State of California (Department of Corrections) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * * (PERB 1100S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	SEIU LOCAL 	1000,
AFL-CIO,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
)
)
) 	Case No. 	SF-CE-105-S
PERB Decision No. 	1100-S
May 4, 	1995
)
)
)
)
)
)
)
Appearances: 	California State Employees' 	Association by
Melvin K. 	Dayley, 	Attorney, 	for California State Employees'
Association, 	SEIU Local 	1000, 	AFL-CIO; 	State of California
(Department 	of 	Personnel Administration) 	by Paul M. 	Starkey,
Attorney, 	for State of California 	(Department of Corrections).
Before Blair, 	Chair; 	Carlyle, 	Garcia and Caffrey, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by the
California State Employees' 	Association, 	SEIU Local 	1000, 	AFL-CIO
(CSEA) 	and the State of 	California 	(Department 	of 	Corrections)
(Department 	or State) 	to a 	PERB administrative 	law judge's 	(ALJ)
proposed decision. 	The ALJ dismissed 	CSEA's unfair practice
charge 	in which 	it 	alleged 	that 	the 	State 	denied CSEA its
protected organizational 	rights 	in violation of 	section 	3519(b)
of 	the Ralph C. 	Dills Act 	(Dills Act)1 when it discriminated
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:
* * * OVERRULED IN PART by multiple decisions, as recognized in State of
California (Department of Corrections and Rehabilitation) (2024) PERB Decision
No. 2926-S, pp. 16-19 & fn. 11 * * *

against 	a bargaining unit member 	for his 	participation 	in
protected 	activity.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
The 	Board has 	considered 	the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
parties' 	statements 	of exceptions and oral argument presented
by 	the parties.2 Upon review of 	the 	record and applicable 	case
law, 	the 	Board hereby reverses 	the ALJ's 	determination concerning
deferral 	to arbitration and 	concludes 	that 	the matter must 	be
dismissed and deferred 	to 	the parties' 	grievance 	and arbitration
procedure.
FACTUAL 	SUMMARY
Andy Hsia-Coron 	(Hsia-Coron) 	is 	employed as 	a 	teacher at
the 	Correctional 	Training 	Facility at 	Soledad. 	Hsia-Coron also
served as a 	job 	steward for CSEA for seven years. 	In 1990, 	he
2CSEA requested 	oral 	argument 	in 	this 	matter which was 	heard
by the Board on August 	18, 	1993. 	Chair Blair joined the panel 	on
December 	16, 	1993 	and Member Garcia 	joined the panel 	on March 28,
1995. 	Both had the benefit of 	the entire 	record in this 	case,
including 	the 	transcript 	of 	the 	oral 	argument proceedings.
The 	State 	filed a motion with 	the Board to 	strike 	CSEA's
oral 	argument brief 	as untimely 	filed; 	or 	for leave 	to 	file 	a
reply brief. 	Oral 	argument briefs were due 	to be 	filed with 	the
Board on August 	11, 	1993. 	CSEA's brief was 	sent by certified
mail, 	postmarked and filed on August 	11, 	1993. 	Under PERB
Regulation 32135, 	CSEA's brief was 	timely filed. 	Therefore,
the 	State's motion to 	strike 	CSEA's 	brief 	is denied.
The 	State's 	oral 	argument brief was 	also due 	to be 	filed
with the Board on August 	11, 	1993. 	It was 	filed with the Board
on August 	16, 	1993. 	As 	the State provided no good cause to
excuse 	the 	late 	filing of 	its brief pursuant 	to 	PERB Regulation
32136, 	the State's 	oral 	argument brief was not 	considered by the
Board and the 	State's motion to 	file a 	reply brief 	is 	denied.
22

was 	elected to 	the 	CSEA Bargaining Unit 	Council 	for Unit 	3. 	In
this 	role, 	beginning in May 1991, 	he 	served on the CSEA
negotiating 	team during 	extended 	negotiations 	between 	the 	State
and CSEA for a new Unit 	3 	contract.
On October 4, 	1990, 	the Department 	issued a notice of
adverse 	action 	to Hsia-Coron alleging 	absence 	without 	leave 	for
the period of July 25-28, 	1990, 	and failure to follow the direct
order of 	his 	supervisor who 	ordered him to 	report 	for duty on
those 	dates. 	CSEA challenged 	the 	disciplinary action asserting
that 	Hsia-Coron had been on CSEA business 	during 	that 	time. 	A
settlement was 	reached 	in which 	the Department's 	letter of
reprimand would be 	removed 	from Hsia-Coron's 	personnel 	file
effective July 1, 	1991.
On June 	6, 	1991, 	Hsia-Coron received a performance
evaluation for the period of April 	1990 	through April 	1991. 	In
all 	but 	one area Hsia-Coron was 	graded as meeting performance
standards. 	One 	category was 	rated 	"improvement 	needed" 	based
on 	the 	explanation 	that 	Hsia-Coron 	failed 	to attend a mandatory
in-service 	training 	class 	on AIDS. 	Hsia-Coron and his
supervisor, 	Howard Howser 	(Howser), 	discussed the evaluation
and both 	signed 	the 	document.
The 	evaluation was 	subsequently 	reviewed and 	rejected
by Jan Blake 	(Blake), 	the acting chief 	deputy warden for the
facility. 	Blake met 	with Howser and directed him to 	revise 	the
evaluation to 	reflect 	that 	Hsia-Coron had 	shown poor 	judgment 	in
his 	absence 	from work during 	the period 	in July 	1990. 	Although
3
3

Howser disagreed with 	including 	reference 	to 	the 	issue 	because
the matter had been settled, 	on June 	26, 	1991 Howser revised the
evaluation, 	rating Hsia-Coron as 	needing 	improvement 	in 	three
additional 	categories.
After he 	changed the 	evaluation, 	Howser concluded 	that
he 	should 	contact 	Hsia-Coron and 	inform him of 	the 	revisions
to his 	evaluation. 	Howser knew Hsia-Coron was 	in Sacramento
to participate 	in negotiations 	and he 	concluded 	that 	State
negotiator Rich Hawkins 	(Hawkins) 	would know how to 	reach him.
Howser 	called Hawkins' 	office and he was 	given a 	telephone 	number
where he 	could reach Hawkins. 	When Howser called, 	the 	telephone
rang 	in 	the 	conference 	room where 	negotiations 	were underway
between CSEA and the 	State. 	Hawkins 	answered the 	telephone and
called Hsia-Coron to 	the phone, 	advising him that 	his 	supervisor
wanted to 	talk 	to him. 	Howser 	informed Hsia-Coron 	that 	he 	had
been directed 	to 	change his 	evaluation and 	the 	new evaluation
rated him as 	"improvement 	needed" 	in 	four areas 	rather than one.
After hanging up 	the 	telephone 	receiver, 	Hsia-Coron blurted 	out
to 	the members 	of 	the 	two negotiating teams 	that 	his 	supervisor
has 	just 	told him that his 	evaluation had been 	changed. 	He
quoted Howser as 	saying 	the 	change 	had been 	ordered by higher
authorities. 	At 	that point, 	the CSEA negotiating 	team asked to
take 	a 	caucus 	break and left 	the 	room.
CSEA's 	negotiating 	team discussed 	whether 	they 	should 	take
4
4

a position 	on 	the 	evaluation during 	the 	current 	negotiations,
deciding ultimately 	that 	they 	should not. 	The 	caucus meeting
lasted approximately one 	hour, 	after which negotiations 	resumed.
Several 	members 	of 	the 	CSEA negotiating 	team testified 	that
the incident was disturbing. 	There is no evidence, 	however, 	that
any CSEA negotiator quit 	the bargaining 	team, 	or 	that 	proposals
or strategy were 	changed, 	or that 	negotiations were 	delayed or
became more 	difficult 	because 	of 	the 	revised evaluation.
CSEA and 	the 	State were parties 	to a 	collective bargaining
agreement 	(CBA), 	dated August 31, 	1988 through June 30, 	1991.
Article 	5, 	"General 	Provisions," 	section 5.5 	states:
The 	State 	and CSEA Local 	1000 	shall 	be
prohibited 	from 	imposing 	or 	threatening
to 	impose 	reprisals 	by discriminating
or 	threatening 	to 	discriminate 	against
employees, 	or otherwise 	interfering with,
restraining, 	or coercing employees because
of 	the 	exercise 	of 	their 	rights under
Ralph C. 	Dills Act 	or any right 	given by this
contract. 	The principles 	of agency shall be
liberally 	construed.
Article 2, 	"Union Representation Rights," 	section 2.8 	states:
The 	State 	shall 	be prohibited 	from imposing
or threatening to 	impose 	reprisals, 	from
discriminating 	or 	threatening 	to 	discriminate
against Union stewards, 	or otherwise
interfering with, 	restraining, 	or coercing
Union stewards because 	of 	the 	exercise 	of 	any
rights 	given by this 	contract.
Article 	6, 	"Grievance and Arbitration Procedure," 	section 	6.2
(amended by a side letter dated June 	14, 	1989) 	defines a
grievance as a 	"dispute of 	one or more employees, 	or a dispute
between the 	State and the Union, 	involving 	the 	interpretation,
application, 	or enforcement of 	the express 	terms 	of 	this
5

Agreement." 	The 	CBA also provides 	for binding arbitration 	of
grievances. 	(Art. 	6, 	sec. 	6.12(e).)
On December 26, 	1991, 	CSEA filed an unfair practice 	charge
alleging that the State violated section 3519(a), 	(b), 	(c) 	and
(d) 	of 	the Dills Act by revising and downgrading the 	evaluation
of one of its negotiators. 	On March 31, 	1992, 	after receiving
assurances 	that 	the 	State would process 	grievances 	filed prior 	to
the expiration of 	the CBA, 	through arbitration if necessary, 	CSEA
withdrew all 	allegations 	except 	the 	allegation 	that 	by 	issuing
the 	revised evaluation to Hsia-Coron 	the 	State violated Dills Act
section 3519(b).
The 	PERB general 	counsel 	issued a 	complaint 	on April 	22,
1992, 	which alleged that 	the State denied CSEA its 	right 	to
represent unit members 	in violation of 	section 3519(b) 	when on or
about June 26, 	1991, 	it 	issued a negative performance evaluation
to Hsia-Coron. 	The 	same date, 	the general 	counsel 	denied the
State's motion 	to dismiss 	the 	charge as 	untimely 	filed and 	the
motion to defer the 	charge 	to arbitration.
The State answered the complaint on May 20, 	1992, 	denying
that 	it 	had 	interfered with CSEA's 	protected organizational
rights. 	A hearing was 	conducted 	in San Francisco 	on July 9
and 10, 	1992. 	At the commencement of 	the hearing, 	the State
renewed 	its motion to defer the 	charge 	to arbitration. 	The
motion was 	taken under submission by 	the ALJ.
6
6

ALJ'S 	PROPOSED 	DECISION
Applying 	current 	PERB precedent, 	the ALJ denied 	the 	State's
motion 	to defer 	to arbitration after 	finding no provision 	in
the parties' 	contract which prohibited the 	State 	from denying
employee 	organizations 	their rights under the Dills Act.
On the merits 	of 	the 	case, 	the ALJ noted that 	in order to
establish a violation of Dills Act 	section 3519(b), 	CSEA must
first 	prove 	that 	the 	State 	discriminated against 	Hsia-Coron 	for
participation 	in protected activity, 	just 	as 	it would 	"had the
3519(a) 	violation not been deferred to arbitration." 	CSEA must
then prove 	that 	the 	discrimination 	resulted 	in actual 	harm to
CSEA, 	denying it 	the right 	to represent 	its members.
The ALJ 	concluded that 	a prima 	facie 	case 	of 	discrimination
against Hsia-Coron had been established. 	However, 	the ALJ
determined 	that 	CSEA failed 	to prove 	that 	the 	State's 	retaliatory
action against 	Hsia-Coron 	resulted 	in actual 	harm to 	CSEA, 	and
thus 	denied CSEA the 	right 	to 	represent 	its members 	in violation
of Dills Act section 3519(b).3
3The Board, 	in State of 	California 	(Franchise Tax Board)
(1992) 	PERB Decision No. 	954-S, 	described the burden of proof
which a union must 	carry 	if 	it 	is 	to 	show a violation of
subsection 	(b) 	in cases where an 	(a) 	violation alleged on the
same 	conduct has been deferred to arbitration. 	The Board stated:
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.
77

THE 	STATE'S 	EXCEPTIONS
On appeal, 	the State 	reasserts 	its argument 	that 	this 	charge
must 	be 	deferred 	to arbitration under 	the provisions 	of 	the
parties' 	CBA. 	Alternatively, 	on the merits, 	the State argues
that 	the ALJ 	erred when he 	determined 	that 	the 	evidence 	supported
a prima 	facie 	case 	of 	discrimination against Hsia-Coron. 	The
State 	contends 	that 	it 	did not 	depart 	from established procedures
when 	it 	revised Hsia-Coron's 	evaluation.
CSEA'S 	EXCEPTIONS
CSEA proposes 	that 	PERB modify 	its 	standard 	for 	establishing
a violation of Dills Act 	section 3519(b) 	when the alleged 	(b)
violation is 	alone before 	the Board. 	CSEA urges 	the Board 	to
adopt 	either a per 	se 	rule 	or 	find 	that 	a violation of 	section
3519(b) 	derives 	from a finding of a prima 	facie 	case of
discrimination in violation of Dills Act section 3519(a). 	In the
absence of a change 	in the 	current 	standard, 	CSEA asserts 	that 	it
has 	sufficiently demonstrated an actual 	impact 	on 	its 	rights 	as
an employee 	organization, 	establishing a violation of Dills Act
section 3519(b).
DISCUSSION
Among the express purposes 	of 	the Dills Act 	is 	to provide
"a 	reasonable method of 	resolving disputes" 	between the State
employer 	and 	employee 	organizations.4
4Dills Act 	section 3512.
88

Dills Act 	section 3514.5(a)5 describes 	PERB's 	jurisdiction
in dispute resolution, 	and states, 	in pertinent part, 	that:
(a) 	Any employee, 	employee organization,
or employer shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall not 	. 	. 	. 	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.
There 	are 	several 	related public 	policy 	considerations
which 	form the 	underpinnings 	of 	the 	limitation on 	PERB's 	dispute
resolution jurisdiction described 	in this Dills Act 	section.
First, 	the parties have the right to one neutral, 	administrative
forum for the 	resolution of 	their disputes. 	Second, 	the parties
have 	the 	right 	to 	choose a grievance and arbitration process,
rather than PERB, 	as that neutral, 	administrative forum, 	and the
Board should defer to the parties' 	choice. 	Third, 	by deferring
to the parties' 	choice of an alternative 	forum, 	overlapping and
duplicative proceedings 	are avoided, 	leading to 	the more 	timely
resolution of 	disputes, 	and thereby contributing 	to 	stability
and 	improvement 	in 	employer-employee 	relations.
With these policy considerations 	in mind, 	we now review
previous 	Board 	decisions 	which 	considered 	PERB's 	dispute
resolution 	jurisdiction.
5Section 3541.5(a) 	of 	the Educational 	Employment Relations
Act 	(EERA) 	contains 	the 	identical 	language. 	EERA is 	codified at
Government 	Code 	section 3540 	et 	seq.
99

In John Swett 	Unified School 	District 	(1981) 	PERB Decision
No. 	188 	(John Swett), 	the Board first considered the scope of 	its
jurisdiction 	in a 	dispute where 	a party alleged multiple 	legal
theories based on the same 	conduct. 	In John Swett. 	the
association 	filed a 	charge 	alleging 	discrimination against 	a
union activist 	for 	exercising protected 	rights 	and 	interference
with the 	association's 	organizational 	rights. 	The Board
concluded that 	the dispute was 	not 	subject 	to deferral 	because
part 	of 	the 	charge, 	the association's 	interference allegation,
was not 	covered by the CBA. 	The Board, 	cognizant 	of 	the need
to 	encourage 	the 	economic and efficient 	resolution of 	disputes,
declined 	to 	divide 	the 	dispute 	and 	stated:
We 	are unwilling 	to demand 	that 	the
Association 	forfeit 	its 	statutory
protections. 	Alternatively, 	we are
unwilling 	to 	force 	the 	charging party
to bifurcate 	the 	alleged violations 	and
to 	engage 	in duplicative 	and overlapping
proceedings 	through both 	the 	arbitration
and unfair practice 	routes.
Following 	the John Swett 	decision, 	the Board developed a
practice 	of 	refusing 	to defer portions 	of 	charges 	to arbitration.
If 	an entire 	charge 	could not be deferred, 	then none 	of 	it was
deferred. 	But 	this practice was 	significantly altered 	in Lake
Elsinore 	School District 	(1987) 	PERB Decision No. 	646 	(Lake
Elsinore).
In 	Lake 	Elsinore 	the 	Board 	focused on 	the 	need 	to defer
to 	the dispute 	resolution process 	agreed to by the parties.
The 	Board held 	that 	EERA section 3541.5(a) 	established a
nondiscretionary 	jurisdictional 	limitation 	on 	the 	Board's
10

authority to 	issue a complaint. 	Consequently, 	the Board ruled
that 	PERB must 	dismiss 	and defer an unfair practice 	charge 	if:
(1) 	the grievance machinery of 	the agreement 	covers 	the matter at
issue and culminates 	in binding arbitration; 	and 	(2) 	the 	conduct
complained of 	in 	the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the agreement between the parties.
The 	first 	cases 	in which 	the 	Lake 	Elsinore 	jurisdictional
rule was 	applied involved a single 	cause 	of 	action, 	alleged
unilateral 	changes 	made 	in violation of 	specific 	contract
prohibitions.6 These 	cases 	resulted 	in deferral 	to 	arbitration
of 	a single 	legal 	theory, 	the 	failure 	to bargain in good 	faith.
In State 	of 	California 	(Department 	of 	Forestry and 	Fire
Protection) 	(19 89) 	PERB Decision Nos. 	734-S and 734a-S
(Department of 	Forestry), 	the Board for the 	first 	time since
Lake 	Elsinore was 	confronted with a 	deferral 	question 	involving
multiple 	legal 	theories. 	The 	Lake 	Elsinore 	jurisdictional 	rule
precluded 	the 	Board 	from applying 	the 	approach developed 	from
John Swett 	which allowed 	the Board 	to 	refuse 	to defer unless 	the
entire 	charge 	could be deferred. 	The 	Board 	resolved 	this 	dilemma
by deferring 	a portion of 	the 	charge 	and 	issuing a 	complaint 	on
the remainder.
In Department 	of 	Forestry, 	the Board agent 	dismissed and
deferred 	the 	unfair practice 	charge 	which asserted multiple 	legal
theories. 	The 	charging party alleged that 	the 	employer's 	conduct
6Such as 	that 	in Lake 	Elsinore 	itself 	and 	in Eureka City
School District 	(1988) 	PERB Decision No. 	702.
11

interfered with both 	the 	rights 	of 	individual 	employees 	and,
separately, 	the 	rights 	of 	the exclusive 	representative 	in
violation of Dills Act section 3519(a) 	and 	(b). 	On appeal, 	the
Board upheld 	the 	deferral 	of 	the alleged violation 	of 	section
3519(a) 	but 	reversed as 	to 	the alleged violation of 	section
3519(b). 	The Board concluded that 	since 	there was no provision
in the parties' 	agreement 	that 	covered the 	rights 	of 	the employee
organization, 	the alleged violation of 	section 3519(b) 	was not
deferrable. 	Thus, 	the Board in Department of 	Forestry
established a 	standard under which a 	dispute 	could be 	divided 	for
consideration 	in 	two neutral 	administrative 	forums, 	PERB and an
arbitration process, 	depending on the 	legal 	theory on which 	the
allegation was 	based.
The 	Board 	reached the 	same 	result 	in State 	of 	California
(Department 	of 	Parks and Recreation) 	(1990) 	PERB Decision
Nos. 	810-S and 810a-S 	(Parks and Recreation). 	where an employee
was 	allegedly 	denied 	representation 	during 	an 	investigatory
interview in violation of Dills Act 	section 3519(a) 	and 	(b).
In Parks 	and Recreation, 	the Board majority stated the 	rule as
follows:
[W]here 	conduct 	allegedly violates both
employee 	and employee 	organization rights,
and the parties' 	collective bargaining
agreement 	only prohibits 	the violation of
employee 	rights, 	only the employee charge
should be 	deferred.
The dissent 	in Parks and Recreation, 	supra. 	PERB Decision
No. 	810a-S, 	pointed out that under section 3514.5(a)(2) 	of 	the
Dills Act, 	the Board is precluded from issuing 	"a complaint
12

against 	conduct 	also prohibited by 	the provisions 	of 	the
agreement." 	The 	conduct at 	issue 	in the 	case was 	the denial 	of
representation at 	an 	investigatory 	interview. 	Since 	this 	conduct
was 	arguably prohibited by 	the agreement 	between 	the parties,
the 	dissent 	concluded 	that 	the 	entire 	charge must 	be 	deferred
regardless 	of 	the multiple 	legal 	theories 	on which violations
were alleged at 	PERB. 	By 	issuing a 	complaint 	"against 	conduct
prohibited by 	the 	collective bargaining agreement," 	the 	dissent
asserted 	that 	the 	Board acted 	contrary 	to 	the mandatory 	language
of section 3514.5(a)(2).
The 	dissent 	raised 	the 	same 	argument 	in State 	of 	California
(Department of Corrections) 	(1992) 	PERB Order No. 	Ad-231-S
(Department 	of Corrections). 	Referring to the jurisdictional
rule 	set 	out 	in Lake Elsinore, 	the dissent 	stated:
Based on the 	statutory language, 	the Board
found that 	if 	the 	conduct 	is 	arguably
prohibited by 	the 	CBA and 	the 	grievance
procedure 	culminates 	in binding arbitration,
then 	PERB has 	no 	jurisdiction over the 	unfair
practice 	charge.
(Emphasis 	in original.)
The 	conduct 	at 	issue 	in Department 	of 	Corrections 	was 	the
termination 	of 	a 	correctional 	officer which 	resulted 	in 	the
allegation of 	discrimination and 	interference violations 	of 	Dills
Act 	section 3519(a) 	and 	(b). 	Because the conduct was arguably
prohibited by the parties' 	agreement, 	the dissent argued that
the Board was 	without 	jurisdiction and 	the 	entire 	charge must 	be
dismissed 	and 	deferred.
13

The 	Board 	today 	concludes 	that 	the 	jurisdictional 	limitation
of Dills Act 	section 3514.5(a) 	precludes 	the 	issuance of a
complaint 	"against 	conduct 	also prohibited by 	the 	provisions
of 	the agreement between the parties," 	if 	the grievance and
arbitration procedure 	agreed 	to by 	the parties 	is 	applicable 	to
that 	conduct 	and ends 	in binding arbitration. 	The 	language 	of
the 	statute does 	not permit 	a determination of 	PERB 	jurisdiction
based on 	the 	sections 	of 	the 	statute alleged to have been
violated. 	It 	requires 	that 	the determination of 	PERB
jurisdiction be based on 	the 	conduct which 	is 	the basis 	of 	the
dispute. 	The Board, 	therefore, 	overrules Department of Forestry
and 	its 	progeny 	to 	the 	extent 	that 	they have 	established a
bifurcated deferral 	standard. 	The 	statutory limitation 	on 	PERB's
dispute 	resolution 	jurisdiction 	requires 	the Board 	to 	defer 	to
the parties' 	contractual 	grievance and arbitration procedure 	all
alleged violations 	which 	are 	based 	on 	conduct 	prohibited by 	the
parties' 	CBA, 	if 	the grievance and arbitration procedure 	is
applicable 	to 	that 	conduct 	and ends 	in binding arbitration.
This 	rule 	is 	fully 	consistent with 	the public policy
considerations 	noted above, 	on which the 	limitation on PERB's
dispute 	resolution jurisdiction is based. 	It ensures 	that
only one neutral, 	administrative 	forum will 	be 	responsible 	for
resolution of any specific dispute. 	By this 	rule, 	PERB defers 	to
the 	alternative 	dispute 	resolution 	forum the parties 	have 	chosen.
Finally, 	this 	rule will 	eliminate 	overlapping and duplicative
14

proceedings,7 lead 	to more 	timely resolution of 	disputes 	and
contribute 	to 	employer-employee 	relations 	stability.
While 	eliminating 	the 	potential 	for 	duplicative 	proceedings
about 	the same 	factual allegations, 	it 	is 	important 	to note
that 	the 	rule adopted here 	is 	consistent with the 	fundamental
principle 	that 	the 	jurisdiction 	to 	resolve 	a dispute must 	carry
with 	it 	the 	authority to 	order an appropriate 	remedy 	for unlawful
conduct. 	Where 	conduct 	is 	determined to violate both employee
rights and union rights, 	the appropriate 	remedy 	is 	to correct
or undo 	the 	conduct. 	For example, 	the appropriate 	remedy for
a 	retaliatory dismissal 	is 	the 	reinstatement 	of 	the 	aggrieved
employee. 	Similarly, 	the appropriate remedy for violation of
union 	rights 	resulting 	from a 	retaliatory dismissal 	is 	the
reinstatement 	of 	the 	aggrieved employee. 	Both an arbitrator
and PERB 	can order this 	remedy. 	Therefore, 	a 	charging party's
ability 	to 	secure 	an 	appropriate 	remedy 	for unlawful 	employer
conduct 	is 	ensured by the 	jurisdictional 	rule 	adopted above.
In the present 	case, 	CSEA alleged that 	the 	State violated
the Dills 	Act 	when 	it 	revised and downgraded Hsia-Coron's
evaluation. 	This 	conduct 	is 	arguably prohibited by Article 	5,
section 5.5, 	and/or Article 2, 	section 2.8 	of the parties' 	CBA,
which prohibit 	the 	State 	from imposing 	reprisals 	on employees 	and
union 	stewards 	for 	exercising 	rights 	under 	the Dills Act 	or 	the
7The 	bifurcated 	deferral 	standard has 	resulted 	in
duplicative proceedings before PERB, 	as 	in the case at bar,
to gather evidence 	concerning 	conduct 	which 	forms 	the basis
of 	a dispute 	which 	is 	properly before 	an alternative 	forum.
15

contract. 	Additionally, 	Article 	6 permits 	CSEA to file
grievances 	and provides 	for binding arbitration of 	those
grievances.
The Board 	concludes 	that 	the 	conduct 	in dispute 	in this 	case
is 	arguably prohibited by 	the provisions 	of 	the 	agreement 	between
CSEA and the 	State, 	and the grievance procedure 	is 	applicable 	to
that 	conduct and ends 	in binding arbitration. 	Accordingly, 	under
the 	jurisdictional 	rule 	established 	in Lake 	Elsinore 	and
discussed above, 	the Board determines 	that 	it 	is without
jurisdiction over this matter, 	and CSEA's unfair practice 	charge
must be 	dismissed and deferred to 	the parties' 	grievance and
arbitration procedure.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	SF-CE-105-S are hereby DISMISSED.8
Member Caffrey 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence and dissent 	begins 	on page 	17.
Member Carlyle's 	dissent begins 	on page 	23.
8Contrary to Member Carlyle's 	opinion, 	the majority opinion
does not 	affect 	the parties' 	right 	to negotiate 	contractual
waivers. 	Furthermore, 	EERA section 3541(c), 	applicable to Dills
Act 	cases 	through section 3513(h), 	states 	that 	"[n]othing shall
preclude 	any board member 	from participating 	in any 	case 	pending
before 	the board." 	Derived 	from this 	section 	is 	the 	long-
standing policy and practice 	for the 	lead panel 	member 	to
circulate 	a draft 	opinion among all 	Board members 	to 	give 	them an
opportunity 	to 	review the proposed 	opinion. 	Chair Blair 	elected
to join this 	case on December 16, 	1993, 	one day after the first
draft 	of 	the 	opinion attached to Member Carlyle's 	dissent was.
made available 	to 	the 	entire Board. 	Member Garcia elected to
join this case on March 28, 	1995.
16

GARCIA, 	Member, 	concurring and dissenting: 	I 	concur in the
deferral 	result 	and dissent 	from the 	attempt 	to 	change policy.
Judicial 	policy 	in California directs 	courts 	to 	refrain 	from
considering disputes until 	the parties 	to 	the 	dispute have
exhausted 	internal 	remedies under the 	terms 	of 	their grievance
agreement. 	For example, 	in Cone v. 	Union Oil Co. 	(1954) 	129
Cal.App.2d 558 	[277 	P.2d 464] 	the Court 	of Appeal 	held that:
It 	is 	the general 	rule 	that a party to a
collective 	bargaining 	contract 	which provides
grievance 	and arbitration machinery 	for 	the
settlement 	of 	disputes within 	the 	scope 	of
such contract must 	exhaust 	these 	internal
remedies before 	resorting 	to 	the 	courts 	in
the absence 	of 	facts which would excuse him
from pursuing 	such remedies. 	[Citations.]
. 	. 	. 	Such procedures, 	which have been worked
out 	and adopted by 	the parties 	themselves,
must 	be 	pursued 	to 	their 	conclusion before
judicial 	action may be 	instituted unless
circumstances 	exist 	which would 	excuse 	the
failure 	to 	follow through with 	the 	contract
remedies. 	[Citations.] 	[Id. 	at pp. 	563-564.]
That policy has been 	codified by section 3514.5(a) 	of 	the
Ralph C. 	Dills Act 	(Dills Act).1
1 Section 3514.5(a) 	provides, 	in pertinent part, 	that:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall not 	. 	. 	. 	(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. 	However, 	when the
charging party demonstrates 	that 	resort 	to
contract 	grievance procedure would be 	futile,
exhaustion 	shall 	not 	be 	necessary.
17

The 	preamble 	to 	the 	collective bargaining 	agreement
(contract 	or agreement) 	in this 	case provides 	that a major
purpose 	of 	the agreement 	is 	to 	establish a procedure 	for the
resolution of 	disputes. 	For example, 	Articles 	6.1(a) 	and 6.2(a)
of 	the agreement2 make 	it 	clear that 	the 	California State
Employees' 	Association, 	SEIU Local 1000, 	AFL-CIO 	(CSEA) 	qualifies
as 	a 	grievant 	entitled and 	obligated 	to 	employ 	the 	grievance
process 	to 	resolve disputes between 	itself 	and the 	State 	of
California 	(Department 	of 	Corrections) 	(Department 	or State) 	that
are covered by the 	contract. 	Furthermore, 	it 	is probable that
the 	subject matter of 	the 	dispute 	is 	covered by 	the 	contract 	and
that 	is 	sufficient 	to send 	it 	to arbitration under 	Inglewood
Unified School District 	(1990) 	PERB Decision No. 	821 	(Inglewood)3
2Article 	6.1(a) 	provides 	that:
This 	grievance procedure 	shall 	be used 	to
process 	and 	resolve 	grievances 	arising under
this 	Contract 	and 	employment-related
complaints.
Article 	6.2(a) 	provides 	that:
A grievance 	is 	a dispute 	of 	one 	or more
employees, 	or a dispute between the State and
the Union, 	involving the 	interpretation,
application, 	or enforcement of 	the terms of
this 	contract.
3In 	Inglewood, 	the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	expressly adopted the 	federal 	"not 	susceptible"
standard 	to 	determine 	arbitrability:
We 	cannot 	conclude 	that Article XX section
20.1 	is 	not 	susceptible 	to an 	interpretation
that 	would 	allow an arbitrator 	to 	resolve
this 	dispute. 	We 	find that 	the District's
contracting 	out 	. . . 	is 	arguably prohibited
by the 	language 	in Article XX section 20.1 	of
18

and Riverside 	Community College District 	(1992) 	PERB Order No.
Ad-229 	(Riverside).4
the parties['] 	collective bargaining
agreement. 	(Id. 	at p. 	7.)
The 	grievance 	agreement 	between CSEA and 	the 	State permits 	a
dissatisfied grievant 	to pursue a 	case 	through three appeals, 	and
if 	there 	is 	no 	settlement 	then a 	right 	arises 	that permits 	CSEA
to go to arbitration. 	This 	right 	is an option that permits 	CSEA
access 	to a 	forum other 	than PERB. 	There 	is no mandate 	in the
Dills 	Act 	that 	CSEA employ 	the 	option and 	surrender 	its 	statutory
right 	of 	access 	to 	PERB. 	In fact 	it 	is 	clear from the
legislative 	history of 	the Dills Act 	that mandatory arbitration
was 	not 	to be 	imposed by California's 	public 	sector 	labor
relations laws.
The 	Final 	Report 	of 	the Assembly Advisory Council 	on 	Public
Employee Relations 	(1973), 	chaired by Benjamin Aaron 	(Aaron
Report), 	discussed the background of 	California public 	sector
labor 	relations 	legislation and made 	recommendations 	which were
central 	to the development 	of 	the 	text 	of 	those 	statutes. 	From
4In Riverside, 	the Board stated that:
. 	. 	. 	arbitration should not be denied
1 unless 	it may be 	said with positive
assurance 	that 	the 	arbitration clause 	is 	not
susceptible 	of 	an 	interpretation 	that 	covers
the asserted dispute. 	Doubts 	should be
resolved in favor of 	coverage.' 	[Riverside at
p. 	4, 	citing Inglewood.]
Under either phrasing 	of 	the 	standard, 	the 	contractual
grievance 	agreement 	may be 	interpreted as 	covering 	the 	disputed
conduct.
19

the Aaron Report 	it 	is 	clear that parties were 	to be 	encouraged
to agree upon procedures 	to 	resolve 	their disputes:
. . . 	the 	authority 	and 	duty 	to 	bargain
collectively 	includes 	the 	power voluntarily
to agree 	to 	third-party arbitration 	in
accordance 	with 	standards 	mutually acceptable
to the bargaining parties. 	Moreover, 	it is
generally 	conceded 	that 	civil 	service
regulations, 	even when conscientiously
applied, 	are not an adequate 	substitute 	for a
grievance 	and arbitration procedure 	hand-
tailored by 	the parties 	to meet 	their
particular needs. 	(Id
·---. 	at p. 	188.)
Similarly, 	at pages 224-225, 	the Report stated that:
[T]he Advisory Council believes 	that 	the
principle of voluntarism, 	not 	compulsion,
should be 	the 	underlying policy 	in 	California
at 	this 	stage 	of 	development 	of public-sector
collective bargaining. 	Accordingly, 	we have
rejected 	compulsory arbitration as 	the
required 	statutory method 	for 	dealing 	with
labor disputes. 	This does 	not mean that we
believe 	that public 	employers 	and 	employee
organizations 	should be 	foreclosed 	from
agreeing to such arrangements. 	The principle
of voluntarism means 	that 	they 	should be 	free
to agree 	to any 	form of 	imposed 	settlement
which they find mutually acceptable. 	. 	. 	.
[T]he Advisory Council 	believes 	that
voluntary arbitration, 	that is, 	the
submission of 	a 	dispute 	to 	arbitration by
choice, 	is the best means of resolving
interests 	disputes 	that 	cannot 	be 	settled
through mediation.
Furthermore, 	the 	statute was 	not 	intended to make mandatory
arbitration a 	requirement:
The Advisory Council 	is 	opposed 	to 	compulsory
arbitration, 	standing alone, 	as a vehicle for
disputes settlement 	. 	. 	. 	[because]
compulsory 	arbitration may 	have 	a 	chilling
effect on the bargaining process, 	that is, 	it
may 	inhibit 	the 	parties 	from making 	their
best 	efforts 	to 	reach a voluntary 	settlement
because 	they know that, 	absent 	settlement,
20

arbitration stands 	at 	the 	end of 	the 	line and
they are 	deterred 	from compromise by 	fear 	of
prejudicing 	their positions 	in 	the
arbitration proceedings. 	(Id. 	at pp. 	221-
222.)
Therefore, 	it 	is a mistake 	for the majority opinion to
attempt 	to adopt 	a mandatory 	arbitration policy 	through 	this
opinion and 	in 	the process 	weaken 	the 	statutory 	rights 	of
employee 	organizations 	and 	overturn 	sound 	PERB precedent
established 	in State 	of 	California 	(Department 	of 	Forestry and
Fire Protection) 	(1989) 	PERB Decision Nos. 	734-S and 734a-S and
its 	progeny.
It 	is 	clear from the 	facts 	of 	this 	case that 	the parties,
consistent with State policy, 	intended the dispute at 	hand to be
resolved 	through a grievance 	agreement. 	Under Dills Act 	section
3514.5(a)(2), 	PERB must defer this 	case until 	the grievance
process 	is 	exhausted by the parties' 	effort 	to achieve a
settlement. 	CSEA should have 	employed 	the pre-arbitration
provisions 	of 	the 	grievance 	agreement 	and 	PERB agents 	should have
held the 	case 	in abeyance until 	that part 	of 	the 	grievance
process was 	exhausted without 	settlement. 	After exhaustion, 	the
case 	could be 	re-activated 	if 	CSEA decided 	to pursue 	its
statutory right 	to 	come 	to 	PERB 	rather than 	its 	option to go 	to
arbitration.
Finally, 	in response to footnote 	8 	in the majority opinion,
I 	am not 	permitted 	to 	join a 	case 	late 	in 	the process 	if my view
would affect 	the outcome. 	My purpose 	in joining was 	to speak up
against 	the 	attempt 	to 	change 	policy and point 	out 	that 	we 	are
21

obligated to 	review the 	terms 	and 	conditions 	of 	the parties'
grievance agreement. 	We must 	apply it 	in a manner that 	is
consistent with the parties' 	intent 	and California 	judicial
policy which 	favors 	private 	resolution of 	disputes.
22
'

CARLYLE, 	Member, 	dissenting: 	I dissent 	from the new paneled
majority decision based 	on 	"conduct," 	both as 	defined and
enacted.
The 	majority 	decision proffered 	today admit
- s 	overruling
established 	case 	law by 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	relative 	to alleged violations 	of 	section
3519(a), 	(b), 	(c) 	and 	(d) 	of the Ralph C. Dills Act 	(Dills Act).
It 	accomplishes 	this 	highly questionable 	result 	by narrowly
redefining 	"conduct" 	arguably prohibited by 	the 	subject
collective bargaining agreement 	(CBA) 	without 	regard to whether
or not 	the 	offended party 	is 	covered as 	a 	subject 	by 	the 	CBA
provisions 	or has 	standing to 	file 	the grievance 	in 	its 	own name.
The 	line 	of 	case 	law thrown out 	today by 	the 	new paneled
majority 	recognized 	that 	the 	employee 	organization had a
statutory right 	to 	file a 	charge with PERB under 	its 	own name 	if
Dills Act 	section 3519(b) 	rights 	had been violated unless 	the
subject 	CBA provisions 	"arguably prohibited" 	that 	conduct 	against
that 	employee organization. 	Now, 	that 	statutory right 	is no
more.
Perhaps 	even more 	odious 	by 	the 	new paneled majority 	is
their 	reliance 	on 	the 	dissenting opinion 	in State 	of 	California
(Department of 	Parks and Recreation) 	(1990) 	PERB Decision
No. 	810a-S 	and State of 	California 	(Department 	of 	Corrections)
(1992) 	PERB Order No. 	Ad-231-S. 	What 	the majority decision does
23

not 	indicate 	to 	the 	reader 	is 	that both dissenting 	opinions were
authored by 	the 	same person, 	former nine 	year Board 	Chairperson
and Member Debbie 	Hesse.
What 	the majority decision also does 	not 	indicate 	to 	the
reader is 	that as a result 	of 	their actions 	in creating a 	four
member panel 	four months 	after 	oral 	argument 	and 	just 	two weeks
before Member Hesse's 	term was 	to expire, 	this 	former nine year
Board 	Chairperson 	and Member was 	disenfranchised 	from having 	her
last 	authored 	opinion 	issued and 	distributed.
Attached to this 	"preamble" 	dissent 	is 	that 	signed opinion
which 	constitutes 	the merits 	of my view. 	Authored by Member
Hesse, 	it arrives at a result 	in favor of 	the California State
Employees Association, 	SEIU Local 	1000, 	AFL-CIO 	(CSEA) 	and
against 	the 	State 	of 	California 	(Department 	of 	Corrections)
(Department or State), 	a 	far cry from the majority decision
issued 	today.
In addition 	to 	overruling 	established 	PERB 	case 	law 	relative
to alleged violations of section 3519(a), 	(b), 	(c) 	and 	(d) 	of the
Dills Act, 	I would note 	that 	the majority decision destroys 	the
PERB line of 	cases dealing with waiver. 	The Board has 	held that
the 	language 	of 	the 	subject 	CBA must 	constitute 	a 	"clear and
unequivocal" 	waiver 	if 	the union's 	statutory right 	to 	file a
3519(b) 	charge 	is going to be 	taken away from it. 	(See San Mateo
City School District 	(19 80) 	PERB Decision No. 	129.)
24

On a 	corollary 	issue, 	a waiver of 	a 	statutory 	right 	will 	not
be 	found unless 	proven by 	either 	"clear and unmistakable"
language 	or 	"demonstrable behavior" 	amounting 	to a waiver of 	the
right 	to meet 	and negotiate. 	(Amador Valley Joint Union High
School District 	(1978) 	PERB Decision No. 	74; 	Solano County
Community College District 	(1982) 	PERB Decision No. 	219.)
Certainly 	the 	statutory right 	of 	a union to have 	its 	complaint 	of
an alleged 3519(b) 	violation by the 	State heard before 	PERB 	is 	no
less 	important.
Waiver 	is 	an affirmative 	defense which 	the 	asserting party
must 	clearly 	establish. 	Any doubt 	regarding 	the validity of 	this
defense must 	be 	resolved against 	the 	asserting party. 	(Placentia
Unified School District 	(1986) 	PERB Decision No. 	595.)
Despite 	the 	convoluted 	logic 	and 	distorted 	definitions
utilized by the majority decision, 	the plain truth 	is 	that 	the
State 	in 	this 	case 	does 	not 'identify any contract provision which
arguably prohibits 	it 	from denying 	CSEA's 	rights 	guaranteed by
the Dills Act. 	Therefore, 	in accordance with established PERB
case 	law in the area of waiver as well, 	this matter cannot be
deferred 	to arbitration. 	(See 	Palo Verde Unified School 	District
(1983) 	PERB Decision No. 	321; 	Los Angeles Community College
District (19 82) PERB Decision No. 252.).
The 	Board has 	no business 	awarding 	to 	one 	of 	the parties
that which 	it 	cannot 	achieve at 	the bargaining 	table.
25

This 	new paneled majority decision 	should have 	been 	issued
on March 	15. 	To 	cite a 	former nine year PERB veteran's
dissenting opinions 	as 	if 	to 	justify overturning 	established 	PERB
case 	law while 	taking action which 	results 	in precluding 	that
PERB veteran 	from 	issuing 	and 	distributing 	a decision which
arrives 	at 	a 	completely different 	result must 	be 	the 	unkindest
cut of all.1
1The majority has previously alleged 	in writing 	and 	during
the March 23, 	1995 	Board meeting 	(without 	any written 	support 	or
documentation despite a written request 	for such authority) 	that
PERB has 	a: 	" . . . 	long-standing Board policy 	that 	when
authorship 	changes 	normally a new 	[Predeliberation Memo] 	is
issued, 	unless 	all 	parties 	have 	in written 	form shared their
analyses 	and 	legal 	research. 	That 	long-standing Board policy
created a process which was 	designed to 	insure 	open sharing of
opinions 	until 	the ultimate decision 	is 	reached."
The majority 	is 	now asserting a 	"long-standing practice" 	for
the 	author 	to 	circulate 	a draft 	decision among 	all 	Board members
to 	give 	them an 	opportunity 	to 	review 	the proposed Board
decision, 	based upon 	"Government Code section 3541(c), 	applicable
to Dills Act 	cases 	through section 3513." 	Once again, 	the
majority's position 	is more 	fantasy 	than 	fact.
PERB has 	had a written policy 	for 	12 	years 	requiring 	the
author of 	the 	case 	to prepare 	a predeliberation memo 	(which
includes his/her written analysis of the facts, 	issues, 	law and
position) 	and to circulate 	it 	to all 	Board members 	irrespective
of 	original 	panel membership. 	This 	document precedes 	any 	first
draft 	decision.
However, 	also contained in this 	12-year written policy is 	a
caveat, 	if not admonishment 	to Board members not 	originally
assigned 	to 	a 	case 	panel 	from 	taking 	any action which would 	give
the appearance 	that 	such action was 	taken 	"for the purpose 	of
controlling the 	outcome of 	the 	case." 	Notice the word: 	Outcome.
The 	outcome 	(who wins, 	who loses) 	of 	this disputed case was
known to all 	Board members on October 14, 	1993. 	On that day, 	the
original 	author, 	Member Caffrey, 	turned over authorship of 	the
case 	to Member Hesse based on the 	responses 	to his 	first 	draft
from both Members 	Hesse and Carlyle. 	All 	Board members 	received
a 	copy 	of 	Members 	Hesse's 	and 	Carlyle's 	aforementioned 	responses
and of Member Caffrey's memo 	turning 	over authorship. 	Joining 	on
or before October 14, 	1993 	would have been permissible. 	The
issue 	is 	not whether one 	can join at all, 	but when and its 	effect.
26

ATTACHMENT
STATE 	OF 	CALIFORNIA
DECISION 	OF 	TEE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	SEIU LOCAL 	1000,
AFL-CIO,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
)
)
) 	Case No. 	SF-CE-105-S
PERB Decision No.
)
)
)
)
)
)
)
Appearances: 	Melvin K. 	Dayley, 	Attorney, 	for the California
State Employees' 	Association, 	SEIU Local 	1000, 	AFL-CIO; 	Paul M.
Starkey, 	Attorney, 	for the State of California 	(Department 	of
Corrections).
Before Blair, 	Chair; 	Hesse, 	Caffrey and Carlyle, 	Members.
DECISION
HESSE, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	California 	Stats
Employees' 	Association, 	SEIU Local 	1000, 	AFL-CIO 	(CSEA) 	to the
proposed 	decision 	of 	a 	PERB administrative 	law judge 	(ALJ). 	In
his 	proposed decision, 	the ALJ dismissed the 	charge 	that 	the
State 	of 	California 	(Department 	of 	Corrections) 	(State) 	violated
section 3519(b) 	of 	the Ralph C. 	Dills Act 	(Dills Act)1 through
the 	negative 	revision and 	communication of 	an employee's
evaluation.
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.
______________ )

The Board has reviewed the entire record in this 	case,
including the proposed decision, 	transcripts, 	exhibits,
exceptions, 	cross-exceptions and responses thereto. 	Based 	upon
our review, 	we hereby affirm in part and reverse in part the
ALJ's decision for the reasons set forth below.
PROCEDURAL HISTORY
On December 26, 	1991, 	CSEA filed an unfair practice charge
against the State. 	The PERB general 	counsel 	issued a complaint
against the State on April 22, 	1992. 	On the same date that he
issued the complaint, 	the general counsel also denied motions by
the State 	to dismiss 	the charge as untimely filed and to defer
the charge to arbitration.2 Hearings were conducted in San
Francisco on July 9 and 10, 	1992. 	After the proposed decision
was 	issued, 	CSEA filed a statement of exceptions which included a
request 	for oral argument. 	The Board granted this 	request and
oral argument was scheduled and held on August 18, 	1993.3
FACTS
We 	find the ALJ's 	findings of fact 	to be free from
prejudicial error and, 	to the extent that 	they are consistent
with 	the following summary and discussion, 	we adopt 	them as 	our
2CSEA, by letter dated March 31, 	1992, withdrew all
allegations except for the charge that 	the State, 	by issuing the
revised evaluation, violated section 3519(b).
3In granting oral argument, 	the Board gave each party the
opportunity to file an oral 	argument brief net 	later than seven
days prior to the date set for oral argument. 	CSEA timely filed
its brief on August 8, 	1993 by certified mail. 	The State did not
file its brief until August 16, 	1993. 	As such, 	the Board rejects
the State's brief as untimely pursuant 	to PERB Regulation 32136
(Cal. 	Code Regs., 	tit.8, 	sec. 	31001 et seq.).
22

own. 	As 	the 	facts 	are 	largely undisputed, 	the 	following is
summarized 	from the ALJ's 	proposed decision, 	with some 	additional
information drawn 	from the 	record and added 	for 	clarification.
The 	respondent 	is 	an employer under the Dills Act. 	At 	all
times 	relevant, 	CSEA has been the exclusive representative 	of
State 	employee bargaining Unit 	3 	among whose members 	are 	teachers
and 	librarians 	employed 	in 	correctional 	institutions. 	The
complainant, 	Andy Hsia-Coron 	(Hsia-Coron), 	at all times relevant
was 	employed as 	a 	teacher at 	the 	Correctional 	Training 	Facility
at Soledad 	(CTF). 	CTF is divided into three units, 	north, 	south
and 	central. 	Throughout 	the 	relevant period and 	continuing,
Hsia-Coron has 	been 	employed 	in the 	north 	facility.
Hsia-Coron has 	been a 	job 	steward 	for CSEA for 	seven years.
In 	1990, 	he 	ran 	for and was 	elected to 	the 	CSEA Bargaining Unit
Council 	for Unit 	3. 	In this 	role, 	he has 	served on the 	CSEA
negotiating 	team 	throughout 	the 	protracted 	negotiations 	which
began 	in May of 	1991 	for a new Unit 	3 	contract between the 	State
and 	CSEA. 	The 	parties 	stipulated 	that 	CTF Warden 	Eddie Meyers
(Meyers), 	Associate Warden Jan Blake 	(Blake) 	and Howard Howser
(Howser), 	Hsia-Coron's 	former supervisor,4 all knew of these
protected 	activities.
Hsia-Coron 	testified 	that 	he 	told Howser of 	his 	intention 	to
run 	for 	the bargaining unit 	council prior to doing 	it. 	He 	said
Howser 	recommended 	that 	he 	not 	run because 	it 	would not 	be 	in his
4Howser was 	supervisor 	of 	academic 	instruction at 	the 	CTF
north 	facility until 	he 	retired subsequent 	to the 	events 	at
issue.
w
	3

best 	interest. 	Howser denied that 	he said this but 	testified
that 	he 	did not want 	Hsia-Coron 	to 	leave 	the 	classroom because 	he
was 	a good teacher, 	substitutes were hard to get and he needed
him in 	the 	classroom. 	The ALJ resolved 	this dispute by
concluding 	that 	Howser made 	some 	comment 	to Hsia-Coron 	indicating
that 	he 	did not 	favor any activity 	that 	would take 	Hsia-Coron
away 	from the 	classroom.
On October 4, 	1990, 	the State issued a notice of adverse
action to Hsia-Coron. 	The adverse action was an official 	letter
of 	reprimand 	for inexcusable neglect 	of 	duty, 	insubordination,
inexcusable absence without 	leave, 	willful disobedience,
violation of board rule, 	and other failure of good behavior.
The 	factual 	basis 	for the 	reprimand was 	Hsia-Coron's 	alleged
absence without leave on July 25, 	26, 	27 and 28, 	1990 and alleged
failure 	to 	follow the direct 	order of 	his 	supervisor who 	informed
him that he was 	to 	report 	for duty on those dates.
CSEA challenged 	the 	disciplinary action both by 	filing 	a
grievance 	and by 	contesting 	the 	reprimand before 	the 	State
Personnel 	Board 	(SPB). 	CSEA argued that 	the purpose 	of 	the
absence 	was 	for Hsia-Coron 	to 	conduct 	certain CSEA business.
CSEA took 	the position 	that 	Hsia-Coron's 	supervisor 	did not 	deny
the 	requested absence but 	told him only that 	it 	would not be
approved 	in the absence 	of paperwork. 	CSEA asserted 	that 	the
written denial 	of 	the absence was received. on Hsia-Coron's day
off 	and since no one 	called to tell him, 	he was unaware 	that 	the
union 	leave 	had been 	rejected.
4

The 	SPB hearing 	relating 	to 	the 	letter of 	reprimand was
conducted on February 25, 	1991. 	After some evidence was 	taken,
the parties 	at 	the encouragement 	of 	the 	SPB administrative 	law
judge entered a stipulated settlement. 	Under the 	settlement, 	the
official 	letter of 	reprimand and all 	related documents 	were 	to be
removed 	from Hsia-Coron's personnel 	file 	effective July 	1, 	1991.
Hsia-Coron was 	to submit a letter dated February 25, 	1991, 	to the
warden regarding union paid leave. 	This 	letter also was 	to be
removed effective July 1, 	1991. 	Hsia-Coron was 	to withdraw his
appeal 	of 	the 	disciplinary action. 	The agreement 	was 	subject 	to
approval 	by 	the 	SPB. 	The 	SPB approved the 	stipulated 	settlement
at 	its meeting of March 19, 	1991.
On June 	6, 	1991, 	Hsia-Coron received a performance
evaluation 	for the period 	from April 	1990 	through April 	1991. 	In
seven rating 	categories, 	his performance was graded as 	"M" 	which
means 	that 	his performance 	fully met 	the 	expected standards. 	One
category, 	"Meeting Work Commitments," 	was marked 	"I" 	which means
that 	improvement 	was 	needed 	for performance 	to meet 	expected
standards. 	The 	explanation 	for the mark 	of 	improvement 	needed
was 	"failed to attend mandatory 	[in-service training] 	class 	on
AIDS 	during months 	of July and August 	1990." 	Hsia-Coron
discussed the evaluation with his 	supervisor, 	Howser, 	and signed
it 	as did Howser.
Howser 	turned 	the 	evaluation over 	to Juanita 	Curtis 	who was
the 	acting 	supervisor of 	correctional 	educational 	programs. 	She
signed 	it 	and sent 	it 	on 	to Blake 	the acting chief 	deputy warden
5
5

for 	CTF north and 	south. 	Blake 	rejected 	the 	evaluation because,
she 	testified, 	it 	did not 	reflect 	the 	employee's behavior during
the 	rating period. 	She 	sent 	the 	evaluation back 	to Howser with a
note 	that 	he 	should see 	her 	for a discussion as 	soon as possible.
At 	their subsequent meeting, 	Blake 	told Howser that
Hsia-Coron had 	shown poor 	judgment 	in his 	absence 	from work and
his 	behavior 	should be 	addressed 	in the 	evaluation. 	Howser
testified that 	it was his previous belief 	that 	"once 	[an] 	adverse
action and 	the 	investigative 	interview had been performed, 	then 	I
wasn't 	to mention 	that" 	in an evaluation. 	He 	testified 	that 	he
had believed that 	it was 	against 	the 	rules 	to 	"take 	anything 	out
of 	the 	investigative 	interview" 	and put 	it 	in an evaluation.
However, 	he said, 	he was 	informed that he was mistaken in this
belief 	and he 	agreed 	to 	change 	the 	evaluation. 	Blake 	did not
tell 	Howser what 	to write 	in 	a 	revised evaluation 	except 	that
Hsia-Coron's 	"behavior" 	had to be 	referenced. 	Howser 	testified
he was 	told 	to 	revise 	the 	evaluation 	"immediately, 	as 	soon as
possible."
Howser wrote 	a 	revised evaluation 	on June 	25 	in which 	he
marked Hsia-Coron's 	performance 	as 	"improvement 	needed" 	in 	four
categories. 	The 	three new categories 	needing 	improvement 	were
"work habits," 	"relationships 	with people," 	and 	"analyzing
situations 	and materials." 	Comments 	in each of 	the 	changed areas
referred 	to Hsia-Coron's 	failure 	to 	report 	to work 	on July 25
26, 	27 and 28, 	1990. 	Added to the evaluation was a lengthy
narrative 	comment about 	Hsia-Coron's work performance. 	Much of
6

this 	commentary also 	referred 	to Hsia-Coron's 	"failure 	to 	report
to work 	and your 	subsequent 	absence 	from your work assignment
without 	leave 	from July 25 	through July 28, 	1990."
The 	revised 	1991 	evaluation was 	a marked 	contrast 	with 	other
evaluations 	Hsia-Coron had 	received 	from Howser. 	On his 	1987
evaluation he 	received three marks 	of meets expectations, 	three
of 	consistently exceeds 	expected 	standards and one 	of 	needs
improvement 	(for 	failure 	to 	satisfy 	in-service 	training
requirements). 	In 1988, 	he received no marks for improvement
needed 	or highly 	favorable 	narrative 	comments 	on 	the 	evaluation.
In 	1989, 	he 	received five marks 	for meeting expected standards,
three marks 	for 	exceeding 	expected standards 	and no marks 	for
improvement needed. 	The narrative was 	highly favorable. 	In
1990, 	he 	received six marks 	for meeting expected standards, 	one
mark 	for 	improvement 	needed 	(again 	for 	failing 	to meet 	in-service
training requirements) 	and none 	for exceeding standards. 	The
narrative 	noted 	that 	he 	had been away 	from the 	institution 	on
loan 	to 	the 	central 	office 	for approximately eight 	months.
All 	CSEA witnesses 	testified 	that 	they had never heard 	of 	an
evaluation being 	changed 	on 	the 	order of 	a higher administrator
after both 	the 	employee 	and 	immediate 	supervisor had 	signed 	it.
One of 	the witnesses, 	Harvey Martinez 	(Martinez), 	had been in
State 	service 	for 20 years. 	Other witnesses had been State
employees 	for 	lesser periods 	but 	had served as 	stewards 	at 	one
time 	or 	another and had processed grievances.
7

Acting Chief Deputy Warden Blake 	testified that beginning
with the arrival of Warden Meyers in 1987, 	it became
institutional policy that 	the warden or designee would review all
evaluations. 	At first, 	only the evaluations of correctional
officers were reviewed by the warden. 	But beginning in 1990, 	the
warden reviewed the evaluations of all 	teachers. 	Under Warden
Meyers, 	she testified, 	an evaluation is not final until it is
signed by the warden or designee. 	Hsia-Coron's 	1990 evaluation
was 	initialed by both Blake and Warden Meyers.
Although a practice of 	review of evaluations by prison
administrators was thus established, 	there was no evidence that
this 	review previously amounted to more 	than an examination for
minor errors. 	The only testimony on the nature of the
administrative review was that of Howser. 	He said that beginning
in 1991, 	evaluations had to be 	"perfect" or they would be sent
back because of mistakes, 	omissions, 	misspellings and grammatical
errors. 	There was no evidence that any evaluation, 	prior to that
of Hsia-Coron, 	had ever been so drastically downgraded on the
order of high-ranking prison authorities.
After he changed the evaluation, 	Howser concluded that he
should call Hsia-Coron and inform him of the change. 	He knew
that Hsia-Coron was 	in Sacramento for negotiations and he
concluded that State negotiator Rich Hawkins 	(Hawkins) 	would know
how to reach him. 	He called Hawkins' 	office and was given a
telephone number where he could reach Hawkins. 	Howser called the
number and Hawkins answered.
8

The 	telephone number which Howser dialed was 	for a
conference 	room at 	the Raddison Hotel 	in Sacramento. 	When the
telephone rang, 	the parties were then in negotiations. 	Hawkins,
a member of 	the management 	team, 	was 	sitting closest 	to the
telephone. 	He 	called Hsia-Coron to the 	telephone, 	advising him
that 	his 	supervisor wanted 	to 	talk 	to him.
Hsia-Coron 	and Howser provided highly 	similar accounts 	of
the 	subsequent 	conversation. 	Both agree 	that 	Howser 	commenced
the 	conversation by advising Hsia-Coron 	that 	he 	had 	"some 	bad
news" 	for him. 	Howser 	testified that he asked Hsia-Coron if 	he
wanted 	to discuss 	it 	then 	or later. 	Hsia-Coron testified he 	told
Howser 	he wanted him to be 	specific. 	Howser thereupon 	told
Hsia-Coron 	that 	he 	had been directed 	to 	change 	his 	evaluation and
that 	the 	new 	evaluation 	now 	rated 	Hsia-Coron as 	"improvement
needed" 	in 	four areas 	rather than one. 	Howser explained 	the
basis 	for 	the 	change. 	Hsia-Coron said he disagreed. 	Following 	a
brief 	discussion about 	how Hsia-Coron would get 	a 	copy 	of 	the
revised 	evaluation, 	the 	conversation was 	terminated.
After hanging up 	the 	telephone 	receiver, 	Hsia-Coron 	turned
to 	the 	two negotiating 	teams 	and blurted out 	that 	his 	supervisor
had 	just 	told him his 	evaluation had been 	changed. 	He 	quoted
Howser 	as 	saying 	the 	change 	had been 	ordered by higher
authorities. 	At 	that point, 	the CSEA negotiating team asked to
take 	a 	caucus 	break and 	left 	the 	room.
During 	the 	caucus, 	Hsia-Coron reviewed the 	entire 	telephone
conversation 	and 	explained 	his 	view of 	the 	underlying 	dispute
9
9

about 	his 	absence 	from work and 	subsequent 	letter of 	reprimand.
Caucus 	members 	then discussed whether 	they should 	take 	a position
about 	the evaluation 	in negotiations, 	deciding ultimately that
they 	should not. 	When 	the 	CSEA negotiating team returned to 	the
negotiations table, 	State negotiator Dennis 	Fujii 	(Fuji) 	asked,
"where 	are we?" 	One 	of 	the 	CSEA negotiators 	replied that 	they
would address 	the 	evaluation 	issue 	in another 	forum and 	suggested
the parties 	resume negotiations.
Various members 	of 	the 	CSEA negotiating team described 	the
impact 	on 	them regarding 	the 	change made 	to Hsia-Coron's
evaluation and 	the 	telephone 	call 	to 	the 	negotiating 	room.
Hsia-Coron said he was 	shocked, 	surprised and hurt. 	He 	said 	that
after receiving 	the 	telephone 	call 	he 	tried to keep himself
together and 	"put 	a 	face 	on" 	but 	he was 	stewing over the 	issue.
Two 	CSEA negotiators 	described Hsia-Coron as 	looking 	like 	"he 	had
been punched" 	and another described him as 	"rather 	subdued."
CSEA negotiator Mary Shaw 	(Shaw) 	testified 	that 	after 	the
telephone 	call 	she 	found 	it 	very difficult 	to 	concentrate 	on
bargaining. 	She 	described 	team members 	as very 	focused 	on
Hsia-Coron's 	evaluation. 	She 	said 	she kept 	"flashing" 	back 	to
the 	telephone 	call. 	She 	said she wondered, 	regarding the
evaluation, 	"how can 	they 	change 	it and put 	'improvement
needed?'"
CSEA negotiator and Bargaining Unit 	3 	Chair John Paul 	said
he 	was 	concerned about 	why the 	supervisor would 	call 	the
negotiating 	room. 	He 	said 	this put an 	"outside 	influence" 	at 	the
10

negotiating 	table 	and 	"I 	immediately had a 	concern 	for my 	own
evaluation report." 	He 	said he wondered, 	"what will 	happen 	to
the 	rest 	of us?" 	He described the 	changed evaluation as 	a
statement 	that 	they are 	the boss 	and we are 	the workers 	and 	said
he 	had 	a 	feeling 	it 	could happen 	to him.
CSEA negotiator Martinez 	described 	the 	changed 	evaluation
and 	telephone 	call 	as 	"absolutely 	appalling and very
distracting." 	He 	said 	it made him angry and upset. 	He 	said 	the
incident 	was 	very distracting 	from bargaining 	and 	felt 	like 	it
was 	intended 	to 	intimidate 	the 	union 	team. 	CSEA negotiator Gary
Kane 	said 	team members 	decided 	they would 	try not 	to 	show 	their
agitation over the 	incident. 	However, 	he said, 	"[I]t 	got me 	to
thinking, 	if 	it 	can happen to Andy, 	it 	can happen to me." 	He
said 	he 	was 	pre-occupied with 	the 	incident 	in negotiations.
The 	issue 	of 	the 	changed 	evaluation did not 	end 	with 	the
June 	2 6 	telephone 	call. 	It 	returned to the table again 	in
subsequent months. 	All 	CSEA witnesses 	testified 	that 	when 	the
telephone would 	ring during negotiating sessions, 	a member 	of 	the
State bargaining 	team would 	sometimes 	refer to 	the 	incident. 	Cue
witness 	said 	a 	ringing 	telephone might 	be 	announced by a member
of 	the 	State 	team with the 	comment 	"it's your supervisor, 	Andy."
CSEA witnesses 	also 	testified 	that 	State 	negotiators 	made 	other
occasional 	references 	to Hsia-Coron's 	evaluation. 	CSEA witnesses
estimated 	that 	five 	or 	ten 	such 	references 	were made 	at
subsequent 	negotiating 	sessions. 	They agreed 	that 	the 	comments
were made 	in 	a 	joking manner but 	shared 	the view 	that 	they were
11

barbed and had a negative 	effect. 	Shaw described the 	references
to 	the 	telephone 	call as 	"subtle" 	intimidation.
CSEA negotiators 	acknowledged 	that 	they never 	told members
of 	the 	State 	team to 	stop 	the 	comments. 	State negotiator Fujii
also 	testified 	that 	Hsia-Coron had 	joined 	in making 	the 	joking
comments 	about 	his 	evaluation. 	Hsia-Coron admitted that 	he had
made 	several 	such references, 	but 	said it was only in very recent
meetings 	and 	that 	his 	intent 	was 	to 	show that he 	could 	take 	a
ribbing.
THE 	PROPOSED 	DECISION
Deferral
The ALJ 	first 	determined 	that 	the allegation of 	the 	State
denying 	CSEA protected 	organizational 	rights 	in violation 	of
section 	3519(b) 	should not be deferred to arbitration. 	Under
Lake 	Elsinore 	School 	District 	(1987) 	PERB Decision No. 	6465 an
unfair 	labor practice 	will 	be 	dismissed and deferred 	to
arbitration if: 	(l) 	the grievance machinery of 	the 	contract
covers 	the matter at 	issue 	and 	culminates 	in binding 	arbitration
and 	(2) 	the 	conduct 	complained 	of 	is prohibited by 	the provisions
of 	the 	agreement 	between 	the parties.
5In Lake Elsinore School District, 	the. Board found that
section 3541.5(a) 	of 	the 	Educational 	Employment Relations Act
established a 	jurisdictional 	rule. 	As 	this 	section 	is 	in
relevant 	part 	identical 	to Dills 	Act 	section 	3514.5 	the 	Board has
applied 	the 	same 	jurisdictional 	rule.
12

In 	its 	argument 	before 	the ALJ, 	the 	State 	cited 	four
sections6 of 	the 	contract 	as 	covering 	the matter 	at 	issue 	and
which 	culminates 	in binding 	arbitration. 	The ALJ, 	relying 	on a
previous 	denial 	of 	a motion 	to 	defer by 	the 	Board's 	general
counsel 	on April 	2 2 , 	1992 	determined 	that 	no cited provision 	of
the 	contract 	prohibited 	the 	State 	from denying 	employee
organizations 	their 	rights 	under 	the Dills Act.
Denial 	of 	Organizational 	Rights
Employee 	organizations 	under 	the 	Dills 	Act 	are 	granted
certain 	rights 	that 	exist 	apart 	from 	the 	protected 	rights 	of
6 The 	cited 	contract 	provisions 	are:
(1) 	Section 	2.1(a) 	under which 	"The 	State
recognizes 	and 	agrees 	to 	deal 	with 	designated
Union 	stewards, 	elected bargaining unit
council 	representatives 	or Union staff" 	for 	a
variety 	of 	listed 	activities;
(2) 	Section 	2.8 	in which 	"The 	State 	is 	prohibited
from 	imposing 	or 	threatening 	to 	impose 	reprisals,
from 	discriminating 	or 	threatening 	to 	discriminate
against 	Union 	stewards, 	or 	otherwise 	interfering
with, 	restraining, 	or 	coercing Union stewards
because 	of 	the 	exercise 	of 	any 	rights 	given by
this 	contract;"
(3) 	Section 	13.2 	which sets 	out procedures 	for
performance 	appraisals 	and provides 	that 	Unit 	3
civil 	service 	employees 	who 	receive 	substandard
ratings 	in 	a majority 	of 	the 	performance 	factors
may 	grieve 	the 	content 	of 	the 	appraisal 	through
the 	fourth 	step, 	which precedes binding
arbitration; 	and
(4) 	Section 21.2 	which sets 	out 	standards 	for
material 	to be 	kept 	in employee personnel 	files,
provides 	for 	employee 	access 	to 	those 	files 	and
affords 	employees 	certain 	rights 	to place
information 	in 	the 	personnel 	file.
13

individual 	employees. 	Under Dills Act 	section 3515.5,7 employee
organizations 	have 	the 	right 	to represent 	their members 	in 	their
employment relations 	with 	the 	state. 	CSEA 	argued 	that 	by
revising negatively, 	the performance appraisal of Hsia-Coron, 	the
State denied CSEA the 	right 	to represent 	its members. 	Further,
CSEA argued that 	as unit members are 	front 	line negotiators, 	it
suffers 	as 	an organization whenever a negotiator 	is 	subject 	to
retaliation.
In response, 	the 	State argued that 	CSEA had 	failed to
establish any evidence 	of 	improper motivation 	or denial 	of 	CSEA's
rights. 	Further, 	the State contends that its review of
Hsia-Coron's 	evaluation by prison administrators 	was 	consistent
with 	established policy and 	fully appropriate. 	Moreover, 	the
State argues 	that 	there was 	no evidence 	that 	the negative
evaluation 	resulted 	in any actual 	interference 	with 	CSEA's
ability 	to 	represent 	its members.
7Section 	3515.5 	states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in their
employment 	relations with the state, 	except
that 	once 	an employee 	organization 	is
recognized as 	the 	exclusive 	representative 	of
an appropriate unit, 	the 	recognized employee
organization 	is 	the 	only organization 	that
may 	represent 	that 	unit 	in employment
relations with the state. 	Employee
organizations 	may 	establish 	reasonable
restrictions 	regarding who may 	join and may
make 	reasonable provisions 	for 	the dismissal
of 	individuals 	from membership. 	Nothing 	in
this 	section 	shall 	prohibit 	any employee 	from
appearing 	in his 	own behalf 	in his employment
relations with 	the 	state.
14

To establish a 3519(b) 	violation on this 	theory, 	the ALJ
found 	that 	CSEA must prove 	two points. 	First, 	CSEA must 	show the
State 	discriminated against 	Hsia-Coron 	for participation 	in
protected activity. 	Secondly, 	after proving discrimination, 	CSEA
must 	then prove 	that 	the 	effect 	of 	the discrimination was 	to deny
it 	the 	right 	to 	represent 	its members.
To prove 	discrimination, 	CSEA is 	required to demonstrate
that: 	1) 	the employee engaged in protected conduct; 	2) 	the
employer knew of 	the employee's protected activity; 	3) 	the
employer took adverse action against 	the employee; 	and 4) 	the
employer's 	action was motivated by 	the 	employee's 	participation
in protected activity. 	(Novato Unified School 	District 	(1982)
PERB Decision No. 	210 	(Novato).)
The 	ALJ 	found 	that 	Hsia-Coron was 	engaged 	in protected
activity. 	Further, 	the ALJ determined that 	it was 	clear that 	the
State 	took negative 	action against 	Hsia-Coron when 	it 	down-graded
his 	performance 	evaluation which was 	a 	serious 	act 	that 	had
implications 	for his 	future 	job security. 	Finally, 	the ALJ
concluded 	that 	substantial 	evidence 	existed 	demonstrating
unlawful 	motivation 	in 	the 	revised evaluation. 	CSEA witnesses,
including 	several 	stewards, 	testified that 	they had never heard
of 	downgrading 	an 	evaluation after 	it 	was 	signed by an 	employee's
immediate 	supervisor. 	The 	downgrading was based entirely on a
reprimand Hsia-Coron 	had been given 	for unauthorized absences 	to
engage 	in CSEA activity. 	As 	the 	State 	did not 	provide 	sufficient
evidence 	to rebut 	the discrimination allegation, 	the ALJ
15

concluded 	the 	evidence 	supported a 	finding 	of 	a prima 	facie 	case
of discrimination.
However, 	the ALJ determined that 	CSEA failed to meet 	the
second 	requirement 	to establish a violation of Dills Act 	section
3519(b) 	that 	in discriminating against Hsia-Coron, 	it denied CSEA
the 	right 	to represent 	its members. 	Although the ALJ found
evidence 	that members 	of 	the bargaining unit were 	disturbed by
the 	revised evaluation, 	he held that 	in accordance with Palos
Verdes Unified School District 	(1988) 	PERB Decision No. 	688
(Palos Verdes) 	there was no actual 	impact 	on CSEA's ability to
represent 	its members. 	No CSEA bargaining member left 	the 	team,
nor was 	any 	evidence 	presented 	showing 	that 	CSEA's 	negotiating
strategy was 	less 	effective 	in 	further bargaining negotiations,
nor 	did 	it 	inhibit 	CSEA team members 	from speaking 	out 	in
subsequent 	sessions. 	The ALJ 	concluded 	that 	where 	an 	alleged
violation of 	section 3519(a) 	has been deferred to arbitration,
CSEA, 	in order to prevail 	on a section 3519(b) 	theory, 	must 	show
actual 	impact. 	As 	CSEA had supposedly 	failed 	in meeting 	its
burden, 	the section 3519(b) 	charge was dismissed.
CSEA'S 	EXCEPTIONS
On appeal, 	CSEA argues 	that 	the ALJ was 	incorrect 	in
concluding 	that 	CSEA experienced no detrimental 	impact. 	CSEA
argues 	that 	substantial 	evidence was 	introduced showing 	that
negotiations 	were 	delayed and became more 	difficult. 	CSEA also
asserts 	that 	this 	led them to being less 	effective 	in 	its
negotiations. 	Further, 	CSEA argues 	that 	this 	is an appropriate
16

case 	for the adoption of 	a per 	se 	rule governing 	employer
interference with employee bargaining rights. 	Further, 	CSEA
contends 	that 	no proof 	of 	actual 	impact 	should be 	required as 	if
such, 	CSEA would be 	subject 	to 	revealing 	internal 	weaknesses
which 	would 	strengthen 	the 	employer's 	negotiating 	power.
STATE'S 	RESPONSE 	AND 	CROSS-EXCEPTIONS
The State 	supports 	the ALJ's 	finding 	that 	there must 	be
actual 	interference 	to 	support 	a violation of Dills Act 	section
3519(b). 	The State 	contends 	that 	CSEA failed to show any
objective 	evidence 	that 	it 	interfered with CSEA's 	right 	to
negotiate.
Additionally, 	the State argues 	that 	the ALJ erred in
determining 	that 	it 	discriminated against Hsia-Coron. 	Although
the 	ALJ 	correctly 	found 	the 	State's 	policy 	on 	reviewing
evaluations was 	in place before 	the 	charge arose, 	the State
asserts 	that 	the 	evidence 	failed 	to 	support a 	finding 	that 	the
policy was 	limited 	to 	review 	for 	clerical 	errors.
Finally, 	the 	State 	contends 	that 	the 	charge 	should have been
deferred 	to 	arbitration based upon 	section 23.8 	of 	the 	parties'
collective bargaining agreement 	(CBA) 	relating 	to union job
steward protection which prohibits 	the 	State 	from 	retaliating
against 	job 	stewards 	"because 	of 	the 	exercise 	of 	any rights 	given
by 	this 	contract."
DISCUSSION
As 	a 	threshold matter, 	we must 	determine whether PERB has
jurisdiction 	in the 	case at 	bar. 	The 	State argued that 	PERB does
17

not 	have 	jurisdiction 	over 	the 	case because 	the alleged 	section
3519(b) 	violation must be deferred to arbitration. 	The 	State
contends 	that 	several 	sections 	of 	the CBA address 	the 	alleged
conduct 	and 	require deferral, 	including 	section 2.8 	of 	the 	CBA
which prohibits 	the 	State 	from retaliating against 	union 	job
stewards 	"because 	of 	the 	exercise 	of 	any rights 	given by 	this
contract."
In Los Angeles Unified School 	District 	(1990) 	PERB Decision
No. 	860, 	the Board held that 	the exercise of PERB jurisdiction is
not 	precluded unless 	the 	alleged unfair practice 	is 	arguably
prohibited by 	the parties 	agreement. 	While 	section 	2.8 	of 	the
CBA prohibits 	the 	State 	from denying 	the 	rights 	of 	union
stewards, 	the 	State does 	not 	identify any contract 	provision
which 	arguably prohibits 	it 	from denying 	CSEA's 	rights 	guaranteed
by 	the Dills Act. 	As 	the Board observed 	in State 	of 	California
(Department of Corrections) 	(1992) 	PERB Order No. 	Ad-231, 	it
"cannot 	make 	arbitrable 	that 	which parties did not 	agree 	to
arbitrate." 	The ALJ 	correctly 	considered all 	the 	contract
provisions 	offered by 	the 	State 	and denied 	the motion 	to 	defer.
We 	have 	reviewed 	the provisions 	and agree with the ALJ 	that 	the
motion must be 	denied.
In 	reversing 	the ALJ, 	we hold that 	the State denied 	CSEA's
rights 	that 	are guaranteed by 	the Dills Act 	through 	its
discriminatory 	conduct 	against 	Hsia-Coron.
The ALJ found that 	in order to 	establish a Dills Act 	section
3519(b) 	violation on the State, 	CSEA had to prove that 	(1) 	the
18

State 	discriminated 	against 	Hsia-Coron 	for participation 	in
protected activity. 	Proof 	of 	discrimination 	for 	this 	purpose was
identical 	to what 	would have been required 	if 	the 	3519(a)
violation had not been deferred to arbitration; 	and 	(2) 	CSEA had
to prove 	that 	the 	effect 	of 	discrimination was 	to deny CSEA the
right 	to represent 	its members. 	We agree. 	However, 	the ALJ
further 	found 	that 	CSEA had 	to 	show that 	it 	suffered actual
adverse action as 	a result 	of 	the State's 	discriminatory actions.
It 	is here where we part 	company with the ALJ's 	analysis.
CSEA urges 	a 	finding 	that 	the 	State violated Dills 	Act
section 	3519(b) 	by 	interfering with the protected union 	rights.
It 	is 	asserted 	that 	the 	revised negative 	evaluation and 	telephone
call 	to 	the 	employee at 	the bargaining 	table had a 	"chilling
effect" 	on the 	other unit members.
In 	Carlsbad Unified School 	District 	(1979) 	PERB Decision
No. 	89 	(Carlsbad), 	the Board set 	forth the test 	for determining
when 	employer 	actions 	interfere with 	the 	rights 	cf 	employees
guaranteed by 	the Act. 	Later, 	in Novato Unified School 	District.
supra. 	the 	Board 	clarified Carlsbad by 	setting 	forth a 	test 	to be--
applied 	in 	cases 	of 	alleged discrimination or 	reprisal 	against
employees 	for 	their participation 	in protected activities. 	In
Coast 	Community College District 	(1982) 	PERB Decision No. 	251,
the 	Board 	distinguished between 	interference 	and 	discrimination
cases. 	Under McPherson v. 	PERB/Carlsbad Unified School 	District
(1987) 	189 Cal.App.3d 293, 	[234 Cal.Rptr 428], 	reversing PERB
Decision No. 	529, 	the 	court 	recognized the distinction between
19
•

the 	retaliation 	and 	interference 	standards 	and admonished 	PERB
for not 	analyzing 	a discrimination pleading under both legal
standards.
A case 	of 	interference 	is 	established when the 	charging
party shows 	that 	the employer's 	conduct 	tends 	to or does 	result
in some 	harm to employee's 	rights. 	Where 	the harm to employee
rights 	is 	slight 	and the 	employer offers 	justification based on
operational 	necessity, 	the 	competing 	interests are balanced.
Where 	the harm is 	inherently disruptive 	of 	employee 	rights, 	the
employer's 	conduct 	will 	be 	excused only on proof 	that 	it 	was
occasioned by 	circumstances 	beyond 	the 	employer's 	control 	and 	no
alternative 	course of action was available. 	In interference
cases, 	proof 	of unlawful 	intent 	is not 	required.
Applying 	the 	Carlsbad standard to this 	case, 	it 	is
determined 	that 	CSEA has 	proven a 	case 	of 	interference. 	What
union right 	is more 	fundamental 	than the 	right 	to represent 	its
members 	through a 	collective bargaining process 	free 	from
employer 	interference? 	The 	record 	is 	clear 	that 	the
precipitating 	factor was 	that 	having agreed earlier, 	to 	remove 	a
similar letter of 	reprimand 	from Hsia-Coron's personnel 	file, 	the
State wanted 	to breathe 	new life 	into 	its 	rebuke 	of 	Hsia-Coron
for his 	alleged absence without 	leave while he was 	on union
business 	by creating a new negative evaluation. 	It 	is 	equally
clear 	from the 	record 	that 	Hsia-Coron's 	union affiliation and
activism was 	the 	State's motivating 	factor 	in the 	decision 	to
send the message 	to the bargaining table. 	Indeed, 	the attorneys
20

for 	the 	State 	at 	oral 	argument 	acknowledged 	that 	an evaluation
change 	of 	this 	nature 	required 	immediate 	communication 	to 	the
affected employee. 	Further, 	they admitted that 	they knew where
Hsia-Coron was 	and what 	he was 	there 	for when the 	telephone 	call
was placed to him. 	During negotiations, 	a 	telephone 	call 	from
the 	employer 	to 	an employee 	that 	the 	employee's 	performance
appraisal 	had been 	revised 	in a negative manner 	is 	inherently
disruptive 	to CSEA's 	rights. 	The State's business 	justification
defense, 	that 	the 	communication at 	the negotiating table was
time-sensitive, 	is hereby rejected. 	The negative 	change 	in 	the
evaluation, 	the 	subsequent 	communication concerning 	the
evaluation was 	a 	consequence 	of 	protected activity and 	therefore,
the action was 	a violation of Dills Act 	section 3519(b).
Moreover, 	it 	is apparent that the State's conduct has 	the
potential 	to 	"chill" 	the 	relationship between the parties 	in
future 	negotiations. 	Hsia-Coron and other 	CSEA bargaining 	unit
members 	will 	be 	wary 	of 	taking 	time 	off 	from their work 	to
conduct 	CSEA business--to participate 	in 	negotiations 	knowing
that 	a 	negative performance 	evaluation may be 	based 	in part 	on
their absences 	due 	to 	their 	engagement 	in protected activities.
Therefore, 	we 	conclude 	that under the 	totality cf
circumstances, 	the State's 	conduct was violative of CSEA's
rights. 	To the 	extent 	that 	Palos Verde 	and its progeny 	can 	be
read 	to 	have 	overruled 	Carlsbad 	or 	to 	require an 	employee
organization to 	show actual 	harm in an 	interference 	claim, 	we
overrule 	that 	decision. 	A showing of 	harm is 	not 	a 	requisite 	to
21

proving 	a 	case 	where 	the 	harm is 	inherently destructive 	as
demonstrated in this 	case 	to 	important 	union rights.8 (NLRB v.
Great Dane Trailers. 	Inc. 	(1967) 	388 U.S. 	26 	[65 LRRM 2465].)
Therefore, 	the Board finds 	that 	the State violated section
3519(b) 	of the Dills Act.
ORDER
Based upon the 	foregoing findings 	of 	fact, 	conclusions 	of
law, 	and the entire record in this 	case, 	it has been found that
the 	State 	of California 	(Department 	of 	Corrections) 	violated the
Ralph C. 	Dills Act 	(Dills Act) 	section 3519(b).
Pursuant to Government Code section 3514.5(c), 	it is hereby
ORDERED 	that 	the 	State 	of 	California 	(Department 	of 	Corrections)
and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying the 	California State Employees'
Association, 	SEIU Local 	1000, 	AFL-CIO rights guaranteed to it by
the Dills Act.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT.
1. 	Within thirty-five 	(35) 	days 	following the date
this Decision 	is no 	longer subject 	to reconsideration, 	post 	at
all 	work locations 	where notices 	to employees are 	customarily
8Reliance upon 	State 	of 	California 	(Franchise Tax Board)
(1992) 	PERB Decision No. 	954-S to support the position of the
State 	is misplaced 	since 	the holding 	in 	that 	case 	requires 	the
union 	"to establish a denial 	of 	[its] 	rights, 	separate and apart
from the harm allegedly 	suffered by 	[an 	employee]. 11 That 	is 	not
the same, 	however, 	as 	requiring that 	the only way a union can
establish a denial 	of 	its 	rights 	is by showin	- - 	g actual 	impact 	or
harm to 	it.
22

- . . .
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by 	an 	authorized agent 	of 	the employer. 	Such posting
shall 	be maintained 	for a period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be taken to insure 	that 	this
Notice 	is 	not 	reduced in size, 	defaced, 	altered or covered by any
material.
State Of CA (Dept. of Corrections)
Case No. SF-CE-105-S
2. 	Written notification of 	the actions 	taken 	to 	comply
with 	this 	Order shall be made 	to the Sacramento Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance 	with 	the
director's 	instructions.
Member 	Carlyle 	joined in 	this Decision.
Member Caffrey's dissent 	begins 	on page 24.
Deborah M. Hesse,
Lvd
l
J-:;-1
r1
4 12121 193
Huston 	Huston T. Carlyle, Jr. Member ]
23
•
I
'
11...fz,/q.i:

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	TEE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-105-S,
California 	State 	Employees' 	Association. 	SEIU Local 	1000, 	AFL-CIO
v. 	State 	of 	California 	(Department 	of 	Corrections), 	in which all
parties had the 	right 	to participate, 	it has been found that 	the
State 	of 	California 	(Department 	of Corrections) 	violated section
3519(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
As 	a result 	of 	this 	conduct, 	we have been ordered 	to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying the 	California State Employees'
Association, 	SEIU Local 	1000, 	AFL-CIO rights guaranteed 	to 	it by
the Dills Act.
Dated: 	STATE 	OF CALIFORNIA
(DEPARTMENT OF 	CORRECTIONS;
By:.
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR 	COVERED BY ANY
MATERIAL.