California State Employees Association (Hackett) (PERB 1012S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CATHY R. 	HACKETT,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-153-S
PERB Decision No. 	1012-S
September 8, 	1993
Appearances: 	Cathy R. 	Hackett, 	on her own behalf; 	Howard
Schwartz, 	Attorney, 	for California State Employees Association.
Before Caffrey, 	Carlyle, 	and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Cathy R. 	Hackett
(Hackett) 	of a Board agent's dismissal 	(attached hereto) 	of her
charge 	that 	the 	California 	State 	Employees 	Association 	(CSEA)
violated section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1
by 	interfering with the 	rights 	of union members 	to participate 	in
an 	employee 	organization.
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3519.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.

The 	Board has 	reviewed the 	warning and dismissal 	letters,
Hackett's 	appeal, 	CSEA's 	response and the entire 	record 	in this
case. 	The Board finds the Board agent's dismissal 	to be 	free 	of
prejudicial 	error and adopts 	it as 	the decision of 	the Board
itself 	along with 	the 	following 	discussion.
DISCUSSION
On appeal, 	Hackett presents additional 	evidence 	concerning
CSEA's alleged misrepresentation to its members. 	However, 	PERB
Regulation 32635(b)2 prohibits 	the 	introduction of new evidence
on appeal 	absent a 	showing 	of 	good 	cause. 	Hackett 	has provided
no 	explanation which would 	constitute 	good 	cause 	to 	allow 	the
Board to 	consider 	the new evidence 	on appeal.
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-153-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Garcia 	joined 	in this Decision.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32635
states, 	in pertinent part:
Unless good cause 	is 	shown, 	a charging party may
not 	present 	on appeal 	new charge 	allegations 	or
new 	supporting 	evidence.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 5, 	1993
Cathy R. 	Hackett
Re: 	Cathy R. 	Hackett v. 	California State Employees Association
Unfair 	Practice 	Charge No. 	S-CO-153-S
DISMISSAL 	LETTER
Dear Ms. 	Hackett:
On December 23, 	1992, 	you 	filed a charge 	in which you allege 	that
the California State Employees Association 	(CSEA), 	violated
section 3519.5(b) 	of 	the Government Code 	(the Dills Act) 	by
interfering with the 	rights 	of 	union members 	to participate 	in an
employee 	organization.
I indicated to you, 	in my attached letter dated April 	27, 	199 3,
that 	the 	above-referenced 	charge 	did 	not 	state 	a 	prima 	facie
case. 	You were advised that, 	if there were any 	factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained in 	that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless 	you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew 	it 	prior 	to May 4,
1993, 	the 	charge would be dismissed.
I 	have 	not 	received 	either an amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I am dismissing 	the 	charge based on 	the
facts 	and reasons 	contained 	in my April 	27, 	1993 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board itself 	within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,

sec. 	32635(a).) 	To be timely 	filed, 	the 	original and five 	copies
of 	such appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, CA 95 814
If you 	file a timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all 	parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a 	document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in 	the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which 	to 	file a document
with the Board 	itself, 	must 	be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
22

Final 	Date
If 	no appeal 	is 	filed within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By
Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Howard Schwartz
Assistant 	Chief 	Counsel
California 	State 	Employees 	Association
1108 "0" Street
Sacramento, 	CA 	95814
W
	3

STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
PERB
April 27, 	1993
Cathy R. 	Hackett
Re:. 	Cathy R. 	Hackett v. 	California State Employees Association
Unfair 	Practice 	Charge No. 	S-CO-153-S
WARNING 	LETTER
Dear Ms. Hackett:
On December 23, 	1992, 	you filed a charge 	in which you allege 	that
the California State Employees Association 	(CSEA), 	violated
section 3519.5(b) 	of 	the Government Code 	(the Dills Act) 	by
interfering with the 	rights 	of 	union members 	to participate 	in an
employee organization. 	Specifically, 	you allege CSEA has
violated 	its 	own 	rules 	and 	regulations 	by 	submitting 	to 	the
members 	for 	ratification a 	proposal 	not 	approved by their 	elected
rank and 	file 	officers 	from Bargaining Unit 	1; 	CSEA has violated
its 	obligation 	to 	fairly represent 	its 	membership by suspension
of 	the 	five member bargaining team on June 23, 	1992; 	the
membership was 	not 	given adequate 	information 	to make an 	informed
vote; 	the membership was not given a secret ballot; 	and the
membership was 	not 	given any 	choice 	on 	the ballot 	but 	to 	ratify
it 	or strike. 	My 	investigation revealed the 	following 	facts.
CSEA is 	a 	recognized 	employee 	organization 	that 	is 	the 	exclusive
representative 	for 	state 	employees 	in Bargaining Unit 	1. 	On or
about June 23, 	1992, 	CSEA suspended the memberships of Charging
Party and 	other members 	of 	the 	Unit 	1 	Bargaining Unit 	Negotiating
Committee. 	During July, 	1992 	CSEA submitted the 	state employer's
proposal 	to 	the membership of Unit 	1 	for ratification.
On or about July 28, 	1992 	a 	formal 	protest was 	filed with CSEA
regarding 	the 	ratification vote. 	The basis 	of 	this protest 	was
that 	CSEA did not 	have 	authority to mail 	out 	the Unit 	1 ballot,
PERB

the 	ratification process 	did not 	follow the procedures 	outlined
in the 	Civil 	Service Division Policy File 	and the ballot was not
secret.
Your 	charge 	challenges 	CSEA's 	internal 	procedures 	regarding 	its
ratification process 	in July 	1992 	for Bargaining Unit 	1. 	Your
charge 	alleges 	that 	CSEA violated 	its 	duty of 	fair 	representation
by 	submitting 	to members 	a 	proposal 	for ratification which was
not 	approved by 	elected 	rank 	and 	file 	officers 	from Bargaining
Unit 	1; 	the membership was 	not 	given a secret ballot; 	and the
membership was 	not 	given any 	choice 	on 	the ballot but 	to vote 	for
ratification 	or 	strike.
Generally, 	the 	Public 	Employment 	Relations 	Board 	(PERB or Board)
has 	not 	read the Dills Act 	as 	authorizing 	PERB 	to 	intervene 	in
internal 	union affairs. 	In Service 	Employees 	International
Union. 	Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106, 	at pp,
15-17, 	the Board explained as 	follows:
The 	EERA gives 	employees 	the 	right 	to 	"join
and participate 	in activities 	of 	employee
organizations" 	(sec. 	3543) 	and employee
organizations 	are 	prevented 	from 	interfering
with employees because of 	the exercise of
their rights 	(sec. 	3543.6(b)). 	Read broadly,
these 	sections 	could be 	construed as
prohibiting 	any 	employee 	organization 	conduct
which would prevent 	or 	limit 	employee's
participation in any of 	its activities. 	The
internal 	organization 	structure 	could be
scrutinized 	as 	could 	the 	conduct 	of 	elections
for union officers 	to 	ensure 	conformance with
an 	idealized participatory 	standard. 	However
laudable 	such a 	result might be, 	the Board
finds 	such 	intervention 	in union affairs 	to
be beyond 	the 	legislative 	intent 	in enacting
the EERA. 	There 	is 	nothing in the EERA
comparable 	to 	the 	Labor-Management 	Reporting
and Disclosure Act 	of 	1959, 	which regulates
certain 	internal 	conduct 	of unions 	operating
in the private sector. 	The EERA does not
describe 	the 	internal 	working 	or structure 	of
employee 	organization nor does 	it 	define 	the
internal 	rights 	of 	organization members. 	We
cannot 	believe 	that 	by 	the use 	of 	the phrase
"participate 	in 	the 	activities 	of 	employee
organizations 	.. 	. 	for the purpose of
representation 	on all 	matters 	of 	employer-
employee relations" 	in section 3543, 	the
Legislature 	intended 	this 	Board 	to 	create 	a
regulatory 	set 	of 	standards 	governing 	the
solely 	internal 	relationship 	between a 	union
22

and its members. 	Rather, 	we believe that 	the
Legislature 	intended 	in 	the 	EERA to grant 	and
protect 	employees' 	rights 	to be represented
in 	their 	employment 	relations 	by 	freely
chosen employee 	organizations. 	[Footnotes
omitted.]
Thus, 	the duty of 	fair representation extends 	only to union
activities 	that 	have 	a 	substantial 	impact 	on the 	relationship of
the unit members 	to 	their employer. 	Your charge 	fails 	to
demonstrate 	that 	the 	internal 	activities 	of 	CSEA regarding 	the
ratification process 	has 	a 	substantial 	impact 	on 	the 	relationship
of 	unit members 	to 	their 	employer as 	to give 	rise 	to 	the duty of
fair 	representation.
Therefore, 	your allegations 	that 	CSEA violated its 	duty of 	fair
representation by 	submitting 	to members 	a proposal 	for
ratification which was 	not 	approved by 	rank and 	file 	officers
from Bargaining Unit 	l; 	by not 	giving 	the membership a secret
ballot; 	and by 	failing 	to give 	the membership any choice on the
ballot 	but 	to vote 	for 	ratification 	or 	strike will 	be dismissed.
However, 	PERB has 	recognized two 	exceptions 	to the principle 	of
non-intervention. 	In California 	School 	Employees Association and
its 	Shasta College 	Chapter #381 	(Parisot) 	(1983) 	PERB Decision
No. 	280, 	at p. 	11, 	PERB recognized its 	"jurisdictional power to
determine 	whether 	an 	employee 	organization has 	exceeded 	its
authority under 	subsection 3543.1(a) 	to dismiss 	or otherwise
discipline 	its members." 	That 	subsection of 	the 	EERA provides 	in
relevant part as 	follows:
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding who may
join and may make 	reasonable provisions 	for
the dismissal 	of 	individuals 	from
membership.2
Thus, 	in questions of membership, 	PERB will examine the
reasonableness 	of 	restrictions 	or dismissals. 	See also Union of
American Physicians 	and Dentists 	(Stewart) 	(1985) 	PERB Decision
No. 	539-S 	and California 	Correctional 	Peace Officers Association
(Colman) 	(1989) 	PERB Decision No. 	755-S.
1EERA Section 3543.6(b) 	is 	identical 	to section 3519.5(b) 	of
the Dills Act.
2Section 	3515.5 	of 	the 	Dills 	Act 	contains 	identical
language.
w3

In this 	case, 	you allege 	that 	CSEA violated its 	obligation to
fairly 	represent 	its 	Unit 	1 	membership by 	suspending 	the 	five
member bargaining team on June 23, 	1992. 	However, 	your charge
fails 	to allege 	or demonstrate 	that 	CSEA's procedures 	were
unreasonable.
In California State Employees' 	Association 	(O'Connell) (1989) 	PERB
Decision No. 	753-H, 	at p. 	9, 	PERB also explicitly recognized its
statutory authority 	to 	inquire 	into 	the 	internal 	activities 	of 	an
employee 	organization when 	it 	is 	alleged that 	the organization
has 	imposed reprisals 	on employees because 	of 	their exercise 	of
protected rights. 	This 	decision was based on the 	statutory
authority of 	Government 	Code 	section 3571.1(b) 	of 	the Higher
Education 	Employer-Employee Act. 	The 	same 	statutory language
appears 	in Government 	Code 	section 3519.5(b) 	of 	the Dills Act.
See 	also 	California Association of 	Psychiatric Technicians 	(Long)
(1989) 	PERB Decision No. 	745-S and California School 	Employees
Association 	(Petrich) 	(19 89) 	PERB Decision No. 	767.
In California State Employees' 	Association 	(O'Connell). 	supra the
Board 	stated 	that
An 	inquiry must 	go 	forth under 	Carlsbad
Unified School 	District 	(1979) 	PERB Decision
No. 	89 	and/or Novato Unified School District
(1982) 	PERB Decision No. 	210, 	as to whether
the 	actions 	were 	motivated by a 	charging
party's 	exercise 	of protected activity, 	(at
pp. 	9-10) 	(emphasis in original).
Under Novato, 	Charging party must 	show an engagement 	in
protective 	activity, 	that 	the 	respondent 	had knowledge 	of 	such
activity and 	that 	the 	respondent's 	harmful 	action against 	the
charging party was motivated by an unlawful 	intent. 	The
respondent 	then must 	put 	forward a defense 	as 	to whether 	there
was 	any 	legitimate 	business 	concern sufficient 	to 	cause 	the
action against 	the 	charging party. 	If 	there 	is both a lawful 	and
an unlawful 	motive present, 	the Board will 	determine whether the
respondent 	would have 	taken 	its 	action had 	the 	charging party not
engaged 	in protected activity. 	Your present 	charge 	fails 	to
allege 	that 	CSEA has 	imposed 	reprisals 	on employees 	because 	of
their exercise 	of protected rights.
Therefore, 	your allegation regarding 	the 	suspension of 	the 	five
member bargaining team on June 23, 	1992, 	fails 	to state a prima
facie violation and will 	be 	dismissed.
Your 	charge 	also 	alleges 	that 	CSEA violated 	its 	duty 	of 	fair
representation by 	not 	giving 	the 	membership 	adequate 	information
to make an 	informed vote. 	As previously discussed, 	a union is
allowed 	substantial 	leeway 	in 	its 	internal 	procedures 	for
developing negotiations 	strategy, 	selection of 	a negotiating 	team
44

and final 	contract 	ratification. 	See SEIU. 	Local 	99 	(Kimmett),
supra. 	In California 	State 	Employees Association 	(O'Connell)
(1986) 	PERB Decision No. 	596-H, 	the Board stated at p. 	4:
. 	. 	. 	we believe that a prima facie case of a
breach 	of 	the 	duty 	of 	fair 	representation has
been 	stated where 	it 	is 	alleged that 	the
exclusive 	representative 	knowingly
misrepresented a 	fact 	in 	order 	to 	secure 	from
its 	constituents 	their ratification of 	a
contract.
Your 	charge 	states 	that 	CSEA did not 	give 	the membership 	adequate
information to make an informed vote, 	it does not allege 	that
CSEA knowingly misrepresented a 	fact 	in 	order 	to 	secure
ratification of 	the 	contract. 	Therefore, 	this allegation shall
also be 	dismissed.
For these 	reasons 	the 	charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in 	this 	letter 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First Amended Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended charge must 	be 	served 	on the 	respondent 	and the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before May 4, 	1993, 	I 	shall
dismiss your charge. 	If you have any questions, 	please 	call me
at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney
55