Fremont Unified District Teachers Association, CTA/NEA (Halligan, et al.) (PERB 0436E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ANN M. HALLIGAN ET AL.,
Charging Parties, Case No. SF-CO-232
Vv. PERB Decision No. 436

FREMONT UNIFIED DISTRICT TEACHERS

November 21, 1984
ASSOCIATION, CTA/NEA,

Respondent.

eee Nae Set Sue Se See? Nee Nee Nee! See See

Appearances: David T. Bryant, Attorney for Ann M. Halligan
et al.; Kirsten L. Zerger, Attorney for Fremont Unified
District Teachers Association, CTA/NEA.
Before Hesse, Chairperson; Jaeger and Morgenstern, Members.*
DECISION

This case is before the Public Employment Relations Board
on an appeal by Ann M. Halligan, et al. of the Board agent's
dismissal, attached hereto, of their charge alleging that the
Fremont Unified District Teachers Association, CTA/NEA violated
sections 3544.9 and 3543.6(b) of the Educational Employment
Relations Act (Government Code section 3540 et seq.).

We have reviewed the dismissal and, finding it free from
prejudicial error, adopt it as the Decision of the Board itself.

ORDER

The unfair practice charge in Case No. SF-CO-232 is

DISMISSED WITHOUT LEAVE TO AMEND.

By the Board

*Members Tovar and Burt did not participate in this Decision.

STATE OF CALIFORNIA 	GEORGE DEUXMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
May 11, 1984
David T. Bryant
National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, VA 22160
Kirsten Zerger
California Teachers Assn.
1705 Murchison Drive
P. O. Box 921
Bur lingame, CA 94010
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Ann M. Halligan, et al. v. Fremont Unified District Teachers
Association CTA/NEA, Charge No. SF-CO-232
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation
section 32620 (5), a complaint will not be issued in the above-referenced.
case and the pending charge is hereby dismissed because it fails to
allege facts sufficient to state a prima facie violation of the
Educational Employment Relations Act (EERA) .1 The reasoning which
under lies this decision follows.
On April 26, 1984, the regional attorney wrote to charging party pointing
out the deficiencies of the charge as written and soliciting an amendment
or withdrawal by May 7, 1984 (letter attached and incorporated by
reference) . The letter warned that if no such response was receiving by
the deadline, the allegations would be dismissed and no complaint would
issue.
On May 7, 1984, the regional attorney received a letter from Mr. David
Bryant, attorney for charging party. It indicated receipt of the
April 26, 1984 letter as well as acknowleged that on April 26, 1984 the
Court of Appeal summarily dismissed a petition for Writ of Review filed
1References to the FERA are to Government Code sections 3540
et seg. 	FERB Regulations are codified at California Administrative Code,
Title 8.

David T. Bryant
Kirsten Zerger
May 11, 1984
Page 2
in the case of John A. Broadwood, et al. v. PERB (1 Civil A-14652) .2
The regional attorney had cited Los Altos as authority for dismissing the
instant charge if it were not withdrawn or amended.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III) , you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
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 Notice (section 32635 (a) ) . To be timely filed, the original and
five (5) copies of such appeal must be actually received by the Board
itself before the close of business (5:00 p.m.) on May 31, 1984, or sent
by telegraph or certified United States mail postmarked not later than
May 31, 1984 (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 (5) copies of a
statement in opposition within twenty (20) 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
the document 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
2petitioner had challenged PERB's decision in Los Altos School
District (Broadwood) (12/29/81) PERB Decision No. 190.

David T. Bryant
Kirsten Zerger
May 11, 1984
Page 3
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
(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.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: General Counsel

STATE OF CALIFORNIA 	GEORGE DEUXMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
April 26, 1984
David T. Bryant
National Right to Work Legal
Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22160
Re: 	Ann M. Halligan, et al. v. Fremont Unified District Teachers Association,
CTA/NEA, Charge No. SF-CO-232
Dear Mr. Bryant:
On April 9, 1984 charging parties Ann M. Halligan, et al. filed an unfair
practice charge against the Fremont Unified District Teachers Association
(Association) alleging violation of EERA sections 3544.9 and 3543.6 (b) . More
specifically, the charging parties allege that the Association entered into a
collective bargaining agreement with the Fremont Unified School District
(District) on December 14, 1983 which contained an organizational security
provision that, like other provisions of the agreement, was made effective
retroactively to July 1, 1983. Further, charging parties allege that some.
time after December 16, 1983, the Association requested the District to deduct
service fees from the salaries of charging parties who have not paid fees for
the period between July 1, 1983 and December 13, 1983. Such fees were,
according to the allegations, automatically deducted from charging parties'
salaries and turned over to the Association.
PERB has held that an exclusive representative has authority under EERA to
collect agency fees retroactively to the effective date of the recently-
negotiated successor collective bargaining agreement. Los Altos Teachers
Association (12/29/81) PERB Decision No. 190, rev. pend. (1 Civ. 54699) . I
Such fees may be deducted automatically from payroll, despite the absence of
the non-member's consent. King City High School District (3/3/82) FERB
Decision No. 197, rev. pend. (1 Civ. A016723) .
The unfair practice charge, as presently written, fails to state a prima fest?
violation of section 3543.6 (b) . The Association acted lawfully when it
requested the District to automatically deduct agency fee payments from
charging parties' salaries retroactive to July 1, 1983, the date on which the
lAlso see Berns v. Wisconsin Employment Relations Commission
(Wisc.S.Ct. 1980) 1979-80 PBC, Par. 37111, affirming Berns v. WERC (Wisc.Ct.
of App. 1979) 105 LRRM 2092.

agreement was first made effective. Accordingly, the allegations of the
charge will be dismissed and no complaint will issue thereon.
If you feel that there are 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. Please
be sure to indicate the PERB charge number. 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 May 7,
1984, I shall dismiss your charge. If you have any questions on how to
proceed, please call me at (415) 557-1350.
Sincerely yours,
Peter Haberfeld
Regional Attorney
2