California School Employees Association and Its Chapter 36 (Peterson) (PERB 1733E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LEE PETERSON,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 36,
Respondent.
Case No. LA-CO-1174-E
PERB Decision No. 	1733
December 	2 8 , 	2004
Appearance: 	Lee Peterson, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Lee Peterson (Peterson) of a Board agent's dismissal of his
unfair practice charge. 	The unfair practice charge alleged that the California School
Employees Association & its Chapter 36 (CSEA) violated the Educational Employment
Relations Act (EERA)1 by denying him the opportunity to run for union office. 	Peterson
alleged that this conduct constituted a violation of EERA sections 3543, 3543.1, 3543.l(c),
3543.2(a) and 3543.6(b).
The Board has reviewed the entire record in this matter, including the unfair practice
charge, CSEA's response to the unfair practice charge, the amended unfair practice charge, the
Board agent's warning and dismissal letters, and Peterson's appeal. The Board consequently
finds the warning and dismissal letters to be without prejudicial error and thereby adopts the
Board agent's dismissal as a decision of the Board itself, subject to the following discussion.
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
Peterson is a classified employee of the Santa Monica Community College District
(District) who is in the bargaining unit exclusively represented by CSEA. Peterson was a
union activist who most recently, from 2001 through 2003, was a job steward. Peterson sought
to run for two local chapter offices. 	On December 9, 2003, CSEA notified Peterson that he
was ineligible for candidacy based on the CSEA Chapter 36 Constitution, Article 4, section 5A
and Article 8, section 13B. 	These provisions prohibit candidates for chapter office from being
officers of other classified employee organizations. 	Peterson had been a classified senator
until June 30, 2003.
Peterson then challenged CSEA's election pursuant to CSEA Policy 618. 	On March 8,
2004, Area 1 Director, Jennie Batiste (Batiste) conducted a hearing on the issue. During the
hearing, the Chapter 36 president submitted documents in support of CSEA's position. These
documents referred to Peterson's activities before PERB and discussions with the District's
vice president of human resources regarding grievances.
On June 9, 2003, Peterson filed an unfair practice charge, Case No. LA-CO-1142-E,
against CSEA involving these same election rules.2 According to Peterson, this charge was
included in the documentation as a reason to bar his candidacy.
Batiste found that portions of the election were irregular. 	The CSEA Chapter 36
executive board appealed the ruling. 	On May 22, 2004, the CSEA board upheld Batiste's
decision and ordered new elections, adding Peterson's name to the ballot. The new elections
have not yet occurred.
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The Board upheld the Board agent's dismissal of that charge in California School
Employees Association & its Chapter 36 (Peterson) (2004) PERB Decision No. 1683 (CSEA
(Peterson')').

The unfair practice charge alleges that CSEA retaliated against Peterson for his
protected activities. 	Citing California Association of Psychiatric Technicians (Long) (1989)
PERB Decision No. 745-S (Long); California State Employees Association (Hackett, et al.)
(1995) PERB Decision No. 1126-S (Hackett), he alleges that the attempted ban from running
for union office is an adverse action, akin to a temporary suspension from membership. In the
amended charge, Peterson also alleges that CSEA took adverse action against him by disputing
his right to file a grievance as an individual in April 2004 and requesting a restraining order
against him with the District's police department on May 15, 2003.
BOARD AGENT'S DISMISSAL
The Board agent determined that Peterson did not state a prima facie case of retaliation.
First, as there is no evidence that the classified senate is an employee organization under
EERA, Peterson's participation in that organization is not protected conduct. 	Therefore,
Peterson's exclusion from the election because of his previous membership in the classified
senate is not a violation of EERA. 	Second, the Board agent found that although his
representation of himself and others in grievances may be protected, the exclusion from the
election is not adverse action. 	Such an action must impact the charging party's relationship
with his/her employer. 	(California State Employees Association (Barker & Osuna) (2003)
PERB Decision No. 1551-S (Barker and Osuna); Newark Unified School District (1991) PERB
Decision No. 864 (Newark); California State Employees Association (Hard, et al.) (2002)
PERB Decision No. 1479-S (CSEA (Hard)).) There are no facts alleged supporting such an
impact. 	Third, the Board agent found that his consultation with District officials about matters
outside the scope of representation was not protected conduct and so not a basis for a claim of
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retaliation.3 However, even if protected, again the Board agent does not find his exclusion
from the election to be an adverse action. 	(Barker and Osuna.) Finally, the Board agent found
Peterson's participation in the PERB process protected, again his exclusion from the election
was not an adverse action. 	(Barker and Osuna.)
The Board agent found that the charge alleged insufficient information to show that
CSEA retaliated against Peterson for attempting to bar Peterson from filing a grievance as an
individual and the chapter president's allegations against Peterson made to the campus police.
With regard to the allegations of false statements made to the campus police, the charge stated
that these occurred on September 26, 2003, more than six months before Peterson filed the
charge as amended (July 2004). 	The Board agent thus dismissed this allegation for being
untimely.
The Board agent further found that CSEA's exclusion of Peterson from the election did
not violate EERA section 3543.1. Peterson argues that his exclusion from the election is
tantamount to suspension from membership but has provided no facts to support that
comparison. 	The cases cited by Peterson, Long and Hackett, may be distinguished from the
-
instant matter. 	In Long, the Board found retaliation when an employee was prevented from
becoming a member of the union. There was no allegation of being barred from holding
elective office. In Hackett, the Board found retaliation through the union's attempts to suspend
the charging parties from membership, its filing of a civil lawsuit against them, and its seeking
their lifelong suspension from membership. 	Although the suspension would have prevented
the charging parties from holding elective office, the suspension of membership formed the
basis for the Board's decision. Moreover, the Board agent noted, that CSEA's internal
3The charge actually alleges that Peterson meets privately with the vice president of
human resources and receives confidential information about grievances.
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processes overturned the chapter's initial decision to exclude Peterson and ordered a new
election. 	The Board agent thus dismissed this allegation.
The Board agent also found that Peterson's allegation of a violation of rights under
EERA section 3543 is addressed as a violation of Section 3543.6(b). The Board agent treated
this allegation as a claim of interference with protected rights. 	The Board has been reluctant to
interfere in the internal affairs of an employee organization unless they interfere with the
employee's relationship with the employer. (Barker and Osuna.) There are no facts stated in
the unfair practice charge that demonstrate such an impact. 	Therefore, Peterson's candidacy
for chapter office is not protected conduct and the allegation must be dismissed.
Finally, the Board agent dismissed the allegations pertaining to Section 3543.l(c)
(release time for representatives of an exclusive representative) because this right is owed by
the District to CSEA, not to an individual employee, and Section 3543.2(a) (defines the scope
of representation) because no facts were stated that demonstrate a violation of that provision.
DISCUSSION
PERB has applied the standard for determining employer discrimination to cases
alleging discrimination by the employee organization. 	(CSEA (Peterson); Barker and Osuna.)
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 employer had knowledge of the
exercise of those rights; and (3) the employer 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.)
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Although the timing of the employer'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 (North Sacramento)"), 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 employer's disparate
treatment of the employee (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer 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.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. 	(Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. 	(Ibid.) In a later
decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark; emphasis added; fn. omitted.]
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We agree with the Board agent's conclusion of finding no discrimination by CSEA.
The key issue is that Peterson's exclusion from running for union office is not an adverse
action. Participation in union elections is an internal union affair. The Board traditionally has
refused to interfere in the internal union affairs of an employee organization unless those
affairs impact the member's relationship with his/her employer. 	(Barker and Osuna, citing
Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106;
California School Employees Association and its Shasta College Chapter #381 (Parisot) (1983)
PERB Decision No. 280; California State Employees Association (Roberts) (1993) PERB
Decision No. 1005-S.) Here, Peterson has shown no impact on the employer-employee
relationship. 	Contrast the Board's finding in California Union of Safety Employees (Coelho)
(1994) PERB Decision No. 1032-S (CAUSE), in which the union filed a citizen's complaint
against the charging party prompting the employer to investigate the claim. As a result, in
CAUSE, there was a clear impact on the charging party's relationship with the employer
resulting from the union's conduct.
We also disagree with Peterson's position that exclusion from participation in a union
election is the same as suspension or dismissal from membership, a matter subject to Board
review under EERA section 3543.1 (a).4 (Barker and Osuna; CSEA (Hard).) In Barker and
Osuna. the charging parties were removed from their positions as bargaining unit chairs and
denied reimbursement for their expenses during time spent participating in negotiations. 	The
Board explained that:
This case differs from CSEA (Hard) in that CSD removed Barker
and Osuna from their positions as BUNC chairs and refused to
EERA section 3543.l(a) provides, in pertinent part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal of individuals from membership.
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reimburse them for expenses incurred by individuals in those
positions; but CSEA did not suspend or dismiss them from
membership. As worded, Dills Act section 3515.5 [5] only
provides the Board with authority to determine the
reasonableness of restrictions regarding who may join, and of
rules for the dismissal of individuals from membership. 	(Section
3515.5; CSEA (Hard).)
(Emphasis in original.)
In CSEA (Hard), the union suspended the charging parties during an election period, in
which the charging parties were running for union office. 	The Board found a violation of Dills
Act section 3515.5 based on the union's violation of its own bylaws in its implementation of
summary suspension procedures against the charging parties.
In this case, CSEA's conduct did not pertain to matters subject to Board review, i.e., the
reasonableness of restrictions on who may join and rules for dismissal of union members. 	It is
undisputed that, similar to the facts in Barker and Osuna, CSEA precluded Peterson from
running for union office. 	Peterson has cited no Board precedent that would persuade us
otherwise. As explained by the Board agent, Long and Hackett are also inapposite.
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Peterson further argues that there is a right to self-representation under EERA. 	This
was true prior to amendments to EERA enacted in 2000. Those amendments inexplicably
deleted the provision in EERA section 3543 that employees "shall have the right to represent
themselves individually in their employment relations with the public school employer." In a
recent Board decision, Woodland Joint Unified School District (2004) Decision No. 1722, the
Board interpreted the amendments to eliminate the protected right to self-representation under
EERA.
5The language of the Ralph C. Dills Act (Dills Act) section 3515.5 parallels that of
EERA section 3543.1 (a), stating that the employee organization may establish reasonable
restrictions as to who may join and may make reasonable provisions for the dismissal of
employees from membership. (The Dills Act is codified at sec. 3512, et seq.)
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Therefore, we conclude that Peterson has not stated a prima facie case of discrimination
under EERA and dismiss the charge.
ORDER
The unfair practice charge in Case No. LA-CO-1174-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
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