State of California (Judicial and Legal Coalition and Association of California Attorneys and Hearing Officers) (PERB A111S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE OF 	CALIFORNIA
Employer,
and
JUDICIAL AND 	LEGAL 	COALITION
(ADMINISTRATIVE 	LAW 	JUDGES'
COUNCIL, 	STATE 	TRIAL ATTORNEYS
ASSOCIATION 	AND 	CALIFORNIA 	STATE
EMPLOYEES' 	ASSOCIATION),
Employee 	Organization,
APPELLANT,
and
ACSA 	- 	ASSOCIATION OF 	CALIFORNIA
ATTORNEYS 	AND 	HEARING 	OFFICERS,
Employee 	Organization.
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Case 	No. 	S-SR-2
PERB 	Order 	No. 	Ad-111-S
Administrative 	Appeal
August 	7, 	1981
Appearances: 	Christine 	A. 	Bologna, 	Attorney 	for 	the 	Judicial 	and
Legal 	Coalition; 	Dennis 	M. 	Eagen, 	Representative 	for 	Association
of 	California 	State 	Attorneys 	and 	Hearing 	Officers; 	Barbara 	T.
Stuart, 	Attorney 	for 	Department 	of 	Personnel 	Administration, 	State
of 	California.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION AND ORDER
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB or 	Board) 	on 	an 	appeal 	by 	the 	Judicial 	and 	Legal
Coalition 	(hereafter 	Coalition) 	to 	the 	attached 	Notice 	of 	Partial
Dismissal 	of 	Objections 	to 	Election 	by 	the 	Sacramento 	regional
director. 	The 	Coalition 	also 	requested 	that 	the 	Board 	stay 	the
hearing 	in 	the 	above-captioned 	matter 	which 	is 	to 	commence 	on
August 	10, 	1981.

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Although 	several 	of 	the 	Coalition's 	objections 	to 	the
election 	in 	Unit 	2 	were 	dismissed 	by 	the 	regional 	director 	for
failure 	to 	state 	a 	prima 	facie 	allegation 	of 	objectionable 	conduct,
only 	the 	dismissal 	of 	paragraph 	7 was 	appealed 	to 	the 	Board.
For 	the 	purposes 	of 	determining 	whether 	the 	allegations 	state 	a
prima 	facie 	case, 	this 	Board 	assumes 	the 	essential 	facts 	alleged
in 	the 	charge 	are 	true. 1
The 	essence 	of 	objection 	number 	7 	is 	that 	the 	state 	employer
interfered 	with 	the 	Coalition's 	efforts 	to 	reduce 	staffing 	ratios
for 	attorneys 	working 	at 	the 	Department 	of 	Transportation 	(Caltrans)
prior·to the 	election. 	More 	specifically 	that 	an 	exemption
regarding 	staffing 	ratios, 	similar 	to 	the 	one 	granted 	to 	the
Department 	of 	Justice, 	was 	being 	prepared 	for 	Caltrans 	when 	an
agent of 	the 	Department of 	Personnel 	Administration 	"contacted 	the
State 	Persoannel 	(sic) 	Board 	and 	interfered." 	This 	uncontested
statement 	of 	facts 	presents 	an 	arguable 	case 	of 	employer 	misconduct.
Making 	no 	judgment with 	respect 	to 	the 	merits 	of 	the 	case, 	the
Board 	does 	find 	that 	the 	objection 	alleges 	facts 	sufficient 	to
state 	a 	prirna 	facie 	case. 	Accordingly, 	the 	Board 	reverses 	the
regional 	director's 	determination, 	grants 	the 	appeal, 	and 	orders
that 	evidence 	be 	taken 	on 	objection 	number 	7.
The 	Coalition 	also 	requested 	that 	the 	Board 	stay 	the 	hearing
in 	this 	case 	based on 	the 	administrative 	appeal 	decided 	above 	and 	a
1 san 	Juan 	Unified 	School 	District 	(3/10/77) 	EERB 	Decision
No. 	12. 	Prior 	to 	January 	1, 	1978, 	PERB 	was 	called 	the 	Educational
Employment 	Relations 	Board 	(EERB).
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Motion 	for 	Continuance 	filed 	on 	August 	3, 	1981, 	and 	denied 	by
the 	regional 	director on 	the 	following 	day. 	Decision 	today 	on
the 	Coalition's 	administrative 	appeal 	nullifies 	the 	need 	for 	a
stay 	on 	that 	basis. 	An 	examination 	of 	the 	events 	surrounding
the 	Motion 	for 	Continuance 	reveals 	that 	the 	hearing was 	noticed
by 	PERB's 	Executive 	Director 	on 	July 	13, 	1981, 	almost 	a 	full
month 	in 	advance 	of 	the 	hearing 	date. 	In 	addition, 	the 	parties
were 	notified on 	July 	13, 	1981, 	by 	letter 	from 	the 	Chief
Administrative 	Law Judge, 	that 	this 	matter 	was 	being 	expedited
and 	that 	"[r]equests 	for 	continuances 	or 	other 	delays 	will 	be
disfavored." 	In 	light 	of 	these 	factors, 	the 	date 	on which 	the
continuance was 	sought, 	and 	the 	rationale 	for 	the 	continuance,
the 	Board 	denies 	the 	request 	for 	stay. 	The 	regional 	director 	is
ordered 	to 	proceed 	in 	accordance 	with 	this 	Decision 	and 	Order.
PER CURI.AM
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~
STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA,
Employer,
and
JUDICIAL 	AND 	LEGAL 	COALITION
(ADMINISTRATIVE 	LAW 	JUDGES' 	COUNCIL,
STATE 	TRIAL 	ATTORNEYS 	ASSOCIATION
AND 	CALIFORNIA 	STATE 	E;:•IPLOYEES 1
ASSOCIATION) ,
Employee 	Organization,
and
ACSA 	- 	ASSOCIATION 	OF 	CALIFORNIA 	STAT
ATTORNEYS 	A.ND 	HEARING 	OFFICERS,
Employee 	Organization
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OBJECTIONS 	TO
ELECTION 	AND
CHALLENGED 	BALLOTS
Case 	No. 	S-SR-2
(Expedite.d 	Case)
NOTICE 	OF 	PARTIAL 	DISMISSAL
OF 	OBJECTIONS 	TO 	ELECTION
NOTICE 	IS 	HEREBY GIVEN 	THAT 	the 	following 	portions 	of 	the
Objections 	to 	Election 	filed 	on 	July 	8, 	1981 	by 	the 	Judicial
and 	Legal 	Coalition 	(hereafter 	Coalition), 	are 	dismissed:
Subparagraphs 	6 C, 	D, 	E, 	F 	and 	G, 	paragraph 	7 	in 	iis 	entirety,
paragraph 	8 	in 	its 	entirety, 	paragraph 	9 	in 	its 	entirety 	and
paragraph 	10 	in 	its 	entirety. 	This 	action 	is 	taken 	because 	the
above 	portions 	of 	the 	objections 	fail 	to 	state 	a 	prima 	facie
allegation 	of 	objectionable 	conduct. 	This 	dismissal 	is 	made

under 	the 	authority 	of 	PERB 	Regulation 	32738 (d) 	(California
Administrative 	Code, 	title 	8, 	Div. 	I, 	Chapter 	5, 	Art. 	20).1
DISCUSSION
These 	objections 	grow 	out 	of 	a 	mail 	ballat 	election 	held
between May 	11 	and 	June 	11, 	1981 	to 	determine 	exclusive
representatives 	for 	state 	employees 	in 	20 	units. 	The
objections 	concern 	the 	conduct 	of 	the-~lection 	in 	Unit 	2, 	the
Attorney 	and 	Hearing 	Officer 	Unit. 	A hearing 	has 	been
scheduled 	for 	August 	10 	through 	21, 	19S1 	to 	take 	evidence 	on
challenged 	ballots 	in 	Unit 	2 	and 	those 	other 	objections 	which
have 	not 	been 	dismissed 	by 	this 	order.
The 	only 	permissible 	bases 	for 	objections 	to 	an 	election
are 	set 	forth 	in 	PERB 	Regulations 	32738(c) 	which 	reads 	as
follows:
Objections 	shall 	be 	entertained 	by 	the 	Board
only 	on 	the 	following 	grou~ds:
(1) 	The 	conduct 	complained 	of 	is
tantamount 	to 	an 	unfair 	practice 	as 	defined
in 	Government 	Code 	sections 	3543.5 	or 	3543.6
of 	the 	EERAf 	3519 	or 	3519.5 	of 	the 	SEER~, 	or
3571 	or 	3571.1 	of 	the 	HEERA, 	or
(2) 	Serious 	irregularity 	in 	the
conduct 	of 	the 	election.
lpublic 	Employment 	Relations 	Board 	procedures 	for
dismissal 	of 	objections 	prior 	to 	hearing 	are 	similar 	to
Agricultural 	Labor 	Relations 	Board 	..orocedures 	which 	have 	been
upheld 	by 	the 	California 	Supreme 	Court. 	See 	J.R. 	Norton 	Co. 	v.
ALRB 	(1979) 	26 	Cal.3d 	1 	[160 	Cal.Rptr. 	710].
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Paragraphs 	1, 	2 	and 	3 	of 	the 	Judicial 	and 	Legal 	Coalition's
July 	8 	"objections 	and 	challenge 	to 	the 	conduct 	of 	the 	election
in 	unit 	2" 	actually 	concern 	challenged 	ballots. 	These
paragraphs 	state 	a 	prima 	facie 	challenge 	to 	the 	ballots.
Paragraphs 	4, 	5 	and 	subparagraphs 	6 A, 	B a~a 	H state 	prima
facie 	objections 	to 	the 	conduct 	of 	the 	election. 	However, 	all
remaining 	paragraphs 	in 	the 	July 	8 	filing 	fail 	to 	allege 	a
prirna 	facie 	case.
Subparagraphs 	6 	C, 	D, 	E, 	F 	and 	G
Beginning 	with 	subparagraph 	6 	C, 	the 	Coalition 	raises
complaints 	about 	actions, 	or 	inactions, 	of 	the 	Public
Employment 	Relations 	Board 	(hereafter 	P?RB) 	itself. 	In
subparagraph 	6 	C, 	the 	Coalition 	complains 	that 	the 	PERE 	denied
a 	request'for 	injunctive 	relief 	sought 	by 	the 	Coalition. 	This
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complaint 	is 	continued 	in 	subparagraphs 	6 	D, 	E, 	F 	and 	G which
detail 	various 	alleged 	delays 	in 	the 	PERB's 	processing 	of
unfair 	practice 	case 	S-CE-2-S. 	Several 	of 	the 	subparagraphs
also 	contain 	the 	allegation 	that 	these 	delays 	show 	that 	the
PERB 	is 	acting 	in 	concert 	with ·the Governor's 	Office 	to 	deny
the 	Coalition 	its 	rights.
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Through 	the 	operation 	of 	Section2 	3513(g); 	the 	FERB 	has
the 	power 	"(u)pon 	issuance 	of 	a 	complaint 	charging 	that 	any
person 	has 	engaged 	in 	an 	unfair 	practice 	. 	. 	. 	[ to] 	petition
the 	court 	for 	appropriate 	temporary 	relief 	or 	restraining
order. 11 	This 	is 	a 	discretionary 	power 	which 	PERE 	may 	exercise
or 	decline 	to 	exercise. 	That 	the 	PERB 	refused 	to 	seek
injunctive 	relief 	upon 	the 	request 	of 	the 	Coalition 	does 	not
state 	a 	prima 	facie 	objection 	to 	the 	election. 	The 	refusal 	of
the 	PERB 	to 	seek 	injunctive 	relief 	at 	the 	Coalition's 	request
is 	not 	conduct 	"tantamount 	to 	an 	unfair 	practice" 	nor 	is 	it
"serious 	irregularity 	in 	the 	conduct 	of 	the 	election." 	It 	thus
states 	no 	prima 	facie 	objection 	to 	the 	election.
·As 	to 	the 	contention 	that 	the 	PERB 	"acted 	in 	concert 	with
the 	Governor·s Office 	to 	deny" 	the 	Coalition 	its 	right 	of
access, 	it 	is 	assumed 	that 	this 	alleged 	misconduct 	by 	the 	PERB
was 	through 	its 	refusal 	to 	seek 	injunctive 	relief. 	The 	fact
that 	the 	PERB 	delayed 	its 	decision 	and 	ultimately 	declined 	to
seek 	injunctive 	relief 	is 	no 	basis 	for 	an 	allegation 	that 	it
was 	acting 	in 	concert 	with 	the 	Governor's 	Office 	to 	deny 	rights
to 	the 	Coalition. 	All 	the 	Coalition 	has 	alleged 	is -that 	the
2All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
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PERB 	exercised 	its 	discretion 	in 	a 	manner 	adverse 	to 	the
Coalition. 	Such 	an 	allegation 	is 	not 	conduct 	"tantamount 	to 	an
unfair 	practice" 	or 	a 	"serious 	irregularity 	in 	the 	conduct 	of
the 	election."
For 	these 	reasons, 	subparagraphs 	6 C, 	D, 	E, 	F and 	Gare
hereby 	dismissed 	for 	failure 	to 	state 	a 	prima 	facie 	case.
Paragraph 	No. 	7
In 	paragraph 	no. 	7, 	the 	Coalition 	complains 	of 	unequal
treatment 	in 	the 	application 	of 	staffing 	formulas 	between 	the
Department 	of 	Justice 	and 	Caltrans. 	According 	to 	the
allegation, 	the 	principal 	strength 	of 	the 	Coalition 	is 	at
Caltrans 	whereas 	the 	principal 	strength 	of 	the 	rival
organization, 	Association 	of 	California 	State 	Attorneys 	and
Hearing 	Officers, 	is 	at 	the 	Department 	of 	Justice.
The 	staffing 	formula 	is 	important 	because 	it 	determines 	how
many 	attorneys 	within 	a 	department 	may 	be 	promoted 	to 	the
higher-paying 	Grade 	IV classification. 	Historically, 	according,
to 	the 	allegation, 	Caltrans 	and 	Justice 	have 	had 	the 	same
ratio. 	However, 	the 	Coalition 	alleges, 	in 	December 	of 	1980 	the
Department 	of 	Justice 	requested 	and 	subsequently 	received 	from
the 	Personnel 	Board 	an 	exemption 	from 	the 	staffing 	ratio.
Caltrans, 	which 	earlier 	had 	requested 	a 	similar 	staffing
exemption 	for 	its 	attorneys, 	has 	not 	receive.a 	an 	exemption.
The 	Coalition 	alleges 	that 	on May 	8, 	1981 	its
representatives 	met 	with 	Rebecca 	Taylor 	of 	the 	Department 	of
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Personnel 	Administration 	and 	presented 	this 	problem 	of
disparate 	treatment. 	Ms. 	Taylor, 	according 	to 	the 	allegation,
said 	it 	was 	wrong 	that 	the 	Department 	of 	Justice 	had 	obtained
the 	staffing 	ratio 	change 	because 	that 	issue 	should 	have 	been
bargained 	about 	later. 	Still, 	she 	refused 	to 	act 	on 	behalf 	of
the 	Caltrans 	request.
This 	allegation 	states 	neither 	an 	unfair 	practice 	nor
serious 	iiregularity 	in 	the 	conduct 	of 	the 	election. 	In
essence, 	two 	state 	departments 	went 	to 	the 	Personnel 	Board
seeking 	a 	change 	in 	staffing 	formulas. 	The 	Personnel 	Board
granted 	the 	request 	of 	one 	department 	and 	did 	not 	grant 	the
request 	of 	the 	other 	department. 	Whe~her 	or 	not 	the 	Personnel
Board 	acted 	correctly 	is 	a 	matter 	for 	some 	forum 	other 	than 	the
PERB. 	Whether 	correct 	or 	not, 	the 	Personne: 	Board's 	decision
con.sti tutes 	no 	unfair 	practice 	under 	Section 	3519. 	Nor 	ao 	the
allegations 	about 	Ms. 	Taylor's 	refusal 	to 	become 	involved 	state
an 	unfair 	practice. 	The 	Department 	of 	Personnel
Administration, 	as 	agent 	of 	the 	Governor, 	can 	hardly 	be 	accused
of 	disparate 	treatment 	for 	refusing 	to 	try 	to 	convince 	the
Personnel 	Board, 	a 	constitutional 	agency, 	to 	act 	in 	a 	certain
fashion.
For 	these 	reasons, 	paragraph 	no. 	7 	is 	hereby 	dismissed 	for
failure 	to 	state 	a 	prima 	facie 	case.
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Paragraph 	No. 	8
In 	paragraph 	no. 	8, 	the 	Coalition 	alleges 	that 	"employees
in 	unit 	2 designated 	'confidential' 	should 	have 	received
ballots 	and 	been 	allowed 	to 	vote." 	The 	coalition 	argues 	that
many 	attorneys 	are 	designated 	as 	confidential 	and 	thus
disenfranchised.
In 	Section 	3513(c), 	"state 	employee" 	is 	defined 	so 	as 	to
specifically 	exclude 	confidential 	employees. 	The 	effect 	of
this 	definition 	is 	to 	exclude 	confidential 	employees 	from 	the
coverage 	of 	the 	State 	Employer 	Employee 	Relations 	Act. 	Persons
not 	covered 	by 	the 	act 	are 	not 	eligible 	to 	vote.
If 	it 	is 	the 	Coalition's 	complaint 	that 	confidential
employees 	should 	not 	have 	been 	excluded 	from 	coverage 	of 	the
·SEERAr 	that 	complaint 	should 	be 	addressed 	to 	the 	Legislature.
Excluding 	confidential 	employees 	from 	the 	election 	process 	was
required 	by 	the 	terms 	of 	the 	statute 	and 	was 	not 	either 	an
unfair 	practice 	nor 	a 	serious 	irregularity 	in 	the 	conduct 	of
the 	election.
If 	it 	is 	the 	Coalition's 	complaint 	that 	certain 	individual
employees, 	incorrectly 	classified 	as 	"confidential;" 	requested
and 	were 	denied 	the 	opportunity 	to 	vote 	challenged 	ballots, 	the
Coalition 	should 	have 	so 	stated. 	The 	Coalition 	did 	not 	so
state 	and 	it 	is 	assumed 	therefore 	that 	the 	objection 	goes 	to
the 	statutory 	definition. 	It 	is 	therefore, 	not 	a 	proper
objection.
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For 	these 	reasons, 	paragraph 	no. 	8, 	is 	hereby 	dismissed 	for
failure 	to 	state 	a 	prima 	facie 	case.
Paragraph 	No. 	9
In 	paragraph 	no. 	9, 	the 	Coalition 	alleges 	that 	following
the 	tally 	of 	ballots 	a 	PERB 	agent 	requested 	each 	party 	to 	sign
a 	statement 	attesting 	to 	the 	regularity 	of 	the 	election. 	The
Coalition.alleges 	that 	it 	was 	required 	to 	sign 	the 	statement
and 	did 	so 	only 	under 	duress. 	It 	alleges 	that 	this 	procedure
was 	not 	in 	conformance 	with 	the 	law.
This 	paragraph 	deals 	with 	conduct 	alleged 	to 	have 	occurred
after 	the 	tally 	of 	ballots 	was 	completed. 	The 	conduct 	was 	not
tantamount 	to 	an 	unfair 	practice 	and, 	since 	it 	occurred 	after
the 	tally 	of 	ballots, 	it 	could 	not 	have 	been 	a 	"serious
irregularity 	in 	the 	conduct 	of 	the 	election. 11 	[Emphasis
added.] 	Because 	it 	occurred 	after 	the 	tally 	of 	ballots, 	the
Act 	alleged 	could 	not 	possibly 	have 	affected 	the 	result 	of 	the
election 	and 	it 	therefore 	is 	not 	a 	valid 	basis 	for 	setting 	the 	·
election 	aside.
For 	this 	reason, 	paragraph 	no. 	9 	is 	hereby 	dismissed 	for
failure 	to 	state 	a 	prima 	facie 	case.
Paragraph 	No. 	10
In 	paragraph 	no. 	10, 	the 	Coalition 	alleges 	that 	following
the 	tally 	of 	ballots, 	PERE 	Regional 	Director 	Janet 	Caraway
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revealed 	to 	an 	employee 	organization 	the 	names 	of 	5,0 	attorneys
in 	the 	Office 	of 	Attorney 	General 	who 	did 	not 	cast 	ballots.
The 	Coalition 	alleges 	that 	although 	it 	refused 	to 	receive 	the
list 	of 	the 	60 	non-voters, 	revelation 	of 	the 	names 	to 	the
Association 	of 	California 	State 	Attorneys 	destroyed 	the
"laboratory 	conditions" 	required 	for 	the 	conduct 	of 	a 	fair
election.
The 	Coalition 	further 	alleges 	that 	following 	the 	revelation
of 	names 	a 	"senior 	member 	in 	the 	Office 	of 	the 	Attorney
General" 	who 	was 	present 	threatened 	to 	impose 	reprisals 	upon,
·aiscriminate against, 	restrain 	and 	coerce 	the 	60 	employees.
As 	with 	the 	allegations 	in 	paragraph 	no. 	9, 	paragraph
no. 	10 	deals 	with 	conduct 	alleged 	to 	have 	occured 	after 	the
tally 	of 	ballots. 	The 	conduct 	was 	not 	tantamount 	to 	an 	unfair
practice 	and, 	since 	it 	occurred 	after 	the 	tally 	of 	ballots, 	it
could 	not 	have 	been 	a 	"serious 	irregularity 	in 	the 	conduct 	of
the 	election." 	The 	act 	alleged 	could 	not 	possibly 	have
affected 	the 	result 	of 	the 	election 	and 	it 	therefore 	is 	not 	a
valid 	basis 	for 	settir.g 	the 	election 	aside. 	As 	to 	the
allegations 	of 	threats 	of 	reprisal, 	the 	appropriaie 	remedy 	is
not 	an 	objection 	to 	the 	election 	but 	an 	unfair 	practice 	charge
filed 	by 	any 	one 	who 	was 	the 	victim 	of 	such 	threat 	or 	reprisal.
For 	these 	reasons, 	paragraph 	no. 	10 	is 	hereby 	dismissed 	for
failure 	to 	state 	a 	prima 	facie 	case.
9

10
An 	appeal 	of 	this 	action 	may 	be 	rn?de 	to 	the 	Board 	itself
within 	10 	calendar 	days 	following 	the 	date 	of 	service. 	See
title 	8, 	California 	Administrative 	Code, 	section 	32360. 	The
appeal 	must 	be 	made 	by 	the 	filing 	of 	a 	statement 	with 	the
Executive 	Assistant 	to 	the 	Board 	of 	the 	specific 	issues 	of
procedure, 	fact, 	law 	or 	rationale 	upon 	which 	the 	appeal 	is
based 	together 	with 	a 	statement 	of 	the 	grounds 	for 	the 	appeal.
Copies 	of.any 	appeal 	must 	be 	concurrently 	served 	upon 	all
parties 	and 	the 	Sacramento 	Regional 	Office. 	Proof 	of 	service
of 	the 	appeal 	must 	be 	filed 	with 	the 	Executive 	Assistant.
DATE: 	July 	22, 	1981
10
JANET 	E. 	CARAWAY
Reqional 	Director
BY: 	Ronala-E. 	Bl Ubaug n,·
Hearing 	Officer 	V