Oakland Education Association (Bettencourt, et al.) (PERB 1309E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAMES R. 	BETTENCOURT, 	ET AL.,
Charging Parties,
v.
OAKLAND EDUCATION ASSOCIATION,
Respondent.
)
)
) 	Case No. 	SF-CO-354
PERB Decision No. 	1309
January 	27, 	1999
)
)
)
)
)
)
Appearances: 	National Right 	to Work Legal Defense 	Foundation,
Inc. 	by John C. 	Scully for James R. 	Bettencourt, 	et al.;
California Teachers Association by A. 	Eugene Huguenin, 	Jr.,
Attorney, 	for Oakland Education Association.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	partial
dismissal 	(attached) 	of James R. 	Bettencourt, 	et al.'s 	(Charging
Parties) 	unfair practice 	charge. 	The 	charge alleged that 	the
Oakland Education Association 	(Association) 	breached 	the 	duty 	of
fair representation set 	forth 	in section 3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA) 	and thereby violated
EERA section 3543.6(b) 	when 	it used a portion of 	the agency 	fee
paid by non-members 	to support 	activities 	not 	related 	to
collective bargaining 	or 	contract 	administration.1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.6 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the warning and dismissal
letters, 	Charging Parties' 	appeal and the Association's 	response
thereto.2 The 	Board 	finds 	the warning and dismissal 	letters 	to
be 	free 	from prejudicial 	error and adopts 	them as 	the 	decision of
the Board 	itself.
(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.
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.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SF-CO-354 	is hereby AFFIRMED.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
2The Board agent 	issued" a 	complaint 	on the allegation that
the Association 	failed to provide 	Charging 	Parties 	with adequate
financial 	information to 	support 	the amount 	of 	the agency 	fee.
(See 	San Ramon Valley Education Association 	(1990) 	PERB Decision
No. 	802.) 	This failure does not, 	of course, 	make the
Association's 	Agency 	Fee Appeals 	Procedure 	insufficient 	on 	its
face.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 6, 	1998
John C. 	Scully, 	Staff Attorney-
National 	Right 	to Work
Legal Defense Foundation, 	Inc.
8001 	Braddock 	Road
Springfield, 	Virginia 	22160
Re: 	James R. 	Bettencourt, 	Joyce Carson, 	Maurice R. 	Cierra,
Barbara Covarrubias, 	Marilyn A. 	McCabe. 	Aileen Moffitt,
Elias Nackard, 	Stephen O'Donoahue, 	Wesley E. 	Richert and
Carol A. 	Steininger v. 	Oakland Education Association
Unfair Practice 	Charge No. 	SF-CO-354
PARTIAL 	DISMISSAL 	LETTER
Dear Mr. 	Scully:
The 	above-referenced 	charge 	alleges 	that 	the 	Oakland 	Education
Association 	(Association) 	collected 	from Charging Parties 	an
agency fee 	for the 	1988-89 	school 	year 	in violation of 	the
Educational Employment Relations Act 	(EERA). 	The alleged
violations 	are: 	(1) 	the 	fee was 	collected and used to reimburse
the Association 	for 	costs 	other 	than 	collective 	bargaining and
contract 	administration and 	(2) 	the 	fee was 	collected 	in a manner
that 	failed to minimize 	the 	risk 	that 	the 	Charging Parties' 	funds
would be 	used 	to 	finance 	ideological 	activities 	unrelated to
collective bargaining. 	This 	conduct 	is 	alleged to violate
sections 3543, 	3544.9 	and 3543.6(b) 	of the EERA.
I 	indicated to you, 	in my attached letter dated August 	31, 	1998
that 	certain allegations 	contained in 	the 	charge 	did not 	state 	a
prima 	facie 	case. 	You were 	advised that, 	if 	there were any
factual 	inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended these
allegations 	to 	state 	a prima 	facie 	case 	or withdrew them prior to
September 10, 	1998, 	the allegations would be dismissed. 	This
deadline was 	extended at your.request,,to September 21, 	1998.
I 	have 	not 	received either 	an 	amended charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing those allegations which
fail 	to 	state 	a prima 	facie 	case 	based on 	the 	facts 	and reasons
contained in my August 	31, 	1998 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	certain 	allegations
contained 	in 	the 	charge by 	filing 	an 	appeal 	to 	the 	Board 	itself
r
==-~~-	-_-_-_-_	-_

within twenty 	(20) 	calendar days 	after service 	of 	this 	dismissal.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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 p.m.) 	or sent by telegraph, 	certified or Express United States
mail 	postmarked no 	later 	than 	the 	last 	date 	set 	for 	filing.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	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 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, 	sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in 	the 	first-class 	mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a 	document
with the Board 	itself, 	must 	be 	in writing and filed with 	the
Board 	at 	the 	previously noted 	address. 	A request 	for 	an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request must 	indicate good cause 	for and, 	if 	known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
22

Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Attachment
cc: 	Diane Ross

STATE OF CALIFORNIA 	' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
August 31, 	1998
John C. 	Scully, 	Staff Attorney
National 	Right 	to Work
Legal Defense Foundation, 	Inc.
8001 	Braddock 	Road
Springfield, 	Virginia 	22160
Re: 	James R. 	Bettencourt, 	Joyce Carson. 	Maurice R. 	Cierra,
Barbara Covarrubias. 	Marilyn A. 	McCabe, 	Aileen Moffitt,
Elias Nachard, 	Stephen O'Donoqhue, 	Wesley E. 	Richert and
Carol A. 	Steininqer v. 	Oakland Education Association
Unfair Practice Charge No. 	SF-CO-354
PARTIAL 	WARNING 	LETTER
Dear Mr. 	Scully:
The 	above-referenced 	charge 	alleges 	that 	the 	Oakland 	Education
Association 	(Association) 	collected 	from Charging Parties 	an
agency fee 	for 	the 	1988-89 	school 	year 	in violation of 	the
Educational Employment Relations Act 	(EERA). 	The alleged
violations 	are: 	(1) 	the 	fee was 	collected and used to reimburse
the Association 	for 	costs 	other 	than 	collective 	bargaining 	and
contract 	administration and 	(2) 	the 	fee was 	collected in a manner
that 	failed to minimize 	the 	risk that 	the 	Charging Parties' 	funds
would be 	used 	to 	finance 	ideological 	activities 	unrelated to
collective bargaining. 	This 	conduct 	is 	alleged to violate
sections 3543, 	3544.9 and 3543.6(b) 	of the EERA.
My 	investigation revealed the 	following 	information. 	The 	eleven
original 	Charging 	Parties were members 	of 	the bargaining unit
exclusively 	represented by 	the 	Association 	during 	the 	1988-89
school year.1 During this period, 	the Association and the
Oakland Unified School 	District 	(District) 	had a 	collective
bargaining agreement with the 	effective dates of 	July 1, 	1988
through June 30, 	1991. 	Article 18, 	Organizational Security, 	of
the 	agreement 	provides 	that 	a unit member who is 	not 	a member of
the Association 	shall 	pay -an agency 	fee-to 	the Association.
On December 20, 	1988, 	the Association provided all 	agency fee
payers 	with 	a 	notification 	regarding 	the 	collection 	of 	agency
fee. 	The notice provided that 	the 	chargeable 	fee 	for 	the 	1988-89
school year 	for 	the 	California Teachers Association was 	83.1
percent 	of 	union dues 	and the 	chargeable 	fee 	for 	the 	National
Education Association for the 	same year was 	78.4 	percent. 	The
one 	of the Charging Parties, 	Carolyn S. 	Anderson, 	has
withdrawn 	from the 	case.

notice 	also provided 	for an agency 	fee payer to 	challenge 	the
calculations 	and 	that 	arbitration would be 	provided 	for 	a 	review
of that 	challenge. 	More specifically, 	the notice 	states:
In addition, 	if you wish to challenge the
calculation for CTA's, 	NEA's 	or your local
chapter's 	chargeable 	expenditures 	in 	an
arbitration hearing, 	you must 	also make 	this
request 	in writing to Mary Trevithick, 	to be
received no later than January 3, 	1989.
Please indicate your name, 	home address,
social 	security number, 	the name of your
school 	district 	and the 	name 	of 	your 	local
chapter 	in any request 	for 	agency 	fee
reduction 	and/or 	arbitration.
If 	you do request 	an 	arbitration hearing to
challenge 	the 	calculations 	of 	the 	chargeable
amount, 	we will promptly 	inform you of 	the
arbitration hearing procedure. 	Note 	that 	the
estimate 	of 	chargeable 	expenditures 	for CTA
contained 	in this 	notice 	is 	based on
percentages 	derived 	from 	audited 	financial
statements 	for the 1986-87 	fiscal year, 	the
most 	recent 	fiscal 	year 	for which 	final
figures 	are available. 	These percentages
have 	been 	applied 	to budgeted 	figures 	for
1988-89 	to 	obtain 	the 	estimated 	chargeable
percentage 	for the upcoming year. 	Final
figures 	for the 	actual 	expenditures 	for 	the
1987-88 	year will 	not 	be 	available until
approximately December 	15th. 	Since 	these
figures will 	be 	available 	in time 	for the
arbitration hearing, 	the 	evidence presented
at 	that 	hearing will 	be based on percentages
derived 	from actual 	expenditures 	for 	the
1987-88 	year 	applied 	to 	the 	budgeted 	figures
for 1988-89. 	Similarly, 	the NEA estimate 	for
chargeable 	expenditures 	contained 	in 	this
notice 	is based on 	the 	actual 	expenditures
for 	audited 	financial 	statements 	for 	1986-87
applied to budgeted 	figures 	for 	1988-89. 	The
evidence presented 	at 	the 	arbitration hearing
for NEA will 	cover actual 	expenditures 	for
1987-88 	applied to budgeted figures 	for 	1988-
89.
Following the arbitration decision, 	CTA will
immediately 	send 	arbitration 	requestors 	a
check 	representing 	the 	non-chargeable 	amount
2
•
2

for CTA, 	NEA and the 	local 	chapter as
determined by 	the 	arbitrator 	for 	the 	1988-89
year, 	together with 	interest 	on that 	portion
of 	the 	amount 	collected to date. 	(If your
local 	chapter 	is 	not 	adopting the
presumption, 	they will 	send the 	check
representing the 	local 	non-chargeable
expenses.) 	Note 	that 	the 	arbitrator will
have 	the 	authority to 	order a 	larger or
smaller 	rebate 	as 	he 	or 	she 	deems 	appropriate
under prevailing 	case 	precedent.
Based on the 	information contained above, 	the 	allegation that 	the
Association 	collected 	agency 	fees 	and 	spent 	those 	fees 	for
activities 	not 	related to 	collective 	bargaining 	and 	contract
administration must 	be 	dismissed based on 	the 	following 	reasons.
PERB Regulation 32994 (a)2 requires 	that 	an agency fee payer who
wishes 	to 	challenge 	the 	amount 	of 	the 	fee 	by filing 	an unfair
practice 	charge 	with PERB must 	first 	exhaust 	the 	agency 	fee
appeal 	procedure 	unless 	the procedure 	is 	insufficient 	on 	its
face. 	In this case, 	there is no evidence any of the Charging
Parties 	requested arbitration. 	Nor 	is 	there 	any evidence 	that
the appeal procedure 	is 	insufficient on its 	face. 	Accordingly,
the 	allegation 	that 	the Association 	improperly 	collected 	and
spent 	agency 	fee 	monies must 	be 	dismissed.
Charging Parties 	assert 	that 	exhaustion of 	the 	appeal 	process 	is
irrelevant 	or unconstitutional 	as 	contrary 	to Air 	Line 	Pilots
2Public 	Employment Relations Board 	(PERB) 	Regulations 	are
codified at 	California Code of Regulations, 	title 	8, 	section
31001 et seq. 	PERB Regulation 32994(a) 	reads:
(a) 	If an agency fee payer disagrees with
the 	exclusive 	representative's 	determination
of 	the agency fee amount, 	that 	employee
(hereinafter known as 	an 	"agency fee
objector") 	may file 	an agency fee 	objection.
Such agency fee 	objection 	shall 	be 	filed with
the 	exclusive 	representative. 	An agency fee
objector may 	file 	an unfair practice 	charge
that challenges the amount of, the agency fee;
however, 	no complaint 	shall 	issue until 	the
agency 	fee 	objector has 	first 	exhausted 	the
exclusive 	representative's Agency Fee Appeal
Procedure. 	No objector shall 	be 	required to
exhaust 	the Agency Fee Appeal 	Procedure 	where
it 	is 	insufficient 	on 	its 	face.
33

Ass'n. 	v. 	Miller 118 S.Ct. 	1761 	(1998). 	That case found that
plaintiffs 	challenging the 	amount 	of 	an agency 	fee 	collected
pursuant 	to 	a 	collective 	bargaining 	agreement 	under 	the 	Railway-
Labor Act 	(44 	Stat. 	577 	(1926), 	45 USC sections 151-63 	(1988))
may not be 	required to exhaust 	an arbitration procedure, 	unless
they agree 	to 	the process, 	before bringing their claims 	to
federal 	court. 	The 	case does 	not 	hold that 	challengers 	can avoid
arbitration before 	filing with 	a 	state 	administrative 	agency 	such
as PERB.
The 	Supreme 	Court 	supports 	its 	finding in Air Line 	Pilots, 	in
part, 	by minimizing the value 	of 	an arbitration prior to 	a
federal 	court 	case. 	The Court notes 	that 	in federal 	court,
agency fee 	challengers, 	like other civil 	litigants 	would not 	be
allowed to 	"file 	a generally phrased complaint, 	then 	sit 	back 	and
require the union to prove 	the 	'germaneness' 	of 	its 	expenditures
without 	a 	clue 	as 	to 	'which of 	its 	thousands of 	expenditures' 	the
objectors oppose." 	Air Line Pilots Ass'n. 	v. 	Miller 118 	S.Ct.
1761, 	1768. 	The Court states that 	such challengers would be
required to make 	their objections 	known with a 	degree 	of
specificity and be 	subject 	to pretrial 	attack 	through 	a 	motion 	to
dismiss, 	motion for summary judgement, 	etc.
Air Line 	Pilots 	is 	distinguishable 	from the 	instant 	case 	because
PERB 	is not 	a 	federal 	court. 	In the 	PERB 	forum, 	Charging Parties
are 	alleging 	a violation of 	State 	law before 	a 	State
administrative agency. 	In addition, 	at 	PERB the burden of
persuasion is 	on the union. 	Cumero v. 	Public Employment
Relations Bd. 	(1989) 	49 Cal. 	3d 575, 	605; 	8 Cal. 	Code Regulation
section 32994(b)(6). 	And there 	is no prehearing discovery in
unfair practice 	charges. 	King City High School 	District 	(1982)
PERB Decision No. 	197. 	These 	factors 	strongly support 	the need
for an arbitration, 	prior to a 	PERB hearing, 	to define 	the 	scope
of the challengers' 	concerns.
At 	the 	time 	PERB Regulation 32994 	was being considered, 	the
National Right 	to Work Legal Defense 	Fund, 	Inc. 	opposed the
provision 	requiring 	exhaustion 	of 	the 	agency 	fee 	arbitration
procedure. 	The 	Board rejected the 	argument 	based on 	three
reasons. 	First, 	exhaustion was 	not 	specifically rejected by the
majority in Chicago Teachers Union v. 	Hudson 475 U.S. 	292 	(1986).
Second, 	the Board has 	long adhered to 	a policy 	favoring 	the
resolution of 	disputes 	through 	the 	grievance/arbitration 	forum
prior to charges being filed,with PERB. ...Lake Elsinore 	School
District 	(1987) 	PERB Decision No. 	646, 	Government Code sections
3514.5(a), 	3541.5(a), 	PERB Regulation 32620. 	Third, 	a similar
procedure was 	being used by the National 	Labor Relations 	Board.
Based on 	the 	differences 	between 	federal 	court 	and PERB 	as 	well
as 	the 	reasons posited for the 	adoption of 	PERB 	Regulation
A	4

section 32994, 	I find the reasoning of Air Line Pilots to be not
controlling.
For these reasons 	the allegation that 	the Association collected
and spent 	agency fee monies 	for subjects not 	related to
collective bargaining or contract administration, 	as presently
written, 	does not state a prima facie case. 	If there are any
factual inaccuracies 	in this letter or additional 	facts which
would correct the deficiencies explained above, 	please amend the
charge. 	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 have the case number written on the top
right hand corner of the charge form. 	The amended charge must be
served on the respondent's representative and the original proof
of 	service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before September 10, 	1998,
I 	shall dismiss 	the above-described allegation from your charge.
If you have any questions, 	please call me at 	(916) 	322-3198,
extension 361.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel