San Francisco Community College District Federation of Teachers (Kidd and Hendricks) (PERB 1084E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RICHARD B. KIDD AND JOANN )

HENDRICKS, )
Charging Parties, ) Case No. SF-CO-466
Vv. , PERB Decision No. 1084
SAN FRANCISCO COMMUNITY COLLEGE February 21, 1995

DISTRICT FEDERATION OF TEACHERS,

)
)
Respondent. )
}

Appearances: Richard B. Kidd and Joann Hendricks, on their own
behalf.

Before Blair, Chair; Garcia and Johnson, Members.
DECISION

BLAIR, Chair: This case is before the Public Employment
Relations Board (PERB or Board) on an appeal filed by Richard B.
Kidd and Joann Hendricks (collectively Charging Parties) of a
Board agent's dismissal (attached hereto) of their unfair
practice charge. In their charge, the Charging Parties allege
that the San Francisco Community College District Federation of
Teachers (Federation) violated section 3543.6(b) of the

Educational Employment Relations Act. (EERA)* when'it refused to

“EERA is codified at Government Code section 3540 et seq,
Section 3543.6 states, 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.

permit 	a 	referendum to 	challenge 	a provision of 	the 	Federation's
Constitution and By-laws 	which provides 	for 	the 	automatic
increase 	of 	dues whenever affiliation taxes 	on local 	chapters 	are
increased.
The 	Board has 	reviewed 	the 	warning and dismissal 	letters,
the Charging Parties' 	unfair practice 	charge and their appeal.
The 	Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
CHARGING PARTIES' 	APPEAL
On appeal, 	Charging Parties 	essentially raise 	the arguments
previously 	considered by 	the 	Board agent. 	Citing 	California
School Employees Association 	(Parisot) 	(1983) 	PERB Decision
No. 	280 	(CSEA 	(Parisot)), 	Charging Parties contend that PERB is
authorized to 	inquire 	into 	the 	Federation's 	internal 	affairs 	to
determine 	"whether an 	employee 	organization has 	exceeded 	its
authority." 	Charging 	Parties 	also argue 	that 	the mandatory pass-
through provisions 	violate 	the 	federal 	Labor-Management 	Reporting
and Disclosure Act 	(LMRDA). 	Charging Parties 	claim that without
PERB 	intervention 	the members 	"would 	lack any 	feasible means 	for
redress."
Charging 	Parties 	also 	respond 	to 	the 	statement 	provided by
the 	Federation to 	the Board agent 	in the 	course 	of his
investigation of 	the 	charge. 	Since 	the 	Federation's 	statement 	is
properly 	excluded 	from the 	record before 	the 	Board and was 	not
addressed in the warning and dismissal 	letters, 	it 	is both
2

unnecessary 	and 	inappropriate 	for 	the 	Board 	to 	consider 	these
arguments.
DISCUSSION
Charging Parties' 	reliance on CSEA 	(Parisot) 	is 	inapposite.
As noted by the Board agent, 	in CSEA 	(Parisot) 	the Board adopted
the 	retaliation exception 	to 	the 	general 	rule 	that 	the 	Board will
not 	inquire 	into 	the 	internal 	affairs 	of 	an employee
organization. 	The 	Charging 	Parties 	did not 	allege 	facts
indicating 	that 	the 	Federation 	refused 	to 	consider 	the 	referendum
in 	retaliation 	for the 	Charging 	Parties participation 	in
protected activities. 	Accordingly, 	the Board agent 	correctly
determined 	that 	the 	Charging 	Parties 	failed 	to allege 	facts 	which
met 	this 	exception.
The 	Charging 	Parties 	also argue 	that 	the 	actions 	of 	the
Federation and the national 	affiliate violate 	the 	federal 	LMRDA.
The 	Board agent 	adequately addressed 	this 	issue when he 	ruled
that 	PERB 	is 	without 	jurisdiction to 	enforce 	this 	federal 	act 	and
that 	the 	Charging 	Parties 	have 	not 	independently established a
prima 	facie violation of 	the EERA. 	In addition, 	Charging
Parties' 	claim that 	they are without any 	"feasible means 	for
redress" 	is 	incorrect. 	Charging Parties may pursue any remedies
available under 	the 	LMRDA.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-466 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Member Johnson 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	4.
3

GARCIA, 	Member, 	concurring: 	Richard B. 	Kidd and Joann
Hendricks 	(collectively Charging 	Parties) 	allege 	that 	the 	San
Francisco 	Community College District 	Federation of 	Teachers
(Federation) 	is 	in violation of 	the written agreement between the
Federation and 	its members, 	including 	its 	Constitution and
By-laws. 	Charging 	Parties 	theorize 	that 	the alleged conduct
violates 	the Educational 	Employment Relations Act 	(EERA), 	but
they 	failed 	to allege 	facts 	sufficient 	to 	constitute 	a prima
facie 	case 	of 	an unfair practice.
In the absence of an unfair practice, 	the 	Public Employment
Relations 	Board has 	no 	jurisdiction 	to 	enforce written
agreements,1 although the 	theory and remedy of 	the 	charge 	could
be 	pursued 	through 	federal 	or 	state 	courts.
1EERA 	section 3541.5 provides, 	in pertinent part:
(b) 	The board shall 	not have authority to
enforce agreements between the parties, 	and
shall 	not 	issue a 	complaint 	on any charge
based 	on alleged violation 	of 	any agreement
that 	would not 	also 	constitute 	an unfair
practice under 	this 	chapter.

STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERT
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
August 	5, 	1994
Richard B. 	Kidd
Joann 	Hendricks
Re: 	DISMISSAL OF UNFAIR PRACTICE 	CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Richard B. 	Kidd and Joann Hendricks v. 	San Francisco
Community 	College 	District 	Federation 	of 	Teachers
Unfair Practice Charge No. 	SF-CO-466
Dear Mr. 	Kidd and Ms. 	Hendricks:
The 	above-referenced unfair practice 	charge, 	filed on July 	1,
1994, 	alleges 	that 	the San Francisco Community College District
Federation of Teachers 	(Federation) 	refused to permit a
referendum 	initiated by Charging 	Parties 	to 	challenge 	a provision
of 	its 	Constitution and By-laws 	calling 	for 	the automatic
increase 	of dues whenever affiliation taxes 	on the 	local 	chapters
are 	increased. 	This 	conduct 	is 	alleged to violate Government
Code 	section 3543.6(b) 	of 	the 	Educational 	Employment Relations
Act (EERA) .
4
I 	indicated to you, 	in my attached letter dated July 27, 	1994,
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 	which would correct 	the
deficiencies 	explained in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to state a prima 	facie 	case 	or withdrew it prior to August
5, 	1994, 	the charge would be dismissed.
I 	have 	not 	received either an amended 	charge or a 	request 	for
withdrawal. 	You 	indicated 	in a 	telephone 	conversation on this
date 	that you would not be 	filing an amended charge. 	Therefore,
I 	am dismissing 	the 	charge 	based on 	the 	facts 	and 	reasons
contained in my July 27, 	1994 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you

Dismissal 	Letter
SF-CO-466
August 	5, 	1994
Page 	2
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. 	(Cal. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's 	address 	is:
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 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	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 Cal. 	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 	(3) 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal 	Letter
SF-CO-466
August 5, 	1994
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Donn Ginoza
Regional Attorney
Attachment
cc: 	Robert J. Bezemek

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
July 27, 	1994
Richard B. 	Kidd
Joann 	Hendricks
Re: 	WARNING LETTER
Richard B. 	Kidd and Joann Hendricks v. 	San Francisco
Community 	College District 	Federation 	of 	Teachers
Unfair Practice Charge No. 	SF-CO-466
Dear Mr. 	Kidd and Ms. 	Hendricks:
The above-referenced unfair practice 	charge, 	filed on July 	1,
1994, 	alleges 	that 	the San Francisco Community College District
Federation of Teachers 	(Federation) 	refused to permit a
referendum 	initiated by Charging 	Parties 	to 	challenge 	a provision
of 	its 	Constitution and By-laws 	calling 	for 	the automatic
increase 	of 	dues whenever affiliation taxes 	on the 	local 	chapters
are 	increased. 	This 	conduct 	is 	alleged to violate Government
Code 	section 3543.6(b) 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA).
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Richard B.
Kidd 	and Joann Hendricks 	are 	employed by 	the 	San 	Francisco
Community College District. 	The 	Federation is 	the 	exclusive
representative 	of 	a bargaining unit 	composed of 	certificated
employees 	of 	the District. 	Kidd and Hendricks are members 	of 	the
Federation and 	of 	the bargaining unit 	represented by 	the
Federation.
In 1988, 	at 	the urging of 	the American Federation of Teachers
(AFT) 	national affiliate, 	the Federation's membership approved a
"pass-through" 	provision, 	as 	set 	forth in By-laws article VII,
section 1, 	which automatically increases 	the members' 	dues rate
whenever affiliation taxes 	on the 	Local 	are 	increased. 	At 	the
April 	12, 	1994 membership meeting, 	Rodger Scott, 	President of the
Federation, 	was 	presented with a petition signed by 	125 	members,
calling 	for a mail 	referendum to 	rescind 	the pass-through
provision and 	require a membership voted before 	raising 	dues.
Scott 	ruled 	that 	the petition was 	out 	of 	order. 	Charging 	Parties
allege 	that 	such 	a 	referendum was 	properly 	submitted under 	the
Federation's 	Constitution.

C
Warning 	Letter
SF-CO-466
July 27, 	1994
Page 2
Scott maintained 	that he was 	required to 	reject 	the petition
because 	rescinding 	the 	pass-through provision would 	conflict 	with
national AFT policy. 	On May 10, 	1994, 	the Federation's Executive
Board 	rejected an appeal 	of 	Scott's 	ruling.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state a prima 	facie violation of 	the EERA for the
reasons 	that 	follow.
The 	Public 	Employment Relations 	Board 	(PERB) 	has 	acknowledged
that 	employee 	organizations 	are 	entitled 	to 	establish 	reasonable
rules 	and regulations governing their 	internal 	affairs. 	(Service
International Union. 	Local 99 	(Kimmett) 	(1979) 	PERB Dec. 	No 106;
California State Employees' 	Association 	(O'Connell) 	(1989) 	PERB
Dec. 	No. 	753-H.) 	PERB has held that matters concerning internal
union affairs 	are 	immune 	from review, 	unless 	they have a
substantial 	impact 	on the 	relationships 	of unit members 	to 	their
employers 	so as 	to give 	rise 	to a duty of 	fair representation
violation, 	or 	involve retaliation 	for protected activity.
The 	Federation's 	refusal 	to 	entertain the petition of 	Kidd and
others 	appears 	to be 	immune 	from PERB 	review based on 	the
internal unions affairs doctrine, 	and neither of 	the cited
exceptions 	applies. 	(See also American Federation of 	State,
County and Municipal Employees. 	Local 2620 	(Cupp) 	(1987) 	PERB
-Dec. 	No. 	612-S; 	California School Employees Association and its
Chapter #318 	(Harmening) 	(1984) 	PERB Dec. 	No. 	442.)
Charging Parties 	assert 	that 	the AFT national affiliate 	is,
governed by 	the 	Labor-Management 	Reporting 	and Disclosure 	Act
(LMRDA), 	which provides that dues shall not be increased, 	except
in the 	case 	of 	a local 	organization, 	by a majority vote.
Charging 	Parties 	further 	contend 	that 	PERB may 	rely 	on 	federal
precedent 	in construing provisions 	of 	the 	EERA. 	These arguments
do not 	provide 	a basis 	for PERB 	intervention. 	PERB does 	not 	have
jurisdiction to enforce 	the LMRDA, 	but 	only the EERA. 	(Gov.
Code, 	sec. 	3541.3; 	3541.5.) 	Even assuming that the conduct
alleged 	constitutes 	a violation of 	the 	LMRDA, 	such conduct 	does
not 	ipso 	facto establish a violation of 	the EERA. 	The 	charge
fails 	to 	establish that 	the 	internal 	union affairs doctrine,
explained above, 	is 	inapplicable. 	(See California School
Employees Association and its Chapter #318 	(Harmeninq). 	supra,
PERB Dec. 	No. 	442.)
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 additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be prepared 	on a 	standard 	PERB unfair

Warning 	Letter
SF-CO-466
July 27, 	1994
Page 3
practice charge 	form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
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 August 5. 	1994. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
DONN GINOZA
Regional Attorney