California State Employees Association (Norgard) (PERB 0451S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PAUL NORGARD,
Charging Party, Case No. $-CO-29-S
v. PERB Decision No. 451-S

CALIFORNIA STATE EMPLOYEES '
ASSOCIATION,

December 7, 1984

Respondent.

Nee? Nee Nne Nel Snel Net Cnet See See Nee Net

Appearances: Michael Rothschild, Attorney for Paul Norgard:
Gary P. Reynolds, Attorney for the California State Employees'
Association.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.
DECISION

JAEGER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on an appeal by Paul Norgard of
a regional attorney's dismissal, attached hereto, of his unfair
practice charge alleging that the California State Employees'
Association (CSEA) violated its duty of fair representation by
affiliating with the Service Employees International Union,
AFL-CIO (sEru).+ For the reasons set forth below, we affirm

the dismissal of the unfair practice charge.

lthe duty of fair representation under the State
Employer-Employee Relations Act (SEERA or Act, Government Code
section 3512 et seq.), unlike that under the Educational
Employment Relations Act (Government Code section 3540
et seq.), is not expressly set forth in a specific section of
the Act. We do not consider this omission to reflect an
intention on the part of the Legislature to deny SEERA-covered
employees the right to be fairly represented by their employee

PROCEDURAL HISTORY AND FACTS
On October 20. 1983, CSEA's Ad Hoc Committee on AFL-CIO
Affiliation proposed to the Board of Directors that CSEA
affiliate by contract with an appropriate AFL-CIO international
union. 	One of the primary purposes of the affiliation was to
gain protection of the no-raiding provisions of Article XX of
the AFL-CIO Constitution and thereby prevent "raids" by AFL-CIO
unions.
organizations. Rather, the duty of fair representation under
SEERA arises as a quid pro quo for the granting of exclusive
representational rights to employee organizations. Such has
long been the view held by the federal courts in implying a
duty of fair representation under the National Labor Relations
Act. 	See Morris, The Developing Labor Law, Chap. 28; Steele v.
Louisville & Nashville Railroad (1944) 323 U.S. 192 [15 LRRM
708]; Textile Workers v. Lincoln Mills (1957) 353 U.S. 448 [40
LRRM 3113]; Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369].
Under SEERA, violations of the duty of fair representation
are actionable under section 3519.5(b). 	That section provides,
in pertinent part:
It shall be unlawful for an employee
organization to:
(b) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
In this case, the charging party appropriately alleged a
violation of section 3519.5(b). However, in addition, the
charging party alleged violations of sections 3515, 3518.5, and
3522.2. These sections do not involve the duty of fair
representation and, as the charging party alleges no facts to
support a finding of violations of these sections, his unfair
practice charge with respect to them is dismissed.
2

Thereafter, CSEA entered into negotiations with a number of
AFL-CIO international unions, including SEIU. 	On December 10,
1983, the CSEA General Council, its highest representative
body. approved affiliation with SEIU. On February 4, 1984.
CSEA's Board of Directors ratified the affiliation agreement.
At no time has CSEA filed a petition to amend its
certification to reflect its affiliation with SEIU.
The CSEA Constitution provides that the General Council "is
the supreme and continuing governing body of the Association,
limited in its authority only by the rights of representation
concerning wages, hours and other terms and conditions of
employment. " (CSEA Constitution, Art. VIII, Section I. ) It
also provides that the Board of Directors "may enter into
contractual agreements . 	as shall be required to meet the
needs of the Association. " (CSEA Bylaws Article II, Section 8. )
On February 3. 1984. prior to the affiliation vote,
Norgard, a member of CSEA. filed the instant unfair practice
charge.
On February 28, 1984, the regional attorney issued his
decision dismissing the unfair practice charge.
DISCUSSION
The charging party advances three arguments as to why
CSEA's decision to affiliate with SEIU violated its duty of
fair representation. 	First, the charging party asserts that,
as a general matter, the affiliation decision violated the Act
because, under the "no-raiding" provisions of Article XX of the

AFL-CIO Constitution, employees will be barred from seeking
representation by other AFL-CIO affiliates during the life of
the affiliation agreement. Moreover, the charging party
asserts that CSEA "materially misrepresented" the nature of its
affiliation agreement by failing to inform the membership that
the AFL-CIO Constitution prohibits raiding should an employee
organization disaffiliate from the AFL-CIO. Second, the
charging party asserts that the affiliation was unlawful
because there is no provision in CSEA's Constitution or Bylaws
permitting affiliation. Third, the charging party argues that,
as a matter of statutory right, a lawful affiliation requires a
vote of the entire membership.
The Board has long held that a prima facie violation of the
duty of fair representation is stated where the charging party
alleges sufficient facts to demonstrate that an employee
organization engaged in conduct which is arbitrary,
discriminatory, or evidences bad faith. Redlands Teachers
Association (Faeth) (9/25/78) PERB Decision No. 72; Rocklin
Teachers Professional Association (Romero) (3/26/80) PERB
Decision No. 124; Reed District Teachers Association, CTA/NEA
(Reyes) (8/15/83) PERB Decision No. 332; California School
Employees Association (Dyer) (9/2/83) PERB Decision No. 342;
Service Employees International Union, AFL/CIO, Local 99
(Sponza) (8/31/84) PERB Decision No. 402. 	Where the alleged
conduct involves the internal activities of the employee

organization, a prima facie violation of the duty of fair
representation is not stated unless the charging party alleges
facts sufficient to demonstrate that the employee
organization's decision "would have a substantial impact on
employees' relationship with their employer . 	Service
Employees International Union, AFL/CIO, Local 99 (Kimmett)
(10/19/79) PERB Decision No. 106.
Assuming, arguendo, that CSEA's affiliation decision
impacted sufficiently upon employees' relationship with their
employer as to implicate the duty of fair representation, we
find that the charge does not allege a prima facie violation of
that duty.
As a general matter, we find nothing unlawful in CSEA's
decision to seek affiliation with an AFL-CIO international
union in order to take advantage of the no-raiding provisions
of the AFL-CIO Constitution. Certainly, the mere allegation
that an employee organization had a self-defensive motivation
for seeking to affiliate with an international union does not
state a prima facie violation of the duty of fair
representation.
Nor does the allegation that CSEA's affiliation with an
AFL-CIO affiliate might make it more difficult for employees to
seek alternative representation from other AFL-CIO unions state
violation of CSEA's duty of fair representation. 	Clearly.
the duty of fair representation does not prevent an employee
organization from discouraging raiding by other unions.

Whether other employee organizations wish to abide by the
restrictions on raiding set forth in the AFL-CIO Constitution
is their own affair and does not raise an issue concerning
CSEA's duty of fair representation.
With respect to the charging party's allegation of
"material misrepresentation, " no facts are alleged which would
support the charging party's assertion that the AFL-CIO
Constitution protects an employee organization from raiding
even after disaffiliation from the AFL-CIO or that CSEA
withheld this information from its members. 	Indeed, the
charging party states no facts which would support a finding
that CSEA was ever less than forthright in admitting that its
affiliation decision was grounded in an attempt to seek
protection from raiding by other unions.
Next, the charging party asserts that the CSEA Constitution
and Bylaws do not permit an affiliation of this sort. We
disagree. Article VIII, Section I of the CSEA Constitution
provides that the General Council is the "supreme and
continuing governing body of the Association. " Article II.
Section 8 of the CSEA Bylaws provides that the Board of
Directors may "enter into contractual agreements . 	as shall
be required to meet the needs of the Association." 	Considering
the above sections, we find nothing in CSEA's Constitution and
Bylaws which would prohibit it from entering into an
affiliation agreement with an international union based on a

vote of the General Council. Charging Party fails to allege
facts to the contrary.
Finally, the charging party asserts that, as a matter of
statutory right. an affiliation decision must be based on a
vote of the entire membership. In support of this contention,
the charging party cites Ventura Community College District
(6/30/82) PERB Order No. Ad-130.
In Ventura Community College District, supra, the Board
considered an appeal of a regional director's refusal to amend
a certification to reflect a disaffiliation of a local union
from an international union. Citing the authority of a
Meyers-Milias-Brown case, North San Diego County Transit
Development Board v. Vial (1981) 117 Cal . App. 3d 27, the Board
held that a change in certification in such circumstances is
appropriate where:
(1) there must be acceptance by the
original certified union. (2) the bargaining
unit must remain substantially the same,
i. e., there is continuity of bargaining
representatives, and (3) the employees are
shown to be able to fully and democratically
consider and vote on affiliation, i.e. in
accordance with due process.
In fashioning its three-part test for approving a change in
certification, the Court in North San Diego County Transit
Development Board, supra, relied on longstanding federal
precedent in this area. See, e.g. . North Electric Co. (1967)
165 NLRB 942 [65 LRRM 1379]; Providence Medical Center (1979)
243 NLRB 714 [102 LRRM 1099]; East Dayton Tool and Die Co.

(1971) 190 NLRB 577 [77 LRRM 1274]; McDermott Co. (1978) 571
F. 2d 850 [98 LRRM 2191]; St. Vincent Hospital (1980) 621 F. 2d
1054 [104 LRRM 2288]. 	These cases stand for the proposition
that the National Labor Relations Board (NLRB) may refuse to
amend a certification or an employer may refuse to negotiate
with an employee organization where
the possibility of a question
concerning representation remains open
because the affiliation took place under
circumstances that do not indicate that the
change reflected a majority view. 	North
Electric Co. . supra.
A question concerning representation may exist where the
affiliation decision was not attended by "adequate due
process. " In a number of cases, the NLRB and the federal
courts held that the adequate due process standard requires a
vote of the membership. 	U.S. Steel Corp. (1972) 457 F. 2d 660
[79 LRRM 2877]; NLRB V. Winchester, Inc. (1978) 588 F. 2d 211
[100 LRRM 2971]; Amoco Production Co. (1982) 262 NLRB 1240 [110
LRRM 1419]; but see Fox Memorial Hospital (1980) 247 NLRB 356
[103 LRRM 1151]; House of the Good Samaritan (1980) 248 NLRB
539 .
We have yet to consider whether a vote of the membership
would be required to comply with the adequate due process
standard for a certification change as set forth in Ventura,
supra. 	However, no question of CSEA's certification or
representational status is before us. 	Nevertheless, even if we
were to assume, arguendo, that a question as to the
8

certification is raised where an affiliation decision is not
subjected to a vote of the entire membership, it does not
necessarily follow that the affiliating employee organization
has in any way breached its duty of fair representation.
Absent some evidence that, as a result of the affiliation, an
employee organization has abandoned its representational duties
or, at the very least, that the affiliation has impaired its
ability or willingness to represent employees effectively, no
prima facie violation of the duty of fair representation is
stated. In this case, there is no evidence that, as a result
of the affiliation, CSEA has in any way been impaired in its
ability to represent employees. 	Accordingly, we find that the
charging party has failed to allege a prima facie violation of
the Act.
ORDER
The unfair practice charge in Case No. S-CO-29-S is
DISMISSED.
Chairperson Hesse and Member Morgenstern joined in this
Decision.
9

S. ATE OF CALIFORNIA 	GEORGE DEUXMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
February 28, 1984
Michael Rothschild
Law Offices of Michael Rothschild
1303 H Street
Sacramento, CA 	95814
Gary Reynolds
Department of Legal Services
California State Emp. Assoc.
1108 "" Street
Sacramento, CA 95814
RE: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE
CHARGE
Paul Norgard v. California State Employees Association;
Charge No. S-CO-29-S
Dear Parties:
Pursuant to Public Employment Relations Board (PERB ) Regulation
section 32620(5) a complaint will not be issued in the
above-referenced case and the pending charge is hereby
dismissed because it fails to allege facts sufficient to state
a prima facie violation of the State Employer-Employee
Relations Act (SEERA) . ! The reasoning which underlies this
decision follows.
On February 3, 1984, Paul Norgard (hereafter charging party )
filed unfair practice charge number S-CO-29-5 against the
California State Employees Association (hereafter CSEA).
unfair practice charge alleges violation of SEERA sections
3519.5(b), 3515, 3518.7, and 3522.2. Specifically, the charge
alleges that CSEA has interferred with charging party's right
to join or participate in activities of employee organizations
by its decision to affiliate with SEIU AFL/CIO.
It is not disputed that an Ad Hoc Committee on AFL-CIO
Affiliation has proposed to the CSEA Board of Directors that
CSEA affiliate by contract to an appropriate AFL-CIO
international union. The primary purpose of the affiliation
was to assure the survival of CSEA by gaining the protection of
Article XX (no raid).
After negotiating with AFSCME, SEIU, CWA, IUOE, and MEBA, the
CSEA chose to propose affiliation with SEIU. The affiliation
vote was conducted on February 4 and resulted in approval.
IReferences to the SEERA are to Government Code sections
3512 et seq. PERB Regulations are codified at California
Administrative Code, Title 8.

February 28, 1984
Page 2
The leading PERB case in this area is Kimmett v. SEIU, PERB
Decision No. 106 (10/19/79). At pages 15-16, the Board states:
Thus, we must decide whether employees have
any rights under sections 3540 and 3543 to
have an employee organization structured or
operated in any particular way.
The BERA 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 such
intervention in union affairs to be beyond
the legislative intent in enacting the EERA.
On page 17, the Board continues:
Thus, unless the internal activities of an
employee organization have such a
substantial impact on employees'
relationship with their employer as to give
rise to a duty of fair representation, we
find that public school employees do not
have any protected rights under the EERA in
the organization of their exclusive
representative. In brief, sections 3540 and
3543 do not give employees more rights in
the internal activities of an employee
organization than they have under section
3544.9.
The Board has not yet addressed a similar question under
SEERA. 	In light of sections 3512 and 3515 (the counterparts of
3540 and 3543) plus the express duty of fair representation to

February 28, 1984
Page 3
non-members found in 3515.7(g) , however, I believe that the
above rationale is equally applicable to employee rights under
SEERA .
Breach of the duty to fairly represent employees occurs only
when a union's conduct toward a member of the unit is
arbitrary, discriminatory or in bad faith. Redlands Teachers
Assn. (9/25/78) PERB Decision No. 72, citing Vaca v. Sipes
(1967) 386 U.S. 171 (64 LRRM 2369]. A prima facie charge
alleging arbitrary conduct must "at a minimum include an
assertion of sufficient facts from which it becomes apparent
how or in what manner the exclusive representative's action or
inaction was without a rational basis or devoid of honest
judgment. " Rocklin Teachers Assn. (3/26/80) PERB Decision No.
124 citing Sindicato de Trabajadores Packing (1st Cir. 1970)
425 F. 2d 281 [74 LRRM 2028] .
Charging party argues that, by affiliation, CSEA has acted to
disenfranchise its members in violation of its duty of fair
representation. His argument is that disenfranchisement occurs
because of the operation of Article XX of the AFL-CIO
Constitution. He theorizes that, since no other AFL-CIO union
can seek to decertify CSEA, his rights to form, join, and
participate have been abridged. As noted in Kimmett, however,
this analysis is incorrect.
Assuming, arguendo, that PERB were prepared to review an
affiliation decision under the duty of fair representation
theory, we would look to see whether the action was "without a
rational basis or devoid of honest judgment. " In the instant
case, such a conclusion cannot by justified. As charging party
notes, CSEA's own "Recommendation of the CSEA ad Hoc Committee
on AFL-CIO Affiliation, " dated October 20, 1983, states:
"The very real possibility that CSEA could
be decertified in one or more civil service
bargaining units in 1984 and thus suffer a
substantial revenue loss prompted our
union's leadership to re-evaluate the
question of affiliating to an AFL-CIO union.
"This re-evaluation was ordered for only one
reason: to determine whether it is in the
Association's best interest to affiliate in
order to gain the AFL-CIO Constitution's
Article XX protections against

February 28, 1984
Page 4
decertification attempts by other AFL-CIO
unions -- our major challengers."
(Recommendtion of the CSEA Ad Hoc Committee
on AFL-CIO Affiliation, page 2.)
"Protection Against Raiding -- The committee
concludes that if CSEA remains unaffiliated
with the AFL-CIO, we will fact very costly,
unhill (sic) decertification battles whose
outcome is very uncertain at best. The
major reason for affiliation would be to
stop most AFL-CIO decertification attempts
and to enable us to fight off any that do
occur .
Such reasoning belies any argument that the decision to
affiliate was without rational basis or devoid of honest
judgment. 	Nor does the alleged lack of standards in the
Constitution, By-Laws, or Policies of CSEA regarding
affiliation make the decision arbitrary and capricious.
Pursuant to Public Employment Relations Board regulation
section 32635 (California Administrative Code, title 8,
part III), you may appeal the refusal to issue a complaint
(dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20)
calendar days after service of this dismissal
(section 32635 (a) ). To be timely filed, the original and five
(5) copies of such appeal must be actually received by the
Board itself before the close of business (5:00 p.m. ) on
Monday, March 19, 1984, or sent by telegraph or certified
United States mail postmarked not later than Monday,
March 19, 1984 (section 32135) . The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a
complaint, any other party may file with the Board an original

February 28, 1984
Page 5
and five (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal
(section 32635 (b) ) .
Service
All documents authorized to be filed herein must also be
"served" upon all parties to the proceeding, and a "proof of
service" must accompany the document filed with the Board
itself (see section 32140 for the required contents and a
sample form) . The document will be considered properly
"served" when personally delivered or deposited in the
first-class mail postage paid and properly addressed.
Extension of Time
A request for an extension of time in which to file a document
with the Board itself must be in writing and filed with the
Board at the previously noted address. A request for an
extension must be filed at least three (3) calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, if known, the
position of each other party regarding the extension, and shall.
be accompanied by proof of service of the request upon each
party (section 32132) .
Final Date
If no appeal is filed within the specified time limits, the
dismissal will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
Robert Kingsley
Attorney