California State University Employees Union, Service Employees International Union Local 2579 (Sarca) (PERB 2137H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIU SARCA,
Charging Party,
v.
CSU EMPLOYEES UNION, SEIU LOCAL 2579,
Respondent.
Case No. LA-CO-485-H
PERB Decision No. 2137-H
October 20, 2010
Appearance: Corneliu Sarca, on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Corneliu Sarca (Sarca)
of
a Board agent's dismissal
of
his unfair practice charge. The charge, as amended, alleged that CSU Employees Union, SEIU
Local 2579 (CSUEU) violated the Higher Education Employer-Employee Relations Act
(HEERA) 1 by improperly calculating the amount
of
the fee charged to fair share fee payers for
fiscal year 2006-2007. The Board agent dismissed the charge, finding that: (1) Sarca lacked
standing to challenge the fair share fee calculation; and (2) the charge presented no allegations
to establish that the 2006-2007 fair share fee arbitration proceedings were not fair and regular
or that the arbitrator's resulting award was repugnant to HEERA.
The Board has reviewed the dismissal and the record in light
of
Sarca's appeal and the
relevant law. Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
Sarca is a technician at California State University, Northridge. He is a member
of
the
bargaining unit exclusively represented by CSUEU. Sarca does not pay union dues and, as
discussed more fully below, he is not a fair share fee payer.
On August 24, 2006, Sarca represented three bargaining unit members in a fair share
fee arbitration. 2 He argued to the arbitrator that CSUEU's fair share fee calculation was
incorrect because it was based on expenses rather than revenue. He further argued that
CSUEU failed to follow accounting standards for non-profit organizations as established by the
Financial Accounting Standards Board. Sarca also challenged the failure
of
CSUEU's Hudson
notice3 to include a balance sheet.
The arbitrator allowed Sarca to present documentary evidence, cross-examine CSUEU
witnesses, and submit a post-hearing brief on behalf
of
the fair share fee payers he represented.
In her award, the arbitrator declined to rule on Sarca's Hudson notice challenge but upheld
CSUEU's calculation
of
the 2006-2007 fair share fee.
DISCUSSION
PERB Regulation 32994(a) provides, in relevant part:
An agency fee challenger may file an unfair practice charge that
challenges the determination
of
the chargeable expenditures
contained in the agency fee amount; however, no complaint shall
issue until the agency fee challenger has first exhausted the
Exclusive Representative's Challenge Procedure.
In conformance with Chicago Teachers Union, Local No. 1
v.
Hudson (1986) 475
U.S. 292 (Hudson), PERB Regulation 32994* requires an exclusive representative to provide
an agency 	challenger with "a prompt hearing regarding the agency fee before an impartial
decisionmaker" within 45 days of the last day for filing an agency 	challenge. (*PERB
regs. are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
3 In conformance with Hudson, PERB Regulation 32992 requires that a union send to
nonmembers in the bargaining unit an annual notice informing them of the amount of the fair
share fee and of their right to challenge the fee calculations.
2

It is undisputed that Sarca, in his role as representative
of
the three fair share fee payers,
exhausted CSUEU's fair share fee challenge procedure. Nonetheless, because Sarca
himself
is
not a fair share fee payer, we conclude that he lacks standing to file this unfair practice charge.
PERB lacks jurisdiction over an unfair practice charge when the charging party does
not have standing to bring the charge. (Region 4 Court Interpreter Employment Relations
Committee and the Superior Court
of
California, County
of
Riverside (2008) PERB Decision
No. 1987-I; Los Angeles Community College District (1994) PERB Decision No. 1060.) A
bargaining unit member who is not obligated to pay a fair share fee does not have standing to
challenge the exclusive representative's fair share fee calculation. (California State Employees
Association (Sarca) (2006) PERB Decision No. 1813-H; California Nurses Association
(0
'Malley) (2004) PERB Decision No. 1607-H; Los Rios College Federation
of
Teachers,
Local 2279, CFTIAFT (Deglow) (1992) PERB Decision No. 950.)
Nowhere in his original charge did Sarca allege that he was a fair share fee payer for
fiscal year 2006-2007. The Board agent's warning letter informed Sarca
of
CSUEU's
allegation that it ceased requiring him to pay a fair share fee as
of
July 1, 2004. In his
amended charge, Sarca did not dispute this allegation or provide contrary allegations.
Therefore, because the charge, as amended, failed to establish that Sarca was a fair share fee
payer, we conclude that Sarca lacks standing to file the instant unfair practice charge.
Sarca argues on appeal that he has standing to file this charge because he represented
himself and three others at the fair share fee arbitration. The arbitration hearing transcript and
the arbitrator's award, both attached to Sarca' s charge, show that Sarca participated in the
for three individuals, each of 	had 	written
for Sarca to represent him or her at the hearing. Neither document indicates that Sarca
represented himself at the hearing.
3

Conversely, the instant unfair practice charge names Sarca as the sole charging party.
Had the three individuals Sarca purports to represent been named as charging parties, he could
have acted as their representative as long as proper written authorization was filed with PERB.
In light
of
Sarca' s lack
of
standing, the failure to name these three individuals as charging
parties divests PERB
of
jurisdiction over the charge. (Regents
of
the University
of
California
(2004) PERB Decision No. 1592-H [only those individuals who signed the charge will be
considered as charging parties].)
Additionally, Sarca contends that CSUEU committed an unfair practice by ceasing to
collect fair share fees from him in order to prevent him from challenging its fair share fee
calculations. The Board has held that an exclusive representative's decision to refund agency
fees to a particular employee does not violate the exclusive representative's duty
of
fair
representation or constitute prohibited discrimination, even when the refund results in the
employee no longer being able to participate in an agency fee arbitration. (Los Rios College
Federation ofTeachers/CFTIAFT/Local 2279 (Deglow) (1991) PERB Decision No. 897.) We
see no reason why an exclusive representative's decision to cease collecting a fair share fee
from an employee should be viewed differently. Moreover, this allegation is untimely because
CSUEU ceased collecting fair share fees from Sarca on July
1,
2004, almost three years before
Sarca filed this unfair practice charge. 4
4 HEERA section 3563.2, subdivision (a) states that PERB "shall not issue a complaint
in respect of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge."
4

ORDER
The unfair practice charge in Case No. LA-CO-485-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesiey joined in this Decision.
5