California State Employees Association (Roberts) (PERB 1005S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LINDA ROBERTS,
Charging 	Party,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-146-S
PERB Decision No. 	1005-S
June 25, 	1993
Appearances: 	Linda Roberts 	on her own behalf; 	James W. 	Milbrandt
for California State 	Employees Association.
Before Blair, 	Chair; 	Hesse and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Linda Roberts
(Roberts) 	of a Board agent's dismissal 	(attached hereto) 	of 	the
unfair practice 	charge 	alleging 	that 	the 	California 	State
Employees Association 	(CSEA) 	violated section 3519.5 	of 	the Ralph
C. 	Dills Act 	(Dills Act 	or 	Act).1 Roberts 	alleges 	that 	CSEA
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519.5 states, 	in pertinent part:
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.
)
)
)
)
)
)
)
)
)
)
______________ )

violated 	its 	duty 	of 	fair 	representation and 	otherwise 	interfered
with her 	rights 	granted by 	the Dills Act.
Section 3515.7 states, 	in part:
(g) 	An employee who pays 	a 	fair share 	fee
shall 	be 	entitled 	to 	fair and 	impartial
representation by 	the 	recognized 	employee
organization. 	A breach of 	this 	duty shall 	be
deemed 	to have 	occurred 	if 	the 	employee
organization's 	conduct 	in 	representation 	is
arbitrary, 	discriminatory, 	or in bad faith.
The 	Dills 	Act 	does 	not 	expressly 	impose 	a broad based duty
of 	fair representation on employee organizations, 	however, 	PERB
has 	held 	that 	a duty to all 	employees 	is 	implied 	in the Act 	as 	a
quid pro 	quo 	for 	the 	granting 	of 	exclusive 	representation 	rights
to employee organizations. 	(See California State Employees'
Association(Norgard) 	(1984) 	PERB Decision No. 	451-S.)
The 	only 	issue 	raised 	on appeal 	that 	is 	not 	addressed by 	the
Board agent's 	warning 	letter 	or dismissal 	letter 	concern Roberts'
claim that 	CSEA conducted bargaining 	in a way 	that 	adversely
affected members 	of Bargaining Unit 	4. 	Roberts 	asserts,
generally, 	that 	the bargain struck by CSEA was 	not 	the best 	that
could 	have 	been 	obtained and 	that 	the 	organization 	should 	have
returned 	to 	the 	table 	to 	get 	a better 	contract 	rather 	than 	seek
employee 	ratification.
The union 	is 	allowed 	substantial 	leeway 	for developing
negotiating strategy and 	final 	contract 	ratification; 	it 	is 	not
required to 	justify every decision at 	the bargaining 	table. 	(See
Redlands Teachers Association(Faeth, 	et al.) 	(1978) 	PERB Decision
No. 	72; 	Rocklin Teachers Professional Association(Romero) 	(19 80)
PERB Decision No. 	124.) 	In this case, 	Roberts' 	conclusive
allegations 	are 	insufficient 	to demonstrate 	that 	CSEA's
2
--------- - 	--
2

negotiating 	conduct 	breached 	its 	duty of 	fair representation.
Nor does 	the 	charge 	contain 	facts 	demonstrating 	that 	CSEA
knowingly misrepresented 	the 	contract 	meaning 	or 	intent 	at 	the
time 	of 	contract 	ratification 	in order to secure approval.
The 	Board has 	reviewed 	the 	charge 	and 	the 	appeal.
Consistent with the discussion above, 	we 	find that 	no prima 	facie
case has been stated. 	Finding the 	Board agent's 	dismissal
letters 	(which includes 	the warning letter) 	to be 	free of
prejudicial 	error, 	the Board adopts 	them as 	the decision of 	the
Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CO-146-S 	is
hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Carlyle 	joined 	in 	this Decision.
W
	3

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 21, 	1992
Linda 	Roberts
Re: 	Linda Roberts v. 	California State Employees Association.
Case No. 	S-C0-146-S
DISMISSAL 	LETTER
Dear Ms. Roberts:
On June 18, 	1992, 	you filed a charge alleging that the California
State 	Employees Association 	(Association) 	violated Government
Code section 3519.5 	(the Dills Act). 	Specifically, 	you allege
that 	CSEA violated 	its 	duty of 	fair 	representation by removing
you from office as 	President 	of District Labor Council 	(DLC) 	789
and decertifying you as a 	steward.
I 	indicated to you, 	in my attached letter dated July 9, 	1992,
that 	the above-referenced 	charge did not 	state a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would correct 	the
deficiencies 	explained 	in that 	letter, 	you should amend the
charge. 	On July 20, 	1992, 	you filed your First Amended Charge,
and on September 30, 	1992 	you 	filed a Second Amended Charge.
I have 	thoroughly 	reviewed your amended charges 	and all 	the
documents you 	submitted. 	The majority of 	statements 	contained 	in
your amended 	charges 	are 	conclusionary and 	do not 	contain 	clear
and concise 	statements 	of 	the 	facts 	and 	conduct 	by the
Association alleged 	to 	constitute 	an unfair practice 	as 	required
by PERB Regulation 32615 	(California Code of Regs., 	tit. 	8, 	sec.
32615). 	Accordingly, 	those allegations are dismissed.
I 	have 	summarize 	the 	following allegations 	contained 	in your
amended 	charges 	and 	find 	that 	they also 	fail 	to 	state a prima

Dismissal 	Letter 	- 	S-C0-146-S
October 21, 	1992
facie 	case 	that 	the Association violated 	its 	duty 	to 	fairly
represent you:
1. 	The Association violated its 	duty of 	fair
representation by 	removing 	you 	from your
office as District 	Labor Council 	789
President 	and decertifying you 	as 	a 	steward.
2. 	The Association violated its 	duty of 	fair
representation by not 	holding hearings 	for
Barbara Glass 	or Perry Kenny on 	the 	charges
you 	filed against 	them.
3. 	The Association violated its duty of 	fair
representation by engaging 	in reprisals 	against
you 	for engaging 	in protected activities.
Your allegations 	that 	the Association violated 	its 	duty of 	fair
representation by 	removing you 	from your office 	as 	District 	Labor
Council 	789 	and decertifying you as a steward, 	and by failing 	to
hold hearings 	for Barbara Glass 	or Perry Kenny on the 	charges 	you
filed against 	them refer to activities 	which are 	strictly
internal 	union matters 	and do not have a 	substantial 	impact 	on
the relationships 	of unit members 	to their employers. 	The duty
of 	fair 	representation extends 	only to union activities 	that 	have
a 	substantial 	impact 	on the 	relationships 	of unit members 	to
their employers 	and does 	not apply to 	those activities 	which do
not 	directly 	involve 	the 	employer or which are 	strictly 	internal
union matters. 	Service Employees 	International Union. 	Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106; 	Rio Hondo College Faculty
Association. 	CTA/NEA 	(1986) 	PERB Decision No. 	583. 	Accordingly,
those 	allegations 	are 	dismissed.
Finally, 	your amended charges allege 	that 	the Association
violated 	its 	duty 	of 	fair 	representation by 	engaging 	in 	reprisals
against you 	for engaging in protected activities. 	The duty of
fair 	representation does 	not 	apply to 	those 	activities 	which are
strictly internal union matters. 	See, 	Service Employees
International Union, 	Local 99 	(Kimmett). 	supra. 	However when
allegations 	of 	reprisal 	for protected activity are present, 	if
the 	allegations 	state 	facts 	supporting 	retaliation by an employee
organization, 	internal 	union activities may be 	reviewed. 	Such an
inquiry must 	go 	forth under 	Carlsbad Unified 	School 	District
(19 79) 	PERB Decision No. 	89 and/or Novato Unified School District
22

Dismissal 	Letter 	- 	S-C0-146-S
October 21, 	1992
(1982) 	PERB Decision No. 	210, 	as to whether the employee
organization's 	actions 	were motivated by a 	charging party's
exercise of protected rights. 	California State Employees'
Association 	(O'Connell) 	(1989) 	PERB Decision No. 	753-H. 	Although
your amended 	charges 	contain allegations 	that 	you 	engaged 	in
protected 	activity and 	the Association had 	knowledge 	of 	such
activity, 	your amended charges 	fail 	to demonstrate 	that 	the
Association's 	actions were motivated by your exercise 	of
protected rights. 	Therefore, 	those allegations must also be
dismissed.
Therefore, 	I am dismissing your charges based on the 	facts and
reasons 	contained in this 	letter and my July 9, 	1992 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(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 you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies 	of 	a statement 	in opposition within 	twenty 	(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,
w	3

- - ..
Dismissal 	Letter 	- 	S-C0-146-S
October 21, 	1992
sec. 	32140 	for the required contents and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in the 	first-class mail, 	postage paid and
properly 	addressed.
- . -- - - . 	- -_ . .. .
. . . . m . =. . ..
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.)
- - -."- - . - .a
. - . ". .
Final Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal 	will become 	final when the 	time limits have expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Michael E. 	Gash
Regional 	Attorney	- - - _ - - -.."/
Attachment
cc: 	Bob Zenz
CSEA
110 	0 Street
Sacramento, 	CA 	95814
8
..
A
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4

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
July 9, 	1992
Linda 	Roberts
Re: 	Linda Roberts v. 	California State Employees Association,
Case No. 	S-CO-146-S
WARNING 	LETTER
Dear Ms. Roberts:
On June 18, 	1992, 	you filed a charge in which you allege that 	the
California State 	Employees Association 	(CSEA) 	violated Government
Code section 3519.5 	(the Dills Act). 	Specifically, 	you allege
that 	CSEA violated 	its 	duty of 	fair representation by 	removing
you 	from office as 	President 	of District 	Labor Council 	789
(DLC 	789) 	and decertifying you as a steward. 	My 	investigation
revealed the 	following 	facts.
In 1984, 	Charging Party became a steward with CSEA. 	In 1990,
Charging Party became President of DLC 789. 	In 1990, 	Jeff Young,
on staff with CSEA, 	was assigned to Charging Party.
The 	former president 	of DLC 789 	and Charging Party began
documenting 	Young 	for not 	performing his 	duties 	regarding
employee 	representation. 	Charging 	Party contends 	Young 	responded
to the attempts 	to get him to do his 	job with interference 	in the
internal 	and external 	politics 	of 	the union. 	Charging Party
contends 	Young 	encouraged other members 	of 	the DLC 	to misuse DLC
money, 	not do their assigned duties as officers, 	engage in
undemocratic 	activity, 	and engage 	in discriminatory activity.
Charging 	Party 	repeatedly went 	to 	the 	CSEA Civil 	Service 	Division
officer 	for help and received none. 	On or about August 	2, 	1991,
Charging 	Party 	filed 	charges 	against 	Jeff 	Young. 	Charging 	Party
contends CSEA took no action. 	In about December 1991, 	Walter
Rice 	filed 	charges 	against Michael Miller. 	Charging 	Party
contends 	CSEA took no action 	on Miller.

July 9, 	1992
Page 2
Charging 	Party also 	contends 	officers 	took 	the advice 	of 	Jeff
Young 	and 	spent 	DLC money on going 	to 	restaurants 	repeatedly and
unnecessarily, 	and Miller wrote himself 	stipend 	checks 	for the
time period when he was not 	doing his 	duties. 	Charging Party
wrote 	these 	officers 	letters 	telling 	them to 	resubmit 	their
expense 	claims with 	explanations 	of 	expenses 	and 	correctly 	filled
out expense forms.
In December 1991, 	Young filed charges against Charging Party.
Young used a member vs. 	member 	form. 	Charging Party contends
Perry Kenny allowed a hearing 	to be held on March 10, 	1992,
despite 	numerous 	policy 	file violations which had been pointed
out 	to him regarding the 	charges and the process.
On or about April 	6, 	1992, 	Charging Party was notified by letter
that 	she was 	removed from office as 	President 	of DLC 	789 	and
decertified as 	a 	steward and would not be 	recertified 	for a
period of one year. 	On or about April 7, 	1992, 	Charging Party
received the hearing panel 	report. 	On or about May 7, 	1992,
Charging 	Party was 	notified by 	letter 	that 	she would not 	be
eligible to run for DLC President, 	at this time, 	because she had
been decertified as a steward on April 	6, 	1992.
Based upon the above 	facts 	I 	find that you have 	failed to
establish a prima 	facie 	case 	that 	CSEA has violated its 	duty of
fair 	representation.
Although your 	charge does 	not 	contain a 	clear and concise
statement 	of 	the 	facts 	and conduct 	alleged 	to 	constitute 	an
unfair practice 	as 	required by PERB Regulation 	32615 	(California
Code of Regs., 	tit. 	8, 	sec. 	32615), 	from my review of your
statement of 	charge and the seventy-three 	(73) 	pages of attached
materials, 	it appears 	that you are alleging that CSEA has
violated 	its 	duty 	to 	fairly 	represent 	you by 	removing you 	from
office 	as 	President 	of DLC 	789 	and decertifying you as 	a steward.
Your 	charge 	appears 	to 	essentially 	challenge 	the 	internal
procedures 	of 	CSEA. 	Generally, 	the Public Employment Relations
Board 	(PERB or Board) 	has 	not 	read the Dills Act 	as 	authorizing
PERB to intervene 	in internal union affairs. 	In Service
Employees 	International Union. 	Local 99 	(Kimmett) 	(1979) 	PERB
Decision No. 	106, 	at pp. 	15-17, 	the Board explained as follows:
The 	EERA gives 	employees 	the 	right 	to 	"join
and participate 	in activities 	of 	employee
organizations" 	(sec. 	3543) 	and employee

July 9, 	1992
Page 3
organizations 	are prevented 	from 	interfering
with employees because of 	the 	exercise 	of
their rights 	(sec. 	3543.6(b)). 	Read broadly,
these 	sections 	could be 	construed as
prohibiting 	any 	employee 	organization 	conduct
which would prevent 	or 	limit 	employee's
participation in any of 	its activities. 	The
internal 	organization 	structure 	could be
scrutinized as 	could the 	conduct 	of 	elections
for union officers 	to 	ensure 	conformance with
an 	idealized participatory 	standard. 	However
laudable 	such a result might be, 	the Board
finds 	such 	intervention 	in union affairs 	to
be beyond the legislative 	intent 	in enacting
the EERA. 	There 	is nothing in the EERA
comparable 	to 	the 	Labor-Management 	Reporting
and Disclosure Act of 	1959, 	which regulates
certain 	internal 	conduct 	of unions 	operating
in the private sector. 	The EERA does not
describe 	the 	internal 	working or 	structure 	of
employee 	organization nor does 	it 	define 	the
internal 	rights of organization members. 	We
cannot believe 	that by the use 	of 	the phrase
"participate 	in the activities 	of 	employee
organizations 	. 	. 	. 	for the purpose of
representation on all matters 	of 	employer-
employee relations" 	in section 3543, 	the
Legislature 	intended this 	Board 	to 	create a
regulatory set 	of 	standards 	governing 	the
solely 	internal 	relationship between a union
and its members. 	Rather, 	we believe that 	the
Legislature 	intended 	in the EERA to grant 	and
protect employees' 	rights 	to be represented
in 	their employment 	relations 	by 	freely
chosen employee 	organizations. 	[Footnotes
omitted.]
PERB has 	recognized an exception to 	the 	general 	principle 	of 	non-
intervention, 	where 	the internal 	activities 	of an employee
organization have 	such a 	substantial 	impact 	on employees'
relationship with their employer as 	to give 	rise 	to 	the duty of
fair representation. 	Your 	charge 	fails 	to allege 	or demonstrate
an 	impact 	on Charging 	Party's 	relationship with 	the 	employer 	so
as 	to give 	rise 	to 	the 	duty of 	fair representation.
1EERA section 3543.6(b) 	is 	identical 	to section 3519.5(b) 	of
the Dills Act.

July 9, 	1992
Page 4
PERB has 	also 	recognized two other exceptions 	to 	the principle of
non-intervention. 	In California School 	Employees Association and
its Shasta College Chapter #381 	(Parisot) 	(1983) 	PERB Decision
No. 	280, 	at p. 	11, 	PERB recognized its 	"jurisdictional power
to determine whether an employee organization has exceeded its
authority under subsection 3543.1(a) 	to dismiss 	or otherwise
discipline 	its members." 	That 	subsection of 	the 	EERA provides 	in
relevant part as 	follows:
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding who may
join and may make 	reasonable provisions 	for
the 	dismissal 	of 	individuals 	from membership.
Thus, 	in questions of membership, 	PERB will 	examine the
reasonableness 	of 	restrictions 	or dismissals. 	See also Union of
American Physicians and Dentists 	(Stewart) 	(1985) 	PERB Decision
No. 	539-S 	and California Correctional 	Peace Officers Association
(Colman) 	(1989) 	PERB Decision No. 	755-S.
Similarly, 	in California State Employees' 	Association 	(O'Connell)
(1989) 	PERB Decision No. 	753-H, 	at p. 	9, 	PERB explicitly
recognized 	its 	statutory authority 	to 	inquire 	into 	the 	internal
activities 	of 	an employee 	organization when 	it 	is 	alleged 	that
the 	organization has 	imposed reprisals 	on employees 	because 	of
their exercise of protected rights. 	This decision was based on
the 	statutory authority of Government 	Code 	section 3571.1(b) 	of
the Higher Education Employer-Employee Act. 	The 	same 	statutory
language appears 	in section 3519.5(b) 	of 	the Dills Act. 	See also
California Association of 	Psychiatric Technicians 	(Long) 	(1989)
PERB Decision No. 	745-S and California School 	Employees
Association 	(Petrich) 	(1989) 	PERB Decision No. 	767.
Your charge 	fails 	to demonstrate 	that 	CSEA's procedures 	for
filing 	charges 	and 	removing you 	from office 	were 	unreasonable.
Furthermore, 	your charge 	fails 	to allege 	that you suffered any
reprisal 	because 	of 	any exercise 	of 	protected rights.
For these reasons 	the charge, 	as presently written, 	does not
state a prima facie 	case. 	If 	there are any 	factual 	inaccuracies
in this 	letter or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and

July 9, 	1992
Page 5
be 	signed under penalty of 	perjury by 	the 	Charging 	Party. 	The
amended 	charge must be 	served on 	the Respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before July 16, 	1992, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney