PERB Decision No. 0202E•Chaffey Joint Union High School District (Fleck) (PERB 0202E)
Chaffey Joint Union High School District (Fleck) (PERB 0202E)
PERB Decision No. 0202ECalperbMar 26, 1982
Full text
) ) ) ) ) ) ) ) ) ) ) ) ) ) _____________________ ) 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.
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