California State Employees Association (Hutchinson) (PERB 1368S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JIM HARD, 	CATHY HACKETT AND 	IRMA
REVELES,
Charging Parties,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-208-S
PERB Decision No. 	1368-S
December 21, 	1999
LYDIA RAMIREZ,
Charging 	Party,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-200-S
JOYCE 	FOX,
Charging 	Party,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-203-S
Appearances: 	Cathy Hackett 	for Jim Hard, 	Cathy Hackett, 	Irma
Reveles, 	Lydia Ramirez and Joyce Fox; 	Michael P. 	White, 	Attorney,
for 	California 	State 	Employees Association.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
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Cathy Hackett 	(Hackett) 	to a proposed decision by a 	PERB
administrative law judge 	(ALJ). 	In the proposed decision, 	the
ALJ considered three 	consolidated cases: 	Case No. 	SA-CO-200-S;
Case No. 	SA-CO-203-S; 	and Case No. 	SA-CO-208-S. 	The ALJ
dismissed the 	three 	cases, 	concluding 	that 	the 	California State
Employees Association 	(CSEA or Association) 	did not violate 	the
Ralph C. 	Dills Act 	(Dills Act) 	section 3519.S(b).1
PROCEDURAL 	HISTORY
These 	consolidated 	cases 	arise 	from CSEA's 	effort 	to
prohibit 	internal 	union political 	activities 	by 	CSEA employees
who 	take 	a temporary leave 	of 	absence 	from the State 	of
California 	(State) 	to work for CSEA as 	organizers. 	In two of 	the
cases 	it 	is 	alleged that 	the State 	employees who became 	temporary
CSEA employees 	were 	terminated 	in 	retaliation 	for 	their political
activities within CSEA. 	In the 	third case, 	the alleged unlawful
conduct 	came 	in 	the 	form of 	a 	requirement 	that 	CSEA employees
agree 	in writing 	to 	refrain 	from internal 	CSEA political 	activity
as 	a 	condition of 	securing 	temporary employment with CSEA. 	It 	is
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
part, that:
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.
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alleged that 	CSEA, 	by this 	conduct, 	interfered with protected
rights 	and 	discriminated against 	those 	employees 	for 	their
exercise 	of protected conduct.
In response, 	CSEA contends 	the 	individuals are not State
employees 	and thus 	PERB has 	no 	jurisdiction over these 	charges.
Alternatively, 	CSEA argues 	that 	its prohibition against political
activity was 	reasonable 	and did not 	interfere with protected
rights 	or discriminate against 	employees 	for their protected
conduct.
BACKGROUND
Lydia Ramirez 	(Ramirez) 	filed the unfair practice 	charge 	in
Case No. 	SA-CO-200-S against CSEA on October 16, 	1997. 	Joyce Fox
(Fox) 	filed the unfair practice 	charge in Case No. 	SA-CO-203-S
against 	CSEA on October 29, 	1997. 	These 	charges allege that 	CSEA
terminated Ramirez 	and Fox 	from their 	temporary positions 	with
CSEA, 	in retaliation for their protected activities.
The 	PERB General 	Counsel's 	Office 	issued 	complaints 	in 	these
companion cases on March 19, 	1998. 	Specifically, 	the complaints
allege 	that 	Ramirez 	and 	Fox engaged 	in protected activities 	in
support 	of 	a group 	seeking 	to 	reform CSEA, 	and that 	CSEA
terminated 	their 	temporary 	employment 	because 	they 	engaged 	in
that conduct, 	in violation of 	the Dills Act.
Jim Hard 	(Hard), 	Hackett and Irma Reveles 	(Reveles) 	filed
the unfair practice 	charge against 	CSEA in Case No. 	SA-CO-208-S
on March 31, 	1998. 	The PERB General 	Counsel's Office 	issued a
complaint on May 11, 	1998. 	As amended at the hearing, 	the
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complaint alleges 	that 	the 	charging parties 	engaged 	in protected
activities 	in support 	of 	a 	reform movement within CSEA, 	and CSEA
later 	imposed a 	requirement 	that 	employees who 	take a leave 	of
absence 	from State 	service 	to accept 	a 	temporary position with
CSEA agree 	in writing that 	they will 	not 	engage 	in 	internal 	union
political 	activity. 	The 	complaint 	alleges 	that 	CSEA took this
action 	in retaliation for charging parties' 	protected activities
on behalf 	of 	the 	reform group and 	that 	the 	requirement 	interferes
with protected conduct, 	in violation of Dills Act 	section
3519.5(b).2
FINDINGS 	OF 	FACT
Historically, 	there have been two types 	of 	leave available
to 	State 	employees 	who 	leave 	State 	service 	temporarily to work
for CSEA: 	union leave and so-called 	"lost 	time." 	Union leave
typically was 	granted under memoranda 	of 	understanding 	(MOU)
between CSEA and 	the 	State. 	An employee 	on union 	leave 	continued
to 	receive pay and benefits 	from the 	State, 	and CSEA reimbursed
the 	State. 	With 	the 	expiration of MOUs between CSEA and the
State 	in 1995, 	union leave was 	discontinued and leave of 	absence
from the 	State 	on 	"lost 	time" 	became 	the primary vehicle
available 	to 	employees who 	elected 	to work 	for CSEA on a
temporary basis. 	Employees 	on leave 	of absence retain a
2At 	the hearing, 	charging parties withdrew allegations
concerning a 	series 	of 	allegedly unlawful 	CSEA actions 	affecting
internal 	union realignments 	and elections. 	The allegations were
withdrawn on 	the 	heels 	of 	a 	superior 	court 	decision addressing
the same subjects. 	(See Hard, 	et al. 	v. 	California State
Employees Association. 	Superior Court 	of California, 	County of
Sacramento, 	Case No. 	98CS01045.)
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mandatory right 	of 	return to 	their State 	jobs 	upon completion of
the approved leave. 	During the lost 	time appointment, 	these
employees 	are paid directly by CSEA; 	hence 	the 	term lost 	time.
"Lost 	timers" 	remain CSEA members 	and 	continue 	to pay dues.
CSEA's Civil Service Division 	(CSD) 	Policy File, 	section
11CSD3.04, provides:
An 	employee 	serving 	in a 	lost-time 	capacity
shall 	be 	restricted 	from Association politics
in the 	same manner as 	the headquarters 	staff.
Members 	on lost-time 	status 	shall 	not violate
the written terms 	of 	any agreement between
CSEA and the 	exclusive bargaining agent 	of
CSEA staff.
In addition, 	CSD Policy File, 	section 11CSD3.00, 	provides that
"lost 	time 	is 	for the purpose 	of performing work within 	the
normal 	range 	of duties of 	staff."
Employees who accept a 	lost 	time appointment perform a
variety of 	tasks 	for CSEA, 	including setting up meetings,
coordinating phone banks, 	distributing literature, 	organizing
rallies, 	and participating in membership drives. 	By comparison,
labor 	relations 	representatives 	(LRRs) 	who usually hold permanent
staff 	positions 	with CSEA have 	a primary 	responsibility 	for
representational duties.3 However, 	it 	is not uncommon for the
duties 	of 	LRRs and lost 	timers 	to overlap: 	LRRs 	sometimes
perform organizational 	activities 	and 	lost 	timers 	occasionally
engage 	in representational 	activities 	of 	a minor nature.
3CSEA LRRs 	are 	represented on an exclusive basis 	by 	the
United Automobile Workers 	(UAW).
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On August 16, 	1996, 	then CSEA General Manager, 	Robert Zenz
(Zenz) 	issued a memo to 	"All 	CSEA Staff and Lost Timers" 	with the
subject 	"Involvement 	in Association 	Politics." 	Zenz 	reminded
CSEA staff 	that 	"their 	involvement 	in Association politics 	is
prohibited by 	long 	standing practice 	and by 	the 	terms 	of 	the
UAW/CSEA agreement." 	Specifically, 	Zenz wrote:
1. 	No 	staff 	employee may render any service
related 	to 	the 	selection 	of 	a particular
member 	for an elective Association office,
without 	regard to whether such service 	is 	on
CSEA time or the employee's 	own time; 	whether
compensated 	or 	uncompensated.
2. 	No 	staff 	employee may directly or
indirectly use 	or promise 	to use any
authority or 	influence 	to 	secure 	for any
member an 	elective Association office.
3. 	No 	staff 	employee 	shall make any
contribution of money 	or anything 	of 	value
for 	the 	support 	of 	any 	candidate 	for CSEA
office.
Regarding lost timers, 	Zenz wrote:
All 	lost 	timers 	are 	also 	reminded 	that
involvement 	in Association politics 	during
working hours 	is 	a misuse 	of Association
money and may be 	cause 	for 	corrective 	action
up 	to and 	including 	early 	termination of 	the
lost 	time 	appointment.
Hence, 	the prohibition against 	staff 	and lost 	timer 	involvement
in Association politics preceded the 	instant 	charges.
Charging parties 	in 	these 	consolidated 	cases 	are 	supporters
of 	Caucus 	for a Democratic Union 	(CDU). 	Hard has been the
director of 	the CSD since October 1996, 	and he 	is 	the 	former
statewide 	coordinator of 	CDU. 	According to Hard, 	CDU is 	trying
to make 	structural 	changes within CSEA. 	Adrienne Suffin
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(Suffin), 	a CSEA member who works 	for the Employment Development
Department 	(EDD) 	and is 	the statewide 	coordinator of 	CDU
described CDU as 	a 	"reform movement" 	within CSEA that 	is 	working
to 	change 	the union. 	Hackett 	is 	the CSD deputy director of
finance and a long time 	CDU activist, 	as are charging parties
Fox, 	Ramirez and Reveles.
Ramirez 	had been 	terminated 	from her State 	position with 	the
State Teachers 	Retirement 	System 	(STRS) 	and was unemployed at 	the
time 	she was 	hired by Hackett 	as 	a 	lost 	timer. 	Ramirez 	filed
three unfair practice 	charges, 	claiming 	that her 	termination was
in retaliation 	for her protected union activities. 	At 	the 	time
of 	the hearing 	in this matter, 	Ramirez's appeal 	of her
termination was pending.
Ramirez 	worked 28-40 	hours per week as 	a 	lost 	timer 	from
July 1997 until 	her termination by CSEA in November 1997. 	As a
lost 	timer, 	she performed organizing duties 	such as phone-banking
and distributing leaflets. 	Most 	of her work was 	related to
CSEA's 	campaign 	to 	secure 	new 	collective 	bargaining 	agreements
with the State. 	However, 	Ramirez also worked for CSEA on the
"Save 	the Dream" 	project, 	which 	included participation by
national 	leaders and culminated with a rally on October 27, 	1997,
for better jobs, 	education, 	health care and equal 	opportunity.
While 	she was a lost 	timer, 	Ramirez also attended CDU meetings,
recruited CDU members, 	distributed literature on behalf 	of 	CDU,
wore 	CDU T-shirts 	and protested on behalf 	of 	CDU at 	CSEA board of
directors meetings.
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Fox 	is 	a CSEA member and the Sacramento 	coordinator of 	CDU.
She was 	hired by Hackett 	as 	a 	lost 	timer at 	the 	time 	she was 	an
office technician in the Department 	of Consumer Affairs. 	Fox
worked as 	a 	lost 	timer 	on a 	full-time 	and part-time basis 	from
February 	1997 	until 	she was 	terminated by CSEA in October 	1997.
As 	a 	lost 	timer, 	Fox focused on the 	CSEA campaign for new
collective bargaining agreements. 	Phone banking was 	her main
assignment, 	including calling 	employees 	to encourage 	them to
become involved in CSEA, 	attend rallies, 	and recruit members.
During her tenure as 	a lost 	timer, 	Fox also participated 	in
events that 	involved CDU. 	At a May 14, 	1997, 	lunch time rally
for State 	employees 	at 	the Department 	of 	Personnel Administration
(DPA), 	Fox distributed CDU literature advocating the reform of
CSEA. 	She 	engaged 	in similar conduct 	at 	a State 	Capitol 	rally on
June 27, 	1997, 	while wearing a CDU T-shirt. 	At a CSEA meeting
during the weekend of September 27, 	1997, 	Fox arrived wearing a
CDU T-shirt 	and button. 	She 	tried 	to gain entry to 	the meeting,
but was 	told that 	it was 	an executive 	session and was 	not
admitted. 	Eventually, 	she was 	escorted away by security. 	During
the discussion, 	Fox testified, 	CSEA officials made negative
remarks 	about 	CDU. 	At a CSEA executive board meeting on the
weekend of October 5-6, 	1997, 	Fox, 	Ramirez, 	and other CDU
activists 	distributed CDU literature 	and buttons.
These 	CDU activities 	occurred either during a 	lunch hour, 	an
evening, 	or on a weekend. 	Thus, 	Fox was of the opinion that her
participation was 	on her own time, 	not 	that 	of 	CSEA. 	She 	said
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her schedule 	as 	a 	lost 	timer was 	flexible 	and 	she was permitted
to 	satisfy her 	eight 	hour per day 	commitment by working 	into 	the
evening 	on days 	she 	spent 	participating 	in CDU activities 	during
the day.
The duties 	of Ramirez 	and Fox are 	typical 	of 	those performed
by others who held similar positions. 	For example, 	while on
leave 	of 	absence 	from her job at 	EDD, 	Suffin worked as 	an
organizer 	for CSEA. 	She 	received 	training 	from CSEA and 	the
Service 	Employees 	International Union, 	the union with which CSEA
is 	affiliated. 	One 	of 	the main 	issues 	around which Suffin's
organizing 	took place was 	CSEA's 	effort 	to 	secure 	new 	contracts
with the 	State. 	She 	said she 	tried to 	recruit 	leaders at work
sites, 	held union meetings and distributed flyers. 	Suffin's
testimony suggests 	there was 	some 	overlap between her duties 	and
those of 	a LRR. 	As noted earlier, 	CSEA LRRs have 	the primary
responsibility for representational 	functions. 	However, 	Suffin
said 	she 	has 	counselled employees 	in a 	representational 	capacity
before 	referring 	them to a 	CSEA LRR. 	And CSEA LRRs 	on occasion
participated 	in 	identifying appropriate 	work 	sites 	to 	organize
and provided lists 	of 	employees 	to 	contact. 	Such assignments
usually are 	left 	to lost 	timers.
LRRs 	also have 	attended meetings 	that 	Suffin 	set 	up at 	work
sites. 	According to Suffin, 	CSEA LRR, 	John Long was reassigned
from his 	LRR position 	to work as 	an 	organizer during 	the 	contract
campaign. 	And CSEA LRR, 	Anna Kammerer testified that 	six or
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seven 	LRRs 	were 	reassigned 	to work with 	lost 	timers 	on 	the
contract 	campaign 	from March 	1998 	to September 	1998.
While working as a CSEA organizer, 	Suffin wore a CDU button
and distributed CDU literature. 	During 	the 	time 	she 	worked 	on
the contract 	campaign, 	Suffin testified, 	the issue of 	internal
union politics 	sometimes 	was 	raised 	in discussions 	with
employees. 	However, 	she never recruited CDU members 	or asked for
donations 	for CDU during 	these 	organizing 	efforts.
After Suffin's union leave expired on June 30, 	1995, 	she
continued 	to 	engage 	in similar 	organizing activities 	on her own
time. 	On March 31, 	1998, 	CSEA requested a leave of absence 	from
the 	State 	to permit 	Suffin to work on phase 	two of 	the 	contract
campaign. 	However, 	as more fully discussed below, 	by that 	time
CSEA had 	implemented 	the 	so-called 	lost 	timer agreement 	as 	a
condition to hiring 	lost 	timers. 	Suffin elected not 	to sign the
agreement 	because 	she 	claimed 	it would 	interfere with her
protected 	conduct.
Another example of a lost 	timer is Reveles, 	a CSEA member
and CDU activist who also 	is president 	of District 	Labor
Council 	781. 	As a CDU activist, 	Reveles attended CDU meetings
and distributed 	the Union Spark 	(CDU's 	newsletter) 	at 	State work
places 	and at 	CSEA meetings. 	She also assisted CDU in organizing
a 	slate 	of 	candidates 	to advance 	CDU's 	reform movement.
Reveles 	testified that 	she 	engaged 	in no activities 	on
behalf 	of 	CDU while 	she worked as 	a 	lost 	timer 	"other than what
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would be protected activity, 	as 	if 	I wore 	a button or a T-shirt
or something, 	that was it."
Meanwhile, 	an internal 	debate 	existed within CSEA about 	the
authority of 	the 	CSEA general manager to hire 	employees. 	In an
October 1, 	199 7, 	legal 	opinion, 	CSEA Attorney Howard Schwartz
(Schwartz) 	advised 	then General Manager Jim Milbradt 	(Milbradt)
that 	he 	had 	the exclusive authority to hire 	lost 	timers 	based on
his 	review of 	CSEA's bylaws. 	The opinion concluded that:
. 	. 	. 	whether it be by the General Manager
directly, 	or his Division Administrator, 	or
other designee, 	lost 	timers are brought 	on
staff, 	assigned, 	directed, 	and can be
terminated at 	the 	discretion of management.
Schwartz 	also advised that 	"lost 	timers 	should be advised, 	from
the very outset, 	never to engage 	in Association politics. 	A
statement 	prohibiting 	involvement 	should be 	developed."
Charging parties 	contend 	that 	the 	latter 	recommendation was
a departure 	from the August 	16, 	1996 	Zenz memo, 	cited above,
which 	reminded 	lost 	timers 	that 	"involvement 	in Association
politics 	during working hours 	is 	a misuse 	of Association money"
and may be 	grounds 	for 	corrective 	action.
The 	CSEA board of directors, 	during 	its meeting on 	the
weekend of October 5-6, 	1997, 	confirmed Milbradt's hiring
authority. 	Over Hard's 	objection, 	the board expressly gave
Milbradt 	responsibility to hire members 	on lost 	time 	or union
leave. 	In an October 10, 	1997 memo, 	Milbradt 	informed all 	CSEA
managers 	of 	the board's 	action and directed them to 	inform him of
all new hires. 	Since Ramirez, 	Fox, 	and other lost timers had
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been hired by Hard and Hackett, 	the board's 	directive 	effectively-
switched 	authority 	to hire 	lost 	timers 	from Hard and Hackett 	to
Milbradt.
Also on October 10, 	1997, 	Milbradt 	terminated Fox and
Ramirez as lost timers. 	Prior to their terminations, 	Fox and
Ramirez 	had 	received no 	criticism of 	their work as 	lost 	timers.
Complaints 	against 	them had not 	been 	investigated, 	and 	there was
no attempt 	to discuss 	the 	terminations with Hard or Hackett. 	In
fact, 	on the day Fox was 	terminated by CSEA, 	the union obtained
an 	extension 	of 	Fox's 	leave 	of 	absence 	from the 	State 	through
November 28, 	1997. 	After the terminations, 	Hard arranged an
alternative 	source 	of 	funding 	for 	their work and 	requested 	their
reinstatement, 	but CSEA refused.
Milbradt, 	in his testimony, 	cited a number of 	reasons 	for
the decision to 	terminate 	Fox and Ramirez. 	The 	lost 	timers were
to report 	to area managers, 	he said, 	but 	they were not doing so.
Milbradt 	said he had 	received numerous 	complaints 	from CSEA staff
in Fresno and the Bay Area, 	as well 	as 	individuals 	in CSEA
leadership positions 	about 	lost 	timers participating 	in 	internal
union activities 	while being paid by CSEA. 	Based on 	these
complaints, 	Milbradt 	concluded that 	the 	lost 	timers 	had violated
CSD policy against 	participating 	in 	"Association politics."
Milbradt 	testified 	that 	he was 	concerned about 	lost 	timers
doing work 	for CDU while being paid by CSEA. 	The 	complaints
concerned participation 	in CDU activities 	at 	the May 	14 	rally at
DPA, 	the June 	27 	rally at 	the 	State 	Capitol 	where an open debate
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broke 	out between CSEA LRRs 	and CDU supporters, 	and the protest
activities at 	the October 5 	board of directors meeting.
According to Milbradt, 	Fox and Ramirez were not 	the 	only lost
timers 	terminated. 	He 	said there were 	other lost 	timers who were
terminated 	for the 	same 	reasons, 	and he 	instructed Tut 	Tate not
to 	rehire 	them unless 	they agreed 	to 	refrain 	from participating
in internal 	union politics.
The 	definition 	of 	internal 	union politics 	applied by CSEA is
not 	fixed 	in a bylaw or policy 	statement. 	Milbradt 	testified,
however, 	that 	conduct 	related 	to 	"an 	internal 	union political
group vying 	for political 	office within CSEA" 	would 	fall 	within
the definition, 	as would conduct on behalf 	of CDU.
At 	the 	time Milbradt 	terminated Fox and Ramirez, 	CSEA was
working 	on 	establishing uniform criteria 	for hiring 	lost 	timers.
This 	resulted 	in development 	of 	the 	so-called 	lost 	timer
agreement which is at issue 	in Case No. 	SA-CO-208-S.
In early 	1998, 	CSEA implemented the 	lost 	timer agreement:
Criteria 	for the 	Selection of 	Lost 	Timers. 	The new policy,
implemented without 	discussion with Hard 	or Hackett, 	required
employees 	to 	sign an agreement 	as 	a 	condition 	of 	becoming a 	lost
timer.
The purpose of hiring lost timers, 	the agreement noted, 	is
"exclusively 	to perform representation 	or 	organizing 	functions."
While 	employed by CSEA in this 	capacity, 	lost 	timers were
prohibited 	from engaging 	in political 	activity. 	The 	agreement
stated:
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All 	lost 	timers 	shall 	refrain 	from engaging
in the politics 	of 	the Association or 	its
respective divisions/affiliates. 	Prohibited
conduct includes, 	but is not limited to: 	(1)
advocating 	for 	or against 	candidates 	for CSEA
elective office; 	(2) 	rendering service in
support 	or opposition to 	the election of 	any
candidate for CSEA office; 	(3) 	participating
in the governance activities 	of 	the
Association or 	its 	divisions/affiliates,
including, 	but not 	limited to, 	attending or
participating 	in any Board 	or
division/affiliate meetings 	or 	committee
meetings 	without 	the written prior
authorization 	from the General Manager 	or
designee; 	and 	(4) 	advocating for or against
the policies 	or positions 	of 	any member
interest 	group which 	supports 	or endorses
candidates 	for CSEA elective 	office.
The 	agreement 	includes 	other 	conditions 	that must 	be
satisfied before 	an 	employee 	can become a 	lost 	timer. 	Employees
must 	be 	able 	to 	return 	immediately 	to 	their positions 	with 	the
State; 	they must 	report 	directly to an assigned CSEA manager;
they may not 	be 	supervised by other CSEA members 	unless 	there 	is
an 	explicit 	directive 	from the 	designated 	CSEA manager 	that 	such
supervision 	is 	appropriate; 	and they may not be part 	of 	the 	CSEA
bargaining unit 	represented by UAW. 	In accepting 	employment 	with
CSEA, 	lost 	timers 	are 	required by the agreement 	to acknowledge
that 	such employment 	is 	temporary, 	that 	CSEA may terminate 	them
at 	any time, 	and that 	CSEA is 	not 	liable 	for any damages which
may result 	from termination. 	Lastly, 	lost 	timers 	are 	required to
agree 	in writing to be bound by the agreement, 	and that 	any
breach of 	the agreement will 	result 	in termination.
In conjunction with the 	lost 	timer agreement, 	CSEA provides
applicants with a 	form which allows 	lost 	timers 	to 	resign 	their
14

positions 	temporarily 	to 	engage 	in activities 	prohibited by 	the
agreement. 	Upon completion of 	the particular activity, 	the 	lost
timer 	is 	then reinstated to his 	or her position with CSEA. 	This
type 	of 	temporary resignation is not new to CSEA. 	Its purpose,
Milbradt 	testified, 	was 	to avoid conflicts 	resulting 	from lost
timer 	involvement 	in 	these 	activities 	and 	to provide 	the
information needed 	to monitor when 	lost 	timers 	were working 	for
CSEA and when they were not. 	Temporary resignations 	originally
were used 	to accommodate 	lost 	timers 	who wanted 	to 	engage 	in 	such
activities during large blocks 	of 	time, 	such as weekends 	or
evenings. 	CSEA has 	no set 	standards 	for approval 	or disapproval
of 	a 	temporary resignation request. 	Milbradt 	testified such
decisions are made 	on a case-by-case basis, 	and he 	said he 	could
not 	imagine a request 	that he would deny. 	For example, 	if a lost
timer 	requested 	temporary 	leave 	to 	distribute 	literature 	on his
or her lunch hour, 	he would grant 	it without screening the
literature. 	He also said that 	requests 	for temporary resignation
to 	engage 	in the kind of political 	activities 	that 	form the basis
of 	these 	consolidated charges would be approved. 	The purpose 	of
the request, 	he reiterated, 	is to account 	for lost timers on
CSEA's payroll 	when 	they are 	engaging 	in 	internal 	union
activities 	that 	are not part 	of 	the 	duties 	they are 	expected 	to
perform 	for 	CSEA.
CDU activists 	confronted with 	the 	lost 	timer agreement 	have
refused 	to 	sign 	it 	because 	of 	its 	perceived restriction 	on 	their
right 	to participate 	in union activity. 	Suffin, 	for example,
15

testified 	that 	she 	refused 	to 	sign 	the agreement 	for this 	reason,
and she 	continues 	to participate 	in CDU activities 	on her own
time 	rather than as 	a lost 	timer.
According 	to Hard, 	the 	requirement 	that members 	sign the
lost 	timer agreement 	before 	they are permitted 	to work 	for CSEA
has made 	it more difficult 	to engage 	in successful 	organizing
campaigns 	on behalf 	of employees, 	particularly the 	campaign to
secure 	collective bargaining agreements with the 	State.
Hard and Hackett are 	lost 	timers, 	but because 	they hold
elective positions 	in the governance 	structure 	of 	CSEA, 	they have
not been asked 	to 	sign the 	lost 	timer agreement.
DISCUSSION
The 	Board must 	first 	determine 	in 	this 	case whether 	the
charging parties 	in 	these 	consolidated 	cases were 	"employees"
covered by the Dills Act 	when 	they 	served as 	lost 	timers.
If 	so, 	it must 	then be determined if Ramirez and/or Fox were
terminated 	from their 	CSEA positions 	in 	retaliation 	for
participation 	in protected 	conduct, 	in violation of 	section
3519.5(b). 	Also, 	the Board must consider the allegation that
the 	requirement 	that 	employees 	sign the 	lost 	timer agreement 	as 	a
condition 	of 	employment 	by 	CSEA interfered with 	their 	right 	to
engage 	in protected 	conduct 	and/or 	discriminated against 	CDU
activists 	for 	their protected 	conduct 	in violation of 	section
3519.5(b).
16

Employee 	Status
Dills Act 	section 3513(c) 	defines 	"state employee" 	as 	"any
civil 	service 	employee of 	the 	state." 	Since all 	of 	the 	charging
parties 	were 	separated 	from State 	service 	at 	the 	time 	of 	the
alleged unlawful 	conduct, 	due 	to either leave of absence or
termination, 	CSEA argues 	that 	they do not 	fall 	within the
definition of 	"state employee" 	in Dills Act 	section 3513(c).
CSEA asserts 	that 	they do not meet 	the 	threshold jurisdictional
standing 	requirements 	required 	for protection under 	the Dills
Act.
In prior 	cases 	the 	Board has 	found 	individuals 	to be
employees 	for the purpose of Dills Act 	coverage, 	even though they
were 	in a 	category 	other 	than 	"active 	employee." 	In determining
the meaning of 	the 	term 	"state employee" 	in such situations, 	PERB
has 	looked to the California Constitution, 	Article VII,
section 1, 	which states:
The 	civil 	service 	includes 	every officer and
employee 	of 	the 	State 	except 	as 	otherwise
provided 	in this 	Constitution.
Article VII, 	section 4, 	lists several exemptions to this
provision, 	none of which is relevant here. 	Thus, 	the Board, 	in
State of 	California 	(Department of Corrections) 	(1997) 	PERB
Decision No. 	1224-S, 	states that:
All 	personnel 	appointments 	other 	than 	the
specific 	exempt 	appointments 	are 	therefore
part 	of 	the 	civil 	service 	system and have
some form of civil 	service status, 	whether it
be seasonal, 	limited term, 	permanent, 	part-
time, 	or any other type.
17

This 	reasoning has 	been 	followed 	in a 	long 	line 	of 	PERB
cases. 	For example, 	in State of California 	(Department of
Personnel Administration) 	(1985) 	PERB Decision No. 	532-S, 	a rival
union 	attempted 	to 	decertify 	CSEA as 	the 	exclusive 	representative
of Unit 	1. 	In evaluating the 	rival union's 	showing of 	support,
PERB 	counted as 	employees 	certain 	individuals 	who 	occupied
temporary 	intermittent 	and 	permanent 	intermittent
classifications. 	Employees 	in these 	classifications were 	found
to be eligible voters 	in the decertification election, 	even
though 	they were not 	actively working 	for 	the 	State 	at 	the 	time
the list was prepared. 	Similarly, 	in State of California
(Department of Personnel Administration) 	(1990) 	PERB Decision
No. 	787-S, 	PERB rejected a unit modification petition that 	sought
to 	exclude 	seasonal 	employees 	from civil 	service 	status. 	The
Board 	found 	that 	the 	seasonal 	employees 	at 	issue were 	covered by
the Dills Act and therefore dismissed the petition. 	(Id.; 	see
also, 	State of California. 	Department of Personnel Administration
(1991) 	PERB Decision No. 	871-S, 	employees of California
Conservation Corps 	covered by the Dills Act, 	even though they
lacked traditional 	civil 	service 	attributes 	of permanent 	status
and 	selection 	for 	employment 	by 	competitive 	examination.)
The 	civil 	service status 	of 	employees 	on leaves 	of absence,
such as 	charging parties, 	is 	substantially greater than that 	of
an 	intermittent 	or seasonal 	employee. 	Employees 	on approved
leaves 	of 	absence 	from permanent 	civil 	service 	appointments 	have
an absolute 	right 	to 	return 	to 	State 	employment 	upon 	the
18

expiration of 	their leaves. 	At 	the 	time of 	the alleged unlawful
conduct, 	all of the charging parties, 	with the exception of
Ramirez, 	were on approved leaves of absence.
CSEA advances 	a number of 	arguments based on Government 	Code
provisions defining the 	term 	"employee." 	For example, 	CSEA
argues 	that 	Section 	18526 	defines 	an 	employee as 	a person holding
a position 	in State 	civil 	service, 	and Section 	19996 	defines 	an
unpaid leave 	of 	absence 	as 	a 	temporary separation 	from civil
service. 	Because none of 	the 	charging parties 	actively held a
civil 	service position at 	the 	time 	of 	the alleged violation and
were 	temporarily separated 	from their State positions, 	they
cannot be 	considered part 	of 	the civil 	service, 	according to
CSEA.
We 	do not 	find 	these 	and a host 	of 	similar Government 	Code
sections 	cited by CSEA convincing. 	First, 	those employees who
were 	on 	leave 	of 	absence 	from their 	civil 	service positions
retained a mandatory reinstatement 	right 	to 	those positions.
Second, 	interpreting the 	term 	"employee" 	in Dills Act 	section
3513(c) 	against 	constitutional provisions defining the 	term
"civil 	service," 	PERB observed:
Perspective 	is 	an 	important part 	of 	this
process 	because 	although 	the 	statute 	and 	the
Constitution must 	be 	read 	together and
reconciled, 	each statutory scheme has 	its 	own
purpose, 	and we must 	look to the purpose or
the 	end 	intended. 	The question which we deal
with in this 	case 	is not a question of
benefits, 	wages and hours, 	or seniority under
the civil 	service system. 	Rather, 	it 	is a
question of 	coverage under the Dills Act. 	It
is 	clear that 	the 	framers 	of 	the Dills Act
intended a broad 	cross 	section of 	state
19

employees 	to be 	covered. 	As 	long as 	the
application of 	section 3513(c) 	does not 	run
counter 	to 	the 	constitutional 	provisions
regarding civil 	service, 	there 	is no
conflict. 	. 	. 	. 	[State of California
(Department of Personnel Administration),
supra. 	PERB Decision No. 	787-S, 	at p. 	12.]
We 	conclude 	that 	employees 	on approved 	leaves 	of 	absence
from civil 	service 	appointments 	retain 	their status 	as 	employees
for the purpose of Dills Act 	coverage. 	Therefore, 	CSEA's
argument 	that 	charging parties Hard, 	Hackett, 	Fox and Reveles
were not 	employees 	covered by the Dills Act 	at 	the 	time 	of 	the
alleged unlawful 	conduct 	is 	rejected.4
The 	status 	of 	Ramirez 	at 	the 	time 	of 	the alleged unlawful
conduct at 	issue 	in Case No. 	SA-CO-200-S 	is different 	in that
Ramirez was 	not 	on a leave of absence at 	that 	time. 	She had been
terminated 	from her position as 	a State 	employee, 	allegedly 	in
violation of 	the Dills Act, 	and her appeal was pending at 	the
time of the formal hearing in this matter. 	Thus, 	unlike the
other charging parties, 	she had no absolute 	right 	to 	return to a
civil 	service position within State 	service. 	It 	is beyond
dispute 	that 	Ramirez 	had the 	right under the Dills Act 	to
challenge her termination as 	discriminatory because 	she was 	a
State 	employee at 	the 	time 	of 	the allegedly unlawful 	conduct 	that
formed the basis 	of her challenge. 	(California Union of 	Safety
4The Dills Act's 	provisions 	prohibit 	discrimination or
interference by the 	State against 	employees 	for engaging 	in
protected conduct. 	It 	is difficult 	to imagine 	that 	if 	this were
a 	case 	in which 	it 	was 	alleged that 	lost 	timers 	had been
discriminated against 	by 	the 	State 	for 	engaging 	in protected
conduct, 	CSEA would challenge 	their status 	as 	employees under
section 3513(c).
20

Employees 	(Trevisanut. 	et al.) 	(1993) 	PERB Decision No. 	1029-S,
at p. 	9.) 	But Ramirez' 	charge 	involves 	conduct between an
employee 	organization and 	its 	employee 	which occurred 	subsequent
to 	the 	termination of 	that 	individual 	from State 	employment.
We 	are unaware 	of 	any 	case 	in which 	individuals 	in 	this
status 	have been 	found to be 	employees 	for purposes 	of 	coverage
by 	any 	collective 	bargaining 	statute.5
The 	Board 	concludes 	that 	Ramirez 	was 	not 	an employee under
the Dills Act 	at 	the 	time 	CSEA allegedly discriminated against
her because 	of 	her activities 	on behalf 	of 	CDU. 	Therefore 	she
has 	no 	standing 	to 	file 	an unfair practice 	charge based on 	that
conduct 	and Case No. 	SA-CO-200-S must be dismissed.
The 	Discrimination Allegations
In order to prevail 	on a 	claim of 	discrimination, 	charging
parties 	must 	establish 	that 	they 	engaged 	in protected activity,
that 	the activities were known to CSEA, 	and that 	CSEA took the
retaliatory action because 	of 	such activity. 	(Novato Unified
5In 	cases 	decided under 	the National 	Labor Relations Act
(NLRA) 	(29 U.S.C. sec. 	141 et seq.), 	the National Labor Relations
Board 	(NLRB) 	has 	held 	that 	a discharged employee who participated
in picketing with another 	employee 	the 	day 	following 	his
termination was 	not 	involved 	in protected activity because 	he 	was
no 	longer an employee within the meaning of 	the NLRA. 	(NLRB v.
Texas Natural Gasoline Corporation 	(1958) 	253 	F.2d 322 	[41 	LRRM
2708] 	(Texas Natural Gasoline).) 	And, 	in Polson Industries. 	Inc.
(1079) 	242 NLRB 1210 	[101 LRRM 1344] 	(Poison). 	the NLRB held that
a union activist 	who 	abruptly quit 	his 	job 	over a pay dispute was
not 	entitled 	to 	a union 	representative 	during 	a meeting 	held 	the
same 	day 	to discuss 	a 	request 	for 	reinstatement because he 	was
not 	an employee within 	the meaning 	of 	the NLRA at 	the 	time 	he
made the request. 	Unlike Ramirez' 	situation, 	these cases
involved 	conduct 	between an 	individual 	and a 	former 	employer
subject 	to the provisions 	of 	the NLRA.
21

School District 	(1982) 	PERB Decision No. 	210 	(Novato).) 	Unlawful
motivation is 	essential 	to prevail 	on a 	retaliation claim. 	In
the absence 	of 	direct 	evidence, 	an inference of unlawful
motivation may be drawn 	from the 	record as 	a whole, 	as 	supported
by 	circumstantial 	evidence. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89; 	Regents of the University of
California 	(1998) 	PERB Decision No. 	1263-H.) 	From Novato and a
number of 	cases 	following 	it, 	any of a host 	of 	circumstances may
justify an 	inference 	of 	unlawful 	motivation on 	the part 	of 	the
respondent. 	(See e.g., 	Oakdale Union Elementary School District
(199 8) 	PERB Decision No. 	1246, 	p. 	15.) 	Once unlawful motive is
established, 	the burden of proof 	shifts 	to the 	respondent 	to
establish that 	it had a valid reason 	for 	its actions, 	regardless
of 	the protected activities. 	(Novato.)
In Case No. 	SA-CO-203-S, 	Fox argues 	that her activities 	on
behalf 	of 	CDU were protected participation 	in 	the 	activities 	of
CSEA, 	that CSEA knew of her activities on behalf 	of CDU, 	and that
CSEA terminated her appointment 	as 	a 	lost 	timer 	in 	retaliation
for her 	conduct because 	CSEA wished 	to prevent 	lost 	timers 	from
participating in such activities. 	CSEA's action, 	Fox contends,
violated Dills Act 	section 3519.5(b).
In Case No. 	SA-CO-208-S, 	Hard, 	Hackett and Reveles argue
that 	imposition of 	the 	lost 	timer agreement was 	itself 	a
retaliatory act 	directed at 	the 	protected activity 	of 	the
charging parties 	because 	it 	was 	adopted precisely 	to prevent
internal 	union political 	activity 	in support 	of 	CDU. 	Charging
22

parties assert, 	therefore, 	that CSEA has violated Dills Act
section 3519.5(b).
The 	threshold 	issue 	presented by 	these 	allegations 	is
whether charging parties 	Fox, 	Hard, 	Hackett and Reveles were
engaged 	in activities 	which are protected by the Dills Act 	at 	the
time of 	the disputed conduct 	in these cases. 	Specifically, 	the
Board must 	determine whether the Dills Act protects 	the 	type 	of
internal 	union activity which 	forms 	the basis 	of 	the 	disputes
presented 	here.
State 	employees 	have 	the 	right 	to participate 	in the
activities 	of 	employee organizations 	for the purpose 	of
representation on matters 	of 	employer-employee 	relations 	(Dills
Act sec. 	3515). 	However, 	the Board has not interpreted the Dills
Act 	as protecting all 	participation 	in employee 	organization
activities, 	or as providing PERB with unlimited authority to
review the 	internal 	affairs 	of 	employee organizations. 	In
Service Employees 	International Union. 	Local 99 	(Kimmett) 	(1979)
PERB Decision No. 	106 	(Kimmett), 	the Board examined the identical
right 	provided under 	the 	Educational 	Employment 	Relations 	Act
(EERA)6 to determine 	if 	employees have any protected right 	"to
6EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Dills Act 	section 	3515 	and EERA section 3543 	contain 	the
following 	identical 	language 	concerning employee 	rights:
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.
23

have 	an employee 	organization 	structured or operated 	in any-
particular way." 	The 	Board 	stated 	that:
The 	EERA gives 	employees 	the 	right 	to 	'join
and participate 	in 	the 	activities 	of 	employee
organizations' 	(sec. 	3543) 	and employee
organizations 	are 	prevented 	from 	interfering
with employees because 	of 	the 	exercise 	of
their rights 	(sec. 	3543.6(b)). 	Read broadly,
these 	sections 	could be 	construed as
prohibiting 	any 	employee 	organization 	conduct
which would prevent 	or 	limit 	employee's
participation in any of 	its 	activities. 	The
internal 	organization 	structure 	could be
scrutinized as 	could 	the 	conduct 	of 	elections
for union officers 	to 	ensure 	conformance with
an 	idealized participatory 	standard. 	However
laudable 	such a result might be, 	the Board
finds 	. 	. 	. 	intervention in union affairs to
be beyond 	the 	legislative 	intent 	in 	enacting
the EERA. 	. 	. 	. 	The EERA does not describe
the 	internal workings 	or structure of
employee 	organizations 	nor does 	it define 	the
internal 	rights 	of 	organization members. 	We
cannot believe 	that by the use 	of 	the phrase
'participate 	in the activities 	of 	employee
organizations 	. 	. 	. 	for the purpose of
representation on all matters 	of 	employer-
employee relations' 	in section 3543. 	the
Legislature 	intended 	this 	Board 	to 	create 	a
regulatory 	set 	of 	standards 	governing 	the
solely 	internal 	relationship between a union
and its members. 	[Kimmett at pp. 	15-16;
emphasis 	added.]
In Kimmett. 	therefore, 	the Board concluded that under the Dills
Act 	employees 	have 	no protected 	rights 	in 	the 	organization of
their 	exclusive 	representative unless 	the 	internal 	activities 	of
the 	employee 	organization have a 	substantial 	impact 	on 	the
employees' 	relationship with their employer.
In numerous 	later cases, 	the Board applied the Kimmett
limitation and 	refused 	to 	intervene 	in matters 	involving 	the
solely 	internal 	activities 	or 	relationships 	of 	an employee
24

organization which do not 	impact 	employer-employee 	relations.
For example, 	in California State Employees Association 	(Hackett,
et al.) 	(1993) 	PERB Decision No. 	979-S, 	the Board dismissed a
charge 	in which 	there was 	no 	showing 	that 	the 	disputed 	internal
activities 	of 	the 	employee 	organization 	impacted 	the 	employment
relationship. 	In rejecting a 	request 	for reconsideration of 	that
decision, 	the Board specifically referred 	to a portion of 	the
charge 	challenging 	internal 	procedures 	of 	the 	employee
organization as 	"an area 	into which 	the 	Board will 	not 	intervene
except 	where 	the 	internal 	activities 	of 	the 	employee 	organization
have a 	substantial 	impact upon employees' 	relationships 	with
their employer." 	(California 	State 	Employees Association
(Hackett, 	et al.) 	(1993) 	PERB Decision No. 	979a-S at p. 	3,
fn. 	3.)
Similarly, 	in California State 	Employees Association
(Hackett) 	(1993) 	PERB Decision No. 	1012-S, 	the Board dismissed
charges 	involving 	the union's 	internal 	contract 	ratification
process 	because 	it 	had not 	been demonstrated 	that 	the 	internal
activities 	substantially 	impacted 	the 	relationship 	of 	employees
to the employer. 	(See also, 	California State Employees
Association 	(Garcia) 	(1993) 	PERB Decision No. 	1014-S, 	in which
the 	Board 	dismissed 	charges 	relating 	to 	alleged union 	election
irregularities 	and union discipline 	procedures 	because 	there 	was
no 	showing 	of 	a 	substantial 	impact 	on 	the 	charging party's
relationship 	with her 	employer.)
25

- -
- - -
- -
In other cases, 	the Board has 	intervened in the 	internal
affairs 	of 	a union when alleged 	retaliation against members 	for
their union participation went 	beyond 	solely 	internal 	union
activities 	and 	impacted 	the 	employment 	relationship. 	In
California Union of Safety Employees 	(Coelho) 	(1994) 	PERB
Decision No. 	1032-S, 	the Board found a violation in the union's
retaliatory 	filing with 	the 	employer of 	a 	citizen's 	complaint
against an employee, 	and in its 	subsequent 	refusal 	to represent
the 	employee 	in 	the 	resulting 	investigation 	conducted by 	the
employer. 	The Board found that 	the union's 	conduct was
reviewable because 	it 	directly 	impacted 	the 	employee's
relationship with his 	employer and went 	beyond 	the 	solely
internal 	relationship of 	the employee and union. 	Likewise, 	in
California Union of 	Safety Employees 	(John) 	(1994) 	PERB Decision
No. 	1064-S, 	the Board found a violation in the union's
retaliatory 	refusal 	to provide 	representation 	to a member 	in his
appeal 	to 	the 	State 	Personnel 	Board of 	the 	employer's 	adverse
action against him. 	Again, 	actions beyond the 	solely internal
relationship 	of 	the 	employee 	and 	the union were 	involved.
However, 	in California State Employees Association 	(Hackett,
et al.) 	(1995) 	PERB Decision No. 	1126-S 	(Hackett, 	et a l . ) , 	the
Board 	departed 	from this 	policy and 	found a violation based 	on
solely 	internal 	union 	conduct 	which was 	not 	shown 	to 	impact 	the
employment 	relationship. 	Subsequently, 	the Board reaffirmed 	its
longstanding 	Kimmett 	policy 	in 	(California 	State 	Employees
Association Hutchinson) 	(1998) 	PERB Decision No. 	1304-S
26

(Hutchinson). 	In Hutchinson, 	the Board dismissed a charge in
which 	the allegations 	involved 	the 	solely 	internal 	operations 	of
the union and the 	internal 	relationships between the union and
its members. 	The allegations 	did not 	involve 	conduct which
impacted 	the 	employment 	relationship.7 The 	Board held 	that 	this
solely 	internal 	union activity 	is 	not 	protected by 	the Dills Act,
and 	is 	not 	subject 	to 	intervention or 	regulation by 	PERB:
Pursuant 	to Kimmett. 	the statutes
administered by 	PERB provide 	employees 	with
no protected rights 	in the 	organization or
operation 	of 	their 	exclusive 	representative
unless 	the 	internal 	activities 	of 	the
employee 	organization have 	a 	substantial
impact 	on the employees' 	relationship with
their employer. 	[Hutchinson at p. 	4.]
From a review of 	these 	cases, 	it 	is 	clear that 	the Dills Act
does 	not 	protect 	the 	solely 	internal 	union participation and
activities 	of 	employees 	which do not 	impact 	employer-employee
relations.8 Valid policy 	considerations 	support 	limiting 	the
1
7The 	charging parties 	in Hutchinson accused CSEA of
violating the Dills Act 	in numerous ways, 	including allegations
that 	it 	permitted CDU supporters 	to 	campaign to alter CSEA's
internal 	structure; 	that 	it permitted the abuse and coercion of
members who do not 	support CDU; 	that 	it 	spent 	CSEA resources 	on
an 	organizing 	campaign which 	failed 	to 	result 	in a 	collective
bargaining agreement; 	and that 	it allowed 	its 	Civil 	Service
Division officers 	to use 	internal 	processes 	fraudulently.
8The 	Board also 	retains 	the 	authority 	to assess 	the
reasonableness 	of 	a union's membership 	restrictions 	pursuant 	to
Dills Act section 3515.5. 	That section provides, 	in part:
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding who may
join and may make 	reasonable 	provisions 	for
the dismissal 	of 	individuals 	from membership.
27

Board's 	scope of 	review in this manner. 	PERB's 	function is 	to
interpret 	and administer 	the 	statutes 	which govern 	the 	employer-
employee 	relationship, 	not 	to police 	internal 	relationships among
various 	factions within employee organizations. 	Remedies 	sought
for disputes 	arising 	from internal 	union disputes 	are more
appropriately presented 	in a 	different 	forum.
(See, 	e.g., 	California School 	Employees Association and its
Shasta College Chapter #381 	(Parisot) 	(1983) 	PERB Decision
No. 280.)
To 	clarify 	the 	Board's 	policy, 	we 	expressly 	reaffirm the
holding 	in Hutchinson; 	i.e., 	the Dills Act does not protect
solely 	internal 	union participation and activities 	of 	employees
which do not 	impact 	employer-employee 	relations. 	The burden of
proof 	is 	on the 	charging party to demonstrate 	the 	existence 	of
such an impact. 	Consequently, 	to the 	extent that any language 	in
Hackett. 	et al. 	or other Board decisions, 	including but not
limited to United Teachers of Los Angeles 	(Seliga) 	(1998) 	PERB
Decision No. 	1289 	and California State 	Employees Association
(O'Connell) 	(1989) 	PERB Decision No. 	753-H, 	can be read as an
exception to this policy, 	those 	cases are hereby overruled.
Applying these 	rules 	to the 	case at bar, 	the 	threshold issue
is 	whether 	the 	charging parties 	have 	demonstrated 	that 	the
internal 	union activities 	at 	issue had a 	substantial 	impact 	on
employer-employee relations. 	If so, 	their participation in those
internal 	union activities 	was 	protected by 	the Dills Act.
Fox was 	terminated by CSEA as 	a 	lost 	timer 	in October 	1997.
During her tenure as a lost 	timer, 	she participated in numerous
28

events 	that 	involved CDU. 	However, 	Fox has 	failed to demonstrate
that 	her participation 	in 	CDU events 	impacted 	employer-employee
relations. 	The Board concludes 	that 	Fox was 	not 	engaged 	in
protected activity at 	the 	time 	of 	the disputed conduct, 	and the
unfair practice 	charge and complaint 	in Case No. 	SA-CO-203-S must
be 	dismissed.
Similarly, 	Hard and Hackett 	are 	State 	employees 	on leave 	of
absence 	from their State positions, 	serving as 	full 	time union
activists. 	Hard and Hackett 	have also 	failed to present 	evidence
of 	any 	impact 	on 	employer-employee 	relations 	associated with 	the
internal 	CSEA activity which 	forms 	the basis 	of 	this 	dispute.
Because 	they have not met 	their burden of proof, 	we 	conclude 	that
their conduct was unprotected. 	Accordingly, 	we also dismiss Hard
and Hackett's 	allegations.
Our analysis 	for Reveles 	is 	similar. 	She 	testified that
while 	she worked 	for CSEA as 	a 	lost 	timer, 	she did not 	engage 	in
activities 	on behalf 	of 	CDU other 	than wearing a 	CDU button 	or
T-shirt. 	The 	record reveals 	that 	Reveles 	is an active 	CDU
participant. 	However, 	she has not presented evidence 	that any of
her 	internal 	union activities 	had a 	substantial 	impact 	on
employer-employee relations. 	Therefore, 	that 	conduct was not
protected by the Dills Act, 	and the unfair practice 	charge and
complaint 	in Case No. 	SA-CO-208-S must be dismissed.
We 	conclude that in Case No. 	SA-CO-208-S, 	none of 	the three
charging parties 	(Hard, 	Hackett 	or Reveles) 	has demonstrated that
they were 	engaged 	in protected activity, 	as 	is 	required by 	the
29

first 	element 	of 	the Board's Novato test. 	The 	charging parties'
allegations 	involve 	the 	solely 	internal 	operations 	of 	CSEA and
the 	internal 	relationships between CSEA and its members. 	This
solely 	internal 	union activity 	is 	not 	protected by 	the Dills Act,
and is 	not 	subject 	to 	intervention or regulation by PERB. 	Our
rationale 	for the dismissal makes 	it unnecessary to discuss 	the
remaining elements 	of 	the Novato 	test 	or CSEA's defenses.
The discrimination allegations 	in 	this 	charge 	are 	dismissed.9
ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and the 	entire 	record herein, 	the 	complaints 	and underlying
unfair practice charges 	in Case No. 	SA-CO-200-S, 	Lydia Ramirez v.
California State Employees Association; 	Case No. 	SA-CO-203-S,
Joyce Fox v. 	California State Employees Association: 	and Case
No. 	SA-CO-208-S, 	Jim Hard. 	Cathy Hackett and Irma Reveles v.
California State Employees Association, 	are hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
9Charging parties 	also argue 	that 	the 	lost 	timer agreement
interfered with rights protected by Dills Act 	section 3519.5(b).
To prevail 	on this 	theory, 	charging parties must 	first 	show that
CSEA's 	conduct 	interfered with or 	tended to 	interfere with 	the
exercise 	of protected activities. 	Based on our rationale 	for
dismissing 	the discrimination allegations, 	the 	interference
allegations 	are 	hereby dismissed 	for 	the 	same 	reason.
30