PERB Decision No. 1857M•IBEW Local 1245 (Tacke) (PERB 1857M)
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STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD SPENCER TACKE, Charging Party, v. IBEW LOCAL 1245, Respondent. Case No. SA-CO-38-M PERB Decision No. 1857-M S e p t e m b e r 1, 2006 Appearance: Spencer Tacke, on his own behalf. Before Duncan, Chairman; McKeag and Shek, Members. DECISION MCKEAG, Member: This case is before the Public Employment Relations Board (Board) on appeal by Spencer Tacke (Tacke) of a Board agent's dismissal (attached) of his unfair practice charge. The unfair practice charge alleges the IBEW Local 1245 breached its duty of fair representation and interfered with protected employee rights in violation of the Meyers-Milias-Brown Act (MMBA)1 when it allegedly provided insufficient notice for an agency shop agreement election. The Board has reviewed the entire record, including the unfair practice charge, the warning letter, the dismissal letter and Tacke's appeal. The Board finds the Board agent's dismissal to be free of prejudicial error and adopts it as a decision of the Board itself. MMBA is codified at Government Code section 3500, et seq. ~ ~
ORDER The unfair practice charge in Case No. SA-CO-38-M is hereby DISMISSED WITHOUT LEAVE TO AMEND. Chairman Duncan and Member Shek joined in this Decision. 22
STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor PUBLIC EMPLOYMENT RELATIONS BOARD Sacramento Regional Office 1031 18th Street Sacramento, CA 95814-4174 Telephone: (916) 327-8385 Fax:(916)327-6377 May 26, 2006 Spencer Tacke P.O. Box 2327 Oakdale, CA 95361-5327 Re: Spencer Tacke v. IBEW Local 1245 Unfair Practice Charge No. SA-CO-38-M DISMISSAL LETTER Dear Mr. Tacke: The above-referenced unfair practice charge was filed with the Public Employment Relations Board-(PERB or Board) on February 7, 2006. Your charge alleges that IBEW Local 1245 breached its duty of fair representation in violation of the Meyers-Milias-Brown Act (MMBA)1 and interfered with protected employee rights. I indicated in the attached letter dated May 1, 2006, that the above-referenced charge did not state a prima facie case. You were advised that, if there were any factual inaccuracies or additional facts which would correct the deficiencies explained in that letter, you should amend the charge. You were further advised that, unless you amended the charge to state a prima facie case or withdrew it prior to May 18, 2006, the charge would be dismissed. I have not received either an amended charge or a request for withdrawal. I called and left a message for you on May 24, 2006, asking you to contact me no later than May 25, 2006, if you intended to pursue the charge. Since I received no communication from you, I am dismissing the charge based on the facts and reasons contained in my May 1, 2006 letter. Right to Appeal Pursuant to PERB Regulations,2N you may obtain a review of this dismissal of the charge by filing an appeal to the Board itself within twenty (20) calendar days after service of this dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case name and number, and the original and five (5) copies of all documents must be provided to the Board. The MMBA is codified at Government Code section 3500 et seq. The text of the MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov. 2 PERB's Regulations are codified at California Code of Regulations, title 8, section 31001 et seq.
SA-CO-38-M May 26, 2006 Page 2 A document is considered "filed" when actually received during a regular PERB business day. (Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document is also considered "filed" when received by facsimile transmission before the close of business together with a Facsimile Transmission Cover Sheet which meets the requirements of Regulation 32135(d), provided the filing party also places the original, together with the required number of copies and proof of service, in the U.S. mail. (Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.) The Board's address is: Public Employment Relations Board Attention: Appeals Assistant 1031 18th Street Sacramento, CA 95814-4174 FAX: (916) 327-7960 If you file a timely appeal of the refusal to issue a complaint, any other party may file with the Board an original and five copies of a statement in opposition within twenty (20) calendar days following the date of service of the appeal. (Regulation 32635(b).) Service All documents authorized to be filed herein must also be "served" upon all parties to the proceeding, and a "proof of service" must accompany each copy of a document served upon a party or filed with the Board itself. (See Regulation 32140 for the required contents.) The document will be considered properly "served" when personally delivered or deposited in the mail or deposited with a delivery service and properly addressed. A document may also be concurrently served via facsimile transmission on all parties to the proceeding. (Regulation 32135(c).) Extension of Time A request for an extension of time, in which to file a document with the Board itself, must be in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for filing the document. The request must indicate good cause for and, if known, the position of each other party regarding the extension, and shall be accompanied by proof of service of the request upon each party. (Regulation 32132.)
SA-CO-38-M May 26, 2006 Page 3 Final Date If no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired. Sincerely, ROBERT THOMPSON General Counsel By Robin W. Wesley Regional Attorney Attachment . . . cc: Tom Dalzell
STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor PUBLIC EMPLOYMENT RELATIONS BOARD ~;:. Sacramento Regional Office 1031 18th Street Sacramento, CA 95814-4174 Telephone: (916) 327-8385 Fax:(916)327-6377 May 1, 2006 Spencer Tacke P.O. Box 2327 Oakdale, CA 95361-5327 Re: Spencer Tacke v. IBEW Local 1245 Unfair Practice Charge No. SA-CO-38-M WARNING LETTER Dear Mr. Tacke: The above-referenced unfair practice charge was filed with the Public Employment Relations Board (PERB or Board) on February 7, 2006. Your charge alleges that IBEW Local 1245 breached its duty of fair representation in violation of the Meyers-Milias-Brown Act (MMBA)1 and interfered with protected employee rights. The charge alleges that Spencer Tacke is employed as a Senior Electrical Engineer by the Modesto Irrigation District (MID). Mr. Tacke is a member of the Professional and Supervisor bargaining unit exclusively represented by IBEW Local 1245. IBEW Local 1245 is also the exclusive representative of the members of the Utility Service Maintenance (USM) bargaining unit. On or about November 22, 2005, IBEW and MID signed an agreement to conduct a secret ballot election supervised by the California State Mediation and Conciliation Service. The election would allow the members of the USM bargaining unit to decide whether to approve an agency shop arrangement and impose an agency fee on the non-union members of the unit. The election agreement set forth the terms and procedures for the election. On December 1, 2005, MID posted the Notice of Secret Ballot Election on MID bulletin boards. The notice informed employees that the election would be held on December 13, 2005. The notice also specified that there were three voting locations and set forth the time that unit members could vote at each location as follows: 6:30-7:30am Water Treatment Plant, Waterford, Conference Room 9:00 - 10:00 am Service Center 929 Woodland, Modesto, Training Room 11:00 am - 4:00 pm Downtown Office, Modesto, Multi-Purpose Room The MMBA is codified at Government Code section 3500 et seq. The text of the MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov. ""!]fi\ _ Do, '
SA-CO-38-M May 1, 2006 Page 2 No other means of notifying USM bargaining unit members of the agency shop election was provided. In contrast, MID has communicated with employees by e-mail, memorandum or letter for announcements about other employment-related matters such as changes in health insurance plans or health plan open enrollment. For changes to MID policies, every employee is required to sign an acknowledgment that they have received a copy of the revised policy. On December 7, 2005, Mr. Tacke expressed concern about the sufficiency of the election notice to MID's Human Resources Department. The Department recommended that he call State Mediator Shirley Campbell. Ms. Campbell informed Mr. Tacke that the posted election notices were sufficient and that e-mail notification was not necessary. She also indicated, however, that she had encouraged IBEW and MID to issue a joint communication to unit members by whatever method they thought appropriate, including e-mail, explaining the agency shop arrangement and informing USM unit members of the pending election. IBEW and MID did not issue a joint notification. The charge alleges that most MID bulletin boards are cluttered with many flyers and announcements, and that most employees do not check bulletin board notices regularly or at all. Some USM bargaining unit members expressed frustration that they did not learn of the election until only a day or two before the election. Other unit members did not know about the election until after it had occurred. However, Union members knew of the pending election by attending Union meetings and receiving information sent to them by the Union. Ultimately, less than 50% of the USM bargaining unit members voted on December 13, 2005. Based on the facts stated above, the charge does not state a prima facie case. An individual does not have standing to allege interference with protected rights if the employee is not a member of the class affected by the employer's action. (Hayward Unified School District (1981) PERB Decision No. 172; Los Rios College Federation of Teachers, Local 2279, CFT/AFT (Deglow) (1992) PERB Decision No. 950.) An employee has no standing to challenge a violation of another employee's rights. (United Teachers of Los Angeles (Hopper) (2001) PERB Decision No. 1441.) Mr. Tacke alleges that IBEW breached its duty of fair representation and interfered with the rights of the members of the USM bargaining unit by entering into an election agreement that was biased against the non-union members of the unit. However, Mr. Tacke is not a member of the USM bargaining unit. Thus, he is not a member of the class which he alleges has been harmed. As Mr. Tacke has no standing to allege a violation of the rights of the members of the USM bargaining unit, the charge must be dismissed. Even if Mr. Tacke had standing to allege a violation of the MMBA, the charge does not provide sufficient evidence of a violation of the duty of fair representation and unlawful interference. In Chaffey Joint Union High School District (1988) PERB Decision No. 669, a case against both the employer and the union, the Board similarly considered whether the union breached the duty of fair representation and interfered with employee rights in the conduct of an agency fee election. In Chaffey, the Board applied a "totality of the
SA-CO-38-M May 1, 2006 Page 3 circumstances" test to find that the charge stated a prima facie case based on the following allegations. First, the union selectively informed union members of the agency fee election. The charge also alleged that union representatives removed "vote no" flyers from employee mailboxes. Finally, the charge alleged that the union collaborated with the employer in formulating terms of the election agreement to limit polling locations and hours. In this case, there were six school sites within the school district and voting sites were available at three schools from 10:45 a.m. to 4:00 p.m. Some teachers complained that their after school duties precluded them from reaching a polling site by 4:00 p.m. Here, the charge alleges that IBEW announced the election at union meetings. There is insufficient evidence that the Union selectively informed only union members of the election or otherwise interfered with unit members learning about the election. Further, there is no evidence or specific examples demonstrating that employees were unable to reach the polling locations during the voting hours. Thus, there is insufficient evidence to establish a prima facie case of a breach of the duty of fair representation and interference with employee rights. For these reasons the charge, as presently written, does not state a prima facie case. If there are any factual inaccuracies in this letter or additional facts that would correct the deficiencies explained above, please amend the charge. The amended charge should be prepared on a standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all the facts and allegations you wish to make, and be signed under penalty of perjury by the charging party. The amended charge must have the case number written on the top right hand corner of the charge form. The amended charge must be served on the respondent's representative and the original proof of service must be filed with PERB. If I do not receive an amended charge or withdrawal from you before May 18, 2006, I shall dismiss your charge. If you have any questions, please call me at the above telephone number. Sincerely, Robin W. Wesley Regional Attorney
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