State of California (Department of Transportation) (International Union of Operating Engineers) (PERB 1176S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF 	OPERATING
ENGINEERS, 	CRAFTS MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF TRANSPORTATION),
Respondent.
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) 	Case No. 	S-CE-854-S
PERB Decision No. 	1176-S
November 	18, 	1996
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for International Union of Operating
Engineers, 	Crafts Maintenance Division, 	Unit 12; 	State of
California 	(Department of 	Personnel Administration) 	by Paul M.
Starkey, 	Labor Relations Counsel, 	for State of California
(Department of Transportation).
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's
dismissal 	(attached) 	of 	an unfair practice 	charge 	filed by 	the
International Union of Operating Engineers, 	Crafts Maintenance
Division, 	Unit 12 	(IUOE). 	In its charge, 	IUOE alleged that the
State of 	California 	(Department 	of 	Transportation) 	(State)
violated section 3519 	of 	the Ralph C. 	Dills Act 	(Dills Act)1 by
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 provides, 	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
_____ )

soliciting 	employees 	to 	resign 	from membership 	in 	the union.
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	IUOE's unfair practice 	charge, 	the warning and
dismissal 	letters, 	IUOE's appeal and the State's 	response
thereto. 	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-854-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
(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
August 19, 	1996
Stewart Weinberg, 	Attorney-
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, Suite 14 00
Oakland, 	CA 94612
Re: 	NOTICE 	OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
International 	Union of Operating Engineers, 	Crafts
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	Transportation)
Unfair 	Practice 	Charge No. 	S-CE-854-S
Dear Mr. 	Weinberg:
I 	indicated to you, 	in my attached letter dated July 25, 	1996,
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 August
5, 	1996, 	the 	charge would be dismissed. 	This deadline was
subsequently extended to August 	19, 	1996 	at your request.
I 	have not 	received either an amended charge 	or 	a 	request 	for
withdrawal, 	and you confirmed by telephone on August 	19, 	1996
that 	an amended charge would not be 	filed. 	Therefore, 	I 	am
dismissing 	the 	charge 	based on 	the 	facts 	and reasons 	contained 	in
my July 25, 	1996 	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
@
•

Dismissal 	Letter
S-CE-854-S
August 19, 	1996
Page 	2
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 	8, 	sec. 32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all 	parties 	to 	the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage 	paid and
properly 	addressed.
Extension of 	Time
A request 	for an 	extension of 	time, 	in which to 	file 	a 	document
with 	the 	Board 	itself, 	must 	be 	in writing and 	filed with 	the
Board 	at 	the 	previously noted address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration 	of 	the 	time 	required 	for 	filing the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
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: 	K. 	William Curtis

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
July 25, 	1996
Stewart Weinberg, 	Attorney
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 	1400
Oakland, 	CA 94612
Re: 	WARNING LETTER
International 	Union of Operating Engineers, 	Crafts
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	Transportation)
Unfair 	Practice 	Charge No. 	S-CE-854-S
Dear Mr. 	Weinberg:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	on June 	21,
1996. 	In its 	charge, 	the 	International Union of Operating
Engineers, 	Crafts Maintenance Division, 	Unit 12 	(Union or
Charging 	Party) 	alleges 	that 	the 	California Department 	of
Transportation 	(CalTrans) 	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
CalTrans. 	The 	Union 	and the 	State were parties 	to 	a Memorandum
of Understanding 	(MOU) 	that expired June 	30, 	1995.
On May 17, 	1996, 	the Department of Personnel Administration
distributed 	a 	memo by Chief 	of 	Labor Relations 	Rick McWilliam
informing 	departments 	that 	new 	collective 	bargaining 	agreements
had not 	been reached 	for most 	State bargaining units, 	including
unit 	12. 	The memo 	further asked departments 	to 	remind employees
that 	they are 	not 	prohibited 	from withdrawing 	from union
membership 	at 	any 	time by notifying 	the 	State 	Controller's 	Office
and 	the 	appropriate 	union 	in writing.
On June 4, 	1996, 	CalTrans distributed a memo to all 	employees
which 	informed 	them 	that 	negotiations 	were 	continuing between 	the
State 	and unions 	representing most 	bargaining units, 	and 	reminded
them that 	represented 	employees 	were 	no 	longer 	subject 	to 	fair
share 	fee 	deductions 	and 	represented 	employees 	are 	not 	prohibited
from withdrawing 	from union 	membership.
The 	CalTrans 	memo 	included 	the 	following 	information:
Employees 	interested 	in 	canceling 	their 	union

membership 	may do 	so 	by notifying 	their
respective union 	in writing. 	The union 	in
turn 	should notify 	the 	State 	Controllers
(SCO) 	to effect 	the cancellation. 	Although
the 	SCO will 	only cancel 	membership
deductions 	if 	requested by the union, 	you may
send 	an 	informational 	copy of 	your 	request 	to
the 	SCO at 	the 	following address: 	[Address
information omitted.].
Warning 	Letter
S-CE-854-S
July 25, 	1996
Page 	2
Questions 	regarding 	starting 	or 	canceling
union 	membership 	and 	dues 	deduction 	should 	be
directed 	to your 	respective 	union.
The 	Union 	received 	a 	written 	request 	for 	cancellation 	of 	union
dues 	from CalTrans 	employee D.L. 	Burkett. 	The 	request 	was made
using 	a preprinted 	form provided by 	CalTrans 	for 	cancellation 	of
various payroll 	deductions. 	Burkett's 	form was 	filled out 	by
hand, 	dated June 	10, 	1996, 	and mailed to the Union in an envelope
bearing the 	Department's 	name 	and 	return 	address. 	A stamp was
affixed to 	the 	envelope 	for postage.
It 	is 	alleged 	that 	Burkett 	did not 	personally complete 	all 	of 	the
information 	of 	the 	cancellation 	request 	form because 	he 	would not
have 	knowledge 	of 	the 	various 	codes 	required 	(agency/unit 	and
deduct/org 	code).
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.)
Warning 	Letter
S-CE-854-S
July 25, 	1996
Page 3
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.]
CalTrans's 	alleged 	conduct 	in this 	case 	does not 	violate 	the
standards described above. 	First, 	the memos conveying
information 	concerning 	the 	right 	to 	resign 	from Union membership
simply communicate 	that 	the 	right 	exists 	and do not 	advocate 	a
course 	of 	action. 	The 	allegations 	do not 	establish that 	the
CalTrans's 	communication was 	inaccurate, 	nor that 	it 	contained
promise 	of 	benefit 	or 	threat 	of 	coercion. 	The 	facts 	alleged do
not 	establish 	that 	the 	CalTrans 	solicited 	employees 	to 	withdraw
from membership, 	only that 	the 	CalTrans 	informed employees 	of
their right 	to 	do 	so. 	The Union's 	subjective perception of 	this
conduct 	as 	employer 	solicitation of 	employees 	to drop 	out 	of 	the
Union 	does 	not 	establish prima 	facie 	evidence 	of 	a violation
under 	the 	applicable, 	objective 	standard.
Prima 	facie 	evidence 	of 	a violation 	is 	also not 	established by
Burkett's 	use 	of 	a preprinted form or a Departmental' envelope.
The 	Union concedes 	that 	the 	form is 	one 	that may be 	used 	for
cancellation of 	a variety of payroll 	deductions, 	not 	just 	union

dues, 	and does not 	allege 	facts 	to establish that Burkett's 	use
of 	the Department's 	envelope was 	sanctioned by the 	Department.1
Warning 	Letter
S-CE-854-S
July 25, 	1996
Page 	4
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 August 	5, 	19 96, 	I
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
1Evidence of 	departmental 	knowledge 	and approval 	of Burkett's
use 	of 	the 	official 	envelope 	may 	not 	sufficient 	to 	establish 	a
prima facie violation, 	however. 	Also relevant would be allegations
concerning whether envelopes 	are provided for other correspondence
related to payroll 	deductions 	(canceling a savings bond deduction,
for 	example).