California Correctional Peace Officers Association (Moore) (PERB 1530S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LEE M. MOORE,
Charging Party,
v .
CALIFORNIA CORRECTIONAL PEACE
OFFICER'S ASSOCIATION,
Respondent.
Case No. SF-CO-46-S
PERB Decision No. 1530-S
June 20, 2003
Appearances: Lee M. Moore, on his own behalf; Daniel M. Lindsay, Supervising Legal
Counsel, for California Correctional Peace Officer's Association.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Lee M. Moore (Moore) of a Board agent's dismissal of his
unfair practice charge. The charge alleged that the California Correctional Peace Officer's
Association (CCPOA) violated the Ralph C. Dills Act (Dills Act)' by refusing to bargain with
supervisory staff, allowing the CCPOA chapter president, a supervisory employee, to represent
non-supervisory employees, and threatening reprisal against Moore for challenging CCPOA's
conduct. Moore alleged that this conduct constituted a violation of Dills Act sections
3519.5(b), (c) and 3529(c).2
`The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
Section 3519.5 states, in pertinent part:
It shall be unlawful for an employee organization to:

After review of the entire record, including the unfair practice charge, the warning and
dismissal letters, Moore's appeal and CCPOA's response to Moore's appeal, the Board affirms
the Board agent's dismissal for the reasons expressed below.
BACKGROUND
In his charge, Moore alleges that Mike Biggs (Biggs) is a correctional lieutenant at
Correctional Training Facility (CTF) and is also the CCPOA chapter president. Moore is also
a correctional lieutenant at CTF who supervises the transportation office. On September 27,
2002, Moore was told to arrange for the transport of two inmates who needed medical
treatment to the medical facility. Moore instructed his staff to assemble an emergency
transport team for this purpose. Without first communicating with the transportation office,
Biggs contacted the Employee Relations Officer, Jan Spears (Spears), complaining about the
procedures used by the transportation office. As a result, CTF management contacted the
transportation office about its procedures. According to Moore, this created a delay in
implementing the emergency transport procedures for the two inmates. Later, Moore claims
that he called Biggs to complain about his actions and Biggs responded by stating:
(b) Impose 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. It shall be
unlawful for an employee organization to:
(c) Refuse or fail to meet and confer in good faith with a state
agency employer of any of the employees of which it is the
recognized employee organization.
Section 3529(c) states:
(c) Excluded employees shall not participate in meet and confer
sessions on behalf of nonexcluded employees. Nonexcluded
employees shall not participate in meet and confer sessions on
behalf of supervisory employees.
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We will just change the policy so that your staff will be subjected
to involuntary ordered over to work inside. We will disband the
transportation team and assign the transports using staff from
inside.
Moore alleges that Biggs' statement constituted a threat of reprisal against him and his
staff, and explains that he had followed the appropriate procedures for an emergency transport.
Moore further alleges that Biggs is supervisory, an excluded employee under the Dills Act, and
so should not be representing unit employees.
DISCUSSION
The Board agent found that both Moore and Biggs are supervisory employees under
Dills Act section 3513(g) and thus excluded employees under sections 3513(c) and 3527(b).
Section 3513 states, in pertinent part:
As used in this chapter:
(c) "State employee" means any civil service employee of the
state, and the teaching staff of schools under the jurisdiction of
the State Department of Education or the Superintendent of
Public Instruction, except managerial employees, confidential
employees, supervisory employees, employees of the
Department of Personnel Administration, professional employees
of the Department of Finance engaged in technical or analytical
state budget preparation other than the auditing staff, professional
employees in the Personnel/Payroll Services Division of the
Controller's office engaged in technical or analytical duties in
support of the state's personnel and payroll systems other than the
training staff, employees of the Legislative Counsel Bureau,
employees of the Bureau of State Audits, employees of the office
of the Inspector General, employees of the board, conciliators
employed by the State Conciliation Service within the
Department of Industrial Relations, and intermittent athletic
inspectors who are employees of the State Athletic Commission.
(g) "Supervisory employee" means any individual, regardless of
the job description or title, having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
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The Board agent also determined that Moore failed to state a prima facie case since the duty to
bargain is owed to the State, not to individual employees. (Riverside County Office Teachers
Association, CTA/NEA (McAlpine. et al.) (2000) PERB Decision No. 1401.) * The Board
agent further found that Moore's claim that Biggs was unlawfully serving as union president
alleges a violation of the Bill of Rights for State Excluded Employees (EEBR) but PERB does
not have jurisdiction over the EEBR. (California Correctional Peace Officers Association
effectively to recommend this action, if, in connection with the
foregoing, the exercise of this authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
Employees whose duties are substantially similar to those of their
subordinates shall not be considered to be supervisory employees.
Section 3527(b) states:
As used in this chapter:
(b) "Excluded employee," means all managerial employees, as
defined in subdivision (e) of Section 3513, all confidential
employees, as defined in subdivision (f) of Section 3513 and all
supervisory employees, as defined in subdivision (g) of Section
3513, and all civil service employees of the Department of
Personnel Administration, professional employees of the
Department of Finance engaged in technical or analytical state
budget preparation other than the auditing staff, professional
employees in the Personnel/Payroll Services Division of the
Controller's office engaged in technical or analytical duties in
support of the state's personnel and payroll systems other than the
training staff, employees of the Legislative Counsel Bureau,
employees of the Bureau of State Audits, employees of the Public
Employment Relations Board, conciliators employed by the State
Conciliation Service within the Department of Industrial
Relations, and intermittent athletic inspectors who are employees
of the State Athletic Commission.
*The Board agent actually stated that the "duty of fair representation" is owed only to
the State. That statement is an apparent error on the Board agent's part. Looking at the
context of the Board agent's statement in the warning letter (at p. 2), it is clear that she meant
instead that, under the Dills Act, the "duty to bargain" is owed only to the State, not to an
individual employee.
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(Smith, et al.) (1997) PERB Decision No. 1226-S.) Even assuming PERB had jurisdiction
over this violation, the Board agent states that under EEBR, Biggs may serve as CCPOA
president so long as he does not handle grievances. However, she explained that Biggs may
protest potential violations or encourage filing of grievances." The Board agent did not address
Moore's claim regarding Biggs' alleged threat of reprisal.
Moore's appeal objects to the Board agent's failure to analyze and resolve the
allegation concerning Biggs' threat of reprisal. Moore further believes that the Board agent
mischaracterized much of his charge and asserts that Biggs had a moral obligation to discuss
the transport procedures with him, a fellow supervisor and excluded employee, before
contacting Spears.
The key issue in this matter involves Moore's standing to file a charge. These concerns
are similar to those addressed by the Board in California Correctional Peace Officers
Association (Smith, et al.) (1997) PERB Decision No. 1226-S (CCPOA). In CCPOA, the
charging parties, all managers and supervisors, alleged that the union violated its duty of fair
representation by requesting that the State Personnel Board discipline the charging parties in
retaliation for investigating union members. The Board, in adopting the Board agent's
dismissal, found that, under the EEBR, supervisors and managers lacked standing to file
charges with the Board and therefore must pursue vindication of their rights through another
forum. (CCPOA, warning letter, p. 2.)
'Dills Act section 3529(b) provides:
Excluded employees shall not participate in the handling of
grievances on behalf of nonexcluded employees. Nonexcluded
employees shall not participate in the handling of grievances on
behalf of excluded employees.
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An exception to this rule might occur if CCPOA's conduct adversely impacted the
rights of unit employees. (CCPOA.) Moore alleged that Biggs' threat of reprisal included unit
members in the transportation office. Under State of California, Department of Health (1979)
PERB Decision No. 86-S (Department of Health), an employer's action against supervisory
employees could state a violation of the Dills Act if that action adversely impacted unit
employees' rights. (Department of Health, p. 7 and fn. 9, citing National Labor Relations
Board (NLRB) decisions covering this issue.) But the charge must be filed on behalf of unit
employees. (Department of Health; see also, State of California, Department of Forestry
(1980) PERB Decision No. 119-S.) The PERB and NLRB cases cited in Department of Health
involve unfair practice charges filed by unions, which alleged that the employer's acts against
supervisors infringed on the rights of unit employees. Since Moore neither is the exclusive
representative nor purports to represent unit employees in this matter, he lacks standing to file
this charge; and on that basis, this charge must be dismissed. The Board thus declines to
address the merits of the charge.
ORDER
The unfair practice charge in Case No. SF-CO-46-S is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Neima and Baker joined in this Decision.
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