Chaffey Joint Union High School District (Fikes) (PERB 0669E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BOBBY J. 	FIKES,
Charging 	Party,
v.
CHAFFEY JOINT 	UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2363
PERB Decision No. 	669
May 31, 	1988
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BOBBY J. 	FIKES,
Charging 	Party,
v.
ASSOCIATED 	CHAFFEY 	TEACHERS
ORGANIZATION,
Respondent.
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) 	Case 	No. 	LA-CO-357
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Appearances: 	Bobby J. 	Fikes, 	on his own behalf; 	Rosalind D.
Wolf, 	Attorney, 	California Teachers Association, 	for Associated
Chaffey 	Teachers 	Organization.
Before Porter, 	Craib and Shank, 	Members.
DECISION
PORTER, 	Member: 	These 	cases 	are before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on appeal by
Charging 	Party 	(Bobby J. 	Fikes) 	of 	the Board agent's partial
dismissal 	of his 	charges 	against 	a 	school 	district 	and 	an
employee 	organization. 	One 	charge 	alleged 	that 	the 	Associated
Chaffey 	Teachers 	Organization 	(ACT) 	interfered with 	the 	rights
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of 	employees 	during 	an 	organizational 	security 	election 	in
violation of 	section 	3543.6(b) 	and 	section 	3544.9 	of 	the
Educational 	Employment 	Relations Act 	(EERA or A c t ) . 1 Charging
Party 	also appeals 	the 	Board 	agent's 	partial 	dismissal 	of his
charge 	alleging 	that 	the 	Chaffey Joint 	Union 	High 	School
District 	(District) 	discriminated 	against 	and 	interfered 	with
employee 	rights 	during 	the 	course 	of 	an organizational 	security
election held March 10, 	1986, 	in violation of section 	3543.5(a)
of 	EERA.2 Although 	these 	cases 	are 	derived 	from 	separate
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references herein 	are
to the 	Government Code. 	Section 3543.6 provides, 	in pertinent
part:
It 	shall be unlawful 	for 	an employee
organization 	to:
(b) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
Section 	3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
2section 3543.5 provides, 	in pertinent part:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
2
•
2

W	
3
charges 	filed with 	the 	Board, 	they 	are 	consolidated 	for 	decision
due 	to 	their 	identity of 	facts 	and 	similarity of 	issues.
(a) 	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.
BACKGOUND
ACT 	is 	the 	exclusive 	representative 	for 	the 	certificated
bargaining unit. 	In 	the 	1985/86 	school 	year, 	the 	District and
ACT 	negotiated 	a 	collective bargaining 	agreement 	for 	the 	period
commencing February 3, 	1986. 	This 	contract 	included an
organizational 	security 	(or 	agency 	fee) 	provision providing
for 	an 	election 	among 	the 	employees 	pursuant 	to 	EERA section
3546(a) 	for 	the purpose of 	determining whether 	there 	existed
sufficient 	support 	in 	the 	unit 	for 	agency 	fee. 	The parties
signed 	a 	consent 	election 	agreement 	providing 	for 	an 	agency
fee 	election 	to be held March 10, 	1986.
At 	the 	time 	of 	the 	election, 	there 	were 	seven high 	schools
within 	the 	Chaffey District. 	Pursuant 	to 	the 	consent 	election
agreement, 	the 	agency 	fee 	election was held at a 	single polling
site, 	a District office within a 3 	to 5-mile 	radius 	of 	six of
the high 	schools, 	and within 	12 miles 	from 	the 	seventh high
school. 	The agreement provided 	for 	the 	polling hours 	of
11:30 	a.m. 	to 	4:30 p.m.

On March 	10, 	the day of 	the election, 	it rained heavily.
Of 	the 	662 	certificated employees 	eligible 	to vote, 	385
actually 	cast ballots. 	This 	reflected 	a participation 	rate
of 	58 percent. 	Of 	the 	385 	employees 	who participated 	in 	the
election, 	231 	voted 	for 	agency 	fee 	and 	154 were opposed 	to 	it.
The 	results 	of 	the 	election 	thus 	showed 	that 	60 percent 	of
the 	total 	of 	voters 	participating 	approved 	of 	organizational
security.
Charging 	Party offers 	comparative 	data 	of 	the 	results 	of 	an
agency 	fee 	election held 	three years before, 	in 1983. 	At 	that
time 	there were only 600 members 	eligible 	to vote, 	and 	six
schools 	within 	the 	District. 	Three 	different 	polling 	sites
were 	available, 	and polling hours 	were 	from 	10:45 	a.m. 	to
4:00 p.m. 	Five hundred 	and 	ten persons 	cast ballots, 	reflecting
an overall participation 	rate of 85 percent; 	283 	employees 	voted
against 	agency 	fee 	(or 	5 5 percent of 	the 	total) 	and 	227 	voted 	in
favor of 	it 	(45 percent). 	Thus, 	organizational security was not
approved.
CHARGE 	AGAINST 	ACT 	(LA-CO-357)
Allegations
The 	thrust 	of 	Charging Party's 	allegations 	against ACT
is 	that 	it 	improperly orchestrated 	the 	employees' 	approval of
organizational 	security 	in 	the March 10, 	1986 election. 	This
was 	accomplished by 	a 	programmed 	effort 	not 	to 	generally
publicize 	the 	election but, 	rather, 	to selectively 	inform only
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those 	individuals 	sympathetic 	to 	the 	concept 	of 	agency 	fee,
as 	well 	as 	to 	limit 	the 	number 	of polling sites 	and hours.
Charging 	Party avers 	that ACT's 	alleged misconduct, 	which had
the 	effect 	of obstructing the 	vote 	of unit members, 	constitutes
a 	prima 	facie 	case 	of 	discrimination 	and 	interference 	with 	the
rights 	of employees 	in violation of EERA section 3543.6(b), 	as
well 	as 	a breach of 	the duty of 	fair 	representation.
More 	specifically, 	Charging 	Party alleges 	that 	ACT
discriminated 	against 	bargaining 	unit 	members 	by making
mailings 	concerning 	the 	election only 	to 	union members 	believed
to be 	in 	favor 	of 	organizational 	security.3 There 	was 	no
notification 	issued 	generally by ACT 	to 	all 	bargaining 	unit
members 	it 	represented apprising them of 	the 	time, 	date 	and
polling place of 	the 	election. 	ACT's 	intention 	to conceal 	the
election 	from 	certain 	elements 	of 	its 	constituency was 	further
evinced by 	its 	omission of 	the 	date 	of 	the 	election 	from 	the
3In 	his 	amendment 	to Charge No. 	LA-CO-357, 	Charging Party
attached 	a 	letter 	to Associate 	Superintendent 	Dean 	Smothers
written by unit 	member 	Monty 	Barnes 	in which 	a 	discussion
Barnes had with an ACT official 	is 	described. 	In 	the
discussion, 	the ACT official 	informed 	Barnes 	that 	the 	union
held 	a 	vote 	concerning whether 	to adopt 	a 	policy of 	withholding
information 	regarding 	the 	election 	from 	teachers 	not 	in 	favor
of 	agency 	fee. 	The policy, 	which 	the union officials 	approved,
involved 	the preparation of 	three 	separate 	lists: 	one
containing 	the 	names 	of 	teachers who were 	not members 	of ACT,
another 	containing 	the names 	of ACT members 	likely to vote 	"no"
on 	organizational 	security, 	and 	the 	third 	listing 	the 	names 	of
ACT members believed 	to be 	supportive 	of 	agency 	fee. 	Election
notices 	were 	sent 	only to 	individuals 	whose 	names 	appeared 	on
the 	third 	list.
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calendar 	section of 	the ACT newsletter. 	The 	omission was
particularly 	telling 	because 	events 	immediately 	preceding
the March 	10 	election, 	as well 	as 	events 	occurring after 	the
election, 	were 	included 	in the calendar.
Charging 	Party 	further 	alleges 	that 	ACT 	improperly 	agreed
to 	terms 	of 	a 	consent 	election 	agreement 	providing 	for 	only one
polling place 	and 	limited hours. 	In 	the previous 	agency 	fee
election, 	although 	the 	District had 	one 	less high 	school 	and
nine 	percent 	fewer 	certificated employees, 	there were 	three
polling 	sites, 	as opposed 	to only one 	for 	this 	election. 	In
addition 	to 	the 	fewer 	number of 	sites, 	Charging 	Party argues
that 	the 	polling hours 	were 	too 	short 	to 	enable many 	teachers
to vote, 	due 	to 	their participation 	in extracurricular
activities. This 	point 	was 	reiterated 	in 	declarations 	of
28 employees. 	In the declarations, 	employees described how
their 	required 	participation 	in 	extracurricular 	activities
extended 	their 	workday to 	the point 	where, 	allowing 	for 	driving
time 	in the 	Los Angeles 	area, 	they were not 	able 	to make 	it 	to
the single polling site before 	it closed.4
Charging 	Party 	additionally alleges 	that 	members 	and
4These 	declarations 	were 	produced by 	Charging 	Party 	in
response 	to 	the 	regional 	attorney's 	request, 	during 	the 	course
of her 	investigation, 	for 	evidence 	substantiating 	Charge
No. 	LA-CO-357. 	Charging 	Party also produced 	statements 	signed
by 	42 	individuals 	indicating 	that 	they 	did 	not 	vote 	because
they 	did 	not 	see 	election 	notices 	posted 	pursuant 	to 	PERB
Regulation 32724 	(see 	fn. 	6 ) , 	or were otherwise not aware of
the 	election.
6
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6

officers 	of 	ACT 	interfered with 	employee 	rights by 	removing
election 	flyers 	from teachers' 	campus mailboxes. 	In an
attachment, 	Fikes contends that at least two ACT members, 	one
of whom was 	an election official, 	went 	through 	teachers' 	mail
boxes 	at 	two campuses 	and 	removed 	"vote 	no" 	flyers. 	In 	a
separate 	attachment, 	a teacher 	(Monty Barnes) 	describes 	a
conversation he had 	with 	an ACT official 	in which 	the 	latter
admitted 	to personally removing 	from 	teachers' 	mailboxes 	flyers
urging a 	"no" 	vote, 	because 	they had not been signed, 	and were
therefore 	"illegal" 	according 	to District 	policy.
Regional 	Attorney's 	Analysis
A 	complaint 	issued 	only 	on 	the 	allegation 	that 	agents
and officers of ACT, 	without 	the 	District's or unit members'
authorization, 	removed election 	flyers 	from employees'
mailboxes, 	thereby 	interfering with 	their 	right 	to participate
or 	refuse 	to participate 	in 	the 	activities 	of 	the 	employee
organization 	in violation of 	EERA section 3543.6(b). 	All other
allegations 	against ACT were dismissed. 	This 	complaint, 	as
well 	as 	a 	complaint 	against 	the 	District, 	were 	issued by 	the
General 	Counsel 	and 	then 	consolidated 	for 	hearing. 	The hearing
was 	stayed 	pending 	the 	Board's 	resolution 	of 	Charging 	Party's
appeal 	of 	the partial 	dismissals.
Concerning 	Charging 	Party's 	allegation 	that 	ACT 	failed
to 	adequately 	inform unit members 	of 	the 	upcoming agency 	fee
election by 	omitting 	any 	reference 	to 	the 	election 	in 	its
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newsletter 	and 	making 	selective 	election 	information 	mailings
only 	to members 	known 	to be 	supportive 	of 	agency fee, 	the
regional 	attorney 	reasoned 	that 	while 	PERB 	Regulation 	327245
provides 	for 	the 	employer's 	conspicuous 	posting of 	PERB
election 	notices, 	additional 	notice 	is 	not 	required by either
the 	provisions 	of 	EERA or 	PERB Regulations.
The 	regional 	attorney 	next 	analyzed 	Charging 	Party's
allegation 	that 	ACT 	discriminated 	against 	and 	interfered 	with
the 	rights 	of 	employees by entering 	into 	an 	agreement 	which
provided 	for 	only 	one 	polling 	place 	and 	limited 	polling hours
so 	that 	some 	teachers 	were unable 	to vote 	due 	to 	their
participation 	in extracurricular activities. 	In dismissing
this 	allegation, 	the 	regional 	attorney noted 	that, 	under 	the
5PERB 	Regulation 	32724 provides, 	in pertinent part:
(a) 	When 	the 	Board has 	determined 	that 	an
election 	is 	required, 	the Board 	shall 	serve
on 	the 	employer 	and 	the parties 	a 	Directed
Election 	Order 	containing 	specific
instructions 	regarding 	the 	conduct 	of 	the
election. 	The 	Board may 	approve 	a Consent
Election Agreement 	of 	the parties 	regarding
the 	conduct 	of 	an election.
(b) 	Thereafter, 	the Board shall 	serve a
notice 	of 	election on 	the parties. 	The
notice 	shall 	contain a 	sample ballot,
a description of 	the voting unit, 	and
information 	regarding 	the 	balloting
process. 	Unless 	otherwise 	directed by 	the
Board, 	the 	employer 	shall post 	such notice
conspicuously on 	all 	employee bulletin
boards 	in 	each 	facility of 	the 	employer 	in
which 	members 	of 	the 	described 	unit 	are
employed.
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terms 	of 	the 	consent 	election agreement, 	the polling hours 	were
limited 	to 	the hours 	11:30 a.m. 	to 	4:30 p.m. 	She 	reasoned 	that
the 	Board 	agent's 	approval 	of 	the 	single polling 	location 	and
limited 	polling hours 	indicated 	that 	such 	were 	sufficient 	for
a 	fair 	election, 	at 	least 	in 	the best 	estimation of 	the 	PERB
agent. 	Thus, 	ACT's 	agreement 	to the 	terms 	of 	the consent
election 	agreement 	could 	not be 	construed 	as 	being 	violative
of 	EERA.
With 	respect 	to Charging 	Party's 	allegation 	that ACT 	failed
to 	fairly 	represent 	employees by agreeing 	to 	the 	consent
election 	agreement providing 	for 	only 	one 	polling place 	and
limited hours, 	the 	regional 	attorney observed 	that 	the 	Board
agent's 	approval 	of 	the 	agreement 	would 	probably preclude 	a
finding of breach 	the duty of 	fair 	representation. 	Further,
there was 	no showing 	that 	the union, 	in consenting 	to the 	terms
of 	the agreement, 	did so 	for arbitrary, 	discriminatory or bad
faith 	reasons. 	In 	reaching her 	conclusion, 	the 	regional
attorney 	discounted 	the 	significance 	of 	the 	statements 	of 	28
employees 	who contended 	that 	they were 	unable 	to 	vote 	due 	to
their 	required 	participation 	in 	extracurricular 	activities.
Analogizing 	to 	the 	law 	regarding 	the 	resolution 	of 	challenged
ballots 	in 	contested 	elections 	pursuant 	to 	Regulation 	32732, 6
the 	regional 	attorney concluded 	that 	28 	employees 	did 	not
6PERB 	Regulation 32732 provides, 	in pertinent part:
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represent 	a 	sufficient 	number 	to affect 	the 	outcome 	of 	the
election.
(a) 	In an on-site election, 	a Board agent
or 	an authorized 	observer may challenge, 	for
good cause, 	the 	eligibility of 	a voter.
(c) 	When 	sufficient 	in number 	to affect
the 	outcome of an election, 	unresolved
challenges 	shall 	be 	resolved by 	the 	Board.
CHARGE AGAINST 	DISTRICT 	(LA-CE-2363)
Allegations
The 	charge 	filed 	against 	the 	District 	contains 	allegations
similar 	in 	content 	to 	the 	ones 	in 	the 	charge 	against ACT.
Charging 	Party alleges 	that 	the 	District 	failed 	to make
announcements of 	the 	election time, 	date 	and polling place, 	and
instructed 	site 	administrators 	not 	to make 	announcements. 	Fikes
also alleges 	that 	the 	District, 	acting 	"in concert" with ACT,
entered 	into 	a 	consent 	election 	agreement 	containing polling
hours 	too 	short 	in 	light of 	the unit members' 	significant
participation 	in extracurricular 	activities, 	and 	also containing
an 	insufficient 	number of polling sites. 	Further, 	the 	District
failed 	to maintain PERB notifications 	on bulletin boards, 	in
that 	PERB 	election notices 	were 	often missing or 	covered.
Thus, 	alleges 	Charging Party, 	the 	District violated EERA
section 	3543.5(a) 	by 	interfering with 	the 	employees' 	exercise
of 	rights 	under 	the 	Act 	and by discriminating 	against 	them.
10
• 	• 	• 	• 	• 	• 	• 	• 	• 	•

Regional 	Attorney's 	Analysis
With 	respect 	to Fikes' 	charge 	against 	the 	District, 	a
complaint 	issued 	on 	the 	allegation 	that 	the 	District 	failed 	to
maintain 	conspicuously posted 	(PERB) 	Notices 	Of 	Election on
employee bulletin boards 	at 	various high 	schools, 	thereby
interfering with 	the 	employees' 	right 	to participate or 	refuse
to participate 	in 	the 	activities of 	employee 	organizations 	in
violation of 	EERA section 	3543.5(a). 	In dismissing the
remainder of 	the 	allegations, 	the 	regional 	attorney's 	analysis
was 	virtually 	the 	same 	as 	that 	used 	in her 	dismissal 	of 	similar
allegations 	against 	ACT.
Concerning 	the 	allegation 	that 	the 	District 	violated
EERA by 	failing 	to make 	announcements 	about 	the 	election 	to
teachers, 	and 	instructing 	its 	site 	administrators 	not 	to make
announcements, 	the 	regional 	attorney reasoned 	that, 	while
PERB 	Regulation 	32724 	prescribes 	the 	District's 	mandatory
requirement 	to post 	PERB election notices, 	it does 	not 	impose
additional 	obligations 	concerning 	notice 	on 	the 	District.
Thus, 	although parties 	are 	free 	to give notice 	in addition
to what 	is prescribed 	in PERB Regulation 32724, 	they are 	not
obligated 	to do 	so.
With 	reference 	to 	the 	District's 	alleged 	discrimination
against 	and 	interference with 	the 	rights 	of 	employees by 	its
assent 	to 	an 	election 	agreement 	providing 	for 	unreasonably
limited polling 	times 	and 	locations, 	the 	regional 	attorney again
11

relied on 	the 	Board 	agent's 	approval 	of 	the 	consent 	election
agreement 	as 	sufficient 	to negate 	a 	finding 	that 	the 	District's
conduct 	may have 	been 	violative 	of 	EERA.
DISCUSSION
Standing
At 	the 	outset, 	we 	find 	that 	Charging Party, 	Bobby J. 	Fikes,
has 	standing 	to 	file his 	charges 	against ACT and 	the 	District.
(EERA, 	sec. 	3541.5(a).) 	The dissent argues 	that, 	because the
charges 	fail 	to 	allege 	that 	Fikes 	personally did 	not 	know 	of
the 	election, 	or was 	otherwise unable 	to vote, 	he 	suffered no
harm and, 	accordingly, 	has no standing. 	We disagree. 	The
gravaman of Fikes' 	allegations 	is 	that ACT and 	the 	District
improperly 	restricted voters' 	access 	in 	the 	agency 	fee 	election,
thereby 	skewing 	the 	results 	of 	it. 	Assuming 	the 	truth of 	such
allegations, 	whether 	or 	not 	Fikes 	voted does 	not 	affect his
standing 	to bring 	this 	charge 	inasmuch 	as 	the 	opportunity 	to
vote 	in a 	"rigged" 	election 	is 	really no opportunity at 	all.
Moreover, 	the dissent's position 	fails 	to recognize 	the
importance 	of 	conducting 	agency 	fee 	elections 	with 	credibility
and 	integrity. 	When 	such 	essential 	ingredients 	are 	justifiably
perceived by 	the 	unit 	to be 	lacking, 	there 	is 	a grave 	risk 	that
employees 	will 	lose 	confidence 	in election procedures, 	as well
as 	become 	demoralized by 	the 	conduct 	of 	parties 	to an election.
Although 	such harm 	is 	not directly quantifiable, 	it 	is 	of 	the
very 	sort 	that 	contributes 	to 	the 	instability of bargaining
12

relationships. 	Thus, 	we have no difficulty in concluding 	that
Fikes 	does 	indeed 	have 	standing.7
CHARGE AGAINST ACT 	(LA-CO-357)
Interference
One 	of 	the primary arguments 	in 	the 	charge 	against ACT 	is
that 	the 	organization, 	by 	its 	alleged conduct, 	interfered with
the 	rights 	of 	employees 	in 	the 	organizational 	security 	election.
In 	issuing a 	complaint against ACT, 	the 	regional 	attorney
considered 	significant 	only 	Charging 	Party's 	allegation 	that 	ACT
officers, 	without 	the District's or unit members' 	authorization,
removed 	election 	flyers 	from employees' 	mailboxes. 	While 	the
latter 	is 	sufficient 	to 	justify 	finding a prima 	facie 	case 	of
interference, 	the 	regional 	attorney 	also 	should have 	issued 	a
complaint on 	the basis 	that, 	under 	the 	totality of 	circumstances
alleged, 	ACT 	interfered with 	the 	rights 	of 	employees 	in 	the
organizational 	security 	election. 	(State 	of 	California
(Departments 	of Personnel Administration, 	Mental Health, 	and
Developmental Services) 	(1985) 	PERB Decision No. 	542-S.)
In 	State 	of 	California 	(Departments 	of 	Personnel
Administration, 	Mental Health, 	and Developmental Services),
7Our 	dissenting 	colleague 	cites 	one 	PERB 	decision,
Riverside Unified 	School 	District 	(Petrich) 	(1986) 	PERB
Decision No. 	562a, 	in support of his argument that Charging
Party 	lacked 	standing 	to 	file 	the 	charges 	at 	issue. 	In
Riverside, 	the 	charging party, 	a daytime employee, 	attempted to
challenge 	an 	action 	of 	management 	which 	solely 	affected 	night
shift 	employees. 	We 	find 	the 	facts 	of 	Riverside wholly
distinguishable 	from 	those 	of 	the 	instant 	case.
13

supra, 	this 	Board 	specifically 	rejected 	an 	analysis 	involving
the 	assessment 	of 	"each 	factual 	allegation 	contained 	in 	the
charge 	as 	if 	it were 	singularly being offered as 	evidence of
a prima 	facie 	violation." 	(P. 	3.) 	The Board explained, 	in
language 	we 	consider 	apposite 	to 	the 	instant 	case:
[T]he 	critical 	inquiry 	is 	whether 	the 	factual
allegations 	set 	forth 	in the charge, 	if true,
would 	lend 	support 	to 	the 	legal 	theory 	that
the 	Charging 	Party puts 	forth. 	Each
individual 	factual 	assertion 	need 	not 	stand
alone 	as 	conduct 	violative of 	the 	Act but,
rather, 	the 	totality of circumstances must
be considered. 	Thus, 	in the 	instant case,
the 	individual 	factual 	allegations 	dismissed
by 	the 	regional 	attorney must be 	considered
in 	light 	of 	those 	aspects 	of 	the 	charge upon
which 	a 	complaint 	issued 	and which 	the
regional 	attorney 	found 	sufficient 	to 	state
a 	prima 	facie 	case.
(Pp. 	3-4.)
We believe 	that 	the 	regional 	attorney 	erred 	in her 	analysis
of 	each of 	Charging 	Party's 	allegations 	in 	isolation and, 	then,
in 	issuing 	a complaint 	only on 	the basis 	that ACT 	interfered 	in
the 	election by 	its 	alleged 	removal 	of 	election notices 	from
unit members' 	mailboxes. 	Fikes' 	charge, 	when read in its
entirety, 	references 	an entire 	course of 	conduct culminating,
he 	states, 	in 	the obstruction of 	voters 	from participating 	in
the 	election. 	We 	find 	it 	appropriate 	to 	read 	Charging 	Party's
averment 	concerning ACT's 	formulation 	of 	a 	consent 	election
agreement 	together 	with 	its 	alleged 	plan 	to 	selectively notify
14

CO	only 	those 	unit members believed 	to approve of 	agency fee,8
and 	to 	remove 	election 	flyers 	from employees' 	mailboxes.
EERA section 	3543 	provides, 	in pertinent part:
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. 	Public 	school 	employees
shall 	also have 	the 	right 	to refuse 	to 	join
or participate 	in 	the 	activities 	of 	employee
organizations. 	. 	. 	. 	[Emphasis added.]
While 	EERA, section 3543 	guarantees 	the 	right of employees
to 	form, 	join and participate 	in 	the 	activities 	of 	employee
organizations, 	no less 	significant 	is 	its 	protection of 	the
right 	to 	refuse 	to participate 	in 	such 	activities. 	Although
the 	latter 	right 	— 	at 	least 	with 	respect 	to 	payment 	of 	agency
fees 	— 	must 	yield 	to 	the 	outcome 	of 	an 	organizational 	security
election 	at which 	the 	electorate 	expresses 	a preference 	for
agency 	fee, 	this 	should not be 	the 	rule 	if 	the 	election's
8We 	reject 	the 	dissent's 	position 	that, 	because ACT had
"no 	duty 	to act," 	the 	Board 	cannot 	consider 	Charging 	Party's
allegation 	pertaining 	to ACT's 	selective 	election 	information
mailings 	under 	a 	totality of 	circumstances 	analysis. 	Although
EERA does 	not 	place 	upon unions 	the 	affirmative 	duty 	to
publicize 	upcoming elections, 	it does 	impose upon 	them 	the
general 	obligation not 	to 	improperly 	influence 	the 	outcome 	of
them. 	The 	allegation which our 	colleague 	would dismiss 	is
intimately 	related 	to Charging 	Party's 	legal 	theory 	that ACT,
by 	engaging 	in an 	alleged 	course of 	conduct, 	interfered with
unit members' 	participation 	in 	the 	agency 	fee election.
1
8
5

outcome 	were 	secured by 	improper 	conduct.9 Indeed, 	to 	the
extent 	that ACT, 	through 	its 	improper 	conduct, 	sought to
influence 	the 	outcome 	of 	the 	election, 	Charging Party's 	agency
fees 	and 	those 	of 	others 	similarly 	situated were 	extracted 	on
the 	false 	condition of a 	fairly conducted 	election. 	Thus, 	ACT's
alleged 	misconduct 	interfered 	with 	Charging 	Party's 	"right 	to
refuse 	to 	join or participate 	in 	the activities 	of 	employee
organizations" 	in violation of EERA sections 	3543.6(b) 	and 3543.
Further, 	EERA section 3546 provides, 	in pertinent part:
(a) 	An organizational 	security 	arrangement,
in order 	to be 	effective, 	must be 	agreed
upon by both parties 	to 	the agreement. 	At
the 	time 	the 	issue 	is being negotiated, 	the
public 	school 	employer 	may 	require 	that 	the
organizational 	security provision be 	severed
from 	the 	remainder 	of 	the 	proposed 	agreement
and 	cause 	the 	organizational 	security
provision 	to be 	voted 	upon 	separately by
9The 	U.S. 	Supreme Court, 	in Chicago Teachers Union, 	Local
No. 	1 v. 	Hudson, 	et al 	(1986) 	475 U.S. 	292 	L89 L.Ed.2d 232J,
recognized 	that 	requiring 	nonunion 	employees 	to 	support 	their
collective bargaining 	representative, 	by 	compelling 	the 	payment
of 	dues, 	has 	a decisive 	impact upon 	their First Amendment
rights. 	Nonetheless, 	the 	Supreme 	Court 	rejected 	the 	claim
that 	it was 	unconstitutional 	to require nonunion employees, 	as
a 	condition of 	employment, 	to pay a 	fair 	share 	of 	the 	union's
cost 	of 	negotiation 	and 	administration 	of 	the 	collective
bargaining agreement. 	(See also Abood 	v. 	Detroit 	Board of
Education 	(1986) 	431 U.S. 	209 	[97 S.Ct. 	1782].) 	The Supreme
Court 	in Hudson, 	however, 	recognized 	the necessity of basic
procedural 	safeguards 	in the 	collection of nonmembers' 	dues
so 	as 	to minimize 	the 	impingement upon 	their 	First 	Amendment
rights. 	By analogy, 	an organizational 	security election must
be 	conducted 	in 	such 	a manner 	as 	to 	afford 	employees 	a
reasonable 	opportunity 	to 	exercise 	their 	franchise 	lest
nonmembers' 	constitutional 	rights 	are 	impinged upon without
even 	the 	true 	assent 	of 	employees 	in 	the 	unit.
16

10
------all 	members 	in 	the 	appropriate 	negotiating
unit '. '. '. . 	Upon such a vote, the
organizational 	security 	provision 	will
become 	effective 	only 	if 	a majority of 	those
members 	of 	the 	negotiating 	unit 	voting
approve 	the 	agreement. 	[Emphasis 	added.]
As 	is 	apparent 	from the 	language of 	section 3546, 	if
organizational 	security 	is 	to prevail 	during 	an 	agency 	fee
election, 	a majority of 	those members 	of 	the negotiating unit
voting must 	approve 	of 	it. 	Section 	3546 	contains 	at 	least 	an
implicit 	requirement 	of 	good 	faith 	in 	the 	conduct 	of 	the
election. 	The 	importance 	of 	this 	requirement 	is 	underscored
by 	the 	facts 	alleged 	in 	this 	case. 	While 	a 	technical majority
of 	those 	voting may 	indeed have 	approved 	of 	organizational
security, 	their 	vote 	does 	not 	equal 	the 	"majority" 	contemplated
by 	the 	statute 	if 	others 	perceived 	to 	vote 	a 	different 	way
were 	obstructed 	from doing 	so. 	Inasmuch 	as 	the 	validity of
organizational 	security 	rests 	upon 	the 	existence 	of 	a properly
run 	election 	reflecting 	the 	preference 	of 	a majority of 	those
voting, 	Charging 	Party alleged 	a prima 	facie 	case 	of
interference with 	the 	right 	of 	all members 	of 	the unit 	to
participate 	in an organizational 	security election where, 	at
the 	very 	least, 	essential 	democratic 	procedures 	should have
been 	respected. 	Accordingly, 	Charging 	Party 	alleged 	a prima
facie violation of EERA sections 3543.6(b) 	and 3546.10
10Alternatively, 	Charging 	Party 	also 	may 	have 	alleged 	an
independent 	violation 	of 	EERA section 	3546. 	Government 	Code
section 	3541.3(i) 	grants 	the 	Board 	the power 	to 	"investigate
17
10

unfair practices 	or 	alleged violations 	of 	[the] 	chapter, 	. . . "
(Emphasis 	added.) 	Further, 	case 	law has 	established 	that 	this
Board has 	the 	power 	to 	remedy 	violations 	of 	EERA 	in 	addition
to 	those 	specified pursuant 	to sections 	3543.5 	or 	3543.6.
(Compton Unified School 	District 	(1987) 	PERB Order No. 	IR-50;
Leek 	v. 	Washington Unified 	School 	District 	(1981) 	124 Cal.App.3d
43, 	48-53, 	hg. 	den.; 	Link v. 	Antioch Unified School District
(1983) 	142 Cal.App.3d 765, 	768-769.)
DUTY OF 	FAIR 	REPRESENTATION 	(DFR)
We 	also 	reverse 	the 	regional 	attorney's 	conclusion 	that
Charging 	Party 	failed 	to allege 	a prima 	facie 	case 	of breach 	of
the 	duty 	of 	fair 	representation. 	Charging Party's 	allegations
concerning ACT's 	selectively 	informing 	unit 	members 	of 	the
upcoming agency 	fee 	election, 	as well 	as 	its 	formulation of
a 	consent 	election 	agreement having 	the 	inevitable 	effect 	of
obstructing 	a 	large 	number 	of 	teachers 	from voting, 	are
sufficient 	to warrant, 	when considered 	in 	the 	totality of
circumstances 	alleged, 	the 	issuance of a complaint. 	(State of
California 	(Departments 	of 	Personnel 	Administration, 	Mental
Health, 	and Developmental 	Services, 	supra.)
In 	reaching 	our 	conclusion 	that 	a 	complaint 	should 	issue 	on
Charging 	Party's 	DFR allegation, 	we 	disapprove 	of 	the 	regional
attorney's 	analysis 	regarding 	PERB 	Regulation 	32724. 	She
reasoned 	that, 	inasmuch 	as 	Regulation 	32724 provides 	for
posting 	of 	official 	PERB 	election 	notices by 	the 	employer,
ACT's 	conduct 	was 	not prima 	facie 	violative 	of 	EERA because
it had no 	obligation 	to notify unit members 	of 	the 	election.
Such 	analysis, 	however, 	ignores 	the 	real 	issue pled by Charging
18

Party 	— 	namely, 	whether 	ACT, 	by 	selectively 	informing 	certain
unit 	members 	of 	the 	upcoming 	election 	in 	an 	attempt 	to 	influence
the 	outcome 	of 	that 	election, 	breached 	the 	duty of 	fair
representation 	owing 	to all 	unit members.11
The 	Board 	recognizes 	a union's 	strong 	interest 	in 	conducting
a 	free 	and 	vigorous 	campaign 	in which 	it 	is 	able 	to 	robustly
promote 	itself 	in becoming or maintaining 	its position 	as
the 	exclusive 	representative. 	Obviously, 	such advocacy is
intrinsically 	related 	to 	a union's 	very 	survival. 	While 	some
forms 	of 	such 	electioneering are 	lawful, 	we note a qualitative
difference 	in 	a 	situation where 	the 	exclusive 	representative
engages 	in conduct, 	not 	to 	influence 	the 	choice of 	the voter
but, 	rather, 	to deprive 	the voter of 	the physical opportunity
to vote. 	Further, 	we emphasize 	that 	the 	instant case 	occurs
within 	the 	context 	of 	an agency 	fee 	election. 	The 	exclusive
representative, 	in the course of an agency fee election, 	is
under 	a 	statutory duty not 	to discriminate 	among members 	of
the 	unit 	— 	particularly 	where 	the 	subject 	of 	the 	selective
11 The	he 	dissent 	systematically 	characterizes 	Charging
Party's 	allegations 	against ACT 	(as well 	as 	those 	against 	the
District) 	as 	falling within 	the 	rubric of a 	"failure 	to act."
We 	agree 	with 	the 	dissent's 	underlying proposition 	that 	a
failure 	to act 	cannot 	constitute 	an 	unfair 	practice 	unless
there 	exists 	a 	threshold duty to act. 	However, 	we 	reject 	the
dissent's 	position that 	this 	is 	a 	true 	"failure 	to act" 	case.
Charging 	Party's 	averments, 	for 	the most part, 	allege
affirmative 	conduct 	on the part of 	ACT and 	the 	District. 	One
obvious 	example 	of 	such 	is ACT's 	alleged mailing of 	election
information 	pamphlets 	only 	to 	unit 	members 	perceived 	to be
supportive 	of 	agency 	fee.
ll
1
T
9

treatment 	vitally 	concerns 	those persons 	against whom 	the 	union
is 	discriminating. 	Inasmuch as 	Charging 	Party alleges 	that
ACT's 	selective 	election 	information mailings 	were 	part 	and
parcel 	of 	its 	plan 	to 	exclude 	some 	teachers 	from participating
in 	the 	election, 	we 	find 	this 	factual 	allegation relevant 	to
our 	analysis 	of 	whether 	Charging 	Party has 	stated 	a prima 	facie
case 	of breach of 	the 	duty of 	fair 	representation.
The 	EERA places 	on exclusive 	representatives 	a 	statutory
duty 	to 	represent 	all 	employees 	in 	the 	negotiating unit.
(SEIU, 	Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106.) 	EERA
section 3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
In 	Oakland 	Unified 	School 	District 	(1978) 	PERB Order
No. Ad-48, 	the Board stated:
The 	exclusive 	right 	to 	represent 	employees
in a designated 	unit 	carries 	with 	it
concomitant 	obligations 	and potential
liabilities. 	These 	include 	the duty
of 	conducting 	good 	faith 	negotiations,
representing 	employees 	in 	grievances 	and
generally 	speaking 	to 	their 	interest 	on 	all
matters 	within 	the 	scope 	of 	representation.
(Pp. 	9-10, 	emphasis added.)
EERA section 	3543.2, 	which delineates 	EERA's 	scope of
representation, 	expressly recognizes 	"organizational 	security
pursuant 	to section 	3546" 	as being within 	scope.
The duty of 	fair representation 	is 	not, 	of course,
20

all-inclusive. 	It 	does 	not 	extend 	to 	those 	union activities
which 	do 	not 	directly 	involve 	the 	employer 	or which 	are
strictly 	internal 	union matters, 	unless 	such 	internal 	union
matters 	have 	a 	substantial 	impact12 on 	the 	employees'
relationship with the employer. 	(SEIU, 	Local 99 	(Kimmett),
supra; 	Rio Hondo College 	Faculty Association 	(Furriel) 	(1986)
PERB 	Decision No. 	583.)
We 	flatly 	reject 	the 	dissent's 	contention 	that 	a 	unit-wide
organizational 	security election 	is 	an 	internal 	union matter
and 	that 	the duty of 	fair 	representation 	should, 	therefore,
not 	attach 	to ACT's 	conduct 	in connection 	therewith. 	EERA
section 	3540.l(i)(2) 	defines 	organizational 	security as 	"[a]n
arrangement 	that 	requires 	an employee, 	as 	a condition of
continued 	employment, 	either 	to 	join 	the 	recognized or
certified 	employee 	organization, 	or 	to pay 	the 	organization
a service fee 	. 	. 	. 	." 	(Emphasis added.) 	Moreover, 	EERA
section 	3543.2, 	which delineates 	EERA's 	scope of
representation, 	expressly 	includes 	"organizational 	security"
within 	the meaning of 	"terms 	and 	conditions 	of 	employment." 	As
12We, too, share our dissenting colleague's interest in
developing a 	coherent 	and 	consistent body of 	law. 	The 	dissent's
application 	of 	the 	"substantial 	impact" 	test 	to define which
matters 	are 	strictly 	internal 	union affairs 	is 	not 	supported
by our precedent. 	On 	the 	contrary, 	whether 	an 	item has 	a
substantial 	impact on 	the 	employees' 	relationship with 	the
employer 	is 	at 	issue 	only once 	there has been made 	the
threshold 	determination 	that 	the matter 	is 	an 	internal 	union
one. 	(SEIU, 	Local 99 	(Kimmett), 	supra, 	p. 8.)
2
12we
1
12we

a 	term 	and 	condition 	of 	employment, 	organizational 	security
directly 	and 	integrally 	involves 	the 	employer. 	This 	is
envinced 	not 	only by 	its 	express 	enumeration 	in 	EERA's 	scope
provision, 	but 	also by the 	fact 	that 	"an organizational
security 	term 	of 	a 	collective bargaining 	agreement 	shall
'become 	effective' 	only 	upon 	agreement by 	the 	employer 	and
bargaining 	representative 	and, 	where 	requested by 	employer,
ratification by a majority of 	the bargaining 	unit."
(San Lorenzo 	Education Association v. 	Wilson 	(1982) 	32 Cal.3d
841, 846; EERA secs. 3543.2, 3546.)
We 	further 	expressly disavow 	the 	dissent's 	position 	that
unit 	members 	are 	protected 	from 	arbitrary, 	discriminatory 	and
bad 	faith 	conduct 	concerning 	an 	agency 	fee 	provision 	only when
such 	conduct 	occurs 	at 	the bargaining 	table. 	The 	genesis 	of
the 	organizational 	security election 	at 	issue was 	the parties'
negotiated 	agreement 	containing 	an 	agency 	fee 	provision.
The 	duty 	of 	fair 	representation attaches 	not 	only 	to 	the
negotiation of 	a 	collective bargaining agreement, 	but 	also
to 	its 	administration 	and 	implementation.
ACT's 	conduct, 	when considered 	in the 	totality, 	is
sufficient 	to 	state 	a prima 	facie 	case 	of breach of 	the 	duty
of 	fair 	representation. 	Contrary 	to 	the 	regional 	attorney's
conclusion 	that 	ACT's 	conduct 	was 	not 	motivated by arbitrary,
discriminatory or bad 	faith 	reasons, 	we 	find 	that 	the
allegations 	on 	their 	face provide 	sufficient 	evidence 	of
22

discriminatory motive 	to 	justify 	for 	this 	matter 	to go 	to
hearing. 	While 	ACT may not have 	an 	EERA-imposed 	affirmative
obligation 	to 	generally notify 	its 	constituency of 	the 	upcoming
election, 	ACT's 	alleged 	scheme 	of 	selectively 	informing 	its
constituency, 	with 	the goal of 	influencing 	the outcome of
the 	election, 	is 	an 	important 	factor 	to be weighed 	in the
determination of whether, 	in the totality of the 	facts, 	a
prima 	facie 	case has been alleged. 	The 	fact 	that ACT's 	scheme
was 	allegedly part 	of 	a 	comprehensive plan of differentiating
between ACT members 	and 	nonmembers 	also gives 	rise 	to 	the
possible 	inference 	of 	arbitrary 	treatment 	and 	discrimination
by 	the 	exclusive 	representative. 	ACT's 	conspicuous 	omission
of 	any reference 	to 	the 	election 	in 	its published 	calendar of
upcoming 	events 	is 	yet 	another 	fact 	from which bad 	faith 	can
be 	inferred. 	Further, 	ACT's method of 	selectively 	informing
teachers 	of 	the 	election 	takes 	on 	an 	increased 	significance
when 	viewed 	in 	light of 	its 	alleged 	tampering with unit members '
mailboxes 	in order 	to remove 	"Vote No" 	pamphlets, 	as well 	as
its 	formulation of 	the 	terms 	of 	the 	consent 	election agreement
having 	the 	inevitable 	effect 	of 	obstructing 	unit 	participation
in the election.
Concerning 	the 	consent 	election 	agreement, 	we 	reject 	the
regional 	attorney's 	analysis 	that 	the 	Board agent's 	approval 	of
it 	was 	sufficient 	to preclude a 	finding of breach 	of 	the duty
of 	fair 	representation. 	Even looking no 	further 	than 	the 	terms
of 	the 	consent 	election agreement, 	there 	are 	several 	unresolved
23

important 	questions: 	Why did ACT agree 	to 	such 	limited polling
locations 	and hours 	for 	the 	1986 	election, 	despite 	a 	substantial
increase 	in certificated personnel 	and 	a 	new school 	site 	in 	the
District? 	Further, 	why was 	ACT not 	aware 	of 	the 	fact 	that many
unit 	members 	were 	required 	to participate 	in extracurricular
activities, 	which made it difficult, 	if not 	impossible, 	for
them 	to 	leave 	campus 	and 	vote? 	In 	short, 	we 	cannot 	find 	that
the 	Board 	agent's 	approval 	of 	the 	consent 	election 	agreement
was 	sufficient 	to 	immunize ACT 	from 	a 	finding of 	a breach 	of
the 	duty 	of 	fair 	representation.
In addition, 	we disagree with 	the 	regional attorney's
analogy 	to 	the 	resolution 	of 	challenged ballots 	in 	contested
elections. 	The 	regional attorney appeared 	to dismiss 	the
significance 	of 	the 	28 	statements 	of 	employees 	unable 	to vote
due 	to their 	work hours, 	on 	the 	ground 	that 	their 	votes 	would
not 	have 	affected 	the 	outcome 	of 	the 	election anyway. 	We
disavow 	the 	requirement 	of 	an outcome 	determinative 	voting
standard 	in order 	to 	state 	a prima 	facie 	case 	of breach 	of 	the
duty of fair representation within the present context.13
13It 	is 	interesting 	to note 	that when 	the 	28 potential
votes 	of 	individuals who were unable 	to vote, 	due 	to conflicting
extracurricular 	activities, 	are 	combined with 	the 	42 potential
votes 	of 	persons 	who did 	not 	vote because 	they did 	not 	see 	the
posted election notices, 	the total 	(70 votes) 	theoretically
could have 	affected 	the outcome. 	For 	example, 	if 	these 	70 votes
are 	added 	to 	the 	number 	of 	actual participants 	in 	the 	election
(385) 	for a total of 455, 	the requisite 	51 percent to approve
agency 	fee would have been 	232 	votes. 	In 	the 	actual 	election,
however, 	only 	231 	persons 	approved agency 	fee.
24

CHARGE 	AGAINST 	EMPLOYER 	(LA-CE-2363)
A complaint 	was 	issued 	on 	the 	allegation 	that 	the 	District,
by 	its 	failure 	to 	maintain 	conspicuously posted 	election
notices 	on employee bulletin boards, 	interfered with 	the
"employees' 	right 	to participate or 	refuse 	to participate 	in
activities 	of 	employee 	organizations 	in 	violation 	of 	Government
Code 	section 3543.5(a)." 	Similar 	to our 	analysis 	of 	the 	charge
against ACT, 	we 	find 	that 	the 	regional 	attorney erred by not
also 	issuing 	a 	complaint 	based 	upon 	interference 	under 	an
analysis 	considering 	the 	totality 	of 	circumstances 	alleged.
(State 	of 	California 	(Departments 	of 	Personnel 	Administration,
Mental Health, 	and Developmental 	Services, 	supra.)
For 	example, 	the 	regional 	attorney attached no weight 	to
Charging 	Party's 	factual 	allegation 	that 	the 	District 	gave
specific 	instructions 	to 	its 	site 	administrators 	not 	to make
announcements. 	While 	these 	facts 	alone 	are 	not 	sufficient 	to
state 	a 	violation of 	EERA, 	they 	should not be 	divorced 	from 	the
context 	in which 	they arose. 	Namely, 	the 	District allegedly
failed 	to 	fulfill 	even 	EERA's 	rudimentary 	notice 	posting
requirement. 	One may 	reasonably draw 	the 	inference 	that 	the
District 	did 	not 	want 	unit 	members 	to 	know of 	the 	election
in 	light 	of 	its 	failure 	to 	adequately post 	election notices,
combined 	with 	its 	instructions 	to 	site 	administrators 	to 	remain
mute 	about 	it. 	This 	alleges more 	than a 	simple 	failure 	to act,
as 	has been asserted by 	the 	dissent.
25

Similarly, 	the 	regional 	attorney erred 	in dismissing
Charging 	Party's 	factual 	allegation 	that 	the 	District 	interfered
with 	the 	rights 	of 	employees by helping 	formulate 	the 	terms 	of
the 	consent 	election 	agreement 	which 	drastically 	limited 	voter
participation. 	Again, 	the 	Board agent's mere approval of 	the
terms 	of 	the 	consent 	election agreement 	is 	insufficient 	to
immunize 	the 	District 	from potential 	liability 	under 	EERA 	for
interfering with 	the 	rights 	of 	employees 	in 	the 	agency 	fee
election.
Further, 	the 	regional 	attorney 	failed 	to consider 	Charging
Party's 	factual 	allegation 	that ACT and 	the 	District 	acted
collusively 	to achieve 	the 	approval 	of 	agency 	fee. 	In 	fairness
to 	the 	regional 	attorney, 	only on appeal 	did 	Charging 	Party
attempt 	to 	substantiate his 	allegation 	in Charge No. 	LA-CE-2363
that 	the 	District 	acted 	"in 	concert" 	with ACT 	in 	failing 	to
provide 	accessible polling places. 	Such 	allegations 	submitted
on 	appeal 	were 	that 	most 	of 	the 	District's 	trustees 	received
substantial 	campaign 	contributions 	from ACT 	and 	other
CTA-affiliated unions. 	Although 	it 	is 	not appropriate 	to now
consider 	such 	facts, 	they are not 	essential 	in order 	to state
a prima 	facie 	case 	of 	collusion. 	The 	terms 	of 	the 	consent
election 	agreement 	must be 	considered 	in 	light 	of 	Charging
Party's 	allegations 	concerning 	the 	geographical 	location 	of
the 	schools 	and 	the 	unit 	members' 	substantial participation
in 	extracurricular 	activities. 	When 	its 	terms 	are 	accordingly
26

viewed 	in 	the 	entire 	factual 	context, 	ACT and 	the 	District's
collaboration 	in 	their 	formulation provides 	sufficient 	evidence
of 	collusion 	to 	warrant 	this 	allegation being 	considered 	at
hearing as well.
In 	short, 	the 	regional 	attorney was 	correct 	in 	issuing a
complaint based 	upon 	the 	District's 	interference 	with 	the 	rights
of 	employees 	in connection with 	its 	failure 	to 	adequately post
and maintain election notices. 	However, 	we 	conclude 	that 	she
erred 	in 	not 	finding 	a 	separate prima 	facie 	case 	of 	interference
based upon the 	totality of 	circumstances. 	That 	is, 	the
complaint 	should have 	encompassed 	the 	District's 	entire 	course
of 	conduct 	during 	the 	1986 	organizational 	security election.
This 	would 	include 	not 	only 	the 	District's 	failure 	to maintain
election notices, 	but 	also 	its 	instructions 	to site
administrators 	not 	to announce 	the 	election, 	as 	well 	as 	the
District's 	collaboration with ACT 	in 	formulating 	the 	terms 	of
the 	consent 	election 	agreement 	having 	the 	reasonably probable
effect 	of 	restricting 	voter participation 	in 	the 	agency 	fee
election. 	Further, 	for 	the 	same 	reason 	that would 	find that
Charging 	Party 	alleged a prima 	facie 	case 	of 	ACT's 	interference
with 	the 	rights 	of 	unit 	members 	in 	violation 	of 	EERA sections
3543.6(b) 	and 	3546, 	we also 	find 	that 	Charging 	Party alleged
the 	District's 	prima 	facie 	violation 	of 	EERA sections 	3543.5(a)
and 	3546.
27

Remedy
Our decision, 	of course, 	stands 	only 	for 	the proposition
that 	Charging 	Party has 	alleged 	a 	prima 	facie 	case 	against 	ACT
and 	the 	District. 	Therefore, 	any discussion concerning 	the
available 	remedy is premature. 	Nonetheless, 	we consider 	it
appropriate 	to briefly address 	our 	dissenting 	colleague's
concerns 	regarding 	such.
The dissent 	argues 	that 	filing objections 	pursuant 	to PERB
Regulation 	32738 	is 	the 	exclusive 	means by which 	an 	election may
be 	set 	aside 	in 	the 	event 	of 	serious 	misconduct 	in connection
therewith. 	Inasmuch 	as 	Fikes 	did not have 	standing pursuant
to PERB 	Regulation 	32738 	to 	file 	an objection, 	and 	the parties
that 	were 	entitled 	to do so did not, 	the 	remedy of 	rescinding
the 	election 	is 	not 	available 	lest 	Regulation 	32738 be 	rendered
a 	"nullity." 	We 	disagree.
In 	remedying unfair practices, 	the 	Board 	is 	empowered by
our 	Legislature 	to 	"take 	such 	action 	. . . 	as 	the board 	deems
necessary 	to effectuate 	the policies of 	[EERA]." 	(Sec.
3541.3(i).) 	It 	is 	thus 	self-evident 	that 	EERA does not 	exclude
the 	setting 	aside 	of 	an 	election 	as 	an 	available 	remedy within
the 	context 	of 	an unfair 	practice 	in an 	election 	setting. 	Nor
is 	there 	a 	conflict between 	EERA section 	3541.3(i) 	and PERB
Regulation 32738. 	Even assuming, 	arguendo, 	as 	the dissent
implies, 	the existence of an indirect conflict, 	a PERB
regulation dealing with 	the 	filing of 	objections 	to an 	election
28

may 	not 	circumscribe 	this 	Board's 	broad 	remedial 	powers 	vested
by 	statute 	over 	unfair 	practices.
ORDER
The partial 	dismissals 	in 	Case 	No. 	LA-CO-357 	and Case
No. 	LA-CE-2363 	are 	REVERSED, 	and the General Counsel 	is
directed 	to 	issue 	complaints 	consistent 	with 	this 	Decision.
Member 	Shank 	joined 	in 	this 	Decision.
Member 	Craib's 	concurrence 	and dissent begins 	at page 	30,
29

Member 	Craib, 	concurring and dissenting: 	Before 	addressing
the 	sufficiency of 	the dismissed allegations, 	there 	is a
threshold 	issue 	which 	must be 	dealt 	with. 	The 	charging party
in 	this 	case 	is 	an 	individual, 	Bobby J. 	Fikes 	(though he claims
on appeal 	that 	the 	charge 	is 	in the nature of a class action).
He 	complains 	that 	the 	right 	to vote 	in 	the 	agency 	fee 	election
was 	interfered with by both 	the 	District 	and by ACT, 	to a
degree 	rendering 	the 	election 	invalid.
My 	review of 	the 	record, 	in particular 	the 	charges 	and 	the
attachments 	thereto, 	has 	revealed 	that 	nowhere has 	Fikes
alleged 	that he 	was 	unaware 	of 	the 	election 	and 	thus 	unable 	to
vote. 	In one of 	the numerous 	individual 	statements 	attached to
the 	amended 	charge 	against ACT, 	John 	C. 	Freymueller 	declared
that he 	was 	able 	to 	vote 	only because he 	ran 	into 	the 	charging
party 	at 	12:50 p.m. 	on 	the 	date 	of 	the 	election and 	the
charging party 	informed him of 	the 	election. 	While 	this
statement, 	if accurate, 	does not 	confirm whether Fikes was 	able
to vote, 	it does 	reflect 	that he was 	aware of 	the election 	for
at 	least 	a 	short 	time before 	its 	conclusion.
It 	is axiomatic 	that a claimant, 	to have standing, 	must
have been harmed by 	the 	alleged 	unlawful 	conduct. 	For 	example,
in 	Riverside 	Unified School 	District 	(Petrich) 	(1986) 	PERB
Decision 	No. 	562a, 	the Board held 	that 	the 	charging party had
no 	standing because 	he 	was 	personally unaffected by 	the 	alleged
unilateral change. 	See, 	generally, 	Witkin, 	California
Procedure 	(3rd Ed. 	1985) vol. 	3, 	section 44. 	This 	is, of
30

course, 	true whether a charge 	is brought by an 	individual 	or 	in
a 	representative 	capacity. 	Since 	the 	charge 	as 	now written
fails 	to 	allege 	that 	Fikes 	was harmed by 	the 	alleged 	conduct,
the 	entire 	charge, 	including 	that portion on which a complaint
has 	already been 	issued 	(that portion of 	the 	case 	is being held
in abeyance pending our 	review of 	the partial dismissal), 	must
be 	dismissed. 	As 	discussed below, 	I would dismiss 	with 	leave
to 	amend 	so 	that 	Fikes may properly allege 	that he was
personally harmed 	or 	add 	a party who 	was.
Normally, 	a party 	is 	alerted by the 	Board 	agent processing
the 	charge 	if 	it 	is deficient 	in some manner, 	and an
opportunity to amend 	is 	afforded 	(see 	PERB Regulation 32621).
Discretion 	to 	allow post-complaint 	amendments 	is 	afforded by
Regulation 	32647. 	Here, 	the 	record does 	not 	reflect 	that 	Fikes
was 	ever 	apprised 	that 	there 	was 	a 	deficiency 	in his 	charge
with 	regard 	to standing. 	Consequently, 	it would be 	unfair 	and
inconsistent 	with 	normal 	PERB processes 	to 	refuse 	to allow
Fikes 	the 	opportunity 	to 	correct 	the 	deficiency.
Assuming 	Fikes 	is 	unable 	to establish his 	standing 	to 	file
the 	charge, 	it would be 	appropriate 	to allow a 	substitution of
parties, 	even 	though 	the 	statute of 	limitations has 	run. 	As
with 	other 	types 	of 	amendments 	to pleadings, 	under California
law a 	policy of 	liberality 	is 	applied 	to 	the 	substitution 	of
parties. 	Where 	a complaint does not 	state 	a 	cause of action 	in
the 	named plaintiff, 	but 	an amended complaint with 	a
substituted 	party would 	restate 	an 	identical 	cause 	of 	action,
31

such an amendment 	is 	freely allowed. 	See, 	generally, 	Witkin,
California Procedure 	(3rd Ed. 	1985) 	vol. 	5, 	section 1150; 	and
see Klopstock v. 	Superior 	Court 	(1941) 	17 	Cal.2d 13; 	Jensen v.
Royal Pools 	(1975) 	48 Cal.App.3d 	717. 	Amendments 	are
disallowed where 	they 	seek 	(after 	the 	statute 	of 	limitations
has 	run) 	to add 	a wholly new 	cause 	of 	action based on a
different 	set of 	facts. 	Klopstock, 	Jensen, 	supra.
Here, 	Fikes 	has 	clearly stated 	a 	claim 	(subject 	to 	the
limitations 	discussed below) 	as 	to 	those who could demonstrate
that 	their 	opportunity 	to 	vote 	in 	the 	agency 	fee 	election was
interfered with by 	the 	alleged 	conduct 	of 	the 	District 	and
ACT. 	Were he unable 	to proffer 	an amendment 	that would
establish his 	standing to 	file 	the 	charge, 	the charge would
nonetheless be 	identical 	if 	it 	were 	amended 	to 	include 	a
substituted 	party who did 	have 	standing. 	We 	would 	simply have
a 	situation 	where 	the 	wrong person 	originally 	filed 	the
charge. 	In my view, 	the authorities 	cited above 	instruct 	that,
in 	such 	circumstances, 	leave 	to amend 	to substitute a new
charging party 	(or parties) 	should be 	granted. 	I 	now turn 	to
the 	issue 	of 	the 	sufficiency 	of 	the 	allegations 	dismissed by
the 	regional 	attorney.
I 	agree 	that 	approval 	of 	the 	consent 	election agreement 	by
a 	Board 	agent 	does 	not 	insulate 	the parties 	from 	charges 	based
on the 	content of 	the agreement. 	Theoretically, 	a Board agent
might 	approve 	a 	flawed 	agreement 	due 	to 	an 	innocent mistake 	or
an error 	in 	judgment. 	The 	flawed 	character 	of 	the 	agreement
32

would 	nevertheless 	remain 	the 	creation of 	the parties 	and 	they
should 	not be 	absolved of 	all 	responsibility. 	In 	this 	case,
the 	agreement 	provided 	for 	only one polling place, 	open 	from
11:30 	a.m. 	to 4:30 p.m., 	in a multi-campus 	district. 	Arguably,
such 	restricted hours 	could have 	interfered 	with 	employees'
ability 	to vote 	in the agency 	fee 	election. 	Therefore, 	I agree
with 	the 	majority 	that 	this 	allegation 	states 	a prima 	facie
case 	of 	interference 	against both 	the 	District 	and 	ACT which
should 	go 	to hearing.
However, 	I must part 	company with 	the 	remainder of 	the
majority 	opinion because 	the 	allegation 	concerning 	the
agreement 	itself 	is 	the 	only one 	which 	should be 	added 	to 	the
complaint 	as 	an 	actionable 	claim. 	The 	remaining 	allegations
were properly dismissed because, 	as 	a matter 	of 	law, 	they
cannot 	constitute actionable 	claims, 	regardless of 	the
surrounding 	circumstances 	or 	the 	intent 	of 	the 	District 	or
ACT. 	At most, 	these 	factual allegations may be used as
evidence 	in 	support 	of 	those 	allegations 	which 	describe
actionable 	conduct. 	In a 	radical 	departure 	from established
principles 	of 	law, 	the majority would 	find 	a 	failure 	to act
unlawful 	even where 	there was 	no duty to act 	in 	the 	first place.
The Allegations 	Against 	the 	District
The 	remaining 	allegations 	against 	the 	District 	are 	that 	it
failed 	to make 	announcements 	about 	the 	agency 	fee 	election 	and
instructed 	its 	site 	administrators 	to make 	no announcements.
Pursuant 	to PERB 	Regulation 	32724(b), 	the 	District had 	the duty
33

to post 	PERB-provided notices 	of 	the 	election 	(see majority-
opinion, 	fn. 	6 ) . 	Neither the statute nor PERB regulations
create 	any additional 	duty 	to publicize 	the 	election. 	The
majority 	admits 	as 	much when 	it 	concedes 	that 	"these 	facts
alone 	are not 	sufficient 	to 	state 	a violation of 	EERA."
However, 	the majority goes on to state, 	in essence, 	that 	the
failure 	to make 	additional 	announcements 	may be 	unlawful 	if
motivated by a 	desire 	to 	restrict 	the 	opportunity 	to 	vote. 	The
majority 	concludes 	that 	all 	of 	the 	allegations 	should be 	added
to 	the 	complaint based upon a 	totality of 	the 	circumstances
analysis.
It 	is 	a 	fundamental principle 	of 	law 	that 	a 	failure 	to act
is 	not unlawful unless there 	is a duty to act. 	This 	is, 	of
course, 	a well-known tenet of tort law 	(see, 	generally, 	Witkin,
Summary of California Law, 	8th Ed. 	(1974), 	vol. 	4, 	sections
5-6) 	and 	is 	equally applicable 	in the 	labor 	law context. 	See,
e.g., 	Florida Mining & Materials 	Co. 	v. 	NLRB 	(5th Cir. 	1973)
481 	F.2d 	65 	[83 LRRM 2793], 	enforcing 198 NLRB No. 	81 	[80 LRRM
1848], 	cert, 	denied 	(1974) 	514 U.S. 	990 [85 LRRM 2711] 	(no
interference 	with 	fair 	election by 	failure 	to 	disclose
information where no duty to disclose); 	accord, 	Bokum Resources
Corp. 	v. 	NLRB 	(10th Cir. 	1981) 	655 F.2d 	1021 	[107 LRRM 3230]
enforcing 	(1979) 	245 NLRB 84 	[102 LRRM 1390]. 	Put another way,
the harm, 	if 	any, 	which 	flows 	from 	a 	failure 	to act may be
attributable 	only to 	those who had 	a duty 	to act. 	In 	this
case, 	the 	District 	cannot be held 	responsible 	for 	some
34

employees' 	lack of knowledge of 	the 	election due 	to 	its 	failure
to 	take 	action 	to publicize 	the 	election beyond 	that 	which 	is
required by 	PERB 	regulations.
Further, 	the 	District's 	state 	of mind 	is of no 	relevance.
A desire 	to 	restrict 	voting opportunities 	does 	not 	create 	a
duty 	to publicize 	the 	election 	that 	does 	not 	otherwise 	exist.
At most, 	such a state of mind 	is nothing more 	than 	"animus 	in
the 	air." 	Certainly, 	the majority would not 	argue with 	the
proposition 	that 	animus 	itself 	is 	not 	unlawful. 	Only where
such 	animus 	results 	in 	some 	action or 	effect 	that breaches 	a
duty 	is 	it deemed unlawful. 	See, 	e.g., 	Los Angeles Unified
School 	District 	(1988) 	PERB Decision No. 	659; 	Resistance
Technology, 	Inc. 	(1986) 	280 NLRB No. 	177 [122 LRRM 1321];
Peerless2 -	, 	Inc. 	v. 	NLRB 	(7th Cir. 	1973) 	484 F.2d 1108 	[83 LRRM
3000], 	enforcing 	198 NLRB 982 	[81 	LRRM 	1472].
The 	District 	could not, 	of course, 	actively restrict 	voting
opportunities, 	because 	such action would breach 	its 	duty not 	to
interfere with 	the 	employees' 	right 	to vote 	in 	the election.
(EERA sections 3543.5(a), 	3543, 	3546.)1 This 	is why the
1Interestingly, 	pursuant 	to 	section 	3546, 	the 	employees
are 	provided 	the 	right 	to 	vote 	on 	the 	agency 	fee provision only
if 	the 	employer 	insists on such a vote. 	Nevertheless, 	once
such 	a 	vote 	is 	required, 	the 	employer 	certainly has 	the 	duty
not 	to 	interfere 	with 	the 	vote.
The majority's 	finding 	that 	an 	"independent 	violation" 	of
section 	3546 	as 	stated 	is 	unnecessary because 	any 	rights
provided 	by 	that 	section 	are 	actionable 	through 	either 	section
3543.5 or 	section 3543.6, 	as 	those sections prohibit
interference 	with 	"rights 	guaranteed by 	this 	chapter." 	While
the 	Board may 	remedy 	violations 	of 	the 	statute 	which 	do 	not
35

allegation 	concerning 	the 	failure 	to maintain 	PERB-provided
notices 	was 	properly 	included 	in 	the 	complaint by 	the 	regional
attorney 	and 	why 	the 	allegation 	concerning 	the 	consent 	election
agreement 	should 	also be 	included.
neatly 	fit 	into 	the 	definitions 	of 	unlawful 	practices 	contained
in 	sections 	3543.5 	and 3543.6, 	it has 	never been the practice
of 	the 	Board 	to 	find both 	a violation of 	section 3543.5 	or
3543.6 	and 	an 	independent 	violation 	of 	the 	section providing
the 	right 	interfered 	with.
While 	the 	majority concedes 	that 	the 	failure 	to 	further
publicize 	the election 	is 	not 	itself unlawful, 	it 	insists 	that,
when 	viewed 	together with 	the other 	allegations 	(i.e., 	in 	the
"totality"), 	the entire course of conduct could be unlawful.
The 	majority 	fails 	to 	recognize 	that 	the 	lack 	of 	a duty 	to
further 	publicize 	the 	election precludes 	finding 	the 	District's
failure 	to make 	announcements 	unlawful, 	whether 	viewed 	in
insolation 	or 	in the 	"totality." 	It 	is 	true 	that 	in certain
contexts, 	including 	interference and 	refusal 	to bargain 	in good
faith 	cases, 	an 	isolated 	action may not 	itself be 	sufficient 	to
constitute 	a 	violation, 	though 	several 	such 	actions 	taken
together 	could be 	sufficient.
In 	the bargaining context, 	it 	is 	often necessary to view
the 	entire 	course 	of bargaining 	conduct 	in 	order 	to 	conclude
that 	an 	inference of bad 	faith has been 	raised. 	Similarly, 	in
an 	interference 	case 	when balancing 	the harm 	to 	statutory
rights 	with 	respondent's business 	justification, 	it may 	require
several 	incidences 	of harmful 	conduct 	in 	order 	to 	tip the
36

balance 	in the charging parties' 	favor. 	However, 	in all 	such
cases, 	the 	respondent 	is 	responsible 	for 	each 	incidence of
harmful 	conduct because 	each 	implicates 	a 	duty 	that 	may have
been breached 	(i.e., 	the 	duty 	to bargain 	in good 	faith 	or 	the
duty to 	refrain 	from 	interfering with 	statutory rights). 	Here,
the 	failure 	to make 	further 	announcements 	implicates 	no duty,
therefore, 	it 	cannot 	separately nor 	cumulatively constitute 	a
violation.
While 	the 	District's 	alleged 	failure 	to make 	further
announcements 	cannot be 	termed actionable 	conduct, 	it 	is
nonetheless 	relevant 	evidence. 	The 	failure 	to make
announcements 	is 	consistent with 	the 	charging party's 	theory
that 	the 	District 	intentionally 	sought 	to 	restrict 	voting
opportunities 	(as 	opposed 	to 	evidence 	that 	the 	District 	did
make 	announcements, 	which would undercut 	that 	theory). 	While
evidence of 	intent 	is not 	required 	in an 	interference case, 	it
is 	nonetheless helpful, 	if 	for no other 	reason than to undercut
any purported 	justification offered 	for 	the 	conduct 	in
question. 	Such 	allegations 	may 	even be 	properly 	included 	in
the 	complaint, 	as 	long as 	it 	is 	clearly separated 	from 	the
alleged 	conduct 	which 	is 	actionable.
Typically, 	a 	complaint 	issued by 	the 	General 	Counsel
contains 	several 	paragraphs 	describing 	the 	factual
allegations. 	The 	complaint 	concludes by stating 	that, 	by
virtue 	of 	the 	conduct 	described 	in one 	or 	more of 	the
paragraphs, 	a violation of 	the statute has occurred. 	The
37

remaining paragraphs, 	while 	alleging 	facts 	critical 	to 	the
prima 	facie 	case, 	are 	not 	referenced 	in 	the 	concluding
paragraph because 	they do 	not 	describe 	the 	actionable 	conduct,
i.e., 	that conduct which, 	if true, 	would violate the 	statute.
The 	allegations 	involved here 	are of 	the 	same 	character. 	While
they may 	aid 	in 	the 	establishment 	of 	a prima 	facie 	case, 	they
do 	not 	describe 	conduct 	which 	is 	arguably unlawful 	due 	to 	the
underlying motive 	or 	due 	to 	its 	effect 	on 	statutory rights.
The 	Allegations 	Against 	ACT
The 	allegations 	that 	ACT 	failed 	to 	make 	any 	announcements
about 	the 	election 	(except 	to 	send 	reminders 	to 	those 	viewed 	as
likely 	to vote 	in 	favor 	of 	agency 	fees) 	should be 	analyzed 	in
the 	same 	way as 	the 	District's 	alleged 	failure 	to make
announcements. 	Neither 	the 	statute 	nor 	PERB 	Regulations
expressly 	require 	that ACT do 	anything 	to publicize 	the
election. 	Nor 	is 	there 	any duty which 	is 	implicitly breached
by 	a 	failure 	to publicize. 	Announcement of 	the 	election 	is
provided 	for 	through 	the 	employer's 	posting 	of 	PERB-provided
notices. 	The parties are, 	of course, 	free to then engage 	in
electioneering which 	does 	not 	interfere 	with 	free 	choice 	or 	the
opportunity to vote. 	Since 	there was 	no duty 	to make
announcements 	at 	all, 	the 	failure 	to 	include 	the agency 	fee
election 	in 	the 	calendar 	section of 	the ACT newsletter 	and 	the
selective 	sending 	of 	reminders 	to 	likely 	supporters 	cannot
constitute 	actionable 	conduct.
38

The 	majority makes much of 	the 	alleged 	selective
notifications 	of 	the 	election by ACT. 	This 	allegation 	is
particularly emphasized 	in 	the majority's 	duty of 	fair
representation analysis. 	Here, 	the majority at 	least
identifies 	a duty which 	is 	allegedly breached. 	Assuming 	for
the 	sake 	of 	argument 	that 	the 	duty of 	fair 	representation
attaches 	in these circumstances 	(see discussion, 	infra), 	the
majority's 	analysis 	is unpersuasive. 	Inherent 	in 	that 	analysis
is 	that 	the duty of 	fair 	representation carries with 	it 	the
concomitant 	obligation, 	if 	the 	union 	chooses 	to notify anyone
of 	the election, 	to do so in an equal 	fashion.
The majority 	intimates 	that ACT's 	apparent 	desire 	to have
only 	agency 	fee 	supporters 	vote 	reflects bad 	faith 	or
discriminatory behavior, 	though 	it acknowledges 	that, 	"standing
alone," 	selective notification 	is 	viewed as 	lawful
electioneering under 	EERA. 	Yet, 	all 	that 	is 	alleged 	is 	that
ACT engaged 	in a 	typical 	get-out-the-vote 	campaign. 	Inherent
in any such 	campaign 	is 	the 	desire 	to 	increase 	turnout by
supporters 	while 	avoiding any action 	that 	would 	increase 	the
turnout 	of opponents. 	To 	say that 	this 	is 	even arguably
discriminatory or 	in bad 	faith 	would 	effectively outlaw 	all
such 	electioneering. 	Surely, 	the 	union must be permitted 	to
try to 	influence 	the outcome of 	the vote. 	This 	is 	no more 	in
derogation 	of 	nonmember 	rights 	than 	seeking 	agency 	fees 	in 	the
first place. 	After all, 	in such circumstances 	the union's
position 	is 	undoubtedly 	that 	agency 	fees 	will 	allow 	it 	to
39

better 	represent 	all members 	of 	the 	unit. 	While 	some may
disagree, 	no one 	can argue 	that 	such 	a position 	is
discriminatory or 	in bad 	faith.
Moreover, 	selective 	notification does 	not 	interfere 	in any
way with 	the 	right 	to vote. 	Those 	not 	notified by 	the 	union
are 	in 	the 	same position 	as 	they would have been had 	the 	union
notified 	no one. 	Since 	the union has 	no duty to publicize 	the
election, 	there 	is no effect upon 	statutory rights.
In 	sum, 	ACT's 	get-out-the-vote 	campaign 	(or 	"selective
notification") 	cannot be 	the basis 	for 	a violation, 	whether
standing 	alone 	or 	viewed 	in 	conjunction with 	the 	other
allegations, 	because 	it 	violated no duty 	imposed upon ACT and
thus had no effect upon employees' 	voting 	rights. 	It 	reflects
allowable 	electioneering 	and no more, 	regardless 	of 	its
motivation. 	Like 	the 	District's 	failure 	to make 	announcements,
ACT's 	similar 	failure 	and 	its 	selective 	notification may
constitute 	relevant 	evidence, 	but 	cannot be 	included 	in 	the
complaint 	as 	actionable 	conduct 	(i.e., 	that 	conduct which
arguably did 	interfere with 	the opportunity to vote).
Duty 	of 	Fair 	Representation
The majority 	claims 	that 	it 	cannot 	reasonably be 	contended
that 	the 	duty of 	fair 	representation 	(DFR) 	does 	not 	attach 	to
the 	conduct 	surrounding an agency 	fee 	election. 	It bases 	this
conclusion 	solely on 	the 	fact 	that 	agency 	fees 	are within 	the
scope 	of 	representation 	(section 	3543.2) 	and 	that 	the 	employer
is 	involved 	in 	requesting 	the 	election 	and posting notices
40

pursuant 	to PERB Regulations. 	I 	submit 	that 	this 	analysis 	is
overly 	simplistic 	and 	that 	a 	thorough 	evaluation 	of 	the 	nature
of 	agency 	fees 	dictates 	that 	they do 	not 	represent 	a matter 	to
which 	the 	duty 	of 	fair 	representation 	attaches.2
The 	duty of 	fair 	representation 	extends 	only 	to 	"union
activities 	that 	have 	a 	substantial 	impact 	on 	the 	relationship
of 	unit 	members 	to 	their 	employers" 	and does 	not 	apply to 	those
"activities 	which 	do 	not 	directly 	involve 	the 	employer 	or 	which
are 	strictly 	internal 	union matters." 	Service 	Employees
International Union, 	Local 99 	(Kimmett) 	(1979) 	PERB Decision
No. 	106; 	Rio Hondo College Faculty Association 	(Furriel) 	(1986)
PERB Decision No. 	583. 	The key phrase 	is 	the 	first one, 	as
precedent 	clearly provides 	that a 	"substantial 	impact 	on 	the
relationship of 	unit members 	to their 	employers" 	is 	the 	central
characteristic 	fixing 	the 	parameters 	of 	the 	duty of 	fair
2At 	the 	outset, 	I wish 	to emphasize 	that whether or not
the 	DFR attaches 	would not 	affect 	the 	outcome of 	this 	case.
Further, 	nonmember 	rights 	with 	regard 	to agency 	fees 	are
protected by 	the 	unfair 	practice 	provisions 	of 	the 	statute
(sections 	3543.5 and 3543.6) 	and, 	in fact, 	are more readily
protected by 	those 	provisions 	given 	the 	high 	standard 	required
to prove 	a breach 	of 	the 	DFR 	(arbitrary, 	capricious 	or bad
faith 	conduct). 	My 	interest 	in making 	this point 	is 	in 	the
development 	of 	a 	coherent 	and 	consistent body of 	law.
I 	recognize 	that 	my 	view 	is 	seemingly 	inconsistent 	with 	the
result 	in King City High 	School 	District A s s o c , 	et 	al.
(Cumero) 	(1982) 	PERB Decision No. 	197 	(on appeal before 	the
California 	Supreme 	Court), 	where 	the 	Board 	found a DFR breach
as 	well 	as 	interference with 	the 	right 	not 	to participate.
However, 	I note 	that 	the 	Board 	apparently 	just 	assumed 	that 	the
DFR would 	attach without 	analysis 	or 	citation. 	I 	find 	the
cases 	where 	the 	Board has 	expressly 	discussed 	the parameters 	of
the 	DFR to be 	more 	instructive.
4
2
1

representation. 	Those activities 	which 	"do not 	directly
involve 	the 	employer" 	or 	are 	"strictly 	internal 	union matters"
by 	definition 	do 	not 	carry 	such 	impact.
Agency 	fees 	represent 	a 	"special 	animal" 	which 	is 	treated
by 	the 	statute 	in a peculiar 	fashion. 	While 	it 	is 	a matter
which 	is 	fundamentally between 	the 	exclusive 	representative 	and
unit members, 	it may not come 	into existence absent the
agreement of the employer. 	While 	it 	is, 	thus, 	technically
within the 	scope of 	representation, 	it 	is 	not 	a 	term and
condition of 	employment 	vis-a-vis 	the 	employer 	as 	are 	all 	other
matters 	within scope. 	As 	such, 	it does 	not have a 	"substantial
impact 	on 	the 	relationship of 	unit members 	to 	their
employers." 	The 	employer's 	substantive 	involvement 	ends 	once
an 	agreement 	to 	allow agency 	fees 	is 	reached 	at 	the bargaining
table.
Because, 	at the bargaining table, 	the exclusive
representative 	is 	acting 	in a 	representational 	capacity 	(i.e.,
acting on behalf of 	the unit vis-a-vis 	the 	employer), 	the duty
of 	fair 	representation may 	attach 	to bargaining 	conduct
surrounding 	the 	agency 	fee provision. 	However, 	once 	agreement
is 	reached at 	the 	table, 	the 	exclusive 	representative no longer
acts 	in 	that 	representational 	capacity. 	Subsequent 	conduct
with 	regard 	to 	agency 	fees 	must 	therefore be 	evaluated 	under
the 	unfair practice provisions 	of 	the 	statute.
Available 	Remedies
The 	regional 	attorney properly 	found 	that 	the 	charging
party has 	no 	standing 	to 	file 	an election objection pursuant 	to
42

PERB Regulation 32738. 	In Bissell 	v. 	PERB 	(1980) 	109
Cal.App.3d 	878, 	the 	court 	affirmed 	the 	Board's 	decision 	that
the 	"parties" 	who may 	file 	an 	election objection pursuant 	to
Regulation 	32738 	are 	clearly defined 	as 	only 	the 	employer 	and
the 	exclusive 	representative 	(see, 	also, 	Richmond Unified
School District 	(1980) 	PERB Order No. Ad-89). 	Subsequently,
Regulation 327 21 	(which clearly defines 	"parties" 	as 	the
employer 	and 	the 	exclusive 	representative 	in 	these
circumstances) 	was 	promulgated 	to 	essentially 	codify 	the
Bissell holding. 	While 	it 	is 	logical 	that 	election conduct
that 	could be 	addressed 	as 	an 	election 	objection might 	also be
an 	unfair 	practice, 	including 	conduct 	that 	would be
insufficient 	to warrant 	a new election, 	the 	same 	array of
remedies 	cannot be 	available.
PERB 	Regulation 	32739 	sets 	out 	the powers 	and duties 	of 	a
Board 	agent 	in 	evaluating 	election 	objections. 	Subsection 	(f)
provides 	for 	dismissal 	when 	the 	objections 	do 	not 	warrant
setting 	aside 	the 	election and 	subsection 	(g) 	provides 	for 	a
written 	determination 	setting 	aside 	the 	election when 	such
action 	is warranted. 	These provisions, 	in conjunction with 	the
10-day 	filing 	period 	(following 	service 	of 	the 	tally 	of
ballots) 	provided by PERB Regulation 	32738, 	clearly reflect
that 	the 	election 	objection procedures 	set 	out 	in 	the
regulations 	are 	intended 	to provide 	an 	expedited process by
which 	charges 	of 	serious 	misconduct 	that 	may 	require 	the
setting 	aside 	of 	an 	election may be 	addressed. 	The 	rationale
43

is 	obvious--should a 	rerun of 	the election be warranted, 	it
must 	be 	determined 	quickly 	to 	avoid 	the 	tremendous 	disruption
that 	a 	later 	invalidation of 	the 	election would 	inevitably
create. 	Elections 	are serious matters, 	the 	results of which,
once 	implemented, 	are difficult to unwind. 	The 	short 	10-day
filing period 	is particularly critical, 	since 	it 	allows 	the
Board 	to 	stay 	the 	results 	of 	the 	election prior 	to 	their
implementation 	if 	serious 	charges 	are 	filed.
If we 	were 	to 	allow an 	election 	to be 	overturned based upon
an 	unfair 	practice 	charge 	filed by 	someone 	who has 	no 	standing
to 	file 	election objections, 	we would undermine 	and 	effectively
render 	a 	nullity 	the 	existing 	regulatory 	scheme 	for 	election
objections. 	This 	would create one 	of 	two anomalous 	results.
Either 	those 	without 	standing 	to 	file 	election 	objections 	would
have 	six months 	to 	file an unfair practice 	charge 	carrying 	the
same 	effect while 	the 	actual 	"parties" 	to 	the 	election are
restricted 	to 	the 	election objection procedures, 	or 	everyone
may 	file 	an unfair 	practice 	if 	the 	time 	for 	election objections
has 	passed. 	Clearly, 	given the present 	regulatory scheme, 	the
setting 	aside 	of 	an 	election 	cannot 	logically be 	an 	available
remedy 	in an unfair practice 	case. 	Should 	it be determined
that 	individuals 	ought 	to be 	allowed 	to petition 	for 	a 	rerun of
an election, 	perhaps 	in special 	circumstances 	and/or upon a
sufficient 	showing of 	unit 	support, 	that 	would properly be
accomplished 	through 	regulation 	changes.
44