Teachers Association of Long Beach (Filinuk, et al.) (PERB 1312E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KEN L. 	FILINUK, 	ET AL.,
Charging Parties,
v.
TEACHERS ASSOCIATION OF LONG BEACH,
Respondent.
)
)
)
)
)
)
)
Case No. 	LA-CO-536
PERB Decision No. 	1312
January 27, 	1999
)
Appearances: 	National Right 	to Work Legal Defense 	Foundation,
Inc. 	by John C. 	Scully for Ken L. 	Filinuk, 	et al.; 	California
Teachers Association by A. 	Eugene Huguenin, 	Jr., 	Attorney, 	for
Teachers Association of 	Long Beach.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Ken L. 	Filinuk, 	et al.'s 	(Charging Parties) 	unfair
practice 	charge. 	The 	charge alleged that 	the Teachers
Association of 	Long Beach 	(Association) 	breached the duty of 	fair
representation 	set 	forth 	in 	section 	3544.9 	of 	the 	Educational
Employment 	Relations Act 	(EERA) 	and 	thereby violated EERA section
3543.6(b) 	when 	it used a portion of 	the agency fee paid by non-
members 	to 	support 	activities 	not 	related 	to 	collective
bargaining 	or 	contract 	administration.1
1EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.6 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:

(b) 	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.
Section 3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	Charging Parties' 	appeal and the Association's 	response
thereto. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	from prejudicial 	error and adopts 	them as 	the 	decision of
the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-536 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	{ 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 5, 	1998
John C. 	Scully, 	Staff Attorney-
National 	Right 	to Work
Legal Defense Foundation, 	Inc.
8001 	Braddock Road
Springfield, 	Virginia 	22160
Re: 	T.A.U.S. 	- 	Teachers Against Unfair Share, 	Ken Filinuk,
Kathleen Gross. 	James P. 	Kelly, 	Rosemary J. 	Porter, 	and
Robert 	Wallace 	v. 	Teachers Association of 	Long Beach
Unfair Practice 	Charge No. 	LA-CO-536
DISMISSAL 	LETTER
Dear Mr. 	Scully:
The 	above-referenced 	charge 	alleges 	that 	the 	Teachers Association
of 	Long Beach 	(Association) 	collected 	from 	the 	individually named
Charging 	Parties 	an 	agency fee 	for the 	1989-90 	school 	year 	in
violation of 	the Educational 	Employment 	Relations Act 	(EERA).
More 	specifically, 	the 	alleged violation 	is 	that 	the 	fee was
collected 	and used 	to 	reimburse 	the 	Association 	for 	costs 	other
than 	collective 	bargaining and 	contract 	administration. 	This
conduct 	is alleged to violate 	sections 	3443.6 	(b) 	and 3544.9 	of
the 	EERA.
I 	indicated to you, 	in my attached letter dated September 	16,
1998, 	that 	the 	above-referenced charge 	did not 	state 	a prima
facie 	case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it prior to
September 28, 	1998, 	the charge would be dismissed.
I 	have 	not 	received 	either an amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained 	in my September 	16, 	1998 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	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. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five 	copies
of 	such appeal 	must 	be 	actually received by 	the 	Board 	itself
before 	the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later

than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of 	Civil 	Procedure 	section 	1013 	shall 	apply.
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 8, 	sec. 32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all 	parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a 	document 	served upon 	a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Attachment
cc: 	A. 	Eugene Huguenin, 	Jr.
'1

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PERS
September 16, 	1998
John C. 	Scully, 	Staff Attorney-
National 	Right 	to Work
Legal Defense Foundation, 	Inc.
8001 	Braddock 	Road
Springfield, 	Virginia 	22160
Re: 	T.A.U.S. 	- Teachers Against Unfair Share, 	Ken Filinuk.
Kathleen Gross, 	James P. 	Kelly. 	Rosemary J. 	Porter, 	and
Robert 	Wallace v. 	Teachers Association of 	Long Beach
Unfair Practice 	Charge No. 	LA-CO-536
WARNING 	LETTER
Dear Mr. 	Scully:
The 	above-referenced 	charge 	alleges 	that 	the 	Teachers 	Association
of 	Long Beach 	(Association) 	collected 	from 	the 	individually named
Charging 	Parties 	an agency fee 	for the 	1989-90 	school 	year 	in
violation of 	the Educational 	Employment Relations Act 	(EERA).
More 	specifically, 	the 	alleged violation 	is 	that 	the 	fee was
collected 	and used 	to 	reimburse 	the Association 	for 	costs 	other
than 	collective 	bargaining 	and 	contract 	administration. 	This
conduct 	is 	alleged to violate 	sections 	3443.6 	(b) 	and 3544.9 	of
the 	EERA.
My 	investigation 	revealed 	the 	following 	information. 	The 	five
individual 	Charging 	Parties 	were 	members 	of 	the 	bargaining unit
exclusively 	represented by 	the 	Association 	during 	the 	1989-90
school year. 	During this period, 	the Association and the 	Long
Beach Unified High 	School 	District 	(District) 	had a 	collective
bargaining agreement which became effective 	on September 	1, 	1989.
The 	organizational 	security clause 	of 	the 	agreement 	provided 	that
a unit 	member who 	is 	not 	a member of 	the Association 	shall 	pay an
agency fee to the Association. 	On October 	1, 	1989, 	the District
deducted 	an 	agency 	fee 	from each of 	the 	individual 	Charging
Party's pay warrants.
On October 13, 	1989, 	the Association provided all 	agency fee
payers 	with 	a 	notification regarding 	the collection of 	agency
fee. 	The 	notice provided that 	the 	chargeable 	fee 	for the 	1989-90
school 	year 	for the 	California Teachers Association was 	75.3
percent 	of 	union dues 	and 	the 	chargeable 	fee 	for 	the National
Education Association 	for 	the 	same year was 	75.66 	percent. 	The
notice 	also provided 	for 	an agency 	fee payer 	to 	challenge 	the
calculations 	and 	that 	arbitration would be 	provided 	for 	a 	review
of 	that 	challenge. 	More 	specifically, 	the notice 	states:
@
•

In addition, 	if you wish to challenge 	the
calculation 	for CTA's, 	NEA's or your local
chapter's 	chargeable 	expenditures 	in 	an
arbitration hearing, 	you must 	also make 	this
request 	in writing 	to 	Mary Trevithick,
postmarked on or before November 15, 	198 9.
Please 	indicate your name, 	home 	address,
social 	security number, 	the name 	of your
school 	district 	and 	the 	name 	of 	your 	local
chapter 	in 	any request 	for 	agency 	fee
reduction 	and/or 	arbitration.
If 	you do 	request 	an arbitration hearing to
challenge 	the 	calculations 	of 	the 	chargeable
amount, 	we will 	promptly inform you of 	the
arbitration hearing procedure. 	Note 	that 	the
estimate 	of 	chargeable 	expenditures 	for 	CTA,
NEA and 	locals 	contained 	in 	this 	notice 	is
based 	on 	percentages 	derived 	from 	audited
financial 	statements 	for the 	1987-88 	fiscal
year, 	the most 	recent 	fiscal year 	for which
final 	figures 	are 	available. 	Final 	figures
for actual 	expenditures 	for 	the 	1988-89 	year
will 	not 	be 	available 	until 	approximately
December 15. 	Since 	these 	figures 	will 	be
available 	in 	time 	for 	the 	arbitration
hearing, 	the evidence presented at 	that
hearing will 	be 	based on percentages 	derived
from actual 	expenditures 	for 	the 	1988-89
year.
Following the 	arbitration decision, 	CTA will
immediately 	send 	arbitration 	requestors 	a
check 	representing 	the 	non-chargeable 	amount
for CTA, 	NEA and the 	local 	chapter as
determined by the 	arbitrator 	for 	the 	1989-90
year, 	together with 	interest 	on 	that 	portion
of 	the 	amount 	collected to date. 	(If your
local 	chapter 	is 	not 	adopting the
presumption, 	they will 	send the 	check
representing 	the 	local 	non-chargeable
expenses.) 	Note 	that 	the 	arbitrator will
have 	the 	authority to 	order 	a 	larger or
smaller rebate, as he or she deems appropriate
under prevailing 	case 	precedent.
Based on 	the 	information 	contained above, 	the 	allegation that 	the
Association 	collected 	agency 	fees 	and 	spent 	those 	fees 	for
activities 	not 	related 	to 	collective 	bargaining 	and 	contract
administration must 	be 	dismissed 	for 	the 	following 	reasons.
N
I
2

EERA section 	3541.5 	states:
(a) 	Any employee, 	employee organization, 	or employer
shall 	have 	the 	right 	to 	file 	an unfair practice 	charge,
except 	that 	the 	board 	shall 	not 	do either 	of 	the
following:
(1) 	Issue a complaint 	in respect 	of any
charge 	based upon 	an 	alleged unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
This 	charge was 	filed on May 17, 	1990. 	The 	alleged violation of
unlawfully 	deducting 	and 	spending 	the 	money 	occurred 	on 	October
1, 	1989, 	more 	than six months prior to the 	filing of 	the charge.
The 	limitations 	period begins 	to 	run once 	the 	charging party
knows, 	or should have known, 	of 	the conduct underlying the
charge. 	Gavilan Joint 	Community College District 	(1996) 	PERB
Decision No. 	1177. 	A charging party's belated discovery of 	the
legal 	significance 	of 	the 	underlying 	conduct 	does 	not 	excuse 	an
otherwise 	untimely 	filing. 	California 	State 	Employees Association
(Darzins) 	(1985) 	PERB Decision No. 	546-S. 	Thus the charge is
untimely 	and will 	be 	dismissed.
Even if 	the 	charge was 	timely filed, 	there 	are no 	facts 	alleged
that Charging Party, 	T.A.U.S. 	- 	Teachers Against Unfair
Share,(T.A.U.S.) 	is 	an employee 	organization within the meaning
of EERA section 3540.1(d). 	Unless T.A.U.S. 	is an employee
organization 	it 	does 	not 	have 	a 	standing to 	file 	an unfair
practice 	charge. 	EERA section 3541.5(a); 	see also Sierra Sands
Unified School District 	(1993) 	PERB Decision No. 	977.
Finally, 	PERB Regulation 32994(a)1 requires 	that 	an agency fee
1Public 	Employment 	Relations 	Board 	(PERB) 	Regulations 	are
codified at 	California Code of Regulations, 	title 	8, 	section
31001 et 	seq. 	PERB Regulation 32994(a) 	reads:
(a) 	If an agency fee payer disagrees with
the 	exclusive 	representative's 	determination
of 	the agency fee 	amount, 	that 	employee
(hereinafter known 	as 	an 	"agency 	fee
objector") 	may file 	an agency fee 	objection.
Such agency 	fee 	objection 	shall 	be 	filed with
the 	exclusive 	representative. 	An 	agency 	fee
objector may 	file 	an unfair practice 	charge
that 	challenges 	the 	amount 	of 	the 	agency fee;
however, 	no 	complaint 	shall 	issue until 	the
agency 	fee 	objector has 	first 	exhausted 	the
exclusive 	representative's Agency Fee Appeal
Procedure. 	No objector 	shall 	be 	required to
3
(
3

payer who wishes 	to 	challenge 	the 	amount 	of 	the 	fee 	by 	filing 	an
unfair practice 	charge with 	PERB must 	first 	exhaust 	the 	agency
fee 	appeal 	procedure 	unless 	the 	procedure 	is 	insufficient 	on 	its
face. 	In this 	case, 	there 	is no evidence any of 	the 	Charging
Parties 	requested arbitration. 	Nor 	is 	there 	any evidence 	that
the 	appeal 	procedure 	is 	insufficient 	on 	its 	face. 	Accordingly,
the 	allegation 	that 	the 	Association 	improperly 	collected 	and
spent 	agency 	fee 	monies 	must 	be 	dismissed.
exhaust 	the Agency Fee Appeal 	Procedure 	where
it 	is 	insufficient 	on its 	face.
Charging 	Parties 	assert 	that 	exhaustion of 	the 	appeal 	process 	is
irrelevant 	or unconstitutional 	as 	contrary 	to Air 	Line 	Pilots
Ass'n. 	v. 	Miller 118 S.Ct. 	1761 	(1998). 	That case found that
plaintiffs 	challenging 	the 	amount 	of 	an 	agency 	fee 	collected
pursuant 	to 	a 	collective 	bargaining agreement 	under 	the 	Railway
Labor Act 	(44 	Stat. 	577 	(1926), 	45 USC sections 	151-63 	(1988))
may not 	be 	required to exhaust 	an arbitration procedure, 	unless
they agree 	to the process, 	before bringing their claims 	to
federal 	court. 	The 	case 	does not 	hold that 	challengers 	can avoid
arbitration 	before 	filing with 	a 	state 	administrative 	agency 	such
as PERB.
The 	Supreme 	Court 	supports 	its 	finding in Air Line 	Pilots, 	in
part, 	by minimizing the value 	of 	an arbitration prior to a
federal 	court 	case. 	The 	Court 	notes 	that 	in federal 	court,
agency 	fee 	challengers, 	like 	other civil 	litigants would not 	be
allowed 	to 	"file 	a generally phrased complaint, 	then 	sit 	back and
require 	the union to prove 	the 	'germaneness' 	of 	its 	expenditures
without 	a 	clue 	as 	to 	'which of 	its 	thousands 	of 	expenditures' 	the
objectors oppose." 	Air Line 	Pilots Ass'n. 	v. 	Miller 118 	S.Ct.
1761, 	1768. 	The Court 	states 	that 	such challengers would be
required 	to make 	their objections 	known with a 	degree 	of
specificity and be 	subject 	to pretrial 	attack 	through 	a motion 	to
dismiss, 	motion for summary judgement, 	etc.
Air 	Line 	Pilots 	is 	distinguishable 	from 	the 	instant 	case 	because
PERB 	is 	not 	a 	federal 	court. 	In the 	PERB 	forum, 	Charging Parties
are 	alleging 	a violation of 	State 	law before 	a 	State
administrative agency. 	In addition, 	at 	PERB the burden of
persuasion is on the union. 	Cumero v. 	Public Employment
Relations Bd. 	(1989) 	49 Cal. 	3d 575, 	605; 	8 Cal. 	Code Regulation
section 32994(b)(6). 	And there 	is no prehearing discovery in
unfair practice 	charges. 	King City High School 	District 	(1982)
PERB Decision No. 	197. 	These 	factors 	strongly support 	the need
for an arbitration, 	prior to a PERB hearing, 	to define 	the 	scope
of the challengers' 	concerns.
1 11 4

At 	the 	time 	PERB Regulation 32994 	was being considered, 	the
National 	Right 	to Work Legal 	Defense 	Fund, 	Inc. 	opposed the
provision 	requiring 	exhaustion 	of 	the 	agency 	fee 	arbitration
procedure. 	The 	Board 	rejected 	the 	argument 	based 	on 	three
reasons. 	First, 	exhaustion was 	not 	specifically rejected by the
majority in Chicago Teachers Union v. 	Hudson 475 U.S. 	292 	(1986) .
Second, 	the 	Board has 	long adhered 	to 	a policy 	favoring 	the
resolution 	of 	disputes 	through 	the 	grievance/arbitration 	forum
prior 	to 	charges 	being 	filed with PERB. 	Lake 	Elsinore 	School
District 	(1987) 	PERB Decision No. 	646, 	Government Code sections
3514.5(a), 	3541.5(a), 	PERB Regulation 32620. 	Third, 	a similar
procedure 	was 	being used by 	the 	National 	Labor 	Relations 	Board.
Based on 	the 	differences 	between 	federal 	court 	and 	PERB 	as 	well
as 	the 	reasons 	posited 	for 	the 	adoption of 	PERB 	Regulation
section 32994, 	I 	find the 	reasoning of Air Line 	Pilots 	to be not
controlling.
For these 	reasons 	the 	allegation that 	the Association 	collected
and 	spent 	agency 	fee 	monies 	for 	subjects 	not 	related 	to
collective bargaining or 	contract 	administration, 	as 	presently
written, 	does not 	state a prima 	facie case. 	If 	there are any
factual 	inaccuracies 	in this 	letter or additional 	facts which
would correct 	the 	deficiencies 	explained above, 	please 	amend the
charge. 	The 	amended charge 	should be 	prepared on 	a 	standard 	PERB
unfair practice 	charge 	form, 	clearly labeled 	First 	Amended
Charge, 	contain all 	the 	facts 	and allegations you wish to make,
and be 	signed under penalty of 	perjury by the 	charging party.
The 	amended 	charge 	must 	have 	the 	case 	number written on 	the 	top
right 	hand corner of 	the 	charge 	form. 	The 	amended charge must 	be
served 	on 	the 	respondent's 	representative 	and the 	original 	proof
of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before 	September 28, 	1998,
I 	shall 	dismiss 	the 	above-described charge. 	If you have 	any
questions, 	please call me at 	(916) 	322-3198, 	extension 361.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel