United Teachers of Los Angeles (Hopper) (PERB 1441E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHEILA ANN HOPPER,
Charging Party,
V.
UNITED TEACHERS OF LOS ANGELES,
Respondent.
Case No. LA-CO-849-E
PERB Decision No.
1441
May
	31,
	2001
Appearances: Garrard & Davis
by
Donald A. Garrard, Attorney, for Sheila Ann Hopper;
Geffner & Bush by Steven K. Ury, Attorney, for United Teachers
of
Los Angeles.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Sheila Ann Hopper (Hopper)
of
a Board agent's dismissal
of
her
unfair practice charge. 	On August 17, 2000, Hopper filed a charge alleging that the United
Teachers
of
Los Angeles (UTLA) violated the Educational Employment Relations Act
(EERA)1 by failing to provide notice to new employees
of
their right not to join the union.
Hopper alleged that this conduct constituted a violation
of
EERA section 3543.2
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2Section 3543 provides:

(a) Public school employees shall have the right to form, join,
and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations. Public school employees who are
in a unit for which an exclusive representative has been selected,
shall be required, as a condition of continued employment, to join
the recognized employee organization or to pay the organization
a fair share services fee, as required by Section 3546. If a
majority of the members of a bargaining unit rescind that
arrangement, either of the following options shall be applicable:
(1) The recognized employee organization may petition for the
reinstatement of the arrangement described in subdivision (a) of
Section 3546 pursuant to the procedures in paragraph (2) of
subdivision (d) of Section 3 546.
(2) The employees may negotiate either of the two forms of
organizational security described in subdivision (i) of Section
3540.1.
(b) Any employee may at any time present grievances to his or
her employer, and have such grievances adjusted, without the
intervention of the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms of a written agreement then in effect;
provided that the public school employer shall not agree to a
resolution of the grievance until the exclusive representative has
received a copy of the grievance and the proposed resolution and
has been given the opportunity to file a response.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge and attachments, the warning and dismissal letters, Hopper's
appeal and UTLA's opposition. The Board dismisses the unfair practice charge, pursuant to
the following discussion.
FACTUAL BACKGROUND
Hopper is a teacher in the Los Angeles Unified School District who has exercised her
right not to be a member ofUTLA. UTLA is the exclusive representative of the teacher's
bargaining unit.
2

On August 17, 2000, Hopper filed an unfair practice charge which alleged that
UTLA
violated EERA section 3543
by
giving new teachers an enrollment card which does not
mention the option
of
not joining the union. Hopper also alleged that, since she became a
member
ofUTLA
in 1989,3 UTLA has not put a notice in the UTLA paper or sent notice
by
mail informing individuals
of
this option. She asserted that the collective bargaining
agreement subsection dealing with nonmembers is "nebulous and would have little or no
meaning" to employees and that many employees do not have a copy
of
the collective
bargaining agreement. Hopper alleged that "I learned
of
the legal and constitutional issues
regarding the allegation
of
an unfair labor practice in May 2000."
UTLA's membership application is typically distributed to new employees at the time
they complete their employment packet, or at an initial service meeting attended by new
district employees. UTLA does not state in its membership application that new employees
may refrain from joining the union.
EERA section 3543 states that public school employees shall have the right to refuse to
join or participate in the activities
of
employee organizations. Hopper alleges that UTLA
approached new employees with an application to join their membership, and discussed the
benefits the union would provide, but did not mention the employee's right to refrain from
joining. She asserted that UTLA has an affirmative duty to inform new employees
of
their
right not to join the union.
On November 17, 2000, the Board agent issued a warning letter indicating that the
charge did not state a prima facie case. The Board agent found that Hopper had not presented
facts demonstrating the UTLA denied individuals their right to refrain from joining the
3It appears that Hopper withdrew her membership in UTLA prior to the filing
of
her
unfair practice charge.
3

organization. Additionally, Section 3543 does not require the exclusive representative to
inform new employees of their right not to join the union, and no other statute or case places
this duty on an exclusive representative.
On November 27, 2000, Hopper filed an amended charge with the Board. This charge
alleged that UTLA had violated sections 3540,4 3543, and 3543.65 of EERA by not giving
notice to bargaining unit employees of their rights to: 	(1) decline to become members of
UTLA; (2) object to payment of agency fee for non-representational activities of the union;
and (3) object to and challenge the union's allocation of expenses for representational and non-
representational activities. It further alleged that UTLA was in violation of the collective
bargaining agreement between UTLA and Los Angeles Unified School District, and that
UTLA's failure to give notice violated the First Amendment of the Constitution. The Board
4Section 3540 describes the purposes of EERA. Since it was not clear in Hopper's
allegations which purpose was being frustrated by UTLA, the Board agent presumed that she
was alleging that UTLA harmed the employer-employee relationship by not providing notice
to new employees of their rights, thus violating the general purposes of EERA.
5Section 3543.6 provides:
It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause a public school employer to violate
Section 3543.5.
(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.
(c) Refuse or fail to meet and negotiate in good faith with a
public school employer of any of the employees of which it is the
exclusive representative.
(d) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
4

agent rejected all the claims set forth in the amended charge, and subsequently dismissed the
unfair practice charge.
DISCUSSION
A. Jurisdiction6
EERA section 3541.S(a)(l) precludes PERB from issuing a complaint based on conduct
that occurred more than six months prior to the filing
of
the charge. 7 (Peralta Community
College District (1998) PERB Decision No. 1281.) The six-month statute
of
limitations is
mandatory, and serves as a jurisdictional bar to charges filed outside the prescribed period.
(Palm Springs Unified School District (1991) PERB Decision No. 888.) The charging party
must establish timeliness as part
of
its prima facie case. (Regents
of
the University
of
California (1990) PERB Decision No. 826 (Regents); Davis Teachers Association, CTA/NEA
(Heffner) (1995) PERB Order No. Ad-270 (Davis).) The Board has no discretion to waive the
six-month period, as it has no power to entertain the case for lack
of
jurisdiction. (California
6The question
of
jurisdiction was never addressed by either the Board agent or the
parties prior to the dismissal. UTLA did raise the question
of
jurisdiction in its response to
Hopper's exceptions.
7EERA section 3541.S(a)(l) provides:
The initial determination as to whether the charges
of
unfair
practices are justified, and,
if
so, what remedy is necessary to
effectuate the purposes
of
this chapter, shall be a matter within
the exclusive jurisdiction
of
the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all
of
the
following:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(1) Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six-months prior to
the filing of the charge.
5

State University, San Diego (1989) PERB Decision No. 718-H; Regents.) Discovery of the
legal significance of conduct of which a party has knowledge does not constitute belated
discovery for purposes of EERA's statute of limitations. (California State Employees'
Association (Darzins) (1985) PERB Decision No. 546-S (Darzins).)
In the instant case, Hopper alleges that since she became a member of UTLA in 1989,
UTLA has not put a notice in the UTLA paper or sent notice by mail informing individuals of
the option of not joining the union. Hopper offers nothing to explain why it took her some
eleven years to file this unfair practice charge, other than that she learned of the legal and
constitutional issues regarding the alleged unfair labor practice in May of 2000. Such a claim
does not save the charge. (See Darzins, Davis.) Insofar as the allegations relate to Hopper
individually, they are clearly untimely and are dismissed.
B. Standing
Hopper additionally alleges that UTLA's actions violate various rights of new teachers.
Hopper has no standing to bring such an unfair practice charge. Hopper is not a member of the
class which she claims has been harmed, i.e., new teachers who have not been properly
informed of their rights by UTLA. Hopper has been a teacher since approximately 1989.
There is no basis for her unfair practice charge. (Cf. Hayward Unified School District (1981)
PERB Decision No. 172.) Hopper has suffered no harm in this case, nor does she have any
potential for harm. She therefore has no standing to challenge UTLA's alleged failure to
provide notice of certain rights. (Los Rios College Federation of Teachers (Deglow) (1992)
PERB Decision No. 950.)
6

ORDER
The unfair practice charge in Case No. LA-C0-849-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
7