Shasta Union High School District (PERB 0284E)

STATE OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SHASTA 	SECONDARY 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
LESTER D. 	JENSEN, JON K. 	ROBERTS,
ANNE 0. 	SILVEIRA, 	PETER HOUTMAN,
DANNY ABBOTT, 	FRANCIS SPRINGER,
HENRY KRANTZ, 	CHARLES CRAWFORD,
KENNETH WAGNER, 	ROBERT WALKER,
RUAL ROSE, 	DAVID FRAZER, 	LYNETTE
ENGLERT, VIRGIL SMITH and
VICTOR VALDES,
Respondents.
Case 	No. 	S-CE-535
PERB Decision No. 	284
February 14, 	1983
Appearances; 	Kirsten L. 	Zerger, 	Attorney 	for 	Shasta Secondary
Teachers Association, 	CTA/NEA.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the 	Public Employment
Relations 	Board 	(PERB or 	Board) 	pursuant 	to PERB regulation
section 	32635,1 which 	provides 	for 	appeal of 	the 	general
counsel's 	dismissal of 	a 	charge without 	leave 	to amend.
The Board 	has 	reviewed 	the 	entire 	record 	in 	this 	matter,
including 	the 	attached 	general 	counsel's 	statement 	of 	reasons
for 	the 	dismissal. 	Finding 	the 	general counsel's 	reasons 	for
dismissal 	to 	be 	accurate 	and 	free 	from error, 	the Board 	affirms
the 	dismissal of 	the 	charge 	for 	failure 	to 	state 	a prima 	facie
case.
1PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 et seq.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
________________ )

ORDER
After 	a 	review of 	the 	entire 	record 	in 	this 	case, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that 	the 	unfair
practice 	charge 	in Case No. 	S-CE-535 	is 	hereby DISMISSED
without 	leave 	to 	amend.
Members Morgenstern 	and Burt 	joined 	in 	this 	Decision.
22

STATE OF 	CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Suite 102
Sacramento, California 	95314
(916)322-3198
November 	5, 	1982
Kirsten L. 	Zerger, Esq.
Attorney 	for 	Shasta Secondary Teachers
Association, CTA/NEA
P. 	0. Box 921
Burlingame, 	CA 	94010
Re; 	Shasta 	Secondary Teachers Association 	v.
Lester D. Jensen, 	et al.
Charge No. 	S-CE-535
Dear Ms. Zerger:
I 	indicated 	to you 	in my letters 	dated October 	22 	and 	27, 	1982
that this charge, 	as amended, 	does not state a prima facie case
and 	that 	unless 	you 	further 	amended 	the 	charge 	to 	state 	a prima
facie 	case or 	withdrew 	it prior 	to November 	3, 	1982, 	it would
be dismissed without 	leave 	to 	amend.
I 	have 	not 	received either 	an amended 	charge 	or 	a 	withdrawal
from you 	and 	am therefore dismissing 	the 	charge, 	without leave
to amend, 	for 	the following reasons.
The 	above-referenced 	charge 	alleges 	that Lester 	D. 	Jensen 	and
14 	other 	individually 	named 	respondents 	have 	failed 	and 	refused
to comply with 	the 	requirements 	of Article VI of 	the 	current
collective 	bargaining 	agreement 	between 	the Shasta Secondary
Teachers Association 	(Association) 	and 	the 	Shasta Union High
School District 	(District) 	by 	refusing 	to join the Association
or 	pay 	the 	required 	agency 	fee. 	This 	conduct 	is 	alleged 	to
violate sections 	3543.5(a) 	and 	(b) 	of 	the Educational
Employment Relations Act 	(EERA).
In addition, 	the 	charge 	states 	that 	the 	respondents 	acted 	in 	an
organized 	and 	concerted 	fashion 	to 	interfere 	with 	unit members'
rights 	to 	be 	represented 	by 	the Association 	and with 	the
Association's 	right 	to 	collect 	the 	agency fee. 	Such 	conduct 	is
alleged 	to violate 	section 	3543.6(b) 	of 	the EERA.
----=========::=:::::::::::======~

Kirsten L. 	Zerger, Esq.
November 	5, 	1982
Page 	2
My 	investigation has 	revealed 	the 	following. 	Mr. 	Jensen 	and
the 	other 	named 	respondents, 	during all 	times 	relevant 	to the
charge, 	have 	been employees of 	the District and members 	of 	a
bargaining 	unit exclusively 	represented 	by 	the Association.
The Association 	and 	the District 	are 	parties 	to 	a 	collective
bargaining 	agreement effective 	from July 1, 	1981 	to
June 30, 	1984. 	Under Article VI Section B of 	the Agreement, 	a
unit member must either 	become 	a member 	of 	the Association 	or
pay 	to 	the Association 	a representation 	fee 	as 	a condition of
continued 	employment 	for 	the 	duration of 	the 	agreement.
Section 	I(a) 	reads 	that 	the District's 	sole obligation 	under
Article VI 	is 	to 	notify 	the 	unit member 	that 	as a 	condition of
employment 	in 	the 	District 	s/he must 	become an Association
member, 	pay 	the representation fee, 	or 	establish an exempt
status and make payment 	accordingly. 	Subsection 	"a" 	also
states that:
"[u]nder 	no 	circumstances 	shall 	the District
be 	required 	to dismiss or 	otherwise
discipline 	any 	unit 	member 	for 	failure 	to
fulfill 	their obligations 	to pay the 	fees
established 	herein."
Subsection "b" 	of Section I 	requires 	the Association 	to
". 	. 	.be 	solely responsible for 	requiring 	unit members 	to
fulfill obligations defined 	herein."
During 	the 	fall of 	1981, 	the Association notified Mr. 	Jensen
and 	the 	other 	respondents of 	their 	responsibilities 	under
Article VI of 	the 	collective 	bargaining 	agreement. 	Each
respondent 	refused 	to pay 	the 	agency 	fee 	amount 	requested.1
In April 1982, 	the Association 	filed suit 	in 	small claims 	court
against 	the 	individual respondents 	as 	individuals. 	On
July 14, 	1982 the 	small claims 	court 	issued a decision which
found 	the 	controversy within 	the 	jurisdiction 	of 	the 	Public
Employment Relations Board 	(PER3) 	and 	required 	the 	actions 	to
be 	abated 	until 	the 	PERB made 	a determination 	of 	the 	issues
raised which 	are 	within 	its 	jurisdiction.
Based on 	the 	facts 	above, 	the 	charge 	does 	not 	state 	a prima
facie violation of 	the EERA. 	The 	substance of 	the 	charge 	is
1As 	discussed 	below, 	the 	respondents 	acted 	individually
in 	refusing 	to pay 	agency fees. 	No facts suggest 	that 	the
respondents 	are 	an 	"employee 	organization" 	as 	defined 	by 	the
EERA.

Kirsten L. 	Zerger, Esq.
November 5, 	1982
Page 3
that Jensen and 14 other 	unit members 	failed and 	refused 	to
comply with the requirements of Article VI of 	the collective
bargaining 	agreement. 	It appears 	that 	charging 	party 	is 	asking
the PERB to require the respondents to comply with the
provisions of Article VI of 	the collective bargaining
agreement. 	Section 3541.5 (b) 	of EERA provides:
The board 	shall not have authority to
enforce agreements between the parties, 	and
shall not issue a complaint on any charge
based on alleged violation of such an
agreement that would not also constitute 	an
unfair practice 	under 	this 	chapter.
Therefore, 	unless 	respondents' 	conduct constitutes 	an unfair
practice, 	it must be dismissed.
First, 	you have alleged 	that 	the respondents' 	conduct has
violated EERA section 3543.5(a). 	Violation of 	that 	section
require allegations 	that: 	(1) 	an employee has exercised rights
under 	the EERA; 	(2) 	the employer 	has imposed or 	threatened 	to
impose 	reprisals, 	discriminated or 	threatened 	to discriminate,
or 	otherwise interfered with, 	restrained, 	or 	coerced the
employee because of the exercise of rights guaranteed by 	the
EERA. 	Carlsbad Unified School District 	(1/30/79) 	PERB Decision
No. 	89; 	Novato Unified School District 	(4/30/82) 	PERB Decision
No. 210.
Although it 	is 	unclear which employees 	have engaged 	in
activities protected by the EERA, a more serious defect 	is
evident on the 	face of 	this 	allegation. 	Section 3543.5(a)
proscribes employer 	conduct, 	not 	that of employees. 	Thus,
unless 	the 	respondents' 	action 	is 	attributable 	to 	the employer,
there has been no employer conduct alleged. 	Antelope Valley
Community College District 	(7/18/79) PERB Decision No. 97.
There are 	no facts alleged 	in 	the charge, 	nor 	were any facts
discovered 	during 	the 	investigation which 	indicate 	that 	the
respondents were acting on behalf of 	the employer. 	Thus, 	the
charge does not state 	a prima facie violation of EERA section
3543.5(a).
Second, 	to state a prima facie violation of EERA section
3543.5(b) 	requires a showing 	that 	the employer 	has denied 	to an
employee organization 	its 	rights 	guaranteed 	to 	it 	under 	the
EERA. 	As discussed above, 	there are no facts which connect the

Kirsten L. Zerger, Esq.
November 5, 	1982
Page 	4
action of 	the 	respondents 	to 	the District. 	Thus no prima 	facie
violation of 	EERA section 	3543.5(b) 	is presented 	by 	this 	charge.
To state 	a prima facie violation of section 	3543.6(b) 	requires
a showing 	that: 	(1) 	an employee 	has exercised 	rights under 	the
EERA; 	(2) 	an employee organization has 	imposed 	or 	threatened 	to
impose 	reprisals, 	discriminated 	or 	threatened 	to discriminate
or 	otherwise 	interfered with, restrained, 	or 	coerced 	the
employee 	because of 	the exercise of 	rights 	guaranteed 	by 	the
EERA. 	Kimmett v. 	SEIU, Local 99 	(10/19/79) 	PERB Decision
No. 	106, Novato Unified "School District 	(4/30/82) 	PERB Decision
No. 210.
Although 	it 	is 	unclear 	which 	employees 	have engaged 	in
activities protected 	by 	the EERA, 	two more 	serious 	defects 	are
evident on 	the 	fact of 	this 	allegation. 	Section 	3543.6(b)
proscribes 	conduct by 	an employee 	organization. 	EERA section
3540.l(d) 	defines 	an employee organization as 	follows:
"Employee organization" means 	any
organization which 	includes 	employees 	of 	a
public school employer 	and which 	has 	as 	one
of 	its 	primary purposes 	representing 	such
employees 	in 	their 	relations with 	that
public 	school employer. 	"Employee
organization" 	shall also 	include 	any person
such 	organization 	authorized 	to 	act 	on 	its
behalf.
The PERB has 	found 	that 	a group of 	employees 	may 	have 	the
status of 	an 	"employee 	organization" 	if 	it exists 	" . . . 	for
the purpose 	of 	furthering 	the 	interests 	of employees 	by dealing
with 	the employer 	on a matter of employer-employee 	relations."
State 	of California 	(Department 	of 	Developmental Services)
(7/28/82) 	PERB Decision No. 	228-S. 	The 	facts discovered 	during
the 	investigation 	indicate 	that Jensen 	and 	the 	other 	named
respondents 	were 	acting 	as 	individuals 	and 	not 	as a group. 	The
fact 	that 	they 	were 	all 	respondents 	in a law 	suit 	instituted 	by
the 	charging 	party does 	not make 	these 	several 	individuals 	into
a group. 	In addition, 	there 	were 	no 	facts 	alleged 	in the
charge 	nor 	discovered 	during 	the 	investigation 	which 	would
support 	a 	finding 	that 	the 	Respondents 	in 	this 	charge
constitute 	a group 	whose 	purpose 	was 	dealing 	with 	the employer
on a matter 	of 	employer-employee 	relations. 	Further, 	even
assuming, 	arguendo, 	that 	the Respondents were 	an employee

Kirsten L. 	Zerger, Esq.
November 5, 	1982
Page 5
organization, 	there are no facts alleged 	in the charge nor
discovered 	during 	the 	investigation 	that 	indicate how 	the
Respondents' 	refusal to comply with Article VI of 	the
collective 	bargaining 	agreement 	has 	interfered with, 	restrained
or coerced other employees. 	Accordingly, 	no prima facie
violation of EERA section 3543.6(b) 	with respect 	to unit
members' 	rights 	is 	stated by 	this charge.
Charging party also alleges 	that 	the 	respondents 	"interfered
with" 	the Association's 	right 	to collect 	the agency 	fee.
Again, EERA section 3543.6(b) proscribes employee organization
conduct 	and 	the charging party has 	not demonstrated 	that 	these
individuals constitute an employee organization. 	Thus no prima
facie violation of EERA section 3543.6(b) 	has been established.
For 	these reasons, 	charge number S-CE-535, 	as amended, does not
state 	a prima facie case. 	Indeed, 	going beyond your
allegations of violations of EERA section 3543.6(b), 	I conclude
that 	the conduct 	alleged 	in the charge 	also does 	not appear 	to
violate 	any other provision of 	the EERA. 	Rather, 	it merely
involves 	allegations 	that 	individual employees 	did not meet
their obligations under 	the negotiated 	agreement. 	PERB does
not have jurisdiction 	to adjudicate 	such disputes, 	the proper
forum being 	the courts of 	this 	state.
Pursuant to Public Employment Relations Board 	regulation
section 32635 	(California Administrative Code, 	t i t l e 8,
part I I I ) , 	you may appeal the refusal to 	issue a complaint
(dismissal) 	to 	the Board 	itself.
Right 	to Appeal
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
(section 326 35(a)). 	To be timely 	filed, 	the original and 	five
(5) 	copies of such appeal must be actually received by the
Board 	itself before 	the close of business 	(5:00 p.m.) 	on
November 25, 	1982, 	or sent by telegraph or certified United
States mail postmarked 	not later 	than November 	25,, 1982
(section 32135). 	The Board's address 	is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814

Kirsten L. 	Zerger, Esq.
November 	5, 	1982
Page 6
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 	(5) 	copies 	of 	a statement 	in opposition within 	twenty
(20) 	calendar 	days 	following 	the 	date of 	service of 	the 	appeal
(section 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 	the document 	filed with 	the Board
itself 	(see 	section 	32140 	for 	the 	required 	contents 	and 	a
sample 	form). 	The document will be considered 	properly
"served" 	when personally 	delivered 	or 	deposited 	in 	the
first-class 	mail postage 	paid 	and 	properly 	addressed.
Extension of Time
A request 	for 	an extension 	of 	time 	in which 	to 	file 	a document
with 	the Board 	itself must be 	in 	writing 	and 	filed 	with 	the
Board 	at 	the previously noted 	address. 	A request 	for 	an
extension must be 	filed 	at least 	three 	(3) 	calendar 	days before
the expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request must indicate good cause for 	and, 	if known, 	the
position of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by proof of 	service of 	the 	request 	upon 	each
party 	(section 32132).
Final Date
If 	no 	appeal 	is 	f i l e d 	w i t h i n 	the 	s p e c i f i e d 	time 	l i m i t s , 	the
d i s m i s s a l 	w i l l 	become 	f i n a l 	when 	the 	time 	l i m i t s 	have 	e x p i r e d .
Very 	t r u l y 	y o u r s ,
DENNIS M. SULLIVAN
General 	Counsel
By
Robert 	Thompson
Regional 	Attorney