California Statewide Law Enforcement Association (Edelen and Lewis) (PERB 2088S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SCOTT LIPSCOMB EDELEN,

Charging Party, Case No. SA-CO-434-S

CALIFORNIA STATEWIDE LAW PERB Decision No. 2088-S
ENFORCEMENT ASSOCIATION,
December 31, 2009

Respondent.

CHRIS LEWIS,

Charging Party, Case No. SA-CO-437-S

V.

CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,

Respondent.

Appearances: Chris Lewis and Scott Lipscomb Edelen, on their own behalf; Kasey
Christopher Clark, Chief Counsel, for California Statewide Law Enforcement Association.

Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the California Statewide Law Enforcement
Association (CSLEA) to a proposed decision (attached) of an administrative law judge (ALJ).
The complaint alleged that CSLEA refused to honor the requests of Chris Lewis and Scott
Lipscomb Edelen (Charging Parties) to withdraw from membership with CSLEA after the

expiration of a collective bargaining agreement containing a “maintenance of membership”

clause. The complaint alleges that this conduct interfered with employee rights guaranteed by
the Ralph
C.
Dills Act (Dills Act) in violation
of
sections 3513(i), 3515 and 3519.5(b). 1
The
ALJ found that CSLEA violated the Dills Act by refusing to honor Charging Parties' requests
to withdraw from membership.
We have reviewed the entire record in this case, and find the ALJ' s proposed decision
well-reasoned, adequately supported by the record and in accord with applicable law.
Accordingly, the Board hereby adopts the ALJ's proposed decision as the decision
of
the
Board itself, as supplemented by the discussion below.
CSLEA'S EXCEPTIONS
CSLEA makes four main arguments on appeal:
(1) 	The ALJ incorrectly failed to take administrative notice
of
a portion
of
the
legislative history, attached to CSLEA's closing brief, related to the enactment
of
Dills Act
section 3517.8.
(2) 	At the time
of
the attempted withdrawals from membership, there was a
collective bargaining agreement in place, which, pursuant to Section 3517.8, required the
parties to honor the window period for withdrawal
of
membership as though the agreement had
not yet expired. CS LEA contends that the ALJ erred in relying on California State Employees'
Association (Fry) (1986) PERB Decision No. 604-S (Fry) and California Union
of
Safety
Employees (Trevisanut, et
al)
(1993) PERB Decision No. 1029-S (Trevisanut) to permit
withdrawals from membership upon expiration of the existing memorandum of understanding
(MOU).
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2

(3) 	The proposed decision incorrectly holds that there is no requirement to establish
unlawful intent in order
to
state a claim
of
unlawful interference with employee rights under
the Dills Act.
(4) 	The proposed decision incorrectly determined that the controversy between the
parties was not rendered moot by virtue
of
CSLEA's dismissal
of
Charging Parties from
membership in CSLEA and that the controversy was ripe for adjudication.
DISCUSSION
Consideration
of
Legislative History Materials
This matter was submitted to the ALJ based upon a statement
of
stipulated facts and
exhibits agreed to by the parties at the hearing. No further testimony was taken. Following the
hearing, both parties submitted closing briefs. In its closing brief, CSLEA discussed and
attached an analysis
of
SB 683 by the Assembly, relating to the 2000 legislation that enacted
Dills Act section 3517.8. In his proposed decision, the ALJ did not consider this document
because it was not submitted as a joint amendment to the stipulated facts. 	CSLEA asserts that
the document should have been considered because it was not an exhibit, but rather a portion
of
the legislative history subject to administrative notice.
PERB has a longstanding practice
of
considering legislative history to aid it in
interpreting the statutes it administers. (See, e.g., State
of
California (Department
of
Personnel
Administration) (2009) PERB Decision No. 2017-S; City & County
of
San Francisco (2009)
PERB Decision No. 2041-M.) A legislative committee analysis is not factual, evidentiary
material, but rather is relevant, publicly available information that was considered by the
Legislature in enacting a statute. PERB has the authority to consider such materials
3

sua sponte. Accordingly, we grant
CSLEA's
exception and conclude that we may
consider
the
legislative history
of
SB 683.
Impact
of
the Dills Act Section 3517.8
CSLEA asserts that Dills Act section 3517.82 overturned the Board's decision
in
Travisanut by requiring the parties to treat the expired contract as though it were in full force
and effect. Thus, CSLEA argues, Charging Parties are bound by the window period specified
in the contract, which permitted withdrawals from membership only during the 30 days
prior
to
June 30, 2008. In Travisanut, the Board held that a union member could validly withdraw
from membership following the expiration
of
a MOU containing a maintenance
of
membership
clause because no contract was in force. 	Previously, in Fry, the Board had held that,
where
the
parties agree to extend the terms
of
an expired contract on a day-to-day basis, the right
to
resign from union membership was also extended, such that the members were free to resign
any time after expiration
of
the contract and prior to agreement on a successor contract.
Having reviewed the parties' arguments and the relevant law, we disagree with
CSLEA's interpretation
of
the effect
of
Dills Act section 3517.8. Section 3517.8 requires the
2 The Dills Act section 3517.8(a) provides:
If
a memorandum
of
understanding has expired, and the
Governor and the recognized employee organization have not
agreed to a new memorandum
of
understanding and have not
reached an impasse in negotiations, subject to subdivision (b ), the
parties to the agreement shall continue to give effect to the
provisions
of
the expired memorandum
of
understanding,
including, but not limited to, all provisions that supersede
existing law, any arbitration provisions, any no strike provisions,
any agreements regarding matters covered in the Fair Labor
Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.), and any
provisions covering fair share fee deduction consistent with
Section 3515.7.
4

parties to continue to abide by the terms of the expired contract until a successor agreement or
an impasse in negotiations is reached. 	Section 3517.8 must be read in conjunctionwith
Section 3513(i), which prohibits enforcement of a maintenance of membership provision
during the 30 days prior to the expiration of an MOU. Both Sections 3517.8 and 3513(i),
however, are silent on the question of how the maintenance of membership provision is to be
applied following expiration of the MOU, but before the parties reach a successor agreement or
an impasse in negotiations.3
In essence, CS LEA argues that, if a member did not exercise the right to withdraw from
membership during the term of the contract, the member is precluded from doing so
indefinitely until a successor agreement or impasse is reached.4 We do not read Dills Act
section 3517.8 to so completely extinguish the right of union members to withdraw from
membership following the expiration of a contract. Instead, we view this case as analogous to
the situation in Fry, in which the parties agreed to extend the contract on a day-to-day basis
until a new agreement was reached. By requiring the parties to continue to abide by the terms
of the expired agreement until a new agreement or impasse is reached, Section 3 51 7. 8
effectively imposes the existing contractual terms on the parties on a day-to-day basis. 	As in
Fry, we conclude that a request to withdraw received before the parties enter into a successor
agreement, but while the existing terms are in effect on a day-to-day basis falls within the
Likewise, the legislative history of Section 3517.8 does not indicate that the
legislation was directed at maintenance of membership provisions following contract
expiration.
4 In its brief before the ALJ, CS LEA conceded that it could not prevent an employee
from discontinuing membership for an "unreasonable" length of time, and suggested that if a
collective bargaining agreement remained expired for a three-year period without impasse or a
successor agreement, a member may then be permitted to withdraw from membership.
5

literal meaning of Section 3513(i) and is therefore valid. Accordingly, by refusing to honor
Charging Parties' requests to withdraw after expiration of the MOU, CS LEA violated their
rights under Dills Act sections 3513(i), 3515 and 3519.5(b).
Unlawful Interference
PERB has long held that the test for interference with the rights of employees under the
Dills Act does not require that unlawful intent or motive be established, only that at least slight
harm to employee rights results from the conduct. (See, e.g., Los Angeles Unified School
District (Weightman) (2009) PERB Decision No. 2073 (Weightman).) In State of California
(Department of Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89 and Service Employees International
Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, 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.
Notwithstanding this authority, CSLEA asserts that the test for interference with
employee rights under the Dills Act requires a showing of unlawful intent, citing California
State Employees' Association (Miller) (1990) PERB Decision No. 819-S (Miller). 	In Miller,
an employee sought to withdraw her union membership prior to the window period specified in
the collective bargaining agreement containing a maintenance of membership clause. The
employee filed a charge with PERB, alleging that the union's refusal to permit her to withdraw
her membership violated the duty of fair representation. The Board dismissed the charge,
finding that no facts had been alleged to indicate that the union's actions had a substantial
impact on her relationship with her employer, the maintenance of membership provision had
6

been applied in a discriminatory manner, or any indication that the union had otherwise
interfered with the exercise
of
rights under the Dills Act. Although the Board phrased the test
as
requiring a showing
of
unlawful intent to either interfere with or otherwise discriminate
against an employee because
of
the exercise
of
rights guaranteed by the statute, citing Novato
Unified School District (1982) PERB Decision No. 210 (Novato), the Board in Novato and
subsequent cases has made it clear that, while motive is an element
of
discrimination or
retaliation, motive or intent is not an issue in interference cases, and that the charging party
"need only make a prima facie showing that the respondent's conduct tends to or does result in
harm to employee rights." (Novato; Weightman.) Accordingly, we conclude that the ALJ
correctly stated the applicable standard in this case.
Ripeness
On appeal, CSLEA argues that the ALJ failed to consider its affirmative defense
asserting that this matter was not ripe for review because Charging Parties did not request to
withdraw from membership until approximately four months after expiration
of
the contract.
CSLEA asserts: "In order for the issue to be justiciable, CSLEA must be out
of
a contract for
an extended period
of
time and then deny a request for withdrawal." As indicated previously,
CSLEA conceded that it could not prevent an employee from discontinuing membership for an
unreasonable length of time, and suggested that, after a lapse
of
three years without reaching
impasse or a successor agreement, a member might then be permitted to withdraw from
membership. Until such time, CSLEA asserts, the issue is not ripe for adjudication.
CS LEA has offered no authority for its assertion that withdrawal of membership should
be permitted only after a three-year lapse without a contract. As we have determined,
continued membership in CSLEA can only be required until 30 days prior to the expiration of
7

the contract, and CSLEA was not free to refuse to honor requests to withdraw made after the
expiration but prior to the effective date of a successor agreement. Therefore, we find this
matter was ripe for adjudication. 5
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that California Statewide Law Enforcement Association (CSLEA) violated
the Ralph C. Dills Act (Dills Act), Government Code section 3512 et seq., by refusing to
honor valid requests by State employees to withdraw from membership in violationof
Sections 3513(i), 3515 and 3519(b).
Pursuant to Dills Act section 3514.5(c), it is hereby ORDERED that CSLEA and its
representatives shall:
A. 	CEASE AND DESIST FROM:
Refusing to honor valid requests to withdraw from CSLEA membership;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. 	Honor valid requests to withdraw from CSLEA membership.
2. 	Make Scott Lipscomb Edelen and Chris Lewis whole for the failure to
honor their requests to withdraw from CSLEA membership in November 2008.
3. 	Rescind the dismissals from membership of Scott Lipscomb Edelen and
Chris Lewis, in January and February 2009, and expunge all records thereof.
We agree with the ALJ that this matter was not rendered moot by virtue of the fact
that, after refusing to permit Charging Parties to withdraw from membership, CSLEA
subsequently expelled them from membership.
8

4. 	Within 10 workdays of the service of a final decision in this matter, post
at all work locations where notices to CS LEA employees customarily are posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
CS LEA, indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of 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.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the Office of the General Counsel of the Public Employment Relations Board, or
the General Counsel's designee. CSLEA shall provide reports, in writing, as directed by the
General Counsel or designee. All reports regarding compliance with this Order shall be served
on Scott Lipscomb Edelen and Chris Lewis.
Members McKeag and Wesley joined in this Decision.
9

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CO-434-S, Scott Lipscomb Edelen v.
California Statewide Law Enforcement Association; and Case No. SA-CO-437-S, Chris Lewis
v. California Statewide Law Enforcement Association, in which ali parties had the right to
participate, it has been found that the California Statewide Law Enforcement Association
(CSLEA) violated the Ralph C. Dills Act (Dills Act), Government Code section 3512 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Refusing to honor valid requests to withdraw from CSLEA membership.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. 	Honor valid requests to withdraw from CSLEA membership.
2. 	Make Scott Lipscomb Edelen and Chris Lewis whole for the failure to
honor their requests to withdraw from CSLEA membership in November 2008.
3. 	Rescind the dismissals from membership of Scott Lipscomb Edelen
and Chris Lewis, in January and February 2009, and expunge all records thereof.
Dated: --------- California Statewide Law Enforcement
Association
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SCOTT LIPSCOMB EDELEN,
Charging Party,
V.
CALIFORNIA STA TE WIDE LAW
ENFORCEMENT ASSOCIATION,
Respondent.
CHRIS LEWIS,
Charging Party,
V.
CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,
Respondent.
PROPOSED DECISION
(June 25, 2009)
TTNFATR
PRAf'TTf'F
CASE NO. SA-CO-434-S
UNFAIR PRACTICE
CASE NO. SA-CO-437-S
Appearances: Scott Lipscomb Edelen and Chris Lewis on their own behalf; Kasey Christopher
Clark, Chief Counsel, and Lawrence J. Friedman, Senior Legal Counsel, for California
Statewide Law Enforcement Association.
Before Bernard McMonigle, Chief Administrative Law Judge.
PROCEDURAL HISTORY
In these consolidated cases, two employees allege that their union improperly refused to
permit them to withdraw from membership.
On November 25, 2008, Scott Lipscomb Edelen (Edelen) filed an unfair practice charge
against the California Statewide Law Enforcement Association (CSLEA or Association). 	On
December 8, 2008, the Office of the General Counsel for the Public Employment Relations
Board (PERB or Board) issued a complaint alleging that CSLEA had violated the Ralph C.

Dills Act (Dills Act or Act) 1 when it refused to honor Edelen's November 10, 2008, request to
withdraw from membership and become a fair share payer. 	On December 24, 2008,
CSLEA
answered the complaint, denying any violation
of
the Dills Act and asserting affirmative
defenses.
On January 8, 2009, Chris Lewis (Lewis) also filed an unfair practice charge against
CSLEA. A similar PERB complaint issued on January 20, 2009, regarding the November 13,
2008, denial
of
his request to withdraw from membership. On January 22, 2009, CSLEA filed
an answer to the Lewis complaint, again denying any violation
of
the Act and stating
affirmative defenses.
On January 27, 2009, a Board agent conducted an informal settlement conference that
included both matters. However, no agreement was reached.
The two cases were consolidated for a formal hearing held on April 21, 2009.
	At
the
hearing the parties agreed to a stipulation
of
facts. 	With the receipt
of
briefs on May 21, 2009,
the matter was submitted for proposed decision.
FINDINGS OF FACT
The parties to this proceeding stipulated that the following facts are true and correct:2
1.	
On January
1,
2002, Charging Party Lewis voluntarily chose to become a
member
of
California Statewide Law Enforcement Association (CSLEA).
2. 	On July 1, 2006, Charging Party Edelen voluntarily chose to become a member
of
CSLEl~~-
1 The Dills Act is codified at Government Code section 3 512 et seq.
2 With their briefs in this matter, both parties submitted exhibits to supplement the
factual stipulation. Because they were not joint amendments to the stipulated facts, they were
not considered for this proposed decision.
2

w
3.	
Pursuant to Article 3
.1
A 1
of
the Agreement Between the State
of
California and
CSLEA covering Bargaining Unit 7, Protective Services and Public Safety, effective
July
1,
2005 through June 30, 2007, a thirty (30) day window period from June
1,
2007 to June 30,
2007, existed which permitted CS LEA members to withdraw from membership.
4 	Neither Edelen nor Lewis chose to withdraw from CSLEA membership during
the June 2007 window period.
5.	
Pursuant to Article
3.lAl of
the Agreement Between the State
of
California and
CSLEA covering Bargaining Unit 7, Protective Services and Public Safety, effective July
1,
2005 through June 30, 2008, a thirty (30) day window period from June
1,
2008 to June 30,
2008, existed which permitted CSLEA members to withdraw from membership.
6.	
Neither Edelen nor Lewis chose to withdraw from CSLEA membership during
the June 2008 window period.
7.	
The most recent Agreement Between the State
of
California and CS LEA
covering Bargaining Unit 7, Protective Services and Public Safety expired by its terms
on
June
30, 2008.
8. 	In May 2008, the Department
of
Personnel Administration (DPA) and CS LEA
initiated negotiations for a successor agreement. To date, DPA and CSLEA continue to engage
in negotiations and neither party has declared impasse.
9. 	On November 7, 2008, Edelen wrote CSLEA and requested to discontinue
membership. On November 10, 2008, CSLEA Director
of
Member Services wrote Edelen and
denied his request as untimely as it was not within the thirty (30) day window period prior to
the expiration of the last collective bargaining agreement.
3

10. 	On November 10, 2008, Lewis wrote CSLEA and requested to discontinue
membership. On November 13, 2008, CSLEA Director of Member Services wrote Lewis and
denied his request as untimely as it was not within the thirty (30) day window period prior to
the expiration of the last collective bargaining agreement.
11. 	Effective January 1, 2009, Edelen was expelled from CSLEA membership.
12. 	Effective February 1, 2009, Lewis was expelled from CSLEA membership.
ISSUE
Did CSLEA violate the Dills Act when it refused to honor Edelen's and Lewis's
requests to withdraw from membership?
CONCLUSIONS OF LAW
The Dills Act permits a union that has been recognized as exclusive representative for a
bargaining unit to negotiate with the State of California (State) for union security provisions in
the form of fair share fees or maintenance of membership. The most recent memorandum of
agreement (MOU) between CSLEA and the state employer, which expired June 30, 2008,
contained both. The maintenance of membership provision is at issue here.
"Maintenance of membership" means that all employees who
voluntarily are, or who voluntarily become, members of a
recognized employee organization shall remain members of that
employee organization in good standing for a period as agreed to
by the parties pursuant to a memorandum of understanding,
commencing with the effective date of the memorandum of
understanding. A maintenance of membership provision shall not
apply to any employee who within 30 days prior to the expiration
of the memorandum of understanding withdraws from the
employee organization by sending a signed withdrawal letter to
the employee organization and a copy to the Controller's office.
4

Thus, for 30 days prior to the expiration date for an MOU between a union and the
State, employees have a 30 day window period to withdraw from union membership.3
PERB has addressed the right of an employee to withdraw from membership when the
MOU containing a maintenance of membership agreement has expired but no successor
agreement is in place.
In California State Employees' Association (Fry) (1986) PERB Decision No. 604-S
(Fry), the Board reviewed a situation wherein an employee sought to resign from membership
while a union and the State extended the expired agreement on a day-to-day basis during
negotiations. The Board found that a request for withdrawal made after the 30 day window
period, but before negotiations for the successor MOU conclude, "falls literally within the last
30 days prior to the expiration date of the agreement." The Board also determined that the
Dills Act prohibits parties from extending an MOU without extending the time for withdrawal
from membership.
In California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision
No. 1029-S (Trevisanut), both the MOU and an agreed extension of the MOU expired prior to
agreement on a successor MOU. The Board found that all withdrav:als from membership after
the MOU expired were valid. (Ibid.) Considering the post-extension withdrawals, the Board
found that maintenance of membership provisions are creatures of a valid contract, stating "no
contract was in force and thus no maintenance of membership agreement was in force." 	(Ibid.)
Here, Edelen and Lewis submitted their withdrawals from membership during a time
when "no contract was in force." Accordingly, the application of Trevisanut results in a
Under the subject MOU, an employee that withdraws from membership becomes a
fair share payer required to financially support the employee organization.
5

determination that CSLEA unlawfully interfered with employee rights to withdraw from union
membership. (Trevisanut, supra, PERB Decision No. 1029-S.)
CSLEA contends that Fry and Trevisanut were nullified by the Legislature's later
addition of section 3517.8(a) to the Dills Act.4 (Fry, supra, PERB Decision No. 604-S;
Trevisanut, supra, PERB Decision No. 1029-S.) It states:
If a memorandum of understanding has expired, and the
Governor and the recognized employee organization have not
agreed to a new memorandum of understanding and have not
reached an impasse in negotiations, subject to subdivision (b ), the
parties to the agreement shall continue to give effect to the
provisions of the expired memorandum of understanding,
including, but not limited to, all provisions that supersede
existing law, any arbitration provisions, any no strike provisions,
any agreements regarding matters covered in the Fair Labor
Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.), and any
provisions covering fair share fee deduction consistent with
Section 3515.7.
According to the Association, "DP A and CSLEA are now required to give effect to the
provisions of the expired Agreement until impasse or a successor agreement is reached" and
the requests to withdraw from membership at issue here were untimely.
However, CSLEA misinterprets section 3517.8(a). It does not create a successor MOU.
It requires that the status quo regarding terms and conditions of employment be maintained
until the parties reach agreement or impasse. (State of California (Board of Prison Terms)
(2005) PERB Decision No. 1758-S.) In both Fry and Trevisanut, the Board determined that
the status quo for a maintenance of membership provision, at MOU expiration, permits
withdrawals from union membership. (Fry, supra, PERB Decision No. 604-S; Trevisanut,
supra, PERB Decision No. 1029-S.)
Section 3517.8(a) was enacted in 2000.
6

The Board's conclusions in Fry and Trevisanut continue to be supported by plain
language of the Act. (Fry, supra, PERB Decision No. 604-S; Trevisanut, supra, PERB
Decision No. 1029-S.) The limitations on a maintenance of membership agreement were left
unchanged when the Legislature amended the Act in 2000. The Section 3513(i) remained
intact; employees Yvho vol11ntarily become members of a recognized 11nion shall remain
members for the duration of the MOU. Continued membership can only be required from the
"effective date" to "30 days prior" to the expiration of the MOU. (§ 3513(i).)
Thus, a maintenance of membership provision continues only for the term of a valid
contract. During the last 30 days, and continuing until a successor agreement becomes
effective, membership can be withdrawn.
CSLEA also argues that Edelen and Lewis cannot prevail here because they have not
established an unlawful intent to interfere with their rights under the Dills Act. However,
the test for whether a respondent has interfered with the rights of employees under the Dills
Act does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. In State of California (Department of
District (1979) PERB Decision No. 89 and Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106, 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 res1..1lt in some harm to employee rights granted
under EERA.
Under the above-described test, a violation may only be found if the Dills Act provides
the claimed rights. 	Section 3 515 of the Act guarantees the right of an employee to refuse to
join or participate in the activities of an employee organization. Section 3513(i) guarantees
7

that a union member may withdraw from membership at the expiration of an MOU containing
a maintenance of membership agreement. Here, CS LEA interfered with those rights when it
refused to honor the requests for withdrawal.
CS LEA also contends that this matter is moot because subsequent to the denial of their
requests for \Vithdra\val, Edelen and Le\vis \Vere expelled from membership. However, the
Board has determined that an unfair practice case is not moot "when any material question
concerning an,alleged violation of the charging party's rights remains to be answered." The
fact that conditions have changed and the original relief sought need not be granted "does not
lead to a contrary result." (California School Employees Association and its Shasta College
Chapter #381 (Parisot) (1983) PERB Decision No. 280a.)
The central issue in this matter is whether the refusal to honor the withdrawal requests
was lawful at a time when Edelen and Lewis were CSLEA members. The essential nature of
the PERB complaint remains intact. This case is not moot.
For the reasons stated, I find that by refusing to honor the November 2008 request to
withdraw from membership, CSLEA interfered with employee rights in violation of
Government Code sections 3513(i), 3515 and 3519.5(b).
REMEDY
Pursuant to section 3514.S(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.
It has been found that CSLEA unlawfully interfered with employee rights when it
refused to honor valid requests to withdraw from membership, in violation of Dills Act
8

sections 3513(i), 3515 and 3519.5(b). It is appropriate that CSLEA be ordered to cease and
desist from refusing to honor valid requests for withdrawal from membership.
It is also appropriate that the charging parties be reimbursed in the amount of the
money wrongfully withdrawn from their paychecks, with interest at 7 percent.
,A~dditionally, because the membership withdrnwals of Edelen and Lewis should have
been honored in November 2008, their later dismissals from membership, in January and
February 2009, are to be rescinded and all records thereof expunged.
It is also appropriate that CSLEA be required to post a notice incorporating the terms of
the order at all work locations where notices to employees are customarily posted. Posting of
such notice, signed by an authorized agent of CSLEA, will provide employees with notice that
CSLEA has acted in an unlawful manner, is being required to cease and desist from this
activity, and will comply with the order. It effectuates the purposes of the Dills Act that
employees are informed of the resolution of this controversy and CSLEA's readiness to
comply with the ordered remedy. (State of California (Departments of Personnel
Administration, Banking, Transportation, Water Resources and Board of Equalization) (1998)
PERB Decision No. 1279-S.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that CSLEA violated the Ralph C. Dills Act (Dills Act), Government Code
section 3512, et seq. by refusing to honor valid requests by State employees to withdraw from
membership in violation of Government Code sections 3513(i), 3515 and 3519.5(b).
Pursuant to section 3514.5(c) of the Government Code, it is hereby ORDERED that
CSLEA and its representatives shall:
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A. 	CEASE AND DESIST FROM:
1. 	Refusing to honor valid requests to withdraw from Association
membership.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Honor valid requests to withdraw from Association membership.
2. 	Make Scott Lipscomb Edelen and Chris Lewis whole for the failure to
honor their requests to withdraw from Association membership in November 2008.
3. 	Rescind the dismissals from membership of Scott Lipscomb Edelen and
Chris Lewis, in January and February 2009, and expunge all records thereof.
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:
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
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transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 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).)
Bernard McMonigle
Chief Administrative Law Judge
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