California Nurses Association (O'Malley) (PERB 1651H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROBERT J. O'MALLEY,
Charging Party, Case No. SA-CO-22-H

v. PERB Decision No. 1651-H

CALIFORNIA NURSES ASSOCIATION, June 29, 2004

Respondent.

Appearance: Robert J. O’Malley, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Robert J. O’Malley (O’Malley) of a Board agent’s dismissal (attached) of his |
unfair practice charge. The charge alleged that the California Nurses Association violated the
Higher Education Employer-Employee Relations Act (HEERA)' by its reporting, calculating,
and auditing of agency fees.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters and O’Malley’s appeal.”
The Board finds the warning and dismissal letters to be free of prejudicial error and adopts

them as the decision of the Board itself.

'HEERA is codified at Government Code section 3560, et seq.

7O’Malley’s request for oral argument is denied.

ORDER
The unfair practice charge in Case No. SA-CO-22-H is hereby DISMISSED
WITBOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	,LD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT, RELATIONS BOARD
P.E.R.B
Sacramento Regional Office1031
18th Street
Sacramento,CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
May 11, 2004
Robert J. O'Malley
Re: 	Robert
J.
O'Malley
v.
California Nurses Association
Unfair Practice Charge No. SA-CO-22-H
DISMISSAL LETTER
Dear Mr. O'Malley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February
9,
2004. You allege that the California Nurses
Association (CNA) violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by committing what you have outlined as six specific violations in reporting,
calculating and auditing
of
agency fees on behalf
of
nurses employed by the University
of
California (UC).
I indicated to you in my attached letter dated May 4, 2004, that the above-referenced charge
did not state a prima facie case as you had not demonstrated that you had standing. 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 12,
2004, the charge would be dismissed.
On May 10, 2004, you filed a First Amended Charge in which you contend that I have ignored
undisputed facts that you have alleged that establish that CNA withheld agency fees from you
in July, August, October and November 2003 without providing a proper Hudson notice. You
assert that this fact does establish standing to file as you were a member
of
a class
ofemployees who "suffered some harm." (Quoting from my inaccurately cited reference to
Sheila Ann Hopper v. United Teachers
of
Los Angeles (2001) PERB Decision No. 1441.)
You continue to argue that you are not asserting an agency fee objection but rather a claim as
to the inadequacy
of
CNA's Hudson notice. You point out that my letter which quotes Judge
D'Orazio's recent ruling in a proposed decision that finds a two part process; one, a timely and
adequate notice and two, an opportunity to challenge. You contend that you did not receive a
timely notice for monies withheld by CNA prior to its 10/30/03 Notice mailing.
1
`HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-22-H
May 11, 2004
Page 2
Finally, you quote the Board's decision in Golden Plains Unified School District (2001) PERB
Decision No. 1489 for the proposition that I should not judge the merits
of
your case. That
case states "Disputed facts or conflicting theories
of
law should be resolved in other
proceedings after a complaint has issued." You argue that I should accept the facts as you
allege them as true and further process your charge by issuing a complaint.
Your First Amended Charge does not overcome the deficiencies I spelled out in my May 4,
2004 letter. The PERB in its recently decided Case No. 1607-H which involved you and a
similar fact situation dismissed your case for failure to establish standing. The Board held that
if
you are not an agency fee payer than you have no standing to file claims regarding agency
fee payer rights. This lack
of
standing also impairs your right to challenge the adequacy
of
notice.
Therefore, I am dismissing the charge based on the facts and reasons contained in my May 4,
2004 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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.
A document is considered "filed" when actually received before the close
of
business
(5
p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close
of
business on the
last day for filing 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

C	SA-CO-22-H
May 11, 2004
Page 3
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 and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may 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 reques,t 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.)
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
Roger Smith
Labor Relations Specialist
Attachment
cc: M. Jane Lawhon

STATE OF CALIFORNIA 	OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
May 4, 2004
Robert J. O'Malley
Re: 	Robert J. O'Malley v. California Nurses Association
Unfair Practice Charge No. SA-CO-22-H
WARNING LETTER
Dear Mr. O'Malley:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February
9,
2004. You allege that the California Nurses
Association (CNA) violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by committing what you have outlined as six specific violations in reporting,
calculating and auditing
of
agency fees on behalf
of
nurses employed by the University
of
Caiifornia (UC).
In your cover letter attached to the charge you advise that"(w)hile the charges are similar to
those before the Public Employment Relations Board or Administrative Law Judge D'Orazio,
there has been no resolution
of
those charges to date." You continue by asserting that
if
CNA
has failed to provide an adequate Hudson notice to you than it affects all unit non-members.
The six specific violations are:
1. CNA has violated HEERA section 3583.5 by refunding your
agency fees
2. The Report of Chargeable and Non-Chargeable Expenditures
and CNA audited statements do not correspond in 13 of 19
expenditure categories.
3. CNA's Report of Chargeable and Non-Chargeable
Expenditures was not independently verified by an auditor.
4. CNA failed to report chargeable expenditures.
1
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-22-H
May 4, 2004
Page 2
5. CNA charged different agency fees at each UC campus.
6. CNA used a formula for calculating agency fees that resulted
in a greater cost for UC nurses that resulted in excess fees.
Allegation 1 has been reviewed previously by the Board. The Board decided in your earlier
case, Robert J. O'Malley v. California Nurses Association (2004) PERB Decision No. 1607-H
(California Nurses Association) that you failed to state a prima facie violation
of
HEERA
section 3583.5. The Board found that section 3583.5 should not be interpreted to require either
mandatory membership or agency fees. 	In situations like yours, where the employee
organization has no interest in either collecting dues or fees and has no interest in pursuing
your termination for non-compliance, there is simply no violation.
As you indicated, a number
of
these charges are similar to those that were on review by
Administrative Law Judge D'Orazio in Case No. SA-CO-17-H. On April 30, 2004, Judge
D' Orazio dismissed your case in that matter reciting the rationale
of
the Board in California
Nurses Association and Los Rios College Federation
of
Teachers, Local 2279, CFT/AFT
(1992) PERB Decision No. 950. The principle finding in California Nurses Association
revolved around your standing to file an unfair practice charge.
The Board reasoned, as did Judge D'Orazio in SA-CO-17-H, that the procedural guarantees in
place to prevent misuse
of
agency fees has no realistic impact on an employee who pays no
dues or fees to the union. You are a nonmember for whom CNA collects no agency fee.
PERB indicated that "there is no possibility for harm to O'Malley that the Board could
remedy." Based on these findings, I find that you do not have standing to pursue allegations 2-
6.
Further as to your theory that other agency fee members could be harmed by CNA's misuse or
miscalculation
of
agency fees, the Board held in Sheila Ann Hopper v. United Teachers
of
Los
Angeles (2001) PERB Decision No. 1440 that an employee who is not a member
of
a class
of
employees who may have suffered some harm, has no standing to make a claim on other
employees' behalfbefore PERB. At footnote 8 in California Nurses Association the Board
stated that "O'Malley may not assert agency fee objections on behalf
of
other unit
employees." Therefore, your theory that agency fee payers rights are being violated must be
dismissed again for lack
of
standing.
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

SA-CO-22-H
May 4, 2004
Page 3
amended charge or withdrawal from you before May 12, 2004, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS