State of California (Department of Corrections) (PERB 1308S)

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.
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) 	Case No. 	LA-CE-482-S
PERB Decision No. 	1308-S
January 	27, 	1999
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Appearance: 	Rudy E. 	Jansen, 	Attorney, 	for California
Correctional 	Peace Officers Association.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations Board 	(Board) 	on appeal by the California
Correctional Peace Officers Association 	(CCPOA) 	of a Board
agent's dismissal 	(attached) 	of 	its unfair practice charge. 	In
the charge, 	CCPOA alleged that the 	State of 	California
(Department of Corrections) 	(State) 	violated section 3519(d) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 by interfering with the
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state to do any
of the following:
(d) 	Dominate or 	interfere with the formation
or 	administration 	of 	any 	employee
organization, 	or contribute financial or
other 	support to 	it, 	or 	in any way encourage
employees 	to 	join 	any 	organization 	in
preference to 	another.
__)

administration 	of 	CCPOA.
The 	Board has 	reviewed the 	entire record 	in this 	case,
including CCPOA's unfair practice charge, 	the Board agent's
warning and dismissal 	letters 	and CCPOA's 	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
CCPOA and the 	State 	are parties 	to 	a 	collective 	bargaining
agreement 	(CBA) 	which was 	in effect at the time of the alleged
unlawful 	conduct 	in this 	case. 	Article 	5.03 	of that CBA
prohibits 	discrimination against 	employees 	and 	interference with
CCPOA because 	of 	their exercise 	of 	rights 	guaranteed by the 	Dills
Act, 	and provides that alleged violations 	of the provision are
subject to the 	contractual 	grievance 	and arbitration procedure.
The Board notes that, 	to the extent that CCPOA's charge describes
conduct 	by the 	State which 	constitutes 	allegations 	of
discrimination 	and 	interference 	prohibited 	by 	CBA Article 	5.03,
the 	charge must 	be 	dismissed 	and deferred to the 	contractual
grievance 	and 	arbitration procedure 	in 	accordance with the
standard described by the Board 	in Lake 	Elsinore 	School 	District
(1987) 	PERB Decision No. 	646 and State of California, 	Department
of Youth Authority 	(1989) 	PERB Decision No 749-S.
ORDER
The unfair practice charge 	in Case No. 	LA-CE-482-S 	is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer 	and Amador 	joined 	in this 	Decision.
2

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
October 28, 1998
Rudy E. Jansen
California Correctional 	Peace
Officers Association
10722 Arrow Route, 	Suite 316
Rancho Cucamonga, 	CA 	91730
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
California Correctional 	Peace Officers Association v. 	State
of California 	(Department of Corrections)
Unfair Practice Charge No. 	LA-CE-482-S
Dear Mr. Jansen:
The above-referenced unfair practice charge, 	filed July 7, 	1998,
alleges the State of California, 	Department of Corrections 	(State
or Department) 	denied union members representation during
personnel 	investigations. 	The California Correctional 	Peace
Officers Association 	(CCPOA) 	alleges this conduct violates
Government Code section 3519(d).
I indicated to you, in my attached letter dated October 13, 199 8,
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
October 20, 	1998, 	the charge would be dismissed.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my October 13, 	1998, 	letter.
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 of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later

Dismissal 	Letter
LA-CE-482-S
Page 2
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies of a statement 	in opposition within twenty 	(2 0) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 	8, 	sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy 	of 	a 	document 	served upon 	a 	party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a document
with the 	Board 	itself, 	must 	be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(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 of Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal 	Letter
LA-CE-482-S
Page 3
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 Kristin L. 	Rosi
Regional 	Attorney
Attachment
cc: 	Linda M. 	Nelson

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
PERD
October 13, 	1998
Rudy E. 	Jansen
California 	Correctional 	Peace
Officers 	Association
10722 Arrow Route, 	Suite 316
Rancho Cucamonga, 	CA 	91730
Re: 	WARNING LETTER
California Correctional 	Peace 	Officers Association v. 	State
of 	California 	(Department 	of 	Corrections)
Unfair Practice 	Charge No. 	LA-CE-482-S
Dear Mr. 	Jansen:
The above-referenced unfair practice charge, 	filed July 7, 	1998,
alleges 	the State of 	California, 	Department 	of 	Corrections 	(State
or Department) 	denied union members 	representation during
personnel 	investigations. 	The 	California Correctional 	Peace
Officers Association 	(CCPOA) 	alleges 	this 	conduct violates
Government Code section 3519(d).
Investigation of 	the 	charge 	revealed the 	following. 	CCPOA is 	the
exclusive 	representative 	of 	State Bargaining Unit 	6, 	which
includes 	Correctional 	Officers 	at 	the 	Chuckawalla Valley State
Prison 	(CVSP) 	in Blythe. 	The State and CCPOA are parties 	to a
collective bargaining agreement 	(Agreement) 	which expired on June
30, 	1998.1 Article 	5.03 	of 	the Agreement 	states 	in pertinent
part:
A. 	The State and the Union shall 	not 	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 	the
Ralph C. 	Dills Act.
1 The Agreement 	expiration date was 	later extended 	to July
10, 	1998. 	However, 	the extension of the expiration date has no
bearing on analysis 	of 	this 	charge.
@·
•

Warning 	Letter
LA-CE-482-S
Page 2
B. 	The 	State 	shall 	not 	impose 	or 	threaten 	to
impose 	reprisals on the Union, 	to
discriminate against 	the Union, 	or otherwise
to interfere with, 	restrain, 	or coerce the
Union because 	of 	the 	exercise 	of 	rights
guaranteed to it by the Ralph C. 	Dills Act.
C. 	The 	requested remedy 	for alleged
violations 	of 	this 	section shall 	be 	through
the 	grievance 	and arbitration procedure
contained 	in the MOU.
On May 6, 	1998, 	Officer Marques Jones, 	a CCPOA Board Member and
Job Steward, 	was 	ordered by 	the 	Department's 	Internal 	Affairs
Office 	(IA) 	to answer questions as a 	"witness" 	in an IA
investigation. 	The 	investigation 	apparently 	concerned 	Officer
John Flaharty, 	CCPOA Chapter President. 	Officer Jones 	was
questioned 	about 	Officer 	Flaharty 	statements 	made 	during 	a 	Union
meeting, 	the 	internal workings 	of 	CCPOA, 	and the 	relationship
between CCPOA and the 	administration at 	CVSP. 	Officer 	Jones 	was
not 	provided 	representation during 	this 	meeting.
On May 19, 	1998, 	Officer Flaharty was 	contacted by 	IA Agents
regarding 	the 	investigation. 	Officer Flaharty was 	also 	ordered
to report for questioning on May 22, 	1998. 	On May 22, 	1998,
Officer Flaharty 	received written notice 	of 	the 	scope 	of 	the
investigation. 	The Notice states as 	follows:
This 	inquiry 	is 	being 	conducted 	regarding
allegations 	that you, 	through threats and
intimidation, 	discouraged others 	from running
for president 	in CCPOA chapter elections 	at
CVSP; 	initiated 	"attacks" 	against
administrative 	staff 	at 	CVSP by placing
advertisements 	on a 	local 	television 	channel
and burned 	in effigy, 	dummy representations
of administrators; 	condoned 	"Battery on a
Peace Officer" 	by an 	inmate, 	and 	impeded 	the
investigative process 	by 	"telling" 	staff 	what
to 	say 	to 	investigators 	during an
investigation.
Additionally, 	it 	is alleged that 	over the
past 	two years, 	during CCPOA union meetings,
you 	have made 	racially 	charged 	and boastful
statements 	that 	offended people who were
present at 	the meetings.
CCPOA representatives 	and Officer 	Flaharty 	objected 	to 	the 	scope
of 	the 	investigation, 	stating 	that 	such 	inquiry 	interfered with
.

Warning 	Letter
LA-CE-482-S
Page 3
CCPOA's 	right 	to 	represent 	its members, 	and questioned Officer
Flaharty's 	protected activity. 	IA 	investigators 	stated 	they had
received 	an 	anonymous 	letter 	complaining 	about 	Officer 	Flaharty's
actions. 	CCPOA again objected 	to 	the 	investigation, 	and 	stated
that 	Officer 	Flaharty would answer questions 	only under 	threat 	of
losing his 	job.
On June 4, 	1998, 	Officer Dawn Baker, 	CCPOA Chapter Vice-
President, 	was 	ordered to report 	to 	IA investigators 	in
conjunction with 	the 	investigation 	of 	Officer 	Flaharty. 	Officer
Baker requested written notice 	of 	the 	charges 	against 	her, 	and
was 	informed 	that 	she was 	only a 	"witness." 	Officer 	Baker was
denied 	representation during 	this 	interview. 	Officer Baker was
questioned along 	the 	same 	lines 	as 	Officer Jones.
Based on the 	above 	stated facts, 	the 	charge 	as presently written,
fails 	to 	state 	a prima 	facie violation of 	Government 	Code 	section
3519(d), 	for the reasons provided below.
Government Code 	section 3519(d) 	states 	in its 	entirety:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:
(d) 	Dominate or 	interfere with the 	formation
or 	administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to 	join any 	organization 	in
preference 	to another.
The 	threshold 	test 	in analyzing 	such allegations 	is 	"whether 	the
employer's 	conduct 	tends 	to 	influence 	[free] 	choice 	or provide
stimulus 	in one 	direction or another." 	(Santa Monica 	Community
College District 	(1979) 	PERB Decision No. 	103.)
In the 	instant 	charge, 	CCPOA attempts 	to make an end 	run around
the 	contractual 	grievance procedure 	by alleging unlawful
domination. 	However, 	Government Code section 3519(d) 	does not
address 	interference 	with Union activities 	or discrimination
based on protected activities. 	Those 	allegations 	are 	properly
analyzed under Section 3519(a), 	(b) 	and 	(c). 	Government Code
section 3519(d) 	prohibits 	the 	State 	from interfering with 	the
formation or 	administration of 	any employee 	organization. 	It
does 	not 	prohibit 	the 	State 	from discriminating 	or 	interfering
with protected 	rights. 	CCPOA fails 	to present 	any 	facts
demonstrating 	the 	State urged 	employees 	to 	support 	another
employee 	organization 	or 	attempted 	to 	financially 	support 	another
employee organization. 	Moreover, 	CCPOA fails to provide any
support 	for 	its 	contention 	that 	questioning 	employees 	about 	their

Warning 	Letter
LA-CE-482-S
Page 4
union activities 	constitutes 	unlawful 	interference 	with 	the
administration of 	the union. 	As 	such, 	the 	charge 	fails 	to state
a prima 	facie 	case.
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 	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 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner of 	the 	charge 	form. 	The 	amended 	charge must 	be
served on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge or withdrawal 	from you before October 20. 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional 	Attorney