California Association of Professional Scientists (Rachlis) (PERB 2417S)

STATE OF CALIFORNIA
DECISION OF THE.
PUBLIC EMPLOYMENT RELATIONS BOARD
CHARLES RACHLIS,
Charging Party,
V.
CALIFORNIA ASSOCIATION OF
PROFESSIONAL SCIENTISTS,
Respondent.
Case No. SA-CO-464-S
PERB Decision No. 2417-S
March 24, 2015
Appearances: Charles Rachlis, on his own behalf; Blanning & Baker by Gerald James,
Attorney, for California Association of Professional Scientists.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by the California Association of Professional Scientists
(CAPS) to a proposed decision by an administrative law judge (ALJ). The complaint alleged
that CAPS violated sections 3515.5 and 3519.5(b) of the Ralph C. Dills Act (Dills Act)1 by
failing to reasonably apply disciplinary procedures when it terminated Charles Rachlis'
(Rachlis) union membership based on allegations that he advocated and supported the
decertification of CAPS.
The ALJ concluded that CAPS failed to reasonably apply its disciplinary procedures
and ordered CAPS to reinstate Rachlis' membership. The Board has reviewed the formal
hearing record in its entirety in its consideration of CAPS' exceptions and Rachlis' response
thereto. Based on that review, the Board has determined that Rachlis did not meet his burden of
1 The Dills Act is codified at Government Code section 3512 et seq.

proving that CAPS failed to reasonably apply its disciplinary procedures. We therefore
overturn the ALJ's proposed decision and dismiss the complaint.
FACTUAL SUMMARY
Rachlis is an employee within the meaning of Dills Act section 3513(c), and CAPS is a
recognized employee organization within the meaning of Dills Act section 3513(b),
representing Bargaining Unit 10, the Professional Scientific Unit.
CAPS Bylaws, Article II, Membership, Section 5 -Termination of Membership, states,
in relevant part:
(b) The Board may terminate the membership, and all rights
arising there from, of any member. A two-thirds majority of the
entire Board must approve such expulsion and the grounds
therefore.
CAPS Policy Manual, Section K, Termination of Membership, states, in relevant part:
Under the CAPS Bylaws, the Board may terminate membership
of any CAPS member by a two-thirds majority vote of the entire
Board as outlined in Article II, Section 5. The process and
procedure to propose and rescind CAPS membership is as
follows:
1. 	Due Process. Any CAPS member against whom charges are
brought shall be afforded due process as defined in this
policy. Due process shall consist of having the opportunity to
see the written charge(s) and all the supporting material, to
respond to those charges, to present a defense, and to get a
timely response.
2. 	Final Determination. A decision by the CAPS Board of
Directors concerning the validity of charge(s) for violating
this policy, and the penalty imposed, if any, shall be final and
binding.
3. 	Member Discipline Review Committee. The Member
Discipline Review Committee shall consist of the CAPS
President and Vice President, and three additional members
appointed by the President. The President shall chair the
committee. If the president is unavailable for any reason, the
Vice-President shall chair the Committee.
2

5. 	Causes for Discipline
a. 	Advocating decertification of CAPS, supporting an effort
to decertify CAPS as the exclusive bargaining agent for
state bargaining unit 10, or signing any document with the
goal of decertifying CAPS.
6. 	Administrative Procedure
a. 	Filing Charges. Any CAPS member(s) may file a charge
against another CAPS member for violating this policy.
Charges shall be in writing and may be filed with any
member of the Membership Discipline Review Committee
(Committee) or the CAPS Sacramento Office.
d. 	Recusal. A member of the Committee shall recuse him or
herself from deliberations in any review proceeding when,
in his or her view, individual bias or prejudice for any
reason make impartiality, or the appearance of such,
difficult or impossible. In the event a member recuses
himself or herself, the President may appoint a
replacement on the committee for the matter under
consideration.
e. 	Challenge for Cause. The charged party may challenge a
member of the Committee for cause. Disqualification is
appropriate when it is made to appear probable that, by
reason of bias or prejudice of a member of the Committee,
a fair and impartial hearing cannot be held before him or
her. The bias or prejudice must be sufficient to impair the
Committee member's impartiality, and the charged party
must allege concrete facts that demonstrate the challenged
Committee member is contaminated with bias or
prejudice. The determination regarding disqualification
shall be made by the other Committee members by
majority vote.
[,r ... ,r]
1. 	Board Decision. Within 10 days following the conclusion
of the hearing or the charged party's final written
3

response, the Committee shall make its written findings.
If
the written findings include at least three
of
the five
Committee members recommending suspension or
dismissal
of
membership from CAPS, the written findings
shall be placed before the Board
of
Directors as a
recommendation to suspend or dismiss the charged party
from membership. A two-thirds (2/3) majority vote
of
the
entire Board must approve such a recommendation.
(Emphasis added.)
Termination
ofRachlis'
Union Membership
Pursuant to CAPS Policy Manual Section K(6), CAPS Member John Budroe
fi1ed
a
charge against Rachlis on September 14, 2012, alleging that Rachlis had advocated the
decertification
of
CAPS.2
Rachlis was notified
of
the charge on September 21, 2012, and informed that a
disciplinary hearing would
be
held by the Member Discipline Review Committee (Committee)
on October 9, 2012. The notice identified the members
of
the Committee as CAPS President
David Miller (Miller), Chair; and CAPS Executive Board Members Patty Velez (Velez),
Marty Berbach (Berbach), Margarita Gordus (Gordus), and Ryanne Mason (Mason). Rachlis
responded to the charge in writing on October 4, 2012.
Immediately prior to the October 9, 2012, hearing Rachlis asked the Committee which
of
its members had served on the Board
of
Directors prior to the revision
of
CAPS bylaws in
2 This was not the first time internal charges had been filed against Rachlis. His
membership had been previously terminated on January 20, 2012, after he was charged with
advocating and supporting decertification
of
CAPS, being verbally and physically aggressive
with a CAPS consultant, and sending unsolicited e-mails to members at their work addresses in
his campaign for CAPS office. His membership was reinstated after he successfully pursued
an unfair practice charge. In PERB Case No. SF-CO-60-S, the ALJ concluded that CAPS
unreasonably delayed Rachlis' disciplinary hearing in violation of its policies and bylaws.
Official notice is taken of PERB case file No. SF-CO-60-S/HO-U-1064-S.
4

February 2011, which eliminated the provision for an annual membership meeting.3 This
inquiry reflected Rachlis' contention, frequently raised with the CAPS Board
of
Directors and
in other settings, that members
of
the Board
of
Directors who were not installed at annual
meetings had no authority to serve on the Board. Rachlis claimed that CAPS had not held an
annual membership meeting in 12 years prior to the bylaws revision eliminating such
meetings.4
In response to his inquiry, Rachlis was informed that four Committee Members, Miller,
Velez, Berbach and Gordus, were elected to the Board
of
Directors prior to February 2011.
Rachlis responded that these individuals should be disqualified from serving on the Committee
because annual meetings had not been held and they therefore had no authority to serve on the
Board
of
Directors. Rachlis assumed the Committee members were aware
of
his prior
objections regarding the lack
of
annual membership meetings. He claimed no other basis for
disqualifying Committee members, even though Miller was one
of
the individuals who filed
the first charge seeking expulsion
of
Rachlis earlier in 2012.
The Committee construed Rachlis' statement as a motion to challenge for cause all
Committee members except Mason. Mason moved to reject the challenge for cause because
Rachlis had not met the requirement under Section K(6)(e)
of
the CAPS Policy Manual for
3 This bylaws revision also clarified the business to be conducted at regular and special
meetings
of
the Board
of
Directors.
4 CAPS excepts to the ALJ's finding that it had in fact not held an annual membership
meeting in 12 years on the ground that no evidence supported such a finding. The record on
this point consists
of
Rachlis declaring in his opening statement that no membership meeting
had occurred in 12 years. CAPS President Miller, admitted that there had not been annual
membership meetings during at least a portion of that time. This is a sufficient basis for the
ALJ's finding, even
if
the time period is unclear. In any event, whether CAPS held annual
membership meetings in the 12 years prior to Rachlis' disciplinary hearing is irrelevant to the·
issue we must decide here, i.e., whether CAPS applied its membership rules unreasonably in
Rachlis' disciplinary hearing.
5

"concrete facts that demonstrate the challenged Committee member is contaminated with bias
or prejudice." The motion was seconded
by
Gordus, and the Committee unanimously voted to
reject Rachlis' challenge for cause.
The Committee then proceeded to consider the merits
of
the charges brought against
Rachlis. Appearing
by
telephone, Rachlis had the opportunity to present evidence, call and
cross-examine witnesses, and generally respond to the charges. On October 12, 2012, the
Committee issued a written determination that Rachlis violated the CAPS Code
of
Professional
Conduct
by
advocating and supporting the decertification
of
CAPS. The Committee
recommended termination ofRachlis' union membership.
On October 17, 2012, the CAPS Board
of
Directors approved the Committee's
recommendation and terminated Rachlis' union membership based on its finding that he
advocated and supported the decertification
of
CAPS. Rachlis filed this charge approximately
two weeks later.
ALJ'S PROPOSED DECISION
The ALJ framed the issue as whether CAPS reasonably applied its CAPS Policy
Manual's challenge for cause provisions. Noting that Dills Act section 3515.5 and California
School Employees Association and its Shasta College Chapter #381 (Parisot) (1983) PERB
Decision No. 280 (Parisot) confer jurisdiction on PERB to determine whether an employee
organization has exceeded its authority to discipline members, the ALJ determined that CAPS
failed to follow its rule regarding challenges to Committee members. According to the ALJ,
the provision in question ("The determination regarding disqualification shall be made by the
other Committee members by majority vote") requires that a claim
of
bias must be heard by
unchallenged Committee members. Because the entire committee discussed and voted on
6

Rachlis' challenge, CAPS disregarded its own mies and thereby deprived Rachlis
of
a fair
disciplinary hearing, according to the ALJ.
According to the ALJ, CAPS established the procedure to ensure a fair disciplinary
hearing, and regardless
of
the sufficiency
of
any claim
of
bias or prejudice, Rachlis was
entitled to consideration
of
his challenge for cause that followed the requirements
of
the
procedure. When the four challenged Committee members deliberated and voted on their own
disqualification, CAPS failed to reasonably apply its disciplinary procedures in the ALJ's
view.
The ALJ noted that in his post-hearing brief, Rachlis provided numerous reasons why
four
of
the five Committee members were biased, including the fact that Miller, the CAPS
president, filed the prior charge against Rachlis. Velez ran against Rachlis in an election for
Board
of
Directors and chaired the prior Committee that terminated his membership, according
to Rachlis. He did not raise these claims before the Committee as a ground for bias, either in
his pre-hearing motion or during the disciplinary proceeding. The ALJ however, believed that
Velez and Miller, who had both served on the Committee that considered the earlier charge
against Rachlis, should have refrained from discussing the sufficiency
of
Rachlis' ''bias claim"
in the disciplinary proceeding. 5
As a remedy, the ALJ ordered Rachlis to be reinstated to active membership status.
POSITIONS OF THE PARTIES
CAPS excepts to the proposed decision, arguing that its termination ofRachlis'
membership for supporting decertification
of
CAPS was reasonable, regardless
of
any legal
5 Rachlis' objection raised to the Committee was not that it was biased but that it was
improperly constituted, because the Board members appointed to the Committee had not been
installed on the Board of Directors at an annual membership meeting.
7

technicalities over rejecting Rachlis' challenge for cause to the members of the Committee.
According to CAPS, Rachlis' challenge to the four committee members failed to meet the
requirements of Section K( 6)( e) of the CAPS Policy Manual because it was unspecific, lacked
factual support, and did not allege a concrete showing of prejudice or bias as required for a
challenge for cause.
CAPS also objects to the fact that the proposed decision explicitly relies on material
included in Rachlis' post-hearing brief describing the alleged bias of the discipline committee
members. CAPS notes that these claims of bias were not raised in the union discipline hearing
before the Committee, and were not presented at the formal hearing before the ALJ.
CAPS further argues that the proposed decision interferes with the internal judgment of
CAPS to remove from membership an individual who advocated the decertification of CAPS.
CHARGING PARTY'S RESPONSE
Rachlis asserts in his response to the exceptions that the ALJ was correct in concluding
that CAPS had not had a regular membership meeting for over 10 years. Although not framed
as exceptions, Rachlis also argues that CAPS is a "captive organization" run in the interests of
an outside company, and that all acts by the CAPS board have been null and void during the
period when no annual meetings took place.
DISCUSSION
Section 3515.5 of the Dills Act states, in relevant part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal of individuals from membership.
Dills Act section 3519.5(b) provides that it shall be an unfair practice for an employee
organization to "impose or threaten to impose reprisals on employees, to discriminate or
8

threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce
employees because
of
their exercise
of
rights guaranteed by this chapter."
PERB has held that these provisions confer on the Board jurisdiction to determine
whether an employee organization has exceeded its authority to discipline its members by
expelling or suspending them from membership.6 As the Board held in California State
Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S (CSEA (Hard)):
Under [Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106 (Kimmett)], PERB will
not interfere in purely internal union matters that do not impact
the employer-employee relationship. (Kimmett, p. 16; [California
State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S (Hard)], p. 28) However, even in those
cases where the Board has found it does not have authority to
intercede in internal union matters which do not impact the
employer-employee relationship, it has been careful to note that
there are other union matters over which the Legislature has
given it the power to act. One such area is that
of
"reasonable
restrictions regarding who may join" unions and "reasonable
provisions for the dismissal
of
individuals from membership."
...
[T]he Board has consistently recognized that the Legislature
conferred this area upon PERB as a separate and distinct grant
of
jurisdiction
....
(CSEA (Hard), supra, PERB Decision No. 1479-S, p. 14-15.)
In CSEA (Hard), supra, PERB Decision No. 1479-S, the Board established two
principles: (1) members
of
employee organizations have a protected right to reasonable
disciplinary procedures and the reasonable application
of
those procedures, and (2) a union's
failure to establish or to follow reasonable disciplinary procedures violates Dills Act
6 PERB has held Dills Act section 3515.5 and its analog, Educational Employment
Relations Act (EERA) section 3543.l(a), do not give PERB the authority to determine the
reasonableness of an employee organization's discipline of members other than suspension or
expulsion from membership. (EERA is codified at Government Code section 3540 et seq.)
(California State Employees Association (Barker & Osuna) (2003) PERB Decision No. 1551-
S, p. 8 (removal from bargaining team); Antelope Valley College Federation
of
Teachers
(Stryker) (2004) PERB Decision No. 1624, p. 5.)
9

section 3515.5 and thus interferes with members' rights under Dills Act section 3519.5(b).
(CSEA (Hard), p. 5; see also, California Correctional Peace Officers Association (Colman)
(1989) PERB Decision No. 755-S, p. 21 (Colman).)
PERB looks to the fairness of a union proceeding to expel or suspend a member to
determine its reasonableness. In Colman, supra, PERB Decision No. 755-S, PERB upheld the
ALJ's determination that the union failed to give charging party a fair hearing because it
considered evidence of charging party's conduct at a chapter meeting held nearly two months
after charges were filed. 	Hence, charging party was given no notice that he would be tried for
his conduct. at the chapter meeting. "Basic fairness would require notice to Colman that such
conduct would be considered so that he could prepare a defense." (Id. at pp. 3-4.)
Colman, supra, PERB Decision No. 755-S noted:
California courts review dismissals from private organizations
under the common law requirement of "fair procedure." ...
In cases involving unions, the courts interfere in an expulsion
only where the organization has not followed its own rules, or
rudimentary rights of defense have not been granted. Cason v.
Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134. In general, the
courts apply the "fundamental principle of justice that no man
may be condemned or prejudiced in his rights without an
opportunity to make his defense." Id. at 37 Cal.2d 143.
However, "the refined and technical practices which have
developed in the courts cannot be imposed upon the deliberations
of workingmen and the form of the procedure is ordinarily
immaterial if the accused is accorded a fair trial." Id.
What the courts do require is that the union's procedure grant the
accused "substantial justice." The elements of a fair trial "will be
imposed even though the rules of the union fail to provide
therefor." Id. 	This includes "the right to notice of the charges, to
confront and cross-examine the accusers and refute the
evidence." Id. at 37 Cal.2d 144. The judicial requirements are
thus consistent with the PERB holding in Parisot that a union
may not suspend a member on pre-hearing charges that are
"unreasonably vague and ambiguous."
(Id. at Proposed Dec., pp. 23-24; citations partially omitted; emphasis added.)

In Parisot, supra, PERB Decision No. 280, PERB determined that the charging party, a
suspended member, stated a prima facie case for violation
ofEERA
section 3543.l(a)7
by
alleging that some charges brought against him in support
of
his suspension from membership
were unreasonably vague and ambiguous
and
failed to specify the sections
of
the union
constitution which had been violated
or
the dates, times, and witnesses involved in the charged
offenses. Parisot, who lived in Redding, also complained that the hearing was held in
San Jose. He did not attend the hearing and was not informed
of
the evidence produced against
him at the hearing. These allegations raised sufficient questions about the reasonableness
of
union's procedures for PERB to order that a complaint issue.
Not every deviation from a union's procedural rules will result in PERB overturning the
union's disciplinary decision. Thus, where the alleged deviation or unreasonable application
of
procedures was sufficiently removed from the union's determination
of
the merits
of
charges resulting in expulsion from membership, PERB refused to overturn the union's
decision. (CDF Firefighters (Pittman) (2006) PERB Decision No. 1815-S, Dismissal Ltr.,
p. 8.)
Under the foregoing authority, the primary question before the Board is whether the
union utilized a fair procedure that granted Rachlis substantial justice in its proceedings to
expel Rachlis from membership.
Unlike cases in which a member was deprived
of
basic due process such as reasonable
notice
of
the charges and evidence against him, or a reasonable opportunity to attend the
hearing, in this case the asserted violation
of
CAPS' procedures was
of
a much more technical
7 EERA section 3543.1 parallels the language
of
Dills Act section 3515.5 in authorizing
employee organizations to establish reasonable provisions for the dismissal
of
individuals from
membership.
11

nature. For reasons that we explain below, we conclude that CAPS did not unreasonably apply
its rules in responding to Rachlis' assertion that four of the five Committee members should be
disqualified. Assuming arguendo, that the Committee did not comply with its own policy in
the way it responded to Rachlis' challenge to its legitimacy, there is no evidence that Rachlis
was deprived of a fair hearing on the merits of the charges against him as a result.
As noted above, the CAPS procedure for challenging a member of the Committee for
cause requires that "the charged party must allege concrete facts that demonstrate the
challenged Committee member is contaminated with bias or prejudice." Rachlis failed to do
this, but instead merely asked which Committee members served on the Board of Directors
during the period of time when CAPS did not hold annual meetings as provided in its former
bylaws. When he was supplied with the answer to his inquiry, he asserted that those four
Committee members should be disqualified from serving on the Committee because annual
meetings had not been held and, therefore, the four individuals presumably had not been
properly installed as board members. Rachlis never claimed at any time relevant to the
disciplinary hearing that the Committee members were biased or "contaminated with
prejudice."
Thus, Rachlis' claim that four of the five Committee members were unauthorized to
serve did not comply with CAPS Policy Manual Section K(6)(e). He did not assert to the
Committee that any particular member should be disqualified on the grounds of bias or
prejudice and that an impartial hearing could therefore not be held before any particular
member of the Committee. Neither did he allege "concrete facts that demonstrate the
challenged Committee member is contaminated with bias or prejudice" as Section K(6)(e)
requires. Since Rachlis did not assert bias or prejudice as grounds for disqualifying the four
Committee members, the Committee would have been acting fully within CAPS policy to
12

dismiss his challenge outright or to simply ignore it. Instead, the Committee used an allegedly
imperfect method to dismiss the
challenge-a
motion
by
the one unchallenged Committee
Member Mason, and a subsequent vote
by
the remaining Committee members. In the absence
of
concrete facts demonstrating that the Committee members were "contaminated with bias or
prejudice," we will not presume bias, especially where, as here, the member failed to comply
with the reasonable mles and procedures established
by
the union. (Andrews
v.
Agricultural
Labor Relations Bd. (1981) 28 Cal.3d 781, 792.)
We
disagree with the ALJ that the challenged Committee members' vote on Mason's
motion tainted a procedure that Rachlis had no right to invoke
in
the first place. The fact that
the Committee gave him the benefit
of
the doubt
by
treating his assertion as a motion to
challenge for cause does not convert its mling into a violation
of
fair procedure. The
Committee's rejection
of
the challenge for cause was an appropriate exercise
of
its authority
under the bylaws and CAPS Policy Manual.
Nor can we conclude that Rachlis was deprived
of
a fair hearing on the merits
of
the
charges against him, because some
of
the Committee members had not been installed as Board
members at an annual meeting. Rachlis does not assert that these Board/Committee members
were not legitimately elected to their office, but instead relies on the technicality
of
when and
how they were installed after their election. 8
CAPS' Policy Manual declares that due process consists
of
providing the charged party
with an opportunity to see written charges and all supporting material, the opportunity to
respond, present a defense (presumably at a hearing before the Committee) and to receive a
timely response. These principles comport with those articulated
8 CAPS dispensed with the requirement of an annual meeting in Febmary 2011, nearly
18 months prior to these charges being filed against Rachlis.
13

by the court in Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 143: "[N]o man
may be condemned or prejudiced in his rights without an opportunity to make his defense."
There was no evidence that Rachlis was prevented from defending himself on the merits to the
charge that he supported and advocated decertification of CAPS.
Consequently we hold that no harm to Rachlis' rights resulted from CAPS' actions,
since CAPS' rules and the application of those rules were fair and did not deprive him of
substantial justice.
The ALJ disregarded the fact that Rachlis did not allege any concrete examples of bias
or prejudice on the part of the Committee members at the time he asserted his challenge, as the
union's CAPS Policy Manual requires in order to challenge a Committee member. Instead, the
ALJ relied on Rachlis' post hoc allegations of bias that only appeared in his post-hearing brief,
and on which he did not present evidence at the formal hearing. The ALJ's reliance was clear
error, as was the ALJ's presumption that two Committee Members Miller and Velez, both of
whom participated in the prior disciplinary Committee hearing involving Rachlis, were biased
because of that participation.
In sum, CAPS did not unreasonably apply its policy regarding challenges to Committee
members for cause when it rejected Rachlis' attempt to disqualify four of the five Committee
members. Rachlis' failure to allege bias or prejudice at the time he challenged the four
Committee members failed to comply with CAPS' reasonable policy, and the Committee was
not required to entertain his challenge. Having nevertheless considered and rejected the
challenge, the Committee's determination did not deprive Rachlis of a fair hearing.
For these reasons, we overturn the ALJ's proposed decision and dismiss the charge.
14

ORDER
Upon the foregoing Decision and the record as a whole, the Public Employment
Relations Board hereby ORDERS that the proposed decision be set aside, and that the
complaint and underlying unfair practice charge in Case No. SA-CO-464-S are hereby
DISMISSED WITH PREJUDICE.
Chair Martinez and Member Banks join in this Decision.
15