University Professional and Technical Employees, Communications Workers of America Local 9119 (Hermanson) (PERB 1829H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KAYE SAURER HERMANSON,
PASCAL OEVERING,
MICH YAMAOTO NELSON,
CHRISTINE E. JOSHEL,
DOUGLAS E. WALKER,
LESLIE SARA HASEGAWA,
CATHERINE ANN O'HARRA, JUN ZHAO,
HEATHER MERI OAKLEY,
JO ANN CHRISTINA,
SHARON WALKER STANFIELD,
GARY STEVEN DITTA,
PATRICIA FAY HASEGAWA,
JOSEPH B. STAGG, ANN BASILE NIEVES,
KATHLEEN J. DONNELLY, KATHY ALDERN,
VINEETA PRASAD, ADAM COREY COX,
CAROL Y. ENG, SUSAN W. BUTLER,
MARY MARGARET HAWLEY,
PAUL NORTHROP, SHERRY L. MCCANN,
CECELIA KEMPER, LAUREL A. DAVIS,
SVENJA DAEHNE, JAY SCOTT MURPHY,
RATCKO DRAGOMIR VASIC,
GAYLE MARIE CRISOSTO,
JUDITH BERECZKY, NGHIA NGUYEN,
DALE R. DISHAROON, LUCINDA G. BECK,
RICHARD SHERMAN,
JANICE HATCHELL COOPER,
SYLIVA ANN RAYNER, JANE CAROL HINES,
SANDRA DORIS BRAUN, JUDY SHARP,
LEANNE GILL, KATHLEEN L. JEE,
GARY HRADEK,
ANA ISABEL ALVAREZ-RETUERTO,
LAURA LEE KOENIG,
LAWRENCE GERALD STEPHANSON,
DENISE WEISMAN, VIRGINIA ANN MOORE,
PATRICIA A. CHAROS, ALISON JUNE WEIR,
BRADFORD LYNN COL WELL,
MILAGROS IBARDOLAZA,
Charging Parties,
v.
UPTE, CWA LOCAL 9119,
Respondent.
Case Nos. SA-CO-66-H,
SA-CO -67-H,
SA-CO -68-H,
SA-CO -69-H,
SA-CO -70-H,
LA-CO-290-H,
LA-CO-291-H, LA-CO-292-H,
LA-CO-293-H,
LA-CO-294-H,
LA-CO-296-H,
LA-CO-297-H,
LA-CO-298-H,
LA-CO-299-H, LA-CO-300-H,
LA-CO--301-H, LA-CO-302-H,
LA-CO--303-H, LA-CO-304-H,
LA-CO--305-H, LA-CO-306-H,
LA-CO--307-H,
LA-CO--308-H, LA-CO-309-H,
LA-CO--310-H,LA-CO-311-H,
LA-CO--312-H,LA-CO-313-H,
LA-CO--314-H,
SA-CO--72-H,
SA-CO--73-H,LA-CO-315-H,
LA-CO--316-H, LA-CO-317-H,
LA-CO--318-H,
SA-CO--76-H,
LA-CO--319-H, LA-CO-320-H,
LA-CO--321-H, SA-CO-77-H,
SF-CO-121-H, SF-CO-122-H,
SF-CO- 123-H,
LA-CO--322-H,
LA-CO--324-H,
LA-CO--327-H,
LA-CO--328-H, LA-CO-329-H,
LA-CO--330-H, SA-CO-79-H,
LA-CO--332-H,
LA-CO--333-H
PERB Decision No. 	1829-H
March 	10, 	2006

Appearances: 	Werner Witke, Representative, for Kaye Saurer Hermanson, et al. and National
Right to Work Legal Defense Foundation, Inc. by Milton L. Chappell, Attorney, for Vineeta
Prasad, Lucinda G. Beck, Sylvia Ann Rayner, Judy Sharp and Kathleen L. Jee; Leonard Carter
by Kate Hallward, Attorney, for UPTE, CWA Local 9119.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Kaye Sauer Hermanson, et al. (Charging Parties) of a Board
agent's dismissal of their unfair practice charges.1 The charges alleged that UPTE, CWA
Local 9119 (UPTE) violated the Higher Education Employer-Employee Relations Act
(HEERA)2 and PERB Regulation 32994(b)3 by failing to timely request an impartial hearing
regarding the agency fee amount after Charging Parties timely objected to the amount
indicated in the notice sent by UPTE.
The Board has reviewed the entire record in this matter, including the unfair practice
charges, the response by UPTE to the charges, the warning and dismissal letters, the appeal
filed by the Charging Parties and the statement of objection to the appeal filed by UPTE.
The Board finds the Board agent acted outside the scope of her duties making a factual
determination for the responding party without any authority as a basis for the finding.
Further, the Board agent's determination was outside the power of the Board itself and
in excess of the Board's powers and cannot stand. 	We therefore remand this case to the Office
of the General Counsel for issuance of a complaint, as set forth below.
1The unfair practice charge filed by Jo Ann Christina (Case No. LA-CO-294-H) was
withdrawn on February 27, 2006.
22HEERA is codified at Government Code section 3560, et seq.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
N

DISCUSSION
The agency fee payers in this case objected to the amount of agency fees as indicated
in the notice received from UPTE in 2004. The parties agree the notices were sent on
September 3 and 7, 2004. Under PERB Regulation 32994(b)4 the agency fee payer has
30 days to object to the fee from the date it is sent by the exclusive representative. At the end
of the 30 days allowed for objection, the exclusive representative then has 45 days to request
an impartial hearing on the issue.
Even though the regulation clearly states that the objection shall be made not later than
30 days after the distribution of the notice, the Board agent determined that UPTE could
change the timeline and allow the objectors additional time to file objections before the
45 days to request a hearing would begin to run. The Board agent gives no authority for her
determination that UPTE can change the parameters of the regulation. Allowing this dismissal
to stand would create an underground regulation and would be outside the powers conferred on
PERB by law.
4PERB Regulation 32994(b) states, in part:
Each exclusive representative that has an agency fee provision
shall administer an Agency Fee Appeal Procedure in accordance
with the following:
(1) A agency fee objection shall be initiated in writing and shall
be filed with an official of the exclusive representative who has
authority to resolve agency fee objections.
(2) An agency fee objection shall be filed not later than 30 days
following distribution of the notice required under Section 32992
of these regulations.
(3) Within 45 days of the last day for filing an objection under
Section 32994(b)(2) of these regulations and upon receipt of the
employee's agency fee objection, the exclusive representative
shall request a prompt hearing regarding the agency fee before an
impartial decisionmaker.
3

4
Nowhere in that regulation or any other PERB regulation is there any language
indicating that PERB has delegated to the exclusive representative or even the Board agent the
authority to change the parameters of a regulation at will. PERB certainly cannot delegate
authority it does not have to the exclusive representative through a Board agent.
By allowing this the Board agent created an underground regulation to allow a longer
period for objections than that set forth by statute. PERB does not have the discretion or
authority to change the parameters of a regulation specifically delineating the time period in
which one must act.
In Dyna -Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d
1379, 1389 [241 Cal.Rptr. 67] (Dyna-Med), the California Supreme Court held that an- -
administrative agency may not create a remedy the Legislature has withheld.
In Dyna-Med, the sole question was whether that agency had the authority to award
punitive damages. 	The majority concluded that the Fair Employment and Housing Committee
(FEHC) did not have authority to award punitive damages. The court "declined to grant the
FEHC a power not conferred by an enabling statute, in particular observing that '[a]n
administrative agency cannot by its own regulations create a remedy which the legislature has
withheld.'" 	(American Federation of Labor and Congress of Independent Organizations v.
Unemployment Insurance Appeals Board (1996) 13 Cal.4 th 1017, 1035 [56 Cal.Rptr.2d 109]
(AFL-CIO) citing Dyna-Med.)
In AFL-CIO, the issue was whether an administrative law judge, acting on authority of
the Unemployment Insurance Appeals Board had the authority to grant interest on a payment
of retroactive unemployment insurance benefits. 	The Supreme Court noted that nowhere does
the Unemployment Insurance Code grant administrative law judges or the board the express
authority to award interest on an administrative benefit award. 	(Id at p. 1022.)

5
Just as in those cases, nowhere in HEERA or PERB regulations is there any express
authority to allow the Board agent to decide that the exclusive representative does not have to
follow the letter of the regulation. 	There is nothing even impliedly authorizing a grant of the
power to change regulation timelines to the Board, a Board agent or one of the parties. As
noted above in Dyna- Med, if the Legislature did not give a power to an agency, the agency
cannot add it. 	That is the situation here. The Board agent has determined that the exclusive
representative does not have to follow the parameters of a specific regulation. 	Changing
the regulation through the Board agent is outside the powers of the Board. The Charging
Parties have met their burden in presenting a prima facie case of a violation of PERB
Regulation 32994(b) by UPTE.
ORDER
The unfair practice charges in Case Nos. SA-CO-66-H, SA-CO-67-H, SA-CO-68-H,
SA-CO-69-H, SA-CO-70-H, LA-CO-290-H, LA-CO-291-H, LA-CO-292-H, LA-CO-293-H,
LA-CO-294-H, LA-CO-296-H, LA-CO-297-H, LA-CO-298-H, LA-CO-299-H,
LA-CO-300-H, LA-CO-301-H, LA-CO-302-H, LA-CO-303-H, LA-CO-304-H,
LA-CO-305-H, LA-CO-306-H, LA-CO-307-H, LA-CO-308-H, LA-CO-309-H,
LA-CO-310-H, LA-C0-311-H, LA-CO-312-H, LA-CO-313-H, LA-CO-314-H, SA-CO-72-H,
SA-CO-73-H, LA-CO-315-H, LA-CO-316-H, LA-CO-317-H, LA-CO-318-H, SA-CO-76-H,
LA-CO-319-H, LA-CO-320-H, LA-CO-321-H, SA-CO-77-H, SF-CO-121-H, SF-CO-122-H,
SF-CO-123-H, LA-CO-322-H, LA-CO-324-H, LA-CO-327-H, LA-CO-328-H, LA-CO-329-H,
LA-CO-330-H, SA-CO-79-H, LA-CO-332-H and LA-CO-333-H are REMANDED to the
Office of the General Counsel for a complaint to issue.
Member McKeag joined in this Decision.
Member Shek's concurrence begins on page 6.

6
SHEK, Member, concurring: I agree with the majority opinion that the Public
Employment Relations Board (PERB or Board) agent's dismissal, based on her interpretation
of PERB Regulation section 32994(b), was in error. The undisputed facts show that the UPTE,
CWA Local 9119 (UPTE) distributed written notices to non-member agency fee payers on
September 3, and 7, 2004, pursuant to PERB Regulation section 32992(c)(l). Pursuant to
Section 32994(b)(2), an agency fee objection shall be filed not later than 30 days following
distribution of the notice, on or before October 7, 2004. Section 32994(b)(3) provides that
within 45 days of the last day for filing an objection under Section 32994(b)(2) and upon receipt
of the employee's agency fee objection, the exclusive representative shall request a prompt
hearing regarding the agency fee before an impartial arbitrator. Thus, UPTE had until November
22, 2004, 45 days from October 7, 2004, to request a hearing. UPTE accepted agency fee
objections filed on or before October 19, 2004, and submitted a hearing request to the American
Arbitration Association (AAA) on December 3, 2004. UPTE's request for hearing was filed
beyond the 45-day period. Kaye Saurer Hermanson, et al. (Charging Parties) have therefore
established a prima facie case of an unfair practice violation under Section 32994(b)(3). Their
unfair practice charges should be remanded to the Office of the General Counsel for the issuance
of a complaint.
In its response to the charge, UPTE raised the defense that there were other charges that
were time-barred because they were filed beyond six months of November 22, 2004, the date
Charging Parties contended the referral to AAA should have occurred. Since the Board agent
did not address this defense in the dismissal of the charge, I would refer the issue to the Office of
the General Counsel for further investigation.
6