Fontana Teachers Association (Alexander, et al.) (PERB 0416E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
LINDA ALEXANDER, 	ET AL.,
Charging 	Party,
v.
FONTANA TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
Case No. 	LA-CO-266
PERB Decision No. 	416
October 16, 	1984
Appearances; 	Glenn M. 	Taubman, 	Attorney 	(National Right to
Work Legal Foundation, Inc.) 	for Linda Alexander, 	et al.
Before Tovar, Jaeger and Morgenstern, Members.
DECISION
JAEGER, Member: 	This case is before 	the Public Employment
Relations 	Board 	on 	an appeal by the Charging Parties 	of 	the
Regional Attorney's dismissal, 	attached hereto, 	of their 	charge
alleging 	that the Fontana Teachers Association, 	CTA/NEA
violated section 3543.6(b) 	of 	the Educational Employment
Relations Act.
We have 	reviewed 	the 	Regional Attorney's 	dismissal 	and,
finding 	it 	free 	from error, 	adopt it as 	the Decision of 	the
Board 	itself.
ORDER
The unfair practice charge 	in Case No. 	LA-CO-266 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Tovar 	and Morgenstern 	joined 	in 	this 	Decision.
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GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, 	California 	95814
(916) 322-3088
December 5, 	1983
Jeffrey D. 	Wedekind
800.1 Braddock Rd., 	Suite 600
Springfield, 	VA 	22160
Re; 	Linda Alexander, 	et al. v. 	Fontana Teachers Association,
CTA/NEA; Charge No. 	LA-CO-266
Dear Mr. Wedekind:
By letter 	of November 	15, 	1983 	(attached and 	incorporated by
reference), 	I advised you that your charge against Fontana
Teachers Association did not state a prima 	facie case, 	and that
unless 	it was amended or withdrawn prior 	to Wednesday,
November 30, 	1983, 	it would be dismissed.
1 	have 	not 	received 	any 	communication 	from you 	and 	am 	therefore
dismissing your 	charge 	for 	the reasons 	set 	forth 	in my letter
of November 15, 	1983.
Pursuant 	to Public 	Employment 	Relations 	Board regulation
section 32635 	(California Administrative Code, 	title 8,
part III), 	you may appeal the refusal to issue a complaint
(dismissal) 	to the Board itself.
Right 	to Appeal
You may obtain a 	review of 	this 	dismissal 	of 	the 	charge by
filing 	an appeal 	to 	the 	Board 	itself within 	twenty 	(20)
calendar 	days 	after 	service of 	this 	dismissal
(section 32635(a)). 	To be 	timely filed, 	the original and five
(5) 	copies of 	such 	appeal must be 	actually received by the
Board 	itself before 	the close of business 	(5:00 p.m.) 	on
Monday, 	December 26, 	1983, 	or sent by telegraph or certified
United States 	mail postmarked not 	later 	than Monday,
December 26, 	1983 	(section 32135). 	The Board's address is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814

Mr. Wedekind
December 5, 	1983
Page 2
If you 	file a 	timely appeal of 	the refusal 	to 	issue 	a
complaint, 	any other 	party may 	file 	with 	the 	Board 	an original
and five 	(5) 	copies 	of 	a statement 	in opposition within twenty.
(20) 	calendar days 	following 	the date of 	service of 	the appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all parties 	to the proceeding, 	and a 	"proof of
service" 	must accompany the 	document 	filed with 	the 	Board
itself 	(see 	section 	32140 	for 	the 	required contents 	and a
sample 	form). 	The document will be 	considered properly
"served" 	when personally delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly addressed.
Extension of 	Time
A request 	for 	an extension of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself 	must be 	in writing 	and 	filed with 	the
Board at 	the previously noted address. 	A request 	for 	an
extension must be 	filed at 	least 	three 	(3) 	calendar 	days before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other 	party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service of 	the 	request 	upon 	each
party 	(section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified 	time 	limits, 	the
dismissal 	will become 	final 	when 	the 	time 	limits have 	expired.
Very 	truly yours,
DENNIS M. 	SULLIVAN
General 	Counsel.
Robert Kingsley	ey
Attorney

GEORGE DEUKMEJIAN, Governor	CHIBOSNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
November 15, 1983
Jeffrey D. 	Wedekind
2.5
8001 	Braddock 	Rd., 	Suite 600
Springfield, 	VA 	22160
Re: 	Linda Alexander, et al. 	v. 	Fontana Teachers Association,
CTA/NEA; 	Charge No. LA-CO-266
Dear Mr. 	Wedekind:
My preliminary determination 	regarding 	this 	natter 	is 	to refuse
to 	issue a 	complaint 	and 	to dismiss 	the 	unfair practice 	charge
because 	it 	fails 	to allege 	facts 	sufficient 	to state 	a prima
facie violation of 	the 	Educational 	Employment Relations 	Act
(EERA).1 The 	reasoning which 	underlies 	this 	decision 	follows.
On May 31, 	1983, 	Ms. 	Alexander and others 	filed with the
Los 	Angeles 	Regional 	Office of 	PERB an unfair practice 	charge
against 	the 	Fontana Teachers Association, 	CTA/NEA 	(hereafter
Association) 	alleging violation of EERA section 3543.6(b).
More 	specifically, 	they allege 	that 	the 	Association has
discriminated 	against 	and 	otherwise 	interfered 	with, 	restrained
and coerced 	charging parties 	in 	the 	exercise of 	their 	rights
under 	the 	EERA by denying 	or 	threatening 	to deny 	to 	these
employees 	the right:
1) 	to vote 	in contract ratification elections;
2) 	to receive notice 	of 	meetings 	at which proposed 	contract
terms 	are 	presented 	and 	discussed 	among bargaining 	unit
members;
3) 	to attend 	such 	meetings 	and 	to voice 	their 	opinions
regarding the proposals; 	and
4) 	to receive 	notice 	of or 	access 	to 	any other 	method by
which 	they might become 	informed and/or make 	their
opinions 	known 	to 	the Association on 	such proposals.
1References 	to 	the 	EERA are to Government Code 	sections
3540 	et 	seq. 	PERB 	Regulations 	are 	codified at California
Administrative Code, 	Title 8, part III, section 31000 	et 	seq.

Jeffrey 	D. 	Wedeki
November 	15, 	1983
Page 	2
They 	further 	contend 	that 	these 	rights 	have 	been 	abridged
solely 	because 	they 	have 	chosen 	not 	to 	join 	as 	members 	of 	the
Association.
My 	investigation 	revealed 	that 	the 	right 	to 	vote 	on 	contract
ratification 	is 	restricted 	to members 	of 	the 	Fontana 	Teachers
Association. 	This 	is 	consistent 	with 	the 	following 	provisions
of 	the Association By-Laws 	which, 	when 	read 	in concert, 	clearly
indicate 	that 	such 	a 	limitation 	was 	intended.
ARTICLE 	2 	- MEMBERSHIP
2-2 	General 	Requirements. 	To 	become 	a
member, 	a membership enrollment 	form
must 	be completed 	and 	filed, 	together
with 	the 	prescribed 	amount 	of 	dues 	for
the 	category of 	membership 	for 	which
eligible 	or 	payroll 	deduction
authorization. 	In addition, 	membership
must 	also 	be 	obtained 	in 	the
appropriate 	parallel 	category 	within
the 	California Teachers 	Association 	and
within 	the 	National 	Education
Association 	whenever 	such 	memberships
are 	available.
2-3 	Active Membership. 	Active 	membership
shall 	be 	open 	to 	any 	person who 	is
engaged 	in or 	who 	is 	on 	limited 	leave
of 	absence 	from 	professional
educational 	work 	and 	whose 	primary
assignment 	is 	such 	as 	not 	to hold
supervisory 	responsibility 	over 	other
certificated 	employees 	to 	such 	an
extent 	as 	not 	to 	be 	represented 	in 	the
negotiations process 	by 	the 	teacher:
bargaining 	unit.
ARTICLE 	- 	COMMITTEES
9-4b 	The 	Negotiating 	Committee 	shall 	present
tentative 	agreement 	to 	the 	Executive
Board, 	for 	approval. 	The Executive
Board 	shall 	then 	hold 	a 	ratification
election 	by 	the 	membership.

Jeffrey 	D. 	Wedekind
November 	15, 	1983
Page 	3
The 	Board 	itself 	has 	had 	occasion 	to 	address 	the 	duty 	of 	fair
representation as 	it 	relates 	to 	internal 	union matters. 	Jules,
Kimmett 	(10/19/79) 	PERB Decision No. 	106. 	The Board's 	analysis
recognizes 	that 	the 	Legislature, 	in conferring the 	right 	upon
an 	exclusive 	representative 	to 	be 	the 	only 	employee
organization 	empowered 	to 	represent 	unit 	members 	in 	their
employment 	relations 	with 	the 	public 	school 	employer, 	also
imposed 	the 	duty 	to 	exercise 	its 	power 	fairly on 	behalf 	of 	all
of 	those 	for 	whom 	it 	acts. 	The 	duty of 	fair 	representation
thus 	clearly 	extends 	to meeting 	and 	negotiating, 	consulting 	on
educational objectives 	and 	administering 	the 	agreement. 	As 	to
questions 	which 	do 	not 	involve 	the 	employer 	or 	which 	are
strictly 	internal 	union 	matters,only 	those 	activities 	that
hav
--·-------------------------------e 	a 	substantial 	impact 	on 	the 	relationship of 	unit 	members
"to 	their 	employer 	are 	subject 	to 	the 	duty of 	fair
representation. 	El 	Centro Elementary Teachers Association
(8/11/82) 	PERB 	Decision No. 	232 	(summarily 	affirming 	the ALJ's
conclusions of law; 	see ALJ decision, 	at p. 	14.)
In El 	Centro, 	the 	Association 	revoked 	the 	right 	of 	nonmembers
to 	vote 	on 	contract 	ratification. 	The Board 	observed 	that
while 	the 	duty 	of 	fair 	representation 	implies 	some
consideration 	of 	the 	views 	of 	various 	groups 	of 	employees 	and
some 	access 	for 	communication of 	those 	views, 	there 	is 	no
requirement 	that 	formal procedures 	be 	established. 	Thus, 	the
Board 	held 	that 	the 	removal 	of 	formal procedures 	did 	not
violate 	the 	duty 	of 	fair 	representation 	in 	this 	case 	because
the 	Association 	gave 	nonmembers 	access 	to 	the 	union 	for
communication 	of 	their 	views.2
2The 	underlying 	policy 	for 	this 	holding 	is 	that 	the
union, 	as exclusive bargaining agent, 	is 	responsible 	for
formulating 	the 	employees 1 position 	on 	terms 	and 	conditions 	of
employment. 	This 	responsibility 	may 	be 	delegated 	by 	the 	union
membership. 	Such 	a delegation 	is 	an 	internal 	union 	procedure
from 	which 	non-union 	employees 	properly 	may 	be 	excluded.
However, 	the 	delegatee, 	once 	selected, 	must 	in 	turn 	function 	as
a 	representative 	for 	all 	the 	employees 	in 	the 	bargaining 	unit.
A 	procedure 	of 	contract 	ratification 	restricted 	to 	union 	memberSs
is 	consistent 	with 	negotiation 	of 	a 	tentative 	contract 	by 	the
bargaining 	agent, 	acting 	in a 	representative 	capacity, 	and with
observance 	of 	the 	duty 	of 	fair 	representation. 	In 	most 	cases 	a
general 	fam.i2ari.ty 	with 	the 	working 	environment may' allow 	a
representative 	of 	some 	experience 	to 	appreciate 	adequately 	the

Jeffrey 	D. Wedekind
November 	15, 	1983
Page 	4
As 	noted, 	however, 	El Centro 	requires 	"some consideration of
the 	views 	of 	various 	groups 	of 	employees 	and 	some 	access 	for
communication 	of 	those 	views 	. . . " 	In 	items 	(2), 	(3), 	and 	(4)
of 	the 	charge, 	you 	assert 	that 	such 	notice 	and 	access 	was 	not
provided.
My 	investigation 	revealed 	that 	access 	and 	notice 	were 	afforded
to members 	and 	non-members 	alike.
1. 	Prior 	to 	submission 	of 	the Association's 	initial
bargaining 	proposal, 	a 	Negotiation 	Survey was 	distributed
to 	all 	employees 	in 	the 	bargaining 	unit.
2. 	A 	separate 	survey 	was 	conducted 	among 	unit 	employees 	who
are 	involved 	in co-curricular 	activities. 	Responses 	to
these 	surveys 	were 	used 	to 	formulate 	the Association's
initial 	proposal.
3. 	All 	bargaining 	unit 	employees 	were 	advised 	to 	update 	their
addresses 	and/or 	phone 	numbers 	in 	the 	centrex 	because 	this
was 	the 	way 	in which 	the Association 	intended 	to 	keep
teachers 	informed 	over 	the 	summer.
4. 	During 	the 	school 	year, 	all 	unit employees 	receive 	the
"Fontanan" 	on 	a 	bi-weekly basis. 	This 	newsletter
frequently 	contained 	information 	related 	to 	negotiations
and 	contract 	enforcement.
5. 	During 	the 	course 	of 	negotiations, 	the Association
publishes 	and 	distributes 	to 	all 	unit 	employees 	"From The
Table". 	This 	publication 	contained 	information 	relative
to 	the 	status of 	negotiations.
6. 	Of 	a more 	general 	but 	related 	nature 	are Association
publications 	such 	as 	the 	"Flash" 	which 	contained 	matters
of 	immediate 	concern, 	the 	"Legislative 	Letter" and "From
The Presidents 	Desk." 	At 	times, 	all 	of 	these 	have
contained 	matters 	related 	to 	negotiation 	and 	all 	are
distributed 	to 	each 	unit 	employee. 	It 	is 	the 	Association
policy 	to 	post 	all 	of 	the 	above 	referenced 	written
materials 	on 	bulletin 	boards 	at 	each 	work 	site.
perspective 	of 	all 	employees. 	There must 	be 	communication
access 	for 	employees with 	a 	divergent view, 	although 	there 	is
no 	requirement 	of 	formal procedures. 	(See 	e.g., 	Letter
Carriers, 	Branch 	6000 	v. 	NLRB 	(1979) 	100 	LRRM 2346.)

Jeffrey 	D. Wedekind
November 15, 	1983
Page 	5
7. 	In 	addition 	to written 	communications, 	the Association
regularly 	informs 	unit 	employees 	orally 	on 	the 	status 	of
negotiations. 	The Association Representative 	Council 	is
comprised 	of 	unit 	members 	at 	each 	worksite. 	Council
members 	are 	updated 	on 	the 	status 	of 	negotiations 	during
meetings 	which 	are 	held 	monthly 	during 	periods 	of
negotiations. 	Representative 	Council 	members 	(Building
Representatives) 	are 	instructed 	to 	inform all 	unit
employees 	at 	their 	respective 	worksites 	on 	the 	status 	of
negotiations. 	In 	addition, 	the Association Building
Representatives 	make 	announcements 	at 	each 	worksite 	at 	the
conclusion 	of 	each 	faculty 	meeting 	on 	matters 	related 	to
negotiations 	between 	the Association 	and 	the 	District.
All 	unit 	employees 	are 	not 	only 	allowed 	but 	are 	encouraged
to 	remain. 	Matters 	related 	to 	negotiations 	are 	frequently
discussed 	with 	suggestions 	and 	input 	relayed 	to 	the
bargaining 	team.
In 	light of 	the 	foregoing, 	it 	does 	not 	appear 	that 	the 	charge
and 	evidence 	currently 	available 	clearly 	and 	concisely 	present
facts 	sufficient 	to 	constitute 	a 	prima 	facie 	case 	of 	unfair
practice.. 	See Board Rule 	32620(b)(5) 	(regional 	attorney has
the 	pov7er 	and 	duty 	"to 	dismiss 	the 	charge 	or 	any 	part 	thereof
. 	. 	if 	it 	is 	determined 	that 	the 	charge or 	the evidence 	is
insufficient 	to 	establish 	a prima 	facie 	case"). 	While 	the
charge 	makes 	general 	allegations 	that 	the 	organization 	failed
to 	comply 	with 	its 	duty 	toward 	the 	charging 	parties, 	the
information 	currently 	at 	hand 	calls 	into 	question 	whether 	the
charging 	parties 	did, 	in 	fact, 	receive 	the 	specific 	notice 	and
-
access 	described 	in 	paragraphs 	1-7 	above. 	The 	charging 	parties
to 	date 	have 	provided 	no 	specific 	information 	indicating 	that
factual 	disputes 	exist 	with 	respect 	to 	the 	information
described 	in 	paragraphs 	1-7 	above. 	As 	a 	result, 	further
inquiry 	into 	the 	evidentiary 	underpinnings 	of 	the 	charge 	is
warranted.
Each 	of 	the 	individual 	charging 	parties 	who wish 	to 	pursue 	this
case 	must 	be 	prepared 	to 	specifically 	deny 	that 	the 	notice 	and
access 	described 	in 	paragraphs 	1-7 	above 	was 	not 	provided. 	The
charge 	must 	be 	amended 	to 	incorporate 	those 	specific 	denials.

Jeffrey 	D. Wedekind
November 	15, 1983
Page 	6
Please 	provide 	mo 	with 	the 	names 	and 	telephone 	numbers 	of 	each
charging 	party 	having 	personal 	knowledge 	of 	these 	denials. If
appropriate, 	I 	will 	thereafter 	arrange 	for 	telephonic
interviews 	of 	such 	witnesses, 	and 	may 	request 	further
supporting 	documentary 	evidence. 	If you 	would 	prefer 	to 	submit
declarations 	from percipient 	witnesses, 	I 	would 	be 	happy 	to
review; them 	to determine 	whether 	they meet 	the 	evidentiary
concerns 	expressed 	above.3
The 	amended 	charge, 	and 	supporting 	documents 	as 	set 	forth
above, 	must 	be 	received 	by 	5:00 p.m. 	on Wednesday, 	November 	30,
or 	the 	charge 	will 	be 	dismissed. 	If you 	choose 	to 	amend 	the
charge, 	it 	will 	be 	evaluated 	on 	an 	individual by 	individual
basis 	to determine 	whether 	a 	complaint 	should 	issue 	and, 	if 	so,
which 	charging 	parties 	should 	be 	included.
If 	you 	have 	any questions, 	please 	do not 	hesitate 	to 	call. 	My
number 	is 	(916) 	323-8018.
Very 	truly 	yours,
Robert Kingsle	ngaleyy
Attorney
3 3
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3 Any declaration 	must 	be 	based 	on 	the 	personal knowledge
of 	the 	declarant, 	must 	include 	facts 	showing 	the 	basis 	of 	the
witness' personal 	knowledge, 	and 	must 	comply 	with 	the
requirements 	of 	California Code 	of 	Civil 	Procedure, 	section
2015.5. 	If 	the 	facts 	asserted 	are 	reliant on a writing, 	a copy
of 	the 	writing must 	be 	attached 	to 	the 	declaration 	and
authenticated 	therein.