California School Employees Association, Chapter 258 (Gerber) (PERB 1460E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GEORGE R. GERBER, JR.,

Charging Party, Case No. LA-CO-869-E
Vv. PERB Decision No. 1460
CALIFORNIA SCHOOL EMPLOYEES September 6, 2001

ASSOCIATION, CHAPTER 258,

Respondent.

Appearances: George R. Gerber, Jr., on his own behalf; California School Employees
Association by Madalyn Frazzini, for California School Employees Association, Chapter 258.

Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by George R. Gerber, Jr. to a Board agent's dismissal (attached) of the unfair
practice charge. The unfair practice charge alleged that the California School Employees
Association, Chapter 258 violated section 3543.6(a) and (b) of the Educational Employment

Relations Act (EERA)' by unlawfully collecting agency fees.

' EERA is codified at Government Code section 3540 et seq. Section 3543.6 provides,
in pertinent part:

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.
After reviewing the entire record, the Board finds the dismissal letter to be free of
prejudicial error and adopts it as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-C0-869-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

ST A
TE
OF
CALIFORNIA
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite
2201
Oakland, CA
94612
(510)
622-1016
May
	30,
	2001
George
	R.
	Gerber,
	Jr.
176
	Kearney
	Street
Chula
	Vista,
	CA
	91910
Re:	
DISMISSAL
	OF
	CHARGE/REFUSAL
	TO
	ISSUE
	COMPLAINT
George
	R.
	Gerber
	Jr.
	v.
	California
	School
	Employees
Association
GRAY
DAVIS, Governor
Unfair
	Practice
	Charge
	No. 	LA-CO-869;
	First
	Amended
	Charge
Dear
	Mr.
	Gerber:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	February
	12,
2001,
	alleges
	the 	California
	School
	Employees
	Association
	(CSEA)
unlawfully
	collected
	agency
	fees
	and
	violated
	PERB
	Regulations.
You
	contend
	this
	conduct
	violates
	Government
	Code
	section
3543.6(a)
	and
	(b)
	of 	the 	Educational
	Employment
	Relations
	Act
(EERA
	or
	Act)
.
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	May
	4,
	2001,
	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
	May
	11, 	2001,
	the
	charge
	would
be
	dismissed.
On 	May
	9, 	2001,
	I
	spoke
	with 	Charging
	Party
	at 	length
	about
	the
deficiencies 	in
	the 	original
	charge.
	During
	this
	conversation,
Charging
	Party 	requested,
	and
	was
	granted,
	an
	extension 	to
	May
18, 	2001.
On 	May
	21, 	2001,
	I
	telephoned 	Charging 	Party 	regarding 	his
failure 	to
	file
	an 	amended
	charge.
	At
	that
	time,
	I
	explained
	I
would
	dismiss 	the 	charge
	if
	I
	did 	not 	receive
	an 	amended
	charge
in 	the 	next
	two
	days.
On 	May 	23, 	2001, 	Charging 	Party 	filed
	a
	first
	amended
	charge.
The 	amended
	charge
	reiterates 	the 	following 	allegations 	also
raised 	in 	the 	original 	charge:
	(1) 	CSEA
	failed 	to 	hold
	a
"prompt" 	hearing 	regarding 	the 	agency 	fee;
	(2) 	CSEA
	failed 	toprovide 	Charging 	Party 	notice 	of 	the 	arbitration 	hearing;
	(3)
CSEA
	failed 	to 	provide 	Charging 	Party with 	the 	auditor's 	report;(4) 	CSEA 	caused 	the 	District 	to 	violate 	the 	Government 	Code; 	and

Dismissal
	Letter
LA-CO-869
Page
	2
(5)
	CSEA
	breached
	its
	duty 	of
	fair
	representation.
	Relevant
facts 	are
	reiterated
	below.
In
	1995,
	during
	a
	hiatus
	between
	contracts,
	Charging
	Party
informed
	CSEA
	that
	he
	wished
	to
	withdraw
	from
	the
	union,
	and
	stop
his 	payroll
	deductions.
	In
	1999,
	CSEA
	and
	the
	District
	signedthe 	above-referenced
	collective
	bargaining
	agreement,
	which
contains
	a
	lawful
	organizational
	security
	provision.
	At
	this
time,
	the
	District
	was
	obligated 	to
	begin 	deducting
	membership
dues
	or
	a
	service
	fee
	from
	each
	employee.
In 	the
	spring 	of
	2000,
	CSEA
	became
	aware
	that
	Charging
	Party
	was
paying
	neither
	the
	membership
	dues
	nor
	the
	service
	fee.
	Pursuant
to
	Article
	3.10,
	CSEA
	ordered 	the
	District
	to
	begin 	deducting
	a
service
	fee 	of
	$29.75
	from
	Charging
	Party's
	paycheck. 	Deductions
were
	taken
	from
	Charging
	Party's
	paycheck
	in
	May
	and 	June 	2000.
Since
	that
	time
	Charging
	Party
	has 	not
	paid
	a
	service
	fee
	to
CSEA,
	nor
	have 	any
	moneys
	been
	deducted
	from
	his
	paycheck.
On
	July
	19, 	2000,
	Charging
	Party
	filed
	an
	unfair 	practice
	charge
against
	CSEA,
	alleging
	CSEA
	failed
	to
	provide 	the 	required 	notice
prior
	to 	taking
	out
	a
	service 	fee.
	In
	August 	2000,
	PERB
	issued
	a
complaint
	against
	CSEA,
	finding
	CSEA
	failed
	to
	provide 	the
	noticerequired
	in
	PERB
	Regulation
	32992
	prior 	to 	or 	concurrently with
the
	initial
	agency 	fee
	collection.
On
	August 	21, 	2000,
	CSEA
	sent
	Charging
	Party
	a
	packet 	of
information,
	satisfying 	their
	obligation 	to 	provide
	Charging
Party 	notice
	under
	PERB
	Regulation
	32992.
	The
	informationprovided
	to
	Charging
	Party 	included
	CSEA's
	calculation
	of 	thechargeable 	percentage 	of
	agency
	fees,
	an
	opportunity 	to 	object 	topaying
	the 	non-chargeable 	percentage,
	and
	information 	regarding
how
	to 	challenge 	the 	chargeable 	percentage
	in 	front 	of
	a
	neutral
arbitrator.
	In 	relevant 	part,
	the 	cover
	letter
	to
	Charging
	Party
stated: 
Please 	note
	that
	the
	advance 	refund
	is
	thenonchargeable
	portion 	of
	your
	service 	fees
due
	for 	the
	entire
	2000-2001
	school 	year.
Thus, 	you 	must
	continue 	to
	pay 	the
	fullservice 	fee
	due 	each 	month. 	Should 	you
	leave
employment
	before 	the
	end 	of 	the 	school 	year,
CSEA
	will
	not 	require
	you
	to 	pay 	back
	its
overpayment 	of 	the 	advance 	refund.
You
	have
	a
	right 	to 	challenge
	CSEA's
calculation 	of 	the 	2000-2001 	chargeable
percentage 	by
	filing
	a
	request 	for
arbitration.
	The
	arbitrator 	assigned 	to 	such
cases 	is 	selected 	by 	the 	American Arbitration

Dismissal
	Letter
LA-CO-869
Page
	3
Association
	(AAA).
	If
	arbitration 	is
requested,
	a
	prompt
	consolidated 	hearing
	will
be
	scheduled
	and
	conducted
	pursuant
	to
	AAA
rules.
	Unless
	another
	participant 	in
	the
hearing
	objects,
	CSEA
	will
	pay
	AAA's
administrative
	fee
	and
	the
	arbitrator's
	fee
and
	expenses.
	Participants 	will
	be
	notified
later
	of 	the
	precise
	time,
	date
	and
	location
of 	the 	hearing.
Additionally,
	CSEA
	provided
	an
	independent
	auditor's
	report
verifying
	the 	chargeable 	percentage,
	and
	several
	tables
	noting
CSEA's
	expenditures
	and 	codes
	for
	the
	1999-2000
	fiscal
	year.
On
	September 	11,
	2000,
	Charging
	Party
	wrote
	a
	letter
	to
	CSEA
Deputy
	Chief 	Counsel,
	Madalyn
	Frazzini,
	regarding 	the 	information
sent
	by
	CSEA.
	In
	this
	letter,
	Charging
	Party
	states
	he
	is
objecting 	to
	the 	chargeable 	expenses
	stated
	by
	CSEA
	and
	is
requesting
	further 	financial
	information
	in 	order 	to 	prepare
	for
the
	arbitration.
On
	November
	6, 	2000,
	December
	15,
	2000
	and
	January
	10, 	2001,
Charging
	Party 	again 	requested 	the
	financial
	information
	from
	Ms.
Frazzini.
	CSEA
	did
	not 	provide
	Charging
	Party with
	any
additional 	financial
	information.
On
	February
	8, 	2001,
	CSEA
	sent
	Charging
	Party
	a
	letter
	stating
the 	date
	and
	time 	of 	the
	arbitration
	hearing 	provided
	for 	those
employees
	challenging 	the 	chargeable 	expenses.
	The
	letter
	noted
the 	hearing
	would
	take 	place
	on
	February
	28, 	2001,
	in
	San
	Jose,beginning
	at
	9:00 	a.m. 	Charging
	Party
	states
	he
	never 	received
this
	letter.
	A
	copy
	of 	the
	letter
	was
	provided
	by
	the
Respondent, 	and 	an 	examination
	of 	the
	letter
	demonstrates
	it
	was
addressed
	correctly.
Charging
	Party 	further 	alleges 	that
	on
	February
	26, 	2001, 	he
received 	notice 	of 	the
	arbitration
	from
	AAA.
	The
	formal
	hearing
notice
	is
	signed
	and
	dated 	February 	1, 	2001, 	however, 	Charging
Party
	states
	it
	was
	not 	mailed
	until
	February
	22, 	2001.
	In
support 	of
	this
	contention, 	Charging
	Party provided
	a
	purported
copy
	of 	the 	envelope 	the 	notice
	was
	received 	in.
	Charging
	Partydid 	not 	appear
	at
	the
	arbitration
	hearing
	and
	did 	not 	contact
anyone
	at 	the
	AAA
	to 	object 	to 	the 	consolidation 	or 	to 	object 	to
the 	"late" 	notice.
Finally, 	Charging 	Party 	asserts 	that
	on
	several 	dates
	which
cannot 	be 	provided, 	Charging 	Party 	requested
	a
	service 	fee
authorization 	form 	from 	the 	District's
	Human
	Resources 	and
Payroll 	Departments. 	Charging 	Party 	states 	employees 	were 	unable

Dismissal
	Letter
LA-CO-869
Page
	4
to
	provide
	him
	with
	such
	a
	form, 	and
	could 	only 	provide
	him
	with
a 	CSEA
	membership
	application.
Based
	on
	the
	facts
	contained
	in
	the
	original
	and
	amended
	charges,
the
	charge
	fails
	to
	state
	a
	prima
	facie
	violation
	of 	the
	EERA,
for
	the 	reasons 	provided
	below.
I.
	PERB
	Regulation
	32994(3)
PERB
	Regulation
	32994
	specifies
	the 	requirements 	of
	an
	agency
	fee
appeal 	procedure. 	Section
	3
	states:
Within
	45
	days
	of
	the
	last
	day
	for
	filing
	an
objection
	under
	Section
	32994
(b) (2)
	of
	these
regulations
	and
	upon
	receipt
	of 	the
employee's
	agency
	fee
	objection, 	the
exclusive 	representative 	shall
	request
	a
prompt
	hearing 	regarding 	the
	agency
	fee
before
	an
	impartial
	decisionmaker.
Charging
	Party
	contends
	CSEA
	did
	not 	request
	a
	"prompt"
	hearing
in
	this
	matter.
	However,
	as
	explained 	to
	Charging
	Party 	duringour 	telephone 	conversation,
	mere
	legal
	conclusions
	are
insufficient 	to
	state
	a
	prima
	facie
	case.
	(United 	Teachers-LosAngeles 	(Ragsdale)
	(1992)
	PERB
	Decision
	944;
	State 	of 	California
(Department
	of
	Food
	and
	Agriculture
	(1994)
	PERB
	Decision
	No.
1071-S.) 	Charging
	Party
	fails
	to
	provide
	any
	facts
	demonstrating
CSEA
	failed 	to 	request
	a
	prompt
	hearing.
	Charging
	Party
	merely
relies
	on
	the 	date 	of 	the
	arbitration
	as 	evidence 	of
	CSEA's
breach.
	However,
	the
	American
	Arbitration Association
	was
	the
party 	responsible 	for 	setting
	the
	arbitration
	date.
	As
	such,
CSEA
	and
	agency
	fee 	payers
	were
	at
	the
	mercy
	of
	AAA's
availability.
	Such
	facts
	fail
	to
	demonstrate
	a
	violation
	of
	PERB
Regulation 	32994(3).
II.	
Notice 	of 	Arbitration
Charging
	Party 	contends
	CSEA
	violated
	PERB
	Regulation
	32994(5) 	by
failing 	to 	provide 	notice 	of 	the
	arbitration.
	Regulation
32994(5)
	states 	in 	relevant 	part:
Any
	party
may make 	a
	request 	for
	a
consolidated 	hearing 	of 	multiple 	agency 	fee
objections 	based 	on
	case
	similarities,including 	but 	not 	limited 	to 	hearing
location.
	At 	any 	time
	prior 	to 	the
	start
	of
the 	hearing, 	any
	party
	may make 	a
	motion 	to
the 	impartial 	decisionmaker 	challenging 	any
consolidation 	of 	the 	hearing.

Dismissal
	Letter
LA-C0-869
Page
	5
Facts 	provided 	demonstrate
	that
	CSEA
	provided
	written 	notice
	ofthe
	arbitration
	on
	February
	8,
	2001. 	This
	notice
	is
	not
	required
by
	PERB
	Regulations
	or
	the
	EERA.
	Indeed,
	it
	appears
	CSEA's
notice 	to
	Charging
	Party
	was
	merely
	a
	courtesy.
	Formal
	notice
	of
the
	arbitration
	is
	the
	responsibility
	of 	the
	AAA,
	which
	provided
Charging
	Party
	with
	notice
	on
	February
	26, 	2001. 	Indeed,
	AAA
rules 	for
	agency
	fee
	arbitration 	state
	that
	AAA
	will
	provided
notice.
As 	CSEA
	was
	not
	required 	to 	provide
	notice 	to
	Charging
	Party,
	it
cannot
	be
	found
	to
	have
	violated
	PERB
	Regulations
	when
	another
party 	allegedly
	fails
	to
	notify
	Charging
	Party
	in
	a
	timely
manner. 	Moreover,
	facts
	presented
	demonstrate 	Charging
	Party
	didnot
	object 	to
	the
	late
	notice
	until
	he
	filed 	this
	unfair 	practice
charge.
	Charging
	Party 	did 	not 	telephone
	the
	AAA
	Case 	Manager
	to
complain
	or 	to
	request
	a
	continuance, 	nor
	did
	Charging
	Party
	makea
	motion
	challenging
	any
	consolidation.
	As
	such,
	the
	facts
provided
	fail
	to
	demonstrate
	CSEA
	violated
	PERB
	Regulation
32994
(5).
III.
	Auditor's
	Report
PERB
	Regulation
	32992
	requires
	that
	each
	nonmember
	receive
written 	notice
	from
	the 	exclusive 	representative
	of 	the
	amount
	of
agency
	fee, 	the 	basis
	of 	the
	calculation
	and
	the 	procedure
	for
appealing 	the
	agency
	fee. 	Additionally, 	section
	(b)
	states:
All 	such
	calculations 	shall
	be
	made
	on
	the
basis
	of
	an 	independent
	audit 	that 	shall
	be
made
	available 	to 	the
	nonmember.
Charging
	Party
	contends
	CSEA
	violated 	this
	provision
	by
	failingto
	provide 	the
	auditor's 	report.
	However,
	as 	noted
	above,
	CSEA
provided
	a
	copy
	of 	the
	auditor's 	report 	in 	the 	informationprovided
	to
	Charging
	Party 	in
	August 	2000. 	Indeed, 	Charging
Party provided
	this
	information 	to
	PERB
	in 	the
	filing
	of
	this
charge.
	As
	such,
	this 	allegation 	fails
	to
	state
	a
	prima
	facie
violation
	of 	the
	EERA.
Assuming
	Charging 	Party
	is 	asserting
	CSEA
	must
	provide
	more
	than
just
	the
	auditor's 	reported 	statement
	and
	tables,
	Charging
	Party
fails
	to 	provide 	any 	support 	for 	this
	assumption.
	PERB
Regulation 	32992
	requires 	only
	that
	CSEA
	disclose 	the 	basis 	forthe 	calculation
	and
	basis 	for 	the 	chargeable 	expenditures.
	Such
information
	was
	provided 	to 	Charging 	Party,
	and 	as 	such
	thisallegation
	must 	be 	dismissed.

Dismissal
	Letter
LA-CO-869
Page
	6
IV. 	Government
	Code
	section
	3543.6(a)
Government
	Code
	section
	3543.6(a)
	states
	that
	it
	shall
	be
unlawful
	for
	an
	employee
	organization 	to
	cause
	or
	attempt
	to
cause
	a
	public
	school
	employer
	to
	violate
	Section
	3543.5.
	It
appears
	Charging
	Party
	is
	alleging
	the
	District's
	failure
	to
provide
	him
	with
	a
	service
	fee
	payer/payroll
	deduction
	form
	is
due
	to
	CSEA's
	bad
	faith,
	and
	as
	such
	violates
	Government
	Code
section
	3543.6(a) 	This
	allegation,
	however,
	fails
	for 	several
reasons.
1
Under
	EERA,
	it
	is
	unlawful
	for
	an
	employee
	organization 	to
	cause
or
	attempt
	to
	cause
	an 	employer
	to
	interfere
	with
	an
	employee's
protected
	right.
	(Gov. 	Code
	sec.
	3543.6(a))
	A
violation
	of
	this
provision
	may
	only
	be
	established
	by
	a
	clear
	showing
	of
	how
	and
in
	what 	manner
	the
	employee
	organization
	induced
	or
	attempted
	to
induce 	employer
	interference 	or 	discrimination.
	(Tustin 	Unified
School
	District
	(1987)
	PERB
	Decision
	No.
	626.)
	In
	addition, 	the
facts
	must
	establish
	a
	causal 	connection
	between
	the 	employer's
unlawful 	conduct
	and
	the
	employee
	organization's
	behavior.
(California
	Department
	of 	Personnel 	Administration
	(1987)
	PERB
Decision
	No.
	609-S.)
Initially,
	the
	charge
	does
	not 	demonstrate
	the
	District 	violated
the
	EERA
	by
	failing
	to
	provide
	him
	with
	a
	service
	fee 	deduction
form.
	Article
	3.9
	states
	in 	relevant
	part:
As 	a
	condition 	of
	employment, 	any
	new
employee
	to
	this
	unit 	shall
	be
	required 	tosign
	a
	payroll 	authorization
	form
	to
	pay dues
or
	a
	service
	fee
	to 	the
	CSEA
	as 	provided
	in
this 	article.
Charging
	Party 	claims
	that
	the
	District 	violated 	this
	provision
by not 	giving
	him
	a
	service 	fee 	deduction
	form. 	However,
	Article
3.9 	provides
	that
	such
	a
	form
	shall
	be
	given 	to
	new
	employees 	and
not
	employees
	who
	have
	already 	refused 	payroll 	deduction.
Moreover, 	as 	Charging 	Party
	is
	already
	a
	service 	fee 	payer 	and
has
	stated 	that
	he
	will
	pay
	CSEA
	directly,
	it
	is
	unclear
	how
	the
denial 	of 	such
	a
	form 	harms
	Charging
	Party's
	EERA
	rights.
	As
such,
	it
	does 	not 	appear 	the
	District 	interfered
	with 	Charging
Party's 	rights.
Even 	assuming
	the 	District 	did 	violate
	Charging
	Party's 	rights,the 	charge
	fails 	to 	establish
	any 	causal 	connection 	between 	the
District's
	conduct 	and 	CSEA's
	behavior. 	Instead, 	Charging 	Party
1	
It 	is 	unclear
	why 	Charging 	Party 	sought
	a
	service 	fee
payer 	form 	when 	he 	is 	already
	a
	service 	fee 	payer.

Dismissal
	Letter
LA-CO-869
Page
	7
simply 	concludes
	"the
	District
	is
	unintentionally
	being
	used
	by
CSEA
	to
	violate
	3543.S(d) ." 	Charging
	Party
	further
	asserts 	that
since
	CSEA
	is
	obligated 	to
	provide
	such
	a
	form
	to 	the
	District,
the
	District's
	failure
	to
	supply 	the
	form
	to
	Charging
	Party
demonstrates
	the
	"causal 	connection."
	However,
	the
	charge
	fails
to
	demonstrate
	CSEA
	failed
	to
	provide 	the
	District
	with
	this
form.
	Without 	any
	facts 	establishing
	a
	causal 	connection
	between
the
	conduct,
	this
	allegation
	fails
	to
	state
	a
	prima
	facie 	case.
V.
	Duty
	of
	Fair
	Representation
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
	3543.6(b).In
	order 	to
	state
	a
	prima
	facie
	violation
	of
	this
	section
	of
EERA,
	Charging
	Party
	must
	show
	that
	the
	Association's
	conduct
	was
arbitrary,
	discriminatory 	or
	in
	bad
	faith.
	In 	United 	Teachers 	of
Los
	Angeles
	(Collins),
	the 	Public
	Employment
	Relations
	Board
stated:
Absent 	bad
	faith,
	discrimination, 	or
arbitrary
	conduct,
	mere
	negligence
	or
	poor
judgment
	in
	handling
	a
	grievance
	does
	not
constitute
	a
	breach
	of 	the 	union's
	duty.
[Citations.]
A
union
	may
	exercise
	its
	discretion 	to
determine
	how
	far 	to
	pursue
	a
	grievance
	in
the 	employee's
	behalf
	as 	long 	as
	it
	does
	not
arbitrarily
	ignore
	a
	meritorious 	grievance 	orprocess
	a
	grievance
	in
	a
	perfunctory 	fashion.
A
union
	is
	also
	not
	required 	to 	process
	an
employee's 	grievance
	if
	the 	chances
	forsuccess 	are
	minimal.
In 	order 	to
	state
	a
	prima
	facie 	case 	of
	arbitrary
	conduct
violating 	the 	duty 	of
	fair
	representation,
	a
	Charging
	Party:
" 	.
	must
	at
	a 	minimum
	include
	an
	assertionof
	sufficient 	facts
	from 	which
	it
	becomes
apparent
	how
	or 	in
	what 	manner
	the 	exclusive
representative's 	action 	or 	inaction
	was
without
	a
	rational 	basis 	or 	devoid 	of 	honestjudgment. 	(Emphasis 	added.)
" 	[Reed
	District
Teachers 	Association,
	CTA/NEA
	(Reyes) 	(1983)PERB
	Decision
	No.
	332, 	p. 	9,
	citing 	Rocklin
Teachers 	Professional 	Association
	(Romero)
(1980) 	PERB
	Decision
	No. 	124.]

Dismissal
	Letter
LA-CO-869
Page
	8
Charging
	Party
	states
	the
	above
	allegations
	also
	demonstrate
	CSEA
breached
	its
	duty 	of
	fair
	representation.
	However,
	Charging
Party
	fails
	to
	provide
	any
	specific 	facts
	regarding
	this
	alleged
breach.
	Charging
	Party
	does
	not 	demonstrate
	any
	instances
	in
which
	CSEA
	has
	acted
	arbitrarily,
	or 	in
	bad
	faith.
	While
Charging
	Party
	may
	not 	agree 	with 	the
	manner
	of 	assessment
	or
	the
amount
	of
	agency
	fee
	collected
	such
	determinations 	are
	generally
an
	internal
	union
	matter
	and
	not
	subject 	to
	PERE
	scrutiny.
(AFSCME
	Local
	2620
	(Cupp)
	(1987)
	PERB
	Decision
	No.
	612-S.)
Moreover
	it
	appears
	CSEA
	has 	complied
	with
	PERB
	Regulations
	and
its
	own
	internal
	procedures
	in
	handling 	appeals 	of 	chargeable
expenses.
	As
	such,
	this
	allegation
	must
	be
	dismissed.
Charging
	Party
	also
	contends
	CSEA
	inaction
	demonstrates
discrimination 	against
	him
	because
	he
	is
	a
	service
	fee 	payer.
	In
support 	of
	this
	allegation,
	Charging
	Party
	asserts
	CSEA
discriminated 	against
	him 	by
	failing
	to
	inform
	him
	of 	the
arbitration
	and 	by
	not
	providing
	him
	information.
	However,
	as
stated
	above,
	CSEA
	was
	not
	obligated 	to
	provide
	Charging
	Party
notice
	of 	the
	arbitration,
	although
	it
	appears
	CSEA
	did
	justthat.
	Additionally,
	CSEA
	was
	not
	obligated 	to
	provide
	any
	more
information
	to
	Charging
	Party 	than
	it
	provided
	initially.
	As
such,
	this 	allegation
	must 	be
	dismissed.
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.
	(Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	Any
	document
	filed
	with 	the
	Board 	must
	containthe 	case
	name
	and 	number, 	and
	the
	original
	and
	five
	(5)
	copies 	of
all
	documents 	must 	be
	provided
	to 	the
	Board.
A
document
	is
	considered 	"filed"
	when
	actually 	received 	before
the 	close 	of 	business
	(5
	p.m.) 	on
	the
	last
	day
	set 	for
	filing
	or
when
	mailed 	by
	certified
	or
	Express 	United
	States 	mail, 	as
	shown
on
	the 	postal 	receipt 	or
	postmark,
	or 	delivered 	to
	a 	common
carrier
	promising 	overnight 	delivery,
	as
	shown 	on
	the
	carrier'sreceipt,
	not
	later
	than 	the
	last
	day
	set 	for
	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec. 	32135(a); 	see 	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is 	also 	considered
	11
filed
11
	when
	received 	by
	facsimile
transmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing 	together 	with
	a
	Facsimile 	Transmission 	Cover 	Sheet 	which
meets 	the 	requirements 	of 	Cal. 	Code
	Regs.,
	tit.
	8,
	sec.· 32135(d),
provided 	the 	filing 	party 	also 	places 	the 	original, 	together 	with
the 	required 	number 	of 	copies 	and 	proof 	of 	service, 	in 	the 	U.S.

Dismissal
	Letter
LA-CO-869
Page
	9
mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135
(b),
	(c)
	and
	(d)
see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and
	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
·sacramento
1
	CA
	95814-4174
FAX:
	(916)
	327-7960
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
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
	Regs.,
	tit.
	8,
sec.
	32140
	for 	the 	required 	contents
	and
	a
	sample
	form.)
	The
document
	will
	be
	considered properly
	"served"
	when
	personallydelivered 	or 	deposited 	in
	the
	first-class
	mail, 	postage 	paid
	and
properly 	addressed.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently
	served
	via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
32135 (c)
. )
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
	Regs.,
	tit.
	8,
	sec.
	32132.)

Dismissal
	Letter
LA-CO-869
Page
	10
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:
	Madalyn
	J.
	Frazzini,
	Esq.

ST A
TE
liF
CALIFORNIA
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite 2201
Oakland, CA
9461
2
(510)
622-1016
May
	4,
	2001
George
	R.
	Gerber,
	Jr.
176
	Kearney
	Street
Chula
	Vista,
	CA
	91910
Re:	
WARNING
	LETTER
George
	R.
	Gerber
	Jr.
	v.
	California
	School
	Employees
AssociationUnfair
	Practice
	Charge
	No. 	LA-CO-869
Dear
	Mr.
	Gerber:
GRAY DAVIS, Governor
The
	above-referenced
	unfair 	practice
	charge,
	filed
	February
	12,2001,
	alleges 	the 	California
	School
	Employees
	Association
	(CSEA)
collected
	unlawful
	agency
	fees
	and
	violated
	PERB
	Regulations.
You
	contend
	this
	conduct
	violates
	Government
	Code
	section
3543.6(a)
	and
	(b)
	of 	the 	Educational
	Employment
	Relations
	Act
(EERA
	or
	Act)
.
Investigation 	of
	your 	charge
	revealed 	the 	following.
	You
	are
currently
	employed 	by
	the
	Sweetwater
	Union 	High
	School
	District
(District) 	in
	the
	maintenance 	department.
	As 	a
	classified
employee, 	you
	are 	exclusively 	represented
	by
	CSEA. 	CSEA
	and
	the
District
	are
	parties
	to
	a
	collective
	bargaining
	agreement 	which
expires
	on
	June
	30, 	2001.
	Articles
	3.2
	and 	3.10
	of 	the
	Agreement
state
	in 	pertinent 	part:
3.2
	Membership
	in
	CSEA
	is
	not
	compulsory,
however, 	any
	unit
	member
	(including
	new
employees)
	who
	is
	not
	a
	dues 	paying
	member
	of
CSEA
	shall
	pay
	CSEA 	a
	service 	fee
	which
	is
equal
	to
	CSEA's
	annual 	dues. 	This
	servicefee
	payment
	shall
	be
	made
	either
	through
payroll 	deduction 	or 	direct
	payments
	to
	CSEA.
3.10 	In 	the 	event
	that
	an 	employee 	revokes
	a
dues
	or 	service 	fee 	authorization 	or
	fails 	to
make
	arrangements 	with
	CSEA
	for 	direct
payment 	of 	service 	fee, 	the 	District 	shalldeduct 	service 	fees 	until
	such 	time 	as
	CSEA
notifies 	the 	District 	that 	arrangements 	have
been 	made
	for 	the 	payment 	of 	such 	fees.
	The
District 	shall 	deduct 	service 	fees
automatically upon 	notice 	from 	CSEA,
	if
	an
employee 	does 	not 	become 	a 	member 	or 	sign 	a

Warning
	Letter
LA-CO-869
Page
	2
deduction
	authorization 	in
	accordance
	withEducation
	Code
	section
	45168(b).
In
	1995,
	during
	a
	hiatus
	between
	contracts,
	Charging
	Party
informed
	CSEA
	that
	he 	wished
	to
	withdraw
	from
	the
	union,
	and
	stop
his 	payroll
	deductions.
	In
	1999,
	CSEA
	and
	the
	District
	signed
the 	above-referenced
	collective
	bargaining
	agreement,
	which
contains
	a
	lawful
	organizational
	security
	provision.
	At
	this
time,
	the
	District
	was
	obligated 	to
	begin 	deducting
	membership
dues
	or
	a
	service
	fee
	from
	each
	employee.
In 	the 	spring 	of
	2000,
	CSEA
	became
	aware
	that
	Charging
	Party
	was
paying
	neither
	the
	membership
	dues
	nor
	the
	service 	fee.
	Pursuant
to 	Article
	3.10,
	CSEA
	ordered
	the
	District
	to
	begin 	deducting
	a
service
	fee
	of
	$29.75
	from
	Charging
	Party's
	paycheck.
	The
	first,
and
	only 	deduction,
	from
	Charging
	Party's
	paycheck
	took
	place 	in
May
	2000.
	Since
	that
	time 	Charging
	Party
	has
	not
	paid
	a
	service
fee
	to
	CSEA,
	nor
	have 	any
	moneys
	been 	deducted
	from
	his
	paycheck.
On
	July
	19, 	2000,
	Charging
	Party
	filed
	an
	unfair 	practice
	charge
against
	CSEA,
	alleging
	CSEA
	failed 	to
	provide 	the 	required 	notice
prior
	to 	taking 	out
	a
	service 	fee. 	In
August 	2000,
	PERB
	issued
	a
complaint
	against
	CSEA,
	finding
	CSEA
	failed 	to
	provide 	the 	noticerequired 	in
	PERB
	Regulation
	32992
	prior
	to 	or 	concurrently with
the
	initial
	agency
	fee
	collection.
On
	August 	21, 	2000,
	CSEA
	sent
	Charging
	Party
	a
	packet 	ofinformation,
	satisfying 	their
	obligation 	to
	provide 	Charging
Party 	notice
	under
	PERB
	Regulation
	32992.
	The
	informationprovided
	to
	Charging
	Party 	included
	CSEA's
	calculation
	of 	thechargeable 	percentage 	of
	agency
	fees,
	an
	opportunity 	to 	object 	topaying 	the 	non-chargeable 	percentage,
	and
	information 	regarding
how
	to 	challenge 	the 	chargeable 	percentage
	in 	front 	of
	a
	neutral
arbitrator.
	In 	relevant 	part, 	the 	cover
	letter
	to
	Charging 	Party
stated: 
Please 	note
	that
	the
	advance 	refund
	is
	thenonchargeable 	portion 	of 	your
	service 	fees
due
	for 	the
	entire
	2000-2001
	school 	year.
Thus, 	you 	must
	continue 	to
	pay 	the
	fullservice 	fee
	due 	each 	month. 	Should 	you
	leave
employment
	before 	the
	end
	of 	the 	school 	year,
CSEA
	will
	not 	require
	you
	to
	pay 	back
	its
overpayment 	of 	the 	advance 	refund.
You
	have
	a
	right 	to 	challenge
	CSEA's
calculation 	of 	the 	2000-2001 	chargeable
percentage 	by
	filing
	a
	request 	for
arbitration.
	The
	arbitrator 	assigned 	to 	such
cases 	is 	selected 	by 	the 	American Arbitration

Warning
	Letter
LA-CO-869
Page
	3
Association
	(AAA).
	If 	arbitration 	is
requested,
	a
	prompt
	consolidated
	hearing
	will
be
	scheduled
	and
	conducted
	pursuant
	to
	AAA
rules.
	Unless
	another
	participant 	in
	the
hearing
	objects,
	CSEA
	will
	pay
	AAA's
administrative
	fee
	and
	the
	arbitrator's
	fee
and
	expenses.
	Participants 	will
	be
	notified
later
	of 	the
	precise
	time,
	date
	and
	location
of
	the 	hearing.
Additionally,
	CSEA
	provided
	an
	independent
	auditor's
	report
verifying
	the 	chargeable 	percentage,
	and
	several
	tables
	noting
CSEA's
	expenditures
	and 	codes
	for 	the
	1999-2000
	fiscal
	year.
On
	September 	11,
	2000,
	Charging
	Party
	wrote
	a
	letter
	to
	CSEA
Deputy
	Chief 	Counsel,
	Madalyn
	Frazzini,
	regarding
	the 	information
sent
	by
	CSEA.
	In
	this
	letter,
	Charging
	Party
	states
	he
	is
objecting 	to 	the 	chargeable
	expenses
	stated
	by
	CSEA
	and
	is
requesting
	further 	financial
	information
	in
	order 	to 	prepare 	forthe
	arbitration.
	Additionally,
	Charging
	Party
	stated
	he 	would
pay
	CSEA
	directly
	for
	the 	service
	fee
	and
	would
	not
	authorize
	a
payroll
	deduction.
On
	November
	6, 	2000,
	December
	15,
	2000
	and
	January
	10, 	2001,
Charging
	Party 	again 	requested 	the
	financial
	information
	from
	Ms.
Frazzini.
	CSEA
	did
	not 	provide
	Charging
	Party with
	any
additional 	financial
	information.
On
	February
	8, 	2001,
	CSEA
	sent
	Charging
	Party
	a
	letter
	stating
the 	date
	and
	time 	of 	the
	arbitration
	hearing 	provided
	for 	those
employees
	challenging 	the 	chargeable 	expenses.
	The
	letter
	noted
the 	hearing
	would
	take 	place
	on
	February
	28, 	2001,
	in
	San
	Jose,beginning
	at
	9:00 	a.m.
	Later
	that
	same
	month,
	the
	American
Arbitration Association
	(AAA)
	sent
	Charging
	Party
	a
	letter
informing
	him
	of 	the 	date
	and
	time 	of 	the
	arbitration.
	Charging
Party 	did 	not 	appear
	at
	the
	arbitration
	hearing.
Finally,
	Charging
	Party 	asserts 	that
	on
	several 	dates
	which
cannot 	be
	provided, 	Charging
	Party 	requested
	a
	service 	fee
authorization
	form 	from
	the
	District's
	Human
	Resources 	and
Payroll 	Departments. 	Charging
	Party
	states
	employees 	were 	unable
to 	provide
	him
	with 	such
	a
	form, 	and 	could 	only 	provide
	him
	with
a 	CSEA
	membership
	application.
Based on
	the 	above
	stated 	facts, 	the 	charge 	as 	presently 	written,
fails 	to 	state
	a
	prima 	facie 	violation 	of 	the
	EERA,
	for 	the
reasons 	provided 	below.

Warning
	Letter
LA-CO-869
Page
	4
Charging
	Party
	alleges
	numerous
	violations
	of
	PERB
	Regulations
and
	the
	Government 	Code.
	As
	such, 	each
	allegation 	will
	be
addressed
	in 	turn.
Initially,
	it
	appears
	Charging
	Party 	lacks 	standing
	to 	allege
CSEA
	denied
	him
	a
	hearing
	and
	violated
	provisions 	of
	PERB
Regulations. 	In
	Los
	Rios
	College
	Federation 	of
	Teachers
	(Deglow)
(1992)
	PERB
	Decision
	No.
	950,
	the
	union 	refunded
	the
	agency
	fees
of 	the
	unit
	members
	who
	challenged 	the
	amount
	of 	the
	agency
	fee.
The
	union
	determined 	not
	to
	take 	the 	matter
	to
	arbitration
	and
thus 	ceased
	taking
	agency
	fees
	from
	unit
	members
	who
	appealed 	to
the
	arbitration
	procedure.
	The
	Board
	held
	that
	after
	the
	union
refunded 	the
	agency
	fees
	and
	ceased
	taking
	agency
	fees, 	the
	union
did
	not
	violate
	the
	law by
	permitting 	the
	unit
	members
	to
participate 	in
	an
	arbitration
	proceeding.
Facts 	provided,
	herein,
	are
	similar.
	Charging
	Party's
	agency
fees
	were
	refunded
	by
	the
	union
	and 	he
	has 	not
	paid
	any
	moneys
	to
CSEA
	since 	the
	May
	2000
	collection.
	As
	Charging
	Party
	has
	failedto
	pay 	agency
	fee,
	Charging
	Party 	lacks 	standing 	to 	allege
	he 	has
been
	harmed
	by
	CSEA's
	actions.
	As
	such,
	these
	allegations
	fail
to
	state
	a
	prima
	facie
	case.
Even
	assuming 	Charging
	Party
	has
	standing
	to
	file
	such
allegations,
	the
	allegations
	fails
	to
	state
	violations
	of 	the
EERA,
	as
	described
	below.
I.
	PERB
	Regulation
	32992(b)
PERB
	Regulation
	32992
	requires
	that
	each
	nonmember
	receive
written 	notice
	from
	the 	exclusive 	representative 	of 	the
	amount
	ofagency
	fee, 	the 	basis
	of 	the
	calculation
	and
	the 	procedure
	forappealing 	the
	agency
	fee. 	Additionally, 	section
	(b)
	states:
All 	such
	calculations 	shall
	be
	made
	on
	the
basis 	of
	an 	independent
	audit 	that 	shall
	be
made
	available 	to 	the
	nonmember.
Charging
	Party 	contends
	CSEA
	violated 	this
	provision
	by
	failingto
	provide 	the
	auditor's 	report.
	However,
	as 	noted 	above,
	CSEA
provided
	a
	copy
	of 	the 	auditor's 	report 	in 	the 	information
provided 	to 	Charging 	Party 	in
	August 	2000. 	Indeed, 	Charging
Party provided
	this
	information 	to
	PERB
	in 	the
	filing
	of
	this
charge.
	As
	such,
	this 	allegation 	fails 	to 	state
	a
	prima
	facie
violation 	of 	the
	EERA.
Assuming 	Charging 	Party 	is 	asserting
	CSEA must 	provide 	more 	than
just 	the 	auditor's 	repqrted 	statement 	and 	tables, 	Charging 	Party
fails 	to 	provide 	any 	support 	for 	this 	assumption.
	PERB
Regulation 	32992 	requires 	only 	that
	CSEA
	disclose 	the 	basis 	for

Warning
	Letter
LA-C0-869
Page
	5
the
	calculation
	and
	basis
	for 	the 	chargeable
	expenditures.
	Such
information
	was
	provided
	to
	Charging
	Party,
	and
	as 	such
	this
allegation
	must
	be
	dismissed.
II.
	PERB
	Regulation
	32994(3)
PERB
	Regulation
	32994
	specifies
	the 	requirements 	of
	an 	agency 	fee
appeal 	procedure.
	Section
	3
	states:
Within
	45
	days
	of 	the
	last
	day
	for
	filing
	an
objection
	under
	Section
	32994(b)
(2)
	of
	these
regulations
	and
	upon
	receipt
	of 	the
employee's
	agency
	fee
	objection, 	the
exclusive 	representative
	shall
	request
	a
prompt
	hearing 	regarding 	the
	agency
	fee
before
	an
	impartial
	decisionmaker.
Charging
	Party
	contends
	CSEA
	violated
	this
	provision
	by
	not
granting
	him
	a
	hearing.
	However,
	facts
	presented
	demonstrate
that
	a
	consolidated
	arbitration
	hearing
	was
	held
	on
	February
	28,
2001,
	regarding 	the
	chargeable 	expenditures. 	Consolidation 	of
this
	hearing
	is
	provided 	for
	in
	PERB
	Regulation
	32994(5) 	and
Charging
	Party
	was
	provided
	notice
	of
	this
	hearing
	by
	two
different 	parties.
	The
	hearing
	was
	conducted
	by 	an
	impartial
decisionmaker 	as
	required
	by
	PERB
	Regulation 	32994(4).
While
	PERB
	Regulation
	32994(5)
	allows
	for
	an 	agency
	fee 	payer 	to
object 	to 	the 	consolidation
	of 	the 	hearing,
	Charging
	Party
	fails
to
	demonstrate
	he
	made
	a
	motion
	to 	the 	impartial
	decisionmaker
challenging 	the 	consolidation.
	As
	such,
	facts
	provideddemonstrate
	CSEA
	complied with 	these 	regulations
	and
	did 	not
	deny
Charging
	Party
	a
	hearing.
III.	
PERB
	Regulation
	32995(a)
(1)
PERE
	Regulation
	32995
	provides
	that
	an
	exclusive 	representative
shall
	open 	an 	escrow 	account
	in
	any 	independent
	financial
institution
	for 	the 	depositing 	of:
Agency
	fees 	to
	be
	collected
	from 	nonmemberswho
	have
	filed
	timely 	agency 	fee 	objectionspursuant 	to 	Section
	32994(b)
(2)
	of 	these
regulations;
Charging 	Party 	contends
	CSEA
	has
	failed 	to 	place 	his
	advanced
refund 	in
	an 	escrow 	account.
	However, 	Charging 	Party 	fails 	tonote 	that
	he
	is
	not
	owed 	any 	advanced 	refund 	as 	he 	has
	failed 	topay
	a
	service 	fee 	this 	year.
	As
	such,
	it 	is 	unclear
	how 	CSEA
violated 	this 	provision.

Warning 	Letter
LA-CO-869
Page 	6
Additionally, 	Charging 	Party 	contends 	he 	has 	not 	received 	an
advance 	refund 	of 	the 	non-chargeable 	percentage 	of 	service 	fee.
However, 	this 	allegation 	fails 	for 	the 	same 	reason 	as 	the 	one
discussed 	above. 	As 	Charging 	Party 	has 	not 	paid 	a 	service 	fee
for 	this 	year, 	it 	is 	unclear 	why 	Charging 	Party 	believes 	he 	is
entitled 	to 	an 	advanced 	refund 	of 	a 	fee 	he 	has 	not 	ever 	paid.
CSEA 	own 	cover 	letter 	to 	Charging 	Party 	explained 	this 	exact
concept 	in 	stating:
Please 	note 	that 	the 	advance 	refund 	is 	the
nonchargeable 	portion 	of 	your 	service 	fees
due 	for 	the 	entire 	2000-2001 	school 	year.
Thus, 	you 	must 	continue 	to 	pay 	the 	full
service 	fee 	due 	each 	month.
As 	Charging 	Party 	has 	failed 	to 	pay 	a 	service 	fee 	for 	this 	year,
CSEA's 	failure 	to 	provide 	an 	advanced 	refund 	does 	not 	violate 	the
EERA.
IV. 	Government 	Code 	section 	3543.6(a)
Government 	Code 	section 	3543.6(a) 	states 	that 	it 	shall 	be
unlawful 	for 	an 	employee 	organization 	to 	cause 	or 	attempt 	to
cause 	a 	public 	school 	employer 	to 	violate 	Section 	3543.5. 	It
appears 	Charging 	Party 	is 	alleging 	the 	District's 	failure 	to
provide 	him with 	a 	service 	fee 	payer/payroll 	deduction 	form 	is
due 	to 	CSEA's 	bad 	faith, 	and 	as 	such 	violates 	Government 	Code
section 	3543.6(a) 	This 	allegation, 	however, 	fails 	for 	several
reasons.
Under 	EERA, 	it 	is 	unlawful 	for 	an 	employee 	organization 	to 	cause
or 	attempt 	to 	cause 	an 	employer 	to 	interfere 	with 	an 	employee's
protected 	right. 	(Gov. 	Code 	sec. 	3543.6(a)) 	A violation 	of 	this
provision may 	only be 	established by 	a 	clear 	showing 	of 	how 	and
in 	what 	manner 	the 	employee 	organization 	induced 	or 	attempted 	to
induce 	employer 	interference 	or 	discrimination. 	(Tustin 	Unified
School 	District 	(1987) 	PERB 	Decision No. 	626.) 	In 	addition, 	the
facts 	must 	establish 	a 	causal 	connection 	between 	the 	employer's
unlawful 	conduct 	and 	the 	employee 	organization's 	behavior.
(California 	Department 	of 	Personnel 	Administration 	(1987) 	PERB
Decision No. 	609-S.)
Initially, 	Charging 	Party 	fails 	to 	demonstrate 	the 	District
violated 	the 	EERA 	by 	failing 	to 	provide 	him with 	a 	service 	fee
deduction 	form. 	Article 	3.9 	states 	in 	relevant 	part:
As 	a 	condition 	of 	employment, 	any 	new
employee 	to 	this 	unit 	shall 	be 	required 	to
sign 	a 	payroll 	authorization 	form 	to 	pay 	dues

Warning
	Letter
LA-C0-869
Page
	7
or
	a
	service
	fee
	to 	the
	CSEA
	as 	provided
	in
this
	article.
Charging
	Party
	claims
	that
	the
	District
	violated
	this
	provision
by
	not
	giving
	him
	a
	service
	fee 	deduction
	form.
	However,
	Article
3.9 	provides
	that
	such
	a
	form
	shall
	be
	given
	to
	new
	employees
	and
not
	employees
	who
	have
	already 	refused
	payroll
	deduction.
	As
such,
	it
	does
	not 	appear
	the
	District 	interfered
	with
	Charging
Party's 	rights.
Even
	assuming
	the
	District
	did
	violate
	Charging
	Party's 	rights,
the
	charge
	fails
	to
	establish
	any
	causal 	connection
	between
	the
District's
	conduct
	and
	CSEA's
	behavior.
	Instead,
	Charging
	Party
simply 	concludes
	"the
	District 	is
	unintentionally
	being 	used
	by
CSEA
	to
	violate
	3543.S(d) ."
	Without 	any
	facts 	establishing
	a
causal
	connection
	between
	the
	conduct,
	this
	allegation
	fails
	to
state
	a
	prima
	facie
	case.
V.
	Duty
	of
	Fair 	Representation
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 	3543.6(b).
In 	order 	to
	state
	a
	prima
	facie 	violation
	of
	this
	section 	of
EERA,
	Charging
	Party
	must
	show
	that
	the 	Association's
	conduct
	was
arbitrary,
	discriminatory or 	in
	bad
	faith.
	In 	United 	Teachers 	of
Los
	Angeles
	(Collins), 	the 	Public
	Employment
	Relations
	Board
stated:
Absent 	bad
	faith,
	discrimination, 	or
arbitrary
	conduct,
	mere
	negligence 	or
	poorjudgment
	in
	handling
	a
	grievance
	does
	not
constitute
	a
	breach 	of 	the 	union's
	duty.
[Citations.]
A
union
	may
	exercise
	its
	discretion 	todetermine
	how
	far 	to
	pursue
	a
	grievance
	inthe 	employee's 	behalf 	as 	long 	as
	it
	does 	not
arbitrarily
	ignore
	a
	meritorious 	grievance 	orprocess
	a
	grievance 	in
	a
	perfunctory 	fashion.
A
union
	is 	also
	not 	required 	to 	process 	an
employee's 	grievance
	if
	the 	chances 	forsuccess 	are
	minimal.
In 	order 	to 	state
	a
	prima 	facie 	case 	of 	arbitrary
	conduct
violating 	the 	duty 	of 	fair 	representation,
	a
	Charging 	Party:
" 	. 	must
	at
	a 	minimum
	include 	an
	assertionof 	sufficient 	facts 	from 	which
	it
	becomes
apparent
	how
	or 	in what 	manner 	the 	exclusive

Warning
	Letter
LA-CO-869
Page
	8
representative's
	action 	or
	inaction
	was
without
	a
	rational
	basis
	or
	devoid
	of 	honest
judgment.
	(Emphasis
	added.)
11
	[Reed
	District
Teachers
	Association,
	CTA/NEA
	(Reyes)
	(1983)
PERB
	Decision
	No.
	332,
	p.
	9,
	citing
	Rocklin
Teachers
	Professional 	Association
	(Romero)
(1980)
	PERB
	Decision
	No.
	124.]
Charging
	Party
	states
	the
	above
	allegations
	also
	demonstrate
	CSEA
breached
	its
	duty 	of
	fair
	representation.
	However,
	Charging
Party
	fails
	to
	provide
	any
	specific 	facts
	regarding
	this
	alleged
breach.
	Charging
	Party
	does
	not 	demonstrate
	any
	instances
	in
which
	CSEA
	has
	acted
	arbitrarily,
	or
	in
	bad
	faith.
	While
Charging
	Party
	may
	not 	agree 	with 	the
	manner
	of
	assessment
	or
	the
amount
	of
	agency
	fee
	collected
	such
	determinations 	are
	generally
an
	internal
	union
	matter
	and
	not
	subject 	to
	PERB
	scrutiny.
(AFSCME
	Local
	2620
	(Cupp)
	(1987)
	PERB
	Decision
	No.
	612-S.)
Moreover
	it
	appears
	CSEA
	has 	complied
	with
	PERB
	Regulations
	and
its
	own
	internal
	procedures
	in
	handling 	appeals 	of
	charge·able
expenses.
	As
	such,
	this
	allegation
	must 	be
	dismissed.
Charging
	Party
	also
	contends
	CSEA
	is
	discriminating 	against
	him
because
	he
	is
	a
	service
	fee 	payer.
	However,
	Charging
	Party
	does
not 	provide
	any
	facts
	regarding
	this
	alleged 	discrimination.
	A
charging
	party
	should
	allege 	the
	''who,
	what,
	when,
	where,
	and
how"
	of
	an
	unfair 	practice.
	(United 	Teachers-Los 	Angeles
(Ragsdale)
	(1992)
	PERB
	Decision
	944.)
	Mere
	legal 	conclusions 	are
insufficient.
	(See
	State
	of
	California
	(Department
	of
	Food
	and
Agriculture
	(1994)
	PERB
	Decision
	No.
	1071-S.)
	As
	the 	Charging
Party
	does
	not
	point 	to
	any
	specific 	facts
	regarding 	the 	allegeddiscrimination,
	this
	allegation
	must 	be
	dismissed.
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 	have 	the 	case
	number
	written
	on
	the 	top
	right
hand
	corner 	of 	the 	charge
	form. 	The 	amended
	charge 	must 	be
served
	on
	the 	respondent's 	representative
	and
	the 	original 	proof
of 	service
	must 	be
	filed
	with
	PERB.
	If
	I 	do
	not 	receive 	anamended
	charge 	or 	withdrawal 	from 	you
	before
	May
	11, 	2001,
	I
shall 	dismiss 	your 	chirge. 	If
	you 	have 	any 	questions, 	please
call
	me
	at
	(510) 	622-1016.

Warning Letter
LA-CO-869
Page 9

Sincerely,

Kristin L. Rosi
Regional Attorney