State of California (Department of Corrections) (California Correctional Peace Officers Association) (PERB 1104S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. S-CE- 551- S
PERB Decision No. 	1104-S
May 	18, 1995
)
)
)
Appearances: 	Suzanne L. 	Branine, 	Staff Legal Counsel, 	for
California Correctional 	Peace Officers Association; 	State of
California 	(Department 	of 	Personnel Administration) 	by Paul 	M.
Starkey, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
CARLYLE, 	Member: 	This case is before the Public Employment.
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	State
of California 	(Department of Corrections) 	(CDC) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto). 	The ALJ 	found that 	CDC denied the California
Correctional 	Peace Officers Association 	(CCPOA) 	its 	rights under
section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).1
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 3519.5 	states, 	in
pertinent 	part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
)
)
__________ )

The Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	CDC's
exceptions 	and CCPOA's 	response 	thereto.2 The 	Board 	finds 	the
ALJ's 	findings 	of 	fact 	to be 	free of prejudicial 	error. 	The
Board affirms 	the ALJ's 	conclusions 	of 	law and 	that 	the District
violated Dills Act 	section 	3519.5(b) 	but 	revises 	the proposed
remedy 	in accordance with 	the 	discussion below.
DISCUSSION
In its 	exceptions, 	CDC contends 	that 	PERB 	should defer its
jurisdiction over 	the unfair practice 	charge 	to 	the 	State
Personnel Board 	(SPB).
CDC asserts 	that 	the alleged conduct, 	previously before 	the
SPB, 	concerned CCPOA's 	right 	to 	effectively represent union
members without 	CDC's 	interference. 	The 	SPB has 	jurisdiction
over disciplinary actions 	taken against 	civil 	service 	employees.
(Trustees 	of 	the 	California State University 	(1990) 	PERB Decision
No. 	805b-H 	(CSU).) 	Disciplinary action based on the merits 	of
the 	case 	and an employer's 	interference with a union's
representational 	rights 	are 	two 	separate 	and distinct 	issues
handled by two 	separate 	and distinct 	agencies. 	PERB has
exclusive 	jurisdiction to 	consider unfair 	labor practices.
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
2On request 	of both parties, 	oral 	argument was 	granted on
November 2, 	1994, 	and heard by the Board on January 26, 	1995.
22

Interference by an 	employer 	to a union's 	representational 	right
is 	an unfair labor practice. 	Section 3541.5 	of 	the 	Educational
Employment Relations Act 	(EERA)3 states, 	in pertinent part:
The 	initial 	determination as 	to whether 	the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within 	the 	exclusive
jurisdiction of 	the board.
(Emphasis 	added.)
The 	California Supreme Court 	in San Diego Teachers Assn. 	v.
Superior Court 	(1979) 	24 Cal.3d 1 	[154 Cal.Rptr. 	893] 	found that
PERB has 	the 	exclusive 	initial 	jurisdiction 	to determine whether
the charges of unfair practices are 	justified, 	and if 	so, 	to
determine 	the appropriate 	remedy. 	Therefore, 	CDC's 	contention
that 	this 	unfair 	labor practice matter 	should be 	deferred 	to 	the
SPB 	is 	not 	in 	conformance with 	the 	California Supreme 	Court's
mandate. 	Accordingly, 	CDC's 	jurisdictional 	exception is
rejected.
CDC's 	assertion of 	collateral 	estoppel 	is 	also without
merit. 	Collateral 	estoppel 	precludes 	the 	relitigation of 	an
issue already decided in another proceeding where: 	(1) 	the 	issue
decided 	in the prior proceeding 	is 	identical 	to 	that 	sought 	to be
relitigated; 	(2) 	the previous proceeding resulted in a 	final
judgment 	on the merits; 	and 	(3) 	the party against whom collateral
estoppel 	is 	asserted was 	a party or 	in privity 	in the prior
proceeding. 	(CSU.)
3EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
It 	is 	noted that 	EERA section 3541.5 	and Dills Act 	section 3514.5
have 	the 	same 	language.
33

The Board in the CSU case, 	cited People v. 	Sims 	(1982) 	32
- -
Cal.3d 468, 	484 	[186 Cal.Rptr. 	77] 	stating that collateral
estoppel 	is applicable 	to decisions 	of administrative agencies
when: 	(1) 	the agency is acting in a judicial 	capacity; 	(2) 	it
resolves disputed issues 	of 	fact properly before 	it; 	and 	(3) 	the
parties 	have 	had an adequate 	opportunity 	to 	litigate 	the 	disputed
issues. 	Collateral 	estoppel 	in this 	case 	is 	inappropriate
because 	the 	issues 	litigated before 	the SPB, 	discipline 	of 	state
civil 	service employees, 	are not 	identical 	to the 	issues
litigated before 	PERB, 	that 	is, 	whether CDC interfered in CCPOA's
right to represent its members. 	We, 	therefore, 	dismiss CDC's
collateral 	estoppel 	exception.
CDC also asserts 	that 	the 	remedy as 	issued 	in this 	case 	is
inappropriate 	claiming 	that 	it 	is 	prospective 	and overly broad.
We agree. 	Given the particular facts 	in this 	case, 	the 	remedy of
the ALJ 	is 	overly broad and we modify 	it 	to 	eliminate 	the
prerequisite 	that 	witnesses 	be 	informed 	that 	interviews 	are
voluntary and 	free 	of 	reprisal. 	PERB 	is 	authorized to 	remedy
violations 	of 	the Dills Act. 	Section 3514.5 	states:
The 	initial 	determination as 	to whether the
charges 	of unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter within 	the 	exclusive
jurisdiction of 	the board.
Furthermore, 	section 3514.5(c) 	bestows upon PERB the power to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and 	desist 	from the
unfair practice 	and 	to 	take 	such affirmative
action, 	including but not 	limited to 	the
reinstatement 	of 	employees 	with 	or without
4

back pay, 	as will 	effectuate the policies of
this 	chapter.
In order to 	further the purposes of 	the Dills Act, 	PERB's
remedial power must be exercised. 	(Dills Act 	section 3514.5 (c);
Oakland Unified School Dist, 	v. 	Public Employment Relations Bd.
(1981) 	120 Cal.App.3d 1007, 	1014 	[175 Cal.Rptr. 	105].) 	To
effectuate 	the purposes 	of 	the Dills Act given the particular
facts 	in this 	case, 	it 	is appropriate to order CDC to cease and
desist 	from 	interfering with 	CCPOA's 	right 	to 	represent 	employees
without 	requiring 	CDC 	to 	first 	verbally 	inform potential 	CCPOA
witnesses 	that 	any 	interview 	is voluntary and will 	be 	free 	of
reprisal. 	The Board believes 	that 	a 	cease and desist 	notice 	is
sufficient.
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the entire 	record in this 	case, 	it 	is 	found that 	the
State of 	California 	(Department of Corrections) 	(CDC) 	violated
the Ralph C. 	Dills Act 	(Dills Act), 	Government Code section
3519(b). 	CDC violated the Dills Act by interfering with the
California 	Correctional 	Peace 	Officers Association's 	(CCPOA)
right 	to 	represent 	employees.
Pursuant 	to section 3514.5 	of 	the Dills Act, 	it 	is hereby
ORDERED that CDC, 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with CCPOA's 	right 	to 	represent
employees.
55

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
placed, 	copies 	of 	the Notice attached hereto as an Appendix. 	The
Notice must 	be 	signed by an authorized agent 	of 	CDC 	indicating
that 	CDC will 	comply with the 	terms 	of 	this Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive work
days. 	Reasonable 	steps 	shall be taken to 	insure 	that 	this Notice
is 	not 	reduced in size, 	defaced, 	altered or covered with any
other material.
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.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
6
6

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	S-CE-551-S,
California Correctional 	Peace Officers Association 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 the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(b).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Interfering with the 	California Correctional 	Peace
Officers Association's 	right 	to 	represent 	employees.
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT 	OF 	CORRECTIONS)
By:
Authorized 	Agent
.
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	CORRECTIONAL 	PEACE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
Unfair 	Practice
Case No. 	S-CE-551-S
PROPOSED 	DECISION
(3/29/94)
Appearances: 	Shawn P. 	Cloughesy, 	Supervising Legal Counsel, 	for
California Correctional 	Peace Officers Association; 	State of
California 	(Department 	of 	Personnel Administration) 	by Paul M.
Starkey, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The 	California 	Correctional 	Peace 	Officers 	Association
(CCPOA) 	filed an unfair practice 	charge on December 13, 	1991.
After investigation, 	and on January 29, 	1992, 	the general 	counsel
of 	the 	Public 	Employment 	Relations 	Board 	(Board or 	PERB) 	issued a
complaint 	against 	the 	State 	of 	California 	(Department 	of
Corrections) 	(Department or CDC). 	The complaint 	charged the
Department with denial 	of CCPOA's 	rights under section 3519(b) 	of
the Ralph C. 	Dills Act 	(Dills Act).l The violation was
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in
this decision are 	to the Government 	Code. 	In relevant part
section 3519 	provides 	that 	it 	shall be unlawful 	for the 	state 	to:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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.
)
)
)
)
)
)
)
)
)
______________ 	l

predicated upon 	the 	allegation 	that 	on or about 	December 	10,
1991, 	Employee Relations Officer Cathleen Catti 	(Catti) 	told
Rubin Garcia 	(Garcia) 	that, 	should he 	testify at a State
Personnel 	Board 	(SPB) 	hearing 	that 	it was 	the usual practice 	for
yard officers 	to 	leave 	the yard without 	notifying 	supervisors, 	an
investigation which 	could 	result 	in adverse 	actions 	against
employees might 	result.
The Department 	filed its answer on February 25, 	1992,
denying violations 	of 	the 	Dills Act 	and 	raising 	defenses 	that
will 	be addressed 	in other parts 	of 	this 	decision.
A PERB 	conducted 	settlement 	conference 	was 	without 	success.
After several 	continuances, 	this matter was heard on August 	10,
1993, 	at Sacramento, 	California. 	Further continuances on behalf
of 	the Department were granted, 	and on November 15, 	1993,
respondent waived presentation of 	its 	final 	witness. 	Upon
submission of briefs on December 23, 	1993, 	the matter was deemed
submitted.
FINDINGS 	OF 	FACT
Charging party 	is 	a 	recognized 	employee 	organization within
the meaning of 	section 3513(b). 	The Department 	is 	the state
employer within the meaning of section 3513 (j) .
This 	controversy arose 	at 	the Northern 	California Women's
Facility at Stockton, 	California.
In the spring of 1991, 	William Constante 	(Constante), 	a
correctional 	officer at 	the 	facility, 	was 	served with a 	statement
of 	adverse action with a suspension of 	30 	days 	for, 	among other
22

things, 	having 	"abandoned" 	his post as yard/work crew officer
when he went 	to 	the 	landscape 	shop 	in pursuit 	of 	an 	inmate,2 and
that 	he 	failed 	to notify his 	supervisor 	that 	he 	was 	leaving his
area 	of 	responsibility.3
Correctional 	Officer Douglas 	Peterson 	(Peterson), 	then CCPOA
chapter president, 	represented Constante 	at 	a 	"Skelly" 	hearing on
the adverse action, 	held on July 11, 	1991, 	before the chief
deputy warden. 	Peterson asserted, 	among other defenses, 	that 	it
was 	common place 	for yard officers 	to 	leave 	the yard area without
notifying 	their 	supervisor.
Peterson 	said 	there were 	two 	officers 	assigned 	to 	the 	yard.
One did not have 	flexibility, 	but 	the 	other did. 	He 	spoke 	from
personal 	experience 	having 	served as 	yard 	officer previously.4
He 	also mentioned 	that 	other 	officers 	would 	confirm that
practice, 	and named Correctional 	Officer Garcia.5
2The yard officer 	is 	one 	of 	two who are 	observing 	inmates 	in
the yard.
3The 	supervisor 	is 	the watch sergeant who 	reports 	to 	the
watch 	commander. 	The yard/work 	crew officer 	is 	responsible 	for
maintaining order on 	the yard, 	the 	supervision of 	inmate yard
crew workers 	and direct 	supervision of 	the 	recreation 	facilities
and 	equipment 	on 	the 	yard 	or 	in 	the 	gymnasium.
4According 	to 	Peterson, 	he was 	assigned to 	the position when
he was president 	of 	the 	chapter. 	The Department knew of his
union position and 	that 	he was 	"running about." 	The 	second
officer does 	not 	have an 	inmate 	crew and serves 	as 	a 	"gopher" 	for
the other officer or the 	supervisor, 	according 	to Peterson.
5Garcia proceeded Peterson as 	a yard officer. 	Garcia 	said
he 	served the post 	in 	1988-89.
W
	3

Suzanne Branine, 	staff 	legal 	counsel at CCPOA, 	represented
Constante before 	SPB 	in his appeal 	of 	the 	suspension.
In 	investigating 	the 	case, 	Branine 	conferred by telephone
with Peterson on November 	8 	or 9. 	They discussed the 	defense
that 	it was 	common practice 	for yard officers 	to 	leave 	the yard
area without 	first 	notifying 	the 	supervisor. 	Branine asked
Peterson 	if 	there were any 	officers 	who were 	familiar with 	the
practice. 	Peterson indicated Garcia, 	who worked in the 	same work
area with 	Peterson, 	was 	one 	such person.6 Branine 	then discussed
with Garcia 	the practice. 	Garcia 	confirmed that 	it was 	the
practice 	to 	leave without 	notifying 	the 	supervisor. 	Garcia
agreed to 	testify to 	that 	effect 	at 	the 	SPB hearing.
Branine's 	defense 	to 	the 	abandonment 	of post 	charge against
Constante was 	to be predicated upon the 	so 	called 	"just 	cause"
provision. 	Among 	the Department's polices 	as 	expressed 	in 	its
operations manual 	is 	the 	following:
Adverse personnel 	actions 	taken against
employees 	cannot be 	sustained where 	it 	is
found 	that 	management 	acted 	in an arbitrary,
capricious 	or discriminatory manner. 	The
following 	guidelines 	may be 	used 	to 	determine
if 	there 	is 	"just 	cause" 	for the action.
0O 	The rules, 	standards, 	and instructions
shall 	be 	enforced uniformly without
discrimination. 	If 	enforcement has been
lax, 	management 	shall not 	suddenly
change 	direction 	and 	crack down without
first warning employees 	of 	its 	intent.
6Garcia 	is 	a board member of 	the 	local 	CCPOA chapter.
4

In preparation of 	the 	SPB hearing 	to be held on December 	13,
1991, 	Branine spoke with Catti on December 9 by telephone. 	Catti
was 	the 	employee 	relations 	officer 	for CDC and was 	representing
the Department 	at 	the 	SPB hearing. 	To 	insure 	easy presentation
of witnesses 	at 	the hearing, 	Branine gave Catti a verbal 	list 	of
witnesses 	she 	expected to have at 	the 	hearing. 	Garcia was 	among
the names Branine 	referred to.
Catti 	inquired as 	to 	the 	import 	of Garcia's 	expected
testimony. 	Branine 	initially 	resisted 	revealing 	the 	substance 	of
his 	anticipated 	testimony. 	Catti 	said 	she would not 	release
Garcia 	(meaning 	from his 	post) 	to attend the 	hearing which was 	to
be held at 	the 	facility. 	Branine 	indicated that he was 	going to
testify 	that 	yard 	officers 	left 	the 	yard without 	notifying 	their
supervisor. 	According to Branine, 	Catti responded, 	"I hope he's
not 	going 	to 	testify 	that 	officers 	leave 	the yard without
notifying 	their supervisors 	first." 	It was 	a 	form of 	question,
said Branine. 	Catti 	referred to 	the post 	orders 	about 	reporting
to 	the supervisor.7
On December 10, 	Garcia was 	ordered by his 	supervisor,
Lieutenant Robert Martinez 	(Martinez), 	to go to Catti's office.
Garcia was 	told it was about 	the 	Constante hearing. 	He asked if
he 	could have 	representation. 	Martinez 	told him no. 	Garcia did
not want 	to go, 	but Martinez 	ordered him to go 	to Catti's 	office.
7Peterson testified that 	he 	told Catti, 	sometime before 	the
SPB hearing, 	that 	Garcia 	could corroborate his 	contention 	that
officers 	left 	the 	yard without 	telling 	the 	supervisor.
55

At 	that meeting, 	Catti 	asked Garcia what 	he was 	going 	to 	say
at 	the 	Constante hearing.8 Garcia 	replied that 	he was 	going 	to
say 	that 	it was 	the practice 	of 	officers 	to 	leave 	the yard
without 	notifying 	the 	supervisor.
Catti 	showed Garcia 	the 	facility's 	"Post Orders" 	for the
yard/work 	crew officer. 	Within that post 	order 	it 	is 	provided:
No uniformed 	officer will 	leave 	his/her post
without 	the 	authorization 	from a 	supervisor
or have been properly relieved. 	. 	. 	.
Catti 	told Garcia that 	if 	he 	testified as 	he 	said he would
there 	could be more adverse 	actions 	against 	other officers. 	He
was, 	he said, 	very intimidated by her remarks.
Soon thereafter, 	Garcia 	told Peterson of his 	conversation
with Catti. 	Peterson 	called Branine and 	related the 	experience.
Branine 	spoke with Garcia 	on December 	11, 	who explained that
Branine 	was mistaken about 	what 	he would be 	willing 	to 	testify
about. 	The post 	orders 	required supervisors 	to be notified
before yard officers 	leave 	the yard. 	He did not want 	to get
others 	in 	trouble 	and 	that 	he 	was 	sorry 	for 	the misunderstanding
they had.
Garcia 	told Branine 	that 	he would 	testify 	that 	it 	was 	not 	the
practice 	to 	leave 	the yard without 	notifying 	the 	supervisor.
Branine 	discussed with Garcia possible 	exceptions. 	He 	agreed 	to
testify 	that 	the 	officer might 	leave without 	telling 	the
supervisor 	in 	emergencies 	or where 	the 	guard 	suspected an 	inmate
was 	carrying 	contraband or drugs. 	She 	told him she 	would not 	ask
8Garcia did not 	ask Catti 	for 	representation.
6

him if 	it 	was 	common practice 	to 	leave 	the yard without 	notifying
the 	supervisor.
Branine 	felt, 	however, 	the 	common practice defense was much
stronger 	than 	the 	defense 	of 	leaving 	in an 	emergency.
According 	to Branine, 	several 	potential 	witnesses 	refused 	to
speak with her. 	Catti had told her some 	officers 	did not want 	to
speak with her. 	Branine 	did not 	try to get 	any other officer to
testify to 	the 	common practice 	defense. 	She 	felt 	that 	other
officers would be 	threatened as well. 	However, 	she 	further
testified that 	other 	than Peterson and Garcia, 	she 	did not
discuss 	the 	common practice 	defense 	with other 	officers.
Peterson testified that 	he 	tried 	to get 	other officers 	to
testify, 	but 	they refused.
No 	findings 	are made 	with 	respect 	to 	refusal 	by other
officers 	to 	come 	forward 	to 	testify because 	of 	the uncorroborated
hearsay 	statements 	of 	Peterson and Branine.
Branine 	consulted with Constante. 	After discussion, 	it was
deemed 	strategic 	to his 	defense 	at 	the 	SPB 	hearing 	to assert 	that
a yard 	officer 	could 	leave 	the yard, 	without 	notifying 	the
supervisor, 	if 	there was 	an emergency or the yard officer
suspected an 	inmate was 	harboring 	drugs. 	Peterson 	offered 	to
testify to 	the 	common practice 	issue but 	Branine 	elected not 	to
call 	him because 	of 	anticipated retaliation, 	and because he was
77

chapter president, 	she was 	afraid the Department would portray
him as 	biased.9
The 	first 	day of 	the 	Constante 	hearing was 	December 	13. 	On
this 	same day, 	Branine 	filed the 	instant unfair practice 	charge.
At 	no 	time 	did Branine 	call 	to 	the attention of 	the 	SPB
administrative 	law judge 	(ALJ) 	presiding 	over the hearing 	the
Catti-Garcia 	incident.
Garcia 	did not 	testify until 	the 	second day 	of 	the 	Constante
hearing, 	which took place on January 24, 	1992.10 Branine was not
surprised by his 	testimony. 	He 	testified 	that 	officers 	did not
leave 	the post without notifying 	the 	supervisor. 	He 	testified 	in
this manner because he did not want 	to get 	officers 	in trouble.
At 	the 	formal 	hearing before 	PERB, 	he 	testified that yard
officers 	do 	leave 	the yard without 	telling 	the 	supervisor.
The 	SPB ALJ 	found 	that
The post 	orders 	for Yard/Work Crew officer
are 	in writing. 	They require 	the 	officer 	to
notify his 	supervisor 	if 	they leave 	the yard.
On 	occasion officers 	do not 	inform the
supervisor when they leave 	the yard. 	This
would 	occur when an alarm goes 	off 	and 	if 	an
inmate 	is 	suspected of 	carrying 	contraband or
drugs. . . .
The 	SPB ALJ disbelieved 	Constante's 	assertion 	that 	he 	left
the yard 	to pursue 	an 	inmate 	he 	suspected 	of 	carrying 	contraband
or drugs, 	because of Constante's behavior. 	After first
apprehending 	the 	inmate 	and hearing her 	explanation as 	to why 	she
9Peterson 	testified 	that 	this 	had happened 	to 	him 	in another
proceeding.
10Garcia was 	under subpoena by 	CCPOA.
8

was 	late, 	Constante 	left 	the 	inmate 	in the yard and went 	to the
place 	the 	inmate 	stated 	she 	had been delayed.11
Employee 	relations 	officers 	such as 	Catti 	are 	not 	authorized
to undertake 	employee misconduct 	investigations. 	Such
investigations 	are 	performed by a 	lieutenant 	and 	only after
authorization by 	the warden. 	In this 	case 	there 	is 	no evidence
that 	such 	an 	investigation was 	undertaken nor authorized by 	the
warden prior 	to 	Catti's 	interview with Garcia.
The 	parties 	had a memorandum of 	understanding 	in 	effect 	from
May 26, 	1989 	to June 30, 	1991. 	A new memorandum was 	consummated
between the parties 	covering the period September 19, 	1992 	to
June 30, 	1995. 	Thus, 	during the fall of 1991, 	and spring of
1992, 	the parties had no operative memorandum of understanding.
Included within 	the 	1992-95 	memorandum of 	understanding 	is
section 9.15.12 It provides:
a. 	No State official 	or employee 	shall 	impose
or 	threaten to 	impose 	reprisals 	on Unit 	6
employees, 	discriminate or threaten to
discriminate against Unit 	6 	employees, 	or
otherwise 	interfere 	or 	threaten 	to 	interfere
with Unit 	6 	employees, 	restrain or threaten
to restrain Unit 	6 	employees, 	or coerce or
threaten to 	coerce Unit 	6 	employees because
of 	their exercise 	of 	their appeal 	rights 	to
the 	SPB 	or 	its 	authorized 	representative 	or
for appearing as 	a witness before 	the 	SPB 	or
its 	authorized 	representative.
11The union has 	a year 	from the 	date 	of 	the 	decision to 	file
a petition 	for Writ 	of Mandate 	in Superior Court.
12A review of 	the prior memorandum of 	understanding 	indicates
that 	this 	section 	is new.
99

ISSUE
The 	issue 	in this 	case 	is whether Catti's 	comments 	to Garcia
about 	his 	testimony 	constitutes 	a violation of 	the Dills Act?
CONCLUSIONS 	OF 	LAW
Section 3519(b) 	provides 	that 	it 	is unlawful 	for the 	state
to 	deny 	employee 	organizations 	rights 	guaranteed to 	them by 	the
Dills Act. 	The 	employee 	organization 	is 	entitled 	to 	represent
its members 	in their employment 	relations with the 	state. 	Here,
CCPOA was 	representing bargaining unit 	member 	Constante 	in a
disciplinary proceeding before 	SPB 	regarding his 	appeal 	of 	a
suspension. 	Clearly, 	this 	activity related to employment
relations 	with 	the 	employer, 	and CCPOA had a 	right 	to undertake
this 	representation without 	interference 	from the Department.13
CDC 	first 	urges 	PERB 	to exercise 	a 	rule 	of 	accommodation,
deferring 	to SPB 	to 	insure 	the 	integrity of 	SPB's 	own hearing
processes, 	particularly with regard to protection of witness
testimony.
In addition, 	CDC moves 	to dismiss 	the 	complaint 	on the
ground 	that 	"the matter 	is 	within 	the 	exclusive 	and/or primary
jurisdiction of 	the State Personnel Board, 	or, 	in the
alternative, 	is barred by collateral 	estoppel."
PERB 	has 	previously addressed 	the 	overlap 	of 	SPB and 	its 	own
jurisdictional 	responsibilities. 	In State of California
13The employee organizations' 	rights 	includes a broad
spectrum of 	concerns 	which arise 	out 	of 	the 	employment
relationship and employee 	rights 	arising 	out 	of 	the Dills Act.
(See 	Sierra Joint 	Community College District 	(1983) 	PERB Decision
No. 	345.)
10

(Department of Transportation) 	(1984) 	PERB Decision No. 	459-S
PERB cited from Pacific Legal 	Foundation v. 	Brown 	(1981) 	29
Cal.3d 168 	[172 	Cal.Rptr. 	487] 	the following:
. 	. 	. 	PERB and the State Personnel Board are
not 	in competition with each other; 	rather,
each agency was 	established 	to 	serve 	a
different, 	but not inconsistent, 	public
purpose. 	The 	State 	Personnel 	Board was
granted 	jurisdiction 	to 	review disciplinary-
actions 	of 	civil 	service 	employees 	in order
to protect 	civil 	service 	employees 	from
politically partisan mistreatment 	or 	other
arbitrary action 	inconsistent 	with 	the merit
principle 	. . . .
PERB, 	on the other hand, 	has been given a
somewhat 	more 	specialized and more 	focused
task: 	to protect both employees and the
state 	employer 	from violations 	of 	the
organizational 	and 	collective 	bargaining
rights 	guaranteed by SEERA. 	Although
disciplinary actions 	taken 	in violation 	of
SEERA would 	transgress 	the merit 	principle 	as
well, 	the Legislature evidently thought 	it
important 	to assign 	the 	task 	of 	investigating
potential 	violations 	of 	SEERA to an agency
which possesses 	and 	can 	further 	develop
specialized 	expertise 	n 	the 	labor 	relations
filed. 	[Citations 	and 	footnote 	omitted.]
Thus, 	insofar as possible, 	we should construe
the 	relevant provisions 	to permit 	an
accommodation of 	the 	respective 	tasks 	of both
the 	State 	Personnel 	Board and 	PERB.
CDC 	concedes 	that 	this 	is 	not 	a pure 	collateral 	estoppel
case. 	As 	CCPOA points 	out, 	the SPB hearing tested the propriety
of 	the 	discipline 	imposed on Officer Constante. 	Constante's
suspension has 	no bearing on 	the 	case before 	PERB.
The 	doctrine 	of 	collateral 	estoppel 	is 	applied to preclude
the 	relitigation of 	an 	issue 	already decided 	in another
proceeding where: 	(1) 	the 	issue decided in the prior proceeding
is 	identical 	to that 	sought 	to be 	relitigated; 	(2) 	the previous
11

proceeding 	resulted 	in a 	final 	judgment 	on the merits; 	and 	(3)
the party against 	whom collateral 	estoppel 	is 	asserted was 	a
party or 	in privity with a party 	in the prior proceeding. 	(See
Trustees 	of 	the 	California State University 	(1990) 	PERB Decision
No. 	805.b-H.) 	Collateral 	estoppel 	effect may be given to
decisions 	of administrative agencies when: 	(1) 	the agency is
acting in a judicial 	capacity; 	(2) 	it 	resolves disputed issues 	of
fact properly before 	it; 	and 	(3) 	the parties 	have had an adequate
opportunity to 	litigate 	such disputed 	issues. 	(Trustees 	of 	the
California State University, 	supra, 	citing The People v. 	June
Leora Lopes Sims 	(1982) 	32 Cal.3d 468, 	484 	[186 Cal.Rptr. 	77].)
The 	doctrine 	does not 	apply to 	the 	issues 	before 	PERB. 	As
noted, 	the 	SPB hearing tested the 	rightfulness 	of 	the 	suspension
of 	Constante 	for job 	related misdeeds. 	These 	issues were
properly before 	SPB. 	However, 	SPB did not have 	the 	issue 	of
interference with CCPOA's Dills Act 	rights before 	it, 	nor did it
rule on such issue. 	The matter of 	CCPOA's 	rights under the Dills
Act was 	not 	litigated before 	the 	SPB. 	CCPOA's 	rights 	to be 	free
from interference by CDC 	is 	a 	distinct 	and 	separate 	right 	from
Constante's 	or Garcia's 	rights 	to 	freely participate 	in CDC's
efforts 	to 	defend 	Constante 	from the 	Department's 	disciplinary
efforts. 	(See State of California 	(Franchise Tax Board) 	(1992)
PERB Decision No. 	954-S; 	State of California 	(Department of 	Parks
and Recreation) 	(1993) 	PERB Decision No. 	1026-S.)
Under no 	circumstances 	will 	any 	ruling 	from PERB 	alter 	or
impact 	the 	SPB 	ruling on CDC's 	discipline 	of 	Constante. 	Contrary
12

to CDC's assertions, 	there 	is no way that 	PERB's 	exercise of
jurisdiction 	in this 	case provides 	for 	"potential 	for
inconsistent 	results" 	which 	"undercuts 	the authority of both
agencies" 	or presents 	"a conflict of 	constitutional 	dimension."
For this 	reason, 	both arguments advanced by CDC, 	lack of
jurisdiction and collateral 	estoppel, 	are 	rejected.
CDC 	also argues 	that 	charging party 	should be 	limited 	to 	the
forum of 	first 	resort, 	in this 	case SPB. 	Citing State of
California 	(Department of Developmental 	Services) 	(1982) 	PERB
Decision No. 	228-S, 	CDC argues 	that 	PERB's determination that 	the
moving party's 	failure 	to 	testify 	regarding 	certain matters
before 	the 	SPB made 	his 	testimony before 	PERB 	"suspect." 	PERB's
observations 	in 	that 	case were 	directed to 	issues 	of 	credibility
not 	for any proposition 	that 	use 	of 	SPB proceedings 	precludes
also 	filing an unfair practice 	charge with PERB. 	CDC 	offers 	no
other 	support 	for 	its 	assertion 	that 	charging party 	is 	limited 	to
one 	forum. 	The argument 	is 	rejected.
The Department moves 	to dismiss 	the 	complaint 	on the 	grounds
that 	the 	remedy 	is 	prospective 	and 	involves 	conduct 	now 	covered
in 	the 	current memorandum of 	understanding between 	the parties
and PERB 	should 	thus 	defer 	the matter to arbitration. 	Section
9.15 	of 	the 	new memorandum of 	understanding addresses 	the 	right
of 	employees 	to pursue SPB processes, 	including as a witness
without 	retaliation 	from CDC.
In State 	of 	California 	(Department 	of 	Youth Authority)
(1992) 	PERB Decision No. 	962-S, 	PERB adopted the rule of Litton
13

Financial 	Printing Div. v. 	NLRB 	(1991) 	U.S. 	, 	115 L.Ed.2d.
177 	[137 LRRM 2441], 	holding that:
arbitration 	clauses 	do not 	continue 	in 	effect
after 	expiration 	of 	a 	collective bargaining
agreement 	except 	for disputes 	that:
(1) 	involve 	facts and occurrences 	that arose
before expiration; 	(2) 	involve post-
expiration 	conduct 	that 	infringes 	on 	rights
accrued or vested under the agreement; 	or
(3) 	under normal principles of 	contract
interpretation, 	survive expiration of 	the
agreement.
The 	incident 	giving 	rise 	to 	this 	unfair practice
charge 	took place during the 	fall 	of 	1991. 	At 	that 	time 	the
parties 	had no 	operative memorandum of 	understanding. 	Indeed,
the 	protection afforded 	individuals 	by 	section 	9.15 	was 	created
after 	the 	incident 	giving 	rise 	to 	this unfair practice 	charge.
Moreover, 	the protection goes 	to employees 	of 	the bargaining
unit. 	Nothing 	is 	stated 	in 	section 	9.15 	about 	charging party's
rights. 	The agreement does 	not 	cover events 	occurring prior 	to
the 	commencement of 	the agreement, 	nor does 	it address CCPOA's
rights. 	The dispute 	cannot be deferred to arbitration. 	(See
also State 	of 	California 	(Department 	of 	Parks and Recreation).
supra, 	PERB Decision No. 	1026-S.)
-
In cases 	of alleged interference, 	a violation will be 	found
where 	the 	employer's 	acts 	interfere with the 	exercise 	of
protected 	rights 	and 	the 	employer 	is 	unable 	to 	justify 	its
actions 	by proving 	operational 	necessity. 	(Ibid.)
CCPOA relies 	on National 	Labor Relations 	Board 	(NLRB)
precedent 	in prescribing 	its 	right 	to have 	its 	witnesses 	free
from employer 	questioning 	concerning 	preparation 	for 	unfair 	labor
14

practice proceedings. 	It premises 	CDC's wrongdoing on the 	impact
Catti's 	discussion had on Garcia, 	and other officers, 	who
according 	to 	CCPOA, 	refused to 	testify at 	the 	Constante 	hearing
on 	the 	common practice 	of 	leaving a guard post 	without 	first
advising 	the 	supervisor.
CDC attempts, 	in its post-hearing brief, 	to mitigate the
impact 	of 	Catti's 	discussion with Garcia, 	on substantive grounds,
and 	an attack 	on Garcia's 	credibility.
I 	reject 	these efforts.14 It 	is 	clear that, 	as a result 	of
the meeting with Catti, 	Garcia did 	change 	his proffered testimony
that 	there was 	a 	common practice 	of 	leaving 	the yard without
notifying 	the 	supervisor 	to 	a more 	limited practice 	at 	the 	SPB
hearing. 	Clearly, 	the effect 	of 	Catti's 	interview with Garcia
was 	to 	cause him to 	change his 	testimony at 	the SPB hearing, 	thus
undercutting 	CCPOA's 	just 	cause 	defense.
With 	regard to 	the 	impact 	of 	Catti's 	statement 	on other
potential 	witnesses, 	CCPOA has 	failed to 	establish substantive
evidence 	of 	CDC's 	causing 	others 	to 	refuse 	to 	come 	forward about
the 	past 	practice 	of 	yard 	officers 	leaving 	their post 	without
first 	notifying 	the 	supervisor. 	The 	only evidence 	on 	this point
was 	the hearsay statements 	of 	Peterson and Branine.
14Garcia's 	credibility was 	enhanced by his 	admission 	of
reversing himself as 	a result 	of 	the Catti 	interview. 	Cross-
examination of 	Garcia 	did not 	reveal 	any 	essential
inconsistencies 	in his 	rendition of 	what 	transpired during 	the
interview with Catti. 	Finally, 	there was no 	conflicting evidence
presented by 	the 	Department 	about 	what 	transpired during 	the
interview.
15

Under NLRB precedent, 	an employer may engage 	in questioning
employees 	where 	there 	is 	a 	legitimate 	cause 	to 	inquire 	on matters
involving 	their 	section 	7 	rights 	without 	incurring 	Section
8(a)(l) 	liability.15 Legitimate purposes 	are 	either
verification 	of 	a union's 	claimed majority 	status 	to determine
whether 	recognition 	should be 	extended 	or 	the 	investigation 	of
facts 	concerning 	issues 	raised 	in a 	complaint where 	such
interrogation 	is 	necessary 	in preparing 	the 	employer's 	defense
for trial 	of 	the 	case.
In Johnnie's 	Poultry Company 	(1964) 	146 NLRB 	770 	[55 	LRRM
1403] 	(Johnnie's Poultry), 	the NLRB outlined limitations on
employer questioning 	employees. 	The NLRB 	stated:
Thus, 	the employer must 	communicate
to 	the 	employee 	the purpose 	of 	the
questioning, 	assure him that no
reprisal will 	take place, 	and
obtain his 	participation 	on a
voluntary basis; 	the questioning
must 	occur 	in a 	context 	free 	from
employer 	hostility 	to union
organization and must 	not 	be 	itself
15Section 7 	refers 	to the provisions 	of 	the National 	Labor
Relations Act 	(NLRA) 	which commences at 	29 	United States 	Code
section 141. 	Section 7 provides 	in pertinent part:
Employees 	shall 	have 	the 	right 	to self-
organization, 	to form, 	join or assist 	labor
organizations, 	to bargain collectively
through 	representatives 	of 	their 	own
choosing, 	and to engage 	in other concerted
activities 	for the purpose 	of 	collective
bargaining 	or other mutual 	aid 	or protection,
and 	shall 	also have 	the 	right 	to 	refrain 	from
any 	or 	all 	of 	such 	activities 	. . . .
Section 	8(a)(1) 	makes 	it an unfair labor practice 	for the
employer 	"to 	interfere with, 	restrain, 	or coerce employees 	in the
exercise 	of 	the 	rights 	guaranteed 	in section 	7."
16

coercive 	in nature; 	and the
questions must 	not 	exceed 	the
necessities 	of 	the 	legitimate
purpose 	of 	prying 	into 	other union
matters, 	eliciting 	information
concerning 	an 	employee's 	subjective
state of mind, 	or otherwise
interfering 	with 	the 	statutory
rights 	of 	employees. 	When an
employer 	transgresses 	the
boundaries of these safeguards, 	he
loses 	the benefits 	of 	the
privilege. 	(Fns. 	omitted.)
In a U.S. 	Court of Appeal 	review of an NLRB decision
suggesting 	that violation 	of 	the 	Johnnie's 	Poultry 	rule was 	a per
se violation of 	the NLRA it was 	stated:
. 	. 	. 	legality of pre-arbitration interviews
is 	generally a 	contractual 	matter 	to be
determined by 	the 	parties 	in 	establishing 	a
grievance-arbitration 	procedure, 	subject
only 	to 	the 	normal 	restraints 	imposed by 	the
Act 	that 	the 	employer 	conduct 	not 	be
unlawfully 	coercive 	in a particular case.
The 	court 	also held:
An 	employer 	also 	may be 	prohibited 	from
prying 	into union activities, 	or using the
interview as 	an 	excuse 	to discover 	the union
strategies 	for arbitration.
(Cook Paint and Varnish Company 	(D.C. 	Cir. 	19 81)
648 	F.2d 	712 	[106 	LRRM 3016] 	(Cook Paint and
Varnish).)
Charging party asserts 	that 	Catti's 	interrogation went 	to
the heart 	of 	Constante's 	defense 	of 	common practice.16
16Charging party 	also 	contends 	that 	pre-disciplinary hearing
interviews 	are 	governed by 	section 	19574.1 	of 	the Government 	Code
and 	that 	section creates 	a barrier to CDC's 	interview of Garcia.
In 	relevant part 	the 	section provides:
(a) 	. 	. 	. The employee, 	or the designated
representative, 	shall also have the right 	to
interview other 	employees 	having knowledge 	of
17

Here, 	Catti 	already knew the purpose 	for which CCPOA called
Garcia 	to 	testify at 	the 	SPB hearing. 	Branine had told her
during 	the 	prehearing 	telephone 	call 	on December 	9.17 Catti's
response 	to Garcia's 	confirmation was 	to 	show him the 	POST order
and to advise him that 	should he 	testify to 	that 	effect, 	officers
would get 	in trouble.
Catti's 	inquiry did not 	go 	into 	an 	investigation 	of 	employee
wrongdoing, 	or dereliction of yard officer duties. 	She asked no
questions 	of 	when such leaving of 	the yard duty occurred, 	nor by
whom. 	Her only 	interest was 	to 	confirm the nature 	of 	his
testimony at 	the 	SPB 	hearing and 	to 	impress 	on Garcia 	the 	impact
of his 	testimony. 	It was 	successful 	in both objectives. 	She
confirmed, 	as a result of her question, 	the strategy that 	CCPOA
intended to present 	at 	the SPB hearing. 	She was 	successful 	in
intimidating Garcia 	to 	changing his 	testimony so 	that 	CCPOA could
not 	defend 	the 	Constante 	suspension on 	the 	just 	cause 	argument.
the 	acts 	or 	omissions 	upon which 	the 	adverse
action was based. 	Interviews 	of 	other
employees 	and 	inspection of 	documents 	shall
be at 	times 	and places 	reasonable 	for 	the
employee 	and 	for 	the 	appointing power.
Because 	the 	section 	refers 	only 	to 	employees 	as 	having 	the
right 	to 	interview witnesses, 	the Department does 	not have an
option to 	interview witness prior to 	the hearing.
I 	do 	not 	read 	the 	section as 	precluding 	interviews 	by a
department 	prior 	to 	a hearing 	on appeals 	of 	discipline 	issued by
the department. 	Rather, 	the 	section insures 	the right of 	the
disciplined employee 	to 	interview witnesses. 	Nor do 	I 	rely on
these 	sections 	for 	finding 	CDC 	in violation of 	the Dills Act.
17Also unrebutted 	is 	Peterson's 	testimony that 	he 	told Catti
that 	Garcia 	could 	corroborate 	the 	practice 	of yard 	officers
leaving 	their post 	without 	supervisor's 	approval.
18

Catti's 	action was 	taken without 	any deference 	to 	the
mandates 	of 	employer 	interview 	imposed by Johnnie's 	Poultry and
Cook 	Paint 	and Varnish. 	Garcia was 	accorded neither an assurance
that his 	participation in the 	interview was voluntary, 	and that
there 	would be 	no 	reprisals 	flowing 	from his 	participation.
Indeed, 	his 	supervisor gave him an order 	to attend the hearing.
The Department 	contends 	the union has 	failed to prove a
violation of 	the Dills Act based upon a 	reading 	of 	among 	other
cases, 	Novato Unified School District 	(1982) 	PERB Decision No.
210, 	arguing 	that 	intent 	to discriminate 	is a necessary element
of 	its 	case 	in chief, 	and that 	CCPOA has 	failed to prove 	intent
in this 	case.
The 	argument 	and the 	reliance 	on Novato are 	rejected. 	This
is not a discrimination case as was Novato. 	Rather, 	this 	is a
case 	of 	interference, 	governed by Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89, 	and reiterated in State of
California 	(Department of Parks and Recreation), 	supra, 	PERB
Decision No. 	1026-S, 	set 	forth above. 	Carlsbad also held that
proof 	of unlawful 	intent 	is 	not 	required 	in establishing 	the
necessary 	elements 	of 	interference.
The Department 	claims 	that 	the 	state's 	interest 	in defense
preparation 	in 	disciplinary 	cases 	and 	to 	investigate 	employee
misconduct 	outweighs 	CCPOA's 	claim of 	interference.
The 	first 	argument 	has been addressed 	in the discussion of
NLRB precedent. 	Those 	cases 	recognize 	the employer's 	efforts 	to
prepare 	for defense 	of discipline 	cases. 	There 	is 	however
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limitation 	on 	such undertaking as 	prescribed 	in Cook 	Paint 	and
Varnish.
As 	to the 	second argument, 	the 	facts 	of 	the 	case do not back
CDC's 	contention 	that 	the 	employer was 	undertaking an
investigation. 	As noted, 	Catti already knew of 	CCPOA's 	assertion
that yard 	officers 	were 	leaving 	their area without 	notifying 	the
supervisor. 	Peterson raised 	the 	contention 	in 	the 	"Skelly"
hearing, 	he 	told her directly of 	the practice and Branine 	told
her on December 	9. 	Rather than pursue 	this 	alleged breach of
post 	orders 	through the normal 	channel 	for investigation, 	Catti
called 	in CCPOA's 	witness 	and asked him if 	that 	is 	what 	he was
going 	to 	testify 	to. 	Her 	inquiry was 	not 	an 	investigation.
Investigations 	were 	undertaken 	only after 	authorization by 	the
warden, 	and 	carried out by an officer at 	the 	lieutenant 	level.
CDC 	further moves 	to 	strike 	charging party's 	post-hearing
brief 	to 	the 	extent 	and on the grounds 	that 	it 	raises 	a new
allegation 	that 	Garcia was 	denied union 	representation 	in his
meeting with Catti.
Charging party asks 	that 	the 	allegation be 	included only 	to
demonstrate 	the 	intimidating 	atmosphere 	encountered by 	Garcia
when meeting 	Catti 	on December 	10.
Accordingly, 	no determination will 	be made 	regarding 	the
denial 	of 	Garcia's 	request 	for 	representation by Lieutenant
Martinez.
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CONCLUSION
The 	Department violated 	the Dills 	Act 	by 	its 	interference
with 	CCPOA's 	rights 	when 	Catti 	interrogated Garcia 	without
assurances 	of 	the voluntary nature 	of 	his participation in the
interview and his 	freedom 	from retaliation. 	The Department
offered no 	operational 	necessity 	for undertaking 	such an
interview without 	notice 	to 	the 	employee.
REMEDY
Section 3514.5 (c) 	empowers 	PERB 	to order an offending party
to 	cease 	and desist 	from an unfair practice 	and 	to 	take
affirmative action 	to 	effectuate 	the policies 	of 	the Dills Act.
It 	is 	therefore appropriate 	to direct 	the Department 	to 	cease 	and
desist 	from denying 	CCPOA 	its 	rights 	to 	represent 	employees
without 	interference by CDC. 	This 	includes 	the 	right 	to have
witnesses 	called by 	CCPOA without 	unrestricted 	interrogation by
CDC 	representatives. 	Witnesses 	to be 	questioned by a CDC
representative 	shall 	be 	given notice 	that 	the 	interview 	is
voluntary and 	free 	from reprisal.
It 	is 	also appropriate 	that 	the Department be 	required 	to
post 	a notice 	incorporating the 	terms 	of 	the Order. 	The Notice
should be 	subscribed by an authorized agent 	of 	the 	Department,
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
Notice 	shall 	not be 	reduced 	in size. 	Posting such notice will
provide 	employees 	with notice 	that 	CDC has 	acted 	in an unlawful
manner and 	is 	being 	required 	to 	cease 	and desist 	from this
activity and will 	comply with 	the 	order. 	It 	effectuates 	the
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purposes 	of 	the Dills Act 	that 	employees be 	informed of 	the
resolution of 	the 	controversy and will 	announce 	CDC's 	readiness
to 	comply with the 	ordered remedy. 	(Davis 	Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116; 	Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire 	record in this 	case, 	the State of 	California
(Department of 	Corrections) 	(CDC) 	has been found to have violated
the Ralph C. 	Dills Act 	(Dills Act), 	Government Code section
3519(b). 	Pursuant to section 3514.5, 	it 	is hereby ordered that
CDC and 	its 	representative 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with California Correctional 	Peace
Officers Association's 	(CCPOA) 	right 	to represent 	employees by
interviewing 	CCPOA witnesses 	without 	first 	advising 	them such
interview 	is voluntary and 	free 	from reprisal.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Inform potential 	CCPOA witnesses 	that 	any 	interview
is voluntary on 	the part 	of 	the witness 	and shall 	be 	free 	from
any 	reprisal.
2. 	Within ten 	(10) 	workdays 	of 	service of a 	final
decision in this matter, 	post at all work locations where notices
to 	state 	employees 	are 	customarily placed, 	copies 	of 	the Notice
attached hereto 	as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the 	state 	indicating 	that 	CDC will 	comply
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with the 	terms 	of 	this 	Order. 	Such posting 	shall 	be maintained
for a period of 	thirty 	(30) 	consecutive workdays. 	Reasonable
steps 	shall 	be 	taken 	to 	insure 	that 	the Notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
3. 	Upon issuance of a final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order with
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	the director's 	instructions.
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
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filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Gary JM Gary M. Gallery
Administrative Law Judge	Law Judge
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