Mt. Diablo Unified School District/Santa Ana Unified School District/Capistrano Unified School District (PERB 0044E)

)
)
)
)
_____________ .)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
_____________ )
STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS 	BOARD
DIABLO VALLEY FEDERATION OF TEACHERS,
AFT LOCAL 1902,
Charging Party,
vs.
MOUNT DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
JAMES P. STEVENS, RHODA LUBNAU, AND
FEDERATION OF ASSOCIATED 	CLASSIFIEDS
AND TEACHERS,
Charging Party,
vs.
SANTA ANA UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
CAPISTRANO UNIFIED FEDERATION OF
TEACHERS, LOCAL 2312,
Charging Party,
vs.
CAPISTRANO UNIFIED 	SCHOOL DISTRICT,
Respondent.
)
Case No. 	SF-CE-88
EERB Decision No. 	44
Case No. 	LA-CE-109
December 	30, 	1977
Case No. 	LA-CE-91
Appearances: 	Stewart Weinberg, Attorney (Van Bourg, Allen, Weinberg Se
Roger), 	for Diablo Valley Federation of Teachers, 	AFT Local 1902;
Robert A. Galgani, Attorney (Breon, Galgani & Godino), 	for Mount Diablo
Unified School District; 	Lawrence Rosenzweig, 	Attorney (Levy, 	Koszdin,
Goldschmid Se Sroloff), for James P. Stevens, Rhoda Lubnau, Federation of
Associated Classifieds 	and Teachers 	and Capistrano Unified Federation of
Teachers, Local 2312; John L. Bukey, Attorney (Biddle, Walters & Bukey),
for 	Santa Ana Unified School District and Capistrano Unified School District.
Before Alleyne, 	Chairman; Gonzales and Cossack, Members.

These 	three 	cases 	present 	the 	question whether 	an 	employer
commits 	an unfair practice under 	the Educational Employment 	Relations
1Act 	(EERA) 	by refusing 	to 	take part 	in a grievance 	either 	filed by
or presented by an 	employee organization other 	than the 	exclusive
representative. 	The cases were 	filed at different 	times by different
parties, 	but the three appeals present a common issue. 	We 	therefore
consolidate 	the 	three appeals 	and decide each one with 	this 	decision.
In all 	three cases, 	hearing officers 	dismissed unfair practice
charges. 	They relied on 	the general 	ground that 	the 	charges 	did not
allege violations 	of 	the Educational Employment Relations Act, 	since
the 	EERA prohibits 	an 	employee 	organization other 	than 	the 	exclusive
representative 	from presenting 	grievances 	for 	employees 	in 	the 	unit
the exclusive representative represents. 	In each case, 	we 	sustain the
order of dismissal.2/
2
I
In the Santa Ana charge, 	as 	amended, 	the Federation of Associated
Classifieds 	and Teachers 	(FACT) 	alleges 	that 	the District 	denied its
organization the right 	to 	represent one of 	its members 	at 	a grievance
conference 	"and attendant 	procedures;" 	that 	the 	District published a
newsletter 	to 	this 	effect; 	and that 	these actions by 	the District were
discriminatory within 	the meaning 	of 	Government 	Code 	Section 	3543.5(a)
and 	denied rights 	guaranteed under Government 	Code 	Sections 	3543, 	3542.1(a)
1 Gov. 	Code Sec. 	3540 et. 	seq., 	and Educational Employment Relations
Act 	or EERA are used 	synonymously 	in 	this 	opinion.
2Solely 	for purposes 	of ruling 	on 	the validity of 	the 	dismissals,
we 	assume 	that 	the 	facts 	alleged in the 	charges 	are 	true. 	San Juan Unified
School District, EERB Decision No. 	12, March 10, 	1977.
-2-

and 	3543.5(d). 	The hearing officer dismissed the original 	charge
with leave 	to 	amend and 	later partially dismissed an amended 	charge
which added 	to 	the original 	the 	allegation 	that grievant had designated a
"friend and advisor" 	to be her representative 	in the 	grievance procedure.
Rather 	than dismiss 	the 	"friend and advisor" portion of 	the 	amended
charge, 	the hearing officer ordered the 	charging party to particularize
it 	so as 	to 	identify 	the 	"friend and advisor." 	The purpose of 	the order
to particularize was 	to determine whether 	the 	"friend and advisor,"
in representing 	the grievant, 	was 	acting for and in behalf of an employee
organization other 	than 	the 	exclusive representative. 	The 	charging party
appeals both 	the dismissal 	and 	the order 	to particularize.
In the Mt. 	Diablo case, 	the charging party, 	Diablo Valley Federation
of Teachers, 	alleges 	that 	the District unlawfully required "that only
the exclusive representative, 	the Mt. 	Diablo Education Association,
CTA/NEA, 	could represent 	teachers 	in grievances" and that 	this 	conduct
violated Government Code Sections 	3543.5(a) 	and 35,43.5(b). 	The hearing
officer dismissed 	the 	charge with leave 	to 	amend. 	The 	charging party
filed 	this 	appeal without attempting 	to 	amend 	the 	charge.
In the Capistrano case, 	the charging party, 	Capistrano Unified
Federation of Teachers, 	charges the District with violations 	of
Government Code Sections 3543.5(a), 	(b) 	and (d) 	in that the District
refused to process 	a grievance on the part of a 	teacher who, 	in presenting
the grievance, 	was 	represented by 	the Capistrano Unified Federation of
Teachers, 	"a non-bargaining-agent-employee organization." 	The hearing
officer 	dismissed the 	charge with leave 	to 	amend and 	the 	charge was
subsequently amended 	to 	include 	the 	following 	sentence: 	"[The 	grieving
teacher] 	had requested 	the 	assistance of Lee Weagley 	and/or Joe 	Shofner,
certificated 	employees within 	the bargaining unit." 	The 	hearing officer
dismissed 	the 	amended charge on 	the ground 	that Mr. 	Lee Weagley 	"is 	the
-3-

-4-
president of the Capistrano Unified Federation of Teachers, 	Local 	2312,
and that Mr. 	Joe Shofner is 	the 	[Local 	2312] 	grievance coordinator."
Charging party appeals 	the dismissal 	of 	the amended charge.
In all 	three cases, 	an affiliate of the California Teachers
Association was 	the exclusive representative of the employees 	in 	the
unit which 	includes 	the grieving 	employee. 3
In the Mt. 	Diablo case, 	the grievance procedure stems 	from an
agreement negotiated by 	the 	exclusive representative 	and the District.
Among other 	things, 	the 	contractual grievance procedure provides:
Representation
The grievant may be 	represented by 	the Association
or any eligible 	representative 	of his 	own 	choosing,
whether or not that representative is a 	teacher, 	at
any formal 	step of 	this procedure.
If 	the grievant 	is represented by other 	than the
Association; 	the Association retains 	the right 	to be
present at any formal 	step of 	the procedure as 	an
observer.
In the Capistrano and Santa Ana cases, 	the grievance procedures 	sought
to be used were not 	covered by an existing 	contract.
II
All 	three hearing 	officers 	relied upon Government 	Code 	Sections
3543 and 3543.1(a).
3
In 	the Capistrano case, 	the hearing officer granted a motion 	to
join 	the 	exclusive representative as 	an 	indispensable party. 	No 	appeal
has been taken from that ruling. 	In 	the 	Santa Ana case, 	the hearing
officer 	dismissed 	the 	charge before making a ruling on a request 	by 	the
District 	that 	the 	exclusive representative be 	joined as 	an 	indispensable
party. 	With this 	appeal, 	the District has 	filed a "renewal of application
for joinder," 	asking 	that 	its 	joinder motion "be 	ruled upon." 	Treating 	the
"renewal of application 	for joinder" 	as 	an appeal 	from a denial of a
joinder request, 	we need not decide whether 	the 	exclusive representative
should have been joined as 	an indispensable-party, 	since we 	sustain 	the
hearing officer's 	dismissal of 	the charge.

After providing 	that 	employees 	are 	free 	to engage 	in or to
refrain from engaging 	in 	the 	activities 	of employee organizations,
Government Code Section 3543 provides 	as 	follows 	in its 	second paragraph:
Any employee may 	at any 	time present 	grievances
to his employer, 	and have such grievances ad-
justed, 	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 agree-
ment 	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.
Government Code Section 3543.1(a) 	provides:
Employee organizations 	shall have 	the right 	to
represent 	their members 	in 	their employment relations
with public school employers, 	except that once an
employee organization 	is 	recognized or 	certified as 	the
exclusive 	representative 	of 	an appropriate 	unit pursuant
to Section 3544.1 or 3544.7, 	respectively, 	only that
employee organization may represent 	that unit 	in 	their
employment relations with 	the public 	school 	employer.
Employee 	organizations 	may 	establish reasonable 	restrictions
regarding who may join 	and may make reasonable provisions
for 	the 	dismissal of 	individuals 	from membership.
If either of 	these 	statutory 	sections 	prevents 	an 	employee 	organization
other 	than 	the 	exclusive 	representative 	from presenting 	grievances 	for
employees 	in 	the representation unit, 	it follows 	that no unfair practices
were committed by the District. 	Except 	for 	the historical background
it 	lends 	to a 	determination of the meaning of Government Code 	Section
3543.l(a), we do not rely, 	as did the hearing officers, on Government
Code 	Section 	3543 	in 	concluding 	that 	these unfair practice 	charges were
properly dismissed. 	The 	quoted pertinent portion of Government 	Code
-5-

Section 3543 would be primarily relevant here 	if 	the Districts, 	instead
of refusing 	to 	process 	grievances 	filed by employee 	organization
representatives, 	had refused 	to process 	grievances 	filed by individual
employees. 	Concerning grievance-representation rights, 	Government Code
Section 	3543 	separates 	and 	treats 	differently 	exclusive 	representative
rights on the one hand, 	and individual employee rights, 	on the other.
Unlike Government Code Section 3543.1(a), 	Government Code Section 3543
does not bear on 	the 	grievance-representation rights 	of 	a competing 	employee
organization 	which 	is not 	an 	exclusive representative. 	The 	cases
before us 	do not concern the right of an individual 	to present a
grievance under Government Code Section 3543, 	but whether an employee
organization, 	other 	than the exclusive representative, 	may present
a grievance. 	This 	case 	therefore falls under Section 3543.1(a) 	alone.
Because we conclude, 	for reasons which follow, 	that Government
Code 	Section 3543.1(a) 	prevents 	employee organizations 	other 	than
exclusive 	representatives from filing 	or presenting 	grievances 	for 	employees
in 	the unit, 	it 	follows 	that no unfair practice sections 	of the Act
4
were violated by 	the Districts. 	We 	therefore 	find 	it unnecessary 	to 	set
4 EERA unfair practice sections 	are 	Gov. 	Code Secs. 	3543.5
and 3543.6.
-6-

out 	at length and analyze 	the various unfair practice 	sections
alleged 	to have been violated.
III
The National Labor Relations 	Board and one Federal 	Court of
Appeals 	considering 	the question have held 	that 	the National 	Labor
Relations Act precludes 	a union other 	than an exclusive bargaining
representative 	from representing 	employees 	at 	grievance 	proceedings. 5
5See Federal Telephone and Radio Co., 	107 NLRB 649, 	33 LRRM
1203 	(1953); Meat and Provision Drivers Union, Local 626, 	115 NLRB
890, 892, 37 LRRM 1421 (1956); Hughes Tool Co., 56 NLRB 981 (1944),
affirmed, Hughes Tool Co. v. NLRB, 	147 F. 	2d. 	69, 15 LRRM 852
(5th Cir. 	1945). 	Douds v. Retail, Wholesale Dept. Store Union, 	173
F. 	2d. 	764, 	23 LRRM 2424 (2nd Cir. 	1949), which arose in the context
of an alleged unlawful strike, 	is 	to 	the contrary and holds 	that a
minority union 	is not prevented from representing 	employees 	in
grievance proceedings. 	But 	that decision appears 	to have been
impliedly disavowed, 	and expressly distinguished by 	the 	same
court in NLRB v. 	Lundy Manufacturing Corporation, 	316 F. 	2d. 	921,
53 LRRM 2106, 	2109 	(2nd Cir. 	1963). 	There, 	that opinion provides
in part that the Doud's opinion, 	"assuming its correctness, 	does
not necessarily mean 	that 	it would be 	an unfair 	labor practice 	for
the employer 	to refuse 	to 	deal with anyone other 	than the aggrieved
employees 	on 	the 	one hand or 	their 	contractually authorized repre-
sentative on the other."
-7-

The NLRB and federal 	court decisions were based on an 	interpretation
of NLRA. Section 9(a)'s 	proviso,6 which has 	an almost 	exact parallel
in Government Code 	Section 3543. 	Those 	decisions 	required a 	labored
examination of 	the proviso's 	legislative history. 	They were 	difficult
cases 	to decide. 	One United States Court of Appeals reached a decision
7
in conflict with another United States 	Court of Appeals 	and in
conflict with 	those of 	earlier 	and subsequent decisions 	of 	the NLRB.
The 	difficulties 	experienced by 	the NLRB 	and 	the federal 	courts 	had
their basis 	in the Section 9(a) 	proviso's 	lack of a direct bearing on 	the
matter of 	an exclusive representative 	in grievance-representation
competition with another union, 	as 	distinguished from an exclusive
representative 	in grievance-representation competition with an. individual
employee. 	The California Legislature has 	avoided 	these problems 	of
interpretation by 	including 	Section 3543.l(a) 	in 	the EERA. 	Government
629 U.S.C. 	Sec. 	159(a), which provides in pertinent part
• 	• 	• Provided, That any individual employer
or a group of employees 	shall have 	the right
at any time" to present grievances 	to 	their
employer and 	to have 	such grievances 	adjusted,
without 	the intervention of 	the bargaining
representative, 	as long as 	the adjustment is
not 	inconsistent with 	the 	terms 	of 	a collective-
bargaining 	contract or agreement 	then 	in effect:
Provided further, 	That 	the bargaining represen-
tative has 	been given opportunity 	to be present
at 	such adjustment.
7See Note 6 supra.
-8-

V
,
V
Code Section 3543.1(a) 	has no counterpart in the National Labor
Relations Act. 	Accordingly, 	we need not rely upon 	the cases 	inter-
preting the proviso to NLRA Section 9(a), 	except to note, 	as we have,
their bearing on the history of Government Code Section 3543.l(a).5
By giving employee o
members 	in 	their employment relations with public 	school 	employers,"
with 	the exception made, 	Section 3543.1(a) 	confers on an employee
organization 	the right 	to represent 	its members 	in a grievance proceeding
even if that employee organization is not the exclusive representative,
but only 	so 	long 	as 	there 	is no 	exclusive representative of 	the grieving
employees. 	The Legislature no doubt used the word "members" rather 	than
unit, 	because 	it anticipated 	that 	some 	employee organizations might 	attempt
to represent 	their members 	in grievance proceedings, 	even though the
employee organization was not 	the 	exclusive representative.
Also, 	in our decision in San Dieguito Union High School District,9
we held 	that 	an employer's 	obligation 	to 	negotiate 	or 	consult 	extends
only 	to an exclusive 	representative. 	This 	holding was 	based on a plain-
meaning reading of Government 	Code 	Sections 	3543.5(c)10 and 	3543.2. 11
8
Note 5 supra.
9EERB Decision No. 	22, 	September 2, 	1977.
10Gov. 	Code Sec. 	3543.5(c) provides:
It 	shall be unlawful 	for a public 	school 	employer 	to
***
Refuse or fail 	to meet 	and negotiate 	in good
faith with 	an exclusive 	representative.
11Gov. 	Code Sec. 	3543.2 provides 	in part:
[T]he 	exclusive 	representative 	of
certificated 	personnel 	has 	the
right 	to 	consult 	. . . .
-9-

Since 	the Legislature did not extend 	to 	a nonexclusive representative
the privilege 	of 	consulting 	or negotiating with an unwilling 	employer,
the reference in Government Code Section 3543.1(a) 	to an employee
organization's 	right 	to 	represent its members until 	an exclusive
representative is 	selected, 	must necessarily relate 	to grievances.
Although the grievance procedures 	in the Capistrano and Santa Ana
cases were not contractual grievances, 	we do not read Government Code
Section 3543.l(a) 	as making a distinction between a contractual and
a noncontractual grievance. 	The 	term "employment relations," 	as used in
that 	section, 	is broad enough to encompass both a contractual and a
noncontractual grievance. 	The policy consideration Government Code
Section 3543.l(a) 	addresses 	is 	applicable 	to both contractual and non-
contractual 	grievances: 	the high potential 	for disruption of 	the
relationship between an employer and an exclusive 	representative 	if a
rival 	employee organization could raise 	its 	stature 	in the eyes 	of its
members 	and other employees 	in 	the representation unit by presenting
a grievance 	the 	exclusive 	representative 	in good 	faith regarded 	as
lacking 	in merit. 	The California Legislature has made 	it possible 	for
the 	exclusive representative 	to be 	free 	from those 	concerns. 12
The Waiver 	Issue
In the Mt. 	Diablo case, 	the effect of the "representation" 	section
of 	the grievance procedure noted earlier must be 	considered. 	We must
12
At 	the same 	time, 	the Legislature has provided that an exclusive
representative has 	the 	duty 	to 	"fairly represent 	each 	and every 	employee
in the appropriate unit." 	Gov. 	Code Sec. 	3543.9. 	No charge in these
cases 	involves 	that 	section of 	the EERA.
-10-

decide whether 	the representation 	section of 	the 	contractual 	grievance
procedure 	in 	the agreement between 	the District 	and 	the 	exclusive
representative, Mt. 	Diablo Education Association, 	operates as a waiver
of the employer's 	and 	the exclusive representative's 	right 	to bar 	a
nonexclusive 	representative 	from presenting 	grievances. 	We need not
13interpret 	the 	"representation clause" 	in 	the grievance procedure. 	We
view 	the position 	taken by 	the District 	and 	the exclusive representative
in the Mt. 	Diablo case as an indication that both the exclusive
representative and the District view 	the 	"representation" 	clause 	in a
manner 	consistent with our 	interpretation of Government Code 	Section
3543.1(a).14 They are 	also 	the parties 	to 	the agreement and its 	grievance
procedure.
The Motion 	to Particularize
We partially sustain 	the order of 	the hearing 	officer 	to
particularize 	the charge in the 	Santa Ana case. 	We agree 	that 	the
grievant's 	"friend and advisor" must be 	identified 	in a particularized
charge; 	otherwise, 	it will not be possible 	to determine whether 	the
grievant 	is 	being represented by 	an employee 	organization other 	than 	the
exclusive representative. 	However, 	we 	do not sustain 	the portion of 	the
13Gov, Code Sec. 3541.5 provides in pertinent part;
The board shall not have 	the 	authority 	to
enforce agreements between the parties . . .
14See NLRB v. 	C & C Plywood Corp., 	385 U.S. 	421. 	64 LRRM 2065, 	2067
(1967).
-11-

particularization 	order 	requiring 	that 	the 	charge 	itself 	state 	"whether
this 	individual 	is 	in any way associated or connected, 	either 	directly
or 	indirectly, 	with any employee 	organization other 	than the 	[exclusive
representative]." 	We view the relationship between the 	"friend and advisor"
and the nonexclusive representative, 	if any, 	as a matter requiring proof
at a hearing, 	after the 	"friend and advisor" is 	identified in the charge.
Government 	Code Section 3543 protects 	the right of an individual 	to
present 	a grievance either 	alone or 	through a 	representative other 	than
an employee organization that 	is not 	the exclusive representative.
However, 	the 	"representative" may not be an agent of an employee
organization other 	than 	the 	exclusive representative. 	In making 	this
determination, 	common law principles 	of agency shall govern. 	The burden
of proving 	that 	a disqualifying relationship 	exists 	shall be upon 	the
party 	seeking 	the 	disqualification.
On 	the 	agency issue, 	this 	case and future cases must be decided
on a case-by-case basis. 	However, 	we decide now that 	in resolving 	the
agency issue, 	mere 	incidental membership 	in a rival 	employee organization,
without proof 	that 	the representative of 	the grievant 	is 	acting 	for
and in behalf of a rival employee organization, 	is 	insufficient 	to
disqualify 	a 	grievant's 	representative 	from presenting 	a 	grievance. 15
IV
In 	the Santa Ana 	case, 	the 	charging party appeals 	from the hearing
officer's 	dismissal 	of an allegation 	that 	the 	District violated Government
15 On appeal, 	charging party argues 	that 	its 	constitutional 	right 	to
freedom of 	association was violated by 	the 	order 	to 	particularize. 	The
order 	to particularize 	is 	authorized by our rules 	and 	consistent with
our 	interpretation of the EERA.. 	We 	leave 	to 	a judicial 	determination
questions 	concerning 	the 	constitutional 	validity of 	the motion 	to
particularize.
-12-

16
Code 	Section 3543.5(d) 	of 	the Act by distributing 	a newsletter
stating, 	among other 	things, 	that only the exclusive representative
is entitled to represent employees 	in grievance proceedings'. 	The
theory most 	favorable 	to 	charging party 	is 	that 	the newsletter
stated a misrepresentation of 	the 	law by 	failing 	to 	indicate 	that an
individual may represent 	himself or herself individually or 	through a
representative 	that 	is not acting 	for and 	in behalf of an employee
organization that 	is not 	the exclusive representative.
We 	sustain 	the dismissal 	of 	this 	aspect of 	the 	charge. 	We note
that 	this 	is 	the only unfair practice 	allegation in 	the 	three 	cases 	that 	is
not necessarily disposed of by our 	interpretation of Government 	Code
Section 3543.l(a). 	Misrepresentations, 	alone, have sometimes been
held to be grounds 	for 	setting aside an election. 	But 	they are
17generally not held 	to 	constitute unfair practices. 	In any event.
Government Code 	Section 3543.5(d) 	does not cover 	the 	conduct 	described
in this 	aspect of 	the charge.
16Gov. Code Sec. 	3543.5(d) provides:
It 	shall be unlawful 	for a public school 	employer 	to:
***
Dominate 	or 	interfere with 	the 	formation or
administration of 	any employee 	organization,
or contribute 	financial or other 	support 	to
it, 	or 	in any way encourage employees 	to join
any organization 	in preference 	to another.
17 In a recent case, 	the NLRB has held that misrepresentations, 	alone,
are not grounds 	for 	setting aside an election. 	See Shopping Kart Food
Market, 	228 NLRB No. 	190, 	94 LRRM 1705 	(1977), 	overruling Hollywood
Ceramics Company, Inc. , 	140 NLRB 221, 51 LRRM 1600 (1962).
-13-

ORD ER
(1) 	The 	hearing 	officer's 	partial 	dismissal 	of 	the 	charge, 	as
•
amended, 	by 	Federation 	of Associated 	Classifieds 	and 	Teachers 	against
the 	Santa Ana Unified School 	District, 	is 	sustained.
(2) 	The 	hearing 	officer's 	order 	of 	particularization of
the 	amended 	charge 	by 	Federation 	of Associated 	Classifieds 	and
Teachers 	against 	the 	Santa Ana Unified 	School 	District, 	is 	sustained
only 	to 	the 	extent 	of 	requiring 	the 	identity, 	by name 	only, 	of 	grievant's
"friend 	and 	advisor."
(3) 	The 	dismissal 	of 	the 	charge 	by Diablo Valley Federation of
Teachers 	against 	the Mt. 	Diablo Unified 	School 	District, 	is 	sustained.
(4) 	The 	dismissal 	of 	the 	charge 	by Capistrano 	Unified 	Federation
of 	Teachers 	against 	the 	Capistrano 	Unified 	School 	District, 	is 	sustained.
By: 	Reginald All eyne, 	Chairman I 	1~
Raymond 	J . 	Gonzales 	Member
Jerilou Cossack Twohey, 	Member, 	concurring:
I 	agree 	that 	these 	charges 	should be 	dismissed, 	essentially 	for
the 	reasons 	set 	out 	by 	the 	hearing 	officer 	in his 	Notice 	of 	Dismissal
With 	Leave 	to Amend 	in 	the 	Santa Ana 	case .
I 	do 	not 	subscribe 	to 	the majority ' s 	view 	that 	"The 	cases 	before
us 	do 	not 	concern 	the 	right 	of 	an 	individual 	to 	present 	a 	grievance
under 	Government 	Code 	Section 	3543 ... . " 	While 	not 	explicitly 	so 	stated by
any of 	the 	charging parties, 	probably because 	it's 	so 	obvious, 	the
-14-

employees 	in each of 	these 	cases 	sought 	to have an employee organiza-
tion 	other 	than 	the 	duly 	selected 	exclusive 	representative 	represent
them in processing 	their grievances. 	Nothing 	on 	the record 	indicates,
and no 	one 	contends, 	that 	the 	charging parties 	in each of 	these cases--
minority 	non-exclusive 	employee 	organizations--thrust 	or 	forced 	their
representation on 	any of 	the 	grieving 	employees. 	Certainly 	the
employees 	knew 	that 	they 	could have 	sought 	representation 	in process-
ing 	their 	grievances 	by 	their 	exclusive 	representative 	but 	chose not
to 	do 	so. 	The majority has 	ignored the obvious 	reality that 	the
grievances 	were 	filed by 	individual 	employees 	who 	chose 	someone 	other
than 	the 	exclusive 	representative 	to 	aid and assist 	them in 	processing
the grievances.
Section 	3543.1(a) 	clearly 	states 	that 	individual 	employees may
present 	grievances 	independent 	of 	the 	exclusive 	representative.
Presentation of 	grievances 	necessarily 	contemplates 	effective 	presenta-
tion. 	Thus, 	individual 	employees may also 	seek assistance 	in this
presentation. 	The question 	is, 	may 	that 	assistance 	come 	from a
1
minority, 	rival, 	employee organization? 	I 	think not. 	To permit
representation by a minority, 	rival, 	organization would 	tend almost
necessarily 	to 	subvert 	the 	grievance 	procedure 	from an orderly 	process
whereby 	disputes 	are 	resolved 	into 	an 	organizing battleground 	strewn
with frivolous 	charges 	and 	countercharges. 	The 	individual's 	right 	to
present 	grievances 	and have 	assistance 	in 	doing 	so must be balanced
1 Nothing 	contained 	in 	this 	decision precludes 	an 	employee 	from
maintaining membership 	in a minority 	employee organization 	if 	the
employee 	so 	chooses.
• 1 5 -

against 	the 	stated purpose 	of 	the EERA 	of 	fostering harmonious 	employer-
employee 	relations 	by permitting 	a majority 	of 	the 	employees 	to 	select
an exclusive negotiating representative. 	This 	balance would be 	seriously
disturbed 	if 	rival 	employee 	organizations 	were 	permitted 	to 	represent
employees 	in 	a negotiating 	unit which had 	selected 	another 	organization
as 	the 	exclusive 	representative 	in 	their handling of grievances.
Nor 	do 	I 	subscribe 	to 	the majority's 	broad 	conclusion 	that 	Section
3543.1(a) 	does not either permit 	or require 	a distinction between
contractual 	and noncontractual 	grievances. 	An 	employee 	organization
which had not 	been party 	to 	the 	contract negotiations 	should not be
able, 	through a grievance, 	to 	subvert 	the 	intent of the 	exclusive
representative 	in 	reaching 	agreement with 	the 	employer 	on 	specific
language 	in any given contract 	clause. 	This 	consideration 	is 	obviously
not 	present where 	the 	employee's 	complaint 	does 	not 	concern a matter
covered by 	a 	contract between 	the 	employer 	and 	the 	exclusive 	representa-
tive. 	I agree, 	however, 	that the fact 	that 	in both Capistrano and
Santa Ana no 	contract 	existed between 	the 	employer 	and 	the 	exclusive
representative 	does 	not 	require 	a 	different 	result here.
The 	exclusive 	representative 	in both 	instances 	had only 	recently
been selected. 	The 	charging parties 	in both 	instances 	had 	competed
in the election, 	seeking 	to be 	selected as 	the exclusive representative,
and had 	lost. 	There had not been 	an 	opportunity for 	the 	employer 	and
the 	exclusive 	representative 	to negotiate 	their 	first 	contract. 	The
nascent negotiations 	between 	the parties 	in 	their 	initial 	efforts 	at
drawing up 	a 	contract 	could 	in no way be 	enhanced by 	the 	concurrent
processing 	of 	a 	grievance by a 	recently 	defeated organization.
-16-

I 	agree 	that 	in 	Santa Ana 	the 	hearing 	officer ' s 	motion 	to
particularize 	regarding 	the 	grievant ' s 	" friend 	and 	advisor " 	was
unduly broad. 	While 	a 	determination 	as 	to whether 	interrogation
about 	an 	employee ' s 	preference 	for 	or membership 	in 	one 	e mployee
organization or 	another 	interferes 	with, 	restrains 	or 	coerces
employees 	must 	be made 	in 	the 	context 	of 	all 	the 	surrounding 	circum-
stances, 2 this 	Board 	should not 	encourage 	conduct 	which may 	constitute
an unfair 	practice . 	Furthermore, 	mere membership 	in 	an employee
organization 	is 	not 	sufficient 	to 	find 	that 	an 	individual 	is 	an
agent 	of 	that 	organization; 	conversely, 	lack 	of membership 	does
not 	guarantee 	that 	an 	individual 	is 	not 	an agent. 	Since membership 	is
not 	determinative 	of 	an agency 	relationship, 	and 	since 	it 	is 	inadvisable
to 	invite 	conduct 	which might 	be 	unlawful, 	questions 	with 	respect 	to
membership 	should be 	inadmissable 	as 	a 	factor 	in 	determining whether
or not 	an 	agency 	relationship 	exists .
Finally, 	I 	agree 	with 	the 	dismissal 	of 	the 	unfair practice
allegation 	against 	the 	Santa Ana 	e mployer 	charging misrepresentation
of 	the 	right 	to 	representation of 	grievance 	proceedings . 	While 	the
facts 	in 	this 	case 	support 	the 	dismissal, 	I 	do not 	agree with any
broad principle 	that 	misrepresentations 	generally may not 	be 	unfair
practices 	under 	the 	EERA .
,7 	vJeril	, 	ou 	Cos sack 	Twohey, 	Member
2 See 	Blue 	Flash Exp ress, 	Inc . , 	109 NLRB 	591, 	594, 	34 LRRM 1384
(1954); 	see 	also 	Struksnes 	Construction Co ., 	Inc., 	165 NLRB 	1062,
6 5 	LRRM 	13 8 5 	( 19 6 7 ) .
-17-

)
)
)
)
)
)
)
)
)
)
)
)
)
)
______________ )
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
COURT PAPER
STATE OF CALIFORNIA
STD. 1 13 (REV. 8-72)
STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the matter of:
DIABLO VALLEY FEDERATION OF TEACHERS,
AFT LOCAL 1902,
Charging Party,
vs.
MOUNT DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-88
NOTICE OF DISMISSAL WITH LEAVE TO AMEND
NOTICE IS HEREBY GIVEN that the above-captioned Charge is
dismissed with leave to amend within ten calendar days. 	This action is taken
pursuant to Section 35007(a) of Title 8 of the California Administrative Code.
Said dismissal is based on the following grounds:
Once an employee organization has been recognized or certified
as the exclusive representative of an appropriate unit of employees, Govern-
ment Code Section 3543.1(a) prohibits the representation of members of that
unit in grievance proceedings by an employee organization other than such
exclusive representative. 	The rationale for this interpretation of Section
3543.1(a) is delineated in the enclosed Notice of Dismissal with Leave to
Amend in FACT vs. SANTA ANA UNIFIED SCHOOL DISTRICT, Case 	No. LA-CE-109,
which rationale is incorporated herein by reference.
The above action is taken pursuant to EERB Regulation 35007(a)
If the Charging Party chooses not to amend the Charge, it may obtain review
of the dismissal 	by filing an appeal to the Board itself within ten calendar
days after service of the Notice of Dismissal. 	Such appeal must be in writing
- 1 -

5
10
15
20
25
1
2
3
4
6
signed by t he party or i t s 	agents, 	and contain the facts 	and argumen t s upon
which t he appeal 	is based. 	EERB Regulation 35007(b).
WILLIAM P. 	SM ITH
General 	Coun se l
Dated : 	JUN 27 1977 	By:
ANGELA 	P ICKETT -E VANS
Hearing 	Of ficer	7
8 	II
9 	II
II
11 	II
12 	II
13 	II
14 	II
II
16 	II
17 	II
18 	II
19 	II
II
21 	II
22 	II
23 	II
24 	II
II
26 	II
27 	II
- 2 -
COURT PAPE R
STATE ~ CALIFORNIA
STD . 113 (REV . 8- 7 2)
OSP

)
)
)
)
__________)
r
"
--
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA 	•
In the Matter of
JAMES P. 	STEVENS, RHODA LUBNAU,
and FEDERATION OF ASSOCIATED
CLASSIFIEDS AND TEACHERS,
Charging Parties,
vs. 	WITH 	LEAVE
SANTA ANA UNIFIED SCHOOL DISTRICT,
Respondent.
)
.
)
)
)
Case No. 	LA-CE-109
)
) 	NOTICE OF DISMISSAL
TO 	AMEND
)
)
NOTICE IS HEREBY GIVEN that the above-captioned charge is dismissed
with leave to amend within ten calendar days. 	This action is taken pursuant
to Section 35007(a) of Title 8 of the California Administrative Code.
This charge is dismissed with leave to amend on the advice of the
General Counsel on the following grounds:
BACKGROUND
The charging parties, in their unfair practice charge, allege as
follows:
The Santa Ana Educators Association is the exclusive representative
of certificated employees of the respondent.—
1/
1 The 	Educational 	Employment 	Relations 	Board 	files, 	of which 	the Hearing
Officer takes official notice, 	show that the Santa Ana Educators Association/
CTA/NEA was certified as the exclusive representative on November 5, 	1976.
The charging parties also state, and the Educational Employment Relations Board
files appear to confirm, 	that no contract has been negotiated between the
exclusive representative and the school district as of the date of this charge.
- 1 -

'
On February 2, 	1977, 	the respondent denied the Federation of
Associated Classifieds and Teachers 	(FACT) 	the right to represent one of
its members in a grievance proceeding.
On March 11, 	1977, 	the respondent issued a newsletter 	(Staff
Bulletin No. 	5) which, 	according to the charging parties, states that only
the exclusive representative may represent or act as counsel to employees
in grievance proceedings.
DISCUSSION
Government Code Section 3543.1(a) 	states that employee organizations
shall have the right to represent their members 	in their employment relations
with public school employers, 	except that once an employee organization is
recognized or certified as the exclusive representative of an appropriate unit,
only that employee organization may represent 	that unit in their employment
relations with the public school 	employer2 	Government Code Section 3543,
however, allows individual employees at any time to present grievances to the
employer without 	the intervention of the exclusive 	representative3. 	The
troublesome issue is whether an individual employee can select a non-exclusive
employee organization as his/her representative in a grievance proceeding, 	or
2In 	Fremont Unified School District, 	EERB Decision No. 	6 	(December 16, 	1976),
the Board held that "employer-employee relations 	include, 	at the least...the
processing of grievances."
3Section 	3543 states that "any employee may at any time present 	grievances
to his 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."
- 2 -

<I
--.
whether an employee is forced either to represent him/herself or have the
exclusive representative act as the employee's representative.
The National Labor Relations Board and the federal courts have
faced this issue in interpreting similar language in the National Labor
Relations Act with varied results. 	(See 9 ALR 2d 696, Anno., Rival Union's
4/Right to Act.) 	The pertinent provisions of Section 9 ( a ) — of the National
Labor Relations Act, as amended, reads as follows:
Provided, that any individual employee or group
of employees shall have the right at any time to
present grievances to their employer and to have
such grievances adjusted, without the intervention
of the bargaining representative, 	as long as the
adjustment is not inconsistent with the terms of
a collective bargaining contract or agreement then
in effect; Provided further, that the bargaining
representative has been given opportunity to be
present at such adjustment.
Prior to 1947, instead of the above two clauses, the NLRA contained
a single proviso, as follows:
Provided, that any individual employee or group
of employees shall have the right at any time to
present grievances to their employer.
Legislative history of the original proviso indicates that it was
not intended to permit the defeated or a minority union any rights to represent
employees. 	The proposed bills in Congress originally contained, at the end of
the proviso, the words, "through representatives of their own choosing."—
5/
4 29 	USCA 	Section 	159(a).
5Hearings 	before the Senate Committee on Education and Labor on S. 	1958,
74th Cong., 1st Sess., p. 4. 	Hearings before the House Committee on Labor,
on H.R. 6288,. 74th Cong., 1st Sess., p. 4..
-3-

J 	)
The NLRB in Federal Telephone and Radio Co., 107 NLRB 649, 33 LRRM 1203 (1953)
stated that "these words were eliminated in order to avoid the implication
that the 'individual' or 'group' might select any representative it wished."
The NLRB also is of the opinion that the amended version of Section 9(a) of
the NLRA does not accord an employee the right to present his grievance through
a rival union, but that "these changes were directed only toward assuring the
individual grievant the right to confer with his employer without participation
of the certified bargaining agent." 	Federal Telephone and Radio Co., 	107 NLRB
at 653.
Thus, the National Labor Relations Board has been consistent through
the years in holding that "individual employees are permitted to present
grievances to their employer by appearing in behalf of themselves, although
not through any labor organization other than the exclusive representaitve."
Hughes Tool Co., 56 NLRB 981 (1944). 	See also Meat and Provision Drivers
Union, Local 626, 115 NLRB 890, 892, 37 LRRM 1421 (1956).
The leading federal appeals court decision in support of the NLRB
is Hughes Tool Co. v. NLRB, 147 F 2d. 69, 15 LRRM 852 (5th cir. 1945). 	The
court, in enforcing in part the NLRB's order in Hughes Tool, supra, stated
that "we think an inexperienced or ignorant griever can ask a more experienced
friend to assist him, but he cannot present his grievance through any union
except the [exclusive] representative."
The Court of Appeals for the Second Circuit, however, in Douds v.
Retail, Wholesale Dept. Store Union, 173 F 2d. 764, 23 LRRM 2424 (1949), held
that an individual employee could select a representative to present his
grievance and this representative may even be a minority union at the company*
-4-

1..,l
"
'
This holding has not been followed by the National Labor Relations Board
(see Federal Telephone and Radio Co., 107 NLRB at 653, note 9, and Meat and
Provision Drivers Union, 115 NLRB at 892) and was sharply criticized in
Sherman, The Individual and His Grievance - Whose Grievance Is It? 	11 Pitt.
L. Rev. 35, 54-55 (1949).-
6/
Construing the pertinent provisions of Section 3543 of the EERA in
a manner similar to the National Labor Relations Board in Federal Telephone
and the Fifth Circuit Court of Appeals in Hughes Tool v. NLRB better effectuates
the policy and intent of the EERA. 	That intent is, should the employees so
choose, to provide exclusivity to one employee organization in the area of
employer-employee relations. 	This conclusion is not only consonant with the	...,,,.'
language of the statute, but it also provides stability in the area of
grievance procedures.
As stated by the court in Hughes Tool v. NLRB, supra, "it was not
thought good to allow grievance hearings to become clashes between rival unions."
To allow a rival employee organization to represent an employee in a grievance
proceeding opens to the rival employee organization the opportunity of
exploiting grievances apart from their merits to show its superiority as a
bargaining agent in the hope of ultimately displacing the exclusive representative.
In self—defense, 	the exclusive representative would then be forced to support
what may be ill-founded grievances in order to prevent impairment of its
prestige. 	The grievance proceeding would become a campaign forum or organizing
6The 	Second Circuit appears to retreat somewhat from its its view as expressed
in Douds in National Labor Relations Board v. Lundy, 316 F 2d. 921, 53 LRRM 2106
(1963), but the court expressly refused to determine the continuing validity of
the Douds case.
-5-

device and the process of grievance adjustment would lose its character as
a responsible means of settling differences.
It is noted that the prohibition of representation through an
employee organization other than the exclusive representative does not
preclude representation through others, however. 	This was expressly so
stated in Hughes Tool v. NLRB, supra, where the court suggested that a
grievant might enlist the aid of "a more experienced friend" which would
include, presumably, retaining private counsel. 	It is unclear from the
unfair practice charge in the instant case whether the employer is allegedly
denying to employees their right to present their own grievances through
representatives not associated or in any way connected with FACT or any other
rival employee organization. 	The charging parties are given leave to amend
in this regard.
If the charging parties choose not to amend the charge, they may
obtain a review of the dismissal by filing an appeal to the Board itself
within ten (10) calendar days after service of this notice of dismissal.
Such appeal must be in writing, signed by the parties or their agent, and
contain facts and argument upon which the appeal is based. 	EERB Regulation
35007(b).
Dated: 	May 25, 1977 	WILLIAM P. 	SMITH
General Counsel
Jeff Paule
Hearing Officer
-6-

'
)
)
)
)
)
)
)
)
)
)
)
)
)
)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
COURT PAPER
STATE OF CALIFORNIA
STD. 1 13 (REV. 8-72)
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the matter of:
CAPISTRANO UNIFIED FEDERATION
OF TEACHERS, LOCAL 2312,
Charging Party,
vs.
CAPISTRANO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-91
NOTICE OF DISMISSAL
NOTICE IS HEREBY GIVEN that the above-captioned charge is dismissed.
This action is taken pursuant to Section 35007(a) 	of Title 8 of the
California Administrative Code.
This charge is dismissed on the advice of the General Counsel on the
following grounds:
On June 20, 	1977 the above-captioned charge was dismissed with leave
to amend. 	A copy of this dismissal is attached hereto and made a part hereof
On 	June 29, 	1977 	the charging party filed an amendment in which the
allegations contained in the original charge were repeated with the
addition of the following sentence: 	"Mr. 	Quirk had requested the assistance
of Lee Weagley and/or Joe Shofner, 	certificated employees within the
bargaining unit".
The dismissal with leave to amend stated, 	in part, 	that "a grievant

1 	might enlist the aid of 'a more experienced friend' which would include,
presumably, retaining private counsel, but would exclude anyone associated
or connected, either directly or indirectly, with an employee organization
other than the exclusive representative."
2
3
4
5 	It appears from the face of the charge that Mr. Lee Weagley is the
President of the Capistrano Federation of Teachers, Local 2312 and that
Mr. Joe Shofner is the Local's Grievance Coordinator. 	Both individuals
are designated as agents of the charging party.
6
7
8
9 	Accordingly, it is found that the charge remains defective and is
therefore DISMISSED.	10
11
12 	The charging party may obtain a review of the dismissal by filing an
appeal to the Board itself within ten (10) calendar days after service
of this notice of dismissal. 	Such appeal must be in writing, signed by
the party or its agent, and contain facts and argument upon which the
appeal is based. 	EERB Reg. 35007(b).
13
14
15
16
17
18
19 	Dated: 	June 30, 1977
20
21
22
23
24
25
26
27
WILLIAM P. SMITH, JR.
GENERAL COUNSEL
By:
Jeff Paule
Hearing Officer
COURT PAPER
STATE OF CALIFORNIA
STD. 1 13 (REV. B-72)

•
)
)
)
)
)
_____________ )
)
)
)
)
_____________ ,)
)
)
)
)
)
_____________ )
)
STATE 	OF CALIFORNIA
DECISION OF THE 	EDUCATIONAL
EMPLOYMENT RELATIONS 	BOARD
ORDER
DIABLO 	VALLEY FEDERATION OF TEACHERS,
AFT LOCAL 	1902,
Charging 	Party,
vs.
MOUNT DIABLO UNIFIED 	SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
JAMES P. 	STEVENS, 	RHODA LUBNAU, 	AND
FEDERATION OF ASSOCIATED CLASSIFIEDS
AND TEACHERS,
Charging 	Party,
vs.
SANTA ANA UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
CAPISTRANO 	UNIFIED 	FEDERATION 	OF
TEACHERS, 	LOCAL 2312,
Charging 	Party,
vs.
CAPISTRANO UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 	SF-CE-88
EERB 	Decision No. 	44
Case No. 	LA-CE-109
December 	30, 	1977
Case No. 	LA-CE-91
The Educational Employment Relations 	Board directs 	that:
(1) 	The hearing officer's partial dismissal of the charge, 	as
amended, 	by Federation of Associated Classifieds 	and Teachers 	against
the Santa Ana Unified School District, 	is 	sustained.

(2) 	The hearing officer's 	order of particularization of
the 	amended 	charge by Federation 	of Associated Classifieds 	and
Teachers 	against 	the 	Santa Ana Unified School District, 	is 	sustained
only to 	the 	extent of requiring 	the 	identity, 	by name only, 	of grievant's
"friend 	and 	advisor."
(3) 	The 	dismissal 	of 	the 	charge by Diablo Valley Federation of
Teachers 	against 	the Mt. 	Diablo Unified School District, 	is 	sustained.
(4) 	The 	dismissal of 	the 	charge by Capistrano Unified Federation
of Teachers 	against 	the Capistrano Unified School District, 	is 	sustained.
Educational 	Employment 	Relations 	Board
Stephen Barber, 	Executive Assistant
William P. 	Smith, 	General Counsel
-2-