California Nurses Association (O'Malley) (PERB 1578H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBERT
J.
O'MALLEY,
Charging Party,
V.
CALIFORNIA NURSES ASSOCIATION,
Respondent.
Appearance: Robert J. O'Malley on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
Case No. SF-CO-72-H
PERB Decision No.
	1578-H
December
	31,
	2003
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)
of
his unfair practice charge. The charge alleged that the California Nurses
Association (CNA) violated the Higher Education Employer-Employee Relations Act
(HEERA)1
by failing to provide financial reports at O'Malley's request. O'Malley alleged that
this conduct constituted a violation ofHEERA sections 3584(b) and 3587 and PERB
Regulations2 32125, 32993, and 32997.
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

Upon review of the entire record, including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letters, and O'Malley's appeal, the Board
adopts the Board agent's dismissal as a decision of the Board itself.
BACKGROUND
In his charge as amended, O'Malley alleges that he is a nurse practitioner II with the
University of California Davis Health Systems. CNA is the exclusive representative but
O'Malley is not a member. 	CNA collected agency fees from unit members. By telephone on
January 27, 2003, confirmed in writing January 28, 2003, O'Malley requested copies of
financial reports from CNA for fiscal years 1999-2000 and 2001-2002. He did not receive a
response and again faxed a request to CNA regarding the status of his January request on
March 2, 2003. O'Malley filed the original charge on March 27, 2003.
On April 14, 2003, the Board agent sent O'Malley copies of CNA financial reports filed
with the Board for fiscal years ending June 30, 2000, 2001 and 2002. 	The Board agent also
enclosed a form requesting that O'Malley withdraw the charge. On May 5, 2003, O'Malley
filed an amended charge alleging that CNA unlawfully collected agency fees while the
required financial filings were delinquent, in violation of PERB regulations. O'Malley asserts
that delinquent compliance does not render the violation moot.
In the warning and dismissal letters, the Board agent observed that CNA filed copies of
reports for fiscal year 2001-2002 as well as for the two previous fiscal years. 3 She dismissed
the charge because under Section 3587 and Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106 (Kimmett), the appropriate remedy for failure to
3The Board agent noted that since PERB Regulation 32125(£) (now section 32125(b))
requires filing a petition to compel within 12 months following the end of the exclusive
representative's preceding year, the request for the 1999-2000 fiscal year financial report is
untimely.
2

file financial reports is a petition to compel compliance and not an unfair practice charge. The
Board agent further disagreed with O'Malley's contention, conveyed by telephone, that
HEERA section 3583.5 and PERB Regulation 32993 supersede Kimmett by making CNA's
violation of agency fee regulations an unfair practice. According to the Board agent, Section
3583 .5 and Section 32993 instead address the required contents of financial reports, not the
requirement to make them available to the Board and to members of the employee
organization. In addition, the Board agent opined, new regulations adopted by the Board are
assumed to incorporate precedent, not to overturn it. Furthermore, PERB Regulation 32125 is
not included in the agency fee regulations, so that noncompliance with Regulation 32125 is not
an unfair practice charge. Most importantly, the remedy sought under the charge is the same
remedy available under Section 3587, to compel CNA to file the requested financial reports.
This remedy was achieved when CNA filed the requested reports and copies were sentto
O'Malley on April 14, 2003. Therefore, the issues raised in the charge are moot. Although
O'Malley disputed the mootness of the charge, the remedy is to compel compliance, and CNA
complied. The Board agent found that the charge therefore did not state a prima facie case and
dismissed it.
DISCUSSION
On appeal, O'Malley claims that the delinquent financial reports are equivalent to
reports that lack the required information pursuant to PERB Regulation 329934 and, therefore,
4PERB Regulation 32993 provides:
Each exclusive representative that has agreed to or has had
implemented an agency fee provision shall, as part of the
financial report required by Government Code Sections 3502.5(±),
3515.7(e), 3546.5, 3584(b), and 3587, also include (a) the amount
of membership dues and agency fees paid by employees in the
affected bargaining unit, and (b) identify the expenditure(s) that
constitute(s) the basis for the amount of the agency fee.
3

constitute an unfair practice charge under PERB Regulation 32997.5 In his amended charge,
O'Malley cited Hudson v.Chicago Teachers Union Local No. 1 (ih Cir. 1984) 743 F.2d 1187
(Hudson) for the principle that voluntary cessation of unlawful conduct does not moot the
case. 6 In that case, non-union dissenters challenged the amount of fees deducted pursuant to a
union security clause. The union placed the disputed fees in an escrow account pending
resolution of the dispute over the legitimacy of the use of the funds. 	However, the union
controlled the escrow account. Under those circumstances, the court held that the union's
placement of the funds in an account it controlled, as opposed to an account with a neutral
third party trustee, does not render the issue moot.
In this case, unlike Hudson, O'Malley's claim is not that CNA is inappropriately using
the collected agency fees, but rather that CNA did not make available the financial reports.
5PERB Regulation 32997 provides:
It shall be an unfair practice for an exclusive representative to
collect agency fees in violation of these regulations.
6O'Malley also cites other cases to support the same principle: United States v.
Concentrated Export Assn., Inc. (1968) 393 U.S. 199, 203 (anti-trust action requiring a
stringent test for mootness, stating that mere voluntary cessation of the illegal act would allow
the wrongdoer to return to its old ways); City of Mesquite v. Aladdin's Castle, Inc. (1982) 455
U.S. 283, 289 (case not moot because City repeal of unlawful ordinance would not preclude
City from later reenacting similar provisions); United States v. W.T. Grant Co. (1953) 345
U.S. 629, 632 (anti-trust case in which the Court found mootness because defendant
demonstrated no reasonable expectation that the wrong would be repeated.) These cases are
not on point. Unlike these cases, in the case before us, any failure to comply with Section
3587 has been cured through a statutory remedy. In addition, CNA cannot take back its
financial reports from the Board. There is no further wrong to remedy.
4

HEERA section 3587,7 as implemented by PERB Regulation 32125,8 provides the appropriate
and only remedy for failure to make available the financial records, a petition to compel
7HEERA section 3587 provides:
Every recognized or certified employee organization shall keep
an adequate itemized record of its financial transactions and shall
make available annually, to the board and to the employees who
are members of the organization, within 60 days after the end of
its fiscal year, a detailed written financial report thereof in the
form of a balance sheet and an operating statement, certified as to
accuracy by the president and treasurer or comparable officers.
In the event of failure of compliance with this section, any
employee within the organization may petition the board for an
order compelling such compliance, or the board may issue such
compliance order on its motion.
8PERB Regulation 32125 was amended effective December 13, 2003 but retains the
provisions pertinent to the issue before the Board. Section 32125 provides:
(a) A petition to compel compliance with Government Code
Section 3546.5 or 3587 may be filed by any employee belonging
to the organization. A petition to compel compliance with
Government Code Section 3515.7(e) maybe filed by any
employee in the unit. Such petition shall be filed in the regional
office and shall include the names, addresses and telephone
numbers of the exclusive representative, the employer, and the
petitioning party.
(b) The petition to compel compliance shall be filed not later
than 12 months following the end of the exclusive
representative's preceding fiscal year.
( c) Board Action.
( 1) Upon the valid filing of a petition to compel compliance, the
Board agent shall determine whether or not the exclusive
representative has complied with the applicable Government
Code section. In the event of a determination of noncompliance,
the Board agent shall so notify the exclusive representative,
requiring it to comply within 30 days of the notification.
(2) Any determination made by the Board agent pursuant to this
section may be appealed to the Board itself in accordance with
the provisions of Chapter 1, Subchapter 4, Article 2 or 3 of these
regulations, as appropriate. The Board itself may issue a
compliance order or take other appropriate action.
5

compliance. (See Kimmett, pp. 18-19.) CNA provided the requested financial records to the
Board, and in tum, the Board agent forwarded them to O'Malley. That is all that is required
by HEERA section 3587 and PERB Regulation 32125.9
( d) The Board may require an exclusive representative to submit
a copy of its most recent financial report.
Since CNA has complied with the request for financial records, the issue is now moot.
However, whether or not CNA has complied with the request, O'Malley has failed to state a
prima facie violation of HEERA.
ORDER
The unfair practice charge in Case No. SF-C0-72-H is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.
9It should be noted that PERB Regulation 32125(a), previously section 32125(e), only
permits an employee belonging to the organization to file a petition to compel compliance
under Section 3587. Therefore, O'Malley has no remedy under this section.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Fr.:mcisco Regional Office
l 330 Broadway, Suite
1532
Oakland, CA 94612-2514
Telephone: (510) 622- l
021
Fax: (510) 622-1027
May 13, 2003
Robert
J.
O'Malley
1709 Costa Verde Street
Davis, CA 95616
Re: 	Robert J. O'Malley
v.
California Nurses Association
Unfair Practice Charge No. SF-CO-72-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 March 27, 2003. The charge alleges that the California Nurses
Association violated the Higher Education Employer-Employee Relations Act (HEERA) 1 by
failing to file financial reports with PERB as required by Government Code section 3587
2 and
PERB Regulation 3 2125. 3
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.
2 Government Code section 3587 provides:
Every recognized or certified employee organization shall keep
an adequate itemized record
of
its financial transactions and shall
make available annually, to the board and to the employees who
are members
of
the organization, within 60 days after the end
of
its fiscal year, a detailed written financial report thereof in the
form
of
a balance sheet and an operating statement, certified as to
accuracy by the president and treasurer or comparable officers.
In the event
of
failure
of
compliance with this section, any
employee within the organization may petition the board for an
order compelling such compliance, or the board may issue such
compliance order on its motion.
3 PERB Regulation 32125(b) provides:
(b) Under HEERA, pursuant to Government Code Section 3587,
every recognized or certified employee organization shall keep an
adequate itemized record of its financial transactions. 	Within 60
days after the end of its fiscal year, every recognized or certified
employee organization shall file with the regional office a
detailed written report thereof, certified as to accuracy by its
president and treasurer or comparable officers.

SF-CO-72-H
May 12, 2003
Page 2
I indicated to you in my attached letter dated April 28, 2003, 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 which would correct the deficiencies explained in that letter, you should
amend the charge.
On May 5, 2003, you filed an amended unfair practice charge. Your amended charge alleges
that the Association committed an unfair practice because it collected agency fees while
delinquent in filing financial reports with PERB. You base this allegation
on
PERB
Regulation 32997, which states that it "shall be an unfair practice for an exclusive
representative to collect agency fees in violation
of
these regulations." The words "these
regulations" refer to the Agency Fee Regulations contained in Subchapter 8
of
PERB
Regulations. 	However, PERB Regulation 32125, which requires the filing
of
financial reports,
is not included with the Agency Fee Regulations, and noncompliance with this regulation is
not an unfair practice.4
Your amended charge also asserts that the Association's compliance with PERB Regulation
32125 on April 14, 2003, pursuant to your petition for compliance does not render moot the
allegations in your unfair practice charge. As discussed in the my April 23, 2003, letter, the
remedy for noncompliance with PERB Regulation 32125 is to compel compliance. This
remedy was achieved when the Association filed the delinquent report. PERB has no authority
to seek additional remedies for a violation
of
PERB Regulation 32125.
For the reasons stated above and in the attached warning letter, this unfair practice charge is
dismissed.
Right to Appeal
Pursuant to PERB Regulations,5 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.)
4 It should be noted that the financial report required by PERB regulation 32125 is not
the written notice which PERB regulation 32992 requires exclusive representatives to provide
to nonmembers.
5 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 100 1 et seq.

SF-CO-72-H
. May 12, 2003
Page 3
A document is also considered "filed" when received by facsimile transmission before the
close
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
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

SF-CO-72-H
May 12, 2003
Page 4
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
Attachment
cc: Robert F. Henderson

STATE OF CALIFORNIA
:v;;.!?;,~.,:.. EMPLOYMENT RELATIONS BOARD
San-Francisco Regional Office
I 330 Broadw:iy, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
,/ 	'i
~ 	~
,,,,J"E·':}o••'•	OF c,-1..1
April 28, 2003
Robert J. O'Malley
1709 Costa Verde Street
Davis, CA 95616
Re: 	Robert J. O'Malley v. California Nurses Association
Unfair Practice Charge No. SF-CO-72-H
WARNING 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 March 27, 2003. The charge alleges that the California Nurses
Association violated the Higher Education Employer-Employee Relations Act (HEERA) 1 by
failing to file financial reports with PERB as required by Government Code section 3587.2
The charge states that you telephoned this office on January 27, 2003, to request copies of the
Association's financial reports for 1999-2000 and 2001-2002. 	You formalized your request in
writing on January 28, 2003, citing PERB regulation 32125(e).3
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.
2 Government Code section 3587 provides:
Every recognized or certified employee organization shall keep
an adequate itemized record of its financial transactions and shall
make available annually, to the board and to the employees who
are members of the organization, within 60 days after the end of
its fiscal year, a detailed written financial report thereof in the
form of a balance sheet and an operating statement, certified as to
accuracy by the president and treasurer or comparable officers.
In the event of failure of compliance with this section, any
employee within the organization may petition the board for an
order compelling such compliance, or the board may issue such
compiiance order on its motion. 	(Emphasis added.)
3 PERB Regulation 32125(e) provides:
A petition to compel compliance with Government Code Section 3546.5 or 3587 may
be filed by any employee belonging to the organization. A petition to compel compliance with
Government Code Section 3515.7( e) may be filed by any employee in the unit. 	Such petition

SF-CO-72-H
April 28, 2003
Page 2
I
(
Since no current financial report from the Association was on file, the Association was
contacted and notified that it must comply by filing the financial 	report for 2001-2002 as soon
as possible.4 On April 14, 2003, the Association filed copies
of
its financial reports for 2001-
2002 as well as for the two previous years. 	Copies
of
all three financial reports were mailed
to
you that same day.
In Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No.
106, the Board noted that section 3546.5
of
the Educational Employment Relations Act
(EERA)5, which is identical to Government Code section 3787, clearly indicates that the
appropriate procedure for remedying a violation
of
the financial report filing requirement is not
by filing an unfair practice charge but by filing a petition
to
compel compliance with PERB.
The unfair practice charge in Kimmett was filed prior to the Board's adoption
of
PERB
regulation 32125, which provided a mechanism for compelling compliance with the financial
report filing requirements in both HEERA and EERA.
In a conversation with the undersigned on April 17, 2003, you asserted that Kimmet was
outdated because it preceded the enactment
of
Government Code section 3583.56 in January,
2000. You also note that PERB Agency Fee Regulation 32993 provides:
shall be filed in the regional office and shall include the names, addresses and telephone
numbers
of
the exclusive representative, the employer, and the petitioning party.
4 PERB Regulation 32125(£) provides that "the petition to compel compliance [with
financial report filing requirements] shall be filed not later than 12 months following the end
of
the exclusive representative's preceding year." Thus, the request for a copy
of
the 1999-2000
financial report was untimely.
5 EERA is codified at Government Code section 3540 et seq.
6 Government Code section 3583.5 provides, in pertinent part:
(a)(l) Notwithstanding any other provision oflaw, any employee
of
the California State University or the University
of
California,
other than a faculty member
of
the University
of
California who
is eligible for membership in the Academic Senate, who is in a
unit for which an exclusive representative has been selected
pursuant to this chapter, shall be required,
as
a condition
of
continued employment, either to join the recognized employee
organization or to pay the organization a fair share service fee.
The amount of the fee shall not exceed the dues that are payable
by members of the employee organization, and shall cover the
cost
of
negotiation, contract administration, and other activities
of
the employee organization that are germane to its functions as the
exclusive bargaining representative. Upon notification to the
employer by the exclusive representative, the amount of the fee
shall be deducted by the employer from the wages or salary of the
employee and paid to the employee organization.

SF-CO-72-H
April 28, 2003
Page 3
(2) The costs covered by the fee under this section may include,
but shall not necessarily be limited to, the cost of lobbying
activities designed to foster collective bargaining negotiations
and contract administration, or to secure for the represented
employees advantages in wages, hours, and other conditions
of
employment in addition to those secured through meeting and
conferring with the higher education employer.
Each exclusive representative that has agreed to or has had
implemented an agency fee provision shall, as part
of
the
financial report required by Government Code Sections 3502.5(±),
3515.7(e), 3546.5, 3584(b), and 3587, also include (a) the amount
of
membership dues and agency fees paid by employees in the
affected bargaining unit, and (b) identify the expenditure( s) that
constitute(s) the basis for the amount
of
the agency fee.
You assert that since PERB Regulation 32997 makes it "an unfair practice for an exclusive
representative to collect agency fees in violation
of
[agency fee] regulations," it supersedes
Kimmett and makes a violation
of
PERB Regulation 32993 an unfair practice.
First, the regulation you reference, PERB Regulation 32993, does not require the filing
of
financial reports, but simply requires the inclusion
of
certain information in those reports. 	The
requirement for filing financial reports is contained in Government Code section 3587 and
PERB Regulation 32125.
Secondly, when regulations are adopted by the Board, it is with the presumption that they
incorporate previous decisional law, such as Kimmett, and do not overturn it.7
Finally, the remedy sought by the unfair practice charge is to compel the Association to file the
requested financial reports, which is also the remedy available under section 3587. This
remedy was achieved when the Association filed the 2001-2002 financial report (as well as
those for the two prior years) with PERB, and copies were sent to you on April 14, 2003.
Therefore, the issue raised in the charge and in your January 28, 2003, letter has been rendered
moot.
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
7 See Government Code section 11349(d), which requires that any regulation approved
by the Office of Administrative Law be "in harmony with, and not in conflict with or
contradictory to, existing statutes, court decisions, or other provisions of law."

SF-CO-72-H
April 28, 2003
Page 4
charging party. 	The amended charge must have the case number written on the top right hand
comer 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 May 5, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Labor Relations Specialist