American Arbitration Association (O'Malley) (PERB 1573H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROBERT J. O'MALLEY,
Charging Party, Case No. SA-CO-21-H

Vv. PERB Decision No. 1573-H

AMERICAN ARBITRATION ASSOCIATION, December 30, 2003

Respondent.

Appearance: Robert J. O’Malley, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Robert J. O’Malley (O’Malley) of a Board agent’s dismissal
(attached). The unfair practice charge alleged that the American Arbitration Association
(AAA) violated the Higher Education Employer-Employee Relations Act (HEERA)' by
conducting an unfair and irregular agency fee hearing process. O’ Malley alleged that this
conduct constituted a violation of HEERA section 3583.5 and PERB Regulations 32994(b)(7)
and 32997.”

Upon review of the entire record, including the unfair practice charge, amended charge,
warning and dismissal letters, and O’Malley’s appeal, the Board adopts the Board agent’s

dismissal as a decision of the Board itself.

"MEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

°PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

DISCUSSION
In his charge as amended, O'Malley alleges the unfairness and bias
of
the AAA
arbitrator in conducting an agency fee appeal hearing. However, to reach the merits
of
O'Malley's charge, the AAA must be a covered entity under HEERA, otherwise, the Board
lacks jurisdiction to adjudicate the charge. As stated by the Board agent, the AAA is neither an
employer nor an employee organization under HEERA under sections 3562(±)(1) and (2) and
3562(g).3 Instead, AAA is one
of
three entities authorized byPERB Regulation 32994(b)(4) to
select an impartial decisionmaker to hear agency fee appeals.4 Under that provision, the
selection among those entities shall be made by the exclusive representative, in this case, the
California Nurses Association (CNA). The selection and payment
of
the AAA by CNA
3HEERA section 3562(f) provides, in pertinent part:
(f)(l) 	'Employee organization' means any organization
of
any
kind in which higher education employees participate and that
exists for the purpose, in whole or in part,
of
dealing with higher
education employers concerning grievances, labor disputes,
wages, hours, and other terms and conditions
of
employment
of
employees.
(2) 	'Employee organization' shall also include any person that an
employee organization authorizes to act on its behalf.
HEERA section 3562(g) provides:
(g) 	'Employer' or 'higher education employer' means the regents
in the case
of
the University
of
California, the Directors in the
case
of
Hastings College
of
the Law, and the trustees in the case
of
the California State University, including any person acting as
an agent
of
an employer.
4PERB Regulation 32994(b )(4) provides:
(4) The impartial decisionmaker shall be selected by the Public
Employment Relations Board, the American Arbitration
Association, or the California State Mediation Service. The
selection among these entities shall be made by the exclusive
representative.
2

pursuant
to
this regulation alone does not qualify the AAA to be an agent
of
CNA. AAA was
not hired to represent employees with higher education employers regarding terms and
conditions
of
employment. O'Malley provided no other facts to show that the AAA is a
covered entity under HEERA. Under these circumstances, the Board lacks jurisdiction to
address the merits
of
O'Malley's charge and the charge must be dismissed.
ORDER
The unfair practice charge in Case No. SA-CO-21-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
3

STATE OF
CALIFORNIA 	t ·
________________
(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
I 8th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
September 25, 2003
Robert J. O'Malley
1709 Costa Verde Street
Davis,
CA
95616
Re: 	Robert
J.
O'Malley v. American Arbitration Association
Unfair Practice Charge No. SA-CO-21-H
DISMISSAL LETTER
Dear Mr. O'Malley:
GRAY
DA
VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 3, 2003. Your charge alleges that the American
Arbitration Association (AAA) violated the Higher Education Employer-Employee Relations
Act (HEERA) 1 by conducting an unfair and irregular agency fee arbitration hearing.
I indicated in the attached letter dated September 17, 2003, that the above-referenced chargedid not state a prima facie case. You were advised that
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that unless you amended the charge to state a
prima facie case or withdrew it prior to September 26, 2003, the charge would be dismissed.
In your amended charge, filed on September 22, 2003, you contend that AAA is covered by
HEERA as an agent
of
CNA. The charge alleges that because CNA selected and paid
the
AAA
to conduct the agency fee arbitration hearing, AAA is an agent
of
CNA. The charge further
alleges that the AAA "conducted an unfair and irregular agency fee hearing process and
subsequent hearing."
As discussed in the attached letter, the AAA is not an employee organization or an employer
under HEERA. HEERA section 3562(£)(1) defines an "employee organization" as an
organization which exists for the purpose
of
"dealing with higher education employers
concerning grievances, labor disputes, wages, hours, and other terms and conditions
of
employment
of
employees." An employee organization also includes any person that theemployee organization authorizes to act on its behalf. (Section 3562(£)(2).)
The AAA is not an employee organization because it does not exist for the purpose
ofrepresenting employees before their higher education employer. Further, the AAA is not an
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-21-H
September 25, 2003
Page 2
(
agent
of
CNA because there are no facts alleged which demonstrate that CNA authorized the
AAA to represent employees before the employer. Thus, the AAA is not either an employee
organization or an agent
of
an employee organization subject to HEERA. Accordingly, theAAA is not covered by the provisions
of
HEERA or subject to PERB's jurisdiction. The unfair
practice charge does not state a prima facie case and is hereby dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
theclose
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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 (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b ). )
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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-21-H
September 25, 2003
Page 3
party or filed with the Board itself. (See Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c
). )
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. (Regulation 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,
ROBERT THOMPSON
General Counsel
Byew.w~7
Regional Attorney
Attachment
cc: Craig Martin
Eric Tuchmann

ST A TE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
September 17, 2003
Robert J. O'Malley
1709 Costa Verde Street
Davis, CA 95616
Re: 	Robert J. O'Malley v. American Arbitration Association
Unfair Practice Charge No. SA-CO-21-H
WARNING LETTER
Dear Mr. O'Malley:
( 	GRAY DAVIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 3, 2003. Your charge alleges that the American
Arbitration Association (AAA) violated the Higher Education Employer-Employee Relations
Act (HEERA) 1 by conducting an unfair and irregular agency fee arbitration hearing.
You are employed by the University of California as a Nurse Practitioner II at the UC Davis
Medical Center. Your job classification is included in the bargaining unit which is exclusively
represented by the California Nurses Association (CNA). You have elected not become a
member of CNA.
In May 2002, CNA sent its annual agency fee notice to fair share fee payers. On June 6, 2002,
you submitted a letter to CNA objecting to the Union's calculation of the agency fee.
On an unspecified date, AAA Case Manager Craig Martin issued a notice that the agency fee
arbitration hearing was scheduled for May 22, 2003 and would be conducted by Arbitrator
John Kagel. The arbitration hearing was subsequently twice rescheduled.
On July 21, 2003, CNA attorney Jane Lawhon informed you that CNA had decided not to
accept agency fees from you. On or about July 21, 2003, CNA sent you a check to reimburse
you for agency fees paid through June 2003.
During the August 29, 2003 arbitration hearing, the arbitrator allowed CNA to challenge your
standing as an agency fee objector presumably because CNA had refunded your agency fees.
You were given an opportunity to rebut CNA's challenge. The arbitrator sustained CNA's
challenge and excluded you from participating in the arbitration hearing.
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-21-H
September 17, 2003
Page 2
(
The charge alleges that the arbitration hearing was unreasonably delayed, you were given
misleading information in response to your questions from either Mr. Martin or Mr. Kagel,
Mr. Kagel and the CNA attorney engaged in ex parte communications, and you were excluded
from the arbitration hearing.
Based on the facts stated above, the charge does not state a prima facie case because the
American Arbitration Association is not an employee organization or an employer covered by
HEERA.
PERB Regulation 32994 requires each exclusive representative which collects agency fees to
establish an agency fee appeal procedure. The procedure provides for resolution
of
agency fee
objections by an impartial decisionmaker. Regulation 32994(b)(4) states:
The impartial decisionmaker shall be selected by the Public
Employment Relations Board, the American Arbitration
Association, or the California State Mediation Service. The
selection among these entities shall be made by the exclusive
representative.
HEERA section 3562 provides various definitions
of
terms used in HEERA. This provision
states, in relevant part:
(f) (1) "Employee organization" means any organization
of
any
kind in which higher education employees participate and that
exists for the purpose, in whole or in part,
of
dealing with higher
education employers concerning grievances, labor disputes,
wages, hours, and other terms and conditions
of
employment
of
employees
....
(2) "Employee organization" shall also include any person that
an employee organization authorizes to act on its behalf. An
academic senate, or other similar academic bodies, or divisions
thereof, shall not be considered employee organizations for the
purposes
of
this chapter.
(g) "Employer" or "higher education employer" means the
regents in the case
of
the University
of
California, the Directors
in the case
of
Hastings College
of
the Law, and the trustees in the
case
of
the California State University, including any person
acting as an agent of an employer.
The charge alleges that the AAA violated HEERA by conducting an unfair and irregular
agency fee objector arbitration hearing. However, the AAA is not either an employee
organization or an employer under HEERA. The AAA is not an organization which exists for
the purpose of representing employees before their employers in matters involving terms and

SA-CO-21-H
September 17, 2003
Page 3
(\ 	(
conditions
of
employment. Further, there is no indication in the charge that the AAA acted as
an agent
of
CNA for this purpose. Finally, the AAA is not a higher education employer as
defined above. Accordingly, the AAA is not covered by the provisions
of
HEERA. Thus, this
charge must be dismissed.
For these reasons the charge,
as
presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. 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 have the case number written on the top right hand
corner
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before September 26, 2003, I shall dismiss your
charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
JfiaLRobin W.
Wes
Regional Attorney
~