State of California (Department of Developmental Services) (PERB 0344S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
UNION
	OF
	AMERICAN
	PHYSICIANS
AND
	DENTISTS,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA 	(DEPARTMENT
	OF
DEVELOPMENTAL
	SERVICES),
Respondent.
Case
	No.
	S-CE-21-S
PERE
	Decision
	No.
	344-S
September
	12,
	1983
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_____________________
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UNION
	OF
	AMERICAN 	PHYSICIANS
AND
	DENTISTS,
Charging
	Party,
v.
PUBLIC 	PRACTICE 	BUREAU/CALIFORNIA
MEDICAL 	ASSOCIATION,
Respondent.
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_____________________ )
Case
	No.
	s-co-1-s
~ppearances:	
Philip
	Paul
	Bowe,
	Attorney 	(Davis,
	Cowell	
&
Bowe)
	for 	the
	Union
	of
	American
	Physicians
	and
	Dentists;
David
	L.
	Suddendorf, 	Attorney 	(Hassard, 	Bennington, 	Rogers	
&
Huber)
	for 	the 	Public 	Practice 	Bureau/California
	Medical
Association.
Before 	Gluck,
	Chairperson;
	Tovar 	and
	Burt,
	Members.
DECISION
BURT, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or 	Board) 	on
	exceptions 	filed
	by
	the
Public 	Practice 	Bureau/California 	Medical 	Association
	IPPB/CMA)
to 	the 	Administrative
	Law
	Judge's
	(ALJ)
	proposed 	decision

finding
	that
	the
	PPB/CMA
	interfered
	with
	employee
	rights
	in
violation
	of
	subsection
	3519.S(b)
	of 	the
	State
	Employer-
Employee
	Relations
	Act
	(SEERA
	or
	Act)l	
by
	virtue
	of 	the
organizational 	relationship
	between
	the
	CMA
	and
	the
	PPB.
In
	May
	of
	1980,
	the
	Union
	of
	American
	Physicians
	and
Dentists
	(UAPD)
	filed
	charges
	alleging 	that
	the
	State
	of
California,
	Department
	of
	Developmental
	Services 	(State 	or
Department)
	violated
	subsection
	3519(d)
	of
	SEERA2	
by
	granting
lsEERA
	is
	codified
	at
	Government
	Code
	section
	3512
et
	seq. 	All
	statutory
	references 	are
	to 	the
	Government 	Code
unless
	otherwise
	specified.
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.
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.
2section
	3519(d)
	states:
It
	shall
	be
	unlawful 	for 	the
	state
	to:
(d) 	Dominate 	or
	interfere
	with 	the
formation 	or
	administration 	of
	any 	employee
organization,
	or
	contribute 	financial
	or
other 	support 	to
	it,
	or
	in
	any
	way
	encourageemployees 	to 	join
	any
	organization 	in
preference 	to 	another.
2

special
	privileges
	to 	the
	PPB/CMA.
	The
	UAPD
	also
	filed
	charges
against
	the
	PPB/CMA
	itself,
	claiming
	that
	it
	violated
subsection
	3519.S(a)
	by
	deceiving 	the
	State 	into
	granting
special
	benefits
	to
	the
	CMA
	while
	it
	was
	organizing
	state
employees
	through
	the
	PPB,
	so
	that 	privileges
	were
	available
	to
the
	PPB/CMA
	which 	were
	not
	available
	to
	the
	UAPD.
	The
	UAPD
further
	alleged
	that
	the
	PPB/CMA
	had
	violated
	subsection
3519.S(b),
	by
	interfering
	with
	employee
	rights
	by
	inducing
employees
	to
	sign
	authorization
	cards
	through
	the
	use
	of
misstatements
	about
	employee
	rights
	under
	SEERA.
The
	ALJ
	dismissed
	all
	charges
	against
	the
	State.
	He
	found
that
	the
	State
	had
	acted 	reasonably 	in 	dealing
	with 	the
	PPB
initially
	as
	if
	it
	were 	any
	other 	labor
	organization.
	When
	the
State
	found
	out
	that
	the
	CMA
	was
	intimately
	involved 	with
	the
PPB,
	it
	discontinued
	all
	special 	privileges
	granted 	to 	the
	CMA.
The
	ALJ
	did 	not
	explicitly
	dismiss 	the
	section
	3519.S(a)
charge,
	that
	the
	PPB/CMA
	caused 	or
	attempted 	to
	cause
	the
	State
to
	violate
	section
	3519,
	although
	he
	apparently
	found
	no
violation
	of
	this 	section.
In
	its
	response 	the
	UAPD
	does 	not 	except 	to 	the
	ALJ's
dismissal
	of 	the 	subsection
	3519(d)
	charges 	against 	the
	State
or
	his 	failure
	to 	find
	that
	the
	PPB/CMA
	violated 	subsection
3519.S(a)
	by
	causing 	the
	State
	to
	violate
	SEERA,
	although
	it
does 	allude 	to 	those
	allegations 	in 	defense 	of 	the 	ALJ's
decision. 	Therefore 	these 	matters 	are 	not 	before
	us
	on
	appeal.
3

The
	ALJ
	found
	that
	the
	PPB/CMA
	had
	violated
	subsection
3519.S(b)
	by
	interfering
	with
	the
	right
	of
	employees
	to
	be
represented
	by
	a
	legitimate
	labor
	organization.
	The
	PPB/CMA
excepts
	to
	this
	conclusion.
	The
	UAPD
	filed
	a
	response
	to
exceptions
	in
	which
	it
	defended 	the
	ALJ's
	finding 	of
	violation.
We
	have
	reviewed
	the
	entire
	record
	in
	light
	of 	these
exceptions
	and
	the
	UAPD's
	response.
	For
	the 	reasons
	outlined
below,
	we
	reverse 	the
	ALJ
	and
	dismiss
	all
	charges
	against 	the
PPB/CMA.
FACTS
In
	November
	1979,
	PERE
	established
	statewide 	bargaining
unit
	#16, 	comprised
	of 	approximately
	1200
	state-employed
physicians,
	podiatrists
	and
	dentists.
	On
	December
	10,
	1979
	the
Union
	of
	American
	Physicians
	and
	Dentists
	filed
	a
	petition
requesting
	a
	representation 	election
	in
	that 	unit.
Because 	of
	a
	number
	of
	problems
	in 	the
	state 	hospitals,
	in
the
	fall
	of
	1979
	the
	California
	Medical
	Association
	had
established
	a
	liaison
	committee
	to
	state 	hospitals, 	consisting
of
	one
	doctor
	from 	each
	state 	hospital 	plus 	several
	CMA
physicians,
	and
	a
	CMA
	task 	force
	on
	state 	hospitals.
	The
purpose 	of 	these 	groups
	was
	to 	look
	into
	the
	quality
	of
	health
care 	in 	these
	hospitals.
	The
	past 	president
	of 	the
	CMA,
Dr.
	Charles
	J.
	Tupper,
	testified 	that 	in 	the 	course 	of 	studying
the 	conditions 	in
	state 	hospitals,
	it
	became
	clear 	to 	the
	CMA
that 	physicians
	were
	unable 	to
	be 	as
	effective
	as 	they 	might
4

be.
	The
	CMA
	began
	to 	consider
	a
	mechanism
	for 	these
	doctors 	to
bargain,
	not 	only 	about
	wages 	and
	hours,
	but
	about
	patient
	care.
In
	December
	of
	1979,
	the 	Executive
	Committee
	of 	the
	CMA
recommended
	that
	the
	CMA
	Council:3
submit
	appropriate 	resolution/by-law
amendments
	to 	the
	1980 	House
	of 	Delegates
	to
create
	a
	unit
	within
	the
	CMA
	which
	can
	serve
as
	a
	collective
	bargaining 	agent 	for
publicly
	employed
	physicians.
In
	early
	January 	of
	1980,
	the
	CMA
	Council
	authorized
	the
Executive
	Committee
	to
	submit
	resolutions
	and
	by-law
	amendments
to
	the
	CMA
	House
	of 	Delegates 	regarding 	the
	creation
	of
	a
	"unit
within
	the
	CMA
	which
	can
	serve 	as
	a
	collective
	bargaining 	agent
for 	publicly-employed
	physicians."
Pursuant 	to
	that 	authorization,
	on
	February 	9,
	1980,
	a
committee 	of 	the
	CMA
	House
	of 	Delegates
	recommended
	the
adoption 	of
	a
	by-law
	amendment
	to
	create
	a
	collective
bargaining 	organization
	to
	be
	known
	as 	the 	Public
	Practice
Bureau. 	That 	by-law
	amendment
	was
	subsequently
	adopted
	by
	the
delegates 	at 	their
	February 	meeting.4
3The 	House
	of 	Delegates 	of 	the
	CMA
	is
	the 	general
	body
which 	meets
	yearly;
	the 	Council
	is
	a
	representative
	group
	that
meets 	monthly
	to
	transact 	business
	between 	meetings 	of 	the
House
	of 	Delegates; 	the 	Executive
	Committee
	is
	comprised 	of 	the
officers
	of 	the
	CMA.
4Public 	Practice
	Bureau, 	By-laws
	Amendment 	No.
	8-80,Committee
	G.
RESOLVED:
	That 	Chapter 	XII
	of 	the
	Bylaws
	of
this 	Association
	be 	amended 	by
	renumbering
5

Chapter
	XII
	as 	Chapter	
XIII,	
and
	successiveChapters
	successively 	to 	maintain
	continuity
and 	by
	adding
	the
	words
	in
	italics
	which
will
	read
	as 	follows:
Chapter
	XII
	-
	Public
	Practice
	Bureau
Section
	1~
	Public
	Practice
	Bureau.
	The
Public
	Practice
	Bureau,
	in 	addition 	to 	the
other
	purposes 	of
	this
	Association,
	shall
represent 	publicly
	employed
	physicians
	and
other 	health 	care 	professionals
	with
	respectto
	wages,
	hours
	and
	other
	terms
	and
conditions 	of 	public
	employment.
	One
	of 	theprimary 	purposes 	of 	the 	Public
	Practice
Bureau
	shall
	be
	representing 	physicians
	and
other 	health 	care 	professionals
	employed
	by
the
	State 	of 	California 	in
	their 	relations
with 	the 	State.
	Membership
	in 	the
California
	Medical
	Association 	shall
	not
	be
a
	prerequisite
	for 	membership
	in 	the 	Public
Practice
	Bureau.
Dr.
	Tupper
	testified
	that
	the
	CMA
	had 	become
	aware
	that
	it
could 	not 	maintain
	its
	identity
	as
	a
	professional
	association
and
	serve
	as
	a
	collective
	bargaining
	representative 	at
	the
	same
time.
	Also,
	the
	unit
	included
	podiatrists
	and
	dentists
employed
	by
	the
	state,
	while
	membership
	in
	the
	CMA
	is
	open
	only
to
	physicians.
	The
	CMA
	had
	therefore
	determined
	to
	set
	up
	the
PPB
	as
	an
	independent
	entity,
	as
	reflected
	in
	the
	by-law
adopted.
After
	the 	adoption 	of 	the
	by-law
	amendment,
	the
	CMA
	formed
a
	steering
	committee
	for 	the
	new
	organization 	consisting 	of
	CMA
members
	who
	were
	not 	state-employed
	physicians.
	The
	chairman
of
	the
	steering
	committee
	was
	the 	chairman
	of
	the
	CMA's
	liaison
6

committee
	to
	state
	hospitals.
	Under
	the
	direction
	of 	the
steering
	committee,
	the
	CMA
	staff,
	particularly
	Jack
	Light,
began
	actively
	soliciting
	authorization
	cards
	on
	behalf 	of
	the
"Public
	Practice
	Bureau
	of 	the
	California
	Medical
Association."
	The
	CMA
	was
	acting
	under
	some
	time
	pressure,
since
	the
	UAPD
	had
	petitioned
	for
	an
	election
	and
	intervention
had
	to
	be
	made 	by
	February
	27.
As
	part
	of 	the
	solicitation
	for
	authorization 	cards, 	the
CMA
	sent
	mailgrams
	soliciting
	support 	for
	the
	PPB
	to
	members
	of
its
	liaison
	committee
	on
	state
	hospitals.
	These
	mailgrams
contained
	this
	message:
	"If
	CMA's
	Public
	Practice
	Bureau
	does
not
	qualify
	by
	February
	27,
	UAPD
	could
	be
	decreed 	as
	the
representative
	without
	an
	election."
A
CMA
	staff
	member
	testified
	that 	this
	erroneous
information
	was
	given 	to
	him 	by
	phone
	by
	a 	PERE
	employee.
	This
mailgram
	was
	also
	sent
	to
	presidents
	of
	component
	medical
societies
	(district
	organizations)
	of 	the
	CMA
	and
	medical
executives
	of
	state 	hospitals.
One
	of 	these
	mailgrams
	was
	read
	by
	Dr. 	Mabius,
	the 	Chief 	of
Professional
	Education
	at
	Camarillo
	State 	Hospital,
	at
	a
regularly
	scheduled
	staff
	meeting
	attended
	by
	approximately
50
	physicians
	on
	February
	20,
	1980.5
5As
	noted
	by
	the
	PPB/CMA,
	Dr. 	Mabius
	is 	identified 	in 	the
record 	only 	as 	the 	Chief 	of 	Medical 	Education
	at 	Camarillo.There
	is
	no
	further 	evidence 	to
	show
	his 	relationship
	with
	CMA
or 	the
	PPB.
7

Other
	letters
	were
	sent
	to
	members
	of 	the
	unit 	requesting
support,
	but
	not
	containing 	the
	phrase 	quoted
	above.
	The
PPB/CMA
	garnered
	sufficient
	support 	to
	file
	a
	timely
intervention
	on
	February
	27.
	The
	California 	State
	Employees
Association
	also
	intervened
	on
	that
	day.
The
	CMA
	liaison
	committee
	held
	its
	regular
	meeting
	on
March
	14,
	1980.
	At
	a
	meeting 	immediately
	following
	that
	of
	the
liaison
	committee,6	
in 	the
	same
	hotel,
	by-laws
	for 	the
	PPB
were
	circulated
	by
	CMA
	staff
	members 	and
	signed
	by
	six
physicians.
These
	by-laws
	provided
	that
	PPB
	would 	be
	a
	labor
organization
	open
	to
	state-employed
	physicians,
	dentists
	and
podiatrists,
	and
	that
	it
	would 	be
	autonomous,
	with
	no
	official
CMA
	representation.
	The
	PPB
	Executive
	Board
	first
	met 	on
March
	22, 	1980.
Paul
	Strobel,
	a
	staff
	member
	for 	the
	CMA,
	became
	the
	PPB's
only 	paid
	employee
	in
	late
	March, 	working
	part
	time
	for 	the
	CMA
and
	part
	time
	for 	the
	PPB. 	As
	of 	the 	hearing 	date 	in 	October,
his
	time
	was
	split
	half
	and
	half
	between
	the
	two. 	His 	check
6The
	PPB/CMA
	correctly
	notes
	by
	way
	of 	exception
	that 	in
his 	decision 	the
	ALJ
	apparently 	confused
	this
	meeting 	with
another
	meeting
	at
	Camarillo.
	The
	ALJ
	also 	suggests
	that 	theby-laws 	for 	the
	PPB
	were
	signed
	at
	the
	liaison
	committee
meeting
	itself,
	instead 	of
	at
	a
	separate
	meeting
	thereafter
	as
witnesses
	testified.
	These
	errors 	are 	non-prejudicial 	in 	any
case, 	since
	they 	involve 	only 	one
	incident 	demonstrating 	the
close 	relationship
	between 	the
	CMA
	and
	the
	PPB, 	a
	factotherwise
	amply
	demonstrated
	by
	the 	record.
8

was
	paid 	in
	full
	by
	the
	CMA,
	with
	the
	portion
	attributable
	to
the
	PPB
	charged
	against
	its
	line
	of
	credit,
	as
	described
	below.
On
	March
	31, 	1980,
	the
	CMA
	deposited
	$90.00
	in
	a
	bank
account
	created
	by
	it
	for 	the
	PPB.
	Strobel
	testified
	that 	this
amount
	represented
	dues
	that
	had
	been
	collected.
	On
	April
	12,
1980,
	the
	CMA
	Council
	issued
	a
	$29,250
	"line
	of
	credit" 	to
	PPB,
against
	which
	PPB's
	bills
	were
	charged.
	The
	letter
	to 	the
	PPB
containing
	this
	approval 	noted
	that,
	"!Blecause
	of
	the
uncertainty
	surrounding 	the
	time
	when 	PPB
	will
	become
self-supporting,
	Council
	would
	look
	favorably 	to
	an
	extension,
if 	this
	becomes
	necessary."
	Expenses
	were
	charged
	against
	this
credit
	retroactive
	to
	March
	1.
	These
	expenses
	included
	copying
and
	postage 	provided
	by
	the
	CMA,
	office
	space
	rental
	in
	an
office
	adjacent
	to
	that
	of 	the
	CMA,
	travel
	expenses
	for
	board
meetings,
	etc.,
	as
	well 	as
	Strobel's 	salary.
	The
	PPB 	was
billed
	monthly
	for 	these 	charges,
	which 	were
	then
	applied
against
	the
	line
	of
	credit.
The
	PPB
	had
	requested 	the 	loan
	interest-free,
	but
	it
	was
offered
	at
	7
	percent
	interest
	for
	two
	years.
	A memo
	from
	the
CMA
	on 	September
	16
	indicated 	that 	the
	PPB
	would
	exceed
	its
line
	of
	credit
	by
	the
	end
	of
	September 	because 	the
	PPB
	had
already 	spent 	over 	$25,000,
	which 	"amounts 	do
	not 	include
$19,711 	in
	legal
	fees 	absorbed
	by
	the
	CMA."
	At
	the 	time
	of 	the
hearing 	in 	October 	of 	1980,
	the
	PPB 	was
	negotiating 	with 	the
9

CMA
	for
	additional
	credit,
	and
	there
	was
	no
	evidence
	of
	any
other
	income
	to 	the
	PPB.
On
	February
	22, 	1980,
	after
	learning
	that
	the
	CMA/PPB
	was
soliciting
	support,
	the
	Department
	of
	Developmental
	Services
issued
	a
	memorandum
	to
	its
	Executive
	Directors
	to 	the
	effect
that
	since
	CMA
	was 	now
	operating
	as
	a
	labor
	union,
	it
	should
	be
treated
	as 	such,
	and
	no
	longer
	offered 	the
	special
	treatment
given
	a
	professional 	organization.
	Before
	the 	issuance 	of
	this
memo,
	state-employed
	physicians 	received
	time
	off
	for
	attending
CMA
	meetings
	and
	reimbursement
	for
	some
	expenses 	connected 	with
those 	meetings.
	Mail
	sent
	to
	CMA
	members
	at 	state
	facilities
was
	delivered
	to 	the
	members'
	personal
	boxes,
	rather
	than
simply 	placed 	in
	a
	big
	box
	like
	other
	mail
	from 	employee
organizations. 	Further,
	the
	CMA
	participated
	in
	accreditation
committees 	reviewing
	conditions
	at 	state 	hospitals.
When
	the 	meeting
	of 	the
	liaison
	committee
	was
	held
	on
March
	14,
	at 	least
	one
	hospital 	director
	responded
	to 	the
	CMA
that
	a
	physician
	would 	no
	longer
	be
	assigned 	to
	the
	liaison
committee
	since 	the
	CMA
	was
	to
	be
	treated
	as
	a
	labor
organization.
	It
	is
	unclear
	from
	the 	record
	whether
	any
payments
	were
	made 	by
	the
	state
	for 	expenses 	or
	if
	any
	released
time
	was
	granted 	in 	connection 	with
	this
	meeting.
The 	Department 	followed
	up
	its
	February
	22 	memo
	on
March 	17, 	reminding
	hospital 	executive 	directors
	to
	deny
	all
requests 	for
	state
	time
	and
	expenses 	for
	staff
	to 	attend
10

training
	courses
	offered
	by
	a
	number
	of
	employee
	organizations,
including
	the
	CMA.
Throughout
	March 	and
	April,
	the
	CMA
	and
	the
	Department
exchanged
	correspondence
	on
	the
	issue
	of
	whether
	the
	CMA
	was
	or
was
	not
	a
	labor
	organization.
	The
	Governor's
	Office
	of
Employee
	Relations
	issued
	a
	memorandum 	on
	July
	7,
	1980
	in
	which
it
	agreed
	that
	the
	CMA
	and
	the
	PPB
	were 	one
	organization.
The
	UAPD
	filed
	charges 	in
	May
	of
	1980
	against
	the
Department
	and
	the
	PPB/CMA.
	The
	charges
	were
	consolidated
	for
hearing
	which
	commenced
	in
	October
	of
	1980.
The
	representation
	record 	in
	this
	case
	reflects
	that
	the
PPB/CMA
	originally 	petitioned
	for
	intervention
	in 	the
	name
	of
the 	"Public
	Practice
	Bureau
	of 	the
	California
	Medical
Association," 	to
	which
	the
	UAPD
	objected.
	By
	stipulation
	with
the
	UAPD
	in
	May,
	the
	PPB
	agreed 	to 	drop
	the 	notation
	of
affiliation
	with 	the
	CMA
	on
	the
	ballot
	in
	return
	for 	the
	UAPD's
agreement 	to 	drop
	its
	challenge 	to 	the
	employee
	organization
status
	of
	PPB/CMA.
	In 	February 	of
	1981,
	the
	PPB/CMA
	withdrew
its
	intervention 	stating 	that
	it
	had
	affiliated
	with
	CSEA.
	In
March
	of
	1981, 	the
	UAPD
	signed
	a
	"Request 	to
	Proceed"
requesting
	PERB
	to 	proceed 	with 	the
	election
	even 	though
	there
were
	charges 	outstanding,
	and 	waiving 	the
	right
	to 	object 	to
the 	election
	based
	on
	the
	same
	conduct 	as
	that 	alleged 	in 	these
charges.
	The
	election
	was
	conducted 	in
	May
	of 	1981, 	and
	the
UAPD
	was
	certified
	as 	the 	exclusive 	representative 	for 	Unit 	16.
11

DISCUSSION
The
	central
	objection 	raised
	by
	the
	PPB/CMA
	is
	to
	the
	ALJ's
conclusion 	of
	law
	that
	the
	course 	of
	conduct 	pursued
	by
	the
	CMA
and
	the
	PPB
	resulted
	in
	harm
	or
	potential
	harm
	to
	employee
rights.
	The
	language
	in 	subsection
	3519.S(b)
	of
	SEERA
makes
	it
unlawful 	for
	an 	employee
	organization 	to:
Impose
	or
	threaten
	to
	impose
	reprisals
	on
employees,
	to
	discriminate
	or
	threaten
	to
discriminate 	against
	employees, 	or
	otherwiseto
	interfere
	with,
	restrain,
	or
	coerce
employees
	because 	of
	their
	exercise
	of
rights
	guaranteed
	by
	this
	chapter.
In
	interpreting 	identical
	language
	in 	subsection
	3543.6(b)
	of
the 	Educational
	Employment
	Relations
	Act
	(EERA),
	the
	Board
noted
	that
	this
	language
	is
	the
	same
	as
	that
	covering
	employer
conduct
	1n
	subsection
	3543.S(a)
	and
	found
	it
	appropriate 	to
analyze 	those
	sections
	in 	the
	same 	way.
	Therefore, 	in 	order 	to
establish
	a
	prima
	facie
	case 	of 	unlawful
	interference, 	the
charging
	party
	must
	establish 	that
	the
	respondent's
	conduct
tends
	to 	or
	does
	result
	in
	some
	harm
	to
	employee
	rights
	granted
under
	EERA.
	Los
	Angeles
	Community
	College
	District
	(Kimmett)
(10/19/79)
	PERE
	Decision
	No.
	106.
	Carlsbad 	Unified 	School
District
	(1/30/79)
	PERE
	Decision
	No.
	89.
	We
	find
	that 	the
	same
analysis 	is 	appropiiate
	under
	subsection
	3519.S(b) 	of
	SEERA.
Under
	SEERA,
	employees'
	protected 	rights 	are
	enumerated
	in
sections
	3512 	and
	3515.
	Section
	3512
	recognizes:
...
	the
	right
	of
	state
	employees 	to 	join
organizations 	of 	their
	own
	choosing 	and 	be
12

represented	
by	
those
	organizations
	in
	their
employment
	relations
	with
	the
	state
...
Section
	3515
	states:
Except 	as
	otherwise 	provided
	by
	the
Legislature,
	state
	employees
	shall
	have
	the
right
	to
	form,
	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
....
Following 	the 	Carlsbad
	approach
	suggested
	by
	Kimrnett,
	a
connection
	must
	be
	demonstrated
	between
	the
	PPB's
	conduct
	and
the
	exercise 	of
	a
	protected
	right 	resulting
	in
	harm
	or
potential
	harm
	to
	that 	right.
	That
	is,
	it
	must 	be
	shown
	that
the
	PPB's
	conduct
	harmed
	the
	protected
	rights
	of
	state
employees.
The
	charge
	alleging
	a
	violation
	of 	3519.5(b)
	filed 	against
the
	CMA/PPB
	alleges 	that
	it
	interfered
	with
	employee
	rights	
by
its
	misstatement 	(included 	in 	the 	telegram
	Dr. 	Mabius
	read
	at
the 	meeting
	at
	Camarillo) 	to 	the
	effect
	that
	unless 	the
	PPB
qualified,
	it
	would 	be
	possible
	for
	PERB
	to 	designate 	the
	UAPD
as
	the 	representative 	organization 	without 	holding
	an
	election.
This
	was
	presumably
	a
	misstatement 	because
	an
	election
would 	be
	held
	under 	any
	circumstances,
	and
	employees
	would 	have
the
	right
	to 	choose
	a
	representative
	or 	to 	choose
	no
representative.
Aside
	from
	finding 	that 	this 	incident 	did 	occur, 	the
	ALJ
does 	not 	deal 	further
	with 	the
	allegation 	that 	the 	statement 	is
inaccurate.
	It 	is 	not 	clear
	what
	effect 	there
	was 	on
	employee
13

rights
	in
	any
	case, 	since
	the
	authorization
	cards
	were
	used
only
	to
	intervene,
	the
	UAPD
	did
	not
	challenge 	the
	PPB/CMA's
showing
	of
	interest,
	and
	the
	UAPD
	won
	the
	election.
The
	ALJ
	appears 	to
	find
	a
	violation
	on
	the 	basis
	of
	the
fact
	that
	the
	PPB 	was
	dominated
	by
	the
	CMA,
	which
	was
	not
itself
	able 	to
	be
	a
	labor
	organization.
	That
	conclusion
certainly
	supports 	the
	State's
	action 	in
	withdrawing
	the
preferential
	treatment
	accorded
	the
	CMA,
	but
	it
	does
	not
necessarily
	independently
	constitute
	an
	interference
	with
employee
	rights.
The
	ALJ
	also
	suggests
	that
	the
	PPB's
	operation
	as
	a
	labor
organization
	"did
	not
	conform
	to 	the
	definition
	contained
	in
the 	Act." 	Section
	3513(a)
	of
	SEERA
	defines
	an 	employee
organization
	as
	"any
	organization
	which
	includes
	employees
	of
the
	state
	and
	which
	has
	as
	one
	of
	its
	primary 	purposes
representing
	these
	employees
	in
	their 	relations
	with 	the
state."
	The
	PPB
	certainly
	meets
	this
	minimum
	standard,
regardless
	of
	its
	relationship
	with 	the
	CMA.
Certainly 	the 	charging 	party
	has
	presented
	sufficient
evidence 	to 	find
	that
	the
	PPB 	was 	a
	creature
	of 	the
	CMA
	f~om
its
	inception,
	and
	that
	the
	PPB
	never
	operated 	as
	an
independent
	entity, 	despite
	the
	CMA's
	claims 	to 	the
	contrary.
Nevertheless, 	neither 	the 	chargng
	party
	nor 	the
	ALJ
	has
	cited
cases 	before 	this
	Board 	or 	under 	the
	federal
	law
	to 	support 	the
proposition 	that 	the 	relationship
	between 	the
	CMA
	and
	the
	PPB
14

was,
	in
	and
	of
	itself,
	unlawful
	or 	tended
	to
	interfere
	with
employees 	because
	of 	the 	exercise
	of
	their 	rights
	under
	SEERA.
For
	those
	reasons,
	we
	reverse
	the
	ALJ's.
conclusions
	of
	law,
and
	dismiss
	all
	charges
	against
	the
	PPB/CMA.
ORDER
Upon
	the
	foregoing
	Decision,
	and
	the
	entire
	record 	in
	this
case,
	it
	is
	hereby
	ordered
	that
	the
	unfair
	practice
	charge
	in
case
	No.
	s-co-1-s
	be
	DISMISSED.
Chairperson
	Gluck
	and
	Member
	Tovar
	joined 	in
	this
	Decision.
15