State of California (Department of Personnel Administration, Mental Health, Developmental Services) (PERB 0542S)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATIONS WORKERS 	OF AMERICA,
PSYCH TECHS, 	LOCAL 11555,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENTS 	OF
PERSONNEL ADMINISTRATION, 	MENTAL
HEALTH, 	AND DEVELOPMENTAL SERVICES,
Respondent.
Case No. 	S-CE-261-S
PERB Decision No. 	542-S
December 13, 	1985
Appearances; 	Law Offices 	of 	Ronald 	Rosenberg by Ronald
Rosenberg, 	and Kanter, 	Williams, 	Merin & Dickstein by Howard L.
Dickstein 	for 	Communications Workers 	of America, 	Psych Techs,
Local 11555; 	Lester R. 	Jones 	for State of California, 	Department
of 	Personnel 	Administration.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case comes before 	the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on appeal 	by the
Communications Workers of America, 	Psych Techs, 	Local 11555 	(CWA
or 	Charging Party) 	of 	the partial 	dismissal of an unfair practice
charge 	filed 	against 	the 	State 	of 	California 	(Departments 	of
Personnel Administration, 	Mental Health, 	and Developmental
Services) 	(DPA).
We have 	reviewed 	the 	regional 	attorney's 	partial 	dismissal,
attached hereto, 	and modify his 	conclusions 	as 	detailed below.
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DISCUSSION
PERB Regulation 	326151 sets 	forth 	the 	required 	contents 	of
an 	unfair 	practice 	charge 	and obligates 	the 	charging party 	to,
inter 	alia, 	include 	in its 	charge 	a 	"clear 	and concise 	statement
of 	the 	facts 	and 	conduct 	alleged 	to 	constitute 	an unfair
practice." 	PERB Regulation 	32630 	authorizes 	dismissal 	and
refusal 	to 	issue 	a 	complaint 	"if 	the 	Board agent 	concludes 	that
the 	charge 	or 	the 	evidence 	is 	insufficient 	to establish a prima
facie case . 	. 	. 	."
Here, 	the gravamen of 	CWA's 	charge 	is 	that 	DPA unlawfully
gave 	support 	to 	the 	California Association of 	Psychiatric
Technicians 	(CAPT) 	and engaged 	in conduct 	that persuaded 	unit
employees 	to vote 	to decertify CWA. 	To support 	such a violation
of 	section 3519(d) 	of 	the 	State 	Employer-Employee Relations 	Act
(SEERA or 	Act),2 charging party need 	demonstrate 	only 	that 	the
employer 	failed 	to maintain strict 	neutrality. 	The 	threshold
test 	is 	whether 	the 	employer's 	conduct 	"tends 	to 	influence 	that
1PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et seq.
2 SEERA is 	codified at 	Government 	Code 	section 	3512 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the 	Government 	Code.
SEERA section 3519(d) 	makes 	it 	unlawful 	for 	the 	State to:
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.
22

choice or provide 	stimulus 	in one 	direction or 	another." 	Santa
Monica Community College District 	(1979) 	PERB Decision No. 	103.
And 	see 	Clovis 	Unified 	School 	District 	(1984) 	PERB Decision
No. 389.
In the 	instant case, 	the regional attorney seems 	to have
reviewed 	each numbered paragraph of 	the 	charge 	in 	isolation and
assessed 	each 	factual 	allegation contained 	in 	the 	charge 	as 	if
it were 	singularly being offered as 	evidence of a prima 	facie
violation. 	Accordingly, 	he 	found 	that memoranda detailing
"agreements" 	between 	CAPT and 	DPA and 	memoranda 	listing 	CAPT
"representatives" could not, 	without more, 	be considered unlawful
assistance 	to CAPT. 	We 	find 	such an analysis 	inappropriate.
It 	is 	CWA's 	claim that 	the employer's 	conduct 	"taken
together" 	lent 	assistance 	to CAPT and 	discriminated 	against
CWA. 	In 	the amended charge, 	the Charging Party set 	forth 	"the
following factual incidents 	. 	. 	. 	offered in support" of the
charge. 	Absent 	the 	fact 	that 	CWA numbered 	the paragraphs
setting 	forth the 	factual 	allegations, 	there 	is no basis 	to
interpret 	CWA's 	allegations 	in such a manner 	as 	to require each
paragraph 	or 	each document 	referred 	to 	therein 	to stand 	alone 	as
a prima 	facie case. 	Thus, 	while we agree with the regional
attorney's 	opinion 	that 	the 	specific 	documents 	identified 	in 	the
charge cannot, 	without more, 	be considered to show unlawful
assistance, 	CWA makes 	no such claim.
In our 	view, 	the critical 	inquiry 	is 	whether 	the 	factual
allegations 	set 	forth in the charge, 	if 	true, 	would lend support
33

to the 	legal 	theory that 	the 	Charging 	Party puts 	forth. 	Each
individual 	factual 	assertion need 	not 	stand 	alone 	as 	conduct
violative of 	the Act but, 	rather, 	the 	totality of circumstances
must be considered. 	Thus, 	in the 	instant case, 	the 	individual
factual 	allegations 	dismissed 	by 	the 	regional 	attorney must 	be
considered 	in 	light 	of 	those 	aspects 	of 	the 	charge 	upon which a
complaint 	issued 	and 	which 	the 	regional 	attorney 	found 	sufficient
to state a prima 	facie case.
The 	complaint 	refers 	to 	three documents 	alleged 	to have been
posted on various 	employee bulletin boards: 	(1) 	a 	February 26,
1985 	memo 	from the 	DPA senior 	labor 	relations 	officer, 	Ivonne
Ramos 	Richardson, 	which 	"recognized" 	CAPT as 	an employee
organization; 	(2) 	a March 5, 	1985 memo from Gary W. 	Scott, 	labor
relations 	specialist, 	Department of 	Developmental 	Services,
which set 	forth CAPT's access rights; 	and 	(3) 	a June 4, 	1985
memo 	from Denise P. 	Bates, 	personnel officer/labor relations
coordinator, 	Department of Mental Health, 	which announced the
removal 	of 	one 	CWA steward 	and 	identified 	seven 	employees 	as
CAPT stewards. 	In addition, 	the complaint refers 	to several
unilateral 	changes 	in CWA's 	access 	rights, 	CAPT's 	use of an
executive 	conference 	room, 	and a statement by an employer 	agent
expressing preference 	for 	CAPT.
Given 	that 	the 	regional 	attorney 	found a prima 	facie 	case 	of
unlawful 	support 	based on 	the 	"course of 	conduct" 	described 	in
all 	of 	the 	factual 	allegations 	of 	the 	complaint 	set 	forth above,
4

we 	are 	uncertain why the 	specific portions 	of 	CWA's 	charge at
issue here were dismissed. 	In our view, 	the dismissed
allegations 	are 	of 	the 	same general 	nature 	as 	those 	that 	were
included 	in the complaint. 	It, 	therefore, 	seems more appropriate
to view all 	of 	the documents 	together, 	with each capable of
lending 	support 	to 	the 	underlying 	claim.
Similar 	to 	the documentary allegations, 	CWA alleges 	that 	the
unit 	modification petition was 	also a part 	of an employer
campaign to 	influence unit members 	to support 	CAPT. 	However, 	the
regional 	attorney 	dismissed 	the 	unit 	modification 	allegation
because 	CWA 	failed 	to provide 	specific 	facts 	indicating when, 	how
and by whom 	DPA communicated 	to 	senior 	psych 	techs 	that 	they
would 	not 	receive 	salary parity with 	nurses 	unless 	they were
excluded 	from Unit 	18. 	In 	the appeal, 	CWA specifically responds
to 	the 	regional 	attorney's 	inquiry 	regarding promises 	of 	salary
parity and refers 	to employee declarations. 	In his 	summary of
the employee declarations, 	however, 	the regional attorney
maintains 	that 	CWA claims 	only that 	"unnamed 	members 	of
management 	told 	senior psych 	techs 	that 	they would get 	parity
with RN's 	if 	they were not 	in Unit 	18."
The 	employee 	declarations 	referred 	to 	above 	were 	not
attached 	to CWA's 	fourth amended charge, 	nor were 	they
heretofore made 	a part of 	the official 	case 	file.3 Thus, 	it
3Inasmuch 	as 	CWA's 	appeal 	includes 	numerous 	and specific
references 	to these declarations, 	we direct that, 	at 	this
juncture, 	they be attached 	to the 	charge 	and made part of 	the
official 	record.
5

was 	impossible 	for 	us 	to 	evaluate 	the declarations 	and 	reach our
own 	factual 	conclusions. 	Nevertheless, 	we do not 	find 	it 	fatal
to the 	charge 	that 	CWA's 	declarants 	failed to name 	the
managerial personnel. 	First, 	it bears 	emphasizing 	that 	CWA's
charge 	refers 	to 	the 	filing 	of 	the 	unit 	modification petition as
a 	factual 	incident 	in support of 	its 	charge. 	There 	is 	no
assertion that, 	standing alone, 	the unit modification request
constitutes 	a prima 	facie case. 	Moreover, 	at this 	stage of 	these
proceedings, 	CWA's 	declarations 	should be 	read as 	representations
that 	individuals 	can and will 	testify as 	to certain 	facts. 	At
any subsequent 	evidentiary proceeding, 	due process 	guarantees
will 	ensure 	that 	the 	employer 	be 	given an opportunity 	to 	fully
cross-examine witnesses 	called by CWA and, 	through 	its 	own
witnesses, 	to rebut 	the allegations 	surrounding 	its 	unit
modification effort. 	Further, 	we see no reason to refuse to
consider 	CWA's 	allegations 	that 	the 	very timing of 	the 	unit
modification petition, 	when viewed 	together with the 	employer's
other 	conduct, 	supports 	its 	allegation of 	illegal 	support 	for
CAPT.
In sum, 	we read CWA's 	charge as 	an allegation that 	DPA lent
unlawful 	support 	to CAPT. 	In support of 	that contention, 	it 	set
forth 	a 	number 	of 	factual 	contentions 	alleged 	to constitute 	an
unfair practice. 	Assuming 	that 	its 	factual 	allegations 	are
true 	(San Juan Unified School 	District 	(1977) 	EERB Decision
66

7
No. 	12),4 the question before 	the regional attorney should be
whether, 	taken together, 	the allegations 	support a prima 	facie
case 	that 	the 	employer's 	conduct 	violated section 	3519(d).
Viewed 	in 	this 	light, 	we believe 	that 	the pleading requirements
were 	satisfied. 	While we 	fully agree with the 	regional
attorney's 	conclusion that, 	standing alone, 	the specific 	factual
assertions 	are 	insufficient 	to demonstrate 	a prima 	facie 	case,
CWA makes 	no such contention. 	CWA may, 	therefore, 	proceed to an
evidentiary hearing on the 	complaint 	that 	issued and, 	to the
extent deemed 	relevant by the 	administrative 	law 	judge, 	it 	may
rely on 	the 	factual 	allegations 	discussed above 	to 	support 	its
burden of proof.
ORDER
The 	regional 	attorney's partial 	dismissal of 	CWA's 	charge 	is
REVERSED 	in accordance with the above discussion. 	It 	is hereby
ORDERED that 	those 	dismissed portions 	of 	the 	charge be
consolidated 	with 	the 	complaint.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
4 Prior to January 1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board or 	EERB.
7

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
August 6, 	1985
Howard 	Dickstein
Kanter, Williams,
Merin & Dickstein
1014 	9th Street
Sacramento. 	CA 	95814
Re: 	Communication Workers of America. 	Psych Techs. 	Local 	11555
v. 	State of California 	(Departments 	of Personnel
Administration. 	Mental Health, 	and Developmental 	Services)
Unfair Practice Charge No. 	S-CE-261-S. 	Fourth Amended
Charge
Dear Mr. Dickstein:
The 	above-referenced 	charge 	alleges 	that 	the 	State 	of
California. 	Departments of Personnel Administration. 	Mental
Health and Developmental 	Services 	(State) 	unilaterally changed
policies 	affecting 	employees 	exclusively 	represented 	by 	the
Communications Workers 	of America, 	Psych Techs Local 	11555
(CWA) 	and 	illegally assisted 	the California Association of
Psychiatric Technician 	(CAPT). 	This 	conduct 	is alleged to
violate sections 3519(a). 	(b). 	(c) and (d) of the State
Employer-Employee Relations Act 	(SEERA).
I 	indicated 	to you 	in my 	letter dated July 22. 	1985 	that
certain allegations 	contained 	in 	the 	third 	amended 	charge 	did
not 	state a 	prima 	facie case, 	and 	that unless you amended 	these
allegations 	to 	state a 	prima 	facie case, 	or withdrew them prior
to July 29, 	1985, 	they would be dismissed. 	More specifically,
I 	informed you 	that 	if 	there were any factual 	inaccuracies 	or
additional 	facts 	which would 	correct 	the 	deficiencies 	explained
in that 	letter, 	you 	should amend 	the charge accordingly.
On July 24, 	1985, 	Dennis Sullivan wrote to you and
Ronald Rosenberg, 	Esq.. 	clarifying the July 22 	letter 	and
extending the deadline for 	filing to July 31. 	1985. 	On
August 2. 	the 	fourth amended 	charge was 	filed 	along with a
Brief 	of 	CWA 	in Support 	of 	Issuance 	of 	Complaint 	and 	nine
declarations. 	The 	fourth amended 	charge 	contains 	the 	same
factual 	allegations 	as 	the 	third 	amended 	charge. 	The
information 	presented 	in 	the 	nine 	declarations 	can 	be
summarized as: 	(1) 	employee organization bulletin boards 	had
never 	before 	been used 	to 	post management 	memoranda,
(2) 	management 	memoranda 	described 	in 	the 	charge were 	posted 	on
employee 	organization bulletin 	boards 	at 	Camarillo 	and 	Napa

Howard 	Dickstein
August 6. 	1985
Page 2
State Hospitals, 	(3) 	the memoranda described 	in the unfair
practice 	charge 	gave 	employees 	the 	impression 	that 	the CAPT had
the 	"inside 	track" 	or 	could 	represent 	psychiatric 	technicians
better 	than CWA, 	(4) 	unnamed 	employees worried 	that open
support for CWA would result 	in employer 	retribution, 	(5) 	a
supervisor 	at 	Camarillo 	showed 	employees 	CAPT 	literature 	and
lists of CAPT stewards, 	and 	(6) 	unnamed members of management
told 	senior 	psychiatric 	technicians 	that 	they would 	get 	parity
with registered 	nurses 	if 	they were not 	in unit 	18.
Based 	on the 	information presented 	in the 	nine declarations,
the 	fourth amended 	charge, 	and all 	other 	information provided
by the Charging Party and Respondent, 	the 	following allegations
are 	dismissed 	based 	on the 	rational 	contained 	in 	the July 22
and 	24 	letters 	(attached as 	exhibits A and B respectively):
allegations 	1-4 with respect 	to 	all 	memoranda 	except 	the
February 	26 	letter 	from 	Ivonne Richardson and 	the March 	5
memorandum from Gary Scott;1 8, 	9, 	10, 	14, 	15 and 16.
Pursuant 	to 	Public 	Employment Relations 	Board 	regulation
section 32635 	(California Administrative Code, 	title 8,
part 	III), 	you may appeal 	the refusal 	to 	issue a complaint
(dismissal) 	to the Board 	itself.
Right 	to Appeal
You may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by
filing 	an appeal 	to 	the 	Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	dismissal 	(section
2635(a)). 	To be timely filed, 	the original and five 	(5) 	copies
of 	such appeal 	must 	be 	actually received 	by the Board 	itself
before the close of business 	(5:00 p.m.) 	on August 26, 	1985, 	or
sent 	by telegraph 	or 	certified United 	States mail 	postmarked
not 	later than August 26. 	1985 	(section 32135). 	The Board's
address is:
Public Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
1A 	complaint 	will 	issue 	concerning 	the 	allegation 	that
the February 	26 	and March 	5 	communications 	constituted
favoritism toward CAPT, 	however, 	the 	theory that 	these two
documents 	violate 	the SEERA because 	they grant 	access 	prior 	to
the 	existence 	of 	a 	question concerning representation 	(QCR) 	is
dismissed.

Howard 	Dickstein
August 6, 	1985
Page 3
If you file a timely appeal 	of 	the refusal 	to issue a
complaint, 	any other 	party may file with the Board 	an original
and 	five 	(5) 	copies 	of a 	statement 	in opposition within twenty
(20) 	calendar days following the date of 	service of 	the appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" 	upon all parties to the proceeding, 	and a 	"proof 	of
service" 	must 	accompany each copy of 	a document 	served upon a
party or 	filed with the Board 	itself 	(see 	section 	32140 	for 	the
required contents and a sample form). 	The document will be
considered 	properly 	"served" 	when 	personally delivered 	or
deposited 	in the 	first-class 	mail 	postage 	paid 	and 	properly
addressed.
Extension of Time
A request 	for 	an extension of 	time 	in which to 	file a 	document
with 	the Board 	itself 	must 	be 	in writing 	and 	filed with the
Board 	at 	the 	previously noted 	address. 	A request 	for 	an
extension must 	be filed 	at 	least 	three 	(3) 	calendar 	days 	before
the 	expiration of 	the 	time 	required 	for 	filing the 	document.
The request must 	indicate good cause for and. 	if 	known, 	the
position 	of 	each other party regarding the 	extension, 	and 	shall
be 	accompanied 	by proof 	of 	service 	of 	the 	request 	upon 	each
party (section 32132).
Final Date
If no appeal 	is 	filed within the 	specified 	time 	limits, 	the
dismissal will 	become 	final when 	the 	time 	limits 	have 	expired.
Very truly yours.
DENNIS M. 	SULLIVAN
General 	Counsel
By
ROBERT THOMPSON
Regional Attorney
cc: 	Ronald Rosenberg, 	Esq. 	(Express Mail)

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
July 22, 	1985
Howard 	Dickstein
Kanter, Williams,
Merin & 	Dickstein
1014 	9th 	Street
Sacramento, 	CA 	95814
Re: 	Communication Workers of America, 	Psych Techs, 	Local 	11555
v. 	State of California 	(Department 	of Personnel
Administration 	and 	Department 	of 	Developmental 	Services)
Unfair 	Practice Charge 	No. 	S-CE-261-S
Dear Mr. 	Dickstein:
The above-referenced charge 	alleges 	that 	the 	State 	of
California, 	Department of Personnel 	Administration and
Department 	of 	Developmental 	Services 	(State) 	illegally 	assisted
the California 	Association of 	Psychiatric 	Technician 	(CAPT).
This 	conduct 	is alleged to violate sections 	3519(a) 	and 	(d) 	of
the 	State 	Employer-Employee 	Relations 	Act 	(SEERA).
My 	investigation 	revealed 	the 	following 	facts. 	Communication
Workers of America, 	Psych Techs, 	Local 11555 	(CWA) 	is the
exclusive 	representative 	of 	bargaining 	unit 	18. 	CWA and 	the
State are parties 	to a memorandum of understanding 	(MOU) 	with
effective dates of July 1, 	1982 	through June 30, 	1985.
Allegation No. 1-4, 9
On February 26, 	1985, 	Ivonne Ramos Richardson, 	a senior 	labor
relations 	officer 	with 	the 	Department 	of 	Personnel
Administration 	(DPA) 	wrote 	to a CAPT 	representative 	indicating:
This 	is 	to 	formally notify you 	that 	the
Department 	of 	Personnel 	Administration 	has
recognized your 	organization, 	the California
Association 	of 	Psychiatric 	Technicians
(CAPT), as an employee organization under
section 3513(a) 	of SEERA.
The 	letter 	goes 	on 	to 	explain 	that 	an 	employee 	organization
making 	a 	decertification 	attempt 	is 	entitled 	to 	access 	during
non-work 	time 	and 	in non-work 	areas, 	distribution 	of 	literature
EXHIBIT A

Howard 	Dickstein
July 22, 	1985
Page 	2
during off-work periods 	and/or 	in places 	where 	employees
congregate 	and use of bulletin boards 	in 	conformance with
departmental policy. 	(Exhibit 	A to 	the 	original unfair
practice charge.) 	On March 5, 	1985, 	Gary Scott, 	a labor
relations 	specialist 	for 	the 	Department 	of 	Developmental
Services 	(DDS) 	sent a memo with a copy of 	the Richardson letter
attached 	to all 	labor 	relations 	coordinators 	regarding 	"the
recognition 	and 	access 	for 	CAPT." 	(Exhibit 	B to the original
unfair practice charge.) 	Charging 	Party alleges 	that 	this
Scott memorandum and/or 	its 	attachment 	were posted 	on 	several
employee bulletin boards 	at 	several hospitals 	throughout 	the
system. 	The 	State 	responds 	that posting was 	limited 	to Sonoma
and 	Porterville State Hospitals.
On March 	24, 	the CAPT 	filed a petition to decertify CWA. 	On
April 	26, 	the Public Employment Relations 	Board 	(PERB) 	issued a
determination 	certifying 	the 	petition's 	validity.
On May 3, 	1985, 	Mr. 	Scott 	issued a memorandum regarding access
and bulletin board 	space 	for 	CWA and 	CAPT to 	labor 	relations
coordinators. 	(Exhibit 	1.) 	Charging 	Party asserts 	that 	copies
of 	this 	memorandum were posted on 	employee bulletin boards 	at
Napa, 	Sonoma, 	and 	Porterville State Hospitals during 	the month
of May. 	On May 7 Nancy Irving, 	the 	labor 	relations 	coordinator
at 	Lanterman State Hospital, 	distributed 	a memorandum to 	the
executive policy group, 	program directors, 	chief, 	CPS, 	and unit
supervisors 	which designated 	a group of 	employees 	as 	CAPT's
representatives 	and outlined 	their 	access 	rights. 	CWA asserts
and 	the 	State 	denies 	that 	this 	memo was 	posted on 	employee
organization bulletin boards 	in the hospital. 	On May 29, 	Hal
Britt, 	the personnel officer at Fairview State Hospital, 	sent a
memorandum 	to 	the 	administrative/program directors 	and 	chief,
CPS, 	which outlined 	the access 	rights 	for both CWA and CAPT and
stated in part,
Until 	the 	conclusion 	of 	the 	PERB election
process, 	the department has 	agreed with the
CAPT to 	the 	following 	regarding 	access,
posting of materials, 	and 	the use of 	State
facilities:
This 	communication 	is nearly 	identical 	to 	the May 	3 	Scott
memorandum.
• 	. 	.

Howard 	Dickstein
July 22, 	1985
Page 3
Allegation No. 	6
During the 	spring of 	1985, 	just prior 	to a CAPT informational
meeting, a 	CWA 	job 	steward 	was 	told 	by 	a 	program director 	at
Stockton State Hospital, 	"I hope they beat 	the hell out of
you." 	This 	statement was made 	in 	front of other psychiatric
technicians.
Allegation No. 	8
On May 7, 	Mr. 	Friday 	issued a memorandum to Program Directors
and Unit 	Supervisors 	(not members of 	the bargaining unit) 	which
included a copy of 	the May 	3 	Scott memorandum. 	Friday's
memorandum 	describes 	the 	Scott 	communication 	as 	spelling 	out
". 	. 	.an agreement with the California Association of
Psychiatric Technicians 	(CAPT) 	regarding the 	following:
1. access, 	2. posting of materials, 	3. use of state
facilities." 	CWA states 	that 	these memoranda 	were posted 	on
the wall 	set 	aside 	for union 	information. 	On May 	23,
Richard Friday, 	the hospital 	administrator at Napa 	State
Hospital, 	distributed a memorandum to unknown 	recipients 	which
listed a group of 	employees 	designated as 	CAPT
representatives. 	Charging 	Party asserts 	that 	a member of 	the
bargaining 	unit 	observed 	this 	memorandum 	on clipboard 	used
specifically 	for 	management 	memoranda.
Allegation No. 	10
Charles Goetchius, 	a CWA organizer 	from 	Sonoma State Hospital,
states 	that he was 	told on June 	15 by Dan Sorrick, 	the
secretary-treasurer 	of 	CAPT and a psychiatric 	technician 	on
disability leave, 	that Mr. 	Sorrick had 	thrown another 	CWA
representative 	off of one of the hospital units. 	Mr. 	Sorrick
went 	on 	to 	say that he had heard 	from 	the hospital
administrator 	that 	Mr. 	Goetchius 	also had been asked 	to 	leave 	a
unit by a program director.
Allegation No. 	14
Article XII, 	section 6a of the MOU reads:
The 	State 	shall provide 	an aggregate 	of
300 days per year 	of unpaid 	leaves 	of
absence 	for 	purposes 	of 	attending 	CWA
conferences, conventions, schools, or job
steward 	training.
1 1
1 1

Howard 	Dickstein
July 22, 	1985
Page 	4
In March 	1985, 	the 	State 	released 	approximately 	75 	stewards 	for
three 	to 	five days 	each of 	training. 	On May 	23, 	CWA requested
the 	State 	release 	two 	employees 	from Napa 	State 	Hospital as
soon as 	possible but 	no 	later 	than June 	5 	up 	to 	and 	including
August 	31, 	1985. 	On May 	24, 	CWA requested the 	State 	release
two 	employees 	each 	from Napa 	State 	Hospital 	and 	Sonoma 	State
Hospital as 	soon as possible but 	no later 	than June 	5 	up to and
including August 	31, 	1985. 	On May 31, 	1985, 	CWA requested 	the
State 	release 	eighteen 	employees 	from 	seven 	different 	hospitals
as 	soon as possible but 	no 	later 	than June 	13 	to June 	30.
These 	requests 	were 	denied by 	the 	State.
Allegation No. 	15
Charging 	Party asserts 	that 	during 	the 	period 	1981 	through 	1984
CWA and 	the 	State 	adamantly disagreed 	over 	several 	issues
concerning unit 	18. 	In 1985, 	it 	is alleged that 	the 	State
established 	a 	management 	dominated 	employee 	organization 	at
Napa 	State 	Hospital, 	closed 	a ward 	at 	Porterville Hospital and
reassigned 	employees, 	claiming 	that 	CWA had 	agreed 	to 	the
actions 	and 	denied 	every grievance 	appealed 	to 	the 	fourth 	step
of 	the grievance procedure.
1 1
Allegation No. 	16
On March 	29, 	the 	State 	filed 	a unit 	modification petition
requesting 	supervisory 	status 	for 	the 	classification 	of 	senior
psychiatric 	technician. 	CWA 	filed 	an 	opposition 	to 	this
petition. 	On June 	17, 	the ballots 	in the unit 	18
decertification election were 	mailed 	to 	employees 	in 	the 	unit
including 	senior psychiatric 	technicians. 	On July 	1, 	the 	State
withdrew 	their 	unit 	modification petition. 	To be 	valid,
ballots 	must be 	returned 	to 	the 	Public 	Employment 	Relations
Board 	(PERB) 	by July 17.
Based on the 	facts 	stated above, 	allegations 	1 	through 4, 	one
section of 6, 	8, 	9, 	10, 	14, 	15, 	and 16 contained in this charge
fail 	to 	state 	a prima 	facie violation of 	the 	SEERA for 	the
reasons which 	follow.
Allegation No. 	1-4, 	9
Charging 	Party asserts 	that 	the 	February 	26 	letter 	from
Ivonne 	Richardson 	and 	the 	March 	5 memorandum 	from Gary 	Scott

Howard 	Dickstein
July 22, 	1985
Page 5
violate 	the 	SEERA in 	two ways.1 First, 	these documents 	show
that 	the 	State 	employer 	granted 	access 	to 	CAPT prior 	to 	the
existence of 	a question concerning 	representation 	(QCR), 	and
second, 	these 	writings were posted 	for 	unit 	members 	to 	read
which 	assisted 	CAPT by 	legitimizing 	its 	decertification 	effort
through 	the use 	of 	the words, 	"recognized" 	and 	"agreement."
First, 	although 	no express provision of SEERA provides 	for 	a
statutory 	right 	of 	access, 	the 	Public 	Employment 	Relations
Board 	(PERB) 	has 	determined that a 	right of 	access 	for 	employee
organizations 	is 	implicit 	in 	the 	purpose 	and 	intent 	of 	the
State of 	California, 	California 	Department of 	Corrections
(5/5/80) 	PERB Decision No. 	127-S. 	This 	right of access runs 	to
all 	employee 	organizations, 	not 	just 	the 	recognized 	employee
organization.
In University of California, 	Berkeley 	(1984) 	PERB Decision
No. 	420-H PERB held at page 	27 that:
Employee 	organizations 	possess 	access 	rights
irrespective of 	whether 	they 	are 	exclusive
representatives or, 	as 	in this 	case,
nonexclusive 	representatives. 	Since the
right of access 	is a statutory right, 	it
exists 	whether 	the 	employer 	and 	the 	employee
organization have 	a 	formal, 	informal, 	good,
bad, 	or 	no relationship at all.
Charging 	Party argues 	that 	there 	should be 	an 	exception 	to 	this
right 	of 	access 	which would prevent 	a 	potential 	challenger 	to
an 	incumbent 	employee organization 	from having 	any 	access 	until
a QCR has been 	established. 	This 	argument 	is based on cases
from 	the 	Federal 	Labor 	Relations 	Authority and 	its 	predecessor
Executive Order 	11491. 	(See Department of the Army, 	U.S. 	Army
Natick Laboratories, 	A/SLMR No. 	263 etc.) 	Close 	examination of
these 	cases 	show 	that this 	rule of 	law 	is based on the peculiar
language 	of 	Section I9(a)(3) 	of the Executive Order. 	This
section has been 	read 	to mean 	that 	the 	employer may 	furnish
access 	only 	to 	employee organizations 	which have 	equivalent
status 	with 	the 	incumbent 	organization.
1The 	other 	memoranda 	(May 	3rd Gary 	Scott, 	May 	29th
Hal 	Britt, 	and May 	7 Nancy 	Irving) 	are alleged 	to violate 	the
SEERA only under 	the 	second 	theory.

Howard 	Dickstein
July 22, 	1985
Page 6
There 	is 	no 	language 	in 	the 	SEERA which 	is parallel 	to 	section
19(a)(3) 	of 	the 	Executive 	Order 	and 	these 	rulings 	appear 	to run
contrary 	to 	the purpose 	of 	SEERA as 	expressed 	in 	section 	3512.
To 	deny 	competing 	employee 	organizations 	access 	would 	seemingly
result 	in allowing 	the public 	and 	organizations 	such 	as 	the
United Way greater 	access 	rights 	than 	these 	employee
organizations. 	Such a finding has 	no basis 	in 	SEERA. 	Thus,
the 	employer's providing of 	access 	to CAPT 	in 	this 	case 	does
not 	state 	a prima 	facie violation 	of 	the 	SEERA.
Charging 	Party's 	second 	contention 	focuses 	on 	the 	employee's
notifying 	employees 	of 	the 	Richardson 	and 	Scott 	documents 	and
their 	use of 	the 	terms 	"recognized" 	and 	"agreement."
Section 	3515.5 	of 	the 	SEERA reads 	in pertinent 	part:
Employee 	organizations 	shall have 	the 	right
to 	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 	recognized
employee 	organization 	is 	the only
organization 	that 	may 	represent 	that 	unit 	in
employment 	relations 	with 	the 	State. 	N	
2
Charging 	Party argues 	that 	the 	February 	26 	letter 	from
Ivonne 	Richardson 	and 	the 	March 	5 	memorandum 	from Gary 	Scott
2Section 	3513 	of 	the 	SEERA reads:
As used 	in this 	chapter:
(a) 	"Employee organization" means any
organization which 	includes 	employees 	of 	the
State 	and which has 	as one of 	its primary
purposes 	representing 	those 	employees 	in
their 	relations 	with 	the 	State.
(b) 	"Recognized employee organization" 	means
an 	employee 	organization which has been
recognized by the 	State 	as 	the 	exclusive
representative of the 	employees 	in an
appropriate unit.

Howard 	Dickstein
July 22, 	1985
Page 	7
state 	that 	CAPT 	is 	the 	"recognized 	employee organization" 	under
SEERA. 	These 	letters do 	not 	state 	that 	CAPT 	is 	the 	"recognized
employee organization" 	but 	rather 	that 	CAPT 	is 	recognized 	as
"an 	employee 	organization." 	Although 	the 	Charging 	Party was
requested 	to provide 	information 	demonstrating 	that 	the 	State
had 	treated 	CAPT as 	the 	recognized 	employee 	organization 	(the
exclusive 	representative) 	of Unit 	18 employees, 	no 	information
has been provided 	to 	date.
In 	a 	similar vein, 	Charging 	Party argues 	that 	various 	memoranda
posted 	in the 	State hospitals 	mention 	that 	the 	State had
reached 	agreement 	with 	CAPT concerning 	access 	for 	CAPT
representatives 	and 	that 	this 	converts 	CAPT 	into 	the 	exclusive
representative. 	Again, 	the use of the terms 	"agreement" 	and
"CAPT 	representative" 	do 	not 	confer 	exclusive 	representative
status on the CAPT. 	Without more, 	the communications 	Which
contain 	these 	terms 	cannot be 	considered 	unlawful 	assistant 	to
CAPT.
These 	communications 	also 	appear 	to be 	covered by 	the
employer's 	right of 	free 	speech 	and 	this 	would 	not 	violate 	the
SEERA. 	Although 	PERB has 	not 	decided 	a 	"free 	speech" 	case
under 	SEERA, 	it 	is 	reasonable 	to apply 	PERB case 	law decided
under 	similar 	acts, 	the 	Educational 	Employment 	Relations 	Act
(EERA) 	and 	the Higher Education Employment 	Relations 	Act
(HEERA). 	In a series of cases, 	PERB concluded that, 	despite
the 	fact 	that 	the 	EERA does 	not 	contain 	specific 	language
guaranteeing 	employer 	free 	speech, 	a 	free 	speech 	right 	is
implied 	in 	the 	language 	and 	purpose of 	the Act. 	Rio Hondo
Community College District 	(5/19/80), 	PERB Decision No. 	l"2~8;
Antelope 	Community College District 	(7/18/79), 	PERB Decision
No. 	97? Muroc Unified School District 	(12/15/78), 	PERB Decision
No. 	80. 	In Rio Hondo, 	PERB held that under the EERA, 	an
employer's 	speech which contains 	a 	threat of 	reprisal or 	force
or 	promise 	of benefit will constitute 	a violation of the Act.
This 	standard of 	free 	speech 	is 	not 	affected by 	the presence 	of
a 	competing 	employee 	organization 	or 	the 	existence 	of a
question 	concerning 	representation. 	Santa 	Monica 	Unified
School 	District 	and 	Santa 	Monica Community College 	District
(1978_ PERB Decision No. 	52; 	Raley's v. 	NLRB 	(1983) 	CA 9) 	112
LRRM 3376; 	NLRB v. 	Corning Glass Works 	(1953) 	CA 1) 	32 LRRM
2136; 	Plymouth Shoe Company 	(1970) 	182 NLRB 1; 	Alley
Construction Company 	(1974) 	210 NLRB 999. 	The 	statements 	in
•

Howard 	Dickstein
July 22, 	1985
Page 	8
the 	memoranda 	covered by these 	allegations 	do 	not 	contain 	a
threat of 	reprisal 	or 	force 	or promise of benefit.
Accordingly, 	no complaint 	may 	issue 	on 	the 	allegation 	that
these 	memoranda 	through 	their 	terms 	assisted 	CAPT 	in 	violation
of 	SEERA section 35l9(d).
Allegation No» 	6
Charging 	Party apparently 	argues 	that 	the 	statement by 	a
program director 	at 	Stockton 	State 	Hospital, 	"I hope 	they beat
the hell 	out 	of you," 	to a CWA job 	steward 	constitutes 	a
violation of 	the 	SEERA. 	With 	respect 	to 	this 	statement, 	there
is 	a 	significant question of employer 	free 	speech.
As discussed above, 	an employer's 	speech 	will 	not violate 	the
SEERA unless 	it 	constitutes 	a 	threat 	of 	reprisal or 	force 	or
promise of benefit. 	Absent 	such a 	threat, 	even speech which 	is
highly 	critical of 	a particular 	union 	will 	not 	constitute 	a
violation. 	In 	SUPA v. 	Regents of 	the University of 	California
(12/16/83), 	PER-B Decision No. 	366-H, 	the PERB held that 	the
University did 	not 	commit 	an 	unfair practice 	even 	though 	its
supervisor 	told bargaining 	unit 	employees 	that 	collective
bargaining 	was 	a 	"sham", 	that he did 	not 	like 	the 	"adversary
climate" 	which 	collective 	bargaining 	created, 	and 	that 	SUPA was
a 	"sour 	union." 	The 	PERB held 	these 	statements 	to be
permissible 	expressions 	of 	opinion because 	they 	did 	not 	contain
any threats of 	reprisal or promise of benefits.
Similarly, 	in 	the private 	sector, 	the National Labor Relations
Board has dismissed 	charges 	where 	it 	was 	alleged 	that, 	during
contract 	negotiations 	a 	supervisor 	told an employee, 	"You
should 	see the demands 	that the union 	is asking 	. 	. 	. 	they are
ridiculous; 	just 	like the bozos who want 	the union." 	Gorman
Machine Corporation 	(7/21/81) 	251 NLRB No. 	10. 	The Board"
reasoned 	that 	the 	supervisor's 	statements 	depicting 	union
adherents 	as 	"bozos" 	and 	illiterates were merely expressions 	of
his 	personal 	opinion which 	could 	not 	reasonably 	tend 	to
threaten or 	coerce 	any employee 	in violation of his 	rights. 	In
the 	present 	case 	the program director's 	statement 	does 	not 	on
its 	face 	carry 	any threat of 	force 	or promise of benefit.
Without 	more, 	it 	can be 	read only as 	a 	statement of his
personal opinion.
While 	facially non-coercive 	speech, 	such as 	the 	supervisor's
statement, 	does 	not 	constitute a prima 	facie violation of 	the
SEERA, 	such 	speech may constitute 	a violation when considered

Howard 	Dickstein
July 22, 	1985
Page 9
as 	part 	of a 	total course 	of 	conduct 	aimed 	at 	interfering with
guaranteed 	rights. 	Antelope Valley Community 	College 	District,
supra; 	Virginia Electric 	and 	Power 	Company 	(1941) 	314 US 	459
[19 LRRM 4051]. 	However, 	there are no facts 	in the charge nor
were 	any 	discovered 	during 	the 	investigation 	which 	would
indicate 	that 	the 	supervisor's 	statement 	is 	anything 	more 	than
an 	isolated 	expression 	of his 	views.
Allegation No. 	8
This 	allegation 	concerns 	two 	memoranda 	issued 	by 	a hospital
administrator 	at 	Napa 	State 	Hospital. 	CWA asserts 	that 	these
memoranda used 	the 	"CAPT representatives" 	and 	"agreement" 	as
well 	as 	including a 	copy of 	the May 	3 	Scott memorandum. 	As
discussed above, 	the use 	of 	these 	words 	in 	insufficient 	in and
of 	themselves 	to demonstrate a violation of 	section 	3519(d).
In addition, 	as 	outlined above, 	the 	States 	providing access
described 	in 	the 	Scott 	memorandum 	does 	not 	transgressed 	the
SEERA.
Allegation No. 	10
CWA argues 	that 	the 	information provided 	in 	this 	allegation
demonstrates 	that 	the 	Sonoma 	State 	Hospital 	and 	CAPT are 	in
collusion. 	However, 	a 	close 	examination of the 	information
provided 	indicates basically 	two facts, 	(1) 	that a CAPT
representative, 	Mr. 	Sorrick, 	had obtained 	information 	from 	the
hospital 	administration 	concerning 	an 	incident 	in 	which 	a 	CWA
rep had been 	asked by 	administrator 	to 	leave 	a hospital 	unit,
and 	(2) 	that Mr. 	Sorrick had asked a different 	CWA
representative 	to 	leave 	a hospital unit. 	With 	respect 	to 	the
first fact, 	the 	information obtained by Mr. 	Sorrick 	is 	not of a
confidential nature, 	and without more, 	does not 	indicate 	that
the hospital 	administration was 	in collusion with CAPT.
Second, 	nothing 	indicates 	that Mr. 	Sorrick was 	acting on behalf
of 	the 	employer. 	Without 	a 	showing 	of 	agency 	the 	employer
cannot be held 	responsible 	for 	the 	actions 	of 	an 	employee
organization 	representative. 	Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97. 	In either case, 	there 	is
no 	information 	which 	demonstrates 	that 	the 	CWA organizer 	was
removed 	from 	the hospital unit 	when he had a 	legal 	right 	to be
there. 	Thus, 	this allegation fails 	to demonstrate 	that the
Respondent has 	favored CAPT 	in any way.

Howard 	Dickstein
July 22, 	1985
Page 	10
Allegation 	No> 	14
The 	thrust 	of 	this 	allegation 	is 	that 	the 	State has 	failed 	to
comply with Article 	12, 	section 	6a of 	the MOU. 	However, 	the
facts 	provided 	by 	the 	Charging 	Party merely 	states 	that 	the
Respondent has 	denied 	three 	requests 	for 	unpaid 	leave 	affecting
29 employees. 	There 	is no 	indication 	that 	the State has 	failed
to provide 	the 	aggregate of 	300 days 	per year of 	unpaid 	leave
of absence 	as 	required by the MOU. 	Thus, 	it 	is 	unclear at 	this
point 	whether 	the 	State has 	refused 	to provide a portion of 	the
300 days 	required by the MOU. 	Without 	this 	information, 	no
prima 	facie 	violation of 	the 	SEERA 	is 	described.
Allegation No. 	15
The gravamen of 	this 	allegation 	is 	that 	the Respondent has
assisted 	CAPT by 	refusing 	to honor 	the 	grievance 	and
arbitration procedure of the MOU 	since January 1, 	1985.
Although 	the 	Charging 	Party has 	presented 	allegations 	that 	the
State 	and 	CWA have 	adamantly 	disagreed 	over 	several
employment-related 	issues over 	the 	last 	several years, 	there
are 	no 	facts 	that 	demonstrate 	that 	the 	Respondent has 	failed 	to
honor 	the grievance procedure of 	the 	MOU. 	The 	only 	statement
related 	to grievances 	is 	that 	the 	State has 	denied 	every
grievance which has been appealed 	to 	the 	fourth 	step of 	the
grievance procedure. 	However, 	the denial of a grievance at 	a
particular 	step of 	the grievance procedure 	does 	not 	equate 	with
a 	refusal to honor 	the grievance procedure. 	Thus, 	there 	are
insufficient 	facts 	to support a 	finding of 	a prima 	facie 	case
with 	respect 	to 	this 	allegation.
Allegation No. 	16
Charging 	Party asserts 	that 	the 	State has 	given assistance 	to
the 	CAPT by 	the 	filing 	and 	then 	the withdrawing of 	a 	unit
modification petition. 	The key to CWA's 	argument 	is 	the
allegation 	that 	the 	State 	informed 	senior psychiatric
technicians 	that 	they would not 	receive 	salary parity with
registered 	nurses as long as 	they were 	in Unit 	18. 	However,
the Charging 	Party has 	failed 	to provide 	specific 	facts 	which
indicate when, 	how, 	and by whom this 	information was
communicated 	to 	senior psychiatric 	technicians. 	Without 	this,
only two facts 	remain, 	(1) 	the employer 	filed a unit
modification petition 	for 	senior psychiatric 	technicians, 	and
(2) 	the employer withdrew 	its unit modification petition.
These 	facts 	alone are 	insufficient 	to 	state 	a prima 	facie
violation of 	the 	SEERA.

Howard 	Dickstein
July 22, 	1985
Page 	11
For 	these 	reasons, 	allegations 	numbered 	1 through 4, 	one
section of 6, 	8, 	9, 	10, 	14, 	15, 	and 16 contained in charge
number 	S-CE-261-S, 	as presently written, 	do not 	state 	a prima
facie 	case. 	If you 	feel 	that 	there are any factual
inaccuracies 	in 	this 	letter 	or 	any additional 	facts which would
correct 	the 	deficiencies 	explained above, 	please 	amend 	the
charge 	accordingly. 	The 	amended 	charge 	should be 	prepared 	on 	a
standard 	PERB unfair 	practice 	charge 	form 	clearly 	labeled 	First
Amended Charge, 	contain all 	the 	facts 	and 	allegations 	you wish
to make, 	and be 	signed 	unde	- 	r penalty of perjury by 	the 	charging
party. 	The 	amended 	charge 	must be 	served 	on 	the 	respondent 	and
the 	original proof of 	service must be 	filed with 	PERB. 	If 	I do
not 	receive 	an 	amended 	charge 	or 	withdrawal 	from you before
July 29, 	1985, 	I 	shall dismiss 	these allegations 	from your
charge. 	If you have 	any questions 	on how 	to proceed, 	please
call me at 	(916) 	322-3198.
Sincerely yours,
Robert 	Thompson
Regional 	Attorney
cc: 	Ron 	Rosenberg 	(Express 	Mail)

State 	of 	California 	EXHIBIT 	I Department of Developmental Sproles
Maiporandum1~1-1, ipor and um M e m o r a n d u m
To 	LABOR 	RELATIONS 	COORDINATORS 	MAY 7 1985
SONOMA 	SUBJECT: 	Access and Bulletin
IISTATE HOSPITAL Board Space for CWA 	For CHA
and CAPT
1985
From 	: 	Gary 	W. 	Scott
Labor Relations Specialist
Labor Relations Branch
As you may be aware, an election will be conducted by the Public Employee
Relations Board (PERB) for the right to represent employees in BargainingUnit
18, 	The enployee organizations that will appear on th•e ballot are t h e ,
Communication Workers of America (CWA) 	and the California Association of
Psychiatric Technicians (CAPT). Hospitals should expect a significant increase
in organizing activity by both enployee organizations during the campaign
period from now until mid July 1985.
The Unit 18 MOU, Article XII, contains provisions on access, distribution of
literature, use of State facilities and bulletin boards. 	These contractual
rights are not effected by the PERB election process and provides CWA the
means to gain access to the unit break rooms, post Oft materials and the use
of enployee organization rooms.
Until the conclusion of the PERB election process, the Department has agreed
with the CAPT to the following regarding access, posting of materials and the
use of State facilities:
1) 	Representatives of the CAPT may be granted access to non-work areas
such as the enployee cafeteria(s), enployee organization room(s) and
other non-work areas outside the living units;
2) 	Representatives of CAPT may be granted the use of employee
organization bulletin boards outside the living units for posting of
materials;
3) 	Hospital employees representing the CAPT may be granted access to the
employee break room in the living units. 	One or more (equal to the
number of program in the hospital) employees nay be designated by the
CAPT to be privileged with such access. 	CAPT will submit a written
verification of their designation(s) 	to the Hospital Labor Relations
Coordinators. 	Persons so designated must be employees of that
hospital, 	Changes shall be kept to a minimum.
a) 	Notice of the intent to exercise access 	privileges 	to unit
break rooms must be provided to the appropriate Program Director
at least twenty-four 	(24) 	and not more than seventy-two (72)
hours in advance.
b) 	Neither the designated enployee representative nor the enployee
to whom literature is being distributed may be on work time.

-2-
c) 	Except for the enployee ocean rooms, 	the distribution or display
of all employee organization literature is prohibited in all
living units.
d) 	Copies of fell employee organization literature to be distributed
or posted in the enployee break room will be provided to the
Hospital Labor Relations Coordinator in advance.
4) 	No access will be permitted during the nocturnal shifts; 	and,
5) 	Space for posting CAPT materials will be provided in living unit break
rooms and other areas outside the resident living units where such,
employee organization material is normally posted.
Access for both employee organizations should not be unreasonably denied";
however, access may be deferred for reasons related to client care, privacy,
safety, security or other necessary business reasons.
This memorandum should be provided to all Program managers and Unit
Supervisors. 	Managers and supervisors are reminded to maintain absolute
neutrality in such an election process.
Should you have any questions regarding 	this matter, 	you may contact me a
'(916) 323-7777; (ATSS) 473-7777.
cc: Jim Moore
Ivonne Richardson

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3088
July 	24, 	1985
Ronald 	Rosenberg. 	Esq.
Lav Offices 	of 	Ronald 	Rosenberg
1730 K Street. 	N.W.. 	Suite 	1004
Washington, 	D. 	C. 	20006
Re: 	Communication Workers 	of American. 	Psych Techs. 	Local 	11555
v. 	State 	of 	California 	(Department 	of 	Personnel
Administration 	and 	Department 	of 	Developmental 	Services)
Unfair 	Practice Charge No. 	S-CE-261-S
Dear Mr. 	Rosenberg:
Pursuant 	to our 	telephone conversations 	of July 23. 	I 	am
writing 	to 	clarify Bob Thompson's 	July 	22 	letter 	. 	more
specifically 	the 	section 	regarding allegations Nos. 	1-4, 	and 	9
on 	pages 	6-8.
It 	is 	our 	understanding 	that 	Charging 	Party argues 	that 	the
February 	26 	Ivonne 	Richardson 	letter, 	the March 	5 	Gary 	Scott
memorandum 	and 	the 	other 	memoranda 	allegedly 	posted 	in 	the
State 	hospitals 	demonstrate 	favoritism 	by 	the 	State 	employer
toward 	CAPT. 	You 	assert 	that 	these 	memoranda 	violate 	SEERA
section 	3519(d) 	because 	they 	tend 	to 	influence 	an 	employee's
choice 	between CAPT and 	CWA and/or 	provide 	stimulus 	in 	the
direction 	of 	CAPT. 	Santa 	Monica 	Community 	College 	District
(1979) 	PERB Decision No. 	103; 	Clovis 	Unified 	School 	District
(1984) 	PERB Decision No. 	389. 	This 	argument 	is 	based 	primarily
on 	the 	language 	of 	the 	memoranda 	which used 	the 	terms
"recognized," 	"employee 	organization." 	"agreement," 	and 	"CAPT
representative." 	However, 	a 	fair 	and 	impartial 	reading 	of
these 	documents 	does 	not 	support 	the 	argument 	that 	they 	tend 	to
influence 	an 	employee's 	vote 	in 	favor 	of 	CAPT.
February 26. 	1985 	- 	Ivonne Richardson Letter
This 	letter 	(Exhibit A 	to 	the 	original 	unfair 	practice 	charge)
was 	written 	in 	response 	to 	an 	inquiry 	from a 	CAPT 	advisor.
Kenneth Murch. 	It 	notifies 	CAPT 	that 	they 	have 	been 	recognized
as 	an 	employee 	organization under 	section 	3513(a) 	of 	SEERA.
This 	section 	of 	SEERA 	solely 	defines 	an 	employee 	organization
as 	opposed 	to 	section 	3513(b) 	which 	defines 	a 	"recognized
employee 	organization" 	as 	an 	exclusive 	representative 	of
EXHIBIT B

Ronald 	Rosenberg, 	Esq.
July 24. 	1985
Page 	2
employees. 	The 	Richardson 	letter 	also 	recites 	language
contained 	in Mr. 	Murch's 	initial 	inquiry and 	concludes 	with a
description of 	the 	organization's 	access 	rights. 	This
discussion 	is 	framed 	in 	the 	context 	that 	CAPT 	is 	accorded 	the
same 	access 	rights 	as 	"any employee 	organization making 	a
decertification 	attempt." 	There 	is 	nothing 	in 	either 	the
language 	or 	tone 	of 	this 	letter 	which 	indicates 	that 	the 	State
is 	supporting CAPT, 	granting CAPT any preferential 	rights, 	or
placing 	the 	imprimatur 	of 	the 	State 	on CAPT.
March 	5, 	1985 	- 	Memorandum 	from Gary 	Scott 	to 	Labor 	Relations
Coordinators
This 	memorandum was written 	to 	serve 	as 	a 	cover 	document 	for
the 	Richardson 	letter. 	(Exhibit 	B 	to 	the 	original 	unfair
practice 	charge.) 	As 	such, 	it 	repeats 	the 	statements 	of 	the
Richardson 	letter 	recognizing 	CAPT 	as 	an 	employee 	organization
under 	SEERA, 	identifying CAPT 	as 	an 	organization 	formed 	to
represent 	the 	interests 	of 	psych 	techs 	currently 	engaged 	in 	a
decertification 	campaign 	against 	CWA 	and 	briefly 	repeats 	the
access 	rights 	afforded 	to 	CAPT. 	Essentially 	this 	memorandum
merely 	repeats 	the 	information 	previously 	provided 	in 	the
Richardson 	letter. 	Accordingly, 	there 	is 	nothing 	in this
memorandum which would 	give 	employees 	the 	impression 	that 	the
State 	favored 	CAPT.
May 	3. 	1985 	- 	Scott Memorandum 	to 	Labor 	Relations 	Coordinators
This 	memorandum 	issued 	following 	the 	establishment 	of 	a
question 	concerning 	representation 	by 	PERB 	and 	states 	that 	a
decertification 	election will 	take 	place 	between 	CWA 	and 	CAPT.
It 	then 	reviews 	CWA's 	access 	provisions 	contained 	in Article 	12
of 	the memorandum 	of 	understanding, 	states 	that 	these 	rights
are 	not 	affected 	by 	the 	PERB 	election 	process, 	and 	reviews 	the
access 	rights 	of 	CAPT 	representatives 	and 	employees
representing 	CAPT. 	Finally 	it 	states 	that 	access 	for 	both
employee 	organizations 	should 	not 	be 	unreasonably 	denied 	but
may 	be deferred 	for 	appropriate 	reasons. 	In 	closing, 	it
cautions 	that 	"managers 	and 	supervisors 	are 	reminded 	to
maintain 	absolute 	neutrality 	in 	such 	an 	election 	process."
Even 	in 	a 	light 	most 	favorable 	to 	Charging 	Party, 	this
memorandum 	cannot 	be 	read 	fairly 	to 	reflect 	an 	attempt 	by 	the
State 	to 	influence 	the 	employee's 	choice 	in 	favor 	of 	CAPT.
This 	memorandum 	serves 	basically 	to 	provide 	information 	that 	a

Ronald 	Rosenberg. 	Esq.
July 24. 	1985
Page 3
decertification 	election 	campaign 	would 	be 	conducted 	in 	the
hospitals, 	that 	each 	organization 	had 	access 	rights 	during 	this
campaign, 	and 	that 	the 	supervisory 	and 	managerial 	employees 	of
the 	State were 	to 	maintain 	strict 	neutrality during 	this
campaign. 	The wording 	of 	this 	document 	is 	insufficient 	to
support 	the 	finding 	of 	a 	prima 	facie 	violation 	of 	SEERA
section 3519(d).
As 	discussed 	on 	the 	phone 	and 	briefly 	reviewed 	above, 	the
general 	weaknesses 	of 	these 	allegations 	we 	were 	attempting 	to
point 	out 	relate 	primarily 	to 	the 	fact 	that 	each 	of 	the 	posted
communications, 	read 	in 	its 	entirety, 	seems 	to 	grant 	CAPT
nothing more 	than 	the 	access 	to which 	it 	is 	entitled 	under 	the
PERB 	case 	law discussed 	in Bob Thompson's 	letter. 	CWA has 	not
alleged 	that 	it 	is 	unusual 	for 	a wide variety of 	communications
to 	be 	posted 	on 	the 	various 	bulletin 	boards 	subject 	to 	view by
Unit 	18 	employees. 	Nor. 	as 	Bob 	indicates, 	has 	CWA alleged 	that
the 	state 	employer 	has 	acted 	toward 	CAPT 	in 	a 	manner 	consistent
with 	the 	interpretation 	of 	the 	communications 	and 	their 	posting
that 	CWA urges. 	It 	has 	not 	been demonstrated 	that 	the 	state
employer 	has 	negotiated with CAPT with 	respect 	to 	wages, 	hours
or working 	conditions 	of Unit 	18 	employees, 	nor 	allowed 	CAPT
designees 	to 	represent 	Unit 	18 	employees 	in grievance 	or
arbitration matters. 	Hence, 	given 	the 	overall 	context 	of 	the
communications 	in which words 	such 	as 	"recognized"
"representatives" 	and 	"agreement" 	were used 	and 	the 	lack 	of
other 	action 	by 	the 	state 	employer 	which 	might 	lend 	credence 	to
CWA's 	interpretation, 	we 	question 	whether 	Unit 	18 	employees
were 	misled 	by 	the 	communications 	into 	believing 	either 	that
CAPT had 	achieved 	a 	status 	to which 	it was 	not 	entitled 	or 	that
the 	state 	employer 	was 	urging 	them 	to 	support 	CAPT 	by 	implying
that 	their 	terms 	and 	conditions 	of 	employment 	would 	improve 	if
CWA 	were 	decertified.
A further 	consideration, 	as 	Bob Thompson 	indicates, 	is 	the
employer's 	right 	of 	free 	speech. 	Assuming 	that 	Unit 	18
employees 	are 	discriminating 	enough 	to 	recognize 	that 	CWA 	has
not 	been 	replaced 	by 	CAPT as 	the 	exclusive 	representative, 	the
state 	employer's 	actions 	in 	drafting 	and 	posting 	the 	various
communications 	in 	issue 	might 	still 	raise 	the 	implication 	that
the 	state 	favors 	CAPT 	over 	CWA. 	The Board, 	in 	dealing with
speech, 	as 	opposed 	to 	other 	forms 	of 	employer 	conduct 	alleged
as 	a 	basis 	for 	finding 	a 	violation, 	has 	stated 	that 	speech 	does
not 	constitute 	a 	violation, 	regardless 	of 	the 	existence 	of 	a
question 	concerning 	representation, 	unless 	it 	contains 	a 	threat
'•
•

Ronald 	Rosenberg
July 24. 	1985
Page 	4
of 	reprisal 	or 	force of 	promise 	of 	benefit. 	Santa Monic a
Unified 	School 	District 	and 	Santa 	Monica 	Community 	Colleg e
District 	(1978) PERB Decision No. 	52 .
Both Santa Monica 	Community College District, 	supra, 	and 	Clovis
Unified 	School District, 	supra, 	on which you rely, 	identify
employer 	"speech" 	as 	part 	of 	the 	totality of 	circumstances 	to
be 	considered 	in evaluating 	an unlawful 	assistance 	charge. 	In
those 	cases, 	the 	employer 	"speech" 	attributed 	the 	benefit 	or
detriment of other, 	unlawful, 	employer 	conduct to an employee
organization, 	thus, 	tending to encourage or discourage employee
support. 	None of 	the memoranda 	in this 	case do 	that. 	Further,
it 	has 	not 	been demonstrated 	that 	CAPT 	is 	other 	than 	an
independent 	employee 	organization 	established 	for 	the 	purpose
of 	representing Psych Techs 	in dealings with 	their 	employer .
Assuming the 	accuracy of 	statements 	to 	that 	effect, 	the 	letter
and 	memoranda 	indicate 	no 	employer 	preference 	of 	CAPT 	over
CWA. 	Hence, 	unless there 	is 	something unusual 	about 	the 	extent
or manner of posting of 	the 	communications 	in 	issue, 	they do
not 	seem to 	constitute 	evidence 	of 	unlawful 	employer 	assistance .
I 	hope 	this will 	clarify any 	possible misunderstandings 	you 	may
have 	had 	concerning 	the 	rationale 	contained 	in 	our 	July 	22
letter 	regarding this 	aspect 	of your 	charge. 	In order 	that you
might 	have 	sufficient 	time 	to 	prepare 	and 	file 	an 	amended
charge 	in this 	case 	if you 	so 	desire, 	the deadline 	for 	such 	is
extended 	to July 31, 	1985. 	If 	you have any questions 	on this
matter, 	please 	contact me 	or Bob Thompson.
Sincerely yours.
Dennis 	Sullivan
General 	Counsel
cc: 	Howard Dickstein
•

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
COMMUNICATIONS WORKERS OF AMERICA.
PSYCH TECHS. 	LOCAL 11555.
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENTS
OF 	PERSONNEL ADMINISTRATION.
DEVELOPMENTAL 	SERVICES AND MENTAL
HEALTH).
Respondent.
Case No. 	S-CE-261-S
COMPLAINT 	(Unfair 	- 	SEERA)
It having been charged 	by Communications Workers 	of
America, 	Psych Techs, 	Local 	11555 that State of California
(Departments 	of Personnel Administration, 	Developmental
Services and Mental Health) 	has 	engaged 	in certain unfair
practices 	in violation of 	California 	Government 	Code 	section
3519 	the General 	Counsel 	of 	the 	Public Employment 	Relations
Board 	(PERB) 	on behalf 	of 	the PERB, 	pursuant to California
Government Code sections 	3541.3(h) 	and 	(i) 	and California
Administrative Code, 	title 8. 	part III. 	sections 32620(b)(6)
and 	32640, 	issues 	this COMPLAINT and alleges 	that
1. 	The Respondent 	is 	the 	State Employer within 	the
meaning of Government Code 	section 3513(i).
2. 	The Charging Party 	is 	a 	recognized 	employee
organization within 	the 	meaning 	of 	Government 	Code 	section
3513(b).
)
)
)
)
)
)
)
)
)
)
)
______________ !

3. 	Before June 	11, 	1985, 	Respondent's policy concerning
access 	for 	non-employee 	representatives 	of 	Charging 	Party was
governed 	by Article XII 	section 	1 	of 	the Memorandum of
Understanding 	(MOU) 	between Charging Party and 	Respondent.
This 	section provided 	that 	the 	representative 	identify
himself/herself 	to 	the 	facility 	labor 	relations 	coordinator who
made 	necessary arrangements 	for 	access 	to 	employees.
4. 	On or about June 11, 	1985, 	Respondent changed this
policy 	by requiring 	24 	hour 	advance 	notice 	including 	the name
of 	the 	employees 	to 	be 	contacted 	and 	a 	summary of 	the 	proposed
discussion.
5. 	Before June 20, 	1985, 	representatives of Charging
Party were 	allowed 	to 	place 	telephone 	calls 	from 	the 	employee
organization 	room at 	Patton State Hospital 	to 	destinations
outside 	the 	hospital 	without 	charge.
6. 	On or 	about June 20. 	the Respondent changed this
policy 	by 	initially 	preventing 	any 	calls 	from 	being 	completed
and on or about June 26, 	1985, 	requiring that these calls be
billed 	to 	the 	Charging Party.
7. 	Before May 22, 	1985, 	representatives 	of 	the Charging
Party were 	allowed 	by the Respondent 	to 	leaflet 	on Patton
Avenue 	near 	Patton State Hospital 	in 	accord 	with 	the 	provisions
of Article XII 	section 2 	of 	the MOU.
8. 	On or 	about May 22. 	1985. 	Respondent changed this
policy 	by 	refusing 	to 	allow Charging 	Party's 	representatives 	to
leaflet at 	this 	location.
2	
"'

9. 	Respondent 	engaged 	in the 	conduct described 	in
paragraphs 	4, 	6 	and 	8 above without prior notice to the
charging 	party 	and without 	having 	afforded 	the 	charging 	party
an 	opportunity to 	meet 	and 	confer 	over 	the 	decision 	to
implement 	the 	change 	in policy and/or 	the 	effects 	of 	the 	change
in policy.
10. 	By the acts 	and 	conduct 	described 	in paragraphs 	4
through 	9 	above. 	Respondent 	has 	failed 	and 	refused 	to meet 	and
confer 	in good 	faith 	in violation 	of 	Government 	Code 	section
3519(c).
11. 	This 	conduct also 	constitutes 	derivative violations 	of
Government Code sections 3519(a) 	and 	(b).
12. 	On or about June 4, 	1985, 	the Respondent, 	acting
through its 	agent. 	Personnel Officer/Labor Relations
Coordinator Denise 	P. 	Bates 	issued 	and 	caused 	to 	be 	posted 	on
employee 	organization and 	unit 	bulletin 	boards 	a 	memorandum
addressed 	to 	all 	managers 	and 	supervisors which 	removed 	one 	job
steward 	for 	Charging Party 	and 	identified 	seven 	employees 	as
job stewards 	for 	CAPT.
13. 	During the spring of 	1985. 	Respondent provided CAPT
the use 	of 	the 	Executive 	Conference 	Room at 	Stockton 	State
Hospital 	for 	two 	meetings 	with Psychiatric 	Technicians.
14. 	On the 	same day as 	the 	first meeting described 	in
paragraph 	13 	above, 	the Chief 	Steward 	for 	Charging Party at
3
3

Stockton State Hospital was 	told 	by an agent 	for 	the
Respondent. 	Program Director 	Jake Myrick 	in the 	presence 	of
other Psychiatric Technicians, 	"I 	hope they beat the hell out
of you."
15. 	On or about June 	17, 	1985 Respondent caused CAPT
campaign 	literature 	to 	be delivered to 	the work stations 	of
Psychiatric 	Technicians 	at 	Sonoma 	State Hospital 	contrary 	to
the 	hospital 	policy which 	only 	permitted 	delivery 	of 	business
mai1.
16. 	On or about March 5. 	1985, 	the Respondent, 	acting
through its 	agent. 	Labor Relations 	Specialist Gary Scott,
issued 	a 	memorandum to 	all 	labor 	relations 	coordinators which
contained a 	copy of a February 26. 	1985 	letter from
Ivonne Ramos 	Richardson. 	These 	two documents were 	subsequently
posted 	by the Respondent 	on management 	and 	employee
organization bulletin boards 	throughout 	the 	hospital 	system.
17. 	By the course of 	conduct 	described 	in paragraph 3
through 16 above. 	Respondent has 	contributed support and/or
encouraged 	employees 	to 	join CAPT 	in preference 	to Charging
Party in violation of Government Code 	section 3519(d).
18. 	By the course of conduct described 	in Paragraphs 	12
through 16 above. 	Respondent has 	interfered with the 	rights 	of
employees 	to 	exercise 	their 	rights 	guaranteed 	by 	the 	State
Employer-Employee Relations Act 	(SEERA) 	in violation of
Government Code section 3519(a).
..

19. 	By 	the 	course of 	conduct 	described 	in paragraphs 	12
through 	16 	above. 	Respondent 	has 	denied 	Charging 	Party 	rights
guaranteed 	by 	the 	SEERA 	in 	violation 	of 	Government 	Code 	section
35l9(b).
Any 	amendment 	to 	the 	charge 	shall 	be 	processed 	pursuant 	to
California Administrative Code, 	title 	8, 	part 	III. 	sections
32647 	and 	32648.
DATED: 	August 	6. 	1985 DENNIS M. 	SULLIVAN
General 	Counsel
By Robert 	Thompson
Regional 	Attorney
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STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
August 6. 	1985
Christopher W. 	Waddell
Labor 	Relations 	Counsel
Department 	of 	Personnel 	Administration
1115 	11th 	Street
Sacramento, 	CA 	95814
Re: 	Communication Workers 	of America. 	Psych Techs. 	Local 	11555
v. 	State 	of 	California 	(Departments 	of 	Personnel
Administration. 	Mental 	Health, 	and 	Developmental 	Services)
Unfair 	Practice 	Charge No. 	S-CE-261-S. 	Fourth Amended 	Charge
Dear Mr. 	Waddell:
I 	am writing 	in response 	to your 	requests 	of July 15 	and 	16,
1985 	that 	the 	above-referenced 	charge 	be 	deferred 	to
arbitration under 	the Memorandum 	of 	Understanding 	(MOU) 	between
the Communication Workers 	of America 	(CWA) 	and 	the 	State 	of
California 	(State).
These 	requests were 	based 	on 	the 	argument 	that 	the 	conduct
alleged 	to 	be 	an unfair 	practice 	is 	covered 	by Article 	I,
section 	1 	and Article XII 	of 	the MOU.
Section 	3514.5(a) 	of 	SEERA states 	in pertinent 	part:
. 	. 	. 	the board shall not do either of the
following: 	. . . 	(2) 	issue 	a 	complaint
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance machinery 	of 	the
agreement, 	if 	it 	exists 	and 	covers 	the
matter 	at 	issue, 	has 	been exhausted, 	either
by 	settlement 	or 	binding 	arbitration.
PERB Regulation 	32620(b)(5)1 requires 	the 	Board 	Agent
1PERB 	Regulations 	are 	codified 	in 	the 	California
Administrative Code, 	title 	8.

Christopher W. Waddell11
August 	6, 	1985
Page 2
processing 	the 	charge 	to 	"(d)ismiss 	the 	charge 	or 	any 	part
thereof 	as 	provided 	in Section 	32630 	if 	. . . 	it 	is 	determined
that 	a 	complaint 	may not 	be 	issued 	in 	light 	of 	Government 	Code
sections 	3514.5, 	3541.5 	or 	3563.2 	or 	because a dispute arising
under 	HEERA 	is 	subject 	to 	final 	and 	binding 	arbitration." 	In
Dry 	Creek 	Joint 	Elementary 	School 	District 	(7/21/80) 	PERB 	Order
No 	Ad-81a,2 the 	Public 	Employment 	Relations 	Board 	(PERB)
explained 	that:
[W]hile 	there 	is 	no 	statutory deferral
requirement 	imposed 	on 	the 	National 	Labor
Relations Board 	(hereafter NLRB), 	that
agency 	has 	voluntarily 	adopted 	such a 	policy
both with 	regard 	to 	post-arbitral 	and
pre-arbitral 	award 	situations. 	(Footnote
omitted.) 	EERA 	section 	3541.5(a)
essentially 	codifies 	the 	policy 	developed 	by
the 	NLRB 	regarding 	deferral 	to 	arbitration
proceedings and awards. 	It 	is 	appropriate,
therefore, 	to 	look for 	guidance to the
private 	sector. 	(Fire Fighters 	Union v.
City of Vallejo 	(1974) 	12 	Cal.3d 	608.)
In Collyer 	Insulated Wire 	192 NLRB 837, 	77 LRRM 1931 	(1971) 	and
subsequent 	cases, 	the NLRB 	articulated 	standards 	under 	which
deferral 	is 	appropriate 	in pre-arbitral 	situations 	. 	These
requirements 	are: 	(1) 	the 	dispute must 	arise within a 	stable
collective 	bargaining 	relationship where 	there 	is 	no 	enmity 	by
the 	respondent 	toward the 	charging party; 	(2) 	the 	respondent
must 	be 	ready 	and 	willing 	to 	proceed 	to 	arbitration 	and 	must
waive contract-based 	procedural 	defenses; 	and 	(3) 	the 	contract
and 	its 	meaning must 	lie 	at 	the 	center 	of 	the 	dispute.
Although 	the 	second 	requirement 	of 	this 	standard 	appears 	to
have 	been met 	in 	this 	case, 	the 	first 	and 	third 	requirements
have 	not. 	First, 	there 	are 	factors which 	indicate 	that 	an
unstable 	bargaining 	relationship 	may 	exist. 	This 	bargaining
unit 	underwent 	a 	decertification 	election 	during 	June 	and
July 	1985. 	It 	is unclear whether 	CWA will 	remain 	the 	exclusive
representative. 	Under 	similar 	circumstances 	the National 	Labor
Relations 	Board 	has 	declined 	to 	defer 	an unfair 	labor 	practice
charge 	to 	arbitration. 	Seng Co. 	(1973) 	205 NLRB 200 	[83 	LRRM
2Although 	this 	case 	arose 	under 	the 	Educational
Employment Relations Act 	(EERA), 	it 	is 	equally applicable 	to
cases 	under 	SEERA as 	sections 	3541.5(a) 	of 	the 	EERA and
3514.5(a) 	of 	the 	SEERA are 	identical.
,ll

Christopher W. 	Waddell
August 	6, 	1985
Page 3
1577]. 	In addition, 	two unfair 	practice 	complaints 	have 	issued
against 	the 	State, 	one 	alleging 	the 	formation 	of 	a 	dominated
employee 	organization and 	the 	other 	illegal 	assistance 	to 	a
rival 	employee 	organization.
Second, 	the 	conduct 	complained-of 	in 	the 	charge 	is 	that 	the
State 	assisted CAPT. 	Essentially, 	Article 	I, 	section 1 	of 	the
MOU is 	an agreement 	by 	the 	State 	to 	recognize 	CWA as 	the
exclusive 	representative 	of 	all 	employees 	in 	the 	Psychiatric
Technician Unit. 	It 	does 	not 	expressly prohibit 	the 	State 	from
providing 	assistance 	to 	another 	employee 	organization which 	is
attempting 	to 	displace 	CWA 	as 	exclusive 	representative. 	Even
if 	CWA 	could 	prove 	that 	the 	State 	had 	assisted 	CAPT 	the MOU
would 	not 	necessarily have 	been violated. 	Thus. 	Article 	I.
section 	1 	of 	the MOU and 	its 	meaning does 	not 	lie 	at 	the 	center
of 	the 	dispute. 	Although Article XII 	of 	the MOU concerns 	some
of 	the 	allegations 	contained 	in 	the charge, 	it does 	not 	cover
them all. 	For 	example, 	there 	is 	nothing 	in Article XII 	or 	any
other 	article 	of 	the MOU which 	concerns 	the use 	of 	telephones
or 	the 	delivery of personal mail 	to 	the work site. 	Where 	a
case 	involves 	two 	issues, 	one 	deferrable 	and 	one
non-deferrable, 	the NLRB 	is 	inclined 	to 	entertain 	both 	issues
to 	avoid 	litigation 	of 	the 	same 	issue 	in a 	multiplicity of
forums. 	Sheet Metals Workers' 	International Association. 	Local
No. 	17. 	AFL-CIO (George Koch Sons. 	Inc.) 	(1972) 	199 NLRB 166.
See 	also 	John Swett 	Unified 	School 	District 	(1981) 	PERB
Decision No. 	188. 	This 	is 	especially true 	in this 	case where
the 	employer's 	alleged 	assistance 	to 	CAPT must 	be viewed 	as 	a
totality 	of 	conduct.
Based 	on 	the 	unstable 	bargaining 	relationship, 	the 	Seng Co.
case, 	the 	fact 	that 	only 	some 	allegations 	are 	covered 	by 	the
MOU, 	and 	the 	intertwined 	nature 	of 	the 	allegations, 	the request
for 	deferral 	is 	denied.
Sincerely,
Robert 	Thompson
Regional 	Attorney
cc: 	Ronald Rosenberg
Howard 	Dickstein