California School Employees Association and its Chapter 36 (Peterson) (PERB 1683E)

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STATE OF CALIFORNIA
DECISION OF THE .
PUBLIC EMPLOYMENT RELATIONS BOARD

LEE PETERSON,
Charging Party, Case No. LA-CO-1142-E

Vv. PERB Decision No. 1683

CALIFORNIA SCHOOL EMPLOYEES August 27, 2004

ASSOCIATION & ITS CHAPTER 36,

Respondent.

Appearances: Lee Peterson, on his own behalf; California School Employees Association by
Sonja J. Woodward, Attorney, for California School Employees Association & its Chapter 36.

Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Lee Peterson (Peterson) from a Board agent’s dismissal (attached) of his unfair
practice charge. The charge alleged that the California School Employee Association & its
Chapter 36 (CSEA) violated the Educational Employment Relations Act (EERA)' by
breaching its duty of fair representation.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters, Peterson’s appeal and
CSEA’s response. The Board finds and warning and dismissal letters to be free of prejudicial

error and adopts them as the decision of the Board itself.

‘EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. LA-CO-1142-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
r . 	c··..,.~================- ....=============
Office of the General Counsel
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-6377
October 21, 2003
Lee Peterson
1748 256th Street
Lomita, CA 90717
Re: 	Lee Peterson v. California School Employees Association & its Chapter 36
Unfair Practice Charge No. LA-CO-1142-E
DISMISSAL
Dear Mr. Peterson:
The above-referenced unfair practice charge was fiied with the Public Employment Relations
Board (PERB or Board) on June 11, 2003. Lee Peterson alleges that the California School
Employees Association & its Chapter 36 violated the Educational Employment Relations Act
(EERA)1 by discriminating and retaliating against you for serving as President of the Classified
Senate and barring you from simultaneously serving as an elected member of the union's
Negotiating Committee or as Chief Job Steward on CSEA's Executive Board. The charge also
alleges that CSEA attempted to cause the District to restrain you from exercising rights and
discriminate against you for exercising rights under the EERA.
I indicated to you, in my attached letter dated September 5, 2003, that the allegations contained
in the charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended these
allegations to state a prima facie case or withdrew them prior to September_ 12, 2003, the
allegations would be dismissed.
You amended your charge on September 19, 2003. The amended charge contains additional
facts. However, I am dismissing the charge because the allegations fail to state a prima facie
case based on the facts and reasons contained in this letter and my September 5, 2003 letter.
The amended charge presents additional information concerning your relationship with Phil
Hendricks, the President of respondent. It also describes in detail the correspondence between .
yourself and various officers of respondent prior to the election of members of the negotiating
committee in December 2002.
Your charge presents three theories of violation: 1.) respondent discriminatorily refused to
permit you to run for a seat on the negotiating committee, 2.) respondent violated EERA
1 EERA is codified at Government Code section 3540 et seq. The text ~fthe EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1142-E
October 21, 2003
Page 2
section 3543.1 by unreasonably prohibiting you from running for a seat on the negotiating
committee because you held a position with the Classified Senate, and 3.) respondent
interfered with your right to participate in the respondent's activities by prohibiting you from
running for a seat on the negotiating committee.
Discrimination
PERB has long held that the standard applied in cases involving employer discrimination is
appropriate in cases alleging discrimination by an employee organization. (State of California .
(Department of Developmental Services) (1983) PERB Decision No. 344-S; California Faculty
Association (Hale, et al.) (1988) PERB Decision No. 693-H; California Union of Safety
Employees (Coelho) (1994) PERB Decision No. 1032-S.) To demonstrate a violation of
EERA section 3543.6(b), the charging party must show that: (1) the employee exercised rights
under EERA; (2) the employee organization had knowledge of the exercise of those rights; and
(3) the employee organization imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees
because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
In the warning letter two theories of discrimination were discussed .. The first theory is that
respondent discriminated against you because you held an office with the Classified Senate.
The amended charge does not present any further information on this theory and there is no
information that supports a finding that the Classified Senate is an employee organization
under the BERA. Thus, discrimination based on participation in the Senate is not a violation of
theEERA.
The second theory is that respondent discriminated against you because of your activities as
the Chief Job Steward. Your amended charge presents additional information regarding this
theory. However, the Board has held that in order to establish a prima facie case of
discrimination by an employee organization, the charging party must demonstrate that the
employee organization took adverse action. Such adverse action must impact the charging
party's relationship with his/her employer. (California State Employees Association (Barker
and Osuna) (2003) PERB Decision No. 1551-S.) Here, there is no demonstration that the
respondent's refusal to allow you to run for the negotiating committee had an impact on your
relationship with your employer. Accordingly, this allegation is dismissed.
Violation ofEERA section 3543.1
There are no new facts regarding this alleged violation. Therefore, this allegation is dismissed
because respondent did not suspend your membership or dismiss you from membership. Such
action is a prerequisite to a prima facie violation of this section. (California State Employee
Association (Barker and Osuna) (2003) PERB Decision No. 1551-S.)2
2 Although this decision concerns an interpretation of Dills Act section 3515.5, it is
applicable here because that section is.identical to EERA section 3543.1.

(
LA-CO-1142-E
October 21, 2003
Page 3
Interference
The test for whether a respondent has interfered with the rights of employees· under the EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The Board described the standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. (State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106.)
Under the above-described test, a violation may only be found ifEERA provides the claimed
rights.
The Board has been reluctant to interfere in the internal union affairs of an employee
organization unless those affairs impact the member's relationship with his employer.
(California State Employee Association (Barker and Osuna) (2003) PERB Decision No. 1551-
S.) Here the employee organization choose not to allow you to run for a position on the
negotiating committee. The act of running for a position on the negotiating team did not
impact your relationship with your employer and is therefore not protected. Consequently,
there is no violation of the EERA.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)	·
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1142-E
October 21, 2003
Page 4
(
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulation 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, anyother party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proofof service of the
request upon each party. (Regulation 32132.)

LA-CO-1142-E
October 21, 2003
Page 5
Final Date
(
- If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
Robert Thompson
General Counsel
Attachment
cc: 	Sonja Woodward, Attorney
California School Employees Association

STATE OF CALIFORNIA ( GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-6377
September 5, 2003
Lee Peterson
1748 256th Street
Lomita, CA 90717
Re: 	Lee Peterson v. California School Employees Association & its Chapter 36
Unfair Practice Charge No. LA-CO-1142-E
WARNING LETTER
Dear Mr. Peterson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 11, 2003. Lee Peterson alleges that the California School
Employees Association & its Chapter 36 violated the Educational Employment Relations Act
(EERA)1 by discriminating and retaliating against you for serving as President of the Classified
Senate and barring you from simultaneously serving as an elected member of the union's
Negotiating Committee or as Chief Job Steward on CSEA's Executive Board. The charge also
alleges that CSEA attempted to cause the District to restrain you from exercising rights and
discriminate against you for exercising rights under the EERA.
My investigation revealed the following information. You are a classified employee at Santa
Monica College. You served as an elected member of CSEA's Negotiating Committee and also
as the elected Chief Job Steward on CSEA's Executive Board with the responsibility of
processing grievances. Your term of office for these positions was January 1 through
December 31, 2002. In early October 2002, you volunteered for and accepted a position as
President of the District's Classified Senate, an advisory committee to the Santa Monica
College District Board of Trustees which assists in developing school policies but is explicitly
barred from deciding issues within the scope of representation.
Immediately following your decision to become the President of the Classified Senate, CSEA
Chapter President Phil Hendricks caused a Notice of Special Membership Meeting to be posted
and distributed to Chapter 36 members, pursuant to Art. IV, Sec. 5 of the Chapter Constitution,
which states the following:
Elected officers shall take office and assume their duties on the
January 1 following their election and shall continue to serve for
one year or until their successors are elected or appointed,
provided that any officer shall automatically forfeit such office if
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1142-E
September 5, 2003
Page 2
( 	(
they cease to be an eligible member in good standing, or if they
become an elected ( or interim appointed) officer or executive of
another Classified Employee organization.
After the Special Meeting held on October 8, 2002, the positions of Chief Job Steward and
Negotiating Committee member were filled by election. Subsequently, Mr. Hendricks and two
additional members of the five-member Negotiating Committee refused to allow you to
participate in the Committee's activities, including contract negotiations with the District, for
the stated reason that you were then continuing to serve as President of the District's Classified
Senate. Mr. Hendricks also did not allow you to complete your term as Chief Job Steward on
the Executive Board.
In December 2002, you accepted nomination for reelection to the Negotiating Committee for
the 2003 term. On December 31, 2002, CSEA removed your name from the list of candidates
and substituted a new ballot. An unnamed CSEA member told you that Mr. Hendricks did not
want you on the negotiating team because you were "too willing to settle with the District."
You filed an application for a new election and, in March 2003, the CSEA Area Director
conducted a hearing and ultimately denied your request. At the hearing, the CSEA Public
Relations Officer testified that she and other officers had determined that your name would be
omitted from the ballot unless you resigned from serving as an officer of the Classified Senate.
Former chapter officers, Deborah Jansen and Joanne Guercio, also testified, stating that they
had each simultaneously served on CSEA elected office (Executive Board and Negotiating
Committee, respectively) and Classified Senate office. On May 17, 2003, the CSEA Board of
Directors denied your appeal of the Area Director's decision. 	·
The charge asserts that CSEA's removal of your name from the 2003 ballot and its refusal to
allow you to serve on either its Negotiating Committee or its Executive Board violate the
EERA.
This information presents three possible theories under which the union's actions against you
may constitute an unfair practice: union discrimination under EERA section 3543.6(a), union
attempts to force the employer to violate the EERA, and union failure to comply with its
obligations under EERA section 3543 .1. The possible theories will be discussed in order.
.
PERB has long held that the standard applied in cases involving employer discrimination is
appropriate in cases alleging discrimination by an employee organization. (State of California
(Department of Developmental Services) (1983) PERB Decision No. 344-S; California Faculty
Association (Hale, et al.) (1988) PERB Decision No. 693-H; California Union of Safety
Employees (Coelho) (1994) PERB Decision No. 1032-S.) To demonstrate a violation of
EERA section 3543.6(b), the charging party must show that: (1) the employee exercised rights
under EERA; (2) the employee organization had knowledge of the exercise of those rights; and
(3) the employee organization imposed or threatened to impose reprisals, discriminated or
threatened to discriminate, or otherwise interfered with, restrained or coerced the employees

LA-CO-1142-E
September 5, 2003
Page 3
(
because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Although the timing of the employee organization's adverse action in close temporal proximity
to the employee's protected conduct is an important factor (North Sacramento School District
(1982) PERB Decision No. 264), it does not, without more, demonstrate the necessary
connection or "nexus" between the adverse action and the protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
the following additional factors must also be present: (1) the employee organization's
disparate treatment of the employee (State of California (Department of Transportation) (1984)
PERB Decision No. 459-S); (2) the employee organization's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School District
(1979) PERB Decision No. 104); (3) the employee organization's inconsistent or contradictory
justifications for its actions (State of California (Department of Parks and Recreation) (1983)
PERB Decision No. 328~S); (4) the employee organization's cursory investigation of the
employee's misconduct; (5) the employee organization's failure to offer the employee
justification at the time it took action or the offering of exaggerated, vague, or ambiguous
reasons; (6) animosity towards union activists (Cupertino Union Elementary School District)
(1986) PERB Decision No. 572.); or (7) any other facts which might demonstrate the
employer's unlawful motive. (Novato~ North Sacramento School District, supra, PERB
Decision No. 264.)
Here, it appears that CSEA prevented you from running for a position on the Negotiating
Committee because you held an office in the Classified Senate. BERA Section 3543 reads in
pertinent part:
(a) Public school employees shall have the right to form, join,
and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all i;natters of
employer-employee relations.
There is no information that demonstrates that the Classified Senate is an employee
organization within the definition ofEERA section 3540.l(d).2 Therefore, the holding of an
office with the Classified Senate is not activity protected by the BERA.
2 EERA section 4540.1 reads in relevant part:
( d) "Employee organization" means any organization which
includes employees of a public school employer and which has as
one of its primary purposes representing those employees in their
relations with that public school employer. 	"Employee
organization" shall also include any person such an organization
authorizes to act on its behalf.

LA-CO-1142-E
September 5, 2003
Page 4
Although the charge states that CSEA's conduct was taken because you served as Chief Job
Steward and sought to run for the Negotiating committee, there was no information provided
that would demonstrate a nexus between these protected activities and CSEA's actions. Thus,
there is no prima facie case under the theory of union discrimination.
The second theory is that CSEA violated the Educational Employment Relations Act (EERA)
at section 3543 .1 by umeasonably prohibiting you from running for a position on the CSEA
Negotiating Committee because you held a position with the Classified Senate.
To demonstrate a violation under this theory, the charging party must show that: (l)the
suspension of membership rights was equivalent to dismissal of membership from the union;
and (2) the dismissal was not within the right of the union to impose "reasonable restrictions"
on membership.
The right of employees to participate in employee organizations is not absolute and EERA
section 3543.l(a) provides that "[e]mployee organizations may establish reasonable
restrictions regarding who may join and may make reasonable provisions for the dismissal of
individuals from membership." In order to state a valid unfair practice involving internal
union affairs, the charging party must present facts showing that the employee organization's
dismissal of the employee from membership was umeasonable.
The Board has held that employee organizations have latitude to make decisions about their
internal management, including discretion to strip an organizational representative of authority
to act on behalf of the organization, so long as such action is not unlawfully motivated.
(California State Employees Ass'n. (O'Connell) (1989) PERB Decision No. 753-H.) In
California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479-S
PERB's authority to determine the reasonableness of a membership provision must include not
just the reasonableness of the provision itself, but the reasonableness of the provision as it was
applied in the case pending before the Board. (California Correctional Peace Officers
Association (Colman) (1989) PERB Decision No. 755-S.)
. Your charge fails to meet this criteria. CSEA has not dismissed you from membership or
suspended your rights as a member. Rather it has prevented you from becoming a member of
CSEA's negotiating committee. Thus, it appears that this provision of the EERA does not
apply to your situation and this allegation must be dismissed.
· Finally, you assert that CSEA violated EERA section 3543.6(a) by attempting to cause the
District to restrain you from exercising rights and discriminate against you for exercising rights
under the EERA. There is no information provided with the charge nor discovered during the
investigation that indicate how CSEA violated this provision. There is nothing in the charge
that describes any actions by Santa Monica College or any action by CSEA toward the
College. Therefore this allegation must be dismissed.

LA-CO-1142-E
September 5, 2003
Page 5
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For these reasons the unfair practice charge, as presently written, does not state a prim a facie
case of discrimination or retaliation. If there are any factual inaccuracies in this letter or
additional facts that would correct the deficiencies explained above, please amend the charge.
The amended charge should be prepared on a standard PERB unfair practice charge form,
clearly labeled First Amended Charge, contain all the facts and allegations you wish to make,
and be signed under penalty of perjury by you, as the charging party, anq must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the respondent's representative and the original proof of service must be filed with
PERB. If I do not receive an amended charge or withdrawal from you before September 12,
2003, I shall dismiss this allegation from your charge. If you have any questions, please call
me at the above number.
Sincerely,
Robert Thompson
General Counsel