Barstow College Faculty Association (Cauble) (PERB 2256E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARK A. CAUBLE,
Charging Party, Case No. LA-CO-1444-E
v. . PERB Decision No. 2256
BARSTOW COLLEGE FACULTY April 25, 2012
ASSOCIATION,
Respondent.

Appearance: Mark A. Cauble, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Mark A. Cauble (Cauble) of the PERB Office of the General
Counsel’s dismissal (attached) of his unfair practice charge. The charge alleged that the
Barstow College Faculty Association (Association) violated the Educational Employment
Relations Act (EERA)’ by entering into a memorandum of understanding (MOU) modifying
the collective bargaining agreement concerning adjunct instructor evaluations without
providing proper notice, requiring a quorum or giving the membership a vote in accordance
with the Association’s bylaws. The question before the Board agent was whether this conduct
breached the Association’s duty of fair representation. The Board agent dismissed the charge,
finding that it failed to state a prima facie case.

The Board has reviewed the entire record in this matter and given full consideration to

the issues raised on appeal and the arguments of the parties. Based thereon, the Board finds

'RERA is codified at Government Code section 3540 et seq.

the Board agent's warning and dismissal letters to be well-reasoned, adequately supported by
the record and in accordance with the applicable law. Accordingly, the Board hereby adopts
the warning and dismissal letters as the decision
of
the Board itself subject to a brief discussion
of
the issues raised on appeal.
DISCUSSION
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635, subdivision (a),2 an appeal from dismissal shall:
(1) State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
this regulation, the appeal must sufficiently place
the
Board and the respondent "on notice
of
the issues raised on appeal." (State Employees
Trades Council United (Ventura, et
al)
(2009) PERB Decision No. 2069-H; City & County
of
San Francisco (2009) PERB Decision No. 2075-M.) An appeal that does not reference the
substance
of
the Board agent's dismissal fails to comply with PERB Regulation 32635,
subdivision (a). ( United Teachers
of
Los Angeles (Pratt) (2009) PERB Order No. Ad-381;
Lodi Education Association (Ruddock) (1995) PERB Decision No. 1124; United Teachers
Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Likewise, an appeal that merely
reiterates facts alleged in the unfair practice charge does not comply with
Regulation 32635, subdivision (a). (Contra Costa County Health Services Department (2005)
PERB Decision No. 1752-M; County
of
Solano (Human Resources Department (2004) PERB
Decision No. 1598-M.)
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Here, the appeal consists entirely
of
allegations previously made and new allegations
and supporting evidence raised for the first time on appeal. The appeal does not reference any
portion
of
the Board agent's determination or otherwise state the specific issues
of
procedure,
fact, law or rationale to which the appeal is taken. Nor does it identify the page or part
of
the
dismissal to which the appeal is taken or state the grounds. Thus, the appeal is subject to
dismissal on this ground alone. (City
of
Brea (2009) PERB Decision No. 2083-M.)
New Evidence and Allegations on Appeal
In the appeal, Cauble presents allegations and supporting evidence that was not
presented during the processing
of
the charge. The new supporting evidence consists
of
a news
article concerning the unveiling
of
an observatory on the college campus. The article is dated
February 4, 2010. Cauble alleges for the first time on appeal that the MOU was a quid pro quo
for the observatory.
PERB Regulation 32635, subdivision (b) provides: "Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence."
The Board has found good cause when "the information provided could not have been obtained
through reasonable diligence prior to the Board agent's dismissal
of
the charge." (Sacramento
City Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
Here, the Board agent dismissed the charge by letter
of
June
1,
2010. The dates
of
the
events alleged for the first time on appeal concerning the observatory predate 	dismissal
of
the charge, as does the news article. The appeal provides no reason why these allegations
could not have been included 	the original or amended charges or why the 	could not
have been provided to the Board agent during the processing of the charge. Thus, we find no
good cause to consider on appeal the new allegations or the new supporting evidence
concerning the observatory.
3

4
ORDER
The unfair practice charge in Case No. LA-CO-1444-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMEN°1 tlELATIONS BOARD
EDMUND G. BROWN JR., Governor
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
June 1, 2011
Mark A. Cauble
24530 Willow Pass Drive
Tehachapi, CA 93561
Re: 	Mark A. Cauble v. Barstow College Faculty Association
Unfair Practice Charge No. LA-CO-1444-E
DISMISSAL LETTER
Dear Mr. Cauble:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 2, 2010 and amended on September 7, 2010. Mark A.
Cauble (Cauble or Charging Party) alleges that the Barstow College Faculty Association
(BCFk or Union or Respondent) violated section 3544.9 of the Educational Employment
-Relations Act (EERA or Act) 1 as enforced through section 3543.6(b) by depriving Charging
Party of the opportunity to vote on a specific issue, by failing to give proper notice of an item
up for vote, and by failing to follow the rules relating to quorum.
Charging Party was informed in the attached Warning Letter dated April 7, 2011, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, he should amend the charge. On April 21, 2011, Charging Party filed a
Second Amended Charge to address the deficiencies explained in the Warning Letter.
Charging Party's Second Amended Charge states, verbatim:
The 3/24/10 Memorandum of Understanding, which modified the
collective bargaining agreement between BCFA and the Barstow
College District, has had a substantial impact on unit members
relationship to their employer so as to give rise to a duty of fair
representation and demonstrates the need for PERB intervention.
Barstow College will evaluate thirty-six temporary/hourly faculty
during the Spring 2011 Semester (see attached Instruction Office
email). Faculty experience shows that it takes about four hours
for each evaluation .... As a result, the MOU has saved the
District about seven weeks of administrative work this school
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Reg1:lations may be found at www.perb.ca.gov.

LA-CO-1444-E
June 1, 2011
Page 2
year and as per the Barstow College Business Office figures the
MOU has saved the District around sixty-five thousand dollars
this school year []. However, the MOU does not give the BCFA
an equivalent value in exchange for the administrative savings.
The only concession to BCF A was, "Every attempt will be made
to make sure that a full-time faculty member is not selected to
serve on more than three evaluation teams per semester ... "
Additionally, the MOU has placed the full-time Faculty in
substantial legal jeopardy without a clear idea
of if
the
administration
of
the BCF A would defend them. Originally, the
evaluation process for temporary/hourly faculty was, "conducted
by an instructional administrator, assisted by a full-time faculty
member
...
"
	[]
	Under the MOU, "The full-time faculty evaluator
will conduct the classroom observations ... Instructional
administrators will be responsible for reviewing the evaluation
report based upon the full-time faculty observations" []. The
hiring
of
a temporary/hourly faculty is thus based on the full-time
faculty members evaluation!
	If
a temporary/hourly faculty
member launched a legal challenge to the evaluation, the MOU
would place a legal burden on the faculty that did not exist
before. Finally, who would defend the full-time faculty
evaluations for temporary/hourly faculty? By performing an
administrative function, would the full-time faculty be defended
by the administration or as union members, would the full-time
faculty be defended by the BCFA?
Consequently, the 3/24/10 MOU has had a substantial impact on
the BCF A members relationship to the Barstow College District
so as to give rise to a duty
of
fair representation and demonstrates
a need for PERB intervention.
Charging Party's original and First Amended Charge alleged that Charging Party was not
given proper notice
of
an MOU item up for vote, that Respondent did not follow its rules
relating to quorum, and that he was not provided with the opportunity to vote on the
"evaluation
of
faculty members" issue. As explained in the Warning Letter, these allegations
concern internal union affairs for which PERB does not have jurisdiction. (Stationary
Engineers Local 39 (May) (2010) PERB Decision No. 2098-M.) The Warning Letter
explained that in very limited situations the Board has intervened in the internal affairs
of
a
union when alleged union reprisals against members substantially impacted the employment
relationship. 	For example, in California Union
of
Safety Employees (Coelho) (1994) PERB
Decision No. 1032-S, the union filed a citizen's complaint against an employee with his
employer, causing the employer to initiate an investigation of the employee's conduct. 	In
finding a violation, the Board held that the union's conduct directly and substantially impacted
the employee's employment relationship with his employer.

LA-CO-1444-E
June 1, 2011
Page 3
Nothing in the original, First Amended Charge, or Second Amended Charge demonstrates that
the Union retaliated against Charging Party, which resulted in a substantial impact on the
employment relationship
of
bargaining unit employees to their employer.
Moreover, with respect to the duty
of
fair representation, Charging Party has not established
bad faith, discrimination, or arbitrary conduct by the Union. (United Teachers
of
Los Angeles
(Collins) (1982) PERB Decision No. 258.) As a general rule, an exclusive representative
enjoys a wide range
of
bargaining latitude. As the United States Supreme Court stated
in Ford
Motor
Co.
v.
Huffman (1953) 345 U.S. 330, 338:
Inevitably differences arise in the manner and degree to which the
terms
of
any negotiated agreement affect individual employees
and classes
of
employees. The mere existence
of
such
differences does not make them invalid. The complete
satisfaction
of
all who are represented is hardly to be expected. A
wide range
of
reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to good faith and honesty
of
purpose in the exercise
of
its
discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members
of
the unit it represents.
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty
of
fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation a/Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Party was not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Los Rios College Federation a/Teachers (Violett).)
Therefore, the charge is hereby dismissed based on the facts and reasons set forth herein and
the April 7, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1444-E
June 1, 2011
Page 4
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 which meets the
requirements
of
PERB Regulation 3213 5(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 and
32130.)
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
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. 	(Cal. Code Regs, tit.
8,
§ 32635, subd. (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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit. 8, § 32135, subd. (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. (Cal. Code Regs, tit. 8, § 32132.)

LA-CO-1444-E
June
1,
2011
Page 5
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
Attachment
cc: Robert E. Lindquist

STATE OF CALIFORNIA 	EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMEN'1 .tlELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
April 7, 2011
Mark A. Cauble
24530 Willow Pass Drive
Tehachapi, CA 93561
Re: 	Mark
A.
Cauble
v.
Barstow College Faculty Association
Unfair Practice Charge No. LA-CO-1444-E
WARNING LETTER
Dear Mr. Cauble:
Employment	The above-referenced unfair practice charge was filed with the Public 	Relations
Board (PERB or Board) on September 2, 2010 and amended on September 7, 2010.
Mark
A.
Cauble (Cauble or Charging Party) alleges that the Barstow College Faculty Association
(BCFA or Respondent) violated section 3544.9
of
the Educational Employment Relations Act
(EERA or Act)1 as enforced through section 3543.6(b) by depriving Charging Party
of
the
opportunity to vote on a specific issue, by failing to give proper notice
of
an item up for vote,
and by failing to follow the rules relating to quorum.
FACTUAL BACKGROUND
Charging Paiiy's Position
The charge provides, verbatim:
A vote was taken at the 3/11/10 meeting
of
the Barstow College
Faculty Association that modified the BCF A collective
bargaining agreement with the Barstow Community College
District through a Memorandum
of
Understanding [cite omitted].
The MOU dealt with the evaluation
of
temporary, hourly faculty
by full-time faculty. 	The item wasn't on the agenda, so I wasn't
aware that it was to be voted on [cite omitted]. There wasn't a
quorum at the meeting as per the BCF A Bylaws. A quorum for a
BCFA meeting requires forty percent
of
the membership [cite
omitted]. At the time BCFA had forty-two members [cite
omitted]. Only ten members were present at the 3/11/10 meeting,
which was short of the sixteen necessary for a quorum [cite
omitted]. I was not afforded the opportunity to vote as provided
1 EERA is codified at Governm~nt Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1444-E
April7,2011
Page 2
by California Teachers Association BYLAWS, which includes
under "Rights and Privileges
of
Members," the following
statement, "The right to vote on all matters submitted to the
chapter membership" [cite omitted] and by the contract between
BCF A and BCCD, which mandates, " ... after reaching agreement,
the Association shall submit the Agreement to its members for
ratification ... " [cite omitted].
The President Scott Bulkley signed an MOU with the District
on
3/24/10 [cite omitted]. All attempts to convince the previous and
present BCF A Presidents to give all members a chance to vote on
the MOU have failed. I spoke directly to President Scott Bulkley
before the Barstow College graduation ceremony on May 21,
2010, and he led me to believe that he would take action in June
to solve the problem. He did not. I exchanged e-mails with the
newly elected president, Lewis Goldstein, and I was under the
impression that a solution would be found during our first
meeting
of
the school year on August 13, 2010. The matter was
discussed, but no resolution was found.
As a result, I have been forced to file an unfair labor practice
charge against BCF A. My remedy is to go back to the situation
before the vote was taken and to have a new vote where I and all
other members
of
the BCF A have an opportunity to vote on the
MOU.
Respondent's Position
Respondent asserts that as per the February 10, 2010 faculty-wide e-mail message delivered to
employees, including Charging Party, the allegation that "the item wasn't on the agenda, so
[Charging Party] wasn't aware that it was to be voted on" is without
merit
	Alternatively,
Respondent asserts that Charging Party's charge concerns internal union affairs which fall
outside the scope
of
representation and PERB
's
jurisdiction.
DISCUSSION
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERE
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
~ PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1444-E
April 7, 2011
Page 3
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing
of
the charge. (Coachella Valley Mosquito
and Vector Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
A. 	Duty
of
Fair Representation
Based on the charge as written, it appears that Charging Party is alleging that Respondent
breached its duty
of
fair representation.
1.	
Internal Association Affairs
Generally, PERB will not review matters concerning internal union affairs unless theyhave a
substantial impact on the relationship
of
unit members to their employer so as to give
rise to the duty
of
fair representation. (Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106 (holding that only such activities that have a
substantial impact on the relationships
of
unit members to their employer are subject to the
duty); see also, California State Employees Association (Hutchinson, et al.) (1998) PERB
Decision No. 1304-S (noting that PERB has traditionally refrained from reviewing the internal
affairs
of
unions); California State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S (holding that, "PERB's function is to interpret and administer the statutes
which govern the employer-employee relationship, not to police internal relationships among
various factions within employee organizations ... internal union disputes are more
appropriately presented in a different forum"); California State Employees Association
(Gonzalez-Coke, et al.) (2000) PERB Decision No. 1411-S (holding that charging parties fail
to meet their threshold burden when no factual evidence
of
impact on the employer-employee
relationship is provided in the charge).)
In Stationary Engineers Local 39 (May) (2010) PERB Decision No. 2098-M, the Board held
that:
Thus, in order to state a prima facie violation of the duty
of
fair
representation under the MMBA, a charging party must at a
minimum include an assertion of facts from which it becomes
apparent in what manner the exclusive representative's action or
inaction was without a rational basis or devoid of honest

LA-CO-1444-E
April 7, 2011
Page 4
(Attard)	judgment. (International Association
of
Machinists
PERB Decision No. 1474-M.) The burden is on the	(2002)
charging party to show how an exclusive representative abused
its discretion, and not on the exclusive representative
to show how it properly exercised its discretion. (United
970.)Teachers
-Los
Angeles (Wyler) (1993) PERB Decision No.
does	It is well-established, however, that PERB 	not have
jurisdiction over matters concerning internal union affairs unless
they have a substantial impact on the relationship
of
bargaining
unit employees to their employer so as to give rise to a duty
of
representation. (Service Employees International Union,fair
Local 99 (Kimmett), supra, PERB Decision No. 106; California
State Employees Association (Hutchinson, et al.), supra, PERB
Decision No. 1304-S.) In California State Employees
Association (Hutchinson) PERB Decision No. 1369-S, the Board
dismissed allegations that the union conducted elections outside
the timeframe required by union bylaws; and mailed election
ballots, improperly validated ballots, failed to properly distribute
election results, and improperly installed union officers in
violation
of
union bylaws. In California State Employees
Association (Hackett) (1993) PERB Decision No. 1012-S, the
Board found no substantial impact on the employee-employer
relationship where the union suspended the bargaining team;
submitted a proposal to the membership for ratification that was
approved by the bargaining team; failed to provide a secret	not
ballot; and failed to give the membership any choice on the ballot
except to vote for ratification or strike.
union	in
	of
comparison, the Board has intervened 	the internal affairs 	a union when allegedIn
the employment relationship. For example,reprisals against members substantially impacted
in California Union a/Safety Employees (Coelho) (1994) PERB Decision No. 1032-S, the
with his employer, causing the employerunion filed a citizen's complaint against an employee
of
the employee's conduct. In finding a violation, the Board held	to initiate an investigation
that the union's conduct directly and substantially impacted the employee's employment
relationship with his employer.
notBased 	Charging 	wason the cases cited above, 	Party's allegations that he 	given proper
rules relating to quorum, andnotice of an item up for vote, that Respondent did not follow its
on the "evaluation of faculty members"that he was not provided with the opportunity to vote
are matters concerning internal union affairs. Additionally, Charging Party fails to allegeissue
internal union affairs had a substantial impact on	specific factual details that demonstrate these
the relationship of employees to their employer so as to give rise to the duty of fair
representation.

LA-CO-1444-E
April 7, 2011
Page 5
For these reasons the charge, as presently written, does not state a prima facie case. 3
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled Second Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
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
PERB.
If
an amended charge or withdrawal is not filed on or before April 18, 2011,
with
4
PERB
will dismiss your charge.
If
you have any questions, please call me at the above telephone
number.
Jonathan Levy
Regional Attorney
JL
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
4 A document is "filed" on the date the document is actually .feceived by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)