State of California (Office of Lieutenant Governor) (PERB 0920S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(OFFICE OF THE
LIEUTENANT GOVERNOR),
Respondent.
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) 	Case No. 	S-CE-527-S
PERB 	Decision No. 	920-S
January 	14, 	1992
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Appearances: 	Sam A. 	McCall, 	Jr., 	Chief Legal Counsel, 	for
California Union of 	Safety Employees; 	Department of 	Personnel
Administration by Paul M. 	Starkey, 	Labor Relations Counsel, 	for
State of California, 	Office of the Lieutenant Governor.
Before Camilli, 	Carlyle and Caffrey, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by the California 	Union of
Safety Employees 	(CAUSE) 	of a Board agent's dismissal, 	attached
hereto, 	of its 	charge that the State of California, 	Office of the
Lieutenant Governor 	(State), 	violated 	section 3519(d) 	of the
Ralph C. 	Dills Act 	(Dills Act)1 by unlawfully supporting an
employee 	organization during a decertification 	effort. 	We 	have
reviewed the dismissal and, 	finding 	it 	to be 	free of prejudicial
error, 	adopt it as 	the decision of the Board itself.
In its 	opposition to the appeal, 	the State requests 	that the
Board order CAUSE 	to reimburse the 	State's 	attorneys' 	fees
1Ralph C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq.
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expended 	in defending this 	matter. 	The 	Board will 	award
attorneys' 	fees and costs where a case is without arguable merit,
frivolous, 	vexatious, 	dilatory, 	pursued in bad faith or otherwise
an abuse 	of process. 	(Chula Vista City 	School 	District 	(1990)
PERB Decision No. 	83 4, pp. 	73-74; 	United Professors of California
(Watts) 	(1984) 	PERB Decision No. 	398-H; 	El Dorado Union High
School District 	(1985) 	PERB Decision No. 	495, 	dismissal 	letter,
p. 	2.)
In support of 	its request, 	the State claims CAUSE'S 	argument
on appeal 	is without merit. 	On appeal, 	CAUSE maintains that the
appearance 	of 	authority 	on the part 	of 	the 	Lieutenant 	Governor
provides 	the 	requisite 	link to 	the Governor 	such that 	the
Lieutenant Governor 	should be 	considered to 	be 	an employer, 	for
the purposes of this 	case, 	as defined in the Dills Act.
In the present 	case, 	the 	State has 	not alleged that 	this
case was 	frivolous, 	vexatious, 	dilatory, 	pursued in bad faith,
or otherwise an abuse of process. 	Therefore, 	although the Board
herein dismisses 	CAUSE'S 	charge 	for 	failure 	to 	state 	a prima
facie case, 	thereby rejecting CAUSE'S 	argument on appeal, 	the
Board 	finds 	there 	is 	insufficient 	grounds 	upon which to 	award
attorneys' 	fees in this matter.
The unfair practice 	charge 	in Case No. 	S-CE-527-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Caffrey 	joined 	in this 	Decision.
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STATE OF CALIFORNIA 	_ _ _ 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
November 13, 	1991
Mr. 	Sam A. McCall, Jr.
California 	Union of 	Safety 	Employees
2029 	"H" 	Street
Sacramento, 	CA 	95814
Re: 	Californi--------a Union of Safety Employees 	(CAUSE) 	v. 	State of
California 	(Office 	of 	Lieutenant 	Governor)
Unfair Practice Charge No. 	S-CE-527-S
DISMISSAL 	LETTER
Dear Mr. McCall:
In the above-referenced 	case, 	the California 	Union of 	Safety
Employees 	(CAUSE) 	has 	alleged a violation of Government Code
section 3519(d). 	Specifically, 	CAUSE has alleged that the
Lieutenant 	Governor's 	Office 	has 	unlawfully 	supported 	an 	employee
organization during 	a decertification 	effort.
I 	indicated to 	you 	in my attached letter dated November 	5, 	1991
that the 	above-referenced 	charge did not 	state 	a 	prima 	facie
case. 	You were advised that 	if 	there were any 	factual
inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further advised that unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew it
prior to November 	12, 	1991, 	the charge would be dismissed.
I 	received your letter of November 	7, 	1991. 	In that 	letter you
stated 	in part, 	"During the time 	collective 	bargaining has 	been
progressing, 	the Governor has, 	in fact, 	traveled out of state;
and by constitutional mandate, 	the Lt. 	Governor was 	the temporary
representative 	of 	the employer." 	You point 	out that 	this 	event
occurred 	after 	the 	Lieutenant Governor had 	sent 	the 	letter 	at
issue. 	However, 	you have 	supplied no 	information which would
establish that, 	at the time of the alleged violation,
Leo 	McCarthy was 	the 	acting 	Governor or had 	been 	designated 	the
Governor's 	designated 	representative 	for 	labor 	relations
purposes. 	Accordingly, 	I 	am dismissing your charge 	for the
reasons 	contained 	in my November 	5 	letter.
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Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	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 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must 	be actually 	received by 	the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later 	than
the last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 1013 	shall apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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
copies 	of a 	statement 	in opposition within twenty calendar days
following the date of 	service of 	the 	appeal 	(California Code of
Regs., tit. 	8, 	sec. 	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 California Code of Regs., 	tit. 	8,
sec. 	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 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 	(California Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become 	final when 	the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By _
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	M. 	Jeffrey Fine
Deputy 	Chief 	Counsel
Department of 	Personnel Administration
Legal 	Division
1515 "S" Street
North Building, 	Suite 400
Sacramento, 	CA 	94244

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
November 5, 	1991
Mr. 	Sam A. McCall, Jr.
California 	Union 	of 	Safety 	Employees
2029 	"H" 	Street
Sacramento, 	CA 	95814
Re: 	California Union of Safety Employees 	(CAUSE) 	v. 	State of
California 	(Office of 	Lieutenant 	Governor)
Unfair Practice Charge No. 	S-CE-527-S
WARNING 	LETTER
Dear Mr. 	McCall:
In the above-referenced case, 	the California Union of Safety
Employees 	(CAUSE) 	has 	alleged a violation of Government Code
section 3519(d). 	Specifically, 	CAUSE has alleged that the
Lieutenant 	Governor's 	Office 	has 	unlawfully 	supported 	an 	employee
organization during a decertification effort.
On or about March 7, 	1991, 	Leo McCarthy, 	Lieutenant Government of
the State of California, 	sent a 	letter to Vic Trevisanut, 	a
primary 	organizer 	in the 	decertification 	effort 	in a 	bargaining
unit 	in which CAUSE 	is 	the 	exclusive 	representative. 	The 	letter
congratulated 	Trevisanut 	for his 	recent 	certification by 	PERB 	to
proceed with 	a 	representational 	election 	and 	noted 	that 	the
Laborer's 	union has 	"an 	excellent 	record of 	fighting 	for 	the
safety 	employees 	they 	represent." 	McCarthy 	saluted 	the
accomplishments 	of 	the California 	State Counsel 	of 	Laborers 	and
looked 	forward 	to 	continuing 	to work with 	them 	on 	important
issues.
Government Code 	section 3519(d) 	states:
It 	shall 	be unlawful 	for the 	state to do any of 	the
following:
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration 	of 	any
employee organization, 	or
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contribute 	financial 	or other support to 	it, 	or in
any way 	encourage 	employees 	to 	join any
organization in preference 	to another.
Government 	Code 	section 	3513 	defines 	certain terms 	used 	in 	the
Dills Act. 	Section 3513(j) 	states:
(j) 	"State employer," 	or 	"employer," 	for the
purposes 	of 	bargaining 	or meeting and
conferring in good 	faith, 	means 	the Governor
or his 	or her designated representatives.
Accordingly, 	Government Code 	section 3519(d) 	may only be violated
by the Governor or his 	designated 	representative.
You 	contend 	in your 	charge that 	"As 	Lieutenant Governor,
Mr. 	McCarthy 	is 	but a heart beat away 	from being the Governor.
At times, 	he has 	been and continues 	to be acting Governor
whenever the Governor 	is 	out 	of the 	state." 	You contend 	in your
letter of October 	8, 	that 	"Because the Lieutenant Governor 	in his
constitutionally-elected 	office 	is 	a 	representative 	of 	the
employer, 	his 	actions are attributed to the employer." 	However,
you have 	supplied no 	information which would 	indicate 	that, 	at
the time the 	letter was written by the Lieutenant Governor, 	he
was 	the acting Governor of the State of California. 	Nor, 	have
you 	supplied any 	information that, 	at 	the time 	the 	letter was
written, 	the Lieutenant Governor had been designated a
representative 	of 	the Governor 	for 	labor relations purposes.
Because Government Code, 	section 3519(d) 	can only be violated by
the Governor or his designated representative, 	your charge must
be 	dismissed.
For these reasons, 	the 	charge as presently written does 	not 	state
a prima 	facie 	case. 	If 	there are any 	factual 	inaccuracies 	in
this 	letter or 	any additional 	facts 	that 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 	must 	be 	signed 	under 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
November 	12, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney