California State Employees Association (Hackett, et al.) * * * OVERRULED IN PART by California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S (PERB 1126S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CATHY R. 	HACKETT, 	et al.,
Charging 	Parties,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-26-S
PERB Decision No. 	1126-S
December 6, 	1995
Appearances: 	Cathy R. 	Hackett, 	Representative, 	for Cathy R.
Hackett, 	et al.; 	Nancy T. 	Yamada, 	Attorney, 	for California State
Employees 	Association.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by Cathy R.
Hackett, 	et al. 	(Charging Parties)1 and the California State
Employees Association 	(CSEA) 	to a 	PERB administrative 	law judge's
(ALJ) 	proposed decision 	(attached). 	The ALJ found that CSEA
discriminated against 	the 	Charging 	Parties 	for participation 	in
protected 	conduct 	in violation of 	section 3519.5(b) 	of 	the
Ralph C. 	Dills Act 	(Dills Act)2 by: 	(1) 	filing written charges,
1The Charging Parties are Cathy R. 	Hackett 	(Hackett), 	Jim
Hard, 	Sam Jurado, 	Dave Weston and Doyle Harris.
2The 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 provides, 	in
part:
It 	shall 	be unlawful 	for an employee
organization to:
)
)
)
)
)
)
)
)
)
)
______________ )
* * * OVERRULED IN PART by California State Employees Association
(Hard, et al.) (1999) PERB Decision No. 1368-S, p. 28. * * *

on or about June 	17, 	1993, 	for their suspension from membership
in CSEA for at 	least 	one year; 	(2) 	naming them in a 	civil 	lawsuit
on or about July 2, 	1993; 	and 	(3) 	filing written charges against
the Charging Parties on or about October 1, 	1993, 	seeking their
lifetime 	suspension 	from CSEA.
The 	Board has 	reviewed the 	entire 	record, 	including 	the
proposed decision, 	the hearing 	transcript 	and exceptions 	and
responses 	filed by the parties. 	The Board hereby adopts 	the
ALJ's 	findings of fact in the proposed decision, 	pp. 	2-18, 	in its
entirety as 	if 	fully set 	forth herein. 	The Board hereby affirms
the ALJ's 	proposed decision and 	order 	consistent 	with 	the
following 	discussion.
CHARGING PARTIES' 	EXCEPTIONS
Charging 	Parties 	support 	the ALJ's 	finding 	of 	a violation,
but 	take 	exception to 	the 	remedy. 	They argue 	that 	the 	remedy
ordered by 	the ALJ 	is 	inadequate 	and 	they 	request 	the 	Board 	to
order additional 	relief; 	specifically, 	(1) 	that the notice of
violation also be printed 	in 	Pride, 	a CSEA publication 	sent 	to
every member and fair share 	fee payer; 	and 	(2) 	that 	Charging
Parties 	be 	awarded attorney 	fees 	and 	costs.
(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.
22

CSEA'S 	STATEMENT OF 	EXCEPTIONS
CSEA excepts 	to 	the ALJ's 	finding 	that 	the 	Charging 	Parties
were 	engaged 	in activities protected by the Dills Act. 	In June
1992, 	following 	their suspension from CSEA, 	Hackett 	joined with
others 	to 	form an organization 	called 	the 	Caucus 	for a Democratic
Union 	(CDU). 	Hackett has maintained a high profile 	in CDU,
describing themselves as 	"founding members" 	of 	the 	caucus and
"active and prominent members" 	of 	CDU. 	Even if 	CDU had not begun
a 	formal 	decertification process, 	according to CSEA, 	its actions
are 	"tantamount 	to 	decertification" 	and are 	therefore unprotected
by the Dills Act. 	Furthermore, 	CSEA claims, 	Charging Parties
suffered no adverse action in this 	case, 	since no discipline 	of
any kind ever went 	into effect 	against 	them. 	Also, 	CSEA argues
that 	the ALJ's 	finding of 	unlawful motive was 	incorrect 	and 	that
CSEA was 	justified 	in 	imposing 	discipline 	on 	the 	Charging 	Parties
when 	they 	failed 	to 	return documents.
CSEA'S 	RESPONSE TO CHARGING PARTIES' 	EXCEPTIONS
Assuming arguendo 	that 	CSEA is 	deemed 	to have 	committed an
unfair labor practice, 	CSEA supports 	the ALJ's 	decision not 	to
award attorney 	fees 	and costs 	to 	the 	Charging 	Parties. 	The ALJ's
posting order 	is 	sufficient 	to 	inform CSEA members 	of 	PERB's
ruling.
CHARGING PARTIES' 	RESPONSE TO CSEA'S 	EXCEPTIONS
In response 	to 	CSEA's 	claim that 	the 	Charging 	Parties 	were
not 	engaged 	in protected 	activity 	since 	their actions 	were
"tantamount 	to decertification," 	Charging 	Parties 	state 	that:
33

The 	charging parties 	are members 	and stewards
in 	CSEA who wish 	to 	strengthen 	the
organization 	through 	changing 	its 	leadership,
structure 	and policies.
In 	fact 	CDU advocates 	active membership 	in
CSEA by all 	state workers 	covered by 	its
contracts.
Regarding 	CSEA's 	claim that 	Charging 	Parties 	suffered 	no
adverse action 	in this 	case, 	Charging Parties 	respond that:
Harm has 	been done 	in 	terms 	of 	emotional
stress, 	loss of reputation, 	hours of work
preparing a defense, 	los[t] 	vacation time and
costs 	for legal 	counsel. 	Finally, 	harm has
been done by 	the violation of 	the 	charging
parties['] 	protected, 	statutory rights, 	and
the 	chilling effect 	CSEA's 	actions have had
on all CSEA members 	[citation]. 	[Par.] 	CSEA
"bled" 	the 	charging parties who have
extremely 	limited 	resources 	compared 	to 	those
controlled by 	the 	respondent.
In response 	to CSEA's 	exception to the ALJ's 	finding of
unlawful 	motivation by CSEA, 	Charging Parties 	note 	that 	CSEA does
not 	fully address 	each of 	the various 	reasons 	the ALJ used as
rationale 	for his 	finding.
DISCUSSION
CSEA's 	Protected 	Conduct 	Exception
The main 	issue 	for this 	Board 	is whether the 	Charging
Parties' 	conduct 	is protected by the Dills Act. 	Dills Act
section 	3515 	plainly guarantees 	employees 	the 	right 	to
"participate" 	in a union, 	and the ALJ correctly 	concluded that
the 	types 	of 	participation at 	issue 	here were protected.
44

Although Dills Act 	section 	3515.53 and PERB precedent4 allow
unions 	to abridge 	that 	right 	in certain cases, 	the ALJ determined
the 	exceptions 	were 	not 	applicable.
As 	evidenced by the 	language 	in the 	complaint, 	Novato
Unified School District 	(1982) 	PERB Decision No. 	210 	(Novato) 	is
the 	standard 	the parties 	would 	expect 	PERB 	to apply and has 	long
been appropriate 	for analyzing 	discrimination allegations. 	Using
the Novato 	standard, 	the ALJ reached a 	result 	supported by 	the
facts 	developed through the hearing. 	After review, 	the Board
finds 	no 	reason to overturn his 	conclusion that 	Charging 	Parties'
conduct was 	protected in 	this 	case.
In his 	dissent, 	Member Caffrey agrees 	that 	the Novato
standard 	is 	appropriate, 	but 	would 	find that 	Charging 	Parties
engaged 	in unprotected 	conduct 	because 	he 	disagrees 	with 	the
Board's and ALJ's 	interpretation of 	Parisot; 	i.e., 	that 	dissident
union member 	activities 	only become 	"unprotected" 	when undertaken
in a decertification effort 	that 	is 	"life 	threatening" 	to 	the
union. 	Instead, 	the dissent expands 	Parisot:
. 	. 	. 	to conclude that protected employee
activities 	which reach the 	level 	of 	seriously
destabilizing the union, 	eroding 	its 	status
3Dills Act section 3515.5 provides, 	in pertinent part, 	that:
. 	. 	. Employee organizations may . 	. 	. make
reasonable provisions 	for the 	dismissal 	of
individuals 	from membership.
4As 	the ALJ noted in 	the proposed decision, 	PERB has
recognized an 	exception 	in 	cases 	of 	official 	decertification
efforts 	(California School 	Employees Association 	(Parisot) 	(1983)
PERB Decision No. 	280 	(Parisot)) 	but no such effort was underway
in this case.
un
	5

as exclusive representative, 	and/or
threatening 	its 	purpose 	of 	representing
employees as an exclusive representative, 	are
no longer protected, 	even 	though a
decertification 	effort 	is 	not 	contemplated,
or has 	not 	yet been undertaken.
The 	dissent 	takes 	the position 	that 	seriously destabilizing
activity 	"would 	justify a 	self-protective 	response 	by 	the 	union"
even 	if 	decertification 	is 	not 	contemplated. 	Based on 	this
standard, 	the dissent 	concludes 	that 	the Charging Parties'
activities 	had 	"a 	serious 	destabilizing 	effect 	on CSEA" 	and 	thus
are not 	protected.
First, 	we note 	that 	the activities 	of 	the Charging Parties
in this 	case were a challenge to the current leadership 	- - 	not
the union 	itself. 	In Parisot 	the Board 	clearly stated 	it 	would
not 	abdicate 	its 	responsibility 	to 	determine whether an employee
organization was 	justified 	in expulsion or discipline 	of members.
[In Kimmett 1 we stated that we will not
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
subsection 3543.1(a) 	to dismiss 	or otherwise
discipline 	its members.
(Emphasis 	added.)
The broad and 	subjective 	standard 	the 	dissent 	attributes 	to
Parisot 	and 	other 	PERB 	decisions 	would 	severely 	limit 	a union
66

member's 	right 	to differ, 	which is 	the sine qua non of 	democratic
participation. 	The 	interpretation 	suggested by 	the 	dissent 	would
confer upon a union's 	leadership 	extraordinary power 	to 	quell
challenges 	and disagreeable 	opinions. 	Such power would
effectively 	transform union 	leadership 	into 	a 	dictatorial 	or
authoritarian 	regime.
Moreover, 	the 	subjectivity of 	the 	standard makes 	it
difficult, 	if not 	impossible, 	for the parties to determine ahead
of 	time 	at what point protected activity reaches 	the 	level 	of
seriously destabilizing 	the 	union 	to permit 	a 	self-protective
response. 	Discipline against 	the 	employee would be permitted
only after 	the 	activity takes place and the union, 	or the Board,
concludes 	the 	activity is 	"destabilizing."
Such a broad, 	subjective approach lends 	itself 	to
unpredictable 	results 	and 	severely 	limits 	opposing views 	of 	union
members. 	There 	is an endless variety of ways 	dissidents 	can
challenge 	an 	incumbent 	union's 	leadership without 	threatening 	the
existence of 	the union itself. 	At what point, 	or level 	of
activity, 	is 	it 	legal 	or illegal 	for the union to take self-
protective 	action?
Under the 	standard established by the Board 	in 	Parisot. 	the
employees' 	activities 	remain protected and the parties 	have a
much 	clearer picture 	of 	when 	they are 	exceeding 	limits.
CSEA's 	Adverse Action 	Exception
The 	Board does 	not 	accept 	CSEA's 	contention 	that 	no harm was
done 	to Charging Parties. 	As 	the ALJ stated, 	it 	is well
77

established 	that 	when a party 	shows 	a 	clear 	intent 	to 	take 	a
disputed action against 	another, 	the 	harm occurs 	at 	that 	time and
not when the wrongful act 	is 	completed. 	The 	filing of written
charges 	and a 	lawsuit 	against 	Charging 	Parties 	evidenced 	such an
intent by CSEA, 	and 	the Board agrees 	with 	the ALJ that 	those
actions 	constituted harm within the meaning 	of Novato. 	since:
A person 	suspended 	from 	[union] 	membership
cannot 	"participate" 	in the activities 	of 	the
Union. 	In terms 	of 	the 	relationship between
an employee 	and an 	employee 	organization,
this 	is 	the greatest possible harm.
[Proposed Decision, 	p. 	28.]
Charging 	Parties' 	Remedy Exception
Charging 	Parties 	support 	the ALJ's 	conclusion but 	they
except 	to 	the ALJ's 	refusal 	to award them attorneys' 	fees
expended 	to 	defend 	the 	claims 	CSEA filed against 	them. 	They
state 	that without 	that 	relief 	they will 	not be made whole.
Although PERB 	has 	the 	authority under Dills Act 	section
3514.5(c) 	to 	"take 	such affirmative 	action 	. . . 	as will
effectuate the policies of 	[the Act]," 	the ALJ thoroughly
considered 	the various 	types 	of 	relief 	sought by Charging
Parties. 	He noted that:
Attorney's 	fees 	and costs 	of 	the 	litigation,
including lost 	time and wages, 	are not
appropriate 	'unless 	there 	is 	a 	showing 	that
the 	respondent's unlawful 	conduct 	has been
repetitive and that 	its 	defenses 	are without
arguable merit.' 	(Modesto City Schools 	and
High School District 	(1985) 	PERB Decision
No. 	518.) 	[Proposed Decision, 	pp. 	34-35.]
The ALJ declined 	to 	order attorney's 	fees 	because 	there was
no 	repetitive pattern of violations 	by CSEA and 	it 	could not 	be
8

said that 	CSEA's 	defense was without arguable merit. 	The Board
defers 	to 	the ALJ's 	judgment 	on whether or not 	attorney's 	fees
would have been an appropriate 	remedy 	in 	this 	case.5 The ALJ
thoroughly discussed 	the various 	types 	of 	relief 	sought 	by
Charging 	Parties 	and 	the 	Board agrees 	with 	the 	remedy ordered.
The 	Board hereby AFFIRMS 	the ALJ's 	proposed decision 	in Case
No. SF-CO-26-S.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in this 	case, 	the Board finds 	that 	the
California State 	Employees Association 	(CSEA) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519.5(b)
by: 	(1) 	Filing written charges, 	on or about June 17, 	1993,
against Cathy R. 	Hackett 	(Hackett), 	Jim Hard 	(Hard), 	Sam Jurado
(Jurado), 	Dave Weston 	(Weston) 	and Doyle Harris 	(Harris) 	seeking
their 	suspension 	from membership 	in CSEA for at 	least 	one year;
(2) 	Naming them in a civil 	lawsuit on or about July 2, 	1993; 	and
(3) 	Filing written charges 	against Hackett and Hard, 	on or about
September 28, 	1993, 	seeking their lifetime suspension from CSEA.
Pursuant to Dills Act section 3514.5(c), 	it is hereby
ORDERED 	that 	CSEA and 	its 	representatives 	shall:
5However, 	the Board takes note of 	the 	fact 	that 	the ALJ did
find three 	types 	of violations were 	committed by CSEA, 	and 	that
Charging 	Parties 	were 	required 	to 	expend 	time 	and money defending
the 	claims 	that 	furnished the basis 	for those violations.
99

A. 	CEASE AND DESIST FROM:
Retaliating against Hackett, 	Hard, 	Jurado, 	Weston and Harris
for 	engaging 	in activities 	protected by 	the 	Dills Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Immediately withdraw the June 17, 	1993, 	charges
against Hackett, 	Hard, 	Jurado, 	Weston and Harris 	that seek their
suspension 	from membership 	in 	CSEA for at 	least 	one 	year.
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 as 	an Appendix hereto,
signed by an authorized agent 	of 	CSEA. 	Such posting 	shall 	be
maintained for a period of thirty 	(3 0) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this 	Notice 	is 	not
reduced in size, 	defaced, 	altered or covered by any 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 his
instructions.
Member Johnson 	joined 	in 	this 	Decision.
Chairman 	Caffrey's 	dissent begins 	on page 	11.
10

CAFFREY, 	Chairman, 	dissenting: 	The California State
Employees Association 	(CSEA) 	did not 	retaliate against 	Cathy
Hackett 	(Hackett), 	Jim Hard 	(Hard), 	Sam Jurado, 	Dave Weston and
Doyle Harris 	(Charging Parties) 	because 	of 	their exercise 	of
protected rights 	in violation of 	section 3519.5(b) 	of 	the Ralph
C. 	Dills Act 	(Dills 	Act).1 Therefore, 	I would reverse 	the
proposed decision 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	administrative 	law judge 	(ALJ) 	and dismiss 	the unfair
practice 	charge and complaint 	in Case No. 	SF-CO-26-S.
BACKGROUND
I 	find 	it 	necessary 	to describe 	the 	factual 	background 	of
this 	case because 	facts 	which are key 	to 	the 	resolution of 	the
issues 	here 	have been overlooked 	in both 	the majority 	opinion and
the 	factual 	summary 	included 	in 	the ALJ's 	proposed decision.
The unfair practice 	charge 	in this 	case alleges 	that 	three
specific 	actions 	were 	taken by CSEA against 	Charging 	Parties 	in
unlawful 	retaliation 	for 	their protected 	conduct. 	These 	actions
stem 	from 	incidents 	which 	resulted 	from the 	difficult 	and
protracted 	1991-92 	bargaining 	cycle between CSEA and 	the 	State 	of
1Section 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.
11

California. 	During that period, 	Hackett was 	the 	chair of 	CSEA's
bargaining 	team for 	State 	Bargaining Unit 	1. 	The 	remaining
Charging 	Parties 	were either members 	or alternate members 	of 	the
CSEA Unit 	1 	bargaining 	team.
In the 	spring of 	1992, 	after a year of acrimonious
bargaining, 	the 	state employer proposed a 	temporary reduction of
employee wages, 	offset by an additional 	personal 	leave 	credit
program. 	Several 	bargaining units 	represented by 	CSEA eventually
agreed 	to 	the proposal 	at 	the bargaining 	table. 	Charging
Parties, 	however, 	felt 	strongly that 	the 	state's proposal was not
in the best 	interests of Unit 	1 	and CSEA members, 	and rejected
the proposal 	at 	the bargaining 	table. 	Charging 	Parties 	then
commenced an 	effort 	to 	convince 	employees 	in Unit 	1 	and other
CSEA-represented bargaining units 	to 	join 	in 	their 	rejection 	of
the 	state's 	proposal. 	They met with CSEA job 	stewards 	and
employees 	and prepared at 	least 	two 	leaflets 	attacking 	the 	state
proposal, 	which they distributed at 	state buildings 	in May and
June of 	1992. 	The 	leaflets 	criticized the 	state proposal 	and
announced meetings 	for 	"all 	interested Union members."
Despite 	the 	continued opposition of 	the Unit 	1 bargaining
team, 	CSEA leadership became 	convinced that 	the 	State's proposal
was 	the 	best 	that 	could be 	achieved and 	favored 	its 	acceptance.
This 	divergence 	of views 	created the anomalous 	situation 	in 	late
May of 	1992 	in which Unit 	1 	leaders were 	opposing 	ratification of
the 	tentative 	agreements 	which were 	supported by 	CSEA leadership.
12

CSEA leadership moved 	to 	end 	this 	conflict 	in 	early June by
directing 	the members 	of 	the Unit 	1 bargaining 	team to halt 	their
efforts 	to 	discourage 	ratification 	in 	the 	CSEA units 	then
considering 	the proposal. 	CSEA based 	its 	order on bargaining
ground rules between the union and 	the 	state, 	which required the
union and 	its 	staff 	to 	recommend 	that 	the membership 	accept 	the
tentative 	agreements.
Ignoring 	the 	requests 	of 	CSEA, 	Charging 	Parties 	persisted 	in
their opposition to 	the 	tentative agreements. 	Consequently, 	CSEA
suspended 	Charging 	Parties 	in June 	1992 	and 	replaced 	them on 	the
Unit 	1 bargaining team. 	In the 	letter of 	suspension, 	CSEA
President 	Yolanda 	Solari 	indicated 	that 	the 	action was 	being
taken 	"because 	in my opinion as 	President 	of 	CSEA, 	your actions
pose 	an 	immediate 	threat 	to 	the welfare 	of 	the Association." 	The
suspension prohibited 	Charging 	Parties 	from holding 	any 	CSEA
office 	for 	one 	year.2 The 	state 	employer's 	bargaining proposal
was 	accepted and 	subsequently 	ratified by 	the membership 	of
Unit 	l.
CSEA's 	June 	1992 	letter 	suspending 	Charging 	Parties 	included
a 	directive 	that 	they 	return all 	CSEA materials 	and 	equipment
which 	they had 	in 	their possession. 	Specifically 	requested were
membership 	lists 	and 	employee 	rosters. 	CSEA representative
Barbara Wilson 	(Wilson) 	testified 	that 	the primary 	reason the
CSEA leadership wanted 	the 	documents 	returned was 	for 	"self-
2Charging 	Parties 	unsuccessfully 	challenged 	this 	suspension
in California State Employees Association 	(Hackett, 	et al.)
(1993) 	PERB Decision No. 	979-S 	(Hackett I ) .
13

preservation." 	The member/non-member 	list 	contained the 	names 	of
each member and non-member, 	member home 	addresses 	and 	telephone
numbers, 	and records 	of 	activity within CSEA. 	Wilson testified
that 	such a document 	would be 	of 	great 	assistance 	to any group
trying 	to 	defeat 	ratification of 	the 	agreement 	reached between
CSEA and 	the 	state.
Charging 	Parties 	contested 	their 	suspensions 	through CSEA's
internal 	appeal 	procedures, 	but 	the 	suspension was 	sustained by
CSEA's highest body, 	the General Council, 	in October 1992.3
After 	CSEA and 	the 	state 	reached 	agreement 	on 	a 	collective
bargaining agreement 	for Unit 	1, 	Charging Parties, 	in June 	1992
following 	their 	suspension, 	joined with others 	to 	form an
organization called the 	Caucus 	for a Democratic Union 	(CDU).
Charging 	Parties 	have maintained a 	high profile 	in 	CDU,
describing 	themselves 	in 	their 	filings 	with 	PERB 	as 	"founding
members 	of 	the 	caucus" 	and 	"active and prominent members 	of 	CDU."
CDU produced a newsletter, 	The Union Spark, 	beginning 	in
June 	1992. 	The 	first 	edition of 	The Union Spark 	indicated 	that
CDU was 	formed 	in 	response 	to 	CSEA's 	"inability 	to mobilize
members 	to 	take 	action to 	improve 	and protect 	their rights." 	"It
is 	time 	for a 	change" 	the newsletter announced, 	and 	"members 	need
to 	take 	back 	their union and hold 	the 	union accountable." 	The
Union 	Spark was 	harshly 	critical 	of 	the 	way 	in which 	CSEA had
3These 	actions 	were 	unsuccessfully 	challenged by Hackett 	in
California State Employees Association 	(Hackett) 	(1993) 	PERB
Decision No. 	1012-S.
14

represented members 	in 	contract 	negotiations with 	the 	state
employer.
CDU actively 	solicited 	CSEA members 	to become 	CDU members,
and 	continued 	to be 	harshly 	critical 	of 	CSEA and 	the 	way 	in which
members were being represented. 	In August 	1992, 	The Union Spark
published a 	"Declaration 	of 	Reform" 	which 	indicated 	that 	CDU
sought 	to 	change 	CSEA from within. 	A CDU membership application
was 	included, 	seeking 	$25 	for a one year CDU membership and
subscription to The Union Spark. 	The Union Spark again urged
CSEA members 	to 	"take back 	their union" 	and 	encouraged 	them 	"to
fight 	our employers 	and CSEA" 	in order 	to protect 	their rights.
A number 	of 	CSEA job 	stewards 	and activists 	became members 	of
CDU.
CDU 	scheduled quarterly meetings 	at 	the 	same 	time 	and place
as 	CSEA's 	quarterly 	civil 	service division council 	meetings.
Charging 	Parties 	attempted 	to meet 	with 	CSEA stewards 	and 	other
elected 	CSEA officers 	to 	talk about 	the 	need 	for 	reform of 	CSEA.
They 	distributed The 	Union 	Spark at 	CSEA 	civil 	service 	division
council meetings. 	They 	solicited supporters 	for 	their campaign
to 	change 	CSEA's 	election procedures 	and encouraged 	employees 	to
join 	CDU while 	remaining members 	of 	CSEA 	in 	order 	to work 	for
change 	from within 	the union.
CSEA leadership was 	fully aware 	of 	the 	activities 	of 	CDU and
Charging 	Parties within 	it. 	CSEA regarded CDU as 	a 	challenge 	to
its authority, 	a disruptive 	influence, 	and a forerunner to a
probable 	decertification effort. 	In November 	1992 	CSEA demanded
15

that Hackett, 	as a principal 	officer of CDU, 	cease and desist
from all 	unauthorized use 	of 	CSEA's 	name 	and/or 	logo. 	CDU
activity 	continued, 	however, 	as 	did publication of The Union
Spark. 	subsequent 	editions 	of which 	included the 	disclaimer:
"CDU 	is 	not 	approved, 	sanctioned or 	controlled by CSEA/SEIU
Local 1000."
Among 	CDU's 	activities 	was 	the announcement 	in the March
1993 	edition of 	The Union Spark of 	the 	formation of 	a Steward's
Council. 	The 	Council's purpose was 	to provide 	training to CSEA
stewards, 	which CDU characterized as 	inadequate. 	The CDU-
sponsored 	steward 	training 	was 	intended 	to 	cover 	subjects 	such 	as
"How to Conduct 	Interviews," 	"How to 	File Charges" 	and 	"How to
File Unfair Labor 	Practices."
The March 	1993 	edition of 	The Union Spark also announced 	the
formation of, 	and solicited contributions 	to, 	the 	CDU Legal
Defense 	Fund, 	which was needed because:
Sometimes 	it 	is necessary to 	take unions 	to
court 	when 	they 	refuse 	to 	follow 	their 	own
rules 	and abuse 	their power, 	leaving members
without 	fair 	representation.
Because 	of 	CSEA's 	continued 	concern over 	the 	disruptive
impact 	CDU was 	having, 	and 	its view that 	CDU might 	attempt 	to
decertify CSEA, 	in May 	1993 	the 	CSEA Board of Directors 	adopted
the 	following 	resolution:
(a) 	That 	the 	President 	direct 	the General
Manager 	to 	investigate 	and 	take 	whatever
steps 	are necessary, 	including seeking
outside legal assistance, 	to bring
disciplinary action 	or 	lawsuit 	against 	any
member whose 	activities 	could 	adversely
affect CSEA; 	and, 	further,
16

(b) 	That 	the Board of Directors delegates 	to
the 	Executive 	Committee 	the 	full 	authority 	to
act 	upon 	the 	recommendations 	of 	staff 	and 	to
take whatever action is 	deemed necessary, 	and
report 	that 	action back 	to 	the 	board at 	its
next 	meeting.
In June 	1993, 	a CSEA labor relations 	representative
represented a 	state 	employee 	in an adverse 	action. 	A tentative
settlement 	agreement 	negotiated by 	CSEA 	involving 	the 	transfer 	of
the 	employee was 	withdrawn by the 	employer when a 	CDU leaflet 	was^
distributed at 	the 	employee's 	work 	site which was 	highly 	critical
of 	the 	employee's 	supervisor. 	The 	leaflet urged employees 	to
contact 	CDU with 	regard 	to 	concerns 	over working 	conditions. 	As
a 	result 	of 	this 	type 	of 	activity, 	CSEA believed that 	CDU was
interfering with 	its 	representation 	of 	state 	employees.
On June 	17, 	1993, 	CSEA advised Charging Parties 	that written
charges 	had been 	filed 	against 	them by 	CSEA 	representative
Wilson, 	alleging violations 	of various 	sections 	of 	CSEA's
internal 	policies 	for 	failure 	to 	return CSEA documents 	as
instructed at 	the 	time of 	the June 	1992 	suspension. 	(This 	is 	the
first 	of 	the 	three 	specific 	actions 	which 	form the basis 	of 	the
instant 	unfair practice 	charge.) 	The 	charges 	sought 	the
suspension of 	Charging Parties 	from any office 	in CSEA for a
second year.
On July 1, 	1993, 	CSEA published the CSEA Update with a
headline 	"The 	Spark Arrestor." 	The 	newsletter was 	CSEA's
response 	to 	The 	Union Spark and was 	"dedicated 	to keeping 	the
union 	from being 	blown up 	from within." 	The 	newsletter 	disputed
many of 	the 	allegations 	and 	statements 	contained 	in The 	Union
17

Spark, 	and asserted 	that 	a 	small 	group 	of 	CDU dissidents 	was-
"diverting our attention from the 	real 	issues 	facing us" 	and
"undermining 	the 	union."
On July 2, 	1993, 	CSEA filed a 	lawsuit against Hackett 	and
the 	other Charging 	Parties. 	(This 	is 	the 	second of 	the 	three
specific 	actions 	under attack here.) 	The 	lawsuit 	alleged 	that
Charging 	Parties 	were wrongfully 	in possession 	of 	certain
specified 	CSEA documents, 	and 	that 	Charging 	Parties 	had 	refused
to 	return the documents 	despite CSEA's 	specific 	requests. 	CSEA
sought 	return 	of 	the 	documents 	and 	compensatory and punitive
damages. 	CSEA withdrew the 	lawsuit 	in March 1994 	because 	some 	of
the 	documents 	had been returned 	to 	CSEA, 	and CSEA could not 	prove
that 	Charging 	Parties 	still 	possessed 	the 	remainder.
In the July 1993 	edition of 	The Union Spark. 	CDU announced
the 	formation of 	"a 	fair representation committee" 	out 	of 	concern
for 	"the many members 	who have been abused by 	their 	employers 	or
by 	the 	union and who 	have 	not 	received 	fair 	representation."
Members 	who 	felt 	they 	had 	not 	received 	fair 	representation 	from
CSEA were 	invited 	to 	contact 	CDU.
At 	a 	September 	1993 	meeting 	of 	the 	CSEA civil 	service
division 	council, 	members 	adopted a 	resolution seeking action
against 	The Union Spark. 	The 	resolution declared 	the publication
"contrary to the goals and objectives" 	of 	the 	civil 	service
division and asked 	the 	Board 	of 	Directors 	"to 	take 	appropriate
action against 	those 	responsible."
18

On September 28, 	1993, 	Hackett and Hard were notified that
charges 	had been 	filed against 	them by 	four 	CSEA members. 	(This
is 	the 	third 	of 	the 	three 	specific 	actions under attack here.)
The 	charges 	accused Hackett 	and Hard 	of 	distributing The Union
Spark, 	and disrupting a CSEA civil 	service 	division meeting 	of
September 	17 	through 	19. 	The 	complaint 	requested 	"permanent
suspension of membership." 	On November 29, 	1993, 	the complaining
parties 	withdrew 	their accusations 	and 	the 	proceedings 	were
dismissed 	by 	CSEA.
DISCUSSION
The 	Board must 	determine 	in 	this 	case 	whether 	the 	actions
taken by 	CSEA against 	Charging 	Parties 	constitute 	discrimination
or 	retaliation against 	them for 	their 	exercise 	of 	protected
rights 	in violation of Dills Act 	section 3519.5(b).
State 	employees 	have 	the 	right 	to participate 	in the
activities 	of 	employee organizations 	for 	the purpose 	of
representation 	on matters 	of 	employer-employee 	relations 	(Dills
Act 	section 3515). 	However, 	the Board has not 	interpreted the
Dills 	Act 	as 	protecting 	all 	participation 	in employee
organization activities, 	or as 	providing 	PERB with unlimited
authority 	to 	review the 	internal 	affairs 	of 	employee
organizations. 	In Service 	Employees 	International Union.
Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106 	(Kimmett). 	the
Board 	examined 	the 	identical 	right 	provided under 	the 	Educational
Employment Relations Act 	(EERA)4 to determine if 	employees have
4EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
- -
19

any protected 	right 	"to 	have 	an 	employee 	organization 	structured
or 	operated 	in any particular way." 	The Board 	stated:
The 	EERA gives 	employees 	the 	right 	to 	'join
and participate 	in activities 	of 	employee
organizations' 	(sec. 	3543)[5] and employee
organizations 	are 	prevented 	from 	interfering
with employees 	because 	of 	the 	exercise 	of
their rights (sec. 3543 . 6 (b) ) .[6] 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, 	[Fn. 	omitted]
which 	regulates 	certain 	internal 	conduct 	of
unions 	operating 	in the private 	sector. 	The
EERA does 	not 	describe 	the 	internal 	workings
or 	structure 	of 	employee 	organizations 	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 and 	its members.
In Kimmett. 	the Board concluded 	that under 	the 	statute 	employees
have 	no protected 	rights 	in 	the 	organization of 	their exclusive
representative unless 	the 	internal 	activities 	of 	the 	employee
5Dills Act 	section 3515 	gives 	state 	employees 	the 	same
right.
6Dills Act 	section 3519.5(b) 	is 	identical 	to EERA
section 3543.6(b).
20

organization have a 	substantial 	impact 	on the 	employees'
relationship with 	their 	employer.
However, 	the Board 	subsequently held that 	it 	is 	appropriate
to 	review 	internal 	union activities 	when allegations 	of
retaliation against 	employees 	for protected 	activity are
involved. 	(California State 	Employees' 	Association 	(O'Connell)
(1989) 	PERB Decision No. 	753-H.) 	In California Union of 	Safety
Employees 	(Coelho) 	(1994) 	PERB Decision No. 	1032-S 	(CAUSE
(Coelho)), 	the Board stated:
. 	. 	. 	any alleged employee organization
discrimination 	or 	retaliation 	against
employees 	because 	of 	their protected activity
is 	within 	the 	Board's 	statutory authority 	to
review to determine 	if 	a violation has
occurred. 	[Citation.]
In these 	cases, 	the Board applies 	the 	test 	it 	established in
Novato Unified School District 	(1982) 	PERB Decision No. 	210)
(Novato) 	to determine 	if unlawful 	retaliation has 	occurred.
Under 	the Novato 	test, 	Charging Parties must demonstrate 	that
they engaged 	in protected activity, 	that 	CSEA was 	aware 	of 	their
protected activity and 	took adverse 	action against 	them, 	and 	that
CSEA's 	adverse 	action 	against 	them was 	motivated by 	Charging
Parties' 	protected activity.
In applying 	the Novato 	test, 	the ALJ noted that 	the most
critical 	question 	in this 	case 	is 	whether Charging 	Parties 	were
engaged 	in protected activity. 	I 	agree with the ALJ's 	assessment
of 	the key issue presented by this 	case. 	However, 	I 	reach a
different 	result 	than 	that 	reached by 	the ALJ and 	the majority 	in
considering 	it.
21

While 	the Dills Act provides 	to 	employees 	the 	right 	to 	join
and participate 	in 	employee 	organizations 	for 	the purpose 	of
representation on matters 	of 	employer-employee 	relations, 	and
protects 	them 	from retaliation 	for 	exercising protected 	rights,
it 	also provides 	employee 	organizations 	with the 	right 	to
restrict 	employees 	from joining and participating. 	Dills Act
section 3515.5 	states, 	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.
In discussing 	the 	identical 	EERA provision, 	the 	Board 	in
California 	School 	Employees Association and 	its 	Shasta 	College
Chapter #381 	(Parisot) 	(1983) 	PERB Decision No. 	280 	(CSEA
(Parisot)) 	concluded 	that 	a provision which sanctions 	the
dismissal 	of 	individuals 	from membership must 	also 	allow
suspension from membership, 	a 	lesser 	form of discipline. 	The
Board 	stated:
The 	right 	to 	represent 	employees 	as 	an
exclusive 	representative 	is 	an essential
objective 	and purpose 	of 	a 	labor
organization. 	[Citation.] 	An act by its 	own
members 	which 	is 	directed against 	this
purpose 	threatens 	the very existence 	of 	the
organization and 	is 	of 	sufficient 	seriousness
to 	justify a 	self-protective 	response.
[Citations.]
The 	Board 	further 	stated:
A member has 	an 	inherent 	obligation 	to 	his
organization to be loyal, 	and for him to
engage 	in conduct, 	such as a decertification
drive, 	which attempts 	to thwart 	the
fundamental 	objectives 	of 	that 	organization
is a breach of his duty.
22

In California Union of 	Safety Employees 	(John) 	(1994) 	PERB
Decision No. 	1064-S 	(CAUSE 	(John) ) . 	the Board noted that the
exclusive 	representative's 	right 	to 	self-protection 	is 	based 	on a
policy 	supporting 	"the union's 	ability 	to 	eliminate 	further
internal 	attempts 	to destabilize 	the union." 	In that 	case, 	the
Board 	concluded 	that 	mere membership 	in a 	rival 	employee
organization was 	insufficient 	to 	justify a 	self-protective
response 	by 	the union against 	the 	employee.
An 	employee 	organization's 	right 	to protect 	itself 	against
actions 	which 	threaten 	its 	status 	as 	exclusive 	representative 	has
also been 	recognized 	in 	cases 	considered by 	the National 	Labor
Relations 	Board 	(NLRB). 	An attack on the 	organization's position
as 	exclusive 	representative 	is 	"in a very 	real 	sense an attack on
the very existence 	of 	the union." 	(Price v. 	NLRB 	(9th Cir. 	1967)
373 F.2d 443 	[64 LRRM 2495, 	2496], 	cert. 	den. 	(1968) 	392 U.S. 	904
[20 	L.Ed.2d 1363].) 	Moreover, 	if 	employees 	opposed to the
representation being 	provided 	by 	the 	exclusive 	representative
have 	the 	right 	to 	insist 	on continued membership 	in the union, 	it
would 	render meaningless 	the union's 	right 	to determine 	the
qualifications of membership. 	(Machine Stone Workers. 	Local 	89
(1982) 	265 NLRB 496 	[111 	LRRM 1609].) 	As 	the United States
Supreme Court 	recognized in NLRB v. 	Allis-Chalmers Mfg. 	Co.
(1967) 	388 U.S. 	175, 	180-181 	[65 LRRM 2449], 	the union's right to
protect 	itself 	against 	the 	erosion of 	its 	status 	as 	exclusive
representative 	is 	an 	integral 	component 	of 	national 	labor policy.
23

As 	these 	cases 	indicate, 	the protected right 	of 	employees 	to
join and participate 	in employee 	organizations 	for 	the purpose 	of
representation on matters 	of 	employer-employee 	relations 	is 	not
without 	limits. 	The ALJ and the majority 	interpret 	the Board's
decision 	in CSEA 	(Parisot) 	narrowly, 	concluding that 	in order to
become 	"life-threatening" 	to 	the 	employee 	organization and
"unprotected," 	an employee's 	activities must 	reach 	the 	level 	of 	a
decertification effort. 	I disagree. 	I 	interpret 	CSEA 	(Parisot)
and 	the 	other 	cited 	cases 	to 	conclude 	that protected 	employee
activities 	which 	reach the 	level 	of 	seriously destabilizing 	the
union, 	eroding 	its 	status as exclusive 	representative, 	and/or
threatening 	its 	purpose 	of 	representing 	employees 	as 	an 	exclusive
representative, 	are no longer protected, 	even if a
decertification effort 	is 	not 	contemplated, 	or has 	not yet been
undertaken. 	Furthermore, 	these activities 	justify a self-
protective 	response 	by 	the union.
In this 	case, 	therefore, 	the activities of Charging Parties
were not 	protected by the Dills Act 	if 	they reached the 	level 	of
seriously destabilizing CSEA, 	eroding 	its 	status, 	and/or
threatening 	its 	essential 	purpose 	of 	representing 	employees 	as
their exclusive 	representative. 	If 	the activities 	of 	Charging
Parties 	are 	determined to have 	reached this 	level, 	a self-
protective 	response 	by 	CSEA was 	justified.
The 	facts 	of 	this 	case 	establish 	that 	a 	conflict between
Charging 	Parties 	and 	CSEA arose 	initially 	during 	the 	final 	stages
of 	a difficult 	round of bargaining with the 	state 	employer.
24

CSEA, 	which represents multiple state bargaining units, 	had
reached agreement 	with 	the 	state 	employer on the 	final 	key
bargaining 	issues. 	Charging Parties, 	as members 	of 	the Unit 	1
bargaining 	team, 	not 	only 	rejected 	the 	final proposal 	at 	the
bargaining table, 	but, 	ignoring CSEA's 	requests 	to the 	contrary,
actively 	campaigned 	against 	ratification 	of 	the 	tentative
agreements 	in other bargaining units. 	Charging 	Parties
distributed 	leaflets 	attacking 	the 	state 	proposal 	and
independently 	called meetings 	for 	"all 	interested Union members."
This 	conduct 	was 	contrary 	to 	ground 	rules 	between 	CSEA and 	the
state 	employer, 	which required CSEA to 	recommend that 	the
membership accept 	the 	tentative agreement, 	and led to 	the
original 	suspension of 	Charging 	Parties 	by CSEA. 	As 	noted above,
the 	Board affirmed 	the dismissal 	of 	Charging 	Parties' 	unfair
practice 	charge 	which 	challenged 	their 	suspensions.
Following 	their 	suspension, 	Charging 	Parties 	formed 	CDU with
the 	stated goal 	of 	"taking back" 	the union and reforming 	it
internally, 	and began 	to actively solicit 	CSEA members 	to 	join
CDU. 	CDU was harsh 	in its 	criticism of 	CSEA, 	and challenged the
fairness 	and 	effectiveness 	of 	CSEA's 	representation 	of 	employees
with the 	state 	employer. 	In the August 	1992 Union Spark, 	CDU
stated that 	"we 	have 	to 	fight 	our employers 	and CSEA if 	we want
to protect 	our rights."
An 	effort 	to 	reform a union 	from within, 	by organizing
members, 	criticizing the union and urging members 	to pursue 	an
agenda to 	"take back" 	their union, 	does 	not 	in and of 	itself
25

seriously destabilize 	the 	union 	or 	erode 	the 	exclusive
representative's 	status. 	But 	the actions 	of 	Charging Parties
here went 	far beyond this 	type 	of 	activity.
Under 	the 	leadership 	of 	Charging 	Parties, 	CDU announced 	the
formation of 	a Steward's 	Council. 	CDU indicated that 	it 	intended
to use 	this 	forum to 	"train" 	CSEA job 	stewards. 	CDU formed a
Legal 	Defense 	Fund, 	specifically 	for the purpose 	of 	taking 	CSEA
to 	court 	to 	challenge 	its 	representation of members. 	CDU
competed with 	CSEA 	for 	the 	representation 	of 	individual
employees, 	and urged employees 	to contact 	CDU to discuss 	concerns
with working 	conditions. 	CDU 	formed a 	"fair 	representation
committee," 	inviting members 	who believed 	they had not 	received
adequate 	or 	fair 	representation 	from CSEA to 	contact 	CDU.
The 	exclusive 	representative's 	right 	to 	self-protection 	is
based 	on 	a policy 	supporting 	the 	union's 	ability 	to 	eliminate
further 	internal 	activities 	which 	seriously 	destabilize 	the 	union
or erode 	its 	status 	as 	exclusive 	representative. 	Establishing a
CDU training 	course 	for CSEA job 	stewards, 	creating a Legal
Defense 	Fund 	in order 	to 	file 	legal 	challenges 	against 	CSEA and
its 	representation of 	employees, 	actively competing with CSEA for
the 	representation of 	employees, 	and forming a CDU fair
representation 	committee 	to provide 	to 	CSEA members 	an
alternative 	to 	CSEA representation, 	are actions 	which directly
challenge 	CSEA's 	purpose 	as 	exclusive 	representative 	to 	represent
state 	employees. 	Presented 	in a 	context 	in which Charging
Parties, 	as active and prominent members 	of CDU, 	are urging CSEA
26

members 	to 	join 	CDU because 	they must 	fight 	their union 	to
protect 	their rights, 	these activities 	clearly rise 	to 	the 	level
at 	which 	they have 	a 	serious 	destabilizing effect 	on CSEA. 	These
activities 	erode 	CSEA's 	status 	and 	constitute 	a 	threat 	to 	CSEA's
right 	and purpose 	to 	represent 	employees 	as 	their exclusive
representative. 	Therefore, 	these activities are not protected by
the Dills Act, 	and a 	self-protective 	response 	from CSEA is
justified.
Accordingly, 	I 	conclude 	that 	Charging 	Parties have not
demonstrated 	that 	they were 	engaged 	in protected activity, 	as 	is
required by 	the 	first 	element 	of 	the Board's Novato 	test.
Therefore, 	I would 	reverse 	the proposed decision of 	the ALJ and
dismiss 	the unfair practice 	charge.
Furthermore, 	in my view, 	this 	case presents another
important 	issue 	which 	should be 	addressed by the 	Board. 	That
issue 	is 	the 	extent 	to which PERB has 	the 	statutory authority to
review the 	internal 	activities 	of 	employee 	organizations.
In recent 	cases, 	the Board has 	reiterated that 	there are
limits 	on 	its 	statutory authority 	to 	intervene 	in matters
involving 	the 	solely 	internal 	activities 	or 	relationships 	of 	an
employee 	organization which do 	not 	impact 	employer-employee
relations. 	In Hackett 	I, 	as noted above, 	the Board dismissed an
earlier 	charge 	filed by Charging 	Parties. 	In rejecting 	the
request 	for 	reconsideration of 	that 	decision 	filed by Hackett,
the 	Board 	specifically referred 	to a portion of 	the 	charge
challenging 	CSEA's 	internal 	discipline procedures 	as 	"an area
27

into which 	the 	Board will 	not 	intervene 	except 	where 	the 	internal
activities 	of 	the 	employee 	organization have a 	substantial 	impact
upon employees' 	relationships with 	their employer." 	(California
State Employees Association 	(Hackett) 	(1993) 	PERB Decision
No. 	979a-S.) 	Similarly, 	in California State Employees
Association 	(Garcia) 	(1993) 	PERB Decision No. 	1014-S 	(CSEA
(Garcia)). 	the Board affirmed a Board agent's dismissal 	of
charges 	relating 	to 	alleged union 	election 	irregularities 	and
union discipline procedures 	because 	there was 	no 	showing 	of 	a
substantial 	impact 	on the 	charging party's 	relationship with her
employer.7
Conversely, 	in 	cases 	in which the Board has 	intervened in
the 	internal 	actions 	of 	a union and 	found evidence 	of 	an unlawful
retaliation against 	its 	members 	for 	their protected activities,
the 	conduct 	has 	involved 	the 	employment 	relationship, 	and not
solely internal union activities 	or relations. 	In CAUSE
(Coelho). 	the Board found a violation in the union's 	retaliatory
filing with 	the 	employer 	of 	a 	citizen's 	complaint 	against 	an
employee, 	and 	in its 	subsequent 	refusal 	to represent 	the 	employee
in 	the 	resulting 	investigation 	conducted by 	the 	employer. 	The
union's 	conduct 	directly 	impacted 	the 	employee's 	relationship
with his 	employer and was 	beyond 	the 	solely 	internal 	relationship
7The 	Board 	in CSEA 	(Garcia) 	reversed the Board agent's
dismissal 	and 	ordered 	issuance 	of 	a 	complaint 	based on 	the 	sole
allegation 	in 	the 	charge 	that 	the 	union 	retaliated against 	the
employee 	because 	she 	had 	filed an unfair practice 	charge with
PERB against 	the union. 	This matter 	clearly is beyond a 	solely
internal 	union activity.
28

of 	the employee and union. 	In CAUSE 	(John). 	the Board found a
violation 	in 	the union's 	retaliatory 	refusal 	to provide
representation 	to a member 	in his 	appeal 	to 	the 	State 	Personnel
Board of 	the 	employer's 	adverse 	action against 	him. 	Again,
actions .beyond 	the 	solely 	internal 	relationship 	of 	the 	employee
and the 	union were 	involved.
The 	approach 	taken by 	the 	Board 	in 	these 	recent 	cases 	is 	the
appropriate 	one. 	Dills Act 	section 3515 	provides 	employees with
the 	right 	to participate 	in 	the 	activities 	of 	employee
organizations 	"for 	the purpose 	of 	representation on all 	matters
of 	employer-employee 	relations." 	(Emphasis 	added.) 	As 	noted by
the Board 	in Kimmett, 	this 	section 	should not be 	read to protect
any 	and 	all 	employee 	participation 	in 	employee 	organization
activities. 	The 	Kimmett 	Board determined 	that 	the 	solely
internal 	relationship between a union and 	its members, 	which does
not 	involve 	employer-employee 	relations, 	was not 	intended by the
Legislature 	to be 	regulated by PERB under this 	section. 	Instead,
the 	Board held 	that 	there must 	be 	a 	showing 	of 	substantial 	impact
on 	employer-employee 	relations 	before 	the participation 	in 	the
employee 	organization becomes 	protected.
In this 	case, 	there has been no demonstration by Charging
Parties, 	and no 	finding by the majority or the ALJ, 	that 	Charging
Parties' 	participation in the 	employee 	organization had any
impact, 	substantial 	or otherwise, 	on their relationship with
their employer. 	Instead, 	it appears 	that 	the activities 	of
Charging Parties, 	and CSEA's actions 	in response to those
-
29

activities, 	relate largely, 	if not solely, 	to their internal
relationships 	within 	the 	employee 	organization.
By not 	considering the extent, 	if any, 	to which the
activities 	of 	Charging 	Parties 	impact 	on 	employer-employee
relations, 	the Board majority suggests 	that 	any and all 	employee
organization participation by 	employees 	is 	protected by 	the 	Dills
Act. 	I 	wish to state 	clearly that 	I do not 	subscribe 	to 	that
view. 	Instead, 	I believe 	the Board should have a 	clear policy of
not 	interjecting 	itself 	into 	internal 	employee 	organization
matters 	which have 	no 	impact 	on 	the 	employer-employee
relationship and, 	thereby, 	heed the guidance of 	the Kimmett 	Board
which 	stated:
. 	. 	. 	the Board finds such intervention in
union affairs 	to be 	beyond 	the 	legislative
intent 	in enacting 	the 	EERA.
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. 	SF-CO-26-S,
Cathy R. 	Hackett, 	et al. 	v. 	California State Employees
Association, 	in which all 	parties 	had the 	right 	to participate,
it 	has 	been 	found 	that 	the 	California 	State 	Employees 	Association
(CSEA) 	violated the Ralph C. 	Dills 	Act 	(Dills Act), 	Government
Code section 3519.5(b) 	by: 	(1) 	Filing written charges, 	on or
about June 17, 	1993, 	against Cathy R. 	Hackett 	(Hackett), 	Jim Hard
(Hard), 	Sam Jurado 	(Jurado), 	Dave Weston 	(Weston) 	and Doyle
Harris 	(Harris) 	seeking 	their 	suspension 	from membership 	in 	CSEA
for at 	least 	one year; 	(2) 	Naming 	them in a 	civil 	lawsuit 	on or
about July 2, 	1993; 	and 	(3) 	Filing written charges against
Hackett 	and Hard, 	on or about 	September 28, 	1993, 	seeking their
lifetime 	suspension 	from 	CSEA.
As 	a 	result 	of 	this 	conduct, 	we 	have been ordered to post
this 	notice 	and we 	will:
A. 	CEASE AND DESIST 	FROM:
Retaliating against Hackett, 	Hard, 	Jurado, 	Weston and
Harris 	for 	engaging 	in activities 	protected by 	the 	Dills 	Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE DILLS ACT:
1. 	Immediately withdraw the June 	17, 	1993, 	charges
against 	Hackett, 	Hard, 	Jurado, 	Weston and Harris 	that 	seek their
suspension 	from membership 	in 	CSEA 	for at 	least 	one 	year.
Dated: 	CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION
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.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CATHY R. 	HACKETT, 	et al.,
Charging 	Parties,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Unfair 	Practice
Case No. 	SF-CO-26-S
PROPOSED 	DECISION
(6/21/94)
Appearances: 	Cathy R. 	Hackett and Jim Hard, 	in pro per; 	Darrell
Steinberg, 	Esq., 	for the California State Employees Association.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The 	former members 	of 	a union bargaining 	committee 	contend
here 	that 	the union has 	taken a 	series 	of 	discriminatory actions
against 	them in retaliation 	for various protected acts. 	They
seek 	to 	have 	the union blocked 	from 	further actions 	against 	them.
The union replies 	that 	it 	committed no unlawful 	acts 	and that 	the
charging parties 	are 	seeking 	to 	re-litigate 	here matters 	already
resolved 	in other proceedings.
The unfair practice 	charge which gave 	rise 	to 	this 	action
was 	filed on July 2, 	1993, 	against 	the California State Employees
Association 	(CSEA or Union) 	by Cathy Hackett, 	Jim Hard, 	Sam
Jurado, 	Dave Weston and Doyle Harris.1 The general 	counsel 	of
1This charge 	is 	one 	of 	four 	filed against 	CSEA in which
Ms. 	Hackett was 	either the 	lone 	charging party or the 	first-named
party. 	The other charges, 	S-CO-147-S, 	S-CO-151-S 	and S-CO-153-S,
were all 	dismissed by the Office 	of 	the General 	Counsel 	of 	the
Public Employment Relations Board. 	Ms. 	Hackett appealed the
dismissals 	of 	S-CO-147-S 	and 	S-CO-153-S 	but 	the 	dismissals 	were
upheld by 	the 	Board 	in California 	State 	Employees 	Association
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.
)
)
)
)
)
)
)
)
)
)
____________ )

the 	Public 	Employment Relations 	Board 	(PERB or Board) 	followed on
August 20, 	1993, 	with a complaint against 	the Union. 	The Union
answered the complaint on September 13, 	1993, 	admitting the
primary 	factual 	allegations 	but 	denying 	that 	it 	had 	committed an
unfair practice. 	Ms. 	Hackett 	filed a 	first 	amended charge on
October 22, 	1993. 	A first amended complaint was 	issued by the
undersigned on January 12, 	1994, 	at the start of the hearing.
The 	complaint, 	as amended, 	alleges 	that 	following various
protected activities 	by the 	charging parties, 	agents 	for 	the
Union 	filed 	charges 	seeking a 	one-year 	suspension 	of 	charging
parties 	from membership 	in CSEA, 	filed a 	civil 	lawsuit 	against
charging parties, 	and filed additional 	charges 	seeking a
life-time 	suspension of 	charging parties 	from CSEA. 	These
actions were alleged to be 	in violation of 	section 3519.5(b) 	of
the Ralph C. 	Dills Act.2
(Hackett et al.) 	(1993) 	PERB Decision No. 	979-S 	(Hackett I) 	and
California State Employees Association 	(Hackett) 	(1993) 	PERB
Decision No. 	1012-S. 	Ms. 	Hackett did not appeal 	the dismissal 	of
charge 	S-CO-151-S 	and 	the 	dismissal 	became 	final 	on January 25,
1993.
2Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to
the Government Code. 	The Ralph C. 	Dills Act 	(Dills Act) 	is
codified at 	Government 	Code 	section 3512 	et 	seq. 	In relevant
part, 	section 3519.5 provides 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
22

A hearing was 	conducted 	in Sacramento 	on January 	12-13 	and
March 7 and 9, 	1994. 	With the filing of briefs, 	the matter was
submitted for decision on June 	8, 	1994.
FINDINGS 	OF 	FACT
Cathy Hackett, 	Jim Hard, 	Sam Jurado, 	Dave Weston and Doyle
Harris, 	the charging parties, 	at all 	times relevant have been
employees 	of 	the State of California 	(State). 	Their various 	jobs
throughout 	the 	relevant 	period placed 	them 	in 	State 	bargaining
unit 	1, 	professional, 	administrative, 	financial and staff
services. 	CSEA, 	at all 	times relevant, 	has been the exclusive
representative 	of unit 	1 	and eight 	other State 	employee
bargaining units. 	Unit 	1 	is 	composed of 	some 	33,000 	State
employees 	working 	in some 	600 	job 	classifications.
The 	events 	at 	issue 	sprang 	from a 	difficult 	and protracted
round 	of 	negotiations 	that 	commenced 	in 	1991 between 	the 	State
and CSEA. 	Pressed by a budget 	deficit, 	the 	State 	sought major
concessions 	in pay and benefits 	from the various 	exclusive
representatives 	of 	its 	employees. 	CSEA resisted the 	State's
demands 	and 	its 	members 	and 	representatives 	engaged 	in numerous
activities 	designed 	to demonstrate 	the Union's 	resistance.
Throughout this period, 	Ms. 	Hackett was 	the chair of 	the CSEA
bargaining 	team for unit 	1. 	Jim Hard, 	Sam Jurado and Dave Weston
were members 	of 	the unit 	1 	bargaining 	team and Doyle 	Harris 	was
an alternate.
guaranteed by 	this 	chapter.
3

After a year of acrimony, 	the State 	in May of 	1992 made a
proposal 	to 	CSEA and 	the 	other 	exclusive 	representatives 	that 	was
intended 	to break the 	impasse. 	The proposal 	included creation of
a personal 	leave 	program under which 	employees 	would 	forfeit 	one
day of pay per month for 	18 months. 	In return, 	they would be
entitled 	to 	later 	take 	the 	time 	off 	with pay or, 	under 	some
circumstances, 	be paid for the 	lost 	time. 	The State proposal
also 	called 	for a pay 	increase 	at 	the 	end of 	the 	18-month period
and another pay 	increase 	one year 	later.
CSEA units 	4 	and 	15 	soon reached tentative agreement 	on 	the
basis 	of 	the 	State's 	proposal. 	They were 	followed shortly by
CSEA units 2 0 and 21. 	Some of 	the other exclusive
representatives 	also 	accepted 	the 	plan at 	approximately 	the 	same
time.
Despite 	this 	support 	for 	the proposal 	from elsewhere 	in
CSEA, 	Ms. 	Hackett and the other members of 	the unit 	1 bargaining
team opposed 	the 	State's 	proposal 	and 	rejected 	it 	at 	the
bargaining 	table. 	They 	then 	commenced an 	effort 	to 	convince
employees 	in 	the various 	bargaining units 	to 	join 	in their
rejection of 	the proposal. 	They met with CSEA job 	stewards 	and
gatherings 	of 	employees, 	urging 	them to reject 	the proposal.
They called employees by 	telephone, 	urging 	rejection of 	the
proposal. 	They prepared at 	least 	two 	leaflets 	attacking the
State proposal 	which 	they distributed at 	State buildings 	in May
and June of 	1992.
4
4

The 	first 	of 	the leaflets 	criticized the 	State proposal 	and
announced noon hour meetings 	for 	"all 	interested Union members"
to be held on May 20, 	21, 	22 and 28, 	1992. 	The second leaflet,
entitled 	"Reject Wilson's 	Take-Back 	Proposal," 	contained 	further
criticism of 	the 	proposal 	and announced 	another meeting 	on
June 8, 	1992, 	for members of unit 1.
Despite 	the 	continued opposition of 	the unit 	1 	team, 	the
CSEA leadership became 	convinced 	that 	the 	State's 	proposal 	was
the best 	that 	could be achieved and 	favored 	its 	acceptance. 	The
divergence 	of 	views 	created 	the 	anomalous 	situation 	in 	late May
of 	1992 	where unit 	1 	leaders were 	opposing 	ratification of 	the
tentative 	agreements 	which were 	supported by CSEA leadership.
The 	CSEA leadership moved 	to 	end 	this 	conflict 	in 	early June
by directing 	the members 	of 	the unit 	1 bargaining 	team to halt
their 	efforts 	to discourage 	ratification 	in 	the 	four units 	then
considering 	the proposal. 	CSEA based 	its 	order on bargaining
ground 	rules 	between 	the 	Union and 	the 	State which 	required 	the
Union and 	its 	staff 	to 	recommend membership 	acceptance 	of
tentative agreements.
Ignoring the 	requests 	of 	the 	CSEA leadership, 	the members 	of
the unit 	1 	negotiating 	team persisted 	in 	their opposition 	to 	the
tentative agreements. 	On June 22, 	1992, 	CSEA President Yolanda
Solari wrote 	to Ms. 	Hackett 	and the 	others 	notifying 	them that
they were 	"summarily 	suspended" 	from membership 	in 	CSEA effective
at 	12:01 a.m. 	on June 23. 	"This action is taken," Ms. 	Solari
wrote, 	"because 	in my opinion as 	President 	of CSEA, 	your actions
5
5

pose an immediate 	threat 	to the welfare of 	the Association." 	The
letter directed Ms. 	Hackett and the others by June 	24 	to return
to 	CSEA all 	materials 	and 	equipment 	in 	their possession.
Specifically 	identified were 	"membership 	lists 	and 	rosters 	which
you were 	authorized 	to 	receive while your membership was 	in good
standing." 	The 	letter advised Ms. 	Hackett 	and the 	others 	that
the 	suspension would be 	terminated 	in 	ten days 	unless 	written
charges 	were 	filed against 	them within 	that 	time period.
Written charges, 	signed by CSEA civil 	service 	division
director Perry Kenny, 	followed on July 2, 	1992. 	The 	charges
sought 	removal 	from office 	of Ms. 	Hackett 	and 	the 	other members
of 	the unit 	1 negotiating team. 	Ms. 	Hackett and the other
charging 	parties 	contested 	their 	removal 	from office 	through
CSEA's 	internal appeal procedures. 	However, 	the 	charges were
sustained in October of 	1992, 	first by the CSEA Board of
Directors 	and then by CSEA's highest body, 	the General 	Council.
Ms. 	Hackett, Mr. 	Hard, Mr. Jurado, Mr. Weston and Mr. 	Harris were
removed 	from their leadership 	roles 	in unit 	1. 	They also were
barred 	from holding 	any 	CSEA office 	for 	one 	year 	commencing 	on
June 23, 	1992.3
Following the action of 	the General 	Council, 	CSEA General
Manager Robert 	Zenz 	by letter of 	October 	19 	again demanded 	that
Ms. 	Hackett 	and 	the 	others 	immediately return 	"all 	CSEA documents
3These actions 	were unsuccessfully challenged by Ms. 	Hackett
in PERB unfair practice 	case no. 	S-CO-153-S. 	(See 	California
State Employees Association 	(Hackett). 	supra. 	PERB Decision
No. 	1012-S.)
6
-----------· - 	-·
6

in your possession." 	Ms. 	Hackett was 	sent a separate 	letter
demanding 	return 	of 	a 	CSEA lap 	top 	computer which 	she 	had 	checked
out. 	The 	demand 	for the 	return of 	the 	documents 	and computer was
recommended by 	the 	General 	Council 	appeals 	committee 	and 	adopted
by 	the 	CSEA Board of Directors 	on October 7, 	1992.
The 	charging parties 	never 	took 	seriously 	the 	demand 	that
they 	return 	"all 	CSEA documents 	in your possession." 	This 	broad
request 	would have 	included 	copies 	of 	CSEA newspapers 	and 	routine
membership mailings, 	as well as membership lists. 	Because the
demand was 	so broad and because 	they 	considered most 	of 	the
documents 	in their possession to be obsolete, 	the 	charging
parties 	admit 	that 	they paid 	little attention to 	it. 	One who
attempted to comply was Doyle Harris, 	an alternate 	to the
negotiating committee. 	He 	tried to contact Mr. 	Zenz 	to 	find out
exactly which documents Mr. 	Zenz wanted returned. 	His 	telephone
calls 	were not 	returned.
The 	demand 	that 	the 	charging parties 	return documents 	to
CSEA was without precedent. 	At 	that 	time, 	CSEA had no rules
requiring bargaining unit 	negotiators 	or 	stewards 	to 	return
documents 	upon leaving office. 	There was 	no past practice 	of
outgoing 	negotiators 	returning documents. 	Nor were 	there 	any
rules 	or practices 	about 	the 	confidentiality of 	CSEA documents.
Various 	witnesses 	testified 	that 	they 	considered 	old 	documents 	to
be 	obsolete 	and 	either 	threw them away 	or kept 	them in boxes 	at
home. 	There was 	not 	even a prior practice 	of 	requiring persons
suspended 	from office 	to 	turn over CSEA materials. 	Linda
7
_,

Roberts, 	who was 	suspended 	from CSEA office 	for one year
beginning 	in April 	of 	1992, 	testified that 	she was not asked to
return any documents. 	The 	only practice 	on turning over
documents 	which any witness 	could 	recall 	was 	for 	outgoing
treasurers 	to 	turn over 	financial 	records 	and 	checkbooks.
Barbara Wilson, 	CSEA civil 	service division alternate 	deputy
director 	for bargaining, 	testified that 	the primary reason the
Union 	leadership wanted 	the 	documents 	returned was 	for 	"self-
preservation." 	The most 	sensitive 	of 	the 	desired documents 	was 	a
report variously described as 	the 	"work 	site profile" 	or the
"member/non-member list." 	This 	report 	contains 	the names 	of 	each
member and non-member, 	their home 	addresses 	and 	telephone 	numbers
and record of 	activity within CSEA. 	Ms. 	Wilson 	testified that
such a 	document 	would be 	of 	great 	assistance 	to any group 	trying
to 	defeat 	ratification of 	the 	agreement 	between 	CSEA and 	the
State. 	She also 	said that various 	documents were 	expensive 	to
reproduce 	so 	there was a 	cost 	factor 	in their recovery. 	Finally,
she 	testified, 	the mere perception among CSEA leaders 	that 	the
documents 	were being used against 	the Union, 	even 	if 	they were
not, 	was disruptive. 	Ms. 	Hackett and the charging parties did
not 	respond 	to 	the June 	or October requests 	for the 	return of
documents. 	She did return the 	computer on October 27, 	1992.
Although 	CSEA and 	the 	State 	reached an agreement 	not 	long
after the 	removal 	of 	the unit 	1 bargaining 	team, 	CSEA's 	internal
turmoil 	continued. 	In June of 	1992, 	Ms. 	Hackett and the 	former
members 	of 	the unit 	1 	bargaining 	team joined with others 	to 	form
8

an 	organization 	they 	called 	the 	Caucus 	for a Democratic 	Union
(Caucus). 	They 	created a newsletter they named The Union Spark
which Ms. 	Hackett 	and the 	other 	former bargaining 	team members
distributed 	to 	State 	employees 	and at 	CSEA meetings. 	The 	first
edition of 	The Union Spark was 	published 	in June 	of 	1992.
Publication of 	the 	newsletter has 	continued on a 	regular basis
ever since.
It was 	apparent 	from the 	first 	issue 	of The Union Spark that
the 	new Caucus 	considered 	itself 	to be 	an 	organization within
CSEA formed 	to 	"advance 	an 	open and democratic union." 	But 	the
publication has 	been harsh 	in 	its 	criticism of 	both 	CSEA and 	the
governor. 	It 	has 	criticized the manner CSEA has 	represented
employees 	and 	regularly attacks 	the 	influence 	of 	supervisors,
managers 	and retirees 	in the Union.
In the August 	1992 	issue 	of The Union Spark, 	the 	Caucus 	set-
out 	a 	"declaration of 	reform" 	and a 	"rank and 	file bill 	of
rights" 	which were adopted at a meeting on August 	8 	and 9. 	The
organization professed 	itself 	"committed 	to 	the 	restoration 	of
the 	rights, 	authority, 	dignity and power of 	our union's 	rank and
file membership." 	It 	stated 	its 	objective as 	"to 	strengthen
CSEA/SEIU Local 	1000 	from within by building a unified movement
of 	rank and 	file 	state employees." 	It 	set 	out 	as 	the 	first 	in a
series 	of 	11 	rank and file rights, 	the 	"direct 	election of
officers."
Ms. 	Hackett 	and the 	other 	charging parties 	have maintained a
high profile 	in the 	Caucus. 	They have appeared 	in pictures 	in
9

The 	Union 	Spark and 	they 	openly have 	continued 	to 	distribute 	the
publication to State 	employees. 	The Caucus 	has 	scheduled
quarterly meetings 	at 	the 	same 	time 	and place 	as 	CSEA's 	quarterly
civil service division council meetings. 	Ms. 	Hackett, 	Mr. 	Hard
and 	others 	have 	attempted 	to meet 	with 	CSEA stewards 	and 	other
elected CSEA officers 	to 	talk about 	the 	need 	for 	reform of 	CSEA.
They have 	distributed The 	Union 	Spark 	at 	CSEA civil 	service
division 	council meetings. 	They have 	solicited 	supporters 	for
their 	campaign 	to 	change 	CSEA's 	election procedures 	and have
encouraged sympathizers 	to 	join or 	remain members 	of 	CSEA to work
for change within. 	They have 	campaigned 	for the 	election of
sympathizers 	to CSEA office.
A number 	of 	CSEA job 	stewards 	and activists 	have 	joined 	the
Caucus 	and have been portrayed 	in pictures 	in The Union Spark.
Ms. 	Hackett 	also 	identified 	four presidents 	of 	CSEA labor
councils who are members 	of 	the Caucus. 	Others who have 	joined
in the Caucus 	include 	some members 	of 	the unit 	1 bargaining
committee who 	succeeded Ms. 	Hackett 	and the 	other 	charging
parties.
The 	evidence 	is 	clear 	that 	the 	CSEA Board of Directors 	and
leadership are 	fully aware 	of 	the activities 	of 	the 	Caucus 	and
the role of 	the charging parties 	in it. 	Joe Elwell-Scardino, 	a
member of 	the 	CSEA board, 	testified 	that 	directors 	had discussed
the 	Caucus 	at 	board meetings 	and 	formulated plans 	about 	how to
deal with it and its 	leaders. 	In addition, 	CSEA has published a
10

newsletter 	criticizing The 	Union Spark 	that 	demonstrated a 	full
awareness 	of 	the activities 	of 	the 	Caucus.
From early on, 	some 	in 	the 	CSEA leadership have 	suspected
Ms. 	Hackett, 	Mr. 	Hard and others 	in the Caucus of planning an
attempt 	to decertify CSEA as 	exclusive 	representative 	of unit 	1.
CSEA labor 	relations 	representative 	Rosmarie Duffy 	testified 	that
she 	twice heard Mr. 	Hard make 	references 	to decertification. 	The
first 	occasion was 	during an April 	1992 	meeting before bargaining
when 	the 	team was 	discussing 	their 	frustration 	in getting 	the
other CSEA units 	to hold out 	for a better proposal. 	She 	said
Mr. 	Hard 	commented 	in what 	she described as 	an 	"offhand" 	remark,
"Well, 	we 	could always decertify." 	The 	second occasion was 	in
June of 	1992 	when, 	she testified, 	Mr. 	Hard stated at a meeting of
job agents, 	"We had looked 	into trying to decertify CSEA, 	but
found 	that 	the 	law 	isn't 	really helpful 	in that 	area, 	and 	so
instead we're 	going 	to urge people 	to 	join 	CSEA so 	that 	we 	can
reform it 	from the 	inside."4
As 	further 	evidence 	of 	the purported decertification 	threat
CSEA introduced a 	leaflet 	which Mr. 	Hard distributed 	in 	front 	of
a State building on February 7, 	1994. 	The leaflet 	attacked the
influence 	of 	supervisors, 	managers and retirees 	in establishing
CSEA policies. 	The 	leaflet 	reads 	in part:
4Mr. 	Hard testified that 	the question of decertification was
raised by others who were unhappy with CSEA's 	representation. 	He
said all 	he was 	trying to do was 	to 	tell 	them that 	instead of
decertification 	they 	should 	get 	involved 	in a 	reform movement.
He 	said he 	spoke 	against 	decertification.
11

We 	need 	to 	take 	control 	of 	CSEA to make 	it
represent us. 	We need a democratic
organization to work 	for 	the 	just 	concerns 	of
state employees. 	In order to have this, 	we
need 	to 	restructure 	CSEA to make 	it 	our
organization. 	That is the purpose of CDU. 	. 	. 	.
Barbara Wilson 	testified 	that 	she 	interpreted 	the 	phrase 	about
taking 	control 	as 	evidence 	of 	a possible 	attempt 	to decertify
CSEA.
The 	CSEA leadership also believed 	that 	the 	Caucus 	was
interfering with CSEA's 	representation of 	State 	employees. 	As
evidence 	of 	this 	conclusion, 	CSEA introduced the 	testimony of 	its
labor relations 	representative Gerri 	Conway. 	In June of 	1993,
Ms. 	Conway represented a State 	employee named Joyce 	Fox in an
adverse action. 	She 	testified 	that 	she worked out 	a 	tentative
agreement 	involving 	the 	transfer of Ms. 	Fox which was 	destroyed
by a 	leaflet 	distributed at 	the building where Ms. 	Fox worked.
The leaflet, 	which was highly critical 	of Ms. 	Fox's 	supervisor,
concluded with 	the 	following:
If 	you know of 	anyone being 	harassed and/or
subjected 	to 	unreasonable 	working 	conditions
contact 	the 	Caucus 	for a Democratic 	Union
[telephone number omitted]. 	We will 	return
your call.
Ms. 	Conway testified that Ms. 	Fox had been aware of 	the 	leaflet
and approved of 	its distribution. 	Because 	of 	the 	leaflet,
Ms. 	Conway testified, 	State management withdrew from the
settlement.
Consistent 	with 	their view that 	the 	Caucus might 	attempt 	to
decertify CSEA, 	the Union's 	leaders 	have 	not 	taken the 	challenges
from the 	Caucus 	lightly. 	Indeed, 	the Union has 	fought back 	from
12

early on. 	By letter of 	November 	18, 	1992, 	CSEA President 	Solari
demanded 	that M s . 	Hackett, 	as 	a member and principal 	officer 	of
the 	Caucus, 	cease 	and 	desist 	from all 	unauthorized use 	of 	CSEA's
name 	or 	logo. 	Citing 	California 	law 	on 	the 	unauthorized use 	of 	a
union name or logo, 	M s . 	Solari warned:
CSEA 	intends 	to 	enforce 	its 	rights 	to 	the
fullest 	extent 	of 	the 	law against 	any
individual 	or 	organization 	engaged 	in 	the
unauthorized publication 	or 	distribution 	of
its name.
But 	M s . 	Hackett 	and 	the 	other 	charging parties 	continued 	their
activity 	in 	the 	Caucus 	and 	continued 	to 	publish 	The 	Union 	Spark.
In May 	of 	1993, 	the 	CSEA Board 	of 	Directors 	responded by
adopting 	the 	following 	resolution:
(a) 	That 	the 	President 	direct 	the General
Manager 	to 	investigate 	and 	take 	whatever
steps 	are 	necessary, 	including 	seeking
outside 	legal 	assistance, 	to bring
disciplinary 	action 	or 	lawsuit 	against 	any
member 	whose 	activities 	could 	adversely
affect CSEA; 	and, 	further,
(b) 	That 	the 	Board 	of 	Directors 	delegates 	to
the 	Executive 	Committee 	the 	full 	authority 	to
act 	upon 	the 	recommendations 	of 	staff 	and 	to
take whatever action 	is 	deemed necessary, 	and
report 	that 	action back 	to 	the 	board 	at 	its
next 	meeting.
According 	to Mr. 	Elwell-Scardino, 	who was present when the
resolution was 	adopted, 	at 	least 	one 	director 	identified 	the
"Hackett 	and Hard group" 	as 	the 	target 	of 	the 	resolution.
There 	followed on June 	17, 	1993, 	letters 	from CSEA to
M s . 	Hackett 	and 	the 	other 	charging parties 	advising 	them that
13

written 	charges 	had been 	filed against 	them.5 The 	charges, 	which
were 	signed by Barbara Wilson, 	alleged violations 	of various
sections 	of 	CSEA's 	internal 	policies 	for 	failure 	to 	return CSEA
documents. 	As 	of 	the conclusion of 	the hearing 	in the present
matter, 	CSEA had yet 	to 	conduct a hearing on the 	charges 	filed by
Ms. 	Wilson and 	the matter 	remained unresolved.
The 	documents which gave 	rise 	to Ms. 	Wilson's 	charges were
those 	requested in the Solari 	letter of June 22, 	1992, 	and the
Zenz 	letter of October 19, 	1992. 	The charges 	filed by Ms. 	Wilson
asked 	that 	the 	suspension of 	the 	charging parties 	from any office
in 	CSEA be 	extended 	for a 	second year. 	She 	testified 	that 	she
filed 	the 	charges because 	it was 	her 	responsibility as 	deputy
director 	for bargaining 	to 	ensure 	that 	orders 	of 	the General
Council 	were 	carried out. 	She 	said that prior to 	filing 	the
charges 	she 	checked with various 	people 	and determined 	that 	the
documents 	had not 	been returned. 	She 	did not 	check with
Ms. 	Hackett 	or the other charging parties.
Ms. 	Hackett 	and the 	others 	testified that 	they did not
consider 	such 	CSEA documents 	as 	they had 	in 	their possession 	to
be 	of any significance. 	Many of 	the documents were out 	of date.
They had discarded other documents. 	However, 	when CSEA
continued 	to make 	demands 	they went 	through boxes 	and piles 	of
documents 	in 	their homes 	and gathered 	everything 	they believed
relevant 	to the CSEA requests. 	On June 17, 	1993, 	they gave these
5This 	is 	the 	first 	of 	the 	three actions under attack here.
14

documents to J. 	J. 	Jelincic, 	successor to Ms. 	Hackett as chair of
the unit 	1 bargaining committee.
By memo 	the 	following day, 	Ms. 	Hackett and the 	others
advised 	the 	CSEA Board of 	Directors 	that 	they had given 	documents
to Mr. 	Jelincic. 	The memo identifies various documents which
were 	turned over, 	including a partial 	1990 	member/nonmember 	list
for the 	Sacramento area. 	The 	documents 	turned over by the
charging parties 	did not 	include 	the pay or 	class 	print 	out 	for
May of 	1992 	nor a member/nonmember 	list 	for that year.
Ms. 	Hackett 	testified that 	she did not 	recall 	if 	she had a
member/nonmember 	list 	for 	1992, 	although a CSEA employee
testified that 	she mailed one 	to Ms. 	Hackett 	in the 	spring of
1992. 	Even if Ms. 	Hackett had been given a member/nonmember
list, 	there was 	no evidence 	that 	the 	other 	four 	charging parties
ever had 	that 	document 	or any 	of 	the 	documents 	listed 	in 	the
Solari 	letter.
Mr. 	Jelincic, 	who described what Ms. 	Hackett turned over to
him as 	"boxes 	of materials," 	prepared a 	lengthy 	inventory of 	the
documents. 	He 	then gave the documents 	to Nancy Broadhurst, 	the
assistant 	controller of 	CSEA. 	Ms. 	Broadhurst 	signed for the
documents on October 19, 	1993. 	The inventory identifies as one
of 	the 	items 	turned over, 	a 	"copy of unit 	1 member/non-member
list, dated 8/8/90. "
The 	charging parties 	each testified that what Ms. 	Hackett
gave 	to Mr. 	Jelincic was 	all 	of 	the 	information requested by CSEA
that they possessed. 	Initially, 	Ms. 	Hackett testified, 	she and
15

the 	others 	focused 	on 	the 	demand 	for 	the 	return 	of 	the 	lap 	top
computer. 	After the 	computer was 	returned on October 27, 	1992,
Ms. 	Hackett 	concluded 	that 	she 	had 	satisfied 	the 	critical 	demand.
On July 2, 	1993, 	CSEA filed a lawsuit against Ms. 	Hackett
and 	the 	other 	charging parties.6 The 	lawsuit, 	since withdrawn,
alleged that Ms. 	Hackett, 	Mr. 	Hard, 	Mr. 	Jurado, 	Mr. 	Harris and
Mr. 	Weston were 	in wrongful 	possession 	of 	certain 	specified 	CSEA
documents. 	The 	lawsuit 	alleged that 	the 	charging parties 	had
refused 	to 	return 	the 	documents 	despite 	CSEA's 	specific 	requests.
CSEA asked 	for 	return 	of 	the 	documents 	and 	for 	compensatory 	and
punitive 	damages.7 However, 	CSEA withdrew the 	lawsuit 	in 	early
6This 	is 	the 	second of 	the 	three 	actions under attack here.
7In 	the 	lawsuit 	CSEA sought 	the 	return 	of 	the 	following
materials 	from 	the 	1991 	and 	1992 	bargaining between unit 	1 	and
the 	State:
1) 	Bargaining proposals 	and bargaining
binders;
2) 	Copies 	of 	bargaining notes 	typed by 	the
note-taker hired 	to 	transcribe 	these 	notes;
3) 	Copies of memorandums, 	grievances,
letters 	to 	the 	State, 	and classification
changes 	pertaining 	to bargaining 	issues.
CSEA also 	sought 	return 	of 	the 	following 	computer 	generated
lists:
1) 	A work 	site profile 	from spring 	of 	1992
showing 	all 	Unit 	1 	work 	sites 	and 	employee
names, 	home phone numbers 	and job
classifications;
2) 	Pay classifications 	of Unit 	1 	employees
by 	department 	and by 	number 	of 	persons 	in
each classification, 	total 	salaries, 	and
differentials.
16

March of 	1994. 	Mark DeBoer, 	CSEA assistant 	chief 	counsel, 	said
the 	lawsuit 	was 	dropped because 	some 	of 	the material 	had been
returned and 	the Union could not prove 	that 	the 	defendants 	still
possessed 	the 	remainder.
Although 	CSEA's 	stated 	reason 	for 	the 	continuing 	actions
against Ms. 	Hackett and the others was 	their refusal/failure 	to
return CSEA documents, 	this was not 	the only cause. 	At a
September 18-19, 	1993, 	meeting of 	the CSEA civil 	service division
council, 	members 	adopted a 	resolution seeking action against 	The
Union Spark. 	The 	resolution declared 	the publication 	"contrary
to 	the goals and objectives" 	of 	the 	civil 	service division and
asked 	the 	Board 	of 	Directors 	"to 	take 	appropriate 	action against
those 	responsible."
There followed a September 28, 	1993, 	notice to Ms. 	Hackett
and Mr. 	Hard 	that 	charges 	had been 	filed against 	them by 	four
CSEA members.8 The 	charges accused Ms. 	Hackett and Mr. 	Hard of
distributing The Union Spark between 	the 	hours 	of 	7:15 	a.m. 	and
7:45 a.m. 	on September 16, 	1993, 	in front 	of a State building at
450 N Street 	in Sacramento. 	The 	charges also accused Ms. 	Hackett
and Mr. 	Hard of 	disrupting a CSEA civil 	service 	division meeting
of 	September 	17 	through 	19. 	The 	complaint 	requested 	"permanent
suspension of membership." 	The 	four 	CSEA members 	who 	signed 	the
charges 	are officers 	of 	CSEA labor council 	782. 	On November 29,
1993, 	the 	complaining parties 	withdrew their accusations 	and 	the
proceedings 	were 	dismissed by 	CSEA.
8This 	is 	the 	third of 	the 	three actions under attack here.
17

CSEA presented 	evidence 	that 	under 	the Union's 	rules, 	any
member of 	CSEA can 	file 	charges 	against 	any other member. 	The
mere 	filing 	of 	disciplinary 	charges 	does 	not 	affect 	the
membership 	status 	of 	a member while 	the 	charges 	are 	pending.
CSEA 	rules 	provide 	for 	the 	right 	to 	a 	hearing 	and an appeal.
LEGAL 	ISSUE
Did 	CSEA discriminate 	against 	Cathy Hackett, 	Jim Hard,
Sam Jurado, 	Dave Weston and Doyle 	Harris 	for participation 	in
protected 	conduct 	in violation 	of 	Dills 	Act 	section 	3519.5(b) 	by:
1) 	Filing written charges, 	on or about June 17, 	1993, 	for
their 	suspension 	from membership 	in 	CSEA 	for at 	least 	one 	year?
2) 	Naming 	them in a 	civil 	lawsuit 	on or about 	July 2,
1993?
3) 	Filing written charges against Ms. 	Hackett 	and
Mr. 	Hard, 	on or about 	October 1, 	1993,9 seeking 	their lifetime
suspension 	from 	CSEA?
CONCLUSIONS 	OF 	LAW
State 	employees 	have 	the 	right 	under 	the Dills Act 	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."10 It 	is 	an unfair
practice 	under 	section 3519.5(b) 	for an 	employee 	organization 	"to
9These are 	the 	charges 	set 	out 	in the September 28, 	1993,
letter to Ms. 	Hackett and Mr. 	Hard.
10Section 3515.
18

interfere with, 	restrain, 	or coerce employees because of 	their
exercise 	of" 	protected rights.
The 	PERB has 	eschewed use 	of 	these 	sections 	as 	a vehicle 	for
reviewing 	the 	internal 	affairs 	of unions 	in duty of 	fair
representation 	cases. 	(See 	Service 	Employees 	International
Union. 	Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106.) 	But the
Board has 	been willing 	to 	review 	internal 	union activities 	for
two other purposes: 	1) 	to determine the 	"reasonableness" 	of
disciplinary action under section 3515.5,11 and 2) 	to determine
whether 	a 	union's 	action against 	an 	employee 	constituted 	a
retaliation 	for 	engaging 	in protected 	conduct.12 The 	complaint
here 	is based upon the 	second of 	these 	theories.
It 	is 	useful 	to note 	initially 	that 	the protected rights
section of 	the Dills Act 	differs 	from section 	7 	of 	the National
Labor Relations Act. 	Dills Act 	section 3515 protects 	the 	right
of State employees,
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of 	employee organizations 	of
their own choosing 	for 	the purpose of
11In relevant part, 	section 3515.5 provides as 	follows:
. 	. 	. 	Employee organizations may establish
reasonable 	restrictions 	regarding who may
join and may make 	reasonable provisions 	for
the 	dismissal 	of 	individuals 	from membership.
For the application of 	this 	section, 	see California Correctional
Peace Officers Association 	(Colman) 	(1989) 	PERB Decision
No. 	755-S and cases 	cited therein.
12See 	California 	State 	Employees Association 	(O'Connell)
(1989) 	PERB Decision No. 	753-H.
19

representation on all matters 	of 	employer-
employee 	relations 	. . . .
Section 7, 	by contrast, 	protects 	the right 	of private sector
employees,
. 	. 	. 	to form, 	join or assist labor
organizations, 	to bargain collectively
through 	representatives 	of 	their own
choosing, 	and to engage 	in other concerted
activities 	for 	the purpose 	of 	collective
bargaining 	or 	other mutual 	aid 	or protection.
Nothing 	in section 	7 	sets 	out 	an employee 	right 	to 	"participate
in the activities 	of 	employee 	organizations." 	For this 	reason,
the 	PERB 	has 	not 	found entirely persuasive 	those National 	Labor
Relations 	Board 	(NLRB) 	decisions 	that 	shun any review of 	internal
union activities.
Exactly what 	"participate" 	means 	is not yet 	clear in Board
decisions. 	In its broadest, 	dictionary meaning, 	"to participate"
is 	to take part 	in something, 	join or share with others. 	Defined
this way, 	any exclusion of 	an employee 	from organizational
activities 	would be 	a 	denial 	of 	participation and potential
unfair practice. 	The Board has 	not 	taken such an expansive
approach.
Thus, 	although an individual 	employee has 	a protected right
to 	attempt 	the 	decertification of 	an 	incumbent 	exclusive
representative, 	the Board will 	not 	find the 	organization guilty
of unlawful 	retaliation 	if 	it 	expels 	the employee. 	The Board has
found 	to be 	"reasonable" 	employee 	organization 	rules 	providing
for 	the 	suspension 	from membership 	of 	persons 	engaged 	in
decertification activities. 	(California School 	Employees
20

Association 	(Parisot) 	(1983) 	PERB Decision No. 	280.) 	This is
because 	decertification 	"threatens 	the very 	existence 	of 	the
organization and 	is 	of 	sufficient 	seriousness 	to 	justify a
self-protective response." 	(Ibid.) 	In essence, 	the Board has
granted an 	exception 	to 	the 	rule 	that 	an employee 	organization
may not 	retaliate 	against 	an 	employee 	for 	engaging 	in protected
conduct. 	Where 	the very life of 	the organization is 	in jeopardy,
the union may 	retaliate against 	the 	employee as 	an act 	of
self-preservation.
In 	cases 	involving 	alleged 	discrimination by an 	employee
organization, 	the Board applies 	the 	same analytical 	test 	as 	it
uses 	in 	cases 	involving discrimination by an employer. 	(See
California Union of 	Safety Employees 	(Coelho) 	(1994) 	PERB
Decision No. 	1032-S and cases 	cited therein.) 	Therefore, 	in
order to prove discrimination, 	the 	charging parties 	first must
demonstrate 	that 	they engaged 	in protected 	conduct. 	They 	then
must 	show 	that 	CSEA knew of 	their protected activity13 and 	took
an adverse 	action against 	them. 	The 	adverse action 	cannot be
speculative but must 	be 	an actual 	harm.14
Upon a 	showing of protected conduct 	and adverse action, 	the
charging parties 	then must make 	a prima 	facie 	showing 	that 	the
respondent's 	action against 	them was 	motivated by 	their protected
activity. 	(Novato Unified School District 	(1982) 	PERB Decision
13Moreland Elementary School District 	(1982) 	PERB Decision
No. 227.
14Palo Verde Unified School 	District 	(1988) 	PERB Decision
No. 689.
21

No. 	210.) 	Motivation is 	determined by a review of 	direct and
circumstantial 	evidence15 to see whether, 	but 	for the exercise of
protected 	rights, 	the disputed action would not 	have been taken
against 	the 	charging parties.16
If 	charging parties 	establish a prima 	facie 	showing
sufficient 	to 	support an 	inference of unlawful motive, 	the burden
shifts 	to 	the 	respondent 	to produce 	evidence 	that 	the action
"would have 	occurred 	in any event." 	(Martori 	Brothers
Distributors v. 	Agricultural 	Labor Relations Bd., 	supra.
29 	Cal.3d at p. 	730.) 	If 	the 	respondent 	then shows misconduct 	on
the part 	of 	the 	charging parties, 	the 	respondent's 	action will
not be 	deemed an unfair practice unless 	the 	evidence 	establishes
the 	action would not 	have been 	taken against 	the 	charging parties
"but 	for" 	their protected activity.
15Indications of 	unlawful 	motivation have been 	found 	in many
aspects 	of 	a 	respondent's 	conduct. 	Words 	indicating 	retaliatory
intent 	can be persuasive 	evidence 	of unlawful motivation. 	(Santa
Clara Unified School 	District 	(1979) 	PERB Decision No. 	104.)
Other 	indications 	of 	unlawful 	motivation have been 	found 	in a
respondent's 	failure to follow usual procedures 	(Ibid.): 	shifting
justifications 	and 	cursory 	investigation 	(State 	of 	California
(Department 	of 	Parks and Recreation) 	(1983) 	PERB Decision
No. 	328-S); 	disparate treatment of the charging party 	(State of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	timing of the action 	(North Sacramento School
District (19 82) PERB Decision No. 264); and pattern of antagonism
toward persons 	engaging 	in protected activity 	(Cupertino Union
Elementary School District 	(1986) 	PERB Decision No. 	572).
16See Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 	Cal.3d 721, 	727-730 	[175 	Cal.Rptr.
626]; 	Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169]
enf., 	in relevant part, 	(1st Cir. 	1981) 	662 	F.2d 899 	[108 LRRM
2513].
22

The 	first 	and perhaps most 	critical 	question here 	is 	whether
the 	charging parties 	have 	engaged 	in protected 	conduct. 	In a
case 	involving 	these 	same parties, 	the Board upheld 	the dismissal
of 	a 	charge 	challenging 	the 	removal 	of Ms. 	Hackett 	and the others
as negotiators 	for unit 1. 	(Hackett I ) . 	supra, 	PERB Decision
No. 	979-S.) 	In dismissing the charge, 	the regional attorney-
found 	insufficient 	to 	state 	a prima 	facie 	case 	allegations 	that
the 	charging parties 	were 	dismissed 	for 	opposing 	ratification of
the unit 	1 	agreement. 	The 	regional 	attorney found 	inadequacy
both 	in 	the 	allegations 	of 	protected 	conduct 	and 	of 	unlawful
motivation.
Nevertheless, 	the charging parties argue 	that 	in the present
action, 	they have demonstrated protected conduct. 	Specifically,
they point 	to 	their 	role 	in 	organizing and actively participating
in 	the 	Caucus. 	They note 	they have 	organized and actively
participated 	in an 	effort 	to 	revise 	CSEA's 	election procedures.
They have written 	for and openly distributed The Union 	Spark, 	a
publication that 	is 	critical 	of 	CSEA's 	organizational 	structure
and some 	of 	its 	representational 	practices. 	They have 	solicited
supporters 	for 	their 	campaign 	to 	change 	CSEA's 	election
procedures, 	even to the point 	of encouraging sympathizers 	to join
or 	remain members 	of 	CSEA. 	They have 	supported the 	election 	to
CSEA offices 	of 	candidates 	sympathetic 	to 	their views.
CSEA agrees 	that 	the 	charging parties 	have 	done all 	of 	these
things 	and more. 	CSEA finds 	in these activities 	a desire 	to
thwart 	the 	fundamental 	objectives 	of CSEA, 	to 	impeach CSEA's
23

credibility and disrupt 	the Union's 	representational 	obligations.
CSEA argues 	that 	PERB must 	draw a 	line 	separating 	freedom of
speech and dissent 	from disloyalty 	to 	the Union. 	CSEA argues
that 	the 	conduct 	of 	the 	charging parties 	clearly crosses 	into
disloyalty which should not 	be 	protected. 	Citing Hackett 	I.
supra. 	PERB Decision No. 	979-S, 	CSEA argues 	that 	if 	circulating
leaflets 	opposed to 	ratification was 	not protected, 	then 	surely
circulation of 	copies 	of 	The Union Spark also must be
unprotected. 	Finally, 	CSEA argues, 	although the 	charging parties
profess 	not 	to be 	interested 	in decertifying CSEA, 	they have
placed 	themselves 	in 	a 	representational 	role by 	inviting members
with problems 	to call 	the Caucus.
As 	CSEA appropriately observes, 	this 	case 	requires 	the
drawing 	of 	a 	line between permissible 	and 	impermissible 	conduct.
CSEA describes 	the 	choice 	as 	one between dissent 	and disloyalty.
But 	that 	is 	a much narrower 	choice 	than 	suggested by California
School Employees Association 	(Parisot). 	supra, 	PERB Decision
No. 	280. 	What 	the Board found unprotected in that 	case was
conduct 	that 	"threatens 	the very existence 	of 	the 	organization."
Thus, 	the 	level 	of 	disloyalty required to remove protection from
dissent much be 	such as 	to 	threaten the 	life 	of 	an employee
organization. 	This 	is more 	than internal union politics.
While 	it 	is 	clear that 	the 	conduct 	of 	the 	charging parties
has 	caused discomfort 	to CSEA's 	leadership, 	it would be a
substantial 	reach 	to 	characterize 	it 	as 	life-threatening 	to 	CSEA.
CSEA concedes 	that 	charging parties 	have 	not mounted a
24

decertification campaign or 	taken any steps 	toward one. 	There 	is
no evidence that Ms. 	Hackett, 	Mr. 	Hard or any other Caucus
activist 	ever 	circulated 	representation 	cards 	or 	took 	any 	other
actions 	consistent 	with an attempted 	decertification.
What Ms. 	Hackett, 	Mr. 	Hard and others have underway is an
attempt 	to take 	over CSEA, 	not 	destroy it. 	What 	they seek to do
is 	to 	convert 	CSEA to their view of 	unionism. 	While 	this may be
threatening to some 	in the organization, 	it 	is 	not 	threatening 	to
the organization itself. 	Such disloyalty as 	it 	evidences 	is 	not
to CSEA but 	to those 	in charge of 	the union. 	I 	find that 	the
charging parties 	engaged 	in protected 	conduct 	in 	the 	formation 	of
the Caucus, 	their campaign to 	reform election procedures 	and
their preparation and distribution 	of 	The Union Spark.
A contrary 	result 	is 	not 	compelled by Hackett 	I. 	At most,
Hackett 	I 	stands 	for the proposition that 	a union can remove 	from
office union 	leaders 	who 	campaign against 	ratification 	of 	an
agreement 	in 	contravention 	to 	ground 	rules 	agreed upon between
the union and the 	employer. 	The 	decision also 	can be 	read as
nothing more 	than a 	failure 	of pleading. 	The 	regional 	attorney's
dismissal 	letter, 	which was adopted by the Board, 	notes 	that
except 	for a 	reference 	to 	the 	circulation of 	flyers 	by 	"unit 	1"
the 	charging parties 	"have 	failed 	to mention that 	flyers 	were
published and distributed by 	them." 	Nor, 	the 	regional 	attorney
continues, 	did charging parties 	allege 	that 	the 	circulation of
flyers was protected conduct 	nor cite 	cases 	in support 	of 	such a
contention.
25

There 	is 	indisputable 	evidence 	that 	CSEA knew of 	the
protected activities 	by 	charging parties. 	The 	charging parties
distributed 	copies 	of 	The Union Spark at 	CSEA meetings 	and 	in
front of State buildings. 	Indeed, 	Mr. 	Hard handed Ms. 	Wilson one
copy of 	the publication 	in 	front 	of 	a 	State building. 	CSEA
President 	Solari wrote 	to Ms. 	Hackett demanding the 	Caucus 	cease
using 	CSEA's 	name and logo 	in publications, 	plainly establishing
that 	CSEA knew about Ms. 	Hackett's 	role 	in the Caucus and with
The Union Spark. 	Mr. 	Elwell-Scardino 	testified that 	the Union's
Board of 	Directors was well 	aware 	of 	the activities 	of 	the
charging parties.
The 	charging parties 	next 	argue 	that 	CSEA's 	actions 	against
them 	constituted harm within 	the 	standard 	of 	Palo Verde 	Unified
School District, 	supra. 	PERB Decision No. 	689. 	They cite the
suspension 	from membership 	and denial 	of 	the 	right 	to 	run 	for
office, 	a 	loss 	of 	reputation and prosecution of a 	frivolous
lawsuit. 	They argue 	that 	all 	of 	these acts 	by CSEA caused them
loss of time from work, 	loss of 	income, 	emotional damages,
attorneys 	fees and costs.
CSEA contends 	that 	the 	charging parties 	have 	not
demonstrated adverse 	action. 	CSEA argues 	that 	the 	charging
parties 	have 	not 	suffered any 	loss 	of 	membership 	status 	nor
limitation 	on 	running 	for 	office 	nor 	suffered 	any 	judgment 	from a
court 	or administrative agency. 	Moreover, 	CSEA continues, 	the
charging parties 	have 	recourse 	to CSEA's 	internal 	procedures 	to
contest 	the 	allegations 	against 	them.
26

It 	is 	important 	to 	focus 	on the 	three actions 	that are
contested here: 	the written charges 	filed on June 	17, 	1993,
which 	seek 	suspension of 	the 	charging parties 	from membership 	for
one year, 	charges yet 	to be heard under CSEA's 	internal
procedures; 	the lawsuit 	filed on July 2, 	1993, 	and withdrawn in
March of 	1994; 	and the written charges 	filed on September 28,
1993, 	and withdrawn on November 29, 	1993. 	None of 	these actions
has 	resulted 	in 	the 	suspension of 	charging parties 	and none 	of
these 	actions 	has 	prevented 	them from seeking 	CSEA office. 	So
the question here 	is 	whether 	the actions 	themselves 	are
sufficient 	to 	constitute 	harm.
It 	is difficult 	to 	imagine 	that 	if 	this were a 	case 	in which
five 	State 	employees 	faced 	suspension 	for allegedly participating
in protected 	conduct, 	CSEA would agree 	they had not 	been harmed.
I 	think 	it 	implausible 	that 	CSEA would accept 	an argument 	by 	the
State 	that 	actionable harm does 	not 	occur until 	after 	the
completion of 	a dismissal 	hearing. 	Nor have 	PERB 	cases 	involving
employers 	so held. 	Indeed, 	the statutory requirement of 	timely
filing17 is 	not 	tolled while a 	charging party waits until 	the
disputed 	conduct 	goes 	into 	effect.18 A party with knowledge 	of
an 	impending wrongful 	act waits 	at 	its peril 	if 	it 	does not 	file
17See Dills Act section 3514.5 (a) (1).
18The period of 	limitations begins 	to 	run on 	the 	date 	the
charging party has 	actual 	or 	constructive 	notice 	of 	the
respondent's 	clear 	intent 	to 	take 	the 	disputed action, 	provided
that 	nothing 	subsequent 	evidences 	a wavering of 	that 	intent.
(The Regents 	of 	the University of 	California 	(1990) 	PERB Decision
No. 	826-H.)
27

until 	after the wrongful 	act 	is 	completed. 	The harm occurs, 	not
when the wrongful 	act 	is 	completed, 	but when the 	respondent has
displayed 	clear 	intent 	to 	take 	the 	disputed action. 	Subsequent
withdrawal 	of 	the wrongful 	act 	does not moot 	the 	cause 	of action.
In support 	of 	its 	contention that 	the 	charging parties
suffered no harm, 	CSEA also 	cites 	the 	case 	of 	California School
Employees Association 	(Harmening) 	(1984) 	PERB Decision No. 	442
(Harmening). 	There, 	in adopting a regional attorney's dismissal
of 	a 	charge, 	the Board 	found no prima 	facie 	case 	in an allegation
that 	the 	charging party was 	recalled 	from his 	union office. 	That
decision 	is 	easily distinguishable 	from the 	facts 	here.
Harmening predates 	California 	State 	Employees 	Association
(O'Connell), 	supra, 	PERB Decision No. 	753-H and is based on an
improper discipline 	theory. 	There 	is 	no allegation 	in Harmening
that 	the 	charging party was 	removed 	from office 	in 	retaliation
for protected 	conduct.
A person 	suspended 	from membership 	cannot 	"participate" 	in
the activities 	of 	the Union. 	In terms 	of 	the 	relationship
between an employee and an employee 	organization, 	this 	is 	the
greatest possible harm. 	The Board also has 	found harm in the
prosecution of 	"a baseless 	lawsuit with the 	intent 	of 	retaliating
against 	employees 	for their exercise 	of protected rights."
(Inglewood Unified School District 	(1990) 	PERB Decision No. 	792.
See also Bill Johnson's Restaurants v. 	NLRB 	(1983) 	461 U.S. 	731
[113 	LRRM 2647].)
1
28

Although 	CSEA presented 	evidence 	that 	any member 	of 	the
Union can file a 	charge against 	any other member, 	it 	is 	clear
that 	all 	three 	of 	the 	challenged acts 	can be attributed to 	the
Union. 	Ms. 	Wilson, 	a deputy director of CSEA's 	civil 	service
division, 	testified that she filed the June 17, 	1993, 	charges
because 	it was 	her 	responsibility to 	ensure 	that 	the 	orders 	of
the General 	Council were carried out. 	She was, 	therefore, 	acting
within the 	scope 	of 	her authority as 	a CSEA officer. 	The July 2
lawsuit 	was 	filed 	in the name 	of 	CSEA and was 	obviously an act 	of
the 	organization. 	The September 28 	charges 	were 	filed by 	four
officers 	of 	the 	CSEA civil 	service 	division and 	followed by 	ten
days 	a 	resolution 	of 	the 	civil 	service 	division declaring The
Union Spark contrary to 	the goals 	of 	the 	organization. 	I
conclude 	that 	the September 28 	charges were 	intended to 	carry out
the 	resolution adopted by the 	civil 	service 	division.
Finally, 	the 	charging parties argue 	that 	CSEA's motive 	for
filing 	charges 	and 	the 	lawsuit 	against 	them was 	to 	retaliate 	for
their protected conduct. 	Ms. 	Hackett and the 	others 	argue 	that
CSEA would not 	have 	waited nearly a year 	to 	take 	action against
them if 	recovery of 	the 	documents 	was 	the 	true motivation 	for the
Wilson charges 	and the lawsuit. 	Obviously, 	the 	charging parties
argue, 	this 	justification 	for 	the Wilson 	charges 	and the 	lawsuit
was pretextural. 	The true reason, 	they continue, 	was 	to prolong
the ban 	from holding 	office 	in CSEA. 	"CSEA's 	lawsuit 	and
internal 	charges practically coincide with the 	end of 	the
29

charging parties 	first 	suspension and 	their 	restored 	eligibility
to 	run for union office," 	they argue.
CSEA argues 	the 	failure 	to 	return the 	documents 	was 	the
single 	reason 	for the Wilson 	charges 	and the 	lawsuit. 	CSEA
contends 	it 	had 	legitimate 	justification 	to 	seek 	return of 	the
documents. 	It 	argues 	that 	the 	some 	of 	the documents 	contained
sensitive 	information 	including 	home 	addresses 	and 	telephone
numbers 	of all 	unit 	1 members. 	CSEA argues 	that 	the 	information
contained 	in 	the 	documents 	could be used against 	the best
interests 	of 	the union. 	CSEA argues 	that 	the 	lawsuit was 	a
well-founded 	attempt 	to 	recover 	its 	property 	from persons 	who
were no 	longer entitled to possess 	it.
Charging parties 	contention 	that 	retaliatory motive was 	the
real 	reason 	for CSEA's 	action against 	them 	is 	well 	supported by
the evidence. 	Evidence of unlawful motivation is 	apparent 	in the
resolution by the 	CSEA Board of Directors. 	It 	instructed the
Union president 	and general 	manager 	to 	"take whatever 	steps 	are
necessary 	. . . 	to 	bring 	disciplinary 	action 	or 	lawsuit 	against
any member whose 	activities 	could adversely affect 	CSEA." 	At
least 	one 	director 	identified 	the 	"Hackett 	and Hard group" 	as 	the
target 	of 	the 	resolution. 	There 	is no evidence of 	any activities
by 	the 	"Hackett 	and Hard group" 	at 	the 	time 	the 	resolution was
passed other 	than activities 	here 	found 	to have been protected.
Clearly, 	the 	charging parties were not 	engaging 	in a
decertification 	campaign 	or 	any 	other actions 	threatening 	to 	the
life 	of 	CSEA.
30

There also 	is 	evidence 	of unlawful 	motivation 	in 	the 	timing
of 	the Wilson 	charges 	and the 	lawsuit. 	Both followed 	close 	in
time 	to 	the 	resolution by the 	CSEA Board of Directors. 	Even more
significantly, 	the Wilson charges were 	filed just 	six days before
the expiration of 	the one-year ban against Ms. 	Hackett, 	Mr. 	Hard
and 	the 	others 	from holding CSEA office. 	The 	charges 	sought 	as 	a
remedy, 	a 	one-year extension 	in the prohibition against 	charging
parties 	from holding 	office 	in CSEA.
I 	find 	CSEA's 	justification 	for 	the Wilson 	charges 	and 	the
lawsuit 	entirely unpersuasive. 	It 	is hard to believe 	that 	the
documents 	could be 	as 	critical 	as 	CSEA now 	contends 	when 	for
nearly a year 	the Union virtually 	ignored 	the 	failure 	of 	the
charging parties 	to 	return them. 	CSEA's 	first 	request 	for 	the
return of 	the documents was made 	in the Solari 	letter of June 22,
1992. 	The 	charging parties 	did not 	return the documents 	and CSEA
did nothing about 	it. 	Four months 	later, 	CSEA made a second
request 	for the documents 	in the Zenz 	letter of October 19, 	1992.
Again, 	the 	charging parties 	did not 	return the 	documents 	and CSEA
did nothing about 	it. 	Eight more months passed while 	the
supposedly 	critical 	documents 	remained 	in 	the 	possession 	of 	the
charging parties 	and CSEA did nothing about 	it. 	If 	the 	charges
really had been 	intended to 	secure 	the 	return of 	documents, 	one
would 	expect 	them to have been 	filed much 	closer 	in 	time 	to 	the
initial 	demands 	for 	their return. 	As 	charging parties point 	out,
it was 	only when the ban on 	their 	service 	in CSEA office was
about 	to expire 	that 	CSEA acted. 	Given this 	timing, 	it 	seems 	far
31

more probable 	that 	the Wilson 	charges 	were 	intended 	to 	keep
charging parties 	from running 	for 	CSEA office 	than 	to 	recover 	the
documents.
One 	also would expect 	that 	if 	the 	critical 	documents 	were 	so
sensitive, 	CSEA would have a past 	history of 	recovering 	such
documents 	from others 	who 	had 	left 	CSEA office 	either voluntarily
or after 	the 	filing 	of 	charges. 	One 	further would expect 	that
CSEA would not 	allow even 	its 	friends 	to 	retain 	truly 	sensitive
documents 	for which they no 	longer had a need. 	Yet 	there 	is 	no
evidence 	that 	CSEA ever previously asked 	for the 	return 	of
documents 	such as 	those at 	issue here, 	even from Linda Roberts
who was 	suspended 	from CSEA office 	at 	about 	the 	same 	time 	as
charging parties.
I 	find 	in 	this 	complete break with past practice 	on 	the
return of 	documents 	further evidence 	of 	retaliatory motivation.
The actual purpose of the Wilson charges, 	I 	conclude, 	was 	to keep
charging parties 	out 	of 	CSEA office 	for another year 	in
retaliation for their protected activities. 	For these 	same
reasons, 	I 	conclude 	that 	the 	filing of 	the 	lawsuit 	similarly was
motivated by 	retaliatory 	intent.
Finally, 	the motivation for the September 28 	charges 	is
self-evident. 	The 	charges 	sought 	"permanent 	suspension" 	of 	the
charging parties 	from membership. 	The 	reason given 	for 	this
harsh action was 	the 	distribution by 	the 	charging parties 	of 	The
Union Spark in front 	of a State building on September 16, 	1993.
It 	is obvious, 	initially, 	that the penalty sought 	is
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astonishingly grave 	for 	the 	alleged offense. 	This 	distorted
relationship 	is 	of 	itself 	evidence 	of unlawful motivation. 	In
addition, 	I already have 	concluded that 	the distribution of 	The
Union Spark is protected conduct. 	On their face, 	therefore, 	the
September 	28 	charges 	constituted retaliation 	for 	engaging 	in
protected 	conduct.
Accordingly, 	I 	conclude 	that by filing 	the June 	17 and
September 23 	charges 	and the July 2 	lawsuit, 	CSEA discriminated
against 	the 	charging parties 	in 	retaliation 	for protected
conduct. 	By these actions, 	CSEA violated section 3519.5(b).
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 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
The 	charging parties 	ask 	that 	CSEA be 	directed 	to 	sign a
notice 	agreeing 	to 	cease 	and desist 	from its 	actions 	against
them. 	They ask 	that 	the 	notice be posted where 	CSEA normally
posts 	its 	notices 	and that 	the 	notice also be printed 	in 	the 	CSEA
publication Pride. 	They also ask that 	they be made whole 	for
lost 	wages 	and vacation 	time 	and attorney's 	fees 	and 	legal 	costs
incurred 	in defending against 	the 	lawsuit 	and 	in bringing 	the
present 	action. 	They also ask 	for compensatory damages 	of
$30,000 	each 	"for emotional 	suffering and loss 	of 	reputation."
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It 	is 	appropriate 	that 	CSEA be directed to 	cease and desist
from its 	discriminatory actions 	against 	charging parties 	or
otherwise denying them the 	right 	to participate. 	It 	is 	further
appropriate 	that 	CSEA be 	directed 	to post 	a 	notice 	incorporating
the terms 	of 	the 	order. 	Posting of 	such a notice, 	signed by an
authorized agent 	of 	CSEA, 	will 	provide 	employees with notice 	that
CSEA has 	acted 	in an unlawful 	manner, 	is 	being 	required to 	cease
and desist 	from this 	activity, 	and will 	comply with 	the 	order.
It 	effectuates 	the purposes 	of 	the Dills Act 	that 	employees be
informed 	of 	the 	resolution 	of 	this 	controversy and 	the 	State's
readiness 	to 	comply with 	the 	ordered 	remedy. 	(Placerville Union
School District 	(1978) 	PERB Decision No. 	69.)
Charging parties 	have made 	no 	showing why 	the posting 	of 	a
notice 	is 	not 	sufficient 	to 	inform employees 	of 	the 	result 	of
this 	action and why CSEA should be 	directed 	to 	grant 	the 	further
remedy of publication of 	the notice 	in Pride. 	Absent a 	showing
that 	such a remedy 	is 	justified, 	it will 	not be granted.
The 	claim for damages 	is 	a 	request 	for a personal 	injury
remedy. 	Tort 	remedies are 	not 	available 	in unfair practice
proceedings 	where 	the 	scope 	of 	the 	remedy 	is 	limited to 	stopping
unlawful 	conduct 	and 	restoring 	the 	aggrieved party 	to his/her
pre-injury position. 	The 	claim for damages 	is 	denied.
Attorney's 	fees 	and costs 	of 	the 	litigation, 	including lost
time and wages, 	are not 	appropriate 	"unless 	there 	is 	a showing
that 	the 	respondent's 	unlawful 	conduct 	has 	been 	repetitive 	and
that 	its 	defenses 	are without 	arguable merit." 	(Modesto City
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Schools and High School District 	(1985) 	PERB Decision No. 	518.)
This 	is 	the 	first 	action between these parties 	in which a 	finding
has been 	found against 	CSEA. 	There 	is 	no pattern of 	repetitive
findings 	of violations 	against 	CSEA and 	it 	cannot 	be 	said 	that
CSEA's 	defense was without 	arguable merit. 	Accordingly,
attorneys 	fees and other costs 	of 	litigation, 	including lost 	time
and wages, 	are denied.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the
California State 	Employees Association 	(CSEA) 	has violated
section 3519.5(b) 	of 	the Ralph C. 	Dills Act by:
1. 	Filing written charges, 	on or about June 17, 	1993,
against Cathy Hackett, 	Jim Hard, 	Sam Jurado, 	Dave Weston and
Doyle 	Harris 	seeking 	their 	suspension 	from membership 	in 	CSEA 	for
at 	least 	one year;
2. 	Naming 	them in a 	civil 	lawsuit 	on or about 	July 2,
1993;
3. 	Filing written charges against Ms. 	Hackett 	and
Mr. 	Hard, 	on or about September 28, 	1993, 	seeking their lifetime
suspension 	from 	CSEA.
Pursuant to section 3514.5(c) 	of the Government Code, 	it
hereby 	is 	ORDERED 	that 	CSEA and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
Retaliating against 	Cathy Hackett, 	Jim Hard, 	Sam
Jurado, 	Dave Weston and Doyle Harris 	for engaging 	in activities
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protected by the Ralph C. 	Dills Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Immediately withdraw the June 17, 	1993, 	charges
against 	Cathy Hackett, 	Jim Hard, 	Sam Jurado, 	Dave Weston and
Doyle 	Harris 	that 	seek their 	suspension 	from membership 	in CSEA
for at 	least 	one year. 	The lawsuit and September 28, 	1993,
charges 	already having been withdrawn by CSEA, 	no 	other action 	is
necessary.
2. 	Within ten 	(10) 	workdays 	of 	the 	service of a 	final
decision in this matter, 	post at all work locations where notices
customarily are posted 	for employees 	represented by 	CSEA, 	copies
of 	the Notice attached hereto as 	an Appendix. 	The Notice must be
signed by an authorized agent 	of 	CSEA, 	indicating 	that 	CSEA 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 ensure 	that 	the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or covered with any other
material.
3. 	Upon 	issuance of a 	final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with 	this 	Order 	to
the 	Sacramento Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the 	director's 	instructions.
In accordance with PERB regulations, 	the statement 	of
exceptions must be 	filed with the Board 	itself within 2 0 	days 	of
service 	of 	this Decision or upon service 	of 	the 	transcript 	at 	the
headquarters 	office 	in Sacramento. 	The 	statement 	of 	exceptions
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should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of the record, 	if any, 	relied upon for such exceptions. 	(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 	. . . " 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	sec. 32135; Cal. Code of Civ. P r o c , 	sec. 	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. 	(Cal. 	Code 	of
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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