State of California (Department of Developmental Services) (PERB 0551S)

THE
STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT OF
DEVELOPMENTAL 	SERVICES,
Respondent.
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) 	Case 	No. 	S-CE-238-S
PERB Decision 	No. 	551-S
December 	17, 	1985
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Appearances: 	William L. Williams, 	Jr., 	Peace Officers Research
Association of 	California, 	for 	the 	California Union 	of 	Safety
Employees; Christopher W. Waddell, 	Department of Personnel
Administration, 	for 	the State of California, 	Department of
Developmental 	Services.
Before Hesse, Chairperson; 	Burt and Porter, 	Members.
DECISION
BURT, 	Member: 	This case 	is before the Public Employment
Relations Board 	(Board) 	on 	appeal by 	the California Union of
Safety Employees 	of 	the Board agent's 	partial 	dismissal,
attached hereto, 	of 	its 	charge alleging that the 	State of
California, 	Department of Developmental Services, 	violated
section 	3519 	of 	the 	State Employer-Employee Relations Act 	(Gov.
Code sec. 	3512, 	et seq.).
We have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the Decision of 	the Board 	itself.
__ )

ORDER
The Board agent's partial 	dismissal 	in Case No. 	S-CE-238-S
is hereby AFFIRMED.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
2
2

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 93814
(916) 322-3198
November 28. 	1984
William L Williams, 	Jr.
Staff 	Counsel
Peace 	Officers 	Research Association
of 	California
1911 F Street
Sacramento. 	CA 	95814
Re: 	California Union of 	Safety Employees 	v. 	State 	of
California. 	Department 	of 	Developmental 	Services
Unfair 	Practice 	Charge No. 	S-CE-238-S
Dear Mr. Williams:
The 	above-referenced 	charge 	alleges 	that 	the 	State 	of
California. 	Department 	of 	Development 	Services 	(State)
retaliated 	against Mr. 	Cross, 	and 	five 	other 	employees 	of 	the
Stockton State Hospital. 	This 	conduct 	is 	alleged 	to 	violate
section 	3519(b) 	of 	the 	State Employer-Employee Relations 	Act
(SEERA).
I 	indicated 	to you 	in my 	letter 	dated November 	9, 	1984 	that
certain 	allegations 	contained 	in 	the 	above-referenced 	charge
did 	not 	state 	a 	prima 	facie 	case, 	and 	that 	unless 	you 	amended
these allegations 	to 	state 	a 	prima 	facie 	case, 	or withdrew them
prior 	to November 	16. 	1984. 	they would 	be dismissed. 	More
specifically. 	I 	informed you 	that 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly.
On November 	16 	you 	requested 	additional 	time 	to 	amend 	the
charge and 	it was 	granted. 	On November 	26, 	rather 	than
amending 	the 	charge 	you 	submitted 	a 	letter 	(Exhibit 	1) 	which
argued: 	(1) 	that 	there 	are 	facts which demonstrate 	that 	Cross'
termination 	had 	an 	adverse 	effect 	on 	non-supervisory 	employees
and. 	(2) 	employees Jernigan. 	Dull. 	Lee and Rocero engaged 	in
protected 	activity 	by 	doing 	"numerous 	things 	to 	accommodate 	the
organizational 	activities 	of 	these 	two 	gentlemen 	(Cross 	and
Pimentel)."
The allegations 	that 	the 	State 	retaliated 	against Mr. 	Cross.
Mr. 	Jernigan. Mr. 	Dull, 	Mr. 	Lee and Ms. 	Rocero are dismissed
based 	on 	the 	facts 	and 	reasoning 	contained 	in 	the 	November 	9
letter 	(Exhibit 	2) 	as 	supplemented 	below.

William L. Williams. Jr.
November 28, 	1984
Page 	2
My November 	9 	letter 	indicated 	that 	a 	prima 	facie 	case
regarding 	the 	termination of Mr. 	Cross 	did not 	exist unless
there were 	sufficient facts 	to 	show that 	his 	termination
adversely 	influenced 	employees 	in 	the 	exercise 	of 	their
rights. 	Charging Party has 	not 	provided 	facts 	which 	show that
these 	employees 	would 	have 	exercised 	rights 	under 	SEERA 	but 	for
the 	termination of Mr. 	Cross. 	Charging Party responds 	that
other employees 	in Mr. 	Cross' 	department 	have also 	been
terminated. 	The 	only connection 	between 	these 	terminations 	and
Mr. 	Cross' 	termination 	is 	the vague 	reference 	to 	the 	employees
accommodating Mr. 	Cross' 	organizational 	activity. 	These 	facts
do not 	show that Mr. 	Cross' 	termination adversely 	influenced
employees 	in their 	exercise 	of 	SEERA guaranteed 	rights.
With regard to employees Jernigan, Dull. 	Lee, 	and Rocero, 	my
November 	9 	letter 	stated 	that 	there 	has 	been no 	demonstration
that 	these 	employees 	participated 	in conduct 	protected 	by SEERA
and 	that 	the Respondent was 	aware 	of 	the 	employees'
participation. 	Charging Party argues 	that 	these 	employees 	were
members 	of 	Hospital 	Police Association of California 	and
accommodated 	the organizational activities 	of Mr. 	Cross 	and
Pimentel. 	Membership 	in an employee 	organization and vague
assertions 	of 	accommodation without 	dates 	or 	other 	specifics
are 	insufficient 	to 	show protected 	conduct, 	let 	alone 	employer
knowledge 	of 	these 	activities 	and 	the 	required 	nexus.
Los Angeles Unified School District 	(10/4/84) 	PERB Decision
No. 	412. 	This 	response comes 	after 	several 	requests 	from the
Regional Attorney for 	specific 	information on 	this 	subject, 	and
was 	not made, 	as 	directed 	in an amended 	charge 	submitted under
penalty of 	perjury.
Pursuant 	to Public Employment Relations 	Board 	regulation
section 32635 	(California Administrative Code, 	title 	8,
part 	III), 	you may appeal 	the 	refusal 	to 	issue a 	complaint
(dismissal) 	to the Board itself.
Right 	to Appeal
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 	(section
32635(a)). 	To 	be 	timely filed, 	the original 	and 	five 	(5)
copies 	of 	such appeal 	must 	be 	actually 	received 	by 	the Board
itself 	before 	the 	close 	of 	business 	(5:00 p.m.) 	on December 	19.
1984. 	or 	sent 	by telegraph or 	certified United 	States mail
postmarked not 	later 	than December 	19. 	1984 	(section 32135).
The Board's address 	is:

William L. Williams, 	Jr.
November 28. 	1984
Page 3
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 	(5) 	copies 	of 	a 	statement 	in opposition within 	twenty
(20) 	calendar 	days 	following the date of 	service 	of 	the appeal
(section 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 	the 	document 	filed with 	the Board
itself 	(see 	section 	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.
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 	(section 32132).
Final 	Date
If 	no appeal 	is 	filed within the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly yours.
DENNIS M. 	SULLIVAN
General 	Counsel
By
Robert 	Thompson
Regional 	Attorney

November 	2 6 , 	1984
Robert 	Thompson
Public 	Employment 	Relations Board
1031 - 18th Street, 	Suite 102
Sacramento, 	California 	95814
RE: 	CALIFORNIA UNION OP SAFETY EMPLOYEES VS. 	STATE OF CALIFORNIA,
DEPARTMENT OF DEVELOPMENTAL SERVICES, 	UNFAIR PRACTICE CHARGE
NUMBER 	S-CE-238-S
Dear Mr. 	Thompson:
This will 	respond to your letter 	of 	November 	9, 	1984 	regarding
the above matter. 	With respect 	to those portions 	of 	the charge
dealing with Mr. 	George Cross, 	you accurately point out that
most 	of his 	conduct 	on behalf 	of CAUSE and HPAC occurred during
the time which he was a supervisory 	employee. 	You 	further 	state
that 	the 	unfair 	practice 	charge 	procedures 	of 	PERB 	are 	not available
to enforce 	the 	rights 	of 	supervisory 	employees under 	SEERA.
You go on to 	state 	that a violation 	of 	the 	rights 	of 	supervisory
employees may not be enforced by 	an assertion 	of 	a violation
of employee 	organization rights 	under 	Section 3519(b) 	unless
there are 	sufficient facts 	from which 	to draw 	a 	"reasonable
inference 	that 	the 	conduct had an adverse 	effect 	on non-supervisory
employees in the exercise of their rights 	. 	. 	. 	." 	You go on
to state 	that CAUSE has failed to demonstrate 	the existence
of 	such 	evidence 	from which a 	reasonable 	inference 	could be
drawn. 	With all 	due respect, 	I would point out that not only
have non-supervisory 	employees 	been 	adversely 	effected 	by 	the
Department's 	retaliation against Mr. 	Cross, 	they have been similarly
terminated 	from 	their 	employment.
You further state with regard to Messrs. 	Jernigan, 	Dull, 	Lee
and Ms. 	Rocero that the charging parties 	failed to demonstrate
that 	these 	employees participated 	in 	conduct protected 	by 	the
SEERA. 	Again, 	this analysis 	ignores the fact that these employees
expressed their loyalty to Mr. 	Cross and Mr. 	Pimentel 	and did
numerous 	things 	to accommodate 	the 	organizational 	activities
of 	these 	two gentlemen. 	Moreover, 	this analysis fails to recognize
that an 	unprecedented action 	in 	terminating not 	only Mr. 	Cross
and Mr. 	Pimentel, 	but everybody employed in the Protective Services
Department 	of 	Stockton Developmental 	Center. 	There can be 	no
doubt 	that 	this 	action will 	not 	only 	intimidate 	other 	employees
EXHIBIT 	I

Robert 	Thompson
November 26, 	1984
Page 2
of 	the Department from being active 	officers within CAUSE and
HPAC, 	but 	also intimidate 	them 	from mere membership 	in CAUSE
and/or 	cooperation in achieving 	the goals and aims 	of CAUSE
and HPAC.
We believe 	that the facts as 	stated 	in 	the 	charges 	currently
written adequately 	support 	the 	above points and that 	there 	is
no further 	need for an amendment 	of 	the charge. 	We 	request
that you 	reconsider your 	current 	position 	in 	this matter with
respect 	to the partial 	dismissal 	of 	the allegations 	contained
in the charge.
Please 	feel 	free 	to call 	me 	should have any questions 	or 	comments
regarding 	this matter.
Sincerely,
William L. Williams, 	Jr,
Staff 	Counsel
cc: 	G. 	Cross
G. 	Lee
M. 	Rocero
S. Pimentel
J. 	Dull
B. 	Jernigan
Bill 	Curtis
WLW/deb/417

STATE Of 	CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 1STH STREET, SUITE 103
SACRAMENTO. CALIFORNIA 	95814
(916) 322-3198
November 	9, 	1984
William L Williams, 	Jr.
Staff 	Counsel
Peace 	Officers 	Research 	Association
of 	California
1911 F Street
Sacramento, 	CA 	95814
Re: 	California Union of 	Safety Employees 	v. 	State 	of
California, Department 	of Developmental Services
Unfair 	Practice 	Charge No. 	S-CE-238-S
Dear Mr. Williams:
The 	above-referenced charge 	alleges 	that 	the 	State 	of
California, 	Department of Development Services 	(State)
retaliated against Mr. 	Cross, 	and 	five 	other 	employees 	of 	the
Stockton State 	Hospital. 	This conduct 	is 	alleged 	to violate
section 	3519(b) 	of 	the State Employer-Employee 	Relations Act
(SEERA).
My 	investigation 	revealed 	the 	following 	uncontested 	facts.
Mr. 	Cross was a 	Hospital 	Peace Officer 	II 	(HPO II) 	with 	the
State 	until he was demoted 	on December 	7, 	1983 	to a Hospital
Peace Officer I 	(HPO I ) . 	HPO II 	is not 	in the bargaining 	unit
while HPO I 	is 	in the 	unit. 	During 	the period February 	1981 	to
December 1983 Mr. 	Cross 	served as 	a 	representative 	on 	the
California Union 	of 	Safety 	Employees 	(CAUSE) 	Board 	of 	Directors
and 	was 	the vice-chairman 	of 	the 	CAUSE 	legislative committee.
In addition, 	Mr. 	Cross was on the Hospital Police Association
of 	California 	(HPAC) 	Board 	of Directors 	from 	its 	inception. 	On
February 7, 	1984, 	Mr. 	Cross's notice of demotion was amended
and on July 26, 	1984, 	Mr. 	Cross was notified 	that he would 	be
terminated 	from 	employment 	with 	the 	State 	effective 	August 	16,
1984.
Mr. Pimentel, Ms. Rocero, Mr. Jernigan, Mr. Dull, and Mr. Lee
are all HPO I's working 	with Mr. 	Cross. 	From February 	1981 	to
December 	1983, 	Mr. 	Pimentel served as 	the president of HPAC.
Mr. 	Pimentel, Mr. 	Jernigan, Mr. Dull and Ms. Rocero were among
the original members of HPAC. 	On June 14, 	1984, 	Mr. 	Pimentel
was 	notified 	that 	he 	would 	be 	terminated 	from 	employment 	with
the State effective June 	20, 	1984. 	This notification was
subsequently amended on August 	8, 	1984. 	Mr. 	Lee was notified
of his dismissal on November 	10, 	1983, 	which was 	subsequently
EXHIBIT 	II
~	
~

amended 	on January 	1, 	1984 	and 	again at 	a 	later 	date.
Mr. 	Jernigan was terminated on August 	2, 	1984. 	Ms. 	Rocero was
terminated on August 8, 	1984, 	Mr. 	Dull was 	terminated on
June 	14, 	1984. 	All the terminations were 	in part based on
alleged 	dishonesty 	by 	the 	employees 	in 	filling 	out 	their
timesheets.
William L Williams, 	Jr.
November 	9, 	1984
Page 	2
The allegations that Mr. 	Cross, Ms. 	Rocero, Mr. 	Jernigan,
Mr. 	Dull and Mr. 	Lee have 	been discriminated 	against 	because of
their 	exercise 	of 	rights protected 	by 	SEERA do 	not 	state 	a
prima 	facie case 	for 	the 	reasons 	which 	follow.
.Although	Although 	Although Charging Party alleges only that section 3519(b) of
SEERA has 	been violated, 	this case 	is more properly 	analyzed 	as
primarily a violation of section 	3519(a). 	Violation of 	that
section 	requires allegations that: 	(1) 	an employee has
exercised 	rights 	under 	the SEERA; 	(2) 	the employer has 	imposed
or 	threatened 	to 	impose 	reprisals, 	discriminated 	or 	threatened
to discriminate, 	or 	otherwise 	interfered with, 	restrained or
coerced 	the 	employee because 	of 	the 	exercise 	of 	rights
guaranteed 	by 	the 	SEERA. 	Carlsbad 	Unified 	School 	District
(1/30/79) 	PERB Decision No. 	89; 	Novato Unified 	School District
(4/30/82) 	PERB Decision No. 	210; 	State of California
(Department 	of Developmental Services) 	(7/18/82) 	PERB Decision
No. 	228-S.
With 	respect to Mr. 	Cross the bulk, 	if not all, 	of his conduct
on 	behalf 	of 	CAUSE 	and 	HPAC 	and protected 	by 	the 	SEERA 	occurred
during 	the 	time 	in which he was 	a 	supervisory non-bargaining
unit 	employee. 	Thus, 	any violation of 	SEERA would 	be grounded
in 	section 	3522.3 	rather 	than 	section 	3515. 	The 	Public
Employment Relations Board 	(PERB) 	determined 	in 	State 	of
California, 	Department of Health 	(1/10/79) 	PERB Decision
No. 	86-S 	that 	section 	3522.3 	is not 	enforceable 	through 	PERB's
unfair practice mechanism. 	Thus, 	no prima 	facie 	violation of
3519(a) 	is made out. 	Based on similar 	reasoning, 	PERB ruled 	in
State of California 	(3/19/80) 	PERB Decision No. 	118-S that an
employee 	organization could 	not 	enforce 	the 	rights 	of
supervisory 	employees 	by 	assertion 	of 	a 	violation 	of 	section
3519(b). 	However, 	an unfair practice charge would be stated 	if
there 	were 	sufficient 	facts 	from which 	to draw 	a 	"reasonable
inference 	that 	the conduct 	had 	an adverse 	effect 	on
nonsupervisory 	employees 	in 	the 	exercise 	of 	their 	rights,
. 	. 	. 	." 	State of California, 	supra. 	In this case, 	Charging
Party has 	failed 	to demonstrate 	the 	existence 	of 	such 	evidence
from which 	a 	reasonable 	inference could 	be drawn.

William L Williams, 	Jr.
November 	9, 	1984
Page 	3
With regard to Mr. 	Jernigan, Mr. Dull, Mr. 	Lee, 	and Ms. 	Rocero,
Charging 	Party 	has 	failed 	to demonstrate 	that 	these 	employees
participated 	in conduct protected 	by 	the 	SEERA. 	Without 	such
evidence no nexus exists. 	Thus, 	no prima facie violation of
section 3519(a) 	is present. 	In the same way, 	Charging 	Party
has 	failed 	to present 	evidence which would 	show 	that 	the
disciplining 	of 	these 	employees 	has 	interfered 	with 	the 	rights
of 	the employee 	organization. 	Thus, 	no violation of 	section
3519(b) exists.
For these reasons, 	the allegation that Mr. 	Cross, 	Mr. 	Jernigan,
Mr. 	Dull, Mr. 	Lee, 	and Ms. Rocero were retaliated against by
the State contained 	in charge number S-CE-238-S, 	as presently
written, 	does not 	state a prima facie case. 	If you feel that
there 	are 	any 	factual 	inaccuracies 	in this 	letter 	or 	any
additional 	facts 	which 	would correct 	the 	deficiencies 	explained
above, 	please 	amend the charge 	accordingly. 	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 	be 	signe	-
-d 	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 November 	16, 	1984,
I 	shall 	dismiss 	the 	above-described 	allegation 	from your
charge. 	If you have any questions on how to proceed, 	please
call me at 	(916) 	322-3198.
Sincerely 	yours,
Robert 	Thompson
Regional 	Attorney