State of California (Department of Corrections and Rehabilitation) * * * OVERRULED IN PART by by Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H (PERB 2285S)

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** * OVERRULED IN PART by Trustees of the California State University (Northridge) (2019) PERB
Decision No. 2687-H * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPOYEES INTERNATIONAL
UNION, LOCAL 1000,
Charging Party, Case No, SA-CE-1694-S
Vv. PERB Decision No. 2285-S
STATE OF CALIFORNIA (DEPARTMENT OF September 17, 2012
CORRECTIONS & REHABILITATION),
Respondent.

Appearances: J. Felix de La Torre, Senior Staff Counsel, for Service Employees

International Union Local 1000; State of California (Department of Personnel Administration)
by Che I. Johnson, Labor Relations Counsel, for State of California (Department of
Corrections & Rehabilitation).

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.

MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Service Employees International Union,
Local 1000 (SEIU) from the proposed decision of a PERB administrative law judge (ALJ).
The complaint alleged that the State of California (Department of Corrections and
Rehabilitation) (CDCR), acting through its agent, ordered a job steward to “cease and desist” a
union investigation into alleged misconduct by a supervisor for a potential grievance and
advised the job steward that employees could be “walked off the job for things like this.” The
complaint alleged that by this conduct, CDCR interfered with employee rights in violation of

section 3519, subdivision (a), of the Ralph C. Dills Act (Dills Act)! and denied SEIU its right

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

to represent employees in violation of section 3519, subdivision (b ), of the Dills Act.2 The
ALJ dismissed the complaint, and underlying unfair practice charge, having concluded that
SEIU failed to discharge its burden of proving by a preponderance of the evidence that CDCR
interfered with employee or derivative union rights. 	SEIU filed a timely statement of
exceptions. CDCR filed a timely response.
The Board has reviewed the entire record in this matter and given its full consideration
to the issues raised in SEIU's statement of exceptions and CDCR's response thereto. Based on
this review, the Board reverses the proposed decision for the reasons discussed below.
SUMMARY OF FACTS
SEIU is the exclusive representative for employees in bargaining unit 17, which
includes registered nurses (RN), and bargaining unit 20, which includes licensed vocational
nurses (L VN), at the Kern Valley State Prison (KVSP), a facility within CDCR. Bargaining
units 17 and 20 are covered by separate memoranda of understanding betvveen SEIU and the
State of California effective July 1, 2005 through June 30, 2008.
On Monday, June 23, 2008, misconduct by a supervisor in the form of extorting meal
tickets from subordinates was reported to KVSP administration. By memorandum dated
June 24, 2008, RN Helen Tuhin (Tuhin) reported to Sharon Zamora (Zamora), KVSP's Health
Care Manager, and to KVSP's Investigative Services Unit (ISU)3 that her supervisor,
Supervising RN II, Darcel Moore (Moore), had been taking her meal tickets, and the meal
Section 3519, subdivision (a), makes it unlawful for the state to "[i]mpose or threaten
to impose reprisals on employees, to discriminate or threaten to discriminate against
employees, or otherwise to interfere with, restrain, or coerce employees because of their
exercise of rights guaranteed by this chapter." Section 3519, subdivision (b), makes it
unlawful for the state to "[ d]eny to employee organizations rights guaranteed to them by this
chapter."
3 ISU appears to operate within the CDCR' s Office of Internal Affairs.
2

tickets
of
her coworkers LVN Elvis Negre (Negre), LVN Marilyn Torricer (Torricer),
LVN
Marieta Camia (Camia) and LVN Micu. Similar memoranda were submitted to KVSP, also on
June 24, 2008, by LVN Camia, LVN Negre and LVN Torricer.4
By memorandum to KVSP Chief Deputy Warden
J.
Castro dated June 25, 2008,
Zamora requested that CDCR initiate an investigation into the alleged misconduct by Moore
(ISU Moore investigation). 5 By memorandum dated June 26, 2008, KVSP Director
of
Nursing
Cyndi
L.
Scott advised Moore that she was immediately being redirected from her regular
assignment and placed on a special assignment until further notice.
Zamora received allegations that Moore was contacting nursing staff about the ISU
Moore investigation. According to the grievances filed by SEIU on behalf
of
the members
whose meal tickets were taken by Moore, sometime during this general timeframe, a male
person identifying himself as with ISU spoke to some
of
the LVN s by telephone. During one
conversation, Moore came on the line and began questioning the LVN s herself. Moore also
directly called the LVNs at home. The LVNs were informed by ISU that ISU had not
contacted them. As a consequence
of
Moore's unprofessional conduct in contacting staff, by
memorandum dated June 30, 2008, Zamora issued Moore a "cease and desist" order,
instructing Moore to avoid contact with rank and file nursing staff, to conduct herself in a
professional manner and to stop inquiring into pending investigation issues.
These facts are supplied through the grievances filed by Union Representative Bertha
Sanchez (Sanchez) on behalf
of
affected members 	bargaining units 17 and 20 on July 22,
2008,
	of
which were marked for 	at the PERB formal hearing as Joint
Exhibits 1 and 2 and entered into evidence. The grievances alleged that Moore violated
various provisions of the collective bargaining agreement, beginning in March 2008, by
"demanding through extortion" that certain subordinate employees give Moore their meal
tickets for her to use to purchase food at Take Ten, the cafeteria at KVSP.
5 KVSP did not inform SEIU of the ISU Moore investigation.
3

On Wednesday, July 2, 2008, SEIU was holding a pre-authorized union meeting on the
issue of "LVN realignment" at KVSP's Take Ten cafeteria. During the meeting, LVN
Torricer, LVN Camia, L VN Negre and RN Tuhin approached Sonia Martinez (Martinez), the
union job steward and SEIU District Bargaining Unit Representative,6 about the meal ticket
controversy involving Moore. 7 They wanted the union's help as they were fearful that Moore
would retaliate against them for reporting her to the authorities. They asked Martinez to file a
grievance. Also present were Sanchez, SEIU Vice-president Marc Bautista (Bautista) and
SEIU Resource Center Representative JoAnne Juarez-Salazar.
Bautista instructed Martinez to initiate fact-finding for a potential grievance,
specifically to find out how the meal ticket system worked. After questioning the four
members of the nursing staff who had approached her at the union meeting, Martinez was
instructed by Bautista to ask the snack bar cashier about the meal ticket process. The snack
bar, which is operated by an independent contractor, is located at the Take Ten cafeteria where
the meeting was being held, so Martinez broke from the meeting to carry out Bautista' s
instruction. Martinez ended up talking to the manager of the snack bar. Martinez did not state
that she was investigating a possible grievance, nor did she mention Moore's name or refer to
Martinez became a job steward in or around February 2008, and the SEIU District
Bargaining Unit Representative on 	30, 2008.
7 Sanchez testified that she found out about the meal ticket controversy 	she was
called by another job steward on her cell phone on 	to Sacramento on Sunday, 	29,
2008, 	that she and Martinez talked about it 	they were both 	""'""""'"'T" the next
day, which would have been Monday, June 30, 2008. Sanchez also testified that her discussion
with Martinez about the meal ticket controversy occurred on Friday, Saturday or Sunday,
which would imply that she told Martinez prior to finding out herself. Given the difficulty of
creating a reliable timeline based on Sanchez's testimony, it remains unclear whether Martinez
first became aware of the meal ticket controversy on July 2, 2008, as she testified, or at an
earlier time, as Sancb8zappeared to testify.
4

the ISU Moore investigation. She instead asked what happened when meal tickets arrived, and
where they went once collected.
Dina Alcala (Alcala), KVSP Labor Relations Advocate, received a call that Martinez
was asking questions at the snack bar. Alcala testified as follows as to what the caller
reported: "They stated that she was asking about how to process meal tickets." Alcala called
ISU, which she knew to be investigating Moore, and spoke with Sergeant Karen Williams
(Williams), a correctional civil service class sergeant with ISU, because she felt Martinez's
questions created a problem with "the integrity of that investigation." Alcala did not tell
Sergeant Williams that she believed Martinez was interfering with the investigation. Sergeant
Williams then called Zamora for direction. Zamora was aware that Martinez was a job
steward. Zamora was not aware that Martinez was collecting information for a potential
grievance, but that information would not have made any difference to her because they "were
protecting the integrity of the ... investigation." According to Zamora, Sergeant Williams
reported to her that Martinez was questioning snack bar staff regarding Moore and the meal
ticket controversy. Zamora admitted that Martinez's questioning did not constitute actual
interference, just potential interference. Zamora instructed Sergeant Williams to verbally order
Martinez to cease and desist conducting her own investigation into the meal ticket
controversy. 8 Sergeant Williams testified that talking to witnesses constitutes interference with
an ISU investigation because of the potential for learning something the questioner is not
entitled to k:now. 9
Zamora testified that cease and desist orders are "rarely" issued and are typically
delivered by an Employee Relations Officer (ERO) but that, on this particular occasion, the
ERO, Sara Smith, was on vacation.
9 As of the date of the PERB formal hearing, the snack bar manager had not yet been
interviewed for the ISU Moore investigation.
5

On July 3, 2008, the day after the union meeting, Martinez was redirected to work at a
different clinic than her regularly assigned clinic. She was approached by Sergeant Williams,
who asked Martinez to follow her into an empty office. 	Sergeant Williams was dressed in
uniform, and Martinez knew that Sergeant Williams was with ISU. 10 Sergeant Williams asked
Martinez to sit down. 	Sergeant Williams stood between Martinez and the door, with her hand
on the handle of the door, and told her to "cease and desist" her investigation. Martinez
testified that Sergeant Williams then came very close to her and said that she seemed like a
nice person, that she had seen people walked off for activities like this and that she would hate
to have that happen to her. 	Sergeant Williams testified that she told Martinez it was fine for
her to do union business but that she needed to cease and desist questioning staff because that
was interfering with the ISU Moore investigation. While Sergeant Williams testified that she
did not tell Martinez that people could be "walked off' the job for doing what Martinez was
doing, she did admit the following: 	"I also told her, I said that she could find herself under
investigation as well for impeding our investigation."
Martinez found Sergeant Williams's tone to be aggressive. Martinez was frightened by
the encounter. After Sergeant Williams left the office, Martinez reached Sanchez on Sanchez's
cell phone. 	Sanchez's testimony corroborates Martinez's account that Martinez called Sanchez
after her encounter with Sergeant Williams and was scared, upset and crying. 11 Sanchez
testified that Martinez told her that she had been threatened 	Sergeant Williams. According
to Sanchez, 	was concerned about staying on as job steward for fear of losing
1 ISU's job is to investigate misconduct. According to Alcala, "they're kind of
guess 	police of the institution."
11 Martinez testified only as to one phone call to Sanchez, though Sanchez recalled that
Martinez had called her earlier that morning to tell her that ISU was looking for her, and that
she did not understand why and was scared.
6
I

job. 12 Alcala's testimony also corroborates Martinez's account. Martinez spoke with Alcala a
few days later and, according to Alcala, Martinez "was upset at what had taken place." Alcala
could visibly see that Martinez was upset. Alcala told her that the appropriate way to discover
the information was to file an information request.
After her encounter with Sergeant Williams, Martinez was too scared to take any
further steps in the union investigation into the potential grievance related to the meal ticket
controversy. The investigation was completed by others in the union and a grievance was
ultimately filed on July 22, 2008, first on one grievance form combining both bargaining units,
which was rejected, then on two separate forms.
1 According to Sanchez:
A. 	That day she was scared, she was crying. I can't - you
know, she's telling me she can't do this, you know, I can't lose
my job, I can't afford to lose my job. You know, here we're told
that when we're doing things as a Job Steward that, you know,
we - this will not happen to us. 	And so here I'm talking to her
and saying- I don't have a lot of Job Stewards at Kern Valley,
and so I couldn't afford to leave - lose any. I'm talking to Sonja,
Marc's talking to Sonja, you know, saying what they're doing is
wrong and, you know, we will-
Q. 	Was there a discussion about her keeping on as a Job
Steward?
A. 	Yeah.
THE WITNESS: Okay. Yes, there has been a discussion.
There was a discussion that day her keeping on because Sonja's
a 	you know, she's - has to work, has children, has a family.
And she thought all this was threatened the day that Sergeant
Williams came in and did this. Because, you know, you're
always told you could be walked off here. 	So ... I have had to
have many conversations about staying a Job Steward.
(Transcript, PERB formal hearing.)
7

ALJ DECISION
The ALJ concluded that neither the issuance of the cease and desist order nor the threat
by Sergeant Williams that Martinez could be "walked off the job for things like this"
constituted interference. Regarding the latter, the ALJ credited the testimony of Sergeant
Williams, who testified that she did not make the statement, over the testimony of Martinez.
Regarding the former, the ALJ concluded that "not even slight harm to employee rights"
resulted from the issuance of the cease and desist order, citing to the fact that, although
Martinez did not further participate in the preparation of the meal ticket grievance after she
received the cease and desist order, the grievance was nonetheless filed and Martinez remained
on as job steward.
The ALJ also concluded that employer operational necessity and legitimate business
justification were established by the fact that CDCR/KVSP was rightfully concerned about
maintaining the integrity of the ISU Moore investigation. The ALJ did, however, reject "[a]ny
contention that filing a request for information with KVSP Labor Relations Advocate about
policies and procedures for meal tickets and awaiting a response would provide a reasonable
alternative to the union."
DISCUSSION
The central issue in this case is whether CDCR/KVSP violated section 3519,
subdivision (a), of the Dills Act, which makes it unlawful for the state to, among other things,
" interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by
this chapter." As the ALJ noted, the test for whether a respondent has interfered with the
protected rights of employees under the Dills Act does not require that unlawful motive or
intent be established, but only that at least slight harm to employee rights results from the
conduct. (Omnitrans (2009) PERB Decision No. 2030-M (Omnitrans); Sacramento City
8

Unified School District (1982) PERB Decision No. 214.)
If
the harm to employee rights is
slight and the employer offers justification based on operational necessity, the competing
interests are balanced. (Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad); State
of
California (Department
of
Personnel Administration) (2011) PERB
Decision No. 2106a-S.) Only when the interference with employee rights outweighs the
business justification for the respondent's conduct will a violation be found. 	(Omni trans;
Carlsbad.)
13
Courts have described the standard in the following way:
All [a charging party] must prove to establish an interference
violation
...
is: (1) That employees were engaged in protected
activity; (2) that the employer engaged in conduct which tends to
interfere with, restrain or coerce employees in the exercise
of
those activities; and (3) that the employer's conduct was not
justified by legitimate business reasons.
(Public Employees Association
of
Tulare County
v.
Board
of
Supervisors
of
Tulare County
(1985) 167 Cal.App.3d 797, 807.)
I.
	Protected Activity
Section 3515
of
the Dills Act protects union members' right to participate in union
activities. 14
Encompassed within this right to participate in the organizational activities
of
a
union is the right to represent members in grievance proceedings. (See Clovis Unified School
District (1984) PERB Decision No. 389 (Clovis).) 	employee organization's ability to
independently investigate a potential grievance is an essential tool for determining 	the
grievance has any merit and,
if
it does, for providing effective representation in grievance
If
the harm is inherently destructive 	employee 	employer's conduct will
be excused only on proof that it was caused by circumstances beyond 	control and no
alternative course of action was available. (Carlsbad.)
i 4 Section 3515 of the Dills Act guarantees state employees "the right to form,join, and
participate in the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations."
9

proceedings. Therefore, the investigation of grievances is protected organizational activity.
Martinez had a protected right to engage in fact-finding for the purpose of determining whether
a grievance concerning the meal ticket controversy should be filed on behalf of aggrieved
members.
II. 	Interference with Employee Rights
The conduct by CDCRJKVSP alleged to constitute interference with employee rights is
comprised of two acts, the statement by Sergeant Williams to Martinez about being walked off
the job and the issuance by Sergeant Williams to Martinez of the cease and desist order.
A. 	Statement About Being Walked Off
Sergeant Williams testified that she did not make the statement about being walked off.
Relying on Evidence Code section 780, the ALJ credited the testimony of Sergeant Williams
over the testimony of Martinez. 15 As a general rule, credibility determinations grounded in an
ALJ' s impressions of witnesses gained firsthand while observing testimony are accorded
deference. (Santa Clara Urzijied School District (1979) PERB Decision No. l 04; Clovis.)
Here, the ALJ' s credibility determination was based on a different type of rationale. The ALJ
opined that "gratuitous comments would not be volunteered by an experienced investigator."
Further, the ALJ stated that "an experienced law enforcement officer would not make the
expansive statement that all ... could be walked off." These opinions are more in the nature of
speculative generalizations about the character of law enforcement officers than they are a
product of firsthand observations by the ALJ of Sergeant Williams's testimony. It makes no
difference what experienced investigators or law enforcement officers would do in Sergeant
5 Evidence Code section 780 sets forth the following standards for evaluating witness
testimony: demeanor; character of testimony; capacity to perceive, recollect or communicate;
bias, interest or motive; prior consistent or inconsistent statements; attitude; admissions of
untruthfulness; and existence or nonexistence of facts testified to.
10

Williams's shoes. What matters is what Sergeant Williams did, in fact, do. Accordingly,
we
accord the
ALJ'
s credibility determination no particular deference.
The Board has found no record evidence corroborating Sergeant Williams's testimony
that she did not make the statement about being walked
off
the job.
	On
the other hand,
Martinez's testimony is corroborated by Sanchez who spoke to Martinez immediately
following Martinez's encounter with Sergeant Williams. Sanchez testified as follows:
	"And
she thought all this was threatened the day that Sergeant Williams came in and did this.
Because, you know,
you're
always told you could be walked
off
here."
It is not, however critical for the Board to determine whether Sergeant Williams
made
the statement to Martinez about being walked off. Regardless
of
whether Sergeant Williams
used the phrase "walked off," she admitted that she told Martinez "that she could find
herself
under investigation as well for impeding our investigation."
16
This statement was made
by
the
equivalent
of
the prison police in a room with the door closed during an impromptu meeting in
which Martinez was being rebuked for conduct undertaken on
behalf
of
the union. As
the
ALJ
pointed out: "Her closed door contact with a uniformed agent
of
the ISU, charged with
investigating criminal and administrative/disciplinary matters, within days
of
her elevation to
Although this specific statement was not alleged in the complaint, it nonetheless
supports a violation. (State
o,,f
California (Department
o,,f
Social Services) (2009) PERB
Decision No. 2072-S [unalleged violations can be used to support an unfair practice charge
where: 	(1) adequate notice and opportunity to defend has been provided the respondent;
(2) the acts are intimately related to the subject matter
of
the complaint and are part
of
the
same course
of
conduct; (3) the unalleged violation has been fully litigated; and (4) the parties
have had the opportunity to examine and be cross-examined on this issue].) Sergeant
Williams's meeting with Martinez on July 3, 2008, was a primary focus
of
the PERB formal
The specific statement at issue, 	was made 	the meeting, is u
..
,,
..
,~
..
-·
related to the subject matter
of
the complaint and part
of
the same course
of
conduct.
witnesses, Sergeant Williams and Martinez, were examined and cross-examined about what
occurred during this meeting and what was said. Moreover, the statement is not disputed.
Accordingly, we conclude that although unalleged, the making of this statement was properly
included within the scope of the hearing and fully litigated, and therefore can be used to
support an unfair practice charge. 
11

higher union office, understandably caused apprehension." As a direct consequence
of
the
encounter between Martinez and Sergeant Williams, Martinez felt frightened and worried
about her job security, and considered stepping down from her position as job steward.
Sanchez and Bautista had many conversations with Martinez to persuade her to stay on as
job
steward, as there were not many job stewards at KVSP and they could not afford the loss.
Even days later, according to Alcala, Martinez was still visibly upset.
CDCRJKVSP asserts that Sergeant Williams's statement was merely a factually correct
restatement
of
the CDRC Operations Manual (DOM), citing section 31140.5.1, which states
that "[a]ny employee who knowingly gives false evidence, withholds evidence, or interferes in
any way during such an investigation, or requests or encourages another to do so, may be
subject to disciplinary action." To accept CDCRJKVSP's contention that Sergeant Williams's
statement was no more than a factually correct restatement
of
the rules requires that we ignore
that it was being applied to Martinez in a specific factual setting; it also requires that we agree
that Martinez was in fact knowingly interfering with the ISU Moore investigation.
Considering the totality
of
the circumstances, we reject CDCR/KVSP's characterization
of
Sergeant Williams' s statement to Martinez. 	Instead, we find the statement to be threatening,
intimidating and coercive, constituting at least "slight harm" to employee organizational rights
for purposes
of
the interference analysis.
B. 	Cease and Desist Order
In issuing the cease and desist order, Sergeant Williams explicitly instructed Martinez
to stop conducting her own investigation into the meal ticket controversy. As a result
of
the
cease and desist order, Martinez stopped all fact-finding activities related to the potential
grievance about the meal ticket controversy. Also as a result of the cease and desist order,
Martinez questioned whether she should remain on as job steward, as she was worried about
12

losing her job and not being able to support her family. 	That SEIU reallocated union resources
to get the grievances filed and persuaded Martinez to overcome her doubts about staying
on
as
job steward does not nullify the wrong. An employee organization's ability to recover from a
harm that is inflicted by the state on an employee exercising her protected right to engage in
organizational activities cannot serve as the basis for absolving the state ofresponsibility for its
actions in the first instance. Accordingly, we conclude that the issuance
of
the cease and desist
order resulted in at least "slight harm" to employee organizational rights for purposes
of
the
interference analysis. In so concluding, we agree with the ALJ that allowing Martinez to file
with the state a request for information is not a reasonable alternative to conducting an
independent investigation into the merits
of
a potential grievance.
The CDCR/KVSP argues that SEIU failed to establish "actual harm." Relying
on
State
a/California (Franchise Tax Board) (1992) PERB Decision No. 954-S (FTB), the
CDCPJKVSP asserts that "PERB has decided that when alleging a claim
of
interference the
Charging Party must establish an actual harm derived from a denial ofrights, mere theoretical
impact is insufficient." The CDCR/KVSP's characterization
of
the holding in FTB is
inaccurate. 	In FTB, the Board rejected the union's argument that where a violation of
section 3519, subdivision (a), occurs and involves a union official, a violation
of
section 3519,
subdivision (b), is presumed. The Board held that "[t]o establish a violation
of
3519(b) under
these circumstances, a charging party must show actual denial
of
the union's rights under the
Dills Act. A showing of theoretical impact is insufficient." As is evident from reviewing the
entire passage in context, the Board's discussion was limited to (b), not (a), violations.
In sum, we conclude that SEIU has proven by a preponderance of the evidence at least
"slight harm" to employee organizational rights.
13

III. 	Legitimate Business Reason
The next inquiry is whether CDCR/KVSP's conduct was justified by a legitimate
business reason. We agree that, as a general rule, investigations into employee misconduct
such as the ISU Moore investigation serve a legitimate business purpose. Here, however,
CDCR/KVSP' s justification is undermined for the following reasons.
First, issuance of the cease and desist order was precipitated by a call received by
Alcala from someone claiming that Martinez was asking questions at the snack bar. Martinez
was not questioning snack bar staff about Moore and Alcala did not tell Sergeant Williams that
she believed Martinez was interfering with the investigation. The entirety of what Alcala was
told, according to her own testimony, was that Martinez "was asking about how to process
meal tickets." Although the ALJ found that everyone involved in this case overreacted to the
situation, it was Sergeant Williams who inaccurately reported to Zamora that Martinez was
questioning Snack Bar staff about l\1oore. And it was Zamora who, without verifying the
caller's report by talking to Martinez or the snack bar staff, determined that Martinez was
interfering with the ISU Moore investigation and had to be stopped.
Second, CDCR/KVSP's reliance on article 14, section 31140.5.1 of the DOM
governing Internal Affairs Investigations is unpersuasive. 17 It provides in pertinent part:
Each employee of the CDCR is required to comply and cooperate
as follows:
• 	Employees shall not take any action which would interfere
with, delay, distort, or unduly influence any official
investigation conducted by the Department or any other
government agency. Any employee who knowingly gives
false evidence, withholds evidence, or interferes in any way
17 Moreover, as SEIU points out, another section of the DOM appears to contemplate
that witnesses otherwise bound by confidentiality are permitted to discuss an
investigation/inquiry with their employee representative and legal counsel without approval by
CDCR/KVSP. (See Respondent's Exh. 2, DOM, art. 14, § 31140.38.)
14

during such an investigation, or requests or encourages
another to do so, may be subject to disciplinary action.
Zamora admitted that Martinez's questioning did not constitute actual interference,
just
potential interference. There is no evidence that Martinez's question about how to process a
meal ticket interfered with, delayed, distorted or unduly influenced the ISU Moore
investigation. She did not give false evidence, withhold evidence or interfere with the
ISU
Moore investigation in any other way.
18
Moreover, it is undisputed that SEIU was never
informed by CDCR/KVSP
of
the ISU Moore investigation, not that CDCR/KVSP was under
any obligation to do so. Therefore, there is no reason supplied by the record evidence to
discredit Martinez's testimony that she was unaware
of
the existence
of
the ISU Moore
investigation. It follows that Martinez could not knowingly have impeded the ISU Moore
investigation
if
she had no knowledge
of
it to begin with.
Third, CDCR/KVSP appears to suggest that because it was justified in issuing a cease
and desist order to Moore, it was equally justified in issuing a cease and desist order to
Martinez. The cease and desist order given to Moore was precipitated by contacts she
and
an
associate had with the supervisee victims, calling them at home and attempting to impersonate
ISU personnel. The cease and desist order given to Martinez was precipitated by her question
to 	snack bar staff about how meal tickets are processed. The harassing behavior
of
Moore,
the alleged perpetrator
of
the extortion scheme, does not compare to the grievance-related
inquiry made by Martinez on behalf
of
Moore's supervisee victims.
Sergeant Williams testified that talking to witnesses constitutes interference with an
investigation because
of
the potential that the questioner could learn something that he or she
is not entitled to know. 	The method in which meal tickets are processed, however, appears to
be general information, rather than information that is considered sensitive, classified or
confidential in nature. 
15

Last, testimony by witnesses for CDCR/KVSP concerning the scope and effect
of
the
cease and desist order was inconsistent. Alcala testified that Martinez was allowed to talk with
the nursing staff who filed the complaints against Moore, but she was not allowed to talk with
non-state employees, like those who staffed the snack bar. 	Zamora testified that the cease and
desist order did not apply to the union members who had approached Martinez at the union
meeting to complain about the meal ticket controversy and that it primarily applied to the
snack bar staff. But on cross-examination Zamora testified: "I do not recall specifically
if
we
limited it to snack bar employees or all employees."
19
Williams testified that she was there to
convey Zamora's message and Zamora did not narrow the cease and desist order to any
specific group
of
employees. Without a coherent and consistent explanation
of
the scope and
effect
of
the cease and desist order, it is difficult to credit CDCR/KVSP's determination that
Martinez's questioning concerning the meal ticket process implicated the integrity
of
the ISU
Moore investigation.
In sum, we conclude that the legitimacy
of
the state's justification for interfering with
employee organizational rights is undermined for the following reasons: the inaccurate way in
which information from the unidentified caller was reported up the chain
of
command and
acted upon without verification; CDCR/KVSP's reliance on a section
of
the DOM that does
not appear to support the action taken; CDCR/KVSP's proffering
of
a false equivalency
between the cease and desist order given to Moore and the cease and desist order given to
Martinez; and the inconsistent understanding among witnesses for CDCR/KVSP regarding the
scope and effect
of
the cease and desist order.
By way of comparison, the cease and desist order issued against Moore prohibited
her from talking to employees supervised by Moore, but did not prohibit her from talking to
snack bar staff.
16

Given the above, in balancing the competing interests
of
the parties, we conclude that
interference with employee organizational rights outweighs the business justification proffered
by CDCRJKVSP for its conduct. (See Omnitrans, p. 23 ["the mere fact that a union
communication addresses controversial subject matter does not justify a prohibition absent
evidence that the communication actually impairs the employer's operations"]; Hilmar Unified
School District (2004) PERB Decision No. 1725, p. 14 [in the context
of
negotiations for a
new collective bargaining agreement, an interference violation was found in a school district's
attempt to bar a union from independently obtaining health plan information directly from the
health plan administrator and to require instead that inquiries be made through district
officials; the Board held that an exclusive representative is "entitled to information sufficient
to enable it to understand and intelligently discharge its duty to represent bargaining unit
members," citing Chula Vista City School District (1990) PERB Decision No. 834].)
CONCLUSION
We hold that CDCR violated the Dills Act, section 3519, subdivision (a), by interfering
with employee rights to participate in the organizational activities
of
SEIU. 	We further hold
that, by this same conduct, the CDCR concurrently and derivatively violated section 3 519,
subdivision (b) by denying SEIU its right to represent its members in their employment
relations with the state.
Pursuant to the Dills Act, section 3514.5, subdivision (c), PERB is given the authority
to:
[I]ssue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including, but not limited to, the reinstatement of
employees with or without back pay, as will effectuate the
policies of this chapter.
17

ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the State of California (Department of Corrections & Rehabilitation)
(CDCR) violated the Ralph C. Dills Act (Dills Act), Government Code section 3519,
subdivisions (a) and (b). Therefore, pursuant to the Dills Act, Government Code section 3514,
subdivision (c), it is hereby ORDERED that CDCR, its administrators and representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with protected employee rights.
2. 	Denying Service Employees International Union, Local 1000 (SEIU) its
right to represent bargaining unit members as guaranteed by the Dills Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices to employees are customarily posted,
copies of the notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of CDCR, indicating that it will comply with the terms of this Order. Such
posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. CDCR shall provide reports, in writing, as directed by the General
18

Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on SEIU.
Members Dowdin-Calvillo and Huguenin joined in this Decision.
19

--------------
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State
of
California
F
After a hearing in Unfair Practice Case No. SA-CE-1694-S, Service Employees
International Union, Local I 000
v.
State
of
California (Department
of
Corrections &
Rehabilitation), in which all parties had the right to participate, it has been found that
the
State
of
California (Department
of
Corrections & Rehabilitation) violated the Ralph C. Dills
Act
(Dills Act), Government Code section 3512 et seq. by interfering with protected employee
rights under the Dills Act and denying the Service Employees International Union, Local 1000
(SEIU) its right to represent its members in their employment relations with the state.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1.	
Interfering with protected employee rights.
2. 	Denying SEIU its right to represent bargaining unit members as guaranteed by
the Dills Act.
Dated: 	STATE OF CALIFORNIA
(DEPARTMENT OF CORRECTIONS &
REH,A~BILIA TION)
By:
Authorized Agent
IS AN OFFICIAL NOTICE. IT MUST REMAIN 	FOR AT LEAST
30 (THIRTY) CONSECUTIVE WORKDAYS FROM 	DATE OF POSTING AND MUST
NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.