California School Employees Association-Chapter 381 (Parisot) (PERB 0280E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KENNETH L. 	PARISOT, JR.,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its 	SHASTA COLLEGE
CHAPTER #381,
Respondent.
Case No. 	S-CO-62
PERB Decision No. 	280
January 31, 	1983
Appearances; 	Edward L. 	Mann, Attorney 	(Tillman, 	Beasley &
Mann) 	for Kenneth L. 	Parisot, Jr.; 	Madalyn J. Frazzini,
Attorney 	for 	California 	School 	Employees 	Association 	and 	its
Shasta College Chapter 	#381.
Before Gluck, Chairperson; 	Tovar and Morgenstern, Members.
DECISION
GLUCK, 	Chairperson: 	Kenneth L. 	Parisot excepts 	to a
hearing 	officer's 	refusal 	to 	issue 	a 	complaint 	upon his 	charge
that 	the California 	School 	Employees Association 	and 	its 	Shasta
College Chapter 	#381 	(CSEA) 	violated 	subsection 3543.6(b) 	of
the 	Educational Employment Relations Act 	(EERA) l by
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540
et 	seq. 	All 	references 	will 	be 	to 	the Government Code 	unless
otherwise 	indicated.
Subsection 3543.6(b) 	provides:
It 	shall 	be 	unlawful 	for 	an employee
organization 	to:
(b) 	impose or 	threaten 	to 	impose reprisals
)
)
)
)
)
)
)
)
)
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)
_______________ )

suspending 	him 	from membership 	in 	the 	organization 	for 	four
years 	and 	barring 	him 	from 	holding 	office 	for 	twelve 	years
because 	he 	worked 	to 	decertify 	the 	organization.
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.
The 	charge 	alleges 	the 	following 	facts.2 On April 	28,
1980, 	five members of Chapter 	381 	wrote 	to CSEA asking 	that
Parisot, 	a member 	and 	a past 	chapter 	president, 	be expelled,
claiming 	he 	had:
1. 	circulated 	a decertification 	petition, 	an 	act 	they
considered 	disloyal;
2. 	used 	his 	past 	presidency 	in 	the 	decertification 	effort;
3. 	circulated 	false 	reports 	among 	membership 	concerning
Association 	activities;
4. 	represented members 	in a manner 	which violated CSEA's
agreement with 	the District; 	and
5. 	failed 	to give members 	important 	information about
chapter 	services, 	weakening 	the 	chapter.
The 	letter 	provided 	no 	details 	of 	these 	alleged 	acts.
On May 	20, 	CSEA notified 	Parisot 	that 	charges 	had 	been
brought 	against him, 	that 	it 	had 	reasonable 	cause 	to believe
they were 	true, 	that Parisot 	had 	10 days 	to 	respond 	and 	that,
if 	he did 	not 	respond or 	if his 	response 	was 	inadequate, 	CSEA
2Parisot 	filed 	his 	unfair 	practice 	charge 	on February 	20,
1981. 	His pleading 	consisted of 	the official 	charge 	form and
copies 	of 	his 	correspondence 	with CSEA.
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would select a t r i a l committee 	and hold a hearing. 	The charges
were not 	included in the notice 	but were sent 	to Parisot a week
later 	and he was given an additional 10 days to respond.
On July 29, CSEA wrote Parisot that a hearing had been
scheduled for August 16, 	1980 	at CSEA's San Jose 	headquarters,
that he would have the right to be represented by counsel, and
to cross-examine witnesses. 	Parisot, 	who lived in Redding, 	did
not 	appear 	at 	the 	hearing. 	Subsequently, CSEA notified him
that he 	had 	been found guilty of 	all 	charges except 	the
allegation that 	he 	had represented members 	in violation of 	the
contract, 	and that he was 	therefore suspended from membership
for 	four 	years 	and 	barred 	from 	holding office 	for 	twelve
years. 	Each charge brought a one-year suspension and a
three-year 	prohibition from holding office. 	He was 	further
informed 	that 	he would 	have to pay service fees 	to the local
chapter 	and to CSEA.
On November 6, 1980, Parisot's attorney wrote CSEA claiming
that:
. 	. 	. the 	[suspension] 	charges, 	the
procedures through which the charges were
pursued and the penalties 	imposed 	. 	. 	.
would seem to constitute the imposition of
reprisals on Mr. 	Parisot in the exercise of
his 	statutorily 	protected 	right 	to form,
join, 	and participate in an employee
organization of his own choosing and,
further, would seem to present a threat of
reprisals 	to any other 	employee who seeks 	to
exercise 	such 	rights.
The letter 	also stated 	that 	the provisions of CSEA's
constitution and bylaws 	under 	which Parisot was disciplined and
3

the 	procedures 	CSEA 	followed 	were 	unreasonable 	under 	EERA
subsection 3543.l(a) 	since:
1. 	The 	constitution 	and 	by-laws 	do 	not
state 	that 	using 	the 	office 	of past
president 	to 	attempt decertification 	is
a 	chargeable 	offense;
2. 	The 	hearing 	was 	held 	in San Jose
although Parisot 	and 	the 	witnesses 	live
in Shasta County;
3. 	Parisot 	was 	not 	informed prior 	to
hearing 	of 	the 	evidence 	against 	him;
4. 	The August 	22 	notice of 	suspension did
not 	indicate 	what 	evidence 	was produced
at 	the 	hearing.
In 	response 	to 	the 	hearing 	officer's 	demand 	that 	he
particularize his 	charge, 	Parisot 	restated most of 	the
allegations 	made 	in 	the November 	6, 	1982 	letter. 	He did add
that, 	contrary 	to Article 	II, 	section VI, 	613.5 of 	the CSEA
constitution and bylaws, 	the 	charges did not: 	(1) 	"specify the
offenses 	and 	the 	sections of 	the 	association 	and/or 	chapter
constitution 	and 	bylaws 	alleged 	to 	have 	been 	violated 	under
section 	.4 above," or 	(2) 	"outline, 	specifically, 	the dates,
times, 	places, 	and witnesses 	involved 	in each offense
charged." 	He 	did 	not provide 	a 	copy of 	the 	constitution 	and
bylaws 	with 	his 	charges.
The 	hearing 	officer 	dismissed 	the 	charges 	relying 	on
Los Angeles 	Community College 	District 	(Kimmett) 	(10/19/79)
PERB Decision No. 	106 	and 	two 	cases 	decided 	under 	the National
Labor Relations Act 	(NLRA), Tawas Tube Products, 	Inc. 	(1965)
4

151 NLRB 	46 	[58 	LRRM 1330] 	and Price v. 	NLRB 	(9th Cir. 	1967)
373 	F.2d 	443 	[64 	LRRM 	2495].
He found 	that 	under 	Kimmett, 	PERB 	will 	not 	interfere 	in the
internal 	affairs 	of 	employee 	organizations 	unless 	those 	affairs
have 	a substantial 	impact 	on 	the 	members' 	relationship with
their 	employer. 	He 	concluded 	that Parisot 	had 	failed 	to
demonstrate 	that 	CSEA's 	internal 	disciplinary 	procedures 	had
"any 	impact, 	let 	alone substantial 	impact, 	on his 	relationship
with 	his 	employer." 	Specifically, 	he 	found 	that 	his 	suspension
restricted 	his 	rights 	within 	the 	union, 	but 	had 	no 	effect on
his 	job or 	employment 	status.
Moreover, 	he concluded 	that, 	even 	if 	Kimmett were not
controlling 	and 	did 	not mandate 	dismissal 	of 	the 	charge,
federal 	precedent 	would 	since 	the National Labor 	Relations
Board 	(NLRB) 	and federal 	courts 	have 	held 	respectively 	that 	it
is 	not 	an 	unfair 	labor 	practice 	for 	a union 	to expel 	or 	suspend
members 	who 	are 	involved 	in 	decertification 	attempts. 	Tawas
Tube Products, 	Inc., 	supra, 	151 NLRB 46 and Price v. 	NLRB,
supra, 	373 	F.2d 	443. 	He found 	that 	these federal 	cases 	are
controlling 	since 	the NLRA 	and EERA 	are 	similar; 	that 	the 	last
sentence 	of 	subsection 	3543.1(a)3 read 	together 	with
3Subsection 3543.1(a) 	provides:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in their
employment 	relations 	with 	public 	school
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subsection 3543.6(b), 	is 	the equivalent of 	the proviso language
in 	section 	8(b)(l)(A) 	of 	the 	federal 	act.4
employers, 	except that once 	an employee
organization 	is 	recognized or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to Section 	3544.1
or 	3544.7, 	respectively, 	only that 	employee
organization may represent that 	unit 	in 	their
employment 	relations 	with 	the 	public 	school
employer. 	Employee 	organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join 	and may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from membership.
In his exceptions 	to 	the 	dismissal, 	Parisot 	contends 	that
his 	charge 	does 	state 	a prima facie 	violation 	and 	that 	the PERB
and federal 	cases 	relied 	upon 	by 	the 	hearing 	officer 	are 	not
controlling. 	He argues 	that 	the 	charge 	alleges 	facts 	that, 	if
substantiated, 	support 	a 	finding 	that Parisot 	was 	engaged 	in
protected 	activity 	guaranteed 	by 	section 	35435 when 	he
4Section 	8(b)(l)(A) 	of 	the NLRA 	states:
It 	shall 	be 	an 	unfair 	labor 	practice for
labor 	organization or 	its 	agents 	-
(1) 	to restrain or 	coerce 	(a) 	employees in
the 	exercise 	of 	rights 	guaranteed 	in section
7: 	provided, 	that 	this 	paragraph should 	not
impair 	the 	right 	of 	a labor 	organization 	to
prescribe 	its 	own 	rules 	with 	respect 	to 	the
acquisition or 	retention 	of 	membership
therein . 	. 	.
5Section 	3543 	states 	in 	relevant 	part:
Public school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities of 	employee organizations 	of
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attempted to decertify CSEA; 	that CSEA took punitive discipline
against 	him 	in reprisal 	for 	his conduct; 	that 	the 	discipline
was discriminatory and interfered with, 	restrained, 	and coerced
him in the exercise of his rights. 	He contends that the Board
should apply 	the Carlsbad 	test 	to subsection 3543.6(b) 	charges
and either 	balance 	the harm caused to employee rights 	against
the organization's legitimate 	business 	justification or
determine whether 	the organization had unlawful motive and
would not 	have taken the action it did 	but for 	such a motive.
their own choosing for 	the purpose of
representation on all matters of
employer-employee relations . 	. 	. 	.
He maintains that the cases decided under 	the NLRA are not
analogous 	to the facts 	here 	because subsection 3543.6(b) 	does
not have proviso language protecting the employee
organization's 	right "to prescribe 	its 	own rules 	with respect
to the 	acquisition 	or 	retention of membership therein."
Moreover, 	he argues that the NLRB and courts have limited the
organization's right 	to fashion such 	rules, 	holding 	that 	it may
only be done for defensive or protective purposes. 	He
concludes 	that CSEA suspended him solely for punitive reasons
and 	not for 	self-protection.
Finally, he contends 	that 	the 	holding in Kimmett, 	supra,
was limited to charges alleging a violation of 	the duty of fair
representation and not 	to charges 	of 	reprisal.
7

In 	i t s 	response 	to P a r i s o t ' s 	exceptions, 	CSEA 	supports 	the
hearing 	o f f i c e r ' s 	interpretation 	and 	application 	of 	Kimmett,
supra, 	and 	federal 	precedent.
DISCUSSION
In 	deciding 	whether 	the 	charge 	states 	a 	prima 	facie 	case
requiring 	a 	hearing 	on 	the merits, 	we 	deem 	the 	"essential 	facts
alleged 	in 	the 	charge 	are 	t r u e . " 	San Juan Unified School
D i s t r i c t 	(3/10/77) 	EERB 	Decision No. 	12, 	at 	p. 	4.6
The 	facts 	presented 	in 	P a r i s o t ' s 	charge 	raise 	the 	following
issues: 	(1) 	did CSEA violate 	subsection 	3543.6(b) 	by
suspending 	Parisot 	from membership 	and 	holding 	office 	because
of 	his 	decertification 	a c t i v i t y , 	and 	(2) 	was 	CSEA 	obligated 	to
have 	reasonable 	provisions 	covering 	i t s 	disciplinary 	actions
and, 	if 	so, 	did 	it 	act 	accordingly?
Under 	section 	3543, 	which 	guarantees 	employees 	the 	right
"to 	form, 	join 	and 	p a r t i c i p a t e 	in 	the 	a c t i v i t i e s 	of 	employee
organizations 	of 	their 	own 	choosing," 	Parisot 	had 	the 	right 	to
engage 	in 	decertification 	a c t i v i t i e s . 	It 	is 	undeniable 	that
CSEA's 	decision 	to 	bring 	charges 	against Parisot 	was 	motivated
by 	his 	a c t i v i t y 	and 	tended 	to 	interfere 	with 	his 	and 	other
employees' 	right 	to 	engage 	in 	such 	a c t i v i t y . 	See Price 	v.
NLRB, 	supra, 	373 	F.2d 	443. 	However, 	subsection 	3543.1(a)
grants 	to 	employee 	organizations 	the 	right 	to 	"establish
6prior 	to January 1, 	1978, 	PERB 	was 	known 	as 	the
Educational 	Employment 	Relations 	Board.
8

reasonable 	provisions for 	the 	dismissal 	of 	individuals from
membership." 	Certainly, 	a provision for 	suspension from
membership, 	a lesser form of discipline, must be deemed to be
sanctioned by the Act.
A provision which permits suspension of a member who is
engaged 	in 	decertification 	activities 	against 	the 	organization
is 	reasonable. 	The 	right 	to represent employees 	as 	an
exclusive 	representative 	is 	an 	essential objective 	and purpose
of 	a labor 	organization. 	See Chaffey Joint Union High School
District 	(3/26/82) PERB Decision No. 	202. 	An act by its own
members 	which 	is directed against 	this purpose threatens 	the
very existence of 	the organization 	and 	is 	of 	sufficient
seriousness 	to justify a self-protective 	response. 	Tawas Tube
Products, supra, 151 NLRB 46; Price v. NLRB, supra, 373 F.2d
443. 	See NLRB v. Allis-Chalmers (1967) 388 US 175 	[65 LRRM
2449]; 	see also Davis v. 	International Alliance of Theatrical
Stage Employees 	(2d Dist. 1943) 	60 Cal. App. 2d 713.
The 	record does not indicate whether CSEA, 	prior 	to i t s
action, 	had adopted a specific disciplinary policy covering 	a
member's 	participation in a 	decertification 	effort. 	The
omission 	is 	not 	fatal 	to CSEA's defense as 	to this aspect of
the charge. 	In Smetherham v. Laundry Workers' 	Union 	(1941) 	44
Cal.App.2d 131 	[111 P.2d. 	948], 	the court held that a labor
organization has authority to expel a member who had
(1) 	violated some provision of 	the 	association's constitution
99

and 	bylaws 	which 	creates 	the 	offense 	charged 	and 	prescribes
expulsion as 	a penalty, 	or 	(2) 	committed offenses 	against a
member's 	duty 	to 	the 	organization. 	A member 	has 	an 	inherent
obligation 	to his organization 	to 	be 	loyal, 	and for 	him to
engage in conduct, 	such 	as a decertification drive, which
attempts 	to 	thwart 	the 	fundamental 	objectives 	of 	that
organization 	is 	a 	breach of 	his 	duty. 	See Smith v. 	Kern County
Medical Association 	(1942) 	14 C.2d 	263 	[120 	P.2d 	874].
Our 	finding 	that 	it 	is 	permissible for 	an 	employee
organization 	to 	suspend 	a member 	for 	his 	decertification
activities, 	however, 	does 	not dispose of 	this 	case. 	CSEA found
Parisot 	guilty of 	other 	charges 	and 	based 	its 	disciplinary
action on 	all 	findings. 	It 	is 	beyond 	dispute 	that 	two of 	these
charges 	— 	that 	he 	circulated 	false 	reports 	among 	membership
concerning Association 	activities 	and 	failed 	to 	give members
important 	information 	about 	chapter 	services 	which 	weakened 	the
chapter 	— 	are 	unreasonably 	vague 	and 	ambiguous. 	Moreover,
Parisot's charge 	presents 	facts 	which 	allege 	that 	all 	of 	the
accusations 	by 	CSEA 	did 	not specify 	the 	sections 	of 	the
constitution which 	had 	been 	violated or 	the 	dates, 	times,
places, 	and 	witnesses 	involved 	in 	each of 	the 	charged offenses,
and 	that 	he 	was 	never 	notified of 	the 	evidence 	produced 	against
him 	at 	the 	hearing. 	He further 	argues 	that 	holding 	the 	hearing
in San Jose was 	unreasonable. 	CSEA does 	not 	deny 	these
allegations 	and 	acknowledges 	that 	the 	suspension 	was 	based 	on
10

all 	four 	accusations 	with 	Parisot 	being 	suspended 	for 	one 	year
from membership 	and 	three 	years 	from 	holding 	office 	for 	each
charge.
In 	view 	of 	our 	finding 	that 	Parisot 	has 	raised 	questions
about 	the 	reasonableness of 	the procedures 	followed 	by CSEA 	in
dealing 	with 	all 	of 	the 	charges, 	and 	that 	several of 	the
charges 	were 	unreasonably 	vague 	and 	ambiguous, 	but yet 	the
basis 	for 	discipline, 	we 	conclude 	that 	the 	hearing 	officer
erred 	in dismissing 	the 	charge.
Finally, 	the 	hearing 	officer 	erred 	in his application of
Kimmett, 	supra. 	There 	we 	stated 	that we 	will 	not 	interfere 	in
matters 	concerning 	the 	relationship of members 	to 	their 	union
unless 	they 	have 	had 	a 	substantial 	impact 	on 	the relationship of
the 	employees 	to 	their 	employer. 	This 	does 	not 	require 	a
demonstrable 	impact on 	the employees 	wages, 	hours or 	terms 	and
conditions 	of 	employment. 	The 	relationship of 	employees 	to
their 	employer 	can 	be manifested 	through 	and 	conditioned 	by 	the
selection or 	rejection of 	a bargaining 	representative. 	In
Kimmett, 	we did 	not 	intend 	to 	abdicate 	our 	jurisdictional power
to 	determine 	whether 	an 	employee 	organization 	has 	exceeded 	its
authority 	under 	subsection 	3543.1(a) 	to dismiss 	or 	otherwise
discipline 	its members.
We 	find 	that 	the 	filed 	charge 	satisfied 	the 	requirements
of 	a prima 	facie 	case 	and 	remand 	to 	the General Counsel 	to
issue 	a complaint 	and 	to 	proceed 	to 	a hearing 	in 	accordance
with 	the 	foregoing 	discussion.
11

ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment 	Relations Board ORDERS 	that 	the
General Counsel 	issue 	a 	complaint 	based 	on 	the 	charges 	filed 	by
Kenneth L. 	Parisot 	against 	the 	California 	School Employees
Association 	and 	its 	Shasta 	College 	Chapter 	#381 	and 	proceed
with 	a 	hearing 	on 	the 	issues 	presented 	in 	accordance 	herewith.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	Decision.
12
'