Union of American Physicians and Dentists (Stewart) (PERB 0663S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE S. 	STEWART, 	D.D.S.,
Charging 	Party,
Vv.
UNION OF 	AMERICAN 	PHYSICIANS
AND DENTISTS,
Respondent.
Case 	No. 	S-CO-42-S
PERB Decision No. 	663-S
April 13, 	1988
Appearances; 	George S. 	Stewart, 	D.D.S., 	on his own behalf; 	Gary
Robinson, 	Executive Administrator, 	for Union of American
Physicians 	and 	Dentists.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the
Charging Party, 	George S. 	Stewart, 	D.D.S, 	to the attached
proposed 	decision of 	a PERB administrative 	law 	judge 	(ALJ).
The ALJ dismissed 	the 	complaint, 	finding 	that 	Charging 	Party
was 	bound by 	the 	settlement 	agreement 	voluntarily 	negotiated
and 	executed 	at 	an 	earlier 	date by 	the parties 	to 	this 	action.
Charging 	Party had 	alleged 	that 	the 	settlement 	agreement 	was
void 	and 	a 	formal hearing on 	the merits 	was 	required, 	on 	the
ground 	that 	he 	received 	a payment 	from 	Respondent 	several 	days
beyond 	the 	time 	period 	established 	under 	the 	terms 	of 	the
parties' agreement.
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__________ (

Having 	carefully 	reviewed 	the 	complete 	record 	in 	this
matter, 	the 	Board hereby adopts 	the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law 	as 	the 	Decision of 	the 	Board 	itself. 	We 	do
find 	it 	necessary, 	however, 	to briefly address one 	exception
raised by 	the 	Charging 	Party.
Charging 	Party claims 	that, 	in allowing 	the 	Respondent's
late 	payment 	in 	this 	matter, 	PERB has 	interfered with 	Charging
Party's 	right 	to a 	formal 	hearing 	on 	the merits 	of 	the
underlying 	complaint herein. 	Charging 	Party argues 	that 	the
late 	payment 	constitutes 	noncompliance 	with 	the 	agreement's
terms, 	thus 	providing 	Charging 	Party with 	the 	right 	to cancel
the 	agreement 	and proceed 	to 	formal 	hearing on 	the 	complaint.
The ALJ 	concluded 	that 	Charging 	Party was 	attempting, 	in bad
faith, 	to rescind 	the 	settlement 	agreement 	inasmuch 	as 	Charging
Party 	clearly changed his 	mind 	with 	respect 	to 	the 	agreement
several hours 	after 	its 	execution. 	This 	was before he 	could
possibly have 	known 	that he 	would 	receive 	the 	payment 	several
days 	late. 	Moreover, 	the ALJ 	found 	that 	Respondent had 	in good
faith 	attempted 	to 	comply with 	the 	agreement by mailing 	the
check 	to Charging Party 	in a 	timely 	fashion, 	as 	well 	as
rendering 	timely performance 	of 	the 	remainder 	of 	its
contractual 	obligations. 	Charging Party, 	on the other hand,
failed 	to perform 	any of his 	promises 	under 	the 	contract.
We 	would 	further 	add 	the 	following 	to 	the 	ALJ's 	conclusions
of 	law with 	respect 	to 	this 	issue. 	In addition 	to 	the 	fact
22

that 	the 	Respondent 	acted 	in good 	faith 	in 	rendering 	its
performance under 	the agreement, 	it 	is 	clear that, 	pursuant
to the 	terms of 	the 	contract, 	time was 	not of 	the essence.
Furthermore, 	Charging 	Party was 	not 	prejudiced 	in any way as
a 	result 	of 	the delay 	in his 	receipt 	of 	the payment. 	These
factors, 	taken 	together, 	lead to the 	inescapable conclusion
that 	there 	was 	no material 	breach 	or 	failure 	of 	condition when
Charging 	Party 	received 	Respondent's 	check 	five 	days 	late.
Delay 	in performance 	is 	a material 	failure only 	if 	time 	is 	of
the 	essence 	due 	to 	the 	express 	contractual 	language 	or 	the 	very
nature 	of 	the 	contract. 	(Henck v. 	Lake Hemet Water Co. 	(1937)
9 Cal.2d 	136, 	143-144; 	Johnson v. Alexander 	(1976) 	63 Cal.App.3d
806, 	813, hg. den. 	[134 Cal.Rptr. 101]; 1 Witkin, Summary of
Cal. Law 	(9th ed. 	1987) 	Contracts, 	sec. 	759, p. 689.)
Consequently, 	Charging 	Party did 	not 	have 	the 	ability 	to
cancel 	the 	settlement 	agreement on 	the 	ground 	that he 	received
Respondent's 	payment 	several 	days 	late.
ORDER
Charging 	Party's 	petition 	to 	calendar 	a 	formal 	hearing 	on
PERB 	Case 	No. 	S-CO-42-S 	is 	DENIED and 	Case 	No. 	S-CO-42-S 	is
hereby 	DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in 	this 	Decision.
33

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
GEORGE S. 	STEWART. 	D.D.S.
Charging Party.
v.
UNION OF 	AMERICAN PHYSICIANS
AND DENTISTS.
Respondent.
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) 	Unfair 	Practice
Case No. 	S-CO-42-S	)
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) 	PROPOSED DECISION
) 	(5/23/86)
)
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Appearances: 	George S. 	Stewart. 	D.D.S.. 	in pro per. 	and
Constance Stewart, 	for Charging Party; 	Gary Robinson, 	Executive
Administrator, 	and Joan Bryant. 	Field Representative, 	for Union
of 	American Physicians 	and Dentists.
Before: 	James W. 	Tamm, 	Administrative Law Judge
PROCEDURAL 	HISTORY
This 	charge was 	originally filed 	on February 5. 	1985 	by
Dr. 	George S. 	Stewart 	(hereafter 	Stewart) 	against 	the Union of
American Physicians 	and Dentists 	(hereafter UAPD), 	alleging
violations 	of 	section 	3519.5(b) 	of 	the 	State Employer-Employee
Relations Act (SEERA).1
Stewart, 	a dentist at Folsom Prison, 	has 	been a member 	of
unit 16 	(Physicians. 	Dentists and Podiatrists), 	which is
1The 	SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Section 	3519.5 	reads 	in pertinent 	part 	as 	follows ..
It 	shall 	be unlawful 	for 	an 	employee
organization to:
(b) 	Impose or 	threaten to 	impose 	reprisals
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
_________________ )
Ill' 	9 	• 	,.. 	• 	• 	• 	11 I 	• 	• 	,a 	• 	.. 	• 	1111 • 	a 	• 	• 	.. 	I-

represented 	by UAPD as 	exclusive 	representative. 	Stewart 	had
been 	involved 	in a 	dispute with UAPD over 	payment 	of 	dues 	to
that 	organization. 	In his 	charge. 	Stewart alleged 	that UAPD
unlawfully 	denied 	him membership 	and 	placed 	him 	on 	"fair 	share"
status 	at 	a 	time 	he was 	a 	dues-paying union member. 	He 	also
claimed 	that 	UAPD discriminated 	against 	him 	by 	fraudulently
overcharging him membership dues. 	Finally, 	Stewart 	alleged
that 	UAPD had 	taken 	reprisals 	against 	him 	because 	he 	had 	sued
UAPD 	in Small 	Claims 	Court 	regarding a 	dues 	dispute.
On April 	16. 	1985. 	Stewart's 	charge was dismissed 	in 	its
entirety 	by a 	regional 	attorney of 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	for 	failure 	to 	state a 	prima
facie 	violation.
Stewart appealed 	that dismissal, 	and 	on December 	5, 	1985
PERB 	partially 	overturned 	the 	dismissal.2 The 	Board 	held
that 	Stewart 	had 	stated 	a 	prima 	facie violation 	by alleging
that 	he 	had 	been denied membership, 	despite 	tender 	of 	the 	full
amount 	of 	dues, 	because 	of 	his 	Small 	Claims Court 	suit 	against
UAPD.
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.
2union 	of 	American Physicians 	and 	Dentists 	(Stewart)
(1985) PERB Decision No. 	539-S.
22

A 	complaint was 	issued 	and 	an 	informal 	settlement
conference was 	held 	on February 20. 	1986. 	The 	parties 	reached
agreement 	at 	the 	informal 	conference. 	A withdrawal 	of 	the
complaint 	signed 	by 	Stewart was 	to 	become 	effective upon
completion of 	certain actions 	by the 	parties.
Stewart 	subsequently 	alleged 	noncompliance 	on 	the 	part 	of
UAPD and 	requested 	that 	a 	formal 	hearing 	regarding 	the 	unfair
practice 	charge 	be 	held. 	A hearing was 	scheduled 	for May 	6,
1986, 	not only on the underlying unfair 	practice 	charge, 	but
also 	on whether 	the 	charge 	should 	be 	dismissed 	pursuant 	to 	the
settlement agreement 	reached 	on February 20. 	1986. 	At 	the
conclusion of 	the 	first 	day of 	hearing, 	and 	after 	both parties
had 	rested 	their 	cases 	on 	the 	issue 	of 	whether 	the 	complaint
should 	be 	dismissed 	pursuant 	to 	the 	settlement 	agreement, 	the
hearing was 	recessed 	pending 	a 	ruling 	on UAPD's 	motion 	to
dismiss. 	The parties waived 	transcripts 	and 	briefs, 	and 	the
matter 	was 	submitted 	for 	decision 	immediately.
FINDINGS OF FACT
Underlying 	Dispute.
By way of 	background,3 the 	underlying 	case 	involves 	a
dispute 	between 	Stewart 	and 	UAPD over 	payment 	of 	membership
3This 	background 	is 	taken 	partially 	from the 	pleadings 	in
this 	case 	and 	not 	entirely 	from evidence 	submitted 	on 	the
record. 	Thus, 	no factual 	findings 	are made as 	to 	the 	truth or
accuracy 	of 	each 	party's 	position 	regarding 	the 	underlying
dispute.
w	
3

dues. 	Stewart 	argued 	that 	he 	had 	been paying 	an unlawfully
high dues 	rate 	because he 	paid dues 	directly, 	rather 	than at 	a
lower 	rate 	through payroll 	deduction. 	When Stewart was
unable 	to get 	the 	dues 	rate 	lowered, 	he 	successfully sued UAPD
in Small 	Claims 	Court for 	the 	excess. 	Then, 	according to
Stewart, 	when he 	refused 	to 	continue 	direct 	dues 	payment 	at 	the
higher 	level. 	UAPD 	fraudulently denied 	him membership 	and
caused 	the 	State 	Controller 	to 	automatically deduct 	"fair
share" 	payments 	from his 	salary.5UT 	Furthermore. 	Stewart
argued 	that when he 	once 	again 	offered 	to 	pay 	the 	full 	amount
of dues 	at 	the higher direct dues 	payment 	level, 	UAPD refused
to 	remove 	him from 	"fair 	share" 	salary deductions.
UAPD countered 	that 	it 	legitimately had 	two 	dues 	rate
structures, 	a 	lower 	rate for 	payroll deduction payees, 	and a
higher 	rate 	for 	those who 	paid 	"direct 	dues" 	through a 	billing
process. 	According 	to UAPD, 	Stewart wanted 	to pay the 	lower
rate while utilizing 	the 	direct 	dues-payment method, 	rather
than 	automatic 	payroll 	deductions. 	When UAPD 	lost 	Stewart's
4The 	rates 	for 	direct 	dues 	involving 	a 	billing 	process
are 	$360.00 	per 	year, 	as 	contrasted 	to 	the 	dues 	paid 	by payroll
deductions 	which 	are 	$282.00 	per 	year.
5"Fair 	share" 	deductions 	are 	authorized 	by Senate
Bill 	1419, 	which allowed 	exclusive 	representatives 	to 	negotiate
fair 	share 	agreements with the 	State. 	Once 	conditions 	of
SB 1419 	are 	satisfied, 	the 	State Controller's 	office 	is
required 	to 	withhold 	fair 	share 	deductions 	for 	the 	exclusive
representative. 	Under 	SB 	1419, 	fair 	share 	fees 	do 	not 	require
employee authorization for 	payroll 	deductions, 	therefore, 	fair
share deductions 	cannot 	be 	cancelled 	by employees.
4

Small 	Claims 	action 	it 	appealed 	that 	judgment 	seeking 	a 	trial
de 	novo 	in 	Sacramento 	Superior 	Court.
According 	to UAPD, 	when Stewart 	refused 	to 	tender 	the 	full
"direct dues" 	amount, 	UAPD legitimately had 	"fair 	share"
deductions 	made 	from his 	salary. 	When Stewart 	finally did
tender 	the direct dues 	amount, 	he 	refused 	to 	sign either 	a
payroll 	deduction authorization card 	or 	a 	membership 	card
notifying 	the Union 	that 	he would 	be 	a 	direct 	dues-paying
member. 	Therefore, 	according to UAPD, 	it did not change
Stewart's 	status 	from 	"fair 	share" 	payee 	because 	of 	Stewart's
refusal 	to 	clarify his 	status 	in spite 	of 	numerous 	requests 	by
UAPD.
Settlement 	Conference.
The 	settlement 	conference 	in question was 	held 	on
February 20, 	1986 	in the Sacramento PERB Regional Office. 	In
attendance were 	Stewart, 	representing himself. 	Joan Bryant 	and
Gary Robinson, 	representing UAPD, 	and 	PERB Administrative Law
Judge Terry Filliman. 	Neither 	party 	chose 	to 	be 	represented 	by
an attorney, 	although both parties were 	aware 	of 	that 	right.
The 	conference 	started 	at 	10:00 	a.m. 	and 	lasted 	until
approximately 	4:30 	p.m. 	By mutual 	agreement 	of 	the 	parties,
they 	continued 	meeting 	throughout 	the 	day without 	taking 	a
lunch break. 	However, 	occasional 	short 	breaks 	allowed 	the
parties 	to 	obtain 	snacks 	from a 	nearby 	employee 	lunch 	room.
During 	the 	morning 	session of 	the 	settlement 	conference.
55

Judge Filliman met with 	both 	parties 	at 	the 	same 	time,
discussing 	the 	issues which needed 	to 	be 	settled. 	After 	one 	of
the 	short 	afternoon breaks. 	Judge Filliman met with each side
separately 	regarding 	their 	individual 	concerns.
After 	meeting with 	each 	side 	separately. 	Judge Filliman
drafted 	a 	settlement 	agreement which 	he 	discussed 	with 	both
parties 	in 	joint 	session. 	During that 	session, 	the 	parties
discussed 	each paragraph of 	the draft, 	and 	Stewart 	requested
the 	inclusion of 	an additional 	paragraph 	to 	give 	him what 	he
felt 	was 	greater 	protection.
After 	inclusion 	of 	Stewart's 	paragraph and 	correction of
some 	typographical 	errors, 	both parties 	signed 	the 	settlement
agreement. 	Stewart 	also 	signed 	a withdrawal 	of 	his 	complaint
with prejudice. 	Prior 	to 	signing 	the withdrawal. 	Stewart asked
questions 	regarding 	the 	legal 	ramifications 	of 	withdrawing with
or 	without 	prejudice. 	Judge Filliman answered 	Stewart's
questions 	to 	Stewart's 	satisfaction, 	and 	Stewart 	signed 	the
withdrawal.
The 	Settlement Agreement.
The 	settlement 	agreement 	itself 	contained 	numerous
requirements 	to 	be 	carried 	out 	by each party. 	UAPD agreed 	to
reinstate 	Stewart 	to 	union membership 	and 	to waive 	any
additional 	fees 	beyond what was 	already paid. 	UAPD also 	agreed
to 	Stewart's 	demand 	that 	he 	not 	be 	required 	to 	sign a 	new
membership 	application. 	UAPD was 	also 	required 	to 	terminate
66

its 	request 	to 	the 	State Controller 	for 	Stewart's 	fair 	share
deductions 	effective March 	1986.
Stewart 	agreed 	that 	his 	obligation 	to 	pay membership 	dues
would 	commence March 	1, 	1986. 	Stewart was 	allowed 	to 	choose 	to
continue payment of 	dues 	by direct dues 	payment, 	or 	to 	commence
payment 	by payroll 	deduction. 	However. 	Stewart was 	explicitly
required 	to 	notify UAPD prior 	to March 	l. 	1986 	of which method
he would 	elect.
Stewart 	agreed 	to 	dismiss 	his 	complaint 	and 	resulting 	Small
Claims 	Court 	judgment with prejudice, 	and UAPD agreed 	to
withdraw its 	appeal 	of 	Stewart's 	judgment 	to 	the 	Sacramento
Superior 	Court. 	The withdrawal 	of 	the 	court 	proceeding was 	to
be 	done within 	ten days 	of 	the 	settlement. 	Stewart 	also waived
any 	right 	to 	challenge UAPD's 	dues 	structure 	in any 	court 	suit,
unless 	it was 	raised 	as 	a 	defense 	to 	a 	union suit 	against
Stewart.
Also within ten days. 	UAPD was 	to 	pay Stewart $400.
Both parties 	also 	agreed 	to 	abide 	by 	provisions 	of 	the UAPD
constitution 	and 	bylaws.
Actions 	of UAPD.
Following 	the 	settlement 	conference, 	UAPD 	took 	action
necessary 	to 	reinstate 	Stewart 	to 	membership 	and waived 	any
additional 	fees. 	It also 	began the 	process 	of 	removing Stewart
from 	"fair 	share" 	payroll 	deductions 	through the 	State
Controller's 	office. 	This was 	completed 	so 	that 	Stewart 	had 	no
77

March deduction from his 	payroll 	check, 	as 	required 	in the
settlement 	agreement.
On February 26. 	Robinson made out 	a 	$400 	check to 	Stewart,
and sent 	it 	to Daniel Yamshon. 	the UAPD attorney, 	who was 	to
forward 	it 	to 	Stewart. 	According to Deborah Wiese. 	Yamshon's
legal 	secretary, 	she deposited 	the 	check 	to Stewart, 	along with
a 	proof 	of 	service, 	into a mailbox near 	the office 	prior 	to
5:00 	p.m. 	on February 28, 	1986. 	Wiese 	chose 	that 	particular
mailbox 	because 	she was 	aware 	there was 	supposed 	to 	be 	a
5:00 	p.m. 	pickup 	on Friday afternoons 	at 	that 	mailbox.
Although 	the proof 	of 	service was 	dated February 28, 	the
envelope 	in which 	Stewart 	eventually 	received 	the 	check was 	not
postmarked until March 	5, 	1986.6	6 	Wiese 	testified 	that 	the
law firm had 	been 	having 	other 	problems 	with 	postmarks 	on mail
deposited 	at 	an earlier 	date. 	Wiese 	had 	spoken to 	the 	regular
postman, 	who 	had 	explained 	to Wiese 	that 	the problems 	may have
been 	caused 	by 	temporary 	employees 	filling 	in 	for 	regular
postal 	employees 	on vacation.
Yamshon 	also 	prepared 	the 	papers 	necessary 	for 	Stewart 	to
withdraw his 	Small 	Claims 	Court 	judgment 	and 	the 	Superior 	Court
appeal, 	and 	sent 	them to 	Stewart for 	his 	signature.
6A copy of 	the 	check 	sent 	to PERB at 	the 	same 	time 	as 	the
one 	sent 	to 	Stewart was 	also 	postmarked March 5. 	with the proof
of 	service dated February 28, 	1986.
CD	8

Actions 	of 	Stewart.
In contrast 	to UAPD's 	efforts 	to 	carry out 	the 	settlement
agreement. 	Stewart 	did 	nothing at 	all 	to 	implement 	the
agreement. 	Although Stewart 	testified 	early 	in 	the 	hearing
that 	he 	had 	decided 	to 	renege 	on the 	settlement 	agreement 	only
after UAPD's 	$400 	payment was 	late, 	the 	evidence 	clearly 	shows
that quite the contrary is true.7
Within hours 	after 	signing 	the 	agreement, 	Stewart 	began
having 	feelings 	of 	settlement 	remorse. 	On cross-examination,
Stewart 	admitted 	that after 	having dinner 	on the 	20th, 	he
reflected upon 	the 	settlement 	and 	decided 	he 	did 	not 	like 	it.
He felt 	it 	put him 	in a 	bad 	light, 	and 	required 	him to do 	a
great deal, 	and UAPD to do very 	little.
Stewart 	testified 	that 	he 	had 	not 	read 	the 	two-page
settlement 	agreement well 	enough 	to 	fully comprehend 	the
agreement. 	He 	said 	normally he would 	have 	read 	such an
important document 	at 	least 	four 	times 	before 	signing, 	but
because 	it was 	getting 	late, 	he only read 	it once 	before
signing the settlement agreement.8
7
7Throughout 	the 	hearing, 	Stewart 	blatantly 	contradicted
his 	own 	testimony, 	thereby 	rendering 	him a 	completely
unbelievable witness. 	His 	testimony was 	also 	inconsistent with
many of 	his 	earlier 	actions. 	Stewart 	often failed 	to 	give 	any
plausible 	explanation for 	those 	inconsistencies.
8on cross-examination. 	Stewart 	admitted 	that 	he 	had 	a
total 	of 	ten years 	of 	college 	education. 	Stewart 	had 	also 	been
elected 	to 	the 	board 	of 	trustees 	for 	the Los Rios 	Community
College District four 	times, 	for a 	total 	of 	16 years 	of 	service
as a trustee. 	Thus. 	I conclude that Stewart, 	a dentist, 	was
quite 	capable 	of 	understanding 	the 	agreement.
9

The 	next 	morning 	at 	8:30 	a.m.. 	Stewart 	called 	Judge 	Filliman
seeking 	to 	get 	out 	of 	the agreement, 	but was 	told 	the agreement
was 	binding. 	Stewart 	then 	spoke 	about 	the 	matter 	with his
attorney. 	Thomas Lynch, 	who 	the following day wrote 	to Judge
Filliman. 	The 	letter 	indicated 	in 	relevant 	parts 	the 	following:
George 	S. 	Stewart 	does 	hereby both withdraw
and 	rescind 	the 	so-called 	settlement 	he
executed 	at 	approximately 	4:00 	p.m. 	on 	this
20 February 1986.
The 	reasons 	given for 	Stewart's 	rescission of 	the 	agreement
are 	in essence 	as 	follows. 	(1) 	The 	length of 	the 	hearing was
unusually 	long, 	from 10:00 a.m. 	to 	4:00 p.m., 	without 	a 	lunch
break; 	(2) 	Judge Filliman had 	close 	communication with UAPD
representative 	Joan Bryant 	and 	a 	correlative 	lack 	of
communication with Stewart 	"who, 	after 	all, 	caused 	the 	hearing
to 	be 	brought"; 	(3) 	Judge Filliman had 	commented about 	the
probable 	outcome 	of 	an appeal 	of 	Stewart's 	suit 	against UAPD,
thereby 	taking 	a 	clear 	position 	for 	one 	party 	and 	against
another; 	and. 	(4) 	Stewart 	felt 	pressured and 	coerced 	into
signing 	the 	settlement 	agreement.
According 	to Lynch,
For 	these 	reasons 	and 	other 	reasons,9 that
settlement 	agreement 	is 	a 	nullity.
From that 	day on, 	Stewart 	never 	gave 	any 	indication 	that 	his
position 	regarding 	rescission 	of 	the 	settlement 	agreement 	had
changed.
9None 	of 	those 	"other 	reasons" 	were 	given.
10

Judge Filliman responded 	on February 28, 	1986. 	In essence,
he 	noted 	that 	Stewart's 	participation 	in 	the 	settlement was
voluntary, 	with full 	knowledge 	of 	his 	rights 	and 	obligations,
that 	both 	the 	purpose 	of 	the 	conference 	and 	the 	normal
operating 	procedures 	were 	carefully 	explained 	to 	both 	parties
prior 	to 	and 	during 	the 	course 	of 	discussions, 	and 	that 	the
conference was 	conducted 	in a 	fair 	and 	impartial 	manner
consistent with 	the 	normal 	operating 	procedures 	of 	the 	PERB.
Judge 	Filliman 	indicated 	that 	the 	agreement 	was 	binding 	upon
the 	parties 	when 	the 	other 	party 	tendered 	performance 	of 	its
conditions 	in a 	timely manner. 	If 	Stewart 	refused 	to 	perform.
Judge Filliman 	cautioned, 	the 	complaint 	could 	be 	dismissed.
Judge 	Filliman 	also 	suggested 	that 	Lynch 	raise 	his 	concerns
of 	inappropriate 	conduct 	on Judge 	Filliman's 	part with 	the PERB
chief 	administrative 	law 	judge. 	Neither 	Lynch 	nor 	Stewart,
however, 	pursued 	those allegations with the 	chief
administrative 	law 	judge.
Stewart 	took 	no 	action 	to 	notify UAPD of 	his 	election 	of
dues 	payment method 	as 	required 	by the 	agreement. 	Stewart 	also
refused 	to 	sign 	the 	papers 	necessary 	to withdraw his 	Small
Claims 	Court 	action.
On March 	4, 	Lynch called Yamshon 	to 	ask 	about 	the 	union's
$400 	check 	and was 	told 	that 	it 	had 	already 	been mailed. 	By
March 7, 	Stewart 	had 	not yet 	received UAPD's 	check. 	That 	same
day, 	Stewart 	prepared a 	sworn declaration stating 	that 	he 	had
11

not 	received 	the 	check 	and 	that 	he 	had 	not 	performed 	nor
tendered 	performance 	of 	any of 	his 	promises 	contained 	in 	the
settlement 	agreement.
Stewart 	testified 	that 	he 	received 	UAPD's 	$400 	check 	on
March 8. 	1986.
ISSUE
Should 	the 	complaint 	be 	dismissed 	because 	of 	Stewart's
refusal 	to 	implement 	the 	settlement 	agreement 	entered 	into 	on
February 20. 	1986?
DISCUSSION
The Board 	has 	dealt with this 	issue 	in the 	past. 	In Victor
Valley Joint Union High School 	District 	(1980) 	PERB Decision
No. 	148. 	the Board 	dismissed 	the charging party's unfair
practice 	charges when 	it 	refused 	to withdraw its 	charges 	as
required 	by a 	settlement 	agreement. 	The Board 	held 	that 	its
policy 	of 	encouraging 	the 	parties 	to 	reach voluntary 	settlement
would 	be 	seriously undermined 	if 	a 	party 	refused 	to 	honor 	an
agreement 	to withdraw its 	unfair 	practice 	charge.
The 	Board 	cited 	National 	Labor 	Relations 	Board 	precedent
consistent with its 	holding. 	In George Banta Co.. 	Inc. 	and
Graphic Arts Union 	(1978) 	236 NLRB 1559 	[98 	LRRM 1581], 	the
NLRB 	refused 	to 	allow a 	party 	to withdraw from a 	settlement
agreement. 	The NLRB held:
. 	. 	. Finally, 	policy considerations
militate 	against 	granting 	respondents 	the
right 	to 	withdraw from formal 	settlement
stipulations 	executed 	with 	the 	General
12

Counsel 	pending Board 	approval. 	Such a
right 	would 	undermine 	the 	continued 	efficacy
of 	the 	settlement process which, 	as an
alternative 	to 	lengthy adjudication, 	allows
the Board 	as well 	as 	respondents 	and
charging parties 	to 	save 	time, 	expense and
the 	inevitable 	risk 	of 	litigation.
The 	same 	policy considerations weigh heavily 	in 	favor 	of
dismissal 	of 	Stewart's 	charge 	in this 	case. 	Stewart's 	bad
faith 	actions 	in 	reneging 	on 	the 	settlement 	agreement 	should
not 	create 	a 	new opportunity 	to 	litigate 	the underlying unfair
practice 	charge. 	Stewart's 	testimony 	that 	he 	reneged 	on 	the
settlement 	agreement 	for 	the 	sole 	reason 	that UAPD's 	$400 	check
was 	late 	is 	simply 	too 	outrageous 	to 	be 	believed 	in 	light 	of
his 	other 	actions. 	Stewart 	changed 	his 	mind 	almost
immediately. 	He 	had 	his 	lawyer 	rescind 	the 	agreement 	two 	days
later. 	He 	failed 	to 	notify UAPD of 	his 	dues 	payment 	election
as 	required, 	and 	he 	refused 	to 	take 	the 	steps 	necessary 	to
withdraw his 	Small 	Claims 	Court 	judgment. 	This was 	all 	prior
to 	the 	time 	Stewart 	could 	have 	even known whether UAPD's 	check
was 	late.
During 	this 	same 	period. 	UAPD had 	reinstated 	Stewart's
membership 	and waived 	additional 	fees; 	had 	removed 	him 	from 	the
"fair 	share" 	payment, 	thus 	losing income; 	started the process
to withdraw its 	Superior 	Court 	appeal; 	and 	had made 	out 	a 	$400
check 	to 	Stewart.
Even 	if 	the 	check had 	been mailed 	late, 	it 	should 	not
change 	the outcome 	of 	this 	case for 	two 	reasons. 	First,
13

Stewart 	failed 	to 	demonstrate 	that 	he 	suffered 	any 	prejudice
whatsoever 	because 	the 	check was 	late. 	Second. 	Stewart's
action prior 	to 	the 	check's 	due date 	made 	implementation of 	the
settlement 	agreement 	an 	impossibility, 	even 	if 	the 	check had
been received 	in 	time. 	Stewart's 	actions 	in refusing 	to 	tender
performance 	on 	any of 	his 	promises 	rendered 	any 	of 	UAPD's
tender 	of 	performance meaningless.
Stewart's 	claim 	that 	he 	did 	not 	fully 	comprehend 	the
agreement 	is 	also 	not 	credible. 	A reading of 	the 	document
reveals 	that 	it 	is 	not 	particularly 	complicated. Furthermore,
Stewart 	is 	not 	inexperienced 	in 	reviewing 	important 	documents.
He was 	a 	community college 	trustee 	for 	16 years, 	and 	has 	10
years 	of 	formal 	college 	education. 	Stewart 	also 	failed 	to 	give
any evidence 	of 	which portions 	of 	the 	settlement 	agreement 	he
didn't 	comprehend.
There was 	ample 	evidence 	that 	Stewart 	participated 	fully 	in
the 	settlement 	negotiations, 	discussed 	each paragraph of 	the
agreement, 	asked questions when he was unclear 	about 	the
ramifications 	of 	specific 	language, 	and 	requested 	additional
settlement 	language 	to 	his 	benefit, 	which was 	adopted 	as 	part
of 	the 	settlement.
Stewart 	also 	failed 	to 	offer 	any 	evidence 	supporting
Lynch's 	earlier 	claim of 	February 	22 	that 	Stewart was 	coerced
into 	the 	agreement. 	To 	the 	contrary, 	at 	the hearing Stewart
testified 	that 	he 	entered 	into 	the 	agreement willingly.
14

if 	any. 	relied upon for 	such exceptions. 	See California
Administrative Code title 	8. 	part 	III, 	section 32300. 	Such
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	actually
received 	by 	the 	Public 	Employment 	Relations 	Board 	at 	its
headquarters 	office 	in Sacramento 	before 	the 	close 	of 	business
(5:00 p.m.) 	on 	June 12. 	1986 	. 	or 	sent 	by 	telegraph
or 	certified 	or Express United 	States 	mail, 	postmarked 	not
later 	than 	the 	last 	day for 	filing 	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,
part 	III, 	sections 	32300 and 32305.
Dated: 	May 	23. 	1986 JAMES W. 	TAMM
Administrative 	Law 	Judge
16

Stewart 	also 	testified 	that 	the 	only 	reason 	causing 	him 	to
renege 	on 	the 	settlement 	agreement was 	the 	delay 	in 	receiving
UAPD's 	check, 	thus 	nullifying any claim of 	coercion at 	the
settlement 	conference. 	Furthermore, 	when Judge Filliman
suggested 	that 	Lynch 	raise 	any 	claim 	of 	inappropriate
settlement 	conduct 	with 	the 	chief 	administrative 	law 	judge,
neither 	Lynch 	nor 	Stewart 	pursued 	the 	matter.
CONCLUSION
In summary, 	the 	evidence 	indicates 	that 	the 	parties
willingly 	entered 	into 	a 	negotiated 	settlement 	agreement. 	UAPD
sought 	to 	implement 	the 	agreement. 	Although Stewart 	received
UAPD's 	$400 	check a 	few days 	late, 	he 	had 	already 	reneged 	on
the 	agreement 	prior 	to 	the 	check due date. 	If 	Stewart 	is
allowed 	to 	now 	litigate 	the 	underlying unfair 	practice
complaint, 	the 	integrity of 	the 	settlement 	process will 	be
seriously damaged. 	Parties 	will 	know that 	settlement
agreements 	may 	be 	rejected 	at 	any 	time 	and 	are, 	in fact,
meaningless. 	For 	that 	reason, 	Stewart's 	complaint 	is 	hereby
dismissed.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III. 	section 	32305. 	this Proposed Decision and Order 	shall
become final 	on 	June 	17, 	1986 	. 	unless 	a 	party
files 	a 	timely statement 	of 	exceptions. 	In accordance with
PERB 	regulations, 	the 	statement 	of 	exceptions 	should 	identify
by 	page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record.
15