State of California (Department of Food and Agriculture) (PERB 1144S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF 	OPERATING
ENGINEERS, 	CRAFT MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF FOOD AND AGRICULTURE),
Respondent.
)
)
)
)
) 	Case No. 	S-CE-765-S
PERB Decision No. 	1144-S
March 4, 	1996
)
)
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)
)
)
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Appearance; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by William A.
Sokol, 	for International Union of Operating Engineers, 	Craft
Maintenance Division, 	Unit 12.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	International 	Union of
Operating Engineers, 	Craft Maintenance Division, 	Unit 12 	(IUOE)
of 	a Board agent's dismissal 	(attached) 	of 	its unfair practice
charge. 	IUOE 	filed a charge alleging that 	the 	State 	of
California 	(Department 	of 	Food and Agriculture) 	violated 	section
3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce

soliciting employees 	to 	resign 	from membership 	in 	IUOE. 	After
investigation, 	the Board agent 	dismissed 	the 	charge 	for 	failure
to 	establish a prima 	facie 	case 	of 	a violation of 	the Dills Act.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	IUOE's unfair practice 	charge, 	the warning and
dismissal 	letters, 	and IUOE's appeal. 	The Board finds 	the
warning and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-765-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member 	Johnson 	joined 	in 	this 	Decision.
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 27, 	1995
William A. 	Sokol, 	Attorney
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 	Grand Avenue, 	Suite 	1400
Oakland, 	CA 94612
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
International Union of Operating Engineers, 	Craft
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	Food 	and Agriculture)
Unfair 	Practice 	Charge No. 	S-CE-765-S
Dear Mr. 	Sokol:
I 	indicated to you, 	in my attached letter dated October 	12, 	1995,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it 	prior 	to
October 24, 	1995, 	the charge would be dismissed.
I 	have 	not 	received 	either 	an 	amended 	charge 	or 	a 	request 	for
withdrawal. 	I did, 	however, 	receive a letter on October 19,
1995, 	which argues 	that 	a complaint 	should issue 	in this 	case
because 	the 	employer 	did 	not 	merely 	inform 	employees 	of 	the
opportunity to 	withdraw 	from 	the 	union but
made 	a 	specific offer of 	an express benefit, 	to wit:
she 	offered to 	let 	them use 	her office 	to 	fill 	out 	the
appropriate papers.
Your 	letter relies 	on 	Rio 	Hondo 	Community College 	District 	(1980)
PERB Decision No. 	128, 	but 	does 	not 	cite 	an authority for the
proposition 	that 	an 	employer's 	offer 	to 	allow use 	of 	its 	offices
to 	fill 	out 	payroll-related papers 	by employees 	constitutes 	the
offer of 	a 	"benefit." 	Nor does 	a 	review of 	those 	cases 	where 	the
Public 	Employment 	Relations Board 	(PERB 	or Board) 	has 	considered
whether the 	promise 	of 	a benefit 	brings 	employer 	speech within
the 	ambit 	of 	an 	interference 	violation 	lend 	support 	to 	your
theory. 	(See Rio Hondo 	Community College District 	(1980) 	PERB
Decision No. 	128 	(no violation 	found based on communication of
employer's opinion of benefits of withdrawal of 	lawsuit); 	San
Ramon Valley Unified School District 	(1979) 	PERB Decision No. 	Ill
(violation 	found where 	employer 	cancelled 	in-service 	training
scheduled for day of 	organizational 	security election); 	Santa
Monica Community College District 	(1979) 	PERB Decision No. 	103

Dismissal 	Letter
S-CE-765-S
October 27, 	1995
Page 	2
(violation where 	offer 	of 	salary 	increase 	conditioned on 	waiver
of future rights).
You 	informed me 	in a 	telephone 	conversation of October 20, 	1995,
that 	an amended charge was 	not 	being 	filed, 	but 	later the 	same
day, 	by letter transmitted via 	fax, 	notified me 	that 	you were
conferring with Mr. 	Funderburg 	regarding whether 	to 	amend or
withdraw the 	charge. 	I 	telephoned you on October 26, 	1995, 	and
left 	a message 	requesting 	that 	you 	inform me 	of 	your decision 	as
the 	deadline 	had passed. 	I 	have 	not 	received a 	response 	to my
telephonic 	inquiry.
Therefore, 	I 	am dismissing the 	charge 	for these reasons, 	and
based on 	the 	facts 	and reasons 	contained 	in my October 	12, 	1995
letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and five 	copies
of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before 	the 	close of business 	(5 	p.m.) 	or 	sent by telegraph,
certified or 	Express 	United 	States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of 	Civil 	Procedure 	section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file 	a timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally

Dismissal 	Letter
S-CE-765-S
October 27, 	1995
Page 3
delivered or deposited 	in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a document
with 	the 	Board 	itself, 	must 	be 	in writing and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A request 	for an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Les 	Chisholm
Regional 	Director
Attachment
cc: 	Warren C. 	Stracener

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 12, 	1995
William A. 	Sokol, 	Attorney
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 	1400
Oakland, 	CA 94612
Re: 	WARNING LETTER
International Union of Operating Engineers, 	Craft
-_-_-_-_--Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	Food 	and Agriculture)
Unfair 	Practice 	Charge 	No. 	S-CE-765-S
Dear Mr. 	Sokol:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	on 	September
12, 	1995. 	In its charge, 	the 	International Union of Operating
Engineers, 	Craft Maintenance Division, 	Unit 	12 	(Union or Charging
Party) 	alleges 	that 	the 	State of California, 	Department 	of 	Food
and Agriculture 	(State 	or Department) 	violated Government 	Code
section 3519(a) 	and 	(b) 	by soliciting employees to resign from
membership 	in the Union.
Investigation 	of 	this 	charge 	revealed 	the 	following 	information.
Charging 	Party 	is 	the 	exclusive 	representative 	of 	State
bargaining unit 	12, 	which 	includes 	employees 	employed by the
Department. 	The Union and the 	State were parties 	to 	a Memorandum
of Understanding 	(MOU) 	that expired June 	30, 	1995.
James 	Gillen 	is 	employed by the 	Department 	at 	the 	Orange 	County
Fairgrounds 	as 	a Maintenance Worker District 	Fairs. 	Gillen 	is
active 	in 	the 	Union 	and 	currently 	serves 	on 	the 	negotiating 	team
representing 	fairground worker 	classifications. 	Gillen 	has 	also
filed 	several 	grievances, 	including an out-of-class 	claim 	for
Alberto Aguirre. 	Aguirre 	is 	employed as 	a Fairground Aid, 	and 	in
July 	1995 	he 	was 	awarded 	approximately 	$15,000 	in back pay 	as 	a
result 	of 	the 	out-of-class 	claim.
Gillen's 	and Aguirre's 	supervisor is Hank Vidal, 	Maintenance 	and
Operations Supervisor. 	On April 	28, 	1995, 	Vidal discussed a
uniform allowance grievance, 	filed by Gillen, 	with several
fairground private 	contractors 	and, 	in 	the presence 	of 	unit
employees, 	laughed while discussing the grievance. 	On another
occasion, 	following Aguirre's back pay award, 	Vidal became 	angry
with 	an 	electrician 	and 	cursed both 	the 	electrician 	and Aguirre.
On June 	21, 	1995, 	Vidal 	informed Gillen that 	he did not want 	him
to 	attend 	the 	bargaining 	session 	scheduled 	the 	following day 	in

Warning 	Letter
S-CE-765-S
October 12, 	1995
Page 	2
Sacramento. 	Gillen 	attended 	the 	bargaining 	session 	and 	reported
the 	incident. 	Representatives 	of 	the 	Department 	of 	Personnel
Administration 	(DPA) 	informed the 	Department 	that 	Gillen's
presence 	was 	necessary at 	bargaining 	sessions.
On June 	27, 	1995, 	a memo distributed by DPA Director David
Tirapelle 	informed departments 	of 	the 	expiration 	of 	collective
bargaining agreements 	for 	all 	State 	bargaining units 	as 	of 	June
30, 	1995. 	The memo 	further explained what 	changes would occur as
a 	result 	of 	the 	expiration of 	these 	agreements 	and 	the 	decision
not 	to 	extend them. 	Among the 	changes 	detailed was 	the 	fact 	an
employee 	could withdraw his/her 	union membership 	at 	any 	time 	by
notifying 	the 	State 	Controller's 	Office 	and 	the 	employee's 	union.
Janice 	Foster 	is 	employed by the 	Department 	at 	the 	Orange 	County
Fairgrounds 	as 	a business 	assistant 	in administrative 	services,
reporting to 	Vidal.1 On July 15, 	1995, 	Foster approached Union
member Drew Daniels 	and 	informed 	him 	in 	the 	presence 	of 	other
Unit 	12 	employees 	that 	the Union no 	longer had a 	contract 	and
that 	he 	could 	save 	$26.00 	in Union dues 	by dropping 	out 	of 	the
Union. 	She 	also 	stated that 	other employees 	could come 	to her
office 	to 	fill 	out 	the paperwork 	to drop out 	of 	the Union.
On July 16, 	1995, 	Filiberto Salinas, 	Senior Maintenance Worker,2
called 	all 	the 	Hispanic 	employees 	together 	and 	informed 	them 	in
Spanish 	that 	they could 	drop 	out 	of 	the 	Union by going 	to 	see
Janice Foster to do the paperwork. 	One employee, 	Jose Eskabell,
went 	to 	Foster 	to 	ask 	for 	clarification of 	what 	Salinas 	had 	said.
Foster 	stated that 	if 	Eskabell 	did not 	want 	to be 	in 	the Union,
"they won't 	take 	any more money out 	of your check. 	If you don't
drop, 	nothing's 	going to change." 	This 	comment was 	interpreted
by employees 	to mean 	that 	Foster was 	encouraging them 	to 	drop out
of 	the Union.
.
Shortly thereafter, 	Chet 	Foster, 	a unit 	12 	employee and the
father of 	Janice 	Foster, 	approached Aguirre 	and made 	negative
comments 	about 	Gillen and the 	Union. 	Since 	the 	above-described
events, 	Aguirre 	has missed three 	days 	of work due 	to 	stress-
related medical 	conditions.
On July 27, 	1995, 	Stephanie Castignolia, 	a Personnel Services
Specialist 	II 	for the 	Department 	in the 	32nd District
1 Foster is 	designated 	as 	a 	supervisory employee.
2Salinas' 	position is 	included in unit 	12.

Warning 	Letter
S-CE-765-S
October 12, 	1995
Page 3
Agricultural 	Association,3 telephoned Union 	representative 	Fred
Young 	in Anaheim to 	inform him 	that 	the 	Union had 	a
"troublemaker" 	at 	the 	fairgrounds, 	whose grievance 	filings were
causing members 	to 	drop out 	of 	the Union. 	Castignolia 	identified
the 	troublemaker as 	Gillen.
Castignolia 	also telephoned Rick 	Funderburg, 	the Union's 	Unit 	12
Coordinator, 	and they spoke on August 	3, 	1995. 	Castignolia gave
Funderburg the 	same message 	regarding Gillen, 	and 	stated that
Drew Daniels 	and 	Chet 	Foster 	had 	resigned 	from 	the 	Union.
Funderburg 	informed Gillen 	of 	his 	conversation with 	Castignolia
on 	the 	same 	day.
Discussion
The 	Board has 	long held 	that 	an 	employer 	has 	a protected 	right 	to
communicate with employees 	on employment 	related matters, 	so 	long
as 	that 	communication does 	not 	violate 	certain 	standards.
(Alhambra City and High School 	Districts 	(1986) 	PERB Dec. 	No.
560, 	citing Rio Hondo Community College District 	(1980) 	PERB Dec.
No. 	128 	(Rio Hondo).) 	In Rio Hondo 	the Board considered the
language 	of 	section 	8(c) 	of 	the National 	Labor Relations Act 	in
adopting 	a 	test 	regarding 	an 	employer's 	free 	speech 	rights 	as
follows:
[T]he Board finds 	that 	an Employer's 	speech which
contains 	a 	threat 	of 	reprisal 	or 	force 	or promise 	of
benefit 	will 	be 	perceived 	as 	a means 	of violating 	the
Act and will, 	therefore, 	lose 	its protection and
constitute 	strong evidence 	of 	conduct 	which 	is
prohibited by 	[the Act].
The 	determination of 	whether 	an 	employer's 	speech 	is 	protected or
constitutes 	a proscribed 	threat 	or promise 	is 	made 	by applying 	an
objective 	rather 	than a 	subjective 	standard. 	(Trustees 	of 	the
California State University 	(1989) 	PERB Dec. 	No. 	777-H.)
Statements 	made 	by 	an 	employer 	are 	viewed 	in 	their 	overall
context 	to determine 	if 	they have 	a 	coercive meaning 	(Los Angeles
Unified School District 	(1988) 	PERB Dec. 	No. 	659), 	and the Board
places 	considerable 	weight 	on 	the 	accuracy of 	the 	content 	of 	the
speech 	in 	determining whether 	the 	communication 	constitutes 	an
unfair labor practice. 	(Alhambra 	City and High School 	Districts,
supra; 	Muroc Unified School District 	(1978) 	PERB Dec. 	No. 	80.)
3Castignolia's 	position 	is 	included 	in 	bargaining 	unit 	1,
represented by the 	California 	State 	Employees' 	Association.

Warning 	Letter
S-CE-765-S
October 12, 	1995
Page 	4
Thus, 	where 	employer 	speech accurately describes 	an
event, 	and does not 	on 	its 	face 	carry the 	threat 	of
reprisal or force, 	or promise of benefit, 	the Board
will 	not 	find the 	speech unlawful. 	(Chula Vista 	City
School District 	(1990) 	PERB Dec. 	No. 	834.)
The National 	Labor Relations 	Board 	(NLRB) 	has 	applied this 	same
test 	to 	questions 	involving 	employer 	conduct 	like 	that 	complained
of 	here. 	Citing Perkins Machine 	Company 	(1963) 	141 NLRB 	697 	and
Cyclops Corp. (1975) 	216 	NLRB 	857, 	the 	NLRB 	held 	that:
Established 	[NLRB] 	principle 	holds 	that while 	employers
may not 	solicit 	employees 	to 	withdraw 	from union
membership, 	they may, 	on the other hand, 	bring to
employees' 	attention 	their right 	to 	resign 	from the
union and 	revoke 	dues-checkoff 	authorizations 	so 	long
as 	the 	communication 	is 	free 	of 	threat 	and 	coercion or
promise of benefit. 	[Ace Hardware Corp. 	(1984) 	271
NLRB 	178.]
The 	Department's 	alleged 	conduct 	in 	this 	case 	does 	not 	violate
the 	standards described above. 	First, 	the 	only communication
concerning 	resignation 	from 	Union membership 	which 	clearly
involved an agent of 	the 	Department 	is 	that 	of 	Janice 	Foster. 	In
addition, 	the 	allegations 	do not 	establish that 	the Department's
communication was 	inaccurate, 	nor that 	it 	contained promise 	of
benefit 	or threat 	of 	coercion. 	The 	facts 	alleged do not
establish 	that 	the 	Department 	solicited 	employees 	to 	withdraw
from membership, 	only that 	the 	Department 	and unit 	employees
informed employees of 	their right 	to do 	so. 	The 	"fact" 	that 	this
conduct 	was 	subjectively perceived by at 	least 	some 	employees 	as
encouragement 	to 	drop 	out 	of 	the 	Union does 	not 	establish prima
facie 	evidence 	of 	a violation under the 	applicable, 	objective
standard.
For these 	reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there 	are 	any factual 	inaccuracies
in 	this 	letter or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled First 	Amended 	Charge.
contain all 	the 	facts 	and allegations you wish to make, 	and be
signed under penalty of 	perjury by the 	charging party. 	The
amended 	charge 	must 	be 	served on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge or withdrawal 	from you before October 24. 	1995, 	I

Warning 	Letter
S-CE-765-S
October 12, 	1995
Page 	5
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	ext. 	359.
Sincerely,
Les 	Chisholm
Regional 	Director
HLC:cb
cc: 	Richard G. 	Funderburg