El Centro Elementary Teachers Association (Willis and Mills-Willis) (PERB 0232E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MALLORY 	LYN WILLIS 	AND
PAMELA 	SUE MILLS-WILLIS,
Charging 	Parties,
v.
EL CENTRO 	ELEMENTARY 	TEACHERS
ASSOCIATION,
Respondent.
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____________________ )
Case 	No. 	LA-CO-90
PERB 	Decision 	No. 	232
August 11 , 	198 2
Appearances: 	William F. 	Macklin 	(Ewing, 	Kirk 	and 	Johnson), 	for
Mallory 	Lyn 	Willis 	and 	Pamela 	Sue 	Mills-Willis;
Charles 	Gustafson 	for 	El 	Centro 	Elementary 	Teachers 	Association.
Before 	Jaeger, 	Tovar 	and 	Jensen, 	Members.
DECISION
Mallory 	Lyn 	Willis 	and 	Pamela 	Sue 	Mills-Willis 	except 	to
the 	attached 	hearing 	officer 	dismissal 	of 	the 	unfair 	labor
practice 	charges 	filed 	by 	them. 	After 	considering 	the 	entire
record 	in 	light 	of 	the 	exceptions, 	the 	Public 	Employment
Relations 	Board 	(Board) 	affirms 	the 	hearing 	officer's
conclusions 	of 	law 	and 	dismissal 	of 	the 	charges.
The 	Board 	also 	reviewed 	the 	charging 	parties' 	exceptions
concerning 	the 	substitution 	of 	hearing 	officers 	in 	this 	case.
Having 	reviewed 	the 	record 	as 	a 	whole, 	we 	conclude 	that 	the
parties 	suffered 	no 	prejudice 	and 	that 	the 	delegation 	and
substitution 	of 	hearing 	officers 	was 	within 	the 	powers 	of 	the
Board, 	Fremont 	Unified 	School 	District 	(4/5/78) 	PERB 	Order
No. 	Ad-28.

ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that: 	the
charges 	filed 	by 	Mallory 	Lyn 	Willis 	and 	Pamela 	Sue
Mills-Willis, 	in 	Case 	No. 	LA-CO-90 	are 	DISMISSED without 	leave
to amend.
PER CURIAM
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STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MALLORY 	LYN WILLIS 	AND
PAMELA SUE MILLS-WILLIS,
Charging 	Parties,
v.
EL CENTRO 	ELEMENTARY TEACHERS
ASSOCIATION,
Respondent.
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) 	Unfair 	Practice
Case 	No. 	LA-CO-90
PROPOSED DECISION
(7/15/80)
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___________________ )
Appearances: 	William F. 	Macklin 	(Ewing, 	Kirk 	and 	Johnson), 	for
Mallory Lyn 	Willis 	and 	Pamela 	Sue 	Mills-Willis~ 	Charles
Gustafson 	for 	El 	Centro 	Elementary 	Teachers 	Association.
Before Sharrel J. 	Wyatt, 	Hearing 	Officer.
PROCEDURAL BACKGROUND
Mallory Lyn 	Willis 	and 	Pamela 	Sue 	Mills-Willis 	(hereafter
Charging 	Parties) 	filed 	unfair 	practice 	charges 	against 	the 	El
Centro Elementary 	Teachers Association 	(hereafter 	Association)
on 	June 	25, 	1979, 	alleging 	violation 	of 	sections 	3543.6(b) 	and
3544.91 • 	The 	essence 	of 	the 	charge 	is 	that 	the 	Association,
as 	exclusive 	representative 	of 	a 	unit 	of 	certificated 	employees
which 	includes 	Charging 	Parties, 	had 	permitted 	both members 	and
non-members 	to 	attend 	the 	meeting 	and 	vote 	on 	proposals 	and 	on
ratification 	of 	negotiated 	agreements. 	Without 	prior 	notice,
the 	Association 	changed 	this 	policy 	and 	excluded 	non-members
from 	voting. 	Charging 	Parties 	are 	not 	Association 	members.
1All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.

Following 	an 	informal 	conference 	on July 	11, 	1979, 	which 	failed
to 	resolve 	this 	matter, 	the 	Association 	filed 	its 	answer 	on
July 	16, 	1979 	and 	a 	formal 	hearing 	was 	conducted 	on September
12 	and 	13, 	1979 	at 	El 	Centro. 	Briefs 	were 	filed 	November 	19
and 	21, 	1979. 	Hearing 	officer 	Diane 	Spencer 	conducted 	the
formal 	hearing. 	Pursuant 	to 	California Administrative
Code, 	title 	8, 	part 	III, 	seGtion 	32168(b), 	the 	case was
reassigned 	for 	decision 	on 	June 	16, 	1980.
FINDINGS OF FACTS
Charging 	Parties 	allege 	and 	the 	Association 	admits 	that 	the
El 	Centro Elementary Teachers Association 	is 	a 	recognized
employee 	organization 	representing 	all 	elementary 	teachers 	in
the 	El 	Centro School 	District.2 	Implicit 	in 	these 	pleadings
and 	in 	the 	facts 	as 	hereafter 	found, 	is 	the 	fact 	that 	the
Association 	is 	an 	employee 	organization 	within 	the 	meaning 	of
the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA) 	and
is 	the 	exclusive 	representative 	of 	the 	unit 	of 	certificated
employees. 	The 	unit 	contains 	approximately 	190 	teachers 	of
whom 	160 	were 	Association 	members 	at 	the 	date 	of 	hearing.
Charging 	Parties, 	Mr. 	and 	Mrs. 	Willis, 	are 	both 	speech 	and
language 	specialists 	who 	began 	teaching 	at 	the 	El 	Centro
2The 	El 	Centro 	Elementary School 	District 	is 	located 	in
Imperial 	County 	and 	has 	an 	enrollment 	of 	approximately 	4050
attending 	elementary 	schools 	at 	nine 	sites. 	1979 California
Public 	School 	Directory, 	Cal. 	State 	Department 	of 	Education 	at
p. 	131.
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Elementary School 	District 	at 	the 	start 	of 	the 	1978-79 	school
year. 	Prior 	to 	that, 	they 	taught 	in 	Hillsboro, 	Texas.
Neither 	has 	ever 	been 	a 	member 	of 	the 	Association.
Mr. 	Willis 	indicated 	that 	in 	Texas, 	they 	knew 	nothing 	about
collective 	negotiations 	for 	teachers 	or 	representation 	in 	the
processing 	of 	grievances. 	Both 	Willises 	were 	approached 	by
Association 	representatives 	at 	the 	start 	of 	the 	school 	year 	and
invited 	to 	join 	the 	Association. 	Glenice 	waters, 	who was
Association 	president 	during 	the 	1978-79 	school 	year,3
testified 	that 	Mallory 	Willis 	inquired 	about 	whether 	the
Association 	would 	still 	have 	to 	represent 	him 	in 	grievances 	and
in 	negotiations 	if 	he 	were 	not 	a 	member 	and 	that 	she 	told 	him
they 	would. 	Willis 	denied 	this 	conversation. 	Willis 	testified
that 	when 	he 	first 	came 	to 	the 	District, 	he 	was 	approached 	at
least 	once 	and 	usually 	two 	or 	three 	times 	daily 	by members 	and
given 	literature 	and 	information 	on 	what 	the 	Association 	could
do 	for 	him, 	but 	the 	only 	information 	he 	received 	was 	on
insurance 	and 	travel 	benefits 	to 	him 	if 	he 	were 	a member. 	He
had 	never 	heard 	of 	"grievance."
Because 	the 	Willises 	were 	admittedly 	very 	naive 	in 	relation
to 	the 	concept 	of 	collective 	negotiations, 	there 	is 	no 	reason
to 	doubt 	the 	testimony 	of 	either 	witness. 	Rather, 	Association
representatives 	spoke 	to 	Willis 	in 	words 	of 	art 	common 	to
3she 	presided 	at 	Association 	meetings, 	was 	spokesperson
in 	negotiations 	and 	had 	held 	numerous 	other 	offices.
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negotiations 	and 	assumed 	Willis 	understood. 	Those
conversations 	were 	not 	comprehended 	by Willis 	because 	he 	was
totally 	lacking 	in 	the 	necessary 	framework 	to 	grasp 	the 	concept
of 	what 	was 	being 	said.
Willis 	was 	initially 	assigne~to 	Lincoln 	Elementary
School. 	About 	the 	third 	week 	of 	school, 	he 	received 	notice
that 	Superintendent 	Brautingam wished 	to 	see 	him. 	At 	the
meeting, 	he 	was 	informed 	that 	it 	was 	necessary 	to 	transfer 	him
to 	another 	school 	and 	transfer 	a 	native American 	speech 	and
language 	therapist 	to 	his 	school 	to 	achieve 	racial/national
origin 	balance. 	He 	objected 	to 	the 	transfer 	and 	in 	exchange,
the 	superintendent 	agreed 	to 	provide 	a 	phone 	for 	his 	office 	and
that 	the 	District 	would 	provide 	a 	District 	vehicle 	for 	the 	move
or 	pay his 	expenses 	and 	that 	they 	would 	pay 	him 	if 	he 	moved 	on
the 	weekend.
Willis 	acknowledged 	that 	it 	was 	permissible 	under 	the
agreement 	for 	the 	superintendent 	to make 	the 	transfer. 	Willis
described 	the 	meeting 	as 	a 	grievance. 	Under 	the 	agreement,
assuming 	this 	was 	a 	grievance, 	he 	would 	represent 	himself 	at
this 	stage 	in 	the 	proceeding. 	Willis 	was 	satisfied 	with 	the
resolution 	and 	agreed 	with 	the 	superintendent 	not 	to 	pursue 	the
matter 	further.
In 	addition 	to 	Willis 	and 	the 	superintendent, 	Association
President Waters 	was 	among 	those 	present 	at 	the 	meeting. 	She
had 	been 	given 	notice 	and 	attended 	as 	an 	observer. 	Neither
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transferee 	requested 	her 	presence. 	She 	said 	nothing 	at 	the
meeting 	and 	testified 	that 	when 	she 	is 	the 	representative 	in 	a
grievance, 	she 	does 	the 	talking 	and 	all 	the 	work 	and 	research
necessary 	for 	the 	presentation. 	She 	did 	not 	understand 	this
conference 	to 	be 	a 	grievance 	hearing.
Following 	the 	meeting, 	Willis 	testified 	that 	he 	and 	waters
had 	the 	following 	conversation 	on 	the 	way 	back 	to 	school:
(By Waters) 	You 	know, 	if 	you 	had 	been 	a
member, 	you might 	have 	received 	better
representation.
(By Willis) 	You 	mean 	to 	tell 	me 	that 	you
would 	have 	done 	something 	more 	had 	I 	been 	a
member?
(By waters) 	Well, 	who 	knows?
This 	conversation 	was 	not 	denied 	by Waters. 	Nor 	was 	she 	asked
about 	it 	by Charging 	Parties 	in 	cross 	examination.
At 	the 	time 	of 	this 	meeting, 	Willis 	testified:
I 	think 	I 	knew 	there 	was 	a 	contract, 	but 	it
was 	something 	that 	I 	fully 	didn't
understand. 	In 	Texas, 	where 	I 	had 	been,
there 	was 	no 	such 	thing 	as 	a 	contract 	that
was 	negotiable 	by 	teachers. 	It 	was 	between
the 	teacher 	and 	the 	district.
Because 	the 	superintendent 	was 	within 	the 	contract 	to 	make
the 	transfer 	and 	because 	Willis 	would 	represent 	himself 	at 	this
stage 	under 	the 	grievance 	procedure 	in 	any 	event, 	this
conversation 	is 	found 	to 	be 	nothing 	more 	than 	an 	inducement 	by
innuendo 	or 	puffing 	to 	get 	Willis 	to 	join 	the 	Association,
erroneous 	though 	it 	may 	have 	been.
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During 	the 	1978-79 	school 	year, 	the 	Willises 	attended 	every
meeting 	of 	the 	Association. 	Notice 	was 	given 	by word 	of 	mouth,
by 	posting 	on 	the 	bulletin 	board, 	and 	in 	May 	and 	June, 	by
telephone 	tree. 	The 	flyer, 	"Straight Talk" 	was 	distributed 	to
members 	first, 	then 	nonmembers. 	One 	hundred 	and 	ninety 	were
ordered 	and 	there 	were 	times 	when 	there 	were 	not 	enough 	for 	all
nonmembers. 	After 	school 	was 	out 	they 	did 	not 	attend 	meetings
or 	receive 	notice 	as 	found 	hereafter.
Until 	April 	of 	1977, 	nonmembers 	of 	the 	Association 	were 	not
permitted 	to 	vote 	at 	Association 	meetings. 	At 	that 	time, 	the
right 	to 	vote 	was 	extended 	to 	nonmembers 	for 	contract
ratification 	but 	not 	for 	contract 	proposals 	that 	were 	presented
to 	the 	District 	in 	negotiations. 	However, 	members 	of 	the
negotiating 	team 	set 	up meetings 	in 	the 	school 	to 	obtain
faculty 	input 	and 	those 	meetings 	were 	open 	to 	all 	teachers 	in
the 	unit, 	both 	members 	and 	nonmembers.
During 	1978-79, 	nonmembers 	did 	vote 	on 	contract 	proposals
in 	approximately 	January, 	February 	and 	part 	of 	March. 	The 	vote
was 	permitted 	as 	the 	result 	of 	settlement 	of 	an 	unfair 	practice
charge 	challenging 	the 	Association's 	interpretation 	of 	its
constitution. 	Nonmembers, 	including Willis, 	voted 	on 	proposals
relating 	to 	class 	size, 	retroactive 	pay, 	school 	calendar, 	and 	a
5 percent 	differential 	for 	speech 	therapist, 	special 	education,
and 	bilingual 	teachers. 	Notice 	was 	given 	by 	posting 	minutes 	of
general 	meetings, 	special 	meetings, 	representative 	council
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meetings, 	and 	notices 	of 	upcoming 	meetings 	including 	the
agenda. 	In 	addition, 	meetings 	were 	conducted 	at 	an 	established
time 	and 	place 	each 	month.
At 	the 	end 	of 	the 	1977-78 	school year, 	some 	members
approached 	waters 	regarding 	proposed 	changes 	in 	the
constitution. 	In 	response, 	a 	constitution 	committee 	was 	set 	up
early 	in 	the 	1978-79 	school year. 	That 	committee 	was 	ready 	to
make 	its 	presentation 	at 	the 	January 	1979 	meeting, 	but 	it 	was
deferred 	until 	February 	because 	only 	15 	to 	20 	people 	showed 	up
in 	January. 	On 	March 	20, 	1979, 	the 	constitution 	was 	changed 	to
delete 	the 	right 	of 	nonmembers 	to 	vote 	on 	proposals 	for
negotiations 	and 	contract 	ratification. 	The 	president 	denied
that 	any 	officer, 	member 	of 	the 	representative 	council 	or 	any
Association 	governing 	body 	encouraged 	or 	promoted 	this 	change.
There 	is 	no 	evidence 	that 	they 	did. 	Nonmembers 	continue 	to
have 	the 	right 	to 	attend 	meetings 	and 	give 	input 	or 	approach
members 	of 	the 	negotiating 	team 	with 	their 	concerns.
Willis 	was 	of 	the 	opinion 	that 	the 	vote 	was 	taken 	away 	from
nonmembers 	because 	the 	Association 	did 	not 	like 	the 	way 	a 	vote
had 	gone 	on 	organizational 	security. 	First, 	the 	Association
conducted 	a 	vote 	of 	all 	teachers 	involving 	two 	choices:
maintenance 	of membership or 	agency 	shop. 	Because 	this 	vote
was 	run 	inconsistently, 	verbally 	in 	some 	schools 	and 	by 	ballot
vote 	in 	others 	and 	it 	did 	not 	offer 	the 	option 	"neither," 	the
vote 	was 	re-run 	two 	weeks 	later. 	The 	result 	of 	the 	vote 	was
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not 	announced 	to 	members 	or 	nonmembers. 	The 	reason 	given 	was
that 	they 	did 	not 	want 	the 	District 	to 	know 	the 	vote. 	Willis
felt 	that 	he 	should 	have 	been 	told 	the 	result, 	but 	never
expressed 	this 	feeling 	to 	any Association 	representative.
Mel 	Ramsey 	was 	one 	of 	three 	who 	counted 	the 	vote. 	He
recalls 	there 	were 	70 	votes 	for 	"neither," 	50-55 	for 	"agency
shop" 	and 	20-30 	for 	"maintenance 	of 	membership." 	He 	stated 	he
felt 	the 	nonmember 	vote 	was 	determinative 	but 	later 	recalled
that 	he 	and 	the 	others 	on 	the 	tallying 	committee 	had 	discussed
the 	fact 	that 	the 	result 	reflected 	that 	teachers 	clearly 	wanted
some 	form 	of 	organizational 	security 	clause. 	The 	vote 	was
directional 	and 	not 	intended 	to 	be 	binding 	on 	the 	negotiating
team. 	Waters 	determined 	the 	combined 	"agency 	shop" 	and
"maintenance 	of membership" 	votes 	outweighed 	the 	choice 	of
"neither." 	Three 	years 	earlier, 	the 	vote 	was 	nearly 	the 	same
and 	the 	Association 	negotiated 	what 	they 	considered 	to 	be 	a
form 	of 	maintenance 	of 	membership. 	This 	was 	ratified 	by 	the
teachers 	indicating, 	in 	waters' 	opinion, 	that 	they 	wanted 	some
form 	of 	organizational 	security.
The 	votes 	on 	organizational 	security occurred 	just 	before
the 	constitutional 	change 	of 	March 	20 	which 	took 	the 	vote 	away
from 	nonmembers. 	It 	is 	not 	inferred, 	however, 	that 	the
Association 	changed 	its 	constitution 	to 	take 	the 	vote 	away
because 	they 	did 	not 	like 	the 	way 	nonmembers 	voted 	on 	this
issue. 	The 	reasons 	are 	threefold: 	(1) 	the 	vote 	was
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directional, 	not 	binding; 	(2) 	the 	constitutional 	committee 	was
ready 	to 	report 	in January 	and 	was 	not 	directed 	on 	this 	issue
by 	Association 	officers; 	and 	(3) 	the 	vote 	was 	nearly 	the 	same
as 	it 	had 	been 	three 	years 	earlier 	when only members 	voted on
the 	issue. 	If 	the 	combined 	vote 	of 	members 	and 	nonmembers 	is
essentially 	the 	same 	as 	the 	only 	members 	vote 	had 	been, 	it
cannot 	be 	inferred 	that 	the 	Association 	was 	reacting 	to 	the
inclusion 	of 	nonmembers 	in 	the 	vote.
From April 	or 	May 	through 	June, 	a 	telephone 	tree 	was
utilized 	to 	give 	notice. 	On 	June 	20, 	a 	meeting 	was 	held 	to
explain 	the 	provisions 	of 	the 	tentative 	agreement. 	School 	was
out 	and 	notice 	of 	this 	meeting 	was 	by 	telephone 	tree. 	At 	this
meeting 	people 	were 	informed 	that 	the 	ratification 	meeting
would 	be 	held 	on June 	26. 	The 	telephone 	tree 	was 	again 	used 	to
contact 	members 	and 	nonmembers 	for 	the 	June 	26 	meeting. 	It 	was
not 	directed 	that 	any 	names 	be 	deleted 	from 	the 	list 	by 	the
Association 	president. 	At 	the 	June 	26 	meeting, 	a 	voice 	vote
was 	taken 	for 	ratification 	and 	it 	was 	not 	possible 	to 	determine
if 	nonmembers, 	who 	were 	present 	at 	the 	meeting, 	voted 	although
they 	were 	not 	supposed 	to 	do 	so.
The 	Willises 	did 	not 	receive 	notice 	or 	attend 	either 	of
these 	meetings. 	No 	one 	was 	home 	to 	answer 	the 	phone 	for 	four
days, 	June 	18 	through 	the 	22nd. 	Mrs. 	Willis 	was 	on Mark
Laine's 	phone 	list. 	Teachers 	on 	his 	list 	were 	contacted 	five
times 	by 	telephone 	tree 	in 	May 	or 	June. 	She 	received 	two 	calls
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from him 	and 	her 	husband 	received 	two 	calls 	on 	her 	behalf.
Laine's 	phone 	log 	reflects 	checks 	representing 	four 	calls
completed 	to Mrs. 	Willis 	and 	two 	dashes 	reflecting 	he 	was
unable 	to 	get 	in 	touch 	with 	her 	on 	two 	occasions. 	He 	was 	not
sure 	of 	the 	reason 	for 	the 	two 	dashes 	but 	indicated 	they 	may
have 	been 	attempts 	to 	call 	her 	for 	the 	ratification meeting.
He 	made 	no 	calls 	on 	June 	26th 	because 	his 	daughter 	was 	born
that 	day.
Elizabeth 	Durham, 	who 	set 	up 	the 	telephone 	tree, 	said 	no
distinction 	was made 	between members 	and 	nonmembers. 	She
simply 	directed 	others 	working 	on 	the 	tree 	to 	call 	the 	teachers
on 	their 	list.
Mr. 	Willis 	was 	on 	Loris 	Baker's 	list. 	She 	never 	understood
that 	she 	was 	to 	call 	people 	on 	her 	list. 	Rather, 	she 	would
tell 	them 	the 	information 	face 	to 	face 	or 	leave 	a 	note 	in 	their
mailbox. 	In 	June, 	when 	school 	was 	out, 	Baker 	asked 	Eileen
Walker 	to 	make 	her 	calls 	because 	she 	was 	going 	to 	be 	out 	of
town. 	She 	said 	she 	and 	Walker 	went 	over 	the 	list 	and 	deleted
the 	names 	of 	people 	they 	knew would 	be 	out 	of 	town 	and 	no
effort 	was 	made 	to 	contact 	those 	people. 	She 	could 	not 	recall
if 	Willis 	told 	her 	he 	would 	be 	out 	of 	town 	or 	if 	his 	name 	was
deleted.
While 	the 	Willises 	did 	not 	receive 	notice 	in 	June, 	no
evidence 	was 	presented 	from 	which 	it 	could 	be 	inferred 	that 	the
Willises 	were 	intentionally 	denied 	notice 	because 	of 	their
nonmembership. 	Rather, 	the 	record 	reflects 	that 	other
10

nonmembers 	were 	at 	the 	meetings, 	that 	no 	one 	was 	home 	for 	four
critical days 	to 	receive 	notice, 	and 	that 	the 	telephone 	tree 	is
not 	the 	most 	reliable 	vehicle 	for 	reaching 	teachers, 	be 	they
members 	or 	nonmembers, 	especially 	during 	the 	summer 	months.
Other 	than 	failing 	to 	receive 	notice 	of 	the 	two 	June
meetings, 	the 	Willises 	received 	notice 	and 	attended 	all 	other
meetings. 	They 	were 	also 	asked 	to 	support 	Association
activities 	in 	other 	ways. 	Mallory 	Willis 	responded 	by 	filling
out 	a 	form 	reflecting 	what 	he 	was 	willing 	to 	do 	in 	support 	of
collective 	negotiations~ 	Pamela 	Sue 	Willis 	agreed 	verbally 	that
she 	would 	wear 	a 	black 	rose 	to 	symbolize 	unity 	in 	grieving 	over
the 	state 	of 	negotiations. 	Mallory Willis 	turned 	in 	three
stamped, 	self-addressed 	envelopes 	to 	receive 	information 	during
the 	summer 	months. 	Two 	of 	the 	three 	were 	used 	over 	the
summer. 	No 	mailings 	were made 	to 	the 	Willises 	or 	others,
either 	members 	or 	nonmembers, 	as 	notice 	of 	the 	ratification
meetings. 	Pamela 	Sue 	did 	not 	turn 	in 	envelopes 	because 	that
would 	have 	been 	duplication. 	In 	summary, 	other 	than 	becoming
members, 	the 	Willises 	were 	supportive 	participants 	in
Association 	activity 	in 	every 	other 	way.
Mallory 	Willis 	did 	attempt 	to 	participate 	in 	the 	tally of
ballots 	dealing 	with 	5 	percent 	differential 	pay 	at 	the
Association 	meeting 	and 	was 	told 	he 	could 	not 	do 	so 	because 	he
was 	not 	a 	member, 	nor 	could 	he 	observe 	the 	tally 	of 	ballots.
Only Association 	members 	observed 	the 	actual 	counting 	of
11

ballots 	because 	it was 	the 	Association's 	responsibility. 	The
5 percent 	differential involved 	speech 	and 	language 	specialists,
among 	others. 	The 	great 	majority 	of 	those 	covered by 	the
proposal 	were 	members. 	The 	vote was 	to 	drop 	this 	proposal 	in
negotiations. 	It 	was 	later 	picked 	up 	and 	included 	in 	the 	final
agreement 	because 	an 	unfair 	practice 	charge 	was 	filed 	and 	a
temporary 	restraining 	order 	to 	prohibit 	ratification 	of 	the
agreement 	was 	threatened.
Willis 	felt 	he 	had 	been 	harassed 	or 	ridiculed 	because 	he
was 	not 	a 	member. 	Another 	teacher 	called 	him 	a 	freeloader 	in
the 	teachers' 	lounge. 	On 	another 	occasion 	when 	the 	5 	percent
pay 	differential 	was 	up 	for 	vote, 	he 	was 	asked 	if 	he 	had 	joined
yet, 	said 	he 	had 	not, 	and 	was 	told 	"Okay. 	Thank 	you. 	I 	just
wanted 	to 	know 	how 	to 	vote 	on 	this." 	Willis 	felt 	that 	taking
the 	vote 	away 	was 	an 	indirect 	attempt 	to 	keep 	him 	from
attending 	Association 	meetings. 	No 	evidence 	was 	presented 	in
support 	of 	this 	feeling.
The 	Association 	has 	represented 	nonmembers 	by 	filing 	a
grievance 	on 	behalf 	of 	a 	nonmember 	in 	December 	1977, 	and 	by
affirmatively 	approaching 	a 	nonmember 	who 	had 	problems 	with
evaluations, 	making 	suggestions 	to 	her 	and 	telling 	her 	to 	let
the 	Association 	know 	if 	she 	had 	problems 	down 	the 	line.
12

ISSUE
Whether 	the 	Association 	denied 	the 	right 	to 	fair
representation 	to 	the 	Charging 	Parties, 	a 	violation 	of
sections 	3544.9 	and/or 	3543.6(b) 	by 	prohibiting 	them 	from
voting 	on 	proposals 	for 	negotiations 	and 	contract 	ratification
under 	its 	by-laws.
CONCLUSIONS 	OF LAW
The 	Association 	is 	charged 	with 	violation 	of 	section 	3544.9
which 	reads:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
It 	is 	also 	charged 	with 	violation 	of 	section 	3543.6(b)
which 	reads:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to
(b) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
An 	employee 	organization's 	breach 	of 	its 	duty 	of 	fair
representation 	found 	in 	section 	3544.9 	constitutes 	a 	violation
of 	section 	3543.6(b). 	(See 	Mt. 	Diablo 	Unified 	School 	District
(8/21/78) 	PERB 	Decision 	No. 	68.) 	In 	the 	instant 	case, 	it 	is
alleged 	that 	the 	Association 	has 	breached 	its 	duty 	of 	fair
representation 	pursuant 	to 	section 	3544.9, 	consequently
13

committing 	an 	unfair 	practice 	in 	violation 	of 	section 	3543.6(b)
and 	that 	there 	is 	an 	independent 	violation 	of 	section 	3543.6(b)
for 	discriminatory 	treatment 	of 	nonmembers.
The 	Board 	itself 	has 	had 	occasion 	to 	address 	the 	duty 	of
fair 	representation 	as 	it 	relates 	to 	internal 	union matters.
(Jules 	Kimmett 	(10/19/79) 	PERB 	Decision No. 	106.) 	The Board's
analysis 	recognizes 	that 	the 	Legislature, 	in 	conferring 	the
right 	upon 	an 	exclusive 	representative 	to 	be 	the 	only 	employee
organization 	empowered 	to 	represent 	unit 	members 	in 	their
employment 	relations 	with 	the 	public 	school 	employer, 	also
imposed 	the 	duty 	to 	exercise 	its 	power 	fairly 	on 	behalf 	of 	all
of 	those 	for 	whom 	it 	acts. 	The 	duty 	of 	fair 	representation
thus 	clearly 	extends 	to 	meeting 	and 	negotiating, 	consulting 	on
educational 	objectives 	and 	administering 	the 	agreement. 	As 	to
questions 	which 	do 	not 	involve 	the 	employer 	or 	which 	are
strictly 	internal 	union 	matters, 	only 	those 	activities 	that
have 	a 	substantial 	impact 	on 	the 	relationship of 	unit 	members
to 	their 	employer 	are 	subject 	to 	the 	duty 	of 	fair
representation.
In 	Thomas A. 	Romero 	(3/26/80) 	PERB 	Decision 	No. 	124, 	the
Board 	itself 	analyzed 	the 	federal 	standard 	under 	which 	a 	breach
of 	the 	duty 	of 	fair 	representation 	occurs 	when 	a 	union's
conduct 	toward 	a 	member 	of 	the 	bargaining 	unit 	is 	arbitrary,
discriminatory 	or 	in 	bad 	faith 	with 	approval. 	The 	facts 	in
this 	case 	will 	be 	analyzed 	with 	the 	foregoing 	precedent 	in mind.
14

While 	admitting 	that 	the 	activity 	surrounding 	Mallory
Willis' 	transfer 	in 	September 	of 	1979 	is 	beyond 	the 	six-month
limitation 	period 	for 	filing 	a 	claim 	(section 	3541.S(a)),
Charging 	Parties 	urge 	the 	finding 	that 	it 	constitutes 	evidence
of 	intent 	on 	the 	part 	of 	the 	Association 	to 	discriminate
against 	nonmembers. 	Based 	on 	the 	findings 	of 	fact, 	no 	such
intent 	is 	inferred. 	The 	grievance 	procedure 	did 	not 	provide
for 	representation 	at 	the 	initial 	step 	for 	members 	or
nonmembers. 	Thus, 	there 	can 	be 	no 	disparate 	treatment 	in
failing 	to 	represent 	a 	nonmember. 	The 	comment 	by waters
following 	the 	meeting 	was 	inaccurate 	and 	obviously 	designed 	to
induce 	Willis 	to 	join, 	but 	it 	was 	remote 	in 	time 	and 	does 	not',
standing 	alone, 	support 	a 	finding 	of 	intent 	to 	discriminate.
The 	failure 	of 	the 	Association 	to 	properly 	interpret 	its
by-laws 	voluntarily 	to 	permit 	nonmembers 	to 	vote 	on 	proposals
for 	negotiations 	was 	corrected 	in 	early 	1979. 	Subsequently 	the
by-laws 	were 	changed 	to 	remove 	the 	right 	to 	vote 	on 	both
proposals 	for 	negotiations 	and 	contract 	ratification 	on 	March
20, 	1979.4 	As 	the 	Board 	itself 	indicated 	in 	Kimmett, 	supra,
p. 	14, 	the 	duty 	of 	fair 	representation 	implies 	some
consideration 	of 	the 	views 	of 	various 	groups 	of 	employees 	and
4As 	indicated 	in 	the 	findings 	of 	fact, 	the 	change 	in
by-laws 	was 	not 	in 	retaliation 	for 	the 	vote 	on 	the 	union
security 	proposal. 	(See 	discussion, 	supra, 	p. 	8.
15

some 	access 	for 	communication 	of 	those 	views, 	but 	there 	is 	no
requirement 	that 	formal 	procedures 	be 	established. 	Here, 	there
were 	formal 	procedures 	for 	a 	vote 	on 	proposals 	and 	ratification
and 	those 	procedures 	were 	taken 	away. 	Since 	the 	Association
was 	not 	required 	to 	provide 	such 	procedures, 	deleting 	those
procedures 	does 	not 	breach 	the 	duty 	of 	fair 	representation
provided 	some 	consideration 	of 	the 	views.of 	various 	groups 	of
employees 	and 	some 	access 	for 	communication 	of 	those 	views 	is
still 	provided. 	Such 	access 	was 	provided 	in 	this 	instance.
While 	Mallory Willis 	"felt" 	the 	Association 	did 	not 	want
nonmembers 	at 	meetings, 	there 	is 	no 	evidence 	to 	support 	this
feeling. 	In 	fact, 	the Association 	holds 	regularly 	scheduled
meetings 	which 	nonmembers 	attend. 	Word 	of 	mouth, 	posting 	on
bulletin 	boards 	of meeting 	notices 	with 	agenda, 	as 	well 	as
minutes 	of 	general 	meetings, 	special 	meetings 	and
representative 	council 	meetings 	are 	used 	to 	give 	notice. 	While
the 	flyer, 	"Straight 	Talk" 	is 	distributed 	to 	members 	first,
generally 	nonmembers 	also 	receive 	copies. 	The 	telephone 	tree
was 	also 	used. 	Obviously, 	it 	is 	only 	as 	accurate 	as 	those 	who
participate 	in 	it, 	but 	there 	is 	no 	evidence 	that 	it 	was 	abused
to 	keep 	nonmembers 	from 	receiving 	notice. 	Since 	nonmembers
were 	present 	at 	the 	two 	June 	meetings, 	lack 	of 	notice 	to 	the
Willises 	must 	be 	attributed 	to 	their 	absence 	on 	four 	critical
days 	combined 	with 	oversight 	or 	error 	in 	the 	telephone 	tree
itself. 	Additionally, 	members 	of 	the 	negotiating 	team 	are
16

available 	to 	receive 	input. 	With 	all 	the 	foregoing 	means 	of
notice 	and 	communication 	available, 	it 	is 	found 	that 	the 	denial
of 	formal 	voting 	structure 	to 	nonmembers 	does 	not 	have 	a
substantial 	impact 	on 	the 	relationship 	of 	unit 	members 	to 	their
employer.
The 	vote 	to 	drop 	the 	5 	percent 	differential 	for 	speech 	and
language 	specialists, 	special 	education 	teachers 	and 	bilingual
education 	teachers 	was 	conducted 	among 	members 	and 	nonmembers.
The 	majority of 	those 	covered 	by 	this 	provision 	were 	members.
Because 	the 	conduct 	of 	the 	vote 	and 	those 	affected 	by 	the 	vote
included 	members 	and 	nonmembers, 	it 	is 	impossible 	to 	see 	how
this 	could 	constitute 	failure 	to 	represent.
Finally, 	Willis 	complains 	of 	being 	subjected 	to 	harrassment
or 	ridicule 	because 	of 	his 	nonmembership. 	The 	evidence 	fails
to 	show 	how 	this 	relates 	to 	his 	employment 	relationship or 	how
comments 	by 	fellow 	teachers 	are 	attributable 	to 	the
Association. 	Again, 	this 	evidence 	will 	not 	support 	a 	failure
to 	represent 	charge 	under 	any 	possible 	analysis.
Based 	on 	the 	foregoing 	discussion, 	it 	is 	found 	that 	the
Association 	did 	not 	breach 	its 	duty 	of 	fair 	representation.
In Kimmett 	(supra, 	p. 	14), 	the 	Board 	itself 	set 	forth 	the
standard 	for 	finding 	a 	violation 	of 	section 	3543.6(b), 	applying
the 	test 	in 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB
,
17

Decision 	No. 	89, 	to 	the 	rights 	provided 	in 	sections 	35405 	and
35436 • 	For 	the 	reasons 	stated 	in 	Kimmett 	(supra, 	p. 	14), 	and
based 	on 	the 	conclusion of 	law 	relative 	to 	the 	alleged
violation 	of 	section 	3544.9 	stated 	herein, 	no 	violation 	of
section 	3543.6(b) 	is 	found.
PROPOSED ORDER
Based 	on 	the 	findings 	of 	fact, 	conclusions 	of 	law 	and 	the
entire 	record 	in 	this 	matter, 	the 	unfair 	practice 	charges 	filed
by Mallory 	Lyn 	Willis 	and 	Pamela 	Sue 	Mills-Willis 	against 	the
El 	Centro 	Elementary Teachers Association 	are 	hereby 	DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final ·on 	August 	4, 	1980, 	unless 	a 	party 	files 	a
5section 	3540 	recognizes
[T]he 	right 	of 	public 	school 	employees 	to
join organizations 	of 	their 	own 	choice, 	to
be 	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 	appropriate 	unit 	••••
6section 	3543 	states
Public 	school 	employees 	shall 	have 	the 	right
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 ••••
18

I timely 	statement 	of 	exceptions. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32300. 	Such 	statement 	of
exceptions 	and 	supporting 	briefs 	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 August 	4, 	1980 	in 	order 	to 	be 	timely 	filed. 	See
California Administrative 	Code, 	title 	8, 	part 	III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently 	with 	its 	filing 	upon 	each
party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with
the 	Board 	itself. 	See 	California Administrative 	Code, 	title 	8,
sections 	32300 	and 	32305, 	as 	amended.
DATED: 	July 	15, 	1980
~	Hearing 	Of 	icer
19