California Faculty Association (Hollis) (PERB 0709H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
W. 	SLATER HOLLIS,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case 	No. 	LA-CO-15-H
PERB 	Decision No. 	709-H
December 	21, 	1988
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Appearance: 	Dr. 	W. 	Slater Hollis, 	on his own behalf.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment Relations 	Board
(Board) 	on 	appeal 	by Charging Party of 	the 	Board agent's
dismissal, 	attached hereto, 	of his charge that the Respondent
violated subdivisions 	(a), 	(b) 	and 	(e) 	of section 3571.1 	of the
Higher Education Employer-Employee 	Relations Act 	(HEERA). 	We
have reviewed the dismissal 	and, 	finding it to be 	free 	of
prejudicial 	error, 	adopt it as 	the Decision of the 	Board itself.1
1We clarify, 	however, 	two technical 	errors made by the Board
agent in the dismissal 	letter for this 	charge. 	First, 	he
mis-cites sections 	of 	HEERA alleged by Charging Party to have 	been
violated. 	The 	correct 	statutory provisions 	should have 	been,
HEERA section 3571.1, 	subdivisions 	(a), 	(b) 	and (e). 	Second, 	in
the 	agent's 	reference to a 	companion charge 	(LA-CE-222-H) 	against
the 	employer, 	he mistakenly identifies 	it as being against 	the
exclusive 	representative. 	Charging Party demonstrated no
prejudice 	caused by these 	technical 	errors.
(
e

The unfair practice 	charge 	in Case No. 	LA-CO-15-H 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By the 	BOARD2
2Member Camilli 	did not participate 	in this 	Decision.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088	PLAD
September 	30, 	1988
Dr. W. 	Slater Hollis, 	Ph.D., 	J.D.
Re: 	W. 	Slater 	Hollis 	v. 	California 	Faculty Association.
Case 	No. 	LA-CO-15-H - Amended Charge
DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE 	COMPLAINT
Dear Dr. 	Hollis:
Your 	amended 	charge was 	filed 	on June 	28, 	1988. 	It 	alleges
violations 	of 	the 	Higher 	Education 	Employer-Employee 	Relations
Act 	(HEERA) 	sections 3571(a), 	(c) 	and (d).
Essentially, 	you 	have 	alleged 	that 	the 	employer 	had 	entered
into 	an 	illegal 	agreement 	with 	the 	exclusive 	representative.
You 	allege 	that 	the 	employer 	interfered 	with 	and 	met 	and
conferred 	in 	bad 	faith with 	the 	exclusive 	representative. 	You
base 	this 	allegation 	on your 	dissatisfaction with 	certain
provisions 	of 	the 	agreement.
You 	alleged 	in 	a 	companion 	charge 	(LA-CE-222-H) 	against 	the
exclusive 	representative 	that 	it 	had 	breached 	its 	duty of 	fair
representation 	because 	it 	created 	a 	two-tier 	Faculty Early
Retirement 	Program 	(FERP). 	The organization, 	faced with 	a
proposal 	to 	completely eliminate 	the 	program, 	negotiated 	a
two-level 	FERP, 	i.e., 	FERP would 	be 	available 	to 	all 	faculty
members 	except 	those 	in 	hard 	to 	recruit/replace 	disciplines.
You were 	in 	a 	designated 	hard 	to 	recruit/replace 	discipline,
business. 	A warning 	letter was 	issued 	on 	this 	charge.

Dr. W. Slater Hollis, Ph.D., J.D.
September 30, 	1988
Page 2
You believe that 	the employer 	entered 	into 	a collusive contract
to your detriment. 	You believe that the employee organization
committed an unfair practice 	in doing 	so 	and you believe that
the employer 	likewise committed 	an unfair 	practice.
I 	indicated to you 	in my attached 	letters dated August 	19 	and
30, 	1988 that the above-referenced charge did not 	state a prima
facie case. 	You were advised that 	if 	there were any factual
inaccuracies or 	additional 	facts 	that would correct 	the
deficiencies explained 	in that 	letter, 	you should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that unless you
amended the charge to state a prima facie case, 	or withdrew it
prior to September 	29, 	1988, 	the charge would be dismissed.
I have not received either 	a 	request 	for withdrawal or 	a 	second
amended charge. 	I 	am therefore dismissing the charge based on
the facts 	and reasons contained 	in my August 	19, 	1988 	letter.
Right 	to Appeal
Pursuant to Public Employment Relations Board 	regulations, 	you
may obtain a 	review of 	this dismissal of 	the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after 	service of 	this dismissal 	(California Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five copies 	of 	such appeal must be 	actually
received by the Board itself 	before the close of 	business
(5:00 p.m.) 	or sent by telegraph, 	certified or Express United
States mail postmarked no 	later 	than the 	last date 	set 	for
filing 	(California Administrative Code, 	title 8,
section 32135). 	Code of Civil Procedure section 1013 	shall
apply. 	The Board's address 	is:
Public Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to 	issue a
complaint, 	any other 	party may file with the Board 	an original
and five copies of 	a 	statement 	in opposition within twenty
calendar days 	following 	the date of 	service of 	the 	appeal
(California Administrative Code, 	title 8, 	section 32635(b)).

- . . .
Dr. W. Slater Hollis, Ph.D., J.D,
September 30, 	1988
Page 3
Service
All documents 	authorized 	to be 	filed herein must 	also be
"served" 	upon all parties to the proceeding, 	and a 	"proof of
service" 	must 	accompany each copy of 	a document 	served upon a
party or 	filed with the Board 	itself. 	(See California
Administrative Code, 	title 8, 	section 32140 	for the required
contents 	and a 	sample form.) 	The document will 	be considered
properly 	"served" 	when personally delivered or deposited 	in the
first-class 	mail 	postage 	paid 	and properly 	addressed.
Extension of 	Time
A request 	for 	an extension of 	time 	in which to 	file a document
with 	the 	Board 	itself must 	be 	in writing 	and 	filed with 	the
Board 	at 	the previously noted 	address. 	A request 	for 	an
extension must 	be 	filed 	at 	least 	three calendar days 	before the
expiration of 	the time 	required for 	filing 	the document. 	The
request must 	indicate good cause for and, 	if known, 	the
position of 	each other party regarding 	the extension, 	and 	shall
be 	accompanied 	by proof 	of 	service of 	the 	request upon each
party (California Administrative Code, 	title,8, 	section 32132).
Final Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal will 	become 	final when the time 	limits have expired.
Sincerely,
CHRISTINE A. BOLOGNA
General counsel
By	By
John W. Spittler
Assistant Genera	Counsel	l Counsel
Attachments
c c :
5367c
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SINTE OF CALIFORNIA George DEUKMEJIAN, Governor -·=-.c----'='.·.=-...:....-·--·-'"~~-~~----=~
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th St, Sacramento, CA 	95814 4174
(916) 	322-3088
Au	Au August 19, 1988
Dr. W. Slater Hollis, Ph.D., J.D.
Re: 	VI. Slater Hollis, et al. v. the California Faculty
Association, et al., Case No. LA-CO-15-H
Dear Dr. Hollis:
Your 	amended charge1 was 	filed on June 28, 	1988. 	It alleges
violations 	of 	the Higher 	Education Employer-Employee 	Relations
Act (HEERA) sections 3571.1, 3571.l(a), 	(b) and (e).
Essentially, 	you have 	alleged 	that 	the 	employee organization
denied you 	the 	right 	to 	fair 	representation 	in negotiations
guaranteed 	by HEERA 	section 	3578 	and 	thereby violated 	HEERA
section 3571.l(e).
Section 	3578 	provides 	that 	the employee organization's 	duty of
fair representation is violated where representation ". 	. 	. 	is
arbitrary, 	discriminatory or 	in bad 	faith."
You believe 	that 	the employee organization violated 	its 	duty of
fair 	representation because 	it 	created 	a 	two-level 	Faculty
Early Retirement Program (F.E.R.P.). 	The employee
organization, 	faced with a 	proposal 	to 	completely eliminate 	the
program, 	negotiated a two-level F.E.R.P., 	i.e., 	F.E.R.P. 	would
be 	available 	to 	all 	faculty except 	those 	in 	hard 	to
recruit/replace disciplines. 	You were 	in 	a 	designated 	hard 	to
recruit/replace discipline, 	business. 	You claim this 	amounts
to 	a 	violation of 	the duty of 	fair 	representation. 	You bane
your 	claim on 	statutes 	both within 	and without 	PERB's
8 	of 	the California Administrative 	Code 	§32615
requires 	that 	the 	charge 	be 	signed under 	penalty of 	perjury by
the charging party or 	its 	agent. 	Accordingly, 	you 	can only
assert your 	rights 	and 	cannot 	initiate 	a 	"class-action" 	type
charge.
Title

W. 	Slater 	Hollis
August 	19, 	1908
Page 	2
jurisdiction. 	You 	do 	not 	allege 	how 	the 	exclusive
representative's action 	was 	without 	a 	rational 	basis 	or 	devoid
of 	honest 	judgment. 	You 	simply 	state 	that 	you 	had 	access 	to
F.E.R.P. 	before 	negotiations 	and 	you 	lost 	access 	to 	F.E.R.P. 	as
a 	result 	of 	the 	negotiations. 	You 	claim that 	you 	(and 	those
like you) 	were 	sacrificed 	to 	benefit 	the 	remaining 	unit members,
You 	state 	that 	you 	had, 	and made use 	of, 	access 	to 	the 	employee
organization 	to 	make your 	views 	known. 	You 	do 	not 	allege 	that
you 	were 	shut 	out 	or 	prevented 	from expressing 	your 	views. 	You
do 	not 	allege 	that 	your 	views 	were 	ignored. 	The 	negotiations
simply 	did 	not 	turn 	out 	to 	your 	satisfaction.
In 	Tornetta 	v. 	CSEA 	(6/21/85) 	PERB Decision No. 	508, 	the 	Board
reviewed 	the 	law 	regarding 	the 	duty 	of 	fair 	representation 	in
negotiations.
The 	duty 	of 	fair 	representation 	imposed 	on 	the
exclusive 	representative 	extends 	to 	contract
negotiations. 	Redlands 	Unified 	School 	District
(Faeth) (9/24/78) 	PERB 	Decision No. 	72; 	Los
Angeles 	Community 	College 	District 	(Kimmett)
(10/19/79) 	PERB Decision No. 	106; 	Rocklin
Unified 	School District 	(Romero) 	(3/26/80) 	PERB
Decision Ho. 	124.
In 	the 	Redlands, 	supra, 	case 	the 	Board 	looked 	to
federal 	law 	to determine 	the 	scope 	of 	the 	duty
of 	fair 	representation 	in negotiations. 	It
noted 	that 	an 	exclusive 	representative 	has 	wide
discretion 	in 	negotiating 	a 	contract which 	may
not 	please 	every bargaining 	unit 	member 	so 	long
as 	it 	does 	not 	engage 	in 	arbitrary,
discriminatory or 	bad 	faith 	conduct. 	Regarding
such 	discretion, 	the 	Board 	quoted 	from 	the
United 	States 	Supreme 	Court 	opinion 	in 	Ford
Motor Company v. 	Huffman 	(1953) 	345 U.S. 	330, 	31
LRRM 254 8, 	2551:
Any 	authority 	to 	negotiate 	derives 	its
principal 	strength 	from 	a 	delegation 	to 	the
negotiators 	of 	a 	discretion 	to make 	such
concessions 	and 	accept 	such 	advantages 	as,
in 	the 	light 	of 	all 	relevant 	considerations,
they 	believe will 	best 	serve 	the 	interests
of 	the 	parties 	represented. 	A major
responsibility of 	negotiators 	is 	to 	weigh
the 	relative 	advantages 	and 	disadvantages 	of

W. 	Slater 	Hollis
August 19, 	1988
Page 3
differing 	proposals 	Inevitably
differences 	arise 	in 	the manner 	and degree
to which the terms of 	any negotiated
agreement 	affect 	individual 	employees 	and
classes of employees. 	The mere existence of
such differences 	does 	not make them
invalid. 	The complete satisfaction of 	all
who 	are 	represented 	is 	hardly to be
expected. 	A wide 	range of 	reasonableness
must 	be 	allowed 	a 	statutory bargaining
representative 	in serving 	the unit 	it
represents, 	subject 	always to complete good
faith 	and honesty of 	purpose 	in 	the exercise
of 	its discretion.
In the Rocklin case, 	supra, 	the Board also discussed
the 	broad 	discretion 	afforded 	the 	exclusive
representative 	in 	representing 	its unit members.
This 	case 	involved 	a 	situation where 	the exclusive
representative 	failed 	to negotiate with 	the 	employer
regarding 	employee 	benefits 	notwithstanding 	a
provision 	in 	a prior 	agreement providing 	for 	annual
negotiations 	as to 	such benefits. 	The Board 	stated
that 	the 	charging 	party's 	pleadings 	merely 	suggested
that 	the union could have negotiated 	as 	to 	benefits
but did not do 	so. 	Since the union's duty of 	fair
representation does 	not 	encompass 	an obligation 	to
negotiate 	any particular 	item the 	charge was
dismissed. 	The Board held that 	to establish 	a 	prima
facie case 	alleging 	arbitrary conduct, 	the charge
must:
at 	a minimum include an assertion of
sufficient 	facts 	from which 	it 	becomes
apparent how or 	in what manner 	the 	exclusive
representative's 	action or 	inaction was
without 	a 	rational 	basis 	or devoid of 	honest
judgment.
In 	Sacramento 	City Teachers 	Association 	(11/6/84)
PERB Decision No. 	428, 	the Board dismissed another
case 	alleging 	a 	failure 	to 	fairly 	represent 	employees
during 	negotiations. 	The exclusive 	representative's
board of 	directors 	voted not 	to negotiate 	a 	specific
proposal 	that would have 	resulted 	in 	an 	increased
salary 	for 	certain teachers. 	The

W. 	Slater 	Hollis
August 	19, 	1988
Page 	4
proposal 	was 	turned 	down 	after 	the 	board 	of
directors 	heard 	arguments 	for 	and 	against 	the
insertion 	of 	the 	proposal 	into 	the 	bargaining
package. 	The 	Board 	found 	no 	arbitrary,
discriminatory 	or 	bad 	faith 	conduct 	because 	the
union 	had 	provided 	access 	for 	members 	to
communicate 	their 	views 	and 	considered 	the 	views
presented. 	The 	Board 	stated 	that 	the 	union 	had
no 	obligation 	to 	take 	the 	proposal 	to 	the 	table,
so 	long 	as 	it 	had 	legitimate 	non-discriminatory
and 	non-arbitrary 	reasons 	for 	refusing 	to 	do 	so.
(Tomnetta 	v.
CSEA, 	id., 	PERB
Decision No. 	508
at pp. 9-10.)
While 	citing 	much 	authority, 	you 	have 	failed 	to 	allege 	how 	the
employee 	organization 	violated 	its 	duty 	of 	fair 	representation
within 	the 	legal 	analysis 	reviewable by PERB. 	Therefore, 	no
prima 	facie 	case 	has 	been 	stated.
For 	these 	reasons, 	the 	charge 	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 	signed 	under 	penalty 	of
perjury 	by 	the 	charging 	party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed with 	PERB. 	If 	I 	do 	not 	receive 	an 	amended 	charge 	or
withdrawal 	from you 	before August 	30, 	1988, 	I 	shall 	dismiss
your 	charge. 	If 	you 	have 	any 	questions 	on 	how 	to 	proceed,
please call 	me 	at 	(916) 	323-8015.
Sincerely,
Jo	Jo·{	' 'John W. Spittlerv
Assistant	A{tlistant ·Assistant General Counsel
477>.,1
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