California State Employees Association (Fry) (PERB 0604S)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
MARY E. 	FRY,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Respondent.
)
>
) 	Case No. 	LA-CO-20-S
PERB Decision No. 	604-S
December 30, 	1986
)
)
)
)
)
)
)
Appearance; 	Mary E. 	Fry, 	on her own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt and Porter,
Members.
DECISION
BURT, 	Member: 	This 	case 	is 	before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Mary E. 	Fry of 	a
regional 	attorney's 	refusal 	to 	issue 	a 	complaint 	and 	dismissal
of 	her 	charge 	alleging 	that 	the California 	State Employees'
Association 	(CSEA) 	unlawfully 	refused 	to 	accept 	her 	resignation
from 	that 	organization 	in violation of 	the 	State
Employer-Employee Relations Act (SEERA) 	section 3519.5(b). 1	1
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et 	seq,
All 	references 	are 	to 	the Government 	Code unless 	otherwise
specified. 	SEERA 	section 	3519.5 	provides 	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.
___________________ )
1

DISCUSSION
Fry's 	bargaining unit was 	covered 	by 	a 	collective
bargaining 	agreement 	(Contract) 	which expired 	on June 	30,
1985. 	The Contract 	contained 	a maintenance-of-membership
provision 	that 	restricted CSEA members' 	right 	to 	resign
membership 	by 	requiring 	submission 	of 	written withdrawals
within 	30 	days 	prior 	to 	the 	expiration date of 	the
Contract. 	The charge 	alleges 	that, 	prior 	to 	the June 30
expiration date, 	the parties 	agreed 	to 	extend 	the Contract 	on 	a
day-to-day basis 	until 	a 	new agreement was 	reached. 	Fry
alleges 	that 	she wrote 	to CSEA on July 3, 	1985 	to 	resign her
membership, 	but 	that CSEA 	refused 	to 	accept 	her 	resignation,
even 	though 	the 	parties 	had 	not yet 	reached 	agreement 	on 	a
successor 	contract.
The 	issue 	presented 	is whether 	or 	not 	the day-to-day
extension 	of 	the 	Contract 	would 	bar 	resignations 	submitted
after 	the expiration date of 	the original 	Contract. 	The 	Board
agent 	found 	that 	the 	extension did 	bar 	Fry's 	resignation 	and,
2 This 	Contract 	provision 	reads 	in pertinent 	part:
. 	. 	. 	any employee may withdraw from the
Union 	by 	sending 	a 	signed withdrawal 	letter
to CSEA . 	. 	. within 30 claendar 	[sic] 	days
prior 	to 	the expiration of 	this Agreement.
The 	provision 	is 	consistent with 	SEERA 	section 	3513(h)
which 	authorizes 	maintenance-of-membership 	provisions 	but
states 	that 	such provisions 	do 	not 	apply to 	an employee who
requests 	to 	resign 	in writing within 30 	days 	prior 	to
expiration 	of 	the 	contract.
N
	2

thus, 	that 	her 	allegations did not 	state 	a prima 	facie case.
She 	therefore dismissed 	the 	charge. 	Based 	on 	the 	facts
alleged,3 we 	disagree.
Although 	the 	Board 	has 	not 	previously 	addressed 	this 	issue,
we 	find we 	need 	not 	look 	farther 	than 	the 	clear 	language 	of 	the
Contract provision. 	Civil Code 	section 1639. 	Here, 	the
Contract 	provided 	that 	resignations 	were 	barred 	except 	for
those 	presented 	"within 	the 	last 	thirty days 	of 	the 	contract."
Thus, 	Fry had 	an opportunity to 	resign during 	the month of
June. 	If 	the contract 	terms, 	including this one, 	were 	indeed
extended 	on 	a 	day-to-day basis 	and 	if 	Fry's written 	request 	to
resign were 	received on or 	about 	July 3 	and before 	a 	successor
contract was 	agreed 	to, 	her 	request 	falls 	literally within 	the
last 	30 	days 	prior 	to 	the expiration date 	of 	the contract. 	For
this 	reason, 	we hold that, 	as 	a matter of 	law, 	the contract
extension before us 	did 	not 	bar 	Fry's 	resignation. 	Moreover,
the 	terms 	of 	section 3513(h) 	would preclude the parties 	from
extending 	the 	agreement without 	also 	extending 	the 	time within
which 	a 	member 	could 	resign membership.
Having 	found 	this 	to 	be 	so, 	we 	also 	find 	that 	Fry has
stated 	a 	prima 	facie case of 	interference 	in violation 	of
3 For 	purposes 	of 	ruling 	on an 	appeal 	of 	a dismissal 	of 	a
charge, 	the 	facts 	alleged 	in the charge 	are presumed 	true.
State of 	California 	(Department 	of 	General 	Services) 	(1983)
PERB Decision No. 	302-S.
W
	3

section 3519.5(b). 	Clearly, 	a union's 	improper denial of 	a
member's 	right 	to 	resign membership 	interferes 	with 	that
employee's 	exercise 	of 	the 	right 	under 	section 	3515 	to 	refuse
to 	join or 	participate 	in the 	activities 	of 	an employee
organization 	and 	the 	right under 	section 	3513(h).
ORDER
The 	Public 	Employment 	Relations 	Board 	hereby Reverses 	the
dismissal 	of 	the charge 	in Case No. 	LA-CO-20-S 	and ORDERS 	that
the General 	Counsel 	ISSUE 	a 	complaint 	on Mary E. 	Fry's
allegations.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
Member Morgenstern's 	dissent 	begins 	on page 	5.
4

Morgenstern, 	Member, 	dissenting: 	I 	reject the majority's
conclusion 	that 	Fry's 	July 	3 	attempt 	to 	resign was 	effective.
The 	original 	contract 	fully 	complied with 	the 	law by providing 	an
escape period 	from 	June 	1 	to 	June 	30. 	The 	day-to-day extensions
agreed 	to by 	the parties 	did 	not 	intrude 	on 	the 	guaranteed 	30-day
period. 	When 	Fry 	let 	this 	time-certain 	period pass, 	she 	did 	so
at 	the 	risk 	that 	a 	new contract 	or 	an 	extension 	would prohibit
her 	resignation 	until 	a 	new 	escape 	period 	arrived.
While 	I acknowledge 	that 	long or 	repeated extensions 	could
theoretically be 	used 	to undermine 	employees' 	right 	to 	refuse 	to
participate 	in 	union 	activities, 	I am guided by the 	Board's
decision 	in 	Alum 	Rock 	Union 	Elementary 	School 	District 	(1986)
PERB Order No. 	Ad-158. 	Absent evidence of bad 	faith conduct,
the 	interest 	in 	protecting a 	stable 	bargaining 	relationship
outweighs 	the 	incremental 	benefit 	to employee 	free 	choice 	that
is 	gained by 	adding 	additional 	days 	to 	the 	resignation 	period.
Here, 	the 	charge 	merely alleges 	that 	the 	contract was 	extended
on 	a 	day-to-day basis 	until 	a 	new 	contract 	could be hammered
out. 	No bad 	faith 	conduct 	is 	alleged, 	nor 	are we 	faced with 	a
long 	extension 	which 	might 	seriously 	impinge 	upon 	free 	choice.
In balance, 	I therefore conclude 	that 	the charging party
here 	has 	not 	suffered 	any 	infringement 	of 	her 	statutory 	right 	to
participate 	or 	not participate 	in 	an 	employee 	organization.
5