University Professional and Technical Employees, Communications Workers of America Local 9119 (Trout) (PERB 1582H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RODNEY N. TROUT,
Charging Party,
V.
UNIVERSITY PROFESSIONAL & TECHNICAL
EMPLOYEES, CWA LOCAL 9119,
Respondent.
Case No. LA-CO-95-H
PERB Decision No.
	1582-H
January
	13,
	2004
Appearances: 	Werner Witke, for Rodney N. Trout; Schwartz, Steinsapir, Dohrmann &
Sommers by Michael
R.
Feinberg, Attorney, for University Professional & Technical
Employees, CWA Local 9119.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Rodney N. Trout (Trout)
of
a Board agent's dismissal
of
his
unfair practice charge against the University Professional & Technical Employees,
CWA
Local
9119 (UPTE). Trout was an agency fee payer in a bargaining unit represented by UPTE.
The charge alleged that UPTE violated section 3587
of
the Higher Education
Employer-Employee Relations Act (HEERA) 1 by failing to make available its appropriately
certified financial report within the 60-day statutory deadline.2 Also before the Board for
1HEERA is codified at Government Code section 3560 et seq. Unless other
indicated, all statutory references herein are to the Government Code.
wise
2HEERA 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

consideration is UPTE' s request that the Board excuse its late filing of a response to Trout's
appeal.
The Board agent rejected the unfair practice charge on grounds that the statutorily
prescribed procedure for remedying an employee organization's failure to satisfy the
requirements of Section 3587 is a petition to compel compliance, not an unfair practice charge.
(Citing Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision
No. 106 (applying similar language under EERA); PERB Reg. 321253.)
PERB Regulation 32125(a) specifies that a petition under Section 3587 may be filed by
"any employee belonging to the organization." Although Trout was not a member of UPTE,
the Board agent found that he could nevertheless petition to compel compliance with Section
3587, citing California Teachers Association and National Education Association (Link)
(1981) PERB Order No. Ad-123 (Link). The Board in Link examined a nearly identical
provision in EERA section 3546,5 authorizing "any employee within the organization" to
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.
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. PERB Regulation 32125 was amended effective December 13, 2003 but retains the
provisions pertinent to the issue before the Board. PERB Regulation 32125(e) is now PERB
Regulation 32125(a). PERB Regulation 32125 states, in pertinent part:
(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) may be 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.
2

petition the Board for an order compelling compliance. Noting that the Board in Link found
this language "meant both members of the organization and agency fee payers," the Board
agent reasoned that fee payers like Trout could petition for compliance under Section 3587 as
well.
The Board agent also noted that, in American Federation of State, County, and
Municipal Emloyees, Local 2620, AFL-CIO (Cupp) (1987) PERB Decision No. 612-S (.Qmp),
the Board affirmed dismissal of an unfair practice charge alleging failure to make financial
statements available and the Board affirmed referral of the charge allegations to the regional
office for processing as a petition for compliance. Accordingly, the Board agent in this case
dismissed the charge and stated that "the allegations regarding UPTE's failure to comply with
provisions ofHEERA section 3587 will be treated as a petition for compliance, given an
appropriate case number and reassigned to a new Board agent for processing."
TROUT'S APPEAL
On appeal, Trout argues that his charge should have proceeded to a complaint and a
hearing before an administrative law judge. Trout also opines that theBoard should have
investigated UPTE's compliance with Section 3587 on its own motion.
UPTE' S RESPONSE
UPTE did not file a timely response to Trout's appeal. UPTE has not shown good
cause for the delay in filing. Therefore, UPTE's request that the Board excuse its late filing is
denied and the contents of that response have not been considered in this appeal.
DISCUSSION
Trout first argues that, under HEERA section 3587, UPTE must provide him with
financial reports. The Board agent's analysis is supported by long-settled Board precedent,
articulated in Link, supra.
3

The Board in Link, reviewed the text in EERA section 3546.5 requiring an employee
organization to make financial statements available to "employees who are members
of
the
organization" and held that an employee organization is not obligated to make its financial
statements available to nonmembers. The language at issue in Link is identical to the language
from HEERA section 3587 that is at issue herein. Therefore, the Board affirms the Board
agent's determination that UPTE did not have a duty to make its financial records available to
Trout under Section 3587.
However, we disagree with the Board agent's reliance upon the Board's decision in
Link regarding a non-member employee's right to petition for compliance with HEERA
section 3587. That interpretation
of
Link holds that, while non-member employees do not have
rights to receive financial reports under Section 3587, those employees may still pursue
compliance with that section. It should be noted that the Link decision cited is a split decision,
in which two Board members determined that David W. Link (Link), a non-member employee,
had standing to petition for compliance; whereas, the other two Board members found that
Link did not have such standing. The latter opinion is bolstered by the Board's subsequent
promulgation in 1982
of
PERB Regulation 32125(e):
A petition to compel compliance with Government Code Section
...
3587 may be filed by any employee belonging to the
organization. [Emphasis added.]
"Belonging to the organization" clearly connotes membership. There is currently no
Board decision otherwise interpreting the regulation. The Board's decision
in~'
cited by
the Board, applies the financial record disclosure requirements
of
the Ralph C. Dills
Act
(Dills
Act).4 The Dills Act requirements are clearly distinguishable from those requirements in
4The Dills Act is codified at Government Code section 3512 et seq.
4

HEERA and EERA.5 Dills Act section 3515.7(e) requires employee organizations to make
financial records available to the Board and "to the employees in the unit." (Emphasis added.)
PERB Regulation 32125(a) states that a "petition to compel compliance under Government
Code Section 3515.7(e) maybe filed by any employee in the unit." (Emphasis added.) In
contrast, HEERA section 3587 requires employees to make financial records available only to
employees "who are members of the organization," and that a petition to compel compliance
may be filed by "any employee within the organization." (Emphasis added.) Moreover, the
pertinent provision of PERB Regulation 32125(a) permits only employees "belonging to the
organization" to file petitions to "compel compliance pursuant to Government Code Section
3546.5 or 3587." (Emphasis added.)
As a result Trout, as a non-member, has no remedy under HEERA section 3587.
However, as an agency fee payer, Trout is entitled to certain financial information under
separate PERB regulations. Under Hudson v. Chicago Teachers Union Local No. 1 (7th Cir.
1984) 743 F.2d 1187 [117 LRRM 2314] and its progeny, agency fee payers may challenge the
amount of fees deducted pursuant to a union security clause. (See also, Cumero v. Public
Employment Relations Bd. (1989) 49 Cal. 3d. 575 [262 Cal.Rptr. 46), HEERA sec. 3543.5;
and Subchapter 8, PERB regs., specifically, PERB regs. 32992, 32994-32997.) Under PERB
Regulation 32992, the exclusive representative must, among other requirements, provide the
nonmember with annual written notice of the amount of the agency fee, the basis for
calculation of the reduced agency fee, and a procedure for appealing the fee, and must make
available the independent audit forming the basis of the calculation. PERB Regulation 32997
makes it an unfair practice for an exclusive representative to collect agency fees in violation of
these regulations. UPTE's compliance with these regulations is not at issue here.
5EERA is codified at Government Code section 3540 et seq.
5

6
The Board "may also issue a compliance order on its motion" under HEERA section
3587, and under it's plenary powers pursuant to HEERA section 3563(m). However, Trout has
failed to allege any facts which would support such an action by the Board.
As an agency fee payer, Trout has adequate remedies under other provisions of HEERA
and PERB regulations should he object to the calculation of agency fees or not receive the
appropriate agency fee notice, issues not alleged in the charge. We therefore conclude that
Trout's charge regarding the claimed violation of HEERA section 3587 should be dismissed.
ORDER
The unfair practice charge in Case No. LA-CO-95-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Baker and Neima joined in this Decision.
6