University Professional and Technical Employees, Communications Workers of America Local 9119 (Booth) (PERB 1831H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARCIA C. BOOTH,
ELIZABETH ROSE MILLER,
VIRGINIA VOROUS, 	TERESA LOU JACKSON,
Charging Parties,
v.
UPTE, CWA LOCAL 9119,
Respondent.
Case Nos. SA-CO-80-H,
LA-CO-337-H,
LA-CO-338-H, LA-CO-339-H
PERB Decision No. 	183I-H
March 13, 2006
Appearances: 	Werner Witke, Representative, for Marcia C. Booth, et al,; Leonard Carder by
Kate Hallward, Attorney, for UPTE, CWA Local 9119.
Before Duncan, Chairman; 	Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: 	This ease is before the Public Employment Relations Board
(PERB or Board) on appeal by Marcia C. Booth, et al, (Charging Parties) of a Board agent's
dismissal of their unfair practice charges. The charges alleged that UPTE, CWA Local 9119
(UPTE) violated the Higher Education Employer-Employee Relations Act (HEERA)1 and
PERB Regulation 32994(b) 	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, Charging
Parties' appeal, and the statement of objection to the appeal filed by UPTE.
HEERA is codified at Government Code section 3560, et seq.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
.,

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 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.
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)3 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
3PERB 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) 	An 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 decision maker.
2
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2

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.
PERB cannot delegate authority it does not have to an exclusive representative through
a Board agent. 	The Board agent created an underground regulation to allow a longer period for
objection than what has been set by law. 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.
I -	
n Dyna-Med, Inc v. Fair Employment & Mousing Commission (1987) 43 Cat.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 question
before the Court was whether the agency involved had 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.4th 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,)
w	3

Just as in those cases, nowhere in HEERA or PERB regulations is there any authority
for the Board agent, or even the Board, to decide 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 time lines to one of the parties, the Board agent or even the Board.
if the Legislature did not give a power to an agency, the agency cannot just take it.
Changing the regulation through the Board agent is outside the powers of the Board. Charging
Parties have met their burden in presenting a prima facie case.
Under Golden Plains,4 the facts set forth by the Charging Parties are to be taken at face
value. 	UPTE, in its response to the appeal indicates that Virginia Vorous (Vorous) and Teresa
Jackson (Jackson) have issues involved in their cases that preclude their cases going forward.5
These involve factual disputes that should be addressed by an administrative law judge.
ORDER
The unfair practice charges in Case Nos. 	SA-CO-80-H, LA-CO-337-H, LA-CO-338-H
and LA-CO-339-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 5.
''Golden Plains Unified School District (2002) PERB Decision No. 	1489 (Golden
Plains).
5UPTE states, in its response to the appeal, that Vorous never submitted any challenge
to the allocation determination and Jackson filed her objection October 18, 2004, outside the
time allowed by statute. 	This information was not put forward until the appellate level.
A	
4

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
September3, 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. 	Marcia C. Booth, et a!. (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.
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