Los Rios College Federation of Teachers, California Federation of Teachers/American Federation of Teachers/Local 2279 (Deglow, et al.) (PERB 0897E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging 	Party,
v.
LOS 	RIOS COLLEGE FEDERATION OF
TEACHERS/CFT/AFT/Local 	2279,
Respondent.
Case No. 	S-CO-2 61
PERB 	Decision No. 	897
August 	29,, 	1991
CHARLES A. 	NELSON,
Charging 	Party,
V.
LOS 	RIOS COLLEGE 	FEDERATION OF
TEACHERS/CFT/AFT/Local 	2279,
Respondent.
Case No. 	S-CO-262
MICHAEL A. 	SYAS,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS/CFT/AFT/Local 	2279,
Respondent.
Case No. 	S-CO-263
RONALD M. 	CHARLES, 	SR.,
Charging 	Party,
V.
LOS 	RIOS 	COLLEGE 	FEDERATION OF
TEACHERS/CFT/AFT/Local 	2279,
Respondent.
Case No. 	S-CO-264
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Appearances: 	Annette M. 	Deglow, 	Charles A. 	Nelson, 	Michael A.
Syas, 	and Ronald M. 	Charles, 	Sr., 	on their own behalf; 	Robert J.
Bezemek, 	Attorney, 	for Los Rios College Federation of Teachers/
CFT/AFT/Local 	2279.
Before Hesse Chairperson; 	Shank and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Annette M.
Deglow, 	Charles A. 	Nelson, 	Michael A. 	Syas, 	and Ronald M.
Charles, 	Sr., 	of a Board agent's dismissals 	(attached hereto) 	of
their charge that 	the Los 	Rios College Federation of 	Teachers/
CFT/AFT/Local 	2279 	violated 	section 	3543.6(b) 	of 	the 	Educational
Employment Relations Act 	(EERA)1 and violated its 	duty of 	fair
representation under 	section 	3544.9 	of 	the EERA, 	as 	enforced
under section 3543.6(b). 	We have reviewed the dismissals 	and,
finding them to be 	free of prejudicial 	error, 	adopt them as 	the
decision of 	the Board 	itself.2
Members 	Shank and Carlyle 	joined 	in this 	Decision.
1EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
2The 	charging parties 	urge 	consolidation of 	their 	four
separate unfair practice 	charges 	in this 	single appeal. 	Because
the 	allegations 	in the 	charges 	are 	identical, 	and the 	charging
parties 	are 	similarly 	situated, 	the 	Board 	finds 	consolidation to
be 	appropriate. 	(See Chaffey Joint 	Union High School 	District
(1988) 	PERB Decision No. 	669.) 	Additionally, 	the warning and
dismissal 	letters 	are 	substantially 	identical.
N
	2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
July 1, 	1991
Annette 	DeGlow
RE: 	DeGlow v. 	Los Rios College Federation of Teachers. CFT, AFT.
Local 	2279
Unfair Practice Charge No. 	S-CO-261, 	First Amended Charge
DISMISSAL 	OF 	CHARGE
Dear Ms. 	DeGlow:
The 	above-referenced 	charge 	alleges 	that 	the Los 	Rios 	College
Federation of Teachers, 	CFT, AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit 	members 	and 	breached
it's 	duty of 	fair representation to 	these 	individuals 	by 	failing
to return their fair share 	fees. 	This 	conduct is alleged to
violate 	sections 	3543.6 	(b) 	and 3544.9 of the Educational
Employment Relations Act 	(EERA).
I 	indicated to you 	in my attached 	letter dated June 	7, 	1991 	that
the 	above-referenced charge did not 	state 	a prima 	facie 	case.
You were 	advised that 	if 	there were any 	factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	the 	deficiencies 	explained 	in
that 	letter, 	you 	should amend the 	charge accordingly. 	You were
further advised that unless 	you amended the 	charge 	to 	state 	a
prima facie case, 	or withdrew it prior to June 	14, 	1991, 	the
charge would 	be dismissed.
On June 	11, 	1991, 	you requested and received an extension of time
to 	file 	an amended 	charge. 	The 	amended 	charge was 	filed on
June 	26, 	1991 	and contains 	the 	same 	information provided 	in the
original 	charge with the 	following additional 	material. 	On
November 	30, 	1990, 	the Federation sent a memo to all fair share
fee payers. 	This 	memo 	contained the 	following 	statement
" . . . 	you are 	required as 	a 	condition of 	employment, 	either to
join AFT Local 	2279 	and pay union dues, 	or pay a 	service 	fee as
described herein 	. 	. 	. 	." 	The amended charge alleges that this
statement 	is 	a 	grossly negligent, 	arbitrary and devoid of honest
judgement misrepresentation and 	as 	such 	violates 	the duty of 	fair
representation. 	The 	charge asserts 	that 	such knowing
misrepresentations 	constitute 	a 	violation of 	the duty of 	fair

representation under California 	State Employees' 	Association
(O'Connell) 	(1986) 	PERB Decision No. 	596-H 	[11 PERC Par. 	18010].1
Letter to Annette 	DeGlow
Page 2
July 1, 	1991
The 	additional 	information provided 	in the 	amended 	charge 	and
summarized above 	is 	insufficient to 	state a prima 	facie violation
of the EERA for the reasons 	contained 	in my June 	7, 	1991 	letter
and 	the 	following.
The Federation's 	November 	30 memo 	coupled with 	its 	subsequent
decision to return agency fees 	to Ms. 	Ono does 	not 	support the
legal 	conclusion 	that 	the 	Federation 	knowingly misrepresented
facts 	to bargaining unit members. 	The theory apparently 	is 	that
the 	Federation knew on November 	30 when it 	issued the memo that
the 	statement 	concerning the 	agency 	fee 	requirement was 	false.
There 	is 	no evidence 	supporting this 	assertion. 	In fact, the
Federation's decision to return Ms. 	Ono's 	fees probably would not
have been made until after Ms. 	Ono 	filed her objection to the 	fee
on December 28, 	1990.
Finally, 	these 	facts do not 	support the 	finding of a prima 	facie
violation of 	the 	statute based on O'Connell. 	That case 	stands
for the proposition that 	"...a prima 	facie 	case of 	a breach of
the duty of 	fair representation has 	been stated where 	it 	is
alleged 	that 	the 	exclusive 	representative 	knowingly
misrepresented 	a 	fact 	in order to 	secure 	from 	its 	constituents
their 	ratification of 	a 	contract." 	The 	alleged misrepresentation
presented here does 	not relate 	to 	ratification of 	any 	contract.
Rather, 	it is 	essentially a 	statement of 	law indicating a
nonmembers' 	obligation to pay an agency 	fee where 	such has been
properly 	negotiated 	between 	the 	Federation 	and 	the 	employer.
Thus, 	there 	is 	no prima 	facie case based on the O'Connell 	ruling.
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing 	an
appeal 	to the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or sent by telegraph,
certified 	or Express 	United 	States 	mail 	postmarked 	no 	later 	than
1This case was 	incorrectly 	cited 	in the 	amended 	charge 	as
PERB Decision No. 	916-H 	[11 PERC Par. 	18070].

the 	last date 	set 	for filing 	(California Code of 	Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure 	section 	1013 	shall apply.
The Board's 	address 	is:
Letter 	to Annette 	DeGlow
Page 3
July 	1, 	1991
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file a 	timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any 	other party may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date 	of 	service 	of 	the appeal 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof 	of 	service" 	must
accompany 	each 	copy of 	a document 	served 	upon a party 	or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered 	or deposited 	in the 	first-class 	mail 	postage 	paid 	and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously 	noted address. 	A request 	for 	an 	extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of 	each other
party 	regarding the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service 	of 	the 	request upon 	each party 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Letter to Annette 	DeGlow
Page 	4
July 1, 	1991
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal will become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Robert 	Thompson
Deputy General 	Counsel
cc: 	Michael J. 	Crowley
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
June 7, 	1991
Annette 	DeGlow
RE: 	DeGlow v. 	Los Rios College Federation of Teachers. 	CFT. 	AFT.
Local 	2279
Unfair Practice Charge No. 	S-CO-261
WARNING 	LETTER
Dear Ms. 	DeGlow:
The 	above-referenced 	charge 	alleges 	that 	the 	Los 	Rios 	College
Federation of Teachers, 	CFT, 	AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit 	members 	and 	breached
it's 	duty 	of 	fair representation to 	these 	individuals 	by 	failing
to return their fair 	share 	fees. 	This 	conduct 	is 	alleged to
violate 	sections 	3543.6 	(b) 	and 	3544.9 	of the Educational
Employment Relations Act 	(EERA).
My 	investigation 	revealed the 	following 	information. 	The
Federation 	and 	the 	Los 	Rios 	Community 	College 	District 	(District)
are parties 	to 	a 	collective 	bargaining 	agreement 	covering 	the
certificated bargaining unit which expires 	on June 	30, 	1993. 	As
a part of that bargaining unit, 	you voted 	in October 	1990 	in an
election 	in which 	the 	majority 	ratified 	the 	fair 	share 	agreement
provisions of this contract. 	On November 30, 	1990, 	the
Federation wrote 	to 	all 	fair 	share 	fee payers 	informing them of
their 	rights 	and providing 	them 	a 	breakdown 	of 	total 	union
expenses 	including 	a description of 	the union expenses which are
non-chargeable 	to 	agency 	fee payers. 	The 	letter also 	stated that
fee payers wishing to object 	to 	and/or 	challenge 	the 	Federation's
determination of 	the 	chargeable percentage 	must 	file 	a written
objection within 	30 	days 	from the date of 	the notice. 	The
challenge procedure ends 	in an arbitration before a neutral 	from
the American Arbitration Association.

Letter 	to Annette 	DeGlow
Page 2
June 7, 	1991
In December 	1990, 	unit member Marian Ono 	filed a challenge to the
union's determination of the agency 	fee. 	The Federation
commenced 	collection of 	the 	fair 	share 	fee with 	the 	January 	1991
pay period.
In a May 3, 	1991 	letter, 	the Federation informed Ms. 	Ono that the
arbitration 	scheduled 	to 	hear her 	challenge 	had 	been 	cancelled
and that her agency fees, 	with 	interest, 	were being returned to
her. 	In addition, 	the letter 	stated that 	she was 	being refunded
$63.68 	for agency 	fees 	to be 	collected 	in May and June. 	The
letter 	continued 	that 	her 	money was 	being 	refunded 	to 	avoid 	the
"enormous 	expense 	involved arbitrating challenges 	to the 	fee."1
At this 	time, 	it 	is 	unknown whether the other three employees who
objected 	to 	the 	agency 	fee 	also 	received 	their money back.
Ms. 	Ono 	is presently asking the American Arbitration Association
whether the arbitration 	is 	going to be rescheduled.
The 	charge 	alleges 	that 	the 	Federation violated the 	EERA by
returning 	fair 	share 	fees 	to unit member Ono without 	extending
this 	opportunity to all 	other fair 	share 	fee payers 	in the
bargaining unit. 	Based on these facts, 	this 	charge does not
state a prima 	facie violation of the EERA for the reasons which
follow.
Charging 	Party 	has 	alleged 	that 	the 	exclusive 	representative
denied Charging 	Party 	the 	right 	to 	fair representation guaranteed
by 	EERA 	section 	3544.9 	and 	thereby violated 	section EERA
3543.6(b). 	The duty of 	fair representation imposed on the
exclusive 	representative 	extends 	primarily 	to 	grievance 	handling
and 	contract 	negotiations. 	Fremont Teachers Association 	(King)
1 It 	appears 	from the 	correspondence provided 	that 	the
decision to refund Ms. 	Ono's 	agency 	fees was 	based on an economic
determination made by the 	Federation. 	Namely, 	it would cost 	the
Federation less 	money to return Ms. 	Ono's 	fees 	than it would to
conduct an arbitration over her objection to 	the 	fees. 	The
Federation apparently relies 	on a 	reading of 	agency 	fee 	law,
including Chicago Teachers' 	Association v. 	Hudson. 	(1986) 	475
U.S. 	292. 	Hudson sets out 	specific procedures which are designed
to protect the 	First Amendment rights 	of 	agency 	fee payers.
These procedures 	are 	designed 	to prevent 	an 	exclusive
representative's wrongful use of agency fees. 	Thus, 	the-
Federation would argue, 	where an employee has 	no agency 	fees
deducted 	from their paycheck, 	these procedural 	rights 	do 	not
apply and there 	is 	no 	need 	for an agency 	fee arbitration.

(1980) 	PERB Decision No. 	125; 	United Teachers of Los Angeles
(Collins) 	(1983) 	PERB Decision No. 	258; 	Rocklin Teachers Prof.
Association 	(Romero) 	(1980) 	PERB Decision No. 	124. 	The Board has
determined that 	the duty of 	fair representation does 	not 	apply to
internal 	union activities 	that do not have 	a 	substantial 	impact
on the relationships 	of unit members 	to their employers. 	Service
Employees 	International Union. 	Local 	99 	(1979) 	PERB Decision No.
106. 	The decision to refund agency fees 	to nonmember Ono 	is 	an
internal 	union matter which does 	not have a 	substantial 	impact of
the relationship of unit members to the District. 	Thus, 	no-
violation of the duty of 	fair representation has 	been presented.
Letter 	to Annette 	DeGlow
Page 3
June 7, 	1991
Charging 	Party 	asserts 	that 	the 	Federation discriminated when 	it
decided to 	refund agency 	fees 	to unit member Ono. 	To demonstrate
a violation of 	EERA 	section 	3543.6(b), 	Charging Party must meet
the 	analytical 	standard applied 	to 	cases 	of 	employer
discrimination. 	State of California 	(Dept, 	of Developmental
Services) 	(1983) 	PERB Decision No. 	344-S. 	Thus, 	Charging Party
is required to show that: 	(1) 	the employee exercised rights
under the EERA, 	(2) 	the union had knowledge of the exercise of
those rights, 	and 	(3) 	the union imposed or threatened to impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained 	or coerced the 	employees
because of 	the 	exercise of 	those rights. 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although the 	timing of 	the union's 	adverse 	action 	in close
temporal 	proximity to 	the 	employee's 	protected conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between the 	adverse 	action and
the 	protected 	conduct. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	Facts 	establishing one or more of
the 	following additional 	factors must also be present: 	(1) 	the
union's disparate treatment of the employee, 	(2) 	the union's
departure 	from 	established procedures 	and 	standards 	when dealing
with the employee, 	(3) 	the union's 	inconsistent or contradictory
justifications 	for its 	actions, 	(4) 	the union's cursory
investigation of the employee's misconduct, 	(5) 	the union's
failure 	to 	offer the 	employee 	justification 	at 	the 	time 	it 	took
action or the offering of 	exaggerated, 	vague, 	or ambiguous
reasons, 	or 	(6) 	any other facts which might demonstrate the
union's unlawful motive. 	Novato Unified School District, 	supra?
North Sacramento School District 	(1982) 	PERB Decision No. 	264.

Letter to Annette 	DeGlow
Page 4
June 7, 	1991
This 	charge does 	not 	indicate 	that Charging Party 	engaged 	in
protected activity, 	that the Federation had knowledge 	of 	this
activity, 	and that 	the Federation's 	refusal 	to refund Charging
Party's 	agency 	fees 	was 	motivated by 	the protected 	conduct.
No 	discrimination has 	been demonstrated by the 	Charging 	Party.
The 	Federation's 	decision to 	return these 	agency 	fees 	to 	objector
Ono 	is 	analogous 	to a defendant 	settling a 	lawsuit with a
plaintiff. 	Requiring the Federation to return all nonmembers'
agency 	fees 	would be 	equivalent 	to 	requiring 	a 	settling defendant
to pay a 	settlement to anyone who asked for it, 	even individuals
who were 	not plaintiffs.
For these reasons, 	the charge as presently written does 	not 	state
a prima facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would correct 	the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge. 	contain all the facts and allegations you wish to make,
and must be 	signed under penalty of perjury by the Charging
Party. 	The 	amended charge must be 	served on the respondent and
the original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge or withdrawal 	from you before
June 	14, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	323-8015.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
July 1, 	1991
Charles A. 	Nelson
RE: 	Charles A. 	Nelson v. 	Los Rios College Federation of
Teachers f 	CFT. AFT. 	Local 2279
Unfair Practice Charge No. 	S-CO-262
DISMISSAL 	OF 	CHARGE
Dear Mr. 	Nelson:
The 	above-referenced charge 	alleges 	that 	the Los 	Rios 	College
Federation of Teachers, CFT, AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit members 	and breached
it's 	duty of 	fair representation to 	these 	individuals 	by 	failing
to return their fair share 	fees. 	This 	conduct is 	alleged to
violate 	sections 	3543.6 	(b) 	and 3544.9 of the Educational
Employment Relations Act 	(EERA).
I 	indicated to you in my attached letter dated June 	7, 	1991 	that
the 	above-referenced charge did not 	state a prima 	facie 	case.
You were advised that 	if 	there were 	any factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	the deficiencies 	explained 	in
that 	letter, 	you 	should amend the charge accordingly. 	You were
further 	advised 	that unless 	you amended the 	charge 	to 	state 	a
prima facie case, 	or withdrew it prior to June 	14, 	1991, 	the
charge would be 	dismissed.
On June 	11, 	1991, 	you requested and received an extension of 	time
to 	file 	an amended 	charge. 	The 	amended 	charge was 	filed 	on
June 	26, 	1991 	and contains 	the 	same 	information provided in the
original 	charge with the 	following additional 	material. 	On
November 30, 	1990, 	the Federation sent a memo to all 	fair share
fee payers. 	This 	memo 	contained the 	following 	statement
" . . . 	you are required as 	a condition of 	employment, 	either to
join AFT Local 	2279 	and pay union dues, 	or pay a 	service 	fee 	as
described herein 	. 	. 	. 	." 	The amended charge alleges that this
statement 	is 	a grossly negligent, 	arbitrary and devoid of honest
judgement 	misrepresentation 	and as 	such violates 	the 	duty 	of 	fair
representation. 	The 	charge 	asserts 	that 	such knowing
misrepresentations 	constitute 	a 	violation of 	the 	duty 	of 	fair

representation under California 	State 	Employees' 	Association
(O'Connell) 	(1986) 	PERB Decision No. 	596-H 	[11 PERC Par. 	18010].'
Letter to Charles A. 	Nelson
Page 2
July 	1, 	1991
The 	additional 	information provided 	in the 	amended 	charge 	and
summarized above 	is 	insufficient to 	state a prima 	facie violation
of the EERA for the reasons 	contained 	in my June 	7, 	1991 	letter
and 	the 	following.
The Federation's 	November 	30 	memo 	coupled with 	its 	subsequent
decision to return agency fees 	to Ms. 	Ono does 	not 	support the
legal 	conclusion 	that 	the 	Federation knowingly misrepresented
facts 	to bargaining unit members. 	The theory apparently 	is 	that
the Federation knew on November 	30 when it 	issued the memo 	that
the 	statement 	concerning the 	agency 	fee requirement was 	false.
There 	is 	no evidence supporting this assertion. 	In fact, 	the
Federation's 	decision to return Ms. 	Ono's 	fees 	probably would not
have been made until after Ms. 	Ono 	filed her objection to the 	fee
on December 28, 	1990.
Finally, 	these facts do not 	support the finding of a prima 	facie
violation of the 	statute based on O'Connell. 	That case 	stands
for the proposition that 	"...a prima 	facie 	case of 	a breach of
the duty of 	fair representation has 	been 	stated where 	it 	is
alleged 	that 	the 	exclusive 	representative 	knowingly
misrepresented 	a 	fact 	in order 	to 	secure 	from 	its 	constituents
their 	ratification of 	a 	contract." 	The 	alleged misrepresentation
presented here does 	not relate 	to ratification of 	any 	contract.
Rather, 	it 	is 	essentially a 	statement of 	law indicating a
nonmembers' 	obligation to pay an agency 	fee where 	such has 	been
properly 	negotiated 	between 	the 	Federation 	and 	the 	employer.
Thus, 	there 	is 	no prima 	facie case based on the O'Connell 	ruling.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board 	itself
before the close of business 	(5:00 	p.m.) 	or 	sent by telegraph,
certified 	or Express 	United 	States 	mail postmarked 	no 	later 	than
1This case was 	incorrectly 	cited 	in 	the 	amended 	charge 	as
PERB Decision No. 	916-H 	[11 PERC Par. 	18070].

the last date set 	for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's 	address 	is:
Letter to Charles A. 	Nelson
Page 3
July 	1, 	1991
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a 	timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any other party 	may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within 	twenty 	calendar days
following the date 	of 	service 	of 	the 	appeal 	(California Code 	of
Regs., tit. 	8, 	sec. 	32635(b)).
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon a 	party 	or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered 	properly 	"served" 	when personally
delivered or deposited 	in 	the 	first-class 	mail 	postage paid 	and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with 	the 	Board 	itself must 	be 	in writing 	and 	filed with 	the 	Board
at the previously 	noted 	address. 	A 	request 	for an extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the time 	required 	for 	filing 	the document. 	The 	request 	must
indicate good cause 	for and, 	if known, 	the position of each other
party 	regarding the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service of 	the 	request upon 	each party 	(California Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Letter to Charles A. 	Nelson
Page 4
July 1, 	1991
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W, 	SPITTLER
General 	Counsel
By
RUNELL AHUMPOVI
Deputy General 	Counsel
cc: Michael J. 	Crowley
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
June 7, 	1991
Charles A. 	Nelson
RE: 	Charles A. 	Nelson v. 	Los Rios College Federation of
Teachers. CFT. AFT f 	Local 2279
Unfair Practice Charge No. 	S-CO-262
WARNING 	LETTER
Dear Mr. 	Nelson:
The 	above-referenced 	charge alleges 	that 	the Los 	Rios 	College
Federation of Teachers, 	CFT, AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit members 	and breached
it's 	duty of 	fair representation to these 	individuals 	by 	failing
to return their fair share 	fees. 	This 	conduct is 	alleged to
violate 	sections 	3543.6 	(b) 	and 3544.9 of the Educational
Employment Relations Act 	(EERA).
My 	investigation revealed 	the 	following 	information. 	The
Federation and the 	Los 	Rios 	Community 	College 	District 	(District)
are parties 	to 	a 	collective bargaining agreement 	covering 	the
certificated bargaining unit which expires on June 	30, 	1993. 	As
a part of 	that bargaining unit, 	you voted 	in October 	1990 	in an
election 	in which 	the 	majority 	ratified 	the 	fair 	share 	agreement
provisions of this contract. 	On November 30, 	1990, 	the
Federation wrote to 	all 	fair 	share 	fee payers 	informing 	them of
their rights 	and providing 	them a 	breakdown 	of 	total 	union
expenses 	including a description of 	the union 	expenses 	which 	are
non-chargeable 	to agency 	fee payers. 	The 	letter also 	stated 	that
fee 	payers 	wishing to object 	to 	and/or 	challenge 	the 	Federation's
determination of 	the 	chargeable percentage must 	file 	a written
objection within 30 days 	from the date of 	the notice. 	The
challenge procedure 	ends 	in an arbitration before 	a 	neutral 	from
the 	American Arbitration Association.

Letter to Charles A. 	Nelson
Page 2
June 7, 	1991
In December 	1990, 	unit member Marian Ono 	filed a 	challenge to the
union's determination of the agency fee. 	The Federation
commenced 	collection of the 	fair 	share 	fee with 	the 	January 	1991
pay 	period.
In a May 	3, 	1991 	letter, 	the Federation informed Ms. 	Ono that the
arbitration 	scheduled 	to 	hear her 	challenge 	had 	been 	cancelled
and that her agency fees, 	with 	interest, 	were being returned to
her. 	In addition, 	the 	letter stated that 	she was 	being refunded
$63.68 	for agency 	fees 	to be collected 	in May and June. 	The
letter 	continued 	that 	her money was 	being 	refunded 	to 	avoid 	the
"enormous 	expense 	involved 	arbitrating 	challenges 	to 	the 	fee."1
At this 	time, 	it is unknown whether the other three employees who
objected 	to the 	agency 	fee 	also 	received their money back.
Ms. 	Ono 	is presently asking the American Arbitration Association
whether the arbitration is 	going to be 	rescheduled.
The 	charge alleges 	that the 	Federation violated 	the 	EERA by
returning 	fair 	share 	fees 	to unit member Ono without 	extending
this 	opportunity to all other fair share 	fee payers 	in the
bargaining unit. 	Based on these facts, 	this 	charge does not
state 	a prima 	facie violation of 	the 	EERA for the reasons which
follow.
Charging 	Party has 	alleged 	that 	the 	exclusive 	representative
denied Charging 	Party 	the 	right 	to 	fair 	representation guaranteed
by 	EERA 	section 	3544.9 	and 	thereby violated 	section EERA
3543.6(b). 	The duty of fair representation imposed on the
exclusive 	representative 	extends 	primarily 	to 	grievance 	handling
and 	contract negotiations. 	Fremont Teachers Association 	(King)
1 It 	appears 	from the 	correspondence 	provided 	that 	the
decision to refund Ms. 	Ono's 	agency 	fees was 	based on an economic
determination made by the 	Federation. 	Namely, 	it would 	cost 	the
Federation less money to return Ms. 	Ono's 	fees 	than it would to
conduct 	an arbitration over her objection to 	the 	fees. 	The
Federation apparently 	relies 	on a 	reading 	of 	agency 	fee 	law,
including Chicago Teachers' 	Association v. 	Hudson. 	(1986) 	475
U.S. 	292. 	Hudson sets 	out 	specific procedures which are designed
to protect 	the 	First Amendment 	rights 	of 	agency 	fee payers.
These 	procedures 	are designed 	to prevent 	an 	exclusive
representative's wrongful use of agency fees. 	Thus, 	the
Federation would argue, 	where an employee has 	no 	agency 	fees
deducted 	from their paycheck, 	these procedural 	rights 	do not
apply and 	there 	is 	no need 	for an agency 	fee 	arbitration.

(1980) 	PERB Decision No. 	125; 	United Teachers of Los Angeles
(Collins! 	(1983) 	PERB Decision No. 	258; 	Rocklin Teachers Prof.
Association 	(Romero) 	(1980) 	PERB Decision No. 	124. 	The Board has
determined that 	the duty of 	fair representation does 	not 	apply 	to
internal 	union activities 	that do not have 	a 	substantial 	impact
on the relationships 	of unit members 	to their employers. 	Service
Employees 	International Union, 	Local 	99 	(1979) 	PERB Decision No.
106. 	The decision to refund agency fees 	to nonmember Ono 	is 	an
internal 	union matter which does 	not have a 	substantial 	impact of
the relationship of unit members to the District. 	Thus, 	no-
violation of 	the duty of 	fair representation has 	been presented.
Letter to Charles A. 	Nelson
Page 3
June 7, 	1991
Charging 	Party asserts 	that 	the 	Federation discriminated when 	it
decided to refund agency 	fees 	to unit member Ono. 	To demonstrate
a violation of EERA section 3543.6(b), 	Charging Party must meet
the 	analytical 	standard applied 	to 	cases 	of 	employer
discrimination. 	State of California 	(Dept, 	of Developmental
Services) 	(1983) 	PERB Decision No. 	344-S. 	Thus, 	Charging Party
is 	required to show that: 	(1) 	the employee exercised rights
under the EERA, 	(2) 	the union had knowledge of the exercise of
those rights, 	and 	(3) 	the union imposed or threatened to impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or coerced 	the 	employees
because of the exercise of 	those rights. 	Novato 	Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although the 	timing of 	the union's 	adverse 	action 	in close
temporal 	proximity to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between 	the 	adverse 	action and
the protected 	conduct. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	Facts 	establishing one or more of
the 	following additional 	factors 	must also be present: 	(1) 	the
union's disparate treatment of the employee, 	(2) 	the union's
departure 	from 	established 	procedures 	and 	standards 	when dealing
with the employee, 	(3) 	the union's 	inconsistent or contradictory
justifications for its actions, 	(4) 	the union's cursory
investigation of the employee's misconduct, 	(5) 	the union's
failure 	to offer the 	employee 	justification 	at the 	time 	it 	took
action or the offering of 	exaggerated, 	vague, 	or ambiguous
reasons, 	or 	(6) 	any other 	facts which might demonstrate the
union's unlawful motive. 	Novato Unified School 	District, 	supra?
North Sacramento School District 	(1982) 	PERB Decision No. 	264.

Letter to Charles A. 	Nelson
Page 4
June 7, 	1991
This 	charge does 	not 	indicate 	that 	Charging 	Party 	engaged 	in
protected activity, 	that the Federation had knowledge of 	this
activity, 	and that 	the Federation's 	refusal 	to 	refund Charging
Party's 	agency 	fees was 	motivated by 	the protected 	conduct.
No discrimination has 	been demonstrated by 	the 	Charging 	Party.
The 	Federation's 	decision to return these 	agency 	fees 	to 	objector
Ono 	is 	analogous 	to 	a defendant 	settling a 	lawsuit with a
plaintiff. 	Requiring the Federation to return all 	nonmembers'
agency 	fees would be 	equivalent to 	requiring 	a 	settling defendant
to pay a 	settlement to anyone who asked 	for it, 	even individuals
who were not plaintiffs.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would 	correct the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge. 	contain all the facts 	and allegations you wish to make,
- -	and must be 	signed under penalty of perjury by the Charging
Party. 	The amended charge must be 	served on the respondent and
the original proof of 	service must be 	filed with PERB. 	If I 	do
not 	receive 	an amended charge or withdrawal 	from you before
June 	14, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	323-8015.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
July 	1, 	1991
Michael A. 	Syas
RE: 	Michael A. 	Syas v. 	Los Rios College Federation of Teachers.
CFT. AFT. Local 2279
Unfair Practice Charge No. 	S^CO-263
DISMISSAL 	OF 	CHARGE
Dear Mr. 	Syas:
The above-referenced charge alleges 	that the Los 	Rios 	College
Federation of Teachers, 	CFT, AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit 	members 	and 	breached
it's 	duty of 	fair representation to 	these 	individuals 	by 	failing
to return their fair share fees. 	This conduct is 	alleged to
violate 	sections 	3543.6 	(b) 	and 3544.9 	of the Educational
Employment Relations Act 	(EERA).
I 	indicated to you 	in my attached 	letter dated June 	7, 	1991 	that
the 	above-referenced charge did not 	state a prima 	facie 	case.
You were 	advised that 	if 	there were any 	factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	the deficiencies 	explained 	in
that 	letter, 	you 	should amend the charge accordingly. 	You were
further 	advised that unless 	you 	amended 	the 	charge 	to 	state 	a
prima 	facie case, 	or withdrew it prior to June 	14, 	1991, 	the
charge would 	be 	dismissed.
On June 	11, 	1991, 	you 	requested and received an extension of 	time
to 	file 	an amended 	charge. 	The amended charge was 	filed on
June 	26, 	1991 	and contains 	the 	same information provided 	in the
original 	charge with 	the 	following additional 	material. 	On
November 30, 	1990, 	the Federation sent a memo to all fair share
fee payers. 	This 	memo 	contained the 	following 	statement
". 	. 	. 	you are required as a condition of employment, 	either to
join AFT Local 	2279 	and pay union dues, 	or pay a 	service 	fee 	as
described herein 	. 	. 	. 	." 	The amended charge alleges that this
statement 	is 	a 	grossly negligent, 	arbitrary and devoid of 	honest
judgement misrepresentation and 	as 	such violates 	the 	duty of 	fair
representation. 	The 	charge 	asserts 	that 	such knowing
misrepresentations 	constitute 	a 	violation of 	the 	duty 	of 	fair

representation under California 	State Employees' 	Association
(O'Connell) 	(1986) 	PERB Decision No. 	596-H 	[11 PERC Par. 	18010].l
Letter to Michael A. 	Syas
Page 	2
July 1, 	1991
The 	additional 	information provided 	in the 	amended 	charge 	and
summarized above 	is 	insufficient 	to 	state a prima 	facie violation
of the EERA for the reasons 	contained 	in my June 	7, 	1991 	letter
and the 	following.
The 	Federation's 	November 	30 	memo coupled with 	its 	subsequent
decision to return agency 	fees to Ms. 	Ono does 	not 	support the
legal 	conclusion that 	the 	Federation knowingly misrepresented
facts 	to bargaining unit members. 	The theory apparently is that
the 	Federation knew on November 	30 when it 	issued the memo that
the 	statement 	concerning the agency 	fee requirement was 	false.
There is 	no evidence supporting this assertion. 	In fact, 	the
Federation's decision to return Ms. 	Ono's 	fees probably would not
have been made until after Ms. 	Ono filed her objection to the 	fee
on December 28, 	1990.
Finally, 	these 	facts do not 	support the 	finding of a prima 	facie
violation of the 	statute based on O'Connell. 	That case 	stands
for the proposition that 	"...a prima 	facie 	case of 	a breach of
the duty of 	fair representation has 	been 	stated where 	it 	is
alleged 	that 	the 	exclusive 	representative 	knowingly
misrepresented a 	fact 	in order to 	secure 	from 	its 	constituents
their ratification of 	a 	contract." 	The alleged misrepresentation
presented here does 	not relate 	to ratification of 	any 	contract.
Rather, 	it 	is 	essentially a 	statement of 	law indicating a
nonmembers' 	obligation to pay an agency 	fee where 	such has been
properly 	negotiated 	between 	the 	Federation and 	the 	employer.
Thus, 	there 	is 	no prima 	facie 	case based on the O'Connell 	ruling.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board 	itself
before the 	close of business 	(5:00 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later 	than
1This 	case was 	incorrectly 	cited 	in the 	amended 	charge 	as
PERB Decision No. 	916-H 	[11 PERC Par. 	18070].

the 	last date 	set 	for filing 	(California Code of 	Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure 	section 	1013 	shall apply.
The Board's 	address 	is:
Letter to Michael A. 	Syas
Page 3
July 1, 	1991
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 	95814
If 	you 	file a timely appeal 	of 	the refusal 	to 	issue 	a 	complaint,
any 	other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar 	days
following the date 	of 	service of 	the 	appeal 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32635(b)).
Service
All 	documents 	authorized to be 	filed 	herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a document 	served upon a party 	or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered 	or deposited 	in the 	first-class 	mail 	postage paid 	and
properly 	addressed.
Extension 	of 	Time
A request 	for an 	extension of 	time 	in which to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously noted address. 	A request 	for 	an 	extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing 	the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of 	each other
party 	regarding the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service 	of 	the 	request 	upon each party 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Letter to Michael A. 	Syas
Page 4
July 1, 	1991
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will become 	final when the time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By _
Robert 	Thompson
Deputy General 	Counsel
cc: 	Michael J. 	Crowley
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
June 7, 	1991
Michael A. 	Syas
RE: 	Michael A. 	Syas v. 	Los Rios College Federation of Teachers.
CFT. AFT. Local 2279
Unfair Practice Charge No. 	S-CO-263
WARNING 	LETTER- -
Dear Mr. 	Syas:
The 	above-referenced 	charge 	alleges 	that 	the 	Los 	Rios 	College
Federation of Teachers, 	CFT, 	AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit 	members 	and 	breached
it's 	duty 	of 	fair representation to 	these 	individuals 	by 	failing
to return their fair 	share 	fees. 	This 	conduct 	is 	alleged to
violate 	sections 	3543.6 	(b) 	and 	3544.9 	of 	the Educational
Employment Relations Act 	(EERA).
My 	investigation revealed 	the 	following 	information. 	The
Federation 	and 	the 	Los 	Rios 	Community College 	District 	(District)
are parties 	to 	a 	collective 	bargaining agreement 	covering 	the
certificated bargaining unit which expires 	on June 	30, 	1993. 	As
a 	part of 	that bargaining unit, 	you voted 	in October 	1990 	in 	an
election 	in which 	the 	majority 	ratified 	the 	fair 	share 	agreement
provisions of this contract. 	On November 30, 	1990, 	the
Federation wrote 	to 	all 	fair 	share 	fee payers 	informing them of
their 	rights 	and providing 	them a 	breakdown of 	total 	union
expenses 	including 	a 	description of 	the union expenses 	which 	are
non-chargeable 	to 	agency 	fee payers. 	The 	letter 	also 	stated 	that
fee payers 	wishing 	to 	object 	to 	and/or 	challenge 	the 	Federation's
determination of 	the 	chargeable percentage 	must 	file 	a written
objection within 	30 	days 	from the date of 	the notice. 	The
challenge procedure 	ends 	in an arbitration before 	a 	neutral 	from
the 	American Arbitration Association.

Letter to Michael A. 	Syas
Page 2
June 7, 	1991
In December 	1990, 	unit member Marian Ono 	filed 	a 	challenge 	to 	the
union's determination of 	the 	agency 	fee. 	The 	Federation
commenced 	collection of 	the 	fair 	share 	fee with 	the 	January 	1991
pay 	period.
In a May 	3, 	1991 	letter, 	the Federation informed Ms. 	Ono that the
arbitration 	scheduled 	to 	hear her 	challenge 	had 	been 	cancelled
and that 	her agency 	fees, 	with 	interest, 	were being returned 	to
her. 	In addition, 	the 	letter 	stated that 	she was 	being refunded
$63.68 	for agency 	fees 	to be 	collected 	in May and June. 	The
letter 	continued 	that 	her 	money was 	being 	refunded 	to 	avoid 	the
"enormous 	expense 	involved 	arbitrating 	challenges 	to 	the 	fee."1
At 	this 	time, 	it 	is 	unknown whether the other three 	employees who
objected 	to 	the 	agency 	fee 	also 	received 	their money back.
Ms. 	Ono 	is presently asking the American Arbitration Association
whether the 	arbitration is 	going to be 	rescheduled.
The 	charge 	alleges 	that 	the 	Federation violated 	the 	EERA 	by
returning 	fair 	share 	fees 	to 	unit 	member Ono without 	extending
this 	opportunity 	to 	all 	other fair 	share 	fee payers 	in the
bargaining unit. 	Based on these 	facts, 	this 	charge does 	not
state 	a prima 	facie 	violation of 	the 	EERA 	for the 	reasons 	which
follow.
Charging 	Party 	has 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Party 	the 	right 	to 	fair 	representation 	guaranteed
by 	EERA 	section 	3544.9 	and 	thereby 	violated 	section 	EERA
3543.6(b). 	The duty of 	fair representation 	imposed on the
exclusive 	representative 	extends 	primarily 	to 	grievance 	handling
and 	contract 	negotiations. 	Fremont 	Teachers Association 	(King)
It 	appears 	from 	the 	correspondence provided 	that 	the
decision to 	refund Ms. 	Ono's 	agency 	fees 	was 	based 	on 	an 	economic
determination made by the 	Federation. 	Namely, 	it would 	cost 	the
Federation less 	money to return Ms. 	Ono's 	fees 	than 	it would to
conduct an arbitration over her objection to the 	fees. 	The
Federation apparently 	relies 	on 	a 	reading of 	agency 	fee 	law,
including Chicago Teachers' 	Association v. 	Hudson. 	(1986) 	475
U.S. 	292. 	Hudson sets 	out 	specific procedures which are designed
to protect the First Amendment rights 	of 	agency 	fee payers.
These procedures 	are 	designed 	to prevent 	an 	exclusive
representative's wrongful use of agency fees. 	Thus, 	the
Federation would argue, 	where an employee has 	no 	agency 	fees
deducted 	from their paycheck, 	these procedural 	rights 	do 	not
apply 	and 	there 	is 	no 	need 	for 	an agency 	fee 	arbitration.

(1980) 	PERB Decision No. 	125; 	United Teachers of Los Angeles
(Collins) 	(1983) PERB Decision No. 	258; 	Rocklin Teachers Prof.
Association 	(Romero) 	(1980) 	PERB Decision No. 	124. 	The Board has
determined that 	the duty of 	fair representation does 	not 	apply 	to
internal union activities 	that do not have a 	substantial 	impact
on the relationships 	of unit members 	to their employers. 	Service
Employees 	International Union, 	Local 	99 	(1979) 	PERB Decision No.
106. 	The decision to refund agency fees 	to nonmember Ono 	is 	an
internal 	union matter which does 	not have a 	substantial 	impact of
the relationship of unit members to the District. 	Thus, 	no.
violation of 	the duty of 	fair representation has 	been presented.
Letter to Michael A. 	Syas
Page 3
June 7, 	1991
--
Charging 	Party asserts 	that 	the 	Federation discriminated when 	it
decided to refund agency 	fees to unit member Ono. 	To demonstrate
a violation of EERA section 3543.6(b), 	Charging Party must meet
the 	analytical 	standard applied to 	cases 	of 	employer
discrimination. 	State of California 	(Dept, 	of Developmental
Services) 	(1983) 	PERB Decision No. 	344-S. 	Thus, 	Charging Party
is required to show that: 	(1) 	the employee exercised rights
under the EERA, 	(2) 	the union had knowledge of the exercise of
those rights, 	and 	(3) 	the union imposed or threatened to 	impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or coerced 	the 	employees
because of 	the exercise of 	those rights. 	Novato Unified 	School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although the 	timing of 	the union's 	adverse 	action 	in close
temporal 	proximity 	to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between the 	adverse 	action and
the protected 	conduct. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	Facts establishing one or more of
the 	following additional 	factors must also be present: 	(1) 	the
union's disparate treatment of the employee, 	(2) 	the union's
departure 	from 	established procedures 	and 	standards 	when 	dealing
with the 	employee, 	(3) 	the union's 	inconsistent or contradictory
justification^ for its actions, 	(4) 	the union's cursory
investigation of the employee's misconduct, 	(5) 	the union's
failure to offer the 	employee 	justification at the 	time 	it 	took
action or the offering of exaggerated, 	vague, 	or ambiguous
reasons, 	or 	(6) 	any other facts which might demonstrate the
union's unlawful motive. 	Novato Unified School District, 	supra;
North Sacramento School District 	(1982) 	PERB Decision No. 	264.

Letter to Michael A. 	Syas
Page 4
June 7, 	1991
This 	charge does 	not 	indicate 	that Charging Party 	engaged 	in
protected activity, 	that 	the 	Federation had knowledge of 	this
activity, 	and that 	the Federation's 	refusal 	to refund Charging
Party's 	agency 	fees 	was 	motivated by the protected 	conduct.
No discrimination has 	been demonstrated by the 	Charging Party.
The Federation's 	decision 	to 	return these 	agency 	fees 	to 	objector
Ono is 	analogous 	to 	a defendant 	settling a 	lawsuit with a
plaintiff. 	Requiring the Federation to return all nonmembers'
agency 	fees 	would be 	equivalent 	to 	requiring a 	settling defendant
to pay a 	settlement 	to anyone who asked 	for it, 	even individuals
who were not plaintiffs.
For these reasons, 	the charge as presently written does 	not 	state
a prima facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would correct the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB unfair practice 	charge 	form 	clearly 	labeled First Amended
Charge. 	contain all 	the facts 	and allegations you wish to make,
and must 	be 	signed 	under penalty 	of perjury by 	the 	Charging
Party. 	The amended 	charge must be 	served on the respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not receive 	an amended 	charge 	or withdrawal 	from you before
June 	14, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	323-8015.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
July 1, 	1991
Ronald M. 	Charles, 	Sr.
RE: 	Ronald M. 	Charles. 	Sr. 	v. 	Los Rios College Federation of
Teachers. CFT. AFT. Local 2279
Unfair Practice Charge No. 	S-CO-264
DISMISSAL 	OF 	CHARGE
Dear Mr.. Charles:
The above-referenced charge 	alleges 	that the 	Los 	Rios 	College
Federation of Teachers, CFT, AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit members 	and breached
it's 	duty of 	fair representation to 	these 	individuals 	by 	failing
to return their fair share 	fees. 	This 	conduct 	is 	alleged to
violate sections 	3543.6 	(b) 	and 3544.9 of the Educational
Employment Relations Act 	(EERA).
I 	indicated to you 	in my attached 	letter dated June 	7, 	1991 	that
the 	above-referenced charge did not 	state 	a prima 	facie 	case.
You were 	advised that 	if 	there were any 	factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	the 	deficiencies 	explained 	in
that 	letter, 	you should amend the charge accordingly. 	You were
further advised that unless 	you amended 	the charge 	to 	state 	a
prima facie case, 	or withdrew it prior to June 	14, 	1991, 	the
charge would be 	dismissed.
On June 	11, 	1991, 	you requested and received an extension of 	time
to 	file an amended charge. 	The amended charge was 	filed on
June 	26, 	1991 	and 	contains 	the 	same 	information provided 	in the
original 	charge with the 	following additional material. 	On
November 30, 	1990, 	the Federation sent a memo to all 	fair share
fee payers. 	This 	memo 	contained the 	following 	statement
". 	. 	. 	you are required as a condition of employment, 	either to
join AFT Local 	2279 	and pay union dues, 	or pay a 	service 	fee 	as
described herein 	. 	. 	. 	." 	The amended charge alleges that this
statement 	is 	a grossly negligent, 	arbitrary and devoid of honest
judgement 	misrepresentation and 	as 	such violates 	the 	duty 	of 	fair
representation. 	The 	charge 	asserts 	that 	such knowing
misrepresentations 	constitute 	a 	violation of 	the 	duty 	of 	fair

representation under California 	State 	Employees' 	Association
(O'Connell) (1986) 	PERB Decision No. 	596-H 	[11 PERC Par. 	18010].1
Letter to Ronald M. 	Charles, 	Sr.
Page 	2
July 1, 	1991
The additional 	information provided 	in the amended 	charge and
summarized above 	is 	insufficient to 	state a prima 	facie violation
of 	the EERA for the reasons 	contained 	in my June 	1, 	1991 	letter
and the 	following.
The Federation's 	November 	30 	memo 	coupled with 	its 	subsequent
decision to return agency fees 	to Ms. 	Ono does 	not 	support the
legal 	conclusion that 	the 	Federation knowingly misrepresented
facts 	to bargaining unit members. 	The theory apparently 	is 	that
the Federation knew on November 30 when it 	issued the memo 	that
the 	statement 	concerning the 	agency 	fee 	requirement was 	false.
There is no evidence supporting this assertion. 	In fact, 	the
Federation's decision to return Ms. 	Ono's 	fees probably would not
have been made until after Ms. 	Ono 	filed her objection to the 	fee
on December 28, 	1990.
Finally, 	these 	facts do not 	support the 	finding of a prima 	facie
violation of 	the 	statute based on O'Connell. 	That 	case 	stands
for the proposition that 	"...a prima 	facie 	case of 	a breach of
the duty of 	fair representation has 	been 	stated where 	it 	is
alleged 	that 	the 	exclusive 	representative 	knowingly
misrepresented a 	fact 	in order to 	secure 	from its 	constituents
their 	ratification of 	a 	contract." 	The 	alleged misrepresentation
presented here does 	not 	relate to ratification of 	any 	contract.
Rather, 	it 	is 	essentially a 	statement of 	law indicating a
nonmembers' 	obligation to pay an agency fee where 	such has been
properly 	negotiated 	between 	the 	Federation 	and 	the 	employer.
Thus, 	there 	is 	no prima 	facie case based on the O'Connell ruling.
Right 	to Appeal
Pursuant to 	Public 	Employment Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing 	an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified or 	Express 	United States 	mail postmarked no 	later 	than
1This case was 	incorrectly 	cited 	in the 	amended 	charge 	as
PERB Decision No. 	916-H 	[11 PERC Par. 	18070].

the 	last date 	set 	for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's 	address 	is:
Letter to Ronald M. 	Charles, 	Sr.
Page 3
July 1, 	1991
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file 	a 	timely 	appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file with the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date 	of 	service 	of 	the 	appeal 	(California Code 	of
Regs., 	tit. 	8, 	sec. 	32635(b)).
Service
All 	documents 	authorized 	to be 	filed 	herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy of 	a document 	served upon a 	party or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required 	contents 	and a 	sample 	form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in 	the 	first-class 	mail 	postage paid 	and
properly 	addressed.
Extension 	of 	Time
A request 	for 	an 	extension of 	time 	in which to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously 	noted 	address. 	A request 	for 	an extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing 	the 	document. 	The 	request must
indicate good cause 	for and, 	if 	known, 	the position of each other
party 	regarding 	the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service 	of 	the 	request upon each party 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

O
Letter to Ronald M. 	Charles, 	Sr.
Page 4
July 1, 	1991
Final 	Date
If no 	appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become 	final when the time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Robert 	Thompson
Deputy General 	Counsel
cc: Michael J. 	Crowley
Attachment
()

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18tti Street
Sacramento, CA 95814-4174
(916) 322-3088
June 7, 	1991
Ronald M. 	Charles, 	Sr.
RE: 	Ronald M. 	Charles. 	Sr. 	v. 	Los Rios College Federation of
Teachers. CFT. AFT. Local 2279
Unfair Practice Charge No. 	S-CO-264
WARNING 	LETTER
Dear Mr. 	Charles:
The 	above-referenced 	charge 	alleges 	that 	the 	Los 	Rios 	College
Federation of Teachers, 	CFT, 	AFT, 	Local 2279 	(Federation)
discriminated 	against 	non-federation unit 	members 	and 	breached
it's 	duty 	of 	fair 	representation to 	these 	individuals 	by 	failing
to 	return their fair 	share 	fees. 	This 	conduct is 	alleged to
violate 	sections 	3543.6 	(b) 	and 	3544.9 	of the Educational
Employment Relations Act 	(EERA).
My 	investigation revealed 	the 	following 	information. 	The
Federation 	and 	the 	Los 	Rios 	Community 	College 	District 	(District)
are parties 	to 	a 	collective 	bargaining 	agreement 	covering 	the
certificated bargaining unit which 	expires 	on June 	30, 	1993. 	As
a part 	of 	that bargaining unit, 	you voted 	in October 	1990 	in an
election 	in which 	the 	majority 	ratified 	the 	fair 	share 	agreement
provisions of this contract. 	On November 30, 	1990, 	the
Federation wrote 	to 	all 	fair 	share 	fee payers 	informing 	them of
their 	rights 	and providing 	them a breakdown of 	total 	union
expenses 	including 	a 	description of 	the 	union expenses 	which are
non-chargeable 	to 	agency 	fee payers. 	The 	letter also 	stated 	that
fee payers 	wishing 	to 	object 	to 	and/or 	challenge 	the 	Federation's
determination of 	the 	chargeable percentage 	must 	file 	a written
objection within 30 days 	from the date of the notice. 	The
challenge procedure 	ends 	in an arbitration before 	a 	neutral 	from
the American Arbitration Association.

Letter to Ronald M. 	Charles, 	Sr.
Page 2
June 7, 	1991
In December 	1990, 	unit member Marian Ono 	filed a challenge 	to the
union's 	determination of the agency fee. 	The Federation
commenced 	collection of 	the 	fair 	share 	fee with 	the January 	1991
pay 	period.
In a May 3, 	1991 	letter, 	the Federation informed Ms. 	Ono that the
arbitration 	scheduled 	to 	hear her 	challenge 	had 	been 	cancelled
and that her agency 	fees, 	with 	interest, 	were being returned to
her. 	In addition, 	the letter stated that 	she was being refunded
$63.68 	for agency 	fees to be collected 	in May and June. 	The
letter 	continued 	that her money was 	being 	refunded 	to 	avoid 	the
"enormous 	expense 	involved arbitrating 	challenges 	to the 	fee."1I
At this 	time, 	it 	is 	unknown whether the other three employees who
objected 	to 	the 	agency 	fee 	also 	received their money back.
Ms. 	Ono 	is presently asking the American Arbitration Association
whether the 	arbitration is 	going to be rescheduled.
The 	charge 	alleges 	that 	the 	Federation violated the EERA by
returning 	fair 	share 	fees 	to unit member Ono without 	extending
this 	opportunity to 	all other fair share 	fee payers 	in the
bargaining unit. 	Based on these facts, 	this 	charge does 	not
state 	a prima 	facie 	violation of the 	EERA 	for the reasons which
follow.
Charging 	Party has 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Party 	the 	right 	to 	fair 	representation guaranteed
by 	EERA 	section 	3544.9 	and 	thereby violated 	section EERA
3543.6(b). 	The duty of 	fair representation imposed on the
exclusive 	representative 	extends 	primarily 	to 	grievance 	handling
and 	contract 	negotiations. 	Fremont Teachers Association 	(King)
It 	appears 	from the 	correspondence 	provided 	that 	the
decision to 	refund Ms. 	Ono's 	agency 	fees was 	based on an economic
determination made by the 	Federation. 	Namely, 	it would cost 	the
Federation less 	money to return Ms. 	Ono's 	fees 	than it would to
conduct 	an arbitration over her objection to the 	fees. 	The
Federation apparently relies 	on a 	reading of 	agency 	fee 	law,
including Chicago Teachers' 	Association v. 	Hudson. 	(1986) 	475
U.S. 	2 92. 	Hudson sets out 	specific procedures which are designed
to protect 	the 	First Amendment 	rights 	of 	agency 	fee payers.
These procedures 	are designed to prevent 	an 	exclusive
representative's wrongful use of agency fees. 	Thus, 	the
Federation would argue, 	where an employee has 	no agency 	fees
deducted 	from their paycheck, 	these procedural 	rights 	do not
apply and there 	is 	no 	need 	for an agency 	fee arbitration.

(1980) 	PERB Decision No. 	125; 	United Teachers of Los Angeles
(Collins) 	(1983) 	PERB Decision No. 	258; 	Rocklin Teachers Prof.
Association 	(Romero) 	(1980) 	PERB Decision No. 	124. 	The Board has
determined 	that the duty of 	fair representation does 	not 	apply to
internal 	union activities 	that do not have a 	substantial 	impact
on the relationships 	of unit members 	to their employers. 	Service
Employees 	International Union. 	Local 	99 	(1979) 	PERB Decision No.
106. 	The decision to refund agency fees 	to nonmember Ono 	is 	an
internal 	union matter which does 	not have 	a 	substantial 	impact of
the relationship of unit members to the District. 	Thus, 	no
violation of 	the duty of 	fair representation has 	been presented.
Letter to Ronald M. 	Charles, 	Sr.
Page 3
June 7, 	1991
Charging 	Party 	asserts 	that 	the 	Federation discriminated when 	it
decided to refund agency fees 	to unit member Ono. 	To demonstrate
a violation of EERA section 3543.6(b), 	Charging Party must meet
the analytical 	standard applied to 	cases 	of 	employer
discrimination. 	State of California 	(Dept, 	of Developmental
Services) 	(1983) 	PERB Decision No. 	344-S. 	Thus, 	Charging Party
is 	required to 	show that: 	(1) 	the employee 	exercised rights
under the EERA, 	(2) 	the union had knowledge of the exercise of
those rights, 	and 	(3) 	the union imposed or threatened to 	impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or coerced 	the 	employees
because 	of the 	exercise of 	those rights. 	Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although 	the 	timing of 	the union's 	adverse 	action 	in close
temporal 	proximity to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between 	the 	adverse 	action 	and
the 	protected 	conduct. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	Facts 	establishing one or more of
the 	following additional 	factors must also be present: 	(1) 	the
union's disparate treatment of the employee, 	(2) 	the union's
departure 	from 	established procedures 	and 	standards 	when 	dealing
with the 	employee, 	(3) 	the union's 	inconsistent 	or contradictory
justifications 	for its actions, 	(4) 	the union's 	cursory
investigation of the employee's misconduct, 	(5) 	the union's
failure to 	offer the 	employee 	justification at the 	time 	it 	took
action or the offering of 	exaggerated, 	vague, 	or ambiguous
reasons, 	or 	(6) 	any other facts which might demonstrate the
union's unlawful motive. 	Novato Unified School 	District, 	supra;
North Sacramento School District 	(1982) 	PERB Decision No. 	264.

Letter to Ronald M. 	Charles, 	Sr.
Page 4
June 7, 	1991
This 	charge does 	not 	indicate 	that 	Charging Party 	engaged 	in
protected activity, 	that the Federation had knowledge 	of 	this
activity, 	and that the Federation's 	refusal 	to 	refund Charging
Party's 	agency 	fees was 	motivated by 	the protected 	conduct.
No 	discrimination has 	been demonstrated 	by 	the 	Charging 	Party.
The 	Federation's 	decision to return these 	agency 	fees 	to 	objector
Ono 	is 	analogous 	to a defendant 	settling a 	lawsuit with a
plaintiff. 	Requiring the Federation to return all 	nonmembers'
agency 	fees would be 	equivalent 	to 	requiring 	a 	settling defendant
to pay a 	settlement to anyone who asked for it, 	even individuals
who were 	not plaintiffs.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The amended 	charge 	should be prepared 	on a 	standard
PERB unfair practice 	charge 	form clearly 	labeled 	First Amended
Charge. 	contain all the 	facts 	and allegations you wish to make,
and must 	be 	signed under penalty 	of 	perjury 	by 	the 	Charging
Party. 	The amended charge must be 	served on the 	respondent and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge 	or withdrawal 	from you before
June 	14, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	323-8015.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel