California School Employees Association-Chapter 318 (Harmening) (PERB 0442E)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS. BOARD

WILLIAM E. HARMENING,
Charging Party, Case No. §-CO-110
Vv. PERB Decision No. 442

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 318,

November 29, 1984

Respondent.

Appearance: Mocine, Plotz & Eggleston by Mary H. Mocine,
Attorney for William E. Harmening.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.*
DECISION

This case is before the Public Employment Relations Board
on an appeal by William E. Harmening of the Board agent's
dismissal, attached hereto, of his charge alleging that the
California School Employees Association, Chapter 318 violated
sections 3543.6(b) and 3543 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.

Ithe regional attorney's dismissal letter erroneously
states that the charging party alleged violations of section
3543.6(a) and (c). No such charges were made.

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

ORDER
The
	unfair
	practice
	charge
	in
	Case
	No. 	S-CO-110
	is
DISMISSED
	WITHOUT 	LEAVE
	TO
	AMEND.
By
	the
	BOARD
2

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
June 15, 1984
Mary H. Mocine
Mocine, Plotz & Eggleston
1440 Broadway, Suite 1000
Oakland, CA 94612
Louis Saenz
California School Employees
Association Chapter 318
P. O. Box 640
San Jose, CA 95106
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
William E. Harmening v. California School Employees Association
Chapter 318, Charge No. S-CO-110
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation
section 32520 (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 underlies this decision follows.
On June 7, 1984, William E. Harmening, charging party, filed an unfair
practice charge against the California School Employees Association Chapter 318
(Association) alleging violation of EERA section 3543.6(b) . More specifically,
charging party alleged that on March 28, 1984 he was recalled from his position
as president of the Association's Stockton chapter, that the procedure followed
was rife with defects, and that the result was unfair because at least
25 nonmembers voted at the meeting.
Examination and investigation of the above-referenced charge revealed the
following. Charging party was elected president of the Association's Stockton
chapter on November 30, 1983. On March 26, 1934, at approximately 3:00 .m. ,
charging party was notified of an intent on the part of certain Association
members to hold a recall election two days later at the next regularly
scheduled chapter meeting. On March 27, 1984, notice of the recall election
was distributed among classified employees. Charging party contends that the
notice was not distributed to all employees. On March 28, 1984, the
1References to the ECRA are to Government Code sections 3540 et seq.
PERS Regulations are codified at California Administrative Code, Title 3.

Mary H. Mocine
Louis Saenz
June 15, 1984
Page 2
regularly-scheduled meeting was opened by charging party as president. The
Association asserts that approximately 165 employees were present when charging
party was elected president, and approximately 177 unit members attended the
recall meeting. The recall procedure was initiated and the accusations against
charging party were read. Charging party stated that he had not been provided
sufficient time within which to prepare a response and that he would prefer to
respond in writing. He then agreed to answer orally each of the separate
charges against him. A voice vote was held, and it was concluded, by a
representative of state CSEA who was conducting the meeting, that more than the
required three-fourth of the members present had voted in favor of the recall.
Harmening's wife (also an employee) challenged the results on the ground that
more than 25 voters were not members of the Association. A committee was
formed to investigate that allegation, and ultimately the approximately 25
nonmembers were given an opportunity to become members that evening. There is
no indication that such persons paid the initiation fee and regular dues which
Charging Party asserts to be a precondition of membership under Article 2,
section 1 of the chapter's constitution and bylaws (see Exh. "A") .
Charging party has alleged that the Association denied him the right to fair
representation guaranteed by section 3544.9, and thereby violated
sections 3543.6 (a) and (c) . The fair representation duty imposed on the
exclusive representative extends to contract negotiations (Redlands Teachers
Association (Faeth) (9/24/78) FERB Decision No. 72; SEIU, Local 99 (Kimmett)
(10/19/79) FERB Decision No. 106; Rocklin Teachers Professional Association
(Romero) (3/25/80) PERB Decision No. 124; El Centro Elementary Teachers
Association (Willis) (8/11/82) PERS Decision No. 232) ; contract administration
(Castro Valley Teachers Association (McElwain) (12/17/80) PERB Decision
No. 149; SECU Local 99 (Pottorff) (3/30/82) PERS Decision No. 203, and to
grievance handling (Fremont Teachers Association (King) (4/21/80) PERB Decision
No. 125; United Teachers of Los Angeles (Collins) (11/17/83) PERB Decision
No. 258) . FERS has ruled that a prima facie statement of such a violation
requires allegations that: (1) the acts complained of were undertaken by the
organization in its capacity as the exclusive representative of all unit
employees; and (2) the representational conduct was arbitrary, discriminatory,
or in bad faith.
The duty to represent employees fairly is not applicable to activities which
are strictly internal union matters:
Only such activities that have a substantial impact
on the relationships of unit members to their
employers are subject to that duty. 	(Kinmett,
supra, at p. 8.)

Mary H. Mocine
Louis Saenz
June 15, 1984
Page 3
PERS has refused to review procedural objections to internal union elections.
In Kimmett, supra, the Board stated:
[T]he election to select a representative to the
negotiating team is not subject to the duty of fair
representation. The negotiating team must represent
all employees in the unit fairly, but that obligation
does not entail the selection of negotiators in any
particular manner . 	(SEIU, Local 99 Kimmett, supra,
at p. 12.)
PERS explained its rationale as follows:
The internal organization structure could be
scrutinized as could the conduct of elections for
union officers to ensure conformance with an
idealized participatory standard. However laudable
such a result might be, the Board finds such inter-
vention in union affairs to be beyond the legislative
intent in enacting the EERA. 	(SEIU, Local 99
Kimmett, supra, at p. 16.)
While elections or recall of union officers may not implicate the duty of fair
representation, organizational discipline of members may violate the duty under
limited circumstances. The Board did not intend in Kimmett "to abdicate [its]
jurisdictional power to determine whether an employee organization has exceeded
its authority under subsection 3543.1(a) to dismiss or otherwise discipline
its members." (California School Employees Association and its Shasta College
Chapter #381 (Parisot) (1/31/83) PERS Decision No. 280, at p. 11. ) Rather, an
organization's failure to have reasonable provisions governing discipline of
members, or its failure to abide by them, may violate the duty in light of the
statutory prescription enabling employee organizations to "make reasonable
provisions for the dismissal. of individuals from membership" 	(see
subsection 3543.1(a) ) .
In the instant case, the incident complained of concerns a recall election of
a union officer. It does not appear that the recall election procedures, on
their face, or as applied, constitute disciplinary measures or that, as a
result of the recall, Charging Party's membership was impaired by suspension,
fine, decree of ineligibility for state or chapter office, or any other
disqualification. (Cf. Parisot, supra.) Further, no information has been
presented which suggests that the recall was initiated and/or implemented by
the statewide organization or that state policy No. 613 (discipline of
members) was invoked (Exhs. "B" and "C") .

Mary H. Mocine
Louis Saenz
June 15, 1984
Page 4
Anomalously, CSEA argues that the actions taken against Harmening can be
construed as essentially disciplinary in nature. This argument does not
appear to be valid. The procedure set forth in Article III, section 5 of the
constitution of the Stockton School Employees chapter 318, followed during the
recall of Charging Party, is not on its face disciplinary in nature (Exh. "A") .
Nor does it appear that the procedure was applied as a disciplinary measure in
this instance. It is true that some or all of the voters may have voted in
favor of the recall because charging party was involved in a decertification
campaign against the Association prior to becoming president. That
decertification campaign conduct was the basis of one of several charges
lodged against him. The likelihood that some voters sought charging party's
recall on that basis, owever, does not change the election into a disciplinary
proceeding against charging party by the local and/or statewide organization.
For the foregoing reasons, the Parisot rule does not extend to the facts
involved in this case. Nor does it appear that any other legal theory exists
in support of the charge. the charge fails to state a prima facie violation
of EERA section 3543.6 (b) . The allegations are dismissed and no complaint will
issue thereon.
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 July 5, 1984, or sent by telegraph or certified United
States mail postmarked not later than July 5, 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) ) .

Mary H. Mocine
Louis Saenz
June 15, 1984
Page 5
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 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

:

STOCKTON " SCHOOL EMPLOYEES CHAPTER NO. 312
CONSTITUTION
ARTICLE I
. NAME, 03JECTIVES, AND DEFINITIONS
Section 1. The name of this organization shall be the Stockton School Employees Chapter
No. .318, : California School Employees Association..
Seccion 2. Its objects shall be to promote the efficiency and raise the standards of
service of all public school employees; afford opportunity for the investigation and
interchange of ideas upon subject pertaining to the progressive development of the public
school system; initiate and promote such legislation. as may be for the best interests
of the schools and for the members of the organization; establish a spirit of friendly
cooperation with state and local administrative officials; and promote the good and
welfare of the members of the organization.
Section 3. Definitions. Where the following words are used in the Constitution and
Bylaws they shall mean:
(a) 	Chapter - Stockton School Employees Chapter No. 313, . California, School
Employees Association-
(b) . Patent organization or Association the California: School Employees Association
District-the Stockton Unified School District;
Board-the Board of Education of the District;
Administration-the Administration of the District;
Gender--Where the masculine gender is used it shall also include the feminine
gender.
Article II
MEMBERSHT?
Section 1. Any person regularly employed in or honorably retired from a public school
as shall be cligible for membership in this chapter upon the payment of the regular
A initiation fee and does.
Section 2. Application for membership shall be filled in and signed by the applicant.
Article III
CHATTER SIFICERS AND EXECUTIVE COMMITTEE, THEIR ELECTION, AND FISCAL YEAR
Seecion: 1. Cilicars and Executive Countsas.
(a ) 	The following offices shall constitume che willes?" ?:"boat : c.. chi;":
President
First Vice-President
Second Vice-President
Recording Secretary
Corresponding Secretary
Treasurer
Parliamentarian
Sargeant-at-Arms
Jr. Past President

(b) Executive Committee. The officers and one good representative from each
of the five major classified \ons (Custodial, Clerical/Techoral, Maintenance. Para-
Professional, and Cafeteria) shall constitute the Executive MmmAckee of the chapter.
(c) A quorum of the Executive Committee shall be the majority of that body.
Section 2. Eligibility to Hold Office. The officers and the elected representatives.
" from the five major classifications of this chapter shall be elected from'among
members in good standing and shall continue in office, unless otherwise herein provided,
until completion of the term of office, but shall automatically forfeit such office if
ac amy time during the prescribed term of office such officer or job representative is
not a member is good standing."
Section 3. .Term of Office. The term of office shall be one year for the offices of
President, First Vice-President, Second Vice-President, Recording Secretary, CorrespondingThe Junior Past
Secretary, Treasurer, Parliamentarian, Sergeant-at-Arms, and Reporter. 	The tara of
President shall serve until replaced by the new Junior Past President.
office for the elected representative from the major classifications to the Executive
Committee shall be two years. The membership of Executive Committee representatives from
custodial and clerical/technical shall be filled in the even number years, and the member
ship of Executive Committee representatives from maintenance, para-professional, and .
cafeteria shall be filled in odd numbered years.
Section 4. Election Procedures.
"(a) For offices of President, First Vice-President, Second Vice-President,
Recording Secretary , Corresponding Secretary, Treasurer, Parliamentarian, Sargeant-at-
Aras,and Reporter. : A nominating committee shall be-appointed, as hereinaides provided
to offer nominations for President, First Vice-President, Second Vice-President, Recordin
Secretary, Corresponding Secretary, Treasurer, Parliamentarian, Sergeant-20-Arms, Reporte
and shall report its recommendations at the October chapter meeting.
Nominations for these offices will then be accepted from the floor. Nominatic
for those offices will again be accepted from the floor at the chapter's November meeting
If there is only one nomination for an office, a motion from the floor. may be made to
cast a unanimous ballot for that (chose) nominee(s) . In the event more than one pers
is nominated for an office, elections shall be by secret ballot. .
(b) For: Job Representatives to the Executive Committee. .";All-chapter members
who. are. serving in the classification from which a representative is. to be.elected in "
accordance with .Section :3_Article III of the Constitution, shall, by direction of and. "
presided over by the. President, hold a meeting prior to the November chapter meeting and
elect from among its membership a representative to the Executive Committee."
(c)<Officers may be installed in December but shall be installed not later. thanks
January-31.7: Officers shall serve from the beginning of the fiscal and chapter year re-
gardless-of the date of the installation ceremony.
Bastion 5. Recall or Removal of an Offices or Commintee Member.
(a) An elected officer may be removed from office upon three-foundks (,) wags
Comicsee may be removed from office upon chibee-foufina (3/ 6) 79:4 0: : q.18.:
these members in his classification present at any regular meeting, provided such office
c: classification representative shall first have been notified of the intention to
recall the officer and classification representative, the reasons therfor, and has been
presented an opportunity to rebut all charges that may be brought against hin (Sey algo
Section 2, Article III of the Constitution ) ;
(b) Any chairman or member of any properly cons Abused committee may be recoved
from office by a three-fourths (3/4) vote of the Executive Committee, a quorum being
present, provided such person shall have been notified of the Executive Counting's
intention to remove the person and reasons cherefor, and has been presented an opportuni

to rebut all charges brought against him. The chapter may direct the Executive Comalegee	governed by er 	section in ics accion
to remove any chairman of a her but shall be gove. 	vote on the issue. It
except it shall report its landings to the chapter which she..
shall require three-fourths (3/4) vote of the eligible membership in attendance to
remove a chairman or member of a committee.
(9) 	A chairman or member of a committee shall automatically forfeit such office if
at any time during the prescribed term of office such chairman or member is not a member
in good standing.
(d) Any member of any committee failing to attend three (3) consecutive meetings,
amless excused for cause, shall be automatically dropped from said committee and a successor
appointed. .
Section 6. 	Fiscal and Chapter Year. The fiscal and chapter year shall be from January
to December 31 of each year.
Article IV
COMMITTEES AND THEIR COMPOSITION
Section 1. 	Committees. The President shall appoint the following committees, which
appointment shall be subject to ratification by the Executive Committee:
Committee 	Minimum Membership
Education/Scholarship 3
Entertainment 3
Membership 1
Nominating (one from each of 5
class groups) 	5
Insurance 1
Legislation 3
Research (Salary Survey) 5
PACE 	3
Section 2. Such committees as in the judgment of the Executive Committee are necessary
for the welfare of the chapter shall be appointed. The Executive Committee shall determine
the composition of such committees and the duration of appointment which shall not extend
beyond the close of the fiscal year.
Section 3. The President shall be a member ex officio of all committees except the
Nominating Committee.
Article V
DELCOATE TO CONFERENCES, ELECTION AND RESPONSIBILITIES
Section 1. Delegates. Voting delegates to any annual of special conference of the
parent organization shall be as follows:
(a) 	The chapter president;
( 3 ) Such other delegates in the number authorized by the Executive Committee and
'not to exceed the number authorized by the constitution and bylaws of the patent organizati
Station 2. Election. Authorized delegates. other than the President, shall be nominated
from cambers in good standing for at least one year, as the regular meeting in March and
elected at the regular meeting in April. Alternates for the members authorized delegates
15