Kern High School District (PERB 1294E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ADRIAN PETER MAASKANT,
Charging Party, Case No. LA-CE-3911

Vv. PERB Decision No. 1294

KERN HIGH SCHOOL DISTRICT, October 22, 1998

Respondent .

eed

Appearances: Adrian Peter Maaskant, on his own behalf; Schools
Legal Service by Carl B. A. Lange, III, Director of Labor
Relations, for Kern High School District.
Before Caffrey, Chairman; Amador and Jackson, Members.
DECISION

JACKSON, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Adrian Peter
Maaskant (Maaskant) of a Board agent's partial dismissal
(attached) of his unfair practice charge. As amended, Maaskant's
charge alleges that the Kern High School District (District)

violated the Educational Employment Relations Act (EERA),

sections 3540.1 (i) (1)? and 3543.5 (c)? when it refused to allow

1FERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3540.1 provides, in pertinent
part:

(i) "Organizational security" means either
of the following:

(1) An arrangement pursuant to which a
public school employee may decide whether or
not to join an employee organization, but
which requires him or her, as a condition of
continued employment, if he or she does join,
to maintain his or her membership in good

Maaskant 	to withdraw 	from a maintenance 	of membership provision.
standing 	for the 	duration 	of 	the written
agreement. 	However, 	no such arrangement
shall 	deprive 	the 	employee 	of 	the 	right 	to
terminate his 	or her obligation to the
employee 	organization within a period of 	30
days 	following 	the 	expiration of 	a written
agreement.
The 	Board has 	reviewed the entire 	record 	in this 	case,
including the unfair practice 	charge, 	the partial 	warning and
dismissal 	letters, 	Maaskant's appeal and the District's 	response.
The Board 	finds 	the partial 	warning and dismissal 	letters 	to be
free 	from prejudicial 	error and adopts 	them as 	the 	decision of
the Board 	itself.3
Further, 	the Board notes 	that 	the Board agent 	issued a
complaint 	alleging 	that 	the District's 	conduct 	unlawfully
interfered with Maaskant's 	EERA protected rights. 	The District's
motion to dismiss 	the 	complaint 	issued on July 22, 	1998 	by the
2Section 3543.5 provides, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
3The 	Board did 	not 	consider 	the 	late-filed materials
submitted to PERB on September 10, 	1998, 	including the new
evidence 	submitted therewith, 	as Maaskant 	failed to show good
cause 	for his 	late 	filing 	(PERB regs. 	are 	codified at Cal. 	Code
Regs. 	tit. 	8, 	sec. 	31001 et seq.; 	see PERB Regs. 	32635(b) 	and
32136).
22

General 	Counsel's 	Office 	is 	inappropriately made before 	the 	Board
at 	this 	time and is 	denied.4
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	LA-CE-3911 	is hereby AFFIRMED.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
4PERB Regulation 32640(c) 	provides:
(c) 	The decision of a Board agent 	to 	issue a
complaint 	is not 	appealable 	to 	the Board
itself 	except 	in accordance 	with Section
32200.
w
	3

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) 439-6940
July 22, 	1998
Adrian Peter Maaskant
Re: 	PARTIAL DISMISSAL LETTER
Adrian Peter Maaskant v. 	Kern High School District
Unfair Practice Charge No. 	LA-CE-3911
Dear Mr. Maaskant:
The above-referenced unfair practice charge, 	filed March 11,
1998, 	alleges the Kern High School District 	(District) 	refused to
allow Adrian Peter Maaskant 	to withdraw from a maintenance 	of
membership provision. 	This conduct 	is alleged to violate
Government Code section 3540.1(i)(l) 	and 3543.5(c) 	of the
Educational Employment Relations Act 	(EERA or Act) .
I indicated to you, 	in my attached letter dated April 	7, 	1998,
that 	certain allegations contained in the 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 these
allegations 	to state a prima facie 	case or withdrew them prior to
April 14, 	1998, 	the allegations would be dismissed. 	I later
extended this deadline until April 22, 	1998.
On April 22, 	1998, 	I received a first amended charge. 	The
amended charge adds 	the 	following facts. 	Charging Party states
that in a conversation with Tom Goode, 	District Director of
Personnel, 	Mr. 	Goode stated that the Association "did not trust"
Charging Party and therefore would not allow the District 	to stop
the payroll deductions.
Based on the above stated facts, 	the allegations that the
District violated Government 	Code 	section 3540.1 and that 	the
District unilaterally changed Article 5, 	Section D of 	the
Agreement, 	fail to state prima facie violations of the EERA, 	and
must 	therefore be dismissed.
Charging Party alleges 	the District, 	with support of the
Association, 	violated Government Code section 3540.1(i)(1) 	by
i

"conspiring to rewrite Government Code section 3540.l(i) (1).
Government Code section 3540.1(i)(l) 	states in its entirety:
An arrangement pursuant 	to which a public
school 	employee may decide whether or not 	to
join an employee organization, 	but which
requires him or her, 	as a condition of
continued employment, 	if he or she does join,
to maintain his or her membership in good
standing 	for the duration of 	the written
agreement. 	However, 	no such arrangement
shall deprive the employee of the right to
terminate his or her obligation to the
employee organization within a period of 3 0
days 	following the expiration of a written
agreement. 	(emphasis added.)
As noted in my April 7, 	1998, 	letter, 	the alleged violation of
3540.1, 	however, 	fails to state a prima facie case. 	Article V,
Section D of 	the parties Agreement states employees may
discontinue their dues deduction to the Association thirty days
prior to the expiration of the Agreement. 	Reading the Government
Code and contract provisions together, 	it seems the District and
Association have 	enlarged the period of 	time during which an
employee may discontinue membership. 	Instead of 	the statutorily
mandated thirty days 	following the expiration of the contract, 	an
employee also has 	thirty days prior to the expiration of 	the
contract to discontinue membership. 	Moreover, 	Charging Party did
not request a discontinuation of dues deduction within the 	30
days period following the expiration of 	the Agreement. 	As 	such,
the 	facts provided do not demonstrate 	the District violated
Government Code section 3540.1 (i) (1) .
Charging Party also argues 	the District violated Article V,
Section D of 	the parties 	contract by denying Charging Party's
June 4, 	1997, 	request to discontinue membership. 	Although PERB
lacks 	the authority to enforce 	collective bargaining agreements
(Govt. Code sec. 	3541.5(b)), 	such an allegation may be examined
under the theory of unilateral 	change. 	However, 	as noted in my
April 7, 	1998, 	letter, 	Charging Party lacks standing to assert
unilateral change violation, 	and as such, 	the charge fails to
state a prima facie case. 	(Oxnard School District 	(1988) 	PERB
Decision No. 	667.)
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal 	of 	certain allegations
contained in 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
(

Partial Dismissal 	Letter
LA-CE-3911
Page 3
(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.)

Partial Dismissal 	Letter
LA-CE-3911
Page 4
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 Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Carl A. Lange, 	Esq.

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) 439-6940
April 7, 	1998
Adrian 	Peter Maaskant
Re: 	PARTIAL WARNING LETTER
Adrian Peter Maaskant v. 	Kern High School District
Unfair Practice Charge No. 	LA-CE-3911
Dear Mr. Maaskant:
The above-referenced unfair practice charge, 	filed March 11,
1998, 	alleges the Kern High School District 	(District) 	refused to
allow Adrian Peter Maaskant 	to withdraw from a maintenance 	of
membership provision. 	This 	conduct 	is alleged to violate
Government Code section 3540.1(i)(l) 	and 3543.5(c) 	of the
Educational Employment Relations Act 	(EERA or Act) .
Investigation of the charge revealed the following. 	Mr. 	Maaskant
is 	employed by the District as a Teacher at Vista East High
School, 	and is 	exclusively represented by the Kern High School
Faculty Association, 	CTA/NEA 	(Association). 	The District and the
Association were parties 	to a collective bargaining agreement
(Agreement) 	which expired on June 30, 	1997. 	The parties have
since signed a extension to the Agreement.
With regard to maintenance of membership in the Association, 	the
Agreement states 	in pertinent part at Article V:
D. 	Commencing upon ratification of 	this
Agreement and terminating 3 0 days prior to
the expiration of this Agreement, 	any
employee who is a member or who becomes a
member of 	the Association shall be required
to maintain membership in the Association for
the term of the Agreement.
2. 	Except as set forth in paragraph D of
this Article, 	the District shall not process
requests 	for withdrawal of membership
deductions authorizations.
The Dues Deduction Authorization form signed by District
employees states 	in relevant part:
(

Partial 	Warning 	Letter
LA-CE-3911
Page 2
This authorization is 	to remain in force from
year 	to year until 	revoked or 	revised by me
in writing.
On June 4, 199 7, Mr. Maaskant requested, pursuant to Article V,
Section D, 	that 	the District cease payroll deductions 	to the
Association. 	This 	request was 	denied by District 	representative,
Norma Pierucci. 	Subsequently, 	Director of Personnel, 	Tom Goode,
informed Charging 	Party that 	as 	negotiations 	for a contract
extension were underway, 	Charging Party could discontinue his
payroll withholdings 	thirty days prior to the ratification of 	the
contract extension.
On September 15, 	1997, 	Charging Party received notification from
the Association that 	contract negotiations had been successful,
and that a ratification vote would take place on September 24,
1997. 	On the afternoon of September 29, 	1997, 	Charging Party
again requested the District 	discontinue payroll 	deductions 	to
the Association. 	The District denied this request as well, 	as
the District's Board of Trustees had met 	that morning to ratify
the extension.1
Based on the above stated facts, 	the charge as presently written
fails to state a prima facie violation of the EERA, 	for the
reasons stated below.
Charging Party alleges the District, 	with support of the
Association, 	violated Government Code section 3540.1(i)(1) 	by
"conspiring to rewrite Government Code section 3540.1 (i) (1).
Government Code section 3540.1 (i) (1) 	states in its entirety:
An arrangement pursuant 	to which a public
school 	employee may decide whether or not 	to
join an employee organization, 	but which
requires him or her, 	as a condition of
continued employment, 	if he or she does join,
to maintain his or her membership in good
standing 	for the duration of 	the written
agreement. 	However, 	no such arrangement
shall deprive the employee of 	the right 	to
terminate his or her obligation to the
employee 	organization within a period of 	30
days 	following the expiration of a written
agreement. 	(emphasis added.)
1 Charging Party's 	second request 	for discontinuation was
thus made during the 	term of an effective agreement.
(

Partial 	Warning 	Letter
LA-CE-3911
Page 3
The allegation, 	however, 	fails to state a prima facie case.
Article V, 	Section D of 	the parties Agreement states employees
may discontinue 	their dues 	deduction to 	the Association 	thirty
days prior to the expiration of 	the Agreement. 	Reading the
Government Code and contract provisions 	together, 	it seems 	the
District 	and Association have 	enlarged 	the period of 	time during
which an employee may discontinue membership. 	Instead of 	the
statutorily mandated 	thirty days 	following 	the 	expiration of 	the
contract, 	an employee may actually have 	thirty days prior to and
following the expiration of the 	contract 	to discontinue
membership. 	Moreover, 	Charging Party did not request a
discontinuation of dues deduction within the 30 days period
following the expiration of the Agreement. 	As such, 	the facts
provided do not demonstrate the District violated Government 	Code
section 3540.l(i)(1).
Charging Party also argues 	the District violated Article V,
Section D of 	the parties 	contract by denying Charging Party's
June 4, 	1997, 	request to discontinue membership. 	Although PERB
lacks 	the authority 	to enforce 	collective bargaining agreements
(Govt. Code sec. 	3541.5(b)), 	such an allegation may be examined
under the theory of unilateral 	change. 	However, 	Charging Party
lacks 	standing to assert unilateral 	change violations, 	and as
such, 	the charge fails to state a prima facie case. 	(Oxnard
School District 	(1988) 	PERB Decision No. 	667.) 	Moreover, 	a
unilateral 	change 	involving a single error that 	the employer
stands ready to correct is note a refusal 	to negotiate in bad
faith. 	(California State University 	(1990) 	PERB Decision No.
799-H.) 	As my investigation revealed the District willingness 	to
correct 	its error, 	such conduct 	fails 	to demonstrate a prima
facie violation.
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
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 April 14. 199 8. I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
(

Partial Warning Letter
LA-CE-3911
Page 4

Sincerely,

Kristin L. Rosi
Regional Attorney