University Professional and Technical Employees-Communications Workers of America Local 9119 (Witke) (PERB 2253H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WERNER WITKE,
Charging Party,
V.
UPTE-CWA LOCAL 9119,
Respondent.
Case No. LA-CO-516-H
PERB Decision No. 2253-H
April 23, 2012
Appearance: 	Werner Witke, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Werner Witke (Witke)
of
the Office
of
the General Counsel's
dismissal (attached)
of
his unfair practice charge. The charge, as amended, alleged that UPTE-
CWA Local 9119 (UPTE) violated the Higher Education Employer-Employee Relations Act
(HEERA), 1 citing Witke's failure to receive adequate pre-hearing notice from the American
Arbitration Association (AAA) arbitrator
of
the agency fee challenge hearing for the
2010/2011 challenge period. The charge alleged that this conduct specifically violated PERB
Regulation 32994, subdivision (b )(7)2 requiring that agency fee challenge hearings be "fair,
informal proceedings conducted in conformance with basic precepts of due process." The
Board agent dismissed the charge for failure to state a prima facie case. The Board agent
found the charge deficient on jurisdictional grounds, and
lY\.A,au,,,,,
it failed to allege
1 The HEERA is codified at Government Code section 3560 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et. seq.

demonstrating that PERB should not defer to the decision of the AAA arbitrator regarding the
adequacy of the pre-hearing notice.
The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. 	Based on this review, the Board
finds the Board agent's warning and dismissal letters to be well-reasoned, adequately
supported by the record and in accordance with the applicable law. Accordingly, the Board
hereby adopts the warning and dismissal letters as the decision of the Board itself, as
supplemented by a discussion of the issues raised by Witke on appeal.
DISCUSSION
The issues raised on appeal concern the processing and investigation of the charge.
Witke asserts that the Board agent and UPTE engaged in ex parte communications. 	Witke
also asserts that the Board agent granted multiple extensions in violation of PERB
Regulation 32132, subdivision (b), and, as a consequence, UPTE's position statement should
have been excluded from consideration. Based on these assertions, Witke argues that dismissal
of his charge should be reversed, and a complaint should issue.
The Initial Processing of an Unfair Practice Charge
After an unfair practice charge has been filed, it is assigned to a Board agent for
processing. 	(PERB Reg. 32620, subd. (a).) The powers and duties of the Board agent are, in
pertinent part:
(1) Assist the charging party to state in proper form the
information required by section 32615;
(2) Answer procedural questions of each party regarding
processing of the case;
(3) Facilitate communication and the exchange of information
between the parties;
2

(4) Make inquiries and review the charge and any accompanying
materials to determine whether an unfair practice has been, or is
being, committed, and determine whether the charge is subject to
deferral to arbitration, or to dismissal for lack of timeliness.
( 5) Dismiss the charge or any part thereof as provided in Section
32630 if it is determined that the charge or the evidence is
insufficient to establish a prima facie case; ...
(6) Place the charge in abeyance ....
(7) Issue a complaint pursuant to Section 32640.
(PERB Reg. 32620, subd. (b).) If the Board agent concludes that the charge or the evidence
is insufficient to establish a prima facie case, the Board agent "shall refuse to issue a
complaint, in whole or in part. The refusal shall constitute a dismissal of the charge." (PERB
Reg. 32630.)
Here, the two Board agents involved in this matter performed their duties well within
the regulatory framework set forth above. In processing a charge, a Board agent may freely
communicate with the parties to facilitate the gathering of information necessary to the
investigation of the charge.
Regarding Witke's argument that the Board agents involved in processing the instant
charge engaged in improper "ex parte" communications with UPTE, there is no prohibition on
ex parte communications in the initial charge processing stage of an unfair practice proceeding.
This policy of unrestricted and open communication with the parties at the charge processing
stage stands in stark contrast to the rules governing formal hearings before the Board on an
unfair practice complaint, which specifically prohibit both oral and written ex parte
communications between parties and the presiding Board agent. (PERB Reg. 32185.)
Ex parte communications at the charge processing stage of unfair practice proceedings
are a routine and necessary part of the performance of a Board agent's regulatory duties.
Ex parte communications enable Board agents to "[a]ssist the charging party" in formulating a
3

charge, "[a]nswer procedural questions
of
each party" regarding the case, "[f]acilitate
communication" between the parties, and "[m]ake inquiries." (See PERB Reg. 32620,
subd. (b).) Indeed, ex parte communications are explicitly sanctioned by PERB
Regulation 32620, subdivision (d), which provides: "Facts obtained from oral responses that
reveal potential deficiencies in the allegations must be communicated to the charging party
before dismissal
of
a charge under Section 32630." Although this provision conditions the use
of
ex parte communications, it in no manner restricts the Board agent from engaging in such
communications in the course
of
the investigation. This provision ensures that information
gathered by a Board agent through an ex pate communication, which reveals a potential
deficiency in the charge, be provided to the charging party in order for that information to be
considered as a basis for dismissal
of
the charge. This provision demonstrates that ex parte
communications are not just authorized but fully contemplated by the regulatory scheme. 	(See
Monterey County Office
of
Education (1991) PERB Decision No. 913 [rejecting respondent's
argument that issuance
of
complaint was improper because it was based on facts taken from a
telephone conversation between Board agent and charging party, the Board itself held that "the
Board agent has the authority to conduct an investigation to determine whether the unfair
practice charge allegations state a prima facie case."]3
Extensions
of
Time
Witke further argues that the Board agent granted multiple extensions in violation
of
PERB Regulation 32132, subdivision (b ).
	This regulation provides as follows:
It bears mention that Witke objects only to ex parte communications between the
Board agents and UPTE, and not to ex parte communications between the Board agent and
himself. On October 5, 2011, for example, the Board agent left a voicemail message for Witke
"conveying that charge processing would proceed without considering a second position
statement from Respondent." (Board agent's Dismissal, p. 1.) In his appeal, Witke neither
refers to this communication nor asserts that it was improper.
4

A request for an extension of time within which to file any
document with a Board agent shall be in writing and shall be filed
with the Board agent at least three days before the expiration of
the time required for filing. 	The request shall indicate the reason
for the request 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. Extensions of time may
be granted by the Board agent for good cause only.
Witke attaches copies of two letters to his appeal, which he believes demonstrate a
violation of the above regulation. 	By letter dated June 15, 2011, to the Board agent and
copied by mail to Witke, UPTE' s ·attorney referred to a "brief telephone conversation" between
himself and the Board agent that morning confirming that the Board agent had agreed to a one-
week extension by which UPTE would be allowed to submit a position statement in response
to the charge. Witke did not submit a response.
By letter dated September 9, 2011, to the Board agent and copied by mail to Witke,
UPTE's attorney referred to the Board agent's agreement to extend by approximately two
weeks the date by which UPTE would be allowed to submit a position statement in response to
the amended charge. 	By letter dated September 22, 2011, Witke objected to UPTE's request
for an extension of time by which to file a second position statement. The Board agent was
subsequently informed that "nothing further would be submitted on behalfof Respondent."
(Board agent's Dismissal, p. 1.)
Witke is correct that the UPTE failed to comply with PERB Regulation 32132,
subdivision (b) in failing to put the two requests for extension in writing. There is no basis to
conclude from UPTE's shortcomings, however, that the Board agent did not find good cause to
grant 	extension that occurred after the filing of the charge or the extension that
occurred after the filing of the amended charge. 	Witke was informed of each extension and
objected in writing to the second. 	Subsequent to his objection, the UPTE refrained from
filing the second position statement. Based on the lack of full compliance with PERB
5

Regulation 32132, subdivision (b), Witke argues that UPTE's first and only position statement
filed in response to the initial charge, to which Witke did not object in writing, be excluded
from PERB's consideration. Witke's argument is misplaced for three main reasons.
Witke's remedy for the regulatory compliance issue would be to exclude consideration
of
pertinent and undisputed facts learned in the course
of
the investigation, namely the
existence
of
an AAA arbitrator ruling concerning the very issue raised by Witke in his unfair
practice charge. The PERB regulation at issue here, PERB Regulation 32132, subdivision (b ),
is a means by which Board agents, through their consideration
of
requests for extension, can
exercise control over the timeline for processing a charge. 	While violations
of
PERB
regulations will not be condoned, neither will they be used to undermine the authority
of
a
Board agent in the performance
of
his or her duties. The Board agent is responsible for
determining whether the facts as alleged in the charge state a prima facie case and whether the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
(Eastside Union School District (1984) PERB Decision No. 466.) As the Board agent noted,
absent a factual dispute, a Board agent may rely on information that does not appear in the
charge, including information provided by the respondent. 	(Service Employees International
Union #790 (Adza) (2004) PERB Decision No. 1632-M.) To exclude that information from
PERB's consideration would hinder the investigative fact-gathering process.
Also, there has been no showing
of
prejudice. 	filing
of
a position statement by a
respondent in an unfair practice proceeding is explicitly authorized under PERB
Regulation 32620, subdivision (c ), which provides that the "respondent shall be apprised
of
the
allegations, and may state its position on the charge during the course of the inquiries." The
charge was filed on June 8, 2011. Respondent was given until June 22, 2011, by which to file
a position statement. Respondent requested and received a one-week extension of time. 	UPTE
6

filed one day early on June 28, 2011. Almost two months later, on August 24, 2011, Witke
filed an amended charge. UPTE's receipt of a one-week extension of time by which to file a
position statement prejudiced Witke in no discernible way. Witke had more than ample
opportunity to dispute the factual assertions set forth in UPTE's position statement as untrue or
irrelevant. (See, e.g., Monterey County Office of Education, supra, PERB Decision No. 913
[where respondent was provided the opportunity to respond to charging party's allegations,
which were taken from a telephone conversation between the Board agent and the charging
party, the respondent suffered no prejudice].)
As important, the focus of the appeal obscures the real issue, which is whether the
charge, as amended, states a prima facie violation of the law. At the charge processing stage,
the burden to provide specific allegations of fact, which demonstrate a prima facie case that an
unfair practice has been committed, is on the charging party. (Sacramento Municipal Utility
District (2006) PERB Decision No. 1838-M.) Based on consideration of the amended charge
alone, this burden has not been met. As the Board agent explained, PERB lacks jurisdiction
over alleged failures of AAA in providing Witke with adequate pre-hearing notice of the
agency foe chaiienge hearing. (American Arbitration Association (0 'Malley) (2003) PERB
Decision No. 1573-H [the selection of and payment to AAA by the union pursuant to
regulation does not qualify AAA as an agent of the union]; California School Employees
Association, Chapter 258 (Gerber) (2001) PERB Decision No. 1460, Board agent's Dismissal,
p. 5 ["[a]s [union] was not required to provide notice to Charging Party, it cannot be found to
have violated PERB Regulations 	[AAA] allegedly fails to notify Charging Party 	a
timely manner"].)
Based on the foregoing, the Board concludes that the appeal is without merit and
dismissal of the charge is proper.
7

ORDER
The unfair practice charge in Case No. LA-CO-516-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
8

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
October
7,
2011
Werner Witke
10556 Caminito Flores
San Diego, CA 92126
Re: 	Werner Witke
v.
UPTE-CWA Local 9119
Unfair
Pn:ir.tif'P r'h8rgP-
Nn.
T .A-f'()_() 1
6-H
DISMISSAL LETTER
Dear Mr. Witke:
EDMUND
G.
BROWN
JR., Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June
8,
2011. Werner Witke (Witke or Charging Party) alleges that
UPTE-CW A Local 9119 (Union or Respondent) violated the Higher Education Employer-
Employee Relations Act (HEERA or Act) 1 and PERB Regulation 32994(b)(7)2 by failing to
provide Charging Party with proper notice of an agency fee arbitration hearing.
Charging Party was informed in the attached Warning Letter dated August 10, 2011, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that,
if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, Charging Party should amend the charge. Charging Party was further
advised that, unless he amended the charge to state a prima facie case or withdrew it, the
charge would be dismissed.
On August 24, 2011, Charging Party filed a First Amended Charge (amended charge). On
September 26, 2011, Charging Party submitted a letter objecting to Respondent's request for
an extension
of
time to file a position statement. Subsequently, the undersigned was informed
that nothing further would be submitted on behalf of Respondent. 	On October 5, 2011, the
undersigned left a voicemail message for Charging Party, conveying that charge processing
would proceed without considering a second position statement from Respondent.
Investigation
of
the amended charge revealed the following relevant information.
Charging Party states, for the first time:
1 , 	-
HEERA is codified at Government Code section 3560 et seq. The text ofHie HEERA
and PERB Regulations may be found at www.perb.ca.gov.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-516-H
October
7,
2011
Page 2
My sworn declaration [attached as Exhibit 1 to the amended
charge] pertains to the conduct
of
UPTE that specifies what
UPTE failed to do in accordance with due process. The proof is
provided in Exhibit
2,
a notice sent to Ms. Sylvia Rayner and her
letter
to
me, both that were sent after the hearing was held.
UPTE has failed to provide me due process, to wit, it did not send
or cause to be sent a notice as required under the California Code
of
Civil Procedure Section 1282.2(a)(l)Yl
from	Charging Party states in his attached declaration that he "did not receive a letter 	UPTE,
representatives or anyone employed or hired by UPTE notifying [him]
of
the time,	UPTE's
date and place
of
the arbitration hearing[.]" Charging Party states that the letter he did receive
was sent via first class mail, while notice
of
arbitration hearings are required "to be personally
served or [by] registered or certified mail on the parties to the arbitration[.]" Additionally,
Charging Party states that he did not personally appear at the hearing, and therefore did not
waive his right to notice.
Charging Party's original charge, as filed on June
8,
2011, provides:
I am a University Professional and Technical Employees (UPTE)
Union agency fee challenger for the 2010/2011 challenge period.
I did not receive notice
of
the time, date and location
of
the
agency fee challenge hearing for the 2010/2011 challenge period.
I emailed my fellow challengers in February, 2011, after the
hearing was held, asking
if
any
of
them had heard
of
when the
hearing would take place. Ms. Sylvia Rayner sent me a letter
shortly after that time, sending me a copy
of
the hearing notice
along with a handwritten note. 	[Attached as an exhibit to the
charge. 4] 	The text of the letter states that a hearing concerning
3 California Code of Civil Procedure section 1282.2(a)(l), provides:
The neutral arbitrator shall appoint a time and place for the
hearing and cause notice thereof to be served personally or by
registered or certified mail on the parties to the arbitration and on
the other arbitrators not less than seven days before the hearing.
Appearance at the h~aring waives the right to notice.
(Emphasis added.)
4 Charging Party provides a letter dated December 28, 2010, from the American
Arbitration Association (AAA) that states in pertinent part:

LA-CO-516-H
October 7, 2011
Page 3
the dispute pertaining to the California Faculty Association, a
union different from UPTE, is scheduled for January 20, 2011.
However, there is a reference to UPTE in another part
of
the
letter.
Mr. Michael Wen, a fellow agency fee challenger, did not receive
notice
of
the hearing. His sworn declaration is included.
[Attached as an exhibit to the charge.]
The American Arbitration Association (AAA) told me that my
name and address is on their mailing list. The AAA provides no
proof that it actually mailed the notice and more importantly
provides no
proof
that I received such. Neither the AAA or
UPTE counsel provide proof
of
service, certified mailing receipt
or any other document to show that the notice was sent and/or
received that meets the requirements
of
California statutes. There
is a law that requires this, I remember it,
can't
find it, but you
ought to know this.
DISCUSSION
Charging Party has failed to correct the following deficiencies in his charge as discussed in the
August 10, 2011 Warning Letter. To reach the merits
of
Charging Party's charge, AAA must
Re: 	74 673 00627
10
UPTE, CW A Local 9119
Fair Share Fees July
1,
2010
-June
30, 2011
vs
Agency Fee Objectors
The California Faculty Assocation has initiated arbitration
proceedings under the [AAA's] Rules for Impartial
Determination
....
[AAA] has appointed Sandra Smith Gangle as impartial
Arbitrator for the above referenced matter.
..
.
In accordance with Rule 6 of [AAA's] Rules ... a hearing is
scheduled as follows:
Date: 	January 20, 2011 	Place: Oakland Airport Hilton
Time: 	10:00 AM. 	1 Hegenberger Road
Before: 	Sandra Smith Gangle 	Oakland, CA 94621

LA-CO-516-H
October
7,
2011
Page 4
the	be a covered entity under HEERA; otherwise, the Board lacks jurisdiction to adjudicate
charge. AAA is neither an employer nor an employee organization under HEERA sections
3562(±)(1) and (2) and 3562(g). 5 Instead, AAA is one
of
two entities authorized by PERE
Regulation 32994(b )(4) to select an impartial decisionmaker to hear agency fee appeals. 6
Under that provision, the selection among those entities shall be made by the exclusive
representative, in this case, Respondent. The selection and payment
of
AAA by Respondent
alone does not qualify AAA as an agent
of
Respondent. 	(American Arbitration Association
(O'Malley) (2003) PERE Decision No. 1573-H.) AAA was not hired to represent employees
with higher education employers regarding terms and conditions
of
employment. Charging
5 HEERA section 3562:
(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. An organization that represents one or more
employees whose principal worksite is located outside the State
of
California is an employee organization only
if
it has filed with
the board and with the employer a statement agreeing, in
consideration
of
obtaining the benefits
of
status as an employee
organization pursuant to this chapter, to submit to the jurisdiction
of
the board. The board shall promulgate the form
of
the
statement.
(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
the 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. 	·
6 PERB Regulation 32994(b)(4) provides:
The impartial decisionmaker shall be selected by the American
Arbitration Association or the California State Mediation Service.
The selection between these entities shall be made by the
exclusive representative.

LA-CO-516-H
October
7,
2011
Page 5
Party provided no other facts to show that the AAA is a covered entity under HEERA.
Additionally, the Board has held in a similar case that formal notice
of
the [agency fee]
arbitration
is
the responsibility
of
the AAA. 	(California School Employees Association,
Chapter 258 (Gerber) (2001) PERB Decision No. 1460.) Under these circumstances, where
the charge relates to alleged misconduct
of
AAA in providing notice, the Board lacks
jurisdiction to address the merits
of
Charging Party's charge and the charge must be dismissed.
In the alternative, PERB will defer to an arbitrator's decision in an agency fee case and dismiss
an unfair practice charge where: (1) the arbitration proceedings were fair and regular, and (2)
the arbitrator's decision is not clearly repugnant to the purposes
of
HEERA. (ABC Federation
of
Teachers,
AFT
Local 2317 (Murray, et al.) (1998) PERB Decision No. 1295.) From the
uncontested facts provided by the parties, it appears that this precise matter concerning notice
of
the agency fee challenge hearing was addressed by the Arbitrator. 	Charging Party does not
include any facts demonstrating that the Arbitrator's decision was anything but fair and regular
or that it was repugnant to the Act. 	Charging Party has failed to provide facts alleging or
demonstrating that PERB should not defer to the Arbitrator's decision in this matter.
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above and in
the August 10, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, Charging Party 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. (Cal. Code Regs, tit.
8,
§ 32635, subd. (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 during a regular PERB business day.
(Cal. Code Regs, tit.
8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB 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
	(Cal. Code
Regs, tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960

LA-CO-516-H
October 7, 2011
Page 6
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. 	(Cal. Code Regs, tit.
8,
§ 32635, subd. (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 Cal. Code Regs., tit.
8,
§ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (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. (Cal. Code Regs, tit. 8, § 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,
M.
SUZA1\TNE
l\1URPHY
General Counsel
Attaclunent
cc: Robert S. Remar

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
August 10, 2011
Werner Witke
10556 Caminita Flores
San Diego, CA 92126
Re: 	Werner Witke
v.
UPTE-CWA Local 9119
U11fair
Practice Charge
l'Jo.
Lil~-C0-516-H
WARNING LETTER
Dear Mr. Witke:
EDMUND
G.
BROWN
JR., Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June
8,
2011. Werner Witke (Witke or Charging Party) alleges that
UPTE-CWA Local 9119 (Union or Respondent) violated the Higher Education Employer-
Employee Relations Act (HEERA or Act) 1 and PERB Regulation 32994(b )(7)2 by failing to
provide Charging Party with proper notice
of
an agency fee arbitration hearing.
Investigation
of
the charge revealed the following relevant information.
FACTUAL BACKGROUND
Charging Party states the following, verbatim:
I am a University Professional and Technical Employees (UPTE)
Union agency fee challenger for the 2010/2011 challenge period.
I did not receive notice
of
the time, date and location
of
the
agency fee challenge hearing for the 2010/2011 challenge period.
I emailed my fellow challengers in February, 2011, after the
hearing was held, asking
if
any
of
them had heard of when the
hearing would take place. Ms. Sylvia Rayner sent me a letter
shortly after that time, sending me a copy of the hearing notice
along with a handwritten note. 	[Attached as an exhibit to the
HEERA is codified at Government Code section 3560 et seq. The text of the HEE
and PERB Regulations may be found at www.perb.ca.gov.
RA
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-516-H
August 10, 2011
Page 2
charge. 3] The text
of
the letter states that a hearing concerning
the dispute pertaining to the California Faculty Association, a
union different from UPTE, is scheduled for January 20, 2011.
However, there is a reference to UPTE in another part
of
the
letter.
Mr. Michael Wen, a fellow agency fee challenger, did not receive
notice
of
the hearing. His sworn declaration is included.
[Attached
as
an exhibit
to
the charge.]
The American Arbitration Association (AAA) told me that my
name and address
is
on their mailing list. The AAA provides no
proof that it actually mailed the notice and more importantly
provides no proof that I received such. Neither the AAA or
UPTE counsel provide proof
of
service, certified mailing receipt
or any other document to show that the notice was sent and/or
received that meets the requirements
of
California statutes. There
is a law that requires this, I remember it, can't find it, but you
ought to know this.
3 Charging Party provides a letter dated December 28, 2010, from the American
Arbitration Association (AAA) that states in pertinent part:
Re: 	74 673 00627
10
UPTE, CWA Local 9119
Fair Share Fees July
1,
2010 - June 30, 2011
vs
Agency Fee Objectors
The California Faculty Assocation has initiated arbitration
proceedings under the [AAA'
s]
Rules for Impartial
Determination
....
[AAA] has appointed Sandra Smith Gangle as impartial
Arbitrator for the above referenced matter
...
.
In accordance with Rule 6 of [AAA's] Rules ... a hearing is
scheduled as follows:
Date: 	January 20, 2011 	Place: Oakland Airport Hilton
Time: 	10:00 A.M. 	1 Hegenberger Road
Before: Sandra Smith Gangle 	Oakland, CA 94621

LA-CO-516-H
August 10, 2011
Page 3
As a remedy, I ask for the following:
l.	
A determination that the decision
of
the arbitrator is not valid
due to failure to provide due process.
2.	
That the Board order a new hearing for all challengers for the
2010/2011 challenge period.
3.	
That the Board order further hearing notices be mailed via
certified mail or other method that requires a signature receipt.
4.	
That future hearing notices be sent a minimum
of
sixty days
prior to the hearing.
Respondent's Position4
This charge should be dismissed for either
of
two independent reasons. First, PERB lacks
jurisdiction over this allegation because the charge complains
of
alleged misconduct
of
the
AAA, which is neither a covered entity under the Act or an agent
of
the Union. Second, PERB
should defer to the Arbitrator's decision and resolution
of
Charging Party's objections
concerning the adequacy
of
AAA's pre-hearing notice.
Upon receipt
of
agency fee challenges for the 2010-2011 agency fee period, the Union
requested that AAA appoint a neutral arbitrator. The Union provided AAA with a mailing list
of
all agency fee challengers. AAA then scheduled a hearing to be held in front
of
Sandra
Gangle on January 20, 2011. On or about December 28, 2010, AAA mailed a notice for the
upcoming hearing to all agency fee challengers on the mailing list. AAA confirmed both
orally and in written response to "counsel's email inquiry, that it provided copies
of
the notice
to each and every individual included on the mailing list, including" Charging Party. The
hearing was conducted on January 20, 2011; no agency fee challengers attended.
Charging Party mailed AAA a letter dated March 28, 2011, in which he raised these same
procedural challenges to the agency fee arbitration proceeding as he is raising in this unfair
practice charge. 	Specifically, Charging Party alleges that he had not received AAA's
December 28, 2010 notice
of
hearing. Also, Charging Party challenges the notice due to a
typographical error referencing the wrong union, despite recognizing that the notice included
the correct AAA matter number and case name, correctly listed the requesting Union, and
correctly provided the date, time and location of the hearing.
4 Absent a factual dispute, a Board Agent may rely on information that does not appear
in the charge, including information provided by the Respondent. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)

LA-CO-516-H
August 10, 2011
Page 4
AAA informed Respondent
of
Charging Party's objections to the hearing (Charging Party did
not provide Respondent with a copy
of
these objections). On April 11, 2011, Respondent filed
a document in opposition to Charging Party's objections, to which Charging Party filed a reply
on April 17, 2011. 	On April 25, 2011, after reviewing these submissions, the Arbitrator issued
a written Interim Award denying Charging Party's procedural challenges and ruling that the
notice
of
the agency fee arbitration proceeding was procedurally proper under the applicable
laws and procedures. Thereafter, the Arbitrator ruled that the Union had properly calculated
and assessed agency fees for the 2010-2011 agency fee period.
DISCUSSION
A. 	Charging Party's Burden
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
B. 	Deficiencies in the Charge
To reach the merits
of
Charging Party's charge, AAA must be a covered entity under HEERA;
otherwise, the Board lacks jurisdiction to adjudicate the charge. AAA is neither an employer
nor an employee organization under HEERA sections 3562(:f)(l) and (2) and 3562(g). 5
5 HEERA section 3562:
(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. An organization that represents one or more
employees whose principal worksite is located outside the State
of California is an employee organization only if it has filed with
the board and with the employer a statement agreeing, in
consideration
of
obtaining the benefits of status as an employee
organization pursuant to this chapter, to submit to the jurisdiction
of the board. The board shall promulgate the form of the
statement.
(2) "Employee organization" shall also include any person that an
employee organization authorizes to act on its behalf. An

LA-CO-516-H
August 10, 2011
Page 5
Instead, AAA is one
of
two entities authorized by PERB Regulation 32994(b)(4)
to
select an
impartial decisionmaker to hear agency fee appeals.6 Under that provision, the selection
among those entities shall be made by the exclusive representative, in this case, Respondent.
The selection and payment
of
AAA by Respondent alone does not qualify AAA
as
an agent
of
Respondent. 	(American Arbitration Association
(0
'Malley) (2003) PERB Decision No. 1573-
H.) AAA was not hired to represent employees with higher education employers regarding
terms and conditions
of
employment. Charging Party provided no other facts to show that the
AAA is a covered entity under HEERA. Additionally, the Board has held in a similar case that
formal notice
of
the [agency fee] arbitration is the responsibility
of
the AAA. (California
School Employees Association, Chapter 258 (Gerber) (2001) PERB Decision No. 1460.)
Under these circumstances, where the charge relates to alleged misconduct
of
AAA in
providing notice, the Board lacks jurisdiction to address the merits
of
Charging Party's charge
and the charge must be dismissed.
In the alternative, PERB will defer to an arbitrator's decision in an agency fee case and dismiss
an unfair practice charge where: (1) the arbitration proceedings were fair and regular, and (2)
the arbitrator's decision is not clearly repugnant to the purposes
of
HEERA. (ABC Federation
of
Teachers,
AFT
Local 2317 (Murray, et al.) (1998) PERB Decision No. 1295.) From the
uncontested facts provided by Respondent, it appears that this precise matter concerning notice
of
the agency fee challenge hearing was addressed by the Arbitrator. 	Charging Party does not
include any facts demonstrating that the Arbitrator's decision was anything but fair and regular
or that it was repugnant to the Act. Charging Party has failed to provide facts alleging or
demonstrating that PERB should not defer to the Arbitrator's decision in this matter.
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 the 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.
6 PERB Regulation 32994(b)(4) provides:
The impartial decisionmaker shall be selected by the American
Arbitration Association or the California State Mediation Service.
The selection between these entities shall be made by the
exclusive representative.

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August 10, 2011
Page 6
C.
	Conclusion
For these reasons the charge,
as
presently written, does not state a prima facie case. 7
If
there are any factual inaccuracies in this letter or additional facts that would correct the
deficiencies explained above, Charging Party may 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 an authorized agent
of
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
an amended charge or withdrawal is not filed on or before August 25,
2011, 8 PERB will dismiss your charge. 	If you have any questions, please call me at the above
telephone number.
Sincerely,
Jonathan Levy
Regional Attorney
JL
7 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
8 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 3213 5.)