San Bernardino Public Employees Association (PERB 2572M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RICHARD C. WHITE, ET AL.,
Charging Parties,
v.
SAN BERNARDINO PUBLIC EMPLOYEES
ASSOCIATION,
Respondent.
Case No. LA-CO-186-M
PERB Decision No. 2572-M
June 21, 2018
Appearances: Richard C. White, Representative, for Charging Parties; Hayes & Ortega by
Dennis J. Hayes and Brian T. Bloodworth, Attorneys, for San Bernardino Public Employees
Association.
Before Banks, Winslow, and Krantz, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on Charging Parties’1 exceptions to a proposed decision (attached) by a
PERB administrative law judge (ALJ). The complaint alleged that the San Bernardino Public
Employees Association (SBPEA) violated the Meyers-Milias-Brown Act (MMBA)2 by:
(1) retaliating against Charging Party White for filing a PERB charge by threatening to initiate
internal disciplinary proceedings; (2) interfering with Charging Parties’ rights to refuse to
1 “Charging Parties” hereafter refers to Richard White (White), Erin Johnson, Elva R.
Medrano (Medrano), Juana Gamez (Gamez), Lisa E. Brenner (Brenner), Lya M. Glasgow,
Pamela Keyes, Rachel Rocha, Roseanne Ulloa (Ulloa), Yesenia Olague (Olague), and Claudia
Ramirez (Ramirez). Two additional charging parties were identified in the complaint:
Kathleen Brennan (Brennan), Imran A. Syed (Syed). Brennan withdrew before the hearing.
Syed withdrew on the first day of the hearing.
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

participate in the activities of SBPEA by stating that they could not resign their memberships;
(3) failing to produce, upon White’s request, SBPEA’s 2013-2014 financial reports, as required
by section 3502.5, subdivision (f); and (4) maintaining organizational security language in its
memorandum of understanding (MOU) with the County of San Bernardino (County) which
failed to inform employees of their right to resign their SBPEA membership.
The ALJ dismissed the first three allegations. He found that White did not suffer an
adverse action, that the evidence at hearing was too vague to establish that agents of SBPEA
made these statements, and that SBPEA provided all of the information required by MMBA
section 3502.5, subdivision (f).
The ALJ did find, however, that the disputed MOU language violated the MMBA. As
a remedy for this violation, he ordered SBPEA to cease and desist interfering with employee
rights, request to renegotiate the unlawful MOU provision, refund any difference between
SBPEA’s membership dues and its agency fees, and post a notice to employees. The ALJ
denied Charging Parties’ request for an award of fees and costs.
Charging Parties except to the ALJ’s dismissal of the allegations concerning retaliation
and the failure to produce financial reports, as well as to various aspects of the remedy and to
the denial of fees and costs. SBPEA filed no exceptions.
The Board itself has reviewed the administrative hearing record in its entirety and
considered Charging Parties’ exceptions and SBPEA’s response thereto in light of applicable
law. The record as a whole supports the ALJ’s factual findings. The Board affirms the ALJ’s
findings of fact, and the ALJ’s conclusions of law pertaining to Charging Parties’ allegations
of retaliation and failure to provide financial reports. The Board adopts only the
aforementioned portions of the proposed decision as the decision of the Board itself, subject to
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the discussion of Charging Parties’ exceptions below. With respect to Charging Parties’ claim
that SBPEA negotiated allegedly unlawful MOU language, the Board reverses the proposed
decision for the reasons explained below.
SUMMARY OF FACTS
This summary includes only the facts relevant to the issues presented by Charging
Parties’ exceptions.
Background
SBPEA is the exclusive representative of about 11,000 employees across several
County bargaining units.3 SBPEA’s governing body is a Board of Directors, elected by the
membership. The Directors in turn select an Executive Board, including the President, Vice
President, and Treasurer. SBPEA maintains bylaws which include a process for removing
Directors, Officers, or members. Generally speaking, SBPEA’s Board of Directors may
suspend or expel a union member after bringing union disciplinary charges against the member
and proving those disciplinary charges at a hearing.
Each of the Charging Parties is employed by the County in a bargaining unit
represented by SBPEA. Brenner, Gamez, Medrano, Olague, Ramirez, Ulloa, and White joined
SBPEA when they were hired. Gamez, Ramirez, and White were subjected to union
disciplinary proceedings in August 2014. Gamez was expelled from SBPEA. Ramirez’s
membership was suspended. White was found “not guilty” of charges brought against him.
Brenner, Medrano, Olague, and Ulloa have remained members in good standing throughout
3 Following the events at issue in this case, SBPEA affiliated with the International
Brotherhood of Teamsters and became known as SBPEA Teamsters, Local 1932.
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their employment. No evidence was presented regarding the membership status of the
remaining Charging Parties.
The MOU’s Organizational Security Provision
Since at least 1989, SBPEA’s MOUs with the County have included some variation of
the following article, titled “MODIFIED AGENCY SHOP”4:
Current employees in these Units who are now SBPEA members
shall remain SBPEA members for the period of this Agreement.
Employees who are hired after this Agreement is approved by the
[County] Board of Supervisors, and who are in a job
classification within the representation unit of SBPEA covered by
this Agreement, shall within the first pay period from the date of
commencement of duties as an employee, become a member of
SBPEA or pay to SBPEA a fee in an amount equal to SBPEA’s
biweekly dues; provided, however, that the Unit member may
authorize payroll deduction for such fee.
[¶ . . . ¶]
The parties agree that the obligations herein are a condition of
continued employment for Unit members. The parties further
agree that the failure of any Unit member covered by the Article
to remain a member in good standing of SBPEA or to pay the
equivalent of SBPEA dues during the term of this Agreement
shall constitute, generally, just and reasonable cause for
termination.
In addition, the MOU contained a general provision providing that any conflict between the
MOU and current and future applicable state and federal law shall be suspended and
superseded by such applicable law.
In August and September 2014, White corresponded with SBPEA General Counsel
Dennis Hayes (Hayes) regarding the MOU’s organizational security provisions. White
asserted that “SBPEA has illegally made membership in good standing a condition of
4 The relevant MOU for this case took effect on June 24, 2014 and was set to expire in
2017.
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continued employment.” Hayes replied on September 4, 2014, stating, “there is no compulsory
membership in SBPEA. You are free to resign from membership at any time without losing
your employment.” Hayes added that if White resigned as a member, he would be required to
pay agency fees to SBPEA.
In winter of 2014, SBPEA included in its newsletter circulated to all represented
employees a “Notice to Fair Share Fee Payers and SBPEA Members.” The notice informed
employees of their right to be fee payers, and “[a]ccording to law,” their right “to become a
‘Fee Payer’ pursuant to the agency shop provisions of the contract governing your
employment.”
White’s Information Request
On August 25, 2014, White requested various documents from SBPEA, including “All
Annual Reports from 2008-2014.” White requested that SBPEA provide the requested
documents no later than September 12, 2014. On September 10, 2014, Hayes responded that
SBPEA maintains multiple types of annual reports, and asked White to specify which type of
report he was seeking. White responded that same day stating that he sought financial reports
that members are entitled to receive.
On September 12, 2014, Hayes sent White a set of documents collectively entitled,
“CONSOLIDATED FINANCIAL STATEMENTS WITH INDEPENDENT AUDITOR’S
REPORT” for the fiscal year ending June 30, 2014.5 These documents included: (1) an
auditor’s report from a private Certified Public Accountant (CPA); (2) a “Consolidated
Statement of Financial Position,” which specified SBPEA’s total assets and liabilities as of
June 30, 2014; and (3) a “Consolidated Statement of Activities and Changes in Net Assets
5 SBPEA’s fiscal year runs from July 1 to June 30 of every year.
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(Deficit)” and a “Consolidated Statement of Cash Flows” describing, among other things, the
level of deficit SBPEA carried at the beginning and end of the 2013-2014 fiscal year as well as
the amount of cash on hand at the beginning and the end of the fiscal year. A stamp or
watermark appears to have been digitally placed across each page of the documents, stating, in
a large, dark font:
Confidential
Financial Records
Provided to
RICHARD C. WHITE
Confidential
At the bottom of each document is stamped, in slightly smaller font:
DO NOT COPY, DISCLOSE
OR DISTRIBUTE
CIVIL PENALTIES APPLY
The text of the stamp does not cover the text of the documents, but in some instances makes
individual letters or numbers difficult to discern.
In a September 12, 2014 letter to Hayes, White described these documents as “a
recently produced financial record that I did not request.” In the same letter, and again on
September 16 and 25, 2014, White reasserted his request for SBPEA’s “Annual Reports” from
2008-2014. SBPEA provided no additional responsive documents.
White’s Original Unfair Practice Charge and SBPEA’s Response
On September 8, 2014, White filed the instant unfair practice charge, along with a
request for injunctive relief.6 Among other things, White alleged in the charge:
I still have my “Welcome to SBPEA” packet from when I started
working for the County, including the blank SBPEA membership
application form I obviously didn’t fill out and submit, yet
6 This filing also included joinder applications from some of the other Charging Parties.
6

throughout my employment SBPEA dues have been deducted
from my pay and SBPEA has treated me like a regular voting
member.
On Friday, September 12, 2014, White received a letter from SBPEA President Paula
Ready (Ready). The letter took issue with White’s assertion that he had not completed and
submitted the SBPEA membership card contained in his County orientation packet when hired.
The letter stated that SBPEA has a record of White’s signed membership application, dated
July 23, 2008. The letter advised White of Ready’s intent to file disciplinary charges against
White with SBPEA’s Board of Directors, which would result in a disciplinary hearing. The
letter further stated: “Just for the record, the charges that I am filing with the Board [of
Directors] are not in response to your filing [an unfair practice charge], which is your right, but
are in response to your perjured and dishonest testimony. No one has the right to commit
perjury.”
White responded to Ready’s letter by e-mail that day. He stated that he had the
protected right to pursue an unfair practice charge with PERB and that he had intentionally
worded the unfair practice charge carefully to avoid being inaccurate. At hearing, White
acknowledged that he had signed the application card produced by SBPEA, but maintained that
he had not signed the card included with his orientation packet. He testified that because he
still possesses a blank card, he assumed he had never completed an application at all.
On Monday, September 15, 2014, Hayes sent White a letter, stating in relevant part:
Please be advised that Paula Ready was unsuccessful in her bid
for re-election to the Board of Directors. After tomorrow she will
no longer be an SBPEA board member or officer. For these
reasons, she has decided not to file charges against you with the
Board of Directors.
No subsequent disciplinary action was taken or invoked against White by SBPEA.
7

DISCUSSION
I. 	Retaliation
Charging Parties except to the ALJ’s dismissal of the complaint’s retaliation allegation.
The complaint alleged that SBPEA retaliated against White when Ready threatened to initiate
internal union disciplinary action against him. The ALJ applied the Board’s test for a prima
facie case of retaliation, which requires evidence that: (1) the employee exercised protected
rights; (2) the respondent had knowledge of the employee’s exercise of those rights; (3) the
respondent took adverse action against the employee; and (4) the respondent took action
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210, pp. 5-6.) The ALJ found that White engaged in protected activity by filing the
original PERB charge, and that SBPEA had knowledge of that activity. But he concluded that
Ready’s threat to initiate disciplinary action was not an adverse action, citing Service
Employees International Union, Local 221 (Gutierrez) (2012) PERB Decision No. 2277-M
(Gutierrez).
In their exceptions, Charging Parties argue that Gutierrez, supra, PERB Decision
No. 2277-M, is factually distinguishable from this case. We disagree. In Gutierrez, an
employee claimed that the union retaliated against him by reporting to the employer that he
had been conducting union business during work time. The employer investigated the matter,
determined that the employee had been on jury duty at the time, and “dropped” the matter
within two working days. The Board applied its longstanding test for determining an adverse
action: “whether a reasonable person under the same circumstances would consider the action
to have an adverse impact on the employee’s employment.” (Id. at p. 7, citing Palo Verde
Unified School District (1988) PERB Decision No. 689.) It then concluded that a reasonable
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person would not have considered the employer’s brief investigation to have an adverse impact
on the employee’s employment. (Id. at pp. 7-8.)
The ALJ’s conclusion that this case was analogous to Gutierrez, supra, PERB Decision
No. 2277-M, rested on two facts: first, that White was informed within one working day that
Ready would not pursue charges against him after all, and second, that White was not required
to take any action to prompt this reversal.
Charging Parties attempt to distinguish Gutierrez, supra, PERB Decision No. 2277-M,
based on the fact that White was only informed that Ready had decided not to pursue charges
against him, not that, as the ALJ concluded, “no charges would be filed or pursued against
him.” (Proposed dec., pp. 25-26.) This distinction is unavailing. The claimed adverse action
was Ready’s letter to White stating that she would be filing disciplinary charges against him.
That action terminated upon a clear statement by SBPEA’s attorney that Ready would not be
doing so. While it was possible that Ready’s successor, or any other SBPEA member, would
still initiate the disciplinary process, that mere possibility is insufficient to demonstrate that a
reasonable person would view Ready’s action as having an ongoing adverse effect on White’s
employment.
Charging Parties also argue that “White was forced to defend himself against
respondent’s charges for the better part of two years to prevent . . . negative employment
consequences.” However, we find no evidence of this in the portions of the record cited by
Charging Parties.7
7 Charging Parties cite their own Exhibit 7, an e-mail from White dated July 13, 2014.
As it predates Ready’s threat to file disciplinary charges, this e-mail provides no evidence that
White faced continuing disciplinary action.
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Having found no adverse action here, we reject Charging Parties’ exception and affirm
the ALJ’s dismissal of the complaint’s retaliation allegation.8
II. 	Failure to Produce Financial Reports
Charging Parties except to the ALJ’s dismissal of the allegation that SBPEA failed to
provide SBPEA’s financial reports. The ALJ dismissed this allegation, determining that the
documents provided to White on September 12, 2014 included everything required by MMBA
section 3502.5, subdivision (f).9
Charging Parties also cite Exhibit 11, a series of communications from White to the
SBPEA Board of Directors, and White’s hearing testimony about these communications. None
of these documents or testimony reflects that SBPEA was pursuing perjury charges against
White after September 15, 2014.
Charging Parties also cite some of SBPEA’s pre-hearing filings and its post-hearing
brief, in which SBPEA reiterated its claim that White’s UPC statements regarding his
membership application were false. By making that claim, SBPEA was not pursuing
disciplinary action against White, but defending Ready’s original accusations. Doing so was
not an adverse action.
8 Charging Parties state in a footnote in their exceptions that “[i]t would also seem that
the discussion and cases cited on page 26 of the proposed decision regarding SBPEA’s other
‘threats of reprisal’ and speech that ‘tends to coerce or interfere with the exercise of protected
rights’ would, if applied to White’s retaliation claim, require a decision against respondent
SBPEA.”
A review of Charging Parties’ post-hearing brief reveals that they did not ask the ALJ
to apply the legal standards governing threats or interference to Ready’s statements. We
decline to consider this untimely raised argument. (Los Angeles County Superior Court (2018)
PERB Decision No. 2566-C, p. 12.)
9 MMBA section 3502.5, subdivision (f) provides:
A recognized employee organization that has agreed to an agency
shop provision or is a party to an agency shop arrangement shall
keep an adequate itemized record of its financial transactions and
shall make available annually, to the public agency with which
the agency shop provision was negotiated, and to the employees
who are members of the organization, within 60 days after the
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In their exceptions, Charging Parties do not dispute the ALJ’s conclusion that the
information was provided, but argue that: (1) the stamp or watermark on the documents
rendered them “virtually unreadable”; and (2) the documents were not compliant with
section 3502.5, subdivision (f), because White was prohibited from sharing or discussing them
with other employees.
Regarding the first argument, we disagree that the records SBPEA provided were
“virtually unreadable.” Charging Parties cite no particular portion of the records that are
illegible. From our general review of the records, we observe that a few individual letters and
numbers are somewhat difficult to discern, but not illegible. Nothing is completely obscured
by the stamps. Therefore, we reject this exception.
As for the argument that the documents did not comply with section 3502.5,
subdivision (f), because White was prohibited from sharing them with other employees, this is
a matter beyond the scope of the complaint. The violation of section 3502.5, subdivision (f),
alleged in the complaint was that SBPEA “failed to produce the requested 2013-2014 financial
report in the form of a balance sheet and an operating statement, certified as to accuracy by its
president and treasurer or corresponding principal officer, or by a certified public accountant.”
This allegation concerned whether the required information was provided to White and/or
whether it was provided in the proper form and/or whether its accuracy was certified by the
appropriate official or other person acting on behalf of SBPEA. It did not place SBPEA on
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 its president and treasurer or corresponding
principal officer, or by a certified public accountant. . . .
11

notice that its restrictions on White’s disclosure of the financial report allegedly violated
section 3502.5, subdivision (f).
We may consider theories of liability other than those alleged in the unfair practice
complaint only if the criteria of the unalleged violation doctrine are met. (City of Roseville
(2016) PERB Decision No. 2505-M, pp. 24-25.) Those criteria are:
(1) adequate notice and opportunity to defend has been provided
to respondent; (2) the acts are intimately related to the subject
matter of the complaint and are part of the same course of
conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-
examined on the issue.
(Claremont Unified School District (2015) PERB Decision No. 2459, p. 3.)
These criteria have not been met in this case. Most fundamentally, Charging Parties
provided no notice that they intended to litigate the legitimacy of the restrictions on White’s
disclosure of the report. The issue is not raised in the original charge or any of the four
amended charges filed in this case. Charging Parties declined to give an opening statement at
hearing, opting instead to “adopt” their pre-hearing “motion for decision on the record” as its
arguments. That motion summarized the relevant allegation in the complaint as being “that
respondent also violated applicable law by refusing to produce required financial records on
request.” White briefly mentioned the stamps during his hearing testimony when Charging
Parties introduced the financial records into evidence, but did not mention that he was unable
to share the records with other employees.
The first direct statement about this issue came in Charging Parties’ post-hearing brief.
However, making an argument for the first time in a post-hearing brief is not sufficient notice
of an unalleged violation. (City of Clovis (2009) PERB Decision No. 2074-M, p. 9.)
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Because the unalleged violation test is not met, we reject Charging Parties’ exception
that SBPEA violated section 3502.5, subdivision (f), by placing restrictions on restricting
White’s use of the financial records. We therefore affirm the ALJ’s dismissal of the allegation
that SBPEA failed to comply with section 3502.5, subdivision (f).
III. 	MOU Language
The complaint alleged that SBPEA violated the MMBA by entering into an MOU with
a maintenance of membership clause that failed to afford bargaining unit members a “window
period” in which to revoke their membership. The ALJ concluded, relying principally on
Office & Professional Employees International Union, Local 29, AFL-CIO & CLC (Fowles)
(2012) PERB Decision No. 2236-M (OPEIU), that SBPEA violated the MMBA “by
maintaining language in the 2014-2017 MOU containing misleading terms about employees’
rights to opt out of membership and become agency fee payers.” (Proposed dec., p. 35.) The
ALJ ordered SBPEA to cease and desist failing to inform employees of their right to opt out of
membership, renegotiate the MOU provision, and refund to Charging Parties any difference
between SBPEA’s membership dues and its agency fees, beginning with the 2014-2015 agency
fee payer year, but denied Charging Parties’ request for attorneys’ fees and costs. Charging
Parties except to aspects of the renegotiation and refund orders, and to the denial of fees and
costs.10
10 The ALJ rejected SBPEA’s argument that the complaint allegation concerning the
MOU language must be dismissed due to Charging Parties’ failure to join the County as an
indispensable party. SBPEA primarily relied on case law interpreting Code of Civil Procedure
section 389. However, the ALJ noted that section 389 requires joinder under certain
circumstances, and permits a court to decide whether to proceed with a suit if an indispensable
party cannot be joined, while joinder under PERB Regulation 32164 is permissive, and has
never been interpreted to permit (or require) dismissal of a complaint for failure to join an
indispensable party. The ALJ also noted that SBPEA could have requested that the County be
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In considering the appropriateness of the remedies ordered by the ALJ, we have
determined that the ALJ erred in finding the MOU language unlawful. Although SBPEA did
not except to the proposed decision on these grounds, the Board has discretion to review
matters not excepted to, including when, as here, the correction is needed to “prevent an
erroneously-decided issue from becoming Board precedent.” (United Teachers Los Angeles
(Raines, et al) (2016) PERB Decision No. 2475, p. 43; State Employees Trades Council United
(Ventura, et al.) (2009) PERB Decision No. 2069-H, pp. 6-7; accord PERB Reg. 32320,
subd. (a)(2) [The Board may “[a]ffirm, modify or reverse the proposed decision, order the
record reopened for the taking of further evidence, or take such other action as it considers
proper”].) Our sua sponte review is particularly appropriate when the erroneously decided
issue is closely intertwined with the exceptions before us. (See J.R. Norton Co. v. Agricultural
Labor Relations Bd. (1987) 192 Cal.App.3d 874, 908.)
The ALJ erred in concluding that an MOU’s organizational security provisions must
give employees unambiguous notice of their rights to opt out of membership and become
agency fee payers. We have never held, and we are not aware of precedent holding, that such
notice must be provided within the MOU itself. At its crux, the proposed decision misreads
OPEIU, supra, PERB Decision No. 2236-M, to mean that an MOU’s union security language
can be found unlawful if it does not adequately explain employees’ rights. However, OPEIU
does not govern MOU language.
In OPEIU, supra, PERB Decision No. 2236-M, the Board considered an appeal from
the dismissal of an unfair practice charge, alleging that a union failed to give notice to a newly
joined as a party, but did not do so. Since we conclude that the parties’ MOU language was
lawful, we need not decide whether the ALJ properly applied PERB Regulation 32164.
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hired employee of her rights, under an agency shop provision, to pay an agency fee rather than
become a member of the union. We adopted the rule of the National Labor Relations Board
(NLRB) regarding a union’s notice obligation under those circumstances. Specifically, we
held that
before a union may seek to obligate newly hired nonmember
employees to pay dues and fees under a union-security clause, it
must inform them of their right to be or remain nonmembers, that
nonmembers have the right to object to paying for union activities
unrelated to the union’s duties as the bargaining representative
and to obtain a reduction in dues and fees for such activities, and
that the notice must be reasonably calculated to apprise
nonmembers of their rights.
(Id. at p. 14.)11
Applying this rule to the factual allegations in the charge, OPEIU, supra, PERB
Decision 2236-M, determined that the charge stated a prima facie case. However, in that
procedural posture, there was no evidence before the Board as to what types of notices, if any,
the respondent union had sent to the charging party. In the absence of a factual record
developed during an evidentiary hearing, we assumed as true charging party’s claims that she
sought to resign her membership at a time and in a manner in which it was allowable to do so,
that the union nonetheless refused this lawful request and affirmatively misrepresented that full
11 Under the federal law governing the private sector, the one-time notice that a union
must provide to newly-hired nonmember employees in an agency shop is commonly referred to
as a General Motors notice, as it derives from NLRB v. General Motors Corp. (1963) 373 U.S.
734 (General Motors). This is distinct from the ongoing annual notice to agency fee payers
required by Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S. 292 (Hudson)
[requiring unions that collect agency fees from public sector employees to provide “an
adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the
amount of the fee before an impartial decisionmaker, and an escrow for the amounts
reasonably in dispute while such challenges are pending”] and Communication Workers of
America v. Beck (1988) 487 U.S. 735 (Beck) [requiring similar notice by private sector
unions]. PERB has codified the Hudson requirements for unions subject to PERB’s
jurisdiction. (PERB Regs. 32990-32997.)
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union membership was a condition of employment, and that the union either did not send
charging party any notice(s) regarding her rights, or, alternatively, did not send her adequate
notice(s). But nothing in the conclusion that these allegations stated a prima facie case implied
that the MOU itself must unambiguously supply notice of the right to remain or become a
nonmember.
On this point, Marquez v. Screen Actors Guild, Inc. (1998) 525 U.S. 33 (Marquez)
provides useful guidance. There, the Supreme Court rejected a challenge to a union security
clause that required “membership in good standing” as a condition for employment. (Id. at
p. 53.) In so doing, the Court noted that the clause tracked the language of section 8(a)(3) of
the National Labor Relations Act (NLRA),12 but did not explain that “membership” had been
judicially interpreted to require less than full membership in the union. Rather, membership
meant only the payment of fees and dues—i.e., membership “whittled down to its financial
core” (General Motors, supra, 373 U.S. 734, 742), and even then, only those fees and dues that
were expended on activities germane to collective bargaining, contract administration, and
grievance handling (Beck, supra, 487 U.S. 735, 745.) The plaintiff in Marquez asserted that
the collective bargaining agreement should have contained language informing her of her right
under General Motors not to join the union and her right under Beck to pay only for
representational activities.
The Supreme Court rejected this argument and concluded that it is reasonable for the
union and the employer to use a term of art (as “membership” had become) in a contract.
(Marquez, supra, 525 U.S. 33, 47.) This was true even though the union security clause
potentially misled bargaining unit employees into believing they must be full union members.
12 The NLRA is codified at 29 U.S.C. section 151 et seq.
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(Ibid.) In reaching this conclusion, the Court found that in a union security clause, just like
any other collectively bargained language, there is no duty to spell out intricacies, and it is
entirely appropriate for a union and employer to use shorthand that may not be understandable
to bargaining unit members. (Id. at p. 48.)
Turning to the instant case, the County and SBPEA agreed to widely-used union
security language stating that a unit member must “remain a member in good standing of
SBPEA or . . . pay the equivalent of SBPEA dues.” Although parsing other portions of the
MOU could lead one to infer that the MOU was unclear or misleading in not providing the
details of how and when existing SBPEA members could adjust their status, this potential for
misleading employees does not, per Marquez, supra, 325 U.S. 33, necessarily make the
MOU’s organizational security provision unlawful.
Moreover, there is no evidence that the MOU was applied to prohibit any employee
from resigning union membership and becoming an agency fee payer. According to
uncontradicted testimony, employees who wanted to resign their union membership were
permitted to do so. SBPEA even informed White directly, before he filed the charge in this
case, that he was not required to remain a union member as a condition of employment.
SBPEA also provided a Hudson notice13 via its newsletter to fee payers and SBPEA members,
13 In relevant part, the Hudson notice explained:
California law permits agreements between SBPEA and local
public agencies that authorize your employer to deduct a fair
share fee from the salary or wages of all SBPEA nonmembers of
the bargaining units for which SBPEA is the exclusive
representative. This is also known as “agency shop”. The fair
share fee is remitted to SBPEA and used to support the
Association’s work on behalf of all bargaining unit employees
with regard to their employment relations with their employer.
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stating that “you may elect to become a ‘Fee Payer’ pursuant to the agency shop provisions of
the [MOU.]”14
In sum, the proposed decision erred in interpreting OPEIU, supra, PERB Decision
No. 2236-M, to require unambiguous notice in the MOU of the right to become an agency fee
payer. For these reasons, we reverse the proposed decision’s conclusion that SBPEA violated
the MMBA and PERB Regulations by entering into the organizational security provisions in
the 2014-2017 MOU.
IV. 	Fees and Costs
Charging Parties also except to the ALJ’s denial of their request for fees and costs. In
light of our dismissal of the entire complaint, we deny this exception.
ORDER
The unfair practice charge and complaint in Case No. LA-CO-186-M are hereby
DISMISSED.
Members Banks and Krantz joined in this Decision.
[¶. . . ¶]
According to law, you may elect to become a “Fee Payer”
pursuant to the agency shop provisions of the contract governing
your employment. As a Fee Payer, you are required to pay that
portion of the service fee that is related to collective bargaining.
This is referred to as the “chargeable portion” of your service fee,
and is defined below.
14 The ALJ found that this was not adequate notice to employees of their right to be
non-members, because it referred back to the allegedly flawed MOU. Because we disagree
that the MOU language was flawed, we also disagree that SBPEA’s Hudson notice was
insufficient.
18

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
RICHARD C. WHITE, ET AL.,
Charging Party,
v.
SAN BERNARDINO PUBLIC EMPLOYEES
ASSOCIATION,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-186-M
PROPOSED DECISION
(August 23, 2016)
Appearances: Richard C. White, Charging Party, and Melissa White, Representative, for all
Charging Parties; Hayes & Ortega, LLP, by Gena B. Burns, Attorney, for Respondent.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
INTRODUCTION
In this case, multiple public employees accuse their exclusive representative of
violating the Meyers-Milias-Brown Act (MMBA)1 by interfering with their right to refuse to
participate in the activities of their employee organization, retaliating against a public
employee for filing a Public Employment Relations Board (PERB) unfair practice charge,
maintaining unlawful organizational security contract language, and failing to produce
requested financial reports. The exclusive representative denies any violation of the MMBA.
PROCEDURAL HISTORY
On September 8, 2014, Richard C. White (White) filed the instant unfair practice
charge with PERB against the San Bernardino Public Employees Association (SBPEA)
asserting multiple claims relating to unlawful organizational security contract language,
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code. PERB Regulations are codified
at California Code of Regulations, title 8, section 31001 et seq.

________________________
SBPEA’s internal membership discipline process, and SBPEA’s allegedly threatening and
intimidating actions. White requested that PERB pursue injunctive relief based on these
claims.2 The unfair practice charge included applications by Kathleen Brennan,
Lisa E. Brenner, Juana S. Gamez, Lya M. Glasgow, Erin Johnson, Pamela Keyes,
Elva R. Medrano, Yesenia Olague, Rachel Rocha, Irman A. Syed, and Roseann Ulloa, to join
as charging parties to the case. The Board denied Injunctive Relief Request No. 669 on or
around September 18, 2014. On December 19, 2014, Claudia Ramirez filed an application to
join as an additional charging party.
White amended his unfair practice charge multiple times during the course of the PERB
Office of the General Counsel’s investigation of his unfair practice charge. SBPEA filed a
response after each filing. In February 2015, White filed 12 notices of appearance, indicating
that he represented all 12 joinder applicants. Starting with his Third Amended Unfair Practice
Charge, White began describing the “Charging Party” in the case as “Richard White, for
himself and as representative for the twelve additional charging parties.” On March 12, 2015,
in an apparent ruling on the joinder applications, the PERB Office of the General Counsel
amended the case caption in all of its correspondence to “Richard C. White et al. v. San
Bernardino Public Employees Association.” Subsequent communications from the General
Counsel’s office referred to the group of 13 as “Charging Parties.” There was no record of any
objection from SBPEA. Shortly afterwards, it began using the term “Charging Parties” in its
own filings.
On September 12, 2015, Charging Parties requested to withdraw the claims that SBPEA
initiated unlawful union disciplinary proceedings against Charging Parties, intimidated
2 PERB assigned the request as Injunctive Relief Request No. 669.
2

Charging Parties by postings on its website, failed to inform Charging Parties on their
respective hire dates that they did not have to join SBPEA, failed to send agency fee payer
notices from 2010 through 2013, violated SBPEA’s bylaws and the Corporations Code, and
improperly tallied votes for a tentative agreement. Then, on September 14, 2015, Charging
Parties filed their Fourth Amended Unfair Practice Charge, in support of the remaining claims.
The PERB Office of the General Counsel granted the partial withdrawal request on
September 14, 2015.
On November 4, 2015, the Office of the General Counsel issued a complaint alleging
that SBPEA violated the MMBA and PERB Regulations by entering into a Memorandum of
Understanding (MOU) containing language that interfered with Charging Parties’ right to
refuse to participate in union activities, threatening to suspend or expel Charging Party White
from SBPEA membership because he filed the instant unfair practice charge, falsely informing
Charging Parties that membership in SBPEA was required unless they had a “provable
religious objection,” and failing to produce a requested certified financial report for its 2013-
2014 fiscal year. The parties participated in an informal settlement conference on
November 19, 2015, but the case did not settle. Thereafter, the case was set for formal
hearing. SBPEA filed its answer to the PERB complaint on November 24, 2015.
On January 14, 2016, Charging Parties filed a request to amend the PERB complaint
with new allegations. On January 15, 2016, the assigned Administrative Law Judge (ALJ)
denied the request, stating that Charging Parties retained the right to file a new unfair practice
charge.
On January 20, 2016, Charging Parties filed a motion for the case to be decided on the
record, pursuant to PERB Regulation 32207. SBPEA opposed. At the same time, SBPEA
3

________________________
filed a motion to dismiss the case contending that Charging Parties’ employer is an
indispensable party to the case and was not joined as a party. On February 11, 2016, the ALJ
denied both motions. It gave the parties leave, until February 29, 2016, to join the County as a
party, under PERB Regulation 32164, subdivision (d). Neither party made such a request.
On February 29, 2016, Brennan requested to withdraw as a Charging Party in the case.
The ALJ granted the request. 	On March 7, 2016, SBPEA filed a motion in limine to limit
evidence of any confidential communications between SBPEA’s leadership and Dennis Hayes,
its general counsel, asserting its attorney-client privilege.
The ALJ convened the formal hearing on March 14 and 15, 2016. On the first day of
hearing, the Charging Parties Brenner, Gamez, Medrano, Olague, Ramirez, Ulloa, and
(Richard) White submitted a notice of appearance form designating Melissa White as their
representative. Charging Party Syed appeared and requested to be withdrawn as a Charging
Party.3 The ALJ granted the request. Regarding the motion in limine, the parties agreed to
exclude any evidence of privileged communications. During Charging Parties’ case-in-chief,
Charging Parties raised the issue of amending the complaint to reinstate their withdrawn claim
that certain Charging Parties were improperly expelled from membership. No motion was
ultimately made during the hearing. The ALJ invited the parties to brief the issue of the
appropriateness of the amendment, but neither did so. As such, such an amendment will not be
considered.
The parties filed closing briefs on April 26, 2016. At that point, the record was closed
and the matter was considered submitted for decision.
3 At this point the Charging Parties in the case are Brenner, Gamez, Glasgow, Johnson,
Keyes, Medrano, Olague, Ramirez, Rocha, Ulloa, and White.
4

________________________
FINDINGS OF FACT
The Parties
Charging Parties are all employed by the County of San Bernardino (County)4 and are
therefore public employees within the meaning of MMBA section 3501, subdivision (d). All
Charging Parties are part of bargaining units represented by SBPEA, a recognized employee
organization within the meaning of MMBA section 3501, subdivision (b), and an exclusive
representative within the meaning of PERB Regulation 32016, subdivision (a). SBPEA
represents multiple County bargaining units, totaling around 11,000 members. SBPEA has
represented County employees for more than 20 years. Sometime after the events at issue in
this case, SBPEA affiliated with the Teamsters and became known as SBPEA Teamsters,
Local 1932.
The Structure of SBPEA
SBPEA’s governing body is a Board of Directors, elected by the membership. The
Directors, in turn select an Executive Board, including the President, Vice President, and
Treasurer. SBPEA maintains bylaws for certain administrative procedures. Those procedures
include the process for removing Directors, Officers, or members. Generally speaking,
SBPEA’s Board of Directors may suspend or expel a union member after bringing formal
internal union disciplinary charges against the member and proving those disciplinary charges
at an administrative hearing.
Charging Parties
4 The County is a public agency within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a).
5

Brenner has been employed by the County since 2003 as a social services practitioner.
She has been an SBPEA member since she was hired.
Gamez has been employed by the County since 2006 as a social services aide, bilingual.
Gamez became a member when she was hired. In or around August 2014, SBPEA expelled
her from membership, pursuant to its internal member discipline process. She rejoined as a
member after SBPEA affiliated with Teamsters.
Medrano was hired by the County in 1992, as an employment services specialist. She
became a member when she was hired. She retired in 2015.
Olague has been employed by the County since 2005 as an employment services
specialist. She became a member when she was hired.
Ramirez has been employed by the County since 1999. She became an SBPEA
member when she was hired. In or around August 2014, SBPEA suspended Ramirez’s
membership privileges after an internal union discipline proceeding. It is unclear when the
suspension was/will be lifted.
Ulloa has been employed by the County since 1995. She is an eligibility worker II.
She became an SBPEA member when she was hired.
White has been employed by the County since 2008. He is a System Support Analyst
III. He became an SBPEA member on or around July 23, 2008. White was subject to an
internal union discipline proceeding, but was found “not guilty” of any of the disciplinary
charges brought by the Board of Directors. As such, he has remained an SBPEA member in
good standing consistently throughout his employment with the County.
6

No evidence was presented at hearing about the hire date or membership status of
Charging Parties Glasgow, Johnson, Keyes, or Rocha. None of them testified and no witnesses
testified specifically about them.
SBPEA’s Spring 2014 Informational Meetings
In or around Spring 2014, SBPEA and the County reached a tentative agreement (TA)
for what would eventually become the 2014-2017 MOU. Thereafter, SBPEA began hosting
informational meetings at its headquarters building to discuss the TA with represented
employees. After hearing a colleague describe the TA as “terrible,” White decided to attend
one of the informational meetings. He had not been active in SBPEA affairs up until that
point. White said that he attended almost every meeting since then. Attendance at the
meetings was high, and it was not unusual for the SBPEA meeting hall to be filled to capacity
with others congregating outside in the parking lot. There were up to 100 people in the outside
area at times. Some of those attending were supporters and organizers from a pending effort to
decertify SBPEA.
According to SBPEA General Manager Deidre Rodriguez, SBPEA scheduled the
meetings to discuss the TA, and made members of the negotiating team available to answer
members’ questions about negotiations, in advance of a planned TA ratification vote.
Members of the Board of Directors also attended. Rodriguez said that she remained inside the
meeting hall at all times and there was no evidence that other SBPEA representatives
addressed the attendees outside the hall. Rodriguez testified that some attendees raised
questions that she considered unrelated to the TA. She said some audience members asked
“how do we get out of membership.” Others asked about the decertification. According to
Rodriguez, SBPEA representatives tried not to field those types of questions, trying instead to
7

limit the inquiries to the TA itself, stating words to the effect of “that’s not why we’re here.”
But Rodriguez admitted that “we didn’t do the best job” at handling those inquiries. She
described the meetings as “very disruptive, very hostile.”
White testified that attendees stated that they “wanted their dues to go to charity or they
wanted to resign membership or asked ‘how could I get out of SBPEA?’” According to White,
SBPEA representatives responded to the various questions posed by the attendees by stating,
“it’s governed by the MOU. The only thing you have to get out is the religious objection and
that’s not what we’re here to talk about.” White did not identify any of the speakers he heard.
Nor was White specific about which response was made to which of the questions.
Brenner also attended SBPEA meetings where attendees had questions about how “they
could get out of membership.” She said that attendees were told that the only way out of
membership was to claim a religious exemption. She could not recall who made that statement
and later acknowledged that she heard it while outside the meeting hall. Brenner herself did
not ask about membership during the meetings. Olague also attended similar meetings and did
ask about “not wanting to be part of the Association.” Olague was told that it was “not in [her]
benefit and was told that there was no way out.” Like Brenner, Olague could not recall who
made the statement. Ramirez said that she did not recall any SBPEA representative ever
telling her that the only way out of membership was to assert a religious objection. Instead,
she said that other members told her that, outside the union meeting hall.
Gamez said that she asked SBPEA business representative Natalie Harts about opting
out of membership and was told that she could pay “maybe a little less than the regular dues,”
but that she would lose voting rights and other privileges afforded to members. According to
Gamez, Harts also said that unit members had the further option of having their mandatory
8

dues or fees be designated to a non-profit or religious group instead of SBPEA. It was unclear
when or where this conversation occurred. Harts did not testify. Ulloa did not testify about
attending any SBPEA meetings, but she said around a year before her March 2016 testimony,
she called SBPEA’s office and asked about becoming a fee payer. According to Ulloa, the
unidentified person who answered the telephone said that she could opt out of membership and
become a fee payer, but it would reduce the amount she owed to SBPEA by very little.
Medrano also did not testify specifically about attending any meetings over the TA.
She did say that, sometime after the TA was ratified, she called SBPEA and spoke with either
Rodriguez or Harts, who told her “as a part of the MOU, you cannot ask not to be a member.”
Rodriguez disputes this.
Brennan testified that she attended a meeting sometime in Spring 2014, and heard then-
SBPEA president Paula Ready say that “the only way to get out was for a religious objection.”
According to Brennan, Rodriguez affirmed Ready’s comment. Rodriguez disputes that either
she or Ready said anything about the religious objection exception. Ready did not testify.
The Memorandum of Understanding
SBPEA’s members eventually ratified the 2014 TA and the 2014-2017 MOU became
effective on June 24, 2014. That MOU contains a “MODIFIED AGENCY SHOP” article,
stating:
Current employees in these Units who are now SBPEA members
shall remain SBPEA members for the period of this Agreement.
Employees who are hired after this Agreement is approved by the
[County] Board of Supervisors, and who are in a job
classification within the representation unit of SBPEA covered by
this Agreement, shall within the first pay period from the date of
commencement of duties as an employee, become a member of
SBPEA or pay to SBPEA a fee in an amount equal to SBPEA’s
biweekly dues; provided however, that the unit member may
authorize payroll deduction for such fee.
9

[¶ . . . ¶]
The parties agree that the obligations herein are a condition of
continued employment for unit members. The parties further
agree that the failure of any unit member covered by the Article
to remain a member in good standing of SBPEA or to pay the
equivalent of SBPEA dues during the term of this Agreement
shall constitute, generally, just and reasonable cause for
termination.
Some version of this “MODIFIED AGENCY SHOP,” with minor, technical variations,
is present in all of SBPEA’s MOUs with the County, dating back to at least the 1989-1991
MOU.
The article also includes an exception from being a union member or a fee payer if “the
unit member is an actual verified member of a bona fide religion, body, or sect which has
historically held conscientious objections to joining or financially supporting employee
organizations[.]” In those instances, the employees’ fees are donated to a charitable fund.
Finally, the article includes an “indemnity and liability obligation” clause, stating in
relevant part:
SBPEA shall defend, indemnify and hold harmless the County of
San Bernardino and its Officers and employees from any claim,
loss, liability, cause of action or administrative proceeding arising
out of the operation of this Article.
The 2014-2017 MOU also contains a “PROVISIONS OF LAW” article, stating:
It is understood and agreed that this Agreement is subject to all
current and future applicable Federal and State laws and
regulations and the current provisions of the Charter of the
County of San Bernardino. If any part or provision of this
Agreement is in conflict with such applicable provisions of those
Federal, State, or County enactments or is otherwise held to be
invalid or unenforceable by any court of competent jurisdiction,
such part or provision shall be suspended and superseded by such
applicable law or regulations, and the remainder of this
Agreement shall not be affected thereby. If any part or provision
10

of this Agreement is suspended or superseded, the parties agree to
reopen negotiations regarding the suspended or superseded part
or provision with the understanding that total compensation to
employees under this Agreement shall not be reduced or
increased as a result of this Article. The parties hereto agree to
refrain from initiating any legal action or taking individual or
collective action that would invalidate the Articles of this
Agreement.
White’s Correspondence Concerning Compulsory Union Membership
On or around August 21, 2014, White directly accused SBPEA’s Board of Directors of,
among other things, having a “compulsory” union membership. Hayes replied to White’s
letter, stating generally that “[a]lthough employees cannot be required to join a union,
employees can be required to pay an agency fee that is equal to the amount of dues paid by
members.” White responded, stating that “SBPEA has illegally made membership in good
standing a condition of continued employment.” Hayes replied on September 4, 2014, stating
“Mr. White, there is no compulsory membership in SBPEA. You are free to resign your
membership at any time without losing your employment.” Hayes further states that, if White
resigns as a member, then he will be required to pay agency fees to SBPEA.
White’s Information Request
On August 25, 2014, White requested various documents from SBPEA including, as
relevant to this case, “All Annual Reports from 2008-2014.” White requested that SBPEA
provide the requested documents no later than September 12, 2014. On September 10, 2014,
Hayes, responded, stating that SBPEA maintains multiple types of annual reports and that it
was unsure which type of report White was seeking. White responded that same day stating
that he sought financial reports that members are entitled to receive.
On September 12, 2014, Hayes, sent White a set of documents collectively entitled,
“Consolidated Financial Statements With Independent Auditor’s Report” for the fiscal year
11

________________________
ending June 30, 2014.5 Hayes’s response included an auditor’s report from a private Certified
Public Accountant (CPA), along with other documents. At hearing, Rodriguez confirmed that
SBPEA hired the CPA to audit its financial records and attest to their accuracy. She said that
the report was the result of that audit.
Included in the attachments was a “Consolidated Statement of Financial Position,”
which specified SBPEA’s total assets and liabilities on hand as of June 30, 2014. The
documents also included a “Consolidated Statement of Activities and Changes in Net Assets
(Deficit)” and a “Consolidated Statement of Cash Flows” describing, among other things, the
level of deficit SBPEA carried at the beginning and the end of the 2013-2014 fiscal year as
well as the amount in cash on hand and the beginning and the end of the fiscal year. None of
the provided documents were signed.6 White reasserted his request for SBPEA’s “Annual
Reports” on September 12, 16, and 25, 2014, but SBPEA provided no additional responsive
documents.
Ready’s September 12, 2014 Letter to White
On the afternoon of Friday, September 12, 2014, White received a letter from Ready
about claims in the instant unfair practice charge. The letter took issue with White’s assertion
that he did not fill out and submit the SBPEA membership card contained in his County
orientation packet when he was first hired.7 The letter states that SBPEA has a record of
5 SBPEA’s fiscal year runs from July 1 to June 30 of every year.
6 At hearing, SBPEA submitted as Respondent’s Exhibit 17, a report substantially
similar to what was enclosed with Hayes’s September 12, 2014 letter, with the exceptions that
the documents contained no watermark and appeared to have been signed by the accounting
firm. There is no evidence that the signed version of the documents were ever given to White.
7 The letter is referring to paragraph 16 of White’s original charge stating in relevant
part:
12

________________________
White’s signed membership application dated July 23, 2008. The letter further states that
Ready intended to pursue disciplinary charges against White with SBPEA’s Board of
Directors, and would request that the Directors conduct a disciplinary hearing. The letter
further states: “Just for the record, the charges that I am filing with the Board [of Directors]
are not in response to your filing [an unfair practice charge], which is your right, but are in
response to your perjured and dishonest testimony. No one has the right to commit perjury.”
White responded to Ready’s letter by e-mail that day. He stated that he had the
protected right to pursue an unfair practice charge with PERB and that he intentionally worded
the unfair practice charge carefully to avoid being inaccurate. At hearing, White
acknowledged that he signed the application card produced by SBPEA, but maintained that he
did not sign the card included with his orientation packet. He testified that because he still
possesses a blank card, he assumed that he never filled out an application at all.
On Monday, September 15, 2014, Hayes sent White a letter, stating in relevant part:
Please be advised that Paula Ready was unsuccessful in her bid
for re-election to the Board of Directors. After tomorrow she will
no longer be an SBPEA board member or officer. For these
reasons, she has decided not to file charges against you with the
Board of Directors.
No subsequent disciplinary action was taken or invoked against White by SBPEA.
SBPEA’s Annual Notice About its Agency Shop
I still have my “Welcome to SBPEA” packet from when I started
working for the County, including the blank SBPEA membership
application form I obviously didn’t fill out and submit, yet
throughout my employment SBPEA dues have been deducted
from my pay and SBPEA has treated me like a voting member.
13

________________________
SBPEA has a policy of producing and distributing a newsletter to represented
employees called “The Voice.” One part of that publication is a notice about its agency shop
that is designed to comply with the notice requirements established under Chicago Teachers
Union v. Hudson (1986) 475 U.S. 292 (Hudson) and, presumably, PERB Regulation 32992.8
SBPEA acknowledges that it did not send out this notice consistently every year. Hayes
testified that no notice went out in the 2010-2011 and 2011-2012 Fiscal Years because it had
not performed the required audit and could not produce the required financial report. Hayes
said that its failure to send out the notice in the past coincided with SBPEA’s investigation into
of its former general managers for financial misconduct. SBPEA’s current general manager,
Rodriguez, generally corroborated this testimony, but said that it was possible that notices were
not issued for more than two years.
The Winter 2014 issue of the Voice contained SBPEA’s notice for the 2014-2015 fiscal
year. The notice was entitled “Notice to Fair Share Fee Payers and SBPEA Members.” The
notice states that employees have the right to be fee payers, but that SBPEA has set its agency
fee amount to be equal to its regular membership dues, effective November 1, 2014. The
notice also states that “According to law, you may elect to become a ‘Fee Payer’ pursuant to
the agency shop provisions of the contract governing your employment.”
8 Both the Hudson decision and PERB Regulation 32992, require unions to notify non-
members subject to an agency fee requirement annually about the amount in member dues and
agency fees, the procedure for objecting to and challenging the calculation of fees. The notice
must also include a financial report specifying how the agency fee amount was calculated.
14

________________________
ISSUES
1. 	Does the MODIFIED AGENCY SHOP article in the 2014-2017 MOU interfere
with Charging Parties’ rights under MMBA section 3502?
2. 	Did SBPEA unlawfully retaliate against White for his filing unfair practice
charge(s)?
3. 	Did SBPEA interfere with Charging Parties’ rights under MMBA section 3502
by informing them that the only way out of union membership was to assert a valid religious
objection?
4. 	Did SBPEA violate MMBA section 3502.5, subdivision (f), by failing to
provide White required financial reports?
CONCLUSIONS OF LAW
1. 	MOU Language Claim
The PERB complaint alleges that SBPEA violated the MMBA by maintaining MOU
language that interferes with Charging Parties’ right to refuse to join and/or participate in the
activities of employee organizations. SBPEA initially asserts that this claim is subject to
dismissal for failure to join the County as an indispensable party.9
a. 	Failure to Join an Indispensable Party
SBPEA contends that any claim that SBPEA, through the MOU, violated the MMBA
should be dismissed due to Charging Parties’ failure to join the County as an indispensable
9 SBPEA actually contends that the complaint in its entirety should be dismissed for
failing to join the County, but it asserts no colorable arguments as to how the County is an
indispensable party to White’s retaliation claim against SBPEA, Charging Parties’ claims of
unlawful statements made by SBPEA representatives during union meetings, or White’s claim
that SBPEA failed to produce required financial reports. SBPEA’s assertion that the County’s
absence as a party requires these claims to be dismissed is rejected as lacking any basis.
15

party. In support, SBPEA relies primarily on Deltakeeper, et al. v. Oakdale Irrigation District,
et al. (2001) 94 Cal.App.4th 1092, decided under Code of Civil Procedure section 389.
Subdivision (a) of that section requires joinder of a person subject to the court’s jurisdiction if
the person’s presence is required to give the parties complete relief, or if the person’s absence
would harm his or her ability to protect interests related to the case or would create the
substantial risk of incurring multiple or inconsistent obligations. Subdivision (b) gives courts
the discretion to either proceed with the litigation or dismiss the action without prejudice if the
person fitting the description in subdivision (a) cannot be made a party.
PERB’s own joinder rules for unfair practice hearings are contained in PERB
Regulation 32164. Subdivision (d) is similar to Code of Civil Procedure section 389,
subdivision (a), with the notable exception that joinder of the person (referred to as an
employer, employee organization, or individual in PERB’s Regulations), is permissive, not
required. There is no analog in PERB’s regulations for dismissal procedures in Code of Civil
Procedure section 389, subdivision (b). SBPEA cites no authority suggesting that PERB has
ever adopted those dismissal procedures or has ever dismissed an unfair practice charge for
failing to join a party. In the absence of such authority, SBPEA’s dismissal argument is
rejected.
Even if Code of Civil Procedure section 389, subdivision (b), did apply here, dismissal
would not be appropriate for at least two reasons. First, the County is not an entity who could
not have been made a party in this case. To the contrary, by all accounts, the County is a
public agency within the meaning of MMBA section 3501, subdivision (c), and is accordingly
subject to PERB’s jurisdiction. Both parties had the opportunity to pursue joinder and neither
of the parties took action. Second, equitable reasons militate against dismissal here. Code of
16

________________________
Civil Procedure section 389, subdivision (b), identifies four factors courts should consider
when exercising their discretion to dismiss a case. Those factors are to what extent a judgment
in the case in the person’s absence would prejudice the parties or non-joined person, to what
extent the court could mitigate that prejudice, to what extent a judgment in the case would be
adequate without the non-joined person, and whether the plaintiff will have an adequate
remedy without the non-joined person.
These factors do no support dismissal. SBPEA is correct that the County is a signatory
to the MOU whose language is at issue in one of the claims in this case. However, the Board
has previously described the employer’s role in a negotiated organizational security provisions
as merely “peripheral.” (See San Ramon Valley Unified School District (1989) PERB Decision
No. 751, pp. 11-12.)10 There is no evidence here that the MODIFIED AGENCY SHOP article
was designed to or does in practice address a significant County interest. Moreover, the
County’s role in this litigation is substantially mitigated by the fact that SBPEA has agreed to
indemnify the County from any liability arising out the agency shop provision. Thus, even if
agreeing to the MODIFIED AGENCY SHOP article in the MOU exposes the County to any
liability, SBPEA has a duty to defend the County against those claims. In addition, the
PROVISIONS OF LAW article allows for the remainder of the MOU to continue in legal
effect even if one of its provisions was found to be invalid. It also provides that SBPEA and
the County will reopen negotiations over any MOU provision suspended or superseded by law.
These provisions, working together, adequately protect any limited interest that the County has
10 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, p. 616;
Santa Clara Valley Water District (2013) PERB Decision No. 2349-M (Santa Clara VWD),
p. 13, fn. 4.)
17

in the MODIFIED AGENCY SHOP article. Charging Parties have not asked for a remedy that
can only be granted with the County’s participation. SBPEA has not asserted or demonstrated
that relief in this case is not possible without the County. For all these reasons, dismissal is not
appropriate.
b. 	Interference Claim
MMBA section 3506, makes it unlawful for either a public agency or an employee
organization to interfere with employees in their exercise of protected rights. The test for
whether a respondent has interfered with employee rights under the MMBA does not require
that unlawful motive be established, only that at least slight harm to employee rights results
from the conduct. (City & County of San Francisco (2011) PERB Decision No. 2206-M,
warning letter, p. 3.) The courts have described the standard as follows:
(1) That employees were engaged in protected activity; (2) that
the employer engaged in conduct which tends to interfere with,
restrain or coerce employees in the exercise of those activities,
and (3) that employer’s conduct was not justified by legitimate
business reasons.
(Public Employees Assn. of Tulare County, Inc. v. Board of Supervisors of Tulare County
(1985) 167 Cal.App.3d 797 (Tulare County), p. 807; Carmichael Recreation & Park District
(2008) PERB Decision No. 1953-M, citing Carlsbad Unified School District (1979) PERB
Decision No. 89, other citations omitted.)
If the charging party establishes that the employer’s conduct interferes or tends to
interfere with the exercise of protected rights, then the burden shifts to the employer to produce
a legitimate reason for its conduct. (Stanislaus Consolidated Fire Protection District (2012)
PERB Decision No. 2231-M, p. 22.) PERB applies these same standards to claims of alleged
interference by employee organizations. (Service Employees International Union, Local 221
18

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(Kroopkin) (2009) PERB Decision No. 2006-M, dismissal ltr., p. 5, citing Tulare County,
supra, 167 Cal.App.3d 797, p. 807; see also West Contra Costa Healthcare District (2010)
PERB Decision No. 2145-M, p. 23.)
A violation under these standards may be found only where the claimed rights are
protected under the MMBA. (County of Merced (2014) PERB Decision No. 2361-M, adopted
proposed decision, p. 18.) MMBA section 3502 states:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
(Emphasis supplied.)
Additionally, MMBA section 3502.5, subdivision (a), allows exclusive representatives
and employers to agree to an “agency shop” which requires employees, “as a condition of
continued employment, either to join the recognized employee organization or to pay the
organization a service fee in an amount not to exceed the standard initiation fee, periodic dues,
and general assessments of the organization.” The Board has found that the language in
section 3502.5, allows for a modified agency shop, in which only future hires are compelled to
either join the union or pay agency fees. (Orange County Water District (2015) PERB
Decision No. 2454-M, pp. 14-15.)11
11 At the time this proposed decision issued, Orange County Water District, was subject
to judicial review pursuant to MMBA section 3509.5. Nevertheless, the decision remains the
best discussion of the lawfulness of modified agency shop provisions under MMBA section
3502.5. (See Orange County Water Dist. v. PERB (G052725, app. pending).)
19

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A negotiated maintenance of membership provision is a similar, but not identical,
organizational security mechanism, which obligates employees who have already elected to
join an employee organization to maintain their membership for the duration of the union’s
contract with the employer. (See e.g., Kern High School District (1999) PERB Decision
No. 1319, pp. 4-5; El Camino Hospital District (2009) PERB Decision No. 2033-M
(El Camino Hospital), pp. 24-25.) Collective bargaining statutes that codify the practice of
negotiated maintenance of membership provisions also include a window period from which
members may exercise their protected right to terminate their union membership. (See Gov.
Code, §§ 3513, subd. (i), 3540.1, subd. (i)(1).)12 The MMBA does not expressly allow or
disallow a negotiated maintenance of membership provision. Nor has the Board squarely
addressed the lawfulness of such a provision under the MMBA. However, in El Camino
Hospital, supra, PERB Decision No. 2033-M, the Board found that a union’s negotiated
maintenance of membership provision (with an opt-out window period) was not incompatible
with the union’s goal of pursuing an agency fee election under MMBA, section 3502.5,
subdivision (b). (Id. at p. 25.)
A third type of organizational security is the “union shop,” which makes union
membership a requirement for continued employment. (Developing Labor Law (6th Ed. 2012)
Ch. 26.I.C.) Union shops are prohibited under MMBA section 3502 because they violate
employees’ right to refuse to join or participate in the activities of employee organizations.
(City of Hayward v. United Public Employees, Local 390 (1976) 54 Cal.App.3d 761 (City of
12 Government Code section 3513, subdivision (i) is part of the Ralph C. Dills Act,
codified at Government Code, section 3512 et seq. Government Code section 3540.1,
subdivision (i)(1), is part of the Educational Employment Relations Act (EERA), codified at
Government Code 3540, et seq.
20

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Hayward), p. 764; Office & Professional Employees International Union, Local 29, AFL-CIO
& CLC (Fowles) (2012) PERB Decision No. 2236-M, p. 10 (OPEIU).)13
In OPEIU, supra, PERB Decision No. 2236-M, the respondent union was alleged to
have sent the charging party one letter stating that she was required to be “a member in good
standing,” and another letter stating that she had to be a “member/fee payer in good standing.”
(Id. at p. 5.) The Board found that unions who enter into an agency shop arrangement must
provide potential fee payers with enough information to make an intelligent objection before
collecting any agency fees. (Id. at p. 13, citing San Ramon Valley Education Association,
CTA/NEA (Abbot and Cameron) (1990) PERB Decision No. 802.) Then, taking guidance from
federal precedent, the Board further held that unions must also communicate to represented
employees that they have the right to be non-members and that non-members may object to
paying any fees not associated with the union’s duty as a bargaining representative. (Id. at
p. 14, citing Lamons Gasket Co. (2011) 357 NLRB 739; California Saw and Knife Works
(1995) 320 NLRB 224, Leland Stanford Junior University (1977) 232 NLRB 326.)
In this case, the first sentence of the “MODIFIED AGENCY SHOP” article in the
2014-2017 MOU has the appearances of a maintenance of membership requirement, stating
that current dues paying SBPEA members “shall remain SBPEA members for the period of
this Agreement.” The MOU contains no opt-out period. SBPEA seems to acknowledge this,
but states in its closing brief, “the maintenance of membership language is not, nor has it ever
been operative.” (Closing Brief, § IV(A)(ii), p. 9.) SBPEA General Manager Rodriguez and
General Counsel Hayes testified that, in practice, SBPEA maintains an agency shop where all
13 City of Hayward, was decided before the MMBA was amended to expressly allow
agency shop arrangements. (OPEIU, p. 10.)
21

Charging Parties have the option of being dues paying members or agency fee payers. In
response to letters from White accusing SBPEA of compulsory union membership, SBPEA
General Counsel Hayes informed White that he could resign his membership at any time and
become a fee payer. Ulloa also testified that, in or around March 2015, someone from SBPEA
informed her that she could opt out of membership and be a fee payer. Gamez similarly
testified that SBPEA business representative Harts told her that she could “pay maybe a little
less than the regular dues,” but that she would lose certain member privileges such as voting
rights.
SBPEA does not violate employees MMBA section 3502 rights merely by declining to
enforce the maintenance of membership provision in the 2014-2017 MOU. However, by
retaining that provision in the MOU without clearly informing represented employees that the
language is not operative, SBPEA, in effect, misled employees into thinking that continued
membership is required. SBPEA argues that it informs employees of right to be non-members
through its annual Hudson notice. But that notice only points members back to the same
problematic language in the MOU, stating that the right to be non-members is dictated by “the
agency shop provisions in the contract governing your employment.” Rather, it is only when
the members themselves, such as Gamez, Ulloa, and White, inquired that SBPEA stated that
there was a right to opt out. Even then, no one from SBPEA explained that it was not
enforcing the maintenance of membership language in the MOU, leaving employees conflicted
over whether to believe representations from SBPEA representatives or the plain terms of the
MOU. In addition, SBPEA representatives intentionally avoided answering questions about
membership requirements/obligations during informational meetings regarding the 2014-2017
MOU. As in OPEIU, supra, PERB Decision No. 2236-M, SBPEA in this case failed to
22

adequately inform represented employees, including Charging Parties, of their right to
withdraw their membership.
Regarding SBPEA’s agency fee requirements, SBPEA and the County established a
modified agency shop in the 1989-1991 MOU. Employees hired after that agreement took
effect have the option of being members or agency fee payers. The 2014-2017 MOU contains
similar language stating that “[e]mployees hired after this Agreement is approved by the
[County’s] Board of Supervisors,” may become fee payers. However, nothing in the current
MOU informs employees that the right to be a fee payer extends to all employees hired after
the 1989-1991 MOU took effect. On its face, the language in the 2014-2017 MOU indicates
that only those hired after the current MOU’s effective date (June 23, 2014) may elect to be fee
payers. This problem is, of course, exacerbated by the fact that the 2014-2017 MOU also
contains maintenance of membership language, suggesting that continued membership is
required for all others.
SBPEA contends that it is clear from the bargaining history of the MODIFIED
AGENCY SHOP article that Charging Parties have the right to be fee payers. But, SBPEA did
not produce any actual evidence of the bargaining history behind this article. None of the
negotiators for the 1989-1991 MOU testified and none of the subsequent negotiators who did
testify had any discussions about the MODIFIED AGENCY SHOP article. Moreover, unit
members can hardly be expected to extrapolate their rights under more than 20 years of
bargaining history without any guidance from their union. Altogether, SBPEA’s conduct by
both commission and omission, acted inconsistently with OPEIU, supra, PERB Decision
No. 2236-M. Its failure to inform represented employees of their right to opt out of
membership and become fee payers, while maintaining MOU language that suggests that no
23

such right exists, harmed Charging Parties’ rights under MMBA section 3502. SBPEA offers
no justification for failing to more clearly explain employees’ rights under the MOU.
Accordingly, SBPEA’s conduct violated MMBA section 3506 and PERB Regulation 32604,
subdivision (b).
2. 	White’s Retaliation Claim
The traditional test for establishing a prima facie case of discrimination or retaliation
for protected activities by an employer is found in Novato Unified School District (1982)
PERB Decision No. 210, pp. 5-6. To state a prima facie case, a charging party must establish:
(1) the employee exercised protected rights; (2) the respondent had knowledge of the
employee’s exercise of those rights; (3) the respondent took adverse action against the
employee; and (4) the respondent took action because of the exercise of those rights. (Id. at
pp. 5-6.) The Board applies the same test for claims that an employee organization retaliated
or discriminated against an employee. (Inlandboatmen’s Union of the Pacific (O’Keefe)
(2011) PERB Decision No. 2199-M. warning ltr., pp. 3-4; AFT Part-Time Faculty United,
Local 6286 (Peavy) (2011) PERB Decision No. 2194, pp. 12-13.)
In this case, SBPEA does not dispute that White’s filing of the instant unfair practice
charge is protected under the MMBA. (See Golden Gate Bridge Highway & Transportation
District (2011) PERB Decision No. 2209-M, warning ltr., pp. 1, 5.) Nor does SBPEA refute
that it was aware of White’s filing of unfair practice charge(s). The primary issues in dispute
here are whether Ready’s September 12, 2014 letter to White constitutes an adverse
employment action and, if so, whether Ready sent the letter because of White’s filing of unfair
practice charge(s).
24

Regarding the adverse action element, respondents are only liable where a reasonable
person under the same circumstances would find that the action adversely affects the
employee’s employment. (County of Contra Costa (2011) PERB Decision No. 2174-M, p. 6,
citing Newark Unified School District (1991) PERB Decision No. 864.) In Service Employees
International Union, Local 221 (Gutierrez) (2012) PERB Decision No. 2277-M (SEIU Local
221), the Board emphasized that the adverse nature of an action is measured by using objective
criteria and that an employee’s subjective apprehension about possible future adverse actions
do not qualify. (Id. at p. 7, citing State of California (Department of Health Services) (1999)
PERB Decision No. 1357-S.) The charging party in that case was a steward for the respondent
union. After he began encouraging fellow employees to withdraw their membership and
become agency fee payers, a union official informed the employer that the charging party was
performing union work while on duty. An employer representative called the charging party
about those claims. The entire inquiry was dropped the following day after the charging party
showed that he was on jury duty during the times he was accused of misconduct. (Id. at
pp. 3-4.) The Board declined to find that the charging party suffered an adverse action, noting
that the entire situation was resolved within two working days with no negative consequences.
The Board rejected the notion that the charging party’s subjective fears about receiving a call
from his employer were objectively adverse to employment. (Id. at pp. 7-8.)
Here, White received Ready’s letter on the afternoon of Friday, September 12, 2014,
accusing him of making false statements in his unfair practice charge documents. According
to the letter, Ready planned to request that SBPEA’s Board of Directors pursue internal
disciplinary charges against White for intentional dishonesty. By the next business day,
Monday, September 15, 2014, Hayes informed White that no charges would be filed or
25

pursued against him. As in SEIU Local 221, supra, PERB Decision No. 2277-M, there was no
showing that the accusation had even a minimal impact on White’s employment. White was
not required to take any action to cause SBPEA to abandon any plans to pursue charges.
Under the circumstances, Ready’s September 12, 2014 letter was not an adverse employment
action. This claim is accordingly dismissed for failing to state a prima facie case.
3. 	Statements about Withdrawing as Members
The PERB complaint alleges that agents of SBPEA interfered with Charging Parties’
rights under the MMBA by stating in a Spring 2014 union meeting that “membership in [San
Bernardino Public Employees’ Association] was required and the only way out was for a
provable religious objection.” (Bracketed text in original.) Generally speaking, the PERB has
found that a respondent’s speech causes no cognizable harm to employee rights unless it
contains “threats of reprisal or force or promise of a benefit.” (Chula Vista City School
District (1990) PERB Decision No. 834, p. 10 (Chula Vista CSD).) The charging party bears
the burden of proving that the speech in question tends to coerce or interfere with the exercise
of protected rights. (Ibid.) PERB analyzes the respondent’s speech objectively and in light of
its overall context. (Los Angeles Unified School District (2005) PERB Decision No. 1791,
warning ltr., pp. 4-5, citations omitted (LAUSD).)
The Board also considers the accuracy of the content of the speech in determining
whether the communication constitutes an unfair labor practice. (LAUSD, supra, PERB
Decision No. 1791, warning ltr., p. 5; Muroc Unified School District (1978) PERB Decision
No. 80.) Thus, where the speech accurately describes an event, and does not on its face carry
the threat of reprisal or force, or promise of benefit, PERB will not find the speech unlawful.
(Chula Vista CSD, supra, PERB Decision No. 834, p. 10.)
26

In addition, a respondent is only liable for the conduct of its agents. (AFT Local 1521
(Paige) (2005) PERB Decision No. 1769, dismissal ltr., p. 1.) Agency is established by
demonstrating that an individual was acting with the actual or apparent authority of the
principal entity. Actual authority “is that which an employer intentionally confers upon the
agent, or intentionally or negligently allows the agent to believe himself or herself to possess.”
(Chula Vista Elementary School District (2004) PERB Decision No. 1647, p. 7, citing
Inglewood Teachers Assn. v. PERB (1991) 227 Cal.App.3d 767.) Employers may also confer
apparent or ostensible authority upon individuals “where an employer reasonably allows
employees to perceive that it has authorized the agent to engage in the conduct in question.”
(Id. at p. 8.) PERB applies the same agency rules to employee organizations. (National Union
of Healthcare Workers (2012) PERB Decision No. 2249-M, p. 14 (NUHW), citing Certain-
Teed Products Corp. v. NLRB (1977) 562 F.2d 500; Aladdin Hotel (1977) 229 NLRB 499; see
also Mount Diablo Unified School District, et al. (1977) EERB Decision No. 44, p. 12.)
In this case, Charging Parties’ claims suffer from a lack of specificity. At the outset, no
evidence was presented about whether Charging Parties Gamez, Glasgow, Johnson, Keyes,
Medrano, Rocha, ever attended any SBPEA meetings. Thus, any claim that SBPEA interfered
with those Charging Parties’ protected rights by statements made during SBPEA meetings is
dismissed for lack of proof. (See County of Riverside (2010) PERB Decision No. 2119-M,
p. 19 [dismissing claim that an employer’s statements interfered with employees’ rights where
there was no evidence that employees heard the offending statements].) Charging Parties
Brenner, Olague, Ramirez, and White all testified about hearing some kind of statements about
union membership and/or the religious objection exception during SBPEA meetings, but none
27

of them identified who made those statements. In addition, these Charging Parties gave only
vague descriptions of which meetings they attended.
To establish agency, PERB does not necessarily require a charging party to identify the
name of the purported agent. However, it must be clear that the individual in question satisfies
one of the two agency tests articulated above. (NUHW, supra, PERB Decision No. 2249-M,
pp. 14-15 [holding that unidentified persons wearing the respondent union’s garb and
identification badges, describing themselves as union agents, and making statements to
promote the union could reasonably be found to be agents of the union].) Here, Brenner
recalled someone saying that the only way to “get out” of SBPEA membership was to claim a
“religious exemption,” but does not remember who said it. When pressed on cross-
examination, Brenner acknowledged hearing that statement while outside SBPEA’s building.
Brenner also said that she heard the comment after the July 2014 membership expulsion
hearings. Ramirez testified that she attended SBPEA meetings during the April-May 2014 TA
ratification process, and that she heard from other members that the only way to withdraw
membership from the union was to have a religious objection. There was no evidence that any
SBPEA representatives were present or addressed attendees outside of the meeting hall. The
parking lot outside was populated by around 100 people, including supporters and organizers
for the ongoing decertification effort. Rank-and-file union members are not considered agents
of the union. (Los Angeles Community College District (1982) PERB Decision No. 252,
p. 17.) Under these facts, there is insufficient evidence to attribute the comments heard by
Brenner or Ramirez to SBPEA. Accordingly, the claim that SBPEA interfered with the rights
of Brenner or Ramirez by comments it made during union meetings they attended is dismissed
for lack of proof.
28

Olague testified that someone said that “there was no way out” of SBPEA membership,
but also could not recall who made that statement. Again, without greater specifics, Charging
Parties do not establish that an actual or apparent SBPEA agent made the statements. The
record shows that a variety of people not affiliated with SBPEA’s leadership attended SBPEA
meetings, including those in active opposition to SBPEA. This claim is therefore dismissed for
lack of proof.
White testified that he attended SBPEA informational meetings and heard attendees
asking questions such as how to “get out” of SBPEA, how union dues could be submitted to
charity, and how to resign membership. White said that he heard different responses, including
that SBPEA was not there to discuss those issues, that the issues were governed by the MOU,
and that unit members could withdraw membership by asserting a religious objection. As with
Brenner and Olague, White did not identify any of the speakers. However, unlike with
Brenner and Olague, it was reasonably clear from his testimony that White was present inside
the meeting hall. It is undisputed that the SBPEA representatives speaking at the meeting were
either Directors or negotiating team members, all of whom carry at least the ostensible
authority of SBPEA. White’s testimony was also partially corroborated by Rodriguez, who
said that SBPEA representatives responded to attendees’ questions about withdrawing from
membership stating “that’s not why we were here.”
Nevertheless, White’s claims lack the specificity required to sustain an interference
violation. Although White testified that someone from SBPEA commented on the religious
objection exception to union membership, it is unclear from his testimony what question the
SBPEA representative was responding to. As White admits, some attendees asked about
donating the equivalent of their union dues to charity instead of supporting SBPEA. A
29

________________________
response consistent with the religious objection provision in the MOU and in MMBA
section 3502.5, subdivision (c), would not necessarily interfere with Charging Parties’ right to
refuse to participate in the activities of any employee organization. Therefore, this claim, too
must be dismissed.
Brennan, who withdrew as a charging party in the case, offered the most specific
testimony on this subject, stating that she attended a meeting where then-SBPEA president
Ready told attendees that the only way members could opt out of membership was through a
religious objection. According to Brennan, Rodriguez concurred. As with Charging Parties’
other witnesses, Brennan said only that the meeting occurred sometime in Spring 2014.
However, Rodriguez denies this. More importantly, it is unclear from Brennan’s testimony
whether any of the Charging Parties were actually present at the meeting when the alleged
statements were made. Statements that might otherwise interfere with employees’ protected
rights do not violate the MMBA where there was no proof that the employees at issue were
present. (See County of Riverside, supra, PERB Decision No. 2119-M, p. 19.)14 Thus, it
cannot be concluded that the alleged statements interfered with Charging Parties’ rights where
it was not shown that any of the Charging Parties’ heard the offending statement. To the
extent that Charging Parties claim that SBPEA has interfered with the rights of those not
named as parties in this case, they lack the standing to assert that claim. (See IBEW
Local 1245 (Tacke) (2006) PERB Decision No. 1857-M, warning ltr., p. 2, citing United
Teachers of Los Angeles (Hopper) (2001) PERB Decision No. 1441.)
14 It is acknowledged that White testified that he went to “almost every SBPEA Board
meeting and informational meeting,” after the first meeting he attended sometime in April or
May 2014. However, without more detail about either when White began attending meetings
or when Brennan heard the alleged statements by Ready and Rodriguez, there is still
insufficient evidence to find a violation.
30

Charging Parties also appear to claim that statements by SBPEA representatives outside
of union meetings interfered with their protected rights. For example, Gamez testified that
shortly after the 2014 membership suspension/expulsion hearings, SBPEA Business
Representative Harts told her that she had the option of paying “maybe a little less than the
regular dues” and also could designate her dues to a religious organization. Medrano testified
that, sometime after the Spring 2014 informational meetings, she spoke with either Harts or
Rodriguez and was told “as part of the MOU, you cannot ask not to be a member.” These
claims were not in the PERB complaint and were raised for the first time at hearing. At this
point, these claims are outside of the six-month statute of limitations period for claims under
the MMBA. (County of Santa Barbara (2012) PERB Decision No. 2279-M, citing Coachella
Valley Mosquito & Vector Control Dist. v. PERB (2005) 35 Cal.4th 1072.) They are
accordingly dismissed as untimely.
4. 	Financial Report Claim
The PERB complaint alleges that SBPEA failed to provide White with financial reports
required by MMBA section 3502.5, subdivision (f). PERB Regulation 32602, subdivision (e),
states that these claims shall be processed as unfair practice charges. Under MMBA section
3502.5, subdivision (f), unions who have negotiated for an agency shop provision:
shall keep an adequate itemized record of its financial
transactions and shall make available annually, to the public
agency with which the agency shop provision was negotiated, 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 its president and treasurer
or corresponding principal officer, or by a certified public
accountant.
(Emphasis supplied.)
31

________________________
Interpreting substantially similar language in other collective bargaining statutes
enforced by PERB, the Board has found that each year, union members are entitled their
union’s annual financial report that must include both a balance sheet and an operating
statement. (State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision
No. 2069-H, p. 11 (SETC).)15 The New York Times Dictionary of Money and Investing
defines a “balance sheet” as “[a] summary of a company’s assets, liabilities, and net worth at a
moment in time.” (NY Times Dict. of Money and Investing (2002), p. 19.) A “statement of
operations” is “[a] financial statement showing a company’s revenues and costs over a period
of time.” (Id. at p. 142.)
The union’s duty to provide its financial report is triggered by a member’s request.
(California School Employees Association & its Chapter 47 (Shampine, et al.) (2014) PERB
Decision No. 2355, p. 10 (CSEA).)16 The request need not use specific verbiage, so long as the
union reasonably understands that the member is seeking the financial report. (SETC, supra,
PERB Decision No. 2069-H, p. 11 [holding a union member’s multiple requests for an “annual
report” was sufficient to constitute a request for the union’s financial report].) Members are
only entitled to financial reports for the immediate preceding fiscal year. (CSEA, p. 10, citing
Rio Teachers Association (Lucas) (2011) PERB Decision No. 2157 (RTA).) Members seeking
additional reports must renew their request each year. (Ibid.)
15 SETC, was decided under Government Code section 3587, which is part of the
Higher Education Employer-Employee Relations Act, codified at Government Code section
3560 et seq. Government Code section 3587, is substantially similar to MMBA section
3502.5, subdivision (f).
16 CSEA, was decided under Government Code section 3546.5, which is part of EERA.
Government Code section 3546.5, is substantially similar to MMBA section 3502.5,
subdivision (f), except as noted below.
32

________________________
In this case, SBPEA provided White with its 2013-2014 financial report by
September 12, 2014, the date specified by White. SBPEA’s response included a “Consolidated
Statement of Financial Position,” describing SBPEA’s total assets and liabilities on hand as of
June 30, 2014. This appears to satisfy the requirements of a “balance sheet,” within the
meaning of MMBA section 3502.5, subdivision (f). Charging Parties raise no arguments or
evidence to the contrary. Likewise, the documents also include both a “Consolidated
Statement of Activities and Changes in Net Assets (Deficit)” and a “Consolidated Statement of
Cash Flows” which collectively detail SBPEA’s cash levels, and deficit levels at the beginning
and the end of fiscal year 2013-2014. These documents appear to be consistent with the
definition of an “operating statement” within the meaning of subdivision (f). Once again,
Charging Parties do not argue otherwise. Charging Parties argue that the provided report does
not comply with subdivision (f), because SBPEA did not create the report itself. This
argument is unpersuasive because unions are only required to have the report be certified by
union officers or by a CPA. SBPEA’s financial report included a letter from its CPA, although
unsigned, attesting to the accuracy of the reports. At hearing, Rodriguez confirmed that
SBPEA hired the CPA to audit its records. (But see Claremont Faculty Association
(Lukkarila) (2016) PERB Decision No. 2474, p. 5 (CFA).)17
17 In CFA, the Board held that providing an unsigned financial report was insufficient to
satisfy the requirements of Government code 3546.5, that the report be “signed and certified as
to its accuracy by its president and treasurer, or corresponding principal officers.” (Emphasis
supplied.) MMBA section 3502.5, subdivision (f), at issue in this case, requires only that the
report be “certified as to its accuracy by its president and treasurer, or corresponding principal
officer, or by a certified public accountant.” “Where statutes referring to one subject contain a
critical word or phrase, omission of that vital word or phrase from a similar statute on the same
or related subject is presumed to have been deliberate by the Legislature and expressing a
different legislative intent.” (Sacramento City Unified School District (1987) PERB Order
No. IR-49, pp. 88-89, citations omitted.)
33

Charging Parties further argue that SBPEA did not comply with White’s request for
prior financial reports. They also appear to argue that SBPEA was obligated to provide the
required financial reports to other members even in the absence of any request. Both
arguments are rejected. As stated above, unions’ duty to provide its annual financial report is
triggered by a members’ request. (CSEA, supra, PERB Decision No. 2355, p. 10.) Moreover,
“members are only entitled to financial reports for the immediate preceding year.” (CSEA,
supra, PERB Decision No. 2355, p. 10, citing RTA, supra, PERB Decision No. 2157.) There
was no evidence in this case that White or any other Charging Party requested SBPEA’s
financial reports earlier than August 2014. At that time, SBPEA was only obligated to produce
its report for the 2013-2014 fiscal year. Thus, SBPEA did not violate MMBA section 3502.5,
subdivision (f), by failing to provide earlier financial reports. Charging Parties’ claim that
SBPEA failed to provide required financial reports is dismissed.
REMEDY
MMBA Section 3509, subdivision (b), authorizes PERB to order “the appropriate
remedy necessary to effectuate the purposes of this chapter.” (Omnitrans (2010) PERB
Decision No. 2143-M, p 8.) This includes an order to cease and desist from conduct that
violates the MMBA. (Id. at p. 9.) PERB’s remedial authority includes the power to order an
offending party to take affirmative actions to make the charging party whole and to effectuate
the purposes of the MMBA. (City of Redding (2011) PERB Decision No. 2190-M, pp. 18-19.)
PERB may order remedial action even in those cases where the respondent does not
exclusively control the means to undo the harm caused by the violation. (See Omnitrans
(2009) PERB Decision No. 2030-M, p. 31 [ordering respondent to pursue a court order to
expunge an employee’s criminal record].)
34

In this case it has been found that SBPEA interfered with Charging Parties’ protected
rights by maintaining language in the 2014-2017 MOU containing misleading terms about
employees’ rights to opt out of membership and become agency fee payers. Because of this,
SBPEA is ordered to cease and desist from interfering with employees’ right and to take
affirmative actions to rectify the violation. Thus, SBPEA is further directed to request to
reopen negotiations with the County concerning the MODIFIED AGENCY SHOP article, and
to negotiate terms that are consistent with this decision. (See Berkeley Unified School District
(2012) PERB Decision No. 2268, p. 17 [ordering respondent to renegotiate contract term
inserted into the agreement through unlawful means].)
In addition, by failing to clarify employees’ rights in light of the problematic MOU
language, SBPEA deprived Charging Parties of the right to make an intelligent decision over
whether to opt out of membership during this period. Therefore, starting with the 2014-2015
agency fee collection period, SBPEA is directed to refund all Charging Parties the difference
between any membership dues paid and the fee amount collected for a similarly situated
agency fee payer during the equivalent time period. Payments shall be augmented by interest
at a rate of 7 percent per annum. (Paso Robles Public Educators (Andrus, et al.) (2004) PERB
Decision No. 1589, p. 12 (Paso Robles Educators).) Refund payments shall continue until
SBPEA successfully renegotiates the MODIFIED AGENCY SHOP article, and notifies
represented employees of the newly negotiated terms. If the County refuses to reopen
negotiations, or if SBPEA and the County fail to reach an agreement for new language, after
completing good faith negotiations, then refund payments shall cease upon SBPEA’s clear
notice to represented employees that, notwithstanding the language in the MOU, that
represented employees have the right to opt out of membership and become agency fee payers.
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Finally, SBPEA is directed to post a notice of this order. The notice should be
subscribed by an authorized agent of SBPEA, indicating that it will comply with the terms
thereof. The notice shall not be reduced in size and reasonable efforts will be taken to insure
that it is not altered, covered by any material, or defaced, and will be replaced if necessary.
Posting such a notice will inform employees that SBPEA has acted in an unlawful manner, and
is being required to cease and desist from this activity and will comply with the order. It
effectuates the purposes of the MMBA that employees be informed of the resolution of the
dispute and SBPEA’s readiness to comply with the ordered remedy. (City of Selma (2014)
PERB Decision No. 2380-M, proposed dec., pp. 14-15.)
The notice posting shall include both a physical posting of paper notices at all places
where notices to represented employees are customarily placed, as well as a posting by
electronic message, intranet, internet site, and other electronic means customarily used by
SBPEA to communicate with its employees in the bargaining unit. (Centinela Valley Union
High School District (2014) PERB Decision No. 2378, pp. 11-12, citing City of Sacramento
(2013) PERB Decision No. 2351-M.)
Charging Parties also request that they be reimbursed for fees and costs in this case.
PERB will award attorneys’ fees and costs of hearing only if the unfair practice charge or
defense thereto is both without arguable merit and pursued in bad faith. The term “bad faith”
includes conduct that is dilatory, vexatious or otherwise an abuse of process. (Omnitrans,
supra, PERB Decision No. 2143-M, p. 8.) A fees award is typically reserved for particularly
egregious conduct such as lying under oath about the fundamental basis for the case. (See e.g.,
City of Alhambra (2009) PERB Decision No. 2037-M, p. 3; Los Rios College Federation of
Teachers/CFT/AFT/Local 2279 (Deglow) (1997) PERB Decision No. 1238, p. 2.) These
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standards are not met here. Accordingly, Charging Parties’ request for fees and costs is
denied.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the San Bernardino Public Employees Association (SBPEA) violated
Meyers-Milias-Brown Act (MMBA), Government Code, section 3502. SBPEA violated the
Act by maintaining Memorandum of Understanding (MOU) language indicating that union
members were required to remain members for the duration of the MOU, and that only
employees hired after the MOU became effective could become agency fee payers. This failed
to inform represented employees of their right to opt out of union membership and become
agency fee payers. All other allegations were dismissed.
Pursuant MMBA Section 3509, subdivision (b), it hereby is ORDERED that SBPEA,
its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Interfering with represented employees’ rights by failing to inform them through
the MOU of their right to opt out of union membership and become agency fee payers.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Request to reopen negotiations with the County of San Bernardino over
the MODIFIED AGENCY SHOP article in order to clarify that union membership is not
required as a term of continued employment and that any represented employees hired after the
effective date of the 1989-1991 MOU have the right to opt out of membership and become
agency fee payers.
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2. 	Refund to Charging Parties (Brenner, Gamez, Glasgow, Johnson, Keyes,
Medrano, Olague, Reamirez, Rocha, Ulloa, and White) the difference between any
membership dues paid and the fee amount collected for a similarly situated agency fee payer
during the equivalent time period, starting with the 2014-2015 agency fee collection period
until SBPEA has successfully renegotiated the MODIFIED AGENCY SHOP article, pursuant
to Section B.1 of this order. If the County refuses to reopen negotiations, or if SBPEA and the
County fail to reach an agreement for new language, after completing good faith negotiations,
then refund payments shall cease upon SBPEA’s clear notice to represented employees that,
notwithstanding the language in the MOU, represented employees have the right to opt out of
membership and become agency fee payers. Refund payments shall be augmented by interest
at a rate of 7 percent per annum.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in SBPEA’s bargaining units customarily
are posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by
an authorized agent of SBPEA, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. In addition
to physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by SBPEA to communicate with its
employees in the bargaining units represented by SBPEA. Pursuant to City of Sacramento,
supra, PERB Decision No. 2351 and other applicable authority, SBPEA shall identify and
include in its electronic posting any and all affected employees represented by SBPEA
employed at the County, who are no longer employed as of the date of posting, or use personal
delivery or some alternative means of notification reasonably devised to ensure that any and all
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affected employees who are no longer employed by the County. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced, or covered with any
other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on a representative of the Charging Parties.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. 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
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
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 or received by electronic mail before
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the close of business, 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, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall accompany each copy served on a party or
filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and 32135, subd.
(c).)
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