California State Employees Association (Hutchinson) (PERB 1369S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CESSALY D. 	HUTCHINSON,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-37-S
PERB Decision No. 	1369-S
December 23, 	1999
Appearance: 	Cessaly D. 	Hutchinson, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by
Cessaly D. 	Hutchinson 	(Hutchinson) 	of 	a Board agent's partial
dismissal 	(attached) 	of the unfair practice charge. 	In the
charge, 	Hutchinson and Jean Laosantos 	(Laosantos) 	alleged that
the 	California 	State 	Employees 	Association 	(Association)
discriminated 	against 	them 	for 	their 	exercise 	of 	protected
conduct 	in violation of 	section 3519.5(b) 	of 	the Ralph C. 	Dills
Act 	(Dills 	Act).1
*The Dills Act 	is 	codified at Government 	Code 	section 3512
et seq. 	Section 3519.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	their exercise of 	rights
)
)
)
)
)
)
)
)
)
)
______________ )

guaranteed by 	this 	chapter.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including the unfair practice 	charge, 	the partial 	warning and
partial 	dismissal 	letters and Hutchinson's appeal. 	The Board
finds 	the partial 	warning and partial 	dismissal 	letters 	to be
free 	of prejudicial 	error and adopts 	them as 	the decision of 	the
Board 	itself 	in accordance with 	the 	following 	discussion.
DISCUSSION
On September 4, 	199 8, 	Hutchinson and Laosantos 	filed the
instant 	unfair practice 	charge 	alleging 	that 	the Association
interfered with 	the 	internal 	Association 	election process 	and
thereby 	discriminated against 	them 	for 	their exercise 	of
protected rights 	in violation of 	the Dills Act. 	Specifically, 	it
is 	alleged 	that 	the Association 	conducted 	elections 	outside 	of
the 	timeframe 	required by 	internal Association bylaws; 	mailed
election ballots 	in violation of 	internal 	Association bylaws;
improperly validated ballots 	in violation 	of 	internal 	Association
bylaws; 	failed to properly distribute election results 	in
violation of 	internal Association bylaws; 	and improperly
installed Association 	officers.
On June 	7, 	1999, 	a Board agent 	issued a partial 	dismissal 	of
the unfair practice 	charge,2 which Hutchinson appealed on
June 25, 	1999.
2A complaint 	alleging a violation of 	the Dills Act 	based on
other 	allegations 	contained within 	the 	unfair practice 	charge 	was
also 	issued by 	the Board agent 	on June 	7, 	1999.
22

The 	Board has 	long held that 	it will 	not 	intervene 	in
matters 	involving 	the 	solely 	internal 	activities 	or 	relationships
of 	an 	employee 	organization which do 	not 	impact 	employer-employee
relations. 	(Service Employees 	International Union. 	Local 	99
(Kimmett) (19 79) PERB Decision No. 106 at pp. 15-16; California
State Employees Association 	(Hutchinson, 	et al.) 	(1998) 	PERB
Decision No. 	1304-S.) 	In California State Employees Association
(Hard, 	et al.) 	(1999) 	PERB Decision No. 	1368-S, 	the Board
reiterated this policy, 	stating:
. 	. 	. 	the Dills Act does not protect solely
internal 	union participation 	and 	activities
of 	employees which do not 	impact 	employer-
employee 	relations. 	The burden of proof 	is
on 	the 	charging party 	to demonstrate 	the
existence 	of 	such an 	impact.
The 	Board also noted 	that 	it 	retains 	the authority 	to assess 	the
reasonableness 	of 	a union's 	membership 	restrictions pursuant 	to
Dills Act 	section 3515.5.3
Applying this policy to this 	case, 	it 	is clear that 	the
allegations 	involve 	solely 	internal 	union activities. 	However,
Hutchinson and 	Laosantos 	have 	not 	demonstrated 	that 	those
internal 	union activities 	have 	any 	impact 	on employer-employee
relations. 	Therefore, 	they have 	failed to meet 	their burden and
the Board 	concludes 	that 	the Dills Act does 	not protect 	the
3Dills 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.
33

internal 	union activities 	and participation 	in which 	the 	charging
parties 	were 	engaged and which 	form the basis 	of 	the 	dispute 	in
this 	case. 	Therefore, 	the partial dismissal of 	the unfair
practice 	charge must be affirmed on that basis.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SF-CO-37-S is hereby AFFIRMED.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
4

STATE OF CALIFORNIA 	' 	GRAY DAVIS, Governor
PUBLIC [EMPLOYMENT 	RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 7, 	1999
Cessaly 	Hutchinson
Re: 	PARTIAL 	DISMISSAL 	OF 	UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Cessalv Denise 	Hutchinson v. 	California 	State 	Employees
Association
Unfair 	Practice No. 	SF-CO-37-S
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed on 	September
4, 	1998, 	alleges 	that 	the California State Employees Association
(Association) 	interfered with 	the 	election processes 	for 	Civil
Service Division officers 	and delegates, 	as well 	as positions 	for
regional 	officers. 	This 	conduct 	is 	alleged to violate 	Government
Code 	section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated May 26, 	1999,
that 	certain 	allegations 	contained 	in 	the 	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 these
allegations 	to 	state 	a prima 	facie 	case 	or withdrew 	them prior 	to
June 	3, 	1999, 	the 	allegations would be dismissed.
I 	have 	not 	received 	either 	an 	amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing those allegations which
fail 	to 	state 	a prima 	facie 	case based on the 	facts 	and reasons
contained 	in my May 26, 	1999 	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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain
the case- name 	and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close 	of 	business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United 	States 	mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or 	delivered to 	a 	common
•
®

Partial 	Dismissal 	Letter
SF-CO-37-S
June 7, 	1999
Page 2
carrier promising 	overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later 	than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135 (a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission 	before 	the 	close 	of 	business 	on the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may 	be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c).)
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.

Partial 	Dismissal 	Letter
SF-CO-37-S
June 7, 	1999
Page 3
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 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
DONN GINOZA
Regional 	Attorney
Attachment
cc: 	Mark DeBoer

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 26, 	1999
Cessaly 	Hutchinson
Re: 	PARTIAL WARNING LETTER
Cessaly Denise 	Hutchinson v. 	California 	State 	Employees
Association
Unfair Practice No. 	SF-CO-37-S
Dear Ms. 	Hutchinson:
The 	above-referenced unfair practice 	charge, 	filed 	on 	September
4, 	1998, 	alleges 	that 	the California State Employees Association
(Association) 	interfered with the 	election processes 	for Civil
Service Division officers and delegates, 	as well 	as positions 	for
regional 	officers. 	This 	conduct 	is 	alleged to violate Government
Code section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act).
Investigation of 	the 	charge 	revealed the 	following. 	Cessaly
Denise 	Hutchinson and Jean Laosantos 	are members 	of 	the
Association. 	They are, 	or were, 	officers 	in the Association,
each holding 	the 	office 	of 	president 	of 	a District 	Labor 	Council
(DLC). 	The Association is 	comprised of 	several major membership
sections. 	The Civil 	Service Division, 	one such section, 	is
composed of 	current 	state employees. 	The DLCs 	are 	representative
bodies 	of 	the 	Civil 	Service 	Division's 	geographic 	subdivisions
within the 	state. 	The Association 	itself 	is 	governed by 	its
Board of Directors, 	which 	is 	composed of 	elected representatives
from the various 	divisions.
By letter dated September 4, 	1998, 	Hutchinson and Laosantos 	filed
a protest 	with Jim Hard, 	Director of 	the 	Civil 	Service Division,
and Perry Kenny, 	President 	of 	the Association. 	The 	letter 	is
attached 	to 	the 	charge 	and 	constitutes 	a 	contemporaneous
statement 	of 	the 	facts 	supporting the 	charge. 	The 	letter alleges
that 	Hutchinson 	and Laosantos 	are members 	of 	the 	Association who
are 	not 	affiliated 	with 	a 	grouping within 	the Association 	known
as 	the Caucus 	for a Democratic Union 	(CDU). 	The 	letter states
that 	the 	charges 	are 	filed against 	Board of 	Directors 	Executive
Vice-President 	Paul 	Gonzalez-Coke, 	Civil 	Service Division
Officers 	Jim Hard and Kathy Hackett, 	and others, 	as well 	as 	the
CDU. 	These 	individuals 	are 	alleged to have been part 	of 	a
concerted effort 	to 	seize 	control 	of 	the 	Civil 	Service 	Division,
principally 	through gerrymandering 	the 	districts 	in 	favor 	of 	CDU
candidates. 	The 	letter refers 	to a civil 	court 	action filed
against 	the 	same 	officers 	for violating 	internal 	Association
policies 	relating 	to 	officer elections.

Partial 	Warning 	Letter
SF-CO-37-S
May 26, 	1999
Page 2
In the 	spring of 	1998, 	a 	superior court 	judge 	found 	in the 	action
that 	the 	first 	elections 	were 	not 	held 	in 	compliance 	with 	"normal
rules 	applicable 	to 	such activities."
Charging 	Parties 	allege 	that 	presidents 	and 	other 	officers 	were
installed 	from DLCs 	not 	found by 	the 	court 	to 	have 	been 	affected
by the 	unlawful 	election procedures 	and that 	this 	was 	improper
nonetheless 	because 	it 	stemmed 	from the 	"wrongful 	attempt 	to
illegally realign 	[i.e., 	gerrymander] 	the 	[districts] 	to rid the
[Civil 	Service Division] 	of 	'non-CDU' 	DLC presidents." 	Charging
Parties 	allege 	that 	the votes 	and candidacies 	of members 	in
districts 	not 	realigned might 	have 	been 	different 	but 	for 	the
realignment 	because 	members 	may have 	viewed differently 	their
chances 	for 	success 	and reasons 	for voting under 	those
circumstances. 	Charging Parties 	therefore 	claim that 	the
elections 	should have 	been redone 	across 	the 	board and that 	none
of 	the 	officers 	should be 	installed at 	the 	present 	time.
Charging 	Parties 	further 	claim 	that 	the 	second 	elections 	were
illegally held. 	They 	claim that 	CDU members 	were 	allowed union
leave 	or 	"lost 	timer 	status" 	to 	campaign 	in the DLC 	elections
against 	non-CDU candidates. 	CDU members 	used Association
resources 	to 	the 	detriment 	of 	non-CDU candidates, 	such as
themselves. 	These 	resources 	included phonebanking, 	postcard
mailings, 	and business meetings 	(held as 	a pretext 	for 	soliciting
support 	for CDU members).
Charging 	Parties 	also 	claim there 	were 	irregularities 	in 	the
ballot 	count based on the conduct 	of John J. 	Jelinicic, 	Jr.,
Alternate Vice-Chair of 	the Unit 	1 	Bargaining Unit 	Negotiating
Committee.
Finally, 	Charging Parties 	allege 	that 	there were violations 	of
internal 	election policies 	with regard 	to 	ballots 	for 	regional
delegates.
Based on the 	facts 	stated above, 	the 	allegations 	that 	the
Association 	(1) 	improperly 	installed officers 	from DLC 	elections
in DLCs not 	realigned, 	(2) 	improperly counted ballots 	and 	(3)
violated policies 	regarding 	regional 	delegate ballots, 	as
presently written 	fail 	to 	state 	a prima 	facie violation of 	the
Dills Act 	for 	the 	reasons 	that 	follow.
Improper 	Installation 	of 	Officers
In order 	to 	state 	a violation 	involving 	interference, 	the
charging party must 	demonstrate 	that 	the 	respondent's 	conduct
resulted 	in at 	least 	slight 	harm to 	the 	rights 	of 	the 	charging
party 	to 	engage 	in activities 	protected by 	the 	Dills 	Act.

Partial 	Warning 	Letter
SF-CO-37-S
May 26, 	1999
Page 3
(Carlsbad Unified School 	District 	(1979) 	PERB Decision No. 	89;
California 	Faculty Association 	(Hale) 	(1988) 	PERB Decision No.
693-H.) 	There must 	be 	a 	showing of 	a nexus 	-- 	or cause-and-
effect 	-- 	between 	the 	respondent's 	conduct 	and the 	harm to
employee rights. 	(Id.) 	In this case, 	Charging Parties have
failed 	to 	demonstrate 	how the 	failure 	of 	the Association 	to
provide 	the 	remedy of 	new elections 	throughout 	the 	state, 	as
opposed 	to 	only those 	in 	the 	DLCs 	that 	had been 	improperly
realigned, 	caused actual 	harm to 	their 	rights 	to participate 	in
the Association. 	They 	contend 	that 	some 	candidates 	might 	have
chosen not 	to 	run 	in 	a 	non-realigned DLC 	because 	of 	realignment
in another DLC. 	They cite no 	instances 	of 	this. 	They themselves
do 	not 	contend that 	their decision whether 	or not 	to 	run was 	so
affected.
They 	also 	contend 	that 	some 	members 	may have 	voted differently 	in
non-realigned DLCs 	had 	realignment 	not 	taken place 	in other DLCs.
Again, 	they cite no 	instances.
In 	sum, 	they have made 	no 	showing of 	the 	necessary cause-and-
effect 	in their charge; 	it 	appears 	to 	rest 	purely on speculation.
Furthermore, 	even if 	such showing could be made, 	Charging Parties
have 	failed 	to 	allege 	that 	their own quality of 	participation 	in
the 	Association was 	affected 	in 	some 	measurable 	way by 	the
failure 	to 	re-run 	these 	elections. 	(See 	Riverside Unified School
District 	(1986) 	PERB Decision No. 	562a 	[requirement 	of 	standing
to file a charge] .)
Improperly 	Counted 	Ballots
The 	charge 	alleges 	that 	Hutchinson 	observed 	an 	individual
counting 	ballots 	who 	either 	duplicated 	or 	counted 	a 	ballot 	that
had 	a 	"bite-sized" 	piece missing. 	Prior 	to 	that 	time 	some
irregular ballots 	had been rejected. 	Charging 	Parties 	make 	no
showing 	that 	one 	erroneously 	counted ballot 	would have 	caused
even 	slight 	harm to 	their 	ability to 	participate 	in 	the
Association. 	(Carlsbad Unified School 	District, 	supra, 	PERB
Decision No. 	89.) 	They make 	no 	showing 	that 	any other ballot
counting 	irregularities 	occurred.
Regional 	Delegate 	Elections
The 	charge 	alleges 	that 	the 	regional 	delegate ballots 	were 	mailed
in 	the 	second election 	in August 	1998. 	The Association's
internal 	policy manual 	requires 	these 	ballots 	to be mailed no
later than April 	20. 	However, 	it 	appears 	that 	the 	reason the
ballots 	were 	not 	mailed until 	August 	was 	that 	the 	second
elections 	were 	being 	repeated 	and 	therefore 	did not 	follow 	the
traditional 	election 	schedule 	contemplated 	in the 	normal 	election

Partial 	Warning 	Letter
SF-CO-37-S
May 26, 	1999
Page 4
cycle. 	Such a 	situation 	suggests 	that 	the procedure would not
have 	amounted to an actionable violation of 	policy. 	Hence, 	there
is 	no 	evidence 	suggesting 	a discriminatory 	intent 	to 	act 	against
the 	interests 	of 	non-CDU members.1 (See 	California 	State
Employees Association 	(O'Connell) 	(1989) 	PERB Decision No.
753-H.)
For 	these 	reasons 	the 	allegations 	that 	the Association 	(1)
improperly 	installed 	officers 	from DLC 	elections 	not 	realigned,
(2) 	improperly counted ballots 	and 	(3) 	violated policies
regarding regional 	delegate ballots, 	as presently written, 	do 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 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner of 	the 	charge 	form. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before 	June 	3, 	1999, 	I
shall 	dismiss 	the 	above-described allegations 	from your 	charge.
If you have any questions, 	please call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney
1The 	charge 	also 	refers 	to 	the 	failure 	to 	announce 	election
results 	in 	the 	re-run 	elections 	on 	the 	date 	specified 	in 	the
policy. 	For the 	same 	reasons, 	this 	allegation is without merit.