State of California (Department of Corrections and Rehabilitation) (PERB 2598SA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA ASSOCIATION OF
PSYCHIATRIC TECHNICIANS,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
Case No. SA-CE-2047-S
PERB Decision No. 2598a-S
January 18, 2022
Appearances: Sean H. Bedrosian, Attorney and Consultant, for California Association of
Psychiatric Technicians; California Department of Human Resources by Stanley R.
Marubayashi, Labor Relations Counsel, for State of California (Department of
Corrections & Rehabilitation).
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) after the Court of Appeal for the Third Appellate District issued its
unpublished opinion and order in Department of Corrections and Rehabilitation v.
Public Employment Relations Bd. (October 4, 2021, No. C088562, 2021 WL 4519682.)
The Court of Appeal affirmed, with a modification, the Board’s decision in State of
California (Department of Corrections & Rehabilitation) (2018) PERB Decision
No. 2598-S. In that decision, the Board concluded that the Department of Corrections
and Rehabilitation (CDCR) interfered with (1) an employee’s right to be represented
by her union, the California Association of Psychiatric Technicians (CAPT), prior to

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and during an invasive body search; and (2) CAPT’s corresponding right to represent
employees prior to and during such searches. The Board found that CDCR thereby
violated the Ralph C. Dills Act (Dills Act) section 3519, subdivisions (a) and (b).1
The Court of Appeal affirmed the Board’s conclusion that CDCR violated the
Dills Act, but the Court modified the wording of the Board’s remedial order.
Specifically, the Court of Appeal held that the remedial order applies only in
circumstances in which CDCR and its representatives either constitute the appointing
authority or are acting as an employer and the employee reasonably fears discipline.2
In accordance with the Court of Appeal’s direction, we issue the following order
that fully supersedes our remedial order in State of California (Department of
Corrections & Rehabilitation), supra, PERB Decision No. 2598-S.
ORDER
It is hereby ORDERED that the State of California (Department of Corrections
and Rehabilitation) (CDCR) and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with an employee’s right to have a union representative
present prior to and during an invasive body search, if CDCR and its representatives
________________________
1 The Dills Act is codified at Government Code section 3512 et seq.
2 The Court of Appeal noted that in California, a public employee is entitled to
representational rights not only when an employee reasonably fears discipline, but also
in other “highly unusual” circumstances that are not necessarily disciplinary. However,
the Court of Appeal further noted that the Board did not reach that issue in this case.
(See State of California (Department of Corrections & Rehabilitation), supra, PERB
Decision No. 2598-S, adopting proposed decision at p. 26, fn. 22 [no need to consider
whether invasive body search constituted “highly unusual” circumstances, as CAPT
established its claim based on the search’s investigatory nature].)

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either constitute the appointing authority or are acting as an employer and the employee
reasonably fears discipline.
2. 	Denying California Association of Psychiatric Technicians (CAPT)
the right to represent employees in Bargaining Unit 18 prior to and during an invasive
body search, if CDCR and its representatives either constitute the appointing authority
or are acting as an employer and the employee reasonably fears discipline.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE DILLS ACT:
1. 	Within 10 workdays following service of this decision, post copies
of the Notice attached hereto as an Appendix at all work locations at California State
Prison, Sacramento, where notices to employees represented by CAPT are
customarily posted. 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 30 consecutive workdays. The Notice shall also be posted
by electronic message, intranet, internet site, and other electronic means customarily
used by CDCR to communicate with its employees in the bargaining unit represented
by CAPT. Reasonable steps shall be taken to ensure that the Notice is not reduced in
size, altered, defaced, or covered with any other material.3
________________________
3 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure

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________________________
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.
2. 	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 shall provide reports, in writing, as directed by
the General Counsel or designee. All reports regarding compliance with this Order
shall be concurrently served on CAPT.
Chair Banks and Member Shiners joined in this Decision.

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-2047-S, California
Association of Psychiatric Technicians v. State of California (Department of
Corrections and Rehabilitation), in which all parties had the right to participate, it has
been found that the State of California (Department of Corrections and Rehabilitation)
(CDCR) violated the Ralph C. Dills Act (Dills Act), Government Code section 3519,
subdivisions (a) and (b), when it interfered with its employee’s right to be represented
by the California Association of Psychiatric Technicians (CAPT) and with CAPT’s right
to represent employees, by denying the employee’s request to be represented by a
CAPT representative on July 1, 2015, prior to and during an invasive body search.
As a result of this conduct, we have been ordered to post this Notice and we
will CEASE AND DESIST:
1. 	Interfering with an employee’s right to have a union representative
present prior to and during an invasive body search, if CDCR and its representatives
either constitute the appointing authority or are acting as an employer and the employee
reasonably fears discipline.
2. 	Denying CAPT the right to represent employees in Bargaining Unit
18 prior to and during an invasive body search, if CDCR and its representatives either
constitute the appointing authority or are acting as an employer and the employee
reasonably fears discipline.
Dated: _____________________ 	STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS AND 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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.