California State Employees Association (Miller) (PERB 0819S)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
BARBARA 	LYNN 	MILLER,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Respondent.
Case No. 	S-CO-109-S
PERB Decision No. 	819-S
June 25, 	1990
Appearances: 	Barbara L. 	Miller, 	on her own behalf; 	Howard
Schwartz, 	Attorney, 	for California State Employees' 	Association.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by Barbara
Lynn Miller 	(Miller) 	of 	a Board agent's 	dismissal 	of her 	charge
that the California State Employees' 	Association 	(CSEA or
Association) 	violated section 3519.5(b) 	of the Ralph C. 	Dills Act
(Dills Act),1 by not informing her of the limitation on
1Ralph C. 	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(b)
provides:
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
)
)
)
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withdrawal 	of 	membership 	rights 	available 	under the 	collective
bargaining agreement. 	For the reasons 	that 	follow, 	we 	find 	the
charge was 	properly 	dismissed.
In April 	1989 	Miller 	joined CSEA 	in order to 	become 	eligible
No	
for group 	disability 	insurance. 2 The prior 	collective 	bargaining
agreement 	between the 	State 	of 	California 	and CSEA 	expired 	on
June 30, 	1988, 	and the parties 	entered into a new agreement
effective May 	17, 	1989. 	Therefore, 	at the time Miller joined
CSEA there was 	no 	collective bargaining agreement 	in effect. 	The
insurance 	company 	rejected 	Miller's 	application 	for 	disability
insurance on June 2, 	1989.
Within one 	to 	four weeks 	after receiving 	a 	rejection 	from
the 	insurance 	company, 	Miller wrote 	to CSEA requesting withdrawal
from membership. 	The Association responded by 	informing her 	that
she was 	required to maintain membership until 	June 	1991, 	when the
current 	collective bargaining 	agreement 	expires.3
employees 	because of 	their exercise 	of 	rights
guaranteed by this 	chapter.
2For purposes 	of reviewing the appeal, 	we assume that the
essential 	facts 	alleged 	in the 	charge are true. 	(San Juan
Unified School District 	(1977) 	EERB Decision No. 	12.) 	(Prior to
January 	1, 	1978, 	PERB was known as the Educational Employment
Relations 	Board.)
3Section 3515 	of the Dills Act 	states, 	in pertinent part:
State 	employees 	also 	shall 	have 	the right 	to
refuse to 	join or participate 	in the
activities of employee organizations, 	except
that nothing 	shall preclude the parties 	from
agreeing to a maintenance 	of membership
provision, 	as defined in subdivision 	(h) 	of
Section 	3513 	. . . .
N	2

Maintenance of membership as defined 	in 	section 3513(h) 	states,
in pertinent part:
. 	. 	. 	all employees who voluntarily are, 	or
who voluntarily become, 	members of a
recognized 	employee 	organization 	shall 	remain
members 	of 	such employee 	organization 	in good
standing 	for a period as 	agreed to by the
parties 	. . . .
Miller 	filed a 	charge with the 	Board alleging the 	above-
recited 	facts. 	She 	claimed the Association violated 	its 	duty of
fair representation pursuant 	to 	section 	3519.5(b) 	of the Dills
Act.4 Ordinarily, 	the Board will 	not review internal union
affairs 	unless 	the 	activities 	involved 	in the 	charge 	"have 	a
substantial 	impact 	on the 	relationship of unit members 	to 	their
employers." 	(Service Employees 	International Union. 	Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106.) 	Only those union
activities 	that have 	a 	substantial 	impact 	on the 	relationships 	of
unit 	members 	to 	their employers 	are 	subject to the duty of 	fair
representation. 	(Id. 	at p. 	8.) 	Miller has put forth no 	facts 	to
indicate 	that 	CSEA's 	alleged 	activities 	in connection with
membership 	requirements 	had 	a 	substantial 	impact 	on her
relationship with her employer. 	Therefore, 	as CSEA's 	conduct 	is
not 	subject to the duty of 	fair representation, 	no prima 	facie
violation of 	section 	3519.5(b) 	has 	been 	established under that
theory.
4The duty of 	fair representation under the 	Dills Act 	is 	not
specifically 	set 	forth, 	but a 	charging party may appropriately
allege a violation of that duty under section 3519.5(b).
(California State Employees' 	Association 	(Norgard) 	(1984) 	PERB
Decision No. 	451-S, 	fn. 	1.) 	This was apparently Miller's intent
as 	evidenced by her original 	unfair practice 	charge 	to 	the 	Board,
3w

Notwithstanding a party's 	failure 	to 	allege 	facts 	sufficient
to 	show a 	substantial 	impact on the 	employment relationship 	and
thus 	a violation of the duty of 	fair representation, 	if the
factual 	allegations would 	support 	a 	finding under 	section
3519.5(b) 	of retaliation, 	discrimination, 	or interference by an
employee 	organization, 	the 	Board has 	statutory authority to
inquire 	into 	the 	internal 	activities 	of 	the 	employee
organization. 	(California State Employees' 	Association
(O'Connell) 	(1989) 	PERB Decision No. 	753-H.)5 However, 	in order
to 	state 	an 	interference 	or discrimination claim, 	the 	charging
party must, 	at a minimum, 	allege a respondent's 	action was
motivated by 	an unlawful 	intent 	to 	either 	interfere with 	or
otherwise 	discriminate 	against 	an 	employee 	because 	of 	the
exercise 	of 	rights 	guaranteed by the 	statute. 	(Novato 	Unified
School District 	(1982) 	PERB Decision No. 	210.) 	Miller presented
no 	facts 	alleging 	that 	the 	maintenance 	of 	membership provision
was 	discriminatory 	or had been 	applied 	in 	a 	discriminatory 	manner
or 	that 	the Association 	singled her 	out 	by discriminatorily
refusing to provide her with notice of 	the provision.
Furthermore, 	there was 	no 	indication the Association had
otherwise 	interfered with 	the 	exercise 	of 	Miller's 	rights 	under
5In O'Connell. 	the Board, 	in determining whether the
allegations 	constituted 	a violation of 	the 	Higher Educational
Employer-Employee Relations Act 	section 3571.l(b), 	analyzed the
limitations of Service Employees 	International Union, 	Local 	99
(Kimmett), 	supra. 	In Kimmett. 	the Board addressed section
3543.6(b) 	of the Educational Employment Relations Act. 	These two
sections 	contain language 	identical 	to 	section 3519.5(b) 	of 	the
Dills Act.
44

the Dills Act. 	Thus, 	Miller failed to 	state a prima 	facie
discrimination/retaliation 	violation.
ORDER
Based on the 	entire 	record 	in this 	case, 	and 	consistent with
the discussion above, 	it 	is hereby ORDERED that the unfair
practice 	charge 	in Case No. 	S-CO-109-S 	be 	DISMISSED WITH
PREJUDICE.
Members 	Shank and Cunningham 	joined 	in this 	Decision.
Un
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