California State Employees Association (Hard, et al.) (PERB 1479S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JIM HARD, CATHY HACKETT, RON
LANDINGHAM, MARC BAUTISTA,
ADRIENNE SUFFIN & WALTER RICE,

Charging Parties,

CALIFORNIA STATE EMPLOYEES
ASSOCIATION,

Respondent.

Case No. SA-CO-225-S

PERB Decision No. 1479-S
May 2, 2002

Appearance: Catherine Kennedy, Attorney, for California State Employees Association.

Before Baker, Whitehead and Neima, Members.

PROCEDURAL HISTORY

WHITEHEAD, Member: This case comes before the Public Employment Relations

Board (PERB or Board) on appeal by the California State Employees Association (CSEA)

from the proposed decision of a PERB administrative law judge (ALJ).

On February 3, 2000,' Jim Hard (Hard), Cathy Hackett (Hackett), Ron Landingham

(Landingham), Marc Bautista (Bautista), Adrienne Suffin (Suffin) and Walter Rice (Rice) filed

an unfair practice charge against CSEA, alleging violations of the Ralph C. Dills Act (Dills

‘Unless otherwise noted, all dates refer to the year 2000.

Act) sections 3515 and 3519.5(b).2 They also requested that the Board seek injunctive
relief
against CSEA's suspension
of
their membership in CSEA, which would deny them their right
to run for elected union office. On February 11, PERB denied the request for injunctive relief,
without prejudice, over the dissent
of
Board Member Amador.
The six named parties filed an amended charge on February 15. On February 28,
PERB's Office
of
the General Counsel issued a complaint alleging violations
of
Dills Act
sections 3515.53 and 3519.5(b). The complaint specifically alleged that, during the period
from January 28 to February
8,
CSEA established unreasonable membership provisions and
retaliated against the charging parties. An informal settlement conference was held on
March 7, but the case was not resolved. CSEA filed an answer to the PERB complaint
on
March 20. On April 21, CSEA filed a motion to dismiss the complaint. In this motion CSEA
2The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
Section 3 515 states, in relevant part:
Except as otherwise provided by the Legislature, state employees
shall have the right to fonn, join, and participate in the activities
of
employee organizations
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations.
Section 3519.5(b) states:
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.
3Section 3515.5 states, in relevant part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal of individuals from membership.
2

argued that PERB had no jurisdiction over this charge, in that it was a purely internal union
matter which did not impact the employer-employee relationship. 	On April 24, the charging
parties filed a motion to withdraw the portions
of
the complaint pertaining to five
of
the
charging parties: Hard, Hackett, Bautista, Suffin and Rice. The claims involving Landingham
were not withdrawn.
A formal hearing was held before a PERB ALJ on May 1-4 and June
6.
	At the start
of
the hearing, the partial motion to withdraw
of
the five
of
six charging parties was granted and
CSEA's motion to dismiss was taken under submission. The case itself was submitted for
decision on August 14.
In the proposed decision, the ALJ found that CSEA did not violate Dills Act section
3515.5
by
summarily suspending the CSEA membership
of
the six charging parties,
but
that CSEA had violated the Dills Act by retaliating against CSEA member Landingham for
engaging in protected activity, in violation
of
section 3519.5(b ).
After reviewing the entire record, including the unfair practice charge, the proposed
decision, the briefs
of
the parties, and CSEA's exceptions, the Board reverses the proposed
decision, in accordance with the following discussion.
FACTUAL BACKGROUND
Landingham is a member and officer
of
CSEA. 4 He is also a leader
of
CDU. This case
is the latest chapter in the long history
of
conflict between CSEA and CDU spanning
the
last
4Landingham is the only remaining Charging Party following the withdrawal
of
the
other five CDU members from the case. The other five named individuals are also members
and officers of CSEA, as well as leaders of the Caucus for a Democratic Union (CDU).
3

decade. Many
of
these cases have come before the Board. 5
On January 28, an Executive Session
of
the CSEA Board
of
Directors passed a motion,
recommended in an agenda item, which declared CDU to be a competing organization within
CSEA, and that CDU was in violation
of
CSEA's policies.6 The motion also gave CSEA
President, Perry Kenny (Kenny), authority to suspend the membership
of
any CSEA/CDU
member who had engaged in acts deemed incompatible with CSEA,7 and to remove any
director from the board who had engaged in any "fraudulent or dishonest acts or gross abuse
of
authority or discretion" with reference to the corporation.
The proponent
of
the January 28 agenda item was CSEA Secretary-Treasurer, Barbara
Glass (Glass). Attached to the agenda item as "background information" were "summaries
of
5See California State Employees Association (Hackett, et al.) (1993) PERB Decision
No. 979-S (Hackett); California State Employees Association (Hackett) (1993) PERB Decision
No. 1012-S; California State Employees Association (Hackett, et al.) (1995) PERB Decision
No. 1126-S; California State Employees Association (Hard, et al.) (1999) PERB Decision No.
1368-S (Hard); California State Employees Association (Hutchinson) (1999) PERB Decision
No. 1369-S; State Employee Caucus for a Democratic Union (2000) PERB Decision No.
1399-S (CDU); California State Employees Association (Gonzales-Coke) (2000) PERB
Decision No. 1411-S (Gonzales-Coke).
6Although CSEA has tried unsuccessfully for years to persuade the Board that
CDU
is a
competing employee organization, this is apparently the first time that CSEA has formally
declared CDU to be a competing organization.
7These acts were listed as those which:
( 1) violate any
of
CSEA's bylaws or policies; (2) usurp any
CSEA resources for use by CDU or any members thereof to
promote CDU; (3) attempt or result in the representation
of
CSEA members in matters
of
wages, hours, or working
conditions before the State Personnel Board, the Board
of
Trustees, the Board
of
Regents, or any policy-making body with
the intent to supplant the Association in its role as the exclusive
representative for state employees; and/or (4) has engaged in any
other incompatible act as proscribed by Association bylaws or
policy.
4

the activities
of
CDU," including a list
of
CDU-related PERB and court cases. The 32-item list
covered the period from June 30, 1992 through November 18, 1999, and included 27 PERB
charges filed against CSEA, which had led to the issuance
of
at least
11
PERB complaints
against CSEA, and 5 court cases filed against CSEA.
On January 30, Kenny sent Landingham a letter which stated in part that his actions
"pose an immediate threat to the Association." These actions included Landingham's
"improper use
of
CSEA's electronic information systems on behalf
of
and for the benefit
of
CDU and in violation
of
CSEA's policy," and his various activities on behalf
of
CDU that had
been deemed detrimental to CSEA. The letter informed Landingham that his CSEA
membership was suspended effective February 15, and would remain in effect until the CSEA
disciplinary procedure had been concluded. Upon the suspension
of
his membership,
Landingham would not be eligible to run for CSEA office, to be a steward, nor would
he be
eligible for union leave. Kenny sent similar letters to Hard, Hackett, Bautista, Suffin and Rice,
the other named CDU members in this action. The February
15
date for the summary
suspensions coincided with the day nominations would open for CSEA offices.
On February 1, Kenny sent Landingham a second letter, stating in part that Landingham
would remain a CSEA director and officer during his suspension "until appropriate legal action
concludes otherwise." Kenny sent similar letters to the other five named CDU members.
On February 4, Landingham and the five other CDU members, filed a formal complaint
with the Service Employees International Union (SEIU), with which CSEA is affiliated. 	SEIU
appointed a hearing officer, who conducted a hearing on February 12, and issued a report on
February 14. With regard to the summary suspensions of Jim Hard, Cathy Hackett, Ron
Landingham, Marc Bautista, Adrienne Suffin and Walter Rice, the hearing officer stated in part
5

that "I am unable to find any place in the CSEA Bylaws where the CSEA President is given the
authority to summarily suspend a person from membership." The hearing officer found that
the SEIU complaint was "legitimate" and appropriate for investigation, and that "summary
suspensions
of
members prior to a hearing does not comport with democratic internal
procedures and is not consistent with CSEA Bylaws." CSEA took the position that SEIU had
no jurisdiction to conduct any hearing or investigation. However, on March
1,
CSEA
rescinded the summary suspensions
of
all six charging parties.
On February 8, Glass filed charges against Landingham, alleging that he had utilized
the CSEA e-mail system "to further the efforts
of
CDU while on union paid release time."
Attached to the charges were approximately 37 e-mail messages which concerned CDU
business, apparently sent or forwarded by Landingham between August 5, 1999 and
February 2. 8 The 37 e-mail messages had also been attached to the January 28 agenda item.
They had been printed-out by CSEA Controller Patrick Haagensen (Haagensen), who gave
them to CSEA's General Manager, Frank Guilelmino.
Charges were also filed against Hard, Hackett, Bautista, Suffin, and Rice, alleging
violations
of
the CSEA Policy File. Glass filed three
of
these charges, in addition to
the
charge
she filed against Landingham. All
of
the charges went before hearing panels, which ultimately
recommended that the CSEA Board discipline Landingham, but rejected the claims against the
other five individuals. Landingham's panel found that he had produced a significant number of
e-mails while on union paid release time that directly related to the promotion and activity
of
CDU. The CSEA panel found that Landingham's personal use
of
the e-mail system extended
8Landingham testified that he sent "probably about 16,200" or more e-mails during this
period, the vast majority of which concerned CSEA business. The e-mails involving CDU
represented about .01 percent of the total e-mails sent.
6

beyond minimal and incidental, and was a direct misuse of CSEA' s equipment as prohibited in
the CSEA Policy File. It further found that the Board of Directors had passed a motion
declaring CDU a competing organization with CSEA and in violation of CSEA policies, and
that Landingham's promotion of CDU via CSEA computer system directly usurped CSEA
resources in order to promote a competing organization.
On March 23, the CSEA Board of Directors considered the report of the hearing officer
panel assigned to investigate the charges filed against Landingham. 	On March 28, Kenny sent
Landingham a letter stating that the CSEA board had accepted the panel's findings that
Landingham should be disciplined for violation of the CSEA Policy File. It further informed
him that the CSEA board adopted a motion imposing as disciplinary action the suspension of
Landingham's membership for the period from February 15 through March 1. This was the
period of time that Landingham had previously been suspended pending a hearing on the
charges. The CSEA board took no disciplinary action against the other charging parties.
The nominating period for CSEA office that had opened on February 15 closed on
March 27. All charging parties were nominated for CSEA offices, and their names were
placed on the ballots.
The PERB complaint alleged that CSEA had "established unreasonable restrictions
regarding who may join and unreasonable provisions for the dismissal of individuals from
membership" in violation of Dills Act section 3515.5. The complaint additionally alleged that
CSEA retaliated against Landingham, through the actions of Kenny and Glass, because of
Landingham's protected activities. These activities were described as being a member of
CSEA as well as a member and supporter of CDU, an organization of CSEA members whose
supporters had, inter alia, filed unfair practice charges against CSEA. It went on to catalogue
7

Landingham's activities as the Civil Service Division's Alternate Deputy Director for
Bargaining, his efforts "to strengthen CSEA in relation to [the] employer," and his
campaigning for CSEA office on a platform of "building a strong, rank-and-file union that
could significantly improve the wages, benefits and working conditions of rank-and-file state
workers." It additionally listed his work with CSEA's State Bargaining Advisory Committee,
and his advocating that CSEA units bargain at a master table rather than separately.
At the PERB hearing Landingham testified that he had been "involved" in the filing of
unfair practice charges against CSEA, but he did not specifically remember which ones. 	He
also testified that he had been a Unit 1 bargaining representative, and had run for alternate
deputy director on a platform of building a strong rank-and-file union. Landingham had done
"[a] lot of picketing" during bargaining, had been actively involved in bargaining himself, had
influenced CSEA's bargaining positions, and had specifically advocated that CSEA units
bargain at a master table rather than separately.
Haagensen testified at the formal hearing that he had reviewed the e-mail messages of
Landingham and the other five charging parties, looking for references to CDU. Haagensen
testified that, in his judgment, Landingham's use of the e-mail system violated a CSEA policy
allowing only minimal and incidental personal use and forbidding any use for internal CSEA
politics. Haagensen testified that this decision was made by applying his own standard, and
that there was no written standard, in that "[m]inimal and incidental defies such definition."
The CSEA e-mail policy described by Haagensen was not put into evidence during the
PERB hearing. Haagensen acknowledged that it was not in the CSEA Bylaws or Policy File,
and that he had no personal knowledge of whether Landingham had ever even received the
policy. Landingham had never been warned that he was using the e-mail system improperly.
8

Although CSEA owned and maintained the e-mail system, it did not incur any additional costs
for individual e-mail messages.
PROPOSED DECISION
In addressing the question of whether CSEA had established unreasonable membership
provisions, the ALJ noted that in California School Employees Association and its Shasta
College Chapter #381 (Parisot) (1983) PERB Decision No. 280 (Parisot), the Board
determined that it had "some jurisdiction over the membership rules and procedures of
employee organizations."
Although the ALJ indicated that he was disposed towards finding CSEA's summary
suspension procedures unreasonable under Dills Act section 3 515. 5, he found that he was
barred from doing so by the Board's decision in Hackett.
In Hackett, which was decided in 1993, some of the named individuals in the instant
proceeding alleged that they had been summarily suspended from membership, in violation of
the Dills Act. There the Board reviewed the alleged facts and the underlying Policy File
language, which was the same language in question in the instant case, and concluded that
there was no showing that CSEA's membership procedures violated Dills Act section 3515.5.
Finding that the decision in Hackett was precedential, and that he was bound to follow it, the
ALJ in the instant case dismissed the allegations that CSEA's summary suspension procedures
were unreasonable, in violation of Dills Act section 3515 .5. The ALJ never addressed the
merits of CSEA's motion to dismiss, which had been taken under submission at the start of the
formal hearing. 9
9As to the finding by CSEA that CDU was a competing organization, the ALJ held that
this appeared to be an internal union matter outside of PERB's jurisdiction. The ALJ went on
to note that, although CSEA has never persuaded the Board that CDU is in fact a competing
9

The ALJ analyzed the alleged discrimination and retaliation by CSEA against
Landingham under the tests set forth in Novato Unified School District (1982) PERB Decision
No. 210, Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad), and
Hard. 10
In reviewing the question of whether Landingham was engaged in protected activity the
ALJ noted that under Hard, the union activities set forth in the complaint were protected only if
they had some impact on employer-employee relations. He thereafter concluded that
Landingham's claims of holding union office, or running for office on a platform of building a
strong rank-and-file union, would have too remote an impact on employer-employee relations
to be protected activity for the purposes of the Dills Act.
The ALJ did find that Landingham's other proven or admitted union activities had an
impact on employer-employee relations, because they were directly related to th.e bargaining
process that is at the heart of employer-employee relations under the Dills Act. Landingham
had been actively involved in the bargaining process himself, had influenced bargaining
positions, had advocated a master bargaining table, and had participated in picketing that
appeared to be in direct support of bargaining. The ALJ concluded that these bargaining-
related union activities were protected for purposes of the Dills Act. However, the ALJ did not
employee organization (see CDU, Gonzales-Coke), that did not mean PERB had jurisdiction to
prohibit CSEA from taking that position for internal union purposes.
10Under this analysis, in order to prevail on a claim of discrimination or retaliation, the
charging party must establish: (1) that they engaged in protected activity; (2) that the activities
were known to the employee organization; and (3) that the employee organization took the
retaliatory action because of such activity. This is basically the same analysis PERB uses in
cases of alleged discrimination or retaliation by an employer in violation of Dills Act section
3519(a), which contains the same language as Dills Act section 3519.S(b).

find that the adverse actions against Landingham were motivated by his bargaining-related
union activities, noting that the record as a whole did not support this inference.
The complaint also alleged that Landingham had engaged in protected activity by being
"a member and supporter of CDU, an organization ... whose supporters have ... filed unfair
practice charges against CSEA." Filing an unfair practice charge with PERB is a protected
activity. 	(California State Employees Association (Garcia) (1993) PERB Decision No. 1014-S
(Garcia).) The question here was whether that activity could be attributed to Landingham.
Landingham testified that he had been "involved" in filing unfair practice charges, but he could
not remember which ones, and he apparently was not an actual charging party in any
proceeding other than the present case. 11
The ALJ, citing to Cupertino Union Elementary School District (1986) PERB Decision
No. 572 (Cupertino), found that the Board has held the protected activities of some employees
could be attributed to other employees in the same group, if adverse action against the group
was unlawfully motivated by those protected activities. Here the evidence of Landingham's
actual participation in the filing of unfair practice charges was weak. However, the ALJ
concluded that this protected activity could be attributed to him, if the adverse action against
Landingham and his group, CDU, was unlawfully motivated by the protected activity. 12
11 A search of PERB case law reveals no proceeding against CSEA in which
Landingham was a charging party.
12In its answer to the complaint, CSEA denied that the actions taken by Glass and
Kenny against Landingham and the others were "adverse actions." The ALJ rejected these
denials. Kenny's January 30 letter summarily suspended Landingham's membership effective
February 15, 2000, making him ineligible to run for office, serve as a steward, or take union
leave. Glass' February 8 charges requested Landingham's "[i]mmediate and permanent
removal from membership." Given the CSEA Board's pre-authorization of such actions in its
January 28 motion, the ALJ found these actions would reasonably be perceived as potentially
adverse to Landingham's ability to participate in CSEA, by any objective standard.
11

Turning to the question of whether the adverse actions were unlawfully motivated by
the protected activity of filing unfair practice charges, the ALJ concluded that they were
unlawfully motivated. The January 28 agenda item for the motion authorizing the actions
against Landingham and others had as an attachment, a list of 32 "CDU-related PERB and
court cases" of which 27 were unfair practice charges filed against CSEA. The ALJ found that
the January 28 motion had referred to CDU's "long history of attacking" CSEA, and that this
reference included the unfair practice charges filed against CSEA by CDU members.
CSEA argued that the actions against Landingham were dictated by his "misuse" of
CSEA's e-mail system. The ALJ found that CSEA had not met its burden of proof on this
issue. The evidence showed that the CSEA controller reviewed the e-mail messages sent by
Landingham and other CDU leaders specifically looking for references to CDU. CSEA made
no apparent attempt to look more widely for possible "abuse." The e-mail policy the controller
claimed to apply was not put into evidence, was not in the CSEA Bylaws or Policy File, and
may not have even been received by Landingham. The ALJ found that the "misuse" of the
CSEA e-mail system was not proven to be a valid reason for the adverse actions against
Landingham, independent of his CDU-connection with the filing of unfair practice charges.
The ALJ concluded that the adverse actions against Landingham by Kenny and Glass were
taken in retaliation for protected activity, in violation of Dills Act section 3519.S(b).
EXCEPTIONS TO THE PROPOSED DECISION
CSEA excepted to the ALJ's findings that Landingham participated in a protected
activity merely by his association with CDU, and that Landingham was retaliated against based
on his membership in CDU. CSEA additionally excepted to the ALJ's use of Cupertino to
support the holding that Landingham had engaged in protected activities, and that the ALJ
12

erred in finding that no adverse action would have occurred to Landingham but for CSEA's
retaliation for his participation in protected activity.
DISCUSSION
I. Interference With Membership in CSEA
Regarding the issue of whether CSEA had established unreasonable membership
provisions, no exceptions were filed to the ALJ's dismissal of this claim. PERB Regulation
32300(c) 13 states that "An exception not specifically urged shall be waived."
However, the Board may review issues that have not been raised in a party's exceptions,
sua sponte, in order to avoid a "serious mistake of law." (Mount Diablo Unified School
District (1984) PERB Decision No. 373b.) A serious mistake oflaw has occurred here with
regard to the application of the Board's decision in Hackett, an error which justifies Board
review.
A. PERB's Jurisdiction Over Membership Provisions
As was previously noted, the ALJ never addressed the merits of CSEA's motion to
dismiss. 14 In this motion CSEA argued that the Board had no jurisdiction to hear this charge,
in that the dispute between the members of CDU and CSEA was a purely internal union matter
that did not substantially impact the employer-employee relationship. CSEA cited to Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106
(Kimmett) and Hard, in support of this claim.
13PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. and maybe found on the Internet at www.perb.ca.gov.
14It appears that the ALJ did not rule on the motion because he resolved the
membership question based upon his reading of Hackett, and because he found that CSEA had
unlawfully retaliated against Landingham under Garcia and Cupertino.
13

In its post-hearing brief, CSEA renewed its Kimmett argument. Additionally, citing
Novato Unified School District (1982) PERB Decision No. 210 (Novato), CSEA maintained
that because suspension can be a reasonable form
of
discipline available to employee
organizations, "Landingham must specifically prove in this case that the suspension imposed
by CSEA was in retaliation for his exercise ofrights under the Dills Act." (Emphasis added.)
Kimmett and its progeny are based upon PERB's finding that employees do not have
protected rights in the organization
of
the exclusive representative. Under Kimmett, PERB
will not interfere in purely internal union matters that do not impact the employer-employee
relationship. (Kimmett, p. 16; Hard, p. 28.
15
) 	However, even in those cases where the Board
has found it does not have authority to intercede in internal union matters which do not impact
the employer-employee relationship, it has been careful to note that there are other union
matters over which the Legislature has given it the power to act. One such area is that
of
"reasonable restrictions regarding who may join" unions and "reasonable provisions for the
dismissal
of
individuals from membership." None
of
the cases cited by CSEA stands for the
proposition that the Board lacks jurisdiction in these matters. Rather, the Board has
consistently recognized that the Legislature conferred this area upon PERB as a separate and
distinct grant
of
jurisdiction, and for this reason, denies CSEA' s motion to dismiss. (See Dills
15
The author
of
the Hard decision subsequently made it clear that the "internal union
matter" standard should not be misinterpreted. In his dissent from the denial
of
the request for
injunctive relief in the present case, Board Member Amador stated in part:
I continue to believe that the activities described in CSEA (Hard)
including participation in CDU rallies, distributing CDU
literature or buttons, or wearing a CDU button or t-shirt were
unprotected because they lacked the required impact on
employer-employee relations. However, I did not intend for the
case to be used as a license to abrogate rights protected by the
Dills Act.
14

Act section 3515.5; Parisot; United Teachers Los Angeles (Malin) (1991) PERB Decision No.
870; California State Employees Association (Roberts) (1993) PERB Decision No. 1005-S;
California State Employees Association (Hutchinson) (1998) PERB Decision No. 1304-S, p.
6;
Hard, p. 27, fn. 8.)
In Parisot, the Board distinguished its unwillingness under Kimmett to interfere in
internal union affairs unless there is a substantial impact on employer-employee relations with
its authority under the Educational Employment Relations Act (EERA)16 over the membership
rules and procedures
of
employee organizations, noting:
In Kimmett, we did not intend to abdicate our jurisdictional
power to determine whether an employee organization has
exceeded its authority under subsection 3543. l(a)17 to dismiss or
otherwise discipline its members.
Parisot specifically recognized PERB's authority to review the reasonableness
of
procedures for the suspension
of
individuals from membership. In California Correctional
Peace Officers Association (Colman) (1989) PERB Decision No. 755-S (Colman), PERB
exercised that authority over member-suspension procedures.
18
In Colman the Board adopted the proposed decision
of
the ALJ which found that a
union's suspension
of
a former officer from membership violated the Dills Act. The exclusive
representative, citing to Kimmett and Parisot, argued that the Board's inquiry was limited only
to those cases which had a substantial impact on the employer-employee relationship.
,
16
EERA is codified at Government Code section 3540 et seq.
17
EERA section 3543.l(a) contains language identical to the language of Dills Act
section 3515.5.
18 Although Dills Act section 3 515 .5 specifically refers to the "dismissal" of individuals
from membership, PERB has jurisdiction over suspensions as well. 	(Parisot, p. 9.)
15

(Colman, proposed dee., p. 18.) The exclusive representative further argued that an employee
challenging union discipline "must demonstrate either that the discipline was motivated
by
conduct designed to thwart the right to select a bargaining representative or that the discipline
was in retaliation for protected activities." (Id. at p. 19.) Both
of
these arguments have been
revived
by
CSEA in the instant proceeding.
In rejecting these claims in Colman, the Board found:
A showing
of
unlawful motivation is appropriate for
discrimination or retaliation cases
...
But the facts alleged by Mr.
Colman do not raise an issue
of
discrimination. Rather they set
out an issue
of
interference. Proof
of
unlawful motivation is
unnecessary to demonstrate interference with protected
activities. 	9
	l[ J
Nor is the Association convincing in its contention that PERB
review
of
union discipline is precluded except where the
discipline has a substantial impact on the employee's relationship
with the employer. The PERB review
of
union disciplinary
procedures is rooted in Section 3515.5
of
the Dills Act.
...
A fair reading
of
Parisot and Stewart[201 makes it evident that the
PERB does not believe itself restricted in the review
of
union
discipline to only those situations which substantially impact the
employer-employee relationship. The Kimmett limitation on
review, which the Respondent cites, is rooted in the duty
of
fair
representation questions presented there. Neither Parisot nor the
present case involves the duty
of
fair representation.
(Id. at pp. 19-20; citations omitted.)
19
See Carlsbad. Under Carlsbad, in order to prevail on an interference claim, the
conduct alleged to constitute an unfair practice must tend to or actually result in some harm
to
employee rights granted under the EERA. Once such right has been established, the
respondent must show that there was a compelling reason for its actions. Novato modified
Carlsbad by adding unlawful motive as the specific nexus required in establishing a prirna
facie case of discrimination or retaliation.
20Union of American Physicians and Dentists (Stewart) (1985) PERB Decision
No. 539-S.
16

CSEA's argument that Kimmett and Novato bar relief on the membership question is
not well taken. The relevant portion
of
the instant charge was not based on the retaliation
or
discrimination provisions
of
Dills Act section 3519.5. It was based on the interference
provisions
of
Section 3519.5, and the reasonable restriction provisions
of
Section 3515.5.
Parisot and Colman, not Kimmett and Novato, control its disposition.
B.
	California State Employees Association (Hackett)
The ALJ recognized that in Parisot the Board found it had the power to determine the
reasonableness
of
the membership rules and procedures
of
employee organizations. The ALJ
additionally stated that he might
be
inclined to find CSEA's summary suspension procedures
unreasonable under Dills Act section 3515.5, but that he was precluded from doing so
by
Hackett.
The ALJ erred in his application
of
Hackett to this case. As the Board noted
in
Hackett:
...
Charging Parties were suspended because they, after being
warned not to interfere with the ratification votes for other
bargaining units, distributed fliers, criticized the agreements that
had been reached in other bargaining units and disrupted
ratification meetings in an effort to discourage Bargaining Units
4, 15, 20 and 21 members from voting to accept and ratify the
tentative agreements in their respective bargaining units.
(Id. at p. 6, warning letter.)
Hackett is distinguishable from the instant proceeding. In Hackett, the Board's decision
regarding the reasonableness
of
the suspension procedure was predicated upon the charging
parties' disruption
of
the orderly contract ratification process. No such emergency situation
appears in the case presently before the Board.
The CSEA Bylaws Article XIX, Section 1, states:
17

These Bylaws shall be the supreme law
of
the Association,
subject only to the Articles oflncorporation and the provisions
of
the laws
of
the State
of
California and the United States
of
America. Any inconsistent provision
of
the Policy File, or
contrary act
of
the General Council, the Board
of
Directors,
divisions/affiliate(s), or the officers, employees, or agents
of
the
Association is void.
Division 10
of
CSEA's Policy File governs CSEA's discipline
of
its members. Policy
File section 1001.01 authorizes disciplinary action, inter alia, for the following reasons:
(c) Activity by an Association officer actively working for or
supporting any other organization that violates the Bylaws and/or
Policy File
of
the Association;
(f) Violation
of
the Association's or chapter's Bylaws or the
Policy File;
(g) Taking an active part in promoting another organization
which is undermining the objectives or the existence
of
the
Association or is seeking its decertification;
(n) Misuse
of
Association or chapter funds, equipment, supplies
or other assets.
21
CSEA Policy File section 1001.03 in tum states:
When, in the opinion
of
the president, the actions
of
a member
are such as to pose an immediate threat to the welfare
of
the
Association, the president may summarily suspend the member
until the procedure established in Division 10
of
the Policy File is
concluded.
If
written charges are not filed within 10 working
days, the suspension is terminated.
If
the summary suspension provisions
of
CSEA Policy File section 1001.03 are not
invoked, Division 10 otherwise provides that suspension or other discipline is effective only
upon a three-fourths vote
of
the CSEA Board
of
Directors, acting on the report
of
a hearing
officer or panel, after a full hearing on specific charges.
21
The January 28 agenda item specifically quoted Policy File section 1001.0l(c) and
(g).
18

The	The repor	
reportt
of	of t
the	heSEI	
SEID	Uhear	
hearing	ingo
officer,	fficer,he	
held	ldpursu	
pursuant	antto	
to the	
the claims	claims filed	filedby	
by the	
the charging	charging
part	
parties,	ies, e
addressed	ddeessed ^
these	^(^se^m	
summary	jrygs
suspension	^i^ensioigj
procedures	^^ie^^cssMid	
and stated,	i^tated, uej	
in part:	^atl^:
I
I am	
am unable	
unable to	
to find	
find a
any	ny p
place	lace in	in tthe	heCSEABy	
CSEA Bylaws	lawewh	
where	eee t
the	he
CSEA	
CSEA Presi	
President	dent
is	is given	given the	the authority	authontyto	
to summarily	summarily
suspend	suspend
aa
person	
person from	from membership.	membership.	
Instead,	Instead,
the	the Bylaws	BylawsatAr	
at Article	tccieHI	
III,,
Section	Section 12,	12, require	
require aa "hearing	"heaaingpr	
prior	iorto	
to disciplinary	disciplmary
action	action being	
being
effective."	effective.’g	
In	In
addition,	el(^ition,thi	
theyyees	
require	uieea	
a "three-fourths	'hlireeffsui^thg voleo	
vote
offthe	
the
S	
Board	tard
of	ofD	
Directors"	lrectors" to	
to impose	impose
discipline	discipimes
upon	pon
aa member	
member..	
The	The
Boardo	
Board
ofg D	
Directors	lecctose mayne	
may neither	ttoerd
delegate	elegate its	itsau	
authority	toorityt
tood
discipline	sscipIe
members	
members totoe	
to the Presi	
President,	dent, nor	
nor may	
may it	
it a
authorize	uthorize toePr	
the President	esldent t
toodo	
do
what	axtril tthe	he By	
Bylaws	lawsd
did	idno	
nottauth	
authorize	onzehi	
him	mooreher	
her t
toodo	
do., te	
Thee
ccomplaint	ompaaint he	
here	realteges	alleges tha	
thatt toesuspen	
the suspensions	sions ofmembers	
of
membership	hipa
are	re
being	being
imposed	mipos^prior	
prior to	to
aa
disciplinary	dlscipiinary hearing	hearingbyto	
by
thee
CSEA	CSEA
President,	President,
and	andMr.Ke	
Mr. Kenny	onyhimse	
himself	lf
acknowledges	acknowienhes
that	that the	thes
six	ix
individuals	indivlduaht
are	areb
being	eing
suspended	suspended from	frommember	
membership	ship
""
...	.. .pendmg	
pending
the	
the completion	completionof	
of t
the	he internal	internal discipline	discipim ipr	
process	oces s
...	. . ,
""
Mr	
Mr..Kennyha	
Kenny hass poin	
pointed	tedtothe	
to the CSEA	
CSEA Po	
Policy	licy F
File	lteas	
as authorit	
authorityy fo	
fore
h
his	iss
summary	ummaey pre	
pre-hearing	ehearingsuspens	
suspensions.	lons.
.,
..
..Howeve	
However,Se it	
it Vcef	
does no	
nott
appear	appear that	that
the	the policies	
policies to	towh	
which	schhe	
he refers	refessar	
areeau	
authorized	toorizi
by,	by, or	or
consistent	consisteni
with,	with,
the	the Bylaws	Bylaws
of	of
the	the organization.	organization.
The	TheBy	
Bylaws	lawse
are	re
"the	"the supreme	supreme law	law
of	of t
the	he Associati	
Association,"	on,"
and	and itit
is	issp	
specifically	edfsaally
provid	
provided	ed at	atArti	
Article	de X	
XIX	Df
of	ff the	
the Bylaws	Bykwsthat	
that '[a]ny	‘aainy
inconsistent	10X0018101011
provisi	
provision	tosof	of t	
thee Policy	
Policy Fi	
File	ie
...	...isvoi	
is void.'	d.f	
The	hCeefo	
provision	visiono
ofOth	
thee
Poli	
Policy	cyF
File	liewh	
which	shha
allows	ttawl
for	foesu	
summary	mmary
suspension	shlhonstoyby	
by th	
thee
CSEA	CSEA
Pre	
President	sident priorto	
prior to a
a hear	
hearing	ingi
issincons	
inconsistent	istentwith	
with tthe	he By	
Bylaws,	aaws,
wh	
which	schprov	
provide	lde toa	thatton	only	lyt
the	heBo	
Board	aedmay	
may imposed	
impose discipline	isciplmson	on a
a
member	
member andonlyafterahear	
and only after a hearing.	lng. The	The Poli	
Policy	cy F
File,	ile, wh	
which	Sch is	
is
adopted	adopted only	only by	bythe	
the CSEA	CSEA Board	Boairdof	
ofDi	
Directors,	cootoes,
and	ondno	
nott
by	by
the	the
General	General Council,	Council.
may	maynotgrantau	
not grant authority	thorily that	that the	theBy	
Bylaws	aaws
have	have
not	i^ot
conferred.	voi^ei^^ed.
The	The SEID	SEIUhearillgo	
hearing officer	llf^(^ie•went	
went on	l^nto	
to find	find tthat	hat tthe	he
charging	charging parties	
parties'’
complaint	complaint was	
was
"legitimate"	’he^ilm^ate. ^d	
and ap	
appropriate	^p^i^^j^jr^jite for	foe i
investigation,	nvestigation, and	and tithat	^jot
"summary	’’simmaans
suspensions	sw^ionsof	
of members	
members
prior	
prior to	toafea	
a hearing	ring does	does not	
not compor	comportt w	
with	itodemoc	democratic	ratic i
internal	nternal iprocedures	mse^^^s^d	
and hso	
is not	ots
consistent	^t^nslo^ent
withC	
with CSEA	SEA
Bylaws."	F^lzh^ass/ .
19	19

C.
	Application
of
Section 3515.5
A review
of
the exhibits filed in this case appears to confirm the findings
of
the SEIU
hearing officer that the summary suspension procedures contained in the Policy File were in
violation
of
CSEA Bylaws. Although this fact may cast serious doubt upon the reasonableness
of
this procedure, it is not necessary for the Board to reach the question
of
the reasonableness
of
the summary suspension procedures themselves.22 PERB's authority to determine the
reasonableness
of
a membership provision must include not just the reasonableness
of
the
provision itself, but the reasonableness
of
the provision as it was applied in the case pending
before the Board. (Colman, p. 21.) Here, even
if
the Board were to find that the summary
suspension procedures were reasonable, a violation
of
the Dills Act will be found
if
their
application in this case was not reasonable.
By
its own language, the summary suspension proceedings can be invoked when the
actions
of
a member "pose an immediate threat to the welfare
of
the Association." Unlike
Hackett, where invocation
of
the summary suspension procedure appeared justified
by
an
aggressive disruption
of
the contract ratification process, no such immediate threat was present
here. The activities
of
CDU have been ongoing for almost a decade.23 The letters
of
suspension nowhere indicated the need for immediate action prior to a hearing. Awaiting the
conclusion
of
a due process hearing, under the CSEA Bylaws, would have required
only
a
221n Parisot the Board found that "A provision which permits suspension
of
a member
who is engaged in decertification activities against the organization is reasonable." (Parisot,
p. 9.) However, the Board went on to reverse the hearing officer's dismissal
of
the charges,
finding that Parisot "has raised questions about the reasonableness of the procedures followed
by CSEA in dealing with all of the charges." (Id. at p. 11.)
23 See footnote 4, supra.
20

comparatively short, additional period. The actions of the CSEA Board and Kenny appear to
furnish evidence of an unreasonable application of CSEA procedures.
CSEA's animosity toward CDU is revealed in its motion to dismiss. In the statement of
facts to the motion to dismiss, counsel for CSEA wrote:
On or about December 22, 1999/2 	CSEA received a copy of the
decision in Hard, Hackett, et al v. CSEA, PERB Dec. No. 1368-S
(the Hard decision). In this decision, PERB overruled its earlier
decision, CSEA (Hackett, et al), PERB Dec. No.
l 126-S[
41
251 , and concluded that the charging parties had failed to
establish that their activities on behalf of Caucus for a
Democratic Union (hereinafter "CDU") were protected activities
under the Dills Act. For many years, CSEA had serious concerns
about the unregulated and unfettered activities of CDU
disparaging and attacking CSEA. During this time, CDU has
operated outside of the governance of CSEA and had refused to
abide by the regulations imposed on an employee organization.
On January 28, 2000, the CSEA Board of Directors ("Board"),
acting in Executive Session, adopted a motion which declared the
CDU a competing organization under CSEA's policy and in
violation of CSEA's policy. [Emphasis added.]
Futhermore, it stretches the bounds of credulity to assume it was merely accidental that
the date the summary suspensions were to begin, February 15, coincided with the opening of
nominations for CSEA office. Kenny stated in his letter to Landingham that his CSEA
membership was to be suspended effective February 15, and would remain in effect until the
CSEA disciplinary procedure had been concluded. Upon the suspension of his membership,
Landingham would not be eligible to run for CSEA office, to be a steward, nor would he be
eligible for union leave.
24The Board decision in 	issued on December 21, 1999.
25Hackett involved many of the same charging parties and activities which are the
subject of this proceeding. In Hackett, the Board found that the conduct of the charging parties
was protected under Dills Act section 3519.5(b ), in that it was a challenge to the union
leadership, not to the union itself.
21

Taking all of these facts together, the Board concludes that the actions of CSEA were
undertaken in violation of its own Bylaws and Policy File for the unreasonable purpose of
interfering with the right of the Landingham to run for CSEA elected office. The facts of this
case, when contrasted with the facts of Hackett, show that the ALJ was not bound by precedent
to find that no violation of the Dills Act had occurred. The Board hereby finds that CSEA's
actions were violative of the provisions of Dills Act section 3515.5.26
II. Retaliation for Protected Activity
Regarding the retaliation claim, the ALJ addressed two theories of protected activity:
(1) that Landingham's union activities had an impact on employer-employee relations because
they were directly related to the bargaining process that is at the heart of employer-employee
relations under the Dills Act; and (2) that under Cupertino, the filing of unfair practice charges
by members of CDU brought Landingham under the protection of Garcia.
As to the first of these theories, Landingham catalogued numerous organizing and
bargaining efforts in which he had been engaged on behalf of CDU. However, he did not show
how his involvement in many of these acts specifically impacted the employer-employee
relationship, thus making it a protected activity. In the abstract, any act undertaken to improve
26The fact that Landingham was reinstated to membership on March 1, that he was able
to run for union office, and that the internal charges against him resulted in his only receiving
his pre-March 1 suspension as a penalty does not render this case moot. As the Board held in
Amador Valley Joint Union High School District (1978) PERB Decision No. 74:
A case in controversy becomes moot when the essential nature of
the complaint is lost because of some superceding act or acts or
the parties.
The essential nature of this complaint, i.e., the reasonableness of CSEA's summary
suspension procedures, has not been lost. This controversy could continue to arise if the Board
does not address the question in this case. The Board is ruling on the underlying issues for the
22

employees wages and working conditions, including participation in rallies, distributing
literature, wearing buttons or t-shirts, could be seen as meeting this test. However, as the
Board made clear in Hard, that is not the case. As CSEA argued in its exceptions, membership
in CDU is not protected per se. A more direct and cognizable impact on the employer-
employee relationship must be shown in order to meet the standard set forth in Kimmet and
Hard. 27 Although the ALJ did find that Landingham's prior bargaining process activities on
behalf of CDU constituted protected activity, he also concluded that the adverse actions against
Landingham were not motivated by his bargaining-related union activities. The ALJ correctly
found that "The record as a whole does not support that additional inference." The finding of
retaliation was therefore not based upon this theory of protected conduct.
As to the ruling that the filing by members of CDU of unfair practice charges against
CSEA protected Landingham under Cupertino, the ALJ found that "In effect, [in Cupertino]
PERB held that the protected activities of some employees could be attributed to other
employees in the same group, if adverse action against the group was unlawfully motivated by
those protected activities."
Cupertino is distinguishable from the instant case. In Cupertino the exclusive
representative charged that management had implemented a layoff which targeted a specific
department because of the high number of union activists in that department. Here, the Board
express purpose of clarifying the application of Hackett to similar, but distinguishable, facts in
the case at bar.
27 For example, had Landingham's suspension occurred in the middle of negotiations
with the State, and he was shown to be a key or integral part of the negotiating team and that
the suspension was the result of the negotiating function he was performing, such acts might
constitute a sufficient impact on the employer-employee relationship to justify action by the
Board. (See Parisot, p. 11.)
23

reversed the regional attorney's partial dismissal of the charge, and ordered that a complaint
issue. 	This order was based on the grounds that there was sufficient circumstantial evidence
from which an inference could be drawn that there was a link between past aggressive union
activity and the decision to lay off a particular group.
Cupertino found that if it was shown that the employer's decision was motivated by the
protected acts of some members of the group, then the layoff is unlawful as to the entire group.
Cupertino did not hold that the protected acts of some members of a group will automatically
be attributed to all members of that group.28 Cupertino held that protected activity can raise an
inference of retaliation sufficient to justify the issuance of a complaint. It did not conclude that
retaliation had occurred because of an unrelated protected activity.
There thus appears to be no protected activity upon which to base the retaliation claim.
Accordingly, this portion of the charge is dismissed.
ORDER
Based upon the foregoing, and upon the entire record in this matter, it is found that the
California State Employees Association (CSEA) violated the Ralph C. Dills Act (Dills Act),
Government Code section 3515.5, by unreasonably dismissing Ron Landingham (Landingham)
from membership in CSEA. All other allegations are hereby dismissed.
Pursuant to Dills Act section 3514.5(c), it is hereby ORDERED that CSEA and its
representatives shall:
28If this were true, any group of employees could theoretically immunize themselves
from union internal disciplinary procedures by banding together, giving themselves a name,
and having one member file an unfair practice charge with PERB.
24

A. 	CEASE AND DESIST FROM:
The application of unreasonable provisions for the purpose of dismissing
Landingham from membership in CSEA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. Withdraw and destroy the complaint filed against Landingham by the CSEA
secretary-treasurer, along with all related documents, including the hearing panel's records and
recommendation, the CSEA Board of Directors' adoption of that recommendation, and the
Board of Directors' suspension of Landingham.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post copies of the Notice attached hereto as an Appendix at all State of California work sites
and all other work locations where notices to employees represented by CSEA are customarily
posted. The Notice must be signed by an authorized agent of CSEA, indicating CSEA will
comply with the terms of this Order. Such posting shall be maintained for a period of thirty
(30) consecutive workdays. Reasonable steps shall be taken to ensure the Notice is not
reduced in size, altered, defaced or covered with any other material.
3. Upon issuance of a final decision, make written notification of the actions
taken to comply with the Order to the Sacramento Regional Director of the Public Employment
Relations Board, in accord with the regional director's instructions. Written notification to the
regional director must be served concurrently on the charging parties.
Members Baker and Neima joined in this Decision.
25

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CO-225-S, Jim Hard, Cathy Hackett,
Ron Landingham, Marc Bautista, Adrienne Suffin & Walter Rice v. California State
Employees Association, in which all parties had the right to participate, it has been found that
the California State Employees Association (CSEA) violated the Ralph C. Dills Act (Dills
Act), Government Code section 3515.5, by unreasonably dismissing Ron Landingham
(Landingham) from membership in CSEA. All other allegations are hereby dismissed.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
The application of unreasonable provisions for the purpose of dismissing
Landingham from membership in CSEA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
Withdraw and destroy the complaint filed against Landingham by the CSEA
secretary-treasurer, along with all related documents, including the hearing panel's records and
recommendation, the CSEA Board of Directors' adoption of that recommendation, and the
Board of Directors' suspension of Landingham.
Dated: ----------- CALIFORNIA STATE EMPLOYEES
ASSOCIATION
By: ____________ _
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.