Service Employees International Union Local 87 (Hornet Foundation, Inc.) (PERB 0521H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 87,
Charging 	Party,
v.
HORNET FOUNDATION, 	INC.,
Respondent.
)
)
) 	Case No. 	S-CE-21-H
PERB Decision No. 	521-H
September 20, 	1985
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg 	for 	Service Employees 	International Union, 	Local 	87;
Kronick, 	Moskovitz, 	Tiedemann & Girard by James 	E. 	Mesnier 	for
Hornet Foundation, 	Inc.
Before Hesse, 	Chairperson; Jaeger, 	Morgenstern, 	Burt and Porter,
Members.
DECISION AND 	ORDER
Charging Party, 	Service Employees 	International 	Union,
Local 87, 	appeals 	the dismissal, 	attached hereto, 	by the
regional 	attorney of 	its 	unfair 	practice 	charge 	against 	Hornet
Foundation, 	Inc. 	(Respondent), 	for failure to state a prima
facie case. 	While 	the parties 	disagree over whether a prima
facie violation of 	section 	3571 	of 	the 	Higher Education
Employer-Employee 	Relations 	Act 	(HEERA) 	(Government 	Code
section 3560 et 	seq.) 	was 	alleged by the charge, 	both parties
assert 	on appeal 	that 	the 	issue 	of 	the 	sufficiency of 	the
charge 	should 	not have been 	reached 	without 	first 	addressing
whether 	or 	not 	the 	Respondent's 	relationship 	to 	California
State University, 	Sacramento, 	is such that Respondent
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_____________ )

is 	subject 	to the provisions 	of HEERA, 	and 	thus 	subject 	to
Public 	Employment 	Relations 	Board 	(Board) 	jurisdiction.
Because 	we 	agree 	that 	the 	regional 	attorney 	erred 	in 	failing
to address 	the 	jurisdictional 	issue 	first, 	it 	is hereby ORDERED
that 	this 	case be 	remanded 	to the 	General 	Counsel 	for
appropriate action. 	By this 	Decision, 	the Board makes 	no
representation as 	to 	the accuracy of 	the 	regional 	attorney's
determination with 	regard 	to 	the 	sufficiency of 	the 	charge.
By 	the 	BOARD
22

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 322-3198
May 16. 	1985
William A. 	Sokol
Van Bourg, 	Weinburg, 	Roger 	& Rosenfeld
875 	Battery 	Street
San Francisco. 	CA 	94111
Re: 	SEIU Local 	87 v. 	Hornet Foundation. 	Inc.
Unfair 	Practice 	Charge No. 	S-CE-21-H
Dear Mr. 	Sokol:
The 	above-referenced 	charge 	alleges 	that 	the 	Hornet 	Foundation. 	Inc.
(Foundation) 	has 	refused 	to 	sign 	a 	collective 	bargaining 	agreement
which 	it 	negotiated with 	the 	Service 	Employees 	International 	Union.
Local 	87 	(Union). 	This conduct 	is 	alleged 	to violate 	section 	3571
of 	the Higher 	Education Employer-Employee 	Relations 	Act 	(HEERA).
I 	indicated 	to 	you 	in my 	letter 	dated May 	1. 	1985 	that 	the
above-referenced 	charge 	did 	not 	state 	a 	prima 	facie 	case, 	and 	that
unless you 	amended 	the 	charge 	to 	state 	a 	prima 	facie 	case, 	or
withdrew it prior 	to May 8, 	1985. 	it would 	be dismissed. 	This
deadline was 	extended 	to May 13. 	1985. 	More 	specifically. 	I
informed 	you 	that 	if 	there were 	any 	factual 	inaccuracies 	or
additional 	facts 	which would 	correct 	the 	deficiencies 	explained 	in
that 	letter, 	you 	should 	amend 	the 	charge 	accordingly.
I 	have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an 	amended
charge 	and 	am 	therefore 	dismissing 	this 	charge 	based 	on 	the 	facts
and 	reasons 	contained 	in my May 	1. 	1985 	letter which 	is 	attached 	as
Exhibit 	1.
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 	dismissal 	(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 June 	5. 	1985. 	or 	sent 	by telegraph or 	certified
~

William A. 	Sokol
May 	16, 	1985
Page 	2
United 	States 	mail 	postmarked 	not 	later 	than 	June 	5, 	1985 	(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 roust 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 	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
Robert 	Thompson
Regional 	Attorney

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN,
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET. SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
May 1. 	1985
William A. 	Sokol
Van Bourg. 	Weinburg. 	Roger & Rosenfeld
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	SEIU Local 	87 v. Hornet Foundation. 	Inc.
Unfair Practice Charge No. 	S-CE-21-H
Dear Mr. 	Sokol:
The 	above-referenced 	charge 	alleges 	that 	the Hornet 	Foundation.
Inc. 	(Foundation) 	has refused 	to sign a collective bargaining
agreement which 	it 	negotiated with 	the 	Service Employees
International Union. 	Local 87 	(Union). 	This conduct is alleged
to violate 	section 3571 of 	the Higher 	Education
Employer-Employee Relations Act 	(HEERA).
My 	investigation revealed 	the 	following 	facts. 	The Hornet
Foundation 	is 	a 	nonprofit 	corporation 	organized under 	the
provisions 	of 	the Nonprofit Public Benefit Corporation Law. 	It
is 	an auxiliary organization 	to 	the 	Cal 	State University campus
in Sacramento. 	As 	such it 	is 	governed 	by section 89900 et seq.
of 	the Education Code and title 	5. 	section 42400 et seq. 	of the
California Administrative Code. 	According to its bylaws, 	the
Foundation's 	affairs are 	controlled 	by a 	nine-person board of
directors.
The Union has 	represented 	food 	service employees of 	the
Foundation for 	several years 	and has 	been a 	party to a
collective 	bargaining agreement 	with 	the 	Foundation 	since
1966. 	After negotiating during 1984. 	the Foundation and the
Union 	reached 	a 	tentative agreement 	as 	to 	a 	new collective
bargaining agreement effective through June 30. 	1987. 	On
August 23. 	1984. 	the food service director of the Foundation.
Russell 	Leverenz. 	forwarded copies 	of 	the proposed memorandum
of understanding 	(MOU) 	to the Union. 	His cover letter stated
in part:
[f]ollowing acceptance 	by 	the 	employees,
please 	contact me 	so 	that we may coordinate
the 	signing and dating 	of 	the memorandum to
forward 	to 	the Hornet*Foundation Board 	of
Directors 	for final 	ratification.
EXHIBIT I

William A. 	Sokol
May 1, 	1985
Page 2
A signed 	copy of 	the memorandum was 	returned 	to Mr. 	Leverenz
from the Union on October 	12. 	Three days 	later 	Mr. 	Leverenz
notified the onion by 	letter 	that 	the 	Foundation's 	legal
counsel had 	informed him that 	the 	language 	negotiated 	in
Article 2.01 	and 	2.02 was 	illegal. 	This 	language reads as
follows:
ARTICLE* II 	- UNION RECOGNITION AND 	SECURITY
2.01. 	Recognition: 	The employer hereby
recognizes 	the Union as 	the 	exclusive
bargaining 	organization 	for 	its 	covered Food
Service employees 	for 	the purposes 	of
negotiating wages, 	hours and other 	terms and
conditions of 	employment on behalf 	of
covered 	employees 	excluding 	confidential,
supervisory, 	management and casual/student
employees.
It shall 	be a condition of employment 	that
all 	employees of the employer 	covered by
this memorandum who are 	presently members 	of
the Union 	shall 	remain members 	in 	good
standing during the 	life of 	this
memorandum. 	It 	shall be a condition of
employment 	that 	employees who are 	not
presently members 	of 	the union 	on the
execution 	date of the memorandum 	shall,
within thirty-one 	(31) 	days 	following
execution date of this memorandum, 	become
either 	members 	in good standing 	in 	the Union
or 	be required to pay an amount 	equal 	to
initiation 	fees 	and periodic 	dues 	set by the
Union.
It 	shall 	also be a 	condition 	of 	employment
that 	all 	employees 	covered by 	this
memorandum and hired on 	or 	after 	execution
date shall, within thirty-one 	(31) 	days
following beginning of 	such 	employment,
become 	and 	remain members 	in 	good 	standing
in the Union.
Employees 	who are required 	hereinunder 	to
maintain membership and fail 	to do 	so and
employees 	who are 	required 	hereinunder 	to

William A. 	Sokol
May 1, 	1985
Page 3
render 	a 	"fair share fee" 	deduction 	and fail
to do so shall, 	upon notice of such action
in writing from the Union 	to the employer,
be 	terminated within seven 	(7) 	days of 	such
notification.
2.02. 	Dues Deduction 	and Indemnification;
The employer 	agrees 	to deduct 	and remit 	to
Union 	all 	authorized 	deductions 	from Union
members who have signed an approved
authorization card or 	cards 	for 	such
deductions 	in the form provided.
1. 	Union agrees 	to 	indemnify, 	defend and
hold harmless 	the 	employer 	against any
claims 	of any nature and any lawsuit
instituted against 	employer 	made or
arising from employer 	check 	off 	for 	dues.
2. 	The written authorization for 	dues or
•fair share fee" of an amount equal to
such dues deduction shall 	remain 	in
force and effect 	during the 	life of 	this
memorandum.
3. 	The employer will promptly remit
membership dues or 	fees 	deducted 	to 	the
Union, 	together with a list of the
employees who have had said dues or 	fees
deducted. 	Deductions of membership dues
or 	fees will be made 	from each pay
period 	in which an employee 	is 	in pay
status; provided, however, the employer
and Union may make other 	arrangements 	by
mutual 	agreement consistent with
employee's written authorization,
(emphasis in original).
Mr. 	Leverenz 	concluded his 	letter by stating:
As a result of this review, 	I have prepared
a draft of 	the language which 	I propose we
use 	in 	the memorandum of 	understanding
replacing the previous language. 	Enclosed
is a 	copy as you requested 	in our 	phone
conversation 	this morning.

William A. 	Sokol
May 1, 	1985
Page 4
Please 	review 	the draft 	and 	feel 	free to
contact me 	if 	you have questions 	concerning
the proposal. 	We would like to resolve this
matter 	in a 	timely and 	legal manner.
On November 7, 	Bill Freitas, 	a representative of 	the Union,
argued with Mr. 	Leverenz that the contract, 	as proposed, 	was
legal. 	At that time, 	the parties exchanged the names,
addresses and 	telephone numbers of their 	respective attorneys.
The Union 	and 	the 	Foundation continued 	to discuss 	the matter
until December 	14, 	when the Union 	filed a charge with the
National Labor Relations Board 	(NLRB) 	in San Francisco. 	On
January 31, 	the regional director of 	the NLRB notified the
parties of his 	conclusions:
The 	investigation 	revealed that 	the 	employer
is an 	integral 	part of the 	State University
System under 	pervasive 	state control.
Therefore, 	it 	is concluded that the employer
is exempt 	from the coverage of the Act
pursuant to the provisions of section 2(2).
I am, 	therefore, 	refusing to issue complaint
in this matter.
On February 12, 	Mr. 	Leverenz notified the Union that the
Foundation wished 	to 	proceed 	"expeditiously 	to 	resolve 	the
Article 2.01 	and 2.03 	[sic] 	language 	in 	the memorandum of
understanding." 	On February 27, 	the Union filed the present
unfair practice 	charge with PERB.
Based on the facts 	described above, 	this charge 	fails 	to state
a prima 	facie violation of the HEERA for 	the 	reasons which
follow.
It 	is 	arguable 	that 	the State University system so closely
controls 	the workings 	and 	labor 	relations policy of 	the Hornet
Foundation that 	the University can be deemed a 	"joint employer"
of Hornet employees, 	thereby making them "employees" 	covered by
the HEERA, 	see Alameda County Board of Education 	et al.
(6/30/83) PERB Decision N O . 323, at pp. 	13-19. 	At this time it
is unclear whether 	such a 	joint 	employer 	relationship exists;
however, 	for 	the purposes 	of this 	letter 	the Foundation will be
treated as 	if 	subject 	to PERB's 	jurisdiction. 	If 	the
deficiencies in the charge, as identified below, 	are cured, a
determination of 	the 	joint employer 	issue will be made.

William A. 	Sokol
May 1, 	1985
Page 5
HEERA Section 	3562(d) 	defines 	the employer's meet 	and 	confer
obligation as 	limited 	to matters within the scope of
representation. 	HEERA section 3582 	reads as 	follows:
Subject to the 	limitations 	set forth in 	this
section, 	organizational 	security shall be
within the scope of 	representation.
The 	legal 	forms of organizational 	security are discussed 	in
section 	3583 which reads:
Permissible 	forms 	of 	organizational 	security
shall 	be 	limited 	to an 	arrangement pursuant
to which an employee may decide whether 	or
not to 	join 	the 	recognized or 	certified
employee organization, 	but which requires
the employer 	to deduct 	from the wages or
salary of any employee who does join, 	and
pay to the employee 	organization which 	is
the exclusive representative of such
employee, 	the standard initiation fee,
periodic dues, 	and general assessments of
such organization 	for 	the 	duration of 	the
written 	memorandum of 	understanding.
However, 	no such 	arrangement shall deprive
the employee of 	the 	right 	to resign 	from the
employee organization within a period of
30 days prior 	to 	the expiration of a written
memorandum of understanding.(emphasis added).
Article 	2.01 of 	the proposed memorandum of 	understanding reads
in pertinent part:
It shall 	also be a 	condition of employment
that all employees 	covered by this
memorandum and hired 	on 	or 	after 	execution
date shall, within thirty-one (31) days
following beginning of 	such 	employment,
become and remain 	members 	in good standing
in the Union.

William A. 	Sokol
May 	l, 	1985
Page 	6
This 	clause which 	requires Union membership for 	new employees
hired after 	the execution of 	the agreement 	is a 	form of
organizational 	security which 	is 	not 	permitted by HEERA section
3583. 	That section, when read 	in conjunction with section
35651', specifically 	limits 	the 	form of an 	organizational
security clause 	to one which 	recognizes 	the 	individual
employee's 	right 	to decide whether 	or 	not 	to join the employee
organization. 	Any other 	form of 	organizational security clause
would be considered outside 	the 	scope 	of 	representation under
section 3582. 	Thus, Article 2.01 and 2.02 of the proposed
memorandum of understanding is outside the 	scope of
representation. 	HEERA section 3562(r) states in pertinent part:
All matters not within 	the scope of
representation are reserved 	to the employer
and may not be subject 	to meeting and
conferring, 	provided that nothing herein may
be 	construed to limit 	the 	right of 	the
employer 	to consult with any employees or
employee 	organization 	on 	any matter 	outside
the scope of representation.
Thus, 	the employer is under no obligation 	to meet and confer
over Article 2.01 or 2.02. 	In 	light of HEERA section 3583, 	the
union shop provision of the MOU appears to be impermissible.
The employer's refusal to sign an agreement 	containing this
language does not, therefore, violate the HEERA.
Section 2.01 	also contains 	the 	requirement 	for 	present
employees 	to either become members of the Union or 	"be required
to pay an amount 	equal to initiation 	fees and periodic dues 	set
by the Union." 	Such an "agency fee" 	provision 	is also outside
the permissible 	forms of organizational 	security outlined
1HEERA section 3565 provides 	in pertinent part;
Higher 	education employees 	shall also have
the 	right to refuse to 	join employee
organizations or to participate in the
activities of these organizations 	subject 	to
the 	organizational 	security provision
permissible under 	this 	chapter.

William A. 	Sokol
May 1, 	1985
Page 	7
in HEERA section 	3583. 	Finally, 	the Memorandum of
Understanding 	contains 	no provision 	for members 	of 	the Union to
resign during the 	final 	30 	days of 	the MOU. 	The 	lack 	of such a
provision brings 	section 	2.01 	into 	conflict with 	the provisions
of HEERA section 	3583.
For 	these reasons, 	charge number S-CE-21-H, 	as presently
written, 	does not state a prima facie case. 	If you feel 	that
there are any factual 	inaccuracies 	in this 	letter 	or 	any
additional 	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 signe	-d 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 May 8, 	1985, 	I
shall 	dismiss your 	charge. 	If you have any questions on how to
proceed, please call me at (916) 	322-3198.
Sincerely yours,
Robert 	Thompson
Regional Attorney
cc: 	Bill Freitas