State of California, Department of Corrections (Thomas) (PERB 0972S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE 	THOMAS,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. 	SF-CE-94-S
PERB Decision No. 	972-S
February 	9, 	1993
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Appearances: 	Stephanie Rubinoff and Martin M. 	Horowitz,
Attorneys, 	for Joyce Thomas; 	State of California 	(Department 	of
Personnel Administration) 	by Joan Branin, 	Labor Relations
Counsel, 	for State of California 	(Department of Corrections).
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Joyce Thomas
(Thomas) 	of a PERB administrative law judge's 	(ALJ) 	dismissal
(attached hereto) 	of 	Thomas's 	complaint 	alleging 	that 	the 	State
of 	California 	(Department 	of 	Corrections) 	violated
section 3519(b) 	and 	(d) 	of the Ralph C. 	Dills Act 	(Dills Act).1
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 	provides, 	in
pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate or interfere with the 	formation
or administration 	of 	any employee
organization, 	or contribute 	financial 	or
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The ALJ 	dismissed 	the 	complaint 	based 	on his 	conclusion 	that
Thomas 	lacked 	standing 	to pursue 	the allegations 	at 	issue.
The Board has 	reviewed the dismissal, 	and finding 	it 	to be
free of prejudicial 	error, 	adopts 	it as 	the decision of 	the Board
itself.
DISCUSSION
On appeal, 	Thomas argues 	that 	good cause 	exists under PERB
Regulation section 32635(b)2 to allow her to present 	supporting
evidence 	for 	the 	first 	time 	on appeal. 	The new evidence 	consists
of 	declarations 	from a California 	State 	Employees 	Association
(CSEA) 	official 	and 	from an attorney 	for Thomas 	which address 	the
issues 	of 	Thomas's 	standing 	to pursue 	the alleged violations 	in
this case.
Thomas 	argues 	that 	good cause 	exists 	to present 	new
supporting 	evidence because 	she 	is 	"confined 	to 	legal 	argument
and 	is provided with no vehicle 	for 	the 	introduction 	of 	evidence"
in 	opposing 	the motion to 	dismiss 	filed by 	the 	respondent 	in 	this
case. 	Contrary to this assertion, 	Thomas 	filed a brief 	in
opposition 	to 	respondent's motion 	to 	dismiss 	in which 	she 	had 	the
other support 	to 	it, 	or in any way encourage
employees 	to 	join any organization 	in
preference 	to another.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32635
states, 	in pertinent part:
(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new 	charge
allegations 	or new supporting 	evidence.
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opportunity 	to 	submit 	the 	declarations 	which now are 	submitted 	on
appeal. 	Thomas has 	not provided adequate 	explanation as 	to why-
she was unable 	to provide 	the declarations 	to 	the ALJ with her
opposition brief. 	Therefore, 	the Board finds 	that no good cause
exists 	to permit 	Thomas 	to present 	new supporting 	evidence 	on
appeal.
The 	primary 	issue 	in this 	case 	involves 	the 	standing 	of 	an
individual 	employee 	to pursue allegations 	of a violation of 	Dills
Act section 3519(b) 	and 	(d), 	which protect the collective
bargaining rights 	of 	employee 	organizations. 	This question is
easily resolved. 	The undisputed 	fact 	in 	this 	case 	is 	that 	the
complaint was amended, 	at Thomas's request, 	to remove CSEA, 	the
exclusive representative, 	and substitute Joyce Thomas, 	an
individual, 	as 	the 	charging party. 	This 	amendment must be 	taken
at 	its 	face value.
The 	Board has 	held that 	an 	individual 	unit member does 	not
have 	standing 	to pursue violations 	of 	rights 	of 	an employee
organization. 	(Oxnard School District 	(1988) 	PERB Decision
No. 	667; 	Elk Grove Unified School District 	(1990) 	PERB Decision
No. 	856; 	Los Angeles Community College District 	(1984) 	PERB
Decision No. 	418; 	California State University 	(Pomona) 	(1988)
PERB Decision No. 	710-H.)
The 	rights 	at 	issue 	in this 	case, 	the 	right 	to represent and
the 	right 	to be 	free 	from employer 	interference with 	internal
union activities, 	are union 	rights which require 	that 	an alleged
violation of 	these 	rights be prosecuted by the union. 	To grant
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an 	individual 	standing to 	file 	charges 	of 	this 	nature would
undermine 	stable 	labor-management 	relations 	existing between 	the
employer 	and 	the 	exclusive 	representative. 	When CSEA withdrew
from pursuing 	the alleged violations, 	the 	legal 	effect was 	the
same as 	if the 	charges had been withdrawn. 	Therefore, 	Thomas
does 	not 	have 	standing 	to pursue 	the 	alleged violations 	in 	this
case.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-94-S 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Carlyle 	joined 	in 	this 	Decision.
44

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE THOMAS,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
)
) 	Unfair Practice
Case No. 	SF-CE-94-S	)
)
)
)
)
)
NOTICE 	OF DISMISSAL
NOTICE 	is 	given 	that 	the motion of 	the 	State 	of 	California
(Department 	of 	Corrections) 	to dismiss 	the above 	charge and
complaint 	is 	hereby granted. 	The 	complaint 	is 	dismissed because
the 	charging party 	lacks 	standing 	to pursue 	the allegations 	at
issue. 	The hearing scheduled to commence on September 8, 	1992,
is hereby 	cancelled.
The charge at 	issue was 	filed on May 28, 	1991, 	by the
California State Employees Association 	(CSEA) 	against 	the State
of California 	(Department of Corrections). 	On June 25, 	1991, 	the
general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB or
Board) 	issued a 	complaint 	on part 	of 	the 	charge and dismissed the
remainder. 	The 	complaint 	alleges 	that 	the 	State 	of 	California
(State) 	violated section 3519(b) 	and 	(d) 	of 	the Ralph C. 	Dills
Act.1 The 	general 	counsel 	dismissed outright 	an allegation 	that
1Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to
the Government Code. 	The Ralph C. 	Dills Act 	(Dills Act) 	is
codified at Government 	Code 	section 3512 	et 	seq. 	In relevant
part, 	section 3519 provides as 	follows:
It 	shall be unlawful 	for the 	state 	to do any of
________________ )

the 	State 	had violated section 	3519(c) 	and dismissed 	for deferral
to 	arbitration 	an allegation 	that 	the 	State 	had violated 	section
3519(a).
On April 	1, 	1992, 	Joyce Thomas 	filed a motion to amend the
complaint 	to substitute herself as 	charging party in place of
CSEA.2 In support 	of this 	request, 	counsel 	for Ms. 	Thomas 	filed
a declaration which ascribed 	to 	counsel 	for CSEA the 	statement
that 	"the position adopted by CSEA was 	in 	conflict 	with 	that 	of
Ms. 	Thomas." 	This 	conflict was given as 	the basis 	for the
withdrawal 	by 	counsel 	for CSEA. 	The motion also 	requested to
amend 	into 	the 	complaint 	certain new allegations 	regarding 	events
which occurred 	subsequent 	to 	the 	original 	complaint.
On May 5, 	1992, 	the chief administrative law judge granted
the motion to amend. 	He ordered that Joyce Thomas be 	substituted
the 	following:
(a) 	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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an applicant 	for
employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights guaranteed to
them by this 	chapter.
(d) 	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.
Ms. 	Thomas 	on April 	1 also 	filed a notice of 	revocation of
Robert L. 	Mueller, 	an attorney for CSEA, 	as her representative.
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for CSEA as 	the charging party and he added new factual
allegations. 	As amended, 	the complaint alleges that the State
denied to CSEA the right to represent its members in violation of
section 3519(b) when:
1. 	On or about April 2 and 5, 	1991, 	it served notices of
interrogation on Ms. Thomas and, 	on April 8, 	1991, 	subjected
Ms. 	Thomas to an interrogation at the Vacaville Police
Department.
2. 	On or about May 10, 	1991, 	it took adverse action
against Judy Brooks, 	who had issued a statement defending
Ms. Thomas, by terminating Ms. Brooks.
3. 	On or about October 29, 	1991, 	it served a notice of
adverse action on Ms. 	Thomas and subsequently placed a letter of
reprimand in her personnel 	file.
The complaint alleges 	that the State interfered with the
administration of CSEA in violation of section 3519(d) 	when:
4. 	Throughout April and May of 1991, 	it relied upon
information supplied by a 	staff person employed by CSEA and known
to be in a power struggle with Ms. 	Thomas when preparing the
accusations against Ms. Thomas.
In its motion to dismiss, 	the State attacks the standing of
Ms. Thomas to pursue these accusations. 	The State argues that
section 3519(b) 	and 	(d) 	is enforceable only by an employee
organization and not by an individual member. 	The State argues
that Ms. 	Thomas clearly does not fall within the statutory
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definition of 	"employee organization"33 	and 	is 	thus 	without
standing 	to pursue 	her claim under 	the 	theories 	set 	out 	in 	the
complaint. 	With the removal 	of 	CSEA as 	the 	charging party, 	the
State argues, 	no party remaining 	in the 	case has 	standing to take
the 3519(b) 	and 	(d) 	allegations forward.
Ms. 	Thomas 	replies 	that 	the 	removal 	of CSEA as 	charging
party does 	not mean 	that 	an employee 	organization 	is 	removed 	from
the 	case. 	She 	contends 	that 	CSEA's District 	Labor Council 	747,
of which she 	is president, 	constitutes as an employee
organization under the Dills Act. 	As president, 	she argues, 	she
has 	standing 	to assert violations 	of 	employee organization rights
and is not bringing the action as 	an individual.
This 	argument 	is 	easily disposed of. 	Plainly the amendment
to 	the 	complaint 	did not 	insert 	CSEA District 	Labor Council 	747
as charging party. 	The amendment names Joyce Thomas, 	an
individual person, 	as the charging party. 	That Ms. 	Thomas is an
officer 	in 	the 	organization does 	not 	establish that 	the
organization has 	filed 	the 	charge. 	The amendment 	substituted her
as 	the 	charging party and must be accepted at 	its 	face value. 	On
its 	face, 	the amendment does 	not permit 	the 	conclusion that CSEA
District 	Labor Council 	747 	is 	the 	charging party.4
3 3Section 3513(a) 	defines 	"employee organization as:
. 	. 	. 	any organization which includes
employees 	of 	the 	state and which has as 	one
of 	its 	primary purposes 	representing these
employees 	in 	their relations with the 	state.
4Even 	if 	the 	amendment 	had named 	the 	district 	council 	as
charging party, 	the 	standing question could not be 	ignored. 	It
3
4

Under section 3514.5, 	"[a]ny employee, 	employee
organization, 	or employer shall 	have 	the 	right 	to 	file an unfair
practice 	charge. 	. . . " 	At 	one 	time, 	the Board 	interpreted this
language 	as 	granting 	individual 	employees 	the 	right 	to 	file
unfair practice 	charges 	against 	an 	employer based upon an
employer's 	alleged violation of 	rights 	of 	the 	exclusive
representative. 	(See 	South San Francisco Unified School 	District
(1980) 	PERB Decision No. 	112.)
However, 	the 	Board later explicitly 	overruled 	this
conclusion in Oxnard School 	District 	(1988) 	PERB Decision
No. 	667.5 There, 	the Board held that 	individual 	employees have
no 	standing 	to 	file 	a 	failure 	to negotiate 	charge against 	a
school 	district. 	The Board held that 	the employer's duty to
negotiate 	in good 	faith is 	owed only to 	the 	exclusive
representative. 	Allowing 	individual 	employees 	to 	challenge 	the
employer's good faith in negotiations, 	the Board wrote, 	would of
necessity 	interfere with the 	collective bargaining process. 	The
Board 	reached 	the 	same 	result 	in 	Elk Grove 	Unified 	School
District 	(1990) 	PERB Decision No. 	856, 	a case cited by the State.
Current 	Board decisions 	thus make 	it 	clear 	that 	section 3514.5
does 	not nullify 	the normal 	requirements 	of 	standing.
is 	hard 	to 	see how a 	constituent 	part 	of 	an organization would
have 	standing 	to 	go 	forward with 	a 	claim 	from which 	the parent
chooses 	to remove 	itself. 	Such a 	rule would afford dissident
rump 	organizations 	free hand to disrupt 	relations 	between an
exclusive 	representative 	and an 	employer.
55 The Educational 	Employment Relations Act, 	under which
Oxnard was decided, 	contains 	language 	in section 3541.5(a)
identical 	to that 	in section 3514.5(a) 	of 	the Dills Act.
5

Although 	the 	interests 	to be protected by 	section 	3519(b)
and 	(d) 	differ somewhat from the bargaining cases, 	Ms. 	Thomas has
advanced no persuasive 	rationale 	that 	would afford her 	standing.
The 	right 	of 	an employee 	organization to 	represent 	its members 	is
not 	a 	right 	that 	an 	individual 	member 	can appropriately
vindicate. 	Not 	only would an 	individual 	member have 	difficulty
in developing 	the 	necessary 	evidence, 6	6 but 	permitting 	individuals
to go 	forward on these 	theories might 	well 	produce 	litigation 	the
union did not 	favor. 	Charges 	alleging employer denial 	of
organizational 	rights 	and/or 	interference 	with 	internal 	union
activities necessarily pit 	the union against 	the employer. 	For
various 	strategic 	or tactical 	reasons, 	a union might 	conclude
that 	it did not wish to pursue 	such claims. 	If a member had
standing to go 	forward on his 	or her own volition, 	that member's
activity 	could 	run 	counter 	to what 	the union believed 	to be 	in
its best 	interests.
The Board has 	long held that 	an 	individual unit member may
not 	use an unfair practice 	charge 	to 	insert 	himself 	or herself
66 To show a violation of 	section 3519(b) 	on this 	theory, 	a
charging party must demonstrate that: 	1) 	the employer retaliated
against 	an 	individual 	employee 	for 	engaging 	in protected 	conduct
and 2) 	the effect 	of 	this 	retaliation was a denial 	of protected
rights 	to the employee organization. 	While Ms. 	Thomas might well
be able to develop evidence about 	the 	first 	element, 	proof 	of 	the
second 	requires 	a 	showing 	of 	actual 	impact 	upon the 	employee
organization. 	Theoretical 	impact 	is 	not 	sufficient. 	Specific
harm to 	the 	employee 	organization's 	ability to 	represent 	its
members must be 	shown. 	A demonstration by Ms. 	Thomas 	that 	she
was 	individually harmed because 	of 	her protected acts 	would not
show that 	the 	organization was 	harmed. 	Since 	the 	evidence needed
to establish the 	second element 	is 	uniquely within the 	control 	of
the employee organization, 	it 	is not evidence to which Ms. 	Thomas
necessarily would have 	access.
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between the 	employer and the 	exclusive 	representative. 	Thus, 	the
Board has 	denied 	standing 	to a unit 	member who asserted 	that 	the
employer 	had 	failed 	to 	furnish 	information 	required 	for
bargaining. 	(Los Angeles 	Community College District 	(1984) 	PERB
Decision No. 	418.)
Similarly, 	the Board has 	denied standing to a unit member
who asserted 	that 	the 	employer 	had 	improperly denied him access
to a bargaining session. 	(Los Angeles 	Community College District
(1984) 	PERB Decision No. 	417.) 	The Board held that 	the right 	to
determine 	composition of 	the union's 	negotiating 	team was 	that 	of
the union. 	Thus, 	when the union accepted the school district's
acknowledgement 	that 	it 	should not 	have denied 	the member access,
the unit member was 	left with no surviving 	interest. 	This 	is
because 	"the 	real 	aggrieved party 	[had] 	accepted the explanation
and assurance 	in settlement 	of 	the dispute."
The rights at 	issue here, 	the 	right 	to represent and the
right 	to be 	free 	from employer 	interference with 	internal union
activities, 	are those of the union. 	Although CSEA has not
disclosed the nature 	of 	the 	"conflict" 	that 	led to 	its
withdrawal, 	the complaint 	itself suggests 	the reason. 	The
complaint 	alleges 	that Department 	of 	Corrections 	administrators
prepared an accusation against Ms. 	Thomas 	based 	"upon 	information
received from Diane Ayers, 	a staff person employed by 	[CSEA], 	who
was 	known to be 	involved 	in a heated power 	struggle with
Ms. 	Thomas." 	From this accusation, 	one might conclude that CSEA
withdrew because 	it 	did not 	wish 	to publicly air the 	claims 	of a
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CSEA officer against 	a CSEA employee. 	But whatever 	the 	reason,
since 	CSEA was 	the aggrieved party, 	it had the 	right 	to make 	the
judgment on pursuit of the charge. 	Ms. 	Thomas should not now be
able 	to compel 	litigation 	on an 	issue 	that 	CSEA has 	chosen to
avoid.
Since 	the 	rights at 	issue here 	are 	those of 	the union and
not 	of an individual member, 	the action must be prosecuted in the
name of 	the union. 	When the union withdrew from prosecuting 	the
alleged violations of section 3519(b) 	and 	(d), 	the legal effect
was 	the same as 	if 	the charges 	had been withdrawn. 	Accordingly,
the State's motion to dismiss 	the alleged violations 	of 	section
3519(b) 	and 	(d) 	is granted.7 This dismissal 	covers 	the new
matter added by the May 5, 	1992, 	amendment as a violation of
3519(b).8
7The rights of Ms. 	Thomas under section 3519(b) 	and 	(d) 	are
at most incidental 	to those of 	the union. 	By contrast, 	she has
direct 	individual protection under section 3519(a). 	Since the
contract between the parties 	incorporates 	the protections 	of 	the
statute, 	Ms. 	Thomas 	can find redress 	for the alleged harm through
the contractual grievance procedure. 	Ms. 	Thomas 	is not without a
remedy.
It 	should be noted that 	if Ms. 	Thomas had alleged the new
material as a violation of 	section 3519(a), 	the 	charge still
would have 	to be dismissed. 	As 	the 	general 	counsel 	wrote 	in
letters of May 21 and June 25, 	1991, 	there is contractual
language 	culminating 	in binding 	arbitration which 	arguably
prohibits 	the 	challenged conduct. 	Even though the amendment 	to
the 	complaint 	pertains 	to 	an 	incident 	occurring after 	the
expiration of 	the 	contract 	between 	the 	State and CSEA, 	the
dispute remains arbitrable. 	In Anaheim City School 	District
(1983) 	PERB Decision No. 	364, 	the Board held that unless the
parties 	to a 	contract 	expressly 	indicate a 	contrary intention, 	it
is 	presumed that 	an arbitrator will 	resolve all 	disputes
"arguably arising under 	the 	contract." 	Nothing 	in 	the 	agreement
between 	these parties 	indicates 	that 	an arbitrator 	should not
resolve 	all 	disputes 	"arguably arising under 	the 	contract."
8

Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations,
the Charging 	Party 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. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	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 p.m.) 	or sent by
telegraph, 	certified or Express 	United States mail 	postmarked no
later than the last date set 	for filing. 	(Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 	the Charging Party 	files 	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 	(20) 	calendar days 	following 	the date 	of 	service 	of 	the
appeal. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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, with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32140 	for the required contents and a sample form.)
The 	document 	will 	be 	considered properly 	"served" 	when personally
99

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. 	(Cal. Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will become 	final 	when the 	time 	limits 	have 	expired.
fflg,·3~
RONALD E. 	BLUBAUGH
Administrative 	Law Judge
September 4, 	1992
10