Los Rios Community College District (PERB 0867E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NORMAN P. 	BARTH,
Charging 	Party,
v.
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1382
PERB Decision No. 	867
February 13, 	1991
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Appearances: 	Norman P. 	Barth, 	on his own behalf; 	Susanne M.
Shelley, 	General Counsel, 	for Los Rios Community College
District.
Before Hesse, 	Chairperson; 	Shank and Cunningham Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Norman P. 	Barth
of 	the Board agent's dismissal, 	attached hereto, 	of his 	charge
that 	the 	Los 	Rios 	Community College 	District violated 	section
3543.5(d) 	of the Educational Employment Relations Act 	(EERA).1
We have reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial error, 	adopt 	it as the decision of the Board itself.
The unfair practice 	charge 	in Case No. 	S-CE-1382 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Shank 	and Cunningham 	joined 	in this 	Decision.
1EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
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e

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916)322-3198
December 12, 	1990
Norman P. 	Barth
Re: 	Norman P. 	Barth v. 	Los Rios Community College District,
Unfair 	Practice 	Charge No. 	S-CE-1382
Dear Mr. 	Barth:
On November 	6, 	1990, 	you 	filed an unfair practice 	charge 	against
the 	Los 	Rios 	Community 	College 	District 	alleging 	a 	violation 	of
Government Code 	section 3543.5(d). 	Specifically, 	you have
alleged 	that 	the 	District 	has 	provided 	illegal 	support 	to 	an
employee 	organization.
I 	indicated 	to you 	in my 	attached 	letter dated November 	26, 	1990,
that 	the 	above-referenced 	charge 	did 	not 	state 	a 	prima 	facie
case. 	You were 	advised 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew 	it
prior to December 	3, 	1990, 	the 	charge would be dismissed.
I 	received your amended 	charge on December 	3, 	1990. 	You now
allege 	that 	the 	District has 	violated Government 	Code 	section
3543.5 	by 	failing 	to provide 	a 	mechanism verifying 	the 	use 	of
released time. 	In 	support, 	you cite Government Code 	section
3543. l(c), 	sections 	32992, 	32993 and 32995 of subchapter 8 of the
California 	Code 	of 	Regulations 	and 	the 	recent 	decision of 	the
Ninth Circuit 	Court 	of 	Appeals 	in Grunwald 	v. 	San 	Bernardino
City Unified 	School 	District 	(1990) 	90 	Daily 	Journal 	D.A.R.
12318.
For 	the 	reasons 	provided 	in my prior 	letter, 	the 	negotiation of
released time 	is 	not 	a 	violation of 	Government Code 	section
3543.5. 	Further, 	neither EERA nor existing caselaw requires 	that
an 	employer 	supervise 	or 	verify 	a 	union's 	use 	of 	negotiated
released 	time. 	Neither 	the 	cited 	agency 	fee 	regulations 	nor 	the
@
eu

Grunwald 	agency 	fee 	case 	impose 	such 	a duty.1 Released 	time 	is
not a 	form of 	agency 	fees. 	Released time 	is paid 	for by 	the
District. 	An agency 	fee 	agreement 	requires 	an employee, 	as 	a
condition of 	employment, 	to 	either 	join an 	employee 	organization
or pay 	a 	service 	fee. 	Such 	fees 	affect 	a 	nonunion 	employee's
First 	Amendment 	rights 	and 	thus 	require 	certain 	procedural
protections 	(Chicago Teachers Union v. 	Hudson 	(1986) 	475 	U.S.
301; 	Grunwald. 	supra. p. 	12319). 	In your charge, 	there is no
issue 	regarding 	fees 	collected 	from 	employees 	and 	no
constitutional 	rights 	are 	affected. 	Accordingly, 	agency 	fee
cases 	and regulations 	are 	inapposite 	in 	evaluating the 	merits 	of
your charge.
December 	12, 	1990
Page 2
Right 	to Appeal
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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 	(California Code of 	Regulations, 	title
8, 	section 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 	(5:00 p.m.) 	or 	sent 	by
telegraph, 	certified 	or 	Express 	United 	States 	mail 	postmarked 	no
later than the 	last 	date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 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 	calendar 	days
following 	the 	date 	of 	service 	of 	the appeal 	(California 	Code 	of
Regulations, 	title 8, 	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 	each 	copy 	of 	a 	document 	served 	upon 	a party 	or 	filed
1You appear 	to 	couple 	agency 	fees with the union's 	use 	of
released 	time 	by 	stating 	"Since 	the 	money 	for 	released 	time
comes, 	under the 	contract, 	from the 	faculty 	salary portion of 	the
District's 	budget, 	it 	is 	partially funded by nonmember's 	money."

with 	the 	Board 	itself. 	(See 	California 	Code of 	Regulations,
title 	8, 	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.
December 	12, 	1990
Page 3
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 	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 	(California 	Code 	of
Regulations, title 8, 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.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Susanne M. 	Shelley

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
PERS
November 26, 	1990
Norman P. 	Barth
Re: 	Norman P. 	Barth v. 	Los 	Rios Community College District.
Unfair Practice Charge 	No. 	S-CE-1382
WARNING 	LETTER
Dear Mr. 	Barth:
On November 	6, 	1990, 	you 	filed an unfair practice charge against
the 	Los 	Rios 	Community 	College 	District 	alleging 	a 	violation 	of
Government Code 	section 	3543.5(d). 	Specifically, 	you have
alleged 	that 	the 	District 	has 	provided 	illegal 	support 	to 	an
employee organization. 	This 	letter reflects 	the 	information 	I
gave you by telephone on November 20, 	1990.
Your 	charge reveals 	the 	following. 	The Los 	Rios 	Community
College 	District 	and 	the 	Los 	Rios 	College 	Federation of 	Teachers
(LRCFT) 	are parties 	to a 	collective bargaining agreement 	covering
the time period July 1, 	1990, 	to June 30, 	1993. 	Article 20 of
that agreement 	is 	titled, 	"Federation Rights" 	and 	states 	the
following:
The District 	shall 	provide 	sixty 	(60) 	formal
hours 	annually 	of 	reassigned 	time 	for LRCFT
representatives 	for 	the purpose 	of
representation 	in matters 	involving 	grievance
and 	contract 	administration. 	By no 	later
than thirty 	(30) 	calendar days 	following the
signing of this Agreement, 	LRCFT will
designate 	in writing 	to 	the 	District
representative 	the 	members who will 	be
reassigned. 	Substitutions 	may be made within
the academic year on a ten 	(10) 	days' 	notice
by LRCFT.
Government Code 	section 	3543.l(c) 	states 	that 	"a reasonable
number 	of 	representatives 	of 	an 	exclusive 	representative 	shall
have 	the 	right to 	receive 	reasonable 	periods 	of 	released 	time
without 	lost 	compensation when 	meeting 	and 	negotiating 	and 	for
the processing of 	grievances." 	In Anaheim Union High 	School
District 	(1981) 	PERB Decision No. 	177, 	the Board determined that

released time 	is 	a mandatory 	subject of 	negotiations. 	The Board
found 	that 	the 	Legislature 	had 	"considered 	the 	matter 	of 	released
time 	too 	important 	to the 	statutory 	scheme 	to be 	left 	either to
the 	employer's 	discretion or 	entirely to 	the vagaries 	of
negotiations. 	Therefore, 	a minimum released time 	standard was
established, 	and thus, 	in effect, 	a standard against which the
parties 	good 	faith 	in negotiating 	on the 	subject 	could be
measured." 	(Id. 	at p. 	11.) 	The Board concluded that released
time 	is 	a 	subject 	in which the District 	is 	obligated 	to 	negotiate
in good 	faith.
November 26, 	1990
Page 2
The 	facts 	as 	you have 	stated 	them 	in this 	case merely 	show that
the 	District 	met 	its 	obligation to 	bargain over release 	time.
Agreement 	over 	such 	release 	time 	does 	not 	constitute 	unlawful
support 	for an employee organization. 	Rather, 	the 	subject 	is
within the proper 	scope of bargaining. 	Accordingly, 	your 	charge
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 	any 	additional 	facts 	that 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 	must 	be 	signed 	under penalty 	of 	perjury by 	the 	charging
party. 	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
December 3, 	1990, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney