Service Employees International Union Local 1000 (Hernandez) (PERB 2049S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ALEX HERNANDEZ,
Charging Party, Case No. SA-CO-371-S
V. PERB Decision No. 2049-S
SEIU LOCAL 1000, July 3, 2009
Respondent.

Appearances: Alex Hernandez, on his own behalf; Brooke D. Pierman, Attorney, for SEIU
Local 1000.

Before McKeag, Neuwald and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Alex Hernandez (Hernandez) of a Board agent’s dismissal (attached) of
his unfair practice charge. The charge alleged that SEIU Local 1000 violated the Ralph C.
Dills Act (Dills Act)! by suspending Hernandez’s union membership in retaliation for his
protected activities and interfering with his right to union membership.

The Board has reviewed the dismissal and the record in light of Hernandez’s appeal,
SEIU Local 1000’s response and the relevant law. Based on this review, the Board finds the
Board agent’s warning and dismissal letters to be a correct statement of the law and well

reasoned, and therefore adopts them as the decision of the Board itself.

'The Dills Act is codified at Government Code section 3512 et seq.

ORDER
The unfair practice charge in Case No. SA-CO-371-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwaldjoined in this Decision.
2

ST
A
TE
OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
June 5, 2008
Alex Hernandez
750 N Street (MIC 40)
Sacramento, CA 95814
Re: 	Alex Hernandez
v.
SEIU Local 1000
Unfair Practice Charge No. SA-CO-371-S
DISMISSAL LETTER
Dear Mr. Hernandez:
) 	ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge (original charge) was filed with the Public
Employment Relations Board (PERB or Board) on January 24, 2008 and amended on April 25,
2008 (First Amended Charge). Alex Hernandez alleges that the SEIU Local 1000 (SEIU or
Union) violated the Ralph
C.
Dills Act (Dills Act or Act)1 by: (1) suspending his union
membership in retaliation for protected activities; and (2) interfering with his right to union
membership.
I informed you in the attached letter April 24, 2008 (hereafter, Warning Letter), that the above-
referenced charge did not state a prima facie case. 2 You were advised that,
if
there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew
it
prior to May
1,
2008, the charge would be
dismissed. 	On April 25, 2008, a First Amended Charge was filed with PERB.
The First Amended Charge alleges the following new factual allegations. On September 13,
2007, Mr. Hernandez assisted Barbara Powers, founder
of
CSEUnited, to file an unfair practice
charge against SEIU. On December 24, 2007, SEIU filed a complaint in the Sacramento
County Superior Court seeking removal
of
Mr. Hernandez as a director
of
SEIU. On January
23, 2008, SEIU sent a newsletter to members titled "Leaders sue to remove anti-union board
member."
On April 10, 2008, SEIU sent a letter to Mr. Hernandez that stated in part:
Effective January 18, 2008, you are no longer a member
of
SEIU
Local 1000. You are no longer entitled to represent the Union or
its members in any way. 	Specifically, you may not hold yourself
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 On April 24, 2008, the Warning Letter was e-mailed to Charging Party per his request.

SA-CO-371-S
June 5, 2008
Page 2
out as an agent
of
the Union, you may not file an unfair practice
charge in the Union's name. You are ineligible to run for office
and will not be permitted release time to conduct any Union
business.
Within the next several days, your employer and the State
Controller's office will be notified that you are no longer a
member
of
the Union. You will no longer pay dues to the Union,
but will pay an agency fee like any other non-member
of
the
Union employed in Bargaining Unit 01. Finally, the Union will
notify CSEA that you are no longer a member
of
Local 1000 and
that, as a result, your membership in CSEA should be terminated.
According to the existing record in this case, every four years SEIU holds an international
convention at which more than 3,500 leaders and activists gather to conduct union business.
This year, the 24th Quadrennial International Convention will occur May
31
through June 5 in
Puerto Rico. During the International Convention, delegates from all over North America will
elect SEIU national officers and executive board members and vote on resolutions and
amendments to the SEID Constitution. The SEIU membership elected
63
delegates (referred
to as "International Delegates") who are eligible to attend the International Convention. Mr.
Hernandez is not among the 63 delegates.
DISCUSSION
A.
	Retaliation
Although not clear from the record, it appears Mr. Hernandez is alleging that SEIU initiated a
disciplinary process (that ultimately resulted in Mr. Hernandez losing his SEIU membership
rights) in retaliation for assisting Ms. Powers to file an unfair practice charge. In addition, Mr.
Hernandez repeats the same allegations made in the original charge, i.e., that SEIU also
retaliated against him because he engaged in the following protected activities: (1) requesting
corporate documents and financial statements; (2) making statements about SEIU that were
published in the Sacramento Bee; and (3) being involved with CSEUnited.
The disciplinary hearing launched by SEIU is an internal union matter. 	(See, e.g., California
State Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S at p.
22-23 [union filed internal union complaints against elected officers, seeking their removal
from union office and withdrawal of their membership privileges].) In California State
Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S, the Board affirmed
that it will not intervene in disputes that involve only the internal union activities of an employee
organization, unless those activities impact employer-employee relations. (Id. at p. 28; see also,
California State Employees Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-
S and California State Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision
No. 1411-S [the charging party must demonstrate that the internal union activities have a
substantial impact on employer-employee relations].)

SA-CO-371-S
June 5, 2008
Page 3
Herein, the First Amended Charge fails to provide sufficient facts demonstrating that SEIU' s
internal actions in this matter have a substantial impact on Mr. Hernandez's relationship with
his employer, the State Employment Development Department. As such, the charge fails to
demonstrate a prima facie retaliation violation under the Act.
B.
Violation
of
Policy File and Hearing Officer Training Manual
Mr. Hernandez alleges that SEIU did not follow their own Policy File and Hearing Officer
Training Manual (Manual) in suspending his membership.
Dills Act section 3515.5 provides in pertinent part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal
of
individuals from membership.
Courts will interefere in an expulsion by a union only where the union 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 143.)
As worded, Dills Act section 3515.5 only provides the Board with authority to determine the
reasonableness
of
a union's restrictions regarding who may join and rules for the dismissal
of
individuals from membership.
In California State Employees Association (Hard, et al.) (2002) PERB Decision No. 14 79-S
(CSEA Hard), the Board addressed a violation
of
section 3515.5. The Board found that CSEA
failed to follow its own procedures in suspending a member, and that the suspension occurred
during the nomination period for CSEA office and prevented the member from seeking office.
The Board concluded that CSEA's conduct violated Dills Act section 3515.5, which in turn
interfered with the member's rights thereby also violating section 3519.5(b). (Ibid.)
But CSEA Hard differs from the instant case because, unlike the member in CSEA Hard, Mr.
Hernandez was not summarily dismissed by SEIU. Mr. Hernandez was afforded the
"rudimentary rights
of
defense" as he took part in SEIU's disciplinary process under the SEIU
Policy File. Mr. Hernandez was given notice of the date and time of the disciplinary hearing.
Mr. Hernandez was also granted an extension on October 30, 2007 to attend the hearing. 	In
addition, as noted in the Hearing Panel's decision, Mr. Hernandez had five
of
his own
witnesses participate in the process, and there is no evidence to suggest that SEIU sought to
exclude such evidence. Therefore, it simply does not follow that SEIU's denial of a second
request by Mr. Hernandez to extend the hearing demonstrates an unreasonable application
ofthe Policy File or that Mr. Hernandez was denied an opportunity to present his defense.

SA-CO-371-S
June 5, 2008
Page 4
Mr. Hernandez argues that SEIU also violated the Manual when it issued its decision
regarding his suspension. The Manual states: "The charged party does not have to testify and
the lack
of
testimony should not be held against him or her." Mr. Hernandez alleges that
SEIU failed to abide by the Manual since the Hearing Panel's decision stated, "The choice
of
[Mr.] Hernandez to not testify and be subject to cross-examination compromised the
credibility
of
his written exhibits & his assertion
of
facts made in his opening & closing oral
arguments." According to Mr. Hernandez, this statement "contradicts" the provisions
of
the
Manual. Mr. Hernandez assumes that SEIU's decision to suspend his membership hinged
entirely on the Panel Hearing's statement in its decision. However, the record demonstrates
that the factual findings were made based on hearing testimony
of
nearly eight witnesses and
by examining nearly two dozen supporting documents. 	·
In any event, Mr. Hernandez cites California School Employees Association and its Shasta
College Chapter #381 (1983) PERB Decision No. 280 (Parisot) to support his claim that
SEIU' s failure to abide by the Manual unreasonably denied him his membership right. In
Parisot the association barred the member from membership and from holding office. 	The
member claimed that the association's procedures used to remove him were unreasonable. The
Board held in Parisot that an association may not suspend a member on pre-hearing charges
that are "unreasonably vague or ambiguous." (Id. at p. 10.) But Parisot is distinguishable from
the instant case because Mr. Hernandez was granted a hearing and there is no evidence that the
charges against him were vague or ambiguous.
Mr. Hernandez also alleges that SEIU violated its Policy File when the Hearing Panel failed to
submit its findings/recommendation regarding Mr. Hernandez's suspension to the SEIU
President within the permitted 10-day timeframe. Mr. Hernandez's disciplinary hearing was
held on December 8, 2007 and the Hearing Panel's findings/recommendation were submitted
to the President on January 12, 2008. Although SEIU Policy File section 9CSDO.06(j)
provides that the Hearing Panel has
10
days to report its findings to the President, section
9CSDO.06(d) of the Policy File provides that the Hearing Panel may on its own motion grant
its own extensions for good cause. Because the Hearing Panel was unable to issue its
findings/recommendation within the 10-day
period-due
to not receiving a transcript
of
the
hearing and subsequently being short one panel
member-it
found good cause and granted its
own motion to extend the timeframe. Based on the current record, the charge fails to
demonstrate that SEIU unreasonably applied the Policy File against Mr. Hernandez.
In sum, despite his allegations, Mr. Hernandez has not shown that he was deprived
of
a
protected right to reasonable internal disciplinary procedures or the reasonable application
of
those procedures.
C. International Convention
Although not clear from the charge, it appears Mr. Hernandez is alleging that SEIU engaged in
an unfair labor practice by preventing him from attending the SEIU International Convention.

SA-CO-371-S
June 5, 2008
Page 5
Pursuant to article IV, section 3
of
the SEIU International Constitution and Bylaws, only
"delegates duly elected in accordance with all applicable statutes and the provisions
of
this
Constitution and Bylaws shall be eligible to represent any Local Union at the International
Convention and shall be entitled to vote
....
" The International Constitution and Bylaws
further states:
No person shall be eligible for nominations as an officer, member
of
the Executive Board, delegate, or any other office in a Local
Union who has not been a member in a continuous good standing
in the Local Union for at least two years immediately preceding
the nomination and has, during all
of
that time, paid all full dues
required for working members
of
the Local Union within each
month when due.
(SEIU's International Constitution and Bylaws, article XV, section 2.)
A union has the right to discipline a member in a non-discriminatory fashion for improper
conduct. (Anderson v. Los Angeles County Employee Relations Comm. (1991) 229
Cal.App.3d 817, 826 [an organization has the natural right
of
self preservation, and may with
propriety expel members who show their disloyalty by joining a rival organization].)
Furthermore, in Price
v.
N.L.R.B. (9th Cir.1967) 373 F.2d 443 (Price), the Ninth Circuit Court
of
Appeals held that the union was entitled to suspend a member pursuant to its constitution.
Price, like Mr. Hernandez, was involved in a decertification campaign against his own union.
The union charged Price with violating article XII, section 1(d)
of
its constitution, which
prohibited members from "advocating or attempting to bring about the withdrawal from the
International Union
of
any Local Union or any member or group
of
members
....
" (Id. at p.
445.) The union constitution further provided that the consequences for such action(s) could
be a fine, suspension, or expulsion.
Similarly here, SEIU's International Constitution and Bylaws include membership rules to
exclude participation in events such as the International Convention. Mr. Hernandez has not
been a member in good standing since his membership was suspended on January 18, 2008,
and he therefore is not eligible pursuant to the International Constitution and Bylaws to act as
a delegate for SEIU at the International Convention.
Based on above, the charge fails to demonstrate that SEIU committed an unfair practice by
precluding Mr. Hernandez from participating in the International Convention.
CONCLUSION
For the reasons set forth above and in the Warning letter of April 24, 2008, the charge fails to
state a prima facie violation of the Act. Accordingly, this case is dismissed.

SA-CO-371-S
June 5, 2008
Page 6
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(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
Regulation 32135(d), provided the filing party also places the original, together with the
required number of copies and proof of service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
3 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-371-S
June 5, 2008
Page 7
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired. -
Sincerely,
TAMIR.
BOGERT
General Counsel
By
_____________~-
YaJm
Paitovi
Regional Attorney
Attachment
cc: Brooke D. Pierman

STATE OF CALIFORNIA
===============
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
April 24, 2008
Alex Hernandez
750 N Street (MIC 40)
Sacramento, CA 95814
Re: 	Alex Hernandez
v.
SEIU Local 1000
Unfair Practice Charge No. SA-CO-371-S
WARNING LETTER
Dear Mr. Hernandez: 
,)	
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 24, 2008. Alex Hernandez alleges that the SEIU Local
1000 (SEIU or Union) violated the Ralph
C.
Dills Act (Dills Act or Act)1 by: (1) suspending
his union membership in retaliation for protected activities; and (2) interfering with his right to
union membership.
Investigation
of
the charge revealed the following information. SEIU is the exclusive
representative
of
multiple bargaining units in the State
of
California, including Unit
1.
	Mr.
Hernandez is employed at the Employment Development Deparment (EDD) in Sacramento.
On January 18, 2008, SEIU passed a motion to suspend Mr. Hernandez's union membership
for one year. Mr. Hernandez
is
currently the District Labor Council (DLC) 785 President and a
member
of
SEIU's Board
of
Directors. Mr. Hernandez is not suspended from holding these
two positions. Mr. Hernandez is also an organizer
of
California State Employees United
(CSEUnited), a grassroots movement group dedicated to reforming both California State
Employees Association (CSEA) and SEIU.
DLCs are the subgroups through which members and stewards carry out SEIU's programs
within their jurisdictional boundaries. (SEIU Policy File section 4CSD0.0l(a).)2 The structure
of
the DLC is divided into membership based on work location, community
of
interest, and
geographic region. Each DLC may elect a President who is responsible for the activities
of
the
DLC, including implementation
of
SEIU's policies and administration of the DLC. (SEIU
Policy File section 4CSD0.04(a).)
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 The SEIU Policy File is a document that specifies, among other things, the following:
(1) the authority and purpose of SEIU; (2) the criteria used for SEIU membership; (3) the
purposes and responsibilities of SEIU's DLCs and Job Stewards; and (4) SEIU's disciplinary
procedures.

SA-CO-371-S
April 24, 2008
Page 2
SEIU's Policy File section 9CSD0.06 contains procedures for disciplinary action and states in
relevant part:
(a) A disciplinary action is initiated when a member files
specific charges in writing on a Form
HRl.
(b) 	Upon receipt
of
the completed Form
HRl,
the President
[of
SEIU]
...
shall review the charges and
if
he/she finds the
charges to be frivolous, he/she will immediately notify the
charging party and no further action shall be taken.
If
the
charges are determined to be valid, a hearing shall be held
within thirty (30) days before a hearing panel or hearing
officer. The hearing officer or panel shall conduct an-
investigation,
if
the facts are not in dispute or the
recommendation is to reject the charges, no hearing is
necessary.
(e) The individuals involved in the hearing shall be personally
notified in writing at least fifteen days prior to the meeting.
(g) The parties to the hearing shall have the right to be
represented at their own cost, to introduce evidence
supporting or refuting the charges and to cross-examine
witnesses.
G)	
The hearing panel or hearing officer shall report to the
President
...
[t]he findings
of
the hearing
....
	Such report
shall include recommendation for action.
(1) Rejection
of
the charges;
(2) Reprimand;
(3) Suspension from Office;
( 4) Removal from Office or any other position they hold
in the union; and
(5) 	Recommend to the Local 1000 Council that the
member be suspended from privileges
of
membership
except those required by law.
(k) 	The Local 1000 Council shall act on the report in executive
session no later than its next regularly-scheduled meeting.
Disciplinary action requires a three-fourths vote of the
council. The council must make immediate disposition of
the case as follows:
(1) The council shall first determine whether the charges
are sustained.

SA-CO-371-S
April 24, 2008
Page 3
(2) If sustained, the council shall than determine the
appropriate penalty.
(3) All action shall be by a three-fourths vote
of
the
council.
On June 21, 2007 and September 27, 2007, Mr. Hernandez made requests for access to review
and make copies
of
certain internal union documents, including SEIU corporate and financial
documents and specifically bank statements and summary statements concerning the SEIU
Legal Defense Fund. 	SEIU agreed to disclose some but not all
of
the requested documents.
SEIU alleges that, on October
1,
2007, it received a completed HRl form3 from a Unit 1
member alleging that Mr. Hernandez advocated for the decertification
of
SEIU and started a
website [http://www.dumpseiu.com] in violation
of
SEIU's Policy File section 9CSD0.02(f)
and (k).4 The website encourages Unit 1 employees to decertify SEIU and thereafter to create
a new union.
On October 3, 2007, Mr. Hernandez's attorney advised SEIU that Mr. Hernandez is entitled to
access all records in accordance with California Corporations Code section 8334. Mr.
Hernandez's attorney also threatened to file a lawsuit against SEIU and to seek attorneys' fees.
On October 6, 2007, Mr. Hernandez was quoted in a Sacramento Bee newspaper article
criticizing SEIU' s endorsement
of
a motion pending before CSEA' s General Council regarding
altering the balance
of
power between CSEA and SEIU.
On or about October 11, 2007, SEIU notified Mr. Hernandez that an HRl complaint had been
filed against him and that a disciplinary hearing would be set in the matter.
On October 15, 2007, the Sacramento Bee published another article regarding the Unit 1 fair
share fee rescission campaign quoting Mr. Hernandez stating, "[t]he solution is to remove the
current elected officers, not weaken our Union."
3
·
HRl forms are complaints filed by bargaining unit members.
4 Section 9CSD0.02 states in relevant part:
Disciplinary action may be taken for the following reasons:
(f) Taking an active part in promoting another organization which is undermining the
objectives or the existence of the Association, is seeking its decertification, or which directly
competes with the Association in the areas covered by the Ralph C. Dills Act;
(k) Behavior which is determined by the hearing panel or officer to be of such a nature
that it causes discredit to the Association or [SEIU], the DLCs, the BUN Cs, or any of its
members
....

SA-CO-371-S
April 24, 2008
Page 4
On October 17, 2007, SEIU requested that Mr. Hernandez appear at a disciplinary hearing on
October 22, 2007, to respond to the charges in the
HRl
complaint.
On October 17, 2007, Mr. Hernandez cautioned SEIU that legal action would follow
if
SEIU
did not grant Mr. Hernandez's access to the records sought on October 3, 2007.
On October 18, 2007, Mr. Hernandez requested that SEIU reschedule the disciplinary hearing
for a later date because SEIU did not give him the 15-day notice required by SEIU's Policy
File section 9CSD0.06(e). The hearing was rescheduled for November 5, 2007 as requested.
However, on November 5, 2007, SEIU notified Mr. Hernandez that the hearing would be
rescheduled again because SEIU's sole witness could not attend. On November 29, 2007,
SEIU called Mr. Hernandez to advise him that the hearing was set for December
8,
2007. Mr.
Hernandez requested that the hearing again be rescheduled because his representative~would
not be available to attend a hearing until January 2, 2008. SEIU denied Mr. Hernandez's
request and reiterated that the hearing was set for December 8, 2007. Mr. Hernandez alleges
that the November 29, 2007 call did not comply with the notice provision
of
SEIU Policy File
section 9CSD0.06(e) requiring written notification.
On December
8,
2007, Mr. Hernandez attended the disciplinary hearing conducted by a
Hearing Panel consisting
of
three SEIU members. Pursuant to SEIU Policy File section
9CSDO.06(i), the Hearing Panel is permitted 10 days to report their findings along with their
recommendation for action to the SEIU President.
On December 10, 2007, Mr. Hernandez filed a writ
of
mandate in the Sacramento Superior
Court alleging that SEIU failed to disclose the records he requested in the October 3, 2007
letter. In or around late December 2007/early January 2008, Mr. Hernandez ran for SEIU
International Delegate.
On January 12, 2008, the SEIU International Delegate election ballots were counted. 	Among
the 221 delegates who ran for office, Mr. Hernandez was ranked eighth in terms
of
the number
of votes received. Mr. Hernandez did not win the election.
On January 12, 2008, the SEIU Hearing Panel issued its decision recommending suspension
ofMr. Hernandez's union membership for one year.
On January 18, 2008, the SEIU Council held a meeting that included, among other things,
taking disciplinary action based on the recommendation of the Hearing Panel. According to
the SEIU Policy File, such disciplinary action "requires a three-fourths vote
of
the Council."
(Policy File section 9CSDO.06(k).) There is no dispute that the entire Council is comprised of63 members. The question before the Council was whether SEIU should suspend Mr.
Hernandez's union membership for one year.
The motion passed by three-fourths of those Council members present and voting, and Mr.
Hernandez's discipline was upheld and his union membership was suspended for one year.

SA-CO-371-S
April 24, 2008
Page 5
DISCUSSION
A. Retaliation
State employees have the right to participate in the activities
of
employee organizations for the
purpose
of
representation on matters
of
employer-employee relations. 	(Gov. Code, § 3515.)
The Board has not interpreted the Dills Act as protecting all participation in employee
organization activities, or as providing PERB with unlimited authority to reviewthe internal
affairs
of
employee organizations. In California State Employees Association (Hard, et al.)
(1999) PERB Decision No. 1368-S, the Board affirmed that it will not intervene in disputes that
involve only the internal union activities
of
an employee organization, unless those activities
impact employer-employee relations. (Id. at p. 28; see also, California State Employees
Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-S and California State
Employees Association (Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S [the
charging party must demonstrate that the internal union activities have a substantial
impact on
employer-employee relations].) Accordingly, Mr. Hernandez has failed to provide sufficient
evidence demonstrating that SEIU's internal actions in this matter have a substantial impact on
his relationship with EDD.
Mr. Hernandez alleges that the suspension
of
his membership bars him from receiving union
leave time under the provision
of
the Unit 1 MOU to perform the following activities: (1)
participating in Joint Labor Management Committee meetings; (2) representing members in
Skelly hearings or PERB mediations; (3) assisting members in filing a grievance and
representing them in grievances meetings; and (4) participating in SEID Council quarterly
meetings or host worksite meetings. But the charge fails to demonstrate how Mr. Hernandez's
involvement in these acts specifically impacts the employer-employee relationship.
In California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S,
the Board reviewed whether the exclusive representative engaged in unlawful retaliationby
suspending the membership
of
a member who engaged in numerous organizing and bargaining
efforts in a reform group within the exclusive representation. The Board noted that:
[A ]ny act undertaken to improve employees wages and working
conditions, including participation in rallies, distributing
literature, wearing buttons or t-shirts, could be seen as [impacting
the employer-employee relationship]. However, as the Board
made clear in [California State Employees Association (Hard,
et al.), supra, PERB Decision No. 1368-S], that is not the case.
(Id. at p. 23.)
In light
of
the Board's analysis in California State Employees Association (Hard, et al.), supra,
PERB Decision No. 1479-S, Mr. Hernandez's union-related activities described above also fail
to support his theory that there is an impact on his employment relationship with EDD.

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April 24, 2008
Page 6
Mr. Hernandez argues that he will have to use his annual leave time to conduct the above-
described activities, because "per [Article 2.6
of
the parties MOU] Mr. Hernandez is no longer
a member or steward
of
[SEIU]
....
" When his annual leave has been depleted, he argues,
EDD could discipline him
if
he takes absence without leave (AWOL) time to perform such
activities.
It appears that Mr. Hernandez is alleging that he is somehow cloaked with a duty to represent
members and participate in union functions for the benefit
of
the members within his DLC
membership because he retained his status as DLC President and member
of
SEIU's Board
of
Directors. 	The duty
of
fair representation is a duty the exclusive representative owes to
members
of
the bargaining unit. 	(California School Employees Association & its Chapter 8
(Thorpe, et al.) (2002) PERB Decision No. 1476.) That duty does not apply to Mr. Hernandez,
and his failure to perfonn union-related activities can only be attributable
as
a breach
of
the
representational duty to SEIU. Therefore, Mr. Hernandez's argument on this point fails to
demonstrate that SEIU's disciplinary action impacts his employment relationship with EDD.
For the above reasons, the charge fails to demonstrate a prima facie violation
of
the Dills Act
under a retaliation theory.
B. Right to Union Membership
Dills Act section 3515.5 provides in pertinent part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal
of
individuals from membership.
In California State Employees Association (Hard, et al.), supra, PERB Decision No. 1479-S,
the union suspended the charging parties during an election period, in which the charging
parties were running for union office. The Board found a violation
of
Dills Act section 3515.5
based on the union's violation
of
its own bylaws in its implementation
of
summary suspension
procedures against the charging parties. (Id. at p. 22.)5 In applying the holding ofthis case
here, the key question is not whether SEIU was right or wrong in disciplining Mr. Hernandez,
but whether SEIU acted reasonably in disciplining him.
5 It is also worth noting that in interpreting section 3515. 5, the Board has held that
employee organizations have latitude to make decisions about their internal management,
including discretion to strip an organizational representative
of
authority to act on behalf
of
the
organization, so long as such action is not unlawfully motivated. (California State Employees
Ass'n. O'Connel) (1989) PERB Decision No. 753-H; California School Employees
Association and its Shasta College Chapter #381 (Parisot) (1983) PERB Decision No. 280 at p.
10 [suspension of member for circulating decertification petition is reasonable]; California
State Employees Association (Hackett, et al.) (1993) PERB Decision No. 979-S[suspension of
members for distributing fliers and in other ways criticizing and opposing ratification
of
MO Us
for other bargaining units].)

SA-CO-371-S
April 24, 2008
Page 7
\
/
According to Mr. Hernandez, since only 44 members voted "yes" [to take action against him],
the vote did not satisfy the three-fourths majority requirement
of
Policy File section
9CSDO.06(k). Accepting as true Mr. Hernandez's statement that 44 members voted "yes" to
suspend his membership (Golden Plains Unified School District (2002) PERB Decision
No. 1489 [PERB must assume the truth
of
the essential facts alleged in deciding whether to
issue an unfair practice complaint]) Mr. Hernandez nevertheless alleges-without any
supporting facts-that Policy File section 9CSDO.06(k) should be interpreted to require a three-
fourths vote
of
the entire Council membership for a motion to suspend his membership. PERB
has held that where, as here, a charge contains a legal conclusion, but other factual allegations
contained in the charge do not support such a legal conclusion, the Board is not required to
accept the legal conclusion as true. (Charter Oak Unified School District (1991) PERB
Decision No. 873.) 	Based on the current record, in particular evidence from SEID that SEID's
Bylaws and Policy File are governed by the Roberts Rules
of
Order,6 which require only three-
fourths
of
the votes cast-not three-fourths
of
the entire Council membership-Mr. Hernandez
has not established that SEID acted other than reasonably when disciplining him. Accordingly,
the facts fails to demonstrate a prima facie violation that SEID has unlawfully interfered with
Mr. Hernandez's union membership rights under Dills Act section 3515.5.
.
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner
of
the charge form. 	The amended charge must be served on the Respondent's
representative and the original proof
of
service must be filed with PERB.
If
an amended
charge or withdrawal is not received in this matter from you before May
1,
2008, your charge
shall be dismissed.
If
you have any questions, please call me at the above telephone number.
6 RONR provides in relevant part:
By modifying the concepts of a majority vote and a two-thirds vote, other bases for
determining a voting result can be defined and are sometimes prescribed by rule. Two
elements enter into the definition of such bases for decision: (1) the proportion that must
concur - as a majority, two thirds, three fourths, etc.; and (2) the set of members to which the
proportion applies - which (a) when not stated is always the number of members present and
voting (assuming there are no illegal voters), but (b) can be specified by rule as the number of
members present, the total membership, or some other grouping. 	[Emphasis in original.] 	(Id.
at p. 389, line 20.) 	·

SA-CO-371-S
April 24, 2008
Page 8

Sincerely,

Yaron Partovi
Regional Attorney

YP