California Correctional Peace Officers Association (Smith, et al.) (PERB 1226S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DANIEL SMITH, CRAIG FRANKLIN, MARK )
ROSSOPOULOS AND CHET MILLER, )

)
Charging Parties, ) Case No. SA-CO-197-S

)
Vv. ) PERB Decision No. 1226-S
)
CALIFORNIA CORRECTIONAL PEACE ) November 5, 1997

OFFICERS ASSOCIATION,

)
)
Respondent. )
)

Appearance: Hagler and Nelson by Thomas M. Hagler, Attorney, for
Daniel Smith, Craig Franklin, Mark Rossopoulos and Chet Miller.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISTON

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Daniel Smith, Craig
Franklin, Mark Rossopoulos and Chet Miller (Charging Parties) to
a Board agent's dismissal (attached) of their unfair practice
charge for lack of standing. Charging Parties allege that the
California Correctional Peace Officers Association (CCPOA)
violated sections 3515 and 3519.5 of the Ralph C. Dills Act

(Dills Act)* by wrongfully seeking disciplinary action against

‘The Dills Act is codified at Government Code section 3512
et seq. Section 3515 provides, in part:

Except as otherwise provided by the
Legislature, state employees shall have the
right to form, join, and participate in the
activities of employee organizations of their
own choosing for the purpose of
representation on all matters of employer-
employee relations. State employees also
shall have the right to refuse to join or

participate 	in 	the activities 	of 	employee
organizations, 	. . . 	In any event, 	state
employees 	shall 	have 	the 	right 	to 	represent
themselves 	individually 	in 	their 	employment
relations 	with the 	state.
Section 3519.5 provides, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
them and 	failing 	to 	assist 	or 	represent 	them in 	the 	ensuing
disciplinary 	actions.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	and Charging
Parties' 	appeal. 	The Board finds 	the warning and dismissal
letters 	to be 	free 	of prejudicial 	error and adopts 	them as 	the
decision of 	the 	Board itself, 	consistent 	with the 	following
discussion.
DISCUSSION
On appeal, 	Charging 	Parties 	renew their assertion that
CCPOA violated 	its 	duty of 	fair representation when 	it- filed 	its
complaint with the State 	Personnel 	Board. 	It 	is well 	established
that 	the 	duty of 	fair 	representation under 	the Dills 	Act 	derives
from the 	exclusivity of 	the 	representational 	relationship.
(California Union of Safety Employee-------s 	(John) 	(1994) 	PERB Decision
No. 	1064-S at pp. 	9-10; 	California State Employees Association
22

(Parisi) 	(1989) 	PERB Decision No. 	733-S at p. 	9.) 	CCPOA is not
the Charging Parties' 	exclusive representative. 	(Unit
Determination 	for the State 	of 	California 	(1979) 	PERB Decision
No. 	110-S.) 	Since 	CCPOA owed no representational 	duty to 	the
Charging 	Parties, 	they cannot 	state a prima 	facie 	cause 	of 	action
for violation of 	that 	duty.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-197-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
33

. 	.	., 	.1 	( 	(	STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERO
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198 	•
July 23, 	1997
Thomas Hagler, 	Esq.
Hagler 	& Nelson
555 Mason Street, 	Suite 290
Vacaville, 	CA 	95688
Re: 	Daniel Smith, 	Craig Franklin. 	Mark Rossopoulos. 	and Chet
Miller v. 	California 	Correctional 	Peace Officers Association
Unfair Practice Charge No. 	SA-CO-197-S
DISMISSAL 	OF 	CHARGE/REFUSAL 	TO 	ISSUE 	COMPLAINT
Dear Mr. 	Hagler:
The above referenced unfair practice charge, 	filed June 	12, 	1997,
alleges 	the 	California 	Correctional 	Peace 	Officers 	Association
(Association) 	violated 	its 	duty of 	fair 	representation 	to Daniel
Smith, 	Craig Franklin, 	Mark Rossopoulos, 	and Chet Miller
(Charging Parties). 	Specifically, 	you allege that the
Association 	requested 	that 	the 	State 	Personnel 	Board 	(SPB)
discipline 	Charging 	Parties 	in 	retaliation 	for Charging 	Parties'
investigation of Association members. 	You allege 	this 	conduct
violated Government 	Code 	sections 	3515 	and 	3519.5 	of 	the 	Ralph C.
Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated June 	20, 	1997,
that 	the 	above-referenced charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or 	additional 	facts 	which would correct 	the
deficiencies 	explained in 	that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it 	prior 	to 	June
30, 	1997, 	the charge would be dismissed.
On June 30, 	1997, 	I 	received a first amended charge. 	The amended
charge 	alleges 	that 	the Association 	interfered with the 	rights 	of
employees of 	the 	California Department of 	Corrections 	(CDC) 	by
disclosing classified notes 	of 	investigations 	with 	CDC 	employees
to 	the 	SPB 	in 	the Association's 	request 	for discipline 	against
the 	Charging Parties 	and to the 	news 	media.
You 	claim 	that 	disclosing 	the 	notes 	violated California 	Penal
Code 	sections 	832.7 	and 832.8, 	which prohibit the disclosure of
peace officer personnel 	records, 	including 	" . . . 	complaints, 	or
investigations 	of 	complaints, 	concerning an event 	or 	transaction
in which he 	or 	she participated, 	or which he or 	she perceived,
and pertaining 	to 	the manner 	in which he 	or 	she performed his 	or
her duties." 	(California 	Penal 	Code 	section 832.8 	subdivision
(e))

SA-CO-197-S
Dismissal Letter
July 23, 	1997
Page 2
You claim that 	the disclosure 	injured the rights of 	CDC employees
to perform their duties and to participate 	in investigatory
interviews. 	You allege this conduct violated Government Code
sections 3515 and 3519.5 of the Ralph C. 	Dills Act 	(Dills Act) 	by
interfering with the CDC employees because of their exercise of
rights guaranteed by the Dills Act.
As noted in the June 20, 	1997 letter, 	supervisors and managers do
not have standing under the Dills Act to file unfair practice
charges with the Public Employment Relations Board 	(PERB). 	The
Charging Parties have no standing to file this charge.
Even if Charging Parties did have standing, 	the facts of the
charge fail 	to state a prima facie case of interference by the
Association. 	Assuming the investigatory notes were confidential,
supplying the SPB with copies of the notes did not 	interfere with
CDC employees' 	right to form, 	join, 	or participate in employee
organizations. 	Although employees may be reluctant to
participate in future investigations 	for fear of disclosure of
confidential 	information, 	the Association has not interfered with
any employees because 	they have exercised rights under the Dills
Act. 	Nor does the disclosure of materials impairs employees'
ability to engage 	in future protected activity.
The facts in both the original and amended charges 	fail to state
a prima facie violation of the duty of 	fair representation or
interference with the rights of employees, 	and the charge is
therefore dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must contain
the case name and number. 	To be timely filed, 	the original and
five copies of 	such appeal must be actually received by the Board
itself before the close of business 	(5 p.m.) 	or sent by
telegraph, 	certified or Express United States mail postmarked no
later than the last date set for filing. 	(Cal. 	Code Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Attention: Appeals Assistant
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 	95814
(

SA-CO-197-S
Dismissal Letter
July 23, 	1997
Page 3
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code
Regs., tit. 8, sec. 32635(b).)
Service
All documents 	authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be 	in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of the request upon each
party. 	(Cal. Code Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By: RUSSELL NAYMARK
Board Agent
Attachment
cc: 	Joel Levinson

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
June 20, 	1997
Thomas Hagler, 	Esq.
Hagler 	& Nelson
555 Mason Street, 	Suite 290
Vacaville, 	CA 95688
Re: 	Daniel Smith, 	Craig Franklin. 	Mark Rossopoulos, 	and
Chet 	Miller v. 	California 	Correctional 	Peace 	Officers
Association
Unfair Practice 	Charge No. 	SA-CO-197-S
WARNING 	LETTER
Dear Mr. 	Hagler:
On June 	12, 	1997, 	you filed the above captioned unfair
practice charge on behalf of Daniel R. 	Smith, 	Craig
Franklin, 	Mark Rossopoulos 	and Chet Miller. 	The 	charge
alleges 	that 	the 	California 	Correctional 	Peace 	Officers
Association 	(Association) 	violated Government 	Code 	sections
3515 and 3519.5 of the Ralph C. 	Dills Act 	(Dills Act).
Specifically, 	the 	charge 	contends 	that 	the Association
breached 	its 	duty of 	fair 	representation 	to 	the 	charging
parties 	by wrongfully 	seeking 	disciplinary 	action 	against
them by the 	Department 	of 	Correction, 	and by not 	providing
or offering to provide 	representation to 	complainants 	or to
assist 	complainants 	in the 	defense 	of 	the 	requested
disciplinary 	action.
The 	Public Employment 	Relations 	Board 	(PERB) 	has 	no
jurisdiction 	to 	hear 	this 	unfair practice 	charge 	under 	the
Dills Act 	for the 	following reasons.
Government 	Code 	section 3513 	subdivision 	(c) 	of 	the Dills
Act 	defines 	"State 	employee" 	to 	exclude 	"managerial
employees, 	confidential employees, 	(and) 	supervisory
employees 	. . . " 	The 	charging parties 	hold 	job
classifications 	of 	either Correctional 	Captain, 	Correctional
Lieutenant, 	or Correctional 	Sergeant. 	These positions 	are
supervisory 	or managerial 	as 	provided by the 	Certification
of 	Representative between 	the 	State 	of 	California 	and the
Association, 	which excludes 	these 	classifications 	from the
bargaining unit. 	I 	faxed you a 	copy of 	this 	document 	on
June 19, 	1997. 	Since these employees are not protected by
the Dills Act, 	PERB may not 	hear this 	unfair practice 	charge
pursuant 	to 	that Act.
In addition, 	Government 	Code 	section 3514.5 	of 	the Dills Act
limits 	the 	filing of 	unfair practice 	charges 	to 	"any

SA-CO-197-S
Warning 	Letter
June 20, 	1997
Page 2
employee, 	employee organization, 	or employer 	. . . " 	Since
the 	charging parties 	are 	excluded 	from the 	definition of
"State Employee" 	under the Dills Act, 	they may not 	file 	this
charge.
The 	charging parties 	do 	fall 	under the protection 	of 	the
Excluded Employees 	Bill 	of Rights 	(EEBRA) 	at 	Government 	Code
section 3525. 	EEBRA covers 	"all 	managerial 	employees 	as
defined in subdivision 	(e) 	of Section 3513 	. 	. 	. 	and all
supervisory employees, 	as defined in subdivision 	(g) 	of
Section 	3513 	. . . " 	Since 	EEBRA contains 	no mechanism or
administrative 	agency 	for 	resolving 	disputes 	that 	occur
under its 	terms, 	PERB has no 	jurisdiction to hear a charge
brought under EEBRA. 	Accordingly, 	this 	charge must be
dismissed.
Before 	the passage of EEBRA, 	the Dills Act 	contained
statutory 	language 	which 	PERB 	interpreted 	to 	exclude
supervisors 	from the Act's protection. 	PERB 	held that 	"the
statutory 	scheme 	evidenced a 	legislative 	intent 	that
supervisors 	were 	to be 	excluded 	from 	PERB's 	jurisdiction 	and
that 	any vindication of 	supervisors' 	rights must 	be 	through
another 	forum." 	(California Department 	of 	Forestry 	(1980)
PERB Decision No. 	119-S, 	citing State of California,
Department of Health 	(1979) 	PERB Decision No. 	86-S).
Although 	the 	statutory 	language 	PERB 	was 	interpreting 	has
since been removed,. EEBRA contains 	no 	language which would
allow 	PERB 	to 	hear 	charges 	brought 	by 	supervisors 	or
managers.
An exception 	to 	the 	above 	rule may exist 	where 	the 	rights 	of
employees 	in 	the 	bargaining unit 	are 	injured by the 	union's
actions against 	the excluded employees. 	PERB stated: 	"An
employer's 	conduct 	against 	supervisors 	is 	generally not
grounds 	for an unfair practice charge. 	However, 	if 	there 	is
a 	reasonable 	inference 	that 	the 	conduct 	had an 	adverse
effect 	on nonsupervisory employees 	in 	the 	exercise 	of 	their
rights, 	an unfair practice 	charge will 	be entertained vis 	a
vis 	the nonsupervisory employee." 	(State of 	California,
Department of Health 	(1979) 	PERB Dec.No. 	86-S). 	This unfair
practice charge, 	however, 	makes no claim that 	the
Association's 	actions harmed the 	rights of 	anyone 	other than
the 	charging parties.
For these reasons the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there 	are any factual
inaccuracies 	in 	this 	letter or 	additional 	facts 	which would
correct 	the 	deficiencies 	explained above, 	please 	amend the
charge. 	The 	amended charge 	should be prepared on 	a 	standard

SA-C0-197-S
Warning 	Letter
June 20, 	1997
Page 3
PERB unfair practice 	charge 	form, 	clearly labeled 	First
Amended Charge, 	contain all 	the 	facts 	and allegations you
wish to make, 	and be 	signed under penalty of perjury by the
charging party. 	The 	amended charge 	must 	be 	served on 	the
respondent 	and 	the 	original 	proof 	of 	service 	must 	be 	filed
with PERB. 	If 	I 	do not 	receive 	an amended charge 	or
withdrawal 	from you before June 30, 	1997, 	I
shall 	dismiss your charge. 	If you have any questions,
please call me at 	(916) 	322-3198 ext. 	354.
Sincerely,
RUSSELL 	NAYMARK
Board Agent