University Professional and Technical Employees, Communications Workers of America Local 9119 (Witke) (PERB 1446H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WERNER FRANZ WITKE,
Charging Party,
V.
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA LOCAL 9119,
Respondent.
Case No. LA-CO-69-H
PERB Decision No. 	14Li.6-H
June
	21,
	2001
Appearances: Werner Franz Witke, on his own behalf; Zwerdling, Paul, Leibig, Kahn,
Thompson & Wolly by Carla M. Siegel, Attorney, and Schwartz, Steinsapir, Dohrmann,
Sommers by Michael Feinberg, Attorney, for University Professional and Technical
Employees, CWA Local 9119.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Werner Franz Witke (Witke) from a Board agent's dismissal
(attached)
of
his unfair practice charge.
	In
his charge
\X/
itke alleged that the University
Professional and Technical Employees, CWA Local 9119 (CWA) improperly assessed its fair
share agency fee, contrary to PERB Regulation 32994(a),1 and that the arbitrator's award on
1PERB regulations are codified at California Code
of
Regulations, title 8, section 31001
et seq. PERB Regulation 32994 states, in pertinent part:
(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
....
	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.

the fair share question was issued in an untimely fashion, in violation of PERB Regulation
32994(b )(8).2 Witke alleged these acts constituted unfair practices under the Higher Education
Employer-Employee Relations Act (HEERA)3 and PERB Regulation 32997.4
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges and their attachments, the warning and dismissal letters,
Witke's appeal, and CWA's statement in opposition to the appeal. The Board finds the Board
agent's dismissal to be free from prejudicial error and adopts it as the decision of the Board
itself.
ORDER
The unfair practice charge in Case No. LA-CO-69-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
2PERB Regulation 32994(b )(8) states:
All decisions of the agency fee impartial decisionmaker shall be in
writing, and shall be rendered no later than 30 days after the close
of the hearing.
3HEERA is codified at Government Code section 3560 et seq.
4PERB Regulation 32997 states:
It shall be an unfair practice for an exclusive representative to
collect agency fees in violation of these regulations.
2

STATE OF CALIFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite
2201
Oakland, CA
94612
(510)
622-1016
January
	30,
	2001
Werner
	Franz
	Witke
Re:
	Werner
	Franz
	Witke
	v.
	University 	Professional
	and
Technical
	Employees,
	CWA
	Local
	9119
Unfair
	Practice
	Charge
	No.
	LA-CO-69-H
Dismissal
	and
	Refusal
	to
	Issue
	a
	Complaint
Dear
	Mr.
	Witke:
In
	the 	above-referenced
	charge,
	filed
	on 	September 	27, 	2000,Werner
	Franz 	Witke
	alleges
	the 	University 	Professional
	and
Technical
	Employees,
	CWA
	(UPTE
	or
	CWA)
	violated
	the
	Higher
Education
	Employer-Employee
	Relations
	Act
	(HEERA
	or
	Act).
	The
charge
	alleges:
	(1)
	the
	arbitrator's
	award
	did
	not
	issue 	within
30
	days
	of 	the 	close
	of 	the 	hearing;
	and
	(2) 	UPTE
	failed 	to
provide
	a
	reasonable
	basis
	by which
	chargeable
	and
	nonchargeableagency
	fee 	expenses 	could
	be
	calculated.
On
	December
	15, 	2000,
	I
	issued
	a
	warning
	letter
	indicating 	thecharge
	failed 	to
	state
	a
	prima
	facie 	violation.
	The
	warning
letter
	explained:
When
	the
	agency 	fee
	arbitration
	has
	already
concluded,
	PERB
	will 	defer 	to
	an
	arbitrator's
award 	and
	refuse_to 	issue
	a
	complaint
	in
which:
	(1)
	the
	arbitration
	proceedings
	were
fair
	and
	regular;
	and
	(2)
	the
	arbitrator's
award
	is
	not
	clearly
	repugnant
	to 	thepurposes 	of 	the
	Act.
	(ABC
	Federation 	ofTeachers
	(1998)
	PERB
	Decision
	No.
	1295.)
The
	warning
	letter
	concluded
	that 	the 	timing 	of 	the
	arbitrator's
award
	did 	not 	demonstrate
	that 	proceedings
	were
	unfair 	or
irregular.
	The
	original
	charge 	did 	not 	include 	other 	factsindicating 	that 	the 	proceedings 	were
	unfair
	and
	irregular.
	Nor
did 	the 	original 	charge 	present 	facts 	indicating 	that 	the
arbitrator's
	award
	is 	clearly
	repugnant 	to 	the 	purposes 	of 	theAct.
The
	first
	amended 	charge 	alleges 	the 	proceedings 	were
	unfair
	and
irregular 	for 	the 	following 	reasons:
	(1)
	the 	arbitrator 	reopened
the 	proceedings 	without 	providing 	the 	Charging 	Party with 	notice;(2) 	the 	arbitrator 	accepted 	documents 	from 	the 	Respondent 	without
providing 	the 	Charging 	Party with 	the 	opportunity 	to 	examine
10556
	Caminito
	Flores
San
	Diego,
	CA
	92126

LA-CO-69-H
Dismissal 	Letter
Page 	2
those 	documents; 	(3) 	the 	reopening 	of 	the 	hearing 	prevented 	the
decision 	from 	being 	rendered 	within 	30 	days; 	and 	(4) 	the
arbitrator 	engaged 	in 	ex parte 	communications 	with 	the
Respondent.
Initially, 	the 	AAA 	indicated 	that 	the 	proceedings 	were 	considered
closed 	on 	July 	17, 	2000. 	On August 	2, 	2000 	the 	arbitrator
requested 	documents 	from 	the 	Respondent 	through 	the 	AAA 	case
manager. 	On August 	9, 	2000, 	the 	Respondent's 	attorney 	wrote 	a
letter 	to 	the 	arbitrator 	which 	indicated 	that 	she 	had 	spoken 	with
the 	arbitrator 	by 	telephone. 	The 	Charging 	Party was 	not 	included
in 	that 	conversation.
On August 	25, 	2000, 	the 	Arbitrator 	acknowledged 	receipt 	of
documents 	from 	the 	Respondent, 	and 	requested 	the 	Respondent 	to
prepare 	a 	memorandum 	regarding 	the 	issue 	of 	jurisdiction. 	The
Arbitrator's 	letter 	stated 	in 	pertinent 	part:
For 	now: 	I 	would 	appreciate 	receiving 	the
memorandum 	I 	have 	requested; 	the 	record 	is
still 	open; 	time 	limits 	for 	opinion 	and
decision 	are 	suspended; 	a 	hearing 	is
possible, 	although 	not 	favored; 	probably, 	I
will 	make 	copies 	of 	all 	correspondence 	with
accompanying 	materials 	available 	to
challengers, 	but 	not 	now; 	challengers 	could
be 	asked 	to 	waive 	any 	residual 	rights 	they
may 	have 	to 	opt 	for 	another 	forum 	to 	object
to 	agency 	fees, 	if 	I 	should be 	persuaded 	that
I 	have 	limited 	jurisdiction 	in 	the 	case.
Since 	the 	record 	is 	still 	open 	in 	this 	case,
the 	American Arbitration Association 	has
authorized 	that 	you 	communicate 	directly with
me, 	copy 	to 	that 	association.
On 	September 	28, 	2000, 	the 	AAA 	notified 	the 	Charging 	Party 	that
the 	arbitrator 	had 	requested 	additional 	information 	from 	the
Respondent 	and 	had 	thereby 	reopened 	the 	proceeaings. 	The 	letter
indicated 	that 	the 	hearing 	was 	now 	considered 	closed 	as 	of
September 	8, 	2000. 	The 	award 	issued 	on 	September 	28, 	2000.
AAA 	rule 	15 	indicates, 	in pertinent 	part 	"Parties 	shall 	be
afforded 	an 	opportunity 	to 	examine 	all 	documents 	submitted 	in 	the
proceedings." 	AAA 	rule 	22 	indicates 	there 	shall 	be 	no
communication 	between 	the 	parties 	and 	the 	arbitrator 	other 	than
at 	oral 	hearings. 	AAA 	rule 	17 	states:
The 	hearings 	may 	be 	reopened 	by 	the
arbitrator 	at 	will 	or 	on 	the 	motion 	of 	any

LA-CO-69-H
Dismissal
	Letter
Page
	3
party, 	for
	good
	cause
	shown,
	at
	any
	time
before 	the
	award
	is
	made,
	but
	if
	thereopening
	of 	the 	hearings
	would
	prevent 	the
making
	of 	the
	award
	within 	the
	time
	specified
in
	the 	applicable
	law
	and
	the
	union's
internal
	procedures, 	the 	matter
	may
	not
	be
reopened.
As
	stated
	previously, 	the
	Charging
	Party 	alleged
	the 	proceedings
were
	unfair
	and
	irregular
	because:
	the
	arbitrator
	reopened
	the
proceedings 	without 	providing 	the
	Charging
	Party with
	notice;
the
	arbitrator
	accepted
	documents 	from
	the
	Respondent
	without
providing 	the
	Charging
	Party with 	the 	opportunity 	to
	examine
those
	documents;
	the
	reopening
	of 	the 	hearing 	prevented
	the
decision
	from
	being 	rendered
	within
	30
	days;
	and
	the
	arbitrator
engaged
	in
	ex
	parte
	communications
	with 	the
	Respondent.
Taking
	the 	above-stated
	information 	as
	true,
1	
the
	charge
demonstrates
	the
	arbitration
	proceeding
	violated 	several
	AAA
rules.
	The
	communication 	and
	the
	documents 	exchanged 	between
	the
Respondent 	and
	the
	Arbitrator
	seem
	to
	only 	address 	the 	questionof
	whether
	the
	arbitrator
	had
	jurisdiction.
	The
	jurisdictional
question
	appears
	to
	have 	been
	raised
	by
	the
	Arbitrator,
	and
involved whether
	the
	Respondent
	provided
	fair
	notice 	to 	the
agency 	fee
	challengers 	that 	objections
	could
	be
	heard
	in
	a
	forum
other
	than
	arbitration.
	The
	Arbitrator 	ruled
	he 	had
	jurisdiction
to
	comment
	on
	the
	adequacy
	of 	the 	notice,
	and
	concluded
	a
decision
	on
	the
	adequacy
	of 	the 	notice
	could
	be
	considered
	in
another 	proceeding.
Although
	failure 	to
	comply
	with 	the
	AAA
	rules
	is
	a
	seriousmatter, 	the
	rule 	violations
	involved
	an
	issue 	tangential 	to
	the
issues 	raised
	by
	the
	Charging
	Party.
	The
	Charging
	Party
	raisedobjections 	regarding
	whether
	the 	Respondent's 	expenses 	were
chargeable 	or 	non-chargeable, 	not 	whether
	the 	Respondent's
	noticeadequately 	informed
	him
	of 	the
	possibility
	of 	other
	forums.
	As
such, 	the 	proceedings 	appear
	to
	have 	been
	fair
	and
	regular 	as
they 	pertained 	to 	the
	Charging
	Party's 	objections, 	except 	as 	towhether 	the
	award
	was
	issued 	in
	a
	timely
	manner.
The 	award
	issued 	six
	weeks
	after
	the 	original
	due
	date.
	However,
the 	failure 	of 	the 	Arbitrator 	to 	issue 	the
	award
	in
	a
	timely
manner
	is 	insufficient 	to 	demonstrate 	the 	proceedings 	were
conducted 	in
	an
	irregular
	and
	unfair
	manner. 	In
	Sawin	
&	
Co.,
Inc. 	and 	Hector 	Rodas 	(1985) 	277
	NLRB 	No.
	44, 	the
	NLRB
	held 	theBoard 	does 	not 	require 	that 	the
	strict
	standard 	of
	a
	Board
1
(See 	Mark 	West 	Union 	School 	District
	(1993) 	PERE
	DecisionNo. 	1011.)

LA-CO-69-H
Dismissal
	Letter
Page
	4
hearing
	be
	met
	in
	order 	for
	the
	award
	to
	be
	honored.
2	
In
	the
instant
	charge,
	the
	arbitrator's
	failure
	to
	meet
	a
	deadline
similarly
	fails
	to 	render 	the 	proceeding
	unfair.
	Moreover,
	the
Charging
	Party
	fails
	to
	demonstrate
	the 	delay
	in
	the 	issuance
	of
the
	award
	resulted 	in
	any
	harm.
The
	Charging
	Party
	alleges
	the
	arbitrator's
	award
	is
	repugnant
	tothe
	Act
	because
	a
	comparison
	of 	the 	Respondent's
	financial
statements
	and
	the
	Respondent's
	IRS
	Form 	990
	for
	1998
	reveal
different
	figures
	and
	that
	the
	Respondent
	used
	different
accounting
	methods
	to 	calculate
	these
	figures.
	However,
	the
charge
	fails
	to
	demonstrate
	that
	such
	a
	comparison
	renders
	the
decision
	clearly
	repugnant
	to
	the
	Act.
	The
	award
	analyzes
	the
Respondent's
	system
	for 	identifying
	chargeable
	and
	non-chargeableexpenses
	and
	concludes
	the
	system
	is 	fair
	and
	reasonable.Several
	other
	arbitration
	awards 	and
	court 	decisions
	similarly
found
	the
	system
	to
	be
	adequate.
	The
	award
	also
	addresses
Witke's
	specific
	objections
	and
	concludes
	the
	Respondent
	provided
him
	with 	adequate
	notice
	and
	detailed
	schedules 	of 	chargeable
	and
non-chargeable 	expenses.
	Even
	in
	a
	case
	where
	PERB 	may
	have
reached
	different
	conclusions 	than 	the
	arbitrator, 	that
	alone
does
	not 	demonstrate 	the
	award
	is
	repugnant
	to
	the
	Act.
	(See
Oakland
	Unified
	School
	District
	(1985)
	PERB
	Decision
	No.
	538.)
Thus,
	the
	charge
	fails
	to
	demonstrate
	the
	award
	is 	clearly
repugnant
	to 	the
	Act,
	and 	must 	be
	dismissed.
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.
	(Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	Any
	document
	filed
	with 	the
	Board must
	containthe 	case
	name
	and 	number, 	and
	the
	original
	and
	five
	(5)
	copies 	of
all
	documents 	must 	be
	provided
	to 	the
	Board.
A
document
	is
	considered 	"filed"
	when
	actually
	received 	beforethe 	close 	of 	business
	(5
	p.m.) 	on
	the
	last
	day
	set 	for
	filing
	or
when
	mailed 	by
	certified
	or
	Express 	United
	States
	mail, 	as
	shown
on
	the 	postal 	receipt 	or
	postmark,
	or 	delivered 	to
	a 	common
carrier
	promising 	overnight 	delivery, 	as
	shown 	on
	the
	carrier'sreceipt,
	not
	later
	than 	the
	last
	day
	set 	for 	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec. 	32135(a); 	see 	also 	Cal.
	Code
	Regs.,
	tit.
	8,
sec. 	32130.)
2
In 	that 	case, 	the 	alleged 	discriminates
	were 	denied 	an
opportunity 	to 	cross-examine 	witnesses 	because 	the 	employer 	did
not 	present 	witnesses 	at 	the 	hearing, 	and 	instead 	submitted
affidavits.
	The 	NLRB
	deferred 	to 	the 	award.

LA-CO-69-H
Dismissal
	Letter
Page
	5
A
document
	is
	also
	considered	
11
filed
11	
when
	received
	by
	facsimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing
	together
	with
	a
	Facsimile 	Transmission
	Cover
	Sheet
	whichmeets
	the 	requirements 	of
	Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32135(d),
provided 	the
	filing
	party 	also
	places 	the
	original,
	together
	with
the
	required
	number
	of 	copies
	and
	proof
	of
	service,
	in
	the
	U.S.
mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135(b),
	(c)
	and
	(d);see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and
	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174
FAX:
	(916)
	327-7960
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
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
	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.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently 	served via 	facsimile 	transmission
	on
	all
parties
	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
32135 (c)
. )
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 	Regs.,
	tit.
	8, 	sec. 	32132.)

LA-CO-69-H
Dismissal
	Letter
Page
	6
Final
	Date
If
	no
	appeal
	is
	filed
	within 	the
	specified
	time
	limits,
	thedismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Sincerely,
ROBERT
	THOMPSON
Deputy
	General
	Counsel
By Tammy
L.
S:-msei
Regional
	Attorney
Attachment
cc: 	Carla 	Siegel

s r A rE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1 51 5 Clay Street, Suite 2201
Oakland, CA 94612
i510) 622-1016
December 	15, 	2000
Werner 	Franz 	Witke
10556 	Caminita 	Flores
San 	Diego, 	CA 	92126
Re: 	Werner 	Franz 	Witke 	v. 	University 	Professional 	and
Technical 	Employees, 	CWA 	Local 	9119
Unfair 	Practice 	Charge 	No. 	LA-CO-69-H
Warning 	Letter
Dear 	Mr. 	Witke:
In 	the 	above-referenced 	charge, 	filed 	on 	September 	27, 	2000,
Werner 	Franz 	Witke 	alleges 	the 	University 	Professional 	and
Technical 	Employees, 	CWA 	(UPTE 	or 	CWA) 	violated 	the 	Higher
Education 	Employer-Employee 	Relations 	Act 	(HEERA 	or Act). 	The
charge 	alleges: 	(1) 	the 	arbitrator's 	award 	did 	not 	issue 	within
30 	days 	of 	the 	close 	of 	the 	hearing; 	and 	(2) 	UPTE 	failed 	to
provide 	a 	reasonable 	basis 	by which 	chargeable 	and 	nonchargeable
agency 	fee 	expenses 	could 	be 	calculated. 	My 	investigation
revealed 	che 	following 	information.
Witke 	filed 	an 	agency 	fee 	objection 	under 	UPTE's 	appeal
procedure. 	UPTE 	requested 	a 	hearing 	regarding 	the 	agency 	fee
before 	an 	independent 	arbitrator 	employed 	by 	the 	American
Arbitration Association 	(AAA). 	On 	July 	13, 	2000, 	Mark 	Miller,
case 	manager 	for 	the 	AAA 	sent 	a 	letter 	to 	the 	arbitrator 	stating:
Please 	find 	enclosed CWA's 	Reply Memorandum
and 	Attachments 	in 	the 	above 	styled 	matter.
As 	you 	know, 	this 	is 	the 	final 	submission
that 	will 	be 	made 	by 	any 	of 	the 	parties 	in
this 	case. 	Therefore, 	the 	record 	will 	be
considered 	closed 	on 	July 	17, 	2000 	making
your 	decision 	due 	on 	or 	before
August 	17, 	2000.
On August 	31, 	2000 	Witke 	wrote 	to 	Miller 	indicating 	that 	he 	had
not 	yet 	received 	a 	copy 	of 	the 	arbitrator's 	award. 	On
September 	1, 	2000 	Witke 	called 	Miller 	and 	learned 	that 	a 	decision
had 	not 	yet 	been 	made, 	and 	complaining 	that 	he 	was 	not 	given 	an
opportunity 	to 	respond 	to 	CWA's 	Reply Memorandum because 	he
received 	it 	the 	same 	day 	as 	the 	record 	was 	closed.
On 	September 	28, 	2000, 	Miller 	sent 	a 	letter 	to 	the 	agency 	fee
~~a:lengers, 	including 	Witke, 	which 	stated:
GRAY DAVIS, Governor

LA-CO-69-H
Warning
	Letter
Page
	2
Please
	be
	advised
	that 	Arbitrator
	Ables
requested
	additional
	information
	from
	CWA,
the
	last
	of
	which
	he
	received
	on
September
	8, 	2000.
	Therefore,
	the
arbitrator's
	opinion
	and
	decision 	in
	this
proceeding
	are
	now
	due,
	to
	be
	submitted
	tothe
	American
	Arbitration
	Association,
	no
later
	than
	October
	7, 	2000.
	The
	arbitrator
expects
	to
	meet
	this
	deadline.
On
	October
	5, 	2000,
	AAA
	sent
	a
	cover
	letter
	issuing 	the
arbitration
	award 	which
	was
	dated
	September
	28, 	2000.
	The
	award
indicates 	that
	CWA's
	system
	of
	calculating
	chargeable
	and
nonchargeable 	expenses
	is 	fair
	and
	reasonable.
	The
	award
	also
provided,
	in 	pertinent 	part:
with 	the 	exception
	that
	CWA
	shall
	take
	such
action
	as
	will 	result
	in
	an
	increase 	to
	25
percent 	of 	the
	monthly
	stipend 	of
	UPTE's
officer(s)
	as
	a
	non-chargeable 	expense,
	CWA
has
	met
	its
	burden
	to
	show
	that 	allocationsin 	issue
	were
	fair
	and
	reasonable.
The
	award
	indicated 	that
	Witke's
	September 	1,
	2000
	letter
	to
Miller
	was
	accepted
	and
	considered
	by
	the
	arbitrator
	since
	he
	had
Kepc
	the 	record
	open
	until
	September
	8, 	2000
	pending
	receipt
	from
CWA
	of 	requested 	information.
The
	above-stated 	information
	fails
	to
	state
	a
	prima
	facie
violation 	for 	the 	reasons
	that
	follow.
	As
	stated
	previously,
	the
charge 	includes
	two
	allegations:
	(1)
	the
	arbitrator's
	award
	was
not
	issued 	within
	30
	days 	of 	the 	close 	of 	hearing;
	and
	(2) 	UPTE
failed 	to 	provide
	a
	reasonable 	basis
	by which
	chargeable 	and
nonchargeable 	agency
	fee 	expenses 	could
	be
	calculated.
PERB
	Regulation
	32994
(b) (8)
	states:
All 	decisions 	of 	the
	agency
	fee 	impartialdecisionmaker
	shall
	be
	in 	writing,
	and
	shall
be
	rendered
	no
	later
	than
	30
	days
	after
	the
close 	of 	the 	hearing.
Ac
	the 	time 	of 	the
	filing
	of
	this
	charge, 	September 	27, 	2000, 	the
arbitrator's
	award 	had 	not 	yet 	issued.
	However,
	the
	award 	has
since 	issued 	and
	is
	dated 	September 	28, 	2000.
Witke
	alleges
	UPTE
	violated
	PERB
	Regulation 	32994(b) 	when
	the
arbitrator 	failed 	to 	issue 	the 	award 	on
	or 	before 	August 	17,
2000. 	However, 	the 	facts 	demonstrate 	the 	arbitrator 	kept 	the
hearing 	open 	uncil 	September 	8, 	2000 	while 	he 	waited 	for
	CWA
	to

LA-C0-69-H
Warning
	Letter
Page
	3
comply
	with
	his
	request 	for
	documents. 	Thus,
	the
	30-day
	period
started
	on
	September
	8,
	2000.
	The
	September
	28,
	2000
	award
complies
	with
	the
	30-day 	requirement 	of
	PERB
	regulation
32994
(b)
(8).
	Thus,
	this
	allegation
	does
	not
	state
	a
	prima
	facie
viclation
	and
	must
	be
	dismissed.
In 	reviewing
	the
	charge's
	second
	allegation
	concerning 	agency 	fee
objections,
	the
	following
	standard
	applies.
	When
	the
	agency
	fee
arbicration
	has
	already
	concluded,
	PERB
	will
	defer 	to
	an
arbitrator's
	award 	and
	refuse 	to 	issue
	a
	complaint
	in
	which:
	(1)
the
	arbitration
	proceedings
	were
	fair
	and
	regular;
	and
	(2)
	the
arbitrator's
	award
	is
	not
	clearly
	repugnant
	to
	the 	purposes
	ofthe
	Act.
	(ABC
	Federation
	of
	Teachers
	(1998)
	PERB
	Decision
	No.
12
95.)
The
	Charging
	Party's 	allegation 	that
	the
	arbitrator
	failed 	to
issue 	his
	award
	within
	30
	days
	will
	be
	evaluated
	as 	evidence
	of
whether
	the
	arbitration
	proceedings
	were
	fair
	and
	regular.
	The
AAA
	case
	manager
	responded
	to
	Witke's
	inquiries
	regarding
	why
	the
award
	did
	not
	issue
	by August 	17,
	2000
	and
	explained
	that 	thehearing
	was
	kept
	open 	pending
	the
	receipt
	of 	the 	requested
information.
	As
	discussed
	above,
	the
	award
	issued
	on
September
	28, 	2000,
	less
	than
	30
	days
	after
	the
	arbitrator
	closedthe 	hearing.
	The
	charge
	does
	not 	include
	other 	facts 	indicating
that
	the 	proceedings
	were
	unfair
	and
	irregular.
	Nor
	does
	the
charge
	present 	facts 	indicating 	that
	the
	arbitrator's
	award
	is
clearly
	repugnant
	to 	the
	purposes 	of 	the 	Act.
	Thus,
	the 	chargefa
	s
	to
	demonstrate
	a
	prima
	facie 	violation
	and 	must 	be
dismissed.
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 	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,
	andbe
	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 	proofof 	service
	must 	be
	filed
	with
	PERB.
	If
	I
	do
	not 	receive 	an

LA-C0-69-H
Warning
	Letter
Page
	4
amended
	charge
	or
	withdrawal
	from 	you
	before
	December
	29,
	2000,
	I
shall
	dismiss
	your
	charge.
	If
	you
	have
	any
	questions,
	please
ca 11
	me
	at
	(
51
0)
6 2 2 -
10
2 3 .
Sincerely,
TAMMY
	L.
	SAMSEL
Kegional
	Attorney