	election.
B.
	Avoid
	the
	appearance
	of 	supporting
	a
particular
	organization
	through
	bumper
stickers
	or
	other
	means.
C.
	Do
	not
	go
	into
	the 	polling 	area 	during
elections
	unless 	authorized 	to
	do
	so.
D. 	Avoid
	criticism
	of
	any 	employee
organization, 	verbal
	or
	written.
E.
	Do
	not 	attend
	any
	rank
	and
	file
	employee
organization
	meetings.
F.
	Do
	not monitor
	who
	attends
	employee
organization meetings.
G.
	Assure
	that	
any	
restrictions	
(time,
access,
	etc.)	
placed	
on
	organizational
representatives 	are 	reasonable
	and
equitable	
and
	based	
upon	
legitimate
management	
needs.
H. 	Afford	
all
	organizations 	fair	
and
equitable 	treatment.
	[Emphasis
	in
original.]
I.
	Continue 	to 	counsel 	or 	disciplineemployees 	for 	job-related 	reasons.
8

supervisors.
	Specifically,
	CDFEA
	attacks
	the
	portions
	of
	the
policy
	which
	give
	the
	following
	instruction
	to
	departmental
managers
	and
	supervisors:
A.
	Do
	not 	support
	one
	organization
	in
preference 	to
	another 	or 	take
	any
advocacy
	role
	in
	the
	election.
B. 	Avoid
	the
	appearance
	of
	supporting
	a
particular
	organization
	through
	bumper
stickers
	or
	other
	means.
. . . . .... . . . . . . . . . . .. . ... . . .. . . . . .. . . . . .
D. 	Avoid
	criticism
of
	any employee
organization, 	verbal 	or
	written.
E.
	Do
	not
	attend
	any
	rank
	and
	file
employee
	organization
	meetings.
In
	January
	of 	1980,
	the 	Governor's
	Office 	of
	Employee
Relations 	issued	
a	
four-page
	document
	entitled
	"Guide
	to
Pre-Election
	Conduct
	for
	State
	Managerial
	and
	Supervisory
Employees"
	(hereafter
	Guide)
.8	
Unlike
	the 	previous
	policy,
J.
	Cooperate
	fully
	with 	agents 	of
	PERB.
Section
	3514
	of
	SEERA
	states:
'Any
	person
	who
	shall 	willfully
	resist,
prevent,
	impede
	or
	interfere
	with
	anymember	
of	
the 	board, 	or 	any
	of
	its
agents,	
in 	the 	performance	
of 	dutiespursuant 	to
	this	
chapter,
	shall	
be
guilty 	of
	a
	misdemeanor, 	and,	
upon
conviction 	thereof, 	shall
	be	
sentenced
to 	pay
	a
	fine 	of
	not
	more 	than 	one
thousand
	dollars 	($1,000).'
8The	
relevant 	portion 	of 	the	
January 	1980 Guide
reads 	as 	follows:
A.
	Maintaining
	a
	Position 	of 	Neutrality
9

the 	January 	1980 Guide 	applied 	to managerial 	and 	supervisory
employees 	throughout 	the 	state 	service, 	and 	not 	just 	those 	in
the 	Department 	of 	Forestry. 	The 	Guide 	asserts 	that management
Management 	employees 	[including 	supervisors]
must 	maintain 	a 	position of 	neutrality
during 	the 	pre-election 	period 	and 	avoid
actions 	which 	indicate 	support 	or 	opposition
to 	an 	employee 	organization, 	such 	as:
1. 	Displaying 	emblems, 	ashtrays, 	or
other 	insignia 	on 	State 	property 	which
signify 	a 	particular 	employee
organization.
2. 	Displaying 	employee 	organization
bumper 	stickers 	on 	State 	cars 	or 	on
private 	vehicles 	parked 	on 	State
property.
3. 	Attending 	organ1z1ng 	rallies 	and
meetings 	scheduled 	to 	recruit
rank-and-file 	employees 	or 	solicit
contract 	demands.
4. 	Inconsistently 	applying 	the 	rules
regarding 	access 	and 	use 	of 	State 	time.
5. 	Unequal 	treatment 	of 	competing
1:::m.1::1luye1::: 	u.c.yani:t0at.ious.
B. 	Communicating 	with 	Employees
You 	may 	answer 	general 	questions 	regarding
SEERA and 	the 	process 	for 	its
implementation. 	However:
1. 	If 	additional 	information 	is
requested, 	refer 	the 	employee 	to 	your
departmental 	Employee 	Relations 	Officer.
2. 	Refer 	employees 	with 	questions
about 	specific 	employee 	organizations
to 	that 	organization 	for 	answers.
3. 	Avoid 	remarks 	which 	imply 	that
employee 	organizations 	in 	general 	or
that 	a 	specific 	employee 	organization
is 	detrimental 	to 	the 	best 	interests 	of
the 	employee. 10

and
	supervisory
	employees 	"must
	maintain
	a
	position
	of
neutrality
	during 	the
	pre-election
	period
	and
	avoid
	actions
which
	indicate
	support 	or
	opposition 	to
	an
	employee
organization."
	The
	policy
	then
	gives
	a
	series
	of
	examples
	of
conduct
	inconsistent
	with 	the
	required
	neutrality.
Specifically,
	the 	Forestry
	Employees
	Association
	and
	the
Correctional 	Officers
	Association
	object
	to 	the
	instruction
that
	they 	avoid
	activities
	such
	as:
4.
	Do
	not 	discuss
	employee
	organizing
activities,
	project
	the
	results
	ofbargaining 	or
	compare 	employee
organizations.
5.
	Do
	not
	threaten
	employees
	with
	the
loss
	of
	benefits
	for 	supporting
employee
	organizations.
6.
	Do
	not
	tell
	employees
	that
	they
will
	be
	better
	taken
	care 	of
	by
management
	if
	they
	do
	not 	support
employee
	organizations.
7.
	Do
	not 	monitor 	the
	activities 	of
employees
	to
	determine
	their
	support
for
	employee
	orgnizations.
8.
	Do
	not 	question
	employees 	about
their
	or
	others' 	attitudes
	towards,
	or
membership
	in,
	employee
	orgnizations.
9.
	Do
	not	
imply
	that
	management 	knows
who
	is 	recruiting,
	signing
authorization	
cards 	or
	supporting
which 	employee
	organization.
10.
	Do
	continue 	to 	counsel 	or
discipline	
employees 	for 	job-relatedreasons.
11

A-1.
	Displaying
	emblems,
	ashtrays,
	or
	other
insignia
	on
	State
	property
	which
signify
	a
	particular
	employee
organization.
A-2.
	Displaying
	employee
	organization
bumper
	stickers
	on
	State 	cars
	or
	on
private
	vehicles
	parked
	on
	State
property.
A-3.
	Attending
	organizing
	rallies
	and
meetings 	scheduled
	to
	recruit
rank-and-file
	employees
	or
	solicit
contract
	demands.
The
	January
	1980
	Guide
	states 	that
	managerial
	and
supervisory
	employees
	may
	answer
	general 	questions 	regarding
SEERA
	and
	the
	process 	for
	its
	implementation.
	However,
	it
	adds
these 	cautions 	to
	which
	the
	two
	employee
	organizations
	object:
B-1.
	If
	additional
	information
	is
requested,
	refer
	the
	employee
	to
	your
departmental
	Employee
	Relations
Officer.
B-2. 	Refer
	Employees
	with 	questions
	about
specific
	employee
	organizations 	to
that
	organization
	for 	answers.
B-3.
	Avoid
	remarks
	which 	imply
	that
employee
	organizations 	in 	general 	or
that
	a
	specific
	employee
	organization
is
	detrimental 	to 	the 	best
	interestsof
	the
	employee.
B-4.
	Do
	not 	discuss	
employee
	organizing
activities,
	project	
the	
results	
of
bargaining 	or 	compare 	employee
organizations.
B-7.
	Do
	not 	monitor 	the	
activities 	ofemployees 	to 	determine 	their 	support
for
	employee
	organizations.
12

B-8.
	Do
	not
	question
	employees
	about
	their
or
	others' 	attitudes
	towards, 	or
membership
	in,
	employee
	organizations.
. . . . . . . . . . . .. . .. . . . . . . . .. . . . . . . .. . . . . ..
Except
	for
	clauses
	A-1
	and
	A-2
	of
	the
	1980
	GOER
	Guide,
nothing 	in
	either
	policy
	states
	whether
	the
	restrictions
	are 	to
apply 	only 	during
	working
	hours 	or
	during 	both
	working 	and
nonworking
	times. 	Likewise,
	neither 	policy
	is
	specific
	about
whether
	it
	pertains
	the
	same
	to
	nonworking
	areas
	as
	it
	does
	to
working
	areas.
	On
	March
	18,
	1980,
	Marty
	Morgenstern,
	director
of
	the 	Governor's
	Office 	of
	Employee
	Relations,
	issued
	a
clarification
	to
	the 	January 	1980 	Guide.9	
The
	clarification,
9The
	full 	text
	of 	the
	March
	18,
	1980
	clarification
	reads
as	
follows:
Clarification
	of
	Guide
to
	Pre-Election
	Conduct
In 	January
	1980, 	the 	Governor's 	Office 	of
Employee
	Relations 	issued 	the
	Guide
	to
Pre-Election
	Conduct
	for
	State
	Managerial
and
	Supervisory 	Employees.
	This
clarification 	is
	issued
	after
	discussions
with 	concerned
	employee
	organizations.
	The
Guide
	is
	intended
	to
	keep 	management
	in
	a
neutral 	posture 	with 	respect 	to 	the
	upcoming
representation 	elections, 	to 	prohibit
managers 	and	
supervisor
	from
	using
	theirposition
	or
	authority 	to 	influence 	the 	votes
of 	rank-and-file
	employees,
	and
	to
	restate
certain 	basic 	obligations	
and
responsibilities 	that
	members
	of
	the
management 	team
	are 	expected
	to
	abide 	by.
It
	should	
be	
noted 	that
	under 	SEERA,
"Supervisory 	employees	
shall	
have 	the 	rightto 	form,
	join	
and	
participate 	in 	the
13

which
	appeared
	in
	the
	form
	of
	a 	memorandum
	addressed
	to
	State
managerial
	and
	supervisory
	employees,
	explains
	that
	in
	some
situations
	it
	may
	be
	difficult
	to
	judge 	whether
	the
	policy
	has
been
	violated.
	The 	memorandum
	explains
	that
	individual
	acts
must 	be
	considered 	in
	their
	context
	and
	judged
	accordingly.
activities
	of
	employee
	organizations 	of
their
	own
	choosing
	for 	the 	purpose
	of
representation
	on
	all
	matters 	of 	supervisory
employee-employer
	relations
••••
"
	This
right,
	however,
	does
	not 	extend
	to
nonsupervisory
	employer-employee
	matters.
In
	implementing
	the
	Guide,
	it
	is
	necessary
to
	avoid
	violating 	supervisors'
	rights.
	For
example,
	with
	respect 	to
	Page
	1
	of 	the
Guide,
	paragraphs
	l.A.
	1 	and
	2,
	a
	supervisor
may
	maintain
	that
	in
	wearing
	a
	button,she/he
	is
	merely
	asserting
	the
	rights
	to
belong
	to
	an 	employee
	organization
	and
influence 	other 	supervisors,
	and
	that
	there
is
	no
	intention
	or
	likelihood
	thatrank-and-file
	employees
	will
	be
	influenced.
Situations 	like 	this
	can 	be	
difficult
	to
judge.
Here
	are
	some
	factors
	you
	will
	have
	toconsider. 	Is
	the 	button
	(ash
	tray, 	etc.)
	a
long-honored
	tradition
	with
	this
	person 	or
did
	it
	appear
	just
	before 	the
	election? 	Is
the
	item 	unusually 	obvious, 	or 	does
	the
supervisor
	call
	attention
	to
	it,
	especially
in 	the 	presence 	of
	subordinates?	
Has 	a
rank-and-file
	employee 	complained?
Discussion 	with
	the
	employee
	involved,
consultation with 	your 	Employee
	Relations
Officer
	and
	careful
	informed 	judgments
should
	result
	in
	fair
	and
	predictable
implementation
	of 	this 	policy.
Similar 	concerns
	arise
	with 	respect 	toemployee
	organization 	meetings. 	Attendance
14

The 	March 	1980
	clarification
	was
	sent 	to
	the
	employee
relations 	officers
	of 	the 	various
	departments
	of
	state
government
	with 	the
	instruction 	that
	copies
	of
	the
	document 	be
distributed 	to 	individual 	supervisors
	and
	managers.
at
	a
	meeting
	that
	discusses 	general
organizational
	business
	is
	a
	right 	that
	goes
with
	membership.	
A	
supervisory 	grievance
training
	seminar 	or
	a
	discussion
	or
	trainingsession
	related 	to 	benefits 	available 	tosupervisors
	is
	not disallowed
	or
discouraged.
	In
	some
	gatherings, 	matters
relating
	strictly
	to
	rank-and-filers,
	i.e.,
the
	elections
	or
	negotiations
	for
	a
Memorandum
	of
	Understanding,
	may	
be
incidentally
	touched
	upon.
	This
	is
	often
unavoidable
	and
	should 	not
	be
	considered
	a
violation
	of 	the
	Guide.
	However, 	where
	a
meeting
	is
	primarily
	designed
	to 	deal
	with
the 	rank-and-file 	representation 	elections
or
	with
	activities 	directly
	relating
	to
	a
Menorandum
	[sic] 	of
	Understanding 	for
rank-and-filers,
	supervisors 	are
	expected
not
	to 	attend.
Section
	B
of	
page
	1
	deals
	withcommunications.
	The 	main
	thrust	
here	
is
	on
the 	job, 	but 	in
	some
	ways,
	its
	impact
	may	
go
beyond
	the
	work
	location.
	A
supervisor
	who
authors
	a
	signed
	article
	for
	an 	employee
organization's 	publication
	is
	within
	his/her
rights
	when
	the
	article
	reasonably
	relatesto 	supervisory
	employer-employee
	relations
or 	even
	when	
the	
general 	business, 	goals	
and
accomplishments
	of
	the	
organization 	are
discussed.
	But 	an
	article 	relating 	to
	an
exclusively 	rank-and-file 	representationmatter
	is
	not 	permissible.
	For 	example,
	if
an
	article 	is
	a
	blatant
	attempt 	to
	win
	the
votes 	of 	rank-and-file	
employees 	for	
a
particular 	organization	
in	
a
	representation
election	
campaign, 	the 	supervisor
	is 	clearlynot 	exercising 	the 	right 	to	
engage 	in
supervisory 	employer-employee	
relations, 	but
15

The 	two
	organizationsl0	
which
	brought
	these 	unfair
practice
	charges
	have
	a 	number
	of
	members
	whom
	the
	State
	claims
to
	be
	supervisors.
	The
	Forestry
	Employees
	Association
	has
about
	3,000
	members
	of
	whom
	between
	one-third
	and
	40
	percent
have
	been
	designated
	as
	supervisory
	employees
	by
	the
	State.
About
	12.5
	percent 	of
	the
	membership
	of
	the
	Correctional
Officers
	Association
	is
	comprised
	of
	persons
	whom
	the
	State
claims
	to
	be
	supervisory.
	The
	charging
	parties
	are
	contesting
many
	of 	these 	supervisory 	designations
	in
	unit
	proceedings
	now
before 	the
	PERB.
Persons 	in 	high-ranking
	leadership 	positions
	of
	both
organizations 	are 	in
	job
	classifications
	which
	the
	State
	claims
as 	supervisory.
	The
	statewide 	president 	of 	the 	Forestry
Employees
	Association
	is
	Victor
	C. 	Weaver 	who
	is
	a
	fire
rather
	is 	interfering	
in	
a
	rank-and-file
matter.
We
	hope
	this
	lends
	some
	clarity
	to
	this
matter.
	we
	recognize
	that
	confusing 	or
borderline
	situations
	may
	arise.
	When
	theydo,
	consult
	your
	Employee
	Relations 	Officer.
She/he
	will 	contact
	this 	office
	if
necessary.	
The
	goal	
is 	to	
be
	reasonable,
cautious	
and	
consistent, 	especially
	during
this	
important	
and
	relatively
	short
pre-election 	period.
	Only 	your
	cooperation
will
	make
	this 	possible.
[Emphasis 	in	
original.]
lOThe
	parties 	stipulated 	that	
both 	the 	California
Department	
of 	Forestry	
Employees	
Association	
and
	the	
CaliforniaCorrectional 	Officers Association 	are	
employee	
organizations 	as
that 	term
	is	
defined 	in 	Government 	Code	
section 	3513(a).
16

captain,
	one
	of
	the
	classifications
	now
	being
	contested 	before
the
	PERB. 	The
	vice
	president,
	the
	treasurer
	and
	seven
	members
of
	the
	organization's
	eight-member 	board
	of
	directors
	are
	all
in
	positions
	which
	the
	State
	claims 	as
	supervisory.
	The
Correctional 	Officers
	Association
	also
	has
	persons
	designated
as 	supervisors
	among
	its
	top
	leadership
	although
	to
	a
	lesser
degree 	than 	the
	Forestry
	Employees
	Association.
	At
	the
	time
the
	January
	1980 	Guide
	was
	issued
	by
	the
	Office 	of
	Employee
Relations, 	three
	members
	of
	the
	CCOA's 	17-member
	state
governing
	board
	worked
	in 	job
	classifications
	designated 	as
supervisory
	by
	the
	State.
	In
	January, 	approximately
	18
	of
CCOA's
	130
	chapter
	officers
	held 	job
	classifications
	the
	State
considers 	to
	be
	supervisory.
Persons 	designated 	as 	supervisory
	have
	a
	pervasive
influence 	within 	the
	Forestry
	Employees
	Association.
	There
	are
no
	prohibitions
	in 	the
	association's 	rules 	against
	persons 	in
supervisory
	classifications
	running 	for
	office,
	holding
	office
or
	participating
	in
	discussions
	at
	meetings.
	The
	association
has
	a	
three-tiered 	organizational 	structure,
	the 	lowest
	level
being 	the
	local 	chapters.
	The
	chapter 	boundaries	
basically
follow
	county
	lines
	in	
California.	
The	
chapters 	are	
grouped
into 	eight 	regions.	
Both	
local
	chapters
	and
	regions	
have 	a
president, 	vice 	president, 	treasurer
	and 	a
	secretary.
	At 	the
highest 	level 	is
	the 	statewide	
board	
of 	directors.
	Persons 	in
supervisory 	classifications
	hold	
office 	at 	all 	structural
17

levels 	of 	the 	Forestry 	Employees 	Association.
Because 	of 	the 	nature 	and 	organization 	of 	work 	within 	the
Department 	of 	Forestry, 	the 	rank-and-file 	employees 	have 	a
close 	working 	and 	personal 	relationship 	with 	the 	employees 	the
State 	has 	designated 	as 	supervisory. 	Firefighters 	work 	long
shifts, 	sometimes 	48 	hours, 	sometimes 	72 	hours 	and 	sometimes 	84
hours. 	On 	these 	shifts, 	the 	supervisors 	and 	subordinates 	live
and 	work 	together 	for 	several 	days. 	On 	a 	long 	shift, 	the
working 	hours 	are 	8:00 	a.m. 	to 	5:00 	p.m., 	but 	the 	firefighters
must 	remain 	in 	the 	station 	during 	the 	nonworking 	periods 	so
that 	they 	can 	respond 	to 	any emergencies. 	Many 	fire 	stations
are 	isolated, 	some 	as 	remote 	as 	80 	miles 	from 	the 	nearest 	paved
road. 	The 	evening 	hours 	are 	spent 	in 	personal 	recreation 	and
conversation 	including 	discussion 	about 	job 	problems 	and
organizational 	activities.
Persons 	designated 	as 	supervisory 	have 	a 	significant 	role
in 	the 	operation of 	the 	Correctional 	Officers 	Association
albeit 	somewhat 	less 	pervasive 	than 	the 	role 	of 	supervisors 	in
the 	Forestry 	Employees 	Association. 	There 	are 	no 	prohibitions
in 	CCOA 	rules 	against 	persons 	in 	supervisory 	classifications
running 	for 	office, 	holding 	office 	or 	participating 	in
discussions 	at meetings. 	CCOA has 	members 	at 	institutions
operated 	by 	both 	the 	Department 	of 	Corrections 	and 	the
California 	Youth 	Authority. 	There 	is 	a 	local 	chapter 	at 	each
of 	the 	State's 	12 	prisons 	and 	at 	four 	institutions 	operated 	by
18

the
	Youth
	Authority.
	At
	each
	chapter 	there
	is
	a
	board
	of
directors,
	a
	president
	and
	vice
	president.
	Each
	chapter
president 	also
	serves
	on
	the
	statewide
	board
	of
	directors.
	At
several 	chapters,
	CCOA
	publishes 	newsletters 	to
	its
	members.
The
	organization
	also
	has
	some
	committees
	which
	operate
	on
	a
statewide
	basis.
Persons
	who
	have 	been
	designated
	as
	supervisors
	in
	the
	two
departments
	share
	a 	number
	of
	common
	concerns 	with
	their
rank-and-file 	subordinates. 	All
	employees
	of 	the
	Department
	of
Corrections
	have
	a 	common
	concern 	about
	safety 	conditions
	and
the
	CCOA
	has
	found
	it
	difficult
	to
	treat
	issues
	relating
	to
safety 	separately
	for 	supervisory
	and
	rank-and-file
	members.
Similarly,
	all
	employees
	of 	the
	Department
	of 	Forestry
	have
	a
common
	concern 	about
	protective
	equipment,
	particularly
	boots.
The
	Forestry
	Employees
	Association
	has
	made
	an
	extensive 	study
of
	footwear
	for 	wildland
	fire
	fighting	
in	
which
	persons
designated 	as
	supervisors
	have
	particpated 	fully.
	Association
President
	Weaver
	testified
	that
	the
	State pre-election
	conduct
Guide
	will 	inhibit 	future 	projects
	which
	involve
	supervisors
with 	nonsupervisors 	in 	meetings 	about 	something 	which	
could
become 	a
	negotiating 	proposal.
Meetings 	conducted 	by 	both 	employee 	OLycmi;Gc:1.tiuns 	tend	
to
be 	wide-open 	with
	no
	restrictions
	on	
the 	subject 	of
discussion.	
Both
	CCOA
	and
	CDFEA
	permit 	members
	to 	raise
subjects 	for 	general discussion	
from 	the
	floor.
	Although	
it
	is
19

possible
	to
	call
	a
	meeting
	to 	deal
	with
	a
	single 	subject,
witnesses 	for 	the
	two
	organizations 	credibly
	testified 	that
	it
is
	not
	possible
	at
	typical
	meetings
	to
	prohibit
	discussion
about
	potential
	bargaining
	demands.
The
	restrictions
	in
	the 	January
	1980 	Guide
	have
	affected
the
	manner
	in
	which
	the
	two
	organizations
	are
	conducting
	their
campaigns
	to
	become
	exclusive
	representatives.
	Supervisory
members
	and
	officers
	of
	both
	organizations
	are
	unable
	to
	answer
questions
	asked
	about 	the
	organizations
	by 	new
	employees.
	For
CDFEA
	the
	January
	1980 Guide
	means
	that
	its
	elected
	officers
who
	have 	been
	designated 	as 	supervisors
	cannot
	answer
organization-related
	questions
	from
	rank-and-file
	firefighters
during 	the
	nonworking
	hours 	they
	spend
	together 	in
	the
	fire
stations.
	For
	CCOA
	the
	January
	1980 Guide 	means
	that
	its
elected
	officers
	who
	have 	been
	designated 	as 	supervisors
	cannot
participate
	in
	after-work
	recruiting
	activities
	in 	pizza
parlors
	where
	prospective
	members
	are 	often
	taken.
Witnesses 	for 	both 	charging
	parties
	credibly
	testified 	that
nonsupervisory
	employees
	often
	ask
	supervisors
	who
	are
organizational
	officers
	questions
	about
	their 	respective
organizations.
	These
	questions 	are	
asked	
during 	non-duty 	hours
and 	away 	from	
the 	place 	of	
employment
	as 	well 	as
	at
	the 	place
of
	employment. 	Because
	of 	the 	Guide, 	the	
organizational
officers 	feel 	inhibited
	about 	answering 	these 	questions.
Supervisors	
who	
are 	organizational officers 	are 	inhibited 	also
20

from
	initiating
	discussions
	about
	their
	organizations
	or
campaigning
	on
	behalf 	of 	the 	organizations
	which
	they
	serve
	as
officers.
Supervisors
	have
	a
	particular 	credibility
	with
	newer
employees.
	For
	the
	most
	part,
	they 	tend
	to
	be
	older
	and
	have
more
	years 	of 	experience 	in
	working
	for
	their
	departments.
	The
Department
	of
	Corrections
	is
	a
	paramilitary
	department
	where
employees
	wear
	uniforms 	with
	clearly 	visible
	insignia
	of 	rank.
As
	is 	characteristic
	of
	a
	paramilitary
	group,
	there
	is
	a
considerable 	respect
	for
	authority
	within 	the
	Department
	of
Corrections
	and
	subordinate
	employees
	show
	respect 	for 	persons
in
	higher 	rank.
	The
	Department
	of 	Forestry 	also 	requires
	its
employees
	to
	wear
	uniforms 	during
	their
	working
	hours.
Since
	May
	of
	1978
	when
	the
	Department
	of 	Forestry 	published
its
	regulations
	about
	pre-election
	conduct,
	CDFEA's
	supervisory
members
	have
	restricted 	activities
	in 	support 	of
	their
organization.
	Some 	have
	decided 	not 	to 	place
	CDFEA
	bumper
stickers
	on
	their
	personal 	automobiles
	and
	have
	ceased
attending
	meetings
	of 	that 	organization.
	The
	restriction
	on
the
	activities
	of 	supervisory
	members	
of	
CDFEA
	has
	cut
	off
	the
flow	
of 	certain
	information 	to 	nonsupervisory	
employees
	of
	the
department. 	In
	a
	statement 	introduced 	as 	evidence
	at	
the
hearing, 	Pat 	Russell,
	a
	nonsupervisory	
employee 	in 	the
Department	
of 	Forestry,	
made
	the 	following 	observation:
21

It
	is
	important
	to
	me,
	in 	deciding
	which
employee
	organization
	I
	will
	vote 	for 	in 	the
SEERA
	elections,
	to
	know 	who
	the
	members
	of
the 	various
	employee
	organizations 	are,
	how
long
	they
	have 	been
	members,
	why
	they
	became
members, 	and
	the
	kind
	of 	expertise
	and
experience
	they
	possess
	which 	would
	be
useful 	to
	the 	organization
	in
	carrying 	out
its
	goals.
	Therefore
	it
	is
	important
	to
	me
to
	know
	the 	opinions 	of
	employees
	who
	are
	in
job
	classifications
	of
	Ranger
	I 	and
	above
concerning 	the
	advantages
	and
	disadvantages
of 	various
	employee
	organizations.
	I
believe
	that
	section
	2173.3
	will
	prevent
	me
from 	knowing
	this
	information.
Beginning
	with
	the 	issuance 	of 	the
	pre-election
	Guide
	in
January
	of
	1980, 	the
	Correctional 	Officers
	Association
	also
	has
been
	affected
	by
	the
	State
	restrictions
	on
	the
	activities
	of
supervisors.
	In
	the
	time
	between
	January
	and
	the 	hearing 	in
May,
	CCOA
	has
	received
	resignations
	from 	10
	of
	its
	chapter
officers
	who
	are 	in 	supervisory
	classifications.
	One
supervisory
	member
	resigned
	his 	position	
on	
CCOA's
	statewide
board
	of	
directors.
The	
difficulty
	which
	the
	Guide 	would
	present	
for	
CCOA
became
	apparent
	shortly after
	it
	was
	issued.
	In 	the 	February
1980
	issue 	of
	"The
	Granite,"
	a
	publication	
for	
the
	CCOA	
chapter
at
	Folsom
	Prison, 	correctional 	sergeant
	Don 	Novey	
wrote 	an
editorial 	criticizing	
the 	California 	State
	Employees
Association	
and
	the 	Teamsters	
and 	recommending 	a
	vote 	for
	CCOA
22

in 	the
	forthcoming
	representation 	elections. 11	
Novey,
	who
was
	editor
	at
	the
	time
	he
	wrote
	the
	editorial,
	holds 	the
	civil
service 	position
	of
	correctional
	sergeant,
	a
	position
considered 	supervisory
	by
	the
	Department
	of 	Corrections.
Following
	publication
	of 	the
	article,
	Mr. 	Novey 	was
	instructed
llThe 	disputed
	editorial
	reads 	as 	follows:
ELECTIONS
An
	election
	for
	your
	representation
	is
forthcoming.
	There
	are 	three 	organizations
seeking
	victory
	in
	the 	Collective
	Bargaining
process. 	Unfortunately,
	CSEA
	and
	theTeamsters
	display
	little
	or
	no
	leadership.
The
	following
	is 	indicative:
Remember 	when 	CSEA,
	during
	picketing 	action
(April
	1978)
	at
	Folsom
	pulled
	out
	and
	left
their 	local 	President,
	Rick
	Martin,
	high
	and
dry?
	Rick
	has,
	and
	will
	continue
	to
	be,involved 	in
	employee
	rights
	(Rick
	is
	now
serving
	on 	your
	local
	CCOA
	Board
	of
Directors).
Remember 	when
	CCOA
	had
	supposedly 	sold
	you
out
	on
	the
	pay
	issue? 	Well,
	would 	you
	now
prefer
	the
	16.81 	pay, 	or 	the
	now
	existing
2.3%
	less
	each
	month?
Why
	is
	it
	CCOA
	has 	published
	monthly
minutes, 	meetings 	each 	month, 	and
	outfront
representation?
CSEA	
supports 	Jerry
	Brown's
	11
idea
11
	of
	moving
COC/CYA
directly	
under	
his
	auspices	
(your
local
	CCOA
	considers
	this
	"idea"
	a
	slow
death 	for 	employees
	rights).
CSEA	
has 	averaged 	350-400 	members
	lost	
eachand
	every
	month	
recently
	--	
and
	they 	speak
of
	CCOA
	(January 	1980,
	a
	loss 	of 	358).
23

by
	his 	supervisors
	not
	to
	continue
	as
	editor
	of
	"The
	Granite."
Subsequently,
	CCOA
	challenged
	in 	superior 	court
	the
	directive
that
	Mr. 	Novey
	resign
	as
	editor.
	In
	settlement 	of
	that
	case,
the
	parties
	agreed
	that
	Mr. 	Novey
	could
	continue
	as
	editor 	of
the 	newsletter
	pending
	a
	resolution
	of 	the
	present 	unfair
practice
	charges.
The
	author
	of
	the
	January
	1980
	Guide,
	Marty
	Morgenstern,
testified
	that
	the
	restriction
	on
	activities
	by
	supervisors
	was
necessary 	to
	further
	the
	development
	of
	a 	management
	team,
	to
avoid
	management
	domination
	in 	the
	election,
	and
	to
	protect
	the
rights
	of
	employees.
	Mr.
	Morgenstern
	testified
	at
	length
	about
the
	necessity
	for 	the
	State
	to
	have
	a 	management
	team,
	i.e.,
	a
group
	of
	employees
	which 	"owes
	its 	first
	allegiance 	to
management."
	It
	is
	the
	responsibility
	of
	this
	management
	team,
he
	testified,
	to
	protect
	the
	interests 	of
	the 	public 	during 	the
negotiating 	process.
	He
	said
	that
	the
	rules
	were
	necessary
because
	some
	supervisors
	had 	shown 	a
	greater 	loyalty 	to 	labor
organizations
	than
	to
	management.
Representatives 	of	
two
	other
	employee
	organizations
testified 	that
	the
	prohibition 	against
	campaign
	activities	
by
Your
	CCOA
	representation 	prints
	its	
opinions
locally
	and	
does 	not 	depend 	on 	downtown	
for
leadership	
-- 	like
	CSEA.
	In 	conclusion,
would 	you 	want
	to	
be 	a
	car 	salesperson
(Teamsters),
	a
	secretary	
(CSEA	
[69,000	
oftheir
	membership]) 	or 	an	
Officer.
	Then 	I
suggest
	you
	give
	CCOA
	your	
firstconsideration.
24

supervisors
	does
	not
	hinder
	their
	activities.
	Indeed,
	both
	Mac
Proctor 	of
	the 	Service
	Employees
	International
	Union 	and
	Bill
McLeod
	of
	the
	California 	State
	Employees
	Association
	stated
that
	it
	was
	preferable 	to
	have
	the
	ban
	in
	effect.
	Mr. 	McLeod
testified
	that
	CSEA
	restructured
	itself
	in
	order
	to
	separate
super~isory
	members
	from
	its
	subunits
	which
	contain
nonsupervisors.
LEGAL
	ISSUES
1.
	Whether
	the
	State
	Department
	of 	Forestry,
	by
	the
promulgation
	in
	May
	1978
	of
	Regulation 	2173.3,
	has
	violated
Government
	Code
	section
	3519(a)
	and/or 	(b).
2.
	Whether
	the
	State,
	by
	the
	promulgation 	in 	January
	1980
of 	the
	"Guide
	to 	Pre-Election
	Conduct," 	has
	violated
	Government
Code
	section
	3519(a),
	(b)
	and/or
	(d).
CONCLUSIONS
	OF
	LAW
Section
	3519(a)
Under
	section
	3519(a),
	it
	is
	unlawful 	for 	the
	State 	to
impose
	or
	threaten
	reprisals
	or
	to
	discriminate,
	interfere
	with
or 	coerce
	employees 	because	
of	
their 	exercise 	of 	protected
rights.12	
The	
protected	
rights
	with	
which	
the 	State
	may
	not
interfere
	include	
the	
right
	to	
"form,
	join
	and	
participate"
	in
12Government Code	
section
	3519
	is 	set	
forth 	in 	footnoteno.
	1, 	supra.
25

the
	activities
	of
	employee
	organizations.13
Initially,
	it
	is
	important
	to
	observe
	that
	the
	alleged
violation
	under
	review 	here
	pertains
	only
	to
	the
	rights
	of
persons
	who
	are
	not
	supervisors.
	The
	issue 	of
	whether
	the
	PERB
can
	consider
	alleged
	violations
	of 	the
	rights
	of 	supervisors
already
	has 	been
	resolved.
	The
	PERB
	twice 	has
	held
	that
supervisors 	are 	not
	covered
	by
	the
	unfair
	practice
	provisions
of
	the
	SEERA,
	concluding
	that
	any
	vindication of 	supervisors'
rights
	must 	be
	through 	another
	forum.
	State
	of
	California,
Department
	of
	Health
	(1/10/79}
	PERB
	Decision
	No.
	86-S;
	State of
California,
	Department
	of
	Forestry
	(3/25/80)
	PERB
	Decision
	No.
119-S.
	Thus,
	the
	State
	misses 	the
	point
	when
	it
	bases
arguments
	on
	the
	assertion 	that
	"supervisory
	employee
activities
	are 	protected
	by
	SEERA
	only 	to 	the 	degree 	the
activities 	relate 	to
	supervisory 	labor
	relations."
	The
	issue
here	
is	
whether 	by	
placing
	restrictions
	on
	supervisors 	the
State
	has
	restrained,
	coerced 	or
	interfered
	with
	the 	rights	
of
nonsupervisors.
	Arguments 	by	
the 	respondent
	that 	supervisors
have 	only
	limited 	rights	
fail	
to 	deal 	with 	the
	encroachment
	on
the	
rights 	of 	nonsupervisors
	and
	are 	thus 	irrelevant 	to	
the
central 	contentions 	in	
this 	case.
The	
legal 	principles 	applicable 	in 	the 	present 	cases	
have
been
	set
	out 	rather	
comprehensively 	in 	a
	series 	of
	PERB
13The	
rights 	of 	state	
employees 	are 	listed
	in 	GovernmentCode	
section
	3515 	which
	is 	set 	forth 	in 	footnote 	no. 	5, 	supra.
26

decisions.
	In
	State of 	California,
	Department
	of
	Corrections
(5/5/80}
	PERB
	Decision
	No.
	127-S,
	the
	PERB
	adopted
	for
	cases
involving
	section
	3519(a)
	the
	rule 	of
	Carlsbad 	Unified
	School
District
	(1/30/79)
	PERB
	Decision
	No.
	89.
	Carlsbad,
	which
	arose
under
	the
	Educational
	Employment
	Relations
	Act
	(Government 	Code
section
	3540
	et
	seq.}, 	establishes
	a
	detailed
	test
	for
resolving 	cases 	involving
	alleged
	infringements
	upon
	protected
rights.14
14The
	Carlsbad
	test
	reads 	as 	follows:
1.
	A
single
	test
	shall
	be
	applicable 	in
	all
instances 	in
	which
	violations
	of 	section
3543.S(a}
	are 	alleged;
2.
	Where
	the
	charging
	party
	establishes
that
	the 	employer's 	conduct 	tends
	to
	or 	does
result
	in
	some 	harm
	to
	employee
	rights
granted
	under
	the
	EERA, 	a
	prima
	facie
	case
shall
	be
	deemed
	to
	exist;
3.
	Where
	the
	harm
	to 	the 	employees'
	rights
is
	slight,
	and
	the
	employer
	offers
justification
	based
	on
	operational
necessity,
	the
	competing
	interest
	of 	the
employer 	and	
the
	rights 	of
	the
	employees
will
	be
	balanced
	and
	the 	charge 	resolved
accordingly;
4.
	Where
	the
	harm
	is
	inherently 	destructive
of	
employee	
rights,	
the 	employer's 	conduct
will
	be 	excused 	only
	on
	proof
	that
	it
	was
occasioned
	by
	circumstances
	beyond
	the
employer's 	control
	and
	that
	no
	alternative
course 	of 	action
	was
	available.
5. 	Irrespective 	of 	the 	foregoing,
	a
	charge
will
	be
	sustained
	where
	it 	is
	shown
	that 	theemployer 	would
	not
	have 	engaged 	in 	thecomplained-of 	conduct 	but 	for
	an
	unlawful
motivation, 	purpose 	or 	intent.
27

Additional
	guidance
	is
	given
	in
	Department
	of
	Forestry,
supra,
	in
	which
	the
	Board
	reversed 	the
	dismissal 	of
	one
	of
	the
three
	cases 	consolidated
	in
	the
	present matter.
	In
	Department
of 	Forestry,
	the
	Board
	concluded
	that
	the
	1978 	Department
	of
Forestry 	regulations
	were
	in
	violation
	of 	the
	rights
	of
rank-and-file
	employees
	because 	they
	inhibit
	the
	flow
	of
information 	within 	the
	employee
	organization.
	The
	Board
	noted
that
	the
	statute
	contains
	no
	prohibition
	against 	rank-and-file
workers
	and
	supervisors
	belonging
	to 	the
	same
	employee
organizations
	and
	there
	is
	no
	prohibition 	against 	supervisory
employees
	holding
	office
	in 	those
	organizations.15
Assuming
	for 	the 	purpose
	of 	analysis 	that
	the
	allegations
in
	Case
	No.
	S-CE-4-S 	were
	true,
	the
	PERB
	concluded
	that
portions 	of
	the
	1978
	Department
	of 	Forestry 	policy
	constituted
a
	prima
	facie
	violation	
of 	the
	statute.
	The Board
	noted, 	for
example,
	that
	the
	first
	section	
of	
the 	policy16	
directs
15section
	3518.7
	places
	significant 	restrictions
	on
managerial
	and
	confidential
	employees
	but 	excludes
	any
reference 	to 	supervisory
	employees.
	It
	provides:
Managerial 	employees 	and
	confidential
employees	
shall
	be
	prohibited	
from
	holding
elective 	office	
in 	an 	employee	
organizationwhich	
also 	represents 	"state	
employees,"	
asdefined 	in 	subdivision 	(c)	
of 	Section	
3513.
16The
	policy 	is 	set
	out 	in 	footnote
	no. 	7, 	supra.
28

supervisors
	not
	to
	support
	one 	employee
	organization 	in
preference 	to
	another.
On
	its
	face
	this
	prov1s1on
	has
	the
	effect
	of
inhibiting
	the
	flow
	of
	information
	between
supervisory
	and
	rank
	and
	file
	members
	of
CDFEA.
	This
	interferes
	with
	rank
	and
	file
employees
	in
	the 	exercise
	of
	their
	SEERA
rights
	in
	violation
	of
	section
	3519(a).
This
	provision,
	the
	Board
	continued,
	also
	would
	"prevent
	a
supervisory
	employee
	who
	was
	an
	elected
	officer
	of
	CDFEA
	from
fully
	and
	effectively
	carrying 	out
	his
	or 	her
	duties
	and
responsibilities."
	The
	effect
	of
	such
	a
	restriction,
	the
	Board
wrote,
	would 	be 	a
	violation
	of
	section
	3519(b).
Finally,
	the
	PERB
	in
	Long 	Beach
	Unified
	School
	District
(5/28/80)
	PERB
	Decision
	No. 	130
	adopted
	federal 	precedent
	which
invalidates 	certain 	restrictions
	on
	employee
	solicitation
during
	nonworking
	time.
	Under
	these 	cases
	restrictions
	on
employee
	solicitation
	during
	nonworking
	time
	and
	restrictions
on
	distribution
	during
	nonworking 	time 	and	
in	
nonworking
	areas
are
	violative
	of 	the
	statute
	unless 	the
	employer
	justifies
	the
rules
	by 	a 	showing
	of 	special
	circumstances
	which 	make
	the 	rule
necessary 	to maintain production 	or
	discipline.
In
	their 	respective 	briefs
	the 	charging
	parties
	and
	the
respondent 	take	
absolutist 	positions.	
The	
charging	
parties
contend
	that	
the	
1978 	and 	1980
	regulations 	are
	totally 	invalid.
29

The
	respondent 	contends
	that
	the
	1978 and 	1980
	regulations 	are
totally
	valid.
	Without
	addressing 	every
	point
	made
	in
	the
lengthy
	briefs
	submitted
	by
	the
	parties,
	it
	is
	concluded
	that
neither
	of
	their 	absolutist
	positions
	can
	prevail
	under
	PERB
precedent.
	Both
	sides
	in
	this
	case
	have
	important
	interests
which
	their
	opposing
	absolutist
	positions
	make 	no
	effort
	to
protect.
In
	these
	actions,
	the
	charging
	parties
	dispute
	four
provisions 	of
	the
	1978
	Department
	of 	Forestry 	rules
	and
	nine
provisions 	of 	the
	1980
	rules
	issued
	by
	the
	Governor's
	Office 	of
Employee
	Relations.
	It
	is
	not
	necessary 	to 	consider
	each
	of
the
	13
	disputed
	rules 	separately
	because
	the
	principles
	which
apply 	produce
	a
	consistent
	result
	throughout.
	It
	is
	concluded
that
	the
	rules
	are 	lawful
	insofar 	as 	they
	pertain 	to
	the
activities
	of 	supervisors
	at
	the
	work
	place.
	The
	rules 	are
unlawful
	insofar
	as 	they
	pertain 	to 	the
	activities 	of
supervisors
	away 	from
	the
	work
	place 	during
	nonworking
periods.
	The
	reasons 	for
	this
	conclusion
	can
	be
	illustrated
	by
consideration of
	the
	first
	section of
	the 	1978 	Department	
of
Forestry 	policy.
	That	
policy 	provides 	as	
follows:
A.
	Do
	not 	support 	one	
organization 	in
preference 	to	
another 	or 	take
	any
	advocacy
role 	in 	the	
election.
As	
applied 	to
	working 	time 	in	
work	
locations,
	the
legitimacy of 	this 	rule
	can 	hardly 	be
	disputed.	
When	
they 	are
working, 	rank-and-file 	employees 	have 	no 	need
	of
	any	
information
30

from
	supervisors
	about
	supervisory preferences
	among
	employee
organizations.
	When
	they
	are
	at
	work
	and
	in
	work
	locations,
supervisors 	are
	representatives
	of
	the
	state
	employer
	and
	the
State
	has
	a
	substantial
	interest
	in
	keeping
	them
	from
	taking
advocacy
	roles
	in
	an
	election
	for
	exclusive
	representative.
Indeed,
	the
	State
	would 	be
	at
	substantial
	peril
	of
	committing
an
	unfair
	practice
	if
	it
	permitted
	on-duty
	supervisors 	to
engage
	in
	advocacy
	for
	a
	particular
	employee
	organization.
	See
Antelope
	Valley
	Community
	College
	District
	(7/18/79)
	PERB
Decision
	No.
	97.
	Insofar
	as 	the 	rule 	applies 	to
	working
	time
and
	work
	locations,
	it
	is
	valid.
However,
	application
	of 	the
	principles
	in 	Carlsbad 	Unified
School
	District,
	supra,
	produce
	a
	different 	result
	with 	regard
to
	enforcement
	of
	the
	rule
	away
	from
	the
	work
	location
	during
nonworking
	periods.
	As
	part	
of	
their 	right
	to
	participate
	in
the 	actions 	of
	employee
	organizations, 	State 	rank-and-file
workers
	have
	the
	right
	to
	communications
	from
	other
organization
	members 	and 	from
	the 	persons 	they
	have
	elected 	to
run 	those
	organizations. 	Rank-and-file 	workers, 	as
	part 	of
their 	right 	to 	participate	
in	
the
	activities	
of	
employee
organizations,
	have
	the
	right 	to	
have	
their 	elected 	officers
take
	an 	advocacy	
role	
on
	behalf 	of 	the 	organizations 	they	
have
been
	elected 	to 	lead. 	In 	the 	case 	of 	the 	Forestry
	Employees
Association, 	the 	evidence
	is 	clear 	that
	a 	number	
of 	persons
whom
	the	
State 	claims 	as 	supervisory	
have 	been	
elected 	to
31

leadership
	roles.
	A
State 	prohibition
	against
	advocacy
	of
CDFEA
	by
	these 	persons
	while
	on
	their
	own
	time
	and 	away
	from
State
	premises
	is
	inherently 	destructive 	of
	employee
	rights.
To
	say
	that
	Victor
	Weaver,
	whom
	forestry
	employees 	have
lawfully
	elected
	as 	the
	president
	of
	CDFEA, 	may
	not
	support
	or
advocate
	CDFEA
while
	on
	his
	own
	time
	is
	devastating 	to 	the
rights
	of
	the
	employees
	who
	have
	elected
	him
	as
	president
	of
their
	organization.
	If
	a
	president
	may
	not 	advocate
	the
organization
	which	
he	
leads,
	his
	value 	as
	president
	is
	minimal
at
	best.
Because
	the
	State
	has
	not 	demonstrated
	that
	the
	prohibition
against 	supervisory
	advocacy
	of
	a
	particular
	employee
organization
	during
	nonworking
	time
	and
	in
	nonworking
	locations
was 	due
	to 	circumstances
	beyond
	its
	control,
	it
	is
	concluded
that
	rule
	as
	so
	applied
	is 	invalid.
There
	is
	a
	third
	environment
	in
	which
	the
	rule 	also
may
	be
applied.
	It
	is
	in 	those
	situations
	where 	a
	supervisor
	is
	not
engaged
	in
	work
	but
	is
	present
	at
	a 	work
	location.
	In
	the
Department
	of 	Forestry 	supervisors
	and
	rank-and-file
	workers
spend
	many	
hours	
together
	at	
the	
work
	location
	when
	they 	have
no
	assigned 	tasks.	
The most 	obvious
	example	
is	
the 	time
	after
5:00 	p.m. 	when
	the
	forestry
	crews 	remain
	at
	the
	fire 	station
for 	the 	evening 	and
	night
	so
	that
	they
	may
	quickly 	respond
	to
an 	emergency. 	During
	these 	hours, 	supervisors
	and
	subordinates
are 	free 	to
	watch
	television 	or 	engage 	in 	whatever
	recreational
32

pursuits
	they
	desire.
Under
	the 	guidelines
	set
	forth
	in
	Long
	Beach
	Unified
	School
District,
	supra,
	the
	ordinary 	rule
	for 	these 	periods
	would 	be
that
	employees
	could
	engage
	in
	union
	solicitation.
	Thus, 	one
might
	expect
	that
	if
	supervisors
	could
	lawfully
	engage
	in
	union
activities
	during
	nonworking
	hours
	when 	away 	from
	the
	work
place,
	they
	also
	could
	engage
	in
	such
	activities
	during
nonworking
	periods
	while 	they
	were
	at
	the
	work
	place.
However,
	in
	this 	situation
	the
	effect
	of
	the
	rules
	on
	the
rights
	of
	rank-and-file
	employees
	is
	minimal.
	While
	there
would 	be
	some
	interference
	with 	the
	right 	of 	rank-and-file
employees
	to
	have 	communication
	with
	supervisory
	members
	of
their
	organization,
	the
	interference 	is
	not
	substantial.
Supervisors
	who
	are
	employee
	organization
	officers
	would
	still
be
	able 	to
	communicate
	with
	their
	members
	in
	activities
	away
from 	work.
	By
	contrast,
	the 	State
	has
	a
	substantial
	interest
in 	preventing 	supervisors
	from
	advocating 	support 	for
	a
particular
	employee
	organization 	in 	the
	work
	place.
	Even
	if
the 	supervisors
	and
	the
	employees
	with
	whom
	they
	are
communicating
	are
	both
	on 	a
	break, 	the 	supervisory-subordinate
relationship	
remains. 	In 	the	
work	
place,	
a
	supervisor 	remains
a	
supervisor 	at
	all	
times	
and
	as 	such 	wears 	the 	cloke 	of 	the
employer's 	authority.
	The	
State	
has 	a
	significant 	interest
	in
preventing 	persons 	vested 	with	
its	
authority	
from	
advocating	
a
particular
	employee
	organization.
33

For
	these 	reasons,
	it
	is
	concluded
	that
	the
	State
	may
prohibit
	supervisory
	advocacy
	of
	a
	particular
	employee
organization
	during
	all
	times
	at
	the
	work
	place, 	including
periods 	in
	which
	the 	supervisors
	are 	not
	working.
Although·no
effort
	will
	be
	made
	to 	discuss
	each
	of 	the
remaining
	12
	rules
	under
	dispute,
	a 	few 	comments
	are 	necessary
about	
particular
	rules.
	The
	prohibition 	against	
employee
organization
	bumper
	stickers,
	emblems,
	ashtrays
	and
	insignia
	on
State
	property
	would
	be 	open
	to
	serious 	attack
	if
	applied
	to
rank-and-file
	workers. 	In
	most
	situations,
	the
	wearing
	of
union
	buttons
	and
	other 	insignia
	while
	at
	work
	is
	a
	protected
activity.
	See
	generally,
	Republic
	Aviation
	Corp. 	v.
	NLRB
(1945) 	324
	U.S.
	793
	[16
	LRRM
	620],
	and
	De
	Vilbiss
	Co.
	(1953)
102
	NLRB
	1317 	[31
	LRRM
	1374].
	However,
	this 	right
	is
	limited
and
	will
	be
	balanced
	in
	a
	particular 	situation
	against 	the
right
	of 	the
	employer
	to
	manage
	the 	business 	in
	an
	orderly
manner. 	Thus,
	the
	wearing
	of 	insignia
	can 	be 	banned
	in 	special
circumstances.
	See
	generally,
	Standard
	Fittings
	Co. 	(1961) 	133
NLRB
	928 	[48
	LRRM
	1808];
	Floridan 	Hotel 	of
	Tampa,
	Inc.
	(1962}
137
	NLRB
	1484
	[50
	LRRM
	1433], 	enf.
	as
	mod.	
(5th	
Cir.,	
1963)	
318
F.2d
	545 	[53
	LRRM
	2420];
	May
	Dept.
	Stores
	Co. 	(1969) 	174
	NLRB
109
	(70
	LRRM
	1307].
In
	the 	present 	case, 	there 	are 	special 	circumstances.
Here, 	the 	persons	
who	
are	
banned 	from	
wearing 	union
	insignia
are 	supervisors 	at 	the
	work	
place.
	As
	supervisors, 	they	
are
34

cloaked 	with 	the
	authority 	of
	their
	employer, 	the
	State,
	which
is
	required
	by
	statute
	to
	be
	impartial
	between 	employee
organizations.
	If
	supervisors
	could
	display 	insignia of
support 	for
	a
	particular
	organization
	on
	State
	property,
	the
State
	would
	not
	be
	maintaining
	its
	required
	impartiality.
Thus, 	once
	again,
	a
	balancing
	of 	the
	competing
	interests
requires
	a
	determination
	that
	insofar
	as 	the
	rule
	pertains 	to
the
	work
	place,
	it
	is
	lawful.
	Because
	sections
	A-1
	and 	A-2
	of
the
	1980 	Guide 	on
	their
	face
	pertain
	only
	to
	the
	work
	place,
they
	are
	lawful.
With
	respect 	to
	the
	prohibition 	against
	supervisory
attendance
	at
	meetings 	"scheduled
	to
	recruit
	rank-and-file
employees
	or
	solicit
	contract
	demands,"
	the 	State
	asserts 	that
the
	rule
	is
	consistent
	with 	the 	requirements
	of
	SEERA.
	Section
3522.217	
provides
	that
	supervisory
	employees
	shall
	not
17Government 	Code
	section
	3522.2
	provides:
(a)
	Supervisory
	employees
	shall
	not
participate
	in 	the 	handling
	of 	grievances
	on
behalf 	of
	nonsupervisory 	employees.
Nonsupervisory 	employees
	shall
	not
participate
	in 	the 	handling
	of 	grievances
	on
behalf 	of
	supervisory 	employees.
(b)
	Supervisory
	employees	
shall	
not
participate	
in 	meet 	and	
confer 	sessions
	on
behalf 	of 	nonsupervisory 	employees.
Nonsupervisory 	employees
	shall 	not
participate	
in 	meet 	and	
confer 	sessions
	on
behalf 	of 	supervisory 	employees.
35

participate
	in 	the 	handling
	of
	grievances
	nor
	in
	meet 	and
confer
	sessions
	which
	pertain 	to
	nonsupervisory
	employees.
Insofar 	as 	supervisory
	employees
	attend
	meetings
	away
	from
	the
work
	place
	during
	nonworking
	hours, 	the
	State
	may
	not
	restrict
their 	participation.
	Such
	restriction,
	as
	is
	clear
	in
Department
	of
	Forestry, 	supra,
	denies 	the
	right
	of
nonsupervisory
	employees
	to 	the
	free
	flow
	of
	communication
	from
the 	supervisory
	employees
	who
	belong
	to 	the
	same
	organization.
Moreover,
	the
	prohibition 	against
	participation
	by
	supervisory
employees
	in 	meetings 	scheduled
	to
	solicit
	contract
	demands
goes
	beyond
	the
	requirements
	of 	section 	3522.2.18	
That
section
	does
	not
	ban
	supervisory
	employees
	from
	all
participation
	in
	discussions
	or
	employee
	meetings 	about
negotiating 	proposals.
	It
	merely
	states 	that
	supervisory
employees
	may
	not
	participate
	in
	meet
	and
	confer
	sessions
regarding 	the 	proposals
	of
	nonsupervisory
	employees.
One
	other
	argument
	offered
	by
	the
	State
	must 	be	
addressed.
Woven
	throughout 	the
	brief
	submitted 	by	
the 	Office 	of
	Employee
(c)
	The	
prohibition
	in
	subdivisions	
(a) 	and 	(b)	
shall
not	
be
	construed 	to
	apply
	to 	the 	paid	
staff
	of
	anemployee
	organization.
(d)	
Supervisory 	employees
	shall 	not 	vote
	on	
questions
of 	ratification
	or
	rejection 	of	
memorandums
	ofunderstanding 	reached
	on	
behalf 	of
	nonsupervisory
employees.
18see 	footnote 	no. 	17, 	supra.
36

Relations
	is
	the
	contention
	that
	the
	State
	must 	be
	able
	to
develop
	a
	management
	team which
	will
	give
	its 	first
	loyalty
	to
the
	State
	employer.
	Supervisors,
	the
	State
	asserts,
	must 	be
	an
integral 	part
	of
	this
	management
	team.
	Thus,
	the
	restrictions
upon
	the
	employee
	organization
	activity
	of 	supervisors
	are
	a
legitimate
	response
	to
	the
	need
	for
	a 	management
	team.
There
	is
	abundant
	support 	for 	the 	basic
	principle 	that
	a
public
	employer 	must
	be
	able
	to
	develop
	a 	management
	team.
Some
	commentators 	have
	suggested
	that
	supervisors 	are
	an
integral 	part
	of
	that
	management
	team. 	See
	generally,
	"The
Practical
	Differences
	Between
	Public
	and
	Private
	Sector
Collective
	Bargaining,"
	by 	Lee 	Shaw
	and
	Theodore
	Clark 	(1972)
19
	UCLA
	Law
	Review
	867.
	The
	problem
	with
	this
	argument
	is
	that
however
	valid 	the
	principle
	may
	be,
	the
	statute
	does
	not 	lend
itself
	to 	the 	use 	the
	State
	would 	make
	of
	it.
	Whereas
managerial
	and
	confidential
	employees
	are
	clearly
	removed 	from
participation
	in 	the
	activities
	of
	employee
	organizations,19
supervisory
	employees
	are 	given
	rights
	under
	the
	statute.
	The
statutory
	scheme
	envisions
	an
	interrelationship
	between
supervisory	
employees	
and
	nonsupervisory
	employees
	in 	the	
same
organization.
	To	
achieve	
its	
goal	
of
	a 	management 	team,	
the
State 	ignores 	the	
structure 	of
	the	
statute.
l9see 	footnote	
no.	
15, 	supra.
37

For
	all
	of
	these 	reasons,
	it
	is
	concluded
	that
	the
contested
	policies
	are 	lawful
	insofar
	as 	they
	pertain 	to
activities 	at
	the
	work
	place 	but 	in
	violation
	of 	section
3519(a)
	insofar
	as
	they
	pertain 	to
	activities
	by
	supervisors
during
	nonworking
	time
	away 	from
	the
	work
	place.
Section
	3519(b)
Section
	3519(b)
	makes
	it
	unlawful
	for 	the
	State 	to
	"deny
	to
employee
	organizations
	rights
	guaranteed
	to
	them" 	by 	SEERA.
Among
	the
	rights
	afforded
	to
	employee
	organizations
	is
	"the
right
	to
	represent
	their
	members
	in
	their
	employment
	relations
with
	the
	state.
112
0	
In 	Department
	of 	Forestry, 	supra, 	the
PERB
	concluded
	that
	the
	1978
	policy
	was
	in
	violation 	of 	section
3519(b)
	because
	it
	restricted
	the
	ability
	of
	an 	employee
organization
	officer
	who
	was 	a
	supervisor 	to
	carry
	out
	his
	or
her
	responsibilities.
	The
	policy 	thus
	had
	the
	effect
	of
hindering 	the
	right 	of
	an
	employee
	organizaton 	to 	represent
	its
members.
The
	contested 	portions 	of 	the 	January
	1980 Guide 	have
	the
same
	effect
	on 	employee
	organizations 	as 	the
	1978
	Department
	of
Forestry 	policy. 	Insofar
	as 	the
	policy	
restricts
	the
activities
	of 	supervisors	
during 	nonworking 	hours
	away 	from
	the
work
	place
	it	
very	
significantly 	hinders 	the	
ability 	of
	the	
two
20The	
rights 	of	
employee	
organizations 	are 	contained 	inGovernment 	Code	
section
	3515.5 	which
	is 	set	
forth 	in	
footnoteno. 	6, 	supra.
38

charging
	parties
	to
	represent
	their
	members.
	Both
organizations
	have
	officers
	who
	are
	in 	job
	classifications
designated
	by
	the
	State
	as
	supervisory.
	By
	restricting
	the
off-duty
	activities
	of 	supervisors,
	the
	State
	has
	restricted
the
	ability
	of
	the
	organizations
	in
	which
	the
	supervisors
	hold
office
	to
	function.
It
	is
	concluded,
	therefore,
	that
	both
	the
	1978
	and
	1980
policies
	are
	in
	violation
	of
	section
	3519(b)
	because
	they
pertain
	to
	activities
	of 	supervisors
	during
	non-working
	time
away 	from
	the
	work
	place.
Section
	3519(d)
Section
	3519(d)
	makes
	it
	unlawful 	for
	the
	State 	to
"dominate 	or
	interfere
	with 	the 	formation
	or
	administration of
any 	employee	
organization.
11	
The	
charging
	parties
	contend
	that
the 	January
	1980 	Guide
	has
	the
	effect
	of 	interfering
	with 	the
manner 	in 	which	
they 	administer
	their
	respective 	organizations.
Although
	the 	policy
	does 	not
	on
	its
	face
	pertain
	to 	the
administration 	of
	any 	employee
	organization,
	it
	clearly
	has
that
	effect.
	In
	its
	brief,
	the
	State
	argues
	that
	the 	problems
which	
the
	Guide
	presents	
for	
the 	charging
	parties
	are 	caused	
by
the	
internal 	structure of	
the	
two
	organizations.	
The	
State
asserts 	that
	if
	the
	parties 	to 	collective	
bargaining	
wish	
it
	to
work
	"they
	will
	ensure
	that	
the 	appropriate 	internal 	structural
accommodations	
are	
made 	by 	employee	
organizations."
39

Plainly,
	CDFEA
	and
	CCOA
	cannot
	function
	effectively,
	if
	at
all,
	under
	the 	provisions
	in
	the
	1980
	Guide
	without
	altering
their
	organizational
	structures.
	If
	the
	provisions 	in 	the
Guide
	are 	lawful,
	then
	it
	is
	of
	no
	legal 	significance
	that
	they
might
	compel
	some
	internal 	restructuring 	of
	the
	two
organizations.
	See
	generally,
	Department
	of
	Corrections,
supra.
	If,
	as 	occurs
	here, 	the 	provisions 	are
	not
	lawful,
	then
their 	effect
	on
	the 	administration
	of 	the
	two
	employee
organizations
	is
	prohibited.
It
	is
	concluded,
	therefore,
	that
	the
	1980
	Guide
	is
	in
violation
	of 	section
	3519(d)
	because
	it
	interferes
	with
	the
administration 	of
	an
	employee
	organization.
THE 	REMEDY
The
	charging
	parties
	in 	these 	cases
	seek
	an
	order 	enjoining
implementation	
of	
the
	regulations,
	the 	posting of 	notices
	and
the
	award
	of
	costs
	and
	reasonable
	attorneys 	fees.
Under 	Government 	Code
	section
	3514.S{c), 	the
	PERB
	is
	given:
•.•
	the
	power
	to 	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.
It
	is
	appropriate 	that
	the
	State
	be
	directed 	to 	cease
	and
desist
	from
	its
	unfair 	practices.
	It
	is 	also 	appropriate 	that
the 	State
	be
	required 	to post
	a
	notice 	incorporating 	the 	terms
of 	the 	order.
	The
	notice 	should 	be
	subscribed
	by 	an 	authorized
40

agent
	of
	the
	State 	indicating
	that
	it
	will
	comply
	with
	the
terms
	thereof.
	The
	notice
	shall
	not
	be
	reduced
	in
	size.
Posting
	will
	provide
	employees
	with
	notice
	that
	the
	State
	has
acted
	in
	an
	unlawful
	manner 	and
	is
	being
	required
	to
	cease	
and
desist
	from
	this 	activity.
	It
	effectuates
	the 	purposes
	of
	the
EERA
	that
	employees
	be
	informed
	of 	the
	resolution
	of 	the
controversy
	and
	announces
	the
	State's
	readiness 	to
	comply
	with
the
	ordered
	remedy. 	See
	Placerville
	Union
	School
	District
(9/18/78)
	PERB
	Decision
	No.
	69.
	In
	Pandol
	and
	Sons
	v.
	ALRB
	and
UFW
	(1979) 	98
	Cal.App.3d
	580,
	587,
	the
	California
	District
Court
	of
	Appeal 	approved
	a
	posting 	requirement.
	The
	U.S.
Supreme
	Court 	approved
	a
	similar
	posting
	requirement
	in
	NLRB
	v.
Express
	Publishing
	Co.
	(1941} 	312
	U.S.
	426 	[8
	LRRM
	415].
Finally,
	it
	is
	concluded
	that
	the
	award
	of
	legal 	fees
	is
not
	appropriate 	in
	this
	case
	and
	they
	are 	denied. 	In
	Tiidee
Products 	Inc.
	(1972) 	194
	NLRB
	1234
	[79
	LRRM
	1175] 	and 	196
	NLRB
158 	[79
	LRRM
	1692], 	the
	NLRB
	held
	that 	legal
	fees 	could
	be
awarded 	where
	the
	conduct
	of 	the 	respondent 	involved
	"clear
	and
flagrant" 	violations 	of
	the 	law.
	It
	cannot
	be
	said 	that
	the
two
	directives
	under
	attack	
in	
these 	cases
	constitute 	"clear
a~	
flagrant" 	violations 	of
	the 	law. 	There 	has 	been	
relatively
little
	litigation
	so 	far 	about
	SEERA.
	Reasonable 	persons 	can
differ	
about	
interpretations 	of
	the	
statute.	
The
	legal
theories 	of 	the 	State	
in
	this 	case 	are 	not	
unfounded. 	There
	is
no
	precedent 	for 	the 	award
	of 	legal 	fees 	in 	these 	circumstances.
41

PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law,
and
	the
	entire
	record
	of
	this
	case,
	and
	pursuant 	to
	Government
Code
	secton
	3514.S(c)
	of
	the
	State
	Employer
	Employee
	Relations
Act,
	it
	hereby
	is
	ordered
	that
	the
	State of
	California,
	the
Department
	of
	Forestry
	and
	the
	Department
	of
	Corrections,
	and
their
	respective
	agents
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
Enforcing
	subsections
	A,
	B,
	D
and
	E
of 	Section
	2173.3
	of
the
	State
	Department
	of 	Forestry
	Manual,
	issued 	in
	May
	of
	1978,
and
	Sections
	A-3, 	B-1, 	B-2, B-3, 	B-4,
	B-7 	and 	B-8
	of 	the
January
	1980
	"Guide
	to
	Pre-Election
	Conduct
	for
	State
Managerial
	and
	Supervisory
	Employees"
	insofar	
as 	they
	pertain
to
	activities
	of 	supervisory
	employees
	during
	non-working
	hours
away 	from
	the
	work
	place,
	and
	thereby
	violate
	Government
	Code
section
	3519(a),
	(b) 	and
	(d).
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
1.
	Within 	seven
	(7)
	calendar
	days
	of
	this
	decision
becoming
	final,
	post
	a
	copy
	of 	the 	notice 	attached
	as
	Appendix
A	
at	
all	
work
	locations
	where
	copies
	were
	distributed	
by	
the
State 	of 	Section
	2173.3
	of
	the 	Department	
of 	Forestry
	Manual
(issued 	in	
May
	of
	1978) 	and
	the
	"Guide
	to 	Pre-Election
	Conduct
for
	State
	Managerial	
and	
Supervisory	
Employees,
11
	(
issued 	in
January
	of 	1980).
	Such
	posting 	shall
	be	
maintained 	for 	a
period 	of 	thirty
	(30) 	working 	days. 	Reasonable 	steps 	shall
	be
42

taken
	to 	insure
	that
	the
	notices
	are
	not
	altered,
	reduced
	in
size,
	defaced
	or
	covered
	with
	any
	other
	material.
2.
	Notify 	the
	Sacramento 	Regional
	Director
	of 	the
Public
	Employment
	Relations
	Board,
	in
	writing,
	at
	the
	end
	of
the
	posting 	period, 	of
	what
	steps
	the
	State
	has
	taken
	to
	comply
with
	this
	order.
Pursuant 	to
	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	November
	17,
	1980
	unless
	a
	party
	files
	a
	timely
statement
	of
	exceptions.
	See
	California
	Administrative
	Code,
title
	8, 	part
	III,
	section
	32300.
	Such
	statement 	of 	exceptions
and
	supporting
	brief
	must 	be
	actually
	received
	by
	the
	executive
assistant
	to 	the
	Board
	itself
	at
	the 	headquarters
	office 	in
Sacramento
	before
	the
	close 	of
	business
	(5:00
	p.m.)
	on
November
	17,
	1980
	in 	order 	to
	be
	timely
	filed.
	See
	California
Administrative
	Code,
	title
	8, 	part
	III,
	section
	32135.
	Any
statement 	of 	exceptions
	and
	supporting
	brief
	must 	be
	served
concurrently
	with
	its
	filing
	upon
	each
	party 	to
	this
proceeding. 	Proof
	of 	service 	shall
	be
	filed
	with 	the
	PERB
itself.
	See
	California 	Administrative
	Code,
	title
	8,
	sections
32300 	and
	32305, 	as
	amended.
Dated: 	October 	28, 	1980
43
Ronald 	E. 	Blubaugh
Hearing 	Officer

Appendix 	A
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 	Nos. 	S-CE-4-S,
S-CE-19-S, 	and 	S-CE-18-S, 	California 	Department 	of 	Forestry
Employees Association 	v. 	State 	of 	California 	and 	California
Correctional 	Officers 	Association 	v. 	State of 	California, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	State of 	California 	violated 	the 	State 	Employer
Employee 	Relations 	Act 	(Government 	Code 	section 	3519(a), 	(b)
and 	(d} ) •
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	notice 	and 	we 	will 	abide 	by 	the 	following:
A. 	CEASE AND 	DESIST 	FROM:
Enforcing 	subsections 	A, 	B, 	D and 	E of 	Section 	2173.3
of 	the 	State 	Department 	of 	Forestry Manual, 	issued 	in 	May 	of
1978, 	and 	Sections A-3, 	B-1, 	B-2, B-3, B-4, 	B-7 	and 	B-8 	of 	the
January 	1980 	"Guide 	to 	Pre-Election 	Conduct 	for 	State
Managerial 	and 	Supervisory 	Employees" 	insofar 	as 	they 	pertain
to 	activities 	of 	supervisory 	employees 	during 	non-working 	hours
away 	from 	the 	work 	place, 	and 	thereby 	violate 	Government 	Code
section 	3519(a), 	(b) 	and 	(d).
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
1. 	Within 	seven 	(7) 	calendar 	days 	of 	this 	decision
becoming 	final, 	post 	a 	copy 	of 	this 	notice 	at 	all 	work
locations 	where 	copies 	were 	distributed 	by 	the 	State 	of 	Section
2173.3 	of 	the 	Department 	of 	Forestry Manual 	(issued 	in 	May 	of
1978) 	and 	the 	"Guide 	to 	Pre-Election 	Conduct 	for 	State
Managerial 	and 	Supervisory 	Employees" 	(issued 	in 	January 	of
1980). 	Such 	posting 	shall 	be 	maintained 	for 	a 	period 	of 	thirty
(30) 	working 	days. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure

that
	the
	notices 	are
	not
	altered,
	reduced
	in
	size,
	defaced 	orcovered 	with
	any
	other
	material.
2.
	Notify 	the
	Sacramento
	Regional
	Director
	of
	the
Public
	Employment
	Relations
	Board,
	in
	writing,
	at
	the
	end
	of
the 	posting 	period,
	of
	what
	steps
	the
	State
	has
	taken
	to
	comply
with
	this
	order.
DATED: 	STATE
	OF
	CALIFORNIA
By
THIS
	IS
	AN
	OFFICIAL 	NOTICE.
	IT
	MUST
	REMAIN
	POSTED 	FOR
	30
WORKING
	DAYS 	FROM
	THE 	DATE
	OF
	POSTING
	AND
	MUST 	NOT
	BE
	DEFACED,
ALTERED
	OR
	COVERED
	BY
	ANY
MATERIAL.