California School Employees Association (Gilligan) (PERB 0899E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEANETTE G. 	GILLIGAN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-378
PERB Decision No. 	899
August 30, 	1991
Appearances: 	Jeanette G. 	Gilligan, 	on her own behalf; 	Marci B.
Seville, 	Attorney, 	for California School Employees Association.
Before Hesse, 	Chairperson, 	Shank and Carlyle, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Jeanette G. 	Gilligan
(Gilligan) 	of 	the 	attached proposed decision by an administrative
law 	judge 	(ALJ). 	The proposed decision dismissed the 	complaint
which 	alleged 	that 	the 	California 	School 	Employees 	Association
(Association) 	violated section 3543.6(b) 	of the Educational
Employment Relations Act 	(EERA)1 by threatening to 	refuse 	to
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.6(b) 	states, 	in pertinent part, 	that:
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.
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process 	Gilligan's 	grievances 	with 	the Monterey County 	Office 	of
Education 	(MCOE).
The 	Board has 	reviewed the 	entire 	record, 	including 	the
proposed decision,2 Gilligan's 	exceptions 	and 	the Association's
responses thereto, 	and finds the ALJ's 	findings of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and therefore
adopts 	them as 	the decision of 	the Board 	itself. 	We address 	the
exceptions 	and procedural 	matters 	below.
The Association argues 	that 	Gilligan 	failed 	to 	file
exceptions 	to 	the proposed decision 	in a 	timely manner. 	The
proposed decision was 	issued on May 20, 	1991. 	In accord with
PERB 	Regulation 	sections 	32300 	and 	32130,3 any 	exceptions 	to 	the
proposed decision 	in this 	case 	should have been 	filed by 	June 	14,
1991. 	Pursuant to PERB Regulation section 32135, 	Gilligan filed
her exceptions 	on June 	12, 	1991 	using certified mail. 	Therefore,
the 	Board 	finds 	the 	appeal was 	timely 	filed.
The 	Board also 	notes 	Gilligan's 	request 	for 	a 	stay 	of
activity 	in 	connection with her request 	that 	the 	Board
consolidate 	this 	case with her pending charge 	against MCOE. 	The
Board has 	previously 	consolidated 	cases 	for decision 	on 	the 	basis
of 	their 	identity of 	facts 	and 	similarity of 	issues. 	(Chaffey
Joint Union High School 	District 	(1988) 	PERB Decision No. 	669.)
Here, 	Gilligan has 	failed to provide 	any 	information 	indicating
At page 	2 	of the proposed decision, 	the dates 	of the 	formal
hearing should read February 	13, 	1991 and April 	12, 	1991.
PERB Regulations 	are 	codified at California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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the 	charges 	are 	related by a 	similarity of 	facts 	or 	issues, 	or
any other evidence 	in support of her consolidation request. 	The
Board 	finds 	no 	grounds 	for consolidation of 	these 	cases,
therefore a 	stay of 	the present 	case 	is 	unnecessary.
Gilligan 	also 	stated that 	she did not 	consent 	to 	the ALJ's
issuance of 	an 	expedited decision. 	PERB 	Regulation 	section
321474 permits 	an ALJ to 	expedite 	any matter pending before 	the
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Board. 	Regulation 	32212 	authorizes 	a Board agent 	to 	rule 	on any
request 	to 	file a written brief. 	While PERB regulations 	address
the ALJ's 	authority 	to 	expedite 	a matter before 	the 	Board and
rule 	on any request 	to make oral 	argument or 	file written briefs,
the 	Board 	has 	adopted 	and 	implemented 	an 	expedited 	decision
procedure 	for PERB ALJs. 	This procedure allows 	the parties 	to
waive preparation of 	the written transcript 	of 	the 	formal 	hearing
and 	requires 	the ALJ 	to 	issue 	a proposed decision within 	30 	days
of the close of the case, 	if possible. 	Pursuant to PERB
Regulation 32212, 	post-hearing briefs remain optional.
432147. 	Expediting Matters 	Before the Board. 	The Board
itself, 	the Chief Administrative Law Judge or the General 	Counsel
may 	expedite 	any matter pending before 	the 	Board pursuant 	to
policy 	established by the Board 	itself. 	For purposes 	of 	this
section, 	expediting matters 	in the 	case of 	the Board 	itself means
the 	matter 	shall 	be 	given priority 	and decided on an expedited
basis.
532212. 	Briefs 	and Oral Argument. 	Before the close of 	the
hearing, 	the Board agent 	shall 	rule on any request to make oral
argument or to 	file a written brief. 	The Board agent 	shall 	set
the 	time required for the 	filing of briefs. 	Any party 	filing a
brief 	shall 	file 	the 	original 	and one 	copy with the 	Board 	agent.
Service 	and proof 	of 	service 	of 	the brief pursuant 	to 	section
32140 	are required.
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Generally, 	this procedure was 	to 	be 	implemented only upon the
agreement of the parties.
In the present 	case, 	it appears 	that neither party expressly
agreed to 	this procedure on the record. 	However, 	CSEA had
requested 	the 	expedited 	decision procedure 	before 	the
commencement of 	the 	formal hearing. 	Gilligan did not make 	any
request 	for the 	expedited decision procedure. 	At 	the beginning
of 	the 	formal 	hearing, 	the ALJ 	suggested that this 	case was
appropriate 	for the 	expedited decision procedure. 	At 	the
conclusion of 	the 	formal hearing, 	the ALJ decided 	to 	implement
the 	expedited decision procedure. 	At the time, 	neither party
objected 	to 	the ALJ's 	decision to 	issue 	an 	expedited decision.
Gilligan did not 	object 	to 	its 	implementation until 	after 	the ALJ
issued his 	proposed decision. 	The proposed decision 	found 	that
Gilligan 	failed to prove her allegations 	that 	she was 	denied
adequate 	representation by 	CSEA.
Although Gilligan did 	not 	expressly 	agree 	to 	the 	expedited
decision procedure, 	the Board 	finds 	that the ALJ's 	issuance of 	an
expedited decision was 	not prejudicial. 	The proposed decision
relied 	upon 	a 	credibility determination between the 	two 	key
witnesses. 	As 	the decision was 	based 	solely on the ALJ's
credibility determination, 	a written transcript 	and post-hearing
briefs would have added little, 	if any, 	weight to the ALJ's
decision.6 Accordingly, 	the Board 	finds 	that the utilization of
6Even if the Board remanded the matter to the ALJ, 	the Board
cannot require the ALJ to allow the parties 	to 	file written 	.
briefs. 	(See PERB Regulation 32212.) 	At most, 	the ALJ would
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the 	expedited decision procedure 	in this 	case was 	not prejudicial
to the parties.
review the written transcript 	and 	issue his 	proposed decision.
ORDER
The complaint in Case No. 	SF-CO-378 	is 	hereby DISMISSED.
Chairperson Hesse 	and Member Carlyle 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
JEANETTE G. 	GILLIGAN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Unfair 	Practice
Case No. 	SF-CO-378
PROPOSED 	DECISION
(5/20/91)
Appearances; 	Jeanette G. 	Gilligan, 	appearing in propria persona;
Marci B. 	Seville, 	Attorney, 	for California School Employees
Association.
Before James W. 	Tamm, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	charge was 	filed by Jeanette G. 	Gilligan 	(Gilligan or
Charging Party) 	against 	the California 	School Employees
Association 	(CSEA or Respondent) 	on March 6, 	1990. 	The charge,
as 	amended on April 	16 and on July 	16, 	1990, 	cited numerous
incidents 	where 	Gilligan was 	allegedly 	denied 	adequate
representation by CSEA. 	On August 20, 	1990, 	the Office of the
General 	Counsel 	of 	the Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	dismissed all but a 	single 	instance regarding an alleged
threat made 	against Gilligan by the CSEA president on June 	28,
1990. 	A complaint 	regarding that 	single 	incident was 	issued
August 20, 	1990.
The 	Charging Party appealed the partial dismissal. 	However,
after having been granted 	one 	extension of 	time 	to 	file 	an
appeal, 	Gilligan's 	appeal was 	held to be untimely by the appeals
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.
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assistant on September 27, 	1990. 	On October 9, 	1990, 	Gilligan
appealed 	that 	ruling to the 	Board, 	but was 	denied by the 	Board on
December 7, 	1990.
During the pendency of 	Gilligan's 	appeal 	on the partial
dismissal, 	a 	settlement conference was 	held regarding the
complaint. 	The parties were, 	however, 	unable to settle the
dispute. 	After the 	settlement 	conference, 	Gilligan asked that a
formal 	hearing be delayed until 	her 	appeal 	on the partial
dismissal 	had been heard by 	the 	Board.
A formal hearing was held on April 	8 	and 	13, 	1991. 	At the
conclusion of the hearing, 	the parties presented closing
arguments 	and the 	case was 	submitted 	for 	an 	expedited decision.
FINDINGS OF 	FACT
At the time of 	the 	incident alleged 	in this 	complaint, 	the
Charging 	Party was 	the 	morning 	switchboard 	operator at 	the
Monterey County Office of Education 	(MCOE). 	Gilligan had 	filed
several 	grievances 	against 	her 	employer and had been 	seeking
CSEA's 	representation regarding the grievances. 	In one of 	those
grievances 	Gilligan 	complained 	about 	preferential 	treatment 	given
to 	the 	afternoon 	switchboard 	operator.
Gilligan asked 	for a 	meeting 	to 	review the 	grievances 	with
the CSEA president, 	Carol 	Masterson. 	Masterson met with Gilligan
for approximately two hours 	on June 28, 	1990 	to review Gilligan's
paperwork.
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During 	that meeting 	the 	subject 	of 	the 	afternoon 	switchboard
operator came up. 	Gilligan and Masterson testified to
contradictory versions 	of 	the 	conversation.
Gilligan's version is 	as 	follows. 	Gilligan testified that
Masterson raised 	the 	subject 	of 	the 	afternoon 	switchboard
operator. 	According to Gilligan, 	Masterson told Gilligan that
the 	afternoon 	switchboard operator was 	the best 	friend that
Gilligan had 	and 	that 	Masterson would not 	tolerate 	one union
member making 	a 	complaint against another union member.
Masterson went 	on to 	say that 	if 	there were 	further complaints
about 	the 	afternoon 	switchboard operator, 	Masterson would have
nothing more 	to do with Gilligan and would 	not take 	her
grievances 	any 	further. 	According to Gilligan, 	Masterson raised
this 	issue 	on her own without 	any prompting 	from Gilligan.
Gilligan 	said 	she had no 	idea why Masterson even brought up 	the
subject.
Masterson contradicted Gilligan's 	testimony. 	According 	to
Masterson, 	Gilligan 	started telling Masterson about how upset 	she
was with the 	afternoon switchboard operator. 	Masterson 	felt
Gilligan was 	using the 	opportunity 	to vent 	her anger 	and 	Gilligan
stated that 	the afternoon operator 	should be 	fired. 	Masterson
told 	Gilligan that 	the 	afternoon 	operator was 	actually 	supportive
of Gilligan and 	shouldn't be 	looked upon as 	an enemy. 	Gilligan
then 	asked 	if 	Masterson would 	refuse 	to 	represent 	Gilligan 	and
Masterson replied, 	"Of course not" 	but, 	that she could not
support 	one 	classified 	employee 	trying 	to 	get 	another 	one 	fired.
w
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This 	credibility dispute 	is 	resolved 	in 	favor of Masterson.
The 	reasons 	in 	support of 	this 	finding are 	set 	forth below in the
Discussion 	section.
At the conclusion of 	the June 	28 meeting, 	Masterson
indicated 	that 	she would pass 	on the 	grievance 	materials 	to 	CSEA
field representative, 	Patty Larson. 	Masterson did, 	in fact, 	do
that. 	Later Larson met with Gilligan over the 	grievance
materials. 	A CSEA attorney 	also 	reviewed the materials 	and
requested 	additional 	information about 	the 	grievances 	from
Gilligan. 	Gilligan failed to 	ever respond to the 	attorney's
request.
A 	short time 	later, 	Gilligan received a Notice of
Termination 	from her employer, 	MCOE. 	Larson and CSEA 	senior
field representative, 	Pat Roy, 	offered Gilligan extensive
representation during her 	termination proceedings. 	At 	one 	time
Larson and 	Roy met 	for over 	seven 	straight hours 	with the
Charging 	Party 	reviewing 	the 	allegations 	against 	her 	in the
Notice 	of 	Termination. 	CSEA would have 	represented Gilligan 	at
the termination hearing itself, 	except 	for the 	fact that Gilligan
misled CSEA 	into believing 	that 	she would be 	represented 	at 	the
hearing by 	a private 	attorney.
A
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ISSUE
Did 	Masterson 	violate 	the 	Educational 	Employment 	Relations
Act 	(EERA)1 by threatening to refuse to process 	Gilligan's
grievances?
DISCUSSION AND 	CONCLUSION
Section 3543.6(b) 	of the EERA 	states 	that 	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.
Under 	the 	test 	articulated 	by 	the 	Board 	in Carlsbad 	Unified
School District 	(1979) 	PERB Decision No. 	89, 	the Charging Party
must 	establish that 	the 	Respondent's 	conduct 	tends 	to 	or does
result 	in 	some 	harm to 	employee 	rights 	guaranteed under 	the 	EERA.
(Service Employees 	International Union, 	AFL-CIO Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106; 	American Federation of
Statef 	County and Municipal 	Employees 	(Waters) 	(1988) 	PERB
Decision No. 	697-H.)
In order to prevail 	on this 	complaint, 	the Charging Party
must prove her allegations 	by a preponderance of 	the 	evidence.
She has 	failed to do 	this. 	Although this 	complaint 	involved an
allegation of 	a 	single threat made against Gilligan, 	the Charging
Party's 	primary 	concern at 	the 	hearing was 	her dissatisfaction
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
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with 	the 	representation 	she 	received 	by 	CSEA 	throughout 	her
employment at MCOE.2 The broader 	issues 	of CSEA's 	failure to
represent Gilligan 	in her numerous 	grievances were 	all 	dismissed
by the Office of the General Counsel 	of PERB.
This 	case 	is 	strictly 	limited to the 	alleged threat made 	by
Masterson on June 28, 	1990. 	Only two individuals 	attended the
June 	28 	meeting 	and 	both 	testified 	giving different 	accounts 	of
what happened. 	Masterson's 	version 	is 	credited 	for 	several
reasons.
First, 	Masterson's testimony was 	clear and concise. 	In
contrast, 	Gilligan's was rambling, 	disjointed, 	and often confused
about times, 	sequences, 	and other specifics 	such as who was
present 	and what was discussed at various 	meetings. 	Second, 	on
occasions, 	Gilligan was 	clearly evasive or 	less 	than forthright.
For example, 	Gilligan went to 	lengths 	to avoid admitting that 	she
had 	not 	responded 	to 	the 	request 	of 	a 	CSEA attorney 	for
information about her grievances. 	She 	also deliberately misled
CSEA about whether 	she was 	represented 	in her termination
proceedings 	by a private attorney. 	Third, 	CSEA exhibited on
numerous 	occasions 	that 	it was willing to 	represent Gilligan on
2At the outset of the hearing, 	CSEA sought to 	limit
testimony to the June 	28 	incident. 	The Charging Party was,
however, 	allowed to 	offer documentary 	evidence and testimony
about 	CSEA's 	representation of 	her 	throughout her 	employment 	at
MCOE. 	This 	evidence was 	allowed because 	it 	could have
demonstrated 	a pattern of 	discrimination by CSEA against
Gilligan. 	After two days 	of testimony, 	the evidence concerning
CSEA's 	representation of Gilligan had become cumulative, 	and
showed that CSEA had not 	failed to 	represent Gilligan. 	Further
evidence was 	then limited to the meeting of June 28, 	1990.
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both grievances 	and her termination proceedings 	after 	she 	had
complained 	against 	the afternoon 	switchboard 	operator. 	CSEA's
intent 	in this 	respect 	is 	consistent with Masterson's 	testimony
and 	inconsistent with Gilligan's 	version.
For those reasons, 	Masterson's 	version that 	she assured
Gilligan that CSEA would continue to represent her, 	is 	credited.
I 	find that Masterson did not 	threaten Gilligan or 	in any way
interfere with her 	exercise 	of protected rights 	at 	the June 	28,
1990 meeting.
ORDER-
For the 	reasons 	specified 	above 	and based upon the 	entire
record, 	this 	complaint is hereby dismissed.
Pursuant to California Code of Regulations, 	title 8,
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, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code of
Regs., tit. 	8, 	sec. 	32135; Code Civ. 	P r o c , 	sec. 	1013 shall
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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 Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Dated: 	May 20, 	1991
James W. 	Tamm
Administrative 	Law 	Judge
Co
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