California State Employees Association (O'Connell)* * *OVERRULED IN PART by California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S (PERB 0753H)

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OVERRULED IN PART by California State Employees Association (Hard,
et al.) (1999) PERB Decision No. 1368-S, p. 28.

STATE OP CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARTHA MATRE O'CONNELL,
Charging Party, Case No. SF-CO-12-H

Vv. PERB Decision No. 753-H

CALIFORNIA STATE EMPLOYEES! June 30, 1989

ASSOCIATION,

Respondent.

wet WS NSS OL rr 7

Appearances: Martha Maire O'Connell, on her own behalf; Howard
Schwartz, Attorney, for California State Employees' Association.

Before Hesse, Chairperson; Porter and Shank, Members.
DECTSTON

HESSE, Chairperson: This case comes before the Public
Employment Relations Board (PERB or Board) on exceptions filed by
the charging party, Martha Maire O'Connell, to the attached
proposed decision of an administrative law judge (ALJ). The ALJ
found that the California State Employees' Association (CSEA or
Association) did not violate section 3571.1(b) of the Higher

Education Employer-Employee Relations Act (HEERA)* by removing

'HEERA is codified at Government Code section 3560 et seq.
Unless otherwise indicated, all statutory references are to the
Government Code. Section 3571.1(b) provides:

It shall be unlawful for an employee
organization to:

* . . . * . . . .

(b) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter.

her 	from her 	appointed position as 	an Association 	representative
in retaliation for her pursuing of 	contract grievances 	and. 	for
the 	filing of unfair practice 	charges 	against 	the 	organization.
CSEA does 	not 	except to the ALJ's 	dismissal of the 	charges.
We 	have reviewed the ALJ's 	decision 	in 	light of 	the 	entire
record, 	including the proposed decision, 	the transcript, 	the
exceptions 	filed by the 	charging party, 	and CSEA's 	response
thereto, 	and affirm the decision as 	modified below.
DISCUSSION
Martha 	Maire 	O'Connell's 	statement 	of 	exceptions 	lists
numerous 	factual disputes with the ALJ's 	interpretation of 	the
evidence, 	and, 	with the possible exception of the dismissal of
the duty of 	fair representation 	(DFR) 	motion, 	states 	no 	law and
very 	little 	rationale to 	indicate why the 	legal 	conclusions 	of
the ALJ 	are 	in error. 	Her 	statement of 	exceptions 	is 	summarized
as follows:
1. 	Objection to the dismissal 	of 	the motion to amend the
complaint to 	include a DFR charge. 	O'Connell 	insists 	that
the ALJ 	amended the 	charge 	during 	the hearing 	and 	that 	CSEA
made no objection. 	The record does 	not 	support that
statement 	and 	the ALJ 	correctly 	analyzed 	the 	motion under
the 	Santa Clara 	Unified School 	District 	(1979) 	PERB Decision
No. 	104 	finding CSEA was 	not required to defend against
alleged 	charges without proper notice.
2Since the ALJ rendered his decision, 	the Board has 	modified
Santa Clara 	to hold that notice 	is 	required 	in all 	circumstances
where 	evidence 	of 	unalleged 	conduct might 	constitute 	the bases
for 	independent violations. 	(See Tahoe-Truckee 	Unified 	School
District 	(1988) 	PERB Decision No. 	668.)
2

2. 	Objection to CSEA's policies 	and bias 	of the hearing panel.
O'Connell 	argues 	that CSEA's written 	evidence 	outlining 	its
representative procedures, 	including decertification, 	as
submitted at the hearing, 	has been revised, 	is not
appropriate, 	or otherwise does not exist. 	As 	the ALJ
indicated 	in his proposed decision, 	O'Connell 	stipulated to
the 	evidence 	being 	submitted and 	stated that 	she was 	very
well 	acquainted with those policies. 	Additionally,
O'Connell 	testified that 	she 	understood the policies 	through
the training process, 	including the need to 	communicate with
CSEA 	staff 	regarding 	campus/systemwide 	issues. 	Regarding
the alleged panel bias, 	even assuming the 	facts 	support the
conclusion of bias, 	the ALJ 	correctly determined 	the
ultimate 	effect of 	that bias 	under Konocti 	Unified 	School
District 	(1982) 	PERB Decision No. 	217, 	i.e., 	that bias of
the 	first 	level 	of 	review cannot be 	automatically 	imputed 	to
the 	final decision maker.
3*. 	Technical 	errors 	in interpretation of the evidence.
O'Connell 	indicates 	in a number of• her exceptions 	that 	there
was 	an 	option requested 	in her 	sexual 	harassment 	grievance
(as 	opposed to complaint). 	She also argues 	about who was
responsible 	for 	freezing the timelines 	and at what 	level 	the
time 	lines were 	frozen. 	The ALJ's 	view of 	the 	evidence
presented 	is 	largely correct, 	with one minor technical
exception. 	In the remedy of the 	sexual harassment
grievance, 	O'Connell does 	request that 	employees 	be 	informed

that 	"they may exercise the option of 	seeking a union
representative . 	. 	. per Article 8 	[of the collective
bargaining agreement]." 	Since the sexual harassment
complaint does not contain the 	"option" 	language, 	we find
that this 	minor exception would make no difference 	in the
disposition of the issues 	in this case.
4. 	Presentation of additional evidence. 	O'Connell claims 	that
documentary evidence 	indicating 	she had 	filed many 	similar
grievances 	in the past were provided with her brief 	to the
ALJ. 	There is no such evidence in the record, 	nor is there
any 	indication that 	the ALJ held the 	record open to permit
the receipt of 	such evidence.
5. 	Political causes v. 	wrongful motivation causes. 	The
remainder of O'Connell's 	statement of exceptions 	attempts 	to
point out that the 	infighting in the San Jose chapter was,
in itself, 	due to her exercise of protected activities. 	We
uphold the ALJ's determination that the discipline 	imposed
would have occurred despite the 	exercise of protected
activity.
We therefore hold the ALJ's 	findings of fact are 	free 	from
prejudicial 	error, 	and we adopt them as 	set forth in the proposed
decision as 	the 	findings of the Board itself. 	We also affirm the
ALJ's 	conclusions 	of 	law with regard to dismissing the motion to
A

amend the 	complaint to 	include a violation of 	HEERA 	section
3571.l(e).3
While we 	agree with 	the ALJ's 	conclusion regarding 	the
reprisal 	claim, 	we cannot adopt his 	analysis 	in its 	entirety. 	We
reject 	the ALJ's 	reliance 	on 	Service 	Employees 	International
Union. 	Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106, 	and the
line of cases 	cited in the proposed decision, 	at footnote 	14, 	to
analyze whether a 	reprisal 	claim 	is 	cognizable before 	this 	Board
when a union's 	internal 	affairs 	are 	involved.
The 	Kimmett 	decision was 	based 	on a 	consolidation of 	five
unfair practice cases 	(LA-CO-27, LA-CO-31, LA-CO-32, LA-CO-33,
and LA-CO-34) 	filed by an employee against an 	employee
organization. 	Only one of 	the 	cases 	alleged a 	threatened
reprisal, 	and that case was 	severed for a 	separate hearing. 	In
the 	four remaining 	cases, 	which alleged 	improprieties 	on the part
of 	the 	employee 	organization 	in the 	scheduling of 	employee
organization meetings, 	the 	failure to notify employees 	of 	the
meetings, 	and the 	failure to adequately 	inform employees 	of 	the
status 	of 	negotiations, 	the Board found the allegations 	raised
the 	issue of 	a violation of 	the DFR under the Educational
3Section 3571.l(e) 	provides:
It 	shall 	be unlawful 	for an employee
organization to:
(e) 	Fail 	to represent fairly and impartially
all 	the 	employees 	in the unit 	for which 	it 	is
the 	exclusive representative.
S

Employment Relations Act 	(EERA) 	section 3544.9.4 In Kimmett. 	the
issue was 	whether 	the duty 	to 	fairly 	represent 	employees 	extends
beyond 	negotiation and 	administration of 	agreements 	and 	is
applicable 	to 	activities 	which do 	not directly 	involve 	the
employer or which are 	strictly 	internal 	union matters. 	The 	Board
held 	that 	only 	such 	activities 	that have 	a 	substantial 	impact 	on
the 	relationships 	of unit members 	to 	the 	employer are 	subject 	to
that duty, 	and 	found no 	such 	impact 	in the Kimmett case.
In 	addressing whether the 	alleged 	improprieties 	of 	the 	union
violated section 3543.6(b)5, 	the Board noted that, 	had it found a
breach of 	the DFR, 	that breach would also 	constitute 	a violation
of 	section 3543.6(b). 	However, 	since the conduct proscribed by
3543.6(b) 	encompasses more than the breach of the DFR, 	the Board
held 	that 	the 	charging party's 	allegations 	must be 	examined 	to
4Section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the purpose of 	meeting 	and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
5Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter.
6

determine whether 	they 	constituted 	a 	violation of 	that 	section
separate 	and apart 	from any violation of 	section 	3544.9.
The 	Board reasoned that 	employees' 	right to 	"join and
participate 	in the activities 	of 	employee organizations" 	(see
EERA 	section 	3543) 	read broadly 	in 	conjunction with 	section
3543.6(b) 	could be 	construed as 	prohibiting any 	employee
-
organization 	conduct which would prevent 	or 	limit 	employees'
participation in any of 	its 	activities. 	Therefore, 	the Board
held:
. 	. 	. 	unless the internal activities of an
employee 	organization have 	such 	a 	substantial
impact on employees' 	relationship with their
employer as 	to give rise to a duty of 	fair
representation, 	we 	find that public 	school
employees 	do 	not 	have 	any protected 	rights
under EERA 	in the 	organization of 	their
exclusive 	representative.
(Id.. 	at p. 	17.) 	(Emphasis added.)
Thus, 	the 	limitation found 	in Kimmett on PERB's 	review of
internal 	organizational 	matters 	applies 	only when the 	allegations
present a question of the violation of the DFR. 	The ALJ's
statement 	that union decisions 	regarding 	selection of
representatives 	and procedures 	are 	largely 	immunized 	from 	PERB
review is based on cases 	(see 	fn. 	14 	of the proposed decision)
that 	can be 	distinguished because 	either they 	addressed 	only 	the
DFR 	(California 	State 	Employees 	Association 	(Lemmons 	and 	Lund)
(1985) 	PERB Decision No. 	545-S; 	California School Employees
Association. 	Chapter 318 	(Harmening) 	(1984) 	PERB Decision No.
442; 	El Centro Elementary Teachers Association 	(Willis) 	(1982)
PERB Decision No. 	232) 	or contain an overbroad 	interpretation of

the 	Kimmett 	limitation. 	(Rio 	Hondo College Faculty Association
(Furriel) (1986) 	PERB Decision No. 	583.)
In Rio 	Hondo College Faculty Association 	(Furriel) 	(1986)
PERB Decision No. 	583, 	page 7, 	the Board upheld the ALJ's
dismissal 	of 	the 	charging party's 	allegation that 	the 	association
violated 	section 	3543.6(b) 	by its 	refusal 	to appoint him to a
joint 	committee 	established 	by 	the 	collective 	bargaining
agreement. 	The Board stated 	in that case:
Because we 	find that 	selection to 	the
Committee 	is an internal union matter, 	and
there 	is 	no evidence that rejection of
Furriel had a 	substantial 	impact on his
relationship 	to 	his 	employer and/or had 	a
substantial 	impact 	on the 	relationship 	of
other employees 	to their employer, 	we
conclude 	that 	there 	is 	no violation of 	either
section 3544.9 or 3543.6(b).
(Emphasis 	added.)
We 	believe 	this 	statement 	is 	overbroad and may misconstrue 	the
Kimmett 	analysis. 	If the allegations 	in a complaint 	state 	facts
supporting retaliation by an employee organization, 	it makes 	no
difference whether the 	organization's 	retaliatory 	actions 	have 	a
substantial 	impact 	on the relationship of unit members 	to 	their
employers. 	(California School Employees Association 	(Parisot)
(1983) 	PERB Decision No. 	280, 	at p. 	11.)
In Parisot. 	a member of an employee organization charged
that 	the 	employee organization violated EERA section 	3543.6(b) 	by
suspending 	him 	from 	membership 	and 	barring 	him 	from holding
office 	for a period of time. 	He claimed that the procedures 	used
8

to 	remove 	him were 	unreasonable 	under 	section 	3543.1.6 The
Board, 	holding that 	the hearing officer 	erred 	in dismissing 	the
charge based on Kimmett, at page 	11, 	stated:
In Kimmett, we 	did 	not 	intend 	to 	abdicate 	our
jurisdictional power 	to 	determine whether an
employee 	organization has 	exceeded 	its
authority under 	subsection 	3543.1(a) 	to
dismiss 	or otherwise discipline 	its members.
Similarly, 	in reprisal cases, 	PERB has 	statutory authority
to 	inquire 	into the 	internal 	activities 	of 	the 	employee
organization. 	That 	statutory authority 	is 	contained 	in HEERA
section 3571.1 which, 	in pertinent part, 	prohibits 	employee
organizations 	from 	imposing 	reprisals 	on 	employees 	because 	of
their 	exercise of protected rights.
An 	inquiry 	must 	go 	forth 	under Carlsbad 	Unified 	School
District 	(1979) 	PERB Decision No. 	89 	and/or Novato Unified School
6Section 3543.1(a) 	states:
(a) 	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 	3 544.1
or 3544.7, 	respectively, 	only that employee
organization may represent 	that 	unit 	in their
employment 	relations with 	the public 	school
employer. 	Employee organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join and may make 	reasonable
provisions 	for the dismissal 	of 	individuals
from membership.
HEERA contains 	no 	similar 	statutory provision. 	However, 	the 	fact
that 	HEERA does 	not 	contain a provision 	for permitting 	an
employee 	organization's 	establishment 	of 	reasonable 	rules 	for
membership 	does 	not 	mean that 	the policy 	embodied 	in 	such
provisions 	is 	not applicable to HEERA.

District 	(1982) 	PERB Decision No. 	210, 	as to whether the actions
were 	motivated by 	a 	charging party's 	exercise 	of 	protected
rights. 	Novato requires 	a 	charging party to 	show an engagement
in protected activity, 	that 	the respondent had knowledge 	of 	such
activity, 	and that 	the 	respondent's 	harmful 	action against 	the
charging party was 	motivated by an unlawful 	intent. 	The
respondent then must put 	forward a defense 	as 	to whether 	there
was 	any 	legitimate business 	concern 	sufficient 	to 	cause 	the
action against the charging party. 	If there 	is 	both a 	lawful 	and
an unlawful motive present, 	the Board will determine whether the
respondent would have taken 	its 	action had 	the 	charging party 	not
engaged 	in protected 	activity.
Of 	course, 	notwithstanding the 	existence of a provision
permitting unions 	to 	establish reasonable 	rules 	and 	regulations
governing their internal activities, 	the 	lack of 	fair procedures
may work 	against 	the 	establishment 	of 	a 	legitimate 	affirmative
defense to rebut an inference of 	improper motive. 	In CSEA's
rules 	and regulations 	governing 	the 	removal 	of 	certification 	from
a union representative, 	there 	is 	no 	indication as 	to what kinds
of 	infractions would constitute 	"for cause." 	However, 	in
reviewing common law cases, 	California has 	held for decades 	that
where a 	statute, 	city charter, 	or even the governing bylaws 	of a
fraternal 	organization or labor union, 	provide 	for the 	loss 	of 	a
right 	for cause, 	a hearing is 	required absent a 	clear 	showing of
legislative 	intent to dispense with that right. 	(Kramer v.
Municipal Court 	(1975) 	49 	Cal.App.3d 	418.)
10

In this 	case, 	O'Connell was provided with the rudimentary
rights 	and was 	clearly 	given an opportunity to 	challenge 	the
allegations. 	Nevertheless, 	administrative agencies 	and courts
must give great deference 	to 	a union's 	interpretation of what
conduct 	is 	sufficient to constitute cause. 	(See Kahn v. 	Hotel
and Rest. 	Employees' 	and Bartenders, 	etc. 	(1977) 	469 F.Supp.14
[101 LRRM 2516], 	aff. 	597 F.2nd 	1317 	[101 LRRM 2521].) 	The ALJ
correctly 	found 	that 	CSEA would 	have 	taken 	its 	action regardless
of 	O'Connell's 	participation 	in protected 	activity.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the entire record of 	this 	case, 	it 	is hereby ORDERED that the
complaint 	in Case No. 	SF-CO-12-H 	shall be DISMISSED.
Member 	Shank 	joined 	in this 	Decision.
Member Porter's 	concurrence begins 	on page 	12.
11

Porter, Member, concurring: I concur that the complaint

should .be dismissed.

12

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARTHA 	MAIRE 	O'CONNELL,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Unfair 	Practice
Case No. 	SF-CO-12-H
PROPOSED 	DECISION
(3/19/87)
Appearances: 	Bill 	Halloway 	for Martha Maire O'Connell;
Howard 	Schwartz, 	Attorney, 	for 	the California 	State Employees'
Association.
Before; 	Barry Winograd, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In 	a charge 	filed January 9, 	1986, 	Martha Maire O'Connell
alleged 	that 	the California 	State Employees' 	Association 	(CSEA
or Association) 	sought 	to 	remove her 	as 	a union steward 	in
retaliation 	for 	her 	pursuit 	of 	contract 	grievances 	and 	for 	the
filing 	of 	an unfair 	practice 	charge 	against 	the 	organization.
The 	charge 	also 	claimed 	that 	CSEA deprived 	O'Connell 	of 	fair
representation. 	The Association's 	conduct, 	according 	to 	the
charging party, 	violated sections 	3571.l(b) 	and 	(e) 	of 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA 	or
A c t ) . 1
1 The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq., 	and 	is 	administered 	by the 	Public Employment 	Relations
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

Board 	(PERB or Board). 	Unless 	otherwise 	indicated, 	all
statutory 	references 	in 	this 	decision 	are 	to 	the Government
Code. 	Section 	3571.1 	provides 	in 	relevant 	part 	that 	it 	shall
be 	unlawful 	for 	an employee 	organization 	to:
(b) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(e) 	Fail 	to 	represent 	fairly and
impartially all 	the 	employees 	in 	the unit
for which 	it 	is 	the exclusive 	representative.
An 	amended 	unfair 	practice 	charge was 	filed 	on March 	13,
1986. 	The 	amended 	charge 	included 	allegations 	that 	O'Connell
had 	been denied 	a 	full 	and 	fair 	hearing 	prior 	to 	her
decertification 	as 	a 	steward 	in January 	1986, 	and 	that 	the
Association's 	action was 	part 	of 	an 	effort 	to 	stifle 	internal
dissent.
The 	PERB General Counsel 	issued 	a 	complaint 	on June 	19,
1986. 	The 	complaint 	alleged 	that 	O'Connell 	exercised 	rights
protected by the HEERA, 	including,
. 	. 	. 	filing and threatening to file unfair
practice 	charges 	against 	Respondent; 	filing
and 	pursuing 	grievances; 	discussing 	such
grievances with the press; 	and, 	indicating
her 	interest 	in 	running 	for 	organizational
office.
The 	complaint 	concluded 	that 	CSEA 	retaliated 	against 	O'Connell
for 	her 	exercise 	of 	HEERA 	rights 	by decertifying 	her 	as 	a 	union
2

steward. 	This 	action, 	according 	to the complaint, 	violated
section 3571.l(b).2
The Association's 	answer was 	filed on July 11, 	1986. 	The
answer 	denied 	the 	allegations 	of 	unlawful 	conduct 	and 	advanced
several 	affirmative 	defenses. 	A 	settlement 	conference 	on
July 29, 	1986 	failed to 	resolve the dispute.
A pre-hearing 	conference was 	held on October 	14, 	1986.
Thereafter, 	a 	four-day hearing was 	conducted 	in 	San 	Francisco
and San Jose, 	California, 	on October 20 	through October 	22, 	and
on November 	21, 	1986. 	Post-hearing 	briefs were 	filed 	by both
parties. 	The 	dispute was 	submitted 	for 	decision 	on
February 27, 	1987.
FINDINGS 	OF 	FACT
A. 	CSEA Organization 	and 	Personnel
The Association 	is 	the exclusive 	representative 	of 	four
bargaining 	units 	in 	the 	California 	State University 	(CSU)
multi-campus 	system. 	The 	units 	represented 	by CSEA 	include
support 	employees 	in clerical 	and 	administrative, 	health care,
operations, 	and technical 	services. 	A single bargaining
agreement 	covers 	the 	four 	units 	for 	the 	period 	July 	1985
2No 	reference was made 	in 	the 	complaint 	or 	in 	the 	PERB's
covering 	letter 	to 	the 	alleged violation of 	section 3571.l(e),
involving 	the duty of 	fair 	representation. 	During 	the 	hearing,
the 	charging 	party moved 	to 	amend 	the 	complaint 	to 	include 	the
alleged 	breach 	of 	the duty of 	fair 	representation 	on 	the 	basis
of 	the 	evidence 	presented. 	The 	issue will 	be discussed 	below.
3

through June 	1988. 	O'Connell 	is 	a 	clerical 	employee 	at 	the CSU
San Jose campus.
The Association 	has 	organized 	its 	CSU division 	along 	staff
and 	rank-and-file 	lines. 	The 	program manager 	and 	a 	senior
staff 	member 	oversee 	four 	labor 	relations 	representatives.
These 	representatives 	are 	the 	paid 	staff 	responsible 	for 	. . . .
coordinating 	contract 	administration. 	At 	the 	time 	of 	the
present 	dispute, 	Robert 	Zech was 	the divisional 	program
manager, 	Ronald Almquist was 	the 	senior 	labor 	relations
representative, 	and Kris 	Organ was 	the 	local 	labor 	relations
representative who 	covered 	affairs 	at 	San Jose. 	Organ 	also 	has
been 	responsible 	for 	coordinating 	contract 	and 	grievance
matters 	at 	other CSU campuses 	in San Francisco, 	Hayward, 	Sonoma
County 	and 	Humboldt 	County. 	He 	began working 	as 	a 	labor
relations 	representative 	in 	spring 	1985, 	about 	six months 	prior
to O'Connell's 	decertification. 	CSEA 	is 	the 	exclusive
representative 	of 	about 	3,000 	employees 	in Organ's 	five-campus
territory.
Rank-and-file members 	of 	CSEA have 	a 	number 	of 	elected
representatives 	in the CSU division. 	At 	San Jose, 	for example,
the 	local chapter, 	comprised of 	the four units, 	elects 	a
chapter 	president 	and 	other 	executive 	officers. 	Each unit
within 	the 	chapter 	also 	elects 	a 	bargaining 	unit 	council
representative 	(BUC Rep), 	officially designated 	the 	steward 	for
that 	unit. 	BUC Reps 	throughout 	the 	state 	form a 	division
council, 	and elect 	a council 	chair 	and 	a deputy.
4

Local 	chapters 	also 	have union 	representatives, 	popularly
referred 	to 	as 	stewards, 	although not 	possessing 	the 	full
organizational 	authority of 	a 	BUC Rep. 	Union 	representatives
are 	not 	elected. 	They 	are 	appointed 	by BUC Reps 	and must
complete 	an 	advanced 	training 	program prior 	to 	certification 	by
the divisional 	head. 	Union 	representatives 	in 	the 	CSEA
structure 	have 	responsibility 	for 	initial 	grievance
representation 	through 	the 	first 	two 	steps 	of 	the 	procedure.
Union 	representatives 	also 	provide 	liaison 	and 	support 	for 	the
paid 	staff 	of 	labor 	relations 	representatives 	at 	higher 	stages,
which 	include 	appeals 	to 	the 	campus 	president, 	the 	systemwide
chancellor, 	and arbitration.
As 	part 	of 	their 	training, 	union 	representatives 	are
instructed 	that 	grievances with campuswide, 	or 	systemwide,
policy 	implications 	must 	be 	authorized 	in 	advance 	by 	the 	labor
relations 	representative. 	Additionally, 	paid staff, 	not union
representatives, 	can pursue grievances 	to 	the presidential 	or
higher 	levels. 	Union 	representatives 	also 	are 	required 	to
maintain 	immediate 	and 	full 	communication with 	labor 	relations
representatives 	about 	all 	steps 	of 	grievances 	being 	handled.
O'Connell was 	a union 	representative, 	and 	a 	very 	active
one, 	from the 	time 	she 	joined CSEA in 	1981. 	She 	stipulated 	at
the 	hearing 	that 	she was 	familiar 	with 	the Association's
structure 	and with 	the 	limits 	on union 	representative 	functions
that 	were 	conveyed 	in CSEA's 	training 	and written 	guidelines.
Pursuant 	to CSEA's 	established procedures, 	union
5

representatives 	can be decertified 	only 	for 	cause. 	The written
procedure 	requires 	that 	the 	union 	representative 	be 	informed 	of
the charges 	and given 	a 	hearing. 	Procedural 	details 	are not
specified. 	If 	the 	three-person hearing 	panel 	believes
decertification 	is 	appropriate, 	its 	recommendation is 	forwarde	1 . ' 	d
to 	the division council 	for 	final 	disposition. 	Decertification
follows 	if 	three-fourths 	of 	the council 	sustains 	the 	action.3
B. 	San Jose Chapter Conflicts
O'Connell's 	experiences 	and 	relationships 	in 	the 	San 	Jose
chapter were 	turbulent 	and 	bitter 	long 	before 	her 	eventual
decertification 	as 	a union 	representative.
In 	1984, 	for 	example, 	O'Connell was 	ousted by membership
vote 	from her 	position 	as 	chapter 	vice-president. 	Eventually,
after 	an 	internal 	union 	appeal, 	she was 	reinstated. 	The
hearing 	officer's 	report 	cited 	a 	variety of 	allegations 	against
O'Connell, 	but 	found 	that 	these did 	not 	justify 	removal.
There' also was 	a dispute 	in 1984 	over 	the 	rewrite of 	a
newspaper 	article 	prepared 	by O'Connell 	regarding 	a
gubernatorial 	veto of gay rights 	legislation. 	O'Connell, 	a 	gay
rights 	activist 	as well 	as 	an outspoken member 	of 	the union's
"progressive caucus," 	believed 	that 	others 	in 	the 	chapter
3CSEA 	also 	has 	an 	intra-union disciplinary procedure,
applying to members 	as well 	as 	representatives. 	This 	procedure
has more elaborate hearing 	and 	appeal 	requirements, 	and 	can
result 	in more 	severe union 	punishment. 	The 	disciplinary
procedure was 	not 	invoked 	in O'Connell's 	case; 	only the
decertification 	process 	was 	used.
6

wanted 	to 	censor 	her views 	and 	to 	limit 	the editorial 	authority-
she 	exercised 	on 	the 	chapter 	newsletter.
Factional disputes 	intensified 	in 1985. 	In April, 	an
attempt was 	made 	by 	a 	local 	chapter 	BUC Rep 	to 	deny O'Connell
ongoing 	certification as 	a union 	representative. 	In July, 	on
appeal, 	the 	action was 	reversed because 	the 	formal
decertification procedure had 	not 	been utilized. 	In 	the 	same
period, 	several 	intra-union grievances 	and 	appeals were
pending, 	charging 	other 	CSEA members with wrongdoing. 	While
these were pending, 	members 	of 	the different 	factions were
instructed 	to 	refrain 	from communicating with opponents, 	and 	to
contact 	the 	paid 	labor 	relations 	staff 	for 	representation
requests.
In 	summer 	1985, 	a major 	dispute 	involved O'Connell's
opposition 	to 	ratification of 	CSEA's 	contract with CSU. 	An
anonymous 	leaflet 	distributed 	by O'Connell 	through 	the 	campus
mail 	system urged 	employees 	to 	reject 	ratification. 	The
chapter 	president, 	Theresa Guyton, 	apparently distressed by
such use of 	the campus mails, 	filed 	a grievance with CSU
officials. 	Thereafter, 	in settlement of the grievance, 	CSU
agreed 	to 	limit mail 	access 	to 	identified CSEA officials,
excluding 	the 	position 	held 	by O'Connell. 	O'Connell 	also was
disciplined 	by CSU 	as 	an 	outgrowth of 	the CSEA grievance.
During 	the 	summer 	1985 	period, 	O'Connell 	ran unsuccessfully
for chapter office. 	She continued, 	however, 	serving 	as 	an
7

active union 	representative 	and 	filed 	numerous 	grievances.
These 	filings 	included 	grievances 	that were 	the 	focus 	of 	her
subsequent decertification, 	at 	least 	one 	of which 	reportedly
caused 	internal 	membership 	conflict. 	These 	grievances will 	be
separately 	described 	below.
The 	troubles 	for CSEA 	at 	San Jose were 	capped 	in
December 	1985. 	Eleven 	chapter 	officers 	and 	representatives
resigned, 	effective January 1986. 	In 	a 	letter dated
December 	5, 	1985, 	the eleven wrote to 	the 	statewide CSEA
president, 	explaining that,
. 	. 	. 	we can no 	longer support or be party
to 	the divisive 	and harmful 	activities 	of 	a
few 	individuals 	acting 	as 	agents 	of 	CSEA,
nor 	can we 	continue 	to 	rationalize 	to 	our
members 	CSEA's 	silent 	acceptance 	of 	these
activities 	which weaken 	the 	union 	and 	CSEA's
unwillingness 	to 	deal with 	our 	campus
reality.
The 	resigning 	chapter 	officials 	asked 	the 	statewide 	officers
and directors,
. 	. 	. 	to exercise their authority and act
decisively 	according 	to 	CSEA's 	mandated
responsibilities.
Evidence 	at 	the 	hearing 	indicated 	that 	O'Connell 	and 	some 	of
her 	organizational 	allies were 	those 	referred 	to 	in 	the
resignation 	letter 	as 	responsible 	for 	the 	alleged 	"divisive 	and
harmful" 	union activities.
Within the next 	few weeks, 	the San Jose chapter was
dissolved. 	Later 	in December, 	O'Connell 	also 	received 	notice
of 	her 	proposed 	decertification.
8

C. 	Unfair 	Practice Charges
The 	internal 	Association disputes 	summarized 	above 	led 	to
two 	unfair 	practice 	charges 	by O'Connell 	against 	CSEA. 	The
first 	charge was 	filed 	in January 	1985. 	(Case No. 	SF-CO-6-H.)
In that 	case, 	O'Connell 	alleged that the union had, not
represented unit members 	fairly, 	and that 	internal 	decisions,
some 	of 	which were 	noted 	above, 	affected 	her 	ability to
participate 	in the union's 	affairs. 	The 	charge was 	dismissed
at 	the 	end of 	the month on the grounds 	that 	it was 	untimely,
and 	that 	it 	involved 	internal 	affairs 	of 	the union beyond
PERB's 	jurisdiction.
The 	second 	charge was 	filed 	in 	September 	1985 	and 	grew 	out
of 	the 	flyer 	distributed 	through 	CSU mails 	that 	urged 	rejection
of 	the CSEA contract with the 	employer. 	(Case No. 	SF-CO-9-H.)
As 	noted 	above, 	the chapter 	president 	filed 	a 	grievance 	over
use 	of 	the mails 	for 	that 	dissenting 	purpose. 	O'Connell was
then 	reprimanded by CSU, 	charged 	a 	small 	fee, 	and 	future mail
system 	access 	was 	restricted 	to 	specified 	CSEA officials.
O'Connell's 	September 	charge 	alleged 	that 	the 	union 	caused 	the
employer 	to 	deny O'Connell 	her 	right 	to 	use 	the mail 	system to
communicate with other workers. 	A complaint 	issued, 	but 	the
case was 	settled 	before 	a 	hearing.
The 	settlement was 	completed 	in December 	1985, 	just 	several
days 	prior 	to 	the 	initiation 	of 	decertification 	proceedings
against 	O'Connell. 	The 	settlement 	included 	recognition 	by CSEA
of 	the 	past 	practice 	regarding mail 	system access 	rights,
9

arguably 	accepting 	O'Connell's 	claim that 	her 	use 	of 	the mails
was 	protected 	as 	a 	past 	practice. 	The 	settlement 	also
incorporated 	a 	letter 	the 	union would 	send 	to 	management 	urging
that 	the 	reprimand 	given 	to 	O'Connell 	be 	removed 	from her
file. 	O'Connell 	testified 	that, 	as 	a 	result of 	the 	settlement,
she was 	using 	the 	campus mails 	to 	distribute 	a 	dissident 	union
newsletter.
Allegations 	were made 	at 	the 	hearing 	that 	O'Connell 	also
threatened 	to 	file 	other 	unfair 	practice 	charges 	in
conversations 	she 	had with CSEA officials, 	including Almquist,
the 	senior 	labor 	relations 	representative. 	The 	testimony 	about
such threats was vague, 	however, 	regarding 	the 	subject matter
of 	the 	disputes, 	and 	the 	seriousness with which O'Connell
pressed 	her 	case.
D. 	The 	Sexual 	Harassment 	Policy Grievance
In October 	1985, 	O'Connell 	filed 	a 	grievance 	against 	the
San 	Jose campus 	president's 	implementation of 	a 	systemwide 	CSU
policy 	that 	created 	a 	special 	procedure 	for 	sexual 	harassment
4Although 	the 	evidence 	about 	further 	charges 	was
uncertain, 	O'Connell 	did 	file 	a 	new charge 	in February 	1986,
after her 	decertification, 	that 	referred 	to 	facts 	arising 	in
1985. 	The charge 	(Case No. 	SF-CO-14-H) 	alleged that CSEA
improperly deprived 	employees 	of 	the 	funds 	needed 	to 	travel 	to
high-level 	grievance hearings, 	and 	that 	the union previously
had misrepresented 	the 	availability of 	such 	funding 	in 	order 	to
secure 	contract 	ratification. 	After 	dismissal 	by the General
Counsel, 	the 	Board 	partially 	reversed 	and 	remanded, 	concluding
that 	a 	prima 	facie 	case 	had 	been 	stated 	on 	the
misrepresentation 	issue. 	(See PERB Dec. 	No. 	596-H.)
10

complaints. 	O'Connell's 	grievance 	followed her 	initially-
unsuccessful 	attempt 	to 	meet with 	and 	represent 	an 	employee 	on
a 	sexual 	harassment 	issue. 	Although O'Connell 	did 	confer with
the employee 	later, 	she claimed 	that 	the presidential 	policy,
contrary to 	systemwide 	intent, 	superseded 	the 	established 	. . .
contractual 	dispute-resolution procedure, 	depriving 	the union
and employees 	of 	representational 	rights. 	The 	remedy 	sought 	by
O'Connell was 	twofold: 	withdrawal 	of 	the presidential 	policy,
and 	a 	letter 	to 	employees 	indicating 	that 	the 	contractual
procedure 	for 	representation 	could 	be 	used.
The grievance was 	filed 	at 	the 	second, 	non-presidential
level 	of 	the grievance procedure, 	and 	an 	administrator was
appointed to 	review O'Connell's 	claim. 	In 	late November, 	the
administrator 	ruled 	in O'Connell's 	favor, 	holding 	that 	the
contractual 	remedy was 	the 	exclusive 	procedure 	for 	sexual
harassment 	complaints 	by 	employees 	in 	the 	CSEA bargaining
units. 	The policy as 	a whole was 	not withdrawn, 	however,
because 	non-unit 	employees 	still 	could 	utilize 	the
non-contractual 	complaint 	procedure.
5At 	the 	PERB hearing, 	O'Connell 	asserted 	that 	the
grievance 	remedy would 	provide 	employees 	the 	option 	of 	pursuing
either 	the 	contractual 	or 	non-contractual 	remedies. 	Although
this might have been her 	intent, 	at 	a 	later 	stage 	after 	the
potential 	impact 	of 	the grievance was 	assessed, 	the 	language
used 	in the 	initial 	grievance 	filing 	did 	not 	preserve 	a 	dual
remedy option. 	Instead, 	the grievance 	explicitly called 	for
withdrawal 	of 	the 	non-contractual 	remedy established 	by 	the
campus 	president, 	and 	asked 	that 	employees 	be notified 	of 	the
contract's 	complaint 	procedure.
11

Organ 	testified 	that 	O'Connell 	had 	not 	informed 	him 	about
the 	sexual 	harassment policy grievance before 	it was 	filed, 	and
that 	the 	remedy exclusively confining 	complaints 	to 	the
contractual 	procedure was 	not 	desired 	by the union. 	Organ
stated 	that 	once 	he 	heard 	about 	the 	case 	after 	the November
decision, 	and 	learned 	of 	O'Connell's 	intent 	to 	elevate 	the
grievance to 	the third, 	campus-president 	level, 	he 	intervened
with 	the 	employer's 	representative 	to 	freeze 	the 	proceeding.
On December 	5, 	Organ confronted O'Connell 	about 	her 	allegedly
unauthorized 	action. 	That 	same day, 	O'Connell wrote 	to
management's 	representative 	also 	asking 	to 	temporarily 	halt
further 	proceedings.
For 	her 	part, 	O'Connell 	testified 	that 	she 	had 	informed
Organ 	about 	the 	grievance once 	it was 	filed, 	giving 	him the
relevant 	documents 	during 	regular 	meetings 	he 	held with 	local
union 	representatives 	in November. 	Other 	union 	representatives- .
testified 	that 	they 	observed 	O'Connell 	handing 	materials 	to
Organ, 	believing 	these 	to 	involve 	the 	sexual 	harassment 	policy
case, 	among 	others. 	Organ 	also 	admitted 	receiving 	a 	photocopy
of the grievance, 	dated October 30, 	1985, 	but claimed that he
disregarded 	the 	document 	and 	placed 	it 	in 	a 	stack of 	papers
because 	it was 	not 	related 	to 	an open 	file. 	While 	it 	can be
6This 	oversight was 	surprising 	in 	light 	of 	related
events. 	Organ 	had 	heard 	from O'Connell 	about 	the 	problem 	she
encountered 	conferring 	with 	an 	employee, 	and 	had 	initiated 	his
own 	conversations 	with Almquist 	to 	straighten 	out with 	CSU 	the
12

inferred 	that 	Organ 	knew or 	should 	have 	known 	about 	the
grievance 	after 	it was 	initiated, 	there was 	no 	evidence 	that 	he
consented beforehand. 	Under 	CSEA's 	policies, 	such consent
normally would 	be 	expected 	in 	a 	case 	that 	challenged 	a
campuswide directive implementing 	a 	systemwide policy.7
E. 	The AIDS Awareness Week Grievance
On November 9, 	1985, 	O'Connell, 	as 	a CSEA representative,
filed 	a 	grievance 	challenging 	the denial 	by her 	department 	of
apparent 	confusion between the 	systemwide, 	campus 	and
contractual policies. 	While 	the 	text 	of 	the grievance did not
specify 	the 	representational 	denial 	first 	faced 	by O'Connell,
the 	general 	subject matter 	of 	a 	policy conflict was 	identified
and 	should 	have 	prompted Organ 	to 	at 	least 	inquire 	once 	he
received 	a 	copy of 	the grievance. 	Additionally, 	the 	grievance
form indicated, 	in an appropriately checked box, 	that 	a
systemwide policy violation was 	at 	issue. 	Organ's 	lack of
attention or 	poor 	recollection, 	evident 	also 	in connection with
a 	second grievance discussed below, 	is 	not 	attributable 	to
insincerity, 	for he 	freely admitted his 	own shortcomings, 	but
more 	likely 	resulted 	from the 	overextended 	nature 	of 	his 	job
responsibilities; 	he served 	as 	the sole paid 	staff
representative 	for 	3,000 	employees 	in 	four 	separate 	units
spread 	across 	five 	campuses 	throughout 	Northern California.
7 In 	O'Connell's 	rebuttal 	testimony, 	she claimed 	that 	she
had 	on 	other 	occasions 	filed 	grievances 	involving 	campuswide
policies without 	first 	getting 	authorization 	from Organ. 	When
pressed to 	specify the case(s), 	however, 	O'Connell was unable
to 	identify 	any comparable 	instance. 	O'Connell 	estimated 	that
she 	had 	handled 	20 	to 	40 	grievances 	in 	the 	period 	after Organ
began working 	with 	the 	San 	Jose 	chapter 	and 	before 	her 	ouster
as 	a 	steward. 	Moreover, 	even 	if O'Connell 	had 	leeway to
commence 	grievances 	and 	pursue 	them through 	the 	second 	level,
there was 	no 	evidence 	that 	she was 	authorized 	by Organ 	to
proceed 	to 	the 	presidential 	level 	after 	the 	administrator's
decision 	in 	late November. 	The 	testimony on O'Connell's 	behalf
placed 	all 	of 	her 	conversations 	about 	the 	case with Organ
earlier 	in the month, 	and 	there was 	no 	testimony with 	regard 	to
authorized 	proceedings 	at 	the 	presidential 	level.
13

of 	administrative 	time 	off 	to 	participate 	in AIDS Awareness
Week, 	a 	campus educational 	program for 	students, 	faculty and
staff. 	O'Connell 	alleged 	that 	employees 	previously had 	been
permitted 	to 	use 	informal 	release 	time 	to 	attend 	other
functions, 	including social events, 	and that the denial 	in her
case was 	inequitable 	and 	a 	deviation 	from past 	practice.
Several 	days 	after 	the 	grievance was 	filed, 	another 	CSEA union
representative, 	Stephanie Chavez, 	was 	substituted as 	the
official 	representative 	acting 	on O'Connell's 	behalf.
On November 	19, 	ten days 	after 	the 	grievance was 	submitted,
the 	campus 	newspaper 	published 	an 	article 	describing 	the
grievance 	and 	quoted O'Connell 	about 	the 	alleged 	inequitable
treatment. 	The press contact 	alone was not unusual, 	as 	the
evidence 	showed 	that 	other 	chapter 	officers 	and
representatives, 	as well 	as O'Connell, 	periodically publicized
pending 	grievances 	or 	other 	organizational 	activities. 	In the
article 	about 	the 	release time 	issue, 	however, 	O'Connell was
described as 	representing 	"employees," when, 	in truth, 	she was
the 	only aggrieved 	individual 	identified 	in 	the 	grievance. 	The
article 	also 	elaborated 	on the 	theory of 	the grievance, 	citing
in detail 	the allegations 	about 	other 	social, cultural and
educational 	events 	for which 	administrative 	time 	off 	had 	been
given. 	By so 	arguing 	in favor of 	a past 	practice parallel 	for
AIDS Awareness Week, 	and 	attributing 	the 	argument 	to 	CSEA
generally, 	O'Connell 	gave campuswide prominence 	to 	the 	conflict
she 	had with 	her 	departmental 	managers.
14

The 	grievance 	and 	press 	accounts 	apparently distressed
O'Connell's 	intra-union 	critics. 	They 	feared 	that 	the
grievance 	might 	jeopardize 	discretionary 	administrative 	release
time 	for 	a 	range 	of 	social 	and campus 	activities. 	This
distress was communicated to Organ, 	who, 	in early December,
confronted 	O'Connell 	about 	the 	grievance. 	. ..
According 	to Organ, 	the 	grievance was 	filed without 	his
authorization, 	and 	contrary to 	objections 	he 	had 	expressed 	in
early November. 	Organ 	testified 	that 	in November 	he 	told
O'Connell 	that 	the 	administration 	had 	the 	discretion 	to 	allow
informal 	release 	time, 	and 	that 	the 	contract 	did not 	support
her 	claim. 	Organ 	also 	suggested 	that 	other 	employees 	enjoyed
time 	off 	that 	could 	be 	adversely 	affected 	by 	a 	general 	CSU
cutback 	in 	response 	to 	the 	grievance. 	When O'Connell 	asked
what 	CSEA would do 	about 	the 	issue, 	Organ 	said 	a 	letter 	from
the union would 	be 	sent 	seeking 	time 	off 	for 	employees.
8A 	key 	grievance 	that 	O'Connell 	compared 	to 	her 	AIDS
Awareness 	Week dispute 	involved 	a 	conflict 	the year 	before 	over
time 	off 	to 	attend Women's Week functions. 	O'Connell 	made 	the
comparison 	in her 	talk with Organ, 	in the grievance 	itself, 	and
during 	the unfair 	practice 	hearing. 	While 	the 	two 	issues 	bear
a 	resemblance, 	Organ testified, 	without contradiction, 	that 	the
Women's 	Week grievance 	sought 	continuation of 	a 	practice
approved 	by 	the 	campus 	president 	and 	followed 	in 	prior 	years
for 	that 	event. 	In contrast, 	the AIDS Awareness Week grievance
did not 	involve withdrawal of 	a practice, 	but extension to 	a
new 	event 	for which management 	had 	never 	granted 	time 	off.
There was 	no 	evidence 	offered 	by O'Connell 	that 	the 	union 	had
ever 	grieved 	a dispute over 	the grant 	of 	new 	release 	time, 	as
O'Connell 	sought 	to 	undertake 	in 	this 	instance.
15

Organ conceded 	at 	the hearing 	that, 	when pressed 	further, 	he
told O'Connell 	she might 	have 	to 	file 	a 	grievance 	to 	get 	the
release 	time 	she 	desired. 	Organ's 	comment was 	heard 	by others,
but 	it 	was 	not 	clear 	from 	any 	testimonial 	account whether 	Organ
was 	authorizing 	an 	independent 	grievance 	or 	a 	grievance with
CSEA support. 	Given Organ's 	earlier 	stated objections, 	it 	is
unlikely he 	intended 	to 	give 	the 	go-ahead, 	although O'Connell
might 	have 	inferred 	from his 	comments 	that 	a 	union-backed
grievance 	could 	be 	filed.
g
Organ 	stated 	that 	he 	did 	not 	learn 	about 	the AIDS Awareness
Week 	grievance 	until 	early December, 	when O'Connell's 	chapter
opponents 	chided 	him for 	permitting 	it 	to 	go 	forward. 	Organ
then confronted O'Connell, 	at which 	time 	she 	claimed 	to 	have
informed 	him of 	the 	grievance 	during 	their 	meetings 	in
November. 	Organ 	thereafter 	indicated 	that 	the 	union would 	no
longer 	support 	the 	grievance 	or 	arbitration. 	Eventually,
O'Connell 	pursued 	the 	issue 	independently.
9 The 	possibility of 	a 	misunderstanding 	between 	the 	two
was 	underscored 	by 	a 	comment 	from one 	of 	O'Connell's
witnesses. 	He described 	the 	charging 	party as 	someone who
would 	have 	"screamed 	from the 	rafters" 	if 	her 	grievance was
blocked, 	followed by a 	flood 	of 	documentation 	protesting 	the
union's 	decision. 	This 	view of 	O'Connell was 	consistent with
the 	tone 	and 	volume 	of 	paper 	generated 	by O'Connell 	in
connection with her 	intra-union disputes. 	Also, 	as 	noted
above, 	the 	scope 	and demands 	on Organ created 	by his 	job might
have 	affected 	his 	ability 	to 	clearly 	organize 	and 	recall 	the
details 	of 	his 	everyday 	representational 	duties.
16

F. 	Decertification
In 	early 	and mid-December 	1985, 	Organ consulted with
Almquist, 	his 	supervisor, 	about 	the 	sexual 	harassment 	policy
and 	the AIDS Awareness 	Week grievance 	disputes 	he 	had with
O'Connell. 	In Organ's 	view, 	O'Connell 	had been 	an
irresponsible union 	representative, 	acting 	in disregard 	of 	the
labor 	representative's 	view, 	and 	advocating 	substantive
positions 	that 	could harm the 	interests 	of 	unit members. 	In
mid-month, 	Organ outlined his 	objections 	in a memo 	to
Almquist. 	On December 	19, 	Almquist wrote 	to 	Zech proposing
O'Connell's 	decertification 	as 	a 	union 	representative. 	On
December 	24, 	Zech gave O'Connell 	notice of 	a decertification
hearing 	to be held on January 11, 	1986, 	and sent 	a copy of
Almquist's 	complaint 	memorandum.
Three 	charges 	were 	filed 	against 	O'Connell. 	The 	first
involved 	the 	sexual 	harassment 	policy grievance, 	alleging 	that
O'Connell 	pursued 	the 	case without 	authorization 	to 	the
presidential 	level, 	despite 	the 	systemwide 	implications 	of 	the
grievance. 	The 	charge 	also 	claimed 	that O'Connell's 	action
jeopardized 	employee 	rights 	to 	use 	the 	non-contractual 	sexual
harassment 	complaint 	procedure.
The 	second 	decertification 	charge was 	that 	the AIDS
Awareness 	Week 	grievance was 	filed without 	authorization 	and
despite Organ's 	express 	disapproval, 	thereby 	jeopardizing
informal 	time off 	for diverse 	activities. 	The 	conduct 	by
17

O'Connell was 	characterized 	as 	a willful 	failure 	to 	follow
established 	union 	procedures.10
The 	third 	and 	final 	charge was 	that 	O'Connell's 	newspaper
interview about 	the 	release-time 	grievance was 	a 	misuse 	of 	her
union 	representative 	position, 	thereby 	jeopardizing 	informal
time 	off 	and discrediting 	the 	organization. . . .
The decertification hearing 	conducted 	on January 	11, 	1986
was 	a 	comparatively 	informal 	proceeding. 	Zech chaired 	the
three-person panel. 	The 	two 	other members were 	local 	campus
representatives. 	At 	the 	hearing, 	O'Connell's 	representative
made 	a 	statement, 	submitted 	a 	lengthy written 	response 	to 	the
charges, 	with exhibits, 	and was 	given an opportunity to
challenge 	the 	claims made 	by Organ 	and Almquist. 	O'Connell
could have 	offered 	the 	testimony of witnesses, 	but 	she 	claimed
that 	none were willing 	to 	travel 	from San 	Jose 	to 	Oakland 	on 	a
Saturday. 	Instead, 	written witness 	statements were provided. .' . .	.
Although O'Connell 	requested 	taping 	or 	transcription 	of 	the
hearing, 	this was 	denied because of 	the 	informal 	nature of 	the
proceeding. 	O'Connell's 	request 	to 	disqualify two 	of 	the 	panel
members, 	apparently not 	supported by a 	showing 	of 	bias, 	also
was 	rejected.
During 	the 	session, 	Almquist, 	who presented 	the case
10Chavez, 	who 	took over 	this 	grievance 	a week after 	it
was 	filed, 	but who 	had 	not 	been 	forewarned 	of 	union objections
by Organ, 	was 	not disciplined or decertified.
18

against O'Connell, 	referred not merely to 	the charges 	set 	forth
in the written decertification proposal, 	described 	above, 	but
also 	to 	the 	fact 	that O'Connell 	had 	filed 	one 	or more 	unfair
practice 	charges 	against 	the union. 	Almquist 	suggested 	that
this 	added 	to 	the 	evidence 	that 	O'Connell 	was 	not 	the 	kind 	of
representative the union desired. 	Almquist was 	not 	called 	as 	a
witness 	by the union at 	the 	PERB hearing, 	and 	the 	statements 	he
made were 	not 	clearly denied 	in 	respondent's 	case.11
The 	hearing 	panel 	unanimously 	recommended 	that 	O'Connell 	be
decertified. 	According 	to 	Zech's 	uncontradicted 	testimony, 	the
panel 	in 	its 	deliberations 	considered 	only 	the 	three 	charges
lodged 	against O'Connell, 	excluding 	the 	references 	by Almquist
to unfair 	practice 	charges.
The 	panel's 	recommendation was 	transmitted 	to 	the 	division
council 	for 	its determination on January 25, 	1986. 	The council
heard 	from one witness 	on O'Connell's 	behalf, 	but 	otherwise
reviewed 	only 	the 	documentation 	and 	report 	forwarded 	by 	the
11During 	the 	hearing, 	there 	also was 	testimony 	that
Almquist 	stated 	a 	CSEA 	steward 	could 	not 	file 	individual,
personal 	grievances, 	while 	retaining 	representative 	status.
O'Connell 	argues 	that 	this 	is 	an unlawful 	condition on union
stewards 	because 	it 	forces 	them to 	abandon 	a 	HEERA 	right 	to
file contract 	grievances. 	Although this 	might 	be 	a 	sound
argument 	for 	another 	case, 	evidence on this 	issue was
irrelevant to the current charge, 	except, 	perhaps, 	for
credibility purposes. 	This 	is 	so 	because O'Connell 	did 	not
file 	either 	the 	sexual 	harassment 	or 	the AIDS Awareness 	Week
grievances 	as 	an 	individual, 	but pursued each as 	a designated
CSEA representative. 	It was 	on that basis, 	and the question of
notice 	and 	authorization, 	that 	the decertification was
undertaken.
19

hearing 	panel. 	The 	division council 	voted unanimously to
decertify O'Connell. 	One 	consequence 	of 	the 	decision,
according 	to O'Connell, 	was 	that 	she 	could not 	seek election 	as
a 	BUC Rep 	for 	her unit 	since 	a 	candidate had 	to 	be 	a 	steward 	to
be eligible.
During 	the 	decertification 	proceedings 	in 	January 	1986,
O'Connell 	(and her 	representative) 	asserted 	that 	CSEA had 	a
retaliatory motive 	based 	on 	O'Connell's 	intra-union 	political
positions 	and 	the 	opposition 	it 	had 	aroused. 	O'Connell's
point-by-point, 	eight-page written 	rebuttal 	of 	the charges
against 	her 	concluded:
In 	sum: 	these charges 	are completely without
foundation 	and 	are 	politically motivated 	by
a 	letter 	of 	resignation 	from the 	current
Chapter 	officers 	and 	the 	Guyton-appointed
committee coordinators. 	. . . 	In order 	to
placate 	these 	individuals, 	CSEA staff 	have
brought 	decertification 	charges 	against
O'Connell, 	one of 	the 	recognized 	leaders 	of
the 	progressive movement within Chapter 	307.
Since his 	assignment 	to 	SJSU, 	Organ has
become 	increasingly 	hostile 	towards
O'Connell 	and 	those 	other 	CSEA 	union 	reps
who 	support 	the progressive movement. 	In
short, 	he has 	been playing 	"chapter
politics."
Notes 	offered 	by the 	charging 	party of 	the 	remarks 	made 	by
O'Connell's 	representative 	at 	the 	January 	11 	decertification
hearing 	also 	indicate 	that 	political 	retaliation was 	imputed 	as
the motive 	for 	the 	CSEA 	action.
O'Connell's written 	rebuttal 	to 	the union's 	charges, 	quoted
above, 	did not 	refer to her unfair practice filings 	as 	a 	cause
20

for CSEA's 	reprisal, 	and 	only mentioned 	the mail 	system access
case 	in one passing 	comment. 	She 	did 	raise 	the unfair 	practice
basis 	for her decertification, 	however, 	as one of 	several
alleged motivating 	factors 	in 	the 	unfair 	practice 	charge 	and
amended 	charge 	that 	led 	to 	the 	instant 	complaint. 	When
O'Connell 	was 	asked 	at 	the 	hearing why 	she 	had 	not 	referred 	to
her 	prior 	unfair 	practice 	filings 	when 	fighting 	the
decertification 	attempt, 	even though a CSEA associate 	at 	the
San Francisco 	State campus 	serving 	as 	an 	intermediary had
suggested that 	rationale, 	she gave two 	explanations. 	She
stated 	she would 	have 	included 	the 	allegation 	had 	it 	been
drafted 	for 	someone else, 	and 	not 	as 	part 	of 	the 	internal
exhaustion of 	remedies. 	O'Connell 	also 	testified 	that, 	in her
view, 	the mail 	system unfair 	practice 	charge 	to which Almquist
alluded was 	the 	predominant 	reason 	for 	CSEA's 	retaliation
because 	it 	opened use of 	the mails 	to 	dissidents 	to 	criticize
the 	union.
CONCLUSIONS 	OF 	LAW
A. 	Introduction
O'Connell 	contends 	that 	her 	decertification was 	a 	reprisal
for 	activity 	protected under 	the 	HEERA, 	referring 	specifically
in her 	post-hearing 	briefs 	to 	the 	filing 	of 	grievances 	to
enforce contract 	rights, 	and 	to 	the 	filing 	of 	unfair 	practice
charges.12 As 	legal 	authority 	supporting 	PERB 	review of 	a
12The 	charging 	party did not 	argue 	in her 	brief, 	as 	the
complaint 	had 	alleged, 	that 	her 	press 	contacts 	and 	her 	interest
21

union's 	internal 	retaliatory 	actions, 	O'Connell 	relies 	on
California 	School 	Employees 	Association 	and 	its 	Shasta 	College
Chapter #381 	(Parisot) 	(1983) 	PERB Decision No. 	280. 	In
Parisot, 	the Board 	remanded 	for 	hearing 	a 	charge 	that 	a 	union
officer 	and member 	was 	unfairly 	and 	excessively disciplined 	for
internal 	union 	activity, 	although 	recognizing 	that 	conduct
hostile to the union, 	such as 	a decertification drive, 	could be
grounds 	for 	some degree 	of 	union punishment.
Parisot was 	distinguished 	by 	the 	PERB 	from 	Service
Employees 	International Union. 	Local 	99 	(Kimmett) 	(1979) 	PERB
Decision No. 	106. 	Kimmett 	established 	the general 	rule 	that
internal 	union 	affairs 	would 	be 	reviewed 	by the 	PERB 	only when
the 	activities,
. . . 	have 	a 	substantial 	impact 	on 	the
relationship 	of 	unit members 	to 	their
employers. 	. 	. 	. 	(Id. 	at p. 	1 0 . ) 1 3
in 	running 	for 	an elected position were 	protected 	conduct.
These 	issues were mentioned 	in her 	brief 	only as 	further
evidence 	suggesting 	an unlawful 	motivation 	for 	her
decertification by CSEA. 	Given 	the distinction, 	the
complaint's 	allegations 	about 	those 	aspects 	of 	the 	case 	as
protected 	activity will 	not 	be 	considered 	as 	potential
violations 	standing 	alone.
13 The 	Board 	explained 	its 	rationale 	by 	stating:
The 	internal 	organization 	structure 	could 	be
scrutinized 	as 	could 	the 	conduct 	of
elections 	for 	union 	officers 	to 	ensure
conformance with 	an 	idealized 	participatory
standard. 	However 	laudable 	such 	a 	result
might be, 	the Board 	finds 	such 	intervention
in union 	affairs 	to 	be 	beyond 	the
legislative 	intent 	in enacting 	the EERA.
(Id. 	at p. 	16.)
-
22

Kimmett's 	"substantial 	impact" 	test 	is 	utilized 	for 	assessing
claims 	that 	internal 	organizational 	conduct 	either was
discriminatory or was 	a 	breach of 	the union's 	duty of 	fair
representation. 	(Id. 	at pp. 	10, 	16.) 	Hence, 	O'Connell argues
that 	her 	decertification was 	not 	strictly 	an 	internal 	matter
because 	it 	involved 	her 	underlying 	right 	to 	file 	contract-based
grievances 	as well 	as 	her 	right 	to 	file unfair 	practice charges
to 	protect 	her 	participatory 	interests.
CSEA does 	not, 	and could not, 	dispute O'Connell's 	claim
that 	her 	contract 	grievances 	and 	unfair 	practice 	filings 	were
activities 	usually deserving 	protection under 	the HEERA. 	In
each 	instance, 	employer-employee 	relations 	were 	underlying
elements of O'Connell's 	actions, 	whether, 	for example, 	it was
contract 	enforcement 	or 	use 	of 	the mail 	system to 	communicate
with others 	about 	contract 	ratification. 	The Association
counters, 	however, 	that HEERA protections 	do 	not 	apply to 	the
present 	facts, 	and that Parisot 	is distinguishable. 	CSEA
contends 	that 	its 	action 	against 	O'Connell was 	a
self-protective 	internal 	union 	response within 	the 	discretion
of 	the 	organization when 	faced with 	an 	irresponsible 	union
steward, 	asserting 	that O'Connell's 	misconduct was 	the 	cause
for union decertification, 	not 	the grievances 	or unfair
practice 	filings 	per 	se.
In examining the parties' 	arguments, 	a 	strong presumption
favors 	PERB 	restraint when 	the 	ordering 	of 	internal
23

organizational 	affairs 	is 	challenged. 	This 	is 	the principle 	to
be drawn 	from Kimmett. 	which 	involved 	the 	choice 	of 	negotiators
and the timing 	of meetings, 	among 	other 	issues. 	This 	principle
also 	is 	present 	in other 	Board decisions 	in which 	internal
union 	decisions 	regarding 	selection 	of 	representatives 	and
procedures were 	largely 	immunized 	from PERB 	review. 14 While
there 	is 	precedent 	in 	federal 	labor 	relations 	experience 	to
protect, 	for example, 	the 	right 	to 	file unfair 	practice charges
against unions,15 it must 	be demonstrated 	that 	the union's
punishment was motivated by the 	filing 	of 	the 	charge, 	and 	not
by 	internal 	organizational 	decisions 	to 	regulate 	legitimate
union
1 4 See, 	e.g., 	California State Employees' 	Association
.(Lemmons 	and Lund) 	(1985) 	PERB Decision No. 	545-S 	(removal of
union steward); 	California School Employees Association.
Chapter 318 	(Harmening) 	(1984) 	PERB Decision No. 	442 	(recall of
chapter president); 	El Centro Elementary Teachers Association
(Willis) 	1982 	PERB Decision No. 	232 	(barring non-member voting
on contract 	ratification); 	Rio Hondo College Faculty
Association 	(Furriel) 	(1986) 	PERB Decision No. 	583 	(composition
of sabbatical 	leave committee).
1 5 See, 	e.g., 	NLRB v. Marine Workers 	(1968) 	391 U.S. 	418;
H.B. 	Roberts v. 	NLRB 	(D.C. 	Cir. 	1964) 	350 F.2d 427
[59 LRRM 2801]; 	Iron Workers 	(1985) 	277 NLRB No. 	99
[121 	LRRM 	1001].
The 	construction of 	similar 	or 	identical 	provisions 	of 	the
National Labor Relations Act 	(NLRA), 	as amended, 	29 U.S.C,
section 151 	et 	seq., 	may be used 	to 	guide 	interpretation of
California 	labor 	relations 	legislation. 	(See 	San Diego
Teachers Assn. 	v. 	Superior Court 	(1979) 	24 Cal.3d 1, 	12-13;
Fire Fighters Union v. 	City 	of Vallejo 	(1974) 	12 	Cal.3d 	608,
616.) 	Compare 	section 3571.l(b) 	of 	the HEERA with 	the NLRA's
section 8(b)(l) 	(29 U.S.C, 	sec. 	158(b)(l)), 	each of which
prohibits 	an 	organization 	from 	restraining 	or 	coercing
employees 	in 	the 	exercise 	of 	protected 	rights.. . .
24

16interests. 	Unions, 	therefore, 	are given the 	latitude, 	as
are employers, 	to make decisions 	about 	their own management,
provided 	such 	decisions 	are 	not 	unlawfully motivated.17
Indeed, 	O'Connell, 	a 	staunch and active unionist,
16NLRB v. Marine Workers, 	supra, 	391 U.S. 	at 424, 	and
other decisions 	cited supra, 	fn. 	15. 	In determining whether
- -unlawful 	retaliation has 	occurred, 	the PERB has 	adopted 	a
standard, 	expressed 	in California 	State 	University, 	Sacramento
(1982) 	PERB Decision No. 	211-H, 	at pp. 	13-14, 	that is
consistent with 	the 	Supreme Court's 	analysis 	in NLRB v.
Transportation Management Corp. 	(1983) 	462 U.S. 	393, 	cited in
Santa 	Clara Unified 	School 	District 	(1985) 	PERB Decision
No. 	500. 	This 	test 	requires 	the trier 	of 	fact 	to weigh both
direct 	and 	circumstantial 	evidence 	in 	order 	to 	determine
whether 	an 	action would 	not 	have 	been 	taken but 	for 	the
exercise of 	protected 	rights. 	(Also 	see Martori 	Bros.
Distributors v. 	Agricultural Labor Relations 	Bd. 	(1981)
29 	Cal.3d 	721 	(same 	approach under 	state 	farm 	labor 	law).)
17Federal 	decisions 	applying 	laws 	other 	than 	the 	NLRA,
also 	recognize 	the 	importance 	of 	union discretion 	over 	internal
affairs 	as 	part 	of 	the 	larger 	goal 	of maintaining 	healthy,
viable unions 	that 	can contribute 	to 	stable 	and 	productive
bargaining 	relationships. 	For example, 	in Finnegan v. 	Leu
(1982) 	456 U.S. 	431, 	the Supreme Court upheld the 	right of 	a
newly-elected 	union president 	to 	discharge 	an 	appointed
business 	agent who 	had 	supported 	the 	previous 	incumbent,
rejecting 	a 	claim premised 	on 	federal 	law 	protecting 	internal
union freedom of 	speech. 	In the 	last year, 	in Am. 	Fed. 	Gov.
Em. 	v. 	FLRA 	(D.C. 	Cir. 	1986) 	F.2d 	[124 LRRM 2015], a
court 	remanded 	a 	case 	involving 	an 	ousted 	union 	steward who
claimed 	that 	federal 	public 	sector 	labor 	relations 	law
prohibited 	retaliation 	for 	reporting 	misconduct 	by 	another
employee. 	The court, 	in a decision by Judge Harry T. 	Edwards,
a 	respected 	labor 	relations 	scholar, 	required 	the 	agency to
explain why 	it 	departed 	from the 	general 	rule 	of 	restraint 	when
considering 	internal matters 	typically 	left 	to 	a 	union's
discretion. 	A 	recent 	appellate decision under 	the 	NLRA
followed 	similar 	reasoning 	in 	reversing 	a 	portion of 	an NLRB
unfair 	practice 	order 	against 	a 	union 	for 	disciplining 	a
dissident 	newspaper 	publisher, 	with 	the circuit 	court
concluding 	that 	the 	employer-employee 	relationship 	had 	not 	been
affected. 	(NLRB v. 	Operating Engineers 	Local 	139 	(7th Cir.
1985) 	796 	F.2d 	985 	[123 	LRRM 2021].)
25

recognizes 	in her 	brief 	the 	limits 	of 	her 	own 	legal 	arguments
and 	the 	question 	to 	be 	resolved:
The 	authority of 	CSEA 	to 	discipline 	its
agents 	for 	breaches 	of 	internal 	union policy
and procedures 	is 	not 	at 	issue. 	This we do
not 	contest, 	anymore 	than we would 	contest
the 	authority of 	an employer 	to discipline
an employee 	for 	a work rule violation. 	This
authority of CSEA, 	however, 	cannot be used
as 	a 	smokescreen behind which 	reprisals 	are
taken 	against 	a 	union dissident 	for 	exercise
of 	rights 	under 	HEERA.
With the 	issues 	thus 	posed, 	as 	explained hereafter, 	it 	has
been 	concluded 	that 	O'Connell's 	decertification was 	not 	a
reprisal 	for 	the 	exercise 	of 	protected 	rights. 	For 	procedural
reasons, 	the claim that O'Connell was 	deprived of 	fair
representation 	by CSEA 	also 	shall 	be 	dismissed.
B. 	The Reprisal Claim
The 	charging 	party presented 	a 	prima 	facie 	case 	of 	an
unlawful 	reprisal 	by the Association. 	First, 	O'Connell's
decertification 	followed 	the 	then-recent 	filing 	of 	an 	unfair
practice 	charge 	and 	the 	issuance 	of 	a 	complaint 	by the 	PERB.
The 	settlement 	of 	that 	case, 	shortly before 	the decertification
began, 	did not 	involve 	an admission of CSEA liability, 	but 	it
was 	favorable 	to O'Connell. 	It 	could 	be 	inferred 	that 	the
Association might 	have 	struck back 	at 	her 	through 	another
proceeding.
Second, 	there was direct 	testimony, 	not clearly denied,
that Almquist 	raised 	the 	subject 	of 	O'Connell's 	unfair 	practice
filings 	at 	the 	time of 	her decertification hearing, 	adding 	the
.. .
. . ' ... . .
26

reference 	to 	the other written claims 	against 	her. 	Since
Almquist was 	the 	senior 	labor 	relations 	representative who
helped 	initiate 	the 	decertification 	effort 	by 	transmitting 	the
problems 	reported 	by Organ, 	there 	can be 	little 	doubt 	that 	he
played 	a 	key 	role 	in the 	evolving 	confrontation.18
Last, 	a 	prima 	facie case 	is 	supported by the deficiencies
in the Association's determination that 	there was 	"cause" 	to
remove O'Connell 	from her 	steward's 	post. 	Several 	aspects 	of
the 	case were weak. 	There was 	credible 	evidence 	that 	Organ
knew or 	should 	have 	known 	about 	the 	sexual 	harassment 	grievance
earlier 	than he 	claimed 	he 	knew. 	The decertification 	charge
incorrectly 	stated 	that 	the 	sexual 	harassment 	grievance was
filed 	at 	the 	presidential 	level when 	it 	actually was 	filed 	one
level 	below. 	A CSEA grievance 	seeking 	release 	time 	from CSU
for Women's Week had been pursued 	in the past, 	and 	it 	raised
issues 	similar 	to 	those 	in the AIDS Awareness Week dispute.
The 	claim 	involving 	O'Connell's 	press 	contact 	about 	the 	AIDS
grievance 	seemed 	overblown when 	examined 	in 	light 	of 	evidence
that 	other 	chapter 	activists 	at 	San Jose had 	regular 	press
contacts 	on pending matters. 	Regarding 	all 	of 	the charges,
there was 	no 	evidence 	that 	the decertification was 	a
progressive 	step 	following 	prior 	counseling 	or 	written warning,
1 8 The 	inference 	about Almquist's 	bias 	also was 	supported
by O'Connell's 	hearsay 	account 	of 	her 	conversation with 	a 	CSEA
intermediary 	from the 	San Francisco 	State 	campus.
27

as 	one might expect when 	"cause" 	is 	at 	issue. 	These weaknesses
in the Association case, 	while not 	conclusive on 	the question
of 	just 	cause 	for decertification, 	raise 	the 	inference 	that 	she
was 	removed 	for 	reasons 	other 	than 	those 	that were 	expressed 	by
the union.
Nonetheless, 	it 	is concluded that 	the Association
demonstrated 	that 	O'Connell's 	unfair 	practice 	and 	grievance
filings 	were 	not 	the 	reason 	she was 	decertified. 	Several
aspects 	of 	this case, 	taken together, 	support 	the 	respondent's
defense 	to 	the 	reprisal 	claim.
First, 	even 	if Almquist 	harbored 	some 	animus 	toward
O'Connell 	based 	on her 	earlier 	unfair 	practice 	charge, 	there
was 	unrebutted 	evidence 	from 	Zech 	that 	the 	three-person 	hearing
panel 	reviewed 	only 	the written charges 	against 	O'Connell, 	and
did 	not 	consider Almquist's 	supplemental 	remarks 	made 	at 	the
hearing. 	The 	hearing 	panel's 	recommendation was 	then 	forwarded
to 	the division council, 	which 	affirmed 	the decertification.
There was 	no 	suggestion 	in 	the 	record 	that 	the division council
had 	any 	information 	about 	protected 	activity which 	could 	sway
its 	decision. 	Under these circumstances, 	Almquist's 	animus
against O'Connell 	for her 	resort 	to 	PERB, 	assuming 	it was 	his
predominant motivation, 	cannot 	automatically be 	ascribed 	to 	the
other 	decision-making 	bodies 	for 	CSEA. 	(See 	Konocti 	Unified
School Dist. 	(1982) 	PERB Dec. 	No. 	217 at pp. 	10-11
(superintendent's 	anti-union 	animus 	not 	imputed 	to 	school 	board
28

after 	independent 	hearing 	to 	impose discipline).)
Second, 	even 	if 	the Association's motive 	to decertify
O'Connell was mixed, 	composed of 	unlawful 	as well 	as 	lawful
bases, 	the evidence does 	not 	lead 	to 	the conclusion that
O'Connell's 	ouster 	as 	a 	union 	representative would 	not 	have
occurred but 	for 	her protected 	activity. 	The 	decertification
charges, 	while 	imperfect 	and deficient 	in some 	respects, 	did
set 	forth certain 	allegations 	that were 	supported by 	the 	facts.
In 	the 	sexual 	harassment 	policy grievance, 	O'Connell
clearly violated 	the 	spirit 	if 	not 	the 	letter 	of 	union policy
by proceeding without 	any 	advance 	clearance 	to 	challenge 	a
campus-wide 	presidential 	policy—setting 	in motion 	a 	process
that 	would 	presumably 	require 	presidential 	intervention.
O'Connell's 	proposed 	remedy 	also 	was 	understandably 	troubling
from the 	standpoint 	of 	the 	exclusive 	representative. 	By
seeking withdrawal 	of 	the presidential 	policy, 	rather 	than
merely 	reaffirming 	the 	viability of 	the 	contractual 	complaint
procedure, 	O'Connell was 	making 	a 	decision divorced 	from
consultation 	about 	larger 	bargaining 	tactics 	and 	strategy. 	The
decertification, 	in 	any event, 	only followed upon Organ's
effort 	to 	freeze 	the grievance 	after 	learning 	that 	it was 	about
to be elevated 	to 	the third, 	presidential 	level.
The AIDS Awareness 	Week 	grievance was 	perhaps 	more
troubling 	from the Association's 	standpoint 	because 	of 	evidence
that 	Organ 	had 	expressed 	contractual 	and 	practical 	objections
29

to 	the 	grievance proposed by O'Connell. 	Under 	these
circumstances, 	O'Connell 	should 	have 	acted more 	cautiously 	both
before 	and 	after 	filing 	in the Association's 	name, 	trying 	to
work with 	Organ 	step-by-step 	rather 	than 	challenging 	his
perspective. 	This 	approach was 	called 	for, 	even 	if Organ's
early November 	remarks 	were misunderstood 	to 	permit 	a
CSEA-sponsored 	filing, 	because 	O'Connell 	knew or 	should 	have
known 	that 	others 	in the 	chapter would 	feel 	that 	their 	own
release 	time 	interests were 	threatened. 	Such 	a 	threat would
arise 	from the 	potential 	administrative 	response 	of 	cutting
back on 	time off 	in general 	in order 	to 	avoid 	further 	claims 	of
unequal 	treatment.
As 	noted 	before, 	the decertification charges 	also were weak
on the press contact 	issue. 	Yet, 	even on that point, 	the
Association had 	some cause 	for 	concern, 	assuming 	that 	Organ's
underlying 	reservations 	about 	the AIDS Awareness 	Week 	grievance
were 	appropriate 	and were 	understood 	by O'Connell. 	The 	press
contact 	aggravated 	the 	situation, 	with 	the 	notoriety possibly
raising 	the 	stakes 	for 	O'Connell's 	union opponents 	as well 	as
the 	University 	administration.
Overall, 	on the issue of cause, 	the Association's
decertification of 	O'Connell 	had 	some 	basis 	in 	fact 	that was
sufficient 	to be viewed, 	subjectively, 	as 	reason for her
removal. 	While 	the 	absence of 	just 	cause can 	raise 	an
inference 	of 	retaliation, 	an objective 	analysis 	of 	cause does
not 	resolve 	the ultimate 	legal 	issue 	for 	the PERB. 	From the
30

Board's 	standpoint, 	the Association could have 	removed
O'Connell 	for 	the wrong 	or misstated cause, 	or 	even due 	to
personal 	ill will, 	as 	long 	as 	she was 	not decertified 	for
protected 	activity. 	(Moreland Elementary School 	Dist. 	(1982)
PERB Dec. 	No. 	227 at p. 	15; 	Regents of the University of
California 	(1983) 	PERB Dec, No. 	305-H at pp. 	12-13.)
Finally, 	the Association's defense was 	buttressed, 	oddly
enough, 	by 	the 	substantial 	evidence 	introduced 	by O'Connell
regarding 	the 	bitter 	conflicts 	within 	the 	San 	Jose 	chapter,
suggesting 	that 	her 	decertification was 	a 	final 	step 	for 	her
opponents, 	precipitated by the two grievance, disputes. 	In this
respect, 	O'Connell 	herself 	responded 	to 	the decertification by
characterizing 	it 	as 	a 	politically motivated 	attack, 	not 	even
referring 	to 	protected 	grievance 	and 	unfair 	practice 	activity
as 	the 	reason 	for her 	removal 	as 	a 	steward.19 This 	political
view of 	the 	conflict 	has 	a 	sounder 	ring 	to 	it, 	and underscores
19Moreover, 	O'Connell's 	attempt 	at 	the hearing 	to 	explain
the 	omission 	of 	any 	reference 	to 	protected 	activity during 	the
decertification was 	inadequate, 	thereby 	reinforcing 	the 	adverse
inference 	to 	be drawn from her written 	rebuttal 	to 	the
charges. 	First, 	O'Connell's 	claim that 	the protected 	activity
allegation was 	irrelevant 	to 	her 	exhaustion of 	internal
remedies, 	while her 	imputation of 	a political motive was
relevant to 	the CSEA process, 	is 	a distinction that does 	not
explain. 	Instead, 	it 	suggests 	that 	she 	shaped her 	theory to
fit 	the 	forum, 	not 	the 	facts. 	Second, 	characterizing her mail
access 	unfair 	practice 	case 	as 	the 	predominant 	reason 	for 	her
decertification, 	so 	that 	the union could 	exclude dissident
transmissions, 	ignores 	the 	fact 	that 	under O'Connell's 	theory
of 	the mail 	access 	case, 	and 	the 	apparent basis 	for her
settlement, 	her 	stewardship 	and 	decertification would 	be
unrelated 	to 	her 	right 	to use 	the mails 	for 	the concerted
expression of views.
31

the 	need 	for 	the 	Board 	to 	exercise 	restraint when 	called 	upon
to 	intercede 	in 	internal 	union 	affairs. 	Such 	restraint 	can be
particularly 	appropriate when 	intervention 	is 	sought 	by
employees who 	have 	lost 	union 	elections 	or 	have 	been 	removed
from appointed 	positions 	of 	authority.
C. 	The 	Fair 	Representation Claim
Under 	limited circumstances, 	violations 	that 	are not 	set
forth 	in 	the 	complaint may be 	considered 	as 	part 	of 	the
disposition of 	an unfair 	practice case. 	In Santa Clara Unified
School District 	(1979) 	PERB Decision No. 	104, 	the Board 	stated
that 	an unalleged violation may be 	reviewed 	if 	it 	is 	intimately
related to 	the 	subject matter, 	arises 	from the 	same course of
conduct, 	and has 	been fully 	litigated. 	(Also 	see 	San Ramon
Valley Unified 	School Dist. 	(1982) 	PERB Dec. 	No. 	230.)
O'Connell 	argues 	that 	the 	evidence 	of 	the Association's
handling 	of 	the 	sexual 	harassment 	and AIDS Awareness Week
grievances 	demonstrates 	a 	breach of 	the duty of 	fair
representation 	through 	a 	failure 	to 	enforce 	the 	literal 	terms
of 	the 	contract 	and 	a 	failure 	to 	prevent 	disparate,
discriminatory treatment. 	On 	the 	basis 	of 	the 	present 	record,
however, 	this 	unalleged violation 	cannot 	be considered without
causing 	prejudice 	to 	CSEA.
While 	the 	grievances 	were 	related 	to 	the decertification
proceeding, 	the 	fair 	representation 	issue was 	not 	squarely an
issue 	for CSEA to 	resolve 	internally. 	Rather, 	the Association
focused 	on 	procedural 	issues 	involving 	CSEA 	structure 	and
personnel.
32

Similarly, 	in the PERB proceeding, 	the Association was 	not
required 	on 	the 	basis 	of 	the 	complaint 	to 	defend 	at 	trial
against 	a 	fair 	representation charge, 	but only to demonstrate
the 	cause 	for O'Connell's 	removal. 	Although 	the 	contractual
issues 	have 	some 	relevance 	to 	that 	cause determination, 	the
Association 	presumably 	could 	have 	offered 	additional 	evidence
if 	faced 	from the 	outset with 	a 	fair 	representation case. 	For
example, 	what 	factors, 	apart 	from contract 	language alone,
influenced 	CSEA's 	decisions 	regarding 	the 	sexual 	harassment 	and
AIDS Awareness 	Week grievances? 	Were 	parallel 	talks 	or 	other
steps 	being 	pursued with CSU? 	To 	defend 	its 	position 	on 	the
grievances, 	CSEA might 	have 	offered 	evidence of 	bargaining
history about 	sexual 	harassment 	complaints, 	and of management's
right 	to 	give discretionary time 	off. 	More detailed 	evidence
about 	the 	disposition 	of 	other 	release 	time 	grievances 	based 	on
past 	practice 	also 	could 	have 	been 	appropriate 	to 	resolving 	the
dispute. 	Further, 	in 	response to 	a claim of discrimination on
the basis 	of 	sexual 	preference, 	the Association could have
presented 	other 	cases 	or 	bargaining 	demands 	it 	has 	handled.
All 	of 	these 	evidentiary categories 	would 	have 	been
relevant to 	a 	fair 	representation case. 	CSEA, 	however, 	was 	not
required 	to 	produce 	such evidence 	in order 	to 	litigate 	the
decertification dispute 	on 	the basis 	of 	the PERB complaint, 	and
the 	record 	at 	trial 	provided 	an 	incomplete 	basis 	for 	a 	decision
on the question. 	In short, 	finding unfair 	representation 	at
33

this 	juncture would 	deny 	the Association 	adequate 	notice 	and 	a
reasonable 	opportunity 	to 	defend.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the entire 	record 	in the case, 	it 	is 	hereby ordered 	that
the complaint 	shall 	be DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a 	party files 	a 	timely statement 	of
exceptions with the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 20 days 	of 	service of 	this 	Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of the 	record, 	if 	any, 	relied upon 	for 	such exceptions. 	See
California Administrative Code title 	8, 	part 	III,
section 32300. 	A document 	is 	considered 	"filed" 	when 	actually
received before 	the close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for 	filing, 	". 	. 	. o r when 	sent by telegraph or
certified 	or Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on 	a 	party or 	filed
34

with the Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	March 19, 	1987
BARRY WINOGRAD
Administrative 	Law 	Judge
35