State of California (Department of Corrections) (PERB 1339S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
e
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SA-CE-917-S
PERB Decision No. 	1339-S
August 	3, 	1999
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Appearances: 	Michael D. 	Hersh, 	Attorney, 	for California State
Employees Association; 	State 	of 	California 	(Department 	of
Personnel Administration) 	by Roy J. 	Chastain, 	Labor Relations
Counsel, 	for State of California 	(Department of Corrections).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	by the 	State
of 	California 	(Department 	of 	Corrections) 	(State 	or Department)
to 	the proposed decision of 	a 	PERB administrative 	law judge
(ALJ). 	The ALJ found that 	the Department denied the California
State Employees Association 	(CSEA) 	the right of 	reasonable access
to 	its members' 	work areas and the 	right 	to use 	institutional
facilities 	for meetings 	in violation of 	section 3519(b) 	of 	the
Ralph C. 	Dills Act 	(Dills A c t ) 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 	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 	original 	and amended unfair practice 	charge, 	the
complaint, 	the proposed decision, 	the hearing transcript 	and the
filings 	of 	the parties. 	The Board affirms 	the ALJ's proposed
decision, 	in accordance with the following discussion.
BACKGROUND
The 	parties 	stipulated 	to 	CSEA being 	a 	recognized 	employee
organization and 	the 	Department 	being 	the 	state 	employer within
the meaning of 	section 3513.
The Central 	California Women's 	Facility 	(CCWF) 	is a State
correctional 	facility that 	houses 	female 	inmates. 	CSEA is 	the
exclusive 	representative 	for a number of 	bargaining units 	that
have members working at 	CCWF.
At various 	times 	since 	CCWF opened 	in early 	1990, 	CSEA Labor
Relations Representative Frank H. 	Pulido 	(Pulido) 	asked CCWF's
Employee Relations Officer, 	Celeste Landess 	(Landess), 	to permit
CSEA to use one of 	CCWF's 	"In Service Training" 	(1ST) 	classrooms
for 	the union's monthly meeting. 	The 	classrooms 	are 	located 	in
the administration building, 	outside 	the 	fenced security
perimeter of 	the prison. 	The most 	recent 	request was 	in October
1996.
Landess denied these 	requests, 	the effect 	of which was 	the
continuation of 	CSEA's meetings 	in the 	snack bar.
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Landless was 	acting under the direction of 	CCWF Warden Teena
Farmon who cited a February 1, 	1994, 	directive 	from Chief Deputy
Director R. 	H. 	Denninger as 	the basis 	for her decision.
Simultaneous with 	its 	denial 	to CSEA, 	CCWF permitted Merced
College, 	a local 	community college, 	to conduct 	classes 	in these
same 	rooms. 	These 	classes were open to all members 	of 	the
community, 	not 	just 	CCWF employees. 	The 	local blood bank and
several 	financial 	institutions 	were 	also permitted 	to utilize
these 	classrooms 	for various 	activities 	and presentations.
CSEA argues 	that being 	required 	to use 	the 	snack bar
severely hampered 	its 	ability 	to 	hold a private membership
meeting because 	the 	room is 	readily accessible 	to both
institutional 	employees 	and visitors 	during 	the meetings. 	There
is 	a 	fold-out 	divider that 	separates 	the meeting area 	from the
general population, 	but 	it does not provide a sound barrier. 	For
example, 	if a CSEA member were 	to comment about a particular
policy or 	supervisor during a meeting, 	the 	comment 	could be
overheard by 	the 	supervisor 	or 	other member of 	management 	outside
the divider. 	CSEA argued that 	this puts 	a 	severe 	limitation on
the 	level 	of 	candor at 	such meetings. 	According to the 	record, 	a
number of 	CSEA members 	told Job Steward Jess 	Beltran 	they would
not 	attend meetings 	if 	they 	continued 	to be held 	in 	the 	snack
bar.
On at 	least 	one occasion, 	there was 	evidence 	that a
Department 	representative 	intruded 	on a 	CSEA meeting. 	At 	the
hearing, 	Associate Warden Monty Frederick told of 	one 	occasion
w
	3

when he walked into 	the 	snack bar. 	He 	saw the 	fold-out 	divider
extended, 	and upon hearing a 	female voice 	coming 	from behind 	it,
he pulled it back to 	investigate. 	Once he 	saw that a CSEA
meeting was 	in progress, 	he 	repositioned the divider and left.
He 	stated that 	the 	reason he 	took this 	action was 	that 	female
inmates are 	responsible 	for cleaning the 	snack bar area, 	however,
they are 	not 	permitted behind 	the 	closed 	divider.
On January 20, 	1995, 	Pulido filed a grievance requesting
that 	CCWF 	"allow CSEA to 	conduct meetings with 	its members 	in a
private 	setting, 	at a time 	that 	is 	convenient 	for CCWF
employees." 	He 	cited 	contractual 	section 2.2 	as 	the provision he
believed CCWF violated. 	The 	grievance was 	denied at 	all 	levels,
culminating with a July 3, 	1995, 	letter from the Department's
Chief, 	Michael H. 	Jaime, 	Labor Relations Branch.
On December 4, 	1996, 	CSEA filed an unfair practice 	charge
against 	the Department. 	The 	charge alleged violations 	of Dills
Act section 3519(a) 	and 	(b). 	The Office of the General Counsel
of 	PERB, 	after an investigation of 	the charge, 	issued both a
partial 	dismissal 	and a complaint. 	After a formal 	hearing, 	the
ALJ issued a proposed decision on September 23, 	1998 	in which he
found the Department violated section 3519(b) 	of 	the Dills Act.
The allegations 	related to Dills Act 	section 3519(a) 	were
dismissed.
4
4

DISCUSSION
The 	issue before us 	is whether the 	State 	interfered with
rights 	guaranteed to 	CSEA under the Dills Act 	when 	it 	denied CSEA
access 	to 	classrooms 	for union purposes.
As 	the State points 	out 	in its 	exceptions, 	the text of 	the
Dills 	Act 	does 	not 	explicitly grant 	employee 	organizations 	a
right 	of 	access 	to the employer's property for purposes 	of
communication with members. 	Even absent 	statutory authorization,
it 	is 	well 	established 	in 	federal 	cases 	that 	employee
organizations may 	in 	some 	circumstances 	gain access 	rights 	to an
employer's property. 	(NLRB v. 	Babcock & Wilcox Co. 	(1956) 	351
U.S. 	105 	[38 	LRRM 2001].) 	Such access 	rights become available 	in
two circumstances: 	(1) 	when the usual means 	of 	communication are
ineffective or unreasonably difficult, 	or 	(2) 	when the employer's
prohibition on access 	is 	discriminatory on 	its 	face 	or as
applied. 	This 	rule has been adopted by the 	PERB. 	(See State 	of
California 	(Department of Transportation, 	et al.) 	(1981) 	PERB
Decision No. 	159b-S 	(Transportation); 	Sierra Sands Unified School
District 	(1993) 	PERB Decision No. 	977; 	State of California
(Departments of Personnel Administration, 	et al.) 	(1998) 	PERB
Decision No. 	1279-S 	(DPA).)2 The burden of proof 	in meeting this
requirement 	is 	on the 	charging party.
2In DPA, 	the Board held that various 	State departments
violated 	the 	Dills 	Act 	when 	they applied policies 	regarding use
of 	the 	State's 	e-mail 	system in a discriminatory manner. 	The
violation was 	based on the 	fact 	that 	the 	State 	tolerated minimal
and 	incidental 	use 	of 	State 	e-mail 	for personal 	(non-union)
communication by employees, 	but prohibited all 	use 	of 	State
e-mail 	for 	communication 	regarding union matters.
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The 	challenged conduct 	in 	this 	case 	is 	the Department's
application of a 1994 departmental directive, 	which states, 	in
pertinent part:
Institutions 	are 	instructed 	to 	restrict
access 	for bona 	fide 	employee 	organization
representatives 	to 	only 	those 	areas 	and
during 	those hours 	that 	you would normally
allow access 	to members 	of 	the public 	or
public businesses. 	This may 	include areas
such as 	the 	employee parking 	lot 	or outside
the 	entrance gate 	or any other similar area
when 	that 	area 	is 	outside 	of 	the
institution's 	security perimeter.
Applying the Transportation test 	in the case at bar, 	we
analyze whether 	the 	State's prohibition on access 	is
discriminatory on its 	face or as applied. 	In cases 	involving
allegedly discriminatory access 	rules, 	the Board analyzes 	the
employer's 	rule 	as 	a potential 	interference with employee
exercise 	of protected rights.
To 	establish unlawful 	interference with protected 	rights,
the 	charging party must 	first 	make 	a prima 	facie 	showing 	that 	the
employer's 	conduct 	tends 	to or does 	result 	in some harm to
protected rights. 	Where 	the harm to employee 	rights 	is 	slight,
and 	the 	employer offers 	justification based on operational
necessity, 	the 	interests 	of 	the 	employer and the rights 	of
employees 	will 	be 	balanced 	and 	the 	charge 	resolved 	accordingly.
Where harm to protected 	rights 	is 	inherently destructive, 	the
employer's 	conduct will 	be 	excused only on proof 	that 	it was
occasioned by 	circumstances 	beyond 	the 	employer's 	control 	and
that no alternative 	course 	of 	action was available. 	(Carlsbad
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Unified School District 	(19 79) 	PERB Decision No. 	89, 	pp. 	10-11;
see also, 	Novato Unified School District 	(1982) 	PERB Decision
No. 	210.) 	In an interference case, 	it 	is not necessary for the
charging 	party 	to 	show 	that 	the 	respondent 	acted with an unlawful
motivation. 	(Regents 	of 	the University of California 	(1983) 	PERB
Decision No. 	305-H.)
Considering the Department's policy on its 	face, 	the 	intent
is 	for the Department 	to permit 	substantially the 	same 	type 	of
access 	to 	employee 	organization representatives 	that 	it 	"normally
allows" 	to members 	of the public or public businesses. 	Under the
plain meaning of 	the words used, 	we 	cannot 	conclude 	that 	this
policy 	interferes 	with or 	tends 	to 	interfere with protected
rights.
The 	remaining question 	is whether the directive, 	as 	applied,
constitutes 	an 	interference with protected rights. 	The 	evidence
establishes 	that 	the Department made 	its 	1ST classrooms 	available
to groups 	other than CSEA for non-business purposes, 	such as a
blood bank. 	Department management knew of such use, 	since 	they
approved 	the use 	of 	the 	classrooms 	for these purposes.
During the 	same 	time period, 	when presented with requests by
CSEA to use 	the 	same 	classrooms 	for non-State business purposes,
the 	Department 	refused.
We 	conclude 	that 	the Department's 	application of 	its 	1994
directive 	to prohibit union access 	to 	the 	1ST classrooms meets 	at
least 	the 	"slight" 	harm element 	of 	the Carlsbad test. 	Even
though CSEA has 	other means 	of 	communicating with 	its members,
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the 	lack 	of 	a private meeting 	room at 	least 	slightly hinders 	it
in doing 	so.3 As noted above, 	the 	record tends 	to support
CSEA's 	assertion 	that 	the 	quality of membership meetings 	is
diminished by 	the 	prospect 	of management 	representatives'
overhearing 	conversation.
The burden thus 	shifts 	to 	the 	State 	to demonstrate a
justification 	for 	its 	discriminatory application of 	the
directive. 	Rather 	than presenting a vigorous 	defense 	on the
grounds 	of 	operational necessity, 	the State's main argument
appears 	to be 	that 	the other entities were 	"invited" 	to use 	the
classrooms, 	whereas CSEA was not.
The 	State's 	argument misses 	the point 	and 	ignores 	the main
issue; 	i.e., 	whether the State refused CSEA access 	to the
classrooms because 	it was 	CSEA seeking 	to 	conduct 	a private
meeting with its members. 	The 	issue 	is not what 	the State's
motive 	or purpose was 	in allowing others 	to use 	the 	same 	rooms.
It 	is 	certainly true 	that 	the State has no obligation to 	"invite"
CSEA to use State property for union meetings. 	However, 	it would
be 	absurd 	to 	rule 	that 	the 	State may discriminate with 	impunity
by 	endlessly 	"refraining 	from 	inviting" 	CSEA to use 	the
classrooms. 	The State cites no case, 	and we are aware of none,
in which a union's 	"lack of 	invitee" 	status 	insulates 	the State
employer 	from its 	obligations under Dills Act section 3519(b).
3Based on the 	facts 	presented, 	we 	do not 	conclude 	that 	the
Department's 	conduct 	was 	inherently destructive 	of 	protected
rights.
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The 	State 	has 	not 	explained why 	some 	requestors 	are
permitted access 	to 	the 	classrooms 	and CSEA is 	not. 	Lacking 	such
an explanation, 	it appears 	that 	the State makes 	the distinction
solely based 	on 	the 	identity 	of 	the 	requestor 	coupled with 	the
purpose 	for the meeting, 	and not based on legitimate 	operational
concerns 	such as 	scheduling 	conflicts 	or physical 	limitations 	of
the 	facility.
We 	conclude 	that 	the 	Department 	interfered with 	CSEA and 	its
members 	by applying 	its 	1994 	directive 	in a 	discriminatory
manner, 	in violation of Dills Act section 3519(a) 	and 	(b),4,5
The 	State's 	request 	for oral 	argument 	is 	denied.
ORDER
Based on 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) 	(State 	or Department)
violated the Ralph C. 	Dills Act 	(Dills Act), 	Government Code
section 3519(a) 	and 	(b) 	when it discriminatorily applied a policy
in a way 	that 	prohibits 	the 	California 	State 	Employees
Association 	(CSEA) 	use of particular 	classrooms while permitting
other 	organizations 	to use 	the 	same 	classrooms 	for non-business
*We affirm the ALJ's 	conclusion that 	the 	charge 	is 	timely
filed. 	Despite 	the 	fact 	that 	CSEA filed a grievance 	involving
the disputed conduct 	in 1995, 	the 	charge 	clearly alleges unlawful
conduct 	occurring within six months prior to the date 	of 	the
charge.
5We also affirm the ALJ's 	conclusion that 	the 	charge 	is 	not
deferrable 	to 	the parties' 	binding arbitration procedure. 	CSEA's
charge 	involves 	resolution of 	issues beyond the 	scope of 	the
parties' 	expired contract.
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purposes. 	These 	discriminatory actions 	interfered with the
rights 	of 	employees 	to participate 	in the activities 	of 	employee
organizations 	and 	the 	right 	of 	CSEA to 	communicate with 	its
members.
Pursuant to Dills Act 	3514.5(c), 	it 	is hereby ORDERED that
the State, 	its administrators and representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminatorily prohibiting 	CSEA members 	employed
in 	the Department 	at 	the 	Central 	California Women's 	Facility
(CCWF) 	from meeting 	in the 	In Service Training 	classrooms 	for
employee 	organization meetings;
2. 	Discriminatorily prohibiting 	CSEA 	from using 	CCWF
facilities 	for employee organization business; 	and
3. 	Denying CSEA the 	right 	to 	represent 	its members.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
l. 	Within ten days 	following 	the date 	this Decision
is 	no 	longer subject 	to appeal, 	post at 	CCWF> 	where notices are
customarily placed 	for CSEA represented employees, 	copies 	of 	the
notice attached hereto as 	an Appendix. 	The notice must be 	signed
by an authorized agent 	of 	the Department, 	indicating 	that 	it 	will
comply 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.
10

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. 	Continue to report, 	in
writing, 	to the regional 	director thereafter as 	directed. 	All
reports 	to 	the 	regional 	director 	shall 	be 	concurrently served 	on
CSEA.
It 	is 	further Ordered that all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Member Dyer 	joined 	in this 	Decision.
Chairman Caffrey's 	concurrence begins on p. 	12.
11

CAFFREY, 	Chairman, 	concurring: 	I agree with the majority
that 	the 	State of 	California 	(Department 	of 	Corrections) 	(State
or Department) 	violated section 3519(a) 	and 	(b) 	of 	the Ralph C.
Dills Act 	(Dills Act) 	when it denied the California State
Employees Association 	(CSEA) 	and its members 	access 	to a private
setting 	in which to 	conduct meetings.
I write 	separately 	to 	emphasize 	the policy 	of 	the 	Public
Employment Relations 	Board 	(PERB or Board) 	with regard to union
access 	rights under the Dills Act. 	PERB 	recently adopted the
proposed 	decision authored by 	its 	Chief Administrative 	Law Judge
which 	clearly described Board policy 	in this 	area. 	(State 	of
California 	(Departments 	of 	Personnel Administration. 	Banking.
Transportation. 	Water Resources and Board of Equalization) 	(1998)
PERB Decision No. 	1279-S 	(DPA).) 	It 	is 	the policy enunciated in
DPA which must 	be applied 	to 	determine 	if 	a Dills Act violation
occurred 	in this 	case.
The Dills Act 	contains 	no 	expressed provision granting work
site access 	to employee organizations, 	unlike the Educational
Employment Relations Act 	(EERA) 	and the Higher Education
Employer-Employee Relations Act 	(HEERA), 	the other statutes
administered by PERB. 	Despite 	the 	statutory differences,
however, 	the Board has found "a right of access 	. 	. 	. 	implicit in
the purpose and 	intent" 	of 	the Dills Act. 	(State 	of 	California
(California Department of Corrections) 	(1980) 	PERB Decision
No. 	127-S.) 	Within the right of access 	is a protected right 	of
employee 	organizations 	to 	communicate with employees 	at 	the 	work
12

site. 	(See State of 	California. 	California Department of
Transportation, 	and Governor's 	Office 	of 	Employee Relations
(1981) 	PERB Decision No. 	159b-S, 	p. 	18 	(Department of
Transportation).) 	The Dills Act 	also 	contains 	no provision
explicitly granting 	employee 	organizations 	the 	right 	to use 	the
state's 	facilities 	for union meetings. 	By contrast, 	the EERA and
HEERA provide 	employee 	organizations 	the 	statutory 	right 	"to use
institutional 	facilities 	at 	reasonable 	times 	for 	the purpose 	of
meetings 	concerned with 	the 	exercise 	of 	rights" 	guaranteed by
those statutes 	(EERA sec. 	3543.1; 	HEERA sec. 	3568).
PERB may not 	overlook textual 	differences 	among 	the 	three
collective bargaining laws 	it 	administers 	in an attempt 	to make
all 	three statutes 	identical. 	Differences among the 	three 	PERB-
administered statutes must be 	recognized, 	even where 	this 	leads
to different 	results under each statute. 	(See Regents 	of
University of 	California v. 	Public 	Employment 	Relations 	Bd.
(1985) 	168 Cal.App.3d 937 	[214 Cal.Rptr. 	698].)
If 	employees 	or employee 	organizations 	have a right 	to use
state 	facilities 	to conduct union meetings, 	that right 	is not
expressed in the Dills Act. 	However, 	even absent 	expressed
statutory authorization, 	it 	is well 	established in federal 	cases
that 	employee 	organizations may 	in 	some 	circumstances 	gain access
rights 	to an employer's property. 	(NLRB v. 	Babcock & Wilcox Co.
(1956) 	351 U.S. 	105 	[38 LRRM 2001].) 	Such access 	rights become
available in two circumstances: 	(1) 	the usual means of
communication are 	ineffective 	or unreasonably difficult; 	or
13

(2) 	the employer's prohibition on access 	is discriminatory on its
face or as applied. 	This 	rule has been adopted by PERB. 	(DPA;
Department 	of 	Transportation; 	Sierra Sands Unified School
District 	(1993) 	PERB Decision No. 	977.)
In access 	cases 	arising under 	the 	EERA and HEERA, 	the Board
has 	applied a 	"reasonableness" 	standard because 	those 	statutes
provide 	for union access 	and use 	of 	facilities 	subject 	to
reasonable 	regulation. 	Therefore, 	under EERA and HEERA an
employer must 	justify 	its 	regulation of 	those 	rights 	by 	showing
that 	it 	is 	reasonable. 	But 	even under the explicit access
provisions 	of 	EERA and HEERA, 	an employer 	is not 	obligated to
provide 	a union access 	to 	every possible means 	of 	communication.
In Regents 	of University of 	California v. 	Public 	Employment
Relations Bd. 	(1986) 	177 Cal.App.3d 648 	[223 Cal.Rptr. 	127], 	the
court 	observed:
It 	is unreasonable 	to assume 	the 	Legislature
intended 	that 	the 	University 	could 	reserve 	no
forms 	of 	communication 	for official
University communications 	only, 	and that 	the
University would have 	to provide 	to 	the Union
access 	to every other means 	of 	communication.
(Id. 	at 654; 	emphasis in original.)
-
Since 	there 	is 	no statutory right 	of 	access 	or use 	of
facilities under the Dills Act, 	the 	standard in assessing alleged
unlawful 	conduct 	in this 	area 	is not 	the 	"reasonableness" 	of 	the
state employer's policies. 	The Dills Act 	rule, 	like the 	federal
rule, 	is whether the means 	of 	communication are 	ineffective 	or
unreasonably difficult, 	or the State's prohibition on access 	is
14

discriminatory on 	its 	face 	or as applied. 	The burden of proof 	in
meeting 	this 	requirement 	is 	on 	the 	charging party.
Applying this 	standard to the 	case at bar, 	I 	conclude 	that
it 	has been demonstrated 	that 	the 	denial 	of 	access 	to a private
setting 	for employees 	to meet 	with CSEA resulted 	in an
ineffective 	or unreasonably difficult means 	of 	communication. 	As
a result, 	the State's denial 	of 	that access 	constitutes a
violation of Dills Act section 3519(a) 	and 	(b).
This 	conclusion 	is based largely on the 	fact 	that 	the
specific 	work 	setting presented by 	this 	case 	is 	a 	state
correctional 	facility - 	a prison. 	In this setting, 	the
requirement 	that 	employees 	and 	their union 	representatives
conduct meetings 	in the 	corner of 	a 	snack 	room within the 	sight
and hearing of other employees, 	supervisors and managers, 	and
even certain inmates, 	renders 	this means of 	communication
unreasonably 	difficult.
I 	also note 	that 	the unfair practice 	charge 	in this 	case
includes 	allegations 	of violations 	affecting members 	of 	State
Bargaining Unit 	3, 	Institutional 	Educators and Librarians,
represented by CSEA. 	It 	is 	interesting to note 	that 	the Unit 	3
collective bargaining agreement 	(CBA) 	between the parties, 	which
had a term of November 1, 	1992 	through June 30, 	1995, 	and their
interim CBA having a term of March 4, 	1999 	through June 	30, 	1999,
address access 	in high security settings, 	and appear to
15

anticipate 	the very 	circumstances presented by this 	case. 	In
both CBAs, 	Article 2.2 	(Access) 	states, 	in pertinent part:1
The 	department 	head 	or designee may 	restrict
access 	to 	certain work sites 	or areas 	for
reasons of safety, 	security, 	or patient 	care
including patient privacy; 	however, 	where
access 	is 	restricted, 	other reasonable
accommodations 	shall be made. 	The State will
endeavor 	to provide 	the 	representative 	and
employee(s) 	a 	location removed 	from the 	sight
and hearing range 	of 	other employees.
(Emphasis 	added.)
- -
This 	CBA language 	acknowledges 	the 	need 	for security and
restricted access 	in certain institutional 	settings, 	but 	it also
recognizes 	the 	need 	for accommodations 	where 	restrictions 	are 	in
place. 	It 	specifically describes 	an accommodation under which
the 	State provides 	a private 	location 	in which employees 	and
their union representatives may meet. 	Again, 	the denial 	of 	such
a private 	setting 	results 	in an unreasonably difficult means 	of
communication.
I 	must 	also briefly 	express 	my disagreement 	with 	the
majority's 	application of 	the Board's Dills Act 	access policy in
this 	case. 	Under the policy described in DPA, 	the majority
concludes 	that 	the 	State's 	access policy was applied
discriminatorily and, 	therefore, 	violated the Dills Act. 	The
Board made 	such a 	finding 	in DPA based 	on very 	clear 	evidence 	of
-
This 	language 	is 	from the 	1992-1995 	CBA as 	referenced 	in
the March 5, 	1997, 	warning letter issued by a Board agent 	in this
case. 	The Board may take official 	notice 	of 	the 	terms 	of a CBA
filed with PERB pursuant 	to PERB Regulation 32120 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	31001 et seq.). 	(State of California
(Department 	of 	Forestry and Fire Protection) 	(1993) 	PERB Decision
No. 	999-S.)
16

discriminatory 	conduct, 	including 	a written policy allowing
incidental 	employee use 	of 	the 	employer's 	e-mail 	system for
various non-business purposes, 	provided those purposes were not
related 	to any employee 	organization activity. 	In my view, 	the
evidence 	in the 	instant 	case 	falls 	short 	of 	this 	type of
undisputed showing of discriminatory conduct. 	Here, 	the State's
approval 	of 	a private meeting 	setting 	involving 	any non-state
entity was 	infrequent 	and 	related 	to 	activities 	conducted under
the 	imprimatur of 	the employer, 	such as 	a blood drive 	or 	college
class 	offering for employees. 	Further, 	the State's written
policy 	is 	not 	discriminatory 	toward employee 	organization access.
These 	facts 	do not 	approach 	the 	clear 	showing 	of 	discriminatory
conduct 	found in DPA, 	and 	I am concerned that 	the majority's
finding 	represents 	a departure 	from the Dills Act 	access 	policy
which was 	so 	carefully 	crafted 	in 	that 	decision.
17

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
e
After a hearing in Unfair Practice Case No. 	SA-CE-917-S,
California State 	Employees 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) 	(State or Department) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(a)
and 	(b) 	when it 	discriminatorily applied a policy in a way that
prohibits 	the 	California State 	Employees Association 	(CSEA) 	use
of 	particular 	classrooms 	while permitting 	other organizations 	to
use 	the 	same 	classrooms 	for non-business purposes. 	These
discriminatory actions 	interfered with 	the 	rights 	of 	employees 	to
participate 	in 	the 	activities 	of 	employee 	organizations 	and 	the
right 	of 	CSEA to 	communicate with its members.
As a result 	of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminatorily prohibiting 	CSEA members 	employed
in the Department 	at 	the 	Central 	California Women's 	Facility
(CCWF) 	from meeting 	in the 	In Service Training 	classrooms 	for
employee 	organization meetings;
2. 	Discriminatorily prohibiting 	CSEA 	from using 	CCWF
facilities 	for employee organization business; 	and
3. 	Denying CSEA the 	right 	to represent 	its members.
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 WITH
ANY 	OTHER MATERIAL.