Fremont Unified School District (PERB 0435E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ANN M. 	HALLIGAN ET AL..
Charging Parties,
v.
FREMONT 	UNIFIED 	SCHOOL DISTRICT.
Respondent.
Case No. 	SF-CE-895
PERB Decision No. 	435
November 21, 	1984
Appearances: 	David T. 	Bryant, 	Attorney for Ann M. 	Halligan
et al.; 	Martha Buell 	Scott, 	Attorney for Fremont Unified 	School
District.
Before Hesse. 	Chairperson; 	Jaeger and Morgenstern, Members.*
DECISION
This 	case 	is 	before 	the Public Employment Relations 	Board
on an appeal 	by Ann M. 	Halligan et al. 	of 	the Board agent's
dismissal, 	attached 	hereto, 	of 	their 	charge alleging that 	the
Fremont Unified 	School 	District violated 	section 	3543.5(a) 	of
the 	Educational 	Employment 	Relations 	Act 	(Government 	Code
section 3540 	et 	seq.).
We 	have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the Decision of 	the Board 	itself.
ORDER
The unfair 	practice 	charge 	in Case No. 	SF-CE-895 	is
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	Board
*Members 	Tovar 	and 	Burt 	did 	not 	participate 	in 	this 	Decision.
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STATE CF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
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San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
May 1 1 , 	1984
David T. Bryant
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, VA 22160
Martha Buell Scott
2925 Hillegass Avenue
Berkeley, CA 94705
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Ann M. Halligan, et al. v. Fremont Unified School District
Dear Parties:
Pursuant to Public Employment Relations Board 	(PERB) Regulation
section 32620(5), a complaint will not be issued in the above-referenced
case and the pending charge is hereby dismissed because it fails to
allege facts sufficient to state a prima facie violation of the
Educational Employment Relations Act 	(EERA).1 The reasoning which
underlies this decision follows.
On April 26, 1984, the regional attorney wrote to charging party pointing
out the deficiencies of the charge as written and soliciting an amendment
or withdrawal by May 7, 1984 	(letter attached and incorporated by
reference). 	The letter warned that if no such response was receiving by
the deadline, the allegations would be dismissed and no complaint would
issue.
On May 7, 1984, the regional attorney received a letter from Mr. David
Bryant, attorney for charging party, 	It 	indicated receipt of the
April 26, 1984 letter as well as acknowledged that on April 26, 1984 the
Court of Appeal summarily dismissed a petition for Writ of Review filed
In the case of John A. Broadwood, et al. v. FERB (1 Civil A-14552).2
The regional attorney had cited Los Altos as authority for dismissing the
instant charge if it were not withdrawn or amended.
1References 	to the EERA are to Government Code sections 3540
et seq. 	PERB Regulations are codified at California Administrative Code,
Title 8.
2Petitioner 	had challenged PERB's decision in Los Altos School
District (Broadwood) (12/29/81) PERB Decision No. 1907.-----------------

David T. Bryant
Martha Buell Scott
May 11, 1984
Page 2
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), 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 Notice 	(section 32535(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 May 31, 1984, or sent
by telegraph or certified United States mail postmarked not later than
May 31, 1984 (section 32135). 	The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 	95814
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).

David. T. 	Bryant
Martha Buell Scott
May 11, 1984
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal
will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: 	General Counsel . . . I. .

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 	557-1350
April 	26, 	1984
David T. Bryant
National Right to Work Legal
Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22160
Re: 	Ann M. Halligan, et al. v. Fremont Unified District, Charge No. SF-CE-895
Dear Mr. Bryant:
On April 9, 1984, charging parties' Ann M. Halligan, et al. filed an unfair
practice charge against the Fremont Unified School District 	(District)
alleging violation of EERA section 3543.5(a). 	More specifically, charging
parties allege that the District entered into a collective bargaining
agreement with the Fremont Unified District Teachers Association 	(Association)
on December 14, 1983, made the organizational security provision of such
agreement retroactive to July 1, 1983, and, pursuant to such agreement,
deducted service fees from the salaries of charging parties for the period
between July 1, 1983 and December 13, 1983. 	Charging parties allege that the
District conduct interfered with their right not to participate in
organizational activity as guaranteed by section 3543 of EERA.
EERB has held that an exclusive representative has authority under EERA to
collect agency fees retroactively to the effective date of the recently-
negotiated successor collective bargaining agreement. 	Los Altos Teachers
Association (12/29/81) PERB Decision No. 190, rev. pend. 	(1 Civ. 54699)1
Such fees may be deducted automatically from payroll, despite the absence of
the non-member's consent. 	King City High School District 	(3/3/82) PERB
Decision No. 197, rev. pend. (1 Civ. A016723).
The unfair practice charge, as presently written, fails to state a prima facie
violation of section 3543.5(b). 	The District acted lawfully when it acceeded
to the request of the Association that it automatically deduct agency fee
payments from charging parties' 	salaries retroactive to July .1, 1933, the date
on which the agreement was first made effective. 	Accordingly, the allegations
of the charge will be dismissed and no complaint will issue thereon.
1Also 	see Berns v. Wisconsin Employment Relations Commission
(Wisc.S.Ct. 1980) 1979-80 PEC, Par. 37111, affirming Berns v. WERC (Wisc.Ct.
of App. 1979) 105 LRRM 2092.

If you feel that there are facts which would correct the deficiencies
explained above, please amend the charge accordingly. 	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. 	Please
be sure to indicate the EERB charge number. 	The amended charge must be served
on the respondent and the original proof of service must be filed with PERB.
If I do not receive an amended charge or withdrawal from you before May 7,
1984, I shall dismiss your charge. 	If you have any questions on how to
proceed, please call me at (415) 557-1350.
Sincerely yours,
Peter Haberfeld
Regional Attorney
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