State of California (Franchise Tax Board) (PERB 0954S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN MITCHELL,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(FRANCHISE TAX
BOARD),
Respondent.
) 	Case No. 	S-CE-452-S
PERB Decision No. 	954-S
October 21, 	1992
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CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(FRANCHISE 	TAX
BOARD),
Respondent.
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) 	Case No. 	S-CE-459-S
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MARILYN MITCHELL,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(FRANCHISE 	TAX
BOARD),
Respondent.
) 	Case No. 	S-CE-487-S
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Appearances: 	Carroll, 	Burdick & McDonough by Cathleen A.
Williams, 	Attorney, 	for California State Employees Association;
Department 	of 	Personnel Administration by Joan Branin, 	Labor
Relations 	Counsel, 	for State of 	California 	(Franchise Tax Board)
Before Camilli, 	Caffrey, 	and Carlyle, 	Board Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California State Employees Association 	(CSEA) 	to the attached
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proposed decision of an administrative law judge 	(ALJ). 	CSEA
alleged 	that 	the 	State of 	California 	(Franchise 	Tax Board) 	(FTB)
violated section 3519(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 ,
by 	interfering with 	its 	right 	to represent 	its members, 	when the
FTB 	took specified actions against Marilyn Mitchell 	(Mitchell), 	a
CSEA union 	chapter officer and 	job 	steward. 	The ALJ 	found 	that
Mitchell 	and 	CSEA failed 	to 	establish 	that 	incidents 	alleged 	in
three 	consolidated 	complaints 	interfered with 	or 	denied 	CSEA's
rights.
The Board, 	after review of 	the entire 	record, 	including the
transcript, 	exhibits, 	proposed decision, 	CSEA's exceptions, 	and
FTB's 	responses 	thereto, 	finds 	the ALJ's 	findings of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself 	consistent 	with 	the
discussion below.
CSEA'S 	EXCEPTIONS
On appeal, 	CSEA contends that: 	(1) 	the ALJ erred in finding
no 	interference with CSEA's 	rights under section 3519(b) 	of 	the
Dills Act; 	and 	(2) 	it was 	improper for the ALJ to exclude 	from
the 	hearing, 	evidence 	regarding allegations 	contained 	in an
1The 	Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in
pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
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adverse 	action taken against Mitchell 	involving a 	salary-
reduction.
DISCUSSION
CSEA contends 	that, 	because the 	record contains 	examples 	of
actions 	taken by 	FTB 	that violated Mitchell's 	rights 	to 	engage 	in
protected activity, 	FTB has 	also 	interfered with 	or denied CSEA
its 	rights. 
2
2 In other words, 	where a violation of 	section
3519(a) 	occurs and involves a union official, 	a violation of
section 3519(b) 	is presumed. 	In support of this position, 	CSEA
relies 	on Carlsbad Unified School 	District 	(1984) 	PERB Decision
No. 	HO-U-224, 	a non-precedential ALJ proposed decision.
We 	reject 	this 	argument. 	The ALJ 	in this matter 	followed
the 	proper approach 	for determining whether an 	independent
violation had occurred under section 3519(b). 	As 	the ALJ
stated, 	"The 	separate and 	independent Dills Act 	section 3519(b)
allegation 	is more 	than a mere 	technicality." 	Mitchell 	and CSEA
are 	required to establish a denial 	of 	CSEA rights, 	separate
and apart 	from the harm allegedly suffered by Mitchell, 	and
deferrable 	for 	resolution under 	the 	collective bargaining
2The 	hearing before 	the ALJ was 	held pursuant 	to 	three
complaints alleging violations 	of 	section 3519(b) 	of 	the Dills
Act. 	The 	complaints 	were based on 37 	specific measures 	taken
by 	FTB against Mitchell. 	As 	a result 	of preliminary procedural
rulings, 	the parties agreed to structure 	the order of proof.
The 	initial 	hearing 	addressed whether 	the 	37 	alleged 	incidents
of 	FTB 	conduct 	toward Mitchell 	interfered with 	or denied 	CSEA's
rights. 	If a negative impact had been demonstrated, 	a second
hearing would have been 	scheduled 	to 	consider whether 	the 	alleged
acts 	occurred and any 	justification 	or 	affirmative 	defenses 	set
forth by FTB. 	For the 	initial 	hearing and proposed decision, 	all
37 allegations 	in the 	complaints were deemed true.
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agreement.3 To establish a violation of 	3519(b) 	under these
circumstances, 	a 	charging party must 	show actual 	denial 	of 	the
union's 	rights 	under the Dills Act. 	A showing 	of 	theoretical
impact 	is 	insufficient.
CSEA details 	sixteen areas 	in which 	it 	asserts 	that Mitchell
and 	CSEA met 	their burden 	of 	demonstrating 	harm to 	representation
rights. 	The majority of 	the allegations merely describe harm to
Mitchell 	as 	an 	employee 	or as 	a 	job 	steward which 	is 	properly
deferrable 	to binding arbitration. 	As 	stated, 	such harm does
not 	form the basis 	for an 	independent 	denial 	of 	CSEA's 	right 	to
represent.
CSEA also 	contends 	the 	record 	contains 	testimony
establishing 	that 	it 	suffered harm because 	the 	actions 	by
FTB 	intimidated 	individuals 	other 	than Mitchell 	from union
participation.• 	Such an allegation, 	if proven, 	could be the
3CSEA and 	the 	state were parties 	to a 	collective bargaining
agreement 	which prohibited 	employer 	reprisals 	against 	employees
and 	job 	stewards 	and which 	entitled 	employees/job 	stewards/union
officers 	to 	reasonable 	release 	time 	and stewards 	to 	the use 	of
state 	telephones.
4 In May of 	1990, 	Mitchell 	sent an open letter to a group
of 	public 	and CSEA officials. 	It was 	also widely disseminated
throughout 	FTB. 	The 	letter 	listed many alleged 	FTB actions
which 	included 	threats 	against Mitchell 	for union 	involvement.
With regard 	to 	the 	letter, 	the ALJ concluded that 	"Any harm
and/or 	controversy 	sustained by 	the 	union 	cannot 	be 	attributed
to FTB, 	but must be attributed to Mitchell 	as 	the 	source of 	the
letter." 	We do not agree. 	The 	source of 	the 	information that
the 	employer has 	discriminated against 	or 	interfered with 	an
employee's 	exercise 	of protected activity 	is 	irrelevant 	to 	the
determination of 	harm. 	An employer may not 	absolve 	itself 	simply
by being 	silent 	about 	the discriminatory act. 	If 	an employer
acts 	illegally, 	the 	resulting harm to 	the union cannot be blamed
on 	those who broadcast 	information describing 	the 	actions.
However, 	the burden remains 	on the 	charging party to establish
that 	actual 	harm has 	occurred.
44

basis 	for a violation. 	However, 	CSEA did not 	carry its burden.
CSEA 	relied 	heavily 	on uncorroborated 	hearsay 	and 	testimony 	by
individuals 	claiming 	to 	have 	been 	intimidated by actions 	against
Mitchell 	but 	whose 	testimony demonstrates 	significant 	other
factors 	affecting 	their levels 	of union participation. 	Such
testimony was 	equivocal, 	not persuasive and 	insufficient 	to 	carry
the burden of proof. 	Accordingly, 	independent harm to CSEA's
right to represent was not established. 	Therefore, 	this
exception 	is 	rejected.
CSEA also 	contends 	that 	it was 	improper 	for 	the ALJ to
terminate Mitchell's 	case 	regarding a 	salary reduction. 	In the
proposed decision, 	the ALJ states, 	at page 56:
The 	two adverse 	actions 	against Mitchell 	were
timely appealed to SPB, 	the appropriate 	forum
for deciding whether 	the 	factual 	allegations
constitute cause 	for discipline. 	(Fn.
omitted.) 	The January 1991 	demotion is
pending before 	the 	SPB 	and Mitchell 	withdrew
her appeal 	from the June 	1990 	salary
reduction, 	thereby terminating the 	case.
CSEA contends 	that 	the ALJ, 	in effect, 	ruled that Mitchell
was 	required 	to 	exhaust 	her administrative 	remedies 	regarding
the 	1990 	salary 	reduction 	through 	the 	State 	Personnel 	Board 	(SPB)
or that withdrawal 	of 	her appeal 	resulted 	in 	the application of
collateral 	estoppel 	in this 	proceeding before PERB. 	According
to 	CSEA, 	the 	ruling prevented Mitchell 	and CSEA from presenting
evidence 	regarding 	the allegations 	contained 	in 	the 	adverse
action.
CSEA reads 	too much 	into 	the ALJ's 	statement 	regarding 	the
status 	of 	the 	SPB action. 	No allegation was 	dismissed on the
5

basis 	of 	either 	failure 	to 	exhaust 	administrative 	remedies 	or
collateral 	estoppel. 	Rather, 	certain allegations were dismissed
and properly deferred 	to 	the 	contractual 	grievance procedure.
The 	remaining 	allegations 	were 	dismissed because Mitchell 	and
CSEA 	failed 	to 	demonstrate 	that 	CSEA had 	suffered 	a 	denial 	of
its 	rights under the Dills Act. 	Had the allegations not been
dismissed, 	the propriety of 	actions 	taken against Mitchell 	and
the validity of 	any defenses 	would have been 	tested 	in a 	later
hearing. 	Accordingly, 	this 	exception is without merit.
ORDER
The unfair practice 	charges 	and 	complaints 	in Case
Nos. 	S-CE-452-S, 	S-CE-459-S 	and S-CE-487-S 	are hereby DISMISSED.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
66

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN 	MITCHELL,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(FRANCHISE
TAX BOARD),
R e s p o n d e n t .
)
)
) 	Unfair Practice
Case No. 	S-CE-452-S	)
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)
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)
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CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(FRANCHISE
TAX 	BOARD),
Respondent.
)
)
)
) 	Case No. 	S-CE-459-S
)
)
)
)
)
)
)
MARILYN 	MITCHELL,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(FRANCHISE
TAX 	BOARD),
Respondent.
)
)
) 	Case No. 	S-CE-487-S
)
)
)
)
)
)
)
PROPOSED 	DECISION
( 1 / 1 0 / 9 2 )
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.
______________ )
)
______________ )
)
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Appearances: 	Cathleen A. 	Williams, 	Esq., 	Carroll, 	Burdick &
McDonough, 	for Charging 	Parties 	Marilyn Mitchell 	and California
State Employees Association; 	M. 	Jeffrey Fine, 	Deputy Chief
Counsel, 	and Joan Branin, 	Labor Relations Counsel, 	Department of
Personnel Administration, 	for Respondent 	State of California
(Franchise 	Tax 	Board).
Before Christine A. 	Bologna, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
These 	consolidated unfair practice 	cases 	allege 	denial 	of 	an
employee organization's 	rights 	under the Ralph C. 	Dills Act
(Dills Act) 	as 	a result of actions 	concerning a union chapter
officer and 	job 	steward. 	The 	employer asserts 	a 	lack of
jurisdiction based 	on deferral 	to 	arbitration.
On June 	13, 	1990, 	Charging Party Marilyn Mitchell 	(Mitchell)
filed an unfair practice 	charge 	(Case No. 	S-CE-452-S) 	against the
State of California 	(Franchise Tax Board) 	(Respondent or FTB);
after two amended charges, 	on February 27, 	1991, 	the general
counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
issued a 	complaint alleging a violation of 	section 	3519(b)1 of
1Unless otherwise 	indicated, 	all 	references will be made 	to
the Government Code. 	The Ralph C. 	Dills Act is 	codified at
section 	3512 	et 	seq. 	and 	is 	administered by PERB. 	In pertinent
part, 	section 3519 provides that:
It 	shall be unlawful 	for the 	state to do 	any
of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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the Dills Act based on 22 	specified 	incidents. 	The general
counsel 	dismissed the 	section 	3519(a) 	allegation based on
deferral 	to 	arbitration but 	refused 	to dismiss 	the 	section
3519(b) 	claim on the 	same grounds. 	Respondent 	filed a 	timely
answer on March 	18, 	claiming a 	lack of PERB 	jurisdiction under
Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
aff'd. 	Elsinore Valley Education Association. 	CTA/NEA v. 	PERB
(1988) Cal.App.4th, Div.2, Case No. E005078 [nonpubl. opn.],
given dismissal 	of 	the 	(a) 	charge based on identical 	allegations,
and 	asserting 	a 	lack of 	particularity as 	to 	the 	alleged harm 	or
rights 	denied to Mitchell's 	employee 	organization. 	An 	informal
settlement 	conference 	conducted by 	a 	PERB 	administrative 	law
judge 	(ALJ) 	on March 26, 	1991, 	did not resolve the dispute.
. . .
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
On July 	19, 	1990, 	Charging Party California State Employees
Association 	(CSEA) 	filed 	an unfair practice 	charge 	against 	the
same Respondent 	(Case No. 	S-CE-459-S); 	on January 17, 	1991, 	after
'two amendments, 	the general 	counsel 	issued a complaint alleging a
violation of 	Dills Act 	section 	3519(b) 	by an adverse 	action taken
against Mitchell. 	On January 25, 	FTB filed a timely answer,
asserting 	that 	certain allegations 	occurred outside 	the 	six-
month 	statute 	of 	limitations 	in the 	Dills Act,2 and 	further that
2Dills Act section 3514.5(a) 	provides:
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the 	complaint 	failed 	to 	specify how and when CSEA was 	denied
statutory rights. 	The 	informal 	conference 	held by a 	PERB ALJ 	on
February 6, 	1991, 	did not settle the matter.
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file an
unfair practice charge, 	except that the board
shall 	not do either of the 	following: 	(1)
issue 	a 	complaint 	in respect 	of 	any 	charge
based 	upon 	an 	alleged 	unfair practice
occurring more 	than 	six months 	prior to 	the
filing of the charge; 	(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. 	. 	. 	.
On March 27, 	1991, 	Mitchell 	filed a 	second unfair practice
charge against FTB 	(Case No. 	S-CE-487-S); 	on April 25, 	the
general 	counsel 	issued 	a 	complaint 	alleging 	that 	Dills 	Act
section 	3519(b) 	was 	violated by 	15 	actions 	of 	Respondent toward
Mitchell. 	Mitchell withdrew the 	section 3519(a) 	and 	(c)
allegations 	and 	four 	specific 	factual 	contentions, 	and the
General 	Counsel refused to dismiss 	and defer the 	(b) 	claim. 	On
May 	15, 	FTB 	filed a timely answer, 	asserting a 	lack of
jurisdiction under Lake Elsinore School 	District, 	supra. 	PERB
Decision No. 	646, 	given contract coverage of the charges. 	The
parties 	waived 	a 	third 	informal 	conference 	before 	a 	PERB ALJ 	to
expedite 	the 	case 	for formal 	hearing.
The 	three 	consolidated 	complaints 	allege that FTB took 	3 7
specific 	measures, 	including two adverse actions 	of 	salary
4
I
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reduction and permanent demotion, 	against Mitchell, 	the CSEA
district 	council president 	and 	job 	steward 	for 	FTB 	employees,
from January 	1990 	through March 	1991.3
A prehearing conference was 	conducted on April 	2, 	1991, 	by
telephone. 	An order 	consolidating the 	three 	cases 	for 	formal
hearing 	issued April 	26.
On March 	18, 	1991, 	Respondent filed a motion to
particularize the 	complaint 	in Case No. 	S-CE-459-S, 	based on PERB
regulations 32615(a)(5) 	and 32640(a)4 (tit. 	8, 	Cal. 	Code of
Regs., 	secs. 	32615(a)(5) 	and 32640(a).) 	CSEA filed three
responses 	to the motion on August 	2, 	July 	12 	and August 	5,
respectively. 	On August 	2, 	FTB replied, 	stating that CSEA's
responses were 	insufficient, 	and moved 	for dismissal 	of 	the
complaints. 	On August 	9, 	CSEA filed its 	opposition to dismissal.
3The 	statute 	of 	limitations 	for all 	allegations 	commenced
January 	1990.
4PERB regulation 32615(a)(5) 	requires 	a 	charge to 	contain a
clear 	and 	concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute 	an unfair practice. 	PERB 	regulation 	32640(a)
provides:
. 	. 	. 	The complaint shall contain a statement
of 	the 	specific 	facts 	upon which Board 	juris-
diction is based, 	including the 	identity of
the respondent, 	and shall 	state with particu-
larity the 	conduct which 	is 	alleged to 	consti-
tute 	an unfair practice. 	The 	complaint 	shall
include, 	when known, 	when and where the conduct
alleged 	to 	constitute 	an unfair practice 	occurred
or is occurring, 	and the name(s) 	of the person(s)
who allegedly committed the acts in question. 	. 	. 	.
Un
	5

At 	the 	start of 	the 	formal 	hearing, 	the ALJ 	granted
Respondent's 	motion to particularize, 	requiring Charging Parties
to 	demonstrate 	that 	the 	37 	specified allegations 	had 	an effect
upon, 	harmed or otherwise denied CSEA's 	statutory rights 	under
section 	3519(b) 	of 	the Dills Act. 	The ALJ denied FTB's 	motion to
dismiss 	the 	complaints; 	although the applicable 	contract
prohibited 	reprisals 	by CSEA and 	the 	state 	against 	employees 	for
exercising Dills Act rights, 	and also precluded the 	state 	from
taking reprisals 	against 	job 	stewards, 	no clause 	in the 	agreement
barred 	or otherwise 	spoke 	to 	conduct denying or 	interfering with
CSEA's 	rights. 	Respondent also moved to dismiss 	certain
allegations 	of the complaint 	in Case No. 	S-CE-452-S, 	contending . . .
that 	an 	authorized 	representative 	of 	both Charging 	Parties 	had
agreed 	to drop 	those 	claims 	after meeting with 	FTB 	counsel 	over
particularization. 	The motion was 	denied, 	due to Mitchell's
filing 	of 	an amended 	notice 	of 	appearance which designated her 	as
co-counsel 	in Case Nos. 	S-CE-452-S 	and S-CE-487-S, 	before the
subject meeting, 	and because Mitchell 	did not 	join in the
dismissals. 	Both motions 	to dismiss were denied without
prejudice 	to 	renewal 	after 	the 	evidentiary hearing. 5
As 	a result of the preliminary procedural rulings, 	the
parties 	stipulated 	to 	structure 	the 	order of proof. 	Evidence was
5The parties 	also 	filed 	cross-motions 	to quash 	each 	other's
subpoena duces 	tecum. 	CSEA's 	motion to 	quash FTB's 	subpoena
duces 	tecum was denied, 	and documents 	dating from January 	1, 	1990
- April 	1, 	1991, 	were ordered to be produced and 	sealed with the
file. 	FTB's 	motion to quash CSEA's 	subpoena duces 	tecum was
granted 	in part and denied 	in part, 	subject to the 	same
limitations.
6

presented6 as 	to how the 	37 	alleged 	incidents 	of 	FTB 	conduct
toward 	Mitchell 	intimidated 	other 	employees 	from 	involvement 	in
the union, 	prevented representation of 	employees by CSEA, 	and
harmed or otherwise denied CSEA's 	rights 	under the 	Dills Act.
Charging 	Parties 	were 	required 	to 	demonstrate 	an adverse 	effect
upon CSEA's 	rights 	for each claim. 	If 	a negative 	impact upon the
union's 	rights was 	shown, 	a 	subsequent 	evidentiary hearing would
consider whether in fact the alleged act(s) 	occurred, 	with
Respondent presenting affirmative defenses, 	such as 	business
necessity or other 	justification. 	The 	focus 	of 	the hearing was
whether the allegations, 	if true, 	demonstrated a violation,
interference, 	or denial of CSEA's 	rights by a preponderance of
the evidence.
Formal hearing was held on August 	12, 	13, 	14, 	15
and 	16, 	1991, 	in Sacramento, 	California.7 With the filing of
post-hearing briefs, 	the 	matter was 	submitted 	for determination
of 	the bifurcated 	section 3519(b) 	allegations 	on October 21.8
Formal 	hearing 	on the 	claims 	demonstrating 	adverse 	impact 	on the
union's rights 	is 	scheduled for February 24-26, 	1992.9
6Witnesses 	were 	sequestered.
70n May 	16, 	1991, 	Charging Party CSEA requested a
continuance 	of 	the 	hearing 	based 	on 	retention of 	new counsel 	to
represent CSEA and Mitchell. 	Respondent 	agreed to 	continue 	the
hearing 	and hold the 	case 	in abeyance due 	to 	the pending
expiration of 	21 	state contracts.
8By 	stipulation, 	the briefing 	schedule was 	extended 	to
October 	18, 	1991. 	Only Respondent 	filed a post-hearing brief.
9The phase two hearing has 	been continued three 	times.
7

FINDINGS 	OF 	FACT
Charging 	Party Mitchell 	is 	a 	state 	employee within the
meaning of 	Dills Act 	section 	3513(c). 	Charging Party CSEA 	is 	an
employee organization under Dills Act 	section 3513(a), 	and the
exclusive 	representative 	of 	several 	appropriate units 	of 	FTB
employees within the meaning of 	section 	3513(b) 	of 	the 	statute.10
Respondent 	is 	a 	state employer under Dills Act 	section 3513(j).
Applicable 	Contract 	Language
The 	1988-1991 	unit 	4 	agreement between the State of
California 	and CSEA applied 	to Mitchell 	as 	a 	rank and 	file 	unit 	4
employee. 	Article 	6 	contains 	a grievance procedure which ends 	in
final 	and binding arbitration; 	either an employee 	or CSEA may
file 	a 	grievance but 	only CSEA may 	submit 	the 	grievance 	to
arbitration 	(secs. 	6.2 and 6.12).
Article 	2 	(Union Representational 	Rights) 	requires 	CSEA to
furnish a written list of union stewards, 	broken down by units
and designated area 	of primary responsibility, 	to 	each 	state
department 	and 	to 	the 	Department 	of 	Personnel Administration
(sec. 	2.1).11 The 	state 	must 	recognize 	and deal with CSEA 	job
stewards, 	elected bargaining unit 	council 	representatives 	and
10Section 3513(b) 	of the Dills Act defines 	a 	"recognized
employee 	organization" 	as 	an employee 	organization recognized by
the 	state 	as 	the 	exclusive 	representative 	of 	employees 	in an
appropriate 	unit. 	CSEA represents 	approximately 	2,500 	FTB
employees 	in several bargaining units; 	the 	largest 	is unit 	4
(Office and Allied).
nSection 	2.1 	defines 	a 	steward's 	area 	of primary
responsibility as 	an institution, 	office or building. 	Stewards
also 	may be 	assigned 	an 	area 	of 	primary 	responsibility which
covers 	several 	small 	offices 	or buildings within close proximity.
8

union staff on discipline, 	contract administration, 	PERB
proceedings, 	matters before the State Personnel Board 	(SPB) 	and
Board of Control, 	and certain statutory appeals 	(sec. 	2.1).
With advance notice, 	CSEA representatives 	have 	access 	to
employees which does 	not 	interfere with 	state work; 	where
restrictions 	are 	imposed, 	reasonable 	accommodations 	are 	required
(sec. 	2.2). 	Job stewards are entitled to reasonable use of 	state
phones 	for 	representation which does 	not 	interfere with 	state
operations, 	so 	long as there are no additional charges 	(sec.
2.3). 	Distribution of union literature is authorized in non-
work areas during non-work time 	(sec. 	2.4). 	State 	facilities may
be 	used 	for union meetings 	with 	advance 	notice 	and 	subject 	to 	the
operating needs of the state 	(sec. 	2.5).
Union 	stewards 	are 	allowed 	reasonable paid 	time 	off 	during
working hours 	for representation, 	provided the 	employee
represented 	is 	in 	the 	steward's 	department 	and designated 	area 	of
primary responsibility; 	release time. . is 	subject to prior
notification and approval by the 	steward's 	supervisor 	(sec. 	2.6).
Employees 	are 	entitled to 	reasonable paid 	time 	off 	during work
time 	to 	confer with union representatives 	on representational
matters 	at the 	site, 	subject to approval of the employee's
supervisor (sec. 2.7).
The 	state 	is 	prohibited 	from 	imposing or 	threatening
reprisals, 	discrimination, 	interference, 	restraint or coercion
upon union 	stewards 	because 	of 	the 	exercise 	of 	their rights 	under
the contract 	(sec. 	2.8). 	Article 5 bars both the 	state and CSEA
9
9

from 	imposing or threatening reprisals, 	discrimination,
interference, 	restraint or coercion against 	employees 	because of
their 	exercise 	of 	rights 	under the 	Dills 	Act or the 	contract
(sec. 5.5).
Article 	8 	governs 	leaves. 	A department may approve 	sick
leave 	only 	after ascertaining that 	the 	absence 	is 	for an
authorized reason. 	The 	state 	may require 	the 	employee 	to 	subject
substantiating 	evidence, 	including but 	not 	limited 	to 	a 	doctor's
certificate; 	if the supporting evidence is not adequate, 	the
request for sick leave is disapproved 	(sec. 	8.2).
. ". .
12
The union 	leave 	clause 	gives 	CSEA a 	choice 	of 	requesting a
paid 	or 	unpaid 	leave 	of 	absence 	for 	a 	union bargaining 	council
member, 	steward or chief 	job 	steward; 	union 	leave 	is 	granted at
the 	discretion of 	the department 	and CSEA reimburses 	the 	state
for the 	employee's 	salary and benefits 	(sec. 	8.6). 	A department
also may 	grant 	an unpaid 	leave 	for up 	to 	one year 	for union
activity 	(sec. 	8.7). 	• The state must provide reasonable paid time
off 	for 	a 	reasonable number of 	employees 	to 	attend 	SPB hearings
during work hours, 	upon advance notice of two workdays, 	where the
employee 	is 	a party or is 	specifically affected by the 	results 	of
the hearing and 	is 	scheduled to 	testify; 	the 	state must 	try to
accommodate 	a 	shift 	change 	request 	for an employee working a
graveyard 	shift on the day of a SPB hearing 	(sec. 	8.10).
12Medical 	verification of 	sick 	leave 	for up to 	two
consecutive days 	is 	not 	required except where 	the 	employee 	has 	a
demonstrable pattern of 	sick leave 	abuse, 	an above-average use 	of
sick leave, 	or the 	supervisor believes 	the absence was 	for an
unauthorized 	reason.
10

Upon request by CSEA or an employee, 	the 	state must 	consider
the 	feasibility of 	establishing 	flexible work hours. 	Employees
approved 	for 	a 	flexible work 	schedule 	are 	required 	to 	comply with
reasonable procedures established by the department 	(sec. 	19.5).
FTB 	Operations
FTB 	employs 	approximately 	4,000 	employees 	in 	Sacramento 	at
several 	sites. 	More than half work at the Central Office 	on
Butterfield Way. 	The Sun Center 	facility, 	which 	includes 	two
buildings, 	Sun Center and Business Park, 	is 	a 20-minute drive
away. 	In the 	spring of 	1990, 	the FTB reorganized and 	certain
units were 	relocated 	from the Central 	Office to 	Sun Center.
Mitchell works 	in unit 	07 	(Complex Document Resolution) 	at
the Central Office. 	The unit 	consists 	of 	12-24 	staff depending
on seasonal workload. 	The three unit 	supervisors' 	desks 	are at
the head of 	each two rows 	of 	employees, 	separated from the
workers' 	desks by an aisle.1133 	The 	four unit telephones 	are on
the supervisors' desks.14
CSEA Activity 	at 	FTB
From 	1989 	through 	1991, 	CSEA conducted regular 	informational
meetings 	in 	the 	FTB 	employee 	break room on a biweekly 	or monthly
basis. 	At these meetings, 	union representatives 	distributed CSEA
13Only 	two 	supervisors 	worked 	in the 	unit 	from January
through May 	1990.
14The Office 	Service 	Supervisor 	Is, 	including Nancy Eiserman
(Eiserman), 	report to Office Services 	Supervisor Wendy Naismith
(Naismith). 	Naismith reported to Assistant Section Manager
Jackie Lewis 	(Lewis) 	until Lewis 	left the unit. 	Lewis 	reported
to Section Manager Michael Alberti 	(Alberti). 	Alberti reports 	to
Bureau Director Van Ogden 	(Ogden).
11

literature, 	such as 	"Know Your Rights" 	pamphlets 	and brochures
describing employee 	benefits. 	Employee 	job 	stewards, 	chapter
officers 	and/or CSEA 	staff 	spoke 	to 	individual 	employees 	and 	made
group presentations. 	The meetings were held from 	11:00 	a.m. 	to
2:00 	p.m. 	to 	cover 	lunch periods 	and afternoon breaks.
Attendance ranged 	from 	50 	to 	200 people passing through.
Mitchell, 	CSEA Field Representative Douglas Moffett 	(Moffett),
and William Harris 	(Harris), 	a 	job 	steward and bargaining unit
council 	representative, 	generally remained throughout 	the
meetings 	while 	other 	stewards/officers 	attended 	during 	their
lunch and/or break times. 	Mitchell 	and Moffett 	generally
organized 	these 	informational 	meetings.1515
During the 	same two year period, 	the CSEA local 	chapter held
monthly meetings 	after work which 	covered 	organizing,
recruitment, 	representation and training. 	Mitchell 	organized
these meetings. 	In 	1991, 	chapter meetings were held less 	often
than in 	1989 	and 	1990.
Since 	1989, 	10 to 	12 	job stewards have represented CSEA at
FTB worksites 	in Sacramento. 	The FTB employee phone book
contains 	a 	list of CSEA 	stewards; 	it 	is 	updated every three to
six months. 	In addition to Mitchell, 	Harris and Kerns, 	job
15Diane Kerns 	(Kerns), 	a 	job steward and chief 	job 	steward
from October 	1990 	through May 	1991, 	noticed that 	employee
attendance at 	informational 	meetings was 	lower than usual 	in the
summer of 	1990. 	When she mentioned this 	to Moffett, 	he 	scheduled
more 	meetings 	at different 	sites 	and distributed 	additional 	CSEA
materials.
- . .
12

stewards 	included Brenda Hicks 	(Hicks),16 who was 	the chapter
secretary-treasurer, 	Greg Jefferson 	(Jefferson), 	Patty Rowland
(Rowland), 	Ron Mattox, Gary Bryant, 	Danny Schultz, 	Manuel Vasquez
and Pat Minor.1 7v 	Hicks, 	Kerns, 	Jefferson and Danny Schultz 	are
or were 	stewards 	at 	Sun Center. 	The remaining 	stewards work at
the Central 	Office.
Hicks 	represented 	employees 	in 	two 	informal 	grievance
meetings per week from 	1989 	to 	1991. 	She had the use of 	two
phones 	for representational 	activity during working hours. 	Hicks
was 	never denied access 	to a worksite or an employee; 	all her
requests 	to provide 	representation were granted. 	Kerns was 	a
very active 	chief 	steward. 	In January 	1991, 	she 	telephoned
Mitchell 	three 	to 	four 	times 	a day on union business 	concerning
17 grievances. 	When Kerns was chief 	steward, 	none of her
requests 	to represent employees were denied, 	and 	she was 	allowed
all 	time 	necessary 	for 	representation when Mitchell 	was 	absent
from work. 	Harris 	spent 	two 	to 	five hours 	per week on union
business, 	including eight to ten telephone calls, 	on state and
non-state time. 	According to Harris, 	CSEA chapter membership
increased 	eight 	to 	nine percent 	in 	1990 	and went up 	again
in 1991.
1616 Harris, 	Hicks 	and Kerns were promoted to Program or Office
Technician positions 	after becoming 	job 	stewards.
17Pat Minor was 	later replaced by Linda 	Peterson. 	Sharron
(Sam) 	Rogers 	(Rogers) 	was a 	job steward for FTB 	supervisory
employees 	for ten years 	until 	she resigned 	in May 	1991.
13

... .
Moffett 	has 	been assigned 	full-time 	to 	the 	FTB 	chapter 	since
early 	1989. 	He visits 	the Central 	Office and Sun Center three 	to
four 	times 	a week.18 Moffett 	and/or Mitchell 	filed 	eight 	to
twelve grievances 	on Mitchell's 	behalf 	in 	1990. 	Moffett met with
FTB management 	10-20 	times 	concerning Mitchell 	in 	1990. 	He 	also
represented 	100 	other employees 	that year.
Background 	Facts 	re 	Marilyn Mitchell
Mitchell 	is 	a 	long-time CSEA activist. 	First appointed as 	a
job 	steward 	in 	1986, 	she 	served as 	chief 	job 	steward at FTB 	from
1987 	through 	1989, 	from January through May 	1990, 	and 	from June
1991 	to present. 	She has 	been very visible at the worksite 	in
representational matters, 	filing 50 grievances 	in her first year
as a 	steward. 	Until 	1990, 	Mitchell's area of primary
responsibility 	as 	a 	steward 	included 	all 	FTB buildings 	except 	the
warehouse 	and downtown 	locations.19
Mitchell was 	the 	elected 	vice-president 	of 	CSEA Chapter 	777
from 	1986 	to 	1989. 	In late 	1988, 	Mitchell and Hicks 	co-founded a
chapter 	exclusively 	for FTB 	employees. 	Mitchell was 	elected 	as
the 	first president of CSEA District Labor Council 	(DLC) 	786, 	and
has 	held this 	office 	ever 	since. 	The DLC president 	is 	a voting
officer within the CSEA civil 	service division. 	Otherwise, 	the
18Moffett was 	reassigned 	to 	a 	different program 	from January
to 	March 	1990. 	Another CSEA 	field representative was 	assigned
full-time 	to 	the 	FTB 	chapter during those 	two months.
19Mitchell testified that 	in 	1990, 	Lewis 	limited her area of
primary 	responsibility to the Central 	Office, 	citing the unit 	4
contract.
14

posts 	of 	DLC president 	and 	job 	steward are 	co-extensive,
according to Mitchell.
In 	1989, 	Mitchell worked 	eight-hour day 	shifts 	from
6:00 	a.m. 	to 	2:30 	p.m. 	in the 	first half 	of 	the year 	and 	from
7:00 	a.m. 	to 	3:30 p.m. 	for the remainder. 	She 	spent 	30 	to 	50
percent 	of her time at work on union business. 	Her 	1989
attendance records 	reflect 	444 hours of absences, 	24 	credited to
union leave. 	Mitchell recorded 44 meetings, 	lasting from 30
minutes to 2 hours, 	and 45 telephone conversations, 	ranging from
15 	to 45 minutes, 	on the 	1989 	FTB 	job steward time reporting 	log
sheets.
In 	1990, 	Mitchell engaged in less union business at work, 	10
percent 	of 	her time on 	site. 	She worked an 	eight-hour day 	from
6:00 	a.m. 	to 	2:30 p.m. 	from January until May 	4, 	1990. 	From May
7 	until 	October 	1, 	Mitchell was 	absent 	from work on nonindustrial
disability 	leave 	(NDI) 	due 	to 	stress. 	She returned to work 	in
October 	and worked the 	same 	shift. 	From November 	2 	through
December 	31, 	Mitchell worked a 	four-hour day from 8:00 	a.m. 	to
noon, 	with the remaining 	four hours 	credited to NDI. 	Her 	1990
attendance records disclose 	586.4 	hours 	of absences, 	87.5 	hours
attributed 	to 	union 	leave. 	Mitchell's 	steward 	logs 	reflect 	22
meetings 	(15 minutes 	to 	2 	1/4 	hours 	in length) 	and 42 	telephone
conversations 	(15 minutes to 	1 	1/2 hours duration).
In 	1991, 	Mitchell worked 	an eight-hour 	shift 	from 	7:00 	a.m.
to 	3:30 p.m. 	from January 	1 	through March 22. 	Since then, 	she
has 	been absent 	from work on NDI 	leave. 	Mitchell 	spent 	10
15

percent 	of 	her work 	time 	on union business 	from January 	through
March. 	Her 	1991 	attendance records 	reveal 	200 	hours 	of 	union
leave 	(February 	11 	to March 	15) 	and 2 3 	additional hours of used
leave time. 	Mitchell's 	steward logs 	show 	11 meetings 	(15 minutes
to 	1 	1/3 	hours 	duration) 	and 22 	telephone conversations 	(15
minutes to 2 hours in length).
In January 	1990, 	Mitchell was 	a ten-year FTB 	employee 	in the
civil 	service 	classification of Tax Program Assistant 	(Range C ) .
That month, 	Eiserman became Mitchell's 	supervisor. 	On
January 	18, 	Eiserman 	signed Mitchell's 	annual performance 	report
for 	the period 	ending October 	1989. 	Mitchell 	received a
favorable 	rating, 	commending her knowledge 	and 	expertise.
In March 	1990, 	Mitchell was placed on 	100 percent review,
which required 	examination of 	her work by one 	to 	five 	coworkers.
Mitchell was placed on attendance restriction 	in April, 	but 	the
restriction did 	not 	apply when 	she worked 	a 	four-hour day 	in
November 	and 	December.
In mid-June 	1990, 	FTB took adverse action against Mitchell,
reducing her 	salary by two 	steps 	(10 percent) 	from July 	1 	through
September 	30, 	based on conduct 	from January 	1989 	through
June 	1, 	1990. 	The SPB hearing in Mitchell's appeal was held on
October 	2 	and 	continued to May 	1991. 	Moffett and CSEA Field
Representative 	Karen Cole 	represented Mitchell 	at 	the 	SPB
16
t,

hearing. 	Mitchell withdrew her appeal 	from the adverse 	action 	in
February 	1991.20
On January 	9, 	1991, 	Mitchell received a 	second adverse
action, 	permanently demoting her to Tax 	Program Assistant 	(Range
B) , 	effective January 31, 	for conduct from October through
December 	10, 	1990. 	She 	filed a timely appeal and the matter is
now pending before 	the 	SPB.
Interaction 	With 	Coworkers
In January or February 	1990, 	Eiserman, 	Lewis 	and/or Naismith
allegedly 	informed Mitchell 	on two 	occasions 	that 	Eiserman had 	to
restrict previously 	approved 	leave 	time 	for 	other unit 	07
employees 	due 	to Mitchell's 	absences 	from work on union business.
Mitchell 	did 	not 	verify 	these 	statements 	with her 	coworkers 	and
no unit 	07 	employee 	complained to her about denial 	of 	approved
leave. 	Mitchell's 	union activity did not 	change 	in 	character or
degree as 	a result of these 	communications. 	She tried to
complete 	her work 	so that no 	open cases 	required reassignment 	in
her absence. 	On April 	9, 	Moffett 	filed a grievance 	in CSEA's
name on behalf of Mitchell 	over these discussions, 	citing
The withdrawal 	of 	appeal 	filed with the 	SPB was written
and 	signed by Moffett. 	It was 	also 	signed by Mitchell, 	following
a 	statement 	that 	she was 	fully 	informed 	of 	her 	rights 	and had 	not
been denied 	representation by CSEA. 	The withdrawal 	did 	not 	admit
any misconduct 	by Mitchell.
17

. . .
Articles 	2.8, 	4(b) 	and 	5.5 of the unit 	4 	contract.21 (Case
No. -S-CE-452-S, paragraph 4( j) . )	::
On March 20, 	1990, 	Geneva Hebert 	(Hebert), 	a FTB unit 07
employee 	and CSEA member, 	filed a 	complaint 	against Mitchell 	at
the CSEA Sacramento headquarters. 	Frank Guilelmino 	(Guilelmino),
Moffett's 	supervisor, 	referred Hebert to Moffett. 	Hebert had a
vaguely worded written document 	containing 	10 	signatures. 	She
was 	concerned 	about 	Mitchell's 	time 	on 	the 	unit phone 	and 	absence
from the worksite on union activities. 	Hebert 	told Moffett 	that
Mitchell was 	not doing her fair 	share of unit work, 	and that
Mitchell's 	attitude 	and 	tone 	of 	voice 	toward her 	supervisors 	were
inappropriate. 	Moffett 	explained Mitchell's 	role as 	a 	steward
and DLC president, 	and 	suggested a unit-wide meeting. 	Hebert was
not 	satisfied. 	After Hebert 	left, 	Moffett 	called Mitchell 	and
informed her about the meeting. 	The April 	9 	grievance 	filed by
Moffett 	also 	alleged that 	on March 	20, 	after Mitchell 	had 	left
the worksite on approved union leave, 	Lewis, 	Naismith, 	Eiserman
and 	Hebert 	called 	a 	unit-wide 	meeting 	on 	state 	time 	to 	circulate
a petition 	to 	remove 	Mitchell 	from 	the 	unit 	and her position 	as
job 	steward. 	As 	a result of this 	alleged meeting, 	Mitchell was
more 	cautious 	in her conversations with unit 07 	coworkers, 	her
21Article 	4 	is 	a broadly worded management rights 	clause,
enabling 	the 	state 	to make 	reasonable 	rules 	and 	regulations
consistent with 	the 	agreement.
22Moffett 	testified that Mitchell was 	the 	source 	of 	this
claim, 	and 	that 	Hebert did not mention any unit-wide meeting 	in
their March 	20 	conversation. 	Mitchell 	testified 	that Moffett 	and
two unit 07 	coworkers, 	Cheryl Woltman 	(Woltman) 	and Pam Morris
(Morris) 	informed her about the meeting.
18

telephone 	calls, 	and where 	she placed documents when 	leaving the
unit 	for representational 	activities. 	(Case No. 	S-CE-452-S,
paragraph 	4(a).)
On Friday, 	May 4, 	1990, 	Mitchell telephoned Bureau Director
Ogden after 	leaving work 	for an offsite union meeting. 	She 	asked
Ogden to 	intervene 	and 	stop 	the 	one-on-one 	training between
Mitchell 	and unit 	07 	coworker Karen Chamberlain 	(Chamberlain),
scheduled on the 	following Monday, 	May 	7. 	Mitchell 	reminded
Ogden that 	she had a past history of 	conflict with Chamberlain.23
Mitchell 	also 	complained 	to 	Ogden about 	restrictions 	on her use
of 	the telephone, 	denial 	of adjusted time and 	100 percent review
of 	her work. 	Mitchell 	told Ogden that 	the 	training 	and 	selected
trainer were reprisals 	for her previous 	grievances; 	she 	claimed
that he would not help her because of 	Hicks' 	workers 	compensation
case.24 Ogden allegedly 	told Mitchell 	that he 	had 	received
complaints 	from 	employees 	that 	she 	engaged 	in more 	union activity
than FTB work, 	and that 	she 	should decide between her FTB 	job and
her union 	job. 	Ogden confirmed 	the 	telephone 	conversation 	in
writing, 	advising that he had met with unit 	supervisors 	and was
satisfied 	that 	the 	scheduled 	training was 	not 	unusual 	and would
help 	improve her 	job performance. 	Once Mitchell 	received his
23 When Eiserman became Mitchell's supervisor, Mitchell
informed 	her 	of 	the 	interpersonal 	conflict with Chamberlain.
According to 	Mitchell, 	Eiserman assured her that 	the 	two would
not 	have 	to work together.
24Mitchell 	testified 	that 	Ogden was 	required 	to 	admit 	guilt
in 	the workers 	compensation proceeding.
19

memo, 	a grievance was 	filed. 	As 	a result of the conversation
with Ogden, Mitchell was 	more 	careful 	about 	the 	time 	she 	spent 	in
representation, 	including time on the telephone. 	(Case No.
S-CE-452-S, 	paragraphs 	4(b) 	and 	(c).)
Mitchell did not return to work on May 	4 	and did not
participate 	in the 	scheduled 	training with Chamberlain 	as 	she
began her NDI 	leave on May 	7, 	1990. 	She did not return to the
worksite until October 	1, 	except 	for one May 	7 	meeting at which
she 	represented herself 	in a pending grievance. 	Mitchell 	also
attended 	one 	CSEA 	civil 	service division meeting while 	on NDI.
She 	had daily 	conversations 	with 	stewards 	and 	employees
concerning representation 	in May, 	and 	representation-related
telephone 	calls 	several 	times 	a week during the 	remainder of 	her
leave. 	While on leave, 	Mitchell did not represent any employees
in meeting with management. 	Nor did 	she 	organize 	any 	chapter or
informational 	meetings. 	After receiving the adverse 	action 	in
June, 	Mitchell did not attend any CSEA meetings.
The 	Open 	Letter
On May 	13, 	1990, 	while on NDI, 	Mitchell sent an open letter
to 	100 	individuals, 	including Assembly Members 	Gwen Moore and
Phil 	Isenberg, 	Assembly Speaker Willie Brown, 	Senate Majority
Leader David Roberti, 	Congressman Robert Matsui, 	State Controller
and 	FTB Member Gray 	Davis 	(Davis) 	and FTB 	Executive Officer
Gerald Goldberg 	(Goldberg). 	The 	letter was 	also 	forwarded to
CSEA officials, 	staff and members, 	including General Manager
Eugene Preston, 	Civil Service Administrator Tut Tate 	(Tate),
20

Guilelmino, 	Moffett, 	and civil 	service division stewards and
officers employed 	at 	FTB 	and 	other 	departments.
Mitchell mailed the 	letters 	to 	employees' 	homes 	and 	state
officers' 	work addresses 	at her own expense.
25
She did not
consult with anyone 	in CSEA before 	sending 	the 	letter. 	Mitchell
testified 	that 	she was 	authorized 	as 	a 	job 	steward 	and union
officer 	"to do whatever 	it 	takes 	to resolve 	employee problems."
The 	open letter listed 28 	issues, 	alleged FTB actions,
policies 	and practices, 	including the use of 	state time and
facilities 	for union busting. 	The 	letter named Ogden, 	Alberti,
Lewis, 	Eiserman and Naismith, 	and 	stated that they told Mitchell
she would be terminated 	if 	her union 	involvement, 	representation
of 	other 	employees 	and campaign for 	employee rights 	did 	not 	stop.
The 	letter 	also 	identified 	Goldberg 	and 	Davis 	as 	responsible 	for
the wrongdoing.
Mitchell's 	open 	letter 	sparked 	a 	firestorm of 	controversy 	at
FTB.26 Many 	copies 	were 	circulated 	at 	the workplace. 	Harris
25The 	letter 	identified Mitchell 	as 	DLC 	786 	president 	and
a 	job 	steward, 	and bore a CSEA logo and caption. 	The address 	and
phone numbers 	on the 	letter were Mitchell's.
26The letter contained the following excerpts:
The 	common criminal 	has 	more protection and
rights than the average State Employee. 	. 	. 	.
We the 	State Workers 	of 	California are 	an
oppressed people, 	we 	live under a 	fancy type
of 	slavery, 	because unless we 	cow down to and
kiss 	up to the power of 	state
supervision/management, 	we might have to 	face
no money 	for the 	six months 	fight, 	we would
have 	to watch our kids 	go hungry 	for 	six
months, 	we would lose our houses, 	our cars,
21

was 	"literally mobbed by 	employees," 	asking how the 	union 	could
issue 	such a 	letter. 	He told employees 	that the 	letter
represented Mitchell's 	opinions, 	was 	not an official CSEA letter,
and 	encouraged employees 	to 	talk to Mitchell 	for 	further details.
Five or 	six of Mitchell's unit 07 	coworkers, 	some of whom were
CSEA members, 	complained to Harris 	that Mitchell was 	not doing
her 	job because 	she was 	always 	on the phone 	or away 	from the
worksite. 	Harris 	did not discuss 	the 	letter with FTB 	supervisors
or managers. 	He 	testified 	that one 	or two CSEA members 	resigned
as 	a 	result 	of 	the 	letter but 	five 	employees 	joined the union.
and 	everything we 	have worked 	so 	hard 	to
obtain.
It's 	time 	for Californians 	to 	speak up 	and
out 	against the 	slave 	masters 	called 	state
management 	and bring 	them 	to 	the 	same 	level
as 	the rest of us, 	and make them personally
accountable for their abusive actions. 	. 	. 	.
FTB 	is 	constantly putting out 	news 	articles
about how good 	life 	is 	in the workplace 	and
how good 	and warm 	the 	relationships 	are
between rank and 	file and management, 	but
don't you believe 	it, 	it is all pure
propaganda hype 	to 	fool 	the 	outside
public. . . .
Hicks 	had 	numerous 	discussions 	with 	FTB 	employees 	over 	the
open 	letter. 	There was 	talk of 	renting a bus 	to 	go 	to CSEA
27Kerns 	copied the 	letter and distributed 	it 	at work. 	Eight
employees 	told her 	that 	their decision 	to 	become 	a 	CSEA member 	or
steward 	had 	been affected by 	the 	letter. 	Kerns 	considered 	their
comments 	to be a 	loss 	of 	eight 	steward recruits; 	she did not 	name
these 	individuals 	and none testified. 	Kerns 	also 	testified that
her 	steward activities, 	such as 	use of the phone, 	ability to
consult with 	co-workers 	at 	her desk, 	and recording 	of 	job 	steward
activity, 	were 	restricted 	for 	an unspecified period 	of 	time
proximate 	to 	the 	circulation of 	the 	letter.
22

headquarters 	to 	see what the 	union would do 	about 	the 	charges,
followed by 	a 	rally at 	the 	State Capitol.28 Due to 	the 	"flurry
of 	activity" 	at FTB, 	both Hicks 	and Harris 	increased their
representation 	and 	union-related 	activities 	as 	employees 	had 	many
questions 	for them. 	Hicks 	received a 	mixed reaction 	from
employees 	over the 	letter; 	some were 	shocked that Mitchell went
to 	"this 	extreme" 	but others were very proud that 	she 	"told 	it
like it is."
The 	open 	letter was 	a 	constant 	topic 	of 	conversation among
the CSEA 	job 	stewards at FTB. 	Although 	the 	stewards were very
concerned about any 	"fall-out" 	from the 	letter, 	none 	resigned.
After the 	letter, 	Jefferson was 	contacted by more 	than ten
employees 	requesting 	investigations 	into workplace 	problems.
Eight 	to 	ten 	supervisors 	requested 	representation 	from 	Rogers.
Rowland's 	knowledge 	of Mitchell's 	problems 	had no 	effect 	on her
steward 	activity; 	she continued 	to 	refer all 	grievances 	to
Mitchell, 	Moffett and/or Hicks because of 	their expertise 	and her
own 	irregular work hours 	as 	a permanent 	intermittent 	employee.
. .
FTB 	demanded 	a 	retraction of 	Mitchell's 	letter 	from CSEA.
On May 24, 	1990, 	Tate advised FTB Labor Relations 	Officer 	(LRO)
Rick Mitchell 	(R. 	Mitchell) 	that CSEA had not given prior
authorization for the open 	letter; 	Tate 	further 	stated that CSEA
would 	conduct 	a 	full 	investigation 	into 	Mitchell's 	allegations
against FTB management as well as 	FTB's 	concerns 	about a 	contract
violation concerning employee home 	addresses. 	On June 	3, 	the
no
These plans 	did not materialize.
23

CSEA 	civil 	service 	division 	created 	a 	special 	task 	force 	to
investigate 	and report within a month.
Following the open letter, 	Mitchell 	received 	35 	oral 	and
written responses 	at home, 	to which 	she replied by phone. 	On
June 	8, 	1990, 	Mitchell received a petition signed by 26
individuals in her post office box; 	11 were unit 07 coworkers, 	,
six were 	FTB 	employees 	and nine were unknown to her.
29
Hebert
brought 	the petition
30
to 	CSEA headquarters 	and met with Moffett
and Guilelmino, 	claiming 	that 	the petition 	showed how unhappy
employees were 	over the 	open 	letter. 	Moffett 	informed Mitchell
of this 	meeting.
On June 	14, 	1990, 	Mitchell responded to the employees
signing 	the petition whom 	she 	could 	identify, 	explaining her
reasons 	for 	sending the 	open letter. 	She also 	sent out a 	follow-
up 	letter 	in June, 	indicating that the response to the 	open
letter was 	"fantastic" 	and asking 	for 	further help 	in 	identifying
specific 	employee 	concerns.
29
The unit 	07 	employees 	signing 	the petition 	included
Chamberlain, 	Hebert, 	Morris and Woltman.
30The petition 	stated:
In response to a 	second open letter, 	received
by 	state 	employees 	on 	5/29/90, 	we the
undersigned 	feel 	compelled 	once 	again 	to 	let
it be known that Marilyn Mitchell does 	not 	in
any way represent us 	in regards 	to working
conditions 	at 	Franchise 	Tax 	Board or any
other matter 	concerning 	California 	state
service. 	It 	should also be known that
Ms. 	Mitchell's 	complaints 	stem from personal
problems 	brought 	on herself 	and do not
reflect 	normal 	proceedings 	at 	Franchise 	Tax
Board where 	she 	is 	currently employed.
24

The 	June 	1990 	adverse 	action mentioned 	the open 	letter
twice, 	alleging that 	it 	contained false 	statements 	causing
discredit 	to 	FTB 	and 	implied 	authorization by 	a 	recognized union
when the 	letter reflected only Mitchell's 	personal 	opinions. 	The
adverse action was 	signed by Will Bush 	(Bush), 	FTB Assistant
Executive Officer. 	Mitchell 	and/or Moffett requested a meeting
with Bush over 	these 	charges 	but 	the 	request was 	denied. 	As 	a
result of the open letter, 	responses thereto, 	the petition
opposing 	the 	letter and the 	reference 	to 	the 	letter 	in the
adverse 	action, 	Mitchell 	reduced her union activity until 	CSEA
completed its 	investigation. 	(Case No. 	S-CE-452-S, 	paragraphs
4(i) 	and 	(1).)
In July 	1990, 	the 	four-member CSEA committee 	issued 	its
summary 	report.31 It 	concluded 	that 	Mitchell 	had 	not
intentionally 	violated 	the 	union's 	internal 	policy 	or
constitution. 	The report reviewed the 	cautious 	and volatile
history of 	interaction between Mitchell, 	CSEA, 	and FTB. 	At 	least
2 7 	union representatives 	and members 	had been actively 	involved
in resolving Mitchell's 	concerns. 	The report 	concluded that 	FTB
caused many problems 	by 	its 	hard-line 	attitude. 	Moffett 	had
succeeded in his representational 	efforts, 	however, 	and he and
Mitchell 	now had a 	clear understanding of 	accountability. 	The
recommendations 	included 	establishing 	a 	spirit 	of 	reasonable
cooperation between the 	union and Mitchell, 	reminding her 	of 	the
31The 	summary 	stated that the 	full 	report was 	available 	for
inspection at 	the CSEA headquarters 	office.
25

sensitive role 	of 	a CSEA agent, 	enhancing accountability between
CSEA 	staff and union members, 	retaining Moffett 	as 	field 	staff
for 	the 	FTB 	chapter 	and 	requiring Moffett 	and 	Mitchell 	to 	meet 	on
a 	regular basis. 	Mitchell 	considered the 	report 	to be 	a 	full
vindication of her claims.
On November 28, 	1990, 	Mitchell requested SPB to file charges
against the 2 6 	employees 	signing the June petition, 	eight FTB
managers 	named 	in her May open 	letter, 	Bush and Assistant
Executive Officer Allen Hunter. 	Mitchell withdrew her 	request
for charges 	against 	the 	26 	rank and 	file 	employees 	on December 	3.
She 	filed a 	second request 	for 	SPB 	action on December 	1 	against
12 	FTB managers, 	including the LROs, 	security officer and
personnel 	officer. 	Mitchell 	filed 	a 	third request with SPB
against 	Eiserman alone 	on December 	31.
. .. 7
Telephone 	Use
From 	late January through 	early May 	1990, 	Hicks 	and Kerns
telephoned 	Mitchell 	several 	times 	at work but were 	unable 	to
reach her. 	They 	left messages 	each time. 	Hicks 	identified
herself 	as 	a union 	steward but did 	not 	know the 	name 	of 	the
message 	taker. 	Kerns 	did not 	identify herself 	as 	a 	steward but
left 	her messages with Eiserman who 	gave her name. 	After
Mitchell 	did not return their calls, 	both Hicks 	and Kerns
contacted her at home and 	complained; 	Mitchell 	told 	them that 	she
never received 	the messages.
32
Hicks 	protested to Alberti 	and
32Hicks 	and 	Kerns 	acknowledged 	that 	they 	could 	and 	did 	reach
Mitchell 	at home to discuss 	union business.
26
.,

the FTB 	LROs, 	which resolved the 	situation for the most part.
4.(During this 	time, 	Mitchell was receiving 20 	calls 	and 	10 messages
per day 	at work.33 Mitchell's 	failure 	to 	receive 	these messages
required 	her to work 	faster 	to 	evaluate whether 	to 	file 	and/or
respond 	to 	grievances 	because 	she had 	less 	time 	to 	consider them,
but 	no 	grievances were denied on the 	grounds 	of 	being untimely
filed. 	Mitchell 	also asked her coworkers 	if 	these were 	all 	of
the 	messages when 	she 	received a 	number 	of 	them.
Kerns 	again had difficulty 	contacting Mitchell 	after 	she
returned to work 	in the 	fall. 	From October 	1990 	through
January 	1991, 	Kerns 	left 	two to 	four messages 	for Mitchell 	at
work which were 	not 	returned. 	They did 	communicate within a 	day
or two of each message, 	however. 	The 	impact of the delayed
contact was 	that 	an employee was 	required 	to wait 	for
information; 	no grievance was 	denied or not 	filed because of
failure 	to meet 	contractual 	timelines.
From January through March 	1991, 	Kerns 	telephoned Mitchell
three to 	four times 	a day about representation, 	grievance
procedures 	and other 	information.3434 Kerns was 	then the 	chief 	job
steward, 	and she 	filed 	17 	grievances 	in January alone. 	The
majority of 	Kerns' 	messages were not returned 	immediately. 	She
complained 	to Mitchell, 	who 	replied that 	she did not receive 	the
messages. 	Kerns 	did not 	speak with Eiserman or anyone 	else 	in
33Mitchell 	testified 	that 	she 	did 	not 	receive 	three 	or 	four
messages 	from Hicks 	and Kerns 	during this 	time.
34	34Mitchell estimate 	d 	receiving	one to 	seve	n calls per week
during this 	timeframe.
Mitchel
27
l 	estimate	d receiving 	oneseve	to 	n 	calls 	pe	. r week

unit 	07 	about this. 	Kerns 	and Mitchell 	conceded that 	they
reached each other within one to two days 	of each call. 	The
consequence of Mitchell's 	failure to receive Kerns' 	messages was
that 	responses 	to employees were delayed. 	No grievances were
denied or not 	filed due to timeliness 	bars. 	Mitchell 	also had
less 	time 	to 	evaluate whether a 	grievance 	should be 	filed by her
or Kerns. 	(Case Nos. 	S-CE-452-S, 	paragraph 4(d) 	and S-CE-487-S,
paragraph 	4(1).)
Barbara Lemuel 	(Lemuel), 	a Tax Program Assistant at Sun
Center, 	called Mitchell 	several 	times 	at work 	from April 	through
October 	1990 	to 	seek representation.35 She was 	told 	each time
that 	Mitchell was 	not 	in the unit 	and her messages were 	not
returned. 	Lemuel 	finally 	insisted 	that 	she 	needed 	to 	speak with
Mitchell 	because her call was 	important. 	Mitchell 	came on the
line 	immediately.
'
In February or March 	1990, 	one of 	the unit telephones was
relocated 	to 	a 	supervisor's 	desk while 	Mitchell was 	on union
leave. 	Before the phone was 	moved, 	Mitchell 	could 	speak 	freely
since 	it had been on an 	empty desk. 	Mitchell 	asked Eiserman why
the phone was 	moved. 	Eiserman 	informed her that 	its 	prior
location had disrupted the unit, 	requiring 	employees 	to 	leave
their desks 	to answer calls. 	Mitchell 	thought 	"management was
kidding" 	and 	returned the phone to the 	empty desk the 	next 	time
she 	took a 	call. 	Eiserman told Mitchell 	that the phone was 	to
stay 	on the 	supervisor's 	desk and not to move 	it 	again. 	Mitchell
35Lemuel 	joined CSEA 	in August 	1990.
28

requested an informal meeting on the 	subject on March 	14, 	and a
grievance was 	later 	filed. 	The movement of the unit phone did
not 	impede Mitchell's union activity; 	she was 	free to 	accept 	and
make 	calls 	although 	in a 	location closer to a 	supervisor.
Mitchell 	testified 	that 	the 	movement 	of 	the phone 	affected her
interaction with 	coworkers 	because 	most 	incoming 	calls 	were 	for
her 	and 	employees 	complained about 	answering her 	calls. 	The 	new
placement 	of 	the phone was 	also 	three 	to 	five 	feet 	further 	from
Mitchell's desk. 	(Case No. 	S-CE-452-S, 	paragraph 4(k).)
From March 	through May 	1990, 	Eiserman allegedly told
Mitchell 	not 	to use 	any unit 	telephone unless 	she was present 	and
to 	ask permission before Mitchell 	made 	or accepted 	calls. 	This
instruction was 	repeated one or two 	times 	a week. 	Mitchell was
not denied permission to 	take 	calls. 	She 	responded to
informational 	questions 	but 	did 	not 	handle 	ongoing 	grievances 	or
adverse 	actions 	by phone 	at work. 	Mitchell did not 	request
approval 	to place 	calls 	because 	she 	recorded representation-
related 	calls 	on the 	FTB 	job 	steward 	logs 	and 	separately 	recorded
her personal 	calls. 	While Mitchell was 	absent on NDI 	leave,
Moffett 	discussed 	the matter with 	Eiserman 	in an 	informal
meeting.36 When Mitchell 	returned to work 	in October, 	the
restriction was 	not 	enforced. 	As 	a result of 	Eiserman's
directive, 	however, 	Mitchell testified that 	she conducted more
union business 	at home, 	spending approximately three to 	four
36Moffett 	testified 	that 	employees 	must 	obtain permission
from 	supervisors 	to use 	state phones 	for union business.
29

hours 	a 	night, 	because 	she did not make as many representation or
union-related calls at work. 	(Case No. 	S-CE-452-S,
paragraph 	4(f).)
At a meeting 	in early January 	1991, 	supervisors 	directed
unit 	07 	employees 	to reduce their personal 	calls 	to 	five minutes
because of the 	increased cost of 	telephone bills. 	Mitchell did
not 	consider the 	five-minute 	limitation to apply to union-
related 	calls 	because representation required more 	time 	to
identify 	issues 	and 	calm employees. 	Mitchell 	and Eiserman did
not 	discuss 	whether 	the 	five-minute 	limit 	applied 	to 	or 	excluded
representation-related calls. 	On January 	16, 	Mitchell 	received a
telephone message, 	taken by Eiserman, 	from an aide to Assemblyman
Phil 	Isenberg. 	On January 	17, 	she 	received a message 	from an
aide 	to Assemblywoman Gwen Moore which was 	taken by Naismith.
That day, 	Mitchell 	returned these calls 	to 	inquire whether the
Legislators 	would 	investigate 	the 	charges 	against 	FTB 	raised 	in
Mitchell's 	May 	1990 	open 	letter. 	During her third 	call 	to
Assemblywoman Moore's 	office, 	Eiserman allegedly told Mitchell 	to
get 	off 	the phone. 	Mitchell 	testified that 	the 	aide 	overheard
the 	comment 	and 	ended the 	conversation. 	Mitchell 	telephoned 	the
Assemblywoman's 	aide 	later that day 	from home. 	A grievance was
filed. 	The 	impact of this 	incident was 	the 	five-minute
limitation on union phone 	calls.37 (Case No. 	S-CE-487-S,
paragraph 	4(i).)
37This 	allegation was withdrawn by Mitchell, 	and
incorporated in the April 	25, 	1991 	notice of partial withdrawal,
which accompanied the 	complaint 	in Case No. 	S-CE-487-S.
30

Use 	of 	Leave 	Time
In March 	1990, 	Eiserman allegedly ordered Mitchell 	to 	"store
up" 	leave credits 	on the books, 	which meant that 	she could not
use 	accrued vacation or 	sick leave. 	The April 	20 	memorandum
(memo) 	placing Mitchell 	on attendance 	restriction used 	the 	term
"building up" 	leave 	credits.38 Mitchell's 	1990 	attendance
records 	show use 	of 	vacation and 	sick 	leave 	in March 	and April
until 	she went on NDI 	leave. 	(Case No. 	S-CE-452-S,
paragraph 	4(r).)
On October 	16, 	1990, 	Mitchell was denied two hours of 	state
time 	to 	travel 	to her deposition by FTB's 	attorney 	in her
workers' 	compensation case. 	Mitchell worked from 	6:00 	a.m. 	to
2:30 	p.m. 	and the deposition was 	scheduled at 	3:00 	p.m. 	in
downtown Sacramento, 	a 	30- 	to 45-minute drive from the Central
Office. 	Eiserman did not release Mitchell at 	12:30 p.m. 	as 	she
requested. 	Mitchell 	testified that 	she was 	not 	late 	for her
deposition, 	however, 	because 	she used two hours 	of vacation.39 A
letter 	from 	the 	FTB 	attorney 	confirmed 	Mitchell's 	attendance 	and
that 	she met with her attorney before the deposition. 	Mitchell
filed a 	grievance. 	The 	effect of 	this 	episode was 	that
Mitchell's 	preparation of 	her 	own 	grievance 	took time 	away 	from
other 	issues 	in which 	she 	could provide 	representation.
(Case No. 	S-CE-452-S, 	paragraph 4(s).)
38
The April 	20 	memo was 	used to refresh Mitchell's
recollection and was 	not 	introduced 	into 	evidence.
39
Mitchell's 	October 	1990 	attendance 	record 	reflect 	that 	she
was 	absent without leave 	(AWOL) 	for two hours 	that day.
31

On October 	1, 	1990, 	Eiserman allegedly informed Mitchell
that 	she would 	allow her 	to 	use 	a 	30-minute 	carryover vacation
credit. 	On October 2, 	Mitchell was 	absent from work, 	attending
the 	SPB 	hearing 	in her appeal. 	She used the 	30-minute 	credit 	on
the morning 	of 	October 	3. 	When Mitchell 	arrived at work that
day, 	Eiserman told her that 	she was 	late. 	Mitchell 	reminded
Eiserman of 	their 	agreement 	that 	she 	could use 	the 	30-minute
credit. 	Eiserman 	said nothing 	further. 	Their 	conversation was
very 	short 	and Mitchell 	received 	no 	comments 	from her 	coworkers
regarding 	it. 	Mitchell 	considered Eiserman's 	remark as 	a verbal
reprimand 	and 	thought her 	image 	in the 	unit was 	adversely
affected. 	(Case No. 	S-CE-452-S, 	paragraph 4(t).)
On November 	13, 	1990, 	Mitchell 	submitted a doctor's 	note and
a 	laboratory 	note 	to 	support 	an absence 	earlier 	that 	month.
Eiserman 	initially 	accepted 	the 	notes 	but 	denied 	them the 	next
day, 	recording Mitchell 	as AWOL. 	Eiserman informed Mitchell 	that
the doctor's 	forms were 	no 	longer acceptable because 	of her
attendance 	restriction and a 	general 	explanation 	of 	her 	treatment
and 	lab work were 	required. 	Mitchell 	resubmitted the 	notes 	with
the 	necessary 	statements 	and 	they were accepted. 	At 	the 	time,
Mitchell worked a 	four-hour day with 	four hours 	credited 	to 	NDI.
According to Mitchell, 	the denial 	undermined her 	credibility as 	a
steward, 	since other employees would be 	intimidated by a
supervisor's 	rejection of 	the 	verification 	submitted by 	a 	job
steward. 	On January 2, 	1991, 	while 	still on attendance
restriction, 	Mitchell gave Eiserman a doctor's 	note which was
32

rejected and 	she was 	marked AWOL. 	She resubmitted 	the 	note with
the 	required 	statement 	and 	Eiserman accepted 	it. 	A 	second
doctor's 	note with a bill was 	also approved that month. 	The
initial 	denial 	made Mitchell 	less 	confident about her ability to
effectively 	represent 	coworkers 	on the 	issue 	of 	medical
verification. 	(Case No. 	S-CE-452-S, 	paragraph 4(v);
Case No. 	S-CE-487-S, 	paragraphs 4(a) 	and 	(b).)
In late December 	1990, 	CSEA requested union leave 	for
Mitchell and Harris. 	On January 8, 	1991, 	FTB LRO R. 	Mitchell
wrote to Perry Kenny of CSEA, 	advising that 	12 	hours 	of paid
union leave on January 	9 	through 	11 	were granted to Harris 	but
denied to Mitchell 	for operational 	reasons. 	Mitchell 	then
requested 	one 	day 	of 	union 	leave 	to 	attend 	a 	Labor-Management
Conference 	at California 	State 	University, 	Sacramento on
January 	24;40 Eiserman denied her request. 	Mitchell 	asked 	for
personal 	leave 	or dock to 	attend 	the 	one-day 	conference.
Eiserman again refused. 	Mitchell 	sought 	out FTB LRO R. 	Mitchell,
reminding him that 	they both went 	to 	the 	conference 	last 	year 	and
mentioning that 	she had already paid for 	it. 	On January 	24, 	R.
Mitchell wrote to Perry Kenny of CSEA, 	approving eight hours 	of
paid 	leave 	for Mitchell 	that day, 	and Mitchell 	attended the
conference 	on paid 	leave. 	Eiserman allegedly 	told Mitchell 	that
she 	had denied her requests 	because 	she 	thought 	the 	conference
was 	a CSEA function; 	once 	she 	learned otherwise, 	she approved
40Mitchell 	attended the 	conference 	in 	1990. 	She had 	already
paid 	the 	enrollment 	fee 	for the 	1991 	conference when 	she
requested union 	leave 	to 	attend 	it.
33

union 	leave 	since 	Mitchell 	should not 	lose money. 	Mitchell 	also
received paid union 	leave 	from February 	11 	through March 	15. 	No
adverse 	impact was 	offered other than Eiserman's 	statements.
(Case No. 	S-CE-487-S, 	paragraphs 4(f) 	and 4(n).)
Other 	Representational 	Activity
In 	early March 	1990, 	Eiserman allegedly informed Mitchell
that 	"informals"41 regarding Mitchell's 	own 	issues 	would be
limited to 	15 minutes. 	From March through May 	1990, 	three
informals 	with 	Eiserman 	concerning 	Mitchell 	personally were
restricted to 	15 minutes; 	the 	issues were her 	100 percent review,
tardiness, 	denial of adjusted work hours 	and use of 	sick leave.
Harris 	acted as 	Mitchell's 	representative 	each time. 	At
Mitchell's 	request, 	Harris 	asked Eiserman to waive 	further
informals 	due 	to 	the 	time 	constraints 	but Eiserman would not
agree. 	Eiserman told Harris 	that 	the 	informals 	for Mitchell
would be 	confined to 	15 	minutes 	during the workday but 	could 	last
longer 	if 	scheduled 	at the 	end of her 	shift. 	Mitchell 	declined
this 	option because 	she did not want to 	conduct 	the 	informals 	on
her own time when 	she was 	entitled to 	state 	time. 	Mitchell was
allowed 	30 	minutes 	to one 	hour when representing 	employees
outside 	unit 	07 	in 	informals.
. ' . .
42 Mitchell 	did not 	ask Eiserman to
extend any 	of 	the 	three 	informals 	or continue 	them to 	a 	later
41Informals 	are 	meetings 	required with 	the 	immediate
supervisors 	held before 	filing 	formal 	grievances. 	According 	to
Mitchell, 	meetings 	are designated as 	informals when the 	employee
or union representative 	so 	informs 	the 	supervisor.
42Harris 	testified 	that he was 	usually 	granted 	one 	hour 	for
informals 	concerning 	employees 	other than Mitchell.
34

date. 	She and/or Harris were able to cover the 	issues 	at 	each
informal but did not have time 	to present many details. 	A
grievance was 	filed over the 	15-minute 	limitation. 	As 	a 	result,
Mitchell 	stopped 	asking 	for 	a 	representative 	and held 	informals
with Eiserman one-on-one. 	According to Mitchell, 	she
accomplished the 	same result by herself 	as with a 	representative,
namely, 	no resolution of the issue. 	(Case No. 	S-CE-452-S,
paragraph 	4(e).)
On October 	1, 	1990,43 Mitchell 	spent three to 	four hours 	in
training with Chamberlain. 	She requested two hours 	state 	release
time 	that day 	and 	four hours 	of 	release 	time 	on October 	2 	to meet
with Moffett 	to prepare 	for the 	SPB hearing 	in her appeal. 	On
October 	3, 	Mitchell 	asked 	for a work 	shift 	change 	from her
regular 	shift 	(6:00 	a.m. 	to 	2:30 p.m.) 	to 	9:00 	a.m. 	to 	5:30 p.m.
for the prior day, 	coinciding with the 	SPB hearing. 	Her requests
were denied by Eiserman 	(October 	1 	two hours 	release 	time 	and
October 	3 work shift change) 	and R. 	Mitchell 	(October 2 	four
hours 	state time). 	Mitchell used vacation on October 	1 	and 2 	to
meet with 	Moffett which Eiserman approved.44 In addition,
Moffett 	requested 	eight hours 	to meet with Mitchell 	to prepare
her 	appeal.45 Eiserman told Moffett 	to 	break down 	the 	request
into 	smaller increments, 	citing operational reasons. 	Moffett
43This 	was 	Mitchell's 	first day at work 	since 	May 	4.
44Mitchell was 	on attendance 	restriction at 	the time.
45Moffett 	testified that 	the October 	2 	SPB hearing was 	held
at 	FTB while 	Mitchell 	testified 	that 	the 	hearing was 	held 	in
downtown 	Sacramento.
35

testified that he received 	four hours 	of 	release time, 	two hours
on two 	occasions, 	which he and Mitchell used at 	the worksite.
Eiserman also offered Mitchell 	release time on October 	1 	if 	she
would remain at work; 	she 	rejected this 	alternative because
Moffett 	could 	not 	come 	to 	FTB 	that 	day 	and 	she 	had been 	allowed
state 	time 	away 	from the 	site 	to prepare her appeal 	from a
previous 	adverse action."46 	A grievance was 	filed over the
disallowance 	of 	state time 	and work 	shift 	change. 	These
incidents 	required 	Mitchell 	to 	research 	the 	contract 	to 	determine
if 	the denials 	were 	justified, 	which took time 	away 	from her
representation of 	one or two 	employees. 	Mitchell did not
identify the 	subjects 	of 	representation and names 	of 	employees,
or 	specify the time 	she 	spent 	in research. 	(Case No. 	S-CE-452-S,
paragraph 	4(g).)
. 4
In late February 	1990, 	Mitchell 	requested 	four hours 	of
adjusted work hours/flex-time 	to 	attend 	CSEA 	civil 	service
division meetings 	at Oakland, 	Los Angeles, 	and Millbrae the next
month.47 Mitchell 	desired 	four hours 	travel 	time 	on the Fridays
before 	the weekend meetings.48
" Her request was 	denied. 	Mitchell
used 	accrued 	leave 	and attended all 	three meetings. 	In 	early
46In June 	1988, 	Mitchell 	received an unspecified adverse
action. 	She 	filed an appeal 	and the dispute was 	settled. 	Under
the 	settlement, 	finalized in 	1990, 	FTB withdrew the adverse
action.
47Under an adjusted work 	schedule, 	any absences 	must be 	made
up 	during 	the 	five-day workweek 	so 	that 	the 	required 	40-hour week
is 	completed.
48At the 	time, 	Mitchell worked a 	6:00 	a.m. 	to 	2:30 p.m.
shift.
36

March, 	Naismith 	and 	Eiserman 	approved 	a 	three-week 	adjusted work
schedule 	for Mitchell 	from February 	26 	through March 	16, 	one week
at a time. 	Mitchell was absent on March 5, 	6 and 7, 	however, 	and
could 	not 	fulfill 	the 	schedule. 	Mitchell 	again 	sought 	adjusted
work hours 	for the 	same period, 	which was 	denied based on her
previous 	failure 	to meet the 	schedule.
49
A grievance was 	filed.
As 	a 	consequence of 	the denial 	of 	adjusted time, 	Mitchell 	may
have 	arrived 	late 	for one 	or more 	of 	the 	Friday 	evening meetings.
(Case No. 	S-CE-452-S, 	paragraph 4(h).)
In mid-October 	1990, 	Mitchell was 	limited to one 	30-minute
meeting with Moffett 	over 	five 	or 	six 	of 	her personal 	grievance
issues; 	these included AWOLs, 	use of the unit telephone, 	denial
of 	state release 	time to prepare 	for the October 2 	SPB hearing,
100 percent review, 	and denial of representation by Harris. 	She
and/or Moffett 	had 	requested 	one 	hour 	of 	state 	release 	time 	for
their meeting. 	Eiserman offered Mitchell more 	time 	off 	after
Chamberlain returned 	from 	surgery. 	A grievance was 	filed. 	The
effect of 	the 	30-minute 	limitation was 	that 	some 	timelines 	on
issues were 	not met; 	Mitchell 	did not 	specify the timeframes 	or
subjects. 	(Case No. 	S-CE-452-S, 	paragraph 4(p).)
On January 4, 	1991, 	Mitchell telephoned Heather Mauck
(Mauck), 	a FTB manager in a different section, 	to schedule a
49
The 	evidence 	is unclear whether Mitchell's 	request 	for
four hours 	of 	adjusted time 	to travel was 	separate 	from or
encompassed within 	the 	three-week 	schedule 	originally 	approved 	by
her 	supervisors.
37

meeting50 regarding 	an 	employee 	being 	rejected 	during probation.51
Frieda 	Long 	(Long) 	had not yet been 	served with the 	notice but
was 	aware 	she would be 	terminated. 	Mitchell 	complained that
Mauck 	had 	only partially 	complied with 	her 	request 	for 	documents.
Mauck 	allegedly 	refused 	to 	meet with her. 	Mitchell 	told Mauck
that her 	action denied 	employee 	rights 	since 	she was 	Long's
designated 	union representative.52 Mauck 	replied 	that 	the 	FTB
attorney 	and 	LROs 	informed 	her 	that 	she did 	not have 	to 	meet with
Mitchell. 	After Mauck hung up, 	Mitchell 	telephoned LRO Jeannette
Williams, 	who confirmed the advice. 	Mitchell 	later filed Long's
appeal 	from rejection during probation with 	the 	SPB. 	This
incident 	denied 	recognition to 	Mitchell 	as 	an 	employee's
designated 	representative 	and 	Long's 	right 	to be 	represented 	by
her chosen representative. 	(Case No. 	S-CE-487-S,
paragraph 	4(d).)
On January 	9, 	1991, 	Mitchell was 	served with a 	second
adverse 	action of permanent demotion while at work. 	She 	and/or
Moffett 	requested one hour of 	state 	release 	time 	to meet 	over the
adverse 	action and 	her pending 	grievance 	over denial 	of 	state
time to prepare 	for her October 	1990 	SPB hearing. 	Eiserman
..
50Mitchell 	notified 	Eiserman that 	she planned 	to 	meet with
Mauck and 	estimated the 	time 	of 	the meeting. 	Eiserman approved
state release time 	for Mitchell 	to go to the meeting.
51Mitchell 	already 	knew that 	Mauck had 	asked 	Harris 	to 	serve
as 	Long's 	representative 	in a 	meeting 	shortly before 	Christmas
because 	Mitchell was 	absent 	from work and 	Long wanted
representation over 	a 	review of 	her performance 	rating.
52Mitchell 	testified 	that 	Long 	signed 	a 	consent 	form
designating her as 	the representative.
38
,j_-

granted 	30 	minutes. 	Mitchell offered to work an extra hour 	in
the afternoon to have a 	full 	hour. 	Her request was 	denied.
Moffett 	testified 	that 	he 	asked 	Eiserman 	for more 	time 	and
"probably" 	received 	it. 	A grievance was 	filed. 	This 	event was 	a
continued 	reminder 	that 	Mitchell 	would 	not 	be 	allowed 	reasonable
time 	for 	representation and 	could 	not be 	an 	effective 	steward.
(Case No. 	S-CE-487-S, paragraphs 4(e), 	(g) and (h).)
On the afternoon of January 22, 	1991, 	Kerns visited Mitchell
in unit 	07 	to discuss 	an upcoming union meeting. 	Kerns was 	on
her 	own 	time 	and Mitchell was 	on her afternoon break.34
Eiserman 	approached 	Kerns 	and Mitchell 	and 	told Mitchell 	to 	get
back to work. 	Mitchell 	reminded Eiserman that 	she was 	on her
break. 	Eiserman 	said that 	she 	forgot 	and 	left 	immediately.
Kerns 	complained to Mitchell, 	but Mitchell 	told her not to worry
and 	she would handle 	it. 	Kerns 	replied 	that 	she would 	leave 	at
the 	end of 	the break. 	Kerns 	remained and discussed union
business 	with Mitchell 	until 	almost 	the 	end of 	the 	15-minute
break, 	because Kerns 	had another meeting in the building. 	This
episode 	had 	no 	impact 	on Mitchell's 	union activities 	other 	than
Eiserman's 	failure 	to apologize 	for the 	interruption.
•
53Kerns 	testified that before January 	1991, 	she discussed
union business with Mitchell 	at her desk on numerous 	occasions.
54Mitchell 	testified that 	she had no 	set 	time 	for her
breaks, 	she usually took breaks 	at her desk, 	and Eiserman would
not 	know 	she was 	on break unless 	she 	told her. 	Mitchell 	did 	not
hold 	union meetings 	at her desk but 	did discuss 	union business 	or
representation 	issues with 	fellow employees 	there. 	According 	to
Mitchell, 	it was 	obvious 	that 	she was 	on break if 	she was 	talking
to 	another 	employee 	at her desk.
39

(Case No. S-CE-487-S, paragraph 4(j) . )
From' January through March 	1991, 	Eiserman allegedly
interrupted 	Mitchell 	three 	other 	times 	while 	she was 	engaged 	in
union business. 	On each occasion, 	Mitchell was 	on break and
Eiserman told her to go back to work. 	While Mitchell 	discussed
union business with Harris, 	Eiserman's 	remark 	interrupted their
conversation without 	further effect. 	Another time, 	Mitchell was
updating 	former 	coworker 	Cindy 	Brash 	on CSEA and 	unit 	07
activities; 	their conversation 	ceased after Eiserman's 	statement.
When Mitchell 	talked to Rita Cox 	about her SPB appeal, 	Eiserman's
communication 	ended 	their 	discussion but 	Mitchell 	later provided
Cox with the requested information. 	(Case No. 	S-CE-487-S,
paragraph 	4(m).)
Prior to August 	1990,55 Mitchell 	and Lemuel 	scheduled a
meeting 	at 	Sun Center regarding Lemuel's 	job concerns. 	Lemuel
requested time 	off 	in advance which was 	granted by 	her
supervisor. 	When Mitchell met with Lemuel at the 	site, 	FTB
management
...
5656 told Mitchell 	that 	she 	had no 	right 	to be 	there,
she was 	out of her boundaries, 	job 	stewards 	existed at 	the 	site
who 	could help 	Lemuel 	and Mitchell 	should 	leave. 	Lemuel was 	very
intimidated by these 	statements 	and the denial 	of 	Mitchell 	as 	her
representative. 	Lemuel 	subsequently 	joined CSEA to 	ensure 	her
right 	to 	union representation.
55Mitchell was 	on full-time NDI 	leave 	at the time.
56Lemuel did not 	identify the 	individual(s).
40

Remaining 	Allegations
On September 6, 	1990,57 Mitchell requested a transfer to
unit 06 	(Correspondence Section, 	Taxpayers Services 	Bureau) 	at
Sun Center. 	Mitchell 	cited her medical 	condition and harassment
received 	in unit 07, 	including the June 	1990 	adverse action,
telephone 	calls 	at home 	from unit 	07 	supervision 	inquiring about
her disability 	and 	ability 	to 	return to work and 	the 	spring 	1990
unit-wide meeting held 	in her absence. 	Mitchell 	emphasized her
familiarity with 	unit 	06 	work and 	her positive 	relationship with
the 	unit 	06 	supervisor. 	Although Mitchell would retain her
steward position, 	she would not 	take 	on 	full 	representation
responsibility due 	to health 	concerns 	and 	the 	availability 	of
other stewards and Moffett; 	she would, 	however, 	need to use union
leave 	fairly often as DLC 	786 president. 	On September 	18, 	Ogden
denied the transfer. 	As 	grounds, 	Ogden 	stated that Mitchell's
job 	performance 	needed 	improvement which would 	best 	be
accomplished 	in her 	current 	assignment where 	she was 	already
familiar with procedures, 	and a 	transfer would not 	satisfy
Mitchell's 	concerns 	because 	all 	units 	have 	similar requirements
of attendance, 	production and 	standards 	of quality. 	He declared
that Mitchell's problems with current unit 	07 	supervision were
the 	same 	as with past 	supervisors, 	notwithstanding a 	complete
turnover at 	every 	level 	in the unit. 	Ogden 	found no 	compelling
medical 	evidence 	of 	Mitchell's 	inability 	to perform her 	current
duties 	or other medical 	necessity 	for the 	transfer. 	Once
57Mitchell was 	on NDI 	leave at the time.
41

Mitchell's 	performance 	questions were resolved, 	she 	could 	apply
for transfer opportunities, 	however. 	On October 	18, 	Mitchell
delivered 	a 	letter 	from her doctor to Ogden. 	Doctor Warren
advised 	that 	Mitchell's 	transfer 	should be 	approved because 	a
return 	to 	the 	same 	environment 	and 	tension 	could 	end her progress
and require 	a 	subsequent 	stress 	leave; 	he had 	examined 	the duties
of both positions, 	found them similar, 	and Mitchell was 	familiar
with the duties 	in the new unit. 	On October 25, 	Ogden again
denied the transfer, 	referring to the reasons 	in his 	September 	18
memo, 	although he understood Mitchell's 	desire 	for the 	transfer
and her doctor's 	interest 	in 	supporting her. 	On November 	2, 	one
week 	later, 	Mitchell 	began a 	four-hour workday. 	Mitchell was
away 	from the unit 	for 	four hours 	a day and unavailable 	to
provide 	representation as 	a 	result 	of 	the disapproval 	of 	her
transfer. 	While on the reduced workday, 	she referred employees
to Moffett 	for grievances 	and adverse actions, 	rescheduled
meetings 	and 	limited her telephone 	calls. 	Mitchell 	also was 	not
able to handle other employees' 	worksite problems 	due to her
personal 	stress. 	(Case No. 	S-CE-452-S, 	paragraphs 	4(m) 	and 	(n).)
On October 30 	or 31, 	Mitchell asked to take a one-day
effective 	time 	management 	class 	offered to FTB 	employees 	free 	of
charge;58 Eiserman denied her request. 	Eiserman allegedly told
Mitchell 	that 	the 	class would benefit 	the union and Mitchell 	as 	a
58A 	FTB 	bulletin 	indicated 	that 	the 	class 	was 	offered 	three
times 	in October. 	Mitchell, 	however, 	did not know when the class
would be held. 	Mitchell 	also did not 	know if 	other unit 	07
employees 	asked to 	take the 	class 	and/or were 	given permission to
attend.
42

U. . .
steward, 	and 	cited her 	reduced workday.
59
The 	denial 	of 	this
training 	opportunity had 	no 	impact 	on Mitchell's 	union
activities. 	The decision, 	however, 	caused her additional
personal 	stress 	because 	she was 	attempting to 	improve 	her work
performance 	and use her time more productively, 	as 	directed by
Eiserman. 	(Case No. 	S-CE-452-S, 	paragraph 4(o).)
In October 	1990, 	Mitchell was 	allegedly not 	allowed to
record 	nonproduction time 	on her time 	sheet when working with
trainers 	and reviewers 	and 	for unit meetings. 	On October 	1,
Mitchell 	participated 	in training with Chamberlain. 	She 	spent
time with reviewers 	in correcting her work product 	as 	part 	of 	the
100 	percent review. 	The unit meetings 	involved time 	spent
individually with 	Eiserman 	and/or with 	Eiserman 	and 	Naismith
together.60 Disallowing these 	activities 	meant 	that 	50 	to
100 	percent 	of 	Mitchell's workday were not 	charged to production
codes, 	which 	lowered her production rate.61 Mitchell 	also
received 	counseling 	memos 	criticizing her 	low production which
were used to 	support 	the 	January 	1991 	adverse 	action.62 A
59Mitchell 	requested 	the 	class 	two 	or three days 	before
starting 	the 	reduced 	schedule.
60One unit 	07 	meeting 	attended by all 	staff was 	credited to
nonproduction time, 	unlike the meetings 	between Mitchell 	and her
supervisors.
61Mitchell did not know if other unit 07 	coworkers, 	or any
FTB 	employees, 	were 	given nonproduction time 	for these
activities.
62Mitchell 	began to 	receive 	counseling memos 	in March 	1990
concerning her production rate. 	She 	also had been discussing the
general 	issue of production 	standards with FTB 	since May, 	and met
again with 	FTB 	management 	on the 	subject when 	she 	returned 	to
43

grievance was 	filed. 	The denial 	of 	nonproduction time had a
negative 	effect 	on Mitchell's 	discussions 	with 	FTB 	over 	the
appropriate production rates 	and 	standards 	for 	establishing 	them,
Mitchell was 	less 	credible 	as 	a 	representative and the production
rates/standards 	issues were not resolved. 	(Case No. 	S-CE-452-S,
paragraph 	4(q).)
work 	in October. 	These discussions 	addressed how production
rates 	were 	established as well 	as 	the 	specific 	recording 	of
Mitchell's worktime.
On October 31, 	1990, 	Mitchell was 	allegedly denied two hours
of 	nonproduction time which 	she 	spent taking pictures 	of 	costumed
children and co-workers. 	For several years, 	Mitchell had taken
such pictures 	and posted 	them on a worksite bulletin board; 	the
cost was 	borne by DLC 	786. 	She 	learned that the two hours 	had
not 	been 	credited 	to 	nonproduction time when 	she 	reviewed 	her
timesheet.63 Mitchell 	decided 	that 	she would no 	longer 	take
pictures 	in the unit to 	avoid 	jeopardizing her production rate.
(Case No. 	S-CE-452-S, 	paragraph 4(u).)
On two or three occasions, 	from October 	1990 	through January
1991, 	Eiserman allegedly 	told Mitchell 	that 	FTB would 	terminate
her by adverse action. 	There were 	no 	other witnesses 	to 	these
conversations. 	The 	first 	incident 	occurred 	in early October.
Although 	the 	June 	1990 	adverse 	action 	imposed a 	three-month
reduction in her 	salary, 	that period expired on September 	30,
before Mitchell returned to work. 	As a result, 	Mitchell's
- . . .
Mitchell 	did 	not 	know whether other 	FTB 	employees 	were
allowed nonproduction time 	to take 	such pictures.
44

'October 	monthly 	salary was 	not 	reduced.64 Eiserman 	told 	Mitchell
\,;that 	she 	had 	not 	suffered 	any penalty despite 	the 	adverse 	action.
The 	second 	communication 	occurred 	in January 	after Mitchell
received 	the 	second 	adverse 	action when Mitchell 	requested 	state
time 	to 	complete 	an application for a promotional 	exam. 	Eiserman
replied 	that Mitchell had been demoted, 	did 	not qualify 	for 	the
position, 	and 	she would not be here anyway. 	Mitchell did not
recall 	any 	specifics 	regarding a 	third 	exchange. 	These
communications 	detracted 	from 	Mitchell's 	ability 	to 	represent
employees 	with 	confidence 	and 	successfully 	resolve 	their 	disputes
in 	similar areas. 	The conversations were also detrimental 	to her
mental 	state 	and 	she 	stopped 	applying 	for promotional
opportunities. 	(Case No. 	S-CE-487-S, 	paragraph 4(c).)
whatthat
On the afternoon of January 31, 	1991, 	Mitchell requested
state 	time to 	obtain and 	complete promotional 	applications 	for a
Program Technician 	II 	job and 	another 	advertised position.
Eiserman denied 	the request 	for 	state 	time.6565 Mitchell 	did 	not
submit 	the 	application because 	she 	could 	not 	complete 	it by 	the
final 	filing date 	the 	next 	day.66 Since promotional 	prospects
for FTB 	job stewards 	are 	limited, 	according to Mitchell, 	the
64Mitchell was 	off work on NDI 	leave 	during the 	entire 	three
months 	covered by the adverse 	action. 	The NDI 	benefits 	received
by Mitchell had a weekly maximum of 	$135, 	a 	sum far 	less 	than the
10 	percent 	salary reduction would have 	required.
65Mitchell 	testified 	that 	state 	time was 	allowed 	in the 	past
to 	complete promotional 	applications 	for Office 	Technician
positions.
66At the time, 	Mitchell's 	shift 	ended at 	3:30 	p.m. 	The 	FTB
personnel 	office 	closed 	at 	4:00 	p.m.
45
< 	·· 1 l'. ',.,

denial 	of 	any 	opportunity 	necessarily 	affects 	union activity.
Case No. 	S-CE-487-S, 	paragraph 4(k).)
On February 8, 	1991, 	Mitchell participated in a one-hour
meeting with Eiserman, 	Naismith and Moffett. 	The meeting was 	to
discuss 	a grievance 	filed by Mitchell 	over production rates.
Topics 	covered were 	existing unit 	07 	workloads 	resulting 	from
reorganizations, 	mergers and unit 	split-offs; 	production rates
and 	established 	standards; 	whether test periods 	had been met;
work procedures; 	and 	specific 	employee 	assignments. 	The FTB
representatives 	asked 	for 	an 	extension 	of 	time 	to 	research 	and
supply 	information 	requested 	by 	CSEA which Mitchell 	granted.
After the meeting, 	Mitchell 	found a February 	6 	corrective memo
from Eiserman on her desk. 67 The memo 	cited 	six 	accounts 	which
Mitchell 	returned on February 	5 	without 	completing 	or 	following
Eiserman's 	instructions 	on how to resolve them; 	it also 	stated
that 	Mitchell 	had 	added 	notes 	to 	the 	accounts 	describing how 	she
thought 	the 	accounts 	should be processed. 	Eiserman declared 	that
Mitchell's 	refusal 	to 	follow 	instructions 	constituted
insubordination and 	could result 	in adverse 	action. 	Mitchell
wrote a note on the memo and returned 	it to 	Eiserman; 	she
asserted 	that 	the 	memo 	invalidated 	Eiserman's 	request 	for 	an
extension of 	time at the meeting, 	constituted a response 	to the
production 	standards 	grievance, 	and a grievance would be 	filed.vo00
67Mitchell's 	attendance 	records 	reflect 	that 	she 	used 	eight
hours 	of 	sick 	leave 	on February 	7.
00
Mitchell 	filed 	a 	separate 	grievance 	over 	the 	corrective
memo.
46

On March 	5, 	another meeting was 	held over production 	standards;
in 	attendance were 	those participating 	in the February 	8 	meeting,
CSEA representative Bill Sweeney, 	FTB manager Elise Marendt, 	and
FTB LRO R. 	Mitchell. 	Prior to the meeting, 	Mitchell 	supplied
written confirmation of her request 	for 	information to 	FTB; 	the
information was 	not given to CSEA at the March meeting, 	however,
and 	the production 	standards 	grievance was 	elevated 	to 	the 	next
level. 	Mitchell 	testified that 	the 	corrective memo 	stopped 	the
grievance process 	and meet 	and 	confer 	sessions 	between CSEA 	and
FTB 	on the production rate 	issue.
Other Evidence69
James 	Jiminez 	(Jiminez)70 testified that in April 	or
May 	1990, 	Ogden 	suggested that he 	find another position. 	This
comment 	came 	after Jiminez 	told Ogden he 	had 	contacted CSEA 	over
the 	termination of 	his 	limited term position. 	Mitchell was 	not
mentioned 	during 	this 	alleged 	conversation.
Barbara Howard 	(Howard), 	a CSEA member and FTB mailing
machine operator, 	works a 	swing shift. 	In 	1989, 	Howard attended
steward 	training but did not 	complete 	it.71 She 	received
69	69 During 	the 	five-day 	formal 	hearing, 	Charging 	Parties
called 	13 witnesses 	and one witness 	testified 	for Respondent. 	In
addition to the testimony of Mitchell, 	Moffett, 	Harris, 	Hicks,
Kerns, 	Jefferson, 	Rowland, 	Rogers and Lemuel, 	Charging Parties
presented 	47 	documents 	and Respondent 	introduced 	16 	exhibits; 	all
were 	received 	into 	evidence.
70Jimenez was 	a phase two witness. 	He was 	called out of
turn to preserve evidence, 	due to his medical 	condition.
71Mitchell 	testified 	that 	Howard was 	a 	steward 	afraid 	to 	be
active 	for 	fear of 	retaliation by FTB.
47
''

Mitchell's 	open 	letter at home. 	Howard 	telephoned Mitchell 	for
advice on 	job issues 	or problems; 	when 	she could not reach her,
Howard 	contacted 	Moffett 	for 	assistance 	and was 	always 	able 	to
reach him. 	Howard 	saw no 	change 	in Mitchell's 	union-related
activity 	from 	1989 	to 	1990.
:1: . ... . .4
Cathy Casey 	(Casey) 	is 	a permanent 	intermittent Tax 	Program
Assistant 	in the 	FTB 	Bank and Corporation unit. 	Moffett
recruited her as 	a 	steward 	in June 	1990. 	Casey did not 	complete
steward 	training because 	of what 	she 	heard 	about 	Mitchell 	and 	her
personal 	situation at work. 	Casey had 	barely passed probation,
was 	on attendance 	restriction and 	a 	supervisor 	told her 	not 	to
make any more waves. 	She 	filed a grievance over denial 	of her
merit 	salary adjustment 	(MSA) 	which Moffett handled; 	the
grievance was 	resolved 	in Casey's 	favor by the unit 	manager.72
Casey 	could 	not 	identify 	the 	open 	letter.
Marcel Mills 	(Mills) 	is 	a 	supervisor in the Taxpayer
Information unit at FTB; 	he 	is not a CSEA member. 	He 	saw the
open 	letter 	and 	spoke with 	coworkers 	about 	it. 	Mills 	had heard
negative 	comments 	about Mitchell 	from FTB managers 	but 	still
decided 	to 	seek her out 	in 	September 	1990 	to 	correct 	racial
imbalances 	at the workplace. 	His working relationship with
Mitchell 	on this project has 	been very positive.
72Casey's 	MSA was 	granted two months 	after 	it was 	due 	but
she did 	not 	receive retroactive pay. 	A negative performance 	memo
regarding 	failure 	to 	meet production rates 	also was 	removed 	from
her personnel 	file.
48

Carol Pena 	(Pena) 	is a Tax Program Assistant in unit 07.73
In 	1991, 	Pena decided not to become a 	steward because one or two
of 	her 	coworkers 	had 	filed grievances which 	lacked merit. 	Pena's
workload was 	also very heavy 	and 	she 	did 	not have 	time 	to
represent other 	employees. 	Pena may resume 	steward training 	in
the future.
Respondent 	cross-examined 	Moffett 	regarding 	its 	partial
motion to dismiss 	specified allegations 	in Case No. 	S-CE-452-S.
Moffett met with FTB counsel Jeffrey Fine 	(Fine) 	on May 	3, 	1991.
At the time, 	he represented Mitchell 	on all 	three 	cases. 	Moffett
indicated 	that 	he would 	not pursue 	certain allegations,
identified 	other 	charges 	that 	he 	would 	tentatively 	drop 	but
needed to discuss with Mitchell 	first, 	and 	named other 	claims
that would not be dismissed. 	On May 	9, 	Fine wrote to Moffett 	and
confirmed 	their meeting; 	Moffett 	testified 	that 	Fine's 	letter was
substantially accurate.7474 Moffett was 	unaware 	of 	any 	limitation
on his 	authority or ability to 	reach agreement 	on case 	strategy
for the 	three 	complaints 	as 	of May 	3. 	On May 	4, 	the CSEA civil
service 	division replaced Moffett 	as 	representative 	in 	the 	cases
with outside 	counsel. 	Mitchell 	told Moffett 	that 	she 	intended 	to
file 	an amended notice of 	appearance designating herself 	as 	co-
counsel 	on the two 	charges 	she 	filed, 	but Moffett was 	unsure
..,,
73Mitchell 	testified 	that 	Pena 	had declined 	to 	be 	a 	CSEA 	job
steward because 	of 	FTB actions 	against Mitchell.
74Case No. S-CE-452-S, paragraphs 4(k), (m), (n), (q), (r),
(s), 	(t) 	and 	(u) 	were the charges which Moffett agreed to drop.
49

whether 	their 	conversation took place 	before 	or 	after 	the 	May 	3
meeting.
ISSUE
Did any of 	the 	37 	alleged 	employer actions 	interfere with 	or
deny rights 	to 	the union in violation of 	Dills Act 	section
3519(b)?
DISCUSSION
The 	sole 	issue 	is whether any 	alleged violations 	of 	CSEA's
section 	3519(b) 	rights 	have been established by a preponderance
of 	the 	evidence. 	This determination cannot be made 	in a vacuum.
First, 	consideration must be given to the deferral 	of 	the
section 	3519(a) 	allegations 	concerning Mitchell's 	rights 	as 	an
employee, 	based on the 	same 	charged employer conduct.
PERB precedent 	establishes 	that 	the 	mandatory 	language 	of
Educational Employment Relations Act 	(EERA)75 section
3541.5(a)(2) 	constitutes 	a nonwaivable 	jurisdictional 	rule
requiring dismissal 	of a 	charge 	(and complaint) 	and 	its 	deferral
to arbitration if 	the 	statutory conditions 	are met. 	(Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646, 	aff'd.
Elsinore Valley Education Association. 	CTA/NEA v. 	PERB 	(1988)
Cal.App.4th, Div.2, Case No. 	E005078 	[nonpubl. opn.]; Eureka City
School District 	(1988) 	PERB Decision No. 	702; 	Alameda County
Superintendent of 	Schools 	(1989) 	PERB Decision No. 	747.) 	The
Board's 	exercise of 	jurisdiction is 	not precluded, 	however,
75The EERA 	is 	codified at 	section 	3540 	et 	seq. 	and 	is 	also
administered 	by 	PERB.
50

unless 	the 	alleged 	unfair practice 	is 	also prohibited 	by 	the
parties 	contract, 	the agreement culminates 	in binding
arbitration and 	the 	grievance 	machinery 	covers 	the 	matter 	at
issue. 	(Los Angeles 	Unified School District 	(1990) 	PERB Decision
No. 	860, 	aff'd. 	Los Angeles Unified School District v. 	PERB
(1991) Cal.App.2nd, 	Div.l, Case No. 	B057193 	[nonpubl. 	opn.])
Since Dills Act 	section 	3514.5(a)(2) 	is 	identical 	to EERA 	section
3 541.5(a)(2), 	the Board has held that where the contract
prohibits 	only the violation of 	employee rights, 	and not those 	of
the 	exclusive 	representative, 	only the 	section 	(a) 	charge may be
deferred. 	(State of California 	(Department of 	Parks 	and
Recreation) 	(1990) 	PERB Decision Nos. 	810-S and 810a-S; 	State of
California 	(Department of 	Forestry and Fire Protection) 	(1989)
PERB Decision Nos. 	734-S 	and 	734a-S; 	San Diego County Office of
Education 	(1991) 	PERB Decision No. 	880.)
The 	separate 	and 	independent 	Dills 	Act 	section 	3519(b)
allegation is 	more than a mere technicality. 	The 	statutory
scheme 	directly 	confers 	benefits 	upon both 	employees 	and
exclusive representatives, 	which includes the distinct right(s),
respectively, 	to be 	free 	from unlawful 	employer practices.
(North Sacramento School 	District 	(1982) 	PERB Decision No. 	264.)
The Board has 	found a 	section 	(b) 	violation where the 	employer's
conduct 	interfered with, 	or tended to 	interfere with, 	the union's
ability 	and right 	to 	represent bargaining unit 	employees. 	(San
Francisco Unified School 	District 	(1978) 	PERB Decision No. 	75;
Santa Monica Community College District 	(1979) 	PERB 	Decision
51

No. 	103.) 	Thus, 	PERB may exercise 	jurisdiction and remedy unfair
practices 	against employee 	organizations 	even though 	the 	conduct
is 	primarily 	directed 	toward bargaining unit 	employees.
Mitchell's 	activities 	as 	a 	job 	steward 	and 	DLC 	786 	president
from 	January 	1990 	through March 	1991 	must be 	evaluated,
therefore, 	in light of 	the 	statutory conditions 	for deferral 	and
her arguable position as 	an agent of the union. 	(Antelope Valley
Community College District 	(1979) 	PERB Decision No. 	97; 	Los
Angeles 	Community College District 	(1982) 	PERB Decision No. 	252;
Inglewood Unified School 	District 	(1990) 	PERB Decision No. 	792,
aff'd. 	Inglewood Teachers Association. 	CTA/NEA v. 	PERB 	(1991)
227 	Cal.App.d 	767 	[278 Cal.Rptr. 	228])
Here, 	the applicable 	contract 	contained a grievance
procedure, 	culminating in binding arbitration, 	which both CSEA
and bargaining unit 	employees 	could 	invoke. 	Furthermore, 	the
agreement 	prohibited 	employer 	reprisals 	against 	both 	employees
and 	job 	stewards, 	and 	entitled 	employees 	and 	stewards/union
officers 	to reasonable 	state release time 	and 	reasonable 	use 	of
state telephones 	for representational 	activities. 	Fully
utilizing the 	contractual machinery, 	Mitchell 	and/or CSEA, 	on her
behalf, 	filed grievances 	concerning 	14 	of the 	37 allegations76 in
the 	consolidated 	complaints.77 Even assuming 	the 	validity 	of
76	76 Grievances were 	filed over the 	conduct 	charged 	in Case No,
S-CE-452-S, paragraphs 4(a), (b), (c), (e), (g), (h), (j), (k),
(p), (q) 	and 	(s), 	and regarding the allegations 	in Case
No. S-CE-487-S, paragraphs 4(g), 	(i) and (o).
77Respondent's motion to dismiss 	the 	section 	3519(b)
complaints 	and defer them to arbitration, 	made prior to hearing
52

these 	claims 	of 	employer misconduct, 	the 	evidence does 	not
establish harm to or denial 	of CSEA rights, 	separate and apart
from 	any FTB 	actions 	involving 	or directed 	to 	Mitchell 	as 	an
employee, 	or as 	a union officer or 	job 	steward, 	which cannot
arguably be 	addressed by 	an 	arbitrator 	in 	resolving 	the
grievances.78 These 	14 	allegations 	therefore must be dismissed
and 	deferred 	to 	arbitration.
and before 	the presentation of 	any 	evidence, 	was 	premised on the
contract 	language 	alone.
The evidence in support of the remaining 2 3 	contentions,
again assuming arguendo 	their truth, 	does 	not demonstrate 	that
the 	FTB 	conduct 	toward Mitchell 	intimidated 	other 	employees 	from
involvement 	in the union, 	prevented representation of 	employees
by 	CSEA 	and 	harmed 	or 	otherwise 	interfered with 	the 	union's
rights 	under 	section 3519(b). 	Grievances were neither denied as
untimely 	nor 	left 	unfiled due 	to 	Mitchell's 	failure 	to 	receive
messages 	from other job stewards; 	at most, 	there was a one- 	to
two-day 	delay 	in 	communications 	between Mitchell 	and 	Hicks 	or
Kerns 	and 	their 	follow-up 	responses 	to 	employees.79 Any
interruptions 	by 	Eiserman 	in worksite 	conversations 	between
Mitchell 	and 	stewards 	or 	coworkers were 	short 	in time 	and had no
lasting 	effect; 	the 	communications were 	either completed as 	soon
•
78This 	finding 	is without prejudice to Charging Parties'
ability to 	secure 	a post-arbitration review of 	any arbitration
award, 	based on a repugnancy 	standard. 	(San Diego County Office
of Education 	(1991) 	PERB Decision No. 	880.)
79Case No. 	S-CE-452-S, 	paragraph 4(d) 	and Case No.
S-CE-487-S, paragraph 4(1).
53

as 	Eiserman 	left 	or Mitchell 	later provided 	the 	information
requested.80
Mitchell 	admitted 	that 	the 	alleged 	directive 	precluding 	her
use 	of 	the 	unit telephone 	except when Eiserman was 	present did
not 	impede her union-related activities; 	she was 	free to take and
place calls 	and, 	in any event, 	the 	limitation was 	rescinded after
October 	1990.81 The 	refusal 	of Mauck to meet did 	not prevent
Mitchell 	from 	filing a 	timely SPB 	appeal 	of 	Long's 	rejection 	from
probation, 	while 	the 	communication between FTB 	supervision and
Mitchell 	over her 	representation of 	Lemuel 	ultimately benefitted
the 	union 	since 	Lemuel 	joined 	CSEA.82 Any denials 	of 	or
restrictions 	upon Mitchell's 	requests 	for 	state 	release 	time
and/or 	sick, 	vacation or union 	leave were 	either not 	enforced,
rescinded, 	or Mitchell was 	given the 	time when 	she 	complied with
her 	supervisor's 	instructions.
8 3
Although FTB denied CSEA-
requested union leave for Mitchell, 	state release time was
granted to Harris; 	there 	is 	no 	evidence that CSEA required both
ov	on
C a s e 	N o . 	S - C E - 4 8 7 - S , 	p a r a g r a p h 	4 ( j ) 	a n d 	( m ) .
8 1 C a s e 	N o . 	S - C E - 4 5 2 - S , 	p a r a g r a p h 	4 ( f ) .
82In addition, these allegations (Case No. S-CE-487-S,
paragraph 	4(d)) 	invoke Mitchell's 	steward representation rights
and 	Long's 	and Lemuel's 	rights 	to 	representation as 	employees,
which are 	set 	forth 	in article 	2 	of 	the 	contract and must be
deferred.
83Case No. S-CE-452-S, paragraphs 4(r), (t) and (v); Case
No. S-CE-487-S, paragraphs 4(a), (b), (f), and (n).
54

employees 	to perform union work or was 	harmed by 	FTB's 	release 	of
only 	one 	steward/officer.84
The denials 	of Mitchell's 	requested transfer, 	training
opportunity, 	nonproduction time 	on Halloween and 	state 	time 	to
complete promotional 	applications85 had 	no 	negative 	impact 	upon
CSEA 	separate 	and 	distinct 	from 	their 	effect 	upon 	Mitchell
personally. 	To the extent that Ogden's 	refusal 	to approve the
transfer resulted 	in Mitchell's 	absence 	from the worksite, 	she
took 	remedial 	steps 	to 	cover 	and 	complete 	any 	representational
activity in progress, 	such as 	referring employees 	to Moffett,
rescheduling meetings 	and making telephone 	calls 	from home.
Mitchell's 	testimony 	that 	she would 	take 	no pictures 	on 	future
Halloweens 	and denial 	of 	any promotional 	opportunity 	to 	a 	steward
necessarily 	implicates 	union activity 	is 	speculative 	and 	does 	not
support 	a 	finding of 	interference with CSEA's 	rights.
Several 	allegations 	are 	based 	upon Mitchell's 	testimony 	that
the 	incidents 	caused her to 	lose 	confidence 	in her 	ability to be
an 	effective 	union officer 	and 	represent 	employees 	with 	similar
problems.,, Notwithstanding her 	self-doubts, 	the 	evidence
establishes 	that 	Mitchell 	did 	not 	cease 	or 	significantly 	restrict
her union-related activities, 	but 	instead took union 	leave,87
84Case No. 	S-CE-487-S, paragraph 4(n).
85Case No. S-CE-452-S, paragraphs 4(m), 	(n), 	(o), and (u);
Case No. 	S-CE-487-S, paragraph 4(k).
86Case No. 	S-CE-487-S, paragraph 4(c).
Mitchell 	took 	200 	hours 	of union leave 	in the 	first 	three
months 	of 	1991 	until 	she 	started NDI 	leave on March 	22.
55

made 	a 	number of 	telephone 	calls 	and participated 	in many
meetings 	in 	1990 	and 	1991 	for the purpose of representation.
The 	two 	adverse 	actions 	against Mitchell were 	timely-
appealed 	to 	SPB, 	the 	appropriate 	forum 	for deciding whether 	the
factual 	allegations 	constitute 	cause 	for discipline.88 The
January 	1991 	demotion is 	pending before 	the 	SPB 	and Mitchell
withdrew her appeal 	from the June 	1990 	salary reduction, 	thereby
terminating 	the 	case.
Mitchell 	testified 	that 	the 	FTB 	actions 	caused her 	such
stress 	that 	she became 	ill, 	which required her absence 	from the
worksite and, 	as 	a consequence, 	reduced the time 	in which 	she
could provide 	onsite 	representation. 	PERB does 	not 	have
jurisdiction to 	decide whether Mitchell's 	injuries 	were 	incurred
in the 	course of her employment. 	The Workers 	Compensation
Appeals 	Board 	is 	the 	appropriate 	forum 	for adjudicating 	such
claims, 	and Mitchell has 	invoked this remedy. 	Furthermore, 	the
evidence demonstrates 	that while absent 	from work on NDI 	leave,
Mitchell 	conducted 	union business 	at 	home 	and was 	accessible 	to
stewards 	and 	employees 	by telephone. 	The 	evidence 	also 	shows
that 	CSEA 	staffer 	Moffett 	and 	job 	stewards/chapter 	officers
Harris, 	Hicks, 	and Kerns were active and available presences 	at
the worksite, 	provided representation to employees, 	and were
afforded 	liberal 	amounts 	of 	state 	release 	time 	for 	representation
so 	as 	to 	compensate 	for any unavailability by Mitchell.
88Case No. 	S-CE-452-S, paragraphs 4(i) and (1);
Case No. 	S-CE-487-S, paragraph 4(h).
56

Mitchell's 	May 	1990 	open 	letter produced mixed 	results,
1;:.with 	some 	CSEA members 	resigning 	in protest 	and 	other 	FTB
employees 	joining the union for representation. 	It 	is undisputed
that 	the 	letter 	generated 	an 	increased 	visibility 	for 	CSEA 	job
stewards 	at 	FTB. 	Any harm and/or 	controversy 	sustained by 	the
union cannot be charged to FTB, 	however, 	but must be attributed
to Mitchell 	as 	the 	source of 	the 	letter.
wa sat with
Mitchell's 	own 	testimony 	concerning 	the production 	standards
meeting/corrective 	memo
89
illustrates 	unequivocally 	that 	the
alleged 	section 	3519(b) 	violations 	of CSEA's 	rights 	have 	no
independent 	foundation. 	Rather, 	they are 	inexorably 	linked to
her 	section 	3519(a) 	claims 	as 	an employee to represent herself
and/or be 	represented by a CSEA representative, 	which were
dismissed 	and deferred 	to 	arbitration.
90
These 	and 	other
89Case No. 	S-CE-487-S, paragraph 4(o).
QA
Q. 	(Fine) 	And my question was, 	to you,
that 	meeting 	concerned 	the 	larger 	questions
and was 	not particular 	just to you.
Isn't 	that 	right? 	It wasn't your particular
problem, 	is that correct?
A. 	(Mitchell) 	I want to hear you 	say what
it was 	concerning.
Q. 	I 	don't remember all you 	said.
Production rates, 	different work rates 	for
different 	types 	of 	things 	in the unit,
different 	changes 	that have taken place 	and
their 	effect 	on work rates 	and 	so 	forth.
Isn't that what 	it was 	about 	in your words?
A. 	All 	of 	the 	above 	and what 	I've 	said
previously.
57
·

Q. 	Right. 	And that's 	distinct 	from a
specific 	problem 	and 	how 	it 	specifically
impacts 	Marilyn Mitchell.
A. 	No, 	it's not.
Q. 	Isn't that 	correct?
A. 	No, 	it's not.
Q. 	Oh, 	it isn't. 	Okay. 	So, 	it's fair to
say, 	then, 	that the meeting you had with
Nancy Eiserman and Wendy was 	the 	same 	as 	any
other 	kind 	of 	meeting you would have 	had
about 	a particular problem that you,
yourself, 	are having, 	no different?
A. 	What? 	Do you want to 	separate me as 	an
employee 	being 	represented 	and 	as 	a 	steward
representing? 	Is 	that what you're after?
Q. 	No, 	I want to make a distinction between
this 	is my problem as Marilyn Mitchell, 	and
this 	is 	a 	larger problem that 	I 	observed
going on 	in the work place.
A. 	I 	cannot 	give you any 	further
information than what 	I've 	given you.
A. 	We have 	reached 	impasse. 	I'm sorry.
Q. 	You cannot make that distinction.
A. 	And maybe 	that's what happened to us
in March. 	When all of us met, 	we reached
impasse.
A. 	That's why we're pending 	arbitration
now.
Q. 	Just answer my question. 	You cannot
make 	a distinction 	in your mind between a
problem that's 	personal 	to you, 	that you're
experiencing, 	and a 	larger problem that has 	a
different 	effect 	on working 	conditions 	in the
unit.
58

allegations 	simultaneously 	invoke 	Mitchell's 	right 	to 	represent
herself 	and/or other employees 	in workplace 	issues, 	and are
inseparable 	from her entitlements 	as 	a 	job 	steward; 	these 	too are
rights which are 	specified 	in the unit 	4 	contract, 	covered by the
grievance 	machinery 	and 	subject 	to 	jurisdictional 	deferral.
A. 	They are one and the 	same, 	you can't
separate 	them.
Not as 	many DLC 	786 	meetings were held 	in 	1991 	due 	to
Mitchell's 	absences 	from work,9191 since 	she usually 	organized 	the
meetings. 	No 	further evidence was presented regarding 	the 	impact
of 	less 	frequent 	chapter meetings 	upon the union. 	Given the
availability of CSEA paid 	staff, 	job stewards, 	chapter officers,
and even Mitchell 	herself 	at home, 	to answer questions 	and
provide 	information about the union, 	as well as 	the 	lack of 	PERB
jurisdiction to 	determine whether Mitchell's 	absences 	were 	caused
by her employment, 	this 	fact, 	without more, 	is insufficient to
establish 	interference with 	CSEA's 	rights 	in violation 	of 	Dills
Act section 3519(b).
CONCLUSION
It 	is 	apparent that Mitchell perceives 	no meaningful
division between her roles 	as 	a FTB 	employee, 	job 	steward and DLC
786 	president, 	and the 	effect upon CSEA of 	any 	interaction
between FTB personnel and herself. 	There 	is 	no doubt about the
sincerity of her convictions. 	Mitchell's 	section 	3519(a) 	claims
91Mitchell was 	on NDI 	leave 	from May 	through 	September 	in
1990, 	and worked a 	four-hour day 	in November and December. 	She
has been on NDI 	leave since March 22, 	1991.
59

as 	an 	employee 	have 	been dismissed 	and deferred 	to 	arbitration,
however, 	and her 	representation-related 	contentions 	are 	subject
to the 	same 	jurisdictional 	rule, 	given the 	contract 	language.
Charging 	Parties 	have 	either 	failed 	to 	establish 	a 	nexus
between 	the 	incidents 	alleged 	in 	the 	three 	consolidated
complaints, 	and any 	interference with or denial 	of 	the union's
Dills Act rights 	to represent the bargaining unit, 	or the
allegations 	are 	subject 	to 	mandatory 	jurisdictional 	deferral 	to
arbitration. 	FTB's 	motion to dismiss 	the 	complaints 	based upon
deferral 	is 	granted 	for the 	allegations 	upon which 	grievances
have been 	filed and 	those 	concerning 	employee, 	steward 	and/or
union officer rights 	specifically addressed 	in the 	contract. 	The
remaining 	claims 	of 	employer 	interference with 	union rights 	fail
for 	lack of 	supporting 	evidence. 	Respondent's 	motion 	for partial
dismissal of the charges 	is moot. 	Accordingly, 	the complaints
alleging violation of Dills Act 	section 	3519(b) 	are not 	supported
by 	a preponderance 	of 	the 	evidence 	and must be dismissed.
92
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and 	the 	entire 	record 	in these 	consolidated matters, 	Unfair
Practice Charge Nos. 	S-CE-452-S, 	S-CE-459-S and S-CE-487-S, 	and
their 	companion complaints 	entitled Marilyn Mitchell 	v. 	State 	of
California 	(Franchise Tax 	Board) 	and California 	State 	Employees
92
This 	conclusion is without prejudice to Charging Parties'
ability 	to 	secure 	post-arbitration review of 	any 	award 	in
accordance with the 	statutory 	jurisdiction of 	the 	Board, 	and 	to
pursue other 	legal 	remedies 	in the appropriate 	forums.
60

Association v. 	State of California 	(Franchise Tax Board) 	are
hereby 	DISMISSED 	and 	the 	scheduled February 	24-26, 	1992 	hearing
CANCELLED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	January 	10, 	1992 	AChristine A. 	Bologna
Administrative 	Law 	Judge
61
II