Los Rios College Federation of Teachers, American Federation of Teachers/CIO (Barth) (PERB 0882E)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NORMAN P. 	BARTH,
Charging 	Party,
v.
LOS 	RIOS 	COLLEGE 	FEDERATION
OF TEACHERS, AFT/CIO,
Respondent.
Case No. 	S-CO-255
PERB Decision No. 	882
May 24, 	1991
Appearances: 	Norman P. 	Barth, 	on his own behalf; 	Law Offices of
Robert J. 	Bezemek by Anne B. 	Weills, 	Attorney, 	for Los Rios
College Federation of Teachers, 	AFT/CIO.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Norman P. 	Barth
(Barth) 	of a regional attorney's dismissal 	(attached hereto) 	of
his unfair practice charge. 	In his 	charge, 	Barth alleged that
the 	Los 	Rios 	College Federation of 	Teachers 	(Federation) 	violated
section 	3543.6(b) 	of 	the Educational 	Employment Relations Act
(EERA),1 by discriminating against employees when it based the
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
All 	statutory references 	herein are 	to 	the Government Code.
Section 3543.6 	states, 	in pertinent part:
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.
)
)
)
)
)
)
)
)
)
)
______________ )

amount of organizational 	security 	fees 	on a percentage of 	a
bargaining unit member's 	salary and 	section 	3544.9 2 of 	EERA, 	by
not 	fairly representing 	each 	and 	every 	employee 	in 	the 	unit 	in
establishing the 	fee. 	The 	regional 	attorney correctly 	concluded
that 	the 	charge did not 	state 	a prima 	facie 	case 	as 	to 	either
alleged violation. 	However, 	his 	conclusion that the Federation
did 	not 	breach 	its 	duty to 	fairly 	represent 	the bargaining 	unit
members 	is 	not 	sufficiently 	supported 	in the warning 	letter.
In order to 	state 	a prima 	facie violation of 	the duty of
fair representation, 	a 	charging party must 	show that 	the
exclusive representative's 	conduct was 	arbitrary, 	discriminatory,
or 	in bad 	faith 	(United Teachers 	of 	Los Angeles 	(Collins) 	(1982)
PERB Decision No. 	258). 	There must, 	at a minimum, 	be an
assertion of 	sufficient 	facts 	from which 	it becomes 	apparent 	how
or 	in what 	manner the 	exclusive 	representative's 	action was
without 	a 	rational 	basis 	or devoid of 	honest 	judgment 	(Reed
District Teachers Association, 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332). 	The present charge does not include
sufficient 	facts 	from which 	it 	can be 	determined 	how the
Federation's 	action was without 	rational 	basis 	or devoid of
honest 	judgment 	or was 	discriminatory or 	in bad 	faith.
2EERA section 	3544.9 	states 	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.
N	
2

Accordingly, 	the 	regional 	attorney 	correctly concluded 	that 	the
charge 	fails 	to allege 	sufficient 	facts 	to 	establish a prima
facie 	case of a violation of 	EERA 	section 	3544.9.
We 	have 	reviewed the 	regional 	attorney's 	dismissal 	in 	light
of the above discussion, 	Barth's appeal, 	and the entire record in
this 	matter 	and adopt that dismissal 	as 	the decision of 	the 	Board
itself.3
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-255 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson 	Hesse 	and Member Camilli 	joined 	in this 	Decision.
3The 	correct citation to the Hudson case, 	cited by the
regional 	attorney 	in his warning 	letter, 	is 	Chicago Teachers
Union v. 	Hudson (1986) 	475 U.S. 	292.
33

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 25, 	1991
Norman P. 	Barth
Re: 	Norman P. 	Barth v. 	Los Rios College Federation of Teachers.
AFL-CIO
Unfair Practice Charge No. 	S-CO-255
DISMISSAL 	LETTER
Dear Mr. 	Barth:
On December 	13, 	1990, 	you filed the above-referenced charge
against Los 	Rios 	College 	Federation of Teachers 	(Federation)
alleging a violation of Government Code 3543.6(b). 	Specifically
you 	allege 	that 	the 	Federation has 	discriminated against
employees 	and 	failed 	to properly represent 	employees 	because 	the
Federation has 	tied the 	amount 	of 	organizational 	security 	fee 	to
salary level.
I 	indicated to you 	in my attached letter dated February 	14, 	1991,
that 	the 	above-referenced charge did not 	state 	a prima 	facie
case. 	You were advised that 	if there were any factual
inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised that unless 	you
amended the charge to 	state a prima 	facie 	case, 	or withdrew it
prior to February 25, 	1991, 	the charge would be dismissed.
I 	have 	not 	received 	either a 	request 	for withdrawal 	or an amended
charge. 	However, 	I did receive your letter of February 	16, 	1991,
stating that you chose not to 	file an amended charge. 	I 	am
therefore 	dismissing 	the 	charge based on the 	facts 	and 	reasons
contained in my February 	14, 	1991, 	letter.
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 Code of Regulations, 	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.) 	or 	sent by
telegraph, 	certified or Express 	United States mail postmarked no
later than the 	last date 	set 	for 	filing 	(California
•

Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall apply. 	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 	(California Code 	of
Regulations, title 8, 	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 California Code of Regulations,
title 	8, 	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 	(California 	Code 	of
Regulations, title 8, 	section 32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Bernard 	McMonigle
Regional 	Attorney
Attachment
2
•
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
322-3088
February 14, 	1991
Norman P. 	Barth
Re: 	Norman P. 	Barth v. 	Los 	Rios College Federation of Teachers,
AFL-CIO
Unfair Practice Charge No. 	S-CO-255
WARNING 	LETTER
Dear Mr. 	Barth:
On December 	13, 	1990, 	you filed the above-referenced charge
against Los 	Rios 	College Federation of Teachers 	(Federation)
alleging a violation of Government Code 3543.6(b). 	Specifically
you 	allege 	that 	the Federation has 	discriminated against
employees 	and 	failed to properly represent 	employees 	because 	the
Federation has 	tied the amount of organizational 	security 	fee 	to
salary level.
My 	investigation reveals 	that 	the 	Federation 	currently 	charges
dues 	to members based on a 	sliding 	scale which relates 	the 	amount
of dues 	to 	salary level. 	Nonmembers 	are 	charged 	seventy-five
percent of the amount of dues 	charged to members. 	Accordingly,
nonmembers 	charges 	are also based on a 	sliding 	scale 	related 	to
salary.
To establish a discrimination violation, 	it must 	shown that the
employee participated 	in protected activity, 	and that 	the 	adverse
action was 	motivated by the 	employee participation 	in protected
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210) 	You have 	set forth no 	facts which establish that the
Federation is 	charging organizational 	security 	fees 	in a
discriminatory manner based 	on 	employee participation 	in
protected activities. 	Accordingly, 	you have not 	shown that the
union has 	discriminated against 	the 	employees.
You 	contend that 	"the 	organizational 	security 	fee 	must 	be paid 	by
nonmembers 	on no other basis 	than an equal 	division of 	the 	cost
of 	representation." 	You appear to base 	this position in part 	on
Hudson v. 	Chicago Teachers 	(1986) 	475 U.S. 	292. 	The Hudson case
dealt with the 	constitutional 	requirements 	for an employee
organization's 	collection of 	agency 	fees. 	Those requirements
include an adequate 	explanation for the basis of the 	fee, 	an
opportunity to 	challenge 	the amount, 	and 	escrow of 	amounts
reasonably in dispute while the challenge 	is pending. 	The 	case
(91)

makes 	clear 	that 	an objector may not be 	charged 	for purposes
unrelated 	to 	collective 	bargaining. 	However, 	in Hudson the
Supreme 	Court did 	not 	determine 	that 	all 	nonmembers 	must 	be
charged the 	same agency 	fee.1
Recently 	the 	California 	Supreme Court 	held 	that 	the 	Educational
Employment 	Relations Act 	gives 	nonmembers 	the 	right 	to refuse 	to
pay 	to 	support 	union activities 	which 	are beyond 	the 	scope 	of 	its
obligation as 	the 	exclusive representative. 	(Cumero v. 	Public
Employment Relations Board 	(1989) 	49 CA3d 	575). 	As 	the Cumero
court made 	clear a 	nonmember has 	a right 	to be 	assured 	that 	a
service 	fee 	is 	collected 	and 	spent 	only on the 	employee
organization's 	representational 	obligations. 	Once this 	has 	been
accomplished, 	a union has met its duty. 	There appears 	to be no
existing mandate, 	in either statutes or case law, 	that a union
must 	charge the 	same amount 	of 	service 	fee 	to all 	individuals
represented.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that 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 must 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
February 25, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
BMC:djt
1 I n Hudson, 	the 	union charged nonmember 	teachers 	$16.40 	a
month and 	"other covered 	employees" 	$11.54 	per month.
N
,
2