South San Francisco Unified School District (Martin) * * * OVERRULED by Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667 (PERB 0112E)

OVERRU LED by Oxnard School District (Gorcey and Tripp)
(1988) PERB Decision No. 667
STATE OF 	CALIFORNIA
PUBL I C EMPLOYMENT 	RELATIONS 	BOARD
MICHAEL J. 	MARTIN,
Char g i ng 	Party,
v .
SOUTH 	SAN 	FRANCISCO UNIFIED
SCHOOL 	DISTRICT
Respondent .
)
)
)
) 	No . 	SF-CE-180-77/78
PERB 	Dec isio n No. 	112
Janua ry 	15, 	1980
)
)
)
)
)
)
___ __ ___ ___________ )
Appea ran c es : 	Robert 	J. 	Bezemek, 	Att orney 	(Van Bour g, 	Allen ,
We i nberg 	and 	Roger) 	for 	Michael J . 	Martin; 	Lillian Lee 	Port,
Deputy Dis t r ict Attorney, 	County 	of 	San Mateo, 	fo r 	South 	San
Franc is co Uni fied 	Schoo l 	District.
Before Gl uck, 	Chairperson; 	Gonzales 	and Moore, 	Members.
DECISION
Michael 	J. 	Martin 	(hereafter 	Charging 	Pa rty) 	appea ls 	the
attached 	hearing 	office r 's 	rec ommen ded 	decision 	d is missing
unfair 	practice 	charges 	he 	filed 	against 	the 	South
San 	Francisco Unified 	Sc hool 	Distr ic t 	(hereafter 	District).
For 	the 	reaso ns 	d is cus sed 	below, 	the 	Board 	reverses 	the 	hear i ng
officer 	in part 	a nd 	orde rs 	that 	the 	matter 	be 	re manded 	to 	the
General 	Coun sel 	for 	hear i ng.
FACTS
For 	th e 	purposes 	of 	this 	appeal, 	the 	facts 	alle ged 	in 	the
charging 	pa rty 's 	amended 	charge 	are 	deemed 	to 	be 	true .
(San Juan Unif i ed 	School 	Distr ict 	(3/10/77) 	EERB 	Dec ision
No. 	12.)

The
	charging
	party
	had
	been
	the
	baseball
	coach
	at
	South
San
	Francisco
	High
	School
	for
	three
	years
	prior
	to
	selection
	of
another
	coach
	at
	the 	beginning
	of 	the
	1977-78
	school
	year.
Martin
	was
	informed
	that 	this
	decision
	was
	based
	on 	a
	District
policy
	to
	hire,
	whenever
	possible,
	coaches
	from
	the
	faculty
	of
the 	school
	at
	which
	the
	coaching
	job
	was
	held. 	Martin,
however,
	had
	been
	a
	full-time
	teacher
	at
	a
	different
	District
school 	for
	his
	entire
	coaching
	tenure.
	The
	South
	San
	Francisco
High
	School
	principal
	gave
	several
	reasons 	for 	the
	use
	of 	the
policy
	as
	a
	general
	rule.
	Nevertheless,
	the 	charging
	party
filed
	a
	grievance
	on
	the
	matter,
	claiming 	the
	principal's
action
	was
	arbitrary,
	and
	pursued
	his
	case 	through
	various
steps
	to 	the 	school 	board. 	After 	denial 	of 	the
	grievance,
Martin
	filed
	his 	unfair
	practice
	charge 	with 	the 	Public
Employment
	Relations
	Board 	on	
March
	6,
	1978. 	There
	is
	no
indication 	that 	Martin's 	exclusive 	representative,
	the
California
	Teachers
	Association,
	was
	requested
	to,
	or
	did,
participate
	in 	the 	grievance 	or 	unfair 	practice 	proceedings.
Martin 	charged 	the
	District
	with
	violation
	of
	sections
3543.S(a)	
and	
3543.S(c) 	of	
the 	Educational
	Employment
	Relations
Act	
(hereafter
	EERA.) 1 	The
	hearing
	officer	
ordered Martin 	to
lEERA
	is
	codified 	at
	Government 	Code	
section
	3540
	et	
seq.
Sections 	3543.S(a) 	and	
3543.S(c) 	provide:
It 	shall	
be 	unlawful 	for	
a
	public 	school 	employer 	to:
(a) 	Impose 	or 	threaten 	to
	impose
	reprisals
	on
2

w
employees,
	to 	discriminate 	or 	threaten 	to 	discriminate
against
	employees, 	or 	otherwise 	to 	interfere 	th,
restrain,
	or 	coerce 	employees 	because 	of
	theirexercise 	of
	r
	hts 	guaranteed 	by	
this 	r.
(c) 	Refuse 	or
	fail 	to
	meet 	and
	negotiate 	in
	g
faith
	with 	an
	exclusive 	representative.
particularize
	the
	facts
	of
	his
	original
	charge,
	prior
	to
ultimately 	ruling
	on
	September
	7,
	1978,
	that
	Martin's
	second
amended
	unfair
	practice
	charge 	should
	be
	dismissed.
	Although
Martin
	was
	given 	the
	opportunity
	to
	state
	relevant
	facts,
	the
hearing
	officer
	concluded
	that
	the
	allegations
	did
	not
	present
a
	prima
	facie
	case 	of
	3543.S(a)
	violation
	because
	there
	was 	no
showing
	of
	any
	interference
	with 	or
	discrimination 	against
Martin
	on
	the
	basis
	of
	conduct
	protected
	by
	EERA.
The
	hearing
	officer
	also
	dismissed
	Martin's
	claim
	that
under
	section
	3543.S(c)
	the
	application
	of 	the
	coaching
	policy
was 	a
	unilateral
	change
	by
	the
	employer
	of
	a
	matter 	within 	the
scope
	of
	representation
	and
	was
	improperly
	implemented
	because
there
	was 	no
	notice 	to
	or
	negotiations
	with
	his 	exclusive
employee
	representative.
	The
	hearing
	officer
	found,
	as
	a
matter 	of 	law,
	that
	Martin 	did 	not
	have
	standing 	to 	challenge
the
	District's
	unilateral
	change 	and
	failure 	to 	negotiate,
	and
that
	such
	challenge 	could 	only
	be
	filed
	by
	the 	exclusive
representative.
	The
	hearing
	officer, 	therefore,
	did 	not 	find
it
	necessary 	to
	reach 	the
	District's
	ultimate
	arguments
	that
(Footnote
	1
	cont.)
3

the
	policy
	in 	question
	was
	consistent
	with 	the
	employer
1 s
	past
practice,
	was
	authorized
	by
	statute,
	was
	beyond
	the
	scope
	of
negotiations,
	or,
	in
	any
	event,
	was
	subject 	to
	a
	waiver
	by
	the
employee
	representative.
DISCUSSION
The
	Board
	has
	determined
	that
	Martin
	has
	standing
	to
	raise
a
	section
	3543.S(c)
	refusal
	to 	negotiate
	charge,
	and
	that
	such
refusal,
	if
	shown, 	may
	also 	violate 	section
	3543.5(a)
.2
The
	hearing
	officer
	reasoned
	that
	section
	3543.l(a) 	of
	EERA
gives
	the
	exclusive
	representative
	the
	sole
	right
	to 	represent
an 	employee 	once
	the 	exclusive
	representative
	has 	been
selectea,3	
relying
	on
	the 	Board's
	decision 	in
	Hanford
	Joint
21n
	his 	original
	charge 	Martin
	also
	claimed
	a
	violation
of
	section
	3543.S(d),
	prohibiting
	employer
	domination
	or
interference
	with
	an 	employee
	organization, 	but
	he
	apparently
abandoned
	this
	charge
	by
	failing 	to 	expressly 	include
	it
	in 	his
subsequent
	amended
	charge,
	even 	though
	said
	amendment
incorporates
	by
	reference 	the
	prior
	record 	in 	the 	proceeding.
Regardless,
	we
	affirm
	the 	hearing
	officer's
	conclusion
	that
charging
	party 	offers
	no
	factual 	allegations 	that
	would,
	if
proven,
	substantiate
	a
	claimed 	3543.S(d)
	violation
	and
	for 	that
reason 	the 	charge,
	if
	properly 	raised
	at
	all,
	should
	have 	been
dismissed.
3	
ion
	3543.1
	ovides:
(a)
	Employee
	organizations 	shall
	the
right 	to 	represent 	their
	members
	in
	their
employment
	relations
	with 	public 	school
employers, 	except
	that
	once 	an
	emploiea
prganization 	is
	reco9I!,ized
	or
	certlr1e
	as
the 	exclusive 	representative 	of 	an
~propriate 	unit 	pursuant 	to 	section
	3544.1
or 	3544.7, 	respectively, 	only 	that
	em:e,loyee
4

organization
	may
	represent 	that 	unit 	int.heir
	empl~yment
	relations
	with 	the 	publicschool
	employ~;:_. 	Employee
	organizations
	may
establish 	rea
	restrictions 	regardi
who 	may
	join
	may
	ma
	reasonable
pr 	sions 	the 	dismis 	of 	individuals
from 	membership. 	(Emphasis 	added.}
Union
	High
	School
	District
	Board
	of 	Trustees
	(6/27/78)
	PERB
Decision
	No.
	58.
	In
	Hanford
	the
	Board
	dismissed
	an
	unfair
practice
	charge
	filed
	by 	a
	non-exclusive
	representative
	seeking
to 	consult
	with 	the
	employer
	about
	a
	school
	calendar
	adopted
prior
	to 	recognition 	of
	a
	rival
	employee
	group
	as 	the
	exclusive
representative
	in
	the
	District.
	The
	Board
	held
	that
	any
representation-related 	rights
	of 	the 	non-exclusive
representative, 	arising
	under
	section
	3543.l(a) 	of
	EERA,
	were
no
	longer
	viable
	once 	an
	exclusive
	representative
	was
	selected,
even
	if
	the
	selection
	occurred
	after
	the
	alleged
	violation.
This
	conclusion
	was
	based
	on 	a
	reconciliation
	of
	section
3543.l(a), 	establishing 	rights
	for 	non-exclusive
	and
	exclusive
representatives,
	with
	section
	3541.S(a),
	which
	provides
	that
"any 	employee, 	employee
	organization, 	or
	employer
	shall
	have
the
	right
	to
	file
	an
	unfair
	practice
	charge
....
"
	In
	Hanford,
therefore,
	the 	non-exclusive
	representative's 	right
	to
	file
unfair 	practice
	charges
	was
	expressly
	narrowed
	by
	another,
limiting 	provision 	of 	the
	statute.
	The
	majority
	concluded
	that
to
	hold 	otherwise
	would 	undermine
	stable
	labor-management
(Footnote	
3	
cont.)
5

relations
	by
	encouraging
	non-exclusive
	organization
	involvement
in
	negotiations, 	disruptive
	rivalry
	between 	competing 	employee
organizations,
	and
	potential
	employer
	inferference
	with
employee
	groups
	by
	by-passing 	the
	negotiations
	process 	with
	an
exclusive
	representative.
However,
	Hanford
	can
	be
	distinguished
	from
	this
proceeding.
	First,
	there
	is
	no
	conflicting 	statutory
provision,
	as 	in
	Hanford,
	that
	would
	preclude
	an
	individual
from
	raising
	a
	claim
	that
	an
	employer 	has
	unlawfully
	failed 	to
negotiate
	with 	the
	exclusive
	representative.
	Although
	only
	an
exclusive 	representative
	possesses
	a
	negotiating
	right,4	
an
4section
	3543
	states:
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 	of
employer-employee
	relations.
	Public 	school
employees
	shall 	also
	have
	the
	right 	torefuse 	to 	join
	or
	participate
	in
	the
activities
	of
	employee
	organizations
	and
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 	toSection 	3544.l 	or
	certified
	pursuant 	to
Section 	3544.7,
	no 	employee
	in 	that 	unit
	may
meet 	and
	negotiate 	with 	the 	public 	school
~!_Ilployer.
Any 	may
	at
	time
	presentgrievances 	to 	his 	employer, 	and 	have 	such
6

grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative,
	as 	long 	as 	the 	adjustment
	is
reached
	prior
	to
	arbitration
	pursuant 	toSections 	3548.5, 	3548.6, 	3548.7, 	3548.8and
	the 	adjustment
	is
	not
	inconsistent
	with
the 	terms 	of
	a
	written
	agreement 	then 	in
effect;
	provided
	that
	the 	public 	schoolemployer
	shall
	not 	agree 	to
	a
	resolutionthe 	grievance
	until
	the 	exclusive
representative
	has 	received
	a 	copy
	of 	the
grievance 	the 	proposed
	resolution
	and
has 	been 	given 	the 	opportuni 	to 	fi
	a
response.
	(Emphasis 	added.)
individual
	as 	well 	as
	an
	exclusive
	representative
	may
	properly
file
	the
	charge
	pursuant
	to 	section
	3541.5(a)
	in
	order
	to
	show
a
	violation
	of
	law
	and
	seek
	its
	correction.
	The
	Board
established
	a
	similar 	principle
	in
	Mount
	Diablo
	Unified
	School
District
	(12/30/77)
	EERB
	Decision
	No.
	44,
	in
	which
	it
	was
	held
that
	section
	3543
	protects
	the
	right
	of
	an
	individual 	to:
...
	present
	a
	grievance
	either
	alone 	orthrough
	a
	representative 	other
	than
	an
employee
	organization
	that 	is
	not 	the
exclusive
	representative.
	However,
	the
"representative"
	may
	not
	be 	an
	agent
	of
	an
employee
	organization 	other
	than 	the
exclusive
	representative.
	In
	making
	this
determination,
	common
	law
	principles
	of
agency
	shall
	govern.
	The
	burden
	of 	proving
that
	a
	disqualifying 	relationship
	existsshall
	be 	upon
	the
	party
	seeking
disqualification
.
. 	. 	. [however]
	...
	mere
	incidental
membership
	in
	a
	rival
	employee
	organization,
without 	proof
	that
	the
	representative
	of 	the
grievant
	is
	acting 	for
	and
	in 	behalf 	of
	a
rival
	employee
	organization,
	is 	insufficient
(Footnote
	4
	can't)
7

8
to 	disqualify 	a 	grievant's 	representative
from 	presenting 	a 	grievance. 	(Id. 	at 	12)
A second 	basis 	to 	distinguish 	Hanford 	may 	be 	drawn 	from
experience 	of 	the 	National 	Labor 	Relations 	Board 	(hereafter
NLRB). 	The 	rules 	and 	regulations 	of 	the 	NLRB 	provide 	that 	"a
charge 	that 	any 	person 	has 	engaged 	in 	or 	is 	engaging 	in 	any
unfair 	labor 	practice 	affecting 	commerce 	may 	be 	made 	by 	any
person." 	(NLRB 	Rules 	and 	Regulations, 	section 	102.9. 	Emphasis
added.) 	In 	one 	action, 	quite 	similar 	to 	this 	case, 	the 	NLRB
and 	the 	Ninth Circuit 	affirmed 	the 	right 	of 	an 	individual
employee 	to 	file 	an 	unfair 	practice 	charge 	challenging 	an
employer's 	unilateral 	change 	of 	production 	standards.
Alfred 	M. 	Lewis, 	Inc. 	(1977) 	229 	NLRB 	757 	[95 	LRRM 	1216], 	enf.
in 	part 	(9th Cir. 	1978) 	587 	F2d 	403 	[99 	LRRM 	2841]. 	The 	Board
found 	merit 	in 	the 	employee's 	claim 	and 	ordered 	the 	employer 	to
cease 	and 	desist 	from 	the 	unilateral 	action, 	to 	bargain, 	upon
request, 	with 	the 	union, 	and 	to 	reinstate 	those 	employees 	out
of 	work 	or 	disciplined 	as 	a 	result 	of 	the 	changes 	made. 	As 	the
Ninth 	Circuit 	commented:
The 	employees 	in 	this 	action 	have 	not 	sought
to 	inject 	themselves 	into 	the 	bargaining
process. 	The 	company 	unilaterally
established 	the 	production 	standards 	and
disciplinary 	system without 	providing 	the
union 	an 	opportunity 	to 	bargain. 	Confronted
with 	a 	accomplj, 	the 	employees 	neither
interfer 	with 	the 	union's 	bargaining
position 	nor 	sought 	to 	bargain 	direc 	with
the 	company. 	Rather, 	the 	complaining
employees 	attempted 	to 	require 	the 	company
to 	fulfill 	its 	statutory 	duty 	to 	bargain
8

with 	the
	union
	before
	instituting
	the
contested
	changes
	in
	the
	terms
	and
conditions 	of
	employment.
	The
	union 	remains
free 	to
	adopt 	whatever
	bargaining 	posture
	it
chooses.
(Id.,
	99
	LRRM
	at
	2844.
	Also
	see
	Kansas
	Meat
	Packers
	(1972) 	198
NLRB
	543.
	[80
	LRRM
	1743]
.)
Here,
	as
	in
	Lewis,
	there
	is
	no
	showing 	on
	the 	face
	of 	the
charge
	that
	the
	employee
	is
	attempting
	to
	insert 	either
	himself
or
	a
	rival,
	non-·exclusive
	employee
	organization
	into
	the
bargaining 	process.
	If
	the
	employer 	can
	demonstrate
	at
	a
hearing
	such
	an
	attempt
	to
	by-pass 	lawful
	negotiating
procedures,
	or,
	if
	the
	employer 	can
	demonstrate
	a
	valid
	defense
on
	the
	merits
	of 	the 	charge, 	then 	the
	individual
	employee
	claim
may
	be
	dismissed.
	To
	deny
	Martin
	a 	forum 	now,
	however, 	would
be
	contrary 	to 	his
	statutory 	right
	to
	file
	a
	charge.
	Moreover,
protection
	of 	the
	integrity
	of 	the
	negotiating 	process
	will
	be
insured
	through
	affirmative
	defenses
	that
	may
	be
	presented
	at
	a
hearing 	or
	by 	a
	remedial
	order,
	if
	Martin
	is
	successful,
	which
conditions
	the
	District's
	duty
	to 	negotiate
	on 	a
	request
	by
	the
exclusive 	representative.
Our 	view
	of 	the
	negotiations 	process	
and
	the	
rights 	of
individual
	employees
	is
	not
	altered
	by	
the 	hearing
	officer's
argument
	that 	giving
	employees
	the
	right 	to
	file
	a
	charge 	on
these	
facts	
may	
interfere	
with 	an 	understanding 	already	
arrived
at
	by
	the 	exclusive 	representative 	not 	to 	challenge 	the
employer's 	action, 	thereby 	interfering	
with 	negotiating 	tactics
9

10
and
	strategies.
	As
	noted,
	if
	the
	employee
	group
	has
	waived,
	or
agreed
	to
	the
	changes
	made 	by
	the
	employer, 	such
	a
	defense
	on
the
	merits
	is
	available
	at
	a
	hearing.
	Nor
	is
	our
	view
	altered
by
	the
	District's
	suggestion
	that
	the
	employee,
	to
	have
standing,
	should
	be
	required
	to 	join
	his 	exclusive
representative
	as
	a
	respondent,
	on
	a
	theory
	that
	the 	employer's
liability
	can
	only
	be
	reached
	by
	a
	concurrent
	showing
	that
	the
employee
	organization 	violated
	the 	duty
	of
	fair
	representation
owed
	to
	employees
	in
	the
	negotiating
	unit.
	(See
	section
3544.9.
5 )
	If
	the
	exclusive
	representative's
	conduct
	fully
	or
partially 	justified
	the 	employer's
	action,
	the
	employer
	is
	free
to 	present
	such 	evidence
	at
	a
	hearing
	on
	the
	merits.
	However,
we
	need
	not
	put 	in 	issue
	a
	breach
	of 	the 	duty
	of
	fair
representation 	prior
	to
	a
	hearing
	on
	the
	merits.
	The
	facts
which 	emerge
	at
	the 	hearing
	may
	provide
	a
	defense
	to
	the
employer
	without 	so
	constituting
	a
	violation
	of
	sec-
tion
	3544.9. 	Therefore,
	we
	will
	not
	require 	the 	charging
	party
to 	join
	the 	exclusive 	representative 	in
	this
	action
	or
	to
specifically 	allege
	a
	violation
	of 	the 	duty
	fair
representation
	as
	a
	requisite 	to 	the
	further 	ocessi
his 	charge.
5section
	3544.9
	states:
employee 	or
	ization 	ni 	or
certified
	as 	the 	exclusive 	representativefor 	the 	purpose 	of 	meeting 	and
	negotiating
shall 	fairly 	represent 	each 	and 	everyemployee 	in 	the 	appropriate 	unit.

11
For
	the 	reasons
	stated
	above
	Martin
	has
	demonstrated
	a
prima
	facie
	case 	of
	a
	violation
	of
	section
	3543.S(c)
	and
	the
hearing
	officer
1 s
	dismissal
	of
	that
	portion
	of 	the 	charge
	is
reversed.
The
	Board
	also
	finds
	that
	the
	prima
	facie 	allegations
	of
	a
refusal 	to 	negotiate 	also
	set
	forth
	potential
	interference
	with
employee
	exercise
	of
	representational
	rights,
	in
	violation
	of
section
	3543.S(a).
	As
	we
	stated
	in
	San
	Francisco
	Community
College
	District
	(10/12/79)
	PERB
	Decision
	No.
	105:
..•
employees 	have
	the
	right 	to 	select
	an
exclusive 	representative 	to
	meet 	and
negotiate
	with 	the
	employer
	on
	their
behalf.
	(Sec. 	3543.)
	An
	employer's
unilateral
	change
	of
	matters 	within 	the
scope
	of
	representation
	is
	in 	derogation 	of
its
	duty
	to 	negotiate
	with 	the
	exclusive
representative
	and
	necessarily
	interferes
with
	employees
	in
	their
	exercise
	of
protected
	rights.
For
	these 	reasons
	Martin's 	alleged 	violation
	of
	sec.
	3543.S(a)
should
	also
	be
	subject 	to
	a
	hearing.
11

12
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
hearing
	officer's
	dismissal
	of 	the
	unfair
	practice
	charge
	of
	a
violation
	of
	sections
	3543.S(a)
	and
	3543.
(c)
	is
	reversed;
	and,
affirms 	dismissal
	of 	the 	other
	charge
	filed
	herein.
	The
	unfair
practice
	charge
	is
	remanded
	to
	the 	General
	Counsel
	for 	hearing.
By:
	Harry
	Gluck,
	Chairperson
Barbara
	D.
	Moore,
	Member
Raymond
	J.
	Gonzales,
	Member,
	dissenting:
I
	dissent.
	I 	would
	uphold
	the 	hearing
	officer's
	dismissal
on
	the
	ground
	that
	Martin 	lacks 	standing 	to 	bring
	a
	charge
against 	the
	District 	that
	it
	has
	failed 	to 	negotiate 	with 	the
exclusive 	representative.
	The
	majority 	decision 	is
	troublesome
12

for
	two
	main
	reasons.
	First,
	it
	undercuts
	our
	decision 	in
Hanford
	Joint
	Union 	High
	School
	District,
	supr~,
	opening
	the
door
	to
	mischievous
	interference
	in 	the
	collective
	negotiating
relationship
	by
	those
	dissatisfied
	with
	the
	performance
	of
	the
exclusive
	representative.
	In
	that
	decision,
	we
	broke
	new
ground	
by	
extending
	the
	principle
	of
	exclusivity
	to 	the
	filing
of 	unfair
	practice
	charges.
	It
	was
	recognized
	that
	the
exclusivity
	of
	the
	chosen
	employee
	organization 	in 	representing
unit
	employees
	was
	crucial
	to
	its
	ability
	to
	negotiate
effectively
	and
	to
	stable
	employment
	relations
	generally.
	At
the
	same
	time, 	the
	EERA
	provides
	that
	an
	exclusive
representative
	owes
	a
	duty
	of
	fair
	representation 	to	
0
ach
	and
every
	unit
	employee
	because
	the
	statute
	deprives
	individual
employees
	of
	most
	self-representation 	rights
	and
	grants
representation 	exclusivity
	to 	the
	chosen
	employee
organizations.
	Second,
	the 	majority
	distorts
	the
	overall
design 	of 	the
	EERA	
by	
failing
	to 	require
	that
	the 	proper
vehicle
	for
	a
	unit
	employee
	to
	raise
	doubts 	about 	adequate
representation 	of 	his 	interests 	is
	the
	allegation
	of
	a
	denial
of
	fair
	representation
	by
	the 	exclusive 	representative.
The	
majority 	affirms	
the	
Board's 	holding 	in
	Hanford 	that
the 	(sec. 	3541.5(a))
	right 	to
	file
	an
	unfair 	practice
	charge
	is
not
	an
	unlimited
	right. 	Specifically,
	it
	acknowledges
	the
limitation	
imposed 	by
	the	
prerogatives 	of 	the 	exclusive
13

14
representative 	regarding 	matters 	of 	representation. 	In 	Hanford
we 	explained:
To 	hold 	that 	the 	Federation 	in 	this 	instance
could 	pursue 	a 	representation-oriented
charge 	after 	the 	establishment 	of 	the
Association 	as 	the 	exclusive 	representative
would 	tend 	to 	undermine 	the 	right 	of
employees 	to 	negotiate 	collectively 	through
a 	representative 	of 	their 	own 	choice.
Furthermore, 	the 	need 	for 	stability 	in
employee 	organizations 	precludes 	encouraging
rivalry 	among 	various 	employee 	organizations
that 	would 	be 	the 	inevitable 	consequence 	of
a 	requirement 	that 	the 	employer 	deal 	with 	an
organization 	other 	than 	the 	exclusive
representative. 11 	(Citations 	omitted.)
Thus, 	it 	seems 	clear 	that 	the 	underlying 	principle
motivating 	the 	Hanford 	decision 	was 	the 	exclusivity 	of 	the
chosen 	employee 	organization 	and 	the 	desirability 	of 	stable
labor 	relations. 	That 	decision 	held 	that 	a 	nonexclusive
employee 	organization 	could 	not 	pursue 	an 	unfair 	practice
charge 	relating 	to 	representation 	matters 	because 	this 	was 	now
the 	exclusive 	province 	of 	the 	exclusive 	representative.
This 	same 	principle 	of 	exclusivity 	applies 	equally 	to
individuals 	as 	to 	minority 	organizations 	in 	that 	both 	lose
rights 	once 	a 	majority 	of 	the 	employees 	have 	chosen 	one
employee 	organization 	to 	represent 	them 	in 	their 	employment
relations 	with 	their 	employer. 	(The 	one 	exception 	is 	where 	an
individual 	retains 	some 	rights 	to 	present 	grievances 	to 	his
employer. 	PERB 	has 	held, 	however, 	that 	even 	this 	individual
right 	is 	limited, 	as 	the 	individual 	does 	not 	have 	the 	right 	to
14

15
represent 	himself 	at 	the 	arbitration 	stage 	of 	a 	grievance.
Mt. 	Diablo 	Unified 	School 	District, 	(8/21/78) 	PERB 	Decision
No. 	68.)
Indeed, 	the 	federal 	labor 	law 	cases 	cited 	in 	Hanford 	for
guidance 	in 	applying 	the 	exclusivity 	principle 	are 	ones 	which
dealt 	with 	employers 	bypassing 	the 	exclusive 	representative 	and
did 	not 	involve 	rival 	employee 	organizations. 	In 	J. 	I. 	Case 	v.
NLgB 	(1944) 	321 	U.S. 	332, 	the 	U.S. 	Supreme 	Court 	explained 	that
the 	collective 	bargaining 	contract 	superseded 	separate
contracts 	with 	individual 	employees. 	In 	Medo 	Photo 	Supply
Corporation 	v. 	NLRB 	(1944) 	321 	U.S. 	678, 	an 	employer 	was 	found
to 	have 	committed 	an 	unfair 	practice 	by 	negotiating 	with 	a
committee 	of 	employees 	instead 	of 	the 	exclusive 	representative,
even 	though 	the 	employees 	had 	indicated 	dissatisfaction 	with
the 	exclusive 	representative; 	because 	the 	individual 	employees
had 	not 	acted 	to 	withdraw 	recognition 	from 	the 	union, 	the
employer 	was 	still 	obligated 	to 	negotiate 	only 	with 	that
organization. 	Citing 	Medo 	Photo 	Suppq, 	this 	Board 	explained
in 	Hanford 	"as 	the 	United 	States 	Supreme 	Court 	has 	said, 	the
obligation 	of 	dealing 	with 	the 	exclusive 	representative 	'exacts
the 	negative 	duty 	to 	treat 	with 	no 	other 1 ."
The 	majority 	stretches 	to 	find 	a 	distinction 	between 	the
Hanford 	case 	and 	this 	one. 	It 	is 	a 	distinction 	without 	a
difference. 	The 	explanation 	is 	offered 	that 	although 	under
section 	3543.l(a) 	the 	selection 	of 	an 	exclusive 	representative
15

16
would 	cut 	off 	the 	(section 	3541.S(a)) 	right 	of 	a 	nonexclusive
employee 	organization 	to 	press 	"failure 	to 	negotiate" 	charges
against 	an 	employer, 	there 	is 	no 	comparable 	EERA provision 	that
would 	preclude 	an 	individual 	employee 	from 	doing 	so. 	However,
it 	is 	obvious 	that 	section 	3543--in 	directly 	parallel 	statutory
language--establishes 	the 	exclusivity 	principle 	vis-a-vis
individual 	employees 	just 	as 	does 	section 	3543.l(a) 	establish
the 	exclusivity 	principle 	vis-a-vis 	nonexclusive 	employee
organizations. 	Section 	3543, 	which 	begins 	with 	a 	grant 	of
rights 	to 	individual 	employees 	states, 	in 	pertinent 	part:
Public 	school 	employees 	... 	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.l 	or 	certified 	pursuant 	to
section 	3544.7, 	no 	employee 	in 	that 	unit 	may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
The 	parallel 	language 	in 	section 	3543.l(a), 	which 	begins
with 	a 	grant 	of 	rights 	to 	employee 	organizations, 	states, 	in
pertinent 	part:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that 	once 	an 	employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	section 	3544.1
or 	3544.7, 	respectively, 	only 	that 	employee
organization 	may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer.
16

A comparison 	of 	this 	parallel 	language 	shows 	that 	the 	only
difference 	other 	than 	form 	is 	that 	under 	section 	3543.l(a), 	the
selection 	of 	an 	exclusive 	representative 	takes 	from
nonexclusive 	employee 	organizations 	the 	ability 	to 	represent
the 	units 	in 	their 	employment 	relations 	with 	the 	employer,
while 	section 	3543 	takes 	from 	individual 	employees 	their
ability 	to 	negotiate 	individually 	with 	the 	public 	school
employer. 	The 	difference 	is 	that 	under 	exclusive
representation, 	minority 	employee 	organizations 	lose 	the 	right
to 	represent, 	which 	seems 	broader 	than 	the 	ability 	to 	negotiate
individually 	lost 	by 	individual 	employees. 	However, 	this 	is
explained 	by 	the 	remaining 	portion 	of 	section 	3543, 	which
retains 	for 	individual 	employees 	limited 	rights 	to 	present
grievances 	to 	the 	employer 	without 	the 	intervention 	of 	the
exclusive 	representative, 	and 	because 	section 	3543.l{a) 	does
not 	contain 	a 	comparable 	provision. 	In 	any 	event, 	the 	majority
strains 	common 	sense 	statutory 	construction 	by 	interpreting 	the
difference 	in 	language 	to 	mean 	that 	minority 	organizations 	lose
the 	right 	to 	file 	"failure 	to 	negotiate" 	charges, 	while 	an
individual 	employee 	does 	not. 	The 	irony 	of 	the 	majority's
construction 	in 	this 	case 	is 	that, 	even 	assuming 	the
exclusivity 	principle 	takes 	away 	fewer 	(nongrievance) 	rights
from 	individuals 	than 	it 	does 	from 	minority 	organizations, 	the
particular 	prerogative 	of 	the 	exclusive 	representative 	at 	issue
in 	this 	case, 	the 	right 	to 	meet 	and 	negotiate 	with 	the
17

18
employer,
	is
	the
	one
	area 	of
	representation
	which
	the
	EERA
specifically
	grants 	to
	the 	exclusive
	representative.
To
	summarize,
	the
	majority 	decision
	effectively
	erodes
Hanford
	and
	tends
	to
	undermine
	the
	prerogative
	of 	the
	exclusive
representative
	in
	negotiating 	matters.
	It
	holds
	that,
	apart
from
	grievances, 	the
	exclusivity
	of
	the
	chosen
	employee
organization
	is
	somehow
	less
	important 	in
	relation
	to
individual
	employees
	than
	in
	relation
	to
	employee
organizations.
	The
	practical 	effect	
of	
this
	retreat
	from
	the
exclusivity 	principle 	will
	be
	to 	signal
	those
	who
	wish
	to
interfere
	in
	the
	collective
	negotiations
	relationship 	that
	they
may	
do 	so
	by
	taking 	care
	to
	file
	the 	charge
	on
	behalf
	of
	an
individual
	employee
	rather
	than
	on
	behalf 	of
	a
	rival
	employee
organization.
	Indeed,
	there
	is
	some
	indication 	that
	Martin
	has
ties
	with
	a
	minority
	employee
	organization	
in	
this
	case,
although 	the
	unfair
	charge
	itself
	purports 	to
	be
	filed	
on
behalf 	of
	Mike
	Martin 	as
	an
	individual
	employee.
1
I
	am
	also
	concerned
	that
	the 	majority 	decision
	detracts
from
	the 	proper
	statutory 	significance
	and
	function 	of
lrn
	support	
of	
his 	original
	charge, 	Martin 	submitted
	a
letter	
he	
wrote
	to 	the
	South
	San
	Francisco
	High	
School
principal
	informing
	him
	that
	Martin
	was
	filing
	a
	formal
grievance 	about 	the 	coaching
	position.
	In
	the
	letter,
	Martin
indicates 	that	
on 	September 	23 	and
	26, 	1977,
	a
	president	
of	
theAmerican 	Federation	
of
	Teachers 	"spoke 	on
	my
	behalf
...•
"
18

19
section
	3544.9,
	which 	imposes
	on
	the
	exclusive
	representative
	a
duty
	to 	represent
	each
	and
	every
	employee
	in 	the
	unit
	fairly.
The
	circumstances 	of
	this
	case
	indicate 	that
	Martin,
	as
	a
unit
	employee
	who
	believes
	himself
	to
	be
	aggrieved 	about
	a
matter 	within
	the
	exclusive 	negotiating
	relationship
	between
the
	employer
	and
	the
	chosen
	representative,
	should
	properly
	be
pursuing
	a
	duty
	of
	fair
	representation 	action 	against 	the
exclusive
	representative
	instead 	of
	a
	refusal
	to 	negotiate
charge
	against
	the
	District.
	Martin
	is
	complaining
	that
	the
District
	took
	away
	his
	job
	without
	first
	giving 	the 	exclusive
representative
	an
	opportunity 	to 	negotiate
	on
	it.
	Assuming,
without 	deciding,
	that
	the 	matter
	is
	within 	the
	scope
	of
representation,
	Martin
	is
	unable
	to
	negotiate
	himself 	with 	the
District
	on
	this
	matter
	because
	the 	majority 	of 	the
	employees
have
	selected
	one 	employee
	organization 	to
	have
	exclusive
negotiating 	rights
	with 	the
	employer. 	Thus,
	if
	the
	District
acts
	on
	a
	matter 	within 	the
	scope
	of
	negotiations,
	the
exclusive 	representative
	has
	a
	duty
	to
	fairly
	represent 	the
interests
	of 	Martin.
	Under
	the
	EERA,
	if
	the 	exclusive
representative
	fails
	to 	negotiate
	this
	hiring 	matter, 	then
	it
could
	be 	in	
breach 	of 	the 	duty
	it
	owes
	the	
employee, 	in
violation 	of 	section
	3544.9.
	By
	contrast,
	the 	duty 	of 	the
employer
	to
	meet 	and
	negotiate 	is
	owed
	to 	the 	exclusive
representative	
rather 	than	
directly 	to 	individual	
employees.
19

20
In 	this 	case, 	Martin 	has 	not 	indicated 	he 	even 	requested
the 	exclusive 	representative 	to 	negotiate 	in 	his 	behalf
regarding 	his 	former 	coaching 	position, 	although 	his 	appeal
states 	that 	"as 	a 	matter 	of 	fact, 	the 	CTA was 	well 	aware 	of
(Martin's) 	charge." 	Clearly, 	Martin 	is 	attempting 	to 	bypass
the 	exclusive 	representative, 	preferring 	a 	forum 	which 	allows
him 	to 	directly 	press 	his 	negotiating 	complaint 	against 	the
District.
The 	majority 	has 	optimistically 	suggested 	that 	no 	harm will
result, 	since 	at 	a 	hearing 	the 	exclusive 	representative 	would
be 	able 	to 	waive 	negotiating 	on 	this 	item, 	and 	that 	could 	be
the 	end 	of 	Martin 1 s 	"failure 	to 	negotiate" 	case. 	However, 	harm
may 	be 	done 	to 	the 	negotiating 	relationship 	by 	allowing 	Martin
to 	interject 	himself, 	and 	by 	forcing 	the 	District 	to 	bear 	the
burden 	of 	defending 	itself. 	Recognizing 	this 	potential 	harm 	in
the 	Hanford 	case, 	the 	Board 	wrote 	11 ••• 	permitting 	the
intercession 	of 	a 	minority 	organization 	raises 	not 	only 	the
possibility 	of 	(other) 	mischief, 	but 	could 	very 	well 	interfere
with 	the 	right 	of 	the 	exclusive 	representative 	to 	determine, 	in
its 	own 	best 	judgment, 	those 	matters 	on 	which 	it 	decides 	to
negotiate." 	The 	majority 	has 	failed 	to 	explain 	why 	the 	same
potential 	for 	mischief 	does 	not 	exist 	when 	an 	individual
employee 	intercedes 	in 	the 	negotiating 	relationship,
irrespective 	of 	whether 	that 	individual 	is 	acting 	as 	a 	stalking
horse 	for 	a 	minority, 	rival 	organization 	or 	is 	genuinely 	acting
only 	in 	his 	own 	behalf.
20

The 	majority 	indicates 	that 	a 	second 	basis 	for 	allowing 	an
individual 	to 	file 	a 	"refusal 	to 	negotiate 	charge" 	is 	the
practice 	of 	the 	NLRB 	to 	allow 	this. 	I 	believe 	such 	reliance 	is
unjustified 	for 	two 	reasons. 	First, 	the 	reliance 	is 	selective
and 	self-serving, 	since 	the 	NLRB 	allows 	the 	filing 	of 	unfair
labor 	practice 	charges 	virtually 	without 	restriction 	and 	would
almost 	certainly 	allow 	a 	minority 	organization 	to 	file 	this
charge 	also, 	which 	we 	ruled 	in 	Hanford 	could 	not 	be 	done 	under
the 	EERA. 	Surely 	the 	language 	of 	the 	NLRB 	rule 	"any 	person"
does 	not 	indicate 	a 	preference 	for 	charges 	by 	individual
persons 	rather 	than 	by 	other 	entities. 	Indeed, 	under 	the 	NLRA
refusal 	to 	bargain 	charges 	are 	customarily 	filed 	by 	unions
rather 	than 	individual 	"persons."
Second, 	I 	do 	not 	believe 	it 	is 	appropriate 	or 	wise 	in 	this
case 	to 	borrow 	on NLRB 	policy 	in 	interpreting 	the 	EERA. 	To
begin 	with, 	the 	NLRA 	is 	silent 	on 	who may 	file 	an 	unfair 	labor
practice 	charge, 	while 	the 	EERA 	specifies 	who 	may 	do 	so
(section 	3541. 5 (a)). 	By 	judicial 	interpretation 	and 	NLRB 	rule,
any 	person, 	including 	strangers 	to 	the 	employment 	relationship
may 	file 	a 	charge 	under 	the 	NLRA.2 	However, 	the 	drafters 	of
2rn 	NLRB 	v. 	Indiana 	and Michigan 	Electric Company 	(1943)
8 	U.S. 	, 	7-18, 	the 	Supreme Court 	explained:
(NLRA) 	requires 	a 	charge 	be 	e 	the
Board may 	issue 	a 	nt, 	but 	omits 	any
r 	irement 	ge 	fil 	a
labor 	organization 	or 	an 	employee. 	In 	the

22
legislative
	hearings 	Senator
	Wagner,
	sponsor
of 	the
	Bill,
	strongly 	objected 	to
	a
limitation
	on
	the
	classes 	of 	persons
	who
could 	lodge 	complaints 	with 	the
	Board.
	He
said
	it
	often
	was
	not 	prudent 	for 	the
workman
	himself 	to
	make
	a
	complaint
	against
his
	employer,
	and
	that 	strangers 	to 	the
labor 	contract
	were
	therefore	
permitted	
to
make 	the	
charge.
	The
	charge
	is
	not
	a
proof.
	It
	merely
	sets	
in 	motion 	the
machinery
	of
	an
	inquiry.
	When 	a
	Board
complaint
	issues, 	the 	question
	is
	only	
the
truth	
of	
its
	accusations.	
The
	charge 	does
not
	even
	serve 	the	
purpose	
of
	a	
pleading.
See
	also 	Bagley 	Produces, 	Inc.
	and 	Freedom 	Through
	Equality
(1973) 	208
	NLRB
	20.
the
	EERA
	did
	not
	choose
	to
	adopt
	this
	language
	but
	instead
preferred
	the
	more
	restrictive 	filing
	eligibility
	provision.
I
	believe
	the
	most
	logical 	interpretation
	of
	this
	section
is
	that
	eligibility
	to
	file
	an
	unfair
	practice
	charge
corresponds
	to
	certain 	rights 	that
	the
	particular
	unfair
practice
	is
	designed
	to
	protect.
	For
	example,
	only
	employee
organizations
	should
	be
	eligible
	to
	file
	a
	charge
	alleging
	a
violation
	of
	employee
	organization
	rights
	(section 	3543.5(b)),
only
	an
	exclusive
	representative
	should
	be
	able
	to
	file
	a
refusal
	to 	negotiate
	charge
	(section 	3543.S(c)),
	etc.
Similarly,
	an 	employer
	should 	not
	be
	permitted 	to
	pursue
against
	the 	exclusive
	representative
	a
	charge
	of 	denial 	of
	fair
representation
	of
	a
	unit
	employee.
My
	contention
	is 	that
	unlike 	the
	NLRA,
	the
	EERA
was
	neither
designed
	for,
	nor
	requires,
	us
	to
	allow
	any
	person,
	employee,
22

employee 	organization, 	or 	employer 	to 	file 	each 	and 	every 	type
of 	unfair 	practice 	charge. 	We 	acknowledged 	this 	in 	our 	Hanford
decision, 	stating 	that 	the 	right 	to 	file 	a 	charge 	is 	not 	an
unlimited 	right.
There 	is 	a 	sound 	reason 	for 	PERB 	not 	to 	have 	virtually
unlimited 	eligibility 	to 	file 	charges 	as 	under 	the 	NLRB. 	This
reason 	relates 	to 	the 	structural 	and 	procedural 	differences
between 	the 	NLRB 	and 	the 	PERB. 	When 	a 	charge 	is 	filed 	with 	the
NLRB, 	that 	agency 	investigates 	the 	charge 	and 	declines 	to 	issue
a 	complaint 	unless 	the 	results 	of 	the 	investigation 	indicate
that 	prosecution 	is 	warranted. 	Thus, 	frivolous 	or 	weak 	charges
are 	screened 	out, 	and 	there 	is 	no 	real 	burden 	of 	defense 	placed
upon 	the 	charged 	party 	unless 	and 	until 	the 	NLRB 	General
Counsel 	has 	investigated 	and 	determined 	the 	charge 	is
meritorious. 	The 	corresponding 	PERB 	procedure, 	by 	contrast,
provides 	for 	no 	investigation 	and 	no 	evaluation 	of 	the 	charge.
PERB 	does 	not 	prosecute, 	but 	only 	functions 	as 	a 	neutral
between 	the 	charging 	party 	and 	the 	charged 	party. 	Thus, 	PERB
has 	no 	way 	of 	preventing 	a 	charging 	party 	who 	is 	able 	to 	state
a 	prima 	facie 	case 	from 	forcing 	a 	charged 	party 	to 	bear 	the
burden 	of 	defending 	itself 	at 	a 	hearing, 	no 	matter 	how
frivolous 	the 	charge 	may 	be. 	The 	only 	controls 	PERB may
exercise 	are 	to 	dismiss 	the 	charge 	if 	the 	filer 	lacks 	standing,
or 	if 	the 	charge 	fails 	to 	state 	a 	prima 	facie 	case. 	In 	order
to 	prevent 	harassment 	of 	the 	collective 	negotiations 	process 	by
23

24
dissatisfied
	and
	litigious
	persons,
	we
	should 	favor
	strict
interpretation
	of
	filing
	eligibility
	requirements.
	The
circumstances
	of
	this
	case
	illustrate
	the
	need
	for
	such
	a
strict
	interpretation.
The
	foregoing
	dissent
	does
	not
	relate
	to
	the
	standing
	of
	an
individual 	to
	file
	a
	charge
	against
	the
	public
	school
	employer
alleging
	a
	violation
	of
	EERA
	section
	3543.S(a)
	(interference
with
	employee
	rights),
	except
	where
	such
	a
	violation
	is
	found
only
	as
	a
	derivative
	of
	a
	3543.S(c)
	violation
	(refusal 	to
negotiate),
	as
	the 	majority
	has
	held
	in
	this
	case.
/ 	Raymond
	J.
	Gonzales,
	Member
24

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MICHAEL
	J.
	MARTIN,
Charging
	Party,
v.
SOUTH
	SAN
	FRANCISCO 	UNIFIED
SCHOOL
	DISTRICT,
Respondent.
Case
	No.
	SF-CE-180-77/78
NOTICE
	OF
	DISMISSALWITHOUT 	LEAVE
	TO
	AMEND
NOTICE
	IS
	HEREBY
	GIVEN
	that
	the
	above
	captioned
	charge
	is
dismissed 	without 	leave 	to
	amend.
BACKGROUND
The
	charge
	was
	originally 	filed
	on 	March
	6,
	1978.
	It
	was
dismissed 	with 	leave 	to
	amend
	and
	was
	subsequently
	amended
twice. 	This
	dismissal
	without 	leave 	to
	amend
	is
	based
	on
	the
second
	amended
	charge
	which
	claims
	violations
	of
	Government 	Code
sections
	3543.5
(a) 	and
	3543.5(c)
1
and
	incorporates
	all
	of 	the
allegations 	previously 	dismissed.
The
	charging 	party 	is	
a	
full-time,
	tenured 	business
	skills
teacher
	at
	Parkway
	Junior
	High
	School 	in 	the 	respondent 	school
district.
	In 	the 	three 	immediately 	preceding 	school 	years
	he 	has
lAll 	statutory 	references 	are 	to 	the 	California
	Government
Code
	unless 	otherwise 	noted.

held
	the
	paid,
	extra
	duty
	position
	of
	sophomore
	baseball
	coach
	at
South
	San
	Francisco
	High
	School,
	another 	school 	in 	the
	same
	South
San
	Francisco 	Unified
	School
	District
	(hereafter
	District).
On
	September
	14,
	1977,
	the 	charging
	party,
	Mr.
	Martin,
	was
notified
	by
	letter
	by
	the
	principal 	at
	South
	San
	Francisco
	High
School
	that
	his 	services
	as
	sophomore
	baseball
	coach
	would 	no
longer
	be
	required.
	Mr.
	Martin
	was
	informed
	that
	the
	decision
not 	to
	renew
	his 	year-to-year 	contract
	as
	a
	coach
	was
	based
	upon
a
	policy
	that,
	whenever
	possible,
	coaches 	should
	be 	drawn 	from
the
	staff
	at
	the 	school
	where
	the
	duty
	will
	be
	performed
	and
that,
	as
	of
	the
	1977-1978
	year,
	that
	possibility
	could
	be
fulfilled
	by
	hiring
	a
	teacher
	who 	was 	on
	the
	staff
	at
	the 	high
school
	itself.
The
	letter
	indicated 	that
	the 	reasons 	for
	his
	nonrenewal
were
	as 	follows:
As
	principal,
	I
	have
	experience
	many
difficulties
	over 	the
	past 	three 	years
	with
coaches
	who· do
	not 	teach
	on
	this
	campus.
These
	difficulties
	have
	arisen
	because
	of
conflicting
	school 	schedules,
	last
	minute
revised 	schedules,
	transportation
	problems,
lack 	of
	communication
	and
	the
	fact 	that
	thecoach
	is
	not
	readily 	available
	to 	the
athletes
	and
	to
	me.
Mr.
	Martin 	subsequently
	filed
	a
	grievance, 	alleging 	that
	the
termination 	of 	his 	services
	as
	a
	baseball
	coach
	"was 	done
	in
	an
arbitrary
	manner 	based
	on
	faulty
	and
	capricious 	reasoning."
	He
categorically 	rejected 	the 	rationale 	offered
	by
	the
	principal,
above. 	Mr.
	Martin 	exhausted
	all 	levels 	of 	the 	grievance
procedure 	contained 	in 	the
	certificated
	employees' 	negotiated
agreement 	with 	the 	District, 	but 	he 	did 	not 	prevail 	at
	any
	of 	the
four 	levels. 2

Mr.
	Martin 	then
	filed
	an
	unfair 	practice
	charge 	with 	the
Public
	Employment
	Relations
	Board
	(PERB). 	The
	charge,
	as
amended,
	alleges
	in 	substance
	that
	the
	school
	principal
	adopted
	a
new 2
school
	policy
	which
	related
	directly
	to 	the
	wages 	and
hours
	of 	unit
	members
	without
	notifying
	or
	negotiating
	with
	the
exclusive
	representative,
	the
	California
	T~achers
	Association
(hereafter
	CTA).
	He
	argues
	that
	the
	failure
	to
	notify
	the
exclusive
	representative
	of 	the
	policy
	change
	before
	its
implementation
	constitutes
	an
	unfair 	practice
	under 	Government
Code
	section
	3543.
5
(a), 	(c),
	and
	(d).
An
	informal 	conference
	was
	conducted
	on
	June
	23,
	1978
	in 	the
San
	Francisco
	Regional
	Office 	of 	the
	PERB. 	At
	that
	conference,
the 	respondent
	District
	moved
	for 	the
	dismissal
	of 	the 	charge
	on
the 	grounds
	that
	the
	allegations
	made
	are
	unintelligible,
uncertain
	and
	ambiguous
	and
	that
	the 	charging
	party
	has
	failed
	to
2rt
	is
	not
	at
	all
	clear
	from
	the
	multiplicity
	of
	documents
submitted
	by
	the 	charging
	party 	that
	the
	policy
	in
	question
	is
new.
	While
	he
	specifically 	alleges
	in 	his
	amended
	charge
	that
the
	complained
	of 	"condition 	of
	employmentn 	was 	newly
	established
on
	September 	14, 	1977,
	he
	attaches
	a
	letter
	of
	nonrenewal
	of
	that
same
	date 	indicating
	only
	that
	the 	policy
	was
	being 	followed
	on
that 	date.
	The
	document,
	originally
	submitted 	in 	support 	of 	his
grievance, 	reads 	in
	pertinent 	part
	as 	follows:
Though 	a 	member
	of 	the
	Parkway
	Junior
	High
School
	Faculty,
	I 	was
	offered 	the
	Sophomore
Baseball 	coaching 	job 	in 	the
	fall
	of
	1974.
There 	was 	no
	indication 	that
	the 	job
	had
been 	opened 	to
	members
	of 	the 	South 	San
Francisco 	Faculty,
	none
	desired 	the 	job.
	I
accepted 	the 	position
	and
	served 	the 	1975,
1976, 	and 	1977
	seasons.	
_
While
	this 	apparent 	discrepancy 	raises 	serious 	doubts 	about
the 	merits 	of
	Mr.
	Martin's 	charge,
	it 	is 	not, 	of 	course,
dispositive 	absent 	further 	information.
3

state 	a 	prima 	facie 	case. 	The 	motion 	was 	taken 	under
advisement. 	Briefs 	were 	subsequently 	filed. 	This 	dismissal 	is
in 	response 	to 	that 	motion.
DISCUSSION
The 	original 	charge 	and 	its 	amendments 	all 	allege 	violations
of 	sections 	3543. 5 (a) 	and 	3543. 5 (d). 3
No 	violation 	under 	section 	3543.5(a)
The 	Public 	Employment 	Relations 	Board 	(PERE, 	formerly 	the
Educational 	Employment 	Relations 	Board) 	has 	ruled 	in 	San 	Diequito
Faculty 	Association .v. 	San 	Dieguito 	Union 	High 	School 	District
(9/22/77) 	EERB 	Decision 	No. 	22, 	that 	a 	section 	3543.S(a) 	charge
must 	contain 	allegations 	which 	would 	support 	a 	conclusion 	that
the 	employer's 	actions 	either 	were 	carried 	out 	with 	the 	intent 	to
impose 	or 	threaten 	to 	impose 	reprisals 	on 	the 	charging 	party, 	to
discriminate 	or 	threaten 	to 	discriminate 	against 	the 	charging
party, 	or 	to 	otherwise 	interfere 	with, 	restrain 	or 	coerce 	the
charging 	party 	because 	of 	his 	exercise 	of 	rights 	guaranteed 	by
3section 	3543.5(a) 	reads 	as 	follows:
[It 	shall 	be 	unlawful 	for 	a 	public 	school 	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.
Section 	3543.5(d) 	reads 	as 	follows:
[It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to]
... 	Dominate 	or 	interfere 	with 	the 	formation
or 	~dministration 	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

Government 	Code 	section 	3540 	et 	seq., 	or 	that 	the 	natural 	and
probable 	consequences 	of 	the 	employer's 	actions 	were 	to 	interfere
with 	the 	charging 	party's 	exercise 	of 	rights 	guaranteed 	by
Government 	Code 	section 	3540 	et 	seq.
Despite 	an 	Order 	to 	Particularize 	and 	two 	attempts 	at
amending 	the 	charge, 	Mr. 	Martin 	has 	failed 	to 	offer 	the 	slightest
indication 	of 	how 	he 	believes 	the 	complained 	of 	actions 	meet 	the
San 	Dieguito 	test. 	Therefore, 	the 	motion 	to 	dismiss 	the 	charge,
insofar 	as 	the 	charge 	fails 	to 	state 	a 	prima 	facie 	case 	with
respect 	to 	section 	3543.5(a), 	is 	granted.
No 	violation 	under 	section 	3543.5(d)
The 	hearing 	officer's 	Order 	to 	Particularize 	asked 	the
charging 	party 	to 	specify 	which 	sections 	are 	alleged 	to 	have 	been
violated. 	The 	response 	was 	section 	3543.S(a) 	and 	(c).
Nonetheless, 	the 	second 	amended 	charge 	incorporated 	the 	original
charge 	by 	reference 	and 	the 	original 	charge 	included 	an
allegation 	of 	a 	violation 	of 	section 	3543.S(d). 	No 	allegation 	of
a 	section 	3543.S(d) 	violation 	is 	specifically made 	in 	the 	second
amended 	charge 	nor 	is 	the 	subject 	addressed 	in 	the 	charging
party's 	brief 	in 	opposition 	to 	the 	motion 	to 	dismiss. 	On 	the
basis 	of 	this 	ambiguity 	and 	on 	the 	basis 	of 	the 	total 	lack 	of
supporting 	facts 	in 	the 	charge, 	the 	portion 	of 	the 	charge
alleging 	a 	section 	3543.S(d) 	violation 	is 	also 	dismissed.
No 	violation 	under 	section 	3543.S(c)
The 	charging 	party 	also 	alleges 	a 	violation 	of 	section
3543.S(c), 	claiming 	that 	the 	failure 	to 	provide 	notice 	to 	an
exclusive 	representative 	of 	a 	change 	subject 	to 	negotiations
5

prior
	to 	implementation
	of
	that
	change
	is
	a
	per 	se
	violation,
citing
	the 	leading
	case
	of
	NLRB
	v.
	Katz
	(1962) 	369
	U.S.
	736 	[50
LRRM
	2177] 	and
	alleging
	that
	the
	policy
	at
	issue
	was
	implemented
without
	such
	notice.
	The
	District
	argues
	this
	subject
	is
	outside
the
	scope
	of
	negotiations.
It
	is
	not
	necessary
	to 	determine 	the
	question 	of
	whether
	a
policy
	of 	the
	District
	requiring
	that
	coaches
	be 	drawn
	where
possible
	from
	the
	schools
	where
	the
	duties 	will
	be
	performed
	is
	a
matter
	subject
	to
	negotiations
	because
	the 	respondent
	District
argues
	in
	support
	of
	its
	motion
	to 	dismiss
	that
	Mr.
	Martin
	lacks
standing 	to
	pursue
	a
	refusal
	to
	negotiate
	charge.
	This 	argument
is
	found
	to
	have
	merit.
Section 	3543.l(a) 	provides 	in
	part:
Employee
	organizations
	shall
	have
	the
	right
to
	represent
	their
	members
	in
	their
employment
	relations
	with
	public
	schoolemployers, 	except
	that
	once 	an 	emPlovee
organization
	is
	recognized 	or
	certified
	as
the 	exclusive 	representative
	...
	onlv
that
	employee
	organization
	may
	represent
that 	unit
	in
	their
	employment
	relations
	with
the 	public 	school
	employer
	....
(Emphasis 	added)
In 	Hanford
	Joint
	Union 	High
	School
	District
	(6/27/78)
	PERE
Decision
	No.
	58,
	the
	PERE
	held
	that
	once
	an
	exclusive
representative 	is 	selected,
	a
	minority
	employee
	organization
	has
no
	right
	to
	file
	an
	unfair 	practice
	charge 	over 	matters 	involving
wages, 	hours
	and
	other
	terms 	and
	conditions 	of
	employment. 	The
Board 	reasoned
	that 	to 	hold 	otherwise
	would 	tend 	to 	undermine 	the
employees' 	choice 	of
	an
	exclusive 	representative
	and 	promote
instability 	in 	employment
	relations.
6

Similar
	policy 	considerations
	regarding
	stability
	and
	the
role
	of
	an
	exclusive
	representative
	apply 	with
	respect
	to
	filing
of
	section
	3543.5{c)
	charges
	by
	individuals.
There
	is
	no
	authority
	under
	the
	Labor
	Management
	Relations
Act,
	as
	amended,
4
to 	support
	the
	conclusion
	that
	a
	minority
organization
	has
	standing
	to
	file
	a
	refusal
	to 	bargain
	unfair
practice
	charge.
	It
	has
	been
	held
	that
	a
	union
	must
	represent
	a
majority
	of
	employees
	in 	the
	unit
	in 	order 	to
	file
	a
	refusal
	to
bargain 	charge.
	NLRB
	v. 	Brasher
	Freight
	Lines, 	Inc.
	(8th
	Cir.
1941) 	119
	F.2d
	379 	[8
	LRRM
	814,
	815]; 	United
	States
	Stamping
	Co.
(1938) 	5
	NLRB
	171,
	175
	[lA
	LRRM
	491].
	The
	charging
	party
	cites
case
	authority
	to
	show
	that
	unfair
	practice
	charges
	can
	be
	filed
by
	other
	than
	an
	exclusive
	representative,
	but
	none
	of 	the
	cases
upon 	which 	he
	relies
	deal
	with
	a
	refusal
	to 	bargain 	charge.
Since
	bargaining
	is
	the 	unique
	province 	of
	the
	exclusive
representative
	it
	is
	not
	surprising 	that 	refusal
	to 	bargain
charges 	should
	be
	distinguished
	in
	this
	manner.
Allowing
	Mr.
	Martin 	to
	carry
	the
	banner
	on
	behalf 	of
	an
exclusive 	representative
	not
	a
	party 	to
	this 	action
	could 	produce
rather
	anomalous
	results,
	such 	as
	an
	order 	requiring
	a
potentially 	reluctant 	organization
	to
	negotiate
	with
	a
	clearly
reluctant
	employer 	over
	an
	issue 	both
	may
	well
	have
	rightly
chosen 	to 	ignore
	at
	the
	table.
429 	U.S.C.
	section
	151
	et 	seq.
	The 	Labor 	Management
Relations
	Act
	(hereinafte~
	LMRA)
	amended
	the 	National 	Labor
Relations 	Act.
7

If
	the 	charging
	party
	chooses 	to
	appeal
	the
	dismissal,
	he
	may
do
	so
	by
	filing
	an
	original
	and
	four
	copies 	of
	an
	appeal 	to
	the
Board
	itself
	within
	twenty
	(20)
	calendar
	days
	after
	service 	of
this
	Notice
	of 	Dismissal.
	Such
	appeal
	must
	be
	in
	writing,
	signed
by
	the
	party
	or
	his 	agent,
	and
	contain
	facts
	and
	argument
	upon
which
	the 	appeal
	is
	based.
	California
	Administrative
	Code,
	title
8,
	section
	32630
(b).
	The
	appeal
	must
	be
	actually
	received
	by
	the
Executive
	Assistant
	to 	the
	Board
	at
	the
	headquarters
	office
	in
Sacramento
	before
	the
	close 	of 	business
	(5:00 	p.m.)
	on
September
	27,
	1978,
	in
	order 	to
	be
	timely
	filed.
	The
	appeal
	must
be
	accompanied
	by
	proof 	of
	service
	upon
	all
	parties.
	See
California
	Administrative
	Code,
	title
	8,
	sections
	32135, 	32142
and
	32630(b), 	as
	amended.
Dated: 	September
	7,
	1978
?
8
WILLIAM
	P.
	SMITH
General 	Counsel
MICHA~7'TONSI
Eea
	1ng
	Officer
~-r