State of California (Department of Corrections and Rehabilitation) (PERB 2282S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,

Charging Party, Case No. SA-CE-1795-S
V. PERB Decision No. 2282-S
STATE OF CALIFORNIA (DEPARTMENT OF August 21, 2012

CORRECTIONS & REHABILITATION),

Respondent.

Appearances: Daniel Luna, Attorney, for Service Employees International Union, Local 1000;
State of California (Department of Personnel Administration) by David M. Villalba, Legal
Counsel, for State of California (Department of Corrections & Rehabilitation).
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the State of California (Department of Corrections &
Rehabilitation) (CDCR) to the proposed decision (attached) of an administrative law judge
(ALJ). The proposed decision concludes that CDCR violated section 3519(a) and (b) of the
Ralph C. Dills Act (Dills Act)! when it disciplined an employee for her conduct undertaken as
a union job steward for Service Employees International Union, Local 1000 (SEIU).

The Board has reviewed the hearing record, the proposed decision, CDCR’s exceptions

and supporting brief, and SEIU’s responses thereto. The ALJ’s findings of fact are free of

prejudicial error, therefore we adopt them as the findings of the Board itself, except as noted

' The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory reference herein are to the Government Code.

specifically below. We likewise adopt the ALJ's conclusions of law which correctly state the
law and are well-reasoned, subject to our discussion below of issues raised by the exceptions.
PROCEDURAL HISTORY
In April 2009, SEIU filed a charge alleging that its job steward, Isabel Guerra (Guerra),
had engaged in protected activity when representing employees in meetings with supervisors
on October 24, 2008, that CDCR agents had interfered with Guerra's representation during the
meetings, and that on October 28, 2008, CDCR had retaliated against Guerra by disciplining
her because of behavior when representing the employees on October 24, 2008.
On September 16, 2009, PERB' s Office of General Counsel issued a complaint,
aiieging that Guerra engaged in protected activity by representing employees on October 24,
2008, and that on October 28, 2008, CDCR took adverse action against her in the form of
discipline because of that protected activity. Following a hearing in February 2010, the ALJ
issued the proposed decision on April 14, 2010. CDCR timely filed exceptions, to which SEIU
timely responded.
FACTUAL SUMMARY
On the morning of October 24, 2008, Supervising Registered Nurse Richard Hall (Hall)
conducted a staff meeting with Level 	unit registered nurse (RN) employees, including
Michelle Adams (Adams), assigned to the California correctional institution. (Proposed Dec.,
at pp. 5-6.) During the meeting, Adams and Hall had a sharp exchange in which Hall offered
to take their disagreement "outside." They did not do so. Soon thereafter, Adams was
by 	of Nursing Dana Buford (Buford) to a meeting. Believing her
exchange with Hall in the meeting to be the reason for Buford's summons, Adams asked
Guerra, one of two SEIU job stewards, to represent her at the meeting, and if possible, to
2

arrange for a meeting only with Buford. Guerra agreed. (Proposed Dec., at p. 6.) Later, as
Guerra and Adams approached Buford at the designated meeting time and place, Guerra asked
Buford
if
they could
meet
only with her. Buford responded no, it was
Hall's
meeting. Hall
then approached and asked
if
Guerra sought to exclude him. A
brief
exchange ensued.
(Proposed Dec., at pp. 6-7.) 	The meeting then went forward with Adams, Guerra, Hall and
Buford. As the meeting ended, Adams went to her separate meeting with Buford. As Guerra
was leaving the area, she reminded Adams that Adams should not forget to file an Equal
Employment Opportunity complaint. (Proposed Dec., at p. 7.)
Later the same day, a Level II unit RN employee, Hollis Bennett (Bennett), requested
that Guerra, also assigned to the Level II unit, represent her in a meeting with supervisors to
receive a Letter
of
Instruction (LOI), a formal "corrective action" describing unacceptable
conduct and instructing the employee as to future conduct. Again Hall and Buford were
present. During the meeting Guerra twice asked a question, and once gestured with her hand
toward Hall indicating that she was speaking not to him but to Buford. (Proposed Dec., at
pp. 7-9.)
On October 28, 2008, Hall disciplined Guerra, issuing her an LOI citing conduct in the
Adams and Bennett meetings. The LOI accused Guerra
of
improper behavior while "acting as
a representative" on October 24, 2008, charged Guerra with insubordination, discourteous
treatment
of
employees, and willful disobedience, and instructed Guerra henceforth to conduct
herself courteously, professionally and with respect to supervisors. The LOI also threatened to
exclude and replace Guerra as steward 	her
of
October 24, 2008 were to recur. Finally, the LOI stated that a copy
of
the LOI would be
placed in Guerra's personnel file for a year. (Proposed Dec., at pp. 9-11.)
3

PROPOSED DECISION
The complaint issued by PERB' s Office
of
General Counsel alleged retaliation for
protected activity. Accordingly, the ALJ applied the Board's discrimination test articulated in
Novato Unified School District (1982) PERB Decision No. 210 (Novato). 	Under Novato a
charging party must establish that there was protected activity, that the respondent knew
thereof, that the respondent took action adverse to the interest
of
the person who engaged in
protected activity, and that such adverse action was taken because
of
the protected activity.
(Novato.) Upon such showing, the burden shifts to the respondent to show,
if
it can, that it
would have taken the adverse action even in the absence
of
the protected activity.
The ALJ concluded that Guerra was acting as the SEIU's job steward at the two
meetings on October 24, 2008, that her activity was therefore protected, that CDCR's issuance
to Guerra
of
an LOI was adverse, and that the LOI was issued because
of
Guerra's protected
activity. The ALJ relied on the LOI issued to Guerra, in which Hall stated:
On October 24, 2008, you were insubordinate, discourteous,
unprofessional, and disrespectful to me during two meetings
involving employee discipline where you were acting as a
representative.
(Proposed Dec., at p. 9, emphasis in original.) CDCR urged that Guerra's conduct exceeded
the bounds
of
statutory protection. The ALJ disagreed, ruling that Guerra's speech was not "so
opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice" that it
caused "substantial disruption or material interference" with CDCR' s operations.2 Concluding
that SEIU had established a prima facie case ofretaliation, the ALJ considered CDCR's
rejoinder that it would have disciplined Guerra even 	she had not engaged 	protected
Rancho Santiago Community College District (1986) PERB Decision No. 602
(Rancho Santiago); State
of
California (Department
of
Corrections) (2001) PERB Decision
No. 1435-S (Corrections).
4

activity. The ALJ found this claim unpersuasive, reasoning the LOI itself declared that the
conduct serving as basis for the discipline was that undertaken by Guerra on October 24, 2008,
"as a representative." Thus, concluded the ALJ, CDCR had failed to rebut SEIU's prima facie
case. He ruled that CDCR's conduct had violated Dills Act section 3519(a) and (b) as alleged
in the complaint. The ALJ proposed a traditional remedy including rescission
of
the discipline
and posting
of
PERB's order.
EXCEPTIONS
CDCR's exceptions challenge the ALJ's determination that SEIU proved its
allegations
of
retaliation. CDCR contends that: (1) Guerra's conduct was not protected, but
rather unprotected and thus subject to discipline; (2) nexus was not demonstrated between the
discipline and alleged protected conduct; (3) in any event CDCR would have taken the same
action against Guerra despite any protected conduct. In addition, CDCR contends that the
ALJ: 	(4) mistakenly determined that the CDCR violated the Dills Act section 3519(b), and
(5) wrongly proposed as a remedy that CDCR rescind the discipline. Below we address
CDCR's contentions, after a brief discussion
of
employee and organizational rights under the
Dills Act.
DISCUSSION
The Dills Act protects the right
of
employees 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" (Dills Act § 3515), and the right
of
employee
organizations to "represent their members in their employment relations with the state"
(Dills Act § 3515 .5). The Dills Act effectuates these rights by prohibiting the state employer
either to "[i]mpose or threaten to impose reprisals on employees, discriminate or threaten to
5

discriminate against employees, or otherwise interfere with, restrain, or coerce employees
because of their exercise of rights" afforded by the Dills Act, or to "[ d]eny to employee
organizations rights" guaranteed to them by the Dills Act. (Dills Act§ 3519(a) and (b).)
The Legislature's purpose in establishing these rights of employees and their
organizations is stated in Dills Act section 3 512, which provides, in pertinent part:
It is also the purpose of this chapter to promote the improvement
of personnel management and employer-employee relations
within the State of California by providing a uniform basis for
recognizing the right of state employees to join organizations of
their own choosing and be represented by those organizations in
their employment relations with the state.
(Dills Act§ 3512.) Thus, in the Dills Act, the Legislature established for state employees,
their organizations and the state employer, a system of collective negotiations in which
employees in appropriate bargaining units are represented by organizations of their choosing.
The Legislature's policy design contemplates that employer and organizational representatives
meet as equals, exchange views, and advocate their respective positions, subject to the
standards of good faith and to the Dills Act's prohibitions against employer or organization
interference, restraint or coercion of employees.
Under a system of collective negotiations, employee organizations (unions) engage in
various types of representational activity, including without limitation, negotiating collective
bargaining agreements or memoranda
and attending investigatory or other meetings as the representative of individual employees.
Unions are represented 	activities either by the union's own staff, or more frequently by
individual employees of the employer who are designated and authorized by the union to act as
6

union agents when representing other employees on behalf of the union. 3 While engaged in
this representation, employees designated as union agents (stewards) fulfill the union's
statutory duty fairly to represent the other employee or employees.4 We recognize that while
seeking to resolve divergent and often conflicting interests, representatives of both unions and
employers may resort occasionally during representational meetings to intemperate speech or
less than civil conduct. It is for this reason that party representatives are afforded significant
latitude in their representational speech and conduct, which serves the ultimate goal of
accommodating divergent interests and resolving conflicts. Consequently stewards must be
free to speak and act for the union, consistent with good faith and free of employer
interference, restraint or coercion.
Under our statutes, employee speech and conduct are protected when related to matters
of legitimate concern to employees thus coming within the right to participate in the activities
of an employee organization for the purpose of representation on matters of employer-
employee relations. (Rancho Santiago, p. 12; Mt. San Antonio Community College District
(1982) PERB Decision No. 224.) Employee speech and conduct may lose statutory protection
where found to be sufficiently opprobrious, flagrant, insulting, defamatory, insubordinate, or
fraught with malice as to cause substantial disruption of or material interference in the
workplace. (Id, p. 13.) Thus, an employer who would discipline an employee 	speech or
action as a job steward must take care not to punish protected activity. To justify such
discipline, an employer must demonstrate that the employee's speech or actions were so
as to shed the protected status such activity
Santa Ana Unified School District (1978) PERB Decision No. 73.
4 California State Employees' Association (Norgard) (1984) PERB Decision No. 451-S.
7

We conclude, with the ALJ, that CDCR did not demonstrate that Guerra's speech and
action, while serving as SEIU job steward representing Adams and Bennett on October 24,
2008, exceeded the bounds of statutory protection. We thus conclude, with the ALJ, that
Guerra's conduct on October 24, 2008 was protected. We also conclude, with the ALJ, that
CDCR was motivated to, and did, discipline Guerra because of her protected representational
activity, and that CDCR failed to prove up its claim that it would have disciplined Guerra even
in absence of that protected activity. Thus, we affirm the ALJ's determination that CDCR:
(1) retaliated against Guerra because she participated in protected activity, and (2) denied to
SEIU its right to represent employees Adams and Bennett. (Dills Act§ 3519(a) and (b).)
CDCR' s Exceptions
We now examine CDCR's exceptions, as described above.
The pre-eminent issue raised by CDCR's exceptions is whether the behavior for which
Guerra was disciplined was representational activity protected by the Dills Act, or whether
Guerra's behavior exceeded Dills Act protection. The facts are clear that CDCR did discipline
Guerra for her representational conduct. Thus, if the conduct is protected, CDCR's discipline
was unlawful. Contrarily, if Guerra's conduct was unprotected, the prima facie case of
retaliation fails, and the complaint should be dismissed.
1. CDCR excepts to the ALJ' s conclusion that Guerra engaged in protected conduct on
October 24, 2008, urging that Guerra's speech and actions violated CDCR's employee conduct
rules, and therefore were unprotected. We deny the exception.
relies on case law supporting an employer's right to discipline employees
workplace conduct deemed unprotected. None of the cited cases involves discipline of a
8

steward for representational activity. As such, the authorities are not persuasive. We review
each.
In Konocti Unified School District (1982) PERB Decision No. 217 (Konocti), a school
bus driver transporting students stopped the bus away from the school and solicited students to
boycott their classes. Relying on private sector authorities, the Board held that the driver's
speech and actions "were conducted in an indefensible manner and are, consequently,
unprotected." (Id., at p. 7.) Neither Konocti nor National Labor Relations Board (NLRB)
authorities cited therein5 involved a steward engaged in representational speech or action.
In Regents of the University of California (Berkeley) (1985) PERB Decision No. 534-H,
a former library employee, who had been terminated for harassing other iibrary employees,
returned to the library as a non-employee union agent where he continued to harass those
employees whose complaints had produced his earlier termination. The university banned the
non-employee union agent from the library, but did not deny him access to other facilities on
campus. The union brought a charge of interference (not retaliation). Employing the Board's
Carlsbad' balancing test, the Board balanced the university's business necessity to protect its
library employees 	on-the-job harassment, against the slight harm to employee rights
5 NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers
(1953) 346 U.S. 464 (workers who publicly disparaged employer's services, without
publicizing existence of a labor dispute and at a location distant from employer's premises,
deemed not engaged in protected conduct); Elk Lumber Company (1950) 91 NLRB 333
(workers engaged in on-the-job slow down deemed not engaged in protected conduct).
Although the language of the Dills Act is not identical to that of the National Labor Relations
Act (NLRA), the Board looks to NLRB and federal judicial construction of the NLRA
guidance in interpreting the various statutes it administers. (See e.g., Oakdale Union
Elementary School District (1998) PERB Decision No. 1246, at pp. 18-19, fn. 8; citing
McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293,311; Modesto
City Schools (1983) PERB Decision No. 291, at pp. 61-62.)
6 Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).
9

caused by the university excluding the non-employee union agent from only the library, and
ruled for the university. 	This case involved neither a steward, nor representational speech or
action.
In Riverside Unified School District (1987) PERB Decision No. 639, an employee
engaged in protected activity by filing grievances and unfair practice charges, but failed to
prove that his termination was motivated by his protected conduct. This case involved neither
a steward nor retaliation because of representational speech or action.
In Office of the Los Angeles County Superintendent of Schools (1982) PERB Decision
No. 263, two employees were transferred to less advantageous positions, allegedly because
they participated in union activities. The Board affirmed an ALJ's dismissal, based on
application of Carlsbad and of the Board's then-recent ruling in Novato. The employer proved
that the transfer decisions were based on the employees' relative scores on performance
evaluations. The union proved that one employee's evaluation rating had been influenced
improperly by her absences from duty for union activities, but failed to prove that this
influence caused the overall lower evaluation culminating in the transfer. 	The case involved a
steward, but not representational speech or action.
In Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, a union
president was disciplined for violating access policies adopted by the employer under the Trial
Court Act7 limiting union and employee access to the employer's email system and to
courtrooms for union meetings. The Board rejected the ALJ's analysis under Carlsbad which
found an interference violation 	union's 	of access to facilities and internal means of
communication. The Board instead applied Novato. The Board concluded that the union
7 The Trial Court Act is codified at Government Code section 71600 et seq.

president's use of the employer's email was partially protected and that her scheduling of the
courtroom for a union meeting was protected. The Board then reasoned that the employer's
imposition of discipline was not unlawful, since at least some emails sent by the union
president over the employer's email system violated the employer's email access policy. This
case did not involve representational speech or action.
By contrast, authorities relied on by the ALJ in this case do involve representational
speech and action by stewards. As such, they are persuasive. We review them.
In Corrections, a steward made statements to the Department of Corrections (CDC)
representatives during a meeting called to investigate alleged mishandling of state property.
The steward stated that if the CDC's investigation interfered with his (the steward's) approved
and pending promotion, he would litigate the matter, and/or provide to the public media
information indicating the CDC had violated federal standards when disposing of hazardous
materials. The CDC claimed the statements were threats and unprotected, and thus a proper
basis for discipline. The Board, adopting the proposed decision, ruled that: (1) when assessing
workplace speech, the Board applies an objective standard and considers the overall context;
(2) protected workplace speech may lose protection only where it is so "opprobrious, flagrant,
insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption
or material interference with operations," and (3) that the right to engage 	protected activity
includes occasional "impulsive behavior" which must be balanced against the CDC's right to
maintain order and respect. (Ibid., Proposed Dec., at p. 14, and authorities therein cited.)
Applying these principles, 	Board held that the job steward's statements were protected.
11

In Rio Hondo Community College District (1982) PERB Decision No. 260
(Rio Hondo), the Board considered a comment8 made by a steward (faculty member and union
officer) in a representational capacity during a question and answer session with the college
president at the end of an official faculty meeting. Relying on NLRB authorities,9 the Board
held that protected activity includes "impulsive behavior" which must be "balanced against the
employer's right to maintain order and respect" and that an employee's speech may lose its
protected status if "so disrespectful of the employer as seriously to impair the maintenance of
discipline." (Rio Hondo, at p. 12.)
We conclude, with the ALJ, that the speech for which Guerra received the LOI, was not
so "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to
cause substantial disruption or material interference with operations." (Corrections, citing
Rancho Santiago.) The speech occurred in a hallway just before and after the meeting with
Adams, and later in a closed door meeting with Bennett . Witnesses in each instance included
only three persons in addition to Guerra, viz., the represented employee, Hall, and Buford, who
was Hall's supervisor. In this context, the opportunity for interference with CDCR's
operations or discipline was minimal to non-existent.
We deem Guerra's hand gestures, signifying her request to speak not with Hall but with
Buford, to constitute speech, not action, for the purpose of this analysis. We thus assess the
impact of the gestures under the speech standard. Alternatively, even if we did consider the
gestures to be conduct, and not speech, we would deem them impulsive, and not so egregious
as to 	CDCR' s discipline and operations 	here.
8 "Chickenshit."
9 NLRB v. Thor Power Tool Company (1965) 351 F.2d 584, 585; NLRB v. Blue Bell Inc.
(1955) 219 F.2d 796, 797.
12

Likewise, we deem Guerra's effort to obtain for Adams a separate meeting with
Buford, to be well within the ambit of protected activity. Adams had requested that Guerra
arrange a meeting with Buford, and Guerra sought to do so. The tactic ultimately was
successful as Adams met separately with Buford following the meeting with Hall, although it
likely angered Hall. In any case, CDCR did not adduce evidence that Guerra's speech or
conduct regarding the separate meeting with Buford disrupted or otherwise interfered with
Hall's investigation of Adams' conduct at the earlier RN staff meeting.
Guerra's speech and conduct during the Bennett meeting was neither so opprobrious,
nor so egregious as to interfere with discipline or operations. Guerra interrupted Hall's
presentation of the LOI only minimally. CDCR adduced no evidence that Guerra's speech or
conduct interfered with CDCR's delivery to Bennett of the LOI, or that the CDCR was unable
to maintain order during the meeting. Both Guerra's speech and her gestures on the afternoon
of October 24, 2008, may have resonated with Hall, who at his morning staff meeting that very
day may have experienced a challenge to his supervisory authority. But the Board assesses
speech and conduct in the workplace on an objective, not subjective, standard. Thus, a
supervisor's personal pique over perceived disrespect is not sufficient basis to find that
Guerra's speech and gestures, undertaken in a representational capacity on behalf of SEIU,
exceeded the bounds of statutory protection.
In sum, we conclude that Guerra's speech, including her gestures which we deem
speech, were protected activity.
CDCR excepts to 	conclusion 	SEIU demonstrated nexus between
Guerra's representational activity on October 24, 2008, and the disciplinary LOI issued to her
on October 28, 2008. We deny the exception.
13

With the ALJ, we find direct evidence
of
nexus. The LOI issued to Guerra on
October 28, 2008, states that the conduct which CDCR deems to violate its standards for
employees, and for which Guerra is being disciplined, is that undertaken by Guerra on
October 24, 2008, "acting as a representative." The
CDCR's
intent is clear and unambiguous.
We need look no further.
Having declared that Guerra's representational activity forms the basis for the
discipline, the only issue left is whether such activity was protected or not. Having reached
above a decision on that issue, we conclude that this element
of
the prima facie case is
established. CDCR disciplined Guerra "because
of'
her protected representational conduct.
3. CDCR excepts to the
ALJ's
conclusion that the CDCR failed to demonstrate that it
would have disciplined Guerra in the absence
of
her protected conduct on October 24, 2008.
We deny the exception.
With the ALJ, we conclude that CDCR did demonstrate that it disciplined Guerra for
conduct on October 24, 2008, while "acting as a representative." We conclude that having
done so, CDCR is bound by its description
of
the basis for the discipline. Indeed, it proffers no
other conduct
of
Guerra which might have provided an alternative, and lawful, basis for the
discipline
of
October 28, 2008.
CDCR reasons that such conduct as forms the basis for the discipline was not protected,
and violated its conduct standards for employees, thus providing it a lawful basis for the
discipline. Were its initial premise correct, that would be so. However, we have determined
conduct forming the basis
of
	discipline is protected. 	there is no unprotected
conduct to serve as a lawful basis for the discipline, and Guerra's discipline is seen to arise
from, and only from, her protected conduct. CDCR's claims to the contrary must fail.
14

4.
	CDCR excepts to the ALJ's conclusion that CDCR violated the Dills Act
section 3519(b). We deny the exception.
With the ALJ, we find that SEIU has established a violation
of
the Dills Act
section
35
l 9(b
).
	We explain.
Where the same employer conduct concurrently violates more than one unfair practice
provision, it is the duty
of
the Board to find more than one violation. (San Francisco
Community College District (1979) PERB Decision No. 105.) CDCR issued a disciplinary
LOI to SEIU steward Guerra because
of
her protected conduct while acting as an SEIU
representative. CDCR thus violated the Dills Act section 3519(a) by retaliating against Guerra
because
of
her exercise the right to participate in activities
of
an employee organization for the
purpose
of
representation. The same conduct, disciplining an SEIU steward for her conduct
while representing bargaining unit employees and SEIU members violated the Dills Act
section 3519(b) by denying to SEIU its Dills Act right to represent bargaining unit employees
in their employment relations.
CDCR relies on State
of
California (Franchise Tax Board) 1992 PERB Decision
No. 954-S (FTB). 	We are not persuaded. FTB presented wholly different facts, in a wholly
different setting. There, a union steward and her union brought numerous allegations
of
retaliation and interference under the Dills Act section 3519(a) and (b). All the Dills Act
section 3519(a) violations, and fourteen (14) of thirty-seven (37) Section 3519(b) allegations
were deferred to arbitration under the parties' contract and dismissed, leaving for resolution by
only 	(23) alleged violations of Section 35 l 9(b ). 	found the
remaining allegations insufficient to make out a case of interference with or denial of the
15

union's rights, and dismissed these remaining alleged violations of Section 3519(b ). The
Board affirmed.
Here, by contrast, both the Dills Act section 35 l 9(a) and (b) allegations were litigated
together. Thus, having found a violation of the Section 3519(a), the ALJ appropriately
concluded that the same conduct, to wit, disciplining a SEIU steward because of her activity as
steward, violated Section 3 5 l 9(b ). We agree.
We view alleged violations of the Dills Act section 3519(b) on standards similar to
those for interference under Section 3519(a). Thus, where a union establishes that an
employer's conduct tends to or does result in some harm to the union's rights, and an employer
offers justification based on operational necessity, we balance the claims. However, where an
employer's conduct is inherently destructive of the union's rights, we will excuse the employer
only upon proof that the employer's conduct was caused by outside forces beyond the
employer's control, and that no alternative course was available. ( Carlsbad; Regents of the
University of California, Lawrence Livermore National Laboratory (1982) PERB Decision
No. 212-H, at pp. 12-13 [Carlsbad analysis appropriate in assessing denial of union rights];
Newark Unified School District (1991) PERB Decision No. 864 [retaliatory transfer of union
activist violated union's rights].)
Applying Carlsbad, we view CDCR's conduct here as inherently destructive of SEIU's
rights. CDCR did not discipline Guerra for a work rule infraction unrelated to her job as
steward. Rather, CDCR disciplined Guerra solely for conduct undertaken as a SEIU steward.
Moreover, CDCR threatened Guerra with future exclusion 	SEIU representational activity
if she exceeded the limitations on her conduct prescribed by CDCR. CDCR thus sought to
control the manner in which SEIU stewards represent bargaining unit employees in meetings
16

with CDCR supervisors and managers. Moreover, even
if
we deemed CDCR's conduct to
result merely in some harm to SEIU's rights, we would reach the same result. CDCR's
asserted operational necessity justification for its interference with SEIU' s rights does not
outweigh the harm to SEIU's rights worked by discipline
of
the SEIU steward because
of
her
representational activity and the accompanying threat to exclude her from SEIU
representational activity
if
she exceeded CDCR' s prescribed limitations on her speech and
conduct. Thus, with the ALJ, we conclude that CDCR's discipline
of
Guerra interfered with
and denied to SEIU its Dills Act rights to represent bargaining unit employees.
5.
	CDCR excepts to the ALJ' s proposed remedy insofar as it requires CDCR to
"[r]escind, remove and destroy the Letter oflnstruction issued to the job steward [Guerra]
including removing it from her personnel file(s) and destroying all references thereto." We
deny the exception.
With the ALJ, we conclude that the order is appropriate. CDCR contends that the LOI
was placed in the file for a year only, that it has been removed, and thus that the removal order
is unnecessary. While it may be true that the LOI has already been removed from Guerra's
personnel file, we deem it unlikely that the LOI was either rescinded or destroyed, or that all
references thereto were destroyed. And even
if
this were the case, we still would include this
provision in our Order for other reasons. First, we require a posting
of
the full remedial order
pursuant to paragraph B(2), so that employees may learn of PERB's remedial order. Second,
we require that CDCR comply fully with .the notification provisions 	paragraph B(3),
including, without limitation, notification 	the actions taken to comply and service of such
notification on SEIU.
17

PERB has broad authority under the Dills Act to remedy unfair practices. (Dills Act
§ 3514.S(c).) We conclude that the ALJ's proposed order falls well within the ambit
of
that
authority.
CONCLUSION
We hold that by issuing to Guerra a LOI on October 28, 2008, imposing discipline for
her protected representational activity on October 24, 2008, CDCR retaliated against Guerra
because
of
her exercise
of
rights to participate in the activities
of
an employee organization,
thereby violating the Dills Act section 3519(a). We hold that this conduct concurrently denied
to SEIU, an employee organization, its rights to represent employees in their employment
relations with the CDCR, thereby violating the Dills Act section 3 5 l 9(b ).
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in this
case, and pursuant to the Ralph C. Dills Act (Dills Act), Government Code section 3514.S(c),
it is hereby ORDERED that the State
of
California (Department
of
Corrections and
Rehabilitation) (CDCR) and its representatives shall:
A. 	CEASE AND DESIST FROM:
I. 	Retaliating against employees for engaging in protected conduct.
2. 	Denying Service Employees International Union, Local 1000 (SEIU) its
right to represent its bargaining unit me~bers as guaranteed by the Dills Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
THE POLICIES OF THE DILLS ACT:
1.	
Rescind, remove and destroy the Letter
of
Instruction issued to
Isabel Guerra, including removing it from her personnel file and destroying all references
thereto.
18

2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at CDCR, California Correctional Institution work location(s) where notices to employees
customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent
of
CDCR, indicating that it 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. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. CDCR or its representatives shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on SEID.
Chair Martinez joined in this Decision.
Member Dowdin Calvillo's concurrence begins on page 20.
19

DOWD IN CALVILLO, Member, concurring: I concur with the result reached by the
majority in this case. Given the facts
of
this case involving the efforts
of
a union steward to
engage in what State
of
California (Department
of
Corrections & Rehabilitation) (CDCR)
acknowledges was representational activity and the minimal disruption that actually occurred, I
agree that Isabel Guerra's conduct was not so egregious as to constitute conduct that is so
"'opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice' as to cause
'substantial disruption or material interference' with operations," as set forth in State
of
California (Department
of
Corrections) (2001) PERB Decision No. 1435-S and
Rancho Santiago Community College District (1986) PERB Decision No. 602
(Rancho Santiago). This determination should not, however, be viewed as license for employees
to use their protected activity as a shield from discipline for violating the employer's rules with
impunity. Employers may lawfully discipline employees who violate employer rules even while
engaged in protected activity. (See, e.g., Konocti Unified School District (1982) PERB Decision
No. 217 (Konocti) [school district could lawfully discipline a bus driver for stopping bus without
authorization to speak to students about an upcoming strike; while driver's comments may have
been protected, the manner in which they were made was not]; Los Angeles County Superior
Court (2008) PERB Decision No. 1979-C (Los Angeles County Superior Court) [union president
could be disciplined for sending emails announcing union meetings in violation
of
employer's
email and courtroom reservation policies]; see also Carrier Corp. (2000) 331 NLRB 126
[employer lawfully warned and suspended employee for interrupting meeting]; Eagle-Picher
Industries, 	(2000) 331 NLRB 169, 170 	lawfully disciplined employee
interrupting during employer meeting seeking to dissuade employees from voting for union].)
20

In reaching this decision, I disagree with the majority that the cases cited above and at
pages 9-11
of
the majority opinion are not persuasive authority because they did not involve a
union steward engaged in representational speech or action. Both Konocti and Los Angeles
County Superior Court involved the conduct
of
union representatives. In Konocti, the bus driver,
who encouraged students to boycott classes and for their parents to contact the school on behalf
of
striking employees, had been the president and chairman
of
the union's negotiating
committee. Los Angeles County Superior Court involved the activities
of
the union president in
utilizing the employer's email system to schedule union meetings. In both cases, the employees
were clearly involved in representational activities that violated the employer's policies. I view
these cases as persuasive authority that employees engaged in protected activities may still be
disciplined for conduct that violates the employer's work rules.
Furthermore, I note that, while the conduct in this case was not so egregious to warrant
loss
of
the protections under Rancho Santiago, such conduct was neither appropriate nor
professional. Both employee and employer representatives are expected to maintain professional
standards
of
behavior in the workplace.
21

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. SA-CE-1795-S, Service Employees
International Union, Local 1000
v.
State
of
California (Department
of
Corrections &
Rehabilitation), in which all parties had the right to participate, it has been found that
the
State
of
California (Department
of
Corrections & Rehabilitation) violated the Ralph C. Dills
Act
(Dills Act), Government Code section 3512
et
seq., by issuing a Letter
oflnstruction (LOI) to a
job
steward in retaliation
of
her exercise
of
protected activities under the Dills Act.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Retaliating against employees for engaging in protected conduct.
2. 	Denying Service Employees International Union, Local l 000 its right to
represent its bargaining unit members as guaranteed by the Dills Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1.	
Rescind, remove and destroy the LOI issued to the
job
steward including
removing it from her personnel file(s) and destroying all references thereto.
Dated:
---------
STATE OF CALIFORNIA
(DEPARTMENT OF CORRECTIONS &
REHABILITATION)
By:
-------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-1795-S
PROPOSED DECISION
(4/14/2010)
Appearances: Daniel Luna, Attorney. for Service Employees International Union, Local 1000;
State
of
California (Department
of
Personnel Administration) by David M. Villalba, Legal
Counsel, and Nikki Mozdyniewicz, Labor Relations Counsel, for State
of
California
(Department
of
Corrections & Rehabilitation).
Before Shawn P. Cloughesy, Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges retaliation by a State
of
California (State) employer against a
job
steward by issuing her a Letter
of
Instruction. The employer denies committing any unfair
practices.
On April 27, 2009, Service Employees International Union, Local 1000 (Local 1000)
filed an unfair practice charge against the State
of
California (Department
of
Corrections &
Rehabilitation) (CDCR). On April 30 and September 14, 2009, Local 1000 filed amended
charges. On September 16, 2009, the Public Employment Relations Board (PERB or Board)
Office
of
the General Counsel issued a notice
of
partial dismissal dismissing the charge that
CDCR interfered 	a Local 1000 job steward's right to represent its members pursuant to
NLRB
v.
J 	Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten) by not allowing her to speak at
two October 24, 2008, employer-employee meetings. Local 1000 did not appeal the partial

dismissal to the Board. On September 16, 2009, the PERB Office
of
the General Counsel also
issued a complaint alleging that CDCR violated the Ralph C. Dills Act1 (Dills Act)
section 3 519( a) and (b) by retaliating against Local 1000 job steward Isabel Guerra (Guerra) in
issuing her a Letter
of
Instruction (LOI) on October 28, 2008.
On October 12, 2009, CDCR answered the complaint, denying any violations
of
the
Dills Act. 	An informal settlement conference was conducted on October 20, 2009, but the case
was not resolved.
On February 1 and 2, 2010, formal hearing was held. On the first day
of
hearing,
Local 1000 requested that the dismissed Weingarten charges be amended into the complaint.
Local 1000 admitted it had not filed an appeal
of
the notice
of
partial dismissal to the Board.
The ALJ denied the proposed amendment.2 Upon receipt
of
post-hearing briefs, the case was
submitted for proposed decision on March 15, 2010.
FINDINGS OF FACT
Jurisdiction
CDCR is a State employer within the meaning
of
Dills Act section 3513G). California
Correctional Institution (CCI) is a State prison within CDCR. (Penal Code, §§ 2048 and
5003.) Local 1000 is a recognized employee organization within the meaning
of
Dills Act
section 3 513 (b ), and exclusively represents statewide Bargaining Unit 17 (Registered Nurses
or RNs). Guerra is a State employee within the meaning
of
Dills Act section 3513(c).
1 The Dills Act is codified at Government Code section 3512 and following.
2 PERB Regulation 32635(a) allows a charging party to appeal the dismissal of a charge
to the Board within 20 days of service of the dismissal. Local l000's failure to appeal the
partial dismissal precluded the matter from being raised at the hearing. (PERB regs. are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
2

Background
Dr. Willam Walsh is the CCI Health Care Manager responsible for inmate health care,
including health care delivery by physicians, nurses, pharamacists and other medical support
staff. Dana Buford (Buford) is the CCI Director
of
Nursing (DON) over approximately 135
nursing staff including RNs, Licensed Vocational Nurses, Psychiatric Technicians, and
Certified Nursing Assistants. Supervising Registered Nurse II (SRN) Richard Hall (Hall)
supervises nurses at the Level III facility. 	Before promoting to SRN, Hall was a Local 1000
job steward at California State Prison, Sacramento and CCI. 	CCI Local 1000 job stewards
representing RNs are Ann Salzman (Salzman) and Guerra. RN Guerra has been a CCI
Local 1000 job steward for six years. 	She has had no previous disciplinary or corrective
action. She has been issued three Letters
of
Appreciation.
LOis and Job Steward Representation
CCI issues LOis to employees when a supervisor believes an employee has violated a
procedural requirement
of
an employee's job or has behaved in such a manner that will not be
tolerated. The LOI sets forth the employer's expectations and a corrective plan to meet those
expectations. The LOI is placed in the employee's personnel file for a period
of
one year.
When a supervisor issues an LOI to an employee, the supervisor meets with the employee
"face-to-face" and reads the written document to the employee. Some supervisors discuss the
contents
of
the 	with the employee to ensure 	employee understands why they received
the LOI and what they are to do in the future. 	At the end of the discussion
of
the LOI, the
employee may ask questions about the merits
of
	The LOI is considered corrective action
and is not an adverse action pursuant to Government Code section 19570 which can be
3

appealed to the State Personnel Board (SPB) for a hearing. 3 The employee may file a written
rebuttal which is attached to the LOI in the employee's personnel file and/or may file a
grievance, which can result in a face-to-face grievance conference where the merits
of
the LOI
are disputed.
The procedure followed by health care supervisors to issue LOis to subordinates begin
with the supervisor sending an e-mail to the California Prison Health Care Receivership
Corporation (Receiver's Office), Plata4 Disciplinary Unit, which sets forth the facts
of
the
incident/conduct. The Receiver's Office drafts the LOI and returns it to the supervisor. The
supervisor receives approval from the DON and the Health Care Manager to issue the LOI, and
schedules a meeting with the employee to present it.
The memorandum
of
understanding (MOU) between Local 1000 and the State between
July 1, 2005 and June 30, 2008 for Bargaining Unit
17
does not include face-to-face
discussions for LOis as within Local I000's scope ofrepresentation,5 however, CCI has a past
Government Code section 19570 provides:
As used in this article "adverse action" means dismissal, demotion,
suspension, or other disciplinary action
....
Government Code sections 19576 and 19589 include "formal reprimand" or "letters
ofreprimand" when quantifying the level
of
penalty as an adverse action. These definitions
of
adverse action, however, do not bind PERB when making its determination
of
what constitutes
an adverse action for purposes
of
determining a violation
of
the Dills Act.
4 Marciano Plata, et al.,
v.
Arnold Schwarzenegger, et al. (N.D. Cal.) No. C 01-1351
TEH.
5 MOU section 	1, Union Representatives, provides in
B. 	Scope of Representation
The State recognizes and agrees to deal with designated Union
stewards, elected bargaining unit council representatives and/or
Union staff on the following:
4

practice
of
allowing a job steward to be present at these meetings as an observer to support the
employee. After the supervisor has concluded reading and discussing the LOI with the
employee, the job steward is free to speak on the employee's behalfregarding its merits.
October 24, 2008 Meetings
1.
	Level III Medical Staff Meeting
On Friday, October 24, 2008, at 0730 hours, SRN Hall conducted his weekly meeting
with Level III nursing staff. Ten to fifteen staff attended. Hall prepared an agenda for the
meeting and distributed memos and information. The agenda specifically scheduled an "open
forum" time for employees to ask questions or express concerns. At the end
of
the meeting,
employees were also allowed to ask questions or express concerns.
During the staff meeting, RNs Michelle Adams (Adams) and Cynthia Marble (Marble)
interrupted Hall during his presentation
of
the sick and vacation leave policy. Hall attempted
to defer their comments or issues until later in the meeting, but was unsuccessful. Adams
1.	
The enforcement
of
this Contract;
2. 	Employee discipline cases, including investigatory
interviews
of
an employee who is the subject
of
a non-
criminal investigation;
3. 	Informal settlement conferences or formal hearings
conducted by the [PERB];
4. 	Matters scheduled for hearing by the Victims
Compensation and Government Claims Board (VCGCB);
5. 	Matters pending before the [SPB];
6. 	Absence Without Leaves (A WOLs) and appeals to set
aside resignations;
7. 	Discussions with management regarding denials of
reasonable accommodation;
8. 	DPA statutory appeal hearings.
5

testified that during the meeting, Hall asked
if
she had a problem with him. Hall responded
that they could step outside and handle it now. Adams also testified that SRN Hall cursed
during the meeting.
Later that day, DON Buford contacted Adams and told her to come to the nursing
office. Adams asked
if
she could bring a union representative, and Buford granted that
request.6 Adams contacted Guerra who agreed to represent her. Adams suspected that Buford
wanted to talk to her about the staff meeting that morning. Adams told Guerra about Hall's
comments, and expressed her concern that Buford had only received Hall's version, which
omitted his offensive comments. Adams asked Guerra whether she could meet with Buford
alone, and Guerra replied that she would ask for her.
2.
	Discussion with Buford before Meeting with Adams
At approximately 1330 hours, Adams and Guerra met at the nursing office. The
nursing office consists primarily
of
Buford's office, the SRN's office and the SRN annex.
Inmates are not allowed in this area. The SRN annex is a former office/storage area which
contains a six-foot table and x-ray files. 	Buford and the SRN's used the annex to privately
meet with employee(s).
Guerra and Adams both approached Buford, and Guerra asked whether Adams could
meet with Buford alone, and why Hall was involved. Buford replied that it was Hall's
meeting, but Adams could meet with her privately after Hall's meeting. Hall approached the
three
of
them, and accused Guerra
of
trying to exclude him from the meeting. Guerra held up
hand eight to ten feet from Hall and assertively replied, 	am not talking to you; I am
Buford never denied an employee's request for a representative.
6

talking to Dana [Buford]." Guerra finally stated to Hall,
"if
you don't say anything, I won't
say anything."7
All four went into the SRN annex and closed the door.	
It
was disputed whether what
followed was a fact-finding or investigatory interview, or a meeting where the LOI was merely
recited and delivered to Adams. Adams and Guerra testified that the meeting was an
investigatory interview where an LOI was not delivered, and Buford and Hall testified that the
meeting only concerned the issuance
of
a LOI. Both Buford and Hall agreed that Guerra did
not speak during the meeting. 8
After this meeting was over, Adams and Buford stayed in the SRN annex to have a
private meeting. Guerra stated to Adams, "Don't forget to file your EEO complaint."9 While
Hall stated this was yelled loudly, Buford never heard the comment and Adams stated that it
was only said as a reminder. Hall's testimony that Guerra yelled loudly is therefore not
credited as Buford, who was close to Adams, did not hear the comment.
3.
	Meeting with RN Bennett
RN Bennett and Guerra both work in Level II. At approximately 1445 hours, Bennett
telephoned Guerra and informed her that SRN Hall called her to come to the nursing office to
7 Guerra believed that Buford would conduct the meeting.
8 While the parties seemed to place a great emphasis as to the characterization
of
the
meeting, it was not relevant as the Weingarten charge had been dismissed and the LOI did not
charge Guerra with wrongdoing during this meeting, but rather with what she said before and
after the meeting. The October 28, 2008 LOI does not specifically mention that the
October 24, 2008 meeting with Adams related to issuing her an LOI.	
It
specifically mentioned
issuing RN Hollis Bennett (Bennett) an LOI.
9 Adams later filed a workplace violence complaint with the Equal Employment
Opportunity (EEO) coordinator due to Hall telling her that if she had a problem with her, they
could step outside and handle it now.
7

meet. Bennett requested that Guerra come with her to represent her. Guerra agreed to stay
after her shift to represent Bennett.
10
Guerra and Bennett met Buford and Hall at the nursing office. Buford told Guerra that
she was not needed and Buford could not pay her overtime. Guerra responded that Bennett
was a friend, and she was representing Bennett on her "own time." 	All four proceeded to the
SRN annex, closed the door, and sat at the table. Guerra sat at the opposite corner
of
the table,
diagonally, from Hall.
Before Hall began reading the LOI to Bennett, he told Guerra that she was there as an
observer to support the employee. Hall began reading the LOI to Bennett. At a point during
the reading, Hall paused, and Guerra asked whether she could ask a question. Hall loudly
replied that she could not, as she was there as an observer and not a participant. Hall resumed
reading the LOI. At another point, Guerra thought Hall had finished and asked him whether he
had verbally counseled Bennett before issuing her a LOI. Hall again told Guerra that she was
an observer and could not interject herself during the meeting. Guerra then asked Buford why
she could not speak. Again, Hall asserted that she could not interject, and she was being rude
and insubordinate. Guerra put her hand up toward Hall and stated that she was talking to
Buford and not to him.
11
Hall's recollection included Guerra again asking why the action
taken against Bennett was not a verbal counseling, and explaining that the matter had already
been reviewed and approved. Guerra again raised her hand, and stated she was talking to
Buford not Hall. None of the other witnesses, including Buford, corroborated this second
10
Guerra's shift ends at 1500 hours.
11
Hall testified that Guerra's hand was two to three feet away from his face, but since
Hall sat diagonally across from Guerra at a six-foot table, her hand had to be four to five feet
away. Bennett did not see Guerra put her hand in Hall's face. 	Guerra did not testify that she
lifted her hand during the meeting.
8

occurrence in the Bennett interview where Guerra raised her hand and told Hall she was
talking to Buford. Therefore Hall's testimony about Guerra raising her hand a second time and
follow-up comments is not credited. The meeting concluded with Bennett being served with
the LOI. The meeting lasted
10
to
15
minutes.
After the meeting, Guerra approached Buford and asked whether she did anything
inappropriate. Guerra and Bennett testified that Buford replied that Guerra was "okay."
Buford testified that she did not state Guerra's conduct was okay, but shook her head in
disbelief that Guerra asked this question.
October 28, 2008 LOI
On October 28, 2008, Hall issued Guerra an LOI which stated in pertinent part:
This Letter
of
Instruction (LOI) is a record
of
discussion between
you and me regarding an area
of
your job performance in need
of
improvement. This letter is documentation
of
a specific problem
area and sets forth specific measures for addressing the problem
in an effort to resolve it.
On October 24, 2008, you were insubordinate, discourteous,
unprofessional, and disrespectful to me during two meetings
involving employee discipline where you were acting as a
representative. Specifically, in the first meeting at approximately
0930 [hours,] RN Adams was called to the nursing office to have
a meeting with myself and the Director
of
Nursing (DON)
D. [Buford] regarding her conduct in a meeting earlier that day.
When you arrived at the meeting with RN Adams you attempted
to have me removed from my own meeting and meet with the
DON without me. You stated in general, "Can we just meet with
Dana." I told you "No." You then raised your hand towards me
and stated in a threatening and loud voice, "Stop! I am not
talking to you. I am talking to Dana." Ms. [Buford] also told you
no to meeting without my presence. At that time[,] you appeared
to be upset and you then began to talk fast and raise your voice.
You asked if RN Adams could speak to Ms. [Buford] alone. You
were then told that RN Adams could meet with the DON alone
after the meeting. When the meeting was over as you were
departing you yelled out in a threatening tone, "Don't forget to
file your EEO complaint!" This conduct is unacceptable and will
not be tolerated.
9

Furthermore, at approximately 1530 [hours,] you came to another
meeting with RN Bennett acting as her representative. Before the
meeting began[,] Ms. [Buford] reminded you that you were there
as an observer and that you were not to interject during the
meeting. As I was attempting to serve RN Bennett an LOI[,] you
asked to interject and I told you "No." You then stated, "I am not
allowed to speak?" and I reminded you
of
your rol[
e]
during the
meeting. At that point[,] I began to read the content
of
the LOI
when you rudely interrupted me again asking why this employee
action was not a verbal counseling. I had to again remind you
of
your rol[e] in the meeting for the third time, and you again raised
your hand towards my face signaling me to be quiet and stated in
a loud voice, "I am not talking to you. I am talking to Dana."
You then inappropriately interjected even though you were told
that you did not have that right. You asked, "Why is this not a
verbal counseling?" At that time[,] I told you that the
authorization and approval for the LOI had gone through the
proper approval process and was deemed to be appropriate. You
then raised your hand towards my face again signaling me to be
quiet and said in a loud voice, "I am not talking to you. I am
talking to Dana."
At that time[,] Ms. [Buford] told you that you did not have the
authority to question employee discipline actions and that
RN Bennett could write a rebuttal to the LOI. This conduct is
unacceptable and will not be tolerated.
Your actions are in violation [of] Government Code section
19572 as follows:
• 	(e) Insubordination;
• 	(m) Discourteous treatment
of
the public or other
employees; and
• 	( o) Willful disobedience.
Your actions further violated the following policies:
• 	CDCR DOM Section 33030.3.2[,] General Qualifications;
• 	CDCR DOM Section 33030.3.l[,] Code
of
Conduct;
• 	California Code of Regulations (CCR)[,] Title 15[,]
Section 3391[,] Employee Conduct.
10

Your conduct on this occasion was undermining
of
authority,
insubordinate, discourteous, willfully disobedient, and
unprofessional. Your conduct was unacceptable and will not be
tolerated by this department.
If
you engage in similar conduct in
the future, the department will take adverse action against you
based on the incidents cited in this memorandum, as well as any
future incidents.
Ms. Guerra, I am hereby instructing you to be courteous and
professional at all times during meetings with supervisors. You
will not raise your voice. You will not signal or indicate for a
supervisor to be quiet in any fashion to include raising your hand
toward their face. As an employee representative in meetings
regarding employee corrective action[,] you will be an observer
and you are not to interject unless given permission to do so.
You will not be disrespectful to supervisors and you will follow
directions given to you by supervisors.	
If
you act in this way
during a meeting[,] you will be asked to leave and another
representative will be located. Furthermore[,] i[f] you engage in
this conduct again[,] you will be excluded from future meetings.
* 	* 	*
A copy
of
this LOI will remain in your personnel file for a period
of
one
(I)
year. On October 28, 2009, upon your written request
to the Director
of
Nursing, this letter will be removed from your
personnel file and given to you, unless you request it to be
destroyed.
(Emphasis added.)
The LOI was signed by Hall and approved by the acting Healthcare Manager.
Buford and Hall testified that they have issued LOis to other non-job steward
employees who have been disrespectful to them at meetings, including Adams and Marble.
Buford and Hall testified they were holding Guerra accountable for violations
of
DOM
11

sections 33030.3.1 and 33030.3.2
12
and California Code
of
Regulations, title 15, section 3391
13
as they did with other employees, and her
job
steward status did not excuse her from this
12
DOM sections 33030.3.1 and 33030.3.2 provide:
33030.3.1 	Code
of
Conduct
As employees and appointees
of
the Department, we are expected
to perform our duties, at all times, as follows:
• Demonstrate professionalism, honesty, and integrity;
• Accept responsibility for our actions and their consequences;
• Appreciate differences in people, their ideas, and opinions;
• Treat fellow employees, inmates, wards, parolees, victims, their
families, and the public with dignity and respect;
• Respect the rights
of
others and treat them fairly regardless
of
race, color, national origin, ancestry, gender, religion, marital
status, age, disability, medical condition, pregnancy, sexual
orientation, veteran status, or political affiliation;
• Comply with all applicable laws and regulations;
• Report misconduct or any unethical or illegal activity and
cooperate fully with any investigation.
33030.3.2 	General Qualifications
All employees are subject to the requirements as specified in the
California Code
of
Regulations (CCR), Title 2, Section 172,
General Qualifications, which states, in pertinent part, the
following:
All candidates for, appointees
to,
and employees in the
state civil service shall possess the general qualifications
of
integrity, honesty, sobriety, dependability, industry,
thoroughness, accuracy, good judgment, initiative,
resourcefulness, courtesy, ability to work cooperatively
with others, willingness and ability to assume the
responsibilities and to conform to the conditions
of
work
characteristic
of
the employment, and a state
of
health,
consistent with the ability to perform the assigned duties
of
the class.
(Italics in original.)
13
California Code of Regulations, title 15, section 3391(a) provides:
Employees shall be alert, courteous, and professional in their
dealings with inmates, parolees, fellow employees, visitors and
12

obligation. Hall stated Guerra was his subordinate and must comply with his orders during a
meeting, as it was his meeting and was conducive to good order.
After receiving the October 28, 2008 LOI, Guerra did not file any grievances until
six months had passed. The grievance log showed Guerra filed only three grievances before
October 28, 2008. Guerra did not attend monthly Joint Labor-Management meetings for a
limited period
of
time. CCI Employee Relations Officer John Beckett testified that Guerra
stopped attending monthly Joint Labor-Management meetings in early Spring 2008 to mid-
Winter 2009 because Guerra and Salzman did not believe their issues were being heard.
On March 29, 2009, SRN II Adams issued Guerra a Letter
of
Appreciation for her
thorough documentation
of
emergency response cases.
As
of
the hearing, the LOI had been removed from Guerra's official personnel file.
ISSUE
Did CDCR retaliate against Guerra for protected activity by issuing her the LOI?
CONCLUSIONS OF LAW
To demonstrate a prima facie case that CDCR retaliated against an employee in
violation
of
Government Code section 3519(a), Local 1000 must show that: (1) Guerra
exercised rights under the Dills Act; (2) CDCR had knowledge
of
the exercise
of
those rights;
(3) CDCR took adverse action against Guerra; and (4) CDCR took the adverse action because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB Decision
members
of
the public
....
Employees shall not use indecent,
abusive, profane, or otherwise improper language while on duty.
Irresponsible or unethical conduct or conduct reflecting discredit
on themselves or the department, either on or off duty, shall be
avoided by all employees.
(Emphasis added.)
13

No. 210 (Novato); Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982) 131
Cal.App.3d 416; San Leandro Police Officers Assn.
v.
City
o/San
Leandro (1976)
55
Cal.App.3d 553.) Once Local 1000 has established a prima facie case ofretaliation, the burden
shifts to CDCR to show that it would have taken the adverse action even in the absence
of
her
protected activities. (Novato; Wright Line, Inc. (1980)
251
NLRB 1083.)
Protected Activities and Knowledge
of
Protected Activities
Dills Act section 3515 provides in pertinent part:
[S]tate employees shall have the right 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. .
..
CDCR admits that Guerra was acting as an employee representative on
October 24, 2008.
It
contends that Guerra's conduct at the meeting lost it protected status
because Guerra must be held to the same standard as a subordinate employee for
discourteousness and insubordination. When an employee occupies the role
of
a job steward,
her conduct is not measured by the same standard as that
of
a subordinate employee.	
It
is well
settled that an employee representative's conduct loses its statutory protection only where that
conduct is so "opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with
malice" that it causes "substantial disruption
of
or material interference" with operations.
(Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 13.) "[A]n
employee's right to engage in protected conduct permits some leeway for impulsive behavior,
which must be balanced against the employer's right to maintain order and respect." (State
of
California (Department
of
Corrections) (2001) PERB Decision No. 1435-S, adopting the
proposed decision, p. 37, citing Rio Hondo Community College District (1982) PERB Decision
No. 260, p. 12 (Rio Hondo); and NLRB
v.
Thor Power Tool Co. (1965) 351 F.2d 584, p. 585.)
14

Additionally, an employee's speech may lose its protected status
if
it "is
so
disrespectful
of
the
employer as seriously to impair the maintenance
of
discipline." (Rio Hondo, supra, PERB
Decision No. 260,
p.
12, citing NLRB
v.
Blue Bell, Inc. (1955) 219 F.2d 796, 797.)
Guerra's conduct did not meet these standards so as to lose its protected status. 	During
the first incident with Buford and Hall, Guerra was acting as Adams' representative in
attempting to secure a private meeting with Buford without Hall. While Guerra was trying to
omit Hall, her request was not rude or insubordinate, but was an attempt to appeal to the
supervisor so that Adams' version
of
the story could be heard. When Hall learned
of
Guerra's
request, he was offended and inserted himself in the conversation. Guerra redirected the
conversation back to Buford, and raised her hand at a safe distance from Hall to accomplish
this. Guerra also reminded Adams to file an EEO complaint. Guerra's conduct at most was
aggressive and pointed, but was not "opprobrious" or "so disrespectful
of
the employer as
seriously to impair the maintenance
of
discipline," especially when the conversation took place
without any observers. Guerra's actions and/or comments did not lose their protected status
during this incident.
During the second incident, Guerra interrupted the reading
of
a LOI to ask
if
she could
ask a question; asked a question as to the merits of the LOI when she thought Hall had finished
reading it; asked Buford why she could not speak; and held up her hand toward Hall and
redirected the question to Buford for an answer. While Guerra was aggressive and forceful in
her representation of Bennett, her conduct took place behind closed doors and was not so
"opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice" as to
cause "substantial disruption of or material interference" with operations. The incident was
not malicious, and the LOI meeting, including these brief interruptions, was completed in a
15

short period
of
time. Guerra's conduct during the second meeting did not lose its protected
status. (Rancho Santiago Community College District, supra, PERB Decision No. 602, p. 13.)
It is undisputed that Hall and Buford were aware
of
Guerra's protected activities as they
were present at both meeting(s). Thus, Local 1000 has demonstrated that CDCR had
knowledge
of
Guerra's protected activities.
Adverse Action
A corrective memorandum threatening future disciplinary action and its placement in
an employee personnel file constitutes an adverse action. (City
of
Long Beach (2008) PERB
Decision No. 1977-M; Los Angeles Unified School District (2007) PERB Decision No. 1930;
and Alisa! Union Elementary School District (2000) PERB Decision No. 1412.) The
October 28, 2008 LOI contained both aspects. Thus, the October 28, 2008 LOI constituted an
adverse action.
Nexus between Protected Activities and Adverse Action
Guerra's conduct at the October 24, 2008 meeting(s) did not lose its protected status.
Guerra's responses were aggressive, direct, and firm, but not so opprobrious, flagrant,
insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption
or material interference with operations. The LOI specifically stated that it was issued to
Guerra while acting as an employee representative. While the LOI asserts that Guerra's
conduct was "insubordinate, discourteous, unprofessional, and disrespectful," which violated
the same departmental standards to which it held other employees, the Dills Act and PERB
precedent has a different standard for employees who are acting in their capacity as an
employee representative. The LOI was taken because of Guerra's protected activity;
specifically her questions and comments during the October 24 representation of Adams and
Bennett. Thus, Local 1000 has demonstrated a prima facie case of retaliation.
16

"But For" Test
Once Local 1000 has established a prima facie case
of
retaliation, the burden shifts to
CDCR to show that it would have taken the adverse action even in the absence
of
Guerra's
protected activities. (Novato; Wright Line,
Inc.
(1980) 251 NLRB 1083.) Respondent
contends that it would have issued the October 28, 2008 LOI to Guerra because she was
insubordinate, discourteous, unprofessional, and disrespectful on October 24 as an employee
representative. This argument merely repeats the contentions made earlier about protected
activities which has been rejected. Thus, CDCR has failed to establish that it would have taken
the adverse action even in the absence
of
Guerra's protected activities.
REMEDY
Pursuant to Dills Act section 3514.S(c), PERB is given the authority to:
[I]ssue 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.
It has been found that CDCR retaliated against Guerra for engaging in protected
activities during her representation
of
Adams and Bennett on October 24, 2008, by issuing her
a LOI on October 28, 2008. By this conduct, CDCR violated Dills Act section 3519(a) and,
derivatively, section 35 l 9(b ). It is appropriate to order CDCR to cease and desist from such
conduct, and withdraw the LOI from Guerra's personnel file(s) and destroy all references
thereto. (State
of
California (Department
of
Corrections), supra, PERB Decision No. 1435-S.)
Local 1000 requested that PERB direct CDCR to provide training to its
supervisors/managers regarding the rights and role of job stewards, and Local 1000 be
involved in that training. Although PERB's remedial powers are broad and it can take actions
which will effectuate the policies of the Dills Act (Gov. Code,§ 3514.S(c)), to specifically
17

order that CDCR provide joint training with Local 1000 would create more compliance issues
than the proposed remedy would provide. Rather, CDCR will be responsible to comply with
the cease and desist order. Thus, the request for PERB mandated training is denied.
Local 1000 requested an award
of
litigation costs. To obtain litigation costs,
Local 1000 must demonstrate that CDCR's defense was "without arguable merit" and pursued
in
"bad
faith." (City
of
Alhambra (2009) PERB Decision No. 2036-M, p. 19.) The record
lacks evidence that CDCR pursued its defense in bad faith. 	Litigation costs are therefore
denied.
Finally, it is appropriate that CDCR be required to post a notice incorporating the terms
of
the Order at CCI. The Notice should be subscribed by an authorized agent
of
CDCR,
indicating that it will comply with the terms thereof. The Notice shall not be reduced in size
and reasonable effort will be taken to insure that it is not altered, covered by any material or
defaced and will be replaced
if
necessary. Posting such a notice will inform employees that
CDCR has acted in an unlawful manner, and 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
the dispute, and CDCR's readiness to comply with
the ordered remedy. (State
of
California (Department
of
Personnel Administration, et al.)
(1998) PERB Decision No. 1279-S.)
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire
record 	this case, and pursuant to the Ralph C. Dills Act (Dills Act), Government Code
section 3514.5(c), it is hereby ordered that the State of California (Department of Corrections
& Rehabilitation) (CDCR) and its representatives shall:
18

A. 	CEASE AND DESIST FROM:
1.	
Retaliating against employees for engaging in protected conduct.
2. 	Denying Service Employees International Union, Local 1000 (Local 1000)
its right to represent its bargaining unit members as guaranteed by the Dills Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1.	
Rescind, remove and destroy the Letter
of
Instruction issued to Isabel
Guerra, including removing it from her personnel file and destroying all references thereto.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at CDCR, California Correctional Institution work location(s) where notices to employees
customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent
of
the CDCR, indicating that it 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. 	Written notification
of
the actions taken to comply with this Order shall be
made to the General Counsel
of
the Public Employment Relations Board (PERB or Board), or
the General Counsel's designee. CDCR or its representatives shall provide reports, in writing,
as directed by the General Counsel or his/her designee. All reports regarding compliance with
this Order shall be concurrently served on Local l 000.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board itself within 20 days
of
service
of
this Decision. The Board's address is:
19

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135,
subdivision (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, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
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. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Shawn Cloughesy
Administrative Law Judge
20