State of California (Department of Transportation) (PERB 0304S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES COUNCIL,
LOCAL 1268, LIUNA, AFL/CIO,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF TRANSPORTATION),
Respondent.
Case 	No. 	S-CE-43-S
PERB Decision No. 	304-S
April 26, 	1983
Appearances: 	Thomas E. 	Rankin, 	Attorney 	for 	State Employees
Trades Council, 	Local 1268, LIUNA, AFL-CIO; 	Richard G.
Rypinski, 	Robert F. 	Carlson 	and William M. 	McMillan, 	Attorneys
for 	the 	State 	of California 	(Department 	of Transportation).
Before Tovar, 	Jaeger and Burt, Members.
DECISION
BURT, 	Member: 	This case 	is 	before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	to 	the 	proposed
decision of 	an 	administrative 	law 	judge 	(ALJ) 	filed 	by 	the
State of California, 	Department of Transportation 	(Caltrans).
The ALJ, 	ruling 	on charges 	filed 	by 	the 	State Employees 	Trades
Council, 	Local 1268, LIUNA, AFL-CIO 	(SETC), 	found that Caltrans
had violated 	subsections 	3519(a) 	and 	(b) 	of 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA) 	by 	removing 	an
allegedly 	defamatory 	SETC 	leaflet 	from 	state-provided 	bulletin
boards 	customarily 	used 	for 	posting 	of 	employee 	organization
materials. 	The ALJ dismissed 	SETC's 	subsection 	3519(d)
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allegation, 	and 	SETC did 	not 	except 	to 	that 	dismissal.1
Caltrans 	excepted on 	three 	grounds. 	First, 	it excepts 	to
the ALJ's denial of 	its motion 	to dismiss 	the 	charge, 	due 	to
SETC's 	alleged 	lack 	of 	standing 	to pursue 	it 	and 	the 	alleged
lack 	of a 	useful purpose 	in Board 	review 	of 	the 	charge. 	That
motion 	to dismiss 	was 	based 	upon 	the 	fact 	that, 	after 	the
filing 	of 	the 	charge, 	SETC was 	replaced 	as 	the 	exclusive
representative 	of 	Caltrans 	employees.
Secondly, 	Caltrans 	excepts 	to 	the 	rationale 	for 	the ALJ's
holding 	that 	it violated 	SEERA by 	removing 	the 	leaflet 	in
question.
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless otherwise noted. 	Subsections 	3519(a), 	(b) 	and 	(d)
provide 	as 	follows:
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) 	Dominate 	or 	interfere with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial or
other 	support 	to 	it, 	or 	in 	any way encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

Thirdly, 	Caltrans 	excepts 	to 	the ALJ's proposed 	remedy on
the 	grounds 	that 	it 	requires 	an overly-extensive 	notice 	posting
We 	have 	reviewed 	the 	record 	as 	a whole, 	in 	light of
Caltrans' 	exceptions. 	We 	find 	that 	the ALJ's proposed
decision, 	attached 	hereto 	and 	incorporated 	by 	reference 	herein,
fully and 	fairly addresses 	each 	of Caltrans 1 contentions, 	and
that 	it 	reaches 	the 	correct 	result. 	We 	thus 	adopt 	the ALJ's
decision 	and 	rationale 	as 	that 	of 	the 	Board 	itself.2
As 	to 	the 	remedy proposed 	by 	the ALJ, 	we 	find 	that 	a
statewide posting 	order 	is 	appropriate. 	In 	its 	exceptions
Caltrans 	alleges 	that 	the 	evidence 	shows 	that 	the 	leaflet 	was
only posted 	at 	certain of 	its 	locations, 	and 	therefore 	that 	a
statewide 	posting 	of 	PERB's 	Order 	would 	result 	in 	confusion 	on
the 	part 	of 	employees 	who 	had 	not 	been 	cognizant 	of 	the
underlying 	controversy. 	Our 	review of 	the 	record 	indicates
2We 	do 	not 	rely 	for 	our 	conclusion 	on 	that 	portion 	of 	the
ALJ's 	decision 	which 	indicates 	that 	the 	fact 	that 	Caltrans 	left
the 	leaflet 	posted 	for 	two 	weeks 	" . . . 	belies 	a conclusion
that 	there 	was 	posed 	to 	the 	employer 	a 	substantial 	threat 	to
the 	efficient 	operation 	of 	its 	plant 	by 	the 	continued 	display
of 	the 	poster." 	The 	employer 	need 	not 	demonstrate 	that 	its
operation 	was 	actually disrupted 	to 	show 	sufficient 	business
justification 	for 	removal 	of 	patently 	offensive 	or 	scurrilous
material. 	Rather, 	its burden 	is 	to demonstrate 	that 	the
material 	is 	of 	the 	sort 	that 	has 	a 	necessary 	tendency 	to 	cause
disruption and 	that 	it 	is 	false, 	defamatory, 	and otherwise
unworthy 	of 	EERA protection.
For 	the 	other 	reasons 	set 	forth 	by 	the ALJ, 	we conclude
that 	the 	leaflet 	in 	question did 	not 	forfeit EERA protection
and 	that 	Caltrans 	was 	not 	privileged 	to 	remove 	it.
3
•
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that 	it 	does 	not 	establish 	that 	the 	leaflet 	was 	not posted
statewide. 	Because 	no 	such 	showing 	was made, 	we 	affirm 	the
ALJ's 	Order 	providing 	for 	statewide 	posting 	of 	the 	Board's
Order.
For 	the 	reasons 	set 	forth 	above, 	we 	affirm 	the ALJ's
finding 	that Caltrans violated 	subsections 	3519(a) 	and 	(b) 	by
removing 	an 	SETC 	leaflet 	from 	state-provided 	bulletin 	boards 	on
which 	employee 	organization 	notices 	are 	customarily 	posted.
The 	finding 	that 	this 	same 	conduct 	did 	not 	violate 	subsection
3519 (d) 	was 	not excepted to. 	Thus, 	the ALJ's dismissal of 	that
allegation 	is 	final and 	binding 	upon 	the 	parties 	herein.
ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions 	of 	law 	and
the 	entire 	record 	in 	this 	case, 	it 	is 	hereby ORDERED 	that 	the
State 	of California, 	Department 	of Transportation 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Interfering 	with 	employees 	in 	their 	exercise 	of
rights 	guaranteed 	by 	the 	State 	Employer-Employee 	Relations 	Act,
by 	removing 	employee 	organization 	literature 	from
employer-provided 	bulletin 	boards 	on 	which 	such 	literature 	is
customarily 	posted;
2. 	Denying 	to 	the 	State 	Employees 	Trades 	Council,
Local 	1268, 	LIUNA, AFL-CIO the 	right 	to communicate with 	its
members 	and 	constituents 	as 	guaranteed 	by 	the 	State
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Employer-Employee 	Relations 	Act 	by 	the 	conduct 	described 	in
paragraph 	1;
3. 	Unreasonably 	restricting 	by 	promulgation 	of
written 	administrative or 	other 	policies, 	the 	right of 	the
State Employees Trades Council, 	Local 1268, LIUNA, AFL-CIO to
use 	employer-provided 	bulletin 	boards 	to 	communicate 	with 	its
members 	and 	constituents.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	SEERA:
1. 	Within 	thirty 	(30) 	workdays after 	the 	date 	of
service 	of 	this Decision, 	post 	at all work 	locations 	where
notices 	to 	employees 	customarily are 	posted, 	copies of 	the
Notice 	attached 	as 	an 	appendix 	hereto 	signed 	by 	an 	authorized
agent 	of 	the 	employer. 	Such posting 	shall be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	ensure 	that 	the 	Notices 	are 	not 	altered,
reduced 	in 	size, 	defaced 	or 	covered 	with 	any other 	material.
2. 	Within 	forty-five 	(45) 	consecutive workdays 	from
the 	service 	of 	this 	Decision, 	notify 	the 	Sacramento 	regional
director 	of 	the 	Public 	Employment 	Relations 	Board 	in writing 	of
what 	steps 	the 	employer 	has 	taken 	to comply with 	the 	terms 	of
this 	Order. 	Continue 	to 	report 	in writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports 	to
the 	regional director 	shall 	be 	served 	concurrently on 	the
charging 	party 	herein.
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C. 	The 	charge 	that 	the 	State 	of 	California, 	Department of
Transportation violated 	subsection 	3519 (d) 	of 	the 	State
Employer-Employee 	Relations 	Act 	is 	hereby 	DISMISSED.
Members 	Jaeger 	and Tovar 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair Practice Case No. 	S-CE-43-S, 	in
which all parties 	had 	the 	right 	to participate, 	it has 	been
found 	that 	the 	State 	of California, 	Department 	of
Transportation 	violated 	the 	State 	Employer-Employee 	Relations
Act 	by 	interfering 	with 	employees 	in 	the 	exercise 	of 	rights
guaranteed 	by 	the 	SEERA. 	It 	was 	further 	found 	that 	the 	State
of California, 	Department 	of Transportation denied 	to SETC 	the
right 	to 	communicate 	with 	its members 	in violation of 	the
SEERA. 	As 	a 	result of 	this 	conduct, 	we 	have 	been ordered 	to
post 	this 	Notice 	and 	we 	will:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Interfering 	with 	employees 	in 	their 	exercise 	of
rights 	guaranteed 	by 	the 	State 	Employer-Employee 	Relations 	Act,
by 	removing 	employee 	organization 	literature 	from
employer-provided 	bulletin 	boards 	on 	which 	such 	literature 	is
customarily 	posted;
2. 	Denying 	to 	the 	State 	Employees Trades 	Council,
Local 	1268, 	LIUNA, 	AFL-CIO the 	right 	to communicate with 	its
members 	and 	constituents 	as 	guaranteed 	by 	the 	State
Employer-Employee 	Relations 	Act 	by 	the 	conduct 	described 	in
paragraph 	1;
3. 	Unreasonably 	restricting, 	by promulgation 	of
written 	administrative or 	other 	policies, 	the 	right of 	the
State Employees Trades Council, 	Local 1268, LIUNA, 	AFL-CIO to
use 	employer-provided 	bulletin 	boards 	to 	communicate 	with 	its
members 	and 	constituents.
Dated: 	STATE 	OF CALIFORNIA
DEPARTMENT 	OF 	TRANSPORTATION
By
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST REMAINED POSTED 	FOR AT
LEAST 	THIRTY 	(30) 	WORKDAYS FROM 	THE DATE 	OF 	POSTING AND MUST
NOT 	BE DEFACED, 	ALTERED OR COVERED 	BY ANY MATERIAL OR REDUCED
IN SIZE.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES 	COUNCIL,
LOCAL 1268, LIUNA, AFL/CIO,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF TRANSPORTATION),
Respondent.
Unfair 	Practice
Case No. 	S-CE-43-S
PROPOSED 	DECISION
2/22/82
Appearances: 	Thomas E. 	Rankin, Attorney, 	for State Employees
Trades Council, Local 1268, 	LIUNA, AFL-CIO; William M. McMillan,
Attorney, 	for State of California 	(Department of Transportation).
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	reviews 	the 	propriety of 	the 	employer's 	removal
from state bulletin 	boards of a union leaflet, 	the 	theme of
which 	lamented 	the 	suicide 	of 	an 	employee 	union member 	who 	had
been 	fired 	from 	state 	service.
On February 5, 	1981, 	the State Employees Trades Council,
Local 	1268, 	LIUNA, AFL-CIO 	(hereafter SETC) 	filed an unfair
practice charge 	against 	the 	State 	of California, 	Department of
Transportation 	(hereafter 	Caltrans) 	alleging 	violations 	of
Government Code section 3519 (a), 	(b) 	and 	(d) 	in that Caltrans
had 	removed 	a 	SETC 	leaflet 	from 	state 	provided 	union 	bulletin
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boards. 	Caltrans 	filed 	a 	timely answer 	on February 23, 	1981.
A 	settlement 	conference 	held on February 	27, 	1981, 	was 	without
success 	and 	the 	formal 	hearing was 	held on June 	18, 	1981. 	Post
hearing 	briefs 	were 	filed 	and 	the matter 	submitted 	on
August 10, 	1981. 	On July 27, 	1981, Caltrans 	filed a Motion to
Dismiss 	the 	charge 	on 	the 	grounds 	that SETC 	was 	not 	then 	the
exclusive 	representative 	of 	the 	employees 	within 	the 	unit. 	The
Motion 	to Dismiss 	was 	deferred 	for 	disposition 	within 	this
proposed 	Decision.
FINDINGS 	OF 	FACT
The State 	(Caltrans) 	is 	an employer 	and SETC 	is 	an employee
organization 	within 	the 	meaning 	of 	the 	State Employer-Employee
Relations Act 	(hereafter 	SEERA).1
Richard Delsigne 	was 	an 	employee 	at 	the Caltrans
Placerville maintenance 	yard. 	His 	immediate 	supervisor 	was
Don Frohreich who was 	also 	the 	superintendent 	of 	the
Placerville yard. 	Delsigne 	was 	a shop steward 	for SETC. 	SETC
began 	representing 	craft 	and maintenance 	employees 	in 	the
Placerville yard 	sometime 	in 1975 	or 	1976.
Charles Reiter, 	general manager 	for SETC, 	testified 	that
there 	has 	been 	a long 	history of 	conflict 	and 	of 	grievances 	for
employees 	in 	the Placerville 	yard. 	Reiter 	has 	been working
1Government 	Code Section 	3512 	et 	seq. 	All 	references
herein 	are 	to the Government Code, 	unless 	otherwise 	stated.
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with 	the 	employees 	in 	the Placerville 	yard 	since SETC 	began
representing employees 	there. 	On one 	occasion, 	he 	represented
Delsigne 	at 	the 	first 	stage of 	a 	grievance 	relating 	to 	a one
day 	punitive 	action 	for 	failure 	to 	wear 	a 	safety hat.
On July 10, 	1980, 	Delsigne was 	fired from his 	employment
with Caltrans. 	SETC, 	representing Delsigne, 	appealed 	the
dismissal 	to 	the State Personnel Board.
Sometime 	in the 	second week of December, 	1980, 	SETC posted
on 	state 	provided 	union 	bulletin 	boards 	throughout 	the 	state 	a
leaflet 	authored 	by Reiter.2 	The 	leaflet 	is 	set 	forth 	in
full:
PLACERVILLE--On Friday, December 	5, 	1980,
Dick Delsigne 	put 	a 	gun 	to 	his 	head 	in 	a 	run
down 	bar 	on 	the 	wrong 	side 	of Sacramento 	and
pulled 	the 	trigger. 	He 	was 	dead 	before 	the
ambulance 	ever 	got 	him 	to 	the 	hospital.
The 	last 	words 	on Delsigne's lips 	were
"those 	guys 	aren't 	going 	to 	push me 	around
anymore. . . "
His 	reference 	"those 	guys" 	was 	the
management 	of 	the Caltrans maintenance 	yard
here 	where 	Dick Delsigne 	worked 	until
July 	10 	when 	they 	fired 	him.
"They" 	essentially reduces 	to Don Frohrich,
the 	territorial 	superintendent 	who 	has 	run
things 	here, 	after 	his 	own fashion, 	for many
years.
To 	say 	that 	Frohrich 	and 	Delsigne—an
equipment operator 	with 	14 	years 	of
service— 	didn't 	get 	along 	would 	be 	an
understatement.
2The 	leaflet 	was 	distributed 	to SETC 	shop stewards 	who 	in
turn posted 	it 	on 	bulletin 	boards 	at 	their 	work locations.
W
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When Frohrich 	lost 	his 	cool 	and 	shouted 	and
screamed 	at 	his workers, 	some years 	ago,
management 	saw 	that 	he 	went 	off 	the 	job for
six weeks 	because 	of 	"hypertension".
But 	when Delsigne 	failed 	to 	wear 	his 	hardhat
in the 	yard, 	he 	got 	a days dock for 	it.
Frohrich spent 	a lot 	of 	his 	work 	life
attempting 	to 	prove 	that 	Delsigne 	was
drinking 	on 	the 	job. 	He 	never 	proved 	it.
But 	when Delsigne 	took 	a 	picture 	of Frohrich
scarfing 	it 	up 	at 	the Carriage House 	here,
with 	his Caltrans 	car 	parked 	in 	the 	back,
and Frohrich 	had 	to 	get 	one 	state 	worker 	to
drive 	him 	home 	and 	another 	state 	worker 	had
to 	drive 	the 	car 	back 	to 	the 	yard, 	Caltrans
management said, per 	usual, 	"all 	is 	in
order—don't 	sweat 	it."
After 	the 	picture 	taking 	incident, 	things
here 	got 	hot for Delsigne. 	Dick 	was 	used 	to
Frohrich's tactics, 	of 	course, 	like the 	time
they 	were 	out 	with 	binoculars 	to spy on 	the
guys. 	And 	like 	the 	time they went 	through
town 	checking 	with 	restaurant 	owners 	to 	find
out 	if 	the 	guys 	had 	been 	screwing off. 	And
like the time. 	. 	.
The 	list 	is 	endless. 	Placerville 	had 	come
to be 	known as 	the pits, 	and the goal of
everyone 	was 	to 	find 	another 	place 	to go 	to.
Delsigne's problem 	was 	that 	he 	didn't 	have
it 	in 	him 	to simply bow 	down 	and 	surrender
to 	someone 	like Frohrich. 	It 	challenged 	his
whole sense 	of 	dignity as 	a man.
So 	he 	stood 	up 	to 	it 	and 	the 	dirty 	little
game went on, 	endlessly. 	Finally, 	on
July 	10 	they 	put 	a 	bunch of 	charges 	together
with 	chewing 	gum 	and 	bobby 	pins 	and 	fired
Delsigne.
In 	the 	beginning 	he 	remained 	in 	a 	fighting
mood. 	But 	as 	time passed, 	the jobless 	state
started 	to 	get 	to 	him. 	He'd worked 	hard 	all
of 	his 	life 	and didn't 	know what 	to do with
A	4

himself. 	Also 	the 	wife 	he'd 	separated 	from
during 	the 	bad 	days 	was 	found 	to 	have
cancer. 	. 	. He took to filling his days with
booze.
Then last Friday. 	. 	.
We 	in SETC 	mourn 	the 	passing 	of 	our 	brother
Richard Delsigne. 	His 	life 	should 	have
ended 	differently. 	It 	didn't.3
Reiter 	testified 	that 	the 	first 	two paragraphs 	of 	the
leaflet 	came 	from 	the 	police 	report 	on Delsigne's death 	and
from a 	person who was 	in the 	bar 	at 	the 	time of 	the 	event. 	He
admitted 	that 	the 	phrase 	quoting Delsigne 	in 	the 	leaflet 	"those
guys 	aren't going 	to push me 	around 	anymore. 	. 	." 	was 	not the
precise 	language 	in the 	police 	report, 	but 	he 	thought 	it was
very close. 	The person who was 	in 	the 	bar 	at 	the 	time of
Delsigne's death 	stated, 	said Reiter, 	that Delsigne 	equated
"those 	guys" 	with management 	at Caltrans. 	Reiter 	testified
that 	"scarfing" 	means 	drinking. 	Reiter 	also 	testified 	that 	he
got 	the 	information 	about 	the 	binoculars 	and 	the 	restaurant
check 	from Delsigne 	and 	others. 	He 	testified 	that 	he 	had 	no
personal 	knowledge 	of 	any of 	the specific matters 	alluded 	to 	in
the 	bulletin. 	As far 	as 	he 	knew, 	he 	testified, 	the matters 	in
the 	flyer 	were 	truthful.
SETC, 	said Reiter, 	puts 	out 	a bulletin on a regular 	basis,
and 	that 	the function of 	a leaflet 	is 	to inform 	employees 	of
3The 	correct 	spelling of 	the 	superintendent's 	name 	is
Frohreich.
55

what 	takes place 	in State 	service. 	One mission of 	SETC, 	Reiter
said, 	is to bring changes 	into the system. 	SETC believes, 	said
Reiter, 	the State Personnel Board hearing process 	is ". 	. 	.
simply 	inadequate 	to real equity, 	and 	in 	the 	absence of 	a
normal channel equity, 	this 	is another 	way 	to bring 	situations
and problems 	to 	the 	attention of 	the workers; 	have 	them
informed 	and 	let 	them 	know what's 	happening."
SETC 	represented Delsigne 	in more 	than one 	hearing 	before
the 	State 	Personnel Board, 	and 	in each 	case 	the Board 	denied
his 	appeal 	of 	the punitive 	actions 	taken 	against 	him.
Sometime 	shortly after 	the 	16th 	of December, 	Reiter
received 	a 	letter 	from Adriana Gianturco, 	Director 	of
Transportation. 	The 	letter 	is 	set 	forth 	in 	full:
I 	just 	had 	the 	occasion 	to 	read 	the 	flyer
published 	by 	your 	union 	concerning 	the 	death
of Richard Delsigne. 	I 	was dismayed and
sickened 	by 	the 	total 	irresponsibility of
this 	article. 	It occurs 	to me 	that 	the
unfortunate circumstances 	of Mr. 	Delsigne's
death 	should 	properly 	cause 	us 	all 	to
respectfully pause 	and 	reflect 	as well 	as 	to
mourn 	the passing 	of 	a 	former 	co-worker. 	It
is 	not 	however 	appropriate 	or 	justified 	to
launch 	an 	attack 	against 	any 	individual 	or
the management of 	the 	Department 	based 	upon
speculation and 	inference. 	To 	attempt 	to
place 	the 	responsibility 	for Mr. 	Delsigne's
death 	on 	any 	individual 	represents 	an
abandonment 	of 	any 	sense 	of 	responsibility
and 	certainly does 	not 	reflect well 	on your
organization.
I 	believe 	this 	unfortunate 	response 	on your
part 	only 	destructively 	undermines 	the
relationship 	between 	this 	Department 	and
your 	organization. 	I 	deeply regret 	that you
6

felt 	compelled 	to 	write 	and 	distribute 	such
material. 	I 	have 	reason 	to 	believe 	that
these 	flyers 	have 	been posted 	at locations
in the Department. 	I 	expect 	you 	to have
them 	removed 	immediately.
Reiter 	responded 	on December 	19, 	to Gianturco's 	letter 	as
follows:
I 	understand 	your 	strident 	response 	but
cannot 	in 	all 	honesty 	back 	away from 	the
history of 	the Placerville 	situation 	in
general 	and, more particularly, 	the role
Dick Delsigne 	was 	required 	to 	play 	as
spelled 	out 	in 	our 	bulletin.
Certainly all 	of 	us 	would prefer 	to 	take 	a
kindly 	and 	forgiving 	posture 	in 	situations
of 	such 	tragic proportion. 	But 	a
"respective pause. 	. 	. 	to mourn the passage
of 	a fellow 	co-worker" 	does 	nothing 	to
either 	ameliorate 	the 	situation 	nor 	to
properly mark 	the 	passage 	of 	a man who 	had
come 	to 	believe 	himself 	hounded 	and 	harassed
out 	of 	his 	very livelihood.
Our 	union 	has 	been 	pursuing 	problems 	in
Placerville for 	more 	than 	five 	years. 	We
have 	done 	this 	respectfully 	and 	reasonably
within the 	frustrating 	limitations 	of 	an
inadequate 	system, 	and where 	did 	all 	this
reason 	and 	respect—not 	exclusive 	of 	our
pleading 	with Caltrans 	officials 	to 	do
something 	about Placerville—lead 	us? 	Do 	we
have 	to 	be 	crazed 	irresponsible 	radicals 	to
point 	to 	that 	pathetic death 	in 	that 	seedy
little 	bar 	in Sacramento?
We 	do 	not 	suggest 	that 	either 	Caltrans 	nor
[sic] 	your Placerville superintendent was
responsible 	for 	Dick Delsigne's death. 	If
you 	read 	this 	into our 	flyer, 	it was 	not our
intent 	and 	we 	apologize.
We do, 	however, 	argue that the years of
unrelieved 	conflict 	ending 	in Delsigne's
termination did 	contribute 	to 	a 	state 	of
mind 	in which 	he 	ended 	his 	life 	as 	he 	did.
7

Christ 	knows 	that Dick was 	no saint, 	but 	it
is 	my belief 	and 	that 	of 	the 	organization
that 	we 	would 	have 	been less 	than 	unfeeling
brutes 	to 	allow 	his 	death 	to pass 	marked
only 	with 	the 	expected 	niceties.
Later, 	SETC learned 	that 	the 	leaflet 	was 	being 	removed 	from
the 	bulletin 	boards 	by Caltrans 	employees. 	Reiter 	testified
that 	after SETC's request, 	a letter, 	over 	the 	signature of
Robert Negri, 	Chief 	of Employee Relations 	for 	the 	department
was 	sent 	to SETC. 	That 	letter 	stated:
This 	is 	to 	advise 	you 	that on
December 	29, 	1980 	the Department 	ordered
its' 	supervisors 	to 	remove from 	any Caltrans
bulletin 	boards 	the SETC 	flyer, 	"Hounded Out
of State Service, 	Highway Worker Takes Own
Life" 	regarding 	the 	death of
Mr. 	Richard Delsigne.
This 	action 	was 	taken 	only 	after 	your
apparent 	refusal 	to 	remove 	the 	flyer
yourself 	as Ms. 	Gianturco 	requested 	in her
December 16, 	1980 letter 	to you.
We 	consider 	those 	flyers 	to 	be 	grossly
irresponsible. 	In addition, 	we 	consider 	the
flyer's 	content 	to 	be 	defamatory of
management in general 	as 	well 	as of
Mr. 	Frohreich, our manager 	in Placerville.
Moreover, 	we 	consider 	your 	flyer 	to 	have
damaged 	both 	the 	reputation of 	management 	as
a whole, 	as well 	as 	having specifically
damaged 	the 	reputation of Mr. 	Frohreich.
I 	also 	wish 	to 	advise 	you 	that 	on
December 	16, 	1980 	the Department 	ordered
removed 	from 	the SETC 	bulletin 	board 	at
Placerville, 	a "Mouse Cartoon" 	entitled,
"When You're Down 	& Out, 	Everybody Wants 	a
Piece". 	There was 	a handwritten 	notation on
the 	cartoon 	which 	stated 	"Please-post-on
union-bulletin-board". 	We 	ordered 	this
cartoon 	removed 	without 	discussing 	it 	with
you 	or 	any of 	your 	representatives 	because
a

it was 	so 	blatantly 	[sic] 	and grossly
obscene 	and 	offensive 	that 	to 	have 	allowed
it 	to 	remain 	even for 	a minute would 	have
been 	irresponsible 	on 	our 	part.
Negri 	testified 	that 	he 	considered 	the 	final 	sentence 	of
Gianturco's December 	16 	letter 	a demand 	that SETC 	remove 	the
Delsigne 	leaflet. 	He waited 	a 	week following Reiter's
December 	19 	letter 	and when 	the 	flyers 	had 	not 	been 	removed, 	he
ordered 	them 	removed.
Shortly 	after 	learning 	of 	the 	posting 	of 	the 	leaflet
(mid-December)4 Negri 	also 	learned 	of 	a posting 	of 	another
poster 	on 	the 	bulletin 	boards 	that 	showed 	several 	mice, 	named
after 	sundry Caltrans 	managers, 	depicting 	another 	mouse 	named
Delsigne, 	caught 	in 	a mousetrap. 	The managers 	were 	depicted 	as
about 	to 	engage 	in the 	sexual 	accosting 	of Delsigne. 	There 	is
no 	evidence 	as 	to who 	authored or 	posted 	the poster, 	and SETC
makes 	no 	charge 	about 	its 	immediate 	removal 	as 	ordered 	by Negri.
Negri 	ordered 	the mouse 	cartoon 	removed 	immediately 	as 	he
"considered 	it patently obscene, 	offensive, 	vulgar. 	It shows
genitals, 	it shows 	animals 	in the sex act; 	portrayed as 	a sex
act. 	I 	found 	it offensive."
Negri 	testified 	he 	found 	the Delsigne 	flyer 	to 	be
"offensive, defamatory, 	irresponsible in its statements, 	and
4Negri 	received 	further 	reports 	that 	the 	leaflet 	was
posted 	at Caltrans 	yards 	in Placerville, 	Susanville, Monterey,
Salinas, 	Los Angeles, Walnut Creek and San Francisco.
99

generally 	not 	truthful." 	It 	was 	his 	interpretation 	that
management 	and Frohreich 	in 	particular, 	were 	being 	charged 	with
responsibility for Delsigne's 	death. 	However, 	Negri 	testified
that 	he 	had 	told Caltrans 	managers 	that 	they were 	not 	to 	touch
the 	flyer, 	but 	to leave 	them 	where 	they were. 	He 	was 	going 	to
try 	to 	resolve 	the 	matter 	with Reiter.
Negri 	testified 	that 	the 	action 	of 	ordering 	the
removal 	of 	the 	flyer 	was 	consistent 	with 	the 	provisions
of 	the 	Governor's 	Office 	guidelines5 	and 	of
5 The 	Governor's Office 	of Employee 	Relation Guidelines,
April 	1978. 	The 	pertinent provisions 	were:
3. 	Employee 	organizations 	should 	be 	allowed 	to 	use
designated 	bulletin 	board 	space 	to 	post 	notices 	of
their meetings, 	elections, 	other 	business,
recreational 	and 	social 	activities 	and 	information
on 	issues 	relating 	to 	employee 	terms 	and
conditions 	of 	employment.
4. 	Management 	is 	not 	required 	to 	allow material,
which 	addresses 	issues 	other 	than 	those 	cited 	in 	3
above, 	to 	be 	posted. 	Management 	may prohibit 	the
posting 	of 	the 	following:
a. 	Material 	which 	is 	obscene 	or 	defamatory
according 	to 	current 	legal 	standards 	of
material 	of 	a lewd 	or 	vulgar 	nature.
b. 	Material 	which 	advocates 	employee 	action(s)
that 	would 	create 	a 	clear 	and 	present 	danger
of:
(1) 	The 	commission 	of 	unlawful 	acts 	on State
premises.
(2) 	The 	violation 	of 	lawful 	department
regulations.
10

Caltrans6 	relating 	to material 	on 	union 	bulletin 	boards.
(3) 	The 	substantial 	disruption of 	the 	orderly
operation of State 	business.
If 	doubt 	exists 	as 	to 	the 	propriety of
material 	in these 	regards, 	appropriate
qualified 	personnel 	should 	be 	consulted 	before
removal of material.
5. 	In 	the 	application 	of 	the 	bulletin 	board 	posting
rules 	included 	in 	these 	guidelines, 	it should 	be
noted 	that 	management 	has 	an 	interest 	in
protecting 	the 	reputation of 	its 	employees.
Pursuant 	to 	this 	interest, 	management 	should
broadly 	interpret 	the 	standards 	of 	obscenity 	and
defamation 	as 	applied 	to 	statements 	which 	tend 	to
injure 	the 	reputation of 	an 	employee.
6. 	Any denial 	of 	approval 	of 	material 	sought 	to 	be
posted 	or 	any 	removal 	of 	material 	will 	be
subjected 	to 	usual 	grievance 	procedures. 	Approval
procedures 	and 	grievance 	procedures 	relative 	to
posting 	materials 	should 	be 	expedited 	with 	respect
to 	the 	timeliness of material.
8. 	If 	any employee 	organization material 	is 	to 	be
removed 	from 	a 	bulletin 	board, 	the 	employee
organization must 	be 	contacted 	as 	soon 	as
possible. 	Every effort 	should 	be made 	to effect
such 	contact prior 	to 	removal 	so 	as 	to 	afford 	the
employee 	organization 	an 	opportunity to 	comment 	on
management's 	judgment 	if 	the 	representative 	so
desires.
6The 	department 	provisions 	(Policy 	and 	Procedure No.
P75-40) 	were, in part:
An employee, 	employee who 	is 	an organizational
representative, 	or 	employee organization:
1. 	a. 	Will 	be 	provided 	space 	on 	departmental 	bulletin
boards 	for 	the 	placement 	of 	items 	of 	interest 	to
employees 	(See Section V, 	B. 	4. 	for 	appropriate
11
• 	• 	• 	• 	• 	• 	• 	• 	• 	•

ISSUES
The 	issues 	in this 	case 	are:
1.) 	Does 	certification 	by 	the Public Employment Relations
Board 	(hereafter PERB) 	of 	another 	employee 	organization 	as 	the
exclusive 	representative 	in the 	unit 	in question, 	subsequent 	to
the 	filing of 	the 	unfair 	practice 	charge, 	require 	its 	dismissal?
2.) 	Did the Caltrans 	violate sections 3519(a), 	(b) 	or
(d)7 	by 	removing 	the 	flyer 	on December 	29, 	1980?
bulletin board 	items). 	Employee
organizations 	are 	responsible 	for 	keeping
posted 	materials 	current 	and 	neatly
displayed.
b. 	Management 	will 	remove 	objectionable
material 	it 	considers 	obviously offensive
(e.g., 	partisan or 	non-partisan election
campaign material, 	obscene or 	highly
inflammatory or 	in 	exceptionally poor
taste). 	Management should 	attempt to
contact 	persons 	responsible 	for 	posting
materials before 	removal. 	Within three
(3) 	days of 	removal, management will
provide 	written explanation 	(SPB 	Rule
544).
7Section 	3519 	provides 	in part 	that 	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.
12
• 	• 	• 	• 	• 	•

The Motion 	to Dismiss.
In 	its Motion 	to Dismiss 	the charge, 	filed after 	the 	formal
hearing was 	completed, 	the State 	argues 	that 	since 	the 	instant
unfair 	practice 	charge 	was 	filed, 	PERB 	has 	certified 	another
employee 	organization 	as 	the 	exclusive 	representative 	of 	the
members of 	this unit, 	thus SETC no longer 	has 	any authority 	to
pursue 	this charge.
In 	response 	to 	the Motion, 	the Administrative Law Judge
issued 	a Notice 	of 	Intent 	to 	take Official Notice 	of Records of
the 	PERB 	relating 	to 	the 	certification 	of 	election 	results 	and
the 	certification 	of 	employee 	organizations 	as 	the 	exclusive
representative 	of 	employees 	within 	the 	unit 	involved 	in 	this
matter.8 Time 	was 	extended 	to 	the 	parties 	to 	file 	objections
to 	the 	taking 	of 	such 	notice. 	No objections 	were 	filed.
(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 encourage
employees 	to 	join 	any organization 	in
preference 	to another.
8 An 	administrative 	agency 	may 	take 	official 	notice 	of
matters 	within 	its own 	files 	and 	records. 	Anderson v. 	Board 	of
Dental Examiners 	(1915) 	27 Cal.App. 	336, 338, 149 p. 	1006,
1007; 	California Administrative Agency Practice 	(Cont. 	Ed. 	Bar
1970) 	Hearing Procedures, 	section 3.34, p. 	167. 	Antelope
Valley Community 	College 	District 	(7/18/79) 	PERB 	Decision
No. 	97 	[3 PERC 10098].
13
• 	• 	•

PERB files 	indicate 	that on July 10, 	1981, 	the PERB
certified 	the 	California 	State 	Employees Association 	as 	the
exclusive 	representative 	for 	all 	employees 	in 	the 	craft 	and
maintenance 	unit 	as 	a 	result 	of 	statewide 	elections 	conducted
by 	PERB 	in May 	and June 	of 	1981.9
Caltrans 	posits 	two 	cases 	in 	support of 	its Motion 	to
Dismiss.10 In 	the 	first, 	Mount 	Diablo Unified 	School
District 	(12/30/77) 	PERB Decision No. 	44 	[2 PERC 2058] , 	the
PERB 	held 	that 	a 	nonexclusive 	representative 	did 	not 	have 	a
right 	to pursue 	a 	grievance on 	behalf 	of 	a member 	of a 	unit
where 	there 	was 	an exclusive 	representative. 	That 	is 	not 	the
case 	here. 	The SETC 	seeks not 	to pursue a grievance, 	but,
only 	to 	ascertain 	the 	propriety of 	the 	act of 	the 	employer 	in
removing 	the 	flyer on December 	29, 	1980.
In 	the 	second 	case 	cited 	by Caltrans, 	Marin Community
College District 	(4/3/81) 	PERB Decision No. 	161 	[5 PERC 12041],
the 	PERB 	declined 	to 	review 	a Administrative 	Law Judge's
dismissal 	of 	an 	unfair 	practice 	charge 	filed 	by a 	nonexclusive
employee 	organization alleging 	the 	employers' 	failure 	to meet
and 	consult 	with 	the 	same 	employee organization. 	Subsequent 	to
9No 	objections 	to 	the 	certification 	were 	filed 	pursuant
to Board 	regulation 	section 	32738 	(title 	8, 	California
Administrative 	Code).
10 10Both cases involve interpretation of the provisions of
the Educational Employment 	Relations Act 	(hereafter 	EERA)
Government Code 	section 	3540 	et 	seq.
14
10

the Administrative Law Judge's 	dismissal, 	the 	employee
organization 	became 	the 	exclusive 	representative. 	PERB's
affirmation 	of 	the 	dismissal 	was 	on 	the 	ground 	that 	the
employer 	now 	had 	a duty 	to meet 	and 	negotiate with 	the 	same
employee 	organization 	and 	no 	useful purpose 	would 	be 	served 	by
reviewing 	the 	alleged 	unfair 	practice. 	The 	instant 	case
presents 	neither 	a 	refusal 	to 	negotiate 	question 	nor 	the
subsequent 	certification 	of 	the 	same 	employee 	organization 	as
the 	exclusive 	representative.
In Hanford Joint Union High 	School District 	(6/27/78) 	PERB
Decision No. 	58 	[2 PERC 2137], 	the PERB held that a
nonexclusive 	representative 	could 	not 	file 	an 	unfair 	practice
charge 	relating 	to 	a 	representation 	right 	after 	an 	exclusive
representative 	had 	been 	selected. 	The 	Board 	relied 	on 	the
exclusivity 	of 	representation 	granted 	to 	the 	exclusive
representative 	provided 	in 	section 	3543.1(a).11 In 	response
to 	an 	argument 	raised 	by 	the 	charging 	party, 	PERB 	noted:
11Section 	3543.1(a) 	provides 	in part:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in 	their
employment 	relations 	with 	public 	school
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. 	. 	. 	.
15

The Federation 	relies 	on 	the 	fact 	that 	the
employees 	in 	the 	unit did 	not 	have 	an
exclusive 	representative 	at 	the 	time 	the
acts complained of occurred. 	However, 	this
argument misses 	the point. 	The Federation
did 	not 	assert 	its 	rights 	at 	that 	time.
This 	charge was 	not 	filed 	until 	after
another 	organization 	had 	been 	granted
exclusivity. 	It was 	this 	act of 	accession
that 	constituted 	the 	bar 	to 	the 	current
action.
Section 3543.1 (a) 	is essentially the same as 	section
3515.5, 	as 	the 	statutory expression of exclusivity. 	PERB has
held 	it will 	apply 	its 	precedents 	under 	EERA 	to 	similar
provisions 	of 	the SEERA. 	State 	of California 	(Department of
Corrections) 	(5/5/80) 	PERB Decision No. 	127-S 	[4 PERC 11079].
In 	the 	instant 	case, 	SETC 	filed 	the 	unfair 	practice 	well
before 	certification of 	the 	exclusive 	representative 	occurred.
Indeed, 	the 	formal 	hearing on 	the 	unfair 	practice 	charge was
completed 	by 	that date.
At 	the 	time 	of 	the 	commission of 	the 	alleged 	violation 	and
at 	the 	time 	the 	charge 	was 	filed, 	SETC had 	the 	statutory 	right
to 	represent 	its members within 	the 	unit. 	There 	was 	not 	then
an 	exclusive 	representative organization. 	In 	this case, 	SETC
charges 	the Caltrans 	with 	violating 	the 	rights 	of 	employees
under 	section 	3519(a) 	and 	rights 	of 	employee organizations
rights 	under 	section 3519 (b). 	Transgressions of 	these 	rights
by 	the 	employer 	are 	not 	vindicated 	or 	mooted 	by 	the 	subsequent
certification of 	another 	employee 	organization who will 	be
representing 	the 	same 	employees 	for 	whom SETC 	complains. 	SETC
and 	the 	employees 	are 	entitled 	to a determination, 	on 	the
16

merits 	of 	the matter, 	whether 	the 	employer 	violated 	the
provisions 	of SEERA by 	its 	actions of December 	29, 	1980. 	The
Motion 	to Dismiss 	is, 	on 	this ground, 	denied.
The 	next question 	to 	be 	resolved 	is 	whether 	the 	removal 	of
the 	flyer 	constituted 	a 	violation 	of 	Government Code
section 3519 (a). 	Section 3519 (a) 	provides that 	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.
Section 3519 (a) 	is comparable 	to section 3543.5 (a) 	of 	the
EERA.1 2
In Corrections, 	supra, 	PERB Decision No. 	127-S, 	PERB 	read
into section 3519(a), 	in addition to the 	right of 	employees 	to
join and 	participate 	in 	an 	employee 	organization of 	their
choice,13 that 	employee 	organizations 	have 	the 	right 	to
12Section 	3543.5 (a) 	provides 	that 	it shall be 	unlawful
for 	a public 	school 	employer 	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.
13	13Section	s ection 	3515 	gives 	state 	employees 	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
17

communicate 	with 	employees 	and 	members 	at 	their 	work 	site,
where 	they 	are generally most 	accessible. 	Said 	PERB, 	"access
to 	employees 	to 	facilitate 	an 	exchange 	of 	information 	is
clearly 	a 	threshold 	concern 	not 	only 	in 	an 	organizing 	campaign
but 	during 	the 	course 	of 	the 	ongoing 	relationship 	between 	the
employee 	organization 	and 	its 	members." 	Th-. .e 	PERB 	observed 	that
even while 	the SEERA 	is 	silent 	as 	to 	the 	right of 	access 	of
employee 	organizations 	to work 	areas, 	institutional 	bulletin
boards 	and mailboxes 	for 	communication purposes, 	as 	is provided
under 	the EERA, 	and 	the Higher 	Education Employment Relations
Act1 4 (hereafter HEERA), 	such 	"right of access 	is 	implicit
within 	the 	stated purposes 	of 	the SEERA."
In Corrections, 	supra, 	PERB Decision No. 	127-S, 	PERB
applied 	the 	Carlsbad Unified 	School 	District15 test 	to
determine 	if 	there was a section 3519 (a) 	violation. 	Carlsbad
established 	a 	single 	standard 	and 	test 	for 	all 	alleged
violations of 	section 3543.5(a). 	PERB held 	that where 	there 	is
a 	nexus 	between 	the 	employer's 	acts 	and 	the 	exercise 	of
employee 	rights, 	a prima 	facie case 	is 	established 	upon 	a
showing 	that 	those 	acts 	resulted 	in 	some 	harm 	to 	employees'
rights. 	If 	the 	employer 	offers operational 	necessity 	in
14Government 	Code 	section 	3560 	et 	seq.
15Oceanside-Carlsbad 	Unified 	School 	District 	(1/30/79)
PERB Decision No. 	89 	[3 PERC 10031].
18

explanation of 	its 	conduct, 	the 	competing 	interests 	of 	the
parties 	are 	balanced 	and 	the 	issue 	is 	resolved 	accordingly. 	If
the 	employer's 	acts 	are 	inherently destructive 	of 	employee
rights, 	however, 	those 	acts can be exonerated only upon a
showing 	that 	they were 	the 	result 	of 	circumstances 	beyond 	the
employer's control 	and 	no 	alternative 	course 	of 	action 	was
available. 	In any event, 	the charge will be sustained 	if
unlawful 	intent 	is 	established 	either 	affirmatively or 	by
inference 	from 	the 	record.
The 	question 	here 	is 	not 	whether 	the 	union 	could 	use 	the
bulletin 	board, 	as 	the 	employee organization had 	access 	to
them, 	nor 	is 	there 	a question of 	the 	employer's control on 	the
distribution 	of 	materials 	during 	non-work 	time on 	the
employer's property. 	Rather 	the 	question 	is whether 	the
employer 	could 	place 	any 	limit 	upon 	the 	content 	of 	material
posted 	on 	state 	bulletin 	boards.
SETC 	argues 	that 	the 	act 	of 	removing 	the 	leaflet was
inherently 	destructive 	of 	employee 	rights 	in 	that 	"it 	deprives
the 	employee 	of 	the 	very 	basic 	right 	to 	know 	the 	opinions of
his organization." 	Thus, 	under Carlsbad, 	supra, 	PERB Decision
No. 	89, 	SETC argues, 	"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 	was
available." 	That 	the 	employer 	could 	have 	left 	the 	leaflet 	on
the bulletin was an alternative, 	says SETC, 	and 	thus a
19

violation must 	be 	found. 	This 	argument 	is 	rejected. 	The 	act
of 	the 	employer 	was 	to 	remove 	a 	leaflet 	from 	state-owned
bulletin 	boards 	two weeks 	after 	its posting, 	following 	demand
for 	its 	removal, 	and 	further, 	following 	admission by 	the
employee 	organization 	that 	the 	leaflet 	might 	suggest management
and 	Frohreich caused 	Delsigne's 	suicide. 	The 	act 	did 	not 	cut
off 	the 	employee's 	communication 	with 	the 	union or 	vice 	versa.
There was 	no restraint, 	by 	the employer, 	of 	the distribution of
the 	flyer 	to 	the 	rank 	and 	file 	employees.16 See 	California
Department of Transportation 	(7/7/81) 	PERB Decision No. 	159b-S
[5 PERC 12068]. 	A different conclusion might be 	justified
where 	the 	employer 	prohibited 	the 	distribution 	of 	the 	leaflet,
but 	that 	is not 	the 	case 	here. 	It 	is concluded 	that 	the 	act
complained of 	here, 	in light of 	the 	foregoing 	circumstances,
does 	not 	constitute 	harm 	"inherently 	destructive 	of 	employee
rights".
Here, 	the 	removal of 	a 	flyer 	from 	the 	state 	owned 	bulletin
board 	two weeks 	after 	it was posted, 	denied 	the 	employee
organization 	an 	opportunity 	to maintain 	its 	communication 	with
the 	unit members via 	the 	bulletin 	board. 	This 	involves 	at
least 	slight 	harm. 	The 	right of 	the 	employee organization 	to
communicate 	this 	particular 	message 	in 	this 	fashion 	will 	be
16There 	is 	no 	evidence 	that 	the 	employer 	would 	have
precluded 	general 	distribution 	of 	the 	leaflet 	to 	unit members.
20

weighed 	against 	the 	operational 	necessity of 	the 	employer, 	and
the 	competing 	interest 	of 	the 	parties 	will 	be 	balanced.
In Corrections, supra, PERB Decision No. 	127-S, PERB noted
the 	right 	of 	the 	employer 	under 	SEERA 	to place 	some 	restriction
on 	access 	"where 	necessary 	to 	assure 	the 	safety of 	its
employees, 	wards 	and 	facilities, 	and 	the 	efficient operation of
its official business." 	"It 	is 	clear," 	said PERB, 	"that 	access
to 	public 	property 	may 	be 	reasonably 	regulated 	under 	varied
circumstances." 	PERB 	turned 	to 	the 	rules 	of 	the National Labor
Relations 	Board 	and 	the 	Federal 	Courts 	governing 	employer
regulation 	of 	employee 	organizations 	access 	to 	the 	employer
property. 	While 	noting 	that 	it 	would 	take cognizance 	of
federal 	precedent,17 PERB 	stated 	it 	"would 	consider 	the
17PERB 	may 	use 	federal 	labor 	law precedent 	where
applicable 	to public 	sector 	labor 	issues. 	See 	Fire Fighters
Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	611, 	Sweetwater Union
High School District 11/23/76) 	EERB Decision No. 	4 	(The Public
Employment 	Relation Board 	was 	previously 	known 	as 	the
Educational Employment Relations Board, 	or EERB). 	In State
Trial Attorneys Association v. 	State of California, 	Department
of Transportation 	(7/7/81) 	PERB Decision No. 	159b-5, 	PERB
addressed 	the question of 	access 	as 	it 	relates 	to 	the
distribution 	of 	union 	literature 	through 	the 	internal 	mail
system of 	the 	state. 	It was 	noted 	that 	"Distribution of
literature 	may 	involve 	an 	intrusion 	upon 	the 	employer's
interest 	in maintaining 	order 	and 	discipline. 	(Citation
omitted.) 	Further, 	said PERB, 	limitation of 	such distribution
also 	intrudes 	upon 	the organizational 	rights 	of 	employees.
PERB 	then 	balanced 	these 	conflicting 	rights 	and made 	a
determination of 	what 	is 	reasonable 	regulation 	of 	access 	under
Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S. 	[16 LRRM 620]
where 	the 	Supreme Court 	upheld 	the Board's 	ruling 	that 	an
employer 	may 	not 	prohibit 	its 	employees 	from distributing 	union
organizational 	literature 	on 	non-working 	time, 	absent 	a 	showing
by 	the 	employer 	that a 	ban 	is 	necessary 	to maintain plant
discipline 	or 	production.
21

inherent 	and 	substantial 	distinction 	between 	the 	property
interest 	of 	the 	private 	employer 	and 	that 	of 	the 	public
employer."
The 	parties 	argue 	for 	or 	against 	justification 	of 	Caltrans
action 	on 	a 	determination 	of 	whether 	the 	material 	was
defamatory. 	Caltrans 	contends 	that 	because 	the 	leaflet
insinuated 	Delsigne's 	suicide 	was 	caused 	by management 	and
Frohreich 	the 	material 	holds 	them up 	to contempt 	and 	ridicule
and 	"appears defamatory." 	SETC, 	on 	the other 	hand, 	argues 	that
the material 	is not defamatory, 	because Caltrans 	never
established 	whether 	the 	charges 	within 	the 	leaflet 	were
untrue. 	Further, 	says SETC, 	"under 	current legal standards"
malice 	is 	required 	for 	a finding of defamation. 	Here, 	says
SETC, 	the material was 	not published with malice, 	as Reiter
believed 	the 	allegations 	to be 	true, 	and 	he had 	both 	sources
and 	personal 	experiences 	on which 	the 	allegation 	were 	based.
But 	establishing 	the material 	as 	defamation 	as defined 	by
the 	Supreme Court 	is 	not 	the 	test of protection 	under 	the
National Labor 	Relations Act 	(hereafter NLRA). 	The 	rights 	of
employees 	and 	employee 	organizations 	to promulgate 	written
materials 	is 	grounded 	upon 	section 	7 	of 	the 	Act.18 See
18Section 7 provides 	in part: 	"Employees 	shall have 	the
right 	to 	self organization, 	to form, 	join or 	assist labor
organizations, 	to bargain 	collectively 	through 	representatives
of 	their 	own choosing, 	and 	to engage 	in other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection 	. . . "
22

Letter Carriers v. 	Austin 	(1974) 	418 U.S. 	264. 	The National
Labor 	Relations 	Board 	does 	not 	measure 	the 	scope 	of 	protection
under 	section 	7 	by 	a 	standard 	of 	defamation or 	its 	components
of 	malice 	as 	prescribed 	by 	the 	Supreme 	Court 	for 	defamation
suits 	in 	State 	courts.19 Rather 	the Board 	employs 	a 	broader
policy 	to 	balance 	the 	interest 	of 	employees 	in 	self
organization 	under 	Section 	7 	and 	the 	right of 	employers 	to
maintain discipline 	in 	their 	establishment. 	Republic Aviation
Corporation v. 	NLRB 	(1945) 	324 	U.S. 	793.
In Maryland Drydock Co. 	v. 	NLRB 	(4th Cir. 	1950) 	183 F.2d
538, 	the 	employee 	organization was 	refrained 	from distributing
its 	newspaper 	upon 	the 	company property. 	An 	initial 	unimpeded
union publication 	contained 	reference 	to 	a 	competing
organization 	formed 	for 	supervisors 	as 	"scab" 	and 	included 	an
abusive definition of 	"scab," 	and 	in 	another 	part of 	the 	paper
referred 	to 	the president of 	the 	company 	as 	"Gossie" 	(his 	name
was French) 	and 	further 	that 	he 	should 	be called 	a vulture. 	It
was 	found 	that 	a 	subsequent 	newspaper 	further 	lampooned 	French
and 	held 	him up to 	ridicule 	in doggeral verse 	as 	a 	"goose" 	and
"vulture". 	The 	next paper 	contained 	a 	reward 	for 	anyone 	who
would 	submit 	suitable 	music 	for 	the 	doggeral 	verse 	lampooning
French. 	These 	papers 	were 	barred 	from distribution 	by 	the
employer.
19Indeed, 	even defamatory material may 	be 	protected. 	See
Letter Carriers v. 	Austin 	(1974) 	supra.
23

The Court 	viewed 	the 	material 	as 	"scurrilous 	and 	defamatory
literature" 	and 	held 	that 	the 	company 	could 	not 	be 	held 	guilty
of 	an 	unfair 	practice 	because 	it 	had 	forbidden 	the distribution
on 	its premises 	of 	"scurrilous 	and 	defamatory literature, 	which
holds 	its 	officer 	and 	supervising 	officials 	up 	to 	ridicule 	and
contempt, 	and 	which has 	a necessary 	tendency 	to disrupt
discipline 	in 	the plant." 	The company, 	said 	the Court, 	must
maintain order 	and discipline 	in 	its plant, 	and will 	not 	be
guilty 	of 	an 	unfair 	labor 	practice 	because 	its 	action 	is
reasonably 	taken 	to protect 	the 	employer's property or
"preserve 	discipline 	against 	the 	unlawful 	conduct 	of
employees." 	This case, 	as noted 	by Caltrans, 	was cited with
approval 	in Linn v. 	United Plant Guard Workers of America,
Local 114 	(1966) 	383 U.S. 	53. 	There, 	the Supreme Court
reviewed 	publication of 	leaflets 	that 	accused 	managers 	of 	a
branch 	plant of 	"lying" 	to and 	"robbing" 	members 	of 	the 	unit
represented 	by 	the 	union. 	The Court 	reversed 	lower 	court
holdings 	that 	such 	suits 	were 	preempted 	by 	the 	federal 	labor
law. 	Weighing 	the 	interest 	of 	state courts 	in 	affording 	relief
against defamatory 	statements, 	and 	the 	rights 	of 	employees
under Section 	7 	of 	the NLRA, 	the Court observed:
Basic 	to 	the 	right 	guaranteed 	to employees
in section 7 	to form, 	join or 	assist labor
organizations 	is 	the 	right 	to engage 	in
24

concerted 	activities 	to 	persuade 	other
employees 	to join 	for 	their 	mutual aid 	and
protection.
Vigorous 	exercise 	of 	this 	right 	'to persuade
other 	employees 	to join' must 	not 	be
stifled by 	the 	threat 	of 	liability 	for 	the
over 	enthusiastic 	use 	of 	rhetoric or 	the
innocent mistake of 	fact. 	Thus, 	the Board
has 	concluded 	that 	statements 	of 	fact or
opinion 	relevant 	to 	a 	union 	organizing
campaign are protected 	by 	section 	7 	even 	if
they 	are 	defamatory 	and 	prove 	to 	be
erroneous, 	unless made with 	knowledge of
their 	falsity. 	(Citation omitted.)
The 	Supreme Court 	held 	that 	libel 	suits 	could 	be 	entertained 	but
were 	limited 	to 	those 	cases 	where 	the 	complainant 	could 	show 	that
the 	defamatory 	statements 	were 	circulated 	with 	malice 	and 	caused
him 	damage.1=20 Said 	the 	Court:
Likewise, 	"in as a number of cases 	the Board
has 	concluded 	the 	epithets 	such 	as 	"scab",
"unfair", 	"liar" 	are commonplace 	in these
struggles 	and 	not 	so 	indefensible 	as 	to
remove 	them 	from 	the 	protection 	of 	section 	7,
even 	though 	the 	statements 	are 	erroneous 	and
defame one of 	the parties 	to 	the dispute.
Yet, 	the Board 	indicated 	that 	its decisions
would 	have 	been 	different 	had 	the 	statements
been lettered with 	actual malice, 	"a
deliberate 	intention 	to 	falsify" 	or 	"a
malevolent desire 	to 	injure." 	In 	sum,
although 	the 	board 	tolerates 	intemperate,
abusive 	and 	inaccurate 	statements made 	by 	the
2 0 The 	Court 	adopted 	the 	standard 	of New York 	Times Co. 	v.
Sullivan 	(1964) 	376 U.S. 	254, 	holding consistent with 	the First
and Fourteenth Amendments, 	that 	a State 	cannot 	award 	damages 	to
a public 	official 	for 	defamatory 	falsehood 	relating 	to 	his
official 	conduct 	unless 	the 	official 	proves 	actual 	malice 	—
that 	the 	falsehood 	was published 	with 	knowledge 	of 	its 	falsity
or 	with 	reckless 	disregard 	of whether 	it was 	true 	or 	not.
25

union during 	attempts 	to organize 	employees,
it does 	not 	interpret 	the Act 	as 	giving
either 	party license 	to 	injure 	the 	other
intentionally 	by 	circulating 	defamatory 	or
insulting material 	known 	to 	be 	false. 	See
Maryland 	Drydock 	Co. 	v Labor 	Board 	183 	F.2d
538 	(CA 4th Cir. 	1950). 	In 	such case, 	the one
issuing 	such 	material 	forfeits 	his 	protection
under 	the Act.
Thus, 	material 	which promotes 	ridicule 	and 	contempt 	and 	which
has 	the 	necessary 	tendency 	to disrupt 	discipline 	in 	the 	plant
has no protection. 	In Drydock, 	supra, 	the court said, 	no
protection 	is 	afforded 	for 	material 	that 	is 	"insulting 	and
defiant 	and 	which 	scurriously 	lampoons 	the 	officers 	of 	the
company 	and 	its 	supervisory 	employees."
In Pittsburg Unified School District 	(2/10/78) 	PERB
Decision No. 	47, 	[2 PERC 2051] 	the PERB adopted a hearing
officer 	decision 	that 	exonerated 	a 	school 	district 	employer
from an 	alleged 	section 	3543.5 (a) 	violation 	for 	the 	suspension
of 	employees 	for 	the promulgation 	of 	flyers 	suggesting 	improper
conduct on 	the 	part of management 	employees. 	Besides 	finding
the 	flyer 	inappropriate 	on 	school 	grounds 	around 	children
because 	it 	suggested 	intercourse 	among 	the 	employees, 	the
Administrative Law Judge 	based 	his 	decision on 	the 	right 	of 	the
employer 	to protect 	the 	reputation of 	its 	employees 	from locker
room gossip, 	to avoid 	lethal 	effect on 	the morale 	of 	employees
involved 	and 	the malignment 	of 	management 	employees.
26

The 	flyer 	in 	question 	raises 	questions of 	management
relationships with 	its 	employees. 	It can 	be 	read 	as 	accusing
the 	state 	of 	causing Delsigne's 	suicide.21 It 	begins 	in
captioned letter, 	"Hounded out of 	state 	service, 	highway worker
takes 	own 	life." 	It attributes Delsigne's dying 	words 	that
management 	at Caltrans 	would 	not 	be 	pushing 	him 	around
anymore. 	Its 	chronology of 	the 	relationship of Frohreich 	and
Delsigne 	impute 	to management 	generally 	an overly 	tolerant
acceptance 	of Frohreich's conduct 	(the 	hypertension 	and 	the
Carriage House 	incident) 	while 	at 	the 	same 	time 	sanctioning
Delsigne 	for 	the 	hard 	hat 	incident. 	It 	suggests 	that
management 	condones 	the 	use 	of 	binoculars 	to 	spy on 	employees
and 	to check 	with 	restaurants 	to 	see 	if 	the employees 	were
"screwing off". 	It 	suggests 	that 	the 	list of management
tactics 	were 	endless, 	and 	because 	of Frohreich 	and 	the
management, 	Placerville had 	become 	the 	"pits," 	and 	that
employees 	were 	trying 	to 	find 	somewhere 	else 	to go. 	It
suggests 	that 	Frohreich 	and 	management 	somehow 	required
Delsigne 	to subordinate 	his 	sense 	of dignity as 	a man. 	It
states 	that management was 	involved 	in 	a dirty 	little 	game
against Delsigne. 	Read 	in 	its entire context, 	the 	leaflet was
21That 	it 	imputed 	such 	a conclusion 	was 	recognized 	by
Reiter 	when 	he 	responded 	to Gianturco. 	He 	apologized 	to 	the
agency 	for 	such 	an 	inference.
27

disparaging 	of 	management 	in 	general 	and Frohreich 	in
particular. 	Contrary 	to Reiters 	testimony, 	the 	leaflet makes
no 	reference 	to 	the State Personnel Board, 	nor 	to 	the 	asserted
"inequalities" 	of 	its proceedings. 	The 	leaflet was posted
before 	the 	State 	Personnel Board 	had 	taken 	action on 	the
Administrative 	Law Judge 	decision.
On 	the other 	hand, 	the 	assertions 	in 	the 	leaflet 	are not
sheer 	fabrications. 	Reiter 	was 	familiar 	with 	the Placerville
scene with 	the 	employer-employee 	relations 	there. 	Reiter 	had
received 	confirmation 	from a person present 	at 	the 	scene 	to
corroborate 	the 	police 	report on Delsigne's 	statement 	before 	he
died. 	Caltrans 	offered 	nothing 	at 	the 	hearing 	to disprove
anything 	stated 	in 	the 	leaflet.
As 	noted, 	the 	issue here 	is 	not 	the 	freedom of 	the
employees 	to publish and 	distribute material, 	but 	rather 	the
obligation of 	the 	employer 	to allow 	the material 	to 	remain
posted 	upon 	the 	state-owned 	bulletin 	board. 	While 	any 	degree
of condonation 	by 	the 	state 	of 	the 	content of 	the material
allowed 	to 	be 	posted 	for 	any 	length of 	time would 	be
speculative, 	the State does 	have 	an 	interest 	in 	assuring 	that
management 	and 	its 	employees 	are 	free 	from personal 	attack.
Thus, 	from the 	foregoing analysis, 	it could be argued 	that
allowing 	this 	leaflet 	to 	remain 	at 	the Placerville 	yard 	would
expose 	Frohreich 	and 	management 	to 	continued 	disparaging 	gossip
about 	their 	role 	in Delsigne's 	suicide.
28

This concern, 	however, 	did not cause 	the Caltrans 	to take
immediate 	action 	to remove 	the 	flyer. 	Rather, 	Caltrans 	chose
to allow 	the 	flyer 	to remain posted. 	While Gianturco's 	letter
of 	December 	16 	expressed 	concern 	for 	the 	contents 	of 	the
leaflet, 	her 	reaction was 	simply 	to request 	the Union 	take 	the
leaflet 	down. 	Had 	continued 	efficiency 	of 	the 	plant 	operations
been 	in 	issue, 	she would 	have ordered 	it 	taken down, 	under 	the
auspices 	of 	the 	operative 	guidelines.22 Even 	after 	Reiter
disclaimed 	removal 	of 	the 	flyer, 	Negri 	did not 	take 	the 	leaflet
down and, 	in 	fact, 	told management employees 	to leave 	the
leaflet 	posted. 	This 	action 	belies 	a 	conclusion 	that 	there 	was
posed 	to 	the 	employer 	a 	substantial 	threat 	to 	the 	efficient
operation 	of 	its 	plant 	by 	the 	continued 	display 	of 	the 	poster.
Further, 	no evidence 	was 	offered 	at 	the 	hearing 	about 	such
threat 	to 	the operation of 	the plant. 	Caltran's 	post-hearing
brief 	offers 	no 	factual or 	legal 	contentions 	that 	such 	threat
was present 	because 	of 	the presence of 	the leaflet.
It 	is concluded 	therefore, 	that Caltrans 	has 	failed 	to
establish 	operational 	necessity 	as 	justification 	for 	its
conduct. 	Thus, 	under 	the Carlsbad 	test, 	a violation of 3519 (a)
must 	be 	found.
22See 	Rule C 	(1)(b) 	of 	the Policy and Procedure 	set 	forth
in footnote 	6.
29

This denial 	of 	the 	right 	to communicate with 	employees 	is
concurrently 	a 	violation 	of 	the 	employee 	organizations 	rights
under 	3519 (b), 	See California Department of Transportation
supra, 	PERB Decision No. 	159b-S.
Charging 	party 	questions 	the 	reasonableness 	of 	the 	policies
in 	terms of 	employees' 	rights of 	free speech, 	citing Richmond
Federation 	of 	Teachers 	and 	Simi 	Valley 	Educators Association
(8/1/79) 	PERB Decision No. 	99 	[3 PERC 10105]. 	Charging party
argues 	that 	the Caltrans 	policy 	is overbroad 	in 	that 	it 	allows
management 	to 	remove 	"objectionable material 	it 	considers
obviously 	offensive." 	This 	unbridled 	discretion 	would,
according 	to SETC, 	fall 	under 	the Richmond case.
In Richmond Unified School District 	(8/1/79), 	supra, 	PERB
Decision No. 	99 	[3 PERC 10105] 	where reviewing 	the 	scope of
regulation making 	powers 	of 	school districts 	under
section 	3543.1(b) 	of 	the EERA 	the PERB 	noted:
On 	the 	basis 	of 	our 	understanding of 	the
statutory purposes 	of EERA, 	in conjunction
with 	our 	review of 	analogous principles 	of
labor 	and 	constitutional 	law, 	we 	conclude
that 	school 	employer 	regulation 	under
section 3543.1(b) 	should 	be 	narrowly drawn
to cover 	the 	time, 	place 	and manner 	of 	the
activity, 	without 	impinging on 	the 	content
unless 	it presents 	a substantial 	threat 	to
peaceful 	school operations. 	The 	employer's
interest 	in 	regulating 	speech 	conduct 	on
campus 	is 	fully protected, 	under
section 3543.1 (b) , 	by narrow guidelines and
by 	the 	deterrent 	threat posed 	by 	the
possibility of 	subsequent 	punishment 	for
unprotected 	behavior. 	Pittsburg 	Unified
School District 	(2/10/78) 	PERB Decision
No. 47.
30

The Board 	found 	as 	one 	of 	the 	reasons 	the 	regulations
violated 	the EERA 	were 	that 	they 	were 	unreasonably 	vague 	and
overbroad. 	Within 	this 	criticism was 	the 	notion 	that 	the
policies 	in 	question 	suffered 	from 	the 	absence 	of 	clear
standards 	and 	procedures, 	thereby 	leaving 	unfettered 	the
discretion of 	school administrators. 	Under 	the Governor's
Office guidelines, 	management 	is 	encouraged 	to 	"broadly
interpret 	the 	standards 	of 	obscenity or 	defamation" 	according
to 	"current legal 	standards or 	material 	of 	a lewd or 	vulgar
nature," 	as 	applied 	to 	statements 	"which 	tend 	to 	injure 	the
reputation of 	an 	employee."
In 	the 	instant case, 	Negri 	saw fit 	to remove 	the mouse
cartoon 	immediately. 	His 	exercise 	of 	discretion with 	regard 	to
the Delsigne flyer, 	however, 	was 	less 	firm. 	He chose 	to allow
the 	flyer 	to 	be 	posted 	for 	two weeks. 	Had 	he 	felt certain 	that
an 	employee's 	reputation 	was 	being 	injured 	he 	would 	have
removed 	the material 	immediately. 	Rather, 	he left 	it on 	the
bulletin 	board, 	notwithstanding 	his 	contention 	that 	the
policies 	authorized 	him to 	remove 	it. 	This 	sort of 	discretion
would 	be 	suspect 	under 	the Richmond, 	supra, 	PERB Decision
No. 	99, 	holding.23
2 3 In addition, 	in Richmond, 	the Board condemned 	language
referring 	to 	"of political or 	partisan nature," 	language 	quite
similar 	to 	that 	found 	in 	the Caltrans 	policy 	and 	procedure
manual, 	"partisan or non-partisan election campaign material."
31

Likewise, 	in Richmond, 	supra, 	the Board found 	the district
failing 	to 	follow 	its 	own 	guidelines 	in 	the 	application 	of 	the
rules 	to the use of 	the school mail 	systems. 	Here too, 	had
Gianturco or 	Negri 	felt 	that 	the material 	in question was
injurious 	to an 	employee, 	the material 	should 	have 	been 	removed
immediately, 	not allowed 	to remain 	for 	two weeks. 	Indeed, 	as
noted, 	Negri 	told 	some managers 	to leave 	the material posted.
While 	the 	Governor's Office 	guidelines 	do provide 	for
review, 	through 	grievance 	procedures 	of 	either 	disapproved
material 	or 	material 	removed, 	a 	feature 	observed 	by 	the PERB 	as
absent 	in 	the Richmond 	regulations, 	such procedure does 	not
overcome 	the 	initial 	uncertainty 	of 	application 	of 	the
guidelines 	because of 	their 	scope.
The 	Governor's Office 	guidelines 	authorize 	removal 	of
material 	"obscene 	or 	defamatory 	according 	to 	current 	legal
standards 	of 	material 	of 	a lewd 	or 	vulgar 	nature." 	Management
is 	to 	"broadly 	interpret 	standards 	of 	obscenity 	and 	defamation
as 	applied 	to 	statements 	which 	tend 	to 	injure 	the 	reputation of
employees." 	Under 	the Caltrans Policy 	and Procedure,
management 	is 	to remove 	"objectionable material" 	it considers
"obviously 	offensive 	(obscene or 	highly inflammatory in or 	in
exceptionally poor 	taste)."
The material 	in 	the Delsigne 	flyer 	was not 	lewd 	in 	the
sense 	of 	the mouse 	cartoon. 	Negri 	had 	that cartoon removed
immediately. 	Nor 	did Negri 	perceive 	the Delsigne 	flyer 	as
32

vulgar. 	His written notice 	to SETC on December 	29 	did 	not
complain 	of 	vulgarity nor 	did 	he 	express 	such 	an 	impression 	at
the 	hearing. 	His written 	response 	to SETC complained 	that 	the
leaflet was 	"defamatory" 	to 	"management 	in general," 	and yet
the guidelines 	address 	themselves 	to 	the 	reputation of
employees 	and 	not 	"management" 	generally.
These guidelines 	fail 	to comply with 	the 	standard 	set 	down
by the PERB 	in Richmond, 	supra, 	PERB Decision No. 	99, 	in that
they 	impinge 	upon 	the 	content 	of 	the 	activity without 	reference
to the 	impact, 	if any, 	upon peaceful operations of 	the 	business
operations. 	Enforcement of 	such guidelines 	against 	the
activities of 	employee organizations 	under 	3519 (b) 	are 	a denial
of 	those rights and hence, 	a violation.
The 	Caltrans 	contends 	the Administrative 	Law Judge 	should
take 	official 	notice 	of 	the State Personnel Board's 	decision
relating 	to the discharge of Delsigne. 	This 	finding, 	if made,
would 	then 	counter 	the 	charge 	in 	the 	leaflet 	that 	they 	(the
state) 	"put 	together 	some 	chewing 	gum and 	bobby pins 	and 	fired
him". 	Even 	if one were 	to 	take 	judicial 	notice 	of 	the Board's
decision, 	however, 	such notice would 	not overcome 	the 	breadth
of 	freedom given 	employee organizations 	in 	their 	publications.
This 	single 	statement 	is mere 	hyperbole. 	As 	the 	foregoing
discussion has 	revealed, 	inaccuracies 	and 	exaggerations 	are 	not
rendered 	unprotected 	by 	the Act, 	see Pioneer 	Finishing
Corporation v. 	NLRB 	(1st Cir 	1981) 	No. 	81-1038 	F.2d 	,
33

it 	is 	only when 	the 	statements 	are made maliciously 	and 	are
untrue, 	or 	with 	reckless 	disregard 	for 	the 	truth 	or 	falsity.
Here, 	at 	the 	time 	the 	flyer 	was 	released, 	following Delsigne's
death, 	the SETC was of 	the opinion 	that Caltrans 	was wrong 	in
firing 	him. 	That 	the Administrative Law Judge 	and/or 	the 	State
Personnel Board 	felt 	differently, 	did 	not 	convert SETC's
characterization 	of 	"chewing 	gum and 	bobby pins" 	into an 	abject
false 	statement. 	It is unnecessary, 	therefore, 	to take
official 	notice 	of 	the 	State Personnel Board 	decision.
Caltrans 	argues 	that 	SETC maintained 	the 	flyer 	on 	the
bulletin 	board 	and 	that 	Reiter 	responded 	to Gianturco's 	letter
of December 	16 	knowing 	the 	position of 	the SPB. 	There 	is 	no
evidence, 	however, 	to 	show 	that Reiter 	had any 	knowledge of 	the
action 	of 	the 	State Personnel Board 	which 	was 	issued 	in
December 18, 1980.
Charging 	party 	has 	also 	alleged 	a 	violation 	of
section 3519(d). 	Under 	that section 	it is 	unlawful 	for 	the
State 	to dominate 	or 	interfere with 	the 	formation or
administration of 	any 	employee organizations, 	or 	contribute
financial or 	other 	support 	to 	it, 	or 	in any way 	encourage
employees 	to 	join 	any organization 	in preference 	to another.
Charging 	Party complains 	that 	the 	violation 	occurred 	in
that 	removal 	of 	the 	bulletin deprived 	the organization 	its
regular 	means 	of 	communicating with 	state 	workers. 	In State 	of
California, 	Department of Transportation, 	supra, PERB Decision
34

No. 	159b-S, 	it was held 	that denial of use of 	state mail
systems 	did 	not 	constitute 	domination 	or 	interference 	with 	the
formation or 	administration 	of 	any 	employee organization. 	In
this case, 	one 	flyer 	was 	removed 	from the 	bulletin board, 	and
this 	followed 	by 	two weeks 	the 	employer's 	demand 	for 	its
removal. 	If denial of 	use 	of 	the 	state mail 	system is 	not 	a
violation 	of 	3519 (d) 	then 	the 	removal of one 	flyer 	from a
bulletin 	board 	cannot 	constitute 	domination 	or 	interference.
The 	record 	in 	this 	case 	is 	further 	barren of 	any 	evidence 	that
the 	State 	encouraged 	employees 	to 	join one 	organization 	in
preference 	to another. 	Accordingly, 	the SETC has 	failed 	to
support 	its 	allegations 	that Caltrans 	violated 	section 3519 (d).
In 	summary, 	it 	is concluded 	that 	the State 	did violate
sections 3519 (a) 	and 	(b) 	but not 	subsection 3519 (d) 	by removing
the flyer on December 	29, 	1980.
REMEDY
Section 	3514.5 	empowers PERB 	to:
. 	. 	. 	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 rein-
statement 	of 	employees with or without back pay,
as will 	effectuate 	the policies 	of 	this 	chapter.
35

It 	has 	been 	found 	that 	the State, 	by 	removing 	the 	flyer
relating to Delsigne, 	violated sections 3519 (a) 	and 	(b). 	It
has 	been 	further 	found 	that 	the 	employer 	violated 	section
3519 (b) 	by enforcement of 	the Governor's Office guidelines 	and
Caltrans Policy and Procedures No. 	75-40. 	It will 	effectuate
the 	policies 	of 	SEERA 	to order 	the 	employer 	to cease 	and 	desist
from 	interfering 	with 	the 	rights 	of 	employees or 	of 	employee
organizations 	guaranteed 	by 	the 	SEERA.
SETC 	request 	that 	the 	employer 	be 	required 	to 	repost 	the
bulletin 	along with 	a notice 	that 	it 	violated 	the Act.
However, 	requiring Caltrans 	to post 	the 	flyer 	serves 	no 	useful
purpose 	at 	this 	time. 	Delsigne's 	unfortunate 	death 	has
occurred, 	now more 	than a year 	ago. 	Reviving SETC's
lamentation of 	his passing 	does 	nothing 	to 	further 	the 	policies
of 	the Act. 	SETC 	is no longer 	a 	competing 	employee
organization 	for 	exclusive 	representation.24 The
re-publication of 	the 	flyer 	will 	in no way 	benefit SETC at 	this
time. 	The 	request 	for 	reposting 	the 	flyer 	is 	therefore
denied. 	It 	has 	been 	found 	that SETC 	failed 	to 	support 	its
allegations of a section 3519 (d) 	violation, 	accordingly, 	that
part 	of 	the 	charge 	should 	be 	dismissed.
It 	is 	also appropriate 	that 	the State 	be 	required 	to post 	a
notice 	incorporating 	the 	terms of 	the order. 	The 	notice 	should
2 4 See 	the 	discussion 	on page 	13 	relating 	to 	the Motion 	to
Dismiss.
36

be 	subscribed 	by 	an authorized 	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].
The 	employer's Motion 	to Dismiss 	should 	be 	denied.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 3541.5, 	it 	is 	hereby ordered 	that 	the State 	of
California, 	Department 	of Transportation and 	its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Interfering with 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the State Employer Employee 	Relations Act,
37

2. 	Denying 	to 	the State Employee Trades Council, 	Local
1268, 	LIUNA, AFL-CIO, 	rights guaranteed 	by the State Employer
Employee 	Relations Act 	including 	the 	right 	to 	communicate 	to
its members.
3. 	Unreasonably 	denying 	by 	their 	written 	administrative
or 	other 	policies 	the 	right 	of 	employee organizations pursuant
to 	the 	SEERA 	to use 	bulletin 	boards 	for 	the 	purpose 	of
communicating 	with 	employees 	of Caltrans.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	STATE EMPLOYER EMPLOYEE
RELATIONS ACT:
1. 	Within 	five 	(5) 	workdays after 	the date 	of 	service 	of
a 	final decision 	in 	this matter, 	prepare and post copies of 	the
NOTICE TO EMPLOYEES 	attached 	as 	an appendix 	hereto, 	signed 	by 	a
authorized 	agent of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	at 	least 	thirty 	(30) 	workdays 	at 	all 	work
locations 	where 	notices 	to 	employees 	customarily 	are 	placed.
Such 	notice must 	not 	be 	reduced 	in 	size 	and 	reasonable 	steps
shall 	be 	taken 	to ensure 	that 	they are 	not defaced, 	altered 	or
covered 	by 	any material;
2. 	Within 	twenty 	(20) 	workdays 	from service 	of 	the 	final
decision herein, 	notify 	the Sacramento Regional Director 	of 	the
Public Employment Relations Board, 	in writing, 	of 	the 	steps 	the
employer 	has 	taken 	to 	comply with 	the 	terms 	of 	this ORDER.
Continue 	to report 	in writing 	to 	the 	regional director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
38
I

regional 	director 	shall 	be 	served 	concurrently 	on 	the 	charging
party 	herein.
C. 	The 	allegation 	that Caltrans 	violated 	section 	3519 (d) 	is
DISMISSED.
D. 	Caltran's Motion 	to Dismiss 	is DENIED
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final 	on 	March 	15, 	1982, 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions 	within 	twenty 	(20) 	calendar 	days
following 	the 	date 	of 	service 	of 	the decision. 	The 	statement
of 	exceptions 	and 	supporting 	brief must 	be 	actually 	received 	by
the Executive Assistant 	to 	the Board 	at 	the 	headquarters 	office
in Sacramento before 	the 	close 	of 	business 	(5:00 	p.m.)
on 	March 	15 	1982 	, 	in order 	to 	be 	timely 	f i l e d . 	(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 Board
itself. 	(See California Administrative Code, 	title 8, 	part
III, 	sections 32300 and 32305, 	as amended.)
Dated: 	February 22, 1982
Gary M. 	Gallery
Administrative Law Judge
39
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