Chaffey Joint Union High School District (Fleck) (PERB 0202E)

)
)
)
)
)
)
)
)
)
)
)
)
)
)
_____________________ )
1
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE OF CALIFORNIA
FRED 	S. 	FLECK,
Charging 	Party,
v .	V •
CHAFFEY 	JOINT 	UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent,
ASSOCIATED 	CHAFFEY TEACHERS, 	CTA/NEA,
Joined 	Party.
FRED S. FLECK,
Case 	No. 	LA-CE-264
PERB 	Decision 	No. 202
March 	26, 	1982
Case No. LA-CE-264
Appearances: 	Anne 	E. 	Fragasso, 	Attorney 	for 	Fred 	s. 	Fleck;
Sandra 	H. 	Paisley 	(California 	Teachers Association) 	for
Associated 	Chaffey 	Teachers, 	CTA/NEA, 	Joined 	Party.
Appearances: Anne E. Fragasso, Attorney for Fred S. Fleck;
Before 	Gluck, 	Chairperson; 	Moore, 	and 	Tovar, 	Members.	Before Gluck, Chairperson; Moore, and Tovar, Members.
DECISION	DECISION
The 	Associated 	Chaffey 	Teachers, 	CTA/NEA 	(Association)
excepts 	to 	the 	hearing 	officer's 	proposed 	finding 	that 	an
individual 	has 	an 	indefeasible 	right 	under 	the 	Educational
Employment 	Relations 	Act 	(EERA)l 	to 	be 	represented 	during 	a
negotiated 	grievance 	proceeding 	by 	a 	representative 	of 	the
employee's 	choice 	so 	long 	as 	that 	person 	is 	not 	an 	agent 	of 	an
employee 	organization 	other 	than 	the 	exclusive 	representative.
The Associated Chaffey Teachers, CTA/NEA (Association)
JlEERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	in 	this 	decision 	are 	to 	the
Government 	Code, 	unless 	otherwise 	noted.
EERA is codified at Government Code section 3540 et
1
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Charging Party,
CHAFFEY JOINT UNION HIGH SCHOOL
DISTRICT,
Respondent,
ASSOCIATED CHAFFEY TEACHERS, CTA/NEA,
Joined Party.
PERB Decision No. 202
March 26, 1982
Sandra H. Paisley (California Teachers Association) for
Associated Chaffey Teachers, CTA/NEA, Joined Party.
excepts to the hearing officer's proposed finding that an
individual has an indefeasible right under the Educational
Employment Relations Act (EERA) I to be represented during a
negotiated grievance proceeding by a representative of the
employee's choice so long as that person is not an agent of an
employee organization other than the exclusive representative.
seq. All statutory references in this decision are to the
Government Code, unless otherwise noted.

FACTS
2
FACTS
The
	Association
	is
	the
	exclusive
	representative
	of
	the
certificated
	employees
	of 	the
	Chaffey
	Joint
	Union High
	School
District 	(District).
	The
	negotiated
	collective
	bargaining
agreement
	for
	1978-1979
	contained
	the 	following
	limitary
language
	in
	its
	grievance 	procedure:
The Association is the exclusive representative of the
Article
	5,
	section
	(b)
(2).
	The
	grievant
	has
the
	right
	to
	be
	represented
	by
	one
authorized
	representative 	selected
	by
	the
association
	at
	any
	personal 	conference
	or
formal
	hearing 	requested
	by
	the
	grievant,
	as
provided
	herein,
	beyond
	the 	informal
	level.
Article 5, section (b) (2) . The grievant has
Fred
	s.
	Fleck,
	a
	teacher
	and
	a 	member
	of
	the
	American
Federation
	of
	Teachers,
	an 	employee
	organization
	not
	the
exclusive
	representative
	in
	the
	District, 	filed
	a
	grievance
under
	the
	contract
	procedure
	and
	sought
	to
	be
	represented
	by
	an
individual
	who
	had
	not
	been 	approved
	by
	the 	Association.
Relying
	solely
	upon
	the 	language
	of
	Article
	5, 	the
	District
refused 	to
	process 	the
	grievance. t
2
Fred S. Fleck, a teacher and a member of the American
Fleck, 	thereupon, 	charged 	the
	District
	with
	violatingsections
	3543 	and
	3543.S(a)
	and ERA. 3 At a	
(d)
	of
	EERA.3	
At
	a
prehearing 	conference, 	the 	Association 	requested
	and
	was
	given
permission 	to
	be
	joined
	as
	a
	respondent.
Fleck, thereupon, charged the District with violating
21t
	was
	never 	contended	
by	
either
	the
	District
	or 	the
Association
	that 	Fleck's 	representative
	was
	an
	agent 	of
	a
	rival
employee
	organization.
	See
	Mount
	Diablo 	Unified 	School
District, 	et 	al
	(12/30/77)
	EERB
	Decision
	No.
	44.
	Prior 	to
January 	1,
	1978,
	PERB
	was 	known
	as
	the 	Educational
	Employment
Relations
	Board.
2It was never contended by either the District or the
3
section
	3543
	states:	
3
Public 	school
	employees
	shall
	have
	the
	rightto
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	ofemployer-employee
	relations. 	Public 	schoolemployees
	shall 	also
	have
	the
	right 	to
refuse 	to 	join 	or
	participate 	in 	the
activities
	of 	employee
	organizations
	and
Public school employees shall have the right
2
certificated employees of the Chaffey Joint Union High School
District (District) . The negotiated collective bargaining
agreement for 1978-1979 contained the following limitary
language in its grievance procedure:
the right to be represented by one
authorized representative selected by the
association at any personal conference or
formal hearing requested by the grievant, as
provided herein, beyond the informal level.
Federation of Teachers, an employee organization not the
exclusive representative in the District, filed a grievance
under the contract procedure and sought to be represented by an
individual who had not been approved by the Association.
Relying solely upon the language of Article 5,2 the Distric
refused to process the grievance.
sections 3543 and 3543.5 (a) and (d) of E
prehearing conference, the Association requested and was given
permission to be joined as a respondent.
Association that Fleck's representative was an agent of a rival
employee organization. See Mount Diablo Unified School
District, et al (12/30/77) EERB Decision No. 44. Prior to
January 1, 1978, PERB was known as the Educational Employment
Relations Board.
Section 3543 states:
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. Public school
employees shall also have the right to
refuse to join or participate in the
activities of employee organizations and

3
In
	his
	proposed
	decision,
	the 	hearing
	officer
	found
	that
section
	3543
	grants 	to
	the
	employee
	the
	right
	to
	file
In his proposed decision, the hearing officer found that
shall
	have
	the
	right
	to 	represent
	themselves
individually
	in
	their
	employment
	relations
with 	the
	public
	school
	employer,
	except
	that
once
	the
	employees
	in
	an
	appropriate 	unit
have
	selected
	an
	exclusive
	representative
and
	it
	has
	been
	recognized
	pursuant 	to
Section
	3544.1 	or
	certified
	pursuant 	to
Section
	3544.7,
	no
	employee
	in
	that 	unit
	may
meet
	and
	negotiate
	with 	the
	public
	school
employer.
shall have the right to represent themselves
Any
	employee
	may
	at
	any
	time
	presentgrievances 	to
	his
	employer,
	and
	have
	such
grievances 	adjusted,
	without 	the
intervention
	of 	the 	exclusive
representative,
	as 	long 	as
	the 	adjustment
	is
reached
	prior
	to
	arbitration
	pursuant 	to
Sections
	3548.5, 	3548.6, 	3548.7,
	and
	3548.8
and
	the 	adjustment
	is
	not
	inconsistent
	with
the
	terms
	of
	a
	written
	agreement
	then 	in
effect;
	provided
	that
	the
	public
	school
employer
	shall
	not 	agree 	to
	a
	resolution
	of
the 	grievance
	until
	the
	exclusive
representative
	has
	received
	a
	copy
	of 	the
grievance
	and
	the 	proposed
	resolution
	and
has 	been
	given 	the 	opportunity 	to
	fi
	a
response.
Any employee may at any time present
Section
	3543.5
	provides, 	in 	relevant 	part:	Section 3543.5 provides, in relevant part:
It
	shall
	be
	unlawful 	for
	a
	public 	school
employer
	to:
It shall be unlawful for a public school
(a)
	I
	or
	reaten 	to
	r
	isals
on 	employees,
	to 	discriminate
	or
	threaten 	to
discriminate 	against
	,
	or 	rwise
to
	interfere
	with;
	restrain,
	or 	coerceemployees 	because 	of
	their 	exercise
rights
	guaranteed
	this 	chapter.
(a)
(d) 	Dominate 	or
	interfere
	with 	therrnation 	or 	administration
	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to
	it,
	or 	in 	any 	way
	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
(d)
section 3543 grants to the employee the right to file
individually in their employment relations
with the public school employer, except that
once the employees in an appropriate unit
have selected an exclusive representative
and it has been recognized pursuant to
Section 3544.1 or certified pursuant to
Section 3544.7, no employee in that unit may
meet and negotiate with the public school
employer .
grievances to his employer, and have such
grievances adjusted, without the
intervention of the exclusive
representative, as long as the adjustment is
reached prior to arbitration pursuant to
Sections 3548.5, 3548.6, 3548.7, and 3548.8
and the adjustment is not inconsistent with
the terms of a written agreement then in
effect; provided that the public school
employer shall not agree to a resolution of
the grievance until the exclusive
representative has received a copy of the
grievance and the proposed resolution and
has been given the opportunity to file a
response.
Section 3543.5 provides, in relevant part:	
Section
	3543.5
	provides, 	in 	relevant 	part:
employer to:
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.
Dominate or interfere with the
formation or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another.

4
grievances 	independent 	of 	the 	exclusive 	representative 	and 	to
be 	represented 	by 	a 	person 	of 	his 	own 	choosing, 	with 	the
exception 	that 	he 	cannot 	be 	represented 	by 	an 	agent 	of 	a
nonexclusive 	representative. 	With 	this 	one 	limitation, 	he
found 	that 	the 	right 	was 	absolute 	and 	that 	the 	exclusive
representative 	and 	the 	District 	could 	not 	circumscribe 	the
right 	by mutual 	agreement. 	Accordingly, 	he 	found 	the 	District
to 	have 	violated 	section 	3543.S(a) 	by 	its 	refusal 	to 	hear
Fleck's 	grievance 	and 	ordered 	both 	the 	District 	and 	the
Association 	to 	cease 	and 	desist 	from 	denying 	any 	employee 	this
right. 	The 	3543.S(d) 	charge 	was 	dismissed 	for 	lack 	of 	evidence
and 	no 	exception 	was 	filed 	by 	the 	charging 	party.
grievances independent of the exclusive representative and to
DISCUSSION	DISCUSSION
Section 	3543 	provides 	that 	individual 	employees 	have 	the
right 	to 	present 	grievances 	and 	to 	have 	such 	grievances
adjusted. 	A limitation 	on 	an 	employee's 	choice 	of
representative 	would 	be 	permissible 	only 	if 	the 	right 	to
represent 	one's 	self 	were 	not 	absolute. 	If 	the 	right 	were
found 	to 	be 	defeasible, 	the 	District 	and 	Association 	would 	be
permitted 	to 	negotiate 	a 	contract 	provision 	expressing
conditions 	under 	which 	employees 	would 	be 	entitled 	to 	such
self-representation.
Section 3543 provides that individual employees have the
The 	hearing 	officer's 	conclusion 	that 	the 	right 	of
self-representation 	is 	absolute 	is 	based 	on 	his 	finding 	of 	a
distinction 	between 	the 	effort 	of 	an 	exclusive 	representative
to 	waive 	an 	employee's 	individual 	right 	and 	its 	power 	to 	waive
the 	collective 	rights 	of 	those 	employees 	it 	represents. 	We	We
find 	the 	issue 	here 	rests 	on 	other 	considerations.
The hearing officer's conclusion that the right of
Section 	3543 	is 	virtually 	identical 	to 	section 	9(a) 	of 	the
National 	Labor 	Relations 	Act 	(NLRA).4l 	Federal 	courts 	have
construed
Section 3543 is virtually identical to section 9 (a) of the
4section 	9(a) 	states:	Asection 9 (a) states:
Representatives 	designated 	or 	selected 	for
the 	purposes 	of 	collective 	bargaining 	by 	the
majority 	of 	the 	employees 	in 	a 	unit
appropriate 	for 	such 	purposes, 	shall 	be 	the
exclusive 	representatives 	of 	all 	the
employees 	in 	such 	unit 	for 	the 	purposes 	of
collective 	bargaining 	in 	respect 	to 	rates 	of
pay, 	wages, 	hours 	of 	employment, 	or 	other
conditions 	of 	employment: 	Provided, 	that
Representatives designated or selected for
4
be represented by a person of his own choosing, with the
exception that he cannot be represented by an agent of a
nonexclusive representative. With this one limitation, he
found that the right was absolute and that the exclusive
representative and the District could not circumscribe the
right by mutual agreement. Accordingly, he found the District
to have violated section 3543.5 (a) by its refusal to hear
Fleck's grievance and ordered both the District and the
Association to cease and desist from denying any employee this
right. The 3543.5(d) charge was dismissed for lack of evidence
and no exception was filed by the charging party.
right to present grievances and to have such grievances
adjusted. A limitation on an employee's choice of
representative would be permissible only if the right to
represent one's self were not absolute. If the right were
found to be defeasible, the District and Association would be
permitted to negotiate a contract provision expressing
conditions under which employees would be entitled to such
self-representation.
self-representation is absolute is based on his finding of a
distinction between the effort of an exclusive representative
to waive an employee's individual right and its power to waive
the collective rights of those employees it represents.
find the issue here rests on other considerations.
National Labor Relations Act (NLRA) . 4 Federa courts have
construed
the purposes of collective bargaining by the
majority of the employees in a unit
appropriate for such purposes, shall be the
exclusive representatives of all the
employees in such unit for the purposes of
collective bargaining in respect to rates of
pay, wages, hours of employment, or other
conditions of employment: Provided, that

this
	section
	with
	its
	provisos
	as
	merely
	providing
	an
	employer
who
	agrees
	to
	hear
	an
	individual
	grievance
	with
	an
	affirmative
defense
	against
	a
	charge
	that
	it
	has
	thereby
	bypassed
	the
exclusive
	representative
	on
	matters 	of
	wages,
	hours 	or
	terms
and
	conditions
	of
	employment.
	The
	section,
	according
	to 	the
court,
	does
	not
	vest
	in 	the
	employee
	an
	absolute
	right
	topresent
	and
	have
	such
	grievances
	adjusted.
	Black-Clawson
	v.
Machinists
	(1962,
	2nd
	Cir.)
	313
	F.2d
	179
	[52
	LRRM
	2038],
	cited
with 	approval
	by 	Supreme
	Court
	in
	Emporium-Capwell
	v. 	Western
Addition
	Community
Organization
	(1975)
	420
	U.S.
	50
	[88
	LRRM
2660].
	The
	Court
	relied,
	in
	a
	substantial
	measure,
	on
	the
principle 	that
	provisos
	rarely
	grant 	absolute
	rights.
this section with its provisos as merely providing an employer
5
Section
	3543
	differs
	somewhat
	with
	respect 	to
	the
	use
	ofproviso
	language.
	Whereas
	the
	federal 	act
	employs
	the
	term
twice,
	EERA
	does 	so
	only
	once.
	The
	question
	arises
	as
	to
whether
	the
	absence
	of
	one
	proviso 	in
	section
	3543
	requires
	a
different 	interpretation
	than
	that
	given 	the
	federal
	law. 	We	
We
think 	not.
Section 3543 differs somewhat with respect to the use of
The
	first
	paragraph 	of
	section
	3543
	parallels
	the
	NLRA
	inproviding 	for 	the
	right
	of
	employees
	to
	choose
	an
	exclusive
representative 	organization
	for 	the 	purpose 	of
	representation
"on
	all
	matters
	of
	employer-employee
	relations." 	This	
This
paragraph
	is
	followed
	by
	a
	statement;
	that
The first paragraph of section 3543 parallels the NLRA in
any 	employee
	may,
	at
	any
	time,
	presentgrievances 	without 	the
	intervention
	of 	the
exclusive 	representative
	•..
any employee may, at any time, present
language
	identical
	to 	that
	of
	section
	9(a)
(1)
	except 	for 	the
absence
	of 	the
	prefatory
	words
	"provided
	that."
language identical to that of section 9 (a) (1) except for the
any
	individual
	employee
	or
	a
	group
	of
employees
	shall
	have
	the
	right 	at
	any
	time
to 	present 	grievances 	to
	their
	employer
	and
to
	have 	such
	grievances 	adjusted, 	without
the 	intervention 	of 	the 	bargaining
representative,
	as 	long 	as 	the 	adjustment
	is
not 	inconsistent
	with 	the 	terms 	of
	a
collective
	bargaining 	contract
	or 	agreement
then 	in
	effect:
	Provided
	further,
	That	
the
bargaining 	representative
	has 	been 	given
opportunity 	to
	be
	present 	at
	such 	adjustment.
any individual employee or a group of
5
who agrees to hear an individual grievance with an affirmative
defense against a charge that it has thereby bypassed the
exclusive representative on matters of wages, hours or terms
and conditions of employment. The section, according to the
court, does not vest in the employee an absolute right to
present and have such grievances adjusted. Black-Clawson v.
Machinists (1962, 2nd Cir .) 313 F. 2d 179 [52 LRRM 2038], cited
with approval by Supreme Court in Emporium-Capwell v. Western
Addition Community Organization (1975) 420 U.S. 50 [88 LRRM
2660]. The Court relied, in a substantial measure, on the
principle that provisos rarely grant absolute rights.
proviso language. Whereas the federal act employs the term
twice, EERA does so only once. 	The question arises as to
whether the absence of one proviso in section 3543 requires a
different interpretation than that given the federal law.
think not.
providing for the right of employees to choose an exclusive
representative organization for the purpose of representation
"on all matters of employer-employee relations."
paragraph is followed by a statement, that
grievances without the intervention of the
exclusive representative
absence of the prefatory words "provided that."
employees shall have the right at any time
to present grievances to their employer and
to have such grievances adjusted, without
the intervention of the bargaining
representative, as long as the adjustment is
not inconsistent with the terms of a
collective bargaining contract or agreement
then in effect: Provided further, That the
bargaining representative has been given
opportunity to be present at such adjustment.

A
proviso
	qualifies
	those
	provisions
	which
	precede
	it.
Black-Clawson,
	supra;
	Cox,
	Rights
	Under
	a
	Labor 	Agreement
(1956)
	69
	Harv.L.Rev.
	601, 	624.
	It
	follows
	that
	the
	effect
	of
this
	latter
	language
	is
	similar
	to
	that
	of
	a
	proviso,
	since
	it
qualifies
	the
	exclusive
	representative's 	right
	to
	insist 	that
it,
	and
	only
	it,
	may
	represent
	employees
	on
	hours,
	wages
	and
terms
	of
	conditions
	of
	employment.
	This
	limitation
	on
	the
exclusive
	representative's 	right
	leads 	to
	the 	conclusion
	that
this
	portion
	of 	the
	section
	is
	intended
	to 	carry
	the
	same
meaning
	as
	the
	parallel
	section
	of 	the
	NLRA
	and,
	therefore,
asserts
	only
	an
	affirmative
	defense
	available
	to 	the
	employer.
A proviso qualifies those provisions which precede it.
The
	explicit
	proviso 	in
	section
	3543
	is
	further
	evidence
that
	the
	employee's
	right 	is 	qualified.
	It
	expressly
	requires
the
	employer
	to
	forward
	a
	copy
	of 	the
	proposed
	resolution 	to
the 	exclusive
	representative
	and
	to
	allow 	the
	representative
time
	to
	respond.
	On
	its
	face,
	this
	provision
	limits
	theemployee's
	right
	to
	have
	his
	grievance
	adjusted
	solely
	through
his
	own
	efforts
	and
	guarantees 	the
	exclusive
	representative'sright
	to 	intervene.
	The
	second
	proviso 	in
	section
	9(a)
	isvirtually 	identical.
	Taken
	in
	its
	entirety
	then,
	any
differences
	between
	section
	3543
	and
	9(a)
	become 	more
	semanticthan
	substantive.
The explicit proviso in section 3543 is further evidence
We
	do
	not 	reach
	this
	conclusion
	solely
	on
	the
	basis 	of
	a
word-by-word 	comparison
	of 	the
	two
	provisions. 	The California	
The
	California
Supreme
	Court
	has
	pointed 	out
	that
	where
	the
	provisions 	of
state
	acts
	are
	identical
	or
	substantially
	similar 	to 	those 	of
existing 	federal
	statutes,
	the 	inference
	may
	be 	drawn
	that
	the
State 	Legislature
	intended
	that
	the
	state
	laws
	be
	interpreted
and
	applied 	in 	accordance 	with
	federal 	precedent.
	Fire
Fighters
	Union
	v. 	City 	of Vallejo
	(1974) 	12
	Cal.3d
	608
	[87
	LRRM
2453] .
We do not reach this conclusion solely on the basis of a
There
	are 	strong 	policy 	considerations
	here
	which
	supportthe 	conclusion
	that
	we
	have
	reached 	as
	to 	the
	meaning
	of
section
	3543.
	A
	fundamental 	purpose 	for 	the 	enactment
	of
	EERA
is
	the
	improvement
	of 	personnel
	management 	and-	
employer-employee
	relations.
There are strong policy considerations here which support
5	
To
	that
	end,
	EERA
	has 	provided 	for
	a	To that end, EERA has provided for a
5
5section
	3540
	provides, 	in 	pertinent 	part:	section 3540 provides, in pertinent part:
It
	is
	the 	purpose 	of
	this
	chapter 	to
	promote
the
	improvement 	of 	personnel
	management 	and
employer-employee
	relations 	within 	the 	publicschool 	systems 	in 	the 	State 	of 	California
	by
providing
	a
	uniform 	basis 	for 	recognizing 	the
right 	of 	public 	school 	employees 	to 	join
It is the purpose of this chapter to promote
66
Black-Clawson, supra; Cox, Rights Under a Labor Agreement
(1956) 69 Harv. L. Rev. 601, 624. It follows that the effect of
this latter language is similar to that of a proviso, since it
qualifies the exclusive representative's right to insist that
it, and only it, may represent employees on hours, wages and
terms of conditions of employment. This limitation on the
exclusive representative's right leads to the conclusion that
this portion of the section is intended to carry the same
meaning as the parallel section of the NLRA and, therefore,
asserts only an affirmative defense available to the employer.
that the employee's right is qualified. It expressly requires
the employer to forward a copy of the proposed resolution to
the exclusive representative and to allow the representative
time to respond. On its face, this provision limits the
employee's right to have his grievance adjusted solely through
his own efforts and guarantees the exclusive representative's
right to intervene. 	The second proviso in section 9(a) is
virtually identical. Taken in its entirety then, any
differences between section 3543 and 9 (a) become more semantic
than substantive.
word-by-word comparison of the two provisions.
Supreme Court has pointed out that where the provisions of
state acts are identical or substantially similar to those of
existing federal statutes, the inference may be drawn that the
State Legislature intended that the state laws be interpreted
and applied in accordance with federal precedent. Fire
Fighters Union v. City of Vallejo (1974) 12 Cal. 3d 608 [87 LRRM
2453"_.
the conclusion that we have reached as to the meaning of
section 3543. A fundamental purpose for the enactment of EERA
is the improvement of personnel management and employer
employee relations. 5
the improvement of personnel management and
employer-employee relations within the public
school systems in the State of California by
providing a uniform basis for recognizing the
right of public school employees to join

7 In Mount Diablo, et al., supra, and Santa Ana Unified
7
system
	of
	exclusive
	representation
	of
	employees. 	This	
This
principle
	was
	specifically
	selected
	by
	the
	Legislature
	to
supersede 	the
	Winton
	Act
	and
	its
	multi-representational
	form
	of
collective
	bargaining.
system of exclusive representation of employees.
6
Under
	the
	system
	of
	exclusivity,
	employees
	are 	able
	to
address
	their
	employment
	concerns
	in
	a
	cohesive
	and
	meaningful
manner .	
manner.
	Fragmentation
	of
	employee
	participation
	can
	be
avoided;
	continuity
	and
	stability
	in
	management-employee
relations
	are
	enhanced.
Under the system of exclusivity, employees are able to
Archibald
	Cox
	observes
	that
	a
	primary
	function
	of 	the
grievance
	procedure
	is
	to
	guarantee 	uniformity 	of
	interpretionof
	the
	negotiated
	agreement
	and
	the
	"common
	law"
	of
	the
	work
site.	
site. 	Cox, supra.	
Cox,
	supra.
	The
	negotiating 	representative
	is 	certainly
more
	qualified
	to
	interpret
	the
	written
	agreement
	and
	protect
the
	rights
	of 	the
	employees
	covered
	by
	its
	provisions
	than
	any
given
	individual
	employee.
	By
	permitting
	the
	advocacy
	and
adjustment 	of
	disputes
	by
	individual
	employees
	or
	theirpersonally-selected 	representatives
	who
	are
	strangers
	to 	the
negotiating
	and
	administrative
	history,
	the
	risk
	of
	disparate
results, 	dissatisfaction,
	and
	confusion
	among
	the
	employees
	is
magnified 	with
	consequential
	loss
	of 	confidence 	in 	the
effectiveness
	of 	the
	exclusive
	representative.
Archibald Cox observes that a primary function of the
[I]f a grievance procedure cannot be made	
[I]f
	a
	grievance 	procedure 	cannot
	be
	made
exclusive,
	it
	loses
	much
	of
	its
	desirability
as
	a
	method
	of
	settlement.
	Republic
	Steel
v.	
v.
	Maddox
	(1965)
	379
	U.S.
	650 	[59
	LRRM
exclusive, it loses much of its desirability
as a method of settlement. Republic Steel
Maddox (1965) 379 U.S. 650 [59 LRRM
2143] . 77	
2143].
27
organizations
	of
	their
	own
	choice, 	to
	be
represented
	by
	such
	organizations 	in
	theirprofessional
	and 	employment
	relationships
with
	public
	school 	employers,
	to
	select
	one
employee
	organization
	as 	the 	exclusive
r
	esentative
	the
	employees
	in
	an
appropriate unit, .	
opriate 	unit,
	...
organizations of their own choice, to be
6Former Education Code section 1380, as amended by
Statutes of 1970, chapter 412 section 1, chapter 1413 section 1.
6pormer
	ucation
	Code
	section
	1380, 	as
	amended 	by
Statutes
	of 	1970,
	chapter
	412
	section 	1, 	chapter
	1413
	section 	1.
7rn
	Mount
	Diablo,
	et 	al.,
	supra,
	and
	Santa
	Ana
	Unifi
S
	District
	(9/25/78)
	PERB
	Decision
	No.
	73, 	the 	Board
discussed 	the 	concept 	exclusivi 	the 	context
rrnitting 	rival
	employee
	organizat 	or
	ir
	agents 	to 	file
7
School District (9/25/78) PERB Decision No. 73, the Board
discussed the concept of exclusivity in the context of
permitting rival employee organizations or their agents to file
principle was specifically selected by the Legislature to
supersede the Winton Act and its multi-representational form of
collective bargaining. 6
address their employment concerns in a cohesive and meaningful
Fragmentation of employee participation can be
avoided; continuity and stability in management-employee
relations are enhanced.
grievance procedure is to guarantee uniformity of interpretion
of the negotiated agreement and the "common law" of the work
The negotiating representative is certainly
more qualified to interpret the written agreement and protect
the rights of the employees covered by its provisions than any
given individual employee. By permitting the advocacy and
adjustment of disputes by individual employees or their
personally-selected representatives who are strangers to the
negotiating and administrative history, the risk of disparate
results, dissatisfaction, and confusion among the employees is
magnified with consequential loss of confidence in the
effectiveness of the exclusive representative.
represented by such organizations in their
professional and employment relationships
with public school employers, to select one
employee organization as the exclusive
representative of the employees in an

Further, 	a 	union 	should 	have 	the 	right	Further, a union should have the right
to 	screen 	grievances 	and 	process 	only 	those
it 	concludes 	should 	be 	processed 	...
[T]his 	is 	a 	valuable 	right 	which 	inures 	to
the 	benefit 	of 	all 	employees.
Black-Clawson, 	supra; 	Ostrofsky 	v. 	United
Steelworkers 	(1959) 	171 	F.Supp. 	782 	[43 	LRRM
2744], 	aff'd 	273 	F.2d 	614 	[45 	LRRM 	2486].
to screen grievances and process only those
The 	proviso 	of 	section 	3543 	makes 	it 	clear 	that 	the
exclusive 	representative 	has 	the 	duty 	to 	protect 	its 	authority
as 	sole 	party 	empowered 	to 	negotiate 	for 	the 	employees 	of 	the
unit 	on 	all 	matters 	of 	employment 	relations. 	The 	negotiated
agreement 	in 	the 	Chaffey 	District 	does 	nothing 	to 	the 	contrary,
other 	than 	adjusting 	the 	time 	frame 	for 	intervention.
The proviso of section 3543 makes it clear that the
Further, 	the 	processing 	of 	grievances 	is 	a 	form 	of
continuing 	negotiations 	over 	the 	written 	agreement 	(NLRB 	v.
Acme 	Industrial 	Co. 	(1967) 	385 	U.S. 	432 	[64 	LRRM 	2069_]_)-in
wnich 	the 	adjustment 	of 	the 	grievance 	provides 	the 	meaning 	and
content 	to 	the 	general 	and 	often 	deliberately 	ambiguous 	terms
of 	the 	agreement. 	United 	Steelworkers 	v. 	Warrior 	& Gulf
Navigation Co. 	(1960) 	363 	U.S. 	574 	[46 	LRRM 	2416]. 	EERA
clearly 	indicates 	that 	the 	Legislature 	intended 	the 	grievance
procedure 	to 	be 	a 	preferred 	method 	of 	settling 	job 	disputes 	and
improving 	employment 	relations.
Further, the processing of grievances is a form of
8
grievances 	ter 	an 	exclusive 	representative 	been
selected. 	The 	Board 	found 	that 	it 	was 	the 	legislative 	intent
to 	prohibit 	a 	nonexclusive 	representative 	from 	such
involvement, 	finding 	a 	high 	potential 	for 	disruption 	of 	the
collective 	bargaining 	process.
grievances after an exclusive representative has been
88subsection 	3541.5 	(a) 	reads 	in 	pertinent 	part:	subsection 3541.5 (a) reads in pertinent part:
Any 	employee, 	employee 	organization, 	or
employer 	shall 	ri 	t 	to 	file 	an
unfair 	practice 	charge, 	except
board 	shall 	not 	do 	either 	of 	the 	following:
... 	(2) 	issue 	a 	complaint 	against 	conduct
also 	prohibited 	by 	the 	provisions 	of 	the
agreement 	between 	parties 	until 	the
ievance 	mach 	ery 	of 	the 	agreement, 	if 	it
exists 	and 	covers 	matter 	at 	issue,
been 	exhausted, 	.•.
Any employee, employee organization, or
8	8
it concludes should be processed .
[T]his is a valuable right which inures to
the benefit of all employees.
Black-Clawson, supra; Ostrofsky v. United
Steelworkers (1959) 171 F. Supp. 782 [43 LRRM
2744] , aff'd 273 F. 2d 614 [45 LRRM 2486] .
exclusive representative has the duty to protect its authority
as sole party empowered to negotiate for the employees of the
unit on all matters of employment relations. The negotiated
agreement in the Chaffey District does nothing to the contrary,
other than adjusting the time frame for intervention.
continuing negotiations over the written agreement (NLRB v.
Acme Industrial Co. (1967) 385 U.S. 432 [64 LRRM 2069] ) in
which the adjustment of the grievance provides the meaning and
content to the general and often deliberately ambiguous terms
of the agreement. United Steelworkers v. Warrior & Gulf
Navigation Co. (1960) 363 U.S. 574 [46 LRRM 2416]. EERA
clearly indicates that the Legislature intended the grievance
procedure to be a preferred method of settling job disputes and
improving employment relations. 8
selected. The Board found that it was the legislative intent
to prohibit a nonexclusive representative from such
involvement, finding a high potential for disruption of the
collective bargaining process.
employer shall have the right to file an
unfair practice charge, except that the
board shall not do either of the following:
. (2) issue a complaint against conduct
also prohibited by the provisions of the
agreement between the parties until the
grievance machinery of the agreement, if it
exists and covers the matter at issue, has
been exhausted, .

We
	note
	in
	addition
	that
	our
	reading 	of
	section
	3543
eliminates
	the
	time-consuming
	and
	wasteful 	two-tieredprocessing
	of
	grievances
	that
	would
	take 	place
	if
	the
	exclusive
representative
	would
	have
	to 	wait
	until
	the 	grievance
	had
	been
heard
	and
	the
	tentative
	resolution
	been
	reached
	before
responding .	
responding.
	Aside
	from
	the
	burdens
	attendant
	on
	such
	duplicate
proceedings, 	the
	resolution
	of
	disputes
	would
	be
	unnecessarily
delayed
	and
	disagreements
	could
	ripen
	into 	discontent.
We note in addition that our reading of section 3543
We
	do
	not
	find 	in
	the 	hearing
	officer's
	concern
	for
	the
rights
	of
	individual
	employees,
	as
	contrasted
	with 	those
	of 	the
collective
	group, 	grounds
	for 	reaching
	a
	different
	conclusionthan
	that
	we
	reach
	here.
	The
	hearing
	officer's
	reliance
	on
NLRB
	v.
	Magnavox 	Co. 	(1974)
	415
	U.S.
	322 	[85
	LRRM
	1475]
	to
dlstinguish
	between
	a
	union's 	authority 	to
	waive
	collective
rights
	as
	opposed
	to 	individual
	rights 	is
	misplaced.
We do not find in the hearing officer's concern for the
In
	Magnavox,
	the
	United
	States
	Supreme
	Court
	found
	that
	a
union
	cannot
	waive 	an
	employee's
	right
	to
	distribute
	material
on
	the 	employer's
	premises 	during
	nonwork
	time 	because
	this
would
	impair
	the 	employee's
	right
	to 	free 	selection
	of
	a
bargaining
	representative.
	The
	court 	contrasted
	this
nonwaivable
	right
	to 	the
	right
	to
	strike,
	which
	can
	be
	waived
permissibly
	by
	agreement 	between
	the
	employer
	and
	union
	when
	it
rests
	"on
	the 	premise 	of
	fair
	representation."
	Id., 	at
	p.
	325.
In Magnavox, the United States Supreme Court found that a
Section
	3544.9
	of 	the
	EERA
	expressly 	places
	such
	a
	duty 	of
fair
	representation
	on
	the 	exclusive
	representative.
Section 3544.9 of the EERA expressly places such a duty of
9	
Thus,
the
	Association's
	approval 	or
	selection
	of
	a
	representative
pursuant 	to
	the
	contract
	terms
	would 	be
	subject 	to
	the
requirement 	of
	this 	section.
the Association's approval or selection of a representative
It
	is
	clear 	that,
	in 	determining
	whether
	an
	attemptedwaiver
	of
	employee
	rights 	is
	to
	be 	condemned
	or 	permitted,
	it
is
	appropriate 	to 	balance 	the
	interests
	of 	the
	individual
against
	those 	of 	the
	collective
	group. 	See 	Black-Clawson,
supra.
	As
	already 	noted, 	the
	collective 	interests
	in 	theuniform
	administration
	of 	the 	agreement
	and
	the
	viability
the 	selected 	negotiati 	representative
	is
	fundamental
	to
	the
ocess 	representation 	in
	a
	system 	based 	on
	exclusivity.
	We
consi
	e
	matters 	of
	sufficient
	magnit
	to
	outwei
individual
	employee's
	interest
	in
	self
	he
It is clear that, in determining whether an attempted
9
9section
	3544.9
	states:	section 3544.9 states:
The 	employee
	organization 	recognized 	or
certified
	as 	the 	exclusive 	representativefor 	the 	purpose 	of 	meeting 	and
	negotiating
shall 	fairly 	represent 	each 	and 	everyemployee 	in 	the 	appropriate 	unit.
The employee organization recognized or
9	9
eliminates the time-consuming and wasteful two-tiered
processing of grievances that would take place if the exclusive
representative would have to wait until the grievance had been
heard and the tentative resolution been reached before
Aside from the burdens attendant on such duplicate
proceedings, the resolution of disputes would be unnecessarily
delayed and disagreements could ripen into discontent.
rights of individual employees, as contrasted with those of the
collective group, grounds for reaching a different conclusion
than that we reach here. The hearing officer's reliance on
NLRB v. Magnavox Co. (1974) 415 U.S. 322 [85 LRRM 1475] to
distinguish between a union's authority to waive collective
rights as opposed to individual rights is misplaced.
union cannot waive an employee's right to distribute material
on the employer's premises during nonwork time because this
would impair the employee's right to free selection of a
bargaining representative. The court contrasted this
nonwaivable right to the right to strike, which can be waived
permissible by agreement between the employer and union when it
rests "on the premise of fair representation. " Id., at p. 325.
fair representation on the exclusive representative. Thus,
pursuant to the contract terms would be subject to the
requirement of this section.
waiver of employee rights is to be condemned or permitted, it
is appropriate to balance the interests of the individual
against those of the collective group. See Black-Clawson,
supra. As already noted, the collective interests in the
uniform administration of the agreement and the viability of
the selected negotiating representative is fundamental to the
process of representation in a system based on exclusivity. We
consider these matters of sufficient magnitude to outweigh the
individual employee's interest in self help.
certified as the exclusive representative
for the purpose of meeting and negotiating
shall fairly represent each and every
employee in the appropriate unit.

ORDER	ORDER
Upon
	the
	entire
	record
	and
	the 	foregoing
	decision,
	the
Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
	unfair
practice
	complaint 	issued
	against
	the
	Chaffey
	Joint
	Union 	High
School
	District 	is
	DIMISSED.
Upon the entire record and the foregoing decision, the
10
By : Harry Gluck, Chairperson
Chairperson 	Irene Tovar, Member
Member
	Barbara
	D.
	Moore's
	concurrence 	begins
	on 	page
	11.
Member Barbara D. Moore's concurrence begins on page 11.
10	
l0Although 	the
	District
	did 	not 	except 	to 	the
	section
3543.5(a)
	violation,
	the 	charge
	is
	dismissed 	in 	the
	interest
	of
justice
	because 	the 	finding 	of
	such
	a
	violation 	is 	inextricably
interwoven 	with 	the
	issues 	before
	us 	on
	appeal. Blache v.	
Blache 	v.
Blache
	(1951)
	37
	Cal.2d 	531, 	538;
	233
	P.2d 	547.
Although the District did not except to the section
Ir-ein?
10	10
Public Employment Relations Board ORDERS that the unfair
practice complaint issued against the Chaffey Joint Union High
School District is DIMISSED. 10
3543.5(a) violation, the charge is dismissed in the interest of
justice because the finding of such a violation is inextricably
interwoven with the issues before us on appeal.
Blache (1951) 37 Cal. 2d 531, 538; 233 P. 2d 547.
Tovar,
	Member

Member 	Moore, 	concurring:	Member Moore, concurring:
For 	the 	reasons 	set 	forth 	below, 	I 	concur 	in 	the 	result
arrived 	at 	by 	the 	majority.
For the reasons set forth below, I concur in the result
Charging 	Party 	contended 	and 	the 	hearing 	officer 	held 	that
section 	3543 	establishes 	a 	right 	on 	the 	part 	of 	individual
employees 	to 	present 	grievances 	to 	their 	employers. 	The
section 	3543 	language 	at 	issue 	herein 	parallels 	the 	language 	of
the 	proviso 	to 	section 	9(a) 	of 	the 	NLRA. 	Unlike 	the 	majority,
I 	do 	not 	find 	the 	language 	of 	the 	two 	sections 	to 	be 	"nearly
identical." 	There 	are 	certain 	differences 	which 	should 	be
noted. 	Unlike 	section 	9(a), 	which 	enumerates 	rights 	of
exclusive 	representatives, 	section 	3543 	sets 	forth 	the 	rights
of 	employers 	under 	the 	EERA. 	The 	first 	portion 	of 	section 	3543
which 	is 	expressed 	as 	a 	proviso 	or 	caveat 	to 	the 	affirmative
provision 	of 	the 	section 	is 	the 	language 	indicating 	that 	once
an 	exclusive 	representative 	is 	selected 	only 	it 	may 	meet 	and
confer 	with 	the 	employer. 	The 	language 	regarding 	presentation
of 	individual 	grievances 	in 	section 	3543 	is 	expressed
affirmatively, 	as 	an 	additional 	employee 	right, 	not 	(as 	in
9(a)) 	as 	an 	exception 	to 	the 	general 	language 	regarding 	the
rights 	of 	exclusive 	representatives 	and 	attendant 	duties 	of
employers 	under 	the 	NLRA. 	Further, 	EERA more 	severely 	limits
the 	role 	exclusive 	representatives 	are 	entitled 	to 	play 	in
resolution 	of 	individual 	grievances. 	Whereas 	the 	NLRA 	requires
that 	the 	employer 	give 	the 	exclusive 	representative 	the
opportunity 	to 	be 	present 	at 	any 	resolution, 	the 	EERA merely
requires 	that 	employers 	give 	exclusive 	representatives 	a 	copy
of 	the 	grievance 	and 	the 	proposed 	resolution 	and 	grant 	it 	the
opportunity 	to 	file 	a 	response. 	While 	these 	differences 	are
important 	to 	note, 	I 	am 	not 	convinced 	that 	the 	ultimate 	effect
of 	section 	3543 	is 	different 	than 	that 	of 	section 	9(a). 	Each
provides 	a 	limited 	exception 	to 	the 	requirement 	that 	employers
refrain 	from direct 	dealing 	with 	employees 	regarding 	matters
within 	scope.
Charging Party contended and the hearing officer held that
Section 	9(a) 	has 	been 	interpreted 	to 	mean 	that 	an 	employer
~ay 	entertain 	and 	resolve 	individual 	grievances 	if 	it 	so
esires, 	but 	nothing 	requires 	an 	employer 	to 	hear 	such
grievances. 	As 	the 	6th Circuit 	Court 	of 	Appeals 	stated 	in
Broniman 	v. 	Great 	Atlantic 	and 	Pacific Tea 	Company 	(6th 	Cir.
1965) 	353 	F.2d 	559 	[60 	LRRM 	2566, 	at 	2568].
Section 9 (a) has been interpreted to mean that an employer
The 	employer 	is 	not 	required 	to 	meet 	(with
an 	individual 	employee) 	for 	the 	purpose 	of
adjusting 	a 	grievance. 	The 	statute 	provides
a 	permissible 	step 	in 	adjustment, 	not 	a
required 	one.
The employer is not required to meet (with
11	11
arrived at by the majority.
section 3543 establishes a right on the part of individual
employees to present grievances to their employers. The
section 3543 language at issue herein parallels the language of
the proviso to section 9 (a) of the NLRA. Unlike the majority,
I do not find the language of the two sections to be "nearly
identical." There are certain differences which should be
noted. Unlike section 9 (a) , which enumerates rights of
exclusive representatives, section 3543 sets forth the rights
of employers under the EERA. The first portion of section 3543
which is expressed as a proviso or caveat to the affirmative
provision of the section is the language indicating that once
an exclusive representative is selected only it may meet and
confer with the employer. The language regarding presentation
of individual grievances in section 3543 is expressed
affirmatively, as an additional employee right, not (as in
9 (a) ) as an exception to the general language regarding the
rights of exclusive representatives and attendant duties of
employers under the NLRA. Further, EERA more severely limits
the role exclusive representatives are entitled to play in
resolution of individual grievances. 	Whereas the NLRA requires
that the employer give the exclusive representative the
opportunity to be present at any resolution, the EERA merely
requires that employers give exclusive representatives a copy
of the grievance and the proposed resolution and grant it the
opportunity to file a response. While these differences are
important to note, I am not convinced that the ultimate effect
of section 3543 is different than that of section 9 (a) . Each
provides a limited exception to the requirement that employers
refrain from direct dealing with employees regarding matters
within scope.
may entertain and resolve individual grievances if it so
desires, but nothing requires an employer to hear such
grievances. As the 6th Circuit Court of Appeals stated in
Broniman v. Great Atlantic and Pacific Tea Company (6th Cir.
1965) 353 F. 2d 559 [60 LRRM 2566, at 2568].
an individual employee) for the purpose of
adjusting a grievance. The statute provides
a permissible step in adjustment, not a
required one.

The
	court
	thus 	held
	that 	section
	9(a)
	did 	not
	require
	an
employer
	to
	hear
	an
	individual
	grievance,
	but
	merely
	enabled
	a
willing
	employer
	to
	do
	so
	without
	running
	afoul
	of
	the
	unfair
labor
	practice
	provisions
	of 	the
	NLRA
The court thus held that section 9 (a) did not require an
.l
The
	General
	Counsel
	of
	the
	NLRB
	has
	interpretedsection
	9(a)
	of 	the
	NLRA
	as 	having
	the
	same
	limited
	effect.
Thus,
	in
	upholding
	a
	Regional
	Director's
	refusal
	to 	issue
	a
complaint
	alleging
	a
	violation
	by
	an
	employer
	who
	refused
	to
entertain
	an 	employee
	grievance, 	the
	General
	Counsel
	stated,
"
•.•
	the 	proviso 	of
	section
	9(a) 	merely
	grants
	permission 	for
an
	individual
	employee
	or
	group
	of
	employees
	to 	presentgrievances,
	but
	nowhere
	in 	the
	Act
	is
	there
	a
	requirement
	that
the
	employer
	deal
	with
	such
	an 	employee
	or
	group
	of
	employees,
i.
i.e.,
	that
	such
	a
	refusal 	is
	a
	violation
	of
	section 	8."
Administrative
	Rulings
	of 	the 	General 	Counsel,
	Case
	No.
	418,
(November
	3,
	1952)
	31
	LRRM
	1039. 	See also Administrative	
See
	also Administrative
Rulings 	of 	the 	General 	Counsel,
	Case
	No.
	317, 	(June
	2,
	1952)
	30
LRRM
	1103.
The General Counsel of the NLRB has interpreted
Since
	I
	find 	the 	ultimate
	effect
	of
	section
	3543
	to
	be
	the
same-as
	that
	of
	9(a),
	I
	find
	that
	the
	"right"
	to
	file.individual
	grievances
	does
	not
	establish
	an
	obligation
	on
	the
part
	of 	unwilling
	employers
	to
	hear 	or
	adjust
	such
	grievances.Rather,
	it
	enables
	a
	willing
	employer
	to
	entertain
	and
	adjust
such
	grievances 	without 	subJecting
	itself
	to 	unfair
	practice
liability
	for
	bypassing 	the 	exclusive 	representative
	of
	its
employees.
Since I find the ultimate effect of section 3543 to be the
Because
	unwilling
	employers
	may
	refuse 	to
	entertain
	any
individual
	grievance
	presentation
	on
	a
	case-by-case 	or 	blanket
basis,
	it
	follows
	that
	they
	may
	contractually
	agree
	to
	limit
Because unwilling employers may refuse to entertain any
lBroniman, supra, is directly on point for this
propos1t1on. 	Black-Clawson,
	relied
	upon 	by
	the
	majority,
	isfactually 	distinguishable.
	That 	case
	dealt
	with
	an
individual's 	right 	to	
compel 	an 	employer
	to
	submit 	an
individual 	grievance 	to
	arbitration.	
The
	language 	regarding
grievances 	in
	that 	case,
	while
	helpful, 	is
	mere
	dicta.Similarly, 	the
	Supreme
	Court 	in
	~mporium-Capwell
	stated 	that
	it
viewed
	the 	attempt
	by 	employees 	1n
	that
	case 	to 	discuss 	matterswith
	their
	employer 	as 	an
	attempt 	to 	bargain,
	and
	not 	to
	file
aa	
grievance,	
and
	that	
it
	was
	deciding 	that 	case
	on 	the 	former
ground 	and
	expressly 	not	
upon
	the	
latter.
sroniman,
12	12
employer to hear an individual grievance, but merely enabled a
willing employer to do so without running afoul of the unfair
labor practice provisions of the NLRA. 1
section 9 (a) of the NLRA as having the same limited effect.
Thus, in upholding a Regional Director's refusal to issue a
complaint alleging a violation by an employer who refused to
entertain an employee grievance, the General Counsel stated,
. the proviso of section 9 (a) merely grants permission for
an individual employee or group of employees to present
grievances, but nowhere in the Act is there a requirement that
the employer deal with such an employee or group of employees,
e., that such a refusal is a violation of section 8."
Administrative Rulings of the General Counsel, Case No. 418,
(November 3, 1952) 31 LRRM 1039.
Rulings of the General Counsel, Case No. 317, (June 2, 1952) 30
LRRM 1103.
same as that of 9 (a) , I find that the "right" to file.
individual grievances does not establish an obligation on the
part of unwilling employers to hear or adjust such grievances.
Rather, it enables a willing employer to entertain and adjust
such grievances without subjecting itself to unfair practice
liability for bypassing the exclusive representative of its
employees.
individual grievance presentation on a case-by-case or blanket
basis, it follows that they may contractually agree to limit
supra,
	is 	directly
	on
	point	
for	
this
proposition. Black-Clawson, relied upon by the majority, is
factually distinguishable. That case dealt with an
individual's right to compel an employer to submit an
individual grievance to arbitration. The language regarding
grievances in that case, while helpful, is mere dicta.
Similarly, the Supreme Court in Emporium-Capwell stated that it
viewed the attempt by employees in that case to discuss matters
with their employer as an attempt to bargain, and not to file
grievance, and that it was deciding that case on the former
ground and expressly not upon the latter.

the
	circumstances
	under
	which
	they
	will
	hear
	such
	grievances
	in
a
	less
	restrictive
	manner
	such
	as
	that
	agreed
	to
	by
	the
District
	and
	Association 	herein.
	I
	find
	the 	hearing
	officer's
discussion
	as
	to
	whether
	the
	individual
	grievance
	right
	could
be 	"waived"
	inapposite
	to 	the
	present
	case;
	because
	I
	do
	not
find
	that
	EERA, 	by
	establishing
	the
	individual
	grievance
	right
for
	employees,
	concurrently 	requires
	that
	unwilling
	employers
entertain
	grievances
	under
	any
	circumstances,
	the
	limitation
placed
	upon
	the
	presentation
	of
	individual
	grievances
	by
	the
parties
	herein
	could 	not
	constitute
	a
	waiver
	of
	a
	right.
the circumstances under which they will hear such grievances in
The
	majority
	cites
	the
	establishment 	of
	a
	system
	of
exclusivity
	by
	the
	Legislature
	as
	a
	step
	towards
	fulfillment
	of
the
	legislative
	purpose
	of
	improving 	employer-employee
relations,
	by
	increasing
	continuity
	and
	stability
	and
	avoiding
fragmentation,
	and
	attempts 	to
	utilize
	that
	as
	an
	argument
	for
allowing
	limitations
	on
	individual
	employee
	grievances. 	This	
This
is
	an
	argument
	which
	might
	well
	have 	been
	raised 	against
legislative
	enactment
	of 	the
	disputed
	section	
3543	
language.
However,
	as
	the
	Legislature
	chose
	to 	enact 	the
	portion 	of
section	
3543 	which
	expressly 	carves 	out
	a
	limited 	exception 	tothe
	principle
	of 	exclusive 	representation,
	it
	is
	incongruous
	to
argue
	that
	the
	general 	rule 	of
	exclusivity
	negatives 	the
statutory
	exception
	thereto.
The majority cites the establishment of a system of
Neither
	do
	I
	rely
	for
	my
	conclusion
	on
	the
	notion,
propounded
	by
	the 	majority,
	that
	the 	duty
	of
	fairrepresentation
	imposed
	upon
	exclusive 	representativesextensively 	limits
	the 	exclusive
	representative's 	right 	tocontrol
	filing
	of 	grievances.
	Although 	the
	doctrine 	applies
	to
the 	exclusive
	representative's 	acts
	in
	that
	regard,
	it
	provides
only
	a
	limited
	check 	on
	the 	exclusive
	representative's
discretion 	to,
	for
	example, 	approve
	the
	selection
	of 	individual
employees' 	grievance
	representatives.
	Unless
	a
	refusal 	to
approve
	a
	grievance
	representative
	under
	the
	contract 	at
	issueherein
	were
	arbitrary,
	discriminatory,
	or 	undertaken
	in
	bad
faith,
	it
	would
	not
	be 	a
	violation
	of 	the 	duty 	of
	fairrepresentation.
	Vaca
	v. 	Sipes
	(1967) 	386
	U.S. 	171 	[64
	LRRM
2369].
	I 	would
	disfavor
	opening
	a	
"Pandora's	
Box" 	and
releasing
	a
	duty 	of	
fair 	representation
	charge 	each 	time
	an
exclusive 	representative 	refused 	to
	approve 	or
	select
	a
	given
grievance 	representative
	under
	a
	contract 	provision
	such
	as
that 	at
	issue 	here. 	Exclusive 	representatives
	should 	have
extremely 	broad, 	unfettered 	discretion 	to
	make
	such
	decisions,based 	on 	a
	variety 	of 	internal	
and	
external 	considerations,without 	fearing 	that	
PERB
	will	
second-guess 	or 	review 	each 	such
decision.
Neither do I rely for my conclusion on the notion,
13	13
a less restrictive manner such as that agreed to by the
District and Association herein. I find the hearing officer's
discussion as to whether the individual grievance right could
be "waived" inapposite to the present case; because I do not
find that EERA, by establishing the individual grievance right
for employees, concurrently requires that unwilling employers
entertain grievances under any circumstances, the limitation
placed upon the presentation of individual grievances by the
parties herein could not constitute a waiver of a right.
exclusivity by the Legislature as a step towards fulfillment of
the legislative purpose of improving employer-employee
relations, by increasing continuity and stability and avoiding
fragmentation, and attempts to utilize that as an argument for
allowing limitations on individual employee grievances.
is an argument which might well have been raised against
legislative enactment of the disputed section 3543 language.
However, as the Legislature chose to enact the portion of
section 3543 which expressly carves out a limited exception to
the principle of exclusive representation, it is incongruous to
argue that the general rule of exclusivity negatives the
statutory exception thereto.
propounded by the majority, that the duty of fair
representation imposed upon exclusive representatives
extensively limits the exclusive representative's right to
control filing of grievances. Although the doctrine applies to
the exclusive representative's acts in that regard, it provides
only a limited check on the exclusive representative's
discretion to, for example, approve the selection of individual
employees' grievance representatives. Unless a refusal to
approve a grievance representative under the contract at issue
herein were arbitrary, discriminatory, or undertaken in bad
faith, it would not be a violation of the duty of fair
representation. Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM
2369]. I would disfavor opening a "Pandora's Box" and
releasing a duty of fair representation charge each time an
exclusive representative refused to approve or select a given
grievance representative under a contract provision such as
that at issue here. Exclusive representatives should have
extremely broad, unfettered discretion to make such decisions,
based on a variety of internal and external considerations,
without fearing that PERB will second-guess or review each such
decision.

Yor 	the 	reasons 	set 	forth 	above, 	I 	concur 	in 	the 	result 	reached
by 	the 	majority. 	I 	find 	that 	the 	contractual 	provision 	at
issue 	herein 	does 	not 	conflict 	with, 	and 	hence 	does 	not
constitute 	a 	waiver 	of, 	the 	limited 	opportunity 	provided 	by
section 	3543 	for 	employees 	to 	bring 	grievances 	to 	the 	attention
of 	their 	employers.
For the reasons set forth above, I concur in the result reached
Barbara 	D. 	Moore, 	Member	Barbara D. Moore, Member
14	14
by the majority. I find that the contractual provision at
issue herein does not conflict with, and hence does not
constitute a waiver of, the limited opportunity provided by
section 3543 for employees to bring grievances to the attention
of their employers.