Service Employees International Union, Local 221 (Gutierrez) (PERB 2277M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CUAUHTEMOC WALLY GUTIERREZ,

Charging Party, Case No. LA-CO-77-M

Vv. PERB Decision No. 2277-M
SERVICE EMPLOYEES INTERNATIONAL June 29, 2012

UNION, LOCAL 221,

Respondent.

Appearances: Cuauhtemoc Wally Gutierrez, on his own behalf; Tosdal, Smith, Steiner & Wax
by Fern M. Steiner, Attorney, for Service Employees International Union, Local 221.

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Cuauhtemoc Wally Gutierrez (Gutierrez) to a
proposed decision (attached) of a PERB administrative law judge (ALJ). The complaint, and
underlying unfair practice charge, alleged that the Service Employees International Union,

Local 221 (SEIU) violated the Meyers-Milias-Brown Act (MMBA)' by retaliating against

ier]

Gutierrez and unreasonably suspending his union membership. The complaint alleged that thi
conduct constituted violations of sections 3503 and 3506 of the MMBA and thus unfair
practices under MMBA section 3509, subdivision (b), and PERB Regulation 32604,
subdivision (b).” In the proposed decision, the ALJ found no violation of the MMBA and

ordered that the complaint and unfair practice charge be dismissed.

‘MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

* PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

We have reviewed the entire record in this matter and given our full consideration to
the exceptions and the response thereto. Based on our review, we find the ALJ' s proposed
decision to be well-reasoned, adequately supported by the record and in accordance withthe
applicable law. Accordingly, we hereby adopt the proposed decision as the decision
of
the
Board itself subject to the following discussion
of
Gutierrez's exceptions.
BACKGROUND
By the following summary, we do not disturb the
ALJ's
findings
of
fact, but merely add
to them from the record evidence where necessary for purposes
of
addressing Gutierrez's
exceptions. At all relevant times, Gutierrez was an electronic security technician for the
County
of
San Diego (County) in a bargaining unit exclusively represented by SEID. He was a
SEID member, a SEID steward and a member
of
a SEIU labor-management committee.
In June 2008, Gutierrez was involved in organizing a campaign to encourage fellow
employees to drop their full union membership and become agency-shop fee payers. Gutierrez
and others involved in this effort were dissatisfied with the service they were receiving from
SEIU, and beiieved that their drop membership campaign would get SEIU's attention.
Gutierrez testified that he created the drop membership form, which was edited with help from
others and then circulated to the membership.3 As a result, approximately 97 SEID rnembers4
Gutierrez's testimony at the PERB formal hearing was as follows:
Q 	Did you create that document?
This one, I created, and I think it was, we 	to change
some wording, so I really don't remember who helped me
....
(PERB Transcript.)
4 Gutierrez testified at the PERB formal hearing that there were 221 employees, of
which "60 some odd were non-members" and then through the drop membership campaign 97
more became non-members, for a total of "approximately 150 to 160." (PERB Transcript.)
2

dropped their full union membership, and SEIU stopped receiving their full union dues.
Gutierrez, however, opted to maintain full union membership, and retain his position as
steward.
By letter
of
July 2, 2008, Kathy Griffee (Griffee), a registered nurse for the County and
a member
of
SEIU' s executive board in the position
of
RN Chair, filed internal union charges
against Gutierrez. 	Griffee requested that Gutierrez be disciplined on two separate charges:
(1) gross disloyalty unbecoming a member; and (2) advocating or engaging in dual unionism or
secession. 5
On July 15, 2008, SEIU President Sharon-Frances Moore (Moore) received four calls
from SEIU members stating that Gutierrez had been performing union duties on Countytime. 6
Moore called the County's Labor Relations Manager, Susan Brazeau (Brazeau), and informed
her
of
the reports she had received. 	Brazeau confirmed at the PERB formal hearingthat
she
had in the past complained to SEIU about employees engaging in union activities
"in places or
at locations where they shouldn't be." (PERB Transcript.) Moore requested that Brazeau
make sure that Gutierrez was taking the appropriate time, was where he should be and
was
being held accountable for his whereabouts. 	In response to Moore's call, Brazeau investigated
5 Griffee testified at the PERB formal hearing: "When individuals were asked why they
were putting drop notices in people's mailboxes at their workplace, they were told Wally said
to do it." She further testified in response to 	question why she filed charges: "Because I
was concerned for the Union strength and unity." 	(PERB Transcript.)
6 In response to a question as to what she would do
if
the reports about Gutierrez were
verified, Moore testified at the PERB formal hearing: "Try to figure out how we couldn't get a
charge filed against us if he was actually doing union work on County time." She further
testified: "It has to be sanctioned, it has to be within a specific time, we have to makesure
that, depending on the facility, we get permission to enter the facility. It depends, based on the
contract." (PERB Transcript.)
3

the matter. 	Gutierrez testified at the PERB formal hearing that Brazeau called him directly7
and that Brazeau's call scared him. The next morning, on July 16, 2008, Gutierrez appeared at
Moore's office before work with proof that he had been on jury duty on July 15, 2008. The
matter was immediately dropped.
Gutierrez's union disciplinary hearing occurred on August 27, 2008.8 At the hearing,
Gutierrez admitted that he encouraged other union members to drop their membership. He
testified as follows:
We changed our membership from full members to agency fee.
And did we do it to put pressure on the union? Absolutely.
	If
you look on the website, that's clear what we said we were going
to do. Now,
if
I'm
going to be thrown out for that, then I need to
be thrown out for that, because that's what we did.
On September
5,
2008, the trial body sustained the charge
of
disloyalty, dismissed the
charge
of
dual unionism and imposed a two-year suspension. Gutierrez appealed the decision
to the International. The suspension was held in abeyance during the pendency
of
the appeal.
By letter
of
January 28, 2009, the International executive board adopted the International
Appeals Committee's recommendation that the appeal be denied. The report
of
the Appeals
Brazeau' s testimony at the PERB formal hearing was as follows:
Q [by Gutierrez] Did you investigate the allegations?
A 	Yes, I did. I made a phone call. I called the department,
as I recall, and my memory is shaky here, but it was either the
group 	director -- I probably mentioned it to him so that
could follow up to make sure that you were at your job where you
were supposed to be.
(PERB Transcript.) Brazeau's testimony does not suggest that she called Gutierrez. Given the
vagueness of 	testimony and Gutierrez's testimony to the contrary, however, 	s
factual finding that Brazeau called Gutierrez need not be disturbed. It is not material to the
resolution of the issue raised on appeal whether Moore's call to Brazeau constitutes an adverse
action. 	Gutierrez also testified that Brazeau wanted him followed. 	Gutierrez's assertion finds
no support in Brazeau's testimony, as previously determined by the ALJ.
8 As the ALJ noted, the appointment of a trial body is ostensibly required by the bylaws
unless the charge is untimely or unspecific.
4

Committee to the International executive board re-stated the relevant portions of the
disciplinary hearing transcript including Gutierrez's efforts to encourage members to drop their
membership and his efforts to petition for an agency fee election. 9 The report stated:
He also testified that, in an effort to put pressure on the Local 221
President to meet with members of his bargaining unit, he
gathered signatures among bargaining unit members to file a
petition with the Public Employment Relations Board ("PERB")
to rescind the agency shop of his bargaining unit. He said that he
had the legal right to encourage members to switch their
memberships, and to attempt to rescind the agency shop of his
bargaining unit, and that he should not be discriminated against
for engaging in those activities. He stated that he remained a
loyal and active member of the union, and that he never
advocated secession from or decertification of the union.
In recommending that the suspension be upheld, the report explained:
Brother Gutierrez admitted that he was a leader of the effort to
convince members to change their memberships, which injured
the local financially and weakened it at a critical time - while it
was in the process of negotiating a successor memorandum of
understanding with San Diego County. Local 221 denied that
Brother Gutierrez was singled out for discriminatory treatment; it
stated that the charges were filed against him, and not other
members who were involved in similar activity, because he is a
Steward who misused his position to harm the Locai, which
undermined its ability to present a strong united front to the
county.
9 On July 24, 2008, Gutierrez filed a petition for an election to rescind SEIU's agency
shop provision with PERB, after having obtained the requisite proof of support. He believed
that employees would benefit from greater choice. On October 27, 2008, 	conducted
election for agency fee rescission. A majority of the members voted to rescind the agency fee
provision. On November 7, 2008, PERB certified the election results. The agency fee
rescission petition was filed with PERB after Griffee filed her charges against Gutierrez.
Therefore, the petition was outside the scope of the disciplinary proceedings. At the
disciplinary hearing, however, Gutierrez brought up the subject of the agency 	resc1ss1on
petition. At the PERB formal hearing, Gutierrez called seven witnesses, apart from himself,
four of whom were supporters. There was some confusion in their testimony about there being
a distinction between the campaign to drop membership and the campaign to petition for an
agency fee rescission election. Griffee testified at the PERB formal hearing that some
members who had dropped their membership in response to the drop membership campaign
were "taken aback" to learn at the union hall that they were not members and could no longer
access member benefits.• (PERB Transcript.)
5

In late 2008, a union election was held
to
elect a bargaining team to begin the
bargaining process with the County. In 2009, negotiations for a successor agreement
commenced.
THE PROPOSED DECISION OF THE ALJ
The ALJ identified the two issues to be determined at the formal hearing as whether
SEIU retaliated against Gutierrez and whether SEIU unreasonably suspended Gutierrez's
membership. Regarding the former, the ALJ determined that while Gutierrez engaged in
protected activity, which SEIU had knowledge of, Moore's call to Brazeau did not constitute
an "adverse action." Regarding the latter, the ALJ determined that Gutierrez's suspension was
reasonable.
GUTIERREZ'S EXCEPTIONS
Gutierrez filed three exceptions. First, Gutierrez asserts that the ALJ erred in
concluding as a matter
of
law that Moore's call to Brazeau did not constitute adverse action.
Second, Gutierrez asserts that the ALJ erred in concluding as a matter
of
law that his
suspension was reasonabie. 	Third, Gutierrez asserts that the ALJ's preparation
of
a proposed
decision without the benefit
of
a transcript "makes excepting to the ALJ' s findings
of
fact
difficult."
SEIU'S RESPONSE
SEIU argues that Gutierrez's exceptions have no 	Regarding the adverse action
issue, SEIU asserts that the ALJ' s conclusion is consistent with Board precedent. Regarding
the suspension issue, SEIU asserts that Gutierrez misstates the Board precedent. 	Regarding the
transcript issue, SEIU asserts that Gutierrez could have requested a transcript for the
preparation of his exceptions, but did not do so.
6

DISCUSSION
Adverse Action
The ALJ concluded that Gutierrez was engaged in protected activity and that SEIU had
knowledge of this activity. 	Thus, Gutierrez established the first two elements of the retaliation
test under Novato Unified School District (1982) PERB Decision No. 210 (Novato). 	The ALJ
then concluded, however, that Moore's call to Brazeau did not rise to the level of an adverse
action, the third element of Gutierrez's burden under Novato. As a result, the ALJ did not
reach the fourth and final element of a retaliation case, nexus or unlawful motive.
As Gutierrez acknowledges, the adverse action standard is whether a reasonable person
under the same circumstances would consider the action to have an adverse impact on the
employee's employment. (Palo Verde Unified School District (1988) PERB Decision
No. 689.) Prior Board precedent supports the view that the adverse action element of the
retaliation test is not met in this case. For example, in San Francisco Unified School District
(2009) PERB Decision No. 2057, the Board found that an employer's disparaging remarks
about an employee did not constitute adverse action. In State of California (Department of
Health Services) (1999) PERB Decision No. 1357-S, the Board found that an employer
advising an employee that the employer would be pursuing an adverse action against that
employee did not constitute an adverse action. The Board held: "Although [charging party]
may have been apprehensive about a possible future adverse action, his subjective reactions do
not establish the required adverse action."
Here, the matter of 	was conducting union business on County
was raised, investigated and resolved within two working days. 	matter was then dropped,
with no consequences to Gutierrez. Gutierrez testified he was scared by the call, but his
7

subjective reaction does not establish the required adverse action. In addition, as the ALJ
appropriately determined, there is no support in the record for Gutierrez's claim that Brazeau
wanted him followed. 	Accordingly, we concur in the ALJ's conclusion that a reasonable
person would not consider Moore's call to Brazeau to have had an adverse impact on
Gutierrez's employment.
Gutierrez relies on two Board decisions to support his position that he suffered an
adverse action. In California State Employees Association (Hackett, et al.) (1995) PERB
Decision No. 1126-S (Hackett), the employee organization argued that charging parties
suffered no adverse action as a result
of
being named in a civil lawsuit and being subject to
other charges. Charging parties responded they were harmed not just by the emotional stress
but by "loss
of
reputation, hours
of
work preparing a defense, los [
t]
vacation time and costs for
legal counsel." The employee organization excepted to the hearing officer's conclusions that
the charging parties suffered adverse action and that the employee organization acted with
unlawful motive. The Board upheld the conclusions
of
the hearing officer. Gutierrez relies in
main on the foilowing passage in Hackett:
As the ALJ stated, it is well established that when a party shows a
clear intent to take a disputed action against another, the harm
occurs at that time and not when the wrongful act is completed.
The problem, however, is that the Board merged its discussion
of
adverse action with its
discussion
of
unlawful motive under one heading entitled "CSEA's Adverse Action
Exception."
of
unlawful 	or nexus because
the evidence insufficient to establish an adverse action. As to the adverse action element, the
Board in Hackett rejected the employee organization's contention that "no harm was done to
8

Charging Parties." By contrast to the facts in Hackett, the facts here do not rise to the level
of
adversity sufficient to constitute adverse action under a reasonable person standard.
Gutierrez also relies on California Union
of
Safety Employees (Coelho) (1994) PERB
Decision No. 1032-S (Coelho). 	In Coelho, however, the employee organization filed a written
citizen's complaint against the charging party with his employer, signed by the employee
organization's chief legal counsel. The complaint stated:
"I am writing to file an official personnel complaint on the
conduct
of
one
of
your wardens, Mr. Richard Coehlo [sic]. I
realize that this is an unusual step for a labor union to take but I
feel that I have no other choice as I am concerned for the safety
of
other staff members from CAUSE who are involved in matters
also involving Mr. Coehlo [sic]."
The complaint alleged that the charging party lacked emotional control and was hostile toward
the employee organization; and also expressed concern for the safety
of
employee organization
staff members. The employer undertook an investigation that lasted two months. It involved
formal interviews, including that
of
the bailiff
of
the justice court, and concluded in a lengthy
written report.
In upholding the conclusion
of
the hearing officer that the charging party suffered an
adverse action, the Board applied the same reasonable person standard as applied by the ALJ in
this case. The Board in Coelho determined that based on the facts "in this case," the filing
of
the citizen's personnel complaint constituted an adverse action. As the Board emphasized
its use
of
that phrase, such determinations are to be made on a case-by-case basis based on the
facts presented. As stated above, we agree with the ALJ that the facts here do not rise to the
level
of
an adverse action sufficient to satisfy Gutierrez's burden.
Suspension
The ALJ concluded that it was not unreasonable for SEIU to suspend Gutierrez's
membership for encouraging others to drop theirs. In reaching this conclusion, the ALJ relied
9

on the Board's decision in California School Employees Association and its Shasta College
Chapter #381 (Parisot) (1983) PERB Decision No. 280 (Parisot), which states in pertinent
part:
A member has an inherent obligation to his organization to be
loyal, and for him to engage in conduct, such as a decertification
drive, which attempts to thwart the fundamental objectives of that
organization is a breach of his duty.
Based on this rationale, the Board in Parisot found that it was reasonable for an employee
organization to suspend a member for his decertification activities. Here, the ALJ concluded
that although Gutierrez was not engaged in a decertification campaign, he engaged in conduct
that nonetheless attempted to thwart the fundamental objectives of the employee organization
in breach of Gutierrez's duty of loyalty.
Gutierrez argues that Hackett "affirmed the standard" set forth in Parisot that "dissident
union members activities only become unprotected when undertaken in a decertification effort
that is life threatening to the union." (Gutierrez's appeal, p. 4; emphasis in the original.)
Gutierrez then asserts that the ALJ departed from this precedent in finding that SEIU acted
reasonably in suspending Gutierrez's membership. Gutierrez's argument is misplaced for the
following reasons.
Gutierrez misstates Board precedent. The facts before the Board in Parisot involved a
decertification campaign. 	The Board held that by engaging in such a campaign, thedissident
members were attempting to thwart the fundamental objectives of the employee organization.
The Board held that therefore 	employee organization's suspension of the dissidents'
membership was reasonable. 	Contrary to 	s assertion, the Board did not hold 	the
only way an employee organization can establish that it has a right to take defensive action

against a member engaged in dissident activities is by proving that the member was engaged in
a decertification effort. 10
In Hackett, the Board drew a line between "life-threatening" activities for which a
member may reasonably be suspended and other dissident activities that "merely challenge an
incumbent union's leadership without threatening the existence of the union itself." In
Hackett, the dissident members formed a dissident caucus, campaigned to reform the union
election procedures and distributed literature criticizing the incumbent officers.
Notwithstanding their dissident posture, they were advocating for active union membership.
The Board held that these activities posed a threat to the leadership of the employee
organization, but not to the employee organization itself. The Board found that therefore the
employee organization did not act reasonably in suspending the dissidents' membership.
We agree with the ALJ that the facts here are more akin to the facts in Parisot than to
the facts in Hackett. 	One of the fundamental objectives of an employee organization is to
negotiate a labor agreement with the employer in its capacity as the exclusive representative of
the bargaining unit. An employee organization needs the backing and support of its members
in order to demonstrate strength at the bargaining table. More broadly, the survival of an
employee organization ultimately depends, not solely on agency fees it receives for
representation purposes, but on the loyalty and active participation of its members. 	An
employee organization's strength lies in the value its membership offers; and, its strength
matters not for the cause of solidifying the leadership's base but, rather, for the cause of
advancing the interests of the rank and file in the workplace in an effective and strategic way.
10 See also, NLRB v. Allis Chalmers (1967) 388 U.S. 175, 180-181 (Allis-Chalmers), in
which the United States Supreme Court held that a union's right to protect itself against the
erosion of its status as the exclusive representative is an integral component of national labor
policy. It is appropriate to take guidance from cases interpreting the National Labor Relations
Act. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
11

Under the Parisot standard, Gutierrez was engaged in activities that attempted
to
"thwart the fundamental objectives"
of
SEIU. By encouraging members to drop their
membership, SEID was hurt financially and deprived
of
the support
of
its members at a critical
time, the initiation
of
bargaining. 	These types
of
harm may not pose an imminent threat
to
the
existence
of
SEIU as the exclusive representative
of
the bargaining unit, as is true
of
a
successful decertification petition. The life-threatening standard, however, does not have a
temporal component. A loss
of
membership is without a doubt a threat to the ultimate survival
and effectiveness
of
an employee organization, even
if
the impact is not as decisive as
the
immediate removal
of
the employee organization as the exclusive representative. 	While
employees in a bargaining unit are well within their rights to refrain from joining or
participating in an employee organization, an employee organization is also within its rights to
take defensive action through disciplinary proceedings against members who actively
work
to
harm the employee organization's fiscal and other interests.
In contrast to Hackett, Gutierrez did not encourage members to be actively involved in
the democratic process
of
the union. 	The dissidents in Hackett were loyal to the union, despite
their lack
of
loyalty to the union's leadership. Whatever loyalty Gutierrez may have owed
SEID and its leadership in his role as steward, he at least owed SEID a duty
of
loyalty as a
member.
11
We agree with the ALJ that Gutierrez breached that duty. Gutierrez engaged in the
type
of
conduct found by the Board in Parisot to thwart the fundamental objectives
of
SEIU.
Under Hackett, Gutierrez's conduct did not merely challenge the union leadership but was a
threat to SEIU itself.
1 While unnecessary to the conclusions reached herein, it is noted that not only did
Gutierrez owe SEIU a duty of loyalty as a member, but he also owed SEID a duty
of
loyalty as
a fid~ci~ry by vi::,tue o~ his leadershiplo~ition as,a
~te_:V!r~
..
~~~e,
~-~,-_,
-S:e}:i':~
v.
!nte,:national
Brotherhoodof.1:!,/ectrzcal Workers (9" Cu. 1978J
)8/
1:'.2ct
U/9, Ui56-Ulfi
Luncterthe
National Labor Relations Act, union officials including shop stewards have fiduciary
obligations to unions to protect their fiscal interests as well as to protect other interests that do
not have pecuniary ramifications].)
12

Last, while encouraging members to drop their membership, Gutierrez kept his. 	One
distinction between an agency-shop fee payer and a full member is that a full member has the
obligation to abide by union rules and discipline whereas agency-shop fee payers are under no
such obligation. (Communication Workers v. Beck (1988) 487 U.S. 735.) Had Gutierrez taken
the same action he was advocating that others take, Gutierrez could have engaged in the drop
membership campaign free of disciplinary consequences. Gutierrez chose to retain his
membership while engaging in activities that weakened SEIU as an employee organization and
exclusive representative. SEIU acted reasonably in suspending Gutierrez's membership under
the distinctions in Board precedent set forth above.
The dissent correctly identifies the self-preservation standard from Parisot relied on in
Hackett as requiring an action that "threatens the very existence of the organization and is of
sufficient seriousness to justify a self-protective response." Immediately following that text
are citations to two decisions of the National Labor Relations Board (NLRB), a United States
Supreme Court opinion and an opinion of the California Court of Appeal. The two NLRB
decisions involved decertification petitions, but the other two cases did not.
In the California Court of Appeal decision, Davis et al. v. International Alliance of
Theatrical Stage Employees and Moving Picture Machine Operators of the United States and
Canada et al. (1943) 60,Cal.App.2d 713 (Davis), the union had expelled members following a
hearing on charges that they had joined and were promoting a rival organization opposed to the
best interests of the union. The court found that their expulsion was consistent with the union's
constitution and bylaws, concluding that "the 	adopted 	officers
executive board of the Alliance, and approved by the trial court, that [the international union's
representative] had the right [to impose expulsion], is a reasonable one, and we decline to
substitute a different interpretation." (Davis, supra, 60 Cal.App.2d 713, 721.) 	As the court
13

stated, "an organization has the natural right of self preservation, and may with propriety expel
members who show their disloyalty by joining a rival organization." (Id. at p. 715,)
In the United States Supreme Court decision, Allis-Chalmers, supra, 388 U.S. 175, the
union had imposed discipline in the form of fines on union members who had crossed picket
lines to work during an authorized strike. The Supreme Court affirmed the NLRB' s decision
that the union did not violate the National Labor Relations Act. The Supreme Court majority
opinion cited to and quoted from a Yale law review article as follows:
A commentator has noted that 'the ballot in a free election is the
individual union member's weapon for inducing performance in
accordance with his desire.'
(Allis-Chalmers, supra, 388 U.S. 175, 191, fn. 27, quoting from Wellington, Union Democracy
and Fair Representation: Federal Responsibility in a Federal System (1958) 67 Yale L.J. 1327,
1329.)
Based on the above, the Board in Parisot could not have intended to limit application of
the self-preservation doctrine to circumstances in which a member has filed a petition for
decertification, as the dissent appears to suggest. The dissent reiies on the foHowing statement
in Hackett "They have solicited supporters for their campaign to change CSEA's election
procedures and have encouraged sympathizers to join or remain members of CSEA to work for
change within." Gutierrez, however, did just the opposite. He encouraged sympathizers, not to
join or remain members of the union, but to drop out. The conduct of the charging parties in
Hackett was consistent with the principle stated in Allis-Chalmers that "the ballot in a free
election is the individual union member's weapon" for bringing about a desired change in a
protected manner. We doubt that the charging parties in Hackett would approve of the conduct
engaged in by Gutierrez.
As mentioned in the dissent, Hackett states that "the level of disloyalty required to
remove protection from dissent must be such as to threaten the life of an employee
14

organization." The dissent argues that Gutierrez's drop membership campaign does not
meet the Hackett "life-threatening" standard, without identifying what it is that gives a
union
its "life." An exclusive representative is more than a fee-based, service-provider. 	Without
members, there would be no shop stewards or representation and participation on labor
management committees. Nor would there be representatives in the workplace to assist
co-workers with grievances, monitor compliance with collective bargaining agreements,
or
attend investigatory interviews. The ability
of
a union to represent the rank and file, to speak
for them effectively with one voice and to mobilize around important union initiatives is a
product
of
organizational strength, more than it is purely an economic calculus. A healthy and
vital employee organization, or any organization for that matter, builds its strength through,
and relies for its ultimate survival and success on, an engaged, active and participative
membership. A member choosing to retain membership while encouraging others to remove
themselves from the "life"
of
the union may reasonably be held to account for the
organizational injury he or she so inflicts.
We do not take issue with the testimony
of
Shawn Thompson, relied on by the dissent,
which supports the conclusion that Gutierrez and his sympathizers were frustrated with the
leadership
of
the union. As we already had acknowledged in the Background portion
of
this
decision, the dissident members in this case were dissatisfied with the level
of
services they
were rece1vmg 	the union and believed that a drop membership campaign would get the
union's attention and that members would benefit from greater choices, i.e., the ability to
choose not to be a 	or pay dues. While we 	no reason to dispute 	assertions,
the issue here turns not on their level
of
frustration, but on Gutierrez's response thereto.
Contrary to the inference in the dissent that, by this decision, we are adopting
position of the dissent in Hackett, we are compelled to reiterate that our opinion intends no
such result. We agree with the majority in Hackett that because the charging parties' conduct
15

was a challenge to the leadership, and not to the union itself, the conduct of those members
was protected against union discipline. We disagree, not with the majority in Hackett, but with
the dissent in this case that Gutierrez's conduct should be accorded the same protected status as
the conduct of the charging parties in Hackett. The testimony of Gutierrez relied on in the
dissent demonstrates the contrast between the two cases. Gutierrez testified, "We're not
against SEIU," as though SEIU is anything greater than the sum total of members like
Gutierrez, and the collective power and influence they can bring to bear to promote and protect
their interests in the workplace.
Unlike Gutierrez, the dissident members in Hackett did not view their union as
something separate and apart from the value they brought to it as members. They recruited
members to join the union and actively participated in the democratic processes of the union,
advocating for "change within." Their stated objective was "to strengthen CSEA/SEIU Local
1000 from within by building a unified movement of rank and file state employees."
We also disagree with the dissent's view that Gutierrez's own proclamation of loyalty
to the union is relevant to the issue whether SEIU was entitled to a self-protective response.
We find disingenuous Gutierrez's proclamation ofloyalty to the union in the face of his active
campaign to convince members to quit the union. It is akin to renouncing one's citizenship as a
way of expressing dissatisfaction with governmental leaders and mistaking that for loyalty.
Finally, in our view, the dissent's discussion of the duties owed to agency fee payers
who choose not to become union members misses the point. 12 We find irrelevant the fact that
an agency shop agreement may be rescinded by a majority vote of all the employees in the
bargaining unit. A majority vote can also result in decertification. That a majority can assert
·~ We decline to comment on the recent United States Supreme Court decision in Knox
v. Service Employees International Union Local 1000 (June 21, 2012) 2012 U.S. LEXIS 4663
relied on by the dissent until such time as the issues decided therein are presented in a matter
before the Board on appeal.
16

its power to accomplish these results does not immunize the conduct of members who
campaign for such results from imposition of union discipline.
In sum, we agree with the ALJ that Gutierrez's conduct, in advocating that members
quit the union, threatened the existence of the union and was of sufficient seriousness to justify
a self-protective response by the union.
Transcript
At the outset of the proposed decision, the ALJ stated:
At the conclusion of the hearing, the parties made oral arguments
in lieu of written briefs. I told the parties that the case would be
submitted for decision when I received a transcript of the hearing,
but I have decided that a transcript is not necessary at this stage
of the proceedings, and I deem the case to have been submitted
for decision as of the day of hearing.
Gutierrez asserts that the ALJ's action in preparing the proposed decision without a transcript
made it difficult to except to the ALJ' s findings of fact.
By letter of June 26, 2009, which accompanied the proposed decision, the Chief ALJ
provided the parties with the following information about their appeal rights:
The proposed decision was issued without the preparation of a
transcript of the formal hearing. If you want the transcript of the
formal hearing to use in filing a statement of exceptions, then you
may file a request for an extension of time with the Board itself
within the time set forth above. The request for extension of time
to file exceptions should state that you desire to have the
transcript for reference in your exceptions.
Gutierrez requested an extension of time to file exceptions, but did not state in his request a
desire to have the transcript for reference in his exceptions. Gutierrez had the opportunity to
request a transcript, but did not. Therefore, we cannot credit Gutierrez's exception regarding
the transcript.
17

ORDER
Based on the foregoing, the complaint and underlying unfair practice charge in Case
No. LA-C0-77-M are hereby DISMISSED.
Member Huguenin joined in this Decision.
Member Dowdin Calvillo's concurrence and dissent begins on page 19.
18

DOWDIN CALVILLO, Member, concurring in part and dissenting.
I concur with the majority that the evidence did not establish the element
of
adverse
action necessary to establish retaliation. I further concur with the majority that the exception
concerning the preparation
of
the transcript is without merit. For the reasons that follow,
however, I disagree with the majority's conclusion that Cuauhtemoc Wally Gutierrez (Gutierrez)
engaged in conduct that was "life threatening" to Service Employees International Union,
Local 221 (SEIU) such that it was reasonable for SEIU to suspend his membership.
Although Public Employment Relations Board (PERB or Board) typically does not
interfere with the internal affairs between an employee organization and its members, PERB has
long recognized that Meyers-Milias-Brown Act (MMBA) section 3503 confers upon the Board a
separate and distinct grant
of
jurisdiction to determine whether an employee organization has
exceeded its authority to dismiss or suspend its members. (California State Employees
Association (Hard, Hackett, Landingham, et al.) (2002) PERB Decision No. 1479-S
(Landingham); California School Employees Association and its Shasta College Chapter #381
(Parisot) (1983) PERB Decision No. 280 (Parisot).) The Board's authority to determine the
reasonableness
of
a membership provision must include not just the reasonableness
of
the
provision itself, but also the reasonableness
of
the provision as it was applied in the case pending
before the Board. (Landingham.)
As noted by the majority, the Board draws a line between "life threatening" activities for
which a member may reasonably be suspended and other dissident activities that merely
of
the
itself." (California State Employees Association (Hackett, et al.) (1995) PERB Decision
No. 1126-S (Hackett).) Thus, in Parisot, the Board found that a union could reasonabiy suspend
19

a member for engaging in decertification activities, finding that decertification "threatens the
very existence
of
the organization and is
of
sufficient seriousness to justify a self-protective
response." (Parisot.)
"In
essence, the Board has granted an exception to the rule that an
employee organization may not retaliate against an employee for engaging in protected conduct.
Where the very life
of
the organization is in jeopardy, the union may retaliate against the
employee as an act
of
self-preservation." (Hackett, adopting administrative law judge's (ALJ)
proposed dee. at p. 21.)
In Hackett, however, the Board held that various activities by its members aimed at
challenging the leadership
of
the California State Employees Association (CSEA) during
contract negotiations were protected and not life-threatening to the union. 	The members
organized and actively participated in a dissident group in an effort to revise CSEA's election
procedures, wrote and openly distributed a publication critical
of
CSEA's organizational
structure and representational practices, and supported the election to CSEA offices
of
candidates sympathetic to their views. They also "solicited supporters for their campaignto
change CSEA's election procedures and have encouraged sympathizers to join or remain
members
of
CSEA to work for change within." (Id., ALJ proposed dee. at p. 10.)
The Board 	Hackett adopted the ALJ' s proposed decision finding the employees'
conduct protected in that case, under the standard set forth in Parisot. Emphasizing that the line
between permissible and impermissible conduct established in Parisot involves a broader choice
than the line between dissent and disloyalty, the Board held: "Thus, the level
of
disloyalty
to remove protection 	dissent much be such as to threaten the life
of
an employee
organization. This is more than internal union politics." Applying this standard, the Board
upheld the ALJ's detern1ination that, while the employees' conduct in attempting to take over
20

CSEA, but not destroy it, may have been threatening to some in the organization, it was not
threatening to the organization itself, and that any disloyalty was not to CSEA but to those in
charge
of
the union. (Hackett.)
The Board majority further rejected the argument by the dissent that the rule in Parisot
should be expanded
to
include conduct that had a "serious destabilizing effect" on the union.
According to the Board:
The broad and subjective standard the dissent attributes to Parisot
and other PERB decisions would severely limit a union member's
right to differ, which is the sine qua non
of
democratic
participation. The interpretation suggested by the dissent would
confer upon a union's leadership extraordinary power to quell
challenges and disagreeable opinions. Such power would
effectively transform union leadership into a dictatorial or
authoritarian regime.
(Hackett at pp. 6-7.)
Based on the foregoing standard, I would find that Gutierrez's campaign to change the
membership status
of
his fellow bargaining unit members did not threaten the existence
of
SEIU.
Gutierrez testified credibly and repeatedly that he was not against SEIU, but dissatisfied with the
manner in which the leadership was representing the bargaining unit. According to Gutierrez,
the quality
of
SEIU's member services decreased following the implementation
of
an agency
shop for his bargaining unit, and he engaged in the campaign to help improve the quality
of
service provided by SEIU. 	example,
We're not against SEIU. What we're against is them not paying,
not representing the members the way we believe they should be
representing us.
We still want to be with SEIU. We just want them to clean up
their act.
21

[Question by SEIU counsel] But it's your feeling that once Mary
Grillo left, that the leadership
of
the Union went downhill?
A 	Absolutely.
In a letter to SEIU President Sharon-Frances Moore dated May 22, 2008, Gutierrez and
other members
of
the labor management team requested the removal
of
one member from the
labor management team, stating that they believed she did not represent their view and concerns,
and that the member was a detriment to continuing a good working relationship with
management.
Bargaining unit and labor management team member Shawn Thompson also testified that
the goal
of
the group led by Gutierrez was to improve service by SEIU:
Basically, what we were trying to do, we were pretty frustrated at
the level
of
representation we were getting from the Union, and we
had spoke [sic] to them on several occasions for, probably it went
over a year or so or better, trying to get some kind of, you know,
proper representation, especially in the labor management, or even
getting you know, someone from the Union to show up at the
worksites. And we were just frustrated, and we thought, well, you
know, what can we do to get their attention. And we thought that
at that time the best action for us was to drop down to, you know,
our full members to drop down to agency fee members. That
seemed to get some attention. But, I mean, some
of
the attention
that we were trying to gamer.
The record makes it clear that, notwithstanding his dissatisfaction with the level
of
service provided by SEIU and its leadership, Gutierrez continued to support SEIU in all its
activities and actively opposed a decertification effort. Thus, like the charging parties in
Hackett, 	engaged 	dissident conduct that challenged the 	leadership
but did not threaten the existence of the union itself. 	As in Hackett, by opposing decertification,
Gutierrez continued to remain, and to encourage employees to remain, loyal to SEIU itself but to
22

express their dissatisfaction with its leadership by becoming agency fee payers. I respectfully
disagree with the majority that the fact that, in Hackett, the dissident employees remained union
members while in this case Gutierrez encouraged employees to become agency fee payers, is a
significant distinction. In both cases, the employees sought to challenge not the organization
itself but its leadership. Therefore, I find this case falls well within the scope of conduct found
protected under Hackett.
In reaching this conclusion, I do not mean to suggest that the a decertification effort is the
only type of conduct that may qualify for the "self-preservation" protection for union retaliation.
As noted by the majority, the courts have recognized other types of conduct as sufficiently
threatening to the life of an employee organization to permit the organization to take disciplinary
action. (See, e.g., Davis et al. v. International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada et al. (1943) 60 Cal.App.2d
713 [joining and promoting rival organization]; NLRB v. Allis-Chalmers (1967) 388 U.S. 175
[crossing picket line to work during a strike].) 	I simply find that the activity in this case -
encouraging bargaining members to exercise their right to become agency fee payers - did not
rise to the level of disloyalty that threatened the life of the employee organization so as to
remove it from the protection of dissident activity under the MMBA.
In reaching this conclusion, I also consider the nature of agency fee payer status. Agency
fees are a "form of compelled speech and association that imposes a 'significant impingement on
First Amendment rights."' (Knox v. Service Employees International Union Local 1000 (June 21,
2012) 2012 U.S. 	4663 (Knox), quoting Ellis v. Railway Clerks (1984) 466 U.S. 43
455.) As noted by the court in Knox, the First Amendment "does not permit a public-sector
union to adopt procedures that have the effect of requiring objecting nonmembers to lend the
23

union money to be used for political, ideological, and other purposes not germane to collective
bargaining." (Knox, slip op. at p. 2, citing Chicago Teachers Union v. Hudson (1986) 475 U.S.
292, 305.) Accordingly, the primary purpose of permitting unions to collect fees from
nonmembers is "to prevent nonmembers from free-riding on the union's efforts, sharing the
employment benefits obtained by the union's collective bargaining without sharing the costs
incurred." (Knox, slip op. at p. 10, citing Davenport v. Washington Ed. Assn. (2007) 551 U. S.
177,181.)
Agency fees are specifically designed to ensure that non-members pay their fair share of
a union's expenditures associated with its performance ofrepresentational duties, while ensuring
that they not be required to support activities that are beyond the association's representational
obligations. (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 587-588.)
Consequently, Gutierrez's campaign to change the membership status of his fellow bargaining
unit members did not, by definition, threaten the existence of the union, but instead enabled it to
continue to perform its representational duties. Thus, while his campaign activities may have
been disconcerting to SEIU, they did not jeopardize its very existence. (Hackett.)
In my view, the majority adopts an excessively expansive view of conduct deemed life
threatening to the union. Unions exist not for their own sake but to provide representation to the
entire bargaining unit, whether the individual members of the bargaining unit choose to become
members of the union or not. Union membership is not the same as exclusive representation.
Employees cannot be compelled to join a union and non-members can be required to pay only
those sums fairly attributable to the cost of representation of the bargaining unit, and not for the
support of ideological causes not germane to its duties as collective bargaining agent. (Abood v.
Detroit Bd. of Education (1977) 431 U.S. 209; Chicago Teachers Union v. Hudson (1986)
24

475 U.S. 292.) Moreover, as demonstrated in this case, an agency shop agreement may be
rescinded by a majority vote
of
all the employees in the bargaining unit. (MMBA, § 3502.S(d).)
Nothing in Gutierrez's conduct interfered with SEIU's ability
to
engage in
representational activities on behalf
of
the bargaining unit as its exclusive representative.
	Any
harm to SEIU' s fiscal or other interests was to its interest in collecting dues and fees for
activities outside the scope
of
its representational duties. I respectfully disagree with the
majority's argument that union membership is required for an employee organization to be
effective at the bargaining table or to advance the interests
of
the bargaining unit. I therefore
conclude that Gutierrez did not engage in conduct that was life-threatening to SEIU and that,
therefore, SEIU did not act reasonably in suspending his membership.
25

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD F
CUAUHTEMOC WALLY GUTIERREZ,
Charging Party,
V.
SEIU LOCAL 221,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-77-M
PROPOSED DECISION
(6/26/2009)
Appearances: Cuauhtemoc "Wally" Gutierrez on his own behalf; Fern M. Steiner, Attorney,
for SEIU Local 221.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges his union retaliated against him and unreasonably
suspended his membership, in violation of the Meyers-Milias-Brown Act (MMBA). 1 The
union denies any violation.
Cuauhtemoc "Wally" Gutierrez (Gutierrez) filed an unfair practice charge against SEIU
Local 221 (SEIU) on August 18, 2008; he filed amended charges on September 8, 2008,
September 19, 2008, and October 8, 2008. The General Counsel of the Public Employment
Relations Board (PERB or Board) issued a complaint against SEIU on December 8, 2008;
SEIU filed an answer on December 26, 2008.
held an informal settlement conference on January 26, 2009, but the case was not
settled, so PERB held a formal hearing on June 10, 2009. At the conclusion of the hearing, the
parties made oral arguments 	lieu of written briefs. I told the parties that the case would be
submitted for decision when I received a transcript of the hearing, but I have decided that a
1The MMBA is codified at Government Code section 3 500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

transcript is not necessary at this stage of the proceedings, and I deem the case to have been
submitted for decision as of the day of hearing.
FINDINGS OF FACT
Gutierrez is a public employee within the meaning of MMBA section 350l(d). 	SEIU is
an exclusive representative within the meaning of PERB Regulation 32016(b).2
Gutierrez is an employee of the County of San Diego (County). Until recently he was
an SEIU member, an SEIU steward, and a member of an SEIU labor management team.
Gutierrez and others have been dissatisfied with SEIU's representation of their unit. In June
2008, in an attempt to get more attention from SEIU, Gutierrez and others distributed a form to
fellow employees to change their SEIU membership "from Full Member to Agency Shop/Fair
Share Member." As a result, some 97 SEIU members dropped full membership, and SEIU
stopped receiving their dues. 	Gutierrez himself did not drop full membership.
Kathy Griffee (Griffee), an SEIU executive board member, became aware of these
activities, and on July 2, 2008, she filed charges against Gutierrez with the SEIU secretary,
stating in part:
Mr. Gutierrez has abused the Office of Steward to encourage
union members to drop full membership by presenting false and
misleading information. As of the date of this letter, Mr.
Gutierrez has not dropped his membership and has full rights as a
Union member even while he is encouraging fellow members to
drop. In conversations with [SEIU Controller] Mr. Marks, Mr.
Gutierrez denied trying to decertify the Union; however, his
actions demonstrate the opposite intent.
Griffee therefore charged Gutierrez with:
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.
2

(1) Gross disloyalty unbecoming a member and (2) Advocating or
engaging in dual unionism or secession. [3 l
Griffee testified that she did not discuss these charges with other members of the executive
board.
On July 15, 2008, SEIU President Sharon-Frances Moore (Moore) received four calls
from SEIU members stating that Gutierrez had been performing union duties on County time.
Moore called Susan Brazeau (Brazeau), the County's labor relations manager. Brazeau
testified that Moore was concerned that Gutierrez had been at various facilities to meet with
SEIU members. According to Brazeau, Moore wanted to make sure of three things: (1) that
Gutierrez was "taking appropriate time;" (2) that Gutierrez was "not at locations when he
shouldn't be;" and (3) that the County held Gutierrez "accountable for [his] whereabouts."
Brazeau was concerned about the possibility that Gutierrez had engaged in union
activity on County time, so she investigated, in part by calling Gutierrez himself. The next
morning Gutierrez appeared at Brazeau' s office with proof that he had been on jury duty on
July 15, 2008. Brazeau testified she called and left Moore a message; Moore testified she did
not remember such a message. In any case, Moore also found out that Gutierrez hadactually
been on jury duty, and the matter was dropped.
Meanwhile, Gutierrez and others were still dissatisfied with SEIU' s representation, and
to get more attention they circulated a petition for an election to rescind SEIU' s agency shop
provision, under PERB Regulation 61600. Upon obtaining the requisite employee signatures,
they filed the petition with PERB on July 24, 2008.
Griffee misquoted SEIU bylaws, which authorize charges for "[g]ross disloyalty or
conduct unbecoming a men1ber." (Ernphasis added.) Gutierrez seems to find the misquotation
significant; I do not.
3

Later, on August 13, 2008, the SEIU secretary informed Gutierrez
of
Griffee's charges
against him, that the executive board had appointed a trial body, and that a hearing was
scheduled for August 27, 2008. It appears from the SEIU bylaws that the executive board was
required to appoint a trial body to consider Griffee's charges so long as those charges were
specific and timely.
Meanwhile, PERB accepted the agency shop rescission petition and announced
that
an
election would be held.
A hearing on Griffee's charges was held as scheduled on August 27, 2008. As the
SEIU bylaws permit, neither Griffee nor Gutierrez were represented by attorneys. Both were
limited to four witnesses; in fact, each side called three.
At the beginning
of
the SEIU hearing, Griffee admitted that her charges against
Gutierrez were wrong in one respect: 	she had learned that he was not trying to decertify SEIU.
The evidence at the hearing was at best inconclusive with regard to another part
of
her charges:
that Gutierrez had presented "false and misleading information." The evidence was
conclusive, however, that Gutierrez had encouraged other union members to drop full
membership. Gutierrez admitted as much, stating in part:
We changed our membership from full members to agency fee.
And did we do it to put pressure on the union? Absolutely.
	If
you look on the website, that's clear what we said we were going
to do. Now, if I'm going to be thrown out for that, then I need to
be thrown out for that, because that's what we did.
On September 5, 2008, the trial body responded by sustaining the charge
of
"[g]ross disloyalty
unbecoming a member" while dismissing the charge
of"[
a]dvocating or engaging in dual
unionism or secession." As discipline, the trial body imposed a two-year suspension
of
Gutierrez's membership in SEIU, to be effective on September 8, 2008.
4

At the SEIU hearing, Gutierrez himself brought up the agency shop rescission petition,
but there is no evidence that the trial body considered the matter, which was outside the scope
of Griffee's charges. The petition did result in an election, and on November 7, 2008, PERB
certified that the agency shop provision was rescinded.
Meanwhile, sometime in September 2008, Gutierrez filed an appeal of the trial body's
decision with the SEIU International Executive Board. Also, on October 8, 2008, Gutierrez
filed his third and final amended unfair practice charge. The PERB complaint, which issued
on December 8, 2008, contains no allegations with a date later than September 8, 2008, when
the suspension of Gutierrez's SEIU membership was to be effective.4 Because neither the final
charge nor the complaint was amended, events after September 8, 2008, are outside the scope
of this case.
ISSUES
1. Did SEIU retaliate against Gutierrez?
2. Did SEIU unreasonably suspend Gutierrez's membership?
CONCLUSIONS OF LAW
Retaliation
The PERB complaint alleges in part:
3. 	In or about June 2008, Charging Party [Gutierrez]
exercised rights guaranteed by the Meyers-Milias-Brown Act by
gathering support for a petition to rescind the agency fee
provision (Rescission Petition) contained in the Memorandum of
Agreement in place between Respondent [SEIU] and Charging
Party's employer, the County of San Diego.
4. 	On or about July 15, 2008, Respondent, acting through its
representative Sharon[-Frances], contacted an agent for the
County of San Diego and informed the agent that Charging Party
4 In fact, Gutierrez's suspension was held in abeyance pending his (unsuccessful)
appeal.
5

had been soliciting support for the Rescission Petition and had
mistreated Respondent's staff during a meeting that day.
5.	
Respondent took the actions described in paragraph 4
because
of
the employee's activities described in paragraph 3,
and thus violated Government Code section 3506 and committed
an unfair practice under Government Code section 3 509(b) and
PERB Regulation 32604(b).
As indicated by the previous Statement
of
Facts, many
of
these specific allegations are untrue
or unproven. Gutierrez did not gather support for the agency shop rescission position in June
2008, and Moore did not so inform Brazeau on July 15, 2008. 5 Also, there is no evidence that
Moore said Gutierrez had mistreated staff.
Rather than dismiss these allegations, however, I shall deem them amended to conform
to the facts as shown by the evidence and as litigated by the parties. Those facts include (1)
Gutierrez's encouragement
of
other SEIU members to drop full membership in June 2008 and
(2) Moore's call to Brazeau about Gutierrez's whereabouts on July 15, 2008. The question is
whether those facts indicate that SEID retaliated against Gutierrez for protected activities.
The leading PERB case on union retaliation is California Union
of
Safety Employees
(Coelho) (1994) PERB Decision No. 1032-S (Coelho). That case arose under Government
Code section 3519.5
of
the Ralph
C.
Dills Act (Dills Act),6 which is parallel to MMBA section
3506. In Coelho, PERB stated in part:
Dills Act section 3519.S(b) prohibits discrimination or retaliation
by an employee organization against an employee for engaging in
conduct protected by the Dills Act. In Novato [Novato Unified
School District (1982) PERB Decision No. 210], the Board
described the test it applies in determining whether an employer
unlawfully discriminated or retaliated against an employee because
of the exercise of rights protected by the Educational Employment
5 It appears from the evidence that the rescission petition was circulated on or about
July 23, 2008.
6 The Dills Act is codified at Government Code section 3512 et seq.
6

Relations Act. In State of California (Department of
Developmental Services) (1982) PERB Decision No. 228-S, the
Board applied the test for resolving allegations of discrimination
and retaliation set out in Novato to charges filed under the Dills
Act. The Board has also held that the standard applied to cases
involving employer misconduct is appropriate in cases involving
employee organization misconduct. (State of California
(Department of Developmental Services) (1983) PERB Decision
No. 344-S.)
In order to establish a violation of section 3519.5(b) under Novato
the charging party bears the burden of showing that: 1) he engaged
in protected activity; 2) the respondent knew of the activity; 3) the
respondent took action adverse to his interest; and 4) there was an
unlawful motivation for the respondent's action. Once this is
established, the burden shifts to the respondent to demonstrate that
it would have taken the same action regardless of the protected
conduct.
The first question, therefore, is whether Gutierrez engaged in protected activity. I conclude
that he did.
MMBA section 3502 protects both the right to join and participate in a union and the
right to refuse to join or participate in a union.7 If encouraging union membership is protected,
as it surely is, then encouraging the termination of full union membership is also protected.
This is the protected activity in which Gutierrez engaged in June 2008 and about which SEIU
surely knew by July 15, 2008.
The next question is whether SEIU took adverse action against Gutierrez on July 15,
2008, when Moore called Brazeau. In Coelho, PERB stated in part:
7 MMBA section 3502 states 	full:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. 	Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
7

Coelho [the employee] must also demonstrate that the respondent
[union] took adverse action against him. The test which must be
satisfied is whether a reasonable person under the same
circumstances would consider the action to have an adverse impact
on the employee's employment. (Palo Verde Unified School
District (1988) PERB Decision No. 689; Newark Unified School
District (1991) PERB Decision No. 864.) In this case, CAUSE
[the union] filed a citizen's complaint against Coelho, which
CAUSE knew would prompt an investigation by his employer.
Such an action could cause a reasonable person to be concerned
about the potential adverse effect
of
the complaint and ensuing
investigation on his employment relationship. The fact that the
complaint and investigation did not result in action being taken
against Coelho by his employer does not eliminate the adverse
nature
of
CAUSE'S conduct. Accordingly, in this case, CAUSE'S
filing
of
the complaint constituted an action adverse to Coelho's
interests.
In Coelho, the union had filed a formal written "citizen's complaint" against the employee,
alleging the employee's "lack
of
emotional control" and "hostile attitude," and emphasizing a
concern for the safety
of
others. As the union knew it would, the complaint led to an internal
investigation by the employer, during which the union refused to represent the employee. 	The
investigation took three months and included formal interviews and a lengthy written report
before the employee was exonerated.
In contrast, in the present case all that happened to Gutierrez (or seemed likely to
happen) was that he got a phone call from Brazeau about his whereabouts on July 15, 2008.
Gutierrez knew he had been on jury duty, and he knew he could prove it. It is not clear that
Brazeau asked for proof, but Gutierrez provided it, and Brazeau dropped the matter, as did
Moore. I cannot conclude under Coelho that "a reasonable person under the same
circumstances [as Gutierrez] would consider the action to have an adverse impact on the
employee's employment."8
Gutierrez testified that SEIU wanted him "followed," but the direct testimony of
Brazeau and Moore (the only participants in the conversation in question) did not support
Gutierrez's speculative hearsay testimony on this point. Brazeau did say that Moore wanted
8

If Gutierrez alleged that Brazeau's phone call to him constituted adverse action by the
County, PERB would certainly dismiss the allegation. In Rio School District (2008) PERB
Decision No. 1986, an employer issued a letter to an employee asserting in part that she had
disclosed "confidential and privileged information" and requiring her to "sign a statement of
confidentiality in any future employee situations." PERB nonetheless found no adverse action,
because the letter did not actually mention disciplinary consequences. In County of San Diego
(2009) PERB Decision No. 2005-M, an employer sent a non-confidential letter to the union
president asserting that "members of the management feel threatened [by an employee's
behavior]" and suspending meetings that the employee normally attended. PERB nonetheless
found no adverse action against the employee, because adverse impact on his employment was
speculative. If the employer's derogatory letters in these two cases were not adverse, then
surely Brazeau's informal phone inquiry was not adverse.
If, as I conclude, Brazeau's phone call was not adverse, then I see no reason to
conclude that Moore's call, which led to Brazeau's call (and nothing else), was adverse. 	I
therefore conclude that Moore's call did not rise to the level of adverse action against Gutierrez
and thus cannot constitute unlawful retaliation against Gutierrez.
Suspension of Membership
PERB also alleges in part:
6. 	On or about July 24, 2008, Charging Party filed an agency
fee rescission petition (Case No. LA-OS-218-M) with
7. 	On or about July 24, 2008, Respondent brought charges
against Charging Party under Respondent's constitution and by
laws.
Gutierrez held "accountable for [his[ whereabouts," but there was no evidence that Gutierrez
was not norrnally accountable to the County for his whereabouts when on County time or in
County facilities, just like any other employee.
9

8.	
On or about August 27, 2008, Respondent held a hearing
regarding the charges described in Paragraph
7.
9.	
On or about September
8,
2008, Respondent suspended
Charging Party's membership with Respondent for two years.
10. 	By the acts and conduct described in paragraph
9,
Respondent interfered with employee rights guaranteed by the
Meyers-Milias-Brown Act in violation
of
Government Code
sections 3503 and 3506 and thus committed an unfair practice
under Government Code section 3509(b) and PERB Regulation
32604(b).
Although some
of
these allegations are admitted or proven, others are untrue or
unproven. It is admitted that Gutierrez filed a rescission petition on July 24, 2008, and that
SEIU held a hearing on August 27, 2008. It is untrue, however, that SEIU brought charges
against Gutierrez on July 24, 2008.
As the evidence showed, it was Griffee who filed charges against Gutierrez, and this
took place on July 2, 2008. Griffee testified that she did not discuss these charges with other
members
of
the executive board, and I have no reason to disbelieve her. What SEIU did do
was inform Gutierrez
of
Griffee' s charges, appoint a trial body, and schedule a hearing.
SEIU's secretary sent Gutierrez a letter to that effect on
,Li~ugust
13, 2008; there was no
evidence at hearing that SEIU took any action on July 24, 2008, as alleged in the complaint.
More importantly, there was no evidence that SEIU had any choice under its bylaws about
appointing a trial body, so long as Griffee's charges were specific and timely. 9
The implication
of
the allegations in the complaint seems to be that the trial board
imposed the two-year suspension on Gutierrez because
of
the rescission petition. The evidence
at hearing did not support this implication. The rescission petition was outside the scope of
Also, it is not technically true that SEIU suspended Gutierrez's membership on
September 8, 2008. 	The suspension that was to be effective on that date was held in abeyance
pending Gutierrez's (unsuccessful) appeal.

Griffee's charges, which were filed on July 2, 2008, before any apparent activity on the
rescission petition. Although Gutierrez himself brought up the rescission petition at the SEIU
hearing, there is no evidence that the trial body considered the issue.
Gutierrez's failure
of
proof on this issue does not end the matter, however, because the
PERB complaint cites MMBA section 3503, which states in full:
Recognized employee organizations shall have the right to
represent their members in their employment relations with public
agencies. Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal
of
individuals from membership.
Nothing in this section shall prohibit any employee from appearing
in his own behalf in his employment relations with the public
agency.
(Emphasis added.) PERB has long treated such language
as
giving PERB jurisdiction to
determine whether an employee organization has exceeded its authority to dismiss or suspend its
members. (California School Employees Association and its Shasta College Chapter #381
(Parisot) (1983) PERB Decision No. 280 (Parisot).
In his closing argument, Gutierrez argued in part that his suspension was unreasonable
because he was "singled out." It is true that other employees were also involved in encouraging
SEIU members to drop full membership. The fact is, however, that Griffee filed her charges
against Gutierrez alone. For the reasons already mentioned, I do not attribute Griffee's actions to
SEIU. I also see no reason why SEIU would have an obligation (or even a right) to expand
Griffee's charges to include other employees.
Gutierrez also argued that the SEIU hearing was unfair in that he was limited to four
witnesses, as was Griffee. In the context of this case, that limitation does not seem unfair or
unreasonable. In fact, each side called three witnesses, and it is not apparent what significant
additional testimony other witnesses could have offered. This is especially true given that
11

Gutierrez admitted the essential charge against him: that he encouraged other SEIU members to
drop full membership.
The significant question in this case
is
whether SEIU could reasonably suspend
Gutierrez's membership for encouraging others to drop theirs. In Parisot, PERB found it
reasonable for a union to suspend a member for decertification activities. (Parisot, supra, PERB
Decision No. 280.) 	PERB stated in part:
A member has an inherent obligation to his organization to be
loyal, and for him to engage in conduct, such as a decertification
drive, which attempts to thwart the fundamental objectives
of
that
organization is a breach
of
his duty.
PERB did not require the union to have a specific disciplinary policy covering a member's
participation in a decertification effort.
In California State Employees Association (Hackett, et al.) (1995) PERB Decision
No. 1126-S (Hackett), PERB drew a line between activities that are "life threatening" to a
union, for which a member may reasonably be suspended, and other dissident activities that
merely "challenge an incumbent union's leadership without threatening the existence
of
the
union itself," for which a member may not reasonably be suspended. From Parisot, it was
clear that decertification activities fell on the "life threatening" side
of
the line. (Parisot,
supra, PERB Decision No. 280.) In Hackett, various other dissident activities were found to
be on the other side
of
the line.
The question then is whether or not Gutierrez's activities in encouraging other SEIU
members to drop full membership fell on the "life threatening" side
of
the line. I conclude that
they did. The heart of a union is its membership, indeed, a union ultimately is its membership.
A loyal union member encourages others to join, not to leave. 	Even the dissidents in Hackett
still advocated active union membership by all workers covered by the union's contracts.
(Hackett, supra, PERB Decision No. 1126-S.)
12

A campaign against union membership can be at least as destructive as a decertification
campaign. A decertified union, although it loses its status, is still alive and may have a future.
A union without members is dead and without a future.
Whatever his intentions, Gutierrez's activities attacked SEIU at its heart: its
membership. In the terms used in Parisot, his conduct "attempt[ ed] to thwart the fundamental
objectives" of SEIU. 10 (Parisot, supra, PERB Decision No. 280.) In the terms used in
Hackett, his conduct was "life threatening" to SEIU. (Hackett, supra, PERB Decision No.
1126-S.) Gutierrez had a legal right under MMBA to do what he did, but he did not have the
right to insist that SEIU still consider him a loyal member in good standing. I conclude that
SEIU' s two-year suspension of Gutierrez's membership was a reasonable response to
Gutierrez's efforts to have others drop their membership.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CO-77-M,
Cuauhtemoc Wally Gutierrez v. SEIU Local 221, are hereby DISMISSED.
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
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. 	The Board's address is:
1 According to SEIU's bylaws, among SEIU's objects and purposes are "organizing
and uniting in this International Union all working men and women eligible for membership
herein."
13

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 PERB 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. 	(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).)
f/L~ci. 	~-·	~ =--
Thomas J. Alleq
Administrative Law Judge
14