Capistrano Unified Education Association (La Marca) (PERB 1457E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFRY PETER LA MARCA,
Charging Party,
V.
CAPISTRANO UNIFIED EDUCATION
ASSOCIATION,
Respondent.
Case No. LA-CO-827-E
PERB Decision No. 145 7
August 20, 2001
Appearance: Jeffry Peter LaMarca, on his own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Jeffry Peter LaMarca (LaMarca) to a Board agent's dismissal of
his unfair practice charge. The charge alleges that the Capistrano Unified Education
Association ( Ac:c:oci::ition) viol::itPcl c:Pction 'i')43.6 nfthP Fclm�::ition::il Fmployment Relations
Act (EERA)1 with regard to its handling of union elections in which LaMarca was a candidate.
1 ERRA is codified at Government Code section 3540 et seq. Section 3543.6 states:
It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause a public school employer to violate
Section 3543.5.
(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.

After considering the entire record, the Board hereby dismisses the unfair practice
charge in accordance with the following discussion.
BACKGROUND
In the fall of 1999, the Association began the process for electing officials to the
California Teachers Association's State Council. LaMarca was a candidate for this position.
According to the unfair practice charge, which LaMarca filed on April 7, 2000, the ballots
were not sent to Association representatives until late September, shortly before the ballots
were scheduled to be returned to the Association. The Association announced the winning
candidate's names on October 4, 1999, and LaMarca alleges that several teachers were not
pennitted to vote, in addition to other alleged election irregularities. During the week of
October 4, 1999, LaMarca complained to Association President Frank Weirath (Weirath) about
the election procedures and Weirath ultimately agreed to hold a new election. That election
took place between November 1, 1999 and November 15, 1999. LaMarca alleges that various
election irregularities tainted the outcome of this election as well.
The Board agent dismissed the charge and LaMarca filed a timely appeal of the
dismissal on August 31, 2000.
( c) Refuse or fail to meet and negotiate in good faith with a
public school employer of any of the employees of which it is the
exclusive representative.
( d) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
2

DISCUSSION
Timeliness
EERA section 3541.5(a)(l) provides that the Board shall not issue a complaint in
respect of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge. It is the burden of the charging party to demonstrate that the
charge has been timely filed. 	(See Tehachapi Unified School District (1993) PERB Decision
No. 1024.)
The unfair practice charge was filed on April 7, 2000. Hence, only allegations of
events that occurred on or after October 6, 1999 are timely. In the first paragraph of his
charge, LaMarca states that:
This current charge ... is being filed against the [Association]
and concerns their recent election for the [CTA] "State Council."
These elections took place between September and November
1999. [Unfair practice charge, p. 3; emphasis added.]
The charge contains numerous allegations with regard to both elections, and also makes
reference to events occurring between the two elections. 	The charge states that the results of
the first election were announced on or about Monday, October 4, 1999, and states that "during
the week of October 4, 1999," W eirath and LaMarca had telephone conversations on at least
two separate days, the result of which was that Weirath agreed to hold a second election.
As stated in the charge, that second election occurred in November 1999. The charge also
provides details of the November election and raises objections to it.
Based on these facts, the Board concludes that the charge is timely filed with respect to
allegations that relate to events occurring on or after October 6, 1999.
3

Elements of Prima Facie Case
Having determined that the charge is timely filed, the next issue is whether the charging
party has stated a prima facie case of a violation of a statute under PERB's jurisdiction. In this
case, LaMarca alleges that the Association violated the BERA by committing numerous
election irregularities.
In cases involving internal union matters, to determine whether the charge states a
prima facie case of a violation, the Board has developed an analytical approach that will be
applied here. It is well established that the Board will not review internal union matters unless
the activities involved in the charge have a substantial impact on the relationship between unit
members and their employer. (See, e.g., California State Employees Association (Garcia)
(1993) PERB Decision No. 1014-S (CSEA (Garcia)), citing Service Employees International
Union, Local 99 (Kimmett) (1979) PERB Decision No. 106 (Kimmett); Board declined to
review allegations relating to election irregularities where charging party put forth no facts to
indicate that the union's alleged activities had a substantial impact on the charging party's
relationship with the employer; hence, the union's conduct was not subject to the duty of fair
representation. (CSEA (Garcia) at pp. 5-6.2)) Also, in California State Employees Association
(Hutchinson) (1999) PERB Decision No. 1369-S, the Board dismissed allegations that the
union conducted elections outside the timeframe required by internal union bylaws, mailed
election ballots in violation of internal union bylaws, improperly validated ballots in violation
2 It should be noted that CSEA (Garcia) has been partially overruled on other grounds
by a later decision reinforcing and clarifying the Kimmett "impact" rule. 	(CSEA (Hard, et al.)
(1999) PERB Decision No. 1368-S at pp. 23-30; see also, CSEA (Gonzalez-Coke, et al.)
(2000) PERB Decision No. 1411-S at pp. 22-23.)
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of internal union bylaws, failed to properly distribute election results in violation of internal
union bylaws and improperly installed union officers (id. at pp. 2-3).
The case at bar presents a similar situation. LaMarca's allegations relate to alleged
improprieties in an election process designed to elect officials to the California Teachers
Association's State Council. His charge essentially challenges the union's internal handling of
the election procedures, including ballot distribution and notification of results. The charge
does not provide facts to explain how these matters have an impact on employee-employer
relations. The Board finds that LaMarca has failed to state a prima facie case of a violation
under EERA and dismissal is appropriate. 3
Member Whitehead's concurring opinion confuses LaMarca's failure to state a prima
facie case with those cases in which PERB lacks jurisdiction. Despite that opinion's assertion
that the Board lacks the "power to decide" this charge for lack of jurisdiction, it fails to provide
a citation to any case in which the Kimmett "substantial impact" test is accorded jurisdictional
status. Rather, the traditional analytical sequence when reviewing dismissals is that first the
Board ascertains whether all jurisdictional prerequisites are met, such as timeliness. If so, the
Board then proceeds to review the allegations in order to detennine whether they state a prima
facie case of a violation of the EERA. In cases involving internal union matters, it is at this
secondary phase of the analysis that the Board utilizes the Kimmett limitation as a method of
measuring whether a prima facie case has been stated. This is a distinct legal inquiry from the
question of whether the Board has jurisdiction over a matter.
3 In his appeal, LaMarca makes reference to remedies he wishes to pursue in other
forums, and generally requests assistance in pursuing legal remedies. It should be noted that
this Decision only addresses matters arising under the EERA. LaMarca must pursue any
potential remedies that fall outside PERB's jurisdiction in the appropriate forums.
5

Member Whitehead's concurring opinion cites Abelleira v. District Court of Appeal
(1941) 17 Cal.2d 280, 288-291 (Abelleira) as authority for its assertion that the timeliness
inquiry "proceeds from" a determination that the Board has jurisdiction based upon power over
a charge. The Abelleira citation is not helpful, as that decision does not hold that the two
distinct inquiries should proceed in the sequence suggested by Member Whitehead. A simple
example illustrates why the Board, as an appellate body, first ascertains whether the charge is
timely filed, and only assesses whether a prima facie case has been established if it is
determined that the charge is timely. Assume, for example, that a person files an unfair
practice charge against his union asserting that he ran for union president in 1980 but lost due
to alleged unlawful conduct of the union leadership. He asserts that had he won, as president
of the union he would have been in a position to name the members of the bargaining team and
the members of the union would have benefited during the next round of contract negotiations
with the employer. Rather than simply dismissing the extremely stale charge for untimeliness,
Member Whitehead's concurrence would send a message to the Board agents that they should
ignore the timeliness question and first assess whether the charge states a prima facie case. On
these facts, it is not readily apparent whether or not the charge allegations satisfy the Kimmett
test. Thus, according to Member Whitehead's concurrence, Board agents would be required to
embark on a time consuming, yet ultimately pointless, investigation of a charge which, on its
face, is well outside the six month statute of limitations.
Because timeliness is jurisdictional, as Member Whitehead acknowledges, the Board
agent would have reviewed the merits of a charge over which it was immediately apparent that
it had no jurisdiction. This approach is not supported by appellate law precedent, and is not an
efficient use of the Board's time and resources.
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ORDER
The unfair practice charge in Case No. LA-CO-827-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Member Baker's concurrence begins on page 8.
Member Whitehead's concurrence begins on page 9.
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Baker, Member, concurring: I concur and join the lead opinion through page five, line
nine and join in the Public Employment Relations Board's (PERB or Board) order dismissing
the charge without leave to amend. I write separately to respond to Member Whitehead's
concurrence.
What Member Whitehead would have the Board do is nothing less than evaluating the
untimely portion of the charge to determine whether it states a prima facie violation of the
Educational Employment Relations Act (EERA). As a portion of the charge is untimely and
the Board is without jurisdiction to review this portion of the charge (EERA sec. 3541.S(a)(l)),
the majority of the Board has declined to engage in the futile act of reviewing this portion of
the charge to determine whether a prima facie case has been made.
I agree that PERB does not have the power to intervene in purely internal union affairs.
(Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
What this means is that for a charge concerning only purely internal union affairs, the Board
will not find a prima facie violation of EERA. If a charge concerning only purely internal
affairs were timely, the Board would have jurisdiction to review the charge. Following review
of the charge, the charge would be dismissed, just as any other charge failing to state a prima
facie violation of EERA would be dismissed.
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WHITEHEAD, Member, concurring: I agree with the majority's conclusion that the
Public Employment Relations Board (PERB or Board) has no power to decide this matter. I
write separately in that I find it unnecessary to rule on the timeliness of a charge over which
we have no jurisdiction.
In Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106 (Kimmett), while addressing the question of PERB's ability to scrutinize the
internal structure of a recognized employee organization under the Educational Employment
Relations Act (EERA), 1 the Board found "such intervention in union affairs to be beyond the
legislative intent in enacting the EERA." (Id. at p. 16.)2 The majority holds that Kimmett
merely establishes an element of the prima facie case. The lead decision finds that "[t]his is a
distinct legal inquiry from the question of whether the Board has jurisdiction over a matter."
I respectfully disagree with the majority's finding that the Board's conclusion in
Kirnrnett does not rise to the level of a jurisdictional bar. It is fundamental that administrative
agencies such as PERB "have only such powers as have been conferred on them, expressly or
by implication, by constitution or statute." (Department of Parks and Recreation v. State
Personnel Bd. (1991) 233 Cal.App.3d 813, 824 [284 Cal.Rptr. 839]; Ferdig v. State Personnel
Bd. (1969) 71 Cal.2d 96, 103 [77 Cal.Rptr. 224] (Fertig); see also, Abelleira v. District Court
1EERA is codified in Government Code sections 3540 et seq.
21 note that, Kimmett notwithstanding, the Board has made it clear that there are certain
union matters over which the Legislature has given it jurisdiction. (See e.g., California School
Employees Association and its Shasta College Chapter #381 (Parisot) (1983) PERB Decision
No. 280 [jurisdiction to review reasonableness of procedures for suspension of individuals
from membership]; California State Employees Association (Garcia) (1993) PERB Decision
No. 1014-S [employee organization may not retaliate against an employee for filing unfair
practice charges with PERB]; California State Employees Association (Hard, et al.) (1999)
PERB Decision No. 1368-S (CSEA (Hard, et al.)) [Board retains authority to assess the
reasonableness of a union's membership restrictions under Ralph C. Dills Act (Dills Act)
section 3515.5 (the Dills Act is codified at Government Code section 3512 et seq.)].)
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of Appeal (1941) 17 Cal.2d 280, 288-291 (Abelleira); Lake Elsinore School District (1987)
PERB Decision No. 646.)
In Abelleira, our Supreme Court engaged in a lengthy discussion pertaining to the
distinction between the many forms of jurisdiction. In doing so, it explained:
Lack of jurisdiction in its most fundamental or strict sense means
an entire absence of power to hear or determine the case, an
absence of authority over the subject matter or the parties ....
[ii] But in its ordinary usage, the phrase 'lack of jurisdiction' is not
limited to these fundamental situations .... [i[J ... 'The difficulty
arises from the different shades of meaning which the word
"jurisdiction" has.'
(Id. at pp. 288-290; emphasis added; citations omitted.)
The majority has lost its way in the "shades of meaning" of the word jurisdiction.
PERB only has the power conferred upon it by the Legislature. (Fertig.) If jurisdiction in its
fundamental sense means the power to determine or hear a case, (Abelleira), and if the
Legislature has not given PERB the power to intervene in purely internal union affairs,
(Kimmett), then PERB does not have jurisdiction to intervene in purely internal union affairs.
(Abelleira.) The logical progression to me appears clear.
The lead decision misses the mark in its observation that the concurrence "fails to
provide a citation to any case in which the Kimmett 'substantial impact' test is accorded
jurisdictional status." No such citation is necessary. Kimmett itself established this
jurisdictional status. For example, since Kimmett the Board has made it clear that the
limitation announced in that decision must be specifically pled and proven by a charging party
in the appropriate case in order to have their claim reviewed by the Board. (California State
Employees Association (Hackett, et al.) (1993) PERB Decision No. 979-S; California State
Employees Association (Hutchinson, et al.) (1998) PERB Decision No. 1304-S; CSEA (Hard,
et al.).) The Board has additionally found that the Kimmett limitation can be raised at any time,

even sua sponte by the Board for the first time on appeal. (California State Employees
Association (Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S.) Such requirements
sound in the realm of jurisdiction over the subject matter. In my mind, such cases obviate the
need for the Board to have formally bestowed upon Kimmett the jurisdictional status sought by
the majority.
The principle of subject matter jurisdiction relates to a court's or agency's inherent
authority to deal with the matter before it. (Abelleira.) In contrast, a court or agency acts in
excess of its jurisdiction where, even though it has subject matter jurisdiction, it has no
jurisdiction or power to act except in a particular manner, or to give certain kinds of relief, or
to act without the occurrence of certain procedural prerequisites. (Id.) It is this latter type of
jurisdiction, pertaining to limitations periods, that the majority seeks to elevate above
Kimmett.
Had the Board agent followed the correct jurisdictional progression, she presumably
would have determined that the Board did not have the ability to decide this claim for lack of
impact on the employer-employee relationship, and would have dismissed the matter on that
ground. Instead, the Board agent dismissed on limitations grounds, which necessitated the
Board's review and reversal of that finding, and a dismissal on the appropriate ground of no
impact on the employer-employee relationship. The lead decision appears to have overlooked
the fact that here, as in its hypothetical pertaining to a twenty year old union election, the
procedures used proved to be "time consuming, yet ultimately pointless."
The question here is not whether we have the power to decide this case. It is whether
we have the power to decide this ~ of case. I acknowledge those Board decisions which
have found that the 180-day limitations period is itself jurisdictional. (California State
University, San Diego (1989) PERB Decision No. 718-H; The Regents of the University of
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California (1990) PERB Decision No. 826-H.) However, jurisdiction to decide a question
based upon power over a charge differs in substance from jurisdiction to decide a question
based upon the timely filing of the charge itself. The latter proceeds from the former.
(Abelleira).
The Board of course has the ability to review the unfair practice charge in the first
instance to determine its authority to decide the issue presented. In other words, it has the
jurisdiction to determine whether it has the jurisdiction to act. (Board of Police
Commissioners v. Superior Court (1985) 168 Cal.App.3d 420,431 [214 Cal.Rptr. 493]; Public
Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4 th 1816, 1828 [17
Cal.Rptr.2d 323]; International Federation of Prof. & Technical Engineers v. Bunch (1995) 40
Cal.App.4 th 670, 676 [46 Cal.Rptr.2d 813].) However, once we have found that the Board has
no power over the subject matter, our analysis should end.
The Board's finding with respect to the limitations period is unnecessary to the
resolution of this matter.
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