California Association of Psychiatric Technicians (Long) (PERB 0745S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BARBARA L. 	LONG,
Charging 	Party,
v.
CALIFORNIA ASSOCIATION 	OF
PSYCHIATRIC 	TECHNICIANS,
Respondent.
Case No. 	LA-CO-31-S
PERB Decision No. 	745-S
June 20, 	1989
Appearances; 	Communication Workers 	of America, 	AFL-CIO by John
Dugan for Barbara L. 	Long; 	Steven B. 	Bassoff, Attorney, 	for
California Association of 	Psychiatric 	Technicians.
Before Chairperson Hesse; 	Porter and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California Association of 	Psychiatric 	Technicians 	(CAPT 	or
Association) 	to the proposed decision 	(attached hereto) 	of 	the
PERB administrative law judge 	(ALJ). 	The ALJ 	found that CAPT
violated 	section 	3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act
or Act)1 by denying or attempting to deny membership to
1The Ralph C. 	Dills Act 	is 	codified at Government Code
section 	3512 	et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	are 	to 	the California Government Code.
Section 3519.5 reads, 	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.
Barbara L. 	Long 	(Long) 	because of her affiliation with a rival
labor organization, 	and without regard to 	any established
reasonable 	restrictions 	regarding membership 	in CAPT. 	We have
reviewed the record 	in 	its 	entirety, 	including the ALJ's
decision, 	the exceptions 	filed by CAPT, 	and Ms. 	Long's responses
thereto. 	We 	find the ALJ's 	findings 	of 	fact to be 	free 	from
prejudicial 	error, 	and therefore adopt them as 	our own. 	We also
adopt 	the ALJ's 	conclusions 	of 	law insofar as 	they are 	consistent
with 	the 	following discussion.
STATEMENT OF 	FACTS
Long was 	a 	chapter representative 	of 	the 	Communication
Workers 	of America 	(CWA) 	from 	1983 	until the 	summer of 	1985, 	when
she became 	a CWA 	statewide grievance 	coordinator. 	While 	serving
CWA as 	statewide grievance coordinator, 	Long was 	on union leave
of 	absence 	from her position as 	a psychiatric 	technician, 	and 	the
state was 	reimbursed her 	salary by CWA. 	Long returned to
employment 	from her leave of absence on February 3, 	1987. 	In
March of 	1985, 	CAPT filed a decertification petition, 	and was
certified as 	the 	exclusive 	representative 	of 	the 	bargaining 	unit
on December 31, 	1986.
CAPT officials were 	aware 	of 	Long's 	active participation
against 	the decertification of CWA. 	On two occasions prior 	to
CAPT's 	certification on December 31, 	1986, 	Long attempted to gain
2

membership to CAPT, 	and was 	denied. 	CAPT admits 	that Long was
denied membership 	during 	this 	time period because 	of 	her
affiliation with CWA, 	but denies 	that the 	further delay 	and
denial 	of 	Long's 	application 	for membership 	had 	any 	illegal
motive.2
After certification, 	CAPT began to process 	membership and
dues 	authorization 	cards which 	it 	had 	received prior to
certification. 	Although Long had 	submitted membership 	cards
prior to 	certification, 	there was 	no evidence presented at the
hearing 	that 	her 	application was 	processed 	after 	certification,
and 	no dues 	were 	deducted 	from Long's 	February paycheck. 	On
February 13, 	1987, 	however, Mr. 	Dan Western (Western) 	sent a
request 	to 	the 	State Controller 	in order to delete Long 	from the
22The ALJ 	found 	the Association's 	actions 	and motives 	prior
to 	1987 	could not constitute a violation. 	Because Long's 	charge
was 	filed on August 	12, 	1987, 	no conduct occurring prior to
February 	12, 	1987, 	can be the basis of a complaint under
Government Code section 3 514.5, 	which reads 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file an
unfair practice charge, 	except that the board
shall not do either of 	the 	following: 	(1)
issue a 	complaint 	in respect of 	any charge
based upon 	an alleged 	unfair practice
occurring more 	than 	six months 	prior to the
filing of the charge; 	. 	. 	.
(See California State University 	(San Diego) 	(1989) 	PERB Decision
No. 	718-H, pp. 	8-14.)
Therefore, 	events occurring prior to February 	12, 	1987,
cannot 	form the basis 	of a 	complaint, 	but only because of 	the
jurisdictional bar 	found in 	section 	3514.5, 	and not because 	of
the 	fact 	that 	they 	occurred prior 	to 	certification.
33

list 	of 	members 	for whom dues 	deductions would be 	taken.3 At
this 	time, 	Long received no cards 	or 	letters 	regarding acceptance
or denial 	of membership. 	Long at no time 	indicated a desire,
either verbally or 	in writing, 	to withdraw membership 	from CAPT.4
Long's 	next attempt to 	join CAPT was 	at a CAPT chapter
meeting on March 	19, 	1987, 	by handing her authorization card to
Mr. 	Saccamano, 	the chapter president.5 Long's application was
not processed at this 	time.
In May of 	1987, 	Long 	spoke with Sylvia Kuchenmeister
(Kuchenmeister), 	a CAPT chapter president whom she knew through
CWA. 	Kuchenmeister 	suggested Long give her two 	signed
authorization cards, 	which 	she would deliver to CAPT officials 	at
CAPT meetings which 	she 	had 	set up 	in the 	near 	future.
Kuchenmeister 	also 	told 	Long 	that 	comments 	were 	made by CAPT
officials 	that 	Long would never become a member, 	and that her
cards were 	repeatedly being 	"lost."6
Long's 	authorization card was 	submitted to 	the 	State
3Mr. 	Dan Western was 	the 	individual 	responsible 	for
processing 	CAPT membership/dues 	deduction 	cards.
4There was 	a postcard 	sent to members 	of CAPT, 	who were
known by CAPT to be CWA 	supporters, 	which 	indicated that 	they
need 	only 	sign off 	on the postcard 	and return 	it 	to 	CAPT 	in 	order
to withdraw from membership. 	Long did not return 	such a 	card.
5Testimony 	by 	Long 	evinced 	that 	she 	and 	Saccamano 	had 	been
long-time rivals 	regarding union affairs.
66From the testimony produced at hearing, 	it appears 	that no
dues 	deduction 	cards 	can be processed 	after 	the 	fifteenth 	of 	each
month, 	and must be 	submitted on the 	fifteenth of 	the 	following
month 	in order 	for the dues 	deduction to be taken on the month
following that 	in which 	it was 	submitted.
44

Controller on May 	15, 	1987, 	although Long was 	never notified and
had no knowledge 	that this 	had been done. 	Her card was 	then
rejected by the 	Controller because 	the 	social 	security 	number was
incorrect. 	An 	irregularity notice was 	sent 	to Western's 	office
on May 26, 	1987. 	Although the necessary corrections were made
for the 	several 	other names 	on the 	irregularity notice, 	Long's
name was 	crossed out, 7 no corrections were made, 	and her card was
therefore 	not processed.
CAPT 	received 	another 	membership 	card 	from Long 	dated
July 	10, 	1987. 	On August 	12, 	1987, 	Long filed an unfair practice
charge. 	Long's 	card was 	finally 	submitted to 	the Controller 	on
August 	15, 	1987, 	and she became a member of CAPT.
DISCUSSION
CAPT 	excepts 	to 	the decision of 	the ALJ on three 	separate
bases. 	Firstly, 	CAPT contends that, 	under the Dills Act, 	it
could 	not process 	Long's 	membership 	application while 	she was 	on
a union leave of absence because 	she was, 	therefore, 	not employed
by the 	state. 	Secondly, 	CAPT contends 	that the application of
Long was processed 	in a timely manner. 	Lastly, 	CAPT contends
that 	Long 	suffered no adverse 	effect as 	a result of 	the 	actions
or 	failure to act of CAPT.
As 	stated in footnote 	2, 	supra, 	events 	occurring prior to-
February 	12, 	1987 	are outside the 	jurisdictional time 	limit of
the present 	complaint. 	All parties 	agree 	that Long 	ended her
7Mr. 	Western admitted that the name was 	crossed out by his
pen, 	but was unable to give an explanation as to why.
55

leave of absence and returned to 	employment on February 	3, 	1987,
so 	that during the 	relevant 	time period 	she was 	not 	on 	leave 	of
absence. 	Further, 	there 	is no 	evidence that Long at any time
separated 	from 	state 	service, 	and 	the 	state 	continued to pay her
salary 	throughout, 	although 	it was 	reimbursed by CWA while 	Long
was 	on leave. 	Therefore, 	we find no merit in this 	argument.
Although CAPT excepts 	to the ALJ's 	finding that the
application was 	not processed 	in a timely manner, 	the 	issue which
the ALJ 	addressed was whether or not 	the Association had 	an
unlawful 	discriminatory motive 	in 	its 	actions 	regarding 	Long's
attempts 	to become a CAPT member. 	CAPT contends 	once again that
because Long was 	not an employee under the Dills Act, 	CAPT could
not 	accept her as 	a member until 	after her return 	from 	leave 	on
February 	3, 	1987. 	Regardless of whether Long was an employee
while on leave 	(see Discussion, 	supra). 	Long clearly was no
-
longer on leave on February 	13, 	1987, 	when Western sent the
deletion request to the Controller, 	or 	in March when 	she
submitted a 	further application, 	or when her name was 	deleted
from a 	list of applicants 	in May or June; 	therefore, 	that
argument 	is 	inapposite.
CAPT 	further 	argues 	that 	the 	record did not produce 	evidence
sufficient 	to 	justify a 	finding 	that 	CAPT had 	an unlawful 	motive
in 	its 	delay or denial 	of 	the processing of 	Long's 	application
for membership. 	On February 	13, 	1987, 	Western sent a written
deletion request to 	the Controller, 	although CAPT was 	unable to
produce 	any 	evidence 	upon which Western 	could have 	relied 	in
66

doing 	so. 	Long then 	submitted three more 	cards 	in an attempt to
join CAPT; 	one 	card 	finally reached the Controller on May 	15,
1987, 	but was rejected on May 26, 	1987. 	Western's office then
failed to 	investigate or make 	corrections 	to Long's 	card 	so 	that
it could be processed, 	and, 	in fact, 	crossed Long's name off the
list 	entirely. 	There was 	no 	evidence 	explaining the above
actions 	of CAPT with regard to Long, 	nor was 	there any 	showing
that 	others 	similarly 	situated have been treated 	in a 	like
manner. 	Accordingly, 	and based upon a 	full 	review of 	the
transcript, 	we 	find that the ALJ's 	findings 	of unlawful 	motive
are 	amply 	supported by 	the 	evidence.
CAPT also 	excepts 	to 	the ALJ's 	determination on the 	ground
that 	the 	only 	evidence 	relied upon to 	support 	a 	finding 	that 	Long
was 	adversely 	affected 	occurred prior 	to 	CAPT's 	certification 	on
December 	31, 	1986, 	and that Long otherwise 	suffered no adverse
impact. 	The ALJ does 	state at page 	15 	of her proposed decision
that 	Long was 	denied 	the 	option of 	competing 	for union office 	and
that 	she was 	denied an equal 	voice 	in the 	formulation of
bargaining proposals 	and 	strategy. 	The 	only record 	evidence 	of
such activities 	relates 	to their occurrence 	in 	1986, 	which 	is
indeed pre-certification. 	That fact is, 	however, 	irrelevant to
the 	issue at hand; 	the operative time period is 	six months prior
to 	the 	filing of 	the 	charge with PERB.
Nonetheless, 	we 	find that CAPT unlawfully discriminated
against 	Long regarding her 	right 	to 	join CAPT. 	In Novato 	Unified
School District 	(1982) 	PERB Decision No. 	210, 	the Board found
77

that 	a prima 	facie 	charge 	of 	discrimination/retaliation was 	shown
by 	the 	finding of 	a 	nexus 	between an employee's 	exercise 	of 	a
right protected by 	statute 	and the 	employer's 	adverse 	action
against the employee. 	Section 3519.5(b) 	of the Dills Act, 	supra.
makes 	it 	illegal 	for a union to discriminate against 	employees
because 	of 	their exercise of rights 	guaranteed by the 	statute.
Section 	3515 	of the Dills Act grants 	to 	state 	employees 	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.8
In the present case, 	CAPT's response to Long's 	attempts 	to
8Section 	3515 	of 	the 	Dills Act provides 	in pertinent part
that:
. 	. 	. 	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. . . .
It 	is noted that section 3515.5 	of the Dills Act, 	which
provides 	in pertinent part:
. 	. 	. 	Employee organizations may establish
reasonable 	restrictions 	regarding who 	may
join and may make 	reasonable provisions 	for
the dismissal 	of 	individuals 	from
membership 	. . . .
allows 	an 	employee 	organization to 	create 	and 	implement
reasonable 	restrictions 	upon the 	employee's 	right 	under 	section
3515. 	Had CAPT done 	so, 	our focus 	in this 	case would be whether
the restriction(s) 	were reasonable as 	applied. 	Because no
evidence of restrictions were offered 	into the record, 	and
because 	the Act 	itself does 	not 	otherwise 	qualify 	the 	right 	given
to 	employees under 3515, 	supra. 	the employee's right to 	join the
employee 	association 	is 	unqualified.
8

join the 	union 	constituted 	adverse 	action against 	Long 	in 	that 	it
prevented her 	from becoming a member of 	said union. 	As 	stated
above, 	we 	affirm the ALJ's 	finding of unlawful motive on the part
of CAPT 	in taking 	said adverse action against Long. 	Thus, 	the
nexus 	required by Novato has 	clearly been established herein.
The 	harm 	to 	Long's 	rights 	necessarily 	and directly 	flowed 	from
the union's 	actions 	in refusing to process 	her application,
thereby denying her union membership. 	We 	find 	that 	such harm 	to
Long, 	that is, 	being deliberately deprived of her statutorily
guaranteed right, 	is 	indeed one type of harm which falls within
the 	scope 	of 	the Novato 	standard of 	"adverse action."
We 	therefore affirm the ALJ's 	finding of 	a violation of
section 3519.5(b) 	of the Dills Act.
ORDER
Based upon all 	of the 	above, 	we AFFIRM the proposed order of
the ALJ. 	Pursuant to that order and 	section 3514.5(c) 	of 	the
Dills Act, 	it 	is hereby ORDERED that California Association of
Psychiatric 	Technicians, 	its 	executive board and its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unlawfully denying Barbara L. 	Long her 	statutory
right to 	join CAPT because 	of 	the 	exercise of her rights
guaranteed under the Ralph C. 	Dills Act.
2. 	Denying or attempting to deny membership 	to
Barbara 	L. 	Long without 	regard 	to 	any 	established 	reasonable
restrictions 	on who may 	join CAPT.
99

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED 	TO EFFECTUATE 	THE 	POLICIES 	OF 	THE
ACT:
1. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	sign and
post 	copies 	of 	the 	attached Notice marked 	"Appendix" 	in
conspicuous places where notices 	to 	employees 	are 	customarily
placed, 	at its business office, 	at each of 	its 	job sites 	and at
all 	other work 	locations where members 	of 	State 	of 	California
Unit #18 work, 	for thirty 	(30) 	consecutive workdays. 	Copies of
this 	Notice, 	after being duly 	signed by an authorized agent 	of
CAPT, 	shall be posted within ten 	(10) 	workdays 	from service of
the 	final decision in this matter. 	Reasonable 	steps 	shall be
taken to 	insure 	that the Notice 	is 	not reduced 	in size, 	altered,
defaced 	or 	covered by any 	other materials.
2. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with these Orders 	to
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions, 	and 	serve
concurrently 	on 	the 	charging party.
Member Porter 	joined 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	11.
10

Hesse, 	Chairperson, 	concurring: 	I concur that the
California Association of 	Psychiatric 	Technicians 	(CAPT or
Association) 	unlawfully discriminated against Barbara L. 	Long
(Long) 	by denying 	or attempting to deny her membership 	in the
Association. 	I write 	separately because 	I would 	limit the Public
Employment Relations 	Board 	(PERB or Board) 	holding to 	the 	facts
in this 	case. 	I 	respectfully decline to establish on the 	facts 	of
this 	case 	that 	the denial 	of 	the right 	to 	join an employee
organization is 	harm per 	se.
Long 	stated, 	in 	support of 	the 	claim that 	section 	3519.5 	of
the Ralph C. 	Dills Act 	(Dills Act or Act) 	had been violated:
I 	was 	a 	former CWA officer and know that 	no
psychiatric 	technician was 	ever denied
membership 	on the basis 	of previous
affiliation with 	another 	employee
organization. 	I 	feel that I have been
discriminated 	against 	both 	under 	SEERA and
the 	existing MOU between the 	State of
California 	and CAPT.
The 	complaint 	issued on CAPT's 	failure 	to process 	Long's 	three
applications 	for membership between March 	19 	and July 	1987,
because 	of her activities 	as 	a 	shop 	steward between 	1983 	and 	1986
in the Communication Workers of America 	(CWA), 	prior to the date
CAPT decertified CWA. 	The 	case was 	litigated as 	a discrimination
case.
The 	administrative 	law judge 	(ALJ) 	held that Dills Act
section 	3515 	gave 	Long the 	statutory right to participate 	in CWA
activities when it 	fought the CAPT decertification drive, 	as well
as 	the 	independent 	statutory right to 	join CAPT. 	However, 	the
statutory 	right 	to 	join may be 	qualified by 	reasonable
11

restrictions 	established 	by 	employee 	organizations 	under 	Dills
Act 	section 	3515.5. 	The ALJ relied upon California 	School
Employees Association 	(Parisot) 	(1983) 	PERB Decision Nos. 	280,
280a 	and 	Union of American Physicians 	and 	Dentists 	(Stewart)
(1985) 	PERB Decision No. 	539 	as 	authority for the proposition
that 	the 	Board will 	make 	a determination whether 	an 	employee
organization 	exceeded 	its 	authority 	to 	deny 	employees 	membership
in the organization to dismiss 	or discipline 	its 	members.1 CAPT
did 	not 	rely 	upon 	any 	established 	reasonable 	restrictions
governing who 	can 	join the Association.
The 	PERB 	test 	for resolving charges 	of discrimination and
retaliation was 	set 	out 	in Novato 	Unified 	School 	District 	(1982)
PERB Decision No. 	210, 	and was 	adopted for the Act 	in State of
California 	(Dept, 	of Developmental Services) 	(Monsoor) 	(1982)
PERB Decision No. 	228-S. 	The Board has previously held that 	the
analytical 	standard 	that 	is 	applied 	to 	cases 	involving 	employer
misconduct 	is 	appropriate 	in cases 	involving 	employee
1California School 	Employees Association 	(Parisot) 	and Union
of American Physicians 	and Dentists 	(Stewart) 	hold that 	the
employee's 	statutory right to form, 	join, 	and participate 	in
employee 	organization activities 	may be 	qualified by 	reasonable
restrictions 	established by an 	employee 	organization. 	The
decisions 	do 	not hold that denial 	of membership 	or dismissal 	of
individuals 	from membership 	is 	a per 	se violation of 	the 	statute.
Both decisions 	suggest 	the 	application of 	the 	balancing 	test 	in
Carlsbad Unified School District 	(1985) 	PERB Decision No. 	529.
The 	Parisot 	Board 	found 	that 	the 	showing 	of 	substantial 	impact 	on
employees' 	relationship with the employer, 	as 	specified by Los
Angeles 	Community College District 	(Kimmett) 	(1979) 	PERB Decision
No. 	106, 	is not controlling since PERB has 	jurisdictional
authority to 	determine 	if 	an 	employee 	organization has 	exceeded
its 	authority under the reasonable restrictions 	provisions.
12

organization misconduct. 	(State of California 	(Dept, 	of
Developmental Services) 	(1983) 	PERB Decision No. 	344-S.)
Under Novato. 	supra. 	and State of California 	(Dept, 	of
Developmental Services 	(Monsoor). 	supra, 	the charging party must
make 	a 	showing 	that 	the 	employee 	organization's 	action against
the 	employee was 	motivated by the 	employee's participation 	in
protected conduct. 	A prima 	facie 	case 	is 	established upon a
showing 	that 	the 	employee 	organization's 	acts 	resulted 	in harm to
the 	employee's 	rights. 	The organization's 	knowledge of 	the
protected 	conduct 	together with 	indicia 	of 	unlawful 	intent
support an inference of unlawful motive. 	Among the 	indicia are:
(1) 	timing of the organization's 	conduct 	in relation to 	the
employee's protected activity; 	(2) 	the organization's disparate
treatment of employees 	engaged in such activity; 	(3) 	the
organization's 	departure 	from 	established procedures 	and
standards; 	and 	(4) 	the organization's 	inconsistent or
contradictory 	justification 	for 	its 	actions.
After the 	charging party has 	made 	a prima 	facie 	showing
sufficient to 	support the 	inference of 	an unlawful motive, 	the
burden 	shifts 	to 	the 	employee organization to prove 	its 	action
would have been the 	same despite 	the protected activity, 	or that
it 	had a 	legitimate 	operational purpose.
The ALJ applied the Novato test 	to the 	facts 	of 	this 	case.
It 	is 	undisputed 	that 	Long 	engaged 	in protected activity 	and CAPT
had knowledge of 	the activity. 	Indeed, 	CAPT stipulated that
prior to 	its 	certification as 	the 	exclusive bargaining
13

representative, 	prior to December 31, 	1986, 	Long was denied CAPT
membership because of her activities with CWA. 	As 	evidence 	of
the harm befallen Long due to CAPT's 	actions, 	the ALJ 	cites
CAPT's 	denial 	of 	Long's 	right 	to 	compete 	for Association office
and deprivation to 	Long 	of 	an equal 	voice 	in the 	formulation of
bargaining proposals 	and 	strategy.
Inference of 	unlawful 	motive 	is 	made by the ALJ's 	conclusion
that 	CAPT 	treated 	Long 	disparately 	by 	either not 	processing 	her
membership 	card along with 	other employees' 	cards 	in January
1987, 	or, 	conversely, 	disparate treatment was 	shown by CAPT's
unsupported 	justification of 	deleting 	Long 	from the 	membership
rolls 	in February. 	The various processing irregularities, 	Long's
unimpeached testimony, 	and CAPT's 	inability to produce 	records 	or
reasonable 	restrictions 	regarding who 	may 	join the Association 	as
support 	for its 	conduct, 	resulted in the ALJ's 	conclusion that
CAPT denied 	Long membership 	because 	of 	her prior affiliation with
CWA. 	Although Long 	stipulated that 	she has 	always 	been a
supporter of 	CWA and has 	been 	continuously 	active 	in an attempt
to bring back CWA to reform the exclusive representative, 	CAPT,
the ALJ 	concluded that the 	omission of 	any 	reasonable
restrictions 	or policy was 	fatal 	to CAPT's 	defense 	of 	the
complaint.
On appeal, 	CAPT makes three arguments: 	(1) 	CAPT was not
required to process 	Long's 	membership 	card 	in January 	1987,
because Long was 	on a 	leave of absence 	as 	a paid 	staff member of
CWA and, 	therefore, 	was not employed by the state; 	(2)
14

considering the 	State Controller processing 	schedule, 	the dates
on which Long 	submitted applications, 	and the 	subsequent dates 	on
which CAPT 	submitted 	Long's 	applications 	for dues 	deduction,
there was 	only 	a 	one-month delay 	in processing 	Long's 	membership
application, 	which does not 	support a 	finding of discrimination;
and 	(3) 	Long did not meet the burden of 	showing that 	she was
adversely affected by CAPT's actions, 	and, 	in any event, 	the
evidence 	relied upon by the ALJ 	for adverse 	affect 	or harm to 	the
employee 	is 	timebarred.2
Concerning the first exception, 	I 	find, 	in the facts before
the Board, 	no obligation on CAPT's part to process 	Long's
application prior to January 	1987. 	Nor do 	I 	read 	into the
proposed decision that proof 	of CAPT's processing 	of 	Long's
application 	in January was 	a 	necessary part 	of 	the Association's
defense to the 	complaint. 	Since the complaint covers 	conduct
which occurred between February 	12 and August 	12, 	1897, 	I
conclude 	that Long's 	status 	as 	a 	state 	employee 	in January 	1987
and CAPT's 	corresponding duty 	to process 	her application 	are
irrelevant. 	The exception is without merit.
Regarding the 	second exception, 	I 	find that the ALJ's
findings 	of 	indicia of unlawful 	motive are 	supported by the
record. 	CAPT 	failed to 	establish that 	it had a 	legitimate
2The ALJ 	admitted testimony 	in the hearing 	relating 	to
conduct and activities which occurred prior to February 	12, 	1987,
more than six months prior to 	the 	filing of the charge. 	However,
CAPT's 	actions prior to February 	1987 	cannot 	form the basis 	of
the 	complaint. 	(California State University. 	San Diego 	(1989)
PERB Decision No. 	718.)
15

operational 	justification 	for 	its 	actions. 	Though CAPT asserted
that 	employee 	organizations 	have the 	right 	to 	restrict
membership, 	the record is 	devoid of 	evidence of 	the 	existence of
any CAPT restrictions 	or the 	application of 	such 	restrictions 	as
provided 	for 	in Dills Act 	section 	3515.5.
In the 	last exception, 	CAPT contends 	Long failed to 	show any
harm as 	a result of CAPT's 	actions. 	CAPT is 	correct. 	Under the
Novato 	analysis, 	charging party must 	show the harm that has
affected the 	employee because 	it 	is 	the 	employee's 	activity that
is 	afforded protection 	in discrimination and retaliation 	cases.
However, 	I 	find that the Novato test 	for employer misconduct
(i.e., 	discrimination and retaliation) 	does not always 	neatly fit
with 	employee organization misconduct, 	because Novato 	fails 	to
recognize that 	an employee 	organization's 	actions 	may not 	result
in any actual adverse affect to the employee. 	Therefore, 	I 	turn
to 	the 	application of 	the discrimination and 	interference 	test
set 	forth 	in Carlsbad Unified 	School 	District 	(1979) 	PERB
Decision No. 	89. 	In Carlsbad-----, 	the Board held that where an
employer's 	act 	causes potential harm or 	some 	slight harm to
protected rights, 	the unfair practice 	charge against the 	employer
will 	be 	resolved 	through 	a 	balancing of 	the 	employer's
operational 	needs 	against the degree of harm to employee rights.
The 	inference 	of unlawful 	motive 	is 	not 	required and only a
potential 	or tendency of harm to protected rights 	needs 	to be
shown.
16

It 	is well 	established that 	employees 	must be permitted 	to
form, 	join, 	and participate in the activities 	of employee
organizations, 	free from coercion or interference. 	However,
employee 	organizations 	have 	inherent 	interests which 	coexist with
the employees' 	statutory rights. 	In Parisot, 	supra. 	PERB
Decision Nos. 	280, 	280a, 	the Board recognized that, 	although
employees 	have 	the 	right 	to 	engage 	in decertification activity,
an act 	by an 	employee 	organization member which 	threatens 	the
existence of 	the organization is 	sufficient to 	justify a 	self-
protective response by the organization. 	The 	statute provides
that, 	when the 	competing 	interests 	of 	the employee organization
and the 	employees 	it represents 	must be weighed, 	the rights 	of
the 	employees 	to 	join the 	organization may 	only be 	abridged 	by
reasonable 	restrictions 	for membership 	established 	by 	the
employee 	organization.
Application of the criteria set forth in Carlsbad. 	supraf
leads 	me 	to 	the 	conclusion that CAPT discriminated against 	and
interfered with 	Long's 	statutory right 	to 	join the Association.
Although 	CAPT may have 	an 	interest 	in restricting the 	membership
of 	the organization, 	there is 	no evidence that CAPT established
reasonable restrictions. 	Absent reasonable restrictions, 	Long's
statutory rights 	outweigh the harm, 	if any, 	to the Association's
rights.
17

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. 	LA-CO-31-S,
Barbara 	L. 	Long v. 	California Association of Psychiatric
Technicians 	(CAPT) 	in which all parties had the right 	to
participate, 	it has 	been found that the respondent violated
Government Code 	section 	3519.5(b) 	by unlawfully denying
Barbara 	L. 	Long her 	statutory right 	to 	joint CAPT because 	of 	her
prior affiliation with 	a 	rival 	organization and denying 	or
attempting 	to 	deny membership 	to her without regard 	to 	any
established 	reasonable 	restrictions 	regarding who 	may 	join CAPT.
As 	a result of this 	conduct, 	we have been ordered to post
this 	NOTICE 	and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Unlawfully denying to Barbara L. 	Long her 	statutory
right to 	join CAPT because 	of 	the 	exercise of her rights
guaranteed under the Act.
2. 	Denying or attempting to deny membership 	to
Barbara 	L. 	Long without 	regard to 	any 	established reasonable
restrictions 	on who may 	join CAPT.
Dated: 	CALIFORNIA ASSOCIATION OF
PSYCHIATRIC 	TECHNICIANS
By
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
I)

STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
. .
BARBARA L. 	LONG,
Charging 	Party,
v.
CALIFORNIA ASSOCIATION OF
PSYCHIATRIC TECHNICIANS,
Respondent.
)
) 	Unfair 	Practice
Case No. 	LA-CO-31-S
PROPOSED 	DECISION
(7/20/88)
)
)
)
)
)
)
)
)
Appearances: 	John Dugan for Barbara L. 	Long; 	Ken March,
Consultant, 	for California Association of 	Psychiatric
Technicians.
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	STATEMENT OF THE CASE
Barbara L. 	Long 	(hereinafter Charging Party or Long) 	is 	a
licensed 	psychiatric 	technician 	employed 	by 	the 	State 	of
California. 	The California Association of 	Psychiatric
Technicians 	(hereinafter Respondent 	or 	CAPT) 	is 	the exclusive
representative 	of 	the 	State 	of 	California's 	bargaining 	unit 	#18
which 	includes Long's 	position. 	CAPT obtained 	its 	status 	as
exclusive 	representative 	by defeating 	the 	Communications
Workers of America, 	AFL-CIO, 	(hereinafter CWA) 	in a prolonged
decertification 	battle which began 	even 	before 	the 	filing 	of 	a
decertification petition on March 3, 	1985, 	and concluded with
the certification of CAPT on December 	31, 	1986. 	Prior 	to the
decertification of 	CWA, 	Long was 	one of 	its 	active 	supporters
and 	she 	held 	local 	or 	statewide offices 	from 	1982-86.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
__ )

On August 	12, 	1987, 	Long 	filed 	an unfair practice charge
against 	CAPT 	alleging 	it 	had 	repeatedly 	rejected 	her 	membership
applications 	because of 	her 	prior 	affiliation with CWA when 	it
was 	the 	exclusive 	representative of Unit 	#18. 	On
October 27, 	1987, 	the General Counsel of 	the Public Employment
Relations 	Board 	(hereinafter 	PERB or 	Board) 	issued 	a 	Complaint
which 	alleged 	that 	CAPT's 	denial 	of 	membership 	to 	Long 	violated
section 3519.5(b) 	of 	the Ralph C. 	Dills Act 	(hereinafter Act or
Dills A c t ) 1
The 	Respondent 	filed 	an Answer 	denying 	all 	the material
allegations 	in 	the 	Complaint2. 	After 	an 	informal 	settlement
conference did not 	result 	in 	resolution of 	the dispute, 	a
formal 	hearing was 	conducted on February 9, 	1988. 	On
June 21, 	1988, 	after the Respondent 	and then the Charging Party
elected 	not 	to 	file post-hearing briefs, 	the case was 	submitted
for 	proposed 	decision.
1 The 	Ralph C. 	Dills Act 	is codified 	at Government Code
section 3512 	et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	are 	to 	the Government Code. 	Section 3519.5
provides, 	in relevant part, 	as follows:
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.
2 The Respondent's 	"Answer" 	was 	actually filed 	on or 	about
September 	16, 	1987, 	before issuance of the Complaint,
apparently 	in 	the mistaken 	belief 	that 	the Complaint 	had
already 	been 	issued.
2

II. 	FINDINGS OF FACT
A. 	Background
Long 	has 	been employed 	by the 	State 	of 	California 	for 	more
than 10 years, 	working 	as 	a 	licensed psychiatric technician at
Sonoma 	State Hospital 	and then 	at 	Camarillo State Hospital. 	In
1982 	she was 	the CWA steward 	at Camarillo. 	She was 	CWA's
chapter 	representative 	from 1983 	until 	the 	summer of 	1985, 	at
which 	time 	she 	became 	the 	statewide 	grievance coordinator.
While 	serving CWA in that capacity, 	Long was 	on 	a 	leave of
absence 	from her 	position as 	a psychiatric 	technician; 	CWA
reimbursed 	the 	State 	for 	her 	salary 	and 	fringe 	benefits.
In March 	1985, 	CAPT filed 	its 	decertification petition.
The 	election 	results 	were 	ultimately 	certified 	on
December 31, 	1986. 	During that time, 	there is no dispute that
CAPT officials 	knew of Long's 	active 	role 	in 	support 	of 	CWA.
Long 	vigorously participated 	in 	the 	election 	campaign 	and 	she
was 	a 	CWA witness 	in the 	evidentiary 	hearing 	on CWA's
objections 	to 	the election 	and 	its 	unfair 	practice 	charge
concerning 	conduct 	allegedly 	impacting 	upon 	the 	election.
Long 	described 	her 	relationship with 	the 	CAPT 	leadership 	and
its 	consultants, 	Dan Western and Ken March, 	as 	hostile and 	she
3 The 	formal 	hearing 	on the objections 	to 	the 	election
(S-OB-104-S) 	and 	the unfair 	practice 	charge 	(S-CE-261-S) 	began on
February 24, 	1986, 	and concluded on April 	18, 	1986. 	Exceptions
were 	filed 	to 	the Administrative 	Law Judge's 	Proposed 	Decision
dated October 	1, 	1986, 	and the Decision of 	the Board 	itself was
issued on December 30, 	1986. 	(PERB Decision No. 	601-S)
33

stated 	the 	hostility did 	not 	emanate 	from one 	side 	only but was
reciprocal. 	Her 	testimony was 	not 	controverted.
In 	1986, 	while 	the decertification disputes were 	still
active 	and while 	Long 	was 	a 	paid 	CWA 	statewide 	staff
representative, 	she 	attempted on 	at 	least 	two 	separate
occasions to join CAPT. 	On June 3, 	1986, 	Long sent, 	by
certified mail, 	a membership/dues 	authorization card 	and 	a
check to CAPT's mailing 	address 	in Sacramento. 	Dan Western
testified 	that 	he 	checked 	the 	postal 	box mailing 	address 	once
every week or 	ten days. 	For 	reasons unknown, 	he 	failed 	to
claim Long's 	letter 	although the U.S. 	Postal 	Service delivered
notices 	of 	its 	existence on June 	7, 	12 	and 22. 	The card 	and
check were 	subsequently 	returned 	to 	Long 	"unclaimed."
Thereafter, 	on August 	19, 	1986, 	Long submitted her
membership/dues 	authorization card, 	along with 	the 	cards 	of
many other CWA supporters, 	to Linda 	Pinkerton, 	a CAPT
representative 	at Lanterman State Hospital. 	During 	a
subsequent CAPT meeting 	at Camarillo, 	several 	of 	those cards
were burned by CAPT officials. 	As 	for 	the 	remainder, 	CAPT
President 	Jay 	Salter 	indicated 	they would 	not 	be 	accepted.
Long 	testified 	that 	she 	anticipated 	CAPT would 	be 	certified
as 	the exclusive 	representative. 	Accordingly, 	she 	and other
CWA 	activists 	and members wanted 	to 	join 	so 	they could have 	a
voice 	in 	the 	direction 	of 	CAPT 	policies. 	Long particularly
wanted 	to 	join 	so 	she could 	run against Ed 	Saccamano, 	the
4

incumbent 	chapter 	president 	of CAPT 	at Camarillo.
4
Long was 	initially denied membership 	in CAPT because 	of 	her
affiliation with CWA, 	a 	fact 	admitted by the CAPT
representative 	at 	the 	formal 	hearing when he 	stated:
I 	so 	stipulate 	that 	the 	first 	two 	times 	that
she 	[Long] 	submitted membership cards 	in the
organization 	that 	they were 	not 	processed 	on
the 	basis 	of 	the 	activity that 	she was
involved 	in with CWA.
CAPT was 	certified on December 	31, 	1986. 	After 	that date
CAPT denies 	that Long's 	past 	affiliation with CWA had 	any
impact 	on her CAPT status. 	It 	is Long's 	post-certification
membership 	status-in CAPT which 	is 	the 	subject 	of 	this
proceeding.
B. 	Processing Long's Membership Card
Prior 	to 	the date of 	certification, 	CAPT had 	received
several 	hundred membership/dues 	authorization cards. 	Western
was 	responsible 	for 	logging 	in the cards, 	including 	those
submitted by CWA activists, 	and 	sending 	the 	list 	of 	names 	to
the 	controller 	after 	the date of 	CAPT's 	certification. 	That
was when CAPT was 	entitled 	to 	receive 	dues 	through payroll
deductions. 	If 	a 	name was 	submitted to 	the controller 	before
the 	15th of 	one month, 	dues would be deducted 	from the check
4Long 	testified 	that 	she 	and 	Saccamano were 	old 	rivals.
He 	had 	been working 	for 	the California 	State Employees
Association when CWA was 	certified 	as 	the 	exclusive
representative.
5

issued 	the 	15th of 	the 	following month. 	Anything 	sent 	to 	the
controller before the 	15th of January, 	for 	example, 	would
result 	in a 	dues 	deduction by the 	15th of 	February. 	If 	the
controller 	got 	the 	information 	after 	January 	15, 	dues would 	not
be deducted 	until 	March.
Western 	thinks 	Long's 	name was 	submitted 	to 	the 	controller
before January 15, 	1987. 	CAPT did have Long's 	authorization
card dated August 	1986, 	but Western 	failed 	to 	produce 	the
records 	which would 	support 	the 	conclusion 	that 	her 	name was
submitted to 	the controller. 	Moreover, 	no dues were deducted
from Long's 	February paycheck. 	Nevertheless, 	on
February 13, 	1987, 	Western sent 	a notice to the controller
directing 	that 	Long 	be 	deleted 	from the 	rolls 	of 	CAPT's 	dues
paying members.
Western 	testified 	that 	CAPT believed 	that 	many of 	the 	CWA
supporters 	did 	not 	really want 	to 	be members 	of 	CAPT.
Accordingly, 	those 	individuals were 	sent 	postcards with 	the
following 	message:
Your 	application 	for membership 	in CAPT 	has
been processed 	as 	of 	the date of 	our
certification, December 30, 	1986.
We 	thank you 	for your 	interest 	in CAPT. 	We
hope you will 	enjoy 	all 	the many benefits 	of
our Association.
However, 	if 	for 	some 	reason we have
mistakenly 	processed 	your 	application 	and
you wish 	to withdraw 	from CAPT membership,
please 	address 	a withdrawal 	request 	to 	the
address 	on the 	reverse 	side of 	this 	card.
Western testified 	that 	Long's 	name must 	have 	been deleted 	as 	a
6
6

result 	of 	a 	response to 	the 	above-quoted postcard. 	He 	failed,
however, 	to 	produce evidence 	that 	the postcard was 	mailed 	to
Long, 	or 	that 	she 	filed 	a 	response 	asking 	to withdraw from
CAPT. 	During 	the 	formal 	hearing, 	Western was 	able 	to produce
cards 	from other 	employees 	which 	indicated 	they wanted 	to
withdraw. 	No 	explanation was 	provided 	for Western's 	inability
to 	locate 	the 	alleged 	correspondence 	from Long.
Since no money was 	being deducted 	from her 	paycheck, 	Long
again 	attempted 	to 	join CAPT on March 	19, 	1987. 	At 	that 	time
she 	attended 	a 	CAPT meeting 	at 	Camarillo 	and 	handed her 	card 	to
the chapter 	president, 	Saccamano. 	Long 	had 	read CAPT
literature which 	indicated 	that 	membership 	cards 	could 	be 	given
to any CAPT official. 	There 	is no evidence, 	however, 	that CAPT
made 	any 	attempt 	to 	process 	the card Long 	handed 	to 	Saccamano.
Long did not 	know that March 	19 was 	too 	late 	a 	date 	for
processing 	an April dues deduction. 	Thus, 	when no dues were
withheld 	from her April 	paycheck, 	she made 	another 	attempt 	to
join CAPT. 	Long 	testified 	that 	she 	spoke with
Sylvia Kuchenmeister, 	the CAPT chapter 	president 	at
Metropolitan 	State Hospital.
Kuchenmeister 	had 	also been active 	in CWA but, 	unlike Long,
she had been 	admitted 	to 	CAPT. 	Kuchenmeister 	advised Long, 	"It
was 	sort 	of 	a 	running 	joke within 	the CAPT executive 	board 	that
[Long] 	would never be 	admitted 	as 	a member of CAPT."
Kuchenmeister 	told Long 	to 	send 	her 	two 	or 	more membership
7
7

cards 	dated 	to 	correspond with 	dates 	Kuchenmeister 	would 	be
meeting with members 	of 	the CAPT executive 	board. 	Long 	did
send 	the cards 	sometime early 	in May 	1987. 	When dues were not
withheld 	from Long's 	paycheck 	in either 	June 	or 	July, 	Long
again 	contacted 	Kuchenmeister who 	reported 	she 	had 	presented 	a
card 	to Western who 	jokingly stated: 	"Shall 	I 	lose 	this 	one
too."5
Long 	had 	no way of 	knowing 	that 	her 	name was 	submitted 	to
the controller on May 	15, 	1987 	after her name was 	taken 	from
one 	of 	the 	cards 	submitted by Kuchenmeister. 	Her 	name,
however, 	was 	among 	15 	rejected by the controller 	because 	the
. .
social 	security number was 	incorrect. 	Western or 	his 	secretary
had allegedly mistaken a 4 	for 	a 	9. 	If 	it was 	a mistake, 	I
conclude 	it was 	not 	unreasonable 	in 	light 	of 	the way the 	number
4 	was 	written 	on 	the card.
The 	"Irregularity Notice" 	from the 	controller's 	office was
dated May 26, 	1987. 	Western testified 	that his 	office
regularly took action 	to 	correct 	errors 	but that 	it was 	a
difficult 	task because 	the 	controller's 	office 	never 	provided
5Even 	if 	the 	statements 	attributed 	to 	CAPT officials 	are
considered 	hearsay 	rather 	than 	evidence 	of 	the 	state 	of 	mind 	of
CAPT officials, 	they could be 	considered 	in this 	proceeding.
Hearsay 	is 	admissible 	in 	PERB 	proceedings 	and may be 	considered
when, 	as here, 	it 	is not the only basis 	for a finding. 	In
addition, 	the 	statements would be 	admissible over objection 	in
a 	civil 	proceeding 	as 	either 	party admissions 	or 	authorized
admissions 	since Kuchenmeister, 	as 	a CAPT chapter president,
was 	presumptively 	authorized 	to 	speak 	for 	the 	Respondent 	CAPT.
88

information 	as 	to why 	a 	name 	had 	been 	rejected 	and Western had
to 	figure 	it 	out. 	The 	record does 	not 	support 	his 	testimony.
The May 	26 	notice 	from 	the 	controller's 	office 	listed
ten possible 	specific 	reasons 	for 	rejecting 	a 	dues
authorization 	for 	the named employees. 	The 	only 	reason checked
was number 7 which stated: 	"Please verify SSN 	. 	. 	. 	."
Western 	testified 	that 	the 	list 	from 	the 	controller's
office was 	given to 	a clerical 	employee 	in his 	office 	to make
the necessary corrections, 	although he could not 	be precise 	as
to what methodology 	that 	employee was 	instructed 	to 	or 	did
use. 	The original 	of 	the 	list produced 	at 	the 	formal 	hearing
showed 	a 	corrected 	social 	security number 	or 	an 	indication 	of
"OK" 	in black 	ink by each person's 	name 	on 	the 	list 	except
Barbara Long's. 	There was 	also 	a 	red 	ink and 	a 	black ink check
mark by each name 	except Barbara 	Long's. 	In 	addition, 	by each
name, 	except Barbara Long's, 	a blue 	ink pen was used to write
in the 	amount 	of 	the monthly dues 	deduction. 	A blue 	ink pen
was 	also used to 	cross 	out 	Barbara 	Long's 	name. 	Western
admitted 	the 	blue 	ink notations 	on 	the 	list were 	his 	but 	he 	had
no 	recollection of 	crossing 	out 	her 	name 	and 	no 	adequate
explanation 	as 	to why she 	received 	different 	treatment 	from
others 	on 	the 	list.66
6At 	one 	point 	Western 	testified 	that 	he 	thought 	the
correct 	information 	regarding 	Long was 	already 	in 	the 	computer
at the controller's office 	and, 	accordingly, 	it was not
99

Records 	produced 	at 	the 	hearing 	showed 	that 	CAPT 	received
another 	membership/dues 	authorization 	card 	from Long 	dated
July 10, 	1987. 	CAPT records 	also 	show that her name was 	not
submitted to the controller until August 	15, 	1987, 	however, 	at
which 	time 	she 	finally became 	a member.
III. 	ISSUES
A. 	Can 	PERB 	properly 	assert 	jurisdiction 	in 	a 	case concerning
the 	denial 	of 	union membership?
B. 	Was 	Long 	denied membership 	pursuant 	to 	reasonable
restrictions 	established 	by 	CAPT?
C. 	Did 	CAPT unlawfully discriminate 	or 	retaliate 	against 	Long
because 	of 	her 	prior 	affiliation with CWA?
IV. 	CONCLUSIONS OF LAW
A. 	Jurisdiction
It 	is well settled that, 	as a 	rule, 	the PERB will not
insert 	itself 	into 	disputes 	between unions 	and 	their members,
or 	their 	prospective members, 	that 	are 	"strictly 	internal."
Service Employees 	International Union, 	Local 	99 	(Kimmett)
(1979) 	PERB Decision No. 	106. 	That general proposition,
however, 	must 	be 	harmonized with the 	statutory 	language 	at
issue herein. 	Some of 	the 	rights 	of 	state employees 	are 	set
necessary 	to 	get 	correct 	information 	for 	resubmission 	to 	the
controller. 	What Western meant 	by that 	testimony 	is 	unclear;
there was 	no 	reference 	to 	or 	explanation of when or 	how Long's
name 	and 	correct 	social 	security number were 	allegedly
transmitted 	to 	the controller. 	Accordingly, 	it will 	be given
no weight 	herein.
10

forth in section 3515 which provides, 	in relevant part, 	as
follows:
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. 	State
employees 	also 	shall 	have 	the 	right 	to
refuse 	to 	join or participate 	in the
activities of employee organizations. 	. 	. 	.
Pursuant 	to 	the 	above-quoted 	section, 	Long 	had 	the 	right 	to
participate 	in the 	activities 	of 	CWA when 	it 	challenged CAPT's
decertification drive. 	Long 	also 	had 	the 	statutory 	right 	to
join CAPT. 	That 	right may be 	abridged, 	however, 	by virtue of
section 3515.5 which 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.
When PERB was 	called 	upon 	to 	interpret 	virtually 	identical
language 	to 	that 	quoted 	above 	in the Educational 	Employment
7
Relations Act, 	it determined 	that 	it was 	appropriate 	for
PERB 	to 	question 	the propriety of 	a 	union's 	imposition of
discipline on 	a member 	because of 	his 	participation 	in 	a
decertification campaign. 	Noting that Kimmett, 	supra, 	did not
preclude 	such 	an 	inquiry, 	the Board 	stated:
There 	[in Kimmett] we 	stated 	that we will 	not
7The Educational 	Employment Relations Act 	is 	codified 	at
Government 	Code 	section 	3540 	et 	seq.
11

interfere 	in matters 	concerning 	the
relationship of members 	to 	their 	union
unless 	they have had 	a 	substantial 	impact 	on
the 	relationship 	of 	the 	employees 	to 	their
employer. 	This does not 	require a
demonstrable 	impact 	on 	the employees wages,
hours 	or 	terms 	and 	conditions 	of
employment. 	The 	relationship 	of 	employees
to 	their 	employer 	can be manifested 	through
and 	conditioned 	by 	the 	selection 	or
rejection of 	a 	bargaining 	representative.
In Kimmett, 	we did not 	intend 	to 	abdicate
our 	jurisdictional 	power 	to 	determine
whether 	an employee 	organization 	has
exceeded 	its 	authority under 	section
3543.l(a) 	to dismiss or otherwise discipline
its members. 	California 	School 	Employees
Association 	and 	its 	Shasta 	Chapter 	#381
(Parisot) 	(1983) 	PERB Decision No. 	280 at
p. 11.
See 	also, 	Union of American Physicians 	and Dentists 	(Stewart)
(1985) 	PERB Decision No. 	539-S, 	a case arising under
section 3519.5(b), 	where the Board held that 	an appropriate
subject 	of 	inquiry was whether 	a union's 	dues 	schedule
discriminated 	against 	certain members 	for 	an 	impermissible
reason.
Based upon the 	authorities 	cited 	above, 	it 	is 	concluded
that whether 	Barbara L. 	Long was 	denied membership 	in CAPT
because 	she exercised 	rights 	guaranteed by the Dills Act 	is 	not
"a strictly internal" 	dispute between Long 	and CAPT; 	it 	is 	a
proper 	subject 	of 	inquiry for 	PERB.
B. 	Reasonable Restrictions 	on Membership
As 	noted 	above, 	section 3515.5 	grants 	employee
organizations 	the 	right 	to 	"establish 	reasonable 	restrictions
regarding who may 	join." 	In 	its Answer 	and 	several 	times
during 	the 	formal 	hearing, 	CAPT urged 	the undersigned 	to
12

recognize 	and 	not 	infringe 	upon 	its 	statutory 	right 	to 	restrict
membership. 	Nevertheless, 	notwithstanding 	numerous 	suggestions
from the 	undersigned 	that 	CAPT put 	in 	evidence 	its 	constitution
and 	bylaws 	or 	any other 	internal 	rules 	setting 	forth
restrictions on membership, 	CAPT failed to do so. 	Moreover, 	no
testimony was 	proffered 	regarding 	the 	existence 	of 	reasonable
restrictions 	regarding 	membership 	or 	the 	application 	of 	any
such 	rules 	in Long's case.
Accordingly, 	whether 	or 	not one might 	conclude 	that 	a
regulation 	restricting 	Long's 	membership would 	not 	be
unreasonable, 	CAPT must establish the 	regulation or
restriction, 	not PERB. 	Thus, 	having failed to produce any
evidence 	on 	this 	issue, 	the defense 	afforded 	by 	section 	3515.5
is 	not 	available 	to CAPT 	in this 	proceeding. 	Without 	that
defense, 	CAPT's 	actions must 	be 	analyzed pursuant 	to 	the
standards 	ordinarily applicable 	in discrimination cases.
C. 	Discrimination 	and 	Retaliation
In 	an unfair 	practice case 	involving 	an 	allegation of
discrimination, 	a violation will 	be 	found 	if 	the Charging Party
makes 	a 	showing 	sufficient 	to 	raise 	an 	inference 	that 	protected
activity was 	a motivating 	factor 	in 	the Respondent's 	decision
to 	take 	an 	adverse 	action 	and 	the Respondent 	is 	unable 	to
demonstrate 	that 	the 	adverse 	action would 	have 	been 	instituted
13

in 	any event. 	State of 	California 	(Department 	of 	Developmental
Services) 	(1982) 	PERB Decision No. 	228-S; 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210. 	Although the
above-cited 	cases 	establish 	the 	PERB's 	test 	for 	discrimination
cases 	in the 	context of 	an employer's unfair 	practice, 	language
in the employer 	section of 	the Dills Act 	is 	identical 	to 	the
language applicable to employee organizations. 	Accordingly, 	in
State 	of 	California 	(Department 	of 	Developmental 	Services)
(1983) 	PERB Decision No. 	344-S, 	the Board held that the method
of 	analysis 	used 	in cases 	involving 	allegations 	of 	employer
misconduct 	arising under 	section 	3519(a) 	was 	appropriate 	in
cases 	arising under 	section 3519.5(b).
In order 	to 	establish 	a 	prima 	facie violation of
section 3519.5(b) 	the Charging 	Party must 	establish 	that 	she
participated 	in protected 	activity, 	the Respondent 	had
knowledge 	of 	such participation, 	the Respondent 	took action
adverse 	to 	her 	interests, 	and there was 	an unlawful motivation
for 	the 	Respondent's 	action 	such 	that 	the 	Respondent would 	not
have 	acted 	but 	for 	the protected 	activity. 	The 	inference of
unlawful 	motivation may be created by 	a 	variety of 	factors,
including, 	but not 	limited to, 	the timing of 	the Respondent's
action, 	disparate treatment of 	the employee, 	departure from
established procedures 	and 	standards, 	inconsistent 	or
contradictory justifications 	or explanations 	for 	the 	action, 	or
14

the 	proffering 	of 	exaggerated 	or 	vague 	and 	ambiguous 	reasons
for 	the 	action.
In the 	instant dispute, 	there 	is 	no question that CAPT
officials, 	including March, Western, 	and Salter, 	all had
knowledge 	of 	Long's 	protected 	activity. 	Long 	held 	a 	statewide
staff 	position with CWA and, 	in that 	capacity, 	she 	attended
meetings 	also 	attended by CAPT officials, 	she presented
membership cards 	to CAPT officials, 	and 	she had enough contact
with CAPT officials 	to 	be 	able 	to 	characterize 	their
relationship 	as hostile. 	Moreover, 	Long was 	an active
participant 	in 	the 	election 	campaign 	that 	resulted 	in CWA's
decertification. 	CAPT officials were 	present when Long was 	a
witness 	for 	CWA 	at 	the 	hearing 	on 	the 	objections 	to 	the
election 	and 	the 	companion unfair 	practice 	charge.
There 	is 	also no dispute 	that 	by virtue of 	not 	being 	a
member 	of 	CAPT, 	Long was 	adversely affected. 	She was 	denied
the option of 	competing 	for 	local 	or 	statewide union office 	and
she was 	deprived of 	an equal 	voice 	in 	the 	formulation of
bargaining 	proposals 	and 	strategy. 	The 	record does 	not
disclose if 	Long was 	also 	deprived of 	any 	insurance or 	other
benefits 	incident 	to membership 	in CAPT.
The 	record 	unquestionably 	supports 	an 	inference 	that 	CAPT's
denial 	of membership to 	Long was 	unlawfully motivated. 	From
the outset, 	Long's 	membership 	application was 	not 	afforded 	the
15

same 	treatment 	as 	membership 	applications 	received 	from other
employees. 	There 	is no basis 	for 	concluding 	her 	name was
submitted 	to 	the 	controller 	in 	January 	1987 	along with 	the
names 	of 	all 	other 	employees who 	submitted cards 	prior 	to 	the
date of 	certification. 	CAPT was 	either unable to 	or 	failed 	to
produce 	a 	list of 	names 	submitted to 	the controller. 	In
addition, 	had Long's name been submitted, 	membership dues would
have 	been withheld 	from her 	February paycheck. 	They were
not. 8
In the 	event 	Long's 	name was 	submitted 	to 	the 	controller
after January 15, 	CAPT then took steps 	to prevent 	her 	from
becoming 	a member. 	Without 	any 	legal 	justification or 	basis
for 	doing 	so, 	CAPT notified 	the controller 	that 	Long 	should 	be
deleted 	from the membership 	rolls. 	CAPT 	retained 	deletion
requests 	from other 	employees 	and 	no 	reasonable 	explanation was
proffered 	as 	to why, 	if 	a deletion request 	from Long existed,
it 	could 	no 	longer 	be 	located.
There were 	other 	irregularities 	in 	the 	processing 	of 	Long's
membership 	applications 	which were not 	sufficiently explained
during 	the course of the formal 	hearing. 	For example, 	Long
8Although 	the 	failure 	to 	submit Long's 	name 	to 	the
controller 	in January 	1987 	occurred more 	than 	six months 	prior
to the 	filing 	of 	the unfair practice charge, 	quite 	reasonably,
Long 	did 	not 	know her 	name 	had 	been withheld 	until 	sometime
after February 15, 	1987, 	when she 	received her 	second February
paycheck. 	Accordingly, 	the charge that her 	application was 	not
properly processed 	in January 	is 	timely.
16

testified 	that 	she 	handed 	a 	membership 	application 	to
Ed Saccamano, 	the chapter president 	at 	Camarillo 	State
Hospital. 	Long 	also 	testified 	that 	CAPT 	literature 	indicated
that membership 	cards 	could be 	given to 	any CAPT official.
Nevertheless, 	Long's March 19, 	1987 application was never
processed 	and 	Saccamano was 	not 	called 	to 	testify 	to 	refute
Long's 	assertions 	that 	she 	handed him a 	card.
2 -
The 	irregularities 	in the 	processing 	of Long's 	membership
applications 	through 	the March 	19 	event 	described 	above 	are
sufficient, 	without more, 	to 	raise an inference of unlawful
'motivation. 	CAPT's 	handling 	of 	the matter 	after 	that date 	is
just 	further evidence of motivation.
Although 	there 	is 	no 	basis 	for discrediting 	the
Respondent's 	evidence 	that 	Long's 	name was 	submitted 	to 	the
controller on May 15, 	1987, 	the Respondent's explanation of
what 	happened 	after 	the 	name was 	rejected 	by 	the 	controller 	is
simply unacceptable. 	Almost 	three months went 	by before Long's
name was 	resubmitted to 	the controller. 	The 	social 	security
numbers 	of 	other 	employees 	who 	appeared 	on 	the 	controller's
lits with Long were verified 	or 	corrected. 	There was 	no
verification 	or 	correction 	of 	Long's 	social 	security number 	and
Western 	admits 	he 	crossed her 	name 	off 	the 	list. 	But 	he
couldn't 	explain why.
Finally, 	there 	is 	evidence which supports 	the conclusion
that 	the 	leadership 	of 	CAPT deliberately 	frustrated Long's
17

attempts 	to become 	a member. 	Kuchenmeister was 	an officer 	of
CAPT when 	she 	told Long 	that 	"it was 	sort 	of 	a 	running 	joke
within 	the CAPT Executive Board 	that 	[Long] 	would 	never 	be
admitted 	as 	a member of 	CAPT" 	and 	that Western had 	joked 	about
"losing" 	yet 	another of Long's membership cards.
Since the Charging Party met 	her 	burden of 	proof, 	the
burden 	shifted 	to 	the Respondent 	to 	establish 	that 	it would
have 	treated Long's 	membership 	applications 	in the 	same way
even had 	she not 	engaged 	in protected 	activity. 	The Respondent
failed 	to meet 	that 	burden. 	CAPT 	failed 	to 	present 	any
cohesive 	explanation 	for 	its 	conduct 	in denying 	Long 	membership
or 	in failing 	to 	process 	her 	applications. 	When CAPT did
attempt 	to explain some of 	its 	actions, 	Western was uncertain
as 	to what 	occurred 	and 	he could 	not 	produce 	records 	to 	support
or 	clarify his 	vague 	recollections. 	Although 	the 	record
reflects 	that 	the Respondent moved 	its 	office 	in May 	1987, 	and
although 	the undersigned 	concluded 	that 	the 	office was 	not well
organized 	and 	it was 	poorly 	staffed, 	CAPT 	failed 	to 	introduce
any 	evidence 	that 	any 	other 	applicant 	received 	treatment
comparable to that given Long.9
9Based 	upon 	an 	independent 	review of 	the 	sparse 	records
reluctantly produced by CAPT during 	and 	after 	the 	hearing, 	I
note that, 	in addition to Long, 	other names on the controller's
"Irregularity Notice" 	of May were on 	the 	list 	submitted 	to 	the
Controller on August 15, 	1987. 	Without more, 	however, 	it is
impossible 	to 	conclude what 	circumstances 	led 	to 	that 	singular
similarity.
18
'

Based upon the 	entire 	record 	in 	this 	proceeding, 	it 	must 	be
concluded 	that 	the 	California 	Association 	of 	Psychiatric
Technicians 	denied membership 	to 	Barbara 	Long 	because 	of 	her
prior 	affiliation with CWA 	and 	that, 	in denying 	her membership,
it was 	not 	relying 	upon 	any established 	reasonable 	restrictions
governing who 	may 	join. 	Such conduct 	discriminated 	and
retaliated 	against Long 	in violation of 	section 3519.5(b).
V. 	REMEDY
The PERB 	in section 3514.5(c) 	is given:
. 	. 	. 	the power to 	issue a decision and
order 	directing 	an 	offending 	party to 	cease
and 	desist 	from the unfair 	practice 	and 	to
take 	such affirmative 	action, 	including 	but
not 	limited to 	the 	reimbursement 	of
employees with or without backpay, 	as will
effectuate 	the policies 	of 	this 	chapter.
In 	the 	instant case, 	even though Barbara Long has 	now been
admitted to membership 	in CAPT, 	it 	is 	appropriate to order 	the
Respondent 	to 	cease 	and desist 	from 	its 	unlawful 	action of
excluding 	her 	from membership without 	reference 	to 	or 	regard
for 	any 	established 	reasonable 	restrictions 	on membership.
In addition, 	it 	is 	appropriate that CAPT be required to post 	a
notice 	incorporating 	the 	terms 	of 	this 	order 	at 	all 	locations
throughout 	the 	state where CAPT notices 	are
customarily placed. 	The 	notice 	should 	be 	subscribed 	by 	an
authorized 	agent 	of 	CAPT, 	indicating 	that 	it will 	comply with
the 	terms 	thereof. 	The notice 	shall 	not 	be 	reduced 	in size,
19

defaced, 	altered or 	covered by any other material. 	Posting
such 	a 	notice will 	provide 	employees with notice 	that 	CAPT has
acted 	in 	an unlawful manner 	and 	is 	being 	required 	to 	cease 	and
desist 	from this 	activity. 	It 	effectuates 	the purposes 	of 	the
Dills Act 	that 	employees 	be 	informed of 	the 	resolution of 	the
controversy 	and will 	announce 	CAPT's 	readiness 	to 	comply with
the 	ordered 	remedy. 	See Placerville Union School 	District
(1978) 	PERB Decision No. 	69. 	In Pandol 	and Sons v.
Agricultural Labor Relations Board. 	(1979) 	98 Cal.App.3d 580,
587 	the California District 	Court 	of Appeals 	approved 	a 	similar
posting 	requirement. 	NLRB v. 	Express Publishing Co. 	(1941) 	312
U.S. 426 [8 LRRM 415].
- . :
VI. 	PROPOSED ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record 	in this 	case, 	and pursuant 	to
section 3514.5(c) 	of the Ralph C. 	Dills Act, 	it is hereby
ORDERED 	that 	the 	California Association of 	Psychiatric
Technicians 	(CAPT), 	its 	executive board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
(1) 	Unlawfully denying 	Barbara L. 	Long 	her 	statutory
right 	to 	join CAPT because 	of 	her 	affiliation with 	a 	rival
organization.
(2) 	Denying 	or 	attempting 	to 	deny membership 	to
Barbara 	L. 	Long 	without 	regard 	to 	any established 	reasonable
restrictions 	on who may 	join CAPT.
20

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(1) 	Sign and post 	copies 	of 	the 	attached Notice
marked 	"Appendix" 	in conspicuous 	places where notices 	to
employees 	are customarily placed at 	its 	business office, 	at
each of 	its 	job 	sites 	and 	at 	all 	other work 	locations where
members 	of 	State 	of 	California Unit 	#18 work 	for 	thirty 	(30)
consecutive workdays. 	Copies 	of 	this Notice, 	after being duly
signed 	by 	an 	authorized 	agent 	of 	CAPT, 	shall 	be posted within
ten 	(10) 	workdays 	from service of 	the 	final decision 	in this
matter. 	Reasonable 	steps 	shall 	be 	taken to 	insure 	that 	the
Notice 	is not 	reduced 	in size, 	altered, 	defaced or covered by
any other materials.
(2) 	Upon 	issuance of 	a 	final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	these Orders
to 	the 	Sacramento 	Regional 	Director 	of 	the 	Public Employment
Relations 	Board 	in 	accordance with his 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with the Board 	itself 	at 	the headquarters 	office 	in Sacramento
within 	20 days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record,
21

if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of 	business 	(5:00 	p.m.) 	on the 	last day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked not 	later 	than the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	July 20, 	1988
Barbara E. 	Miller
Administrative 	Law 	Judge
22