California Union of Safety Employees (John) (PERB 1064S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHRISTIAN JOHN,
Charging 	Party,
v.
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Respondent.
Case No. 	S-CO-128-S
PERB Decision No. 	1064-S
November 1, 	1994
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by
William A. 	Sokol, 	Attorney, 	for Christian John; 	Sam A. 	McCall,
Jr., 	Chief Legal 	Counsel, 	for California Union of Safety
Employees.
Before Blair, 	Chair; 	Caffrey, 	Carlyle, 	Garcia and Johnson,
Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	California
Union of 	Safety Employees 	(CAUSE) 	of 	a proposed decision of
an administrative 	law judge 	(ALJ). 	The ALJ found that 	CAUSE
violated section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the Government Code. 	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.
)
)
)
)
)
)
)
______________ !

by breaching 	its 	duty of 	fair 	representation when 	it 	withdrew 	its
representation of 	Christian John 	(John) 	in proceedings before 	the
State 	Personnel Board 	(SPB).
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits, 	CAUSE'S
statement 	of 	exceptions and John's 	response 	thereto. 	The Board
has 	also 	considered 	the 	informational 	briefs 	filed by 	interested
parties.2 The 	Board affirms 	in part 	and 	reverses 	in part 	the
conclusions 	of 	the ALJ 	in accordance with 	the 	following
discussion.
FACTUAL 	SUMMARY
John has been employed, 	since 	1976, 	by the Department of
Parks 	and Recreation 	(DPR) 	as a lifeguard. 	He 	is a member of
CAUSE, 	which is 	the 	exclusive 	representative of 	state bargaining
Unit 7 	(Unit 7 ) .
In the 	fall 	of 	1990, 	during a background investigation on
another employee who had applied 	for a promotion, 	John provided
written and 	oral 	statements 	concerning 	that 	employee 	to a DPR
investigator. 	DPR believed 	that 	some 	of 	the 	information John
provided was 	false, 	thus 	it 	initiated an internal 	affairs
investigation 	concerning 	the 	matter.
2The 	California School 	Employees Association, 	California
State 	Employees Association and 	the 	California Department 	of
Forestry 	Employees Association 	sought 	and were 	granted
permission to 	file 	informational briefs 	in this 	case. 	These
briefs 	generally addressed 	the ALJ's 	application of 	Lane v.
I.U.O.E. 	Stationary Engineers 	(1989) 	212 	Cal.App.3d 164
[260 	Cal.Rptr. 	634] 	(Lane).
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John first met with Robert McCann 	(McCann), 	CAUSE legal
counsel, 	the 	first week in September 1990, 	when he entered
CAUSE'S 	office 	accompanied by a private 	attorney. 	John asked
CAUSE 	to permit 	his 	attorney 	to 	represent 	him 	in 	the 	internal
affairs 	investigation. 	McCann 	told John 	that 	CAUSE would not
pay for an outside attorney, 	but 	that 	it 	was willing 	to 	represent
John 	itself. 	John agreed to this 	arrangement.
McCann 	represented 	John at 	DPR's 	internal 	affairs
investigation on September 9, 	1990. 	On November 2, 	1990, 	John
was 	informed 	that 	a 	"finding 	of 	failure 	of 	good behavior and
dishonesty" 	had been sustained against 	him. 	No 	formal 	adverse
action was taken at 	that 	time. 	On November 30, 	1990, 	McCann
filed an appeal 	with SPB 	concerning 	this 	finding.
On April 	9, 	1991, 	John received a Notice of Termination from
DPR. 	This 	notice was based on 	the 	same 	facts 	that 	supported 	the
November finding. 	On April 	11, 	1991, 	John met with McCann and
Sam McCall 	(McCall), 	CAUSE'S 	chief legal 	counsel, 	to discuss his
case.
The 	first 	45 	minutes 	of 	the meeting were 	spent 	on the merits
of 	John's 	appeal. 	McCann explained that 	statements made 	on a
confidential 	questionnaire 	filled 	out 	during 	the 	employment
process 	for another 	employee 	were 	"absolutely privileged" 	and
that 	DPR 	was 	precluded 	from disciplining 	an 	employee 	for 	such
statements. 	He 	gave 	John a 	copy of 	a decision on 	the 	subject
and 	told 	him not 	to worry.
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3

During the 	latter part 	of 	the meeting, 	McCall 	asked John
about 	his 	involvement 	with 	the 	California 	State 	Peace 	Officers
Association 	(CSPOA), 	a labor organization which was attempting
to decertify CAUSE as 	the 	exclusive 	representative 	for Unit 	7.
McCall was aware, 	in November 199 0, 	that Michael Lynch, 	an
official 	of 	CSPOA, 	identified John as a member of 	CSPOA's board
of 	directors. 	In addition, 	McCann testified he had seen John's
name 	listed as 	a member of 	CSPOA's 	board of 	directors 	on 	its
campaign 	literature.
John 	explained 	that 	when he was 	asked about 	his membership
on the CSPOA board of 	directors, 	he 	told McCall 	that 	his 	contact
with the 	organization was very informal. 	It 	consisted of
attending 	three meetings 	in 19 88 	or 1989, 	and that he had no
current 	involvement with the 	organization. 	He 	testified he was
not 	involved with CSPOA's 	effort 	to 	decertify CAUSE 	and 	that,
to his knowledge, 	he had never been a member of 	the board of
directors 	or held 	any 	other position with 	CSPOA.
McCann, 	on the 	other hand, 	testified John responded to
McCall's 	questions 	by 	stating 	that 	he 	was 	a 	current member of
the board of 	directors, 	but 	he had 	signed up 	for that position
simply to 	fill 	a slot. 	McCall 	advised John that 	CAUSE might
not 	continue 	to 	represent 	him because 	his 	"dual 	unionism" 	and
membership 	in a 	rival 	union's 	board 	of 	directors 	created a
conflict 	of 	interest 	for CAUSE.
The 	meeting 	concluded when McCall 	told John 	that
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4

continued 	representation 	would be 	determined by 	CAUSE'S 	Labor
Representation Committee 	(LRC), 	which was 	scheduled to meet at
a 	future 	date. 	John 	told McCann and McCall 	that 	he wished to
attend 	the 	LRC meeting and 	speak on his 	own behalf.
McCann also 	told John 	that 	CAUSE 	would 	file 	a 	second appeal
with 	SPB 	concerning 	his 	Notice 	of 	Termination 	from DPR. 	McCann
filed 	the 	appeal 	the 	same 	day. 	The 	form which 	it used 	to 	file
the 	appeal 	did not 	state 	that 	it would represent 	the appellant,
although 	it 	did ask SPB 	to direct 	all 	future appeal 	information
and documents 	to CAUSE'S 	office.
On April 	30, 	1991, 	a letter was 	sent 	to John informing him
of 	the 	time and location of 	the May 8 	LRC meeting. 	The 	letter
was 	misaddressed 	and 	John 	stated he 	never 	received 	the 	letter and
was 	not 	informed 	in any other manner of 	the date 	of 	the meeting.
McCall 	attended 	the 	LRC meeting 	and presented 	the 	positions
of both CAUSE and John. 	McCall 	stated the 	case was 	"winnable,"
but 	recommended that, 	if 	the 	committee accepted the case, 	it be
referred 	to 	outside 	counsel 	due 	to a 	conflict 	of 	interest with
CAUSE.
After a 20-minute discussion, 	the 	LRC unanimously voted
to deny representation to John with regard to his 	SPB appeals.
The chairman of the LRC, 	Marcel Nadeau 	(Nadeau), 	testified the
committee was 	told that 	John's 	case was 	"winnable." 	Nadeau
stated 	that 	representation 	for John would not 	have 	been
terminated had he 	not 	been 	involved with 	CSPOA. 	Nadeau believed
CAUSE 	would be 	criticized 	for not 	doing an adequate 	job 	if 	it
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5

unsuccessfully handled John's 	appeal. 	He 	further explained 	that
if CAUSE 	selected outside 	counsel, 	it would be subject 	to the
same 	criticism, 	and 	if John was 	allowed to 	select 	an attorney,
CAUSE would have no 	control 	over the 	cost.
On May 9, 	1991, 	John called CAUSE 	to determine when the 	LRC
meeting was 	going 	to be 	held. 	John was 	informed that 	the 	LRC had
met 	the 	previous 	day 	and had voted 	to 	deny him 	representation.
In a letter to John, 	dated May 9, 	1991, 	McCall 	reported the
decision of 	the LRC. 	This 	letter was also misaddressed; 	however,
John stated he 	received this 	letter. 	The 	letter stated, 	in
pertinent 	part:
The 	reason 	for this 	decision 	is your dual 	union
activities 	while 	sitting 	on 	the 	Board of 	Directors
of 	CSPOA, 	an organization which has 	recently tried
to 	destroy 	CAUSE 	through a 	decertification
election. 	CAUSE 	sees 	dual 	unionism as 	a 	conflict
of 	interest.
John was 	also 	informed of 	his 	right 	to appeal 	this 	decision to
the 	CAUSE 	executive board. 	John did not utilize 	the 	CAUSE appeal
procedure.
John 	retained a private 	attorney 	to 	represent 	him before
the 	SPB 	and paid him a 	$750 	retainer. 	He 	later retained another
attorney and paid him $2,500 	to 	represent 	him in his 	SPB 	appeals.
Eventually, 	the 	two appeals were heard, 	the determination was
reversed and John was 	reinstated as 	a 	lifeguard at 	Folsom Lake.
On June 26, 	1991, 	John filed the 	instant unfair practice
charge with 	PERB alleging 	that 	CAUSE'S 	refusal 	to 	represent 	him
before 	the 	SPB was 	reprisal 	against 	him based on CAUSE'S 	belief
that 	John was 	a member of 	the board of 	directors 	of 	a 	rival
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employee organization. 	On July 25, 	1991, 	PERB's general 	counsel
issued a 	complaint 	alleging 	that 	CAUSE'S 	refusal 	to 	represent
John before 	the 	SPB was 	in retaliation 	for his 	participation 	in
a 	rival 	employee 	organization.
ALJ'S 	PROPOSED 	DECISION
The ALJ considered whether CAUSE, 	by its actions, 	violated
its 	duty of 	fair representation 	to John. 	The ALJ 	found that
CAUSE'S 	failure 	to 	effectively notify John of 	the May 	8 	LRC
meeting when 	it 	incorrectly addressed 	the 	letter sent 	to John,
did not violate 	its 	duty of 	fair representation. 	The Board
concurs 	in this 	finding.
Concerning CAUSE'S 	refusal 	to 	represent John before 	the 	SPB,
the ALJ acknowledged 	that 	an 	exclusive 	representative 	has 	no 	duty
of 	fair 	representation under 	the Dills Act 	when 	representing a
unit 	member 	in a 	forum which has 	no 	connection with 	collective
bargaining. 	(California State 	Employees Association 	(Parisi)
(1989) 	PERB Decision No. 	733-S.) 	However, 	relying on Lane,
the ALJ determined 	that, 	when a union voluntarily undertakes
representation in 	forums 	outside of 	collective bargaining, 	"the
union must maintain 	the 	same 	standard of 	care 	it 	does 	with 	regard
to its 	statutory duties" 	(i.e., 	a duty 	"akin" 	to the duty of 	fair
representation). 	The ALJ concluded that under this 	standard,
CAUSE violated 	the 	duty 	of 	fair 	representation when 	it 	refused
to 	represent 	John before 	the 	SPB.3 The ALJ dismissed CAUSE'S
3Finding a violation under 	this 	theory, 	the ALJ did not
determine 	whether 	CAUSE 	discriminated 	against 	John 	in violation
of Dills Act 	section 3519.5(b). 	However, 	the record establishes
77

argument 	that 	its 	actions 	were 	consistent with a union's 	right 	to
self-preservation against 	disloyal 	members.
that 	the parties 	were 	on notice 	of 	the discrimination theory and
fully 	litigated 	the 	issue.
CAUSE'S 	EXCEPTIONS
CAUSE 	excepts 	generally 	to 	the ALJ's 	finding 	that 	CAUSE
breached 	its 	duty 	to 	fairly represent 	John before 	the 	SPB. 	CAUSE
argues 	there was 	no agreement 	to 	represent 	John before 	the 	SPB;
therefore, 	the ALJ's application of Lane 	is misplaced. 	CAUSE
also denies 	that 	its 	refusal 	to 	represent 	John was 	due 	to 	"dual
unionism." 	Rather, 	CAUSE asserts 	that John's 	involvement with
the 	rival 	union 	created a 	conflict 	of 	interest 	which precluded
CAUSE 	from representing him before 	the 	SPB. 	Relying 	on
Anderson v. 	Los Angeles 	County Employee Relations 	Com. 	(1991)
229 Cal.App.3d 817 	[280 Cal.Rptr. 	415] 	(Anderson), 	CAUSE argues
that 	"sitting as 	a member of a 	rival 	union's Board of Directors"
is 	not 	protected activity under 	the Dills Act 	because 	CAUSE 	has
a 	"competing 	and more 	compelling 	right 	of 	self 	preservation."
Therefore, 	CAUSE 	contends 	the ALJ erred 	in 	finding 	"John was
engaged 	in protected activity and 	that 	the 	denial 	of
representation was 	a breach of 	the 	duty 	of 	fair representation
in 	reprisal 	for John's 	activity."
DISCUSSION
Duty 	of 	Fair 	Representation
Although 	the 	Dills 	Act 	does 	not 	specifically provide 	for an
employee 	organization's 	duty of 	fair representation, 	the Board
8

has 	inferred 	such a duty 	from the 	fact 	that 	the Dills Act
provides 	for 	exclusive 	representation.4 (California 	State
Employees' 	Association 	(Lemmons, 	et al.) 	(1985) 	PERB Decision
No. 	545-S.)
This 	duty of 	fair 	representation 	requires 	an 	exclusive
representative 	to 	fairly 	and 	impartially 	represent 	all 	employees
in 	the bargaining unit. 	The 	duty 	is 	breached when the 	exclusive
representative's 	conduct 	toward a unit member 	is 	arbitrary,
discriminatory or 	in bad 	faith. 	(Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No. 	124.) 	However, 	no
duty of 	fair 	representation 	is 	owed to a unit member unless 	the
exclusive 	representative possesses 	the 	exclusive means 	by which
an 	employee 	can 	obtain a particular 	remedy. 	(California 	Faculty
Association 	(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H;
San Francisco 	Classroom Teachers Association. 	CTA/NEA
(Chestangue) 	(1985) 	PERB Decision No. 	544.)
The 	duty of 	fair 	representation does 	not 	apply to 	an
exclusive 	representative 	which 	represents 	a bargaining unit
member before 	the 	SPB because 	that 	forum is 	not 	connected with
any aspect 	of 	negotiation 	or administration 	of 	a 	collective
bargaining 	agreement 	and 	the 	exclusive 	representative 	does
not 	exclusively 	control 	the means 	to 	the particular remedy.
(California State Employees Association 	(Parisi) 	(1989) 	PERB
Decision No. 	733-S.) 	Therefore, 	because 	it had no obligation to
4A duty of 	fair 	representation also 	arises 	under 	the Dills
Act for employees who pay fair share fees. 	(Dills Act, 	sec.
3515.7(g).) 	This 	section is 	clearly not applicable 	in this 	case.
99

represent 	John before 	the 	SPB, 	CAUSE did not violate 	the Dills
Act 	duty of 	fair representation when it 	refused to 	represent 	him
in 	that 	forum.
The ALJ determined 	that 	when a 	union voluntarily undertakes
representation 	in 	a 	forum unconnected 	to 	negotiation 	or
administration of 	a 	collective bargaining agreement, 	Lane 	imposes
on 	the union a 	standard of 	care 	equivalent 	to 	the 	duty of 	fair
representation. 	The ALJ 	concluded that under this 	Lane 	extra-
contractual 	duty of 	fair 	representation, 	CAUSE discriminated
against 	John when 	it 	decided not 	to 	represent 	him before 	the 	SPB.
In Lane, 	the 	court 	applied a standard of 	care 	"akin"
to 	a 	duty of 	fair 	representation 	only after 	the union had
affirmatively undertaken 	representation 	in a 	forum where
representation by the union was 	not mandatory. 	In the present
case, 	after meeting with McCann and McCall 	to discuss 	the merits
of 	his 	case, 	John was 	informed that 	the LRC would decide whether
CAUSE 	would 	represent 	him before 	the 	SPB. 	McCann advised John
that due 	to the 	filing deadlines, 	a notice of appeal 	concerning
his 	termination would be 	filed with 	the 	SPB 	in 	order 	to preserve
his 	right 	to appeal. 	McCann took this 	action because he was
concerned 	that 	the 	LRC would not 	have 	an opportunity 	to meet
before 	the 	deadline 	to appeal 	John's 	termination.
It 	is 	clear 	that 	CAUSE 	did not 	undertake John's
representation before 	the SPB. 	Rather, 	CAUSE filed the notice of
appeal 	to preserve 	John's 	right 	to appeal 	his 	termination while
it 	decided whether 	it would represent him in his appeal. 	It 	is
10

apparent 	that 	John was 	aware 	the 	LRC would determine 	whether
CAUSE would 	represent 	him before 	the 	SPB because 	he 	asked 	to
attend the meeting to present his 	case. 	Therefore, 	a Lane
standard of 	care 	is 	inapplicable in this 	case.5
CAUSE did not 	breach 	its 	duty of 	fair representation by-
refusing 	to 	represent John before 	the SPB. 	However, 	the 	inquiry
does 	not 	end 	there. 	The 	Board will 	also 	inquire 	into whether
CAUSE 	unlawfully 	discriminated 	or 	retaliated against 	John.
Discrimination/Retaliation
Dills Act 	section 3519.5(b) 	prohibits 	discrimination or
retaliation by 	an 	employee 	organization against 	an 	employee 	for
engaging 	in 	conduct protected by the Dills Act. 	In California
State Employees' 	Association 	(O'Connell) 	(1989) 	PERB Decision
No. 	753-H, 	the Board stated:
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 	rights.
(Pp. 	9-10; 	emphasis in original.)
In State 	of 	California 	(Department 	of 	Developmental
Services) 	(Monsoor) 	(1982) 	PERB Decision No. 	228-S, 	the Board
applied 	the 	test 	for 	resolving allegations 	of 	discrimination
set 	out 	in Novato Unified School District 	(1982) 	PERB Decision
No. 	210 	(Novato) 	to charges filed under the Dills Act. 	The Board
has 	also 	found 	the 	standard applied 	to 	cases 	involving 	employer
5The 	Board 	finds 	it 	unnecessary 	in this 	case 	to determine
whether a 	Lane 	duty 	of 	fair 	representation attaches 	to union
representation 	in 	extra-contractual 	services.
-
11

misconduct 	to be 	appropriate 	in 	cases 	involving 	employee
organization discrimination. 	(State 	of 	California 	(Department
of Developmental Services) 	(1983) 	PERB Decision No. 	344-S.)
In order to establish a violation of 	section 3519.5(b) 	under
Novato, 	the 	charging party bears 	the burden of 	showing he 	engaged
in protected activity; 	the 	respondent 	knew of 	his participation
in protected activity; 	and 	the 	respondent 	took adverse 	action
motivated by 	that 	activity. 	(Carlsbad Unified School 	District
(1979) 	PERB Decision No. 	89.) 	Proof 	of a connection or nexus
between 	the 	protected 	activity and 	the 	adverse 	action may be
established by direct 	or 	circumstantial 	evidence 	and 	inferences
drawn 	from the 	record as 	a whole. 	(Livingston Union School
District 	(1992) 	PERB Decision No. 	965.) 	Once this 	is
established, 	the burden shifts 	to the 	respondent 	to demonstrate
it would have 	taken the 	same action regardless 	of 	the protected
conduct. 	(Novato.)
An 	employee 	engages 	in activity which 	is protected by 	the
Dills Act when he 	forms, 	joins 	or participates 	in the activities
of 	an 	employee 	organization.6 John 	testified he 	attended 	three
meetings 	of 	CSPOA, 	a rival 	employee organization. 	John also
testified, 	when asked about 	his 	involvement 	with CSPOA on
April 	11, 	that 	he 	informed McCann and McCall 	of his 	attendance
at 	these meetings. 	At a minimum, 	John established that he
participated 	in protected 	activity when 	he 	attended 	the 	meetings
6Dills Act 	section 3515.
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of 	a 	rival 	employee 	organization.7 CAUSE had knowledge 	of 	John's
protected activity when John disclosed his 	attendance. 	Further,
CAUSE acknowledged John's 	"dual 	union activities" 	in 	its 	letter
reporting 	the 	results 	of 	the 	LRC meeting.
After 	convening a meeting of 	the LRC, 	CAUSE decided to deny
representation 	to John because 	of 	his 	involvement with CSPOA.
CAUSE'S 	refusal 	to 	represent 	John under 	these 	circumstances 	was
adverse 	to his 	interests.
In this 	case, 	the connection between John's protected
activity 	and 	CAUSE'S 	adverse 	action 	is 	clearly 	established.
Nadeau 	testified 	that 	CAUSE 	would not 	have 	terminated 	its
representation of 	John had he 	not been 	involved with CSPOA.
McCall's 	letter 	reporting 	the 	LRC's 	decision 	stated 	that 	the
reason 	for denial 	of 	representation was because 	of 	John's 	"dual
union activities 	while 	sitting on the 	Board of Directors 	of
CSPOA, 	an organization which has 	recently 	tried 	to destroy 	CAUSE
through a decertification election." 	Thus, 	CAUSE admitted John
was 	denied 	representation because 	of 	his 	protected activity.
In response, 	CAUSE argues 	that John's 	involvement with the
rival 	union 	created a 	conflict 	of 	interest 	which precluded 	CAUSE
7CAUSE 	disputes 	John's 	degree 	of 	involvement 	with CSPOA
asserting 	that 	John admitted he was 	an active member of 	CSPOA's
board of 	directors. 	However, 	what 	is 	controlling is CAUSE'S
belief 	that 	John was 	involved with 	CSPOA and that 	his 	involvement
was 	the 	reason 	for denying 	representation to John. 	Where 	a
prohibited motive 	is 	found, 	it 	is not 	controlling that 	the
employer may 	have 	been mistaken 	in 	determining whether 	the
individual 	was 	engaged 	in protected activity or was 	a union
supporter. 	(Pleasant View Rest Home 	(1971) 	194 NLRB 426 	[78 	LRRM
1683]; NLRB v. 	Link-Belt Co. 	(1941) 	311 U.S. 	584 	[7 LRRM 297].)
13

from representing him before 	the SPB. 	Citing Anderson. 	CAUSE
contends 	that 	"sitting as 	a member of 	a 	rival 	union's 	Board of
Directors" 	is 	not protected activity under the Dills Act because
CAUSE has 	a more 	compelling 	right 	of 	self-preservation.
The 	Board 	is 	authorized to 	inquire 	into 	the 	internal
activities 	of 	an employee 	organization when 	it 	is 	alleged 	the
organization has 	imposed 	reprisals 	on 	employees 	because 	of 	their
protected activities. 	(California State 	Employees' 	Association
(O'Connell) 	(1989) 	PERB Decision No. 	753-H; 	United Teachers
Los 	Angeles 	(Malin) 	(1991) 	PERB Decision No. 	870.)
In California State 	Employees Association 	(Garcia) 	(1993)
PERB Decision No. 	1014-S, 	the Board stated that 	certain actions
taken by a union may be 	reasonable where 	they are motivated by
self-preservation rather 	than retaliation. 	The Board has 	upheld
an 	exclusive 	representative's 	self-preservation 	right 	to 	expel
from membership 	a union president 	who 	actively pursued 	the
decertification of 	his 	own union. 	(California 	School 	Employees
Association and 	its 	Shasta College 	Chapter #381 	(Parisot) 	(1983)
PERB Decision No. 	2 80; 	California School Employees Association,
Chapter 318 	(Harmening) 	(1984) 	PERB Decision No. 	442.)
Similarly, 	in Anderson, 	under the Meyers-Milias-Brown Act, 	a unit
member who 	served as 	a worksite 	representative 	was 	expelled and
refused 	reinstatement 	to 	the union after he 	formed a 	rival 	union
and unsuccessfully 	sought 	to 	decertify 	the 	exclusive
representative.
These 	cases 	represent 	a 	self-preservation 	exception 	to 	a
14

much broader 	rule 	which prohibits 	an 	employee 	organization 	from
discriminating 	or 	retaliating 	against 	an 	employee 	for 	engaging
in 	conduct protected by 	the Dills Act. 	They are distinguishable
from the present 	case for several 	reasons. 	First, 	these cases
address 	the 	employees' 	membership status after playing a pivotal
or 	leadership 	role 	in a 	rival 	union's decertification effort.
Here, 	John's membership in the union is not 	in question. 	John
was 	a member of 	CAUSE 	and 	continued 	to be 	a member during 	the
period 	CAUSE 	considered whether 	it 	would 	represent 	him.
Furthermore, 	there 	is no evidence 	in the record which indicates
that 	John participated 	in decertification activities. 	Second,
the policy 	supporting 	an 	exclusive 	representative's 	self-
preservation 	rights 	in these 	cases 	involved 	the 	union's 	ability
to 	eliminate 	further 	internal 	attempts 	to destabilize 	the union.
That 	is not 	the situation in the present 	case. 	There are no
facts 	to 	establish how refusing 	to 	represent 	John would 	enhance
CAUSE'S 	ability 	to protect 	itself 	against 	a decertification
attempt. 	CAUSE'S 	conduct 	in refusing 	to 	represent 	John was
not 	indicative of 	self-preservation. 	Rather, 	CAUSE sought 	to
penalize John 	for his protected activities. 	Such action is 	not
excused under 	the 	self-preservation 	exception. 	Accordingly,
CAUSE'S 	argument 	is 	rejected.
In conclusion, 	CAUSE'S 	refusal 	to represent John in the SPB
hearing 	is 	found 	to be 	in retaliation for John's 	involvement with
CSPOA and, 	therefore, 	unlawful 	in violation of Dills Act 	section
3519.5(b).
15

REMEDY
The 	Board 	is 	authorized 	to 	remedy violations 	of 	the Dills
Act. 	Section 3514.5(c) 	grants 	the Board 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
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
In order to 	remedy 	the unfair practices 	of 	CAUSE and to
prevent 	it 	from benefiting 	from its unfair labor practice, 	and
to effectuate the purposes 	of 	the Dills Act, 	it 	is appropriate to
order 	CAUSE 	to 	cease 	and desist 	from discriminating against 	John.
Since 	the 	SPB hearing has already been held, 	there 	is no
point 	in ordering 	CAUSE 	to provide 	representation. 	However,
inasmuch as 	John obtained and paid 	for outside 	counsel, 	he 	can be
made 	whole by an order directing CAUSE 	to 	reimburse 	him 	for all
reasonable 	expenses 	incurred by him for his 	representation before
the SPB.
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the 	entire 	record in this 	case, 	it 	is 	found that 	the
California Union of 	Safety Employees 	(CAUSE) 	violated section
3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act). 	CAUSE violated
the Dills 	Act 	by discriminating 	against 	Christian John 	(John)
when 	it 	refused 	to 	represent 	him before 	the 	State 	Personnel 	Board
(SPB).
Pursuant to section 3514.5(c) 	of the Dills Act, 	it 	is hereby
16

ORDERED 	that 	CAUSE, 	its 	chief 	executive officer and its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against 	John 	in retaliation 	for his
exercise 	of 	rights 	guaranteed him by 	the Dills Act,
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Reimburse 	John 	for all 	reasonable 	expenses
incurred by him for his 	representation before 	the 	SPB.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision 	is 	no 	longer subject 	to reconsideration, 	post 	at
all 	work locations 	where notices 	to employees 	are 	customarily
placed, 	copies 	of 	the Notice attached hereto as an Appendix. 	The
Notice must be 	signed by an authorized agent of CAUSE, 	indicating
that 	CAUSE will 	comply with the 	terms 	of 	this 	Order. 	Such
posting 	shall 	be maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to 	insure
that 	the Notice 	is not reduced in size, 	defaced, 	altered or
covered with any 	other material.
3. 	Written notification of 	the actions 	taken 	to
comply with 	this 	Order shall 	be made 	to 	the 	Sacramento Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with the 	director's 	instructions.
Members 	Caffrey and Johnson 	joined 	in this 	Decision.
Member Carlyle's 	concurrence 	and dissent begins 	on page 	18.
Member Garcia's 	concurrence and dissent begins 	on page 	28.
17

CARLYLE, 	Member, 	concurring and dissenting: 	I concur with
the majority's 	reversal 	of 	the 	administrative 	law judge 	and the
holding 	that 	the 	California Union of 	Safety Employees 	(CAUSE) 	did
not 	breach 	its 	duty 	of 	fair 	representation by 	refusing 	to
represent 	Christian John 	(John) 	in proceedings before 	the State
Personnel Board 	(SPB). 	I dissent 	from the majority's departure
from established policy 	of 	the 	Public 	Employment 	Relations 	Board
(PERB 	or Board) 	and 	federal 	precedent 	to nonetheless 	hold that
even though there was no duty of 	fair representation, 	CAUSE 	is
still 	liable 	for 	failing 	to 	represent 	John under a 	retaliation
theory.
To 	completely understand and, 	more 	importantly, 	fully
appreciate 	the 	ramifications 	of 	the majority view that 	CAUSE 	is
liable 	for 	failing 	to 	represent 	John even 	though 	there was 	no
duty to 	represent, 	it 	is 	necessary to briefly review the origins
and history of 	the 	doctrine 	of 	this 	duty of 	fair representation.
The 	duty 	of 	fair representation 	is 	imposed 	on an 	employee
organization which, 	under statutory authority, 	has become the
exclusive 	representative 	of 	employees 	in a bargaining unit 	and
therefore, 	exclusively bargains 	with an 	employer and administers
the 	resultant 	collective bargaining agreement. 	The duty of 	fair
representation was 	first 	recognized and 	established by 	the 	courts
and, 	as a result, 	in the private sector labor relations 	field.
The duty 	is 	enforceable 	in 	the 	courts 	through a 	civil 	cause 	of
action for 	injunction, 	damages 	and other appropriate 	relief.
18

The 	courts 	have 	held 	that 	the union owes 	no duty 	to advise
employees 	of 	their 	legal 	rights 	outside 	the 	context 	of 	the
collective bargaining agreement. 	(Hawkins v. 	Babcock 	& Wilcox
Co. 	(1980) 	105 LRRM 343 8.) 	In other words, 	outside of the
employer-employee 	relationship, 	the union has 	no authority
(absent 	consent 	of 	the member) 	to 	represent union members nor
does 	it 	owe 	the,duty to advise 	those members 	of 	their extra-
contractual 	legal 	rights.
-
In American 	Federation of 	Government 	Employees v. 	DeGrio
(1984) 	454 So.2d 632 	[116 LRRM 3298, 	3300-3301], 	the court held
that 	the 	union had no duty 	of 	fair 	representation 	to a 	nonmember
under 	federal 	labor policy 	when 	the 	union voluntarily 	represented
him in a discharge 	case. 	However, 	the 	court added that 	the union
did have 	the 	duty 	to 	exercise due 	care 	in 	its 	representation of
the 	employee under common 	law of 	negligence.
-
In 1962, 	the National 	Labor Relations Board 	(NLRB) 	held that
unions 	acquiring 	an 	exclusive 	representative 	status 	under 	the
National 	Labor Relations Act 	(NLRA) 	have a duty of 	fair
representation and 	that 	a breach of 	the 	duty 	constitutes 	an
unfair 	labor practice under 	the 	NLRA and 	is 	actionable before 	the
NLRB. 	(Miranda Fuel 	Co. 	(1962) 	140 NLRB 181 	[51 LRRM 1584]
enforcement den. 	(2d Cir. 	1963) 	326 	F.2d 172 	[54 LRRM 2715].)
In the public 	sector, 	under the 	Educational 	Employment
Relations Act 	(EERA),1 unions have a duty of 	fair representation
to all bargaining unit 	employees 	(EERA section 3544.9).
1EERA is 	codified at 	Government 	Code 	section 3541 	et 	seq.
19

Likewise, 	in 	the Higher Education Employer-Employee Relations Act
(HEERA),2 unions also have 	the duty to fairly represent all
bargaining unit 	employees 	(HEERA section 3571.l(e)). 	However,
under the Dills Act3 where 	there 	is 	no 	express 	statutory language
concerning 	the 	duty of 	fair 	representation, 	PERB has 	imputed the
duty and has 	held 	that 	failure 	by a union 	to 	comply with 	this
duty would constitute a violation of Dills Act 	section 3519.5(b).
(California 	State 	Employees' 	Association 	(Lemmons 	and Lund)
(1985) 	PERB Decision No. 	545-S.)
PERB 	cases 	have 	held 	that 	the 	duty of 	fair representation
evolves 	out 	of 	the 	exclusive 	representative's 	duty 	to 	represent
each and every unit member, 	regardless 	of membership status, 	in
actions 	that 	arise 	out 	of 	the 	obligation of 	collective
bargaining, 	specifically negotiation and administration 	of 	a
collective 	bargaining agreement. 	(California 	State 	Employees
Association 	(Parisi) 	(1989) 	PERB Decision No. 	733-S.) 	To
demonstrate a breach of 	the duty of 	fair representation, 	the
charging party must 	show 	that 	the 	exclusive 	representative 	failed
or 	refused 	to provide 	representation 	to 	the 	employee 	for
arbitrary, 	discriminatory, 	or bad faith reasons. 	(United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258;
Service Employees 	International Union. 	Local 99 	(Kimmett) 	(1979)
PERB Decision No. 	106.)
2HEERA is 	codified at 	Government 	Code 	section 3560 	et 	seq.
3The Dills Act 	is 	codified at Government Code 	section 3512
et 	seq.
20

However, 	the threshold issue 	is 	to 	first determine whether
the matter 	for which 	the 	employee 	requests 	representation 	is 	one
to which 	the 	duty of 	fair representation attaches. 	The Board has
previously 	construed 	the 	duty 	of 	fair 	representation as 	being
limited 	to 	negotiation and 	enforcement 	of 	the 	terms 	of 	the
collective bargaining agreement. 	(Id.) 	Further, 	the Board has
specifically held 	that proceedings 	of 	the 	SPB are 	"extra-
contractual" 	in nature, 	and hence, 	not ones 	to which the duty of
fair representation attaches. 	(American Federation of 	State.
County and Municipal Employees. 	Local 2620 	(Moore) 	(1988) 	PERB
Decision No. 	683-S; 	California Correctional 	Peace Officers
Association 	(Pacillas) 	(1987) 	PERB Decision No. 	657-S; 	California
State Employees Association 	(Parisi). 	supra. 	PERB Decision
No. 	733-S.) 	The right of 	State employees 	to appear before the
SPB 	is 	an 	individual 	right 	granted by 	the 	California
Constitution, 	not 	one 	arising 	from the 	collective bargaining
agreement. 	(Id.)
As 	the 	duty 	of 	fair 	representation 	is 	limited to
contractually based 	remedies 	under 	the union's 	exclusive 	control,
the 	Board has 	affirmed dismissal 	of 	charges 	based upon alleged
union 	failures 	to pursue 	noncontractual 	administrative 	or
judicial 	relief 	(Service 	Employees 	International Union. 	Local 	99
(Kimmett). 	supra, 	PERB Decision No. 	106), 	or on allegations of
inadequate 	representation 	in such noncontractual 	settings. 	Since
employees 	can 	retain private 	counsel 	for 	representation 	in 	these
types 	of noncontractual 	forums, 	the union's 	refusal 	does not bar
21

them from seeking 	redress 	on his 	or her own. 	(California State
Employees' 	Association 	(Darzins) 	(1985) 	PERB Decision No. 	546-S.)
The 	facts 	of 	this 	case 	clearly demonstrate 	that 	John has 	not
overcome 	the 	threshold 	showing 	of 	an 	owing 	of 	a 	duty 	of 	fair
representation under 	the 	collective 	bargaining 	agreement.
Without 	any more, 	the Board 	is without 	jurisdiction to hear this
case. 	Although John may have 	another 	forum to 	seek redress 	to
his 	claim, 	that 	forum is 	not 	found at 	PERB.
John 	recognized 	this 	limitation 	on 	the 	duty of 	fair
representation by arguing 	that 	the 	duty attached 	only when 	CAUSE
allegedly agreed to 	represent 	John 	in 	front 	of 	the 	SPB. 	John
appears 	to 	have 	argued 	that 	had 	CAUSE 	initially declined
representation to him for his 	appeal, 	it would not have breached
its 	statutory duty of 	representation. 	But, 	because CAUSE did
file an appeal 	with 	the 	SPB, 	John asserts 	that 	CAUSE had a duty
to 	represent 	him 	in a 	fair and 	impartial 	manner.4 Presumably,
this 	fiduciary duty 	springs 	from John's membership 	in 	CAUSE 	and
4To 	the 	extent 	that 	the 	charge 	can be 	read to 	claim that
CAUSE 	took a 	reprisal 	against 	John 	for engaging 	in protected
activity, 	PERB has 	the 	statutory authority to 	inquire 	into 	the
internal 	activities 	of 	the 	employee 	organization. 	But 	PERB's
inquiry 	is 	limited 	(subject 	to 	the 	exception of where 	the
internal 	activities 	of 	an 	employee 	organization have 	such a
substantial 	impact 	on 	the 	employees' 	relationship with their
employer as 	to give 	rise 	to the duty of 	fair representation) 	to
examining 	conduct 	that 	arises 	out 	of 	the 	employee 	organization's
obligations 	of 	collective bargaining, 	specifically negotiation
and administration of 	a 	collective bargaining agreement. 	The
right 	of 	an employee 	to appear before 	the 	SPB 	is 	an 	individual
right, 	not 	connected with any aspect 	of 	negotiating or
administering 	the 	collective 	bargaining 	agreement.
-
22

comes 	from his payment 	of 	dues 	to CAUSE 	for various 	services,
including 	representation at 	adverse 	action hearings 	in 	front 	of
various 	state agencies. 	Accordingly, 	John relies heavily on
Lane v. 	I.O.U.E. 	Stationary Engineers 	(1989) 	212 	Cal.App.3d 164
[260 	Cal.Rptr.634] 	(Lane).
According 	to Lane, 	a union may not 	have 	the 	obligation 	to
represent 	an 	employee 	in 	a 	forum unrelated 	to 	the union's
position as 	exclusive representative 	(e.g., 	a civil 	service
hearing), 	but 	if 	the union does undertake such representation
voluntarily, 	it 	is 	held 	to a standard of 	care equivalent 	to the
duty of 	fair representation. 	In the Lane 	case, 	the court
permitted 	the 	plaintiff 	to 	amend his 	complaint 	to 	allege 	that 	the
union's actions were arbitrary, 	discriminatory, 	or in bad faith.
What 	is not 	resolved by Lan
- e 	(as 	it arose under the Meyers-
Milias-Brown Act) 	is whether, 	even applying this standard of
care, 	PERB has 	jurisdiction to hear this 	type 	of dispute as 	an
unfair labor practice, 	or whether this 	standard of 	care 	is 	only
to be 	applied by 	courts. 	The 	court 	set 	this 	standard of 	care
because 	it was 	the 	"equivalent" 	to 	the duty of 	fair
representation, 	but 	it did not 	specifically rule 	that 	failure by
the union 	to meet 	the 	standard was 	a breach of 	the duty of 	fair
representation.
PERB's 	jurisdiction 	is 	limited 	to 	the 	examination of 	CAUSE'S
role as 	an exclusive 	representative, 	and the Board cannot pass
judgement 	on CAUSE'S 	duties 	which may arise by virtue 	of 	its
alleged 	fiduciary duty 	to 	its 	members 	outside 	the 	exclusive
-
23

representation setting. 	Regardless 	of membership 	status 	or the
reasons 	given 	for not 	representing John, 	PERB 	is without
jurisdiction 	to hold CAUSE 	to 	the 	Lane 	standard of 	care.
However, 	assuming arguendo 	that 	PERB had jurisdiction over
this matter, 	I would 	find that 	the previous action of 	CAUSE 	on
John's behalf 	by 	the 	filing 	of 	an appeal 	to preserve 	his 	right
before 	the 	SPB 	is 	a ministerial 	act 	and does not 	obligate 	CAUSE
to 	continue 	representation. 	I 	am unpersuaded that 	the action
taken by CAUSE 	is 	sufficient 	to 	constitute a voluntary
undertaking as 	in the Lane 	case.
Additionally, 	John was made well 	aware of 	the possibility
that CAUSE may not handle his appeal. 	In an April 	11, 	1991
letter to John, 	CAUSE wrote 	in what 	appears 	to be a standardized
letter:
Because 	an appeal 	from an adverse 	action must
normally be 	filed within 	twenty 	(20) 	days 	of
the 	action being 	served upon 	the 	employee,
the 	California Union 	of 	Safety Employees
(CAUSE) 	has 	filed an appeal 	on your behalf
with 	the 	State 	Personnel 	Board.
A legal 	representative will 	be 	contacting you
to gather 	information about 	your 	case.
Should 	just 	cause 	be 	found 	to proceed as 	your
representative, 	CAUSE will 	need and expect
your 	full 	cooperation 	in 	the preparation of
your 	case 	for 	the 	appeal 	hearing.
Should you 	have 	any questions 	in 	the
meantime, 	please 	feel 	free 	to contact 	the
CAUSE office.
(Emphasis 	added.)
Further, 	John was 	informed 	that 	the 	CAUSE 	Labor Relations
Committee would meet 	to discuss 	his 	and other 	cases. 	In a May 9,
24

1991 	letter, 	John was made aware 	of 	the 	committee's denial 	for
representation. 	The letter also stated, 	in part:
As you know, 	your case 	is 	set 	for hearing
before 	the 	State 	Personnel 	Board on June 	6,
1991. 	If you wish representation, 	you are
urged 	to 	retain your 	own attorney at 	your
expense. 	You, 	of course, 	can represent
yourself 	if you wish. 	You also have 	the
option of 	asking 	for a 	continuance 	in order
to allow 	for more 	time 	to prepare your
case.
To attach a 	duty of 	fair 	representation to 	this 	case would
do 	harm to 	the 	relationship 	of 	an 	employee 	organization and 	its
members. 	CAUSE was 	attempting 	to provide a service 	to ensure
that 	John would be 	able 	to pursue 	his 	action before 	the 	SPB.
CAUSE'S 	letter 	clearly states 	that 	the appeal 	to 	the 	SPB was
filed solely 	to preserve 	his 	rights 	pending 	its 	decision to grant
representation. 	John was 	given notice 	that 	CAUSE may not 	accept
his 	case. 	Under PERB case 	law and statutes, 	CAUSE did not breach
its 	duty 	of 	fair 	representation.
Given the 	history of 	PERB 	case 	law and of 	federal 	cases 	in
this 	area of 	the duty of 	fair representation, 	one would think
that when 	the majority in this 	case also 	concludes 	that 	CAUSE did
not breach its 	duty of 	fair representation, 	this 	case 	is 	over.
Instead, 	the nightmare on 18th street has 	just 	started or, 	in the
words 	of 	the majority: 	"The 	Board will 	also 	inquire 	into whether
CAUSE 	unlawfully 	discriminated 	or 	retaliated against 	John."
The majority's 	interpretation and application of 	Dills Act
section 3519.5(b) 	is wrong. 	Discrimination/retaliation is not
the ends, 	but 	the means. 	Discrimination/retaliation is 	the
25

theory. 	It 	is 	the 	theory to prove motive. 	It 	is 	the theory to
prove bad motive. 	It 	is 	the 	theory to prove bad motive 	for the
actions 	taken against 	someone.
In 	each 	of 	the 	thirteen 	cases 	cited and 	relied upon by 	the
majority 	in its 	discussion, 	the 	respondent had affirmatively
undertaken an 	act 	or action 	which 	resulted 	in 	the 	discrimination
or retaliation allegation and, 	most 	importantly, 	said eventual
finding by 	the 	Board 	of 	such violative 	activity 	in 	those 	cases
where 	the affirmative 	facts 	warranted it. 	In no case was 	the
"act" 	or 	"action" 	complained of 	solely one 	of 	refusing 	to do
something that 	one was under no obligation 	(by word or deed) 	to
do 	in the 	first place. 	Simply put, 	there 	is no case authority to
support 	the view of 	the majority on 	this point.
Look at 	the 	result: 	A union 	is 	under no 	obligation to
represent 	one 	of 	its members 	before 	the 	State 	Personnel 	Board.
That 	forum is 	extra-contractual 	(sound familiar?). 	The union has
done 	nothing 	to 	obligate 	itself 	to 	represent 	said member.
Despite 	the 	history 	of 	PERB 	case 	law and 	federal 	law on 	the 	duty
of 	fair representation, 	the majority holds 	the union nonetheless
liable under 	PERB 	law 	for 	its 	refusal 	to 	represent 	a member 	in an
extra-contractual 	forum when 	it 	had no 	legal 	obligation 	to do 	so.
No obligation means 	no 	obligation. 	No duty means 	no duty.
This 	is 	a 	first: 	Finding a union 	liable under PERB 	law for
discriminating/retaliating 	against 	a member 	for 	saying 	"no" 	when
there is absolutely no contract, 	obligation, 	duty, 	requirement,
etc. 	to say 	"yes"; 	finding a union liable under PERB law for
26

discriminating/retaliating 	against 	a 	member 	for 	doing 	nothing
when there 	is absolutely no contract, 	obligation, 	duty,
requirement, 	etc. 	to do anything.
The majority may not 	like why CAUSE 	did what 	it 	did, 	but 	too
-
bad. 	PERB is not 	the universal 	forum to solve all 	ills, 	real 	or
imaginary. 	We 	should be 	here 	to properly apply the 	laws 	over
which we have 	jurisdiction, 	not 	to 	create violations 	just because
we don't 	like what was 	done 	or how it was 	carried out. 	Our likes
and dislikes 	should not 	be 	the 	standard by which we 	decide 	cases.
As 	if 	the majority's view wasn't 	bad enough, 	can one 	imagine
what 	will 	happen 	should 	the 	two 	in 	the majority 	eventually weigh
in on 	the 	side 	of 	the 	third as 	set 	forth 	in his 	lead opinion 	in
Los Angeles Unified School 	District 	(1994) 	PERB Decision
No. 	1061? 	Should that 	future phenomenon occur, 	these 	two cases
would 	stand 	for 	the 	following:
The union 	is 	under no 	duty of 	fair representation 	to
represent 	a member before 	the 	State 	Personnel 	Board,
but 	refusal 	to 	do so 	could lead 	to a 	finding by PERB 	of
violating 	the 	Dills 	Act 	due 	to 	discrimination or
retaliation. 	Should the union, 	in an attempt 	to
conserve 	its 	time and resources, 	decide 	to undertake
such an extra-contractual 	representation, 	PERB will 	not
assist 	it 	in getting 	relevant materials 	or documents
for 	its 	case 	from a 	recalcitrant 	employer because 	said
undertaking 	is 	not 	in 	furtherance 	of 	"contract
administration." 	Beautiful.
27

GARCIA, 	Member, 	concurring and dissenting: 	I concur with
the majority's 	reversal 	of 	the 	administrative 	law judge's 	(ALJ)
proposed decision, 	and 	I 	dissent 	from the majority's 	ruling on
the merits 	and 	the 	remedy ordered by 	the majority. 	For 	the
reasons 	explained below, 	I 	would 	remand 	the 	case 	for 	further
proceedings 	before 	an ALJ.
The 	Board misses 	here 	an 	opportunity 	to 	inform the public 	on
two important 	issues. 	First, 	the 	case of Lane v. 	I.U.O.E
Stationary Engineers 	(1982) 	212 	Cal.App.3d 164 	[260 	Cal.Rptr.
634] 	(Lane) 	is not an applicable precedent 	to cite in any case
before 	the Public 	Employment Relations 	Board 	(PERB). 	Simply put,
it 	is not 	a labor law case and represents precedent 	only on the
issues 	of pleading, 	demurrer and the 	standard of 	care 	to be
employed when measuring 	liability 	in 	implied 	contract 	cases.
Although it arose 	in a labor context, 	Lane was a breach of
contract 	case 	in which a member 	sued his 	union 	for negligence 	in
representation. 	The union was 	not 	obliged 	to 	represent 	the
member but volunteered to undertake 	representation. 	On appeal,
the 	court 	held 	that 	a duty of 	care 	could arise when the union
assumed 	representation and 	then went 	on 	to define 	the 	standard 	of
care 	that would apply if 	the duty arose. 	The 	court held that 	the
standard of 	care, 	where 	the duty exists, 	is 	to be the same as
that 	applied 	to 	fair 	representation when unions 	represent
members; 	the 	representative must act 	fairly, 	honestly and in good
faith, 	and must 	refrain 	from acting arbitrarily,
discriminatorily, 	or in bad faith. 	In Lane, 	the 	court did not
28

find 	that 	the 	facts 	and 	circumstances 	created a 	contract 	or duty
to 	represent. 	Instead, 	the 	court 	reversed the decision of 	the
lower 	court 	on pleading 	issues 	and 	returned 	the 	case.
PERB 	should make 	it 	clear 	that 	if 	the asserted 	facts 	and
circumstances 	of 	Lane were presented 	to 	PERB 	for decision, 	the
case would be 	dismissed 	for 	lack 	of 	jurisdiction under 	the
Educational 	Employment Relations Act 	section 3541.5(b), 	since it
involved 	an 	implied 	contract 	between 	the 	parties 	outside 	the
exclusive 	representative's 	duties 	for 	collective 	bargaining
purposes. 	However, 	the 	facts 	and circumstances 	of Lane 	could be
evidence 	of 	motivation 	in an unfair 	labor practice 	charge brought
by a 	employee 	against 	a union.
That brings me 	to 	the 	second 	issue. 	As a practical matter,
in 	cases 	where a dissident member 	claims 	the 	exclusive
representative 	engages 	in an unfair 	labor practice 	involving
reprisal 	or discrimination, 	suspicion of 	the union's motivation
more 	easily 	emerges 	after passage 	through 	the 	tests 	discussed by
the author.1 Again, 	as 	a practical matter, 	the California Union
of 	Safety Employees 	(CAUSE) 	may find 	it more difficult 	to
overcome 	the 	shifted burden and 	rebut 	a prima 	facie 	case.
I 	would 	remand 	this 	case 	for 	further proceeding before 	an
ALJ, 	since 	the 	earlier proceeding was 	flawed by the 	reliance 	on
Lane, 	which led 	the ALJ 	to 	conclude 	that 	CAUSE had violated 	the
Carlsbad Unified School 	District 	(19 79) 	PERB Decision No.
89; 	Novato Unified School District 	(1982) 	PERB Decision No. 	210;
and California State 	Employees' 	Association 	(O'Connell) 	(1989)
PERB Decision No. 	753-H.
29

duty of 	fair representation. 	Instead, 	the 	focus 	should be on
whether CAUSE'S 	refusal 	to 	represent 	Christian John was
discriminatory 	or a 	reprisal 	for his 	exercise 	of protected
activity.
30

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. 	S-CO-128-S,
Christian John v. 	California Union of 	Safety Employees, 	in which
all parties 	had the 	right 	to participate, 	it has been found that
the California Union of 	Safety Employees 	(CAUSE) 	has violated
section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act). 	CAUSE
violated 	the 	Dills 	Act 	by 	discriminating 	against 	Christian John
(John) 	when 	it 	refused to 	represent him before 	the State
Personnel Board 	(SPB).
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against 	John 	in retaliation 	for his
exercise 	of 	rights 	guaranteed him by 	the Dills 	Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE DILLS ACT:
1. 	Reimburse John 	for all 	reasonable 	expenses 	incurred
by him for his 	representation before 	the 	SPB.
DATED: 	CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES
By: Authorized 	Agent
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.