Hanford Joint Union High School District Board of Trustees (PERB 0058E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HANFORD HIGH 	SCHOOL 	FEDERATION 	OF 	TEACHERS,
AFT, AFL-CIO,
Charging 	Party,
v.
HANFORD 	JOINT 	UNION HIGH 	SCHOOL 	DISTRICT
BOARD OF TRUSTEES,
Respondent.
)
) 	Case No. 	S-CE-71
PERB Decision 	No.58
June 	27, 1978
)
)
)
Appearances: 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	and Roger) 	for Hanford High 	School 	Federation of Teachers,
AFT, 	AFL-CIO; 	James B. 	Orton, 	Attorney 	(Kings County Counsel) 	for
Hanford 	Joint 	Union High 	School 	District 	Board 	of Trustees.
Before Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, 	Members.
OPINION
The Hanford High School 	Federation of Teachers, 	AFT, 	AFL-CIO
(hereafter Federation) 	is 	appealing 	the 	dismissal 	of an unfair
practice 	charge 	it 	filed 	against 	the Hanford Joint 	Union High
School District Board of Trustees 	(hereafter District).
FACTS
The 	charge before 	the 	Board 	is 	the 	third 	in a related series
brought by the Federation. 	It was 	filed on June 	19, 	1977, 	alleging
1The 	antecedent procedural history 	is noteworthy. 	The
Federation filed its 	original 	charge on May 19, 	1977, 	alleging 	the
same 	facts 	as 	in 	the 	current 	charge, 	but 	essentially claiming 	that
the District 	failed 	to meet 	and negotiate 	in good 	faith with 	the
Federation 	in violation of 	section 	3543.5(c). 	The hearing officer
dismissed with 	leave 	to 	amend 	on 	the 	ground 	that 	the 	duty 	to
negotiate ran only 	to 	an 	exclusive 	representative. 	An amended
charge was 	filed on June 	15, 	1977, 	repeating 	the alleged 	facts 	and
violations 	asserted 	in the original 	charge, 	but adding a 	charge (cont.)

that 	the 	District had 	implemented 	the 	1977-78 	school 	calendar 	in
April 	1977 without meeting 	and 	conferring with 	the 	Federation 	at
a 	time when 	there was no 	exclusive representative 	for 	the
certificated 	employees. 	The 	charge 	asserts violation 	of
section 3543.5(b) 	and 3543.1(a) 	of the Educational Employment
Relations Act 2 (hereafter EERA).
On May 16, 	1977, 	prior 	to 	the filing of the charge, 	the
District 	granted voluntary recognition 	to 	the Hanford High 	School
Faculty Association 	(hereafter Association) 	as 	the 	exclusive
representative 	of an 	appropriate 	unit 	of 	certificated 	employees.
The Association's 	request 	for recognition 	as 	the 	exclusive
representative had been conspicuously posted pursuant to rule 33060 3/.
This 	notice 	provided 	for 	a 	period 	of 	time 	during which
another 	employee 	organization 	could 	intervene, 	upon making 	the
requisite 	showing 	of 	interest 	in 	the 	unit 	the Association petitioned
for, 	or 	in another unit claimed to be appropriate. 	The Federation
did not 	intervene, or 	otherwise raise 	a question concerning
representation which would 	impede 	voluntary recognition of 	the
Association 	as 	exclusive 	representative by 	the District.
Subsequent 	to recognition of the Association, 	the Association
and 	the 	District 	entered 	into 	a 	collectively negotiated 	agreement
for the 1977-78 school year, 	effective July 1, 	1977.
(cont.)
against 	the Association which had become 	recognized 	as 	having
"failed 	in 	its 	responsibilities 	to unit members...." 	This 	amended
charge was 	dismissed without 	leave 	to 	amend 	for reason 	of 	late
filing. 	The Federation filed a new charge on July 	8, 	1977, 	which
seemed to 	duplicate 	the dismissed, 	amended charge. 	This was 	also
dismissed 	for 	late 	filing. 	The Federation appealed 	this 	later
dismissal 	to 	the Board itself on July 19, 	1977. 	On the 	same day
it 	filed its 	third charge, 	the 	subject of the current appeal. 	The
Board 	sustained 	the 	dismissal 	of 	the 	second 	charge 	on 	February 	1,
1978.
2Gov. 	Code sec. 	3540 et seq.
3/ Cal. Admin. Code, tit. 8, sec. 33060 (subsequently amended
on January 16, 	1978) 	which stated:
(a) 	The 	employer shall post 	a notice of the
request 	for 	recognition within 	five workdays
following 	receipt 	of 	the 	request. 	(cont.)
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The 	Federation 	alleges 	that 	the 	District violated EERA
section 	3543.5(b) 	by 	denying rights 	guaranteed 	to 	the Federation
by section 3543.1(a).
These sections provide, 	in pertinent part:
Section 3543.1. 	(a) 	Employee organiza-
tions 	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
(cont.) 	(b) 	The notice 	shall 	be posted conspicuously
on all 	employee bulletin boards 	in each 	facility
of 	the 	employer 	in which members 	of the unit
claimed 	to be 	appropriate 	are 	employed.
(c) 	The notice 	shall remain posted 	for
15 workdays.
(d) 	The notice 	shall 	contain the 	following
information:
(1) 	A statement 	that 	the 	employer has
received 	from 	the 	named 	employee 	organization 	a
request 	to be recognized as 	the 	exclusive
representative 	of 	the 	employees 	in 	the 	described
unit based on a claim that 	a majority of 	the
employees 	in the unit wish 	to be 	represented by
the 	employee 	organization;
(2) 	The name and address of the employee
organization filing 	the request 	for recognition;
(3) 	A description of the grouping of
jobs 	or positions which constitute 	the unit
claimed 	to be 	appropriate;
(4) 	The date the request was received
by 	the 	employer;
(5) 	The date the notice was posted;
(6) 	A statement 	that 	any other employee
organization desiring 	to 	represent 	any of 	the
employees 	in the unit 	described 	in 	the request 	for
recognition has 	the right within 	15 workdays
following 	the 	date of posting 	to 	file an 	interven-
tion supported by at 	least 	30 percent 	of 	the
employees 	in a unit 	claimed 	to be 	appropriate.
(e) 	The employer 	shall 	send a copy of the
notice 	to 	the regional 	office 	concurrent with
the posting of the notice.
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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.
Section 3543.5. 	It 	shall be unlawful
for a public 	school 	employer 	to:
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter. •
The 	hearing officer, 	relying on 	San Dieguito Union High School
District 	(9/2/77) 	EERB Decision No. 	22, 	determined that a
nonexclusive 	organization does not 	enjoy 	the right 	to 	"meet 	and
consult," 	and dismissed 	the 	charge.
DISCUSSION
The 	authority 	for 	filing an unfair practice 	charge 	is 	found
in section 3541.5(a). 	The 	grounds 	for 	such charges 	are 	contained
Gov. 	Code sec. 	3541.5(a) which states:
3541.5. 	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 juris-
diction of the board. 	Procedures 	for 	investigat-
ing, 	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;
(2) 	issue a complaint against 	conduct 	also
prohibited by 	the 	provisions 	of 	the 	agreement
between 	the 	parties 	until 	the 	grievance machinery 	(cont.)
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in 	section 	3543.5.5 The 	Federation 	specifically 	alleges 	a violation
(cont.)
of the agreement, 	if it 	exists 	and covers 	the
matters 	at issue, 	has been exhausted, 	either by
settlement or binding arbitration. 	However,
when 	the 	charging party 	demonstrates 	that resort
to 	contract 	grievance procedure would be 	futile,
exhaustion 	shall not be necessary. 	The board
shall 	have 	discretionary jurisdiction 	to 	review
such 	settlement 	or 	arbitration 	award reached
pursuant 	to 	the 	grievance machinery 	solely 	for
the purpose 	of determining whether 	it 	is 	repugnant
to 	the purposes 	of this 	chapter. 	If the board
finds 	that 	such 	settlement 	or 	arbitration 	award
is 	repugnant to the purposes of this chapter, 	it
shall 	issue 	a complaint 	on 	the basis 	of a 	timely
filed charge, 	and hear and decide 	the 	case on 	the
merits; 	otherwise, 	it shall dismiss the charge.
The Board 	shall, 	in determining whether 	the
charge was 	timely 	filed, 	consider 	the 	six-month
limitation 	set 	forth 	in 	this 	subdivision 	to have
been 	tolled 	during 	the 	time 	it 	took 	the 	charging
party 	to 	exhaust 	the 	grievance machinery.
Gov. 	Code sec. 	3543.5. which states:
3543.5. 	It 	shall be unlawful 	for a public 	school
employer to:
(a) 	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.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in good
faith with 	an exclusive 	representative.
(d) 	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.
(e) 	Refuse 	to participate 	in good faith in the
impasse procedure 	set 	forth in Article 	9
(commencing with Section 3548).
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of 3543.5(b). 	In turn, 	the right the Federation claims was 	denied
them is 	that provided by 	section 3543.1(a) 	quoted above.
It 	is unarguable 	that 	section 3543.1(a) 	grants 	some
representation 	rights 	to 	a nonexclusive 	employee 	organization prior
to 	the 	time 	an exclusive 	representative 	is 	recognized or 	certified.
The nature and extent 	of 	those 	rights 	have not been 	clearly
articulated by 	the Board 	in any of its 	decisions 	to 	date. 	In
San Dieguito, 	a majority of 	the 	Board as 	then constituted 	did hold
that 	the 	representation rights 	of 	a nonexclusive-representative
complainant under 	section 3543.1(a), 	do not include the right to
"meet 	and 	consult." 	It was 	this 	particularization which 	led 	the
hearing officer 	to his 	conclusion 	in 	this 	case.
Since 	this 	appeal 	deals 	only with the new charge 	filed on
July 19, 	1977, 	the 	issue raised is whether the Federation has a
right to bring an unfair practice 	charge based on a 	denial 	of 	its
representational 	rights 	at 	a 	time when 	another 	organization has
already been 	established 	as 	the 	exclusive 	representative 	of 	the
employees. 	Under the plain meaning of 3543.1(a), 	the Federation
after May 16, 	1977, 	no 	longer had 	the right 	to represent 	these
members 	in 	their 	employment 	relations with 	the 	employer.
We 	find no 	ambiguity 	in 	the 	statutory 	language: 	"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." 	(Emphasis 	added.)
Whatever 	representation 	rights 	the 	Federation may have had
with respect 	to 	these members 	prior 	to 	the 	establishment 	of an
exclusive representative, 	it was 	ousted of those rights which
obtained 	solely 	to 	the 	exclusive representative. 	Among 	those
rights, 	we believe, 	is 	the right to 	file an unfair practice 	charge
over matters 	involving wages, 	hours 	of employment, 	and other 	terms
and 	conditions 	of 	employment.
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Such 	a 	conclusion 	is 	consistent with the principle 	of
exclusive 	representation 	set 	forth 	in 	section 	3540 	of 	the 	EERA
which 	states 	the 	legislative 	purpose 	to be 	"to 	promote 	the
improvement 	of personnel 	management 	and 	employer-employee 	relations
in 	the 	State 	of California by providing 	a uniform basis 	for
recognizing 	the right 	of public 	school 	employees 	to 	"...select 	one
employee 	organization 	as 	the 	exclusive representative 	of 	the
employees 	in an appropriate unit." 	(Emphasis added.)
To hold 	that 	the 	Federation 	in 	this 	instance 	could pursue 	a
representation-oriented 	charge 	after 	the 	establishment 	of 	the
Association as 	the 	exclusive 	representative would 	tend 	to 	undermine
the 	right 	of 	the 	employees 	to negotiate 	collectively 	through a
representative of their 	own choice. 	Furthermore, 	the need 	for
stability 	in 	employee 	organizations 	precludes 	encouraging 	the
rivalry 	among various 	employee 	organizations 	that would be 	the
inevitable 	consequence 	of a requirement 	that 	the 	employer 	deal
with 	an organization 	other 	than 	the 	exclusive 	representative.
As 	the United States 	Supreme 	Court has 	said, 	the obligation of
dealing with 	the 	exclusive 	representative 	"exacts 	the negative
duty 	to 	treat with no 	other."8 Thus 	the PERB has 	even excused
employers 	from the 	duty 	to permit 	a minority organization 	to
process 	an 	individual 	grievance9, 	though 	the 	statute has 	given 	the
right to the individual employee to represent himself.10
6 J . I . 	Case v. 	NLRB 	(1944) 	321 U.S. 	332. 	See also Gorman,
Labor 	Law, 	pp. 	374-381
Town of Manchester 	(1968) 	Connecticut 	State 	Board of Labor
Relations, 	No. 	813; 	City of Milwaukee 	(1968) Wisconsin Employment
Relations Board, 	No. 	8622; 	City of Grand Rapids 	(1968) 	Michigan
Employment Relations Commission, 	No. 	194; 	Emporium Capwe11 Co.
v. 	Western Addition Community Organization 	(1975) 	420 U.S. 	50;
Lullo v. 	Fire Fighters Local 1066 	(1970) 	55 N.J. 	409.
8 Medo Photo Supply Corporation v. 	NLRB 	(1944) 	321 U.S. 	678.
Mount 	Diablo Unified 	School 	District, 	Santa Ana Unified
School~District, 	Capistrano 	Unified School 	District 	(12/30/77)
EERB Decision No. 	44, 	and cases 	cited therein.
1 0 Gov. 	Code sec. 	3543.
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We 	do not believe 	that 	section 	3541.5(a) 	gives unlimited
rights 	to 	an 	employee 	organization 	to 	file 	an unfair practice
charge. 	The 	statute 	considers 	certain 	limitations 	on 	that right.
Some 	of 	those 	limitations 	are 	found within 	section 	3541.5(a)
itself. 	Thus, 	the 	Board may not 	issue a complaint 	on an alleged
practice 	occurring more 	than 	six months 	prior 	to 	the 	filing of 	the
charge 	or 	issue 	a 	complaint 	against 	conduct 	prohibited by 	a
collective 	negotiating 	agreement 	until 	the 	grievance machinery 	of
that agreement, 	if it exists, 	has been exhausted.
We consider the provisions 	of section 3543.1(a), 	which
restricts 	representational 	rights 	to 	a 	certified or recognized
organization, 	as 	yet 	another 	limitation on 	the broad authority to
file an unfair 	charge. 	The 	two 	sections 	should be 	read as mutually
complementary. 	Since 	the principle 	of exclusivity 	is vital 	to 	the
viable 	negotiating relationship 	and 	is 	an underlying basic 	tenet 	of
the EERA, 	such 	a 	construction would be 	in harmony with the
legislative 	intent.
There would 	still 	remain 	in 	the 	recognized 	or 	certified
organization 	an 	opportunity 	to remedy a past 	act 	of 	the 	employer
either 	through a charge of its 	own, 	if timely, 	or through 	the
collective 	negotiating process. 	On the 	other hand, 	permitting 	the
intercession of 	a minority 	organization raises 	not 	only 	the
possibility of 	the 	type 	of mischief referred 	to 	earlier, 	but
could very well 	interfere with 	the right 	of 	the 	exclusive 	represen-
tative to determine, 	in its own best judgment, 	those matters 	on
which it 	decides 	to negotiate.
The 	Federation relies 	on 	the 	fact 	that 	the 	employees 	in 	the
unit 	did not 	have 	an exclusive 	representative 	at 	the 	time 	the 	acts
complained of occurred. 	However, 	this 	argument misses 	the point.
The Federation did not assert 	its 	rights 	at 	that 	time. 	This
charge was 	not 	filed until 	after 	another 	organization had been
granted exclusivity. 	It was 	this 	act 	of accession 	that 	constituted
the bar 	to 	the 	current 	action.
The 	dismissal 	of 	the 	charge 	filed by 	the Federation 	should be
sustained.
We 	expressly 	refrain 	from commenting 	on 	the 	extent 	to which 	a
minority 	organization may 	otherwise 	participate 	in 	the 	unfair
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practice 	process, 	and 	this 	opinion 	should not 	be 	construed 	to go
beyond 	the nature 	of 	the 	case 	presented by 	these 	facts .
ORDER
The 	hearing 	officer's 	dismissal 	of 	the 	unfair practice 	charge
filed by 	the 	Hanford High 	School 	Federation of 	Teachers, 	AFT,
AFL-CIO, 	against 	the 	Hanford Joint 	Union High ·school District 	Board
of 	Trustees, 	alleging violation 	of 	Government 	Code 	sections 	3543 . l(a)
and 	3543.3(b) 	is 	sustained.
Chairperson
Jerilou Cossack Twohey, 	Member, 	dissenting:
My 	colleagues 	hold 	that 	selection of 	an 	exclusive 	representative
bars 	a 	minority 	organization 	from 	thereafter 	filing 	an unfair practice
charge 	about 	a 	prior 	infringement 	of 	its 	right 	to 	represent 	its
members . 	I 	disagree .
I 	share 	the 	concern 	of 	my 	colleagues 	that 	a 	minority organiza-
tion will 	use 	the 	Board ' s 	processes 	to 	undermine 	a 	duly 	selected
exclusive 	representative. 	However, 	I 	do not 	agree 	that 	the way
to 	prevent 	such an 	abuse 	is 	to 	bar a 	minority organization 	from
asserting 	that 	rights 	granted 	it 	by 	the 	statute 	have 	been 	abridged.
The 	graveman of 	my 	disagreement with my 	colleagues ' 	decision 	is 	that
it 	ignores 	the more 	general 	obligation of 	the 	Board 	to 	protect 	access
to 	its 	enforcement powers . 	In addition, 	such a 	bar 	is 	unnecessary.
The 	view of 	the 	majority will 	not 	foster 	the 	prerogatives 	of
the 	exclusive 	representative, 	is 	unneeded 	to police 	infringements
of 	the 	prerogatives 	of 	the 	exclusive 	representative, 	either 	creates
an 	illogical 	cleavage 	between 	charges 	filed before 	and 	after 	deter-
mination 	of 	the 	exclusive 	r ,epresentative 	or 	has 	no 	practical 	effect,
is 	unsupported by 	labor precedent 	elsewhere, 	raises 	serious 	constitu-
tional 	questions, 	and 	strains 	the 	clear 	language 	of 	the 	EERA .
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The 	ability of 	the 	exclusive 	representative 	to 	represent 	the
negotiating unit 	is 	not 	fostered by 	this 	decision. 	If 	the 	instant
charge were meritorious, 	the employer here will have been permitted
to 	trample rights 	guaranteed by 	the EERA. 	No benefit accrues 	to 	an
exclusive 	representative whose 	initial 	dealings with 	the 	employer
occur 	immediately after 	the 	employer has 	been permitted 	to 	flout
statutory rights with 	impunity. 	Rather, 	the employer will 	be
encouraged 	to 	treat 	its negotiating obligations with 	the 	exclusive
representative with 	similar 	disregard. 	The 	decision 	today 	discourages
the 	employer 	from dealing 	in 	good 	faith with 	the very 	exclusive
representative my colleagues 	seek 	to protect. 	Parties 	are 	shown 	that
they may 	shirk 	their 	responsibilities 	if 	they can discover 	a 	tech-
nicality 	to 	escape 	the 	consequences 	of 	their violation.
The prerogatives 	of an 	exclusive representative may be pro-
tected without 	sacrificing 	other 	rights 	granted by 	the EERA. 	The
danger 	to 	the 	exclusive representative 	to be avoided is 	two-fold:
First, 	permitting a minority organization 	to undermine 	the 	exclusive
organization by utilizing 	the Board's processes; 	and second, 	per-
mitting an employer 	to negotiate, 	or even treat, 	with a minority
organization 	once 	the 	exclusive representative has 	been 	selected.
The 	first 	danger may be 	avoided 	if 	either 	the 	employer 	or 	the
exclusive representative, 	or 	the conduct of 	the minority organiza-
tion itself, 	demonstrates 	that 	the unfair practice charge 	is 	an
improper 	attempt 	to negotiate with the 	employer, 	or 	is 	a political
platform from which 	to harass 	the exclusive representative. 	Dis-
missal 	of 	such a 	specious 	charge would be 	readily 	forthcoming.
The 	second 	danger may be 	avoided by 	fashioning 	a remedy 	to 	any
meritorious 	unfair 	practice 	charge 	filed by 	a minority organiza-
tion which would 	require 	acknowledgement by 	the 	employer 	of 	its
wrongdoing but 	stop 	short 	of compelling 	the 	employer 	to 	treat
with 	the minority 	organization.
The majority does 	not 	discuss what 	should or will be 	done about
charges 	over 	infringement 	of a minority organization's 	right 	to
represent 	its members 	filed prior 	to 	the 	selection of an 	exclusive
representative. 	Processing 	a 	charge 	entails 	preparation of the
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testimony and argument 	to a hearing officer, 	and appeal of an
unfavorable decision to the Board. 	The necessary involvement of
a minority organization with members 	of the negotiating unit 	in
processing a case is 	the 	same regardless of whether the charge is
filed before or 	after 	the 	selection of an 	exclusive representative.
To avoid this 	involvement, 	which the majority considers undesirable,
the reasoning of 	the majority requires 	that 	selection of an exclusive
representative would trigger 	dismissal of a l l pending charges 	over
negotiable matters brought by minority organizations. 	Such a result
leaves minority organizations with rights 	for which there 	is no
effective protection and 	that 	is 	tantamount 	to no rights 	at 	a l l .
Conversely, 	if the majority intends 	to permit such charges 	to be
processed, 	the pressing need for 	today's 	decision 	is wholly unclear,
since 	it 	will 	have 	l i t t l e 	practical 	effect.
The majority reasons 	that mere charges 	filed by minority organi-
zations 	after 	determination of 	the 	exclusive 	representative 	derogate
the right of 	the exclusive representative 	to be 	sole representative
of the unit. 	However, 	the majority is unable to 	cite federal or
state 	authority holding 	that 	in particular, 	filing 	charges 	of
unfair practices 	threatens 	exclusivity, 	or, 	in general, 	that an
employer 	is 	precluded from every type of dealing with employees 	or
employee organizations other 	than the exclusive representative.
In fact, 	federal precedent is 	to the contrary. 	In Alfred M. 	Lewis,
The cases relied upon by the majority are not on point. 	J. I. Case
holds only that an employer violates the NLRA by disregarding the exclusive
representative and negotiating with individual employees on wages, hours and
working conditions. 	Medo Photo Supply Corporation applies J. I. Case to a
situation in which the employer recognized a union as bargaining agent and
then proceeded to bargain directly with employees. 	In Emporium Capwell Co.
the Court held an exclusive representative would be unduly hampered by allowing
a group of minority employees to bargain with their employer on issues of
employment discrimination. 	In Lullo it was held that a statute providing for
exclusive representation of public employees chosen by majority vote does not
violate the New Jersey State Constitution authorizing public employees to
organize and present grievances through representatives "of their own choosing."
Grand Rapids determined that registered nurses are true professionals entitled
to separate representation from non-professionals. 	Manchester held that an
election petition filed within one month of the time contract negotiations
normally begin is timely.
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Inc.2 individual 	employees 	prevailed 	in 	their 	allegations 	that 	the
employer 	had unlawfully refused 	to 	bargain with 	the 	exclusive repre-
sentative notwithstanding 	the 	fact 	that 	their 	exclusive representative
had arbitrated 	the 	issue, 	lost, 	and did not pursue 	the matter with
the National 	Labor Relations 	Board.
The majority's 	failure 	to balance competing rights 	is 	subject
to 	serious 	constitutional 	challenge. 	The United States 	Supreme
Court 	recognizes 	that 	exclusive representation 	for 	purposes 	of
negotiating 	and 	administering 	collective 	agreements 	unavoidably
infringes 	First Amendment rights 	to be 	free of 	forced or 	prohibited
association. 	Consequently, 	application of the principle of exclu-
sivity 	can only be justified where 	it 	is 	demonstrably required to
secure 	the 	important 	government 	interest 	in 	labor 	peace.4 The
United 	States 	Supreme 	Court has 	consistently 	struck 	down 	extension
of 	the 	exclusivity principle where 	it 	is not necessary 	to 	foster
stable 	collective negotiations. 	It 	can hardly be 	argued 	that 	a
prohibition 	on 	filing 	of unfair 	charges 	by minority 	organizations
is 	required 	to 	secure 	labor 	peace when 	the National 	Labor Relations
Board permits 	"any person" 	to bring "[a] 	charge 	that any person
has 	engaged 	in or 	is 	engaging 	in any unfair 	labor 	practice...."
The 	decision of 	the majority runs 	counter 	to 	the 	clear 	and
simple 	language 	of 	the EERA. 	Minority employee organizations 	have
the right 	to 	represent 	their members 	in 	their 	employment relations
until 	an 	exclusive representative 	is 	selected. 	They may protect
2(1977) 229 NLRB No. 116.
3See Abood v. Detroit Bd. of Education (1977) 431 U.S. 209, 234.
4Abood, supra, at 222, 224.
5Abood, supra, at 232, 234, 235 (union shop clause in public school collective
agreement may not constitutionally compel contributions to an ideological cause;
constitutional application limited to service charge for collective bargaining,
contract administration, and grievance adjustment.
Rules and Regulations and Statements of Procedure, Series 8, of the
National Labor Relations Board (1973) section 102.9.
7Section 3543.1(a).
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that right by filing an unfair practice charge subject only to 	the
constraints of a six month statute of limitations and a deference
to arbitration provision. 8
For the reasons 	set forth above, 	I would reverse the general
counsel's dismissal of this unfair practice charge.
8Section 	3541.5(a)
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