Santa Ana Unified School District (Lubnau) (PERB 0073E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RHODA LUBNAU,
Charging Party,
v.
SANTA ANA UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-109
PERB 	Decision No. 	73
September 	25, 1978
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Appearances: 	Lawrence Rosenzweig, 	Attorney 	(Levy, 	Koszdin,
Goldschmid and Sroloff) 	for Rhoda Lubnau; 	John L. 	Bukey,
Attorney 	(Biddle, 	Walters, 	and Bukey) 	for Santa Ana Unified
School 	District.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members.
DECISION
The Public 	Employment 	Relations 	Board 	(hereafter Board) 	has
reviewed 	and 	considered 	the 	attached 	recommended 	decision 	of 	the
hearing officer 	in 	light of 	the 	record, 	exceptions, 	and briefs
filed 	in 	this 	case. 	The hearing officer 	dismissed a 	charge 	filed
by 	the 	charging party1 which 	alleged 	that 	the 	Santa 	Ana 	Unified
School 	District 	(hereafter 	District) 	had violated 	certain
1 The 	Federation 	of Association 	Classifieds 	and 	Teachers
(FACT) 	and James 	Stevens 	originally were 	included 	as 	charging
parties. 	At 	the hearing of February 28, 	1978, 	the only charging
party was 	Rhoda Lubnau, 	the 	others 	having withdrawn as 	charging
parties.

provisions 	of 	the 	Educational 	Employment 	Relations 	Act, 	Government
Code 	Section 	3540 	et 	seq . , 	in 	that 	it :
discriminated against 	and 	restrained
Mrs. 	Rhoda Lubnau by refusing 	to 	allow
her 	to 	be 	represented by 	counsel 	of 	her
choosing 	in 	several 	grievance 	matters .. ..
The 	hearing officer 	found, 	and 	the 	Board 	agrees, 	that 	an agency
relationship 	exists 	between Mrs . 	Lubnau's 	"counsel" 	and a 	non-
exclusive 	employee 	organization 	in 	the 	District 	which 	disqualifies
him 	from 	representing 	her 	in 	grievance 	proceedings 	before 	the
District, 	considering 	that 	certificated employees 	in 	the 	District
have 	already 	selected 	an 	exclusive 	representative .
The 	Board 	summarily 	adopts 	the 	hearing 	officer's 	recommended
decision, 	affirming his 	findings 	of 	fact 	and 	conclusions 	of 	law.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by 	Rhoda 	Lubnau 	against
the 	Santa Ana 	Unified 	School 	District 	is 	dismissed.
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By : 	Raymond J. 	Gonzales, 	Member 	Harry Gluck, 	Chairperson
5':r T l~u 	Cossack Twohey, 	Member

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PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
JAMES P. STEVENS, RHODA LUBNAU, AND
THE FEDERATION OF ASSOCIATED CLASSIFIEDS
AND TEACHERS 	(FACT),
Charging Party,
vs.
SANTA ANA UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. LA-CE-109
PROPOSED UNFAIR DECISION
ON REMAND FROM
EERB Decision No. 	44
March 23, 	1978
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Appearances: 	Lawrence Rosenzweig, Attorney, for Charging Party; John L. Bukey,
Attorney, for Respondent.
Before Jeff Paule, Hearing Officer.
PROCEDURAL HISTORY
On April 20, 1977, the charging party filed an unfair practice charge
against the Santa Ana Unified School District (hereinafter respondent or
District) alleging a violation of Government Code Sections 3543.5(a), (b), and (d) 1.
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These sections provide that:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten
to discriminate against employees, or other-
wise to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(d) Dominate or interfere with the formation
or administration of any employee organization,
or contribute financial or other support to it, or
in any way encourage employees to join any organi-
zation in preference to another.
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Paragraph one of the charge alleges that the respondent denied to the FACT
the right to represent one of its members in a grievance proceeding.
Paragraph two of the charge alleges that the respondent informed all
certificated employees of the District that only the exclusive bargaining agent
(Santa Ana Educators Association) could represent certificated employees in
grievance proceedings.
The gist of the charge is contained in paragraph three thereof and states
as follows:
The Santa Ana Unified School District did
discriminate against and restrain an employee,
Mrs. Rhoda Lubnau, by refusing to allow her
to be represented by counsel of her choosing
in several grievance matters and particularly
in an employer-employee consultation matter
before Dr. Harrison on April 7, 1977.
On May 6, 1977, an answer was filed by the respondent.
On May 25, 1977, on the hearing officer's own motion, the charge was dismissed with
leave to amend. 	The charge was dismissed on the basis that only an exclusive
representative or an individual can present a grievance.2 The notice of dismissal
concluded with the following comment:
It is noted that the prohibition of representation
through an employee organization other than the
exclusive representative does not preclude repre-
sentation through others, however. 	This was
expressly so stated in Hughes Tool v. NLRB,
[147 F. 2d 69 (5th Cir. 1945)], where the court
suggested that a grievant might enlist the aid
of "a more experienced friend" which would
include, presumably, retaining private counsel.
It is unclear from the unfair practice charge
in the instant case whether the employer is
allegedly denying to employees their right to
present their own grievances through represen-
tatives not associated with FACT or any other
rival employee organization. 	The charging
parties are given leave to amend in this regard.
2The Santa Ana Educators Association is the exclusive representative of the
certificated employees of the District.
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On June 2, 1977, the charging party filed an amendment to charge. 	The
amendment consisted of the following sentence to paragraph three:
Mrs. Lubnau had designated a "friend and advisor"
to be her representative in the grievance pro-
cedure .
On June 17, 1977, the respondent filed an amended answer, a motion to
dismiss and a motion to particularize paragraph three. 	The respondent moved to
dismiss paragraphs one and two of the charge because the amendment filed by the
charging party added nothing to the charge and "the issue has already been
decided in the Notice of Dismissal with Leave to Amend, dated May 25, 1977." 	As
to paragraph three, the respondent moved to particularize by having the charging
party designate who the "friend and advisor" is and whether this individual is in
any way associated with any employee organization other than the exclusive
representative.
On June 21, 1977, the PERB hearing officer granted the motions and the
charging party thereupon filed a timely appeal to the Board itself.
On December 30, 1977, the Board itself rendered its decision in Stevens,
Lubnau and Federation of Associated Classifieds and Teachers v. 	Santa Ana unified
School District, EERB Decision No. 44.
The Board's decision states in pertinent part, at pages 11-12:
We partially sustain the order of the hearing
officer to particularize the charge. 	We agree
that the grievant's "friend and advisor" must
be identified in a particularized charge; other-
wise, it will not be possible to determine
whether the grievant is being represented by an
employee organization other than the exclusive
representative. 	However, we do not sustain the
portion of the particularization order requiring
that the charge itself state "whether this indivi-
dual is in any way associated or connected, either
directly or indirectly, with any employee organi-
zation other than the [exclusive representative]."
We view the relationship between the "friend and
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advisor" and the exclusive representative, if any,
as a matter requiring proof at a hearing, after the
"friend and advisor" is identified in the charge.
Government Code Section 3543 protects the right of
an individual to present a grievance either alone or
through a representative other than an enployee
organization that is not the exclusive representative.
However, the "representative" may not be an agent of
an employee organization other than the exclusive
representative. 	In making this determination, common
law principles of agency shall govern. 	The burden
of proving that a disqualifying relationship exists
shall be upon the party seeking the disqualification.
On the agency issue, this case and future cases must
be decided on a case-by-case basis. 	However, we decide
now that in resolving the agency issue, mere incidental
membership in a rival employee organization, without
proof that the representative of the grievant is acting
for and in behalf of a rival employee organization, 	is
insufficient to disqualify a grievant's representative
from presenting a grievance.
Following the Board's decision, on January 11, 1978, the charging party
filed the required particularization, as follows:
The above-named School District has dis-
criminated against and restrained
Mrs. Rhoda Lubnau by refusing to allow
her to be represented by counsel of her
choosing in several grievance matters and
particularly in the employer-employee con-
sultation matter before Dr. Harrison,
Assistant Superintendent of the School
District, on April 7, 1977. 	Mrs. Lubnau
had designated a "friend and advisor",
James Stevens, to be her representative
in the grievance procedure. 	Said conduct
of the School District is in violation of
Sections 3543.5(a) and (d) of the Act.
As a remedy to the above listed unfair
practices, the Charging Party requests that
the School District be ordered to allow
employees to select counsel of their choosing
in grievance matters.
A hearing was held on February 28, 1978.
At the hearing, 	the charging party withdrew as a charging party the
Federation of Associated Classifieds and Teachers and James Stevens. 	Thus,
the only charging party is Rhoda Lubnau.
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ISSUE
Was James Stevens acting for and in behalf of the Federation of Associated
Classifieds and Teachers in representing Rhoda Lubnau in her grievance before
the Santa Ana Unified School District?
FINDINGS OF FACT
The FACT, Local 2189, is an employee organization affiliated with the
American Federation of Teachers. 	FACT admits to membership both classified and
certificated employees, however, it is not the exclusive representative of any
unit of employees in the Santa Ana Unified School District. 	Prior to the instant
case, 	the organization had represented both certificated and classified employees
in grievance proceedings. 	The organization has officers, maintains an office
in Santa Ana and uses letterhead stationery.
James Stevens, at all times relevant to this case, was an officer of the FACT
and occupied the position of "Executive Recorder." 	A part of Mr. Stevens' official
duties as an officer of the FACT was "to take care of classified 	matters." 	Prior
to the instant case, he had represented classified employees in grievances on
many occasions.
Rhoda Lubnau is a certificated employee in the District and a member of the
FACT. 	She is also a very close friend of James Stevens.
Sometime in October 1976, Ms. Lubnau received an evaluation memorandum critical
of her work performance. 	She contacted Mr. Stevens regarding the evaluation and
asked for his assistance in filing a grievance. 	On February 23, 1977, Mr. Stevens
wrote a lengthy letter to Ms. Lubnau's principal regarding the evaluation memorandum.
Mr. Stevens' 	letter was typed on FACT letterhead stationery and ended as follows:
A prompt reply to this letter will be most
appreciated.
Sincerely yours,
Jim Stevens, Representative
of Federation of Associated
Classifieds and Teachers
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The District believed Mr. Stevens to be a representative of the FACT. 	In
its reply to the February 23, 1977 letter the District stated that the FACT could
not represent Ms. Lubnau in enployee relations matters since it was not the
exclusive representative.
CONCLUSIONS OF LAW
The PERB has ruled in the instant case that "Government Code Section 3543.1(a)
prevents enployee organizations other than exclusive representatives from filing
or presenting grievances for employees in the unit," however, "Government Code
Section 3543 protects the right of an individual to present a grievance either alone
or through a representative other than an employee organization that is not the
exclusive representative." 	EERB Decision No. 44 at pages 6 and 12.
The Board's test is whether the "representative" is an "agent" of the
non-exclusive employee organization. 	If the representative is determined to be
an agent, then according to the Board, a "disqualifying relationship" exists
between the representative and the non-exclusive employee organization and the
representative/agent is barred from representing an employee in a grievance
procedure.
Civil Code Section 2295 defines an agent as "one who represents another,
called the principal, 	in dealings with third persons." 	"Agency is a relationship
that results 	from the act of one person, called principal, who authorizes another,
called agent, to conduct one or more transactions with one or more third persons
and to exercise degree of discretion in effecting purpose of the principal."
Workman v. San Diego, 267 Cal. App. 2d 36 (1968).
An agent can be either a special agent or a general agent. 	A special agent
is an agent for a particular act or transaction. 	Civil Code Section 2997. 	An
agency is "actual" when the agent is really employed by the principal and is
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"ostensible" when the principal intentionally, or by want of ordinary care, causes
a third person to believe another to be his agent. 	Civil Code Sections 2299 and 2300.
In the instant case, it is clear that Mr. Stevens is an agent of the FACT
with respect to Ms. Lubnau's grievance. 	The letter Mr. Stevens wrote to the
District wherein he used the FACT's stationery and identified himself as
"Representative of Federation of Associated Classifieds and Teachers" is
sufficient to establish the agency relationship. 	As the California Supreme Court
noted in Sunset Mill and Grain Company v. Anderson, 39 Cal. 2d 773 (1952),
"[d]esignations as 'representative' and as 'agent' are synonymous and may
be used interchangeably." 	Thus, in this particular transaction involving Ms. Lubnau,
Mr. Stevens did act as a special agent of the FACT.
The charging party attempts to carve out an exception to the "disqualifying
relationship" between Mr. 	Stevens and the FACT. 	The charging party argues that
the relationship between the representative and the grievant should be considered,
and if the representative and the grievant are close friends and the grievant
would not be satisfied with any other representative, 	then the agency is refuted.
The charging party offers no support for this argument. 	Inasmuch as the
Board did not include such an exception in its decision, the charging party's
argument is rejected.
It is found that a disqualifying relationship exists between Mr. James Stevens
and the Federation of Associated Classified and Teachers in that Mr. James Stevens
is an agent of FACT in the attempted grievance proceeding between Ms. Rhoda Lubnau
and the Santa Ana unified School District. 	Therefore, the District did not
violate Government Code Sections 3543.5(a), (b) and (d) in refusing to allow
Mrs. Lubnau to be represented in her grievance by Mr. Stevens, James P. Stevens,
et al vs. Santa Ana unified School District, EERB Decision No. 44 (12-30-77).
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PROPOSED ORDER
It is the Proposed Decision that :
1. 	Mr. 	James Stevens was acting for and on behalf of the
Federation of Associated Classifieds and Teachers 	in representing
Mrs . 	Rhoda Lubnau in her grievance against the ·. Santa Ana Unified School
District.
2. 	The charge that the District violated Government Code
Sections 3543. s (a), 	(b) and (d) 	is hereby DISMISSED.
The parties have twenty 	(20 ) 	calendar days after service of this
Proposed Decision in which to file exceptions in accordance with California
Administrative Code, 	Title 8, 	Part III, 	Section 32300 . 	If no party files
timely exceptions, 	this Proposed Decision will become final on April 17, 	1978
and a Notice of Decision will 	issue from the Board .
Dated : 	March23, 	1978
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Jeff Paule
Hearing Officer