California Teachers Association (Boynton) (PERB 0906E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EARL W. 	BOYNTON,
Charging 	Party,
V.
CALIFORNIA 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
)
) 	Case No. 	S-CO-256
PERB Decision No. 	906
October 1, 	1991
)
)
)
)
Appearance: 	Earl W. 	Boynton, 	on his 	own behalf.
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Earl W. 	Boynton
(Boynton) 	of 	a Board agent's dismissal 	of his 	unfair practice
charge. 	In his 	charge, 	Boynton alleged that the California
Teachers Association, 	CTA/NEA 	(CTA) 	failed to rebate the 	1989-90
agency 	fee 	in a 	timely manner. 	Boynton also alleged that 	CTA
violated the Educational 	Employment Relations Act 	(EERA)1 by not
allowing him to 	file 	as 	an agency 	fee objector 	for 	1990-91.
The 	Board 	agent 	determined 	that 	these 	allegations 	were
insufficient to 	state a prima 	facie violation of EERA, 	and thus,
dismissed the 	charge. 	The 	Board 	concurs with 	this 	determination
for the 	reasons 	stated below.
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
)
)
________________ )

FACTUAL 	SUMMARY
Boynton 	filed 	a 	request 	for 	rebate 	and/or 	arbitration of 	the
1989-90 	agency 	fees 	in November 	1989. 	An arbitration hearing was
held 	in January 	1990, 	and on June 	5,2 an arbitration decision was
issued 	concerning the rebate 	of 	the 	1989-90 	agency 	fees.
Subsequently, 	a dispute arose 	concerning the proper
interpretation of 	the award. 	A 	settlement agreement was 	signed
by the 	attorney 	for CTA on November 	20, 	and by the 	attorney 	for
the agency 	fee objectors 	on November 	21. 	The 	1989-90 	rebate
checks were mailed to 	agency 	fee 	objectors 	on November 	20.
On October 	15, 	CTA 	sent Boynton a notice of 	the right to
receive 	a 	rebate 	and arbitration as 	an agency 	fee payer 	for 	1990-
91. 	The 	notice 	required that 	any 	request 	for rebate 	and/or
arbitration of 	the 	1990-91 	agency 	fees 	unrelated 	to 	collective
bargaining, 	must be postmarked on or before November 	15. 	Boynton
claimed 	that he mailed his 	request 	for a 	rebate 	on November 	14 	or
15, 	by placing it in a U.S. 	Postal Service mailbox. 	Thereafter,
Boynton 	received 	a 	letter 	from CTA dated 	December 	7, 	notifying
him that CTA would not honor his 	request. 	CTA 	stated 	that
Boynton had 	not met 	the postmark requirement 	as 	his 	letter was
postmarked November 	19.
DISCUSSION
Boynton asserts 	that 	the 	1989-90 	agency 	fee 	arbitration
decision was 	issued on June 	5, 	and thus 	receiving 	the 	agency 	fee
2Unless otherwise noted, 	all dates refer to 	1990.
22

rebate 	check on or about November 	20 	constituted 	a 	failure on the
part 	of 	CTA to refund the 	agency 	fees 	in a 	timely manner.
However, 	subsequent to the arbitrator's decision, 	a dispute
arose 	concerning the proper 	interpretation of 	the 	final 	award. 	A
settlement 	agreement was 	completed on November 	20, 	and rebate
checks, 	which 	included 	interest 	for the period the 	rebate was
withheld, 	were 	issued the 	same day. 	In consideration of 	the 	fact
that 	rebate 	checks 	were 	mailed 	the 	day 	the 	settlement 	agreement
was 	signed, 	it appears 	the 	1989-90 	agency 	fee rebate 	checks were
issued 	on a 	timely basis.
Boynton 	further alleged that 	CTA's 	rejection of 	his 	rebate
request 	as 	untimely was 	improper, 	as 	he placed his 	request 	in a
mailbox on November 	14 	or 	15. 	CTA rejected his 	request because
Boynton 	failed to meet the November 	15 	postmark requirement. 	On
appeal, 	Boynton argues 	that because he has 	no control over the
operations 	of 	the postal 	service, 	and because he 	"complied with
the 	spirit 	of 	the 	regulations" 	he 	should not be penalized on the
basis 	of 	a 	"mere technicality."
PERB 	has 	enacted 	agency 	fee 	regulations 	to 	guide 	employee
organizations 	in administering 	agency 	fee 	agreements. 	PERB
Regulation 	section 	32994 	state3 s 	in relevant part:
(b) 	Each exclusive 	representative that has 	an agency
fee provision 	shall 	administer an Agency 	Fee Appeal
Procedure 	in accordance with 	the 	following:
3PERB Regulations 	are 	codified 	at California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
w
	3

(2) 	An agency 	fee 	objection 	shall 	be 	filed 	not 	later
than 	30 	days 	following distribution of 	the 	notice
required under 	section 	32992 	of 	these 	regulations.
In compliance with PERB 	regulations, 	CTA notified Boynton on
October 	15, 	of the right to request a rebate of 	the 	1990-91
agency 	fees. 	CTA required that 	any 	agency 	fee 	refund requests 	be
postmarked by November 	15. 	Boynton's 	letter requesting 	a 	rebate
was 	postmarked November 	19.
Because 	Boynton has 	not presented 	any 	evidence which would
support 	a 	finding that his 	agency 	fee 	rebate request was
postmarked by the necessary date, 	the 	charge must be dismissed.
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-256 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
4