State of California (Department of Personnel Administration) (PERB 0609S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA
(DEPARTMENT 	OF 	PERSONNEL
ADMINISTRATION),
Charging 	Party,
v.
COMMUNICATIONS WORKERS 	OF AMERICA,
AFL-CIO, 	PSYCH TECH LOCAL 	11555,
Respondent.
Case No. 	S-CO-62-S
PERB Decision No. 	609-S
January 9, 	1987
Appearance: 	Edmund K. 	Brehl, 	Attorney for State of California
(Department of Personnel Administration).
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	This case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on 	appeal 	of 	a dismissal 	by a
PERB 	regional 	attorney of 	a 	charge 	filed 	by the 	State 	of
California 	(Department 	of 	Personnel Administration) 	(State or
DPA) 	alleging 	that 	the Communications Workers 	of America,
AFL-CIO, 	Psych Tech Local 	11555 	(CWA) 	caused or 	attempted 	to
cause 	the 	State 	to 	violate 	section 	3519 	of 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA).1 Specifically, 	the
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the Government Code.
Section 3519 	states, 	in pertinent part:
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charge 	alleges 	that 	CWA caused 	the 	State 	to 	interfere with
employee 	rights 	under 	SEERA by 	failing 	to 	comply with 	a 	State
Controller's 	Office 	(SCO) 	policy which 	required 	requests 	for
cancellation of 	union membership dues 	deductions 	to 	be
submitted 	by 	employee 	organizations 	on 	behalf 	of 	withdrawing
employees. 	CWA 	allegedly failed 	to 	submit 	such 	requests 	to 	the
SCO, 	resulting 	in the denial of employees' 	right 	to withdraw
from membership 	during 	the 	statutory 	"window period" 	provided
by section 	3513(h).2 For 	the 	reasons 	that 	follow, 	we 	find
that 	the charge 	states 	a prima 	facie case. 	Accordingly, 	we
reverse 	the dismissal.
It 	shall 	be unlawful 	for 	the 	state to:
(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.
Section 3519.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for 	an employee
organization 	to:
(a) 	Cause or 	attempt 	to cause the state 	to
violate 	Section 	3519.
2 Section 	3513(h) 	states:
"Maintenance of membership" 	means 	that 	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 	pursuant 	to 	a memorandum of
understanding, 	commencing with 	the effective
N	
2

FACTUAL 	SUMMARY
On June 	18, 	1982, 	the SCO issued payroll 	letter 	82-11.
This 	letter 	states, 	in pertinent part:
Effective July 1, 	1982, 	the State
Controller's 	Office will 	accept membership
dues 	cancellation 	requests 	only 	from the
sponsoring 	employee 	organization or 	a 	bona
fide 	association. 	This 	office will 	not
process 	dues 	cancellation 	requests 	submitted
by employees. 	Such 	requests will 	be
returned 	to 	employees 	along 	with
instructions 	to 	contact 	the 	sponsoring
organization.
For 	several years 	this 	office 	accepted
written 	requests 	to 	cancel 	various
miscellaneous deductions. 	However, 	this
policy 	is 	being modified 	to more 	efficiently
administer 	our 	deduction 	cancellation
process. 	If 	an employee contacts you and
wants 	to cancel 	a dues deduction, 	the
employee 	should 	be 	referred 	to 	the
sponsoring 	organization.
On April 	8, 	1985, 	the SCO issued 	a 	letter 	to 	all 	exclusive
representatives 	regarding 	deduction cancellations. 	That 	letter
states, 	in pertinent part:
The normal 	process will 	be used 	for
cancellation 	of 	dues 	during 	the 	thirty day
window period. 	The 	process 	requires 	the
exclusive 	representatives 	to 	submit
cancellation 	requests 	on 	behalf 	of
date 	of 	the memorandum of 	understanding. 	A
maintenance 	of 	membership 	provision 	shall
not 	apply to 	any employee who within 30 	days
prior 	to 	the 	expiration of 	the memorandum of
understanding withdraws 	from 	the 	employee
organization 	by 	sending 	a 	signed withdrawal
letter 	to 	the 	employee 	organization 	and 	a
copy to 	the 	State 	Controller's 	office.
(Emphasis 	added.)
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withdrawing employees. 	However, 	we will
also 	continue 	to 	honor 	cancellation 	requests
from an employee 	if 	he/she can document 	an
unsuccessful 	attempt 	to 	cancel 	through 	the
exclusive 	representative. 	Because of 	the
short 	time 	frame 	for 	the window period
(30 days), 	an employee will only have to
provide 	one piece 	of 	correspondence 	to
justify 	these 	administrative 	cancellations.
The 	parties 	negotiated 	a maintenance 	of membership
provision into 	their then-current contract, 	which 	read, 	in
pertinent 	part:
a. 	The written 	authorization 	for 	CWA dues
deduction 	shall 	remain 	in 	full 	force 	and
effect 	during 	the 	life of 	this Agreement;
provided, 	however, 	that an employee may
withdraw 	from CWA 	by 	sending 	a 	signed 	letter
to CWA within thirty 	(30) 	calendar days
prior 	to 	the expiration of 	this Agreement.
In June 	1985, 	approximately 400 	CWA members 	presented the
SCO with withdrawal 	requests. 	The 	SCO 	refused 	to 	accept 	the
requests 	because 	they had 	not 	been 	presented 	by 	the union 	as
required 	by 	the 	above-noted 	SCO 	policies. 	At 	approximately 	the
same time, 	copies 	of the 	requests were 	sent by the employees 	to
CWA's 	national 	headquarters 	in Washington, 	D.C. 	The SCO
contacted 	the CWA Local 	11555 	office 	in October 	1985 	to 	inquire
about 	the withdrawal 	requests. 	Allegedly, 	CWA assured 	the 	SCO
that 	the 	requests 	had 	been 	received 	from the 	national 	office
and would 	be 	honored, 	but 	never 	forwarded 	the 	requests 	to 	the
SCO. 	Having 	neither 	received 	the withdrawal 	forms 	from CWA,
nor 	documentation 	from 	the 	employees 	showing 	an 	unsuccessful
44

attempt 	to 	request withdrawal 	through the union, 	the 	SCO
apparently did 	not 	stop 	the 	deductions. 3
DISCUSSION
In dismissing 	the charge, 	the 	regional 	attorney relied on the
fact 	that 	the 	charge does 	not 	allege 	that 	CWA caused 	the 	State 	to
adopt 	the 	allegedly unlawful 	policy or 	to 	reject 	the 	400 	dues
deduction cancellation 	requests. 	The 	regional 	attorney 	apparently
reasoned 	that, 	since 	it 	is 	the 	SCO policy 	itself 	and 	the 	State's
adherence to 	it which 	is 	the 	subject 	of 	the charge 	against 	the
State, 	this 	is 	the behavior CWA must have 	allegedly caused or
attempted 	to 	cause. 	On 	appeal, 	the State 	readily concedes 	that
CWA did not 	cause 	the policy to 	come 	into 	being, 	and 	instead
explains 	that 	its 	charge 	alleges 	that 	it was 	CWA's 	continuing
failure 	to 	comply with 	the 	policy 	that 	caused 	any denial 	of
employee 	rights. 	We agree 	that 	the 	State's characterization of
the charge 	is 	the more 	accurate one.
The 	regional 	attorney correctly 	focused his 	analysis 	on 	the
potential 	outcome of Case No. 	S-CE-273-S.4 He 	failed,
3Three 	of 	the 	affected 	employees 	filed charges 	against 	both
CWA 	and 	the 	State. 	The 	charge 	against 	CWA was 	settled 	and
withdrawn before 	hearing. 	The 	charge 	against 	the 	State 	(Case No.
S-CE-273-S) 	was 	set 	for 	hearing, 	but 	the hearing was 	stayed by the
Board on November 	10, 	1986 	(PERB Order No. 	Ad-160-S) 	to 	allow for
the 	possibility of 	consolidation with 	the 	instant 	case.
4 The 	charge 	against 	the 	State 	in Case No. 	S-CE-273-S 	calls
into 	question 	the 	legality of 	the 	SCO's 	policy 	requiring 	that 	dues
deduction 	cancellation 	requests 	be 	routed 	through 	the 	appropriate
employee organization. 	Critical 	to 	that 	inquiry will 	be 	the
interaction of 	section 3513(h), 	quoted in footnote 2 	above, 	and
section 	1153, 	which authorizes 	the Controller 	to establish, 	by
rule or 	regulation, 	procedures 	for 	the 	administration of 	payroll
deductions.
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however, 	to 	consider 	the one possible outcome 	that 	could 	allow
the State to prevail 	in the 	instant charge 	against CWA. 	In 	its
appeal, 	the State 	acknowledges 	that CWA could not 	have
committed 	a 	violation 	if 	the 	SCO policy 	is 	found 	to 	be
inherently unlawful. 	As 	the State 	aptly puts 	it, 	CWA could not
be 	found 	to 	have violated 	SEERA by failing 	to 	live up 	to 	an
unlawful 	policy. 	Similarly, 	if 	the SCO policy is 	lawful 	and
the State's 	application of 	the policy was 	lawful 	(i.e., 	the
State did nothing 	to 	interfere with employee 	rights), 	then
there would 	be 	no 	violation 	of 	SEERA 	that 	CWA could 	have 	caused
or 	attempted 	to 	cause.5 	All 	CWA could have 	caused 	or
attempted 	to 	cause 	under 	this 	scenario was 	the 	State's 	lawful
adherence 	to 	its 	established policy.
A 	third 	possible outcome would 	be 	a 	finding 	that 	the 	SCO
policy was 	lawful, 	but 	that 	the policy was 	unlawfully 	applied
in this 	instance. 	In other words, 	it could be determined that
the policy is 	lawful 	if 	applied 	as 	intended but, 	in this 	case,
the 	application of 	the 	policy went 	awry, 	thereby 	interfering
with employee 	rights. 	It 	is 	this 	factual 	and 	legal possibility
that 	the 	regional 	attorney, 	in our view, 	failed to consider,
and 	that makes 	the 	State's 	allegations 	sufficient 	to 	state 	a
5 While 	theoretically 	CWA 	could 	have 	caused 	or 	attempted
to 	cause 	the State 	to 	commit 	a violation which 	is 	not 	alleged
in S-CE-273-S, 	the 	State makes 	no 	such 	allegation.
66

prima 	facie case. 	The State 	in fact 	alleges 	that, 	if 	employee
rights were 	interfered with, 	it was due to CWA's 	failure to
abide 	by 	the 	policy 	and 	forward 	the 	dues 	deduction 	cancellation
requests.
We view the State's 	theory as 	stating 	that, 	if 	employee
rights were 	interfered with, 	the SCO was 	CWA's 	unwitting
accomplice 	in such 	interference. 	If 	this was 	in fact 	the case,
then 	indeed 	it 	could be 	found 	that 	CWA caused 	the 	State 	to
commit 	a violation.6
We note 	that, 	irrespective of 	any finding 	that CWA
interfered with employee 	rights, 	the 	State must 	establish 	a
causal 	connection 	between CWA's 	behavior 	and 	any behavior 	by
the State that 	is 	found to be unlawful. 7 In other words, 	the
State must 	show that 	it was 	the unwitting 	accomplice 	of 	CWA 	and
that 	the 	State's 	own unlawful 	behavior was 	not 	instead 	the
6 We 	feel 	compelled 	to 	note 	our 	dissenting 	colleague's
creative 	argument 	that 	nothing 	cognizable 	as 	an unfair 	practice
under 	SEERA has 	been 	alleged. 	We 	are 	unconvinced 	that 	actions
of 	the Controller, 	at 	least when acting 	as 	an agent of DPA, 	are
shielded 	from the 	jurisdiction of 	PERB. 	In any event, 	this
issue may be 	raised by the 	parties 	at 	hearing. 	Though
jurisdictional 	in nature, 	we 	are 	loath to determine 	such 	an
issue without 	the 	benefit 	of 	factual 	findings 	concerning 	the
alleged 	actions 	of 	the 	SCO 	and without 	giving 	the 	parties 	the
opportunity to submit briefs. 	Therefore, 	it 	is 	appropriate
that 	this 	case 	go 	to hearing.
7 This 	is not true, 	of course, 	if 	the State 	relies on an
attempt 	theory. 	Section 3519.5 	speaks 	in terms 	of 	causing 	or
attempting to cause the State to commit a violation, 	thus, 	it
is 	also 	theoretically possible 	for 	the 	State 	to 	prove 	that 	CWA
consciously attempted 	(but 	failed) 	to make 	the 	State 	its
unwitting 	accomplice.
6
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product 	of 	a 	conscious 	disregard 	for 	the 	impact 	(upon employee
rights) 	of CWA's 	failure to honor the withdrawal 	requests.8
Consolidation With Case No. 	S-CE-273-S
Having 	concluded 	that 	a 	complaint 	should 	issue 	in 	this
case, 	and 	in 	light 	of the close 	relationship to Case No.
S-CE-273-S, 	we 	shall 	order 	that 	the 	two 	cases 	be 	consolidated
for 	hearing. 	We do 	so 	in the 	interest of 	economy and 	for 	the
convenience 	of 	all 	concerned. 	A parallel 	order 	shall 	issue
pertaining 	to Case No. 	S-CE-273-S.
ORDER
The 	Public 	Employment 	Relations 	Board 	hereby ORDERS 	that
the dismissal 	in Case No. 	S-CE-62-S be 	reversed 	and 	that 	a
complaint 	issue 	consistent with the 	above discussion. 	It 	is
further 	ORDERED 	that 	this 	matter 	be 	consolidated 	for 	hearing
with 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	Case No. 	S-CE-273-S.
Chairperson Hesse 	joined 	in 	this 	Decision. 	Member 	Porter's
dissent 	begins 	on page 	9.
8Our 	dissenting 	colleague 	apparently 	reads 	our 	decision
as 	holding 	that 	CWA would 	be 	absolved 	of 	all 	liability 	if 	the
State 	knew of 	CWA's 	alleged misconduct 	but 	continued 	to 	adhere
to 	its 	policies 	despite 	an obvious 	potential 	for 	interference
with employee 	rights. 	We, 	of course, 	make no 	such finding. 	To
emphasize 	the 	importance 	of 	causation 	in proving 	a 	violation of
section 3519.5(a), 	we merely note circumstances 	in which a
causal 	link between CWA's 	actions 	and 	those of 	the 	State 	could
be broken. 	CWA's 	liability to other parties, 	i.e., 	the
employees, 	is 	not the subject of 	this charge.
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Porter, 	Member, 	dissenting: 	I 	respectfully dissent and
would 	affirm 	the 	regional 	attorney's 	dismissal 	of 	the 	charge,
but 	for 	reasons 	unrelated 	to 	those 	set 	forth 	in 	the 	dismissal
letter. 	In 	this 	case, 	DPA is 	alleging 	that 	CWA caused or
attempted 	to 	cause 	the 	State 	employer 	to 	violate 	the Act by
failing 	to adhere 	to 	the 	Controller's 	procedure 	for 	canceling
dues 	deduction 	requests, 	resulting 	in 	the Controller's 	Office
continuing 	to make 	such 	deductions 	after 	the 	employees 	had
notified 	CWA of 	their 	desire 	to 	cease 	such 	deductions.
Assuming 	this 	is what occurred, 	I 	fail 	to see how this 	scenario
implicates 	either 	DPA or 	the 	"State 	employer." 	The 	Controller
is 	not 	the State employer, 	as 	the 	Controller 	is a 	separate
constitutional 	officer who 	is 	independently 	in 	control 	of 	the
the 	expenditure of 	State 	funds, 	and 	not 	subject 	to the
direction 	or 	control 	of DPA, 	the governor 	or 	the 	State
employer. 	(Cal. 	Const., 	Art. V, 	sec. 	11; McCauley v. Brooks
(1860) 	16 Cal. 	11.) 	The Controller 	is authorized to enact
regulations 	regarding payroll 	and 	is 	under 	certain 	Government
Code duties 	regarding 	the payroll 	and deductions. 	(See 	Gov.
Code secs. 1150-53, 	12410, 	12440, 	12470-77.)
SEERA 	section 	3519 	states 	in part, 	"It 	shall 	be unlawful
for the state to: 	. 	. 	. 	." 	Section 3513(i), which is the
provision 	in 	SEERA 	setting 	forth 	the 	definitions 	of 	the 	terms
in SEERA, 	states:
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"State 	employer," 	or 	"employer," 	for 	the purposes
of bargaining or 	meeting 	and 	conferring 	in 	good
faith, 	means 	the Governor 	or his 	or her 	designated
representatives.
Section 3514.5(a) 	states 	in part, 	"Any employee, 	employee
organization, 	or 	employer 	shall have 	the 	right 	to 	file an
unfair practice charge 	. 	. 	. 	." 	Attempting to harmonize these
various 	provisions 	of 	SEERA 	leads 	to 	the 	conclusion 	that 	the
State 	employer, 	as 	envisioned by the Act, 	means 	the actual
employer, 	such 	as 	the 	individual 	State 	department 	that 	employs
the 	employees 	who are 	subject 	to the Act 	or, 	for purposes 	of
collective bargaining, 	it 	is 	the Governor's designee, 	which 	is
the 	Department 	of Personnel 	Administration 	(DPA). 	Obviously,
when 	section 	3519 	(and, 	thus, 	section 	3519.5) 	refers 	to the
"state," 	it means 	the 	"State 	employer" 	(e.g., 	DPA or 	the actual
employing entity). 	It does not mean 	the 	Controller, 	who is 	not-
the State employer 	(unless, 	of course, 	it 	is the Controller's
employees 	who are 	involved). 	As 	stated 	in 	California 	State
Employees 	Association v. 	Regents 	of 	the University of
California 	(1968) 	267 Cal.App.2d 667, 	669:
The 	meaning 	of certain words 	or phrases 	in 	a
section 	of 	a 	statute 	may be 	limited 	or 	restricted
by 	reference 	to 	surrounding 	statutes.
Given 	the 	above, 	it 	follows 	that when 	the 	Controller did
not 	cease 	the 	dues 	deductions, 	he did 	not 	thereby commit 	an 	act
cognizable 	as 	an 	unfair 	practice 	within 	PERB's 	jurisdiction.
10

Further, 	DPA and 	the 	State 	employer 	could 	not have 	committed 	an
unfair 	practice 	based 	on 	the 	action 	of 	the 	Controller.1 It
is, 	therefore, 	axiomatic 	that CWA could 	not have 	caused 	or
attempted 	to cause 	the 	State 	employer 	to 	violate 	the Act. 	For
that 	reason, 	I would dismiss 	DPA's 	charge.
In 	addition, 	I disagree with 	that portion 	of 	the majority
opinion 	that 	concludes 	that 	the 	State 	must 	establish 	a 	causal
connection 	between 	CWA's 	behavior 	and 	any behavior by 	the 	State
found 	to be 	unlawful. 	(Majority opinion, 	pages 	7-8.) 	As
discussed 	above, 	the 	Controller 	is 	empowered by law 	to
establish 	rules 	and 	regulations 	governing 	payroll 	deductions.
CWA 	agreed 	to 	abide by those 	rules. 	The majority opinion
implies 	that 	the 	State 	employer 	must 	not 	only 	establish 	that
CWA 	failed 	to 	follow the 	rules, 	but 	must 	also establish, 	as
part of 	its 	case 	in chief, 	that 	it was unaware of CWA's
conduct. 	The 	implication 	is 	that, 	should 	the 	State 	employer be
unable 	to prove 	this 	latter point, 	it would be 	unable 	to prove
CWA caused 	the 	State 	employer 	to violate 	the Act. 	This 	leads
to 	the 	absurd 	result 	that 	an 	employee 	organization 	is 	free 	to
1The 	majority 	opinion 	refers 	to 	and 	would 	consolidate
this 	case with a 	companion case, 	No. 	S-CE-273-S, 	in which 	the
general 	counsel 	issued 	a 	complaint 	alleging 	that 	the 	State has
interfered with 	the 	rights of employees. 	In 	that case, 	the
charging parties 	are 	employees 	and 	the 	respondent 	is 	DPA.
While 	that 	case 	is 	not before 	the Board 	itself, 	if 	the 	gist of
the 	charge 	against 	DPA is 	the 	same 	as 	DPA alleges 	in 	this 	case,
I 	question 	whether 	the 	other 	complaint 	states 	a 	prima 	facie
case.
11

ignore 	lawfully 	established 	regulations, 	and 	thereby cause 	the
State 	employer 	to violate 	the Act, 	so long as 	the 	State
employer 	is 	made 	aware of 	that 	fact. 	Once 	the 	State 	employer
has 	such knowledge, 	it can 	then be held 	to answer 	for a
violation 	that 	results 	from 	or 	was 	caused by 	the 	employee
organization's 	disregard of 	the 	regulations. 	Further, 	even 	if
the majority opinion 	is 	correct 	in 	its 	finding of 	an 	"agency"
relationship between 	the 	State 	employer 	and 	the 	Controller, 	its
conclusion 	implies 	that, 	once 	the 	employer has 	knowledge 	that
the 	employee 	organization 	is 	not 	abiding by 	lawfully
established 	regulations, 	the 	employer 	may 	somehow 	instruct 	the
Controller 	to act 	contrary to his 	own 	regulations. 	Such 	a
conclusion 	is 	insupportable. 	I do not 	agree 	that 	the 	State was
under 	any 	type 	of 	obligation 	to 	take 	steps 	to 	remedy 	the
situation, 	and 	that 	failure 	to do 	so 	somehow eliminates 	the
alleged wrongful 	act by CWA. 	If 	CWA's 	action 	in 	failing 	to
comply with 	the 	Controller's 	regulation 	is 	determined 	to have
caused 	or 	attempted 	to 	cause 	the 	State 	employer 	to 	violate 	the
Act, 	then 	that 	liability 	is 	not 	alleviated because 	the 	State
did 	not 	assume 	the 	responsibility 	to 	take 	corrective 	action.
For 	the 	above 	reasons, 	I 	respectfully dissent.
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