American Federation of State, County and Municipal Employees (Cupp) (PERB 0612S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARY 	KATHERINE 	CUPP,
Charging 	Party,
v.
AMERICAN FEDERATION OF 	STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2620, 	AFL-CIO,
Respondent.
Case 	No. 	S-CO-59-S
PERB 	Decision 	No. 	612-S
February 	6, 	1937
Appearances: 	Mary Katherine Cupp, 	on her own behalf; 	Leonard
Potash, 	Representative 	for American 	Federation of 	State, 	County
and Municipal 	Employees, 	Local 	2620, 	AFL-CIO.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	appeal 	by
Charging 	Party Mary 	Katherine 	Cupp of 	a 	regional 	attorney's
dismissal, 	attached hereto, 	of her unfair practice 	charge
against 	the American 	Federation of 	State, 	County and Municipal
Employees, 	Local 	2620, 	AFL-CIO 	(AFSCME). 	In her charge, 	Cupp
alleged 	that 	AFSCME 	violated 	the 	State 	Employer-Employee
Relations 	Act 	(SEERA or Act) 	section 3519.5(b)1 by: 	(1)
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to the Government Code. 	Section 	3519 	states, 	in
pertinent 	part:
It 	shall 	be 	unlawful 	for 	an 	employee
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overcharging her 	on 	her 	monthly membership 	dues 	for 	two 	months
in which 	she worked part-time; 	(2) 	failing 	to keep 	financial
transaction 	records 	as 	required by 	SEERA section 	3515.7(e),
infra; 	(3) 	refusing to file grievances on Cupp's behalf; 	(4)
failing 	to 	provide 	sufficient 	training 	for AFSCME stewards; 	(5)
failing 	to negotiate 	improved wages; 	and 	(6) 	failing 	to
establish 	reasonable 	procedures 	for 	members 	to 	receive 	fair
share 	fee 	refunds.
The 	regional 	attorney 	dismissed 	the 	entire 	charge 	on 	the
grounds 	that 	it 	failed 	to 	state a 	prima 	facie 	case 	in 	that 	no
evidence 	was 	presented 	that 	AFSCME breached 	the 	duty 	of 	fair
representation, 	the 	failure 	to process 	grievances 	charge 	is
time-barred, 	and 	the proper 	manner 	to 	seek 	compliance 	with
SEERA section 	3515.7(e) 	is by 	filing a 	petition 	to 	compel
compliance, 	not by 	filing 	an 	unfair practice 	charge.
Cupp 	appealed 	the 	regional 	attorney's 	dismissal 	of 	three 	of
her 	allegations: 	the overcharging of dues; 	the 	failure 	to
maintain 	adequate 	financial 	records; 	and AFSCME's 	alleged
failure 	to process 	Cupp's 	grievance.
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.
2
• 	• 	• 	• 	• 	• 	•
2

We 	have 	reviewed 	the 	regional 	attorney's 	dismissal 	in 	light
of 	Cupp's 	appeal 	and AFSCME's 	response 	thereto, 	and we 	find his
determination 	should be 	affirmed 	and 	adopted 	consistent 	with
the 	discussion below. 	However, 	we 	refer 	Cupp's 	complaint
regarding 	the 	insufficiency of 	AFSCME's 	financial 	statement 	to
the 	regional 	office, 	to be processed as 	a 	Petition 	to Compel
Compliance.
DISCUSSION
Overcharging 	of 	Dues
The 	regional 	attorney 	analyzed 	this 	allegation 	as 	a 	breach
of 	the 	duty of 	fair 	representation. 	To 	establish a 	prima 	facie
violation 	of 	such 	a breach, 	charging party must 	allege 	facts
that 	would 	demonstrate 	the 	employee 	organization 	has 	acted
arbitrarily, 	discriminatorily, 	or 	in bad 	faith. 	The 	regional
attorney 	found 	that 	Charging 	Party 	failed 	to 	state 	a 	prima
facie 	violation 	of 	the Act, 	and based 	this 	conclusion 	solely on
a 	duty of 	fair 	representation 	analysis. 	However, 	Cupp has
alleged a 	violation of SEERA section 	3519.5(b), 	which
encompasses 	interference 	and 	reprisal 	as 	well 	as 	the 	duty of
fair 	representation. 	Since 	the 	charge does 	not 	contain
allegations 	that 	would 	support 	a 	claim of 	interference 	or
reprisal, 	the 	regional 	attorney's 	failure 	to consider 	these
theories 	is 	non-prejudicial 	to 	Charging 	Party.
The 	dues 	AFSCME charges 	its 	members 	are 	a 	set 	percentage 	of
the 	members' 	gross 	monthly 	income. 	Based on 	the 	employer's
report, 	the 	State 	Controller 	deducts 	that percentage 	from 	the
W	
3

employee's 	paycheck 	each month. 	In 	Cupp's 	case, 	the 	employer
apparently 	erred 	in 	authorizing 	the 	payment 	of her 	full 	salary
for 	October and November 	1985, 	while 	she 	was on partial 	leave.
Since 	Cupp 	received 	full-salary paychecks, 	the 	full 	amount 	of
dues 	was 	deducted, 	and AFSCME was 	sent 	a 	copy of 	the 	employer's
Payroll 	Deduction 	Report. 	Cupp notified AFSCME of 	the 	error.
She 	does 	not 	dispute 	the 	regional 	attorney's 	statement 	that
AFSCME made 	three 	attempts 	to 	reach her. 	AFSCME later 	followed
up with 	a 	letter 	to 	Cupp, 	explaining 	the 	procedure 	for 	the 	dues
deduction 	and 	asking 	Cupp 	for more 	information, 	since 	the 	only
official 	documents 	AFSCME had 	relating 	to 	the 	dues 	deduction
were 	the 	employer's 	reports 	that 	showed 	Cupp 	received 	full
wages. 	At 	the 	time 	Cupp 	filed her 	unfair practice 	charge, 	she
had 	not 	yet 	presented 	documentation 	to AFSCME 	that 	would
support her 	claim. 	Based on 	these 	facts, 	Cupp has 	failed 	to
sufficiently 	show AFSCME acted 	in 	an 	arbitrary, 	discriminatory,
or 	bad 	faith 	manner.
Typically, 	although not 	necessarily in all 	cases, 	the
manner 	in which 	a 	union 	calculates 	and 	assesses 	its 	dues 	for
its 	members 	is 	an 	internal 	union matter. 	In her 	charge, 	Cupp
claims 	that 	AFSCME breached 	its 	duty 	to 	fairly 	represent her by
charging 	dues 	in 	excess 	of 	the 	amount 	charged 	to other
members. 	However, 	she has 	failed 	to allege 	facts 	reflecting
that 	any overcharge 	was 	the 	result 	of 	conduct by AFSCME 	that
was 	even 	arguably arbitrary, 	discriminatory, 	or 	in bad 	faith.
Instead, 	as 	noted 	above, 	any overcharging appears 	to be 	the
44

result 	of 	a 	chain 	of 	events 	triggered by 	the 	inadvertent
payment 	of 	a 	full 	salary 	to 	Cupp 	for 	October 	and November 	of
1985, 	and 	not 	the 	result 	of 	any 	improper 	conduct by AFSCME.
Financial 	Records
Cupp 	alleges 	that 	AFSCME 	violated 	the 	Act 	by 	not 	meeting
the 	requirements 	of 	SEERA 	section 	3515.7(e)3 by 	failing 	to
make 	available 	to 	employees 	a 	record 	of 	AFSCME's 	financial
transactions 	which 	are 	certified by 	the 	AFSCME president,
treasurer, 	or 	comparable 	officer. 	Cupp claims 	the union 	is
required 	to mail 	the 	financial 	statement 	to each 	employee, 	and
that 	she 	did 	not 	receive 	a 	statement 	for 	1984 	until 	she made 	a
request. 	In 	addition, 	she asserts 	the 	1984 	financial 	statement
2PERB's 	determination 	that 	Cupp 	failed 	to 	state 	facts
showing 	a 	breach 	of 	AFSCME's 	duty of 	fair 	representation 	does
not 	preclude 	Cupp 	from 	other 	means 	of 	seeking 	a 	refund.
However, 	PERB 	is 	not 	the 	proper 	forum 	in which 	to 	seek 	such
relief.
3SEERA section 	3515.7(e) 	provides 	that:
Every 	recognized 	employee 	organization 	which
has 	agreed 	to a 	fair 	share 	fee 	provision
shall 	keep 	an 	adequate 	itemized 	record 	of
its 	financial 	transactions 	and 	shall 	make
available 	annually, 	to 	the board 	and 	to 	the
employees 	in the unit, 	within 	90 days 	after
the 	end of 	its 	fiscal year, 	a detailed
written 	financial 	report 	thereof 	in 	the 	form
of 	a balance 	sheet 	and an 	operating
statement, 	certified 	as 	to accuracy by 	its
president 	and 	treasurer 	or 	comparable
officers. 	In 	the 	event of 	failure of
compliance 	with 	this 	section, 	any employee
in 	the 	unit 	may petition 	the board 	for 	an
order 	compelling 	this 	compliance, 	or 	the
board 	may 	issue 	a 	compliance 	order 	on 	its
own motion.
5

was 	not 	properly 	certified.
The 	regional 	attorney 	stated 	that, 	even 	if 	Cupp's 	claims
were 	valid, 	violations 	of 	SEERA section 	3515.7(e) 	could 	not be
remedied 	through 	the 	unfair 	practice 	charge 	process. 	Relying
on 	Service 	Employees 	International 	Union, 	Local 	99 	(Kimmett)
(1979) 	PERB Decision No. 	106, 	which held that 	the appropriate
procedure 	for 	remedying 	such a 	violation 	is 	to 	file a petition
to 	compel 	compliance, 	the 	regional 	attorney dismissed the
charge by 	finding 	that 	Cupp 	failed 	to 	state 	a 	prima 	facie 	case.
The 	remedy 	for 	faulty 	financial 	records 	is 	to 	file 	a
petition 	compelling 	compliance 	instead 	of 	filing 	an 	unfair
practice 	charge. 	Nevertheless, 	we 	find 	the 	regional 	attorney
did 	not 	treat 	this 	allegation 	properly. 	Rather 	than 	forwarding
Cupp's 	complaint 	to 	the 	regional 	office 	for 	further action, 	he
dismissed 	the 	allegation 	and 	suggested 	that 	Cupp 	file 	a
petition 	to 	compel 	compliance 	pursuant 	to 	SEERA 	section
3515.7(e). 	PERB Regulation 32125(e)4 implements 	that section.
4 PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq. 	PERB
Regulation 	32125(e) 	provides:
A petition 	to 	compel 	compliance 	with
Government 	Code 	section 	3546.5 	or 	3587 	may
be 	filed by 	any 	employee 	belonging 	to 	the
organization. 	A petition 	to 	compel
compliance 	with 	Government 	Code 	section
3515.7(e) 	may be 	filed by any employee 	in
the 	unit. 	Such petition 	shall 	be 	filed 	in
the 	regional 	office 	and 	shall 	include 	the
names, 	addresses 	and 	telephone 	numbers 	of
the exclusive 	representative, 	the employer,
and 	the 	petitioning party.
66

The main 	requirement 	to 	invoke 	this 	regulation 	is 	that 	an
employee 	in 	the 	unit 	notify 	PERB 	that 	the 	union's 	financial
record 	is 	inadequate. 	Cupp has done 	this, 	and the 	regional
office 	should have 	treated her 	complaint 	as 	a 	petition 	to
compel 	compliance. 	We, 	therefore, 	transfer Cupp's 	complaint 	to
the 	Sacramento 	Regional 	Office 	with 	instructions 	to process 	it
in 	accordance 	with 	this 	discussion.
Failure 	to 	Process 	Grievances
In her 	charge, 	Cupp alleged 	that AFSCME 	refused 	to process
grievances 	on her behalf. 	The 	specific 	incidents 	she 	recited
occurred more 	than 	six 	months 	prior 	to 	the March 	3, 	1986 	filing
of 	Cupp's 	unfair 	practice 	charge.5 The 	regional 	attorney
stated 	in his 	April 	10 	warning 	letter 	to 	Cupp 	that 	she
"acknowledge[d] 	that 	[she 	had] 	not 	requested 	representation
from 	AFSCME 	in 	the 	six 	months 	immediately preceding 	the 	filing
of 	[her] 	charge on March 	3, 	1986." 	Although given an
opportunity 	to do 	so, 	Cupp did 	not 	respond 	to 	the 	regional
attorney's 	conclusion 	and 	this 	allegation 	was 	dismissed. 	The
5 SEERA section 	3514.5(a) 	provides, 	in pertinent part :
Any employee 	. 	. 	. 	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) 	. 	. 	.
However, 	when 	the 	charging party
demonstrates 	that 	resort 	to 	contract
grievance 	procedure 	would be 	futile,
exhaustion shall not be necessary. 	. 	. 	.
5
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regional 	attorney 	also 	found 	that 	there 	was 	no 	allegation 	of 	a
"continuing 	violation," 	nor had 	it become 	"futile" 	to 	request
AFSCME's 	representation. 	SEERA section 	3514.5(a) 	prohibits
PERB 	from 	issuing 	a 	complaint 	based 	upon 	conduct 	occurring 	more
than 	six 	months 	prior 	to 	the 	filing of 	the 	unfair 	practice
charge. 	Thus, 	the 	regional 	attorney properly dismissed 	Cupp's
allegation.
On 	appeal, 	Cupp states 	that 	she 	did 	request 	that 	the 	union
file 	a 	grievance 	for 	the 	over-collection of 	dues, 	and 	that 	it
was 	AFSCME's 	failure 	to 	grieve 	that 	"triggered 	this
complaint." 	Cupp 	does 	not 	claim 	that 	she 	informed 	the 	regional
attorney 	that 	she had 	requested 	representation 	in 	this 	matter,
nor 	did 	she 	amend her 	charge 	after 	receiving 	the 	warning
letter. 	This 	is 	an 	allegation 	not 	raised with 	the 	regional
attorney, 	and 	it may not be 	raised 	for 	the 	first 	time 	on
appeal. 	The 	regional 	attorney's 	dismissal 	of 	this 	allegation
is affirmed.
Other 	Allegations 	Dismissed
The balance 	of 	Cupp's 	appeal 	chastises 	the 	regional
attorney 	for 	siding with 	"the power," 	i.e., 	AFSCME, 	and claims
the 	dismissal 	is 	unfair 	to union members. 	Cupp 	fails 	to
specify 	any 	errors 	made by 	the 	regional 	attorney. 	PERB
Regulation 	32360(c) 	states:
The 	appeal 	must 	be 	in 	writing 	and must 	state
the specific issue(s) 	of procedure, 	fact,
law or 	rationale 	that 	is 	appealed 	and 	state
the 	grounds 	for 	the appeal.
8

Thus, 	the 	remainder 	of Cupp's 	appeal 	is 	insufficient 	to 	raise
further 	issues 	before 	this 	Board.
ORDER
Based on 	the 	foregoing, 	we AFFIRM 	the 	regional 	attorney's
dismissal. 	We 	also 	refer 	Cupp's 	complaint 	regarding 	the
sufficiency of 	AFSCME's 	financial 	records 	to 	the 	Sacramento
Regional 	Office 	to be processed 	as 	a 	Petition 	to Compel
Compliance.
Members 	Porter 	and 	Craib 	joined 	in 	this 	decision.
9

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, California 95814
(916) 322-3088
April 	18. 	1986
Mary Katherine 	Cupp
Re: Mary Katherine Cupp v. American Federation of State. 	County
and Municipal Employees. 	Local 2620. AFL-CIO.
Case No. 	S-CO-59-S
Dear Ms. Cupp:
On March 3, 	1986. 	you filed 	the above-captioned charge alleging
that the American Federation of 	State. 	County and Municipal
Employees, Local 2620, AFL-CIO (AFSCME) violated section
3519.5(b) 	of 	the State Employer-Employee Relations Act 	(SEERA
or Act) 	by 	(1) 	overcharging you on your monthly dues 	for 	the
months October and November 	1985; 	(2) 	failing to keep a
certified 	itemized 	financial 	record 	as 	required 	by section
3515.7(e) of the Act; 	(3) 	failing to represent you in
grievances against the State of California, 	Department of
Developmental Services (State or Employer); 	(4) failing to
provide proper steward training; 	(5) 	failing to negotiate
improved wages; 	and 	(6) 	failing to have reasonable procedures
for fair 	share reimbursement to employees.
I 	indicated to you in my letter dated April 	10. 	1986. 	that the
above-referenced charge did not state a prima facie case, 	and
that unless you amended 	the 	charge to state a 	prima facie case,
or withdrew it prior to April 11. 	1986. 	it would be dismissed.
More specifically. 	I 	informed you that 	if 	there were any
factual 	inaccuracies 	or 	additional 	facts which would 	correct
the deficiencies 	explained 	in that 	letter, 	you should amend 	the
charge 	accordingly.
I 	have not 	received 	either 	a 	request for withdrawal 	or 	an
amended 	charge 	and 	am therefore 	dismissing 	this 	charge 	based 	on
the facts and reasons contained in my April 10. 	1986, 	letter
which is 	attached as Exhibit 	1.

Right 	to Appeal
Pursuant 	to Public Employment Relations Board regulations, 	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 	(California Administrative
Code, 	title 8. 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five copies 	of 	such appeal 	must 	be actually
received 	by 	the Board 	itself 	before 	the 	close of 	business
(5:00 p.m.) 	on May 8. 	1986. 	or sent by telegraph, 	certified or
Express United 	States mail 	postmarked 	not 	later 	than May 8.
1986 	(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 	copies 	of 	a statement 	in opposition within twenty
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 each copy of 	a 	document 	served upon a
party or 	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 	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).
April 18. 	1986
Page 2

Final Date
If no appeal 	is filed within the specified time 	limits, 	the
dismissal will 	become final when the 	time 	limits 	have 	expired
Sincerely,
JEFFREY 	SLOAN
Acting General 	Counsel
By Michael Terris
Staff 	Attorney
Attachment
4530d
April 18. 	1986
Page 3

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3088
April 10, 	1986
Mary 	Katherine 	Cupp
Re: 	Mary Katherine 	Cupp 	v. 	American 	Federation 	of 	State,
County and Municipal Employees, 	Local 	2620, 	AFL-CIO,
Case 	No. 	S-CO-59-S
Dear Ms. 	Cupp:
On 	March 	3, 	1986, 	you 	filed 	the 	above-captioned 	charge 	alleging
that 	the 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees, 	Local 	2620, 	AFL-CIO 	(AFSCME) 	violated section
3519.5(b) 	of 	the 	State 	Employer-Employee 	Relations 	Act 	(SEERA
or 	Act) 	by 	(1) 	overcharging you 	on 	your 	monthly dues 	for 	the
months 	October 	and 	November 	1985; 	(2) 	failing 	to 	keep a
certified 	itemized 	financial 	record 	as 	required 	by 	section
3515.7(e) 	of 	the Act; 	(3) 	failing 	to represent you 	in
grievances 	against 	the 	State 	of 	California, 	Department 	of
Developmental 	Services 	(State or Employer); 	(4) 	failing to
provide proper 	steward 	training; 	(5) 	failing 	to 	negotiate
improved wages; 	and 	(6) 	failing 	to have 	reasonable 	procedures
for 	fair 	share 	reimbursement 	to 	employees.
Overcharge 	of 	Monthly Dues 	and 	Failure 	to 	Reimburse
The 	investigation 	revealed 	the 	following 	facts. 	During 	the
months 	of 	October 	and November 	1985, 	you 	were 	required 	for
personal 	reasons 	to 	take 	an 	unpaid 	leave 	of 	absence 	and,
accordingly, 	you worked 	approximately 	11 	days 	in 	each month.
However, 	for 	the month of October, 	you received, 	by mail, 	a
paycheck 	for 	your 	regular 	monthly 	salary. 	On 	your 	return 	to
work 	in 	late 	November, 	you were 	told 	by 	the 	Employer 	that 	the
check 	had 	been 	issued 	in 	error 	and 	that 	you 	were 	required 	to
reimburse 	the 	Employer. 	When 	you 	subsequently 	reimbursed 	the
Employer, 	you 	did not 	receive 	a 	revised 	pay stub. 	On
December 	1, 	1985, 	you 	received your 	November 	paycheck.
However, 	the check was again 	in error, 	paying you 	in 	full, 	even
though 	you 	were 	on 	unpaid 	leave 	status 	for 	approximately
one-half 	of 	the 	month. 	On 	receipt 	of 	the 	check, 	you 	returned
it 	and 	requested 	a payroll 	correction. 	You 	have 	a 	pay 	stub
reflecting 	the 	subsequent 	correction.
For 	the 	months 	of October 	and 	November 	1985, 	AFSCME 	assessed
you 	and 	had 	withdrawn 	through 	payroll 	deduction, 	full 	monthly
EXHIBIT 	I
-
~
~

dues. 	AFSCME charges members a fixed percentage of 	the
member's 	gross monthly salary. 	You contend 	that 	the assessment
by AFSCME was 	improper because you 	did not 	actually receive
your 	full gross salary for 	those months.
On or about December 10, 	1985, 	after realizing that you had
been fully assessed on your dues by AFSCME, 	you telephoned
AFSCME, spoke with a secretary, 	and requested reimbursement for
the overpayment. 	According to you, AFSCME never returned your
telephone call. 	AFSCME acknowledges that 	it received your
phone message but claims 	it was unsuccessful 	in attempting to
return your 	call on three separate occasions. 	On March 12,
1986, 	after 	the above-captioned charge was filed, 	AFSCME sent
you a 	letter 	explaining its dues deduction procedures and the
amounts deducted for 	the months of October 	and November. 	The
letter explained that the dues were computed from the State
Controller's monthly payroll deduction reports 	and 	that the
reports 	for 	the months of October 	and November 	indicated that
you received your 	full salary. 	The letter 	requested that 	if
you believed 	that 	there was a 	discrepancy 	in 	the Controller's
reported figures, 	you should forward a copy of your payroll 	•
check stubs to AFSCME for review and that, 	if there was indeed
an error, 	a refund would be made.
In phone conversations with this office you have stated that
you have been unable to obtain from the State a copy of your
October 	paycheck 	stub and that you 	consequently have been
unable to forward it to AFSCME for review. 	On March 14, 	1986,
you requested that an AFSCME shop steward, 	Harry Gaskins,
assist you 	in obtaining the pay stub from the Employer. 	To
date you have not received it.
Based on the foregoing facts, 	the allegation that AFSCME has
violated 	SEERA by overcharging you 	on your monthly dues 	for 	the
months of October and November 	1985 	fails 	to state a prima
facie violation of the Act. 	To establish a prima facie
violation for a breach of the duty of fair 	representation, 	the
Charging Party must set forth a clear 	and concise statement of
the facts demonstrating that the employee organization has
acted arbitrarily, 	discriminatorily or 	in bad faith. 	Fremont
Unified School District Teacher's Association, 	CTA/NEA 	(King)
(4/21/80) PERB Decision No. 	125; 	PERB Rule Section
32615(a)(5). 	No evidence has been presented that AFSCME has
Mary Katherine Cupp
April 	10, 	1986
Page 2

Mary Katherine Cupp
April 10, 	1986
Page 3
acted in such fashion. 	To the contrary, 	the evidence appears
to indicate that AFSCME reasonably relied upon 	the State
Controller's payroll deduction reports 	in good faith. 	While
AFSCME may have been remiss 	in only attempting 	to reach you by
telephone, 	and not in writing, prior to the filing of the
charge, mere negligence or poor 	judgment fail 	to constitute a
breach of 	the duty of 	fair representation. 	See United Teachers
of Los Angeles (Collins) 	(1/17/83) PERB Decision No. 258.
Failure 	to 	Keep Itemized and Certified 	Financial 	Records
The charge alleges that AFSCME breached 	its 	duty of fair
representation by not meeting the statutory requirements of
SEERA section 3515.7(e) 	by failing to make available to
employees 	an 	itemized record of 	the 	employee 	organization's
financial transactions, which were certified as 	to accuracy by
the organization's president, 	treasurer or comparable officer.
You claim that 	the phrase 	"make available" 	used 	in section
3515.7(e) 	requires AFSCME to mail 	the financial 	statement to
each and every employee within the bargaining unit. 	The
investigation revealed that AFSCME mailed to you an itemized -
financial record for 1984, 	but only after you made a request.
You also claim that the 1984 	financial 	statement was not
properly certified by an appropriate 	representative of AFSCME.
The 	investigation revealed that 	the 	financial 	statement was
prepared by 	a 	certified public accountant 	and presented to 	the
executive board of AFSCME on or about January 12, 	1985. 	On or
about March 16, 	1985, 	the executive board decided that it was
satisfied with 	the audit.
Assuming arguendo the validity of 	your 	claims 	that AFSCME has
failed 	to make available and to properly certify 	its annual
financial statements, the charge, nevertheless, fails to
establish a prima facie violation of SEERA section 3519.5(b).
In Kimmett v. 	Service Employees International Union, Local 99
(10/19/79) PERB Decision No. 	106, PERB held:
. . . 	a statute clearly 	indicates 	that 	the
appropriate procedures 	for 	remedying 	a
violation of section 3546.5 	[of 	the Education
Employment Relations Act, 	a section analogous

to SEERA section 3515.7(e)] 	is not to file an
unfair practice charge against 	the employee
organization, but to file a petition with
PERB seeking an order 	compelling compliance.
The proper manner 	to seek compliance with 	section 3515.7(e) 	of
SEERA is found in PERB regulation 32125(e) 	and 	(f), which reads
in relevant part:
(e) A petition to compel compliance with
Government Code section 3515.7(e) 	may be
filed by any employee in the unit. 	Such
petition shall be filed 	in the 	regional
office and shall 	include the names,
addresses, 	and telephone numbers of the
exclusive representative, the employer, and
the petitioning party.
(f) 	The petition to compel compliance shall
be filed not later 	than 	12 months following
the end of the exclusive 	representatives
preceding fiscal year.
Accordingly, 	the above allegation fails to state a prima facie
case.
Failure to Process Grievances
The charge alleges that AFSCME has 	refused to process
grievances on your behalf. 	Specifically, 	the charge alleges
that AFSCME refused to process grievances regarding 	(1) 	the
governor's 	reference 	in 1982-83 that public employees
retirement 	funds would be used to 	revive California real
estate; 	(2) 	a 1983 failure by the Employer to pay you a bonus
for two accepted merit award suggestions; 	and, 	(3) 	a 1983
incident 	involving the Employer's 	alleged breach 	of 	section
4600 of 	the Labor Code, which provides for employee designation
of personal physicians 	in work-related injuries.
You acknowledge 	that you have not 	requested 	representation 	from
AFSCME 	in 	the 	six months 	immediately preceding 	the 	filing 	of
your charge on March 3, 	1986. 	You assert, however, 	that
AFSCME's past pattern and practice 	of 	refusing your 	requests
Mary Katherine Cupp
April 10, 	1986
Page 4

Mary 	Katherine 	Cupp
April 10, 	1986
Page 	5
for 	representation have made 	such 	requests 	futile. 	Moreover,
you 	claim that 	the 	Employer's 	breach 	of 	Labor 	Code 	Section 	4600
is a continuing violation, 	and, 	thus, 	AFSCME's refusal 	in 1983
to 	represent 	you 	on 	the matter 	is 	a continuing breach 	of 	its
duty 	of 	fair 	representation.
The 	above 	allegation 	fails 	to 	establish 	a 	prima 	facie 	violation
of 	the Act. 	Under 	section 3515.5(a) 	of SEERA, 	the Board will
not 	"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." 	With 	respect 	to 	the 	specific
incidents 	raised 	in your 	charge, 	all 	of 	them occurred 	more 	than
two years prior 	to 	the 	filing 	of 	the 	charge 	in 	the present 	case.
The 	nature 	of 	the 	unfair 	practice 	charge 	which 	you 	have 	alleged
does 	not 	fall 	within 	the 	definition 	of 	"continuing 	violation."
Even assuming arguendo that 	the 	State has 	committed 	a
continuing 	violation 	by 	continually 	breaching 	Labor 	Code
section 	4600, 	this 	does 	not 	by 	itself 	establish 	that 	AFSCME 	has
committed a 	continuing violation 	of 	section 	3519.5(b) 	of
SEERA. 	PERB has 	recognized 	that 	violative 	conduct 	occurring
more 	than 	six 	months 	before 	a 	charge 	is 	filed 	may 	become 	the
basis 	for 	the 	issuance 	of 	a 	complaint 	if 	the 	conduct 	is
repeated within 	the 	six 	months 	of 	the 	filing 	date 	of 	the
charge. 	However, 	where there 	is 	no identifiable 	repetition 	of
the 	allegedly violative 	conduct 	within 	the 	six 	months 	preceding
the 	filing 	of 	the charge, 	no complaint will 	issue. 	(San
Diegito Onion High 	School 	District 	(2/25/82) 	PERB 	Decision
No. 	194.) 	The violation you allege does 	not 	appear 	to be
•continuing" 	because 	there was 	no 	recurrence 	of 	any 	conduct 	on
the part 	of 	AFSCME within 	the 	six months 	preceding 	the 	filing
of 	the 	charge. 	As you acknowledged, 	you have 	not 	requested
that 	AFSCME 	represent 	you 	during 	that 	six-month 	period.
Your 	failure 	to 	request 	representation 	during 	a 	statutory
six-month period prior 	to 	the 	filing 	of 	the 	charge 	is 	not
excused by your 	claim that 	it 	had become 	"futile" 	to 	make 	such
requests because 	of 	AFSCME's 	past 	practice 	of 	refusing 	to
represent you. 	There 	is 	no 	evidence 	that AFSCME's 	past
refusals were made 	in bad 	faith 	or 	in 	an 	arbitrary 	or
discriminatory 	manner 	nor 	that 	a 	reasonable 	person 	would 	have
concluded 	that 	AFSCME's 	conduct 	made 	it 	futile 	to 	renew 	one's
requests 	for 	representation 	on 	different 	matters.

Mary 	Katherine 	Cupp
April 	10, 	1986
Page 6
Failure 	to 	Properly 	Train 	Shop 	Stewards
The 	charge 	alleges 	that 	AFSCME 	has 	breached 	its 	duty 	of 	fair
representation 	by 	failing 	to 	properly 	train 	shop 	stewards. 	As
evidence of 	this 	violation, 	the charge 	notes 	that 	the 	1984
financial 	statement 	states 	that 	only 	$1,013.65 	was 	allocated
for 	steward 	training 	during 	that 	fiscal 	year.
In Kimmett v. 	Service Employees 	International Union, 	Local 	99,
supra, 	PERB Decision No. 	106, 	the Board noted 	that 	the 	duty of
representation 	does 	not 	apply 	to 	"internal 	union
activities 	that 	do 	not 	have 	a 	substantial 	impact 	on 	the
relationships 	of 	the unit members 	to 	their 	employers" 	and 	that,
internal 	union 	activities 	that 	do 	not 	have 	such 	an 	impact 	are
not 	subject 	to 	the 	duty of 	fair 	representation." 	The 	amount 	of
money that 	an 	employee 	organization wishes 	to 	spend 	on 	steward
training 	is 	an 	internal 	union 	activity. 	Although 	the 	amount 	of
money 	spent 	on 	steward 	training 	may 	have 	an 	indirect 	impact 	on
employer-employee 	relations, 	the 	impact 	is 	attenuated 	by 	the
numerous 	other 	variables 	that 	affect 	a 	steward's 	ability 	to
handle employer-employee relations.
Accordingly, 	the 	allegation 	fails 	to 	establish 	a 	prima 	facie
violation.
Failure 	to 	Negotiate 	Reasonable 	Salaries
The 	charge 	refers 	to 	the 	low 	salaries 	negotiated 	by AFSCME 	and
implies 	that AFSCME 	has 	breached 	its 	duty 	of 	fair
representation by 	not 	negotiating 	better 	wages. 	The 	charge
fails 	to present 	any 	evidence 	that 	AFSCME 	negotiated 	wages 	for
unit 	employees 	in 	bad 	faith 	or 	in 	an 	arbitrary or
discriminatory manner. 	In Rocklin Teachers Professional
Association 	(3/26/80) 	PERB Decision No. 	124, 	the Board stated:
A 	union's 	duty 	to 	fairly 	represent 	employees
during 	negotiations 	does 	not 	encompass 	an
obligation 	to 	negotiate 	any 	particular 	item
and, 	in 	this case, 	the Charging Party has
failed 	to 	demonstrate 	that 	the 	association's
failure 	to 	negotiate 	benefits 	violated 	any
affirmative 	duty 	it 	owed 	to 	the 	unit
members. 	A prima 	facie 	case 	alleging
arbitrary 	conduct 	violative 	of 	the 	duty 	of
fair 	representation must, 	at 	a minimum,

Mary 	Katherine 	Cupp
April 10, 	1986
Page 	7
include 	an 	assertion 	of 	sufficient 	facts
from which 	it becomes 	apparent 	how or 	in
what 	manner 	the 	exclusive 	representatives
action 	or 	inaction was without 	a 	rational
basis 	or 	devoid of 	honest 	judgment.
[Citation omitted.] 	While 	the 	Board
recognizes 	that 	it may be 	difficult 	to 	set
forth with 	exactitude 	the 	irrational 	or
arbitrary nature 	of 	the 	union's 	conduct
toward 	the unit membership, 	its 	requirement
is 	necessary in 	order 	to 	ensure 	that 	the
bargaining agent, 	faced with 	the 	impossible
task 	of 	pleasing 	all 	of 	the 	people 	all 	of
the time, 	is afforded a broad range of
discretion 	and 	latitude. 	The 	exclusive
representatives 	obligation 	during 	the
collective 	negotiating 	process 	necessarily
involves 	a high 	degree 	of 	give 	and 	take,
compromise and 	trade 	off 	and, 	therefore,
cannot 	be 	subjected 	to 	a 	standard 	more 	rigid
than 	is 	consonant with 	the 	realities 	of 	the
bargaining process. 	Because 	the 	task 	of
bargaining 	demands 	a 	balancing 	of 	benefits
against burdens, 	a union should not be
required 	to 	justify every 	decision 	it 	makes
at 	the bargaining 	table.
The 	investigation has 	revealed 	no 	evidence 	that 	AFSCME's
conduct 	in negotiating 	salaries 	for 	unit 	employees 	has 	exceeded
"the bounds 	of 	reasonable 	latitude" 	set 	forth 	in Rocklin
Teachers Professional Association and, 	accordingly, 	the 	charge
fails 	to 	establish 	a breach 	of 	AFSCME's 	duty 	of 	fair
representation.
Failure 	to 	Provide 	a 	Reasonable 	Fair 	Share 	Refund 	Procedure
The 	charge 	alleges 	that 	AFSCME has 	breached 	its 	duty 	of 	fair
representation 	by 	failing 	to provide 	for 	a 	reasonable,
uncomplicated 	refund procedure 	for 	fair 	share 	fee 	employees.
The 	investigation 	revealed 	that 	you 	have 	been 	a 	member 	of
AFSCME since January 20, 	1982. 	Accordingly, 	you 	do not have
standing 	to 	allege 	a 	violation 	of 	section 	3515.8 	of 	the 	SEERA
regarding of 	reimbursement 	of 	fair 	share 	fees. 	Section 	3513(j)
of 	the 	Act 	defines 	fair 	share 	fee 	and 	states:

Mary Katherine Cupp
April 10, 	1986
Page 8
"Fair 	share fee" 	means the 	fee deducted by
the State employer 	for 	the salary or wages
of a State employee in an appropriate unit
who does not become a member 	of and
financially support 	the 	recognized 	employee
organization. 	The fair 	share fee shall be
used to 	defray the cost 	incurred by the
recognized employee organization in
fulfilling its duties to represent the
employees 	in their employment relations with
the State, 	and shall not exceed the standard
initiation fee, membership dues, and general
assessments of 	the recognized employee
organization.
Only fair share fee paying employees have 	the 	limited right to
demand 	and 	receive 	from the 	recognized 	employee 	organization
certain reimbursement of payments under 	section 3515.8. 	There
is no provision under 	the Act providing for 	reimbursement of
fair 	share fees 	to voluntary members of 	an employee
organization. 	Accordingly, 	the above allegation fails to state
a prima facie violation of the Act.
For these reasons, charge number S-CO-59-S, as presently
written, 	does not state a prima facie case. 	If you feel that
there are any factual inaccuracies 	in this letter 	or any
additional 	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. 	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 	April 	17. 	1986,
I 	shall dismiss your charge. 	If you have any questions on how
to proceed, please call me at (916) 	323-8015.
Sincerely,
Michael/Terris
Staff 	Attorney
4434d
,