Rio Hondo College Faculty Association (Furriel) (PERB 0583E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VINCENT J. 	FURRIEL,
Charging 	Party,
v.
RIO 	HONDO 	COLLEGE 	FACULTY
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	LA-CO-307
PERB Decision No. 	583
July 30, 	1986
Appearances: 	Vincent J. 	Furriel, 	on his own behalf; 	Charles 	R.
Gustafson, 	Attorney 	for 	Rio Hondo 	College 	Faculty Association,
CTA/NEA.
Before Morgenstern, 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	Vincent 	J.
Furriel 	to 	the 	attached 	proposed 	decision of 	a 	PERB 	administrative
law 	judge 	(ALJ). 	In her proposed decision, 	the ALJ dismissed
Furriel's 	charge 	that 	the 	Rio Hondo 	College 	Faculty Association,
CTA/NEA 	(Association) 	violated 	section 	3543.6(b) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA or 	Act)'1 by 	refusing
to 	appoint him 	to 	a 	seat 	on a 	joint Association-employer
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references herein are
to 	the 	Government 	Code.
Section 3543.6 provides, 	in pertinent part:
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committee 	because 	of his 	exercise 	of 	rights 	guaranteed by 	the
Act. 	For 	the 	reasons which 	follow, 	we affirm the dismissal.
It 	shall 	be 	unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
The 	duty of 	an exclusive 	representative 	to 	represent 	its
members 	fairly 	is 	set 	forth 	in EERA section 	3544.9. 	That
section provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in the 	appropriate 	unit.
FACTS
Furriel 	does 	not 	substantially dispute 	the 	ALJ's 	findings 	of
fact, 	nor does 	this Board, 	on its own review, 	find any
prejudicial 	errors 	of 	fact. 	We 	therefore 	adopt 	the ALJ's
findings 	of 	fact as 	the 	findings of 	the Board 	itself.
DISCUSSION
The 	ALJ 	concluded 	that 	the Association did 	not 	violate 	its
duty of 	fair 	representation when 	it 	refused 	to 	appoint 	Furriel
to a 	seat on the 	Sabbatical 	Leave 	Review 	Committee 	(Committee).
She noted 	that, 	while 	the 	Board has 	said, 	". 	. 	.a breach of 	the
duty of 	fair 	representation occurs 	when a 	union's 	conduct 	toward
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

a member of 	the bargaining unit 	is 	arbitrary, 	discriminatory, 	or
in bad 	faith" 	(Rocklin Teachers 	Professional Association 	(Romero)
(1980) PERB Decision No. 	124, at p. 	7.), 	the duty of fair
representation 	extends 	only 	to union 	"activities 	that have 	a
substantial 	impact 	on 	the 	relationships 	of 	unit members 	to 	their
employers" 	and 	does 	not 	apply 	to 	those 	"activities 	which do not
directly 	involve 	the 	employer 	or 	which 	are 	strictly 	internal
union matters." 	Service 	Employees 	International 	Union, 	Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106, 	at p. 	8.
The ALJ 	found 	that 	the 	Committee 	is 	a 	creature 	of 	the
collective 	bargaining 	agreement 	between 	the 	Association 	and 	the
Rio Hondo 	Community College 	District 	(District). 	The contract
provides 	that 	the 	Committee 	is 	composed of 	three 	representatives
designated 	by 	the 	District 	and 	three 	representatives 	designated
by 	the Association. 	The ALJ 	reasoned 	that, 	because 	the 	Committee
is an extension of the contract, 	it 	is akin to a negotiating
team. 	Noting 	that 	PERB has 	previously 	determined 	that 	selection
of bargaining 	team members 	is 	an 	internal 	union matter 	not
subject to the duty of 	fair representation 	(SEIU, 	supra), 	absent
a 	showing 	of 	substantial 	impact 	on 	the 	employees' 	relationship
with 	the 	employer, 	the ALJ concluded 	that 	selection of 	its
representatives 	to 	the 	Committee 	is 	an 	internal 	union matter.
As 	the Association's 	rejection of 	Furriel 	to 	the 	Committee 	did
not 	substantially 	impact his 	employment 	relationship, 	the 	duty
of 	fair 	representation did not apply. 	We 	agree.
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The 	Committee, 	in this case, 	is 	similar to a negotiating
team. 	It 	is established that:
[T]he 	union has 	responsibility as 	exclusive
bargaining 	agent 	to 	formulate 	the 	employees'
position on 	terms 	and 	conditions 	of
employment. 	This 	responsibility may be
delegated by the 	union membership. 	Such
delegation 	is 	an 	internal 	union procedure
from 	which 	non-union 	employees 	properly may
be excluded. 	However, 	the delegatee, 	once
selected, 	must 	in turn function as 	a
representative 	for 	all 	the 	employees 	in the
bargaining unit. 	Letter Carriers, 	Branch
6000 v. 	NLRB 	(D.C. 	Cir. 	1979) 	595 F.2d 808
[100 LRRM 	2346].
Thus, 	the 	exclusive 	representative's 	responsibility to 	represent
all 	the bargaining unit 	members 	in 	terms 	and 	conditions 	of
employment 	may be 	delegated by 	the 	union's 	membership 	to 	a
committee. 	Such delegation 	is 	an 	internal 	union matter 	and may
exclude 	non-union employees. 	Put another way, 	selection to 	such
committees 	is 	not 	subject 	to 	the 	duty of 	fair 	representation
unless 	such 	an 	internal 	union matter has 	a 	substantial 	impact 	on
the 	terms 	and 	conditions 	of 	employment.
The 	duty 	of 	fair 	representation 	generally has 	been 	limited
to 	an 	exclusive 	representative's 	conduct 	in 	negotiating 	and
administering contracts. 	(See SEIU, 	supra, 	at p. 	9, 	and cases
cited 	therein.) 	If 	the 	exclusive 	representative's 	negotiating
team 	fails 	to represent 	the 	entire 	unit, 	it has 	violated 	the
duty of 	fair 	representation. 	Likewise, 	if 	the 	Committee 	fails
to represent 	the entire unit, 	it has 	violated the duty of 	fair
representation. 	Since both 	the 	negotiating 	committee 	and 	the
Committee 	are 	subject 	to the 	same 	legal duty, 	it 	follows 	that
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the 	selection of members 	to 	the 	Committee, 	a 	Committee 	that
makes 	on-going 	recommendations 	about 	leaves, 	should be
considered 	like 	the 	selection 	to a 	negotiating 	team, 	an 	internal
union matter.
Contract 	administration 	is part 	of 	the 	collective bargaining
process. 	This 	Board has held 	that:
[I]t 	is 	well 	settled 	that 	administration of
the 	contract 	is 	an essential part of 	the
collective 	bargaining agreement. 	Jefferson
School 	District 	(1980) 	PERB Decision No. 	133,
rev. 	den. 	(7/1/83) 	1 Civ. 	50241. 	See also
Modesto 	City 	Schools 	and 	High 	School
District 	(1986) 	PERB Decision No. 	518a.
There 	is 	no 	reason 	to 	treat 	selection 	to 	the 	Committee
differently 	than 	selection 	to a negotiating 	team. 	Both 	are
essential parts 	of 	the 	same process.
Under 	the 	terms 	of 	the 	Association-District 	agreement
relevant here, 	the Association has 	the 	sole 	authority to appoint
three 	of 	the 	Committee's 	six members. 	Selection of members 	to a
committee 	whose purpose 	is 	to effectuate 	the 	terms 	of 	an
agreement 	for 	the benefit 	of 	all 	unit 	members 	closely resembles
the 	selection 	to a bargaining 	team whose 	purpose 	is 	to 	represent
all 	bargaining 	unit 	members 	in negotiations.
The 	similarity between 	selection 	to 	a 	negotiating 	team 	and
selection 	to the 	Committee 	is 	reinforced when 	it 	is 	recognized
that 	the 	Association's 	representatives 	on 	the 	Committee 	do 	in
fact 	serve 	a 	representative 	function 	like 	members 	of 	a
bargaining 	team. 	When the Association and 	the 	District 	agreed
to 	the 	formation of 	a committee 	on sabbatical 	leaves, 	with 	three
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"representatives 	designated by 	the 	Association 	and 	three
representatives 	designated 	by 	the 	District," 	the 	representational
authority of 	the Association did 	not 	come 	to an end. 	As 	members
of the 	Committee, 	the Association's 	representatives, 	in concert
with the 	District's 	representatives, 	rank candidates 	who have
applied 	for 	sabbatical 	leaves.
As 	the 	representative 	of all bargaining unit members, 	the
Association 	is 	responsible 	for 	seeing 	that 	the 	Committee
discharges 	its 	function 	in accord 	with 	the 	contract 	and 	in 	the
best 	interests of 	the unit. 	The Association, 	of course, 	may not
discriminate 	against 	non-members 	in deciding 	who may 	receive
sabbatical 	leaves. 	However, 	Furriel charges 	only that 	the
Association 	discriminated 	in 	not 	selecting him 	for 	the 	Committee.
Member 	Porter 	claims 	that 	the 	negotiated 	Committee 	allows 	the
Association 	to engage 	in academic 	decision making. 	Therefore,
"it 	goes 	well beyond a 	labor union's 	role 	of 	negotiating 	the
employees' 	wages, 	hours 	and terms and conditions of employment."
(Dissent, 	at p. 	20.) 	We disagree.
Leaves 	are 	a 	specifically 	enumerated 	subject 	of bargaining.
(Section 	3543.2(a).) 	Moreover, 	according to the contract, 	the
philosophy 	and purpose 	of 	sabbatical 	leaves 	are:
. . . 	to 	provide 	an opportunity 	for
professional 	growth of 	full-time 	unit members
which will 	result 	in more 	effective 	services
to the 	District.
Sabbatical 	leaves 	would 	thus 	appear 	to be 	an aspect 	of 	training,
a 	negotiable 	subject. 	Healdsburg Union High 	School 	District, 	et
al. 	(1984) 	PERB Decision No. 	375. 	Although a sabbatical leave
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could 	also be 	characterized 	as 	an 	alternative 	academic
assignment, 	the 	effects 	of any assignment 	are 	likely to 	touch on
negotiable 	subjects 	such as wages or hours. 	In ranking
applicants 	for 	sabbatical 	leaves, 	this 	Committee makes on-going
decisions 	concerning 	leaves, 	training and other matters 	that, 	at
the 	very 	least, 	touch on matters within scope.
In our view, 	if a matter may be 	negotiated, 	its 	inclusion 	in
a contract 	is proper. 	Once 	in a contract, 	the Association must
administer 	its 	provisions 	on behalf 	of 	all 	unit employees. 	If,
in administering a contractual 	term, 	it 	is 	necessary 	to select
Committee members, 	the procedures 	and qualifications 	for
selection are 	an 	internal 	union matter.
Because 	we 	find 	that 	selection 	to 	the 	Committee 	is 	an
internal 	union matter, 	and 	there 	is 	no evidence 	that 	rejection
of 	Furriel had 	a 	substantial 	impact 	on his 	relationship 	to his
employer 	and/or had 	a 	substantial 	impact 	on 	the 	relationship of
other 	employees 	to 	their employer, 	we 	conclude 	that 	there 	is 	no
violation of either 	section 	3544.9 or 	3543.6(b). 	We,
therefore, 	affirm the ALJ's dismissal of 	this charge.
2 In 	SEIU, 	supra, 	the 	Board 	recognized 	that 	the 	conduct
proscribed by 	section 	3543.6(b) 	encompasses 	more 	than a breach
of 	the 	duty of 	fair 	representation 	set 	forth 	in 	section 	3544.9.
However, 	in 	that 	case 	the Board concluded 	that 	it will 	not 	find
a protected 	right 	under 	either 	section 	3344.9 or 	3543.6(b) 	if
the 	union conduct 	at 	issue 	involves 	internal 	union matters 	and
those 	internal 	union matters 	have 	no 	substantial 	impact 	on 	the
employees' 	relationship with their 	employer.
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ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	it 	is hereby ORDERED that
the 	unfair 	practice 	charge 	and 	complaint 	against 	the 	Rio 	Hondo
College 	Faculty Association, 	CTA/NEA, 	are 	DISMISSED.
Member Morgenstern 	joined 	in this 	Decision. 	Member 	Porter's
dissent begins 	on page 	9.
8

Porter, 	Member, 	dissenting: 	I dissent and would reverse 	the
administrative 	law 	judge's 	(ALJ) 	finding 	that 	the 	Association did
not 	commit 	an unfair 	practice. 	Inasmuch 	as 	the ALJ 	specifically
found 	that 	the 	sole 	reason 	Charging 	Party was 	not 	selected 	to
serve 	on 	the 	Sabbatical 	Leave 	Committee 	(Committee) 	was 	because
he 	was 	not a member of 	the Association 	(a 	finding not 	excepted
to by 	the 	Association), 	the 	Association has 	clearly 	committed 	an
unfair practice. 	The 	Committee 	is 	not an 	internal union
committee, 	it does 	not make policy decisions 	on behalf of 	the
Association, 	nor do 	its members 	represent 	the 	interests 	of 	the
Association per 	se. 	It 	is 	an academic 	committee, 	established 	to
make 	academic 	decisions, 	based on academic policies.N1 	Because
of 	the 	nature of 	the 	Committee and 	the 	function 	it performs, 	a
refusal 	by 	the 	Association 	to 	appoint 	Charging 	Party 	solely 	on
the 	basis 	of his 	nonmembership 	status 	violates 	the 	Association's
duty of 	fair 	representation, 	deprives 	him of his 	statutory 	right
not 	to participate 	in 	the activities of 	employee 	organizations
-and 	constitutes 	interference 	with 	and 	discrimination 	and 	reprisal
for 	the 	exercise of his protected rights, 	in violation of
Government 	Code 	sections 	3543.6(b) 	and 	3544.9.
1Notwithstanding 	that 	"leaves" 	is 	a 	specifically enumerated
subject of 	negotiations 	under Government 	Code 	section 	3543.2, 	I
question 	whether 	the 	actual 	selection 	of 	the 	faculty members 	who
will 	be 	granted 	sabbatical 	leaves 	is 	a negotiable 	subject 	since,
in reality, 	it 	is an alternative assignment. 	This 	issue,
however, 	was 	not 	raised 	in this case.
9

Section 	3543 	establishes 	the 	cornerstone 	of 	rights
guaranteed 	to employees 	under 	EERA. 	It provides 	that public
school 	employees 	shall have 	the 	right 	to 	form, 	join and
participate 	in the 	activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for 	the 	purpose 	of 	representation on all matters 	of
employer-employee 	relations. 	No 	less 	significant 	is 	the
employees' 	guaranteed 	right 	not 	to 	join or 	to participate 	in 	the
activities of employee organizations. 	Section 3543.6(b) 	makes
it 	unlawful 	for 	an employee 	organization to:
[i]mpose 	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.
Further, 	section 	3544.9 	specifically 	imposes 	upon 	the 	exclusive
representative 	the 	duty 	to 	fairly 	represent 	each 	and 	every
employee 	in the bargaining unit.2
Clearly, 	then, 	employees have 	the 	right not 	to join or
participate 	in 	the 	activities 	of 	an employee 	organization and,
in so choosing, 	be 	free 	from reprisals 	or 	threats of 	reprisals
or 	discrimination 	and 	otherwise 	be 	free 	from 	interference,
restraint 	or 	coercion 	for having made 	that 	choice. 	Also,
2 Section 	3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the 	purpose 	of meeting 	and 	negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in
the 	appropriate 	unit.
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having decided 	not 	to 	join the 	organization that 	is 	the
exclusive 	representative, 	the 	employee 	does 	not 	thereby 	forfeit
his 	right 	to be 	represented 	fairly on matters 	involving his
employment 	relations 	with his 	employer.
Previous 	PERB decisions have 	established 	that, 	while 	the
duty of 	fair 	representation 	set 	forth 	in 	section 	3544.9 	is
actionable under 	section 3543.6(b), 	the 	latter section
encompasses more 	than 	this 	duty. 	In 	the 	leading 	PERB decision,
Service 	Employees 	International 	Union, 	Local 	99 	(Kimmett) 	(1979)
PERB Decision No. 	106, 	the 	Board 	stated 	in regard 	to section
3543.6(b):
The 	language 	of 	this 	section 	is 	identical 	to
that 	of 	section 	3543.5(a) 	which 	covers
employer 	conduct, 	and 	the 	Board 	sees 	no 	reason
to analyze 	those 	sections 	differently. 	Under
the 	test 	articulated 	in Carlsbad 	Unified
School 	District 	(1/30/79) 	PERB 	Decision No.
89, 	the 	conduct 	alleged 	to constitute 	an
unfair 	practice 	must 	tend 	to 	or 	actually
result 	in 	some harm 	to employee 	rights
granted 	under 	the 	EERA 	. . . .
However, 	the 	conduct proscribed by section
3543.6(b) 	encompasses 	more 	than a breach of
the 	duty of 	fair 	representation, 	and 	charging
party's 	allegations 	must be 	examined 	to
determine 	whether 	they 	constitute 	a 	violation
of 	that 	section 	separate 	and apart 	from 	any
violation of section 3544.9. 	SEIU 	(Kimmett),
id. 	at pp. 	13-15.
The 	Board 	concluded 	that 	it will 	not 	find 	a protected 	right
under 	either 	section 	3544.9 or 	3543.6(b) 	if 	the 	union conduct at
issue 	involves 	strictly 	internal 	union matters, 	unless 	those
internal 	union matters have 	a 	substantial 	impact 	on 	the
employees' 	relationship with their employer.
11

Thus, 	a 	three-step analysis 	is 	required to determine 	if 	a
violation of section 	3543.6(b) 	or 3544.9 has occurred. 	First, 	it
must 	be 	determined 	whether 	the 	employee 	organization 	is 	acting
in 	its 	capacity as 	the exclusive 	representative, 	that 	is, 	does
it, 	by virtue of 	its 	status as 	the exclusive 	representative,
possess 	the exclusive means of access 	to the benefit, 	process or
procedure 	at 	issue 	for bargaining 	unit members? 	The 	two 	clearest
examples 	of 	this 	are 	negotiating 	the 	contract 	and 	taking 	a
grievance 	to binding arbitration. 	These 	are both 	rights 	granted
by 	statute 	solely 	to 	the 	exclusive 	representative. 	(See 	sections
3543, 	3543.1 and 	3548.5.) 	If 	the exclusive 	representative 	is
acting 	in such capacity, 	then both sections 	(3543.6(b) 	and
3544.9) 	apply. 	If 	the exclusive representative 	is 	not 	so acting,
or 	the 	organization 	is 	not 	the 	exclusive 	representative, 	then
only 	section 	3543.6(b) 	will 	apply.
Next, 	it must be 	determined whether 	the 	conduct 	complained
of 	is an 	internal 	union matter. 	If not, 	then the 	standards 	for
determining violations 	of 	sections 	3543.6(b) 	and/or 	3544.9 	should
be 	applied 	to determine 	if 	the 	conduct 	is 	violative 	of 	the
Act.3
Finally, 	even 	if 	the 	conduct does 	involve an 	internal 	union
matter, 	then 	it will be 	examined nevertheless 	to ascertain
33These	These 	tests 	respectively are 	the 	"Carlsbad" 	test, 	adopted
by 	the 	Board 	in 	Carlsbad Unified 	School 	District 	(1979) 	PERB
Decision No. 	89, 	and 	the 	"arbitrary-discriminatory-or-bad-faith"
test 	articulated by 	the 	Board 	in 	Rocklin 	Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No. 	124.
12

whether 	it has 	a 	substantial 	impact 	on 	the 	relationship of 	unit
members to their employer. 	SEIU 	(Kimmett), 	supra, 	p. 	8. 	If
not, 	then the 	employee has 	no protected 	right 	to have 	the matter
resolved 	in any particular 	fashion, 	nor will 	this 	Board 	find 	a
violation of 	the Act. 	If 	it does have a 	substantial 	impact on
the 	relationship of 	unit members 	to their employer, 	then 	the
conduct 	will be 	analyzed 	under 	the 	respective 	tests 	set 	forth 	in
footnote 	2, 	as 	if 	it did not 	involve an 	internal union matter.
In the present case, 	applying the 	first 	step of 	the 	analysis,
the 	right 	to 	select 	representatives 	to the 	Committee 	is 	not 	a
right 	accorded the Association by statute but, 	rather, 	is 	a
right 	created by 	the 	Association 	itself 	through 	negotiations 	and
set 	forth 	in the 	collective bargaining agreement. 	Nevertheless,
by virtue 	of 	the 	contract, 	the 	sole 	avenue 	of access 	of 	unit
members 	to participation on 	the 	Committee 	is 	through 	the
Association.A4 	Clearly, 	then, 	the Association acts 	in its
capacity as 	the 	exclusive 	representative, 	and both 	sections
3543.6(b) 	and 3544.9 apply.
The 	second 	step 	in the 	analysis 	is 	to determine whether 	the
selection of 	the 	Committee 	participants 	is 	strictly an 	internal
union matter. 	PERB has 	not previously articulated 	a 	clear
standard of what 	constitutes 	an 	"internal 	union matter," 	but
some 	guidance 	may be 	gleaned 	from previous 	decisions 	in which
-
4T	4 his	This 	presumes, 	of course, 	that 	faculty members 	are not
selected 	as 	the 	District's 	representatives.
13

complained-of 	conduct 	was 	found 	to constitute 	an 	internal 	union
matter. 	In SEIU 	(Kimmett), 	supra, 	the matters 	found to involve
internal 	union affairs 	included: 	choice 	of 	a general 	meeting
time; 	the 	decision 	regarding holding on-site 	union meetings 	with
bargaining unit members; 	lack of 	formal 	union procedures 	for
providing 	input 	to 	the 	union 	from 	the 	various 	groups 	of
employees; 	and procedures 	for 	selection of 	the 	negotiating 	team
members. 	The 	Board 	also 	stated 	that 	an 	exclusive 	representative
has 	a duty 	to 	fairly 	represent 	all 	employees 	in the 	unit 	in
meeting and negotiating, 	consulting on educational 	objectives,
and administering 	the written agreement. 	Id., 	at p. 	8.
Selection or 	endorsement of 	union officers 	was 	an 	internal
union matter 	(Service 	Employees 	International 	Union 	(Pottorff)
(1982) 	PERB Decision No. 	203), 	as was the amendment of the
Association's 	bylaws 	to omit 	the 	right 	of 	nonmembers 	to vote 	on
negotiation proposals 	and 	contract 	ratification, 	since 	there
were 	other 	avenues 	of 	input 	available 	to 	nonmembers 	(El 	Centro
Elementary Teachers Association 	(Willis 	et 	al.) 	(1982) 	PERB
Decision No. 232).
Internal 	union 	disciplinary procedures 	and 	decisions 	do 	not
subject 	a 	union 	to 	claims 	of 	violation of 	EERA unless 	they have
a 	significant 	impact 	on 	the 	relationship 	of 	the 	employees 	with
their 	employer 	(California 	School 	Employees 	Association and 	its
Shasta 	College 	Chapter 	#381 	(Parisot) 	(1983) 	PERB Decision No.
280). 	In Parisot, 	id., 	the Board recognized that a union's
internal 	discipline 	procedures 	can have 	a 	substantial 	impact 	on
14

the 	relationship of 	employees 	to their 	employer, 	notwithstanding
the 	absence of a demonstrable 	impact on the employees' 	wages,
hours 	or 	terms 	and 	conditions 	of 	employment.
Finding 	no discipline 	was 	involved 	in 	the 	recall 	of 	the
chapter president, 	the 	regional 	attorney, 	in a decision adopted
by 	the 	Board, 	dismissed 	the 	charges 	in California 	School
Employees Association, 	Chapter 	318 	(Harmening) 	(1984) 	PERB
Decision No. 	442, 	since 	selection and removal of union officers
is 	an 	internal 	union matter.
In California State 	Employees' 	Association 	(Norgard) 	(1984)
PERB 	Decision No. 	451-S, 	the Board assumed 	for purposes 	of
argument 	that 	a 	decision by CSEA to 	affiliate 	with 	the 	AFL-CIO
impacted 	upon 	the 	employees' 	relationship with 	their 	employer 	to
such 	an extent 	that 	the 	duty of 	fair 	representation was
implicated. 	The 	Board 	then 	found 	that 	such 	decision did 	not
violate 	the 	duty 	of 	fair 	representation.
The 	Board 	summarily affirmed 	the 	regional 	attorney's 	decision
dismissing 	the 	charges 	in Compton 	Education Association 	(Sanders)
(1985) 	PERB Decision No. 	509. 	The 	regional attorney found the
following 	allegations 	to 	involve 	internal 	union 	activities
without 	significant 	impact on the 	employees' 	relationship with
their 	employer, 	based 	either on the 	charges 	themselves 	or on 	the
regional 	attorney's 	investigation: 	failure 	to 	adequately
receive 	input 	from members 	regarding 	contract 	negotiations;
failure 	to notify teachers of a dues 	increase; 	acting 	in
15

meetings 	without a quorum; 	"friends" 	of 	the 	executive director
on 	the 	executive board 	supported her 	actions; 	union clerks
received 	too-high 	salaries; 	a conflict 	of 	interest 	existed
because 	the 	organization's 	auditor was 	married 	to 	the 	financial
secretary; 	the membership was 	not offered a choice of health
plans; 	charging party was 	not put 	on the 	negotiating 	team;
insufficient 	notice 	was 	provided 	for 	a membership meeting; 	the
voting on 	the 	contract occurred 	in parts, 	rather 	than on the
whole 	document; 	a 	negotiation agreement 	resulted 	in the 	loss 	of
a 	tax-sheltered 	annuity; 	the 	organization 	did 	not 	provide 	copies
of 	its 	negotiating proposals; 	the 	union proposed a change 	in
health plans; 	the 	union 	failed 	to perform an adequate 	survey of
members 	to determine 	their preference 	for 	a health plan.
From 	these previous 	decisions, 	certain categories 	of
activities 	evolve 	that 	generally 	constitute 	internal 	union
matters. 	Those 	categories 	can be described as 	follows:
1. 	internal operation, 	management, 	or structure of 	the
organization 	itself;
2. 	policy decisions 	and 	implementation of 	those policies 	as
to direction and goals of 	the 	organization 	(i.e.,
negotiations);
3. 	decisions 	regarding how 	the 	organization will 	allocate
its 	resources 	for 	its own operations;
4. 	procedures 	and/or methods by which 	the 	organization will
inform 	its 	constituency of 	various 	representational
matters, 	and obtain 	input 	from those members.
Among 	those 	activities 	previously determined 	to be 	internal,
the 	only possible 	analogy 	to 	the 	instant 	case 	is 	the 	union's
16

right 	to 	select 	members 	to 	its 	negotiating 	team. 	This 	is 	the
analogy 	relied 	on by both 	the ALJ 	in the proposed 	decision, 	as
well as 	the majority in its opinion. 	The majority would, 	in
fact, 	find 	that 	the 	Committee merely extends 	the 	representational
authority of 	the Association, 	and members 	of 	that 	Committee 	serve
in a 	representational 	capacity akin 	to 	negotiators 	acting 	on
behalf of 	the Association. 	Thus, 	the majority opinion concludes
that 	this 	situation 	falls 	within 	the 	well-settled 	case 	law 	that
holds 	that 	the 	process by which a 	union 	selects 	its 	officials
and 	representatives 	is 	an 	internal 	union matter 	and not 	subject
to 	the 	duty of 	fair 	representation.
While 	superficially 	the 	foregoing 	conclusion has 	the
appearance of 	consistency with previous 	case 	law, 	in 	fact 	this
case 	raises 	a 	novel 	issue 	that 	can be 	resolved 	only by examining
the 	nature, 	function and purpose of 	the 	Committee 	itself.
Therefore, 	a review of the 	Education Code 	scheme 	is warranted,
as 	well 	as 	an analysis 	of 	the 	Committee 	itself 	as 	established by
the 	contract.
Sabbatical 	leaves 	are 	created 	and 	governed by 	the 	Education
Code. 	Sabbatical 	leaves 	in community college districts 	are
authorized by 	Education 	Code 	Section 	87767 	et 	seq.5 That
section provides 	that 	the 	governing board may grant 	a
5See 	Education Code 	section 44966 et 	seq. 	for 	the
sabbatical 	leave 	provisions 	for 	teachers 	of 	kindergarten
through 	grade 	twelve.
17

certificated 	employee 	a 	leave 	of 	absence 	not 	to 	exceed 	one year,
for 	the 	purpose 	of permitting 	study or 	travel
by 	the 	employee 	which will 	benefit 	the
schools 	and 	the 	students 	of 	the district.
The 	employee 	must have 	rendered at 	least 	six 	consecutive 	years
of 	service 	to 	the 	district prior 	to 	the board granting 	the 	leave,
and 	not 	more 	than one 	leave may be 	granted 	in a 	six year period.
Education 	Code 	section 87768. 	The board may prescribe 	the
standards 	of 	service 	that will 	entitle 	the 	employee 	to 	the 	leave.
Education Code 	section 87768. 	The 	employee 	on sabbatical 	leave
may be 	required 	to perform 	such 	services 	during 	the 	leave 	as 	the
board 	and 	employee 	agree 	upon 	in writing. 	Education Code 	section
87769. 	Every employee granted a 	sabbatical 	leave 	is 	required, 	as
a 	condition of 	the 	leave, 	to agree 	in writing 	to 	render 	service
to 	the 	district 	upon 	return 	from sabbatical, 	for 	a period of 	time
equal 	to twice 	the period of 	the 	leave. 	Education Code 	section
87770. 	The 	employee 	who 	receives 	compensation 	from 	the 	district
while 	on 	leave 	is 	required 	to 	furnish 	a bond 	indemnifying 	the
district 	against 	loss 	in the 	event 	the 	employee 	fails 	to 	render
the 	agreed-upon period of 	service 	following 	the 	leave, 	unless
the 	board 	in 	its 	discretion adopts 	a 	resolution declaring 	the
interests 	of 	the 	district 	will be protected by the 	employee's
written agreement 	to 	return. 	Education 	Code 	section 87770.
.
That 	sabbatical 	leaves 	are 	academic 	in nature 	and 	are 	for 	the
purpose 	of benefiting 	the 	district at 	large 	is 	evident 	from 	the
foregoing 	statutory provisions. 	While 	leaves 	are 	specified 	as 	a
18

topic of bargaining 	(Government 	Code 	section 3543.2), 	no other
type 	of 	leave 	is 	similar, 	either 	in purpose or 	in procedural
requirements. 	Sabbatical leaves are, 	in actuality, 	an
alternative 	academic 	assignment.
Turning then to the 	terms of 	the 	contract 	itself, 	it 	is
readily 	apparent 	that 	the 	Committee 	functions 	in an academic
capacity, 	rather 	than 	in a traditional 	labor 	relations 	role.
According 	to the 	contract, 	the philosophy and purpose 	of
sabbatical 	leaves 	is:
. . . 	to provide 	an opportunity 	for
professional 	growth of 	full-time 	unit members
which will 	result 	in more 	effective 	services
to the 	District. 	Such leaves may 	include,
but not be limited to, 	study, 	travel,
research, 	and 	related work experience.
In 	addition 	to 	setting 	out 	the 	eligibility 	requirements 	and
application procedures, 	the contract also creates 	the 	Sabbatical
Leave 	Committee 	under 	a 	section entitled, 	"Approval 	of 	Sabbatical
Leaves." 	The 	terms 	of 	this 	section distinguish 	this 	Committee
from other more 	traditional 	labor 	relations 	committees, 	such as
a 	negotiating 	team. 	Initially, 	sabbatical 	leave 	requests 	are
reviewed by the 	Committee, 	which consists 	of 	three
representatives designated by the Association and three
designated by the 	District. 	The 	Committee 	itself, 	in reviewing
requests, 	determines how 	it will 	consider 	the 	criteria on 	the
sabbatical 	leave 	request 	form. 	It 	then 	"shall determine 	those
applications 	which 	shall 	be 	recommended 	and 	those 	which 	shall
not be 	recommended." 	The 	Committee 	ranks 	its 	"recommended"
19

sabbaticals 	and 	forwards 	them to 	the 	superintendent 	for
transmittal 	to 	the board of 	trustees.
The 	contract 	specifies 	that 	the 	District 	"shall" provide 	up
to 	five 	sabbatical 	leaves 	in accordance 	with 	the 	ranked
-
recommendations of 	the 	Committee. 	Thus, 	if 	the Board grants 	any
sabbaticals, 	according 	to the 	contract 	the 	first 	five people 	are
actually 	ranked 	and 	selected by 	the 	Committee. 	If 	the
superintendent 	recommends more 	than five 	sabbatical 	leaves, 	then
the 	superintendent 	must 	first 	consider 	the 	Committee's 	additional
ranked 	recommendations. 	If 	the 	superintendent 	recommends 	someone
either out of order 	according 	to 	the 	Committee's 	ranking, 	or 	not
included 	in the 	Committee's 	recommendations, 	then the
superintendent 	is 	required 	to provide 	written 	rationale 	for his
recommendation 	to both 	the 	Committee 	and 	the 	employee 	who 	was
recommended by 	the 	Committee.
As 	can 	readily be 	seen, 	this 	Committee has 	the 	role 	of
actually 	deciding 	who 	will 	receive 	the 	first 	five 	sabbatical
leaves 	granted by the board 	of 	trustees. 	This 	is 	an academic
decision, 	affecting both 	the 	quality of 	the 	educational 	program
of 	the 	District 	itself, 	as well as 	the opportunities 	for expanded
training of 	individual 	faculty members. 	It 	goes well beyond 	a
-
labor union's 	role of negotiating the employees' 	wages, 	hours
and 	terms 	and conditions of 	employment. 	Consequently, 	the
Association has 	no 	legitimate 	interest 	or 	right, 	as 	an
organization, 	to limit the participants 	to members only. 	There
20

is 	nothing 	that 	would 	suggest 	that 	the 	operation of 	the 	Committee
in 	ranking 	and 	selecting 	sabbatical 	leave 	candidates 	furthers
the policies of 	the 	employee organization, 	nor does 	the 	Committee
implement 	internal 	goals 	and 	agendas 	of 	the Association as 	an
entity, 	as 	does 	the 	negotiating 	team. 	While 	the exclusive
representative 	represents 	all unit members, 	its 	representatives
in negotiations 	are, 	in actuality, 	representing the organization
as 	well 	as 	the bargaining unit members. 	They are 	exercising 	the
organization's 	statutory 	right 	to 	engage 	in collective bargaining
and, 	through that process, 	to achieve and secure 	the
organization's 	rights 	granted 	it by 	statute. 	Consequently, 	the
organization has 	a 	legitimate 	interest 	in having 	its 	members,
and only its members, 	fulfill that 	responsibility. 	When, 	as
here, 	however, 	the Association secures 	for 	itself 	the 	right 	to
designate 	representatives 	to participate 	in an academic
decision-making process, 	it does 	not 	thereby obtain 	the 	right 	to
exclude 	nonmembers 	from 	involvement 	in this process.
If 	the 	Association's 	role 	was merely one 	of 	ensuring 	that
the 	leave provisions were complied with, 	or 	if 	the Association
could 	select 	some, 	but not all, 	of 	the 	faculty participants 	on
the 	Committee, 	there 	could be an argument 	that 	those 	selected
acted 	as 	representatives 	of 	the Association, 	such 	that 	the
selection process was 	an 	internal matter. 	In such a case,
limitation to members 	only might be 	reasonable. 	That, 	however,
is 	not 	the 	situation we confront 	in this 	case. 	Consequently,
21

the 	selection of participants 	to 	the 	Committee 	is 	not 	an 	internal
union matter, 	and 	the Association's 	conduct must be analyzed
under both 	the 	Carlsbad 	test 	and 	the 	"arbitrary, 	discriminatory,
or bad-faith" 	standard 	for 	alleged 	violations 	of 	the 	duty of
fair 	representation. 	As 	discussed below, 	application of 	those
tests 	results 	in 	finding 	a 	violation of 	the Act.
The 	Carlsbad 	test 	requires 	charging 	party 	to 	establish 	that
the 	complained-of 	conduct 	"tends 	to or does 	result 	in 	some harm
to employee 	rights 	granted under EERA" 	(Carlsbad, 	supra, 	at
p. 	10. 	Once 	this has been demonstrated, 	a prima 	facie 	case
exists. 	Where 	the harm 	is 	slight, 	and the 	respondent offers
justification based 	on operational 	necessity, 	the 	competing
interests 	of 	the 	respondent 	and 	the 	charging party will 	be
balanced 	and 	the 	charge 	resolved accordingly. 	However, 	where
the harm 	is 	inherently destructive of 	employee 	rights, 	the
respondent's 	conduct 	will 	be 	excused only on proof 	that 	it was
occasioned by 	circumstances 	beyond 	the 	respondent's 	control 	and
that 	no 	alternative 	course 	of 	action was 	available. 	Irrespective
of 	the 	foregoing, 	a charge will be 	sustained where 	it 	is 	shown
that 	the 	respondent 	would 	not have 	engaged 	in the 	complained-of
conduct but 	for an unlawful 	motivation, 	purpose or 	intent.
Carlsbad, 	id., at pp. 10-11.
The harm 	caused by the 	Association's 	conduct here 	is 	readily
apparent. 	Its 	action makes 	clear 	to employees 	who choose 	to
exercise 	their 	statutory 	guarantee 	not 	to participate 	in 	union
22

activities 	that, 	in so doing, 	they 	forfeit an opportunity to
participate 	in 	the 	academic 	decision-making process. 	Charging
Party's 	motivation 	in 	seeking a 	spot 	on 	the 	Committee 	was 	to
help his 	department have 	one 	of 	its members be 	selected 	for 	a
sabbatical, 	for the benefit of the applicant, 	the department 	and
the 	college 	at 	large. 	Due 	to 	the highly 	technical 	nature 	of 	the
department and 	the 	sabbatical 	leave 	request, 	as well 	as 	Charging
Party's 	own practical 	experience 	in the 	selection process, 	he
believed 	there 	would be 	a better 	chance 	for his 	colleague 	to
obtain 	the 	sabbatical 	leave 	if 	the 	department was 	represented 	on
the 	Committee. 	However, 	since 	Charging 	Party was 	not a member
of 	the 	Association, 	the Association president 	refused 	to consider
his 	request 	to participate. 	Such action has 	the 	natural
consequence 	of harming his 	right 	not 	to participate 	as 	a member
of 	the union, 	and a prima 	facie violation exists.
Such 	conduct by 	the Association 	is 	inherently destructive 	of
the 	employee's 	right 	not 	to participate 	in union activities. 	The
Association has 	negotiated 	for 	itself 	the 	exclusive 	avenue 	by
which 	a 	faculty member may 	serve 	on this 	academic 	Committee. 	It
has 	then 	foreclosed 	that 	avenue 	to nonmembers 	of 	the
organization. 	No clearer 	statement 	can be made 	that 	if 	the
employee 	chooses 	not 	to 	join the union, 	he 	sacrifices
involvement 	in a 	campus 	committee 	engaged 	in academic 	decision
making. 	The Association 	failed 	to offer 	any evidence 	that 	its
decision 	to 	exclude 	Charging 	Party was 	due 	to 	circumstances
23

beyond 	its 	control 	and 	that 	no 	alternative 	course 	of 	action was
available. 	On the 	contrary, 	the 	selection was exclusively
within 	its 	control.
Further, 	under Carlsbad, 	irrespective 	of any proffered
justification, 	the Association's motivation was 	to exclude
Charging 	Party because he was 	not 	a member. 	This 	is 	rank
discrimination 	and 	obviously 	not 	a 	lawful 	basis 	upon which 	to
base 	the 	selection decision. 	Given 	the 	uncontested 	conclusion
reached by 	the 	ALJ 	that 	his 	lack 	of 	union membership was 	the
sole 	reason Charging 	Party was 	rejected, 	the 	"but 	for" 	standard
of 	Carlsbad 	is 	met 	and 	the 	complaint 	should be 	sustained.
On the 	question of 	the 	duty of 	fair 	representation, 	the
Association's 	action will 	be 	deemed 	to 	violate 	this 	duty 	if 	it
is arbitrary, 	discriminatory, 	or 	in bad faith. 	See Rocklin
Teachers 	Professional Association 	(Romero) 	(1980) 	PERB Decision
No. 	124. 	In San Francisco Federation of Teachers, 	Local 	61,
CFT/AFL-CIO 	(Hagopian) 	(1982) 	PERB Decision No. 	222, 	the Board
found 	that 	the 	union had 	violated both 	sections 	3543.6(b) 	and
3544.9 when 	it 	required 	nonmembers 	to pay a 	fee before 	the
Federation would 	represent 	them 	in an arbitration hearing. 	The
collective 	bargaining 	agreement 	provided 	that 	only 	the
Association 	could 	decide 	when 	to appeal 	a grievance 	to
arbitration. 	The 	Board 	concluded 	that 	the 	union's policy of
imposing a 	fee 	on nonmembers 	was 	discriminatory, 	since 	it did
not 	similarly 	condition 	the 	processing 	of 	arbitration by
24

dues-paying members 	on 	their paying 	a 	specific 	fee 	for
arbitration. 	Thus, 	"the 	Federation has drawn a distinction
between members 	and 	nonmembers, 	and 	to 	this 	extent 	discriminated
against 	Charging Party." 	Id., 	at p. 	10.
Here, 	too, 	the Association controlled 	the exclusive means by
which 	Charging 	Party 	could participate 	on 	an 	academic 	committee.
As 	the 	Board 	also 	stated 	in San 	Francisco, 	"[o]nce 	an agreement
provides 	for a grievance procedure as 	in the 	instant case, 	it
must 	apply equally and 	fully to all 	the 	employees 	in 	the 	unit,
whether members or nonmembers." 	Id., 	at p. 	8. 	So, 	too, 	in the
present 	case, 	once 	the agreement provides 	the exclusive means by
which 	employees 	may be 	considered 	for 	serving on 	the 	Committee,
the 	selection procedure 	must 	apply 	equally and 	fully 	to 	all
employees 	in the unit, 	whether members or nonmembers. 	Thus, 	the
Association's 	discriminatory 	conduct 	in 	the 	present 	case 	violated
its 	duty 	of 	fair 	representation.
-
Alternatively, 	even 	if 	it 	could be 	concluded 	that 	selection
of 	Committee members 	was 	an 	internal 	union matter, 	under 	the
third 	step of 	the 	analysis 	the 	conduct 	involved 	in 	the 	selection
process 	is 	not 	insulated 	from 	inquiry 	if 	the matter has 	a
substantial 	impact 	on 	the 	relationship 	of 	unit 	members 	to 	their
employer. 	Charging 	Party amply demonstrated 	such 	an 	impact 	in
his 	presentation 	regarding 	the 	functioning 	of 	the 	Committee.66
6While 	Charging 	Party 	argued 	on appeal 	that 	service 	on
committees has 	an 	impact 	on a 	faculty member's 	promotional
opportunities, 	he 	failed 	to put any evidence 	in the 	record 	to
25

The 	faculty members 	on 	the 	Committee 	review 	sabbatical 	leave
requests 	from 	the 	campus 	at 	large. 	According 	to Charging Party,
committee 	members 	may add 	their 	own 	input 	or 	understandings 	to
supplement or 	explain the 	sabbatical 	leave 	requests. 	Faculty
members 	control 	one-half 	the 	votes 	on 	the 	Committee 	in deciding
the 	ranking 	and who will 	receive 	sabbaticals. 	That 	decision
impacts the various departments, 	since, 	according to the policy
statement, 	the person on sabbatical has 	an opportunity 	for
professional 	growth 	which 	"will 	result 	in more 	effective
services 	to the District" 	and, 	in the case at 	issue here, 	bring
more 	technical 	expertise 	into the department. 	Further, 	Charging
Party presented 	testimony 	that, 	based 	on his 	past 	experience
serving on 	the 	review 	committee, 	an applicant 	for 	sabbatical
leave has 	a better 	chance 	of being 	selected 	if 	there 	is 	someone
from his 	department 	on the 	Committee. 	Therefore, 	the 	selection
of members 	to 	the 	Committee 	does have 	a 	substantial 	impact 	on
-
the 	relationship of 	employees 	in the 	unit 	to 	their 	employer. 	As
a 	consequence, 	this 	conduct 	should be 	analyzed as 	if 	it did 	not
involve an 	internal 	union matter. 	As 	demonstrated above, 	such
analysis 	results 	in 	finding 	that 	the 	Association has 	violated
both 	sections 	3543.6(b) 	and 	3544.9.
this 	effect, 	and 	therefore 	this 	dissent 	is 	not based on 	this
argument. 	I 	would 	find a 	substantial 	impact 	without 	the 	need
to 	consider 	Charging 	Party's 	assertion 	regarding promotions.
This 	Board 	was 	established 	for 	the purpose 	of 	ensuring 	that
employees 	are 	guaranteed 	the 	rights 	granted 	to 	them by 	statute.
26

Chief 	among 	those 	rights 	is 	the 	right 	to 	either participate 	in
union activities 	or 	not, 	without 	such 	choice 	interfering with
the 	employment 	relationship or 	resulting 	in 	discriminatory 	or
retaliatory 	action 	against 	them by 	an 	employee 	organization.
In the present 	case, 	where 	the Association successfully
negotiated 	the 	right 	to 	select 	faculty 	representatives 	to
participate 	in an academic decision-making process, 	it did 	not
-
thereby acquire 	the 	right 	to exclude 	nonmembers 	from 	involvement
in 	that 	procedure. 	Having 	taken 	such 	action 	against 	Charging
Party, 	the 	Association violated 	its 	duty of 	fair 	representation
and 	discriminated 	and 	retaliated 	against 	and 	interfered 	with
Charging 	Party's 	right 	not 	to 	join 	the 	Association.
27

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
VINCENT 	J. 	FURRIEL,
Charging 	Party,
v.
RIO HONDO COLLEGE 	FACULTY
ASSOCIATION, 	CTA/NEA,
Respondent.
Unfair 	Practice
Case No. 	LA-CO-30 7
PROPOSED 	DECISION
(8/14/85)
Appearances: 	Vincent J. 	Furriel 	in Pro Per, 	Charles R.
Gustafson 	(California Teachers Association), 	Attorney for 	Rio
Hondo College 	Faculty Association, 	CTA/NEA.
Before Barbara 	E. 	Miller, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
On November 	5, 	1984, 	Vincent J. 	Furriel 	(hereinafter
Charging 	Party or 	Furriel) 	filed an 	Unfair 	Practice 	Charge
against 	the 	Rio Hondo College 	Faculty Association, 	CTA/NEA
(hereinafter Respondent or 	Association). 	In his Charge Furriel
alleges 	that 	the Association violated section 3543.6(b) 	of 	the
Educational Employment Relations Act 	(hereinafter EERA).111
Furriel 	alleges 	that 	the 	EERA was 	violated when 	the 	Association
1The 	EERA 	is 	codified 	beginning 	at 	Government 	Code
section 3540, 	et seq. 	Unless otherwise specified, 	all
statutory references 	are 	to 	the 	Government Code. 	Section
3543.6 provides, 	in relevant part, as follows:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
)
)
}
)
)
)
)
)
)
)
_____ 	)

failed 	to 	give him a 	position 	on 	the 	Sabbatical 	Leave Review
Committee 	(hereinafter, 	on occasion, 	Committee) 	allegedly
because 	the 	president of 	the 	Association 	refused 	to 	appoint 	a
"non-Association/non-dues 	paying 	member."
(b) Impose or 	threaten 	to impose reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees 	or 	otherwise
to interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
Pursuant 	to 	the procedures 	of 	the Public Employment
Relations 	Board 	(hereinafter 	Board or 	PERB), 	the charge was
investigated and a Complaint 	issued on November 	27, 	1984.
Thereafter, 	on December 	19, 	1984, 	the Association filed its
Answer 	variously 	admitting 	and 	denying 	the 	allegations 	in 	the
Charge/Complaint and, 	as an affirmative defense, 	alleging that
the 	designation 	of 	representatives 	to 	the 	Sabbatical 	Leave
Review Committee 	is 	strictly an 	internal 	union matter 	over
which 	PERB has 	no 	jurisdiction.
An 	informal 	conference was 	scheduled 	and when 	the 	parties
were unable 	to 	resolve their 	dispute, 	a 	formal 	evidentiary
hearing was 	scheduled and 	conducted on April 	15, 	1985.
Thereafter 	a 	responsive 	post-hearing 	briefing 	schedule was
established. 	The Charging Party filed an opening brief, 	the
Respondent 	filed a 	responsive brief, 	and 	thereafter 	the
Charging 	Party 	did not avail 	himself 	of 	the 	opportunity 	to 	file
22

a 	reply brief. 	Accordingly, 	on July 8, 	1985, 	the case was
submitted 	for 	proposed 	decision.
II. 	FINDINGS OF FACT
The Association 	is 	an 	employee 	organization within 	the
meaning of 	section 3540.l(d) 	of 	the 	EERA and 	it 	is 	the
exclusive 	representative 	of 	the 	certificated bargaining 	unit 	of
the Rio Hondo 	Community College District. 	Furriel 	is 	an
employee as 	that 	terms 	is defined in 	the Act, 	is 	a member of
the bargaining unit, 	but 	is not a member 	of 	the Respondent
Association.
The 	collective 	bargaining 	agreement 	between 	the 	Association
and 	the 	Community 	College 	District 	has 	an 	extensive 	article
providing for 	sabbatical 	leaves. 	The 	section 	entitled
"Approval of Sabbatical Leaves" provides, 	in relevant part, 	as
follows:
Sabbatical 	leave 	requests 	shall 	be 	reviewed
by 	a 	Sabbatical 	Leave 	Review 	Committee
comprised 	of 	three 	representatives
designated 	by 	the 	Faculty 	Association 	and
three 	representatives 	designated 	by 	the
District.
The 	thrust of 	Furriel's Complaint 	is 	that 	the Association 	did
not 	select him as 	one of 	its 	three 	representatives 	on 	the
Committee.
Furriel's Application 	for 	a Position on 	the 	Sabbatical 	Leave
Review 	Committee
Stephen A. 	Collins is an Associate Professor 	in 	the Public
Service 	Department and 	the 	Social 	Science 	Department 	of 	the Rio
Hondo Community College. 	Early 	in 	September 	1984, 	Collins
33

approached 	Furriel 	to 	discuss 	his 	interest 	in being selected
for 	a sabbatical. 	Furriel, 	who several years before had served
on 	the 	Sabbatical 	Leave Review Committee, 	told Collins 	that 	it
would be 	in 	Collins 1 interest 	if 	a member 	of his 	own 	department
served on 	the Committee and, 	apparently, 	Furriel volunteered to
serve 	in 	that 	capacity.
Thereafter, on or about September 24, 	1984, 	Collins
contacted Leon 	East, 	the president of the Association, 	and
inquired 	as 	to whether 	appointments 	had 	already been made 	to
the 	Sabbatical 	Leave 	Review 	Committee. 	Ascertaining 	that
appointments had not yet been made, 	Collins 	informed Mr. 	East
that 	Furriel was willing 	to 	serve on 	that 	Committee. 	Collins
testified 	regarding his 	recollection 	of 	East's 	response 	to 	his
nomination of 	Furriel 	for 	a position 	on 	the Committee. 	He
stated 	in 	response 	to 	Furriel's question:
My recollection 	is 	that Mr. 	East would be
very 	reluctant 	to 	appoint 	anyone 	to 	this
committee who was 	not 	a member 	of 	the
Faculty 	Association 	and 	he 	informed me 	that
you were not. 	I 	didn't know 	that at 	the
time. 	And that's 	the 	jist of 	it.
According to 	Collins, 	East 	did not 	set 	forth any criteria
for 	appointment 	to the Committee, 	but 	repeated, 	on several
occasions, 	that he would not be 	inclined 	to appoint 	someone who
was 	not 	a 	dues 	paying member 	of 	the Association. 	During direct
examination, 	Collins 	indicated 	that when he 	finished his
conversation with 	East, 	he had 	the 	clear 	impression 	that 	the
A4

Charging 	Party would 	not 	be 	considered 	for 	appointment 	to 	the
Committee because 	of his 	non-membership 	in 	the 	Association.
During the 	course of 	cross 	examination, 	Collins 	indicated
that 	East 	did 	not 	specifically 	say he would 	not 	appoint
Furriel, 	but 	that Collins 	clearly drew that 	inference. 	The
following 	conversation 	ensued 	between 	Collins 	and 	Charles
Gustafson, 	counsel 	for 	the Association:
Q. 	What precisely did Mr. 	East 	say on 	that
occasion 	from which 	you 	made 	the 	inference?
A. 	Well, 	I 	can't say precise that 	I 	can
recall.
Q. 	To the best 	of your 	recollection.
A. 	It was when 	I 	advised him that 	Mr.
Furriel was available for appointment, 	I
recall a silence, 	a sort of a chuckle, 	and
words 	being 	carefully 	selected 	then 	at 	that
point 	that 	Mr. 	Furriel was not 	a member 	of
the 	Faculty Association 	and 	that 	he,
Mr. 	East, would be very reluctant, 	emphasis
on that word, pauses again, 	to appoint
someone who was 	not 	a member 	of 	the
organization to 	a 	committee 	of 	this 	kind.
And 	it was 	reiterated 	in 	conversation more
than once, 	or 	it was said again, 	over my
protestation, 	that you know, 	that 	it didn't
seem to be an issue.
Q. 	What 	did you 	say 	in protestation?
A. 	Something like 	I 	didn't 	think 	that made
any 	difference 	or 	I 	didn't 	understand 	that
because he 	had been a member 	of 	this
committee 	in years 	past 	and 	some 	dismay 	on
my part.
Q. 	In response 	to your protestation, 	as you
characterize them, what did Mr. 	East say, 	if
anything?
un
	5

A. 	He 	again 	repeated 	his 	position 	that 	that
would 	not 	be 	something he would be willing
or 	likely to do.
In his 	testimony, 	Leon East's version of his 	conversation
with 	Collins 	differed in 	several 	respects. 	East 	testified that
he 	reported 	to Collins, 	not 	that he was 	disinclined 	to appoint
someone who was not a member 	of 	the Association, 	but 	rather 	he
questioned whether 	he had 	the 	authority to 	do 	so. 	Moreover,
East 	testified 	that 	during 	the 	course 	of 	the 	conversation, 	he
expressed 	surprise 	that 	someone 	who 	had 	recently 	terminated 	his
relationship with 	the 	Association would 	have 	any 	interest
whatsoever 	in 	serving on 	any 	committee. 	East 	further 	testified
that, 	based on his experience as Vice-President,
President-Elect and 	then President 	of 	the Association, 	he 	found
it 	extraordinarily 	difficult 	to 	find 	volunteers 	from among 	the
Association membership and, 	accordingly, 	to have 	someone
volunteer who was 	not a member 	of 	the Association, 	was quite
impressive.
Based upon 	the 	testimony of Collins and East, 	it 	is
concluded 	that 	Collins 	correctly 	interpreted 	East's 	remarks
and, 	at 	least at 	the time of 	the telephone conversation, 	East
had no 	intention 	of 	appointing anyone 	as 	a 	Committee member 	who
was 	not 	a member 	of 	the Association. 	East did not 	seem direct
in his 	testimony and although 	personable, 	he 	gave 	the
impression 	of 	withholding 	information.
6

The 	Faculty 	Meeting and 	selection 	of 	Members 	for 	the 	Sabbatical
Leave Review Committee"
A faculty meeting was scheduled for 	September 	27, 	1984, 	in
the 	District's board room at 	12:15 	p.m. 	The agenda 	of 	that
meeting made 	no 	reference 	to 	the 	fact 	that volunteers 	for 	the
Sabbatical 	Leave 	Review 	Committee were 	going 	to 	be 	sought.
East 	testified 	that 	the 	agenda was 	prepared prior 	to 	his
September 	24 	conversation with 	Collins 	and he had 	no particular
plausible explanation 	for 	his 	failure 	to 	include 	reference 	to
the 	Sabbatical 	Leave Review 	Committee. 	During 	the President's
report portion of 	the meeting, 	East 	indicated 	that he 	needed
volunteers 	for 	the 	Committee. 	By a 	show of hands 	he had 	two
volunteers. 	Nevertheless, 	he indicated that others, 	if
interested, 	should place 	their 	names 	on 	slips 	of 	paper 	and
submit 	them to him. 	East 	testified as 	follows:
After 	the meeting 	I 	had 	information and
names 	and 	so on 	on 	little 	slips of paper 	and
I 	sorted 	through all 	of 	those and 	I 	knew
that 	I 	had 	two volunteers by an 	indication
of hands 	during 	the meeting but 	I was
pleased to 	find 	I 	had another 	one 	that 	I
hadn't 	realized. 	Right after 	the meeting 	I
found 	that out.
When 	asked when 	he 	made his 	decision 	about who would 	serve 	on
the 	Sabbatical 	Leave Review Committee, 	East responded that he
made his 	decision within 24 	hours.
Although 	East 	testified 	that 	he 	seriously 	considered
Furriel's application, 	his 	testimony 	is not 	credited. 	The
77

basis 	for 	this 	conclusion 	is 	East's 	general 	demeanor 	while
testifying and 	his 	somewhat 	reluctant 	admission 	that 	he 	did 	not
establish 	any 	criteria 	for 	considering who 	should 	or 	should 	not
be 	on 	the 	committee. 	Although 	East 	testified 	that 	he had 	seen
Furriel 	interact with 	the previous 	President 	of 	the 	Association
and 	that he 	concluded his 	style was 	"bombastic," 	I 	find 	that
East 	reached 	that 	conclusion 	based 	upon 	a 	conversation with
Furriel 	after 	East 	had 	determined 	to 	accept 	the 	Association
member 	volunteers 	and 	reject 	Furriel's 	nomination.
That 	conversation, which took place on October 	2, 	1984,
was, 	according to East's recollection, 	fairly hostile. 	Furriel
challenged 	East's 	conclusion 	and 	decision 	and 	he 	challenged 	his
refusal 	to 	fairly consider 	Furriel. 	Although 	I 	do 	not 	dispute
East's conclusion that Furriel was hostile, 	I 	also do not
dispute 	Furriel's 	contention 	that 	he was 	not 	fairly 	considered
and he was 	not 	considered because he was 	not 	an 	active member
of 	the Association and 	in 	fact 	might be 	characterized as 	a
dissident.
Although 	East's 	actual 	justification 	for 	selecting 	the
members 	of 	the 	Sabbatical 	Leave 	Review 	Committee 	may 	indeed
have been valid, 	it 	appeared 	to 	the 	undersigned 	that 	those
justifications were 	articulated 	and 	considered 	for 	the 	first
time when East was 	examined by the 	undersigned, 	in 	other
words, 	it 	is 	found that 	East 	did not select 	Furriel because,
Co
s

for 	reasons which are not 	entirely clear, 	he 	disliked Furriel
and because 	Furriel was 	not a member 	of 	the 	Association. 	Upon
reflection, 	however, 	East was able 	to come up with any number
of 	different 	and 	less questionable 	reasons 	for 	not 	selecting
Furriel. 	For 	example, 	East testified that based upon his
observations of 	Furriel, 	Furriel was not entirely agreeable or
easy 	to 	get 	along with. 	Moreover, 	East 	testified 	that based on
his 	contact 	over 	the years with 	the persons who were 	selected,
he 	found 	that 	they were 	able 	representatives 	of 	the 	Association
and had what 	could 	generally be 	characterized 	as 	a 	committee
spirit.
For 	example, 	East selected Bob 	Beauchemin, who was an
instructor 	in 	the 	drafting program. 	East 	testified 	that
Beauchemin 	is 	fairly active 	in 	Association 	activities 	in 	that
he 	is 	one of 	the 	few people who attends meetings 	regularly.
Since 	1972, 	East has had numerous 	conversations with 	Beauchemin
and has 	reached 	the 	conclusion 	that 	Beauchemin 	is 	a
"thoughtful, 	considerate person and 	listens a 	lot." 	Moreover,
East 	testified 	that 	he 	trusts 	Beauchemin 	and knows 	"that 	he
doesn't make rash 	judgments. 	In my experience he's one who
thinks 	before 	he speaks. 	. . . "
East also appointed Alicia Hernandez, who 	is a 	counselor
for 	the 	college. 	He knows 	her because of her 	participation 	in
Association activities and because 	she 	refers 	students 	to him
99

in her 	role as 	a counselor. 	Finally, 	East appointed Leonora
Holder, 	an 	English 	teacher, 	who he 	characterized as 	perhaps 	the
most active 	in Association 	events 	of 	all 	those 	selected. 	When
asked 	if 	he 	seriously 	considered 	appointing 	Furriel 	when 	he 	saw
the three Association volunteers, 	East testified 	"yes, 	I
considered 	it and 	I was, 	had no trouble 	in ranking him as
fourth 	in 	the 	field of 	four."
East did candidly testify, 	however, 	that he did not
establish a 	list of 	criteria 	and he 	did not make a 	list 	of 	the
qualities 	or 	attributes 	of 	the 	candidates 	for 	the 	Sabbatical
Leave Review Committee. 	East also admitted, 	however, 	that he
thought 	Furriel's 	only 	interest 	in being on 	the 	Committee was
so 	that he 	could advance 	the 	interest of 	the person 	in his
department, namely Collins.
East's 	Conversation with 	Furriel 	After 	the 	Selection Process
According to Furriel, 	he had a 	conversation with East on
October 	2, 	1984, 	at which time he 	informed 	East 	that 	Collins
had 	reported 	East's 	lack 	of 	inclination 	to 	appoint 	someone 	on
the 	Sabbatical 	Leave Review 	Committee who was 	not 	a member 	of
the Association. 	Furriel asked East 	to 	reconsider 	his
position, 	and according to 	Furriel, 	East responded by stating:
He 	then repeated again 	that 	it was 	in his
opinion 	that 	as 	the 	Association President
and 	responsibility 	for 	appointing, 	that 	he
did not 	feel 	that 	he had 	to appoint
non-Association members, 	that he thought 	it
was within his 	purview 	to 	do exactly that,
appoint 	only Association members 	to 	these
committees.
10

According to 	Furriel, 	East 	further 	indicated that 	the 	subject
was moot, 	because 	the appointments had already been made.
Furriel also 	indicated that he 	told 	East 	that 	East's 	actions
were 	discriminatory and 	a violation 	of 	the 	contract. 	East's
recollection of 	the 	conversation 	is 	somewhat different.
Basically, 	the difference 	in his recollection has 	to 	do with
the 	tenor 	of 	the 	conversation. 	He 	stated 	"I 	recall 	an angry
man 	talking 	to me 	a 	lot 	on 	the phone 	and my doing a 	lot 	of
listening." 	East 	admitted 	that 	the 	topic of membership or
non-membership 	in 	the 	Association was 	discussed 	at 	length, 	but
he 	attributes 	the 	discussion 	to 	Furriel 	and 	stated 	that he
simply 	listened 	and 	ultimately 	responded 	by 	saying 	"it's 	too
late to 	do anything about this."
Based upon 	East's 	demeanor while 	responding 	to 	Furriel's
questions, 	and 	Furriel's 	aggressive 	and 	contentious manner 	of
asking questions 	during 	the hearing, 	it 	is 	concluded 	that
East's 	rendition 	of 	this 	particular 	conversation 	should be
credited.
The Relationship of 	Service on 	the 	Sabbatical 	Leave Review
Committee and 	a Committee 	Member's 	Employment with 	the
Community 	College 	District
Very 	little 	testimony was 	offered 	during 	the 	course 	of 	the
hearing as 	to what impact, 	if any, 	service on the 	Sabbatical
Leave Review Committee has 	on 	one's 	employment 	relationship
with 	the 	Community College District. 	It 	is 	clear 	that 	service
11

on 	the Committee does 	not 	result 	in 	any monetary 	compensation
nor 	in 	release 	time 	from one's 	regular 	teaching
responsibilities or 	office hours. 	It was acknowledged,
however, 	that when one served on 	the Committee 	the service 	did
not have 	to be 	in 	addition 	to 	the 	40-hour 	workweek 	certificated
employees were 	expected 	to be 	on 	campus.
Moreover, 	according to the testimony of Furriel, 	in his
annual 	evaluations, 	he did get 	credit 	for 	service 	on various
committees. 	There was no evidence, 	however, 	that his
non-appointment 	to 	the 	Sabbatical 	Leave 	Review Committee would
reflect 	negatively on his 	evaluation 	or 	that he was 	precluded
from 	serving 	on 	other 	university 	committees.
The 	Association's 	General 	Relationship with 	Non-Members
According 	to 	the 	uncontroverted 	testimony presented 	at 	the
hearing, 	membership in the 	Association 	is not a requirement on
the question 	of 	ratification 	of 	collective bargaining
agreements. 	Moreover, 	there 	is no discrimination between
members 	and non-members with 	respect 	to 	receipt of 	agendas of
Association meetings 	or 	the ability 	to attend 	such meetings 	and
to speak, debate, make motions and vote. 	Moreover, 	there is no
formal 	or 	informal 	policy or 	practice 	established by 	the
Association which 	precludes 	non-members 	from being 	selected 	to
serve 	on 	any 	committee appointed by 	the President 	of 	the
Association with 	the 	exception 	of 	the Community 	Involvement
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Committee, 	which 	is 	the political 	action 	arm of 	the Association
and, 	therefore, 	subject to extraordinary restrictions.
III. 	ISSUE
1. 	Since 	East 	failed 	to 	select 	Furriel because of his
non-membership 	in 	the Association, 	does 	such 	conduct 	violate
the 	EERA?
IV. 	CONCLUSIONS OF LAW
Section 	3544.9 	of 	the 	EERA provides as 	follows:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the appropriate 	unit.
This 	is 	the 	Legislature's 	statutory version of 	the 	duty 	of 	fair
representation as 	developed 	in 	the private sector. 	Vaca v.
=
Sipes 	(1967) 	386 U.S. 	171 	[64 LRRM 2369]; 	Ford Motor Co. 	v.
Huffman 	(1953) 	345 U.S. 	330 	[31 LRRM 2548]. 	The test
established by 	the 	Board 	to 	determine whether 	this 	section has
been violated, 	likewise, 	has been adopted from the private
sector.
For 	example, 	in Rocklin Teachers Professional Association
(Romero) 	(1980) 	PERB Decision No. 	124, 	the Board, 	following
federal 	precedent 	noted:
. . . 	a 	breach 	of 	the 	duty of 	fair
representation occurs when 	a 	union's 	conduct
toward a member 	of 	the bargaining unit 	is
arbitrary, 	discriminatory or 	in bad faith.
Id. at 7*
-
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See also California 	School 	Employees Association 	(Dyer) 	(1983)
PERB Decision 	No. 	342; 	Reed District 	Teachers Association,
CTA/NEA 	(Reyes) 	(1983) 	PERB Decision No. 	332.
Furriel 	claims 	that 	the 	Association 	discriminated 	against
him because he was 	not a member. 	I 	disagree. 	Although 	the
Association was 	free 	to appoint a non-member, 	it was 	not
obligated 	to 	do 	so.
The Committee 	is 	a 	creature of 	the 	collective bargaining
agreement between 	the 	Association and 	the District, 	and 	the
duties 	and 	responsibilities 	of 	the Committee are
comprehensively set 	forth 	therein. 	Under 	the 	terms 	of 	the
contract, 	appointment of employees 	to the Committee 	is 	solely
within 	the authority of 	the Association. 	As such, 	it 	is an
internal 	union matter which 	is 	not 	covered by 	the 	duty of 	fair
representation 	unless 	it has a 	"substantial 	impact 	on 	the
relationships 	of 	unit members 	to 	their 	employers." 	Service
Employees International Union, 	Local 99 	(Kimmett) 	(1979) 	PERB
Decision No. 	106, 	at 10. 	Here, while some impact may occur 	in
granting sabbattical 	leaves, 	it cannot be 	judged as
"substantial." 	That 	is 	the 	necessary conclusion because 	there
was 	no 	evidence 	that any unfairness 	existed 	in 	the 	operation of
the Committee. 	Rather, 	the Committee, 	as an extension of the
collective bargaining contract, 	is more akin to a 	negotiating
team. 	While 	the 	negotiating 	team acts 	to 	establish 	the
contract 	in 	the 	first 	instance, 	the committee similarly acts 	to
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administer 	a part of 	the 	contract. 	Because of 	the 	similarity
of 	functions, 	appointments 	to the Committee are not covered by
the 	duty of 	fair 	representation.
Indeed, 	it 	is well established that 	the exclusive
representative has 	the 	exclusive 	right 	to 	choose 	the members 	of
its bargaining 	committee 	and 	to 	determine how 	they are
selected. 	As noted in Kimmett, 	supra,:
[T]he election 	to select 	a representative 	to
the 	negotiating 	team 	is 	not 	subject 	to 	the
duty of 	fair 	representation. 	The
negotiating 	team must 	represent 	all
employees 	in the unit 	fairly, 	but 	that
obligation 	does 	not 	entail 	the 	selection 	of
negotiators 	in 	any particular 	matter. 	Id.
at 12.
Based on 	the 	foregoing, 	appointment 	to the Committee 	is 	not
covered by 	section 	3544.9. 	The Charging 	Party's 	Complaint 	is
therefore 	dismissed.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire record in 	this 	case, 	it 	is hereby ordered 	that
the 	unfair 	practice 	charge 	and 	complaint 	against 	the 	Rio 	Hondo
College Faculty Association, 	CTA/NEA, 	are DISMISSED.
Pursuant 	to 	California 	Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become final on September 	3, 	1985, 	unless a party files a
timely statement of 	exceptions, 	In 	accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify by page 	citation 	or
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exhibit 	number 	the portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California 	Administrative Code, 	title 	8,
part 	II, 	section 32300. 	Such 	statement 	of 	exceptions 	and
supporting brief 	must 	be 	actually 	received by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before the close of business 	(5:00 	p.m.) 	on
September 	3, 	1985, 	or 	sent by telegraph or 	certified United
States mail, 	postmarked not 	later 	than 	the 	last 	day 	for 	filing
in 	order 	to be 	timely filed. 	See California 	Administrative
Code, 	title 8, 	part III, 	section 32135. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 	8, 	part Ill, section 32300 	and 32305.
Dated: 	August 14, 	1985
Barbara E. Miller
Administrative Law Judge
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