State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB 0769S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	S-CE-425-S
PERB 	Decision No. 	769-S
September 27, 	1989
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Appearances: 	Sam A. 	McCall, 	Jr., 	Chief Legal Counsel, 	for the
California Union of Safety Employees; 	Roy J. 	Chastain, 	Labor
Relations Counsel, 	for the State of California 	(Department of
Personnel Administration).
Before Craib, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal by the 	charging party,
California Union of Safety Employees 	(CAUSE), 	of a Board agent's
dismissal 	(attached hereto) 	of 	its 	charge 	for failure to 	state a
prima facie case. 	CAUSE alleged that the respondent, 	State of
California 	(Department of 	Personnel Administration) 	violated
section 3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Act)
(Government Code section 3512 	et seq.). 	The Board agent provided
CAUSE with the opportunity to amend 	its 	charge, 	and CAUSE 	alleged
that the 	same conduct violated 	section 	3519(d) 	of 	the Act.
After reviewing the dismissal, 	along with the 	appeal 	filed
by the 	charging party, 	we 	find the dismissal 	to be 	free 	of
prejudicial 	error, 	and adopt 	it as 	the Decision of 	the Board
itself.
__ )

ORDER
The unfair practice 	charge 	in Case No. 	S-CE-427-S 	is 	hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Craib and Camilli 	joined 	in this 	Decision.

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198	
@
July 24, 	1989
Sam A. 	McCall, 	Jr.
Chief 	Legal 	Counsel
CAUSE
915 	20th 	Street
Sacramento, 	CA 	95814
Re: 	California Union of Safety Employees v. 	State of California
(Department of Personnel Administration).
Unfair Practice Charge No. 	S-CE-425-S
Dear Mr. 	McCall:
On June 	5, 	1989, 	the California Union of 	Safety Employees 	(CAUSE)
filed a 	charge 	against 	the 	Department 	of 	General 	Services
alleging violations 	of Government Code 	sections 	3515.5(a) 	and
(b). 	Specifically, 	CAUSE charged that the Department of General
Services 	(DGS) 	and the 	Department 	of 	Personnel Administration
(DPA) 	discriminated and 	interfered with the rights 	of 	CAUSE
members 	who 	appeared 	as 	CAUSE witnesses 	in a unit 	modification
hearing. 	You have 	further alleged 	that 	the 	State 	interfered with
the rights 	of CAUSE under the Dills Act.
I 	indicated to you 	in my attached 	letter dated June 	28, 	1989 	that
the 	above-referenced 	charge did not 	state 	a prima 	facie 	case.
You were 	advised that 	if 	there were any 	factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	the deficiencies 	explained 	in
that 	letter, 	you 	should amend the 	charge 	accordingly. 	You were
further advised that unless 	you amended 	the 	charge to 	state 	a
prima facie case, 	or withdrew it prior to July 	13, 	1989, 	the
charge would be 	dismissed.
I 	received your amended charge on July 	5, 	1989. 	I 	am dismissing
the 	charge based 	on the 	facts 	and 	reasons 	contained 	in my
July 	13, 	1989 	letter and the reasons given here.
In your 	initial 	charge 	you 	alleged 	that 	the 	employer violated
Government Code 	section 3519(a) 	and 	(b) 	by its actions. 	My
letter of July 	13 	addresses 	those allegations. 	You now allege
that 	the 	employer's 	refusal 	to pay 	travel 	expenses 	and per 	diem
for your witnesses 	is 	a 	violation of 	Government 	Code 	section
I)

July 24, 	1989
Page 2
3519(d) 	because 	it 	interferes with the 	administration of 	an
employee organization 	(CAUSE).
Section 	3519(d) 	makes 	it unlawful 	for the 	state to 	"dominate or
interfere with 	the 	formation or administration 	of 	any 	employee
organization, 	or contribute financial or other support to 	it, 	or
in any way 	encourage 	employees 	to 	join any organization 	in
preference 	to another." 	This 	section prohibits 	employers 	from
controlling 	the 	form and 	actions 	of 	an employee 	organization.
(See Antelope Valley Community College 	District 	(1979) 	PERB
Decision No. 	97.) 	However, 	you have submitted no 	facts which
show the 	employer 	to be 	controlling the 	actions 	of 	your
organization. 	You 	are merely asserting that participation 	in a
unit 	modification hearing 	creates 	a 	financial 	burden 	for your
organization. 	As with Government Code 	3519 	subsections 	(a) 	and
(b), 	subsection 	(d) 	creates no employer obligation to 	subsidize a
union when it 	exercises 	its 	right 	to represent 	employees 	under
the Dills Act. 	Accordingly, 	your allegation of a violation of
Government Code 	section 	3519(d) 	must also be dismissed.
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing 	an
appeal 	to the Board 	itself within twenty 	(20) 	calendar days 	after
service 	of 	this 	dismissal 	(California Administrative 	Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal must be 	actually 	received by 	the 	Board
itself before the 	close of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or Express 	United 	States 	mail postmarked 	no
later than the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file 	a timely appeal of 	the refusal to 	issue 	a 	complaint,
any 	other party 	may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar 	days
following the date 	of 	service 	of 	the appeal 	(California
Administrative Code, 	title 8, 	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 	each 	copy 	of 	a 	document 	served upon a party 	or 	filed

July 24, 	1989
Page 	3
with the 	Board 	itself. 	(See California Administrative 	Code,
title 	8, 	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 	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 	(California
Administrative Code, 	title 8, 	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.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By Bernard 	McMonigle
Staff 	Attorney
Attachment
cc: 	Roy Chastain

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
PER
June 28, 	1989
Sam A. 	McCall, Jr.
Chief 	Legal 	Counsel
CAUSE
915 	20th 	Street
Sacramento, 	CA 	95814
Re: 	California 	Union of 	Safety Employees 	v. 	State of California- -
(Department 	of 	Personnel 	Administration),
Unfair Practice Charge No. 	S-CE-425-S
WARNING 	LETTER.
Dear Mr. 	McCall:
On June 	5, 	1989, 	the California Union of 	Safety Employees 	(CAUSE)
filed 	a 	charge 	against the 	Department 	of 	General 	Services
alleging violations 	of Government Code 	sections 	3515.5(a) 	and
(b). 	Specifically, 	CAUSE charges that the Department of General
Services 	(DGS) 	and the Department of 	Personnel Administration
(DPA) 	discriminated 	and 	interfered with the 	rights 	of 	CAUSE
members 	who 	appeared 	as 	CAUSE witnesses 	in a unit 	modification
hearing. 	You have 	further 	alleged 	that 	the 	State 	interfered with
organizational 	rights 	of 	CAUSE under the 	Dills Act.
Investigation reveals 	the 	following. 	DGS 	and DPA 	filed 	a 	unit
modification petition to remove State Police Sergeants, 	State
Fair police 	sergeants 	from unit 	7. 	CAUSE 	is 	the exclusive
representative 	for unit 	7. 	CAUSE 	is 	opposed to 	this 	modification
of 	the bargaining unit. 	Several 	days 	of 	hearing have been held
on the unit modification matter. 	More hearing days 	are
scheduled. 	DPA has 	called management personnel 	and 	sergeants 	as
witnesses. 	DPA 	is paying the 	travel 	expenses 	and per diem 	for
its witnesses. 	DPA has denied a CAUSE request 	for travel
expenses 	and per diem payment 	for any witnesses 	called by CAUSE.
DPA did 	approve 	release 	time 	for CAUSE witnesses.
To demonstrate a violation of Government Code 	section 	3519(a),
the Charging Party must 	show that: 	(1) 	employee exercised 	rights
under the Dills Act, 	(2) 	the employer had knowledge of the
exercise of those rights, 	and 	(3) 	the employer imposed or
threatened 	to 	impose 	reprisals, 	discriminated 	or 	threatened 	to
discriminate, 	or otherwise 	interfered with, 	restrained or coerced

June 28, 	1989
Page 	2
employees because of the exercise of those rights. 	Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; 	Department
of Developmental Services 	(1982) 	PERB Decision No. 	228-S. 	In
this 	case, 	employees 	are exercising their rights 	under the Dills
Act 	to participate with 	the union 	in a 	unit 	modification
procedures. 	There 	is no evidence that the employer has
threatened 	the 	employees 	for their participation 	in 	the hearing,
discriminated 	against 	them 	or 	otherwise 	interfered 	because 	of
their participation 	in the hearing. 	There 	is 	no 	obligation under
the 	Dills Act 	for an 	employer to pay the 	expenses 	for 	individuals
to 	exercise their rights under that Act. 	Accordingly, 	this
allegation must 	be 	dismissed.
You've 	also 	alleged 	that 	the 	denial 	of 	travel 	expenses 	and per
diem 	interferes with the 	rights 	of 	CAUSE 	under the 	Dills Act.
Government Code 	section 3519(b) 	states 	that 	it 	shall 	be an unfair
labor practice 	for an 	employer to 	"deny 	to 	employee 	organizations
rights 	guaranteed to 	them by this 	chapter." 	However, 	you have
not 	shown 	that 	the 	employee 	organization has 	been denied 	any
rights. 	The 	facts 	show CAUSE to be 	exercising its 	right to
participate 	in the unit modification hearing. 	No 	interference
with 	the 	union's 	participation 	in 	the 	unit modification hearings
has 	been 	shown. 	You have merely asserted that participation 	in
the 	unit 	modification hearing puts 	a 	financial 	burden 	on CAUSE.
However, 	the employer is under no obligation to 	subsidize the
union when 	it 	exercises 	its 	right 	to 	represent 	employees 	under
the 	Dills Act. 	Accordingly, 	this 	allegation must be dismissed.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there are any 	factual 	inaccuracies 	in
this 	letter 	or any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	The 	amended 	charge 	should 	be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First 	Amended
Charge, 	contain all 	the 	facts 	and allegations you wish to make,
and 	must 	be 	signed under penalty 	of 	perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served on the 	respondent 	and
the 	original proof 	of 	service must be 	filed with PERB. 	If 	I 	do

June 28, 	1989
Page 3
not 	receive 	an amended 	charge 	or withdrawal 	from you 	before
July 	13, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney