Oxnard Educators Association (Gorcy and Tripp) (PERB 0681E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUDITH MAE 	GORCEY,
Charging 	Party,
v.
OXNARD 	EDUCATORS 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-369
PERB 	Decision 	No. 	681
June 20, 	1988
JAN MARIE 	TRIPP,
Charging 	Party,
v.
OXNARD 	EDUCATORS 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-370
Appearances; 	Rosenmund 	& 	Rosenmund by Michael 	A. 	Morrow 	for
Judith Mae Gorcey and Jan Marie Tripp 	; 	Schwartz, 	Steinsapir,
Dohrmann, 	and Sommers by Michael 	R. 	Feinberg 	for Oxnard
Educators 	Association.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	These 	cases 	are before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	Judith Mae 	Gorcey and 	Jan Marie 	Tripp 	(Charging 	Parties), 	to
the proposed 	decision 	of 	a PERB administrative 	law 	judge 	(ALJ).
The ALJ dismissed 	Charging 	Parties' 	complaints 	wherein 	they
alleged 	that 	the 	Oxnard 	Educators 	Association 	(OEA, 	Union 	or
Association) 	violated 	section 3543.6(b) 	of 	the Educational
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Employment 	Relations 	Act 	(EERA) 	by breaching 	its 	duty of 	fair
,
representation.1 Specifically, 	the 	allegations 	are 	that,
during 	the 	course of 	negotiations, 	OEA failed 	to 	inform 	its
members 	of 	the 	status 	of 	negotiations, 	thereby denying Charging
Parties 	the 	opportunity to communicate 	their 	views 	to 	the
bargaining team; 	and, 	at a later 	ratification meeting, 	OEA
misrepresented 	the 	provisions 	in 	the 	contract 	tentatively
agreed 	to by 	the bargaining 	team, 	thereby denying 	Charging
Parties 	the 	opportunity to express 	their 	views 	or 	cast 	an
informed 	vote. 	The ALJ dismissed 	Charging Parties' 	complaint.
In 	support of his 	dismissal, 	the ALJ 	first 	concluded 	that 	the
type 	of 	activity being 	complained 	of 	concerns 	purely 	internal
union 	conduct 	over 	which 	the 	Board has 	no 	jurisdiction. 	The
ALJ alternatively concluded 	that, 	even 	if 	the Board has
jurisdiction, 	Charging 	Parties have 	failed 	to establish 	that
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to the Government 	Code. 	Section 	3543.6(b) 	provides
as follows:
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.
N
• 	• 	• 	• 	• 	•
2

OEA's 	conduct was 	arbitrary, 	discriminatory or 	in bad 	faith.
To 	the 	extent 	that 	it 	is 	consistent with 	the discussion below,
we 	affirm 	the 	decision 	to dismiss 	the 	charge.
FACTUAL 	SUMMARY
Prior 	to 	the 	1984-85 	school 	year 	the 	Oxnard 	School 	District
used 	a 	12-step 	salary 	schedule 	for 	its 	certificated 	employees.
To better 	recruit 	qualified 	teachers, 	OEA agreed 	to a
collective bargaining 	agreement 	that 	provided 	for 	a 	10-step
salary 	schedule 	that 	consolidated 	the 	lowest 	three 	steps 	into a
single 	step. 	Thus, 	incumbents with one 	to three years'
experience were 	placed on 	step one, 	receiving 	identical
salaries. 	Incumbents with 	four years' 	experience were placed
on step two, 	with 	five years' 	experience on step three, 	and so
forth.
During the 	1984-85 	school year, 	unlike 	incumbents, 	newly
hired 	teachers 	were 	placed 	on 	the 	10-step 	schedule 	according 	to
the method previously used when 	the 	old, 	12-step 	schedule 	was
in place 	(i.e., 	four years' 	experience equalled step four
rather 	than 	step 	two 	for 	an 	incumbent 	with 	four 	years'
experience). 	This 	resulted 	in teachers with 	identical years 	of
experience being placed 	on 	two 	separate 	steps, 	dependent 	on
whether 	they were 	incumbent 	or 	newly hired 	in 	1984-85.
Incumbent 	teachers 	complained 	about 	the 	disparity 	to 	OEA. 	They
demanded 	that 	OEA negotiate 	a 	return 	to 	the 	12-step 	schedule.
OEA negotiated 	a 	return 	to 	the 	12-step 	salary 	schedule 	for 	the
1985-86 	school 	year.
w	3

Prior 	to negotiations 	that 	ultimately 	led 	up 	to 	the 	1985-86
agreement, 	the 	OEA Representative Council 	in January 1985,
solicited 	input 	from 	OEA's 	membership by way of 	school
mailboxes 	of 	all 	teachers 	who were 	"on 	track" 	and by mail 	to
the homes 	of 	teachers 	who 	were 	"off 	track.2" Responses 	were
tallied 	and 	prioritized by 	the bargaining 	team. 	As 	a 	result 	of
the 	foregoing, 	a proposal 	aimed 	at 	resolving the 	salary
schedule 	was 	placed 	in OEA's 	opening proposals.
OEA's 	initial 	proposals 	were presented 	to 	the 	District 	in
Spring 	1985. 	Those 	same proposals 	were 	distributed 	to members
of 	OEA's 	representative 	council, 	each 	of 	whom was 	responsible
for 	posting 	and 	explaining 	to 	the 	members 	OEA's 	position
regarding 	the proposals.
OEA 	and 	the 	District 	did 	not begin 	discussing 	economic
issues 	until 	late August 	or early September 	1985, 	as 	the
parties 	traditionally waited 	until 	after 	the 	state 	budget 	was
adopted 	in July. 	According to the 	District's negotiator, 	OEA
expressed 	two priorities: 	(1) 	salary 	increases 	within 	the
salary schedule, 	and 	(2) 	return to a 12-step schedule.
As 	early as 	September 	1985, 	OEA, 	through 	its 	Representative
Council 	and various publications 	(i.e., 	OEA Update,
Negotiations Hot Line 	and OEA Special 	Report), 	advised 	its
members 	that, 	while 	it was 	continuing 	its discussions with 	the
2Under 	the 	District's 	year-round 	calendar, 	"on 	track"
teachers 	are 	those not on vacation, 	"off 	track" 	teachers 	are
those 	on 	vacation.
A4

District 	to 	reinstate 	the 	12-step schedule, 	the 	District 	was
reluctant 	to do 	so. 	A detailed description 	of 	all 	salary
issues 	as 	they 	then existed 	in 	the 	negotiations 	was 	presented,
setting 	forth 	OEA's position, 	the District's position, 	and 	the
rationale 	for 	the 	respective positions.
During 	the 	September 	sessions, 	the 	District's position was
that 	it was 	not 	interested 	in 	returning 	to a 	12-step 	schedule
because 	it 	was 	no longer 	experiencing 	recruitment 	problems.
Beginning with 	the October 	8, 	1985 bargaining session, 	the
District 	began 	to 	try 	to 	negotiate 	a 	compromise 	to 	resolve 	the
salary 	inequities 	by 	offering 	lump 	sum 	payments 	to 	affected
incumbents. 	Further 	negotiations 	in 	the 	month 	of 	October 	did
not 	result 	in a 	tentative 	agreement.
Effective 	November 	1985, 	OEA 	installed 	its 	new president.
In 	response 	to 	the 	concerns 	raised by unit members, 	the
president 	addressed 	a memo 	to all bargaining unit members,
dated 	November 	4, 	stating 	that he 	was 	committed 	to 	the
"settlement 	of 	a 	contract 	with 	the 	12-step 	salary 	schedule 	and
a 	good 	raise." 	As 	a 	result 	of 	the 	District's perception of
teacher unrest 	over 	the 	salary schedule, 	on November 8, 	1985,
after 	rejecting OEA's 	proposal 	of 	a 	12-step 	schedule 	with 	the
first 	three 	steps being 	identical 	to each other, 	the 	District
offered a 	counterproposal. 	The 	District's 	proposal 	provided
that 	those 	employees 	on 	steps 	one 	through 	five 	(hired before
the 	1984-85 	school year) 	be given a 	two-step 	increase, 	with an
annual 	one-step 	increase 	for 	all 	employees 	on 	the 	salary
5

schedule 	for 	school 	year 	1985-86. 	The 	District proposed 	no
further 	increases 	for 	employees 	on 	steps 	six 	through nine. 	OEA
rejected 	the 	District's 	proposal. 	This 	was 	the 	first 	time
during 	the 	negotiations 	that 	the parties 	discussed 	a 	salary
proposal 	that 	varied 	from 	an 	across-the-board 	increase.
The District negotiator, 	David Miller, 	then
"suggested"—due 	to 	the 	absence 	of 	school 	board 	authority 	to
make 	an 	offer—the 	salary 	schedule 	and 	salary 	increase 	that 	was
ultimately agreed upon, 	to wit: 	equate years of 	experience
with 	salary 	step placement 	for 	those 	on 	steps 	six 	through 	nine,
effective July 1, 	1986, 	crediting 	the 	increase 	against 	the
1986-87 	school 	year budget. 	Those 	on 	steps 	one 	through 	five
and 	on 	step 	ten would 	get 	two additional 	steps 	during 	the
1985-86 	school 	year 	to 	return 	them 	to wages 	based 	on 	their
experience 	levels 	while 	those 	on 	steps 	six 	through 	nine 	would
get 	two 	additional 	steps 	in 	the 	next 	school 	year 	to 	return 	them
to 	wages 	based 	on 	their 	levels 	of 	experience.3
Charging 	Party 	Judith 	Mae 	Gorcey 	was 	personally 	affected by
the 	salary schedules 	as 	follows: 	in 1983-84 	she was 	on 	step
nine with nine years' 	experience, 	in 1984-85 	she was on step
eight with 	ten years' 	experience, 	and 	in 1985-86 	she was 	on
step nine with 	eleven years' 	experience. 	Gorcey alleges 	she
lost 	$2,685.00 	in 	compensation because 	she 	received 	a one-step
rather 	than 	a 	three-step 	increase.
3charging Parties, 	and all 	others 	at 	steps 	six 	through
nine, 	suffered 	a 	salary loss 	due 	to 	the 	delay of 	their 	salary
step 	increase by one 	year.
66

Charging 	Party 	Jan Marie 	Tripp 	was 	personally 	affected 	by
the 	salary schedules 	as 	follows: 	in 1983-84 she was 	on step
six with 	six years' 	experience, 	in 1984-85 	she was on step five
with 	seven years' 	experience, 	and 	in 1985-86 she was 	on step
six with eight years' 	experience. 	In 1985-86, 	other teachers
with 	less 	experience 	were 	currently 	on 	steps 	six 	and 	seven
receiving 	equal 	or 	greater pay 	than 	Charging 	Party. 	Tripp
alleges 	she 	lost 	$2,132.00 	in 	compensation because 	she 	received
a 	one-step 	rather 	than a 	three-step 	increase.
Pursuant 	to Miller's 	inquiry, 	OEA 	indicated 	that 	it would
agree 	to Miller's 	suggested offer were 	it 	to be 	authorized 	and
officially 	tendered, 	subject 	to 	the bargaining unit's
ratification. 	The parties 	agreed not 	to 	reveal 	the 	details 	of
the 	"conceptual 	agreement" 	until 	such 	time 	as 	the 	school board
had 	an opportunity 	to hear 	about 	the 	terms 	of 	the proposal 	from
Miller.
On November 	14, 	Miller 	was 	informed 	that 	the board had
approved 	the 	conceptual 	agreement. 	On November 	15, 	Miller 	told
OEA of 	the board's 	approval, 	OEA accepted, 	and a tentative
agreement 	was 	reached.
Since 	an 	OEA by-law 	required 	that 	voting procedures 	not be
conducted 	during 	track 	changes, 	OEA moved 	quickly 	to hold 	a
ratification 	meeting 	and 	conduct 	an 	election 	so 	teachers 	could
receive 	their 	increases 	in 	December 	1985 	rather 	than 	several
months 	later, 	after 	the 	next 	track 	change.
7

On November 	18, 	OEA prepared a publication called
"Hot-Line" 	to 	inform unit members 	of 	the 	existence of a
tentative 	agreement 	and 	that 	a 	ratification meeting 	would be
held 	November 	20. 	The November 	18 Hot 	Line 	told members 	that
the 	meaning of 	the 	tentative 	agreement 	to 	each 	member 	would be
spelled 	out 	on November 	20, 	and 	that 	the 	agreement 	was 	more
complex 	than 	just 	an 	"across-the-board" 	salary 	increase. 	On
the morning of November 	19, 	OEA received 	a draft 	of 	the
contract 	language, 	from which 	it prepared 	a detailed
explanation 	of 	the 	terms 	for purposes 	of 	discussion at 	the
ratification hearing. 	Prior 	to 	the 	ratification meeting, 	OEA
did 	not 	inform unit members 	of 	the 	details 	of 	the 	salary
concept 	first 	raised 	on 	November 	8.
The 	ratification 	meeting was 	held 	on 	November 	20.
Explanatory handouts 	were 	given 	to 	teachers 	as 	they entered.
Between 	150 	and 	170 	teachers 	attended, 	among 	them 	Gorcey and
Tripp. 	It was 	the 	largest 	ratification turnout 	in 15 years.
The 	OEA bargaining 	team 	first 	explained 	the 	terms 	of 	the
agreement 	and 	then 	opened 	the 	meeting 	to 	questions 	from 	the
attendees. 	Both 	in 	the 	initial 	explanation 	and 	in 	response 	to
questions, 	OEA negotiators 	explained 	that 	employees 	on 	steps
six 	to nine had 	to wait 	until 	July 1986 	for 	additional 	steps
due 	to 	the 	District's 	lack 	of 	funds. 	With 	regard 	to steps 	six
to nine, 	there were no questions 	nor 	any discussion of
8

retroactivity. 	Neither 	Gorcey nor 	Tripp 	asked 	any questions.
Both 	Gorcey and 	Tripp 	left 	the 	meeting before 	it 	adjourned.
None 	of 	the 	attendees 	expressed 	any confusion as 	to 	the
nature of, 	or 	reasons 	for, 	the delayed 	two-step 	increase. 	No
one 	protested 	that he 	was 	not 	given 	enough 	time 	to 	consider 	the
contract 	terms. 	No 	one moved 	to postpone 	the 	vote 	so as 	to
permit 	further 	consideration of 	the 	agreement. 	No 	one proposed
that 	the 	tentative 	agreement be 	voted 	down.
The 	ratification 	election was 	conducted 	over 	four 	days,
November 	21, 	22, 	25 and 26, 	1985. 	Teachers who did not attend
the 	ratification 	meeting 	on 	November 	20 	found 	the 	OEA handout
explaining 	the 	agreement 	in 	their 	school 	mailboxes. 	OEA
representatives 	were 	available 	to 	those with questions. 	At
some 	school 	sites 	faculty meetings 	were 	held 	by 	OEA 	to discuss
the 	tentative 	agreement.
The 	final 	vote 	of 	the 	membership was 	268 	to 	ratify the
contract, 	96 to reject.
The allegations 	in the charges, 	as 	amended July 11, 	1986
are 	twofold: 	first, 	during the course of negotiations, 	OEA
failed 	to 	inform 	its 	members 	of 	the 	status 	of negotiations
thereby 	denying 	Charging 	Parties 	the 	opportunity 	to 	communicate
their 	views 	to the bargain 	team; 	second, 	at a later
ratification meeting 	OEA misrepresented 	the 	provisions 	in 	the
contract, 	thereby denying 	Charging Parties 	the 	opportunity 	to
express 	their 	views 	or 	cast 	an 	informed 	vote. 	The 	charge
9

alleges 	that 	this 	conduct breached 	the duty of 	fair
representation.4
ALJ'S 	PROPOSED 	DECISION
The ALJ, 	relying on 	Compton 	Education Association 	(Sanders)
(1985) 	PERB Decision No. 	509 	and Service 	Employees
International Union, 	Local 99 	(Kimmett) 	(1979) 	PERB Decision
No. 	106, 	concluded 	that 	the 	type of activity being complained
of 	concerns 	purely 	internal 	union 	conduct 	over which 	the 	Board
has 	no 	jurisdiction. 	The ALJ, 	reasoned 	that:
Under 	the holding in Compton, 	supra, 	union
procedures 	for 	communicating 	or 	not
communicating 	with 	the 	bargaining 	unit
during 	the 	negotiations process 	is 	a matter
within 	the 	category of 	internal 	union
activities 	and 	therefore 	is beyond 	reach 	in
this 	unfair 	practice 	decision.
The ALJ 	further 	analyzed 	the 	case 	in 	the 	alternative by
assuming, 	arguendo, 	that 	the Board did have 	jurisdiction 	over
the 	type 	of 	"internal 	union activities" 	complained of here.
Even under 	this 	analysis, 	the ALJ concluded, 	OEA did not breach
its 	duty of 	fair 	representation 	on 	this 	record. 	In 	reaching
this 	conclusion, 	the ALJ 	separately addressed 	the 	issue
pertaining 	to 	OEA's 	obligation 	to 	communicate 	with 	and 	receive
input 	from bargaining 	unit 	members 	during 	the 	negotiations
4section 	3544.9 	sets 	forth 	a 	union's 	duty of 	fair
representation:
The 	employee 	organization 	recognized 	or 	certified
as 	the 	exclusive 	representative 	for 	the 	purpose
of 	meeting 	and 	negotiating 	shall 	fairly 	represent
each 	and 	every 	employee 	in 	the 	appropriate 	unit.
10

process 	and 	the 	issue 	of 	whether 	OEA misrepresented 	the
effective 	date 	of 	the 	two-step 	increase 	for 	teachers 	on 	steps
six 	through 	nine.
With 	regard 	to 	the 	first 	issue, 	the ALJ noted 	that 	under
PERB 	precedent 	the 	duty of 	fair 	representation 	implies 	some
consideration 	of 	the 	views 	of 	various 	groups 	of 	employees 	and
some 	access 	for 	communication of 	those 	views, 	but 	there 	is 	no
requirement 	that 	formal 	procedures be 	established. 	El 	Centro
Elementary Teachers Association 	(1982) 	PERB Decision No. 	232,
pp. 	15-16.
Focusing on 	the 	events 	occurring 	on November 	8, 	1985 	and
thereafter, 	the 	ALJ 	concluded 	that 	the 	modified 	salary 	schedule
was 	first 	raised 	in 	negotiations 	on November 	8 	and had 	not been
discussed prior 	to 	that 	date. 	It 	was 	an entirely new concept
that 	was 	not 	presented 	to 	the 	membership 	until 	the 	ratification
meeting on November 	20. 	While 	Charging 	Parties 	claimed 	that
OEA's 	silence between 	November 	8 	and 	20 	constituted 	a breach 	of
the 	duty of 	fair 	representation and, 	to be 	sure, 	a broad notice
requirement 	may have 	some 	advantages, 	the 	failure 	to adhere 	to
such 	a 	requirement 	under 	the 	circumstances 	presented here 	did
not breach 	the 	duty of 	fair 	representation. 	The 	District
negotiator's 	desire 	to have his 	client hear 	of 	any proposal
from him 	first 	hand 	was 	found 	to be 	not 	unreasonable, 	and 	OEA's
acquiescence 	to Miller's 	request 	was 	similarly 	found 	not 	to be
out 	of 	line. 	The OEA negotiator's 	desire 	to 	clarify the
proposal 	before 	releasing details 	to 	the 	membership was 	also
11

viewed by the ALJ as 	reasonable; 	there was 	a 	legitimate
interest 	in 	avoiding 	exciting members 	about 	a 	tentative 	offer.
Since OEA's 	agreement 	to remain 	silent was 	in 	the 	nature 	of
a ground 	rule, 	and 	it 	applied 	to the unit 	as 	a whole, 	the ALJ
concluded 	it was 	not discriminatory. 	Similarly, 	there was 	no
evidence 	of bad 	faith, 	since 	the bargaining 	team 	actually 	felt
they had negotiated 	the best possible provision.5 55
Moreover, 	the ALJ 	found 	that 	Charging 	Parties 	failed 	to
establish 	that 	OEA's 	conduct 	was 	in any way 	arbitrary. 	The
District's 	negotiator 	moved 	immediately 	to 	seek 	school 	board
approval 	of 	the 	November 	8 	discussions. 	Not 	until 	Friday,
November 	15, 	did 	the 	District 	negotiator 	inform OEA's
negotiator 	that 	the board 	agreed 	to 	the 	concept. 	This 	was 	the
first 	date 	that 	OEA learned 	the parties 	in 	fact had 	a 	tentative
agreement. 	On Monday, 	November 	18, 	OEA acted to schedule a
ratification meeting on November 	20, 	the 	first possible date
under 	the bylaws, 	given 	its 	two-day notice 	requirement. 	Time
was 	of 	the 	essence 	since a 	"track 	change" 	was 	near. 	If 	the
meeting and subsequent voting on November 	21, 	22, 	25 	and 	26,
1985 	had 	not 	occurred when 	they did, 	the 	vote would have had 	to
have been postponed 	past 	the 	track 	change. 	The 	result 	would
have been 	that 	employees 	would have had 	to 	wait 	several
months—beyond 	the 	holiday 	season—to 	get 	their 	salary
increases.
5We 	note 	that 	two OEA negotiators 	and 	the 	wives 	of 	two
others 	were 	in 	the 	step 6-9 	range.
12

In addition, 	the ALJ noted that 	"there 	is 	no requirement
in 	the 	EERA that 	a 	union 	must 	individually advise 	individual
employees 	of 	the 	status 	of 	each particular 	proposal 	affecting
them." 	California 	School 	Employees 	Association 	and 	its 	Local
Chapter No. 	616 	(1985) 	PERB Decision No. 	508. 	He also noted
that 	since 	it 	was 	clear 	from OEA's bylaws 	that 	there was 	no
requirement 	that 	the 	tentative 	agreement be 	presented 	to 	the
membership prior 	to 	ratification, 	such 	decisions 	inherent 	in
the 	"bargaining process" 	are 	left 	in the hands of 	the union.
To 	read 	a 	formal 	and 	potentially 	overly 	rigid notice
requirement 	into 	this 	document 	would 	impermissibly 	interfere
with 	an 	internal 	union prerogative. 	Compton 	Education
Association 	(1985) 	PERB Decision No. 	509. 	Furthermore, 	courts
and 	labor 	boards 	have 	consistently 	refused 	to 	interfere 	with
the 	conduct 	of 	an 	exclusive 	representative 	during 	the
bargaining process. 	Redlands 	Teachers Association 	(1978) 	PERB
Decision No. 	72, 	citing Ford Motor Co. 	v. 	Huffman 	(1953) 	345 US
330.
With 	regard 	to 	the 	issue 	that 	OEA breached 	the 	duty of
fair 	representation by misrepresenting 	the 	salary 	schedule 	to
unit 	members, 	the ALJ 	concluded 	that 	the 	informational 	notice,
distributed 	to all 	teachers 	via 	the 	school 	mailboxes 	or U.S.
mail, 	clearly put 	them on notice 	that 	the 	agreement was 	complex
and 	not 	"just 	an 	'across-the-board' 	salary 	increase."
Furthermore, 	the 	agreement 	itself 	unambiguously 	indicated 	that
only 	steps 	one 	through 	five 	and 	ten 	would 	receive 	retroactive
payments.
13

After 	a 	lengthy 	explanation of 	the 	salary 	schedule by 	OEA
representatives, 	at 	least 	two employees 	asked questions 	and
were 	given 	answers 	that 	made 	clear 	that 	those 	on 	steps 	six
through 	nine 	would 	receive 	no 	retroactive 	payment. 	Employees
who 	remained 	to 	ask 	questions 	after 	the 	presentation 	expressed
no 	confusion 	about 	the 	delayed 	increase. 	The 	evidence 	shows
that 	the 	subject 	was 	discussed at 	length, 	and many questions
were 	asked 	and 	answered.
While 	Charging 	Parties 	argued 	that 	OEA 	should 	have
specifically 	described 	steps 	six 	through 	nine 	as
"non-retroactive", 	since historically all 	salary 	steps 	received
-
the 	same 	increase at 	the 	same 	time, 	in 	the ALJ's 	view such 	a
requirement 	would be 	an 	onerous 	one. 	Given 	the 	opportunity 	for
ratification, 	it was 	enough 	that 	the agreement was
satisfactorily 	explained 	to members. 	See Western 	Conference 	of
Teamsters 	(1980) 	251 NLRB 331.
CHARGING PARTIES' 	EXCEPTIONS
Charging 	Parties 	except 	to 	the 	ALJ's 	proposed 	decision 	on
five bases. 	First 	Charging Parties 	argue 	that, 	contrary to the
ALJ's 	viewpoint, 	they have 	not 	"broadly criticized OEA's
actions." 	This 	is 	not 	a 	case 	of disgruntled 	union members
dissatisfied 	with 	their 	contract. 	Rather, 	OEA failed 	to 	inform
its 	members 	of 	the 	contract provision 	relating 	to 	salary
schedule 	steps 	implemented by 	the 	District, 	thereby 	failing 	to
provide 	members 	with 	access 	for 	communication of 	their 	views
and 	failing 	to 	consider 	their 	views.
14

The 	second 	exception 	is 	to 	the ALJ's 	reliance 	on 	Compton
Education Association 	(1985) 	PERB Decision No. 	509 	for 	the
proposition 	that 	union procedures 	for 	communicating 	with 	the
unit 	during 	negotiations 	is 	a matter 	of 	internal 	union 	activity
over which 	the 	Board has 	no 	jurisdiction.
Charging 	Parties 	argue 	that 	Compton 	is 	inapposite because
it differs on 	its 	facts, 	to wit: 	in Compton the Charging Party
had 	adequate 	notice but 	objected 	to 	the 	method by which 	she 	was
allowed 	to communicate her views. 	Thus, 	Charging Parties
argue, 	that 	while 	the ALJ 	relied on Compton 	to dismiss 	Charging
Parties' 	complaints, 	in doing so, 	he 	ignored the principle
first 	established 	in 	El 	Centro 	Elementary 	Teachers 	Association
(1982) 	PERB Decision No. 	232. 	Compton relied on El Centro, 	in
which 	it 	was 	established 	that 	the 	duty of 	fair 	representation
requires 	some 	consideration of members' 	views 	and access 	for
the 	communication of 	these 	views. 	Additionally, 	Charging
Parties 	argue 	that 	the ALJ's 	use 	of 	Compton 	ignores 	Service
Employees 	International Union, 	Local 	99 	(1979) 	PERB Decision
No. 	106, 	also cited in Compton. 	In SEIU, 	Local 99, 	the Board
established 	that 	the 	duty 	of 	fair 	representation 	extends 	only
to 	union 	activities 	that have 	a 	substantial 	impact 	on 	the
relationship of 	the 	unit 	members 	to 	their 	employers. 	There 	can
be 	no 	dispute 	that 	the negotiation of 	salary 	schedules 	meets
the test of SEIU, 	Local 99, 	supra, 	and that notice of proposals
is 	required.
Further, 	the 	Charging Parties 	argue 	that here 	the only
issue 	is 	the 	timing of 	the union's 	notice, 	and neither Compton,
El 	Centro nor 	SEIU, 	Local 	99 	address 	the minimal 	amount 	of
15

notice 	required of 	a 	union 	to 	its 	members 	of 	its 	contract
proposals before 	the 	close 	of 	negotiations.
While 	the ALJ's 	decision 	is 	replete with 	instances 	of
OEA's 	providing notice of proposals, 	it 	is 	also 	true 	that 	every
instance 	identified 	(save 	that 	ratification meeting) 	predated
November 	8. 	Since 	the November 	8 proposal 	was 	radically
different 	(i.e., 	less 	than across the board), 	the Charging
Parties' 	assert, 	OEA was obligated to communicate 	it 	in a
timely 	fashion.
The 	third 	exception 	taken 	is 	to 	the ALJ's 	conclusion 	that
OEA's 	agreement 	with 	the 	District 	to 	remain 	silent pending 	the
school 	board's 	vote 	was 	a 	rational 	decision based 	on
negotiating 	ground 	rules 	affecting 	all 	equally 	and 	done 	in 	good
faith.
Charging 	Parties 	argue 	that 	while 	it 	might be 	easier 	to
keep negotiations 	quiet, 	and 	in the backroom under wraps, 	that
is 	not 	a proper 	justification 	for 	depriving 	unit 	members 	of
some basic 	notice 	of 	salary proposals 	which 	are 	discriminatory
and 	unique.
The 	fourth 	exception 	taken 	is 	to 	the ALJ's 	interpretation
of 	California 	School 	Employees Association 	and 	its 	Local
Chapter No. 	616 	(1985) 	PERB Decision No. 	508. 	Charging Parties
argue 	that 	the ALJ 	erred 	in 	relying on 	this 	decision 	for 	the
proposition 	that 	there 	is 	no 	requirement 	for 	OEA to advise
individual 	employees 	of 	the 	status 	of 	each particular proposal
affecting 	them. 	What 	CSEA, 	Local 	616 	really holds, 	Charging
Parties 	argue, 	is 	that an 	individual unit member does 	not have
16

a 	right 	to an 	individualized method 	of 	notice. 	Here, 	while 	not
seeking individualized notice, 	Charging Parties 	argue 	there was
simply no notice.
The 	fifth 	and 	final 	exception 	taken by Charging Parties 	is
to 	the ALJ's 	interpretation of 	the bylaws 	which 	state, 	in
pertinent part at 	item VI, 	section 10:
The 	membership 	shall be 	surveyed before
determining 	the 	contents 	of 	the 	proposed
contract 	demands 	and 	the 	elements 	of 	the
contract 	proposal 	shall 	be 	approved by
members 	of 	the 	council. 	(Emphasis 	added by
Charging 	Parties)
Further, 	in item IX, 	section 7:
responsibility 	and 	authority 	for 	directing
the bargaining process 	on behalf 	of 	the
Association 	is 	vested 	in 	the 	Executive 	Board
subject 	to policies 	established by 	the
council. 	(Emphasis 	added by 	Charging
Parties)
The 	ALJ's 	reading 	of 	these provisions 	had 	led him 	to 	conclude 	that
there 	is 	no notice 	requirement 	imposed by 	the 	OEA by-laws. 	Charging
Parties 	argue 	that:
The 	clear 	language 	of 	these 	By-laws 	require
that 	a 	contract 	proposal be 	submitted 	to 	the
Representative 	Council 	for 	approval. 	Since
these sections 	refer to proposals, 	this
would 	mean 	that 	contract 	language 	should be
submitted 	to 	the 	Representation 	Council
before 	the 	close of negotiations. 	This 	was
not 	done 	in 	this 	case. 	There was 	no
Representative 	Council 	meetings 	or 	Executive
Board 	meetings between 	November 	8 	and 	the
ratification meeting on November 	20. 	(R.T.
Vol. #3, p. 6 9 ) . 	Charging Parties
exceptions, p. 12.
17

ASSOCIATION'S 	RESPONSE
The Association 	argues 	that 	Charging 	Parties 	misstate 	Borowiec
v. 	Local No. 	1570 of 	International 	Brotherhood of Boilermakers, 	etc.
What 	it really holds, 	the Association argues, 	is 	that 	"the union 	is
required 	to 	consider 	the 	requests 	of 	these members 	and give 	them
'notice 	and 	opportunity 	for 	hearing 	upon 	its 	proposed 	action.'"
Borowiec 	626 	F.Supp, 	at 	303 	(Emphasis 	supplied by Association.) 	The
Association argues 	further 	that, 	as 	the ALJ 	found, 	this 	is precisely
what 	the Association did 	in 	the 	instant 	case.
Unit 	members 	were 	given 	notice 	and 	an 	opportunity 	for 	hearing
upon 	the 	proposed action, 	that 	is, 	upon 	the proposed 	final
agreement. 	Further, 	Charging Parties 	can point 	to no case 	law that
entitles 	them 	to 	notice 	and 	an opportunity 	for hearing upon 	any
specific 	contractual proposal. 	This 	is 	as 	true 	of 	tentative
agreements 	as 	it 	is 	of proposals made back 	and 	forth across 	the
bargaining 	table 	during 	the 	course 	of 	negotiations. 	Rocklin 	Teachers
Professional Association 	(1980) 	PERB Decision No. 	124.
The Association 	also maintains 	that 	its 	decision not 	to 	release
the 	terms 	of 	the November 8 	"concept" 	until 	the November 	20, 	1985
ratification 	meeting 	was 	rationally based.
The Association's 	final argument 	is 	that, 	while 	it 	is undisputed
that 	Association bylaws 	require 	that 	the 	membership must be 	surveyed
as 	to 	its 	wishes 	concerning 	the Association's 	initial 	contract
proposals 	which must be 	approved by 	the 	Representative Council, 	the
bylaws 	do not 	require 	that 	all 	subsequent 	proposals 	that 	develop
during 	the 	course 	of 	negotiations 	be 	submitted 	to 	the 	Representative
18

Council 	for approval. 	Furthermore, 	there 	is no requirement 	that a
tentative 	agreement be 	submitted 	to 	the 	Representative 	Council 	before
going 	to 	the membership.
ISSUE
The 	issue 	on 	appeal 	requires 	this 	Board 	to 	answer 	the 	following
question: 	does 	the 	Union's 	failure 	to provide notice of, 	and
information 	on, 	a heretofore 	unknown bargaining proposal before 	the
close 	of 	negotiations 	constitute 	a breach of 	the 	duty of 	fair
representation?
DISCUSSION
The 	ALJ 	concludes 	that 	Union procedures 	for 	communicating with
the bargaining unit 	during 	the 	negotiations 	process 	is 	a matter 	of
internal 	Union 	activities 	and 	therefore 	outside 	PERB's 	jurisdiction.
The ALJ 	relies 	on 	Compton 	Education Association 	(1985) 	PERB 	Decision
No. 	509 which cites 	Service 	Employees 	International Union, 	Local 	99
(1979) 	PERB Decision No. 	106 	and El 	Centro Elementary Teachers
Association 	(1982) 	PERB Decision No. 	232 	to support his 	conclusion.
The ALJ 	ruled 	that 	Charging 	Parties' 	attempt 	to distinguish 	Compton
on 	factual 	grounds 	was 	not persuasive 	since 	the 	Board viewed 	the 	type
of 	activity discussed 	in Compton as 	internal 	union 	conduct.
We 	disagree 	with 	the ALJ's 	conclusion 	that 	the 	conduct being
complained 	of here 	is 	nothing more 	than 	internal 	union 	activity over
which 	PERB has 	no 	jurisdiction.
As 	we 	read 	Compton, 	El 	Centro 	Elementary Teachers Association
and 	SEIU, 	Local 	99, 	the 	jurisdictional 	test 	is 	not 	solely whether 	the
conduct 	being 	complained 	of 	involves 	union procedures 	for
19

communicating with 	the bargaining unit. 	Rather, 	the 	test 	is 	whether
the 	conduct being 	complained of has 	"a 	substantial 	impact 	on
employees' 	relationship with 	their 	employer."
While here 	the ALJ 	is 	correct 	insofar 	as 	the 	Union procedures
being 	complained 	about 	(i.e., 	the 	failure 	to provide 	notice 	of 	the
proposal before 	the 	close of negotiations) 	do not, 	standing alone,
have 	a 	substantial 	impact 	on employees' 	relationship with 	their
employer, 	we 	think 	Charging 	Parties 	are 	arguing more 	than procedure.
Charging 	Parties 	are 	arguing 	that 	OEA's 	complete 	failure 	to
communicate 	the 	proposal 	in a 	timely 	fashion breaches 	the 	duty of
fair 	representation because 	the 	subject 	of 	the proposal 	(i.e., 	wages)
does 	have 	a 	substantial 	impact 	on 	the 	employees' 	relationship with
their 	employer. 	For the above 	reasons, 	we overrule 	the ALJ's
dismissal 	of 	this 	complaint 	insofar 	as 	it 	is based on 	jurisdictional
grounds. 	However, 	as discussed below, 	we agree with 	the ALJ that
Charging 	Parties 	have 	failed 	to 	establish 	a breach 	of 	the
Association's 	duty 	of 	fair 	representation.
We 	think 	the 	crux of 	the 	Charging 	Parties' 	statement 	of
exceptions 	is 	as 	follows. 	Charging Parties 	acknowledge 	that 	OEA
cannot 	please 	all 	of 	the people all 	of 	the 	time 	and 	that 	OEA has 	no
obligation 	to do so. 	However, 	OEA 	is 	required 	to give notice 	of
contract 	proposals 	before 	the 	close 	of 	negotiations 	to give 	substance
to the 	right 	of 	its 	members 	to have 	some 	access 	for communication of
their 	views. 	To provide notice after 	the 	close of negotiations, 	as
was 	done here, 	is not 	to provide meaningful notice. 	Borowiec v.
Local 	No. 	1570 of 	International 	Brotherhood of Boilermakers, 	etc.
(1986) 	626 F.Supp. 	296. 	Extended 	further. 	Charging Parties 	argue 	for
20

the 	general 	proposition 	that 	the 	Union must 	represent 	its 	members
with 	impartiality, 	consider 	the 	requests 	of 	its members 	and provide
them 	with 	notice 	and 	an 	opportunity 	for hearing. 	Charging Parties
urge 	that, 	for 	this 	right 	to have 	any meaning 	in 	the 	negotiation
setting, 	the 	Union must be 	required 	to provide 	notice 	and 	an
opportunity to be heard before 	the 	close 	of 	negotiations. 	In 	this
vein, 	Charging Parties 	argue, 	contrary 	to 	the ALJ's 	conclusion which
rests 	on 	Compton, 	the Board has never 	established a 	standard 	setting
forth 	the 	minimum 	amount 	of 	notice 	required 	of 	a 	union 	to 	its 	members
of 	its 	contract proposals. 	We agree.
To be sure, 	individual 	constituent's 	opinions will, 	conceivably,
carry 	greater 	weight 	and 	influence 	if heard before 	the 	close 	of
negotiations. 	It 	cannot be 	said however, 	that 	the Association must
consult 	its 	members 	every 	time 	there 	is 	a proposal 	and/or
counterproposal 	made 	that 	differs 	from 	previously 	communicated
proposals 	during 	the 	course of 	negotiations. 	To place 	such 	a
restriction 	on 	the 	Association 	would 	create 	unnecessary 	interference
with 	the 	fluidity of 	the 	give 	and 	take 	that 	constitute 	negotiations.
Furthermore, 	constituent 	ratification 	serves 	as 	a check 	to errant
provisions 	with which 	the majority does 	not 	agree. 	The 	essential
ingredient 	to this 	process 	is 	the provision of 	notice 	and 	an
opportunity 	for 	members 	to be 	heard before 	the 	collective bargaining
agreement becomes 	final 	and binding. 	Here, 	there was 	a 	ratification
process. 	The 	record 	establishes 	that 	Charging 	Parties 	received
notice, 	attended 	the 	ratification meeting, 	and knew what 	the 	salary
schedule 	provided 	for. 	Charging 	Parties 	exercised 	their 	rights 	as
members 	and 	voted 	against 	ratification because 	of 	the 	salary
21

provision. 	There, 	quite 	simply, 	were not 	enough members who shared
Charging Parties' 	concern.
We 	emphasize 	that 	this 	decision 	should 	not be 	construed 	to
require 	that 	notice 	of bargaining proposals be made 	in 	any particular
manner 	or 	form. 	The procedures 	(whether 	formal 	or 	informal) 	used 	for
communicating proposals 	or 	receiving 	input 	from 	unit 	members 	are
internal 	union matters 	that do not, 	in and of themselves, 	implicate
the 	duty of 	fair 	representation. 	Nonetheless, 	as 	the Board 	stated 	in
El 	Centro, 	supra, 	the duty of 	fair 	representation 	implies 	some
consideration of 	the views of unit members. 	Thus, 	our 	inquiry is
limited 	to 	consideration 	of 	whether 	the 	exclusive 	representative 	has
fulfilled 	its 	obligation 	to 	fairly 	represent 	unit members. 	That
inquiry may 	include 	an examination 	of 	the 	effect 	of 	a particular
application 	of 	the 	procedures 	adopted by 	the 	union.
It 	is 	not 	feasible 	to establish 	a more 	specific 	standard 	for 	the
communication of proposals 	than that 	set 	forth 	in El 	Centro, 	supra.
The 	variables 	of bargaining are 	simply 	too divergent 	and
unpredictable. 	Instead, 	in each case we must 	evaluate 	the 	exclusive
representative's 	conduct 	in 	light 	of 	its 	obligation 	to 	fairly
represent 	its members.
We 	think 	that, 	under 	the 	facts presented here, 	Charging Parties
have 	failed 	to 	establish 	that 	the Association 	acted 	arbitrarily
discriminatorily, 	or 	in bad 	faith.
ORDER
Based on 	the 	foregoing, 	the 	charge 	is hereby DISMISSED.
Chairperson 	Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
22