Claremont Faculty Association (Lukkarila) (PERB 2474E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DA VE LUKKARILA,
Charging Party,
v.
CLAREMONT FACULTY ASSOCIATION,
Respondent.
Case No. LA-CO-1630-E
PERB Decision No. 2474
February 29, 2016
Appearances: Dave Lukkarila, on his own behalf; California Teachers Association by Richa
Amar, Attorney, for Claremont Faculty Association.
Before Martinez, Chair; Huguenin and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Dave Lukkarila (Lukkarila) to a proposed decision
(attached) by an administrative law judge (ALJ), dismissing the complaint and underlying
unfair practice charge against the Claremont Faculty Association (Association). The complaint
(as amended) alleged that the Association failed to comply with Lukkarila's multiple requests
for detailed :financial reports, pursuant to Educational Employment Relations Act1 (EERA)
section 3546.5, and that such failure interfered with his ability to campaign for an elected
position· with the Association.
The Board has reviewed the entire record in this matter, including Lukkarila's
exceptions and the Association's opposition to exceptions. The record as a whole supports the
ALJ' s factual :findings.
1 EERA is codified at Government Code section 3540 et seq.

We affirm the ALJ' s dismissal
of
any allegation that the Association did not provide
reports for fiscal years prior to the 2012-2013 fiscal year, as well as the ALJ's dismissal
of
the
allegation that the Association's actions in denying Lukkarila the required signed and certified
financial documents interfered with his ability to campaign for Association president. On
those claims alone, we find the proposed decision well-reasoned, adequately supported by the
record and in accordance with applicable law. Accordingly, on these claims the Board hereby
adopts the proposed decision as the decision
of
the Board itself.
However, with regard to the claim that the Association failed to timely respond to
Lukkarila's request for financial records for the 2012-2013 fiscal year, we disagree with the
ALJ's conclusion that the Association's belated compliance with Lukkarila's request for
financial records renders Lukkarila' s claim moot. 	On that claim alone, we reverse the ALJ' s
dismissal
of
the charge and concomitant granting
of
the Association's motion to dismiss the
amended complaint, as explained below.
LUKKARILA'S EXCEPTIONS
Lukkarila excepts to the ALJ's reliance on California Nurses Association (O'Malley)
(2003) PERB Decision No. 1578-H (O'lvfalley) in dismissing Lukkarila's charge, and to the
ALJ's alleged disregard for Association President Dave Chamberlain's (Chamberlain) hostility
towards Lukkarila' s requests for financial statements and for the resulting advantage obtained
by Chamberlain in the campaign for Association president.
Lukkarila also excepts to what he characterizes as the ALJ's dismissal
of
the charge
because he failed to file a charge alleging the Association violated its duty of fair
representation under EERA section 3544.9. Lukkarila notes that he filed his charge under
EERA section 3543.6, subdivision (b), which, in relevant part, makes it unlawful for an
2

employee organization to "interfere with, restrain, or coerce employees because
of
their
exercise
of
rights guaranteed by this chapter." (EERA section 3543.6, subd. (b).)
Lastly, Lukkarila excepts to the ALJ's reliance on Rio Teachers Association (Lucas)
(2011) PERB Decision No. 2157 and California School Employees Association & its Chapter
47 (Shampine, et al.) (2014) PERB Decision No. 2355 (Shampine) in dismissing his allegations
that the Association did not provide fiscal year reports prior to the 2012-2013 fiscal year.
The Association asserts that the claims should be dismissed because some
of
Lukkarila's requests were untimely, that it eventually provided the requested documents, and
that the failure to provide the financial- reports did not have a substantial impact on Lukkarila' s
employment.
DISCUSSION
Since the repeal
of
PERB Regulation 321252 in 2006, the appropriate procedure to
remedy a failure to comply with section 3546.53 is to file an unfair practice charge. As with
any unfair practice charge, when the PERB Office
of
the General Counsel (OGC) has issued a
complaint alleging a violation
of
EERA section 3546.5, an ALJ has issued a proposed decision,
2 PERB regulations are codified at California Code
of
Regulations, title. 8, section
31001 et seq.
3 EERA section 3546.5 states, in relevant part:
Every recognized or certified employee organization shall keep
an adequate itemized record
of
its financial transactions and shall
make available annually, to the board and to the employees who
are members
of
the organization, within 60 days after the end
of
its fiscal year, a detailed written financial report thereof in the
form of a balance sheet and an operating statement, signed and
certified as to accuracy by its president and treasurer, or
corresponding principal officers. In the event of failure of
compliance with this section, any employee within the
organization may petition the board for an order compelling such
compliance, or the board may issue such compliance order on its
motion.
3

and one or more parties have filed exceptions to that proposed dedsion, the Board itself may
hold that the respondent has violated EERA and order an appropriate remedy, including a
posting.
BERA section 3546.5, however, equips the Board with an auxiliary but voluntary
course
of
action, viz., "the [B]oard may issue such compliance order [with section 3546.5] on
its [own] motion." (Emphasis added.) This sentence uses the language "may," indicating a
permissive intent by the legislature.
Although not manifest in the language
of
BERA section 3546.5 itself, the authority it
provides the Board to essentially bypass the traditional unfair practice process and instead
issue a compliance order on its own motion is directly correlated to the ease
of
the remedy,
viz., providing an individual union member with the requested financial reports. However, the
Board retains the discretion to forego its ability to issue a compliance order on its own motion
and instead awaitthe completion
of
the unfair practice process before deciding whether or not
it will order a remedy, including but not limited to a posting order.
In Shampine, supra, PBRB Decision No. 2355, the Board did not await the completion
of
the unfair practice process before ordering the respondent to provide a financial report to the
charging parties. However, the procedural posture
of
that case was notably different than the
case before us. 	In Shampine, the OGC had not issued a complaint, but rather had dismissed the
unfair practice charge. At that point, the Board would have been within its authority to remand
the case to the OGC to issue a complaint. However,
because CSEA's position statement indicates that the documents
exist and are located at the home
of
its former president, it is
appropriate to order CSEA and its Chapter 47 to produce the
documents required by EERA section 3546.5 for the fiscal year in
question
....
4
(Id. at p. 13)

In
essence, the respondent in Shampine, supra, PERB Decision No. 2355 had stipulated
to the very facts necessary for the Board to determine that the charging parties were entitled to
the financial report in question. In that specific procedural posture, the Board exercised its
discretion under EERA section 3546.5 to issue a compliance order on its own motion, rather
than remanding the case to the OGC. Nothing in Shampine suggests that the Board lacked the
authority to remand the case to the OGC for issuance
of
the complaint, or that
if
the case
returned to the Board on exceptions to a proposed decision, that the Board could not find the
respondent had violated EERA, even
if
the union had complied with EERA section 3456.5
subsequent to the issuance
of
the complaint.
In
the present case, the OGC has issued a complaint. It is therefore incumbent upon
both the ALJ and the Board to order a remedy
if
in fact the respondent has violated EERA
section 3546.5. (State
of
California (Department
of
Transportation) (1983) PERB Decision
No. 361-S at pp. 17-18 ["We are no less mindful than our dissenting colleague
of
the Board's
obligation to provide remedies which effectuate the purposes
of
EERA"].) If the Board were
to decline finding an EERA violation, employee organizations would lack the incentive from
an enforcement perspective to provide union members with financial reports until the member
filed an unfair practice charge and the OGC issued a complaint.
It is clear that the respondent did violate EERA section 3546.5, because the financial
report it initially provided to Lukkarila was not "signed and certified as to accuracy by its
president and treasurer, or corresponding principal officers." (EERA section 3546.5) The
Association argues that it was excused from its EERA violation when it provided Lukkarila
with the signed financial report. However, it did not provide the signed report until after the
OGC issued the complaint, and nearly a year after Lukkarila requested the report.
5

An unexcused delay in responding to a request for a financial report is analogous to an
employer's unexcused delay in responding to a request for information that is relevant and
necessary to an employee organization's representational duties. Likewise, an unreasonable
delay in providing requested information is tantamount to a failure to produce the information
at all. (Chula Vista City School District (1990) PERB Decision No. 834.) Furthermore,
Even a delay as short as two months, without employer
explanation, has been held to be a violation. The fact that an
employer ultimately furnishes the information does not excuse an
unreasonable delay.
(Id. at 51; citations omitted)
Therefore, for the period
of
time between Lukkarila' s request for the report and the
Association's delay in providing Lukkarila with a signed report, the Association was in breach
of
EERA section 3546.5. Providing the report to Lukkarila after the OGC issued the
complaint, without explanation, did not excuse the violation prior to that date. During the
delay, the unsigned financial report had questionable value to Lukkarila, either as an
Association member or as a candidate for Association president, since he had no verification
that the unsigned report reflected the true financial status
of
the Association.
O'Malley, supra, PERB Decision No. 1578-H relied upon by the ALJ, is inapplicable
to the present case. As the proposed decision notes, PERB Regulation 32125, subdivision (b),
was repealed in 2006, and the appropriate procedure to remedy a failure to comply with section
3546.5 is now to file an unfair practice charge. O'Malley was decided prior to 2006, when the
sole remedy available to parties for a violation
of
section 3546.5 was an order compelling
compliance, and the sole avenue for achieving that result was for the charging party to file a
petition to compel compliance. (Id. at pp. 5-6.) Since the charging party in that case could not
have sought an order by the Board that the respondent had violated EERA, the sole available
6

remedy was achieved when the respondent filed the requested reports with the Board and
copies were sent to the charging party. Under that very different procedural posture, the Board
held that the issues raised in the charge were moot.
Subsequent to the repeal
of
PERB Regulation 32125, a charging party alleging a
violation
of
EERA section 3546.5 is now entitled to a remedy besides receipt
of
the applicable
financial report, viz., a posting by the respondent. 	For this reason, the Board's finding in
O'Malley, supra, PERB Decision No. 1578-H that the issues were moot after the charging
party's receipt
of
the financial report is inapposite to the present matter, because Lukkarila is
entitled to seek a posting order.
California State University Employees Union, SEIU Local 2579, CSEA (Sarca) (2006)
PERB Order No. Ad-351-H, also relied upon by the ALJ, suffersfrom the same inadequacies
as O'Malley, as the relevant facts in that case occurred prior to the repeal
of
PERB Regulation
32125.
With regard to Lukkarila' s charge
of
interference, we reject Lukkarila' s exception that
the ALJ dismissed the charge because Lukkarila failed to allege that the Association violated
its duty
of
fair representation under EERA section 3544.9.
TheALJ
makes reference to cases
in which a charging party alleges a breach
of
the duty
of
fair representation as an example
"where PERB has in the past inserted itself into the dispute." (Proposed decision at p. 12.)
The ALJ notes this example as a contrast to the present case, where the complaint touches only
on internal union affairs
of
an employee organization that would not substantially impact
Lukkarila's relationship with an employer. Nowhere does the ALJ suggest that Lukkarila's
charge should be dismissed because he did not allege a violation of the Association's duty
of
fair representation. We also reject the remaining exceptions as they raise no issues that were
not already adequately addressed in the proposed decision.
7

We note that when a respondent admits to a failure to comply with EERA section
3546.5 at the charge processing stage, we do not profess a preference that the OGC issue a
complaint. The OGC has full authority under EERA section 3546.5 to issue an order
compelling compliance with that section and, upon full compliance with the order, to dismiss
the charge, even when the charge is pleaded alongside independent charges that meet the
criteria for the issuance
of
a complaint.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Claremont Faculty Association (Association) violated the Educational
Employment Relations Act (EERA), Government Code section 3546.5 by failing to timely
provide Dave Lukkarila (Lukkarila) with a detailed written financial report
of
its financial
transactions for fiscal year 2012-2013 in the form
of
a balance sheet and an operating
statement, signed and certified as to accuracy by its president and treasurer, or corresponding
principal officers. The remaining allegations are DISMISSED WITH PREJUDICE.
Pursuant to EERA section 3546.5, it hereby is ORDERED that the Association, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.
	Failing to make available annually to Association members within sixty
(60) days after the end of the Association's fiscal year, a detailed written financial report
of
an
adequate itemized record
of
its financial transactions, in the form
of
a balance sheet and an
operating statement, signed and certified as to accuracy by the Association president and
treasurer, or corresponding principal officers.
8

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.
	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all Association locations where notices to Association members customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
the Association, indicating that it will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material. In addition to physical posting
of
paper notices, the Notice shall be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the Association to communicate with its members.
2. 	Written notification
of
the actions taken to comply with this Order shall
be made to the Office
of
the General Counsel
of
the Public Employment Relations Board, or
the General Counsel's designee. The Association shall provide reports, in writing, as directed
by the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Dave Lukkarila.
Chair Martinez and Member Huguenin joined in this Decision.
9

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CO-1630-E, in which all parties had the
right to participate, it has been found that the Claremont Faculty Association (Association)
violated the Educational Employment Relations Act (EERA), Government Code section 3546.5.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
L 	Failing to make available annually to Association members within sixty
(60) days after the end
of
the Association's fiscal year, a detailed written
financial report
of
an adequate itemized record
of
its financial
transactions, in the form
of
a balance sheet and an operating statement,
signed and certified as to accuracy by the Association president and
treasurer, or corresponding principal officers.
Dated: 	CLAREMONT FA CULTY ASSOCIATION
---------
By: Authorized Agent
--------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DA VE LUKKARILA,
Charging Party,
v.
CLAREMONT FACULTY ASSOCIATION,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CO-1630-E
PROPOSED DECISION
(June 29, 2015)
Appearances: Dave Lukkarila, on his own behalf; Richa Amar, Staff Attorney, California
Teachers Association, for Claremont Faculty Association.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges that an exclusive representative failed to comply with a member's
multiple requests for detailed financial reports, pursuant to Educational Employment Relations
Act1 (EERA) section 3546.5, and that such failure interfered with the member's ability to
campaign for an elected position with the exclusive representative. The exclusive
representative asserts that the claims should be dismissed because some
of
the charging party's
requests were untimely, that it eventually provided the requested documents, and that the
failure to provide the financial reports did not have a substantial impact on the member's
employment.
On August 14, 2014, Dave Lukkarila (Lukkarila) filed an unfair practice charge
(charge) against the Claremont Faculty Association (CFA or Association). The charge was
signed under penalty of perjury by Lukkarila to be true and complete to the best of his
knowledge. The charge stated in brief that: 	on June 7, 2013, Lukkarila declared that he was
going to begin his campaign for the office of Association President for 2013-2014; that he·
1 BERA is codified at Government Code section 3540 et seq.

requested on four occasions between February 3 and March 3, 2014, for the Association to
provide him with copies
of
its financial records for the past three years;2 that Lukkarila never
received "signed and certified" financial records; that the Association violated EERA sections
3543.6, subdivision (b), and 3546.5; and that the Association's failure to release "signed and
certified" financial records interfered with his campaign for Association President by
preventing him from creating a political platform based upon accurate and truthful facts.
On November 25, 2014, the Office
of
General Counsel
of
the Public Employment
Relations Board (PERB) issued a complaint which stated in pertinent part:
l . 	Charging Party is an employee within the meaning
of
Government Code sections 3540.l(j).
2. 	Respondent is the exclusive representative within the
meaning
of
Government Code section 3540.1 (e)
of
an appropriate
unit
of
employees.
3. 	On or about February 3, 2014, Charging Party requested
that CFA provide "financial statements, going back three years."
4. 	Respondent failed to provide a balance sheet and an
operating statement, signed and certified as to the accuracy
of
such documents by its president and treasurer, or corresponding
principal officers, in violation
of
Government Code
section 3546.5.
On November 25, 2014, a formal hearing was.,set for March 9, 2015.
/
On December 9, 2014, the Association filed its answer. It admitted that it provided
financial records which were unsigned, but also included a representation that the records were
accurate. The Association asserted that
if
Lukkarila requested, it would provide Lukkarila a
balance sheet and operating statement and certify the accuracy of the document with signatures
from the Association President and Treasurer.
2 Lukkarila, however, clarified that he would accept financial records for the 2012-2013
fiscal year.
2

First Motion to Dismiss
On February 9, 2015, the Association filed a motion to dismiss and attached to the
motion the following financial records
of
the Association: Statement
of
Activities for the Year
Ended August 31, 2013; Statement
of
Financial Position, dated August 31, 2013; and
Statement
of
Cash Flows for the Year Ended August 31, 2013. The financial records were
signed and certified by the Association President and Treasurer on January 31, 2015, and
February 2, 2015, respectively.3 The motion also included a letter to Lukkarila dated
February 5, 2015, which stated that the Association's "balance sheet and operating statement
for fiscal year ending August 31, 2013, signed and certified as to accuracy by Claremont
Faculty Association's President and Treasurer, and responsive to your February 3, 2014
request" were enclosed. The Statement
of
Financial Position set forth the Association's
"Assets" and "Liabilities and Net Assets." The Statement
of
Cash Flows contained the
following reported categories: "Cash Flows from Operating Activities"; "Cash Flows from
Investing Activities"; "Net Increase in Cash"; "Beginning Cash and Cash Equivalents"; and
"Ending Cash and Cash Equivalents." The Statement
of
Activities set forth the Association's
"Revenues, Gains and other Support"; its "Expenses"; its "Increase (Decrease) in Net Assets";
and
its•
"Net Assets at the Beginning
of
the Year" and "Net Assets at the End
of
the Year."
The Association contended in its motion that Lukkarila was untimely in his request for
financial reports prior to the 2012-2013 fiscal year and as the Association had now provided
him with the 2012-2013 fiscal year financial reports, the complaint was now moot and should
be dismissed. The Association also argued that Lukkarila's interference allegation was beyond
the jurisdiction of PERB as it intruded into internal union matters unrelated to Lukkarila' s
3 The certification contained the following language, "We certify that the audited
financial [r]eport above is accurate to the best of our knowledge."
3

employment relationship and did not have a substantial impact on his relationship with the
employer. (Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106; California State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S, pp. 24-25.)
On February 13, 2015, the Association requested that the March 9, 2015 formal hearing
date be taken
off
calendar pending the Administrative Law Judge (ALJ) Valerie Pike Racho's
(Pike Racho) ruling on the motion to dismiss.
On February 17, 2015, ALJ Pike Racho afforded Lukkarila an opportunity to respond to
the Association's answer and its motion to dismiss. The ALJ granted the Association's request
to remove the matter from the formal hearing calendar.
Motion to Amend the Complaint
On or about March 3, 2015, Lukkarila filed a response to the motion to dismiss, request
to continue the hearing, and request to amend the complaint. In short, Lukkarila contended
that the titles
of
the financial records provided were not "Balance Sheet" or "Operating
Statement," so an evidentiary hearing should be conducted to determine whether these records
meet the requisites
of
EERA section 3546.'5. Lukkarila requested that the complaint be
amended to include an interference allegation that the Association's failure to provide him with
signed and certified financial records had "some" effect on his campaign and gave his
opponent and incumbent, David Chamberlain (Chamberlain), an advantage over him in the
election. Lukkarila argued that the amendment was appropriate because the allegation was
raised in the charge, but had not been included in the complaint nor been dismissed by the
PERB Office
of
General Counsel.
On March 27, 2015, the Association filed its opposition to Lukkarila's motion to amend
the complaint. The Association opposed Lukkarila being allowed to add the interference
4

allegation and further contended that PERB did not l\ave jurisdiction over the interference
allegation based upon similar arguments it made in its motion to dismiss.
Amended Complaint
On April 17, 2015, ALJ Pike Racho denied the motion to dismiss without prejudice and
granted Lukkarila's motion to amend the complaint. The amended complaint added
paragraphs five through seven to the already existing four paragraphs
of
the original complaint.
The amended complaint provided:
1.
	Charging Party is an employee within the meaning
of
Government Code sections 3540.l(j).
2.
	Respondent is the exclusive representative within the
meaning
of
Government Code section 3540.l(e)
of
an appropriate
unit
of
employees.
3. 	On or about February 3, 2014, Charging Party requested
that CFA provide "financial statements, going back three years."
4. 	Respondent failed to provide a balance sheet and an
operating statement, signed and certified as to the accuracy
of
such documents by its president and treasurer, or corresponding
principal officers, in violation
of
Government Code section
3546.5.
5.
	On or about June 7, 2013, Charging Party notified
Respondent's agents and current President, Dave Chamberlain
(Chamberlain), that he was going to run for that position
of
President
of
Respondent organization in an upcoming
May 22-23, 2014, election to select Respondent's officers. On or
about February 3, 24, and 25, 2014, and March 3, 2014, Charging
Party requested that Chamberlain provide signed and certified
copies
of
Respondent's financial statements for 2012-2013.
6. 	Respondent, acting through its agent Chamberlain, failed
and refused to provide Charging Party with signed and certified
copies of Respondent's 2012-2013 financial statements prior to
the election for Respondent's officers held on or about
May 22-23, 2014.
7. 	By.the acts and conduct described in paragraph 6,
Respondent interfered with employee rights guaranteed by the
5

Educational Employment Relations Act in violation
of
Government Code section 3543.6(b).
Answer to Amended Complaint
On
May 11, 2015, the Association filed it answer to the amended complaint. The
answer was accompanied by a declaration under penalty
of
perjury in compliance with PERB
Regulation 32644, subdivision (b)(7).4 Specifically, the Association admitted to the
allegations in paragraphs one, two and three. It also set forth in its answer:
4. 	In answering Amended Complaint paragraph 4,
Respondent admits that prior to the filing
of
Respondent's
Answer to the Complaint, it failed to provide a balance sheet and
an operating statement that were signed and certified as to the
accuracy
of
such document by its president and treasurer, or
corresponding principal officers, in violation
of
Government
Code section 3546.5, but on February 5, 2015, Respondent
provided Charging Party its 2012-2013 balance sheet and
operating statement for the fiscal year ending August 31, 2013.
5.
	In
answering Amended Complaint paragraph 5,
Respondent admits that: Charging Party notified Respondent's
President Dave Chamberlain on or about June 9, 2013 that he was
going to run for the position
of
President in the next election;
Charging Party requested copies
of
Respondent's 2012-2013
financial statements on or about February 3, 2014; and Charging
Party requested signed and certified copies
of
Respondent's
2012-2013 financial statements on or about February 23 and
25, 2014.
6. 	In answering Amended Complaint paragraph 6,
Respondent denies that it failed to provide Charging Party with
copies
of
its financial statements prior to the election for
Respondent's officers held on or about May 22-23, 2014, but
admits that the copies provided to Charging Party were not signed
and certified.
7. 	In answering Amended Complaint paragraph 7,
Respondent denies the allegation
of
paragraph 7
of
the
Complaint.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
6

In its answer, the Association also asserted affirmative defenses
of
timeliness and
PERB's lack
of
jurisdiction over the interference allegation as it concerned internal union
governance, which was unrelated to Lukkarila's employment.
Motion to Dismiss the Amended Complaint
On June 3, 2015, the Association filed a motion to dismiss the amended complaint. The
Association made similar arguments as previous, except with more extensive case citations.
By the date
of
this proposed decision, Lukkarila never responded to the motion to dismiss the
amended complaint, nor requested additional time to do so. The fourteen days to file a
response to the motion pursuant to PERB Regulation 32190, subdivision (b), had elapsed.
Transfer
of
Case
On June 10, 2015, the case was transferred from ALJ Pike Racho to ALJ
Shawn
P.
Cloughesy. The formal hearing was previously scheduled for July 20 and 21, 2015.
FINDINGS OF FACT
When considering a motion to dismiss, the Board construes all facts in the manner most
favorable to the non-moving party. (See California State Employees Association (Parisi)
(1989) PERB Decision No. 733-S [treating motion to dismiss as motion for summary
judgment]; Los Angeles Community College District (1983) PERB Decision No. 331 [treating
motion to dismiss as motion for judgment on the pleadings].) Additionally, the admission
of
facts in the answer to the amended complaint is a conclusive concession
of
the truth
of
a
matter, which has the effect
of
removing it from the issues in controversy. (See Regents
of
the
University
of
California (2012) PERB Decision No. 2302-H, adopted ALJ's proposed decision,
p. 15.)
The parties do not dispute what occurred. In a sense, through the verified unfair
practice charge, the amended complaint, and its corresponding verified answer, the Association
7

has stipulated to the truth
of
much
of
the pleadings. As such, factual findings can be made for
purposes
of
determining this motion to dismiss.
Lukkarila is an employee within the meaning
ofEERA
section 3540.1, subdivision
G).
The Association is the exclusive representative within the meaning
of
Government Code
section 3 540.1, subdivision (e
),
of
an appropriate unit
of
employees.
On
or
about June 7, 2013, Lukkarila notified the Association President Chamberlain
that he was going to run for that position
of
Association President in an upcoming
May 22-23, 2014 election. Between the dates
of
February 3 and March 3, 2014, Lukkarila
requested three years
of
financial records, but admitted that he would accept the financial
records for the 2012-2013 fiscal year. The Association during this period
of
time provided
financial records, but they were not "signed and certified" by the Association President and its
Treasurer. Lukkarila did not have signed and certified financial records during the time
of
his
campaign and lost the election.
On or about February
5,
2015, the Association provided Lukkarila with the following
signed and certified financial records: Statement
of
Activities for the Year Ended
August 31, 2013; Statement
of
Financial Position, dated August 31, 2013; and Statement
of
Cash Flows for the Year Ended August 31, 2013. These financial records contain information
as to the Association's assets and liabilities; total ~ssets; total liability; total net assets; total
liabilities and net assets; revenues and expenses; net assets at the beginning
of
the year, and net
assets at the end
of
the year; and beginning and ending cash.
ISSUES
1.	
Was the initial request for three years
of
financial documents timely?
2. 	Does the Association's providing the financial records on February 5, 2015,
mandate the dismissal of the allegation?
8

3. 	Did the failure to provide "signed and certified" financial records before the
election constitute unlawful interference?
CONCLUSIONS OF LAW
Pertinent EERA Sections
EERA section 3543.6, subdivision (b), provides:
It shall be unlawful for an employee organization to:
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter.
(Emphasis added.)
EERA section 3546.5 provides:
Every recognized or certified employee organization shall keep
an adequate itemized record
of
its financial transactions and shall
make available annually, to the board and to the employees who
are members
of
the organization, within 60 days after the end
of
its fiscal year, a detailed written financial report thereof in the
form
of
a balance sheet and an operating statement, signed and
certified as to accuracy by its president and treasurer, or
corresponding principal officers. In the event
of
failure
of
compliance with this section, any employee within the
organization may petition the board for an order compelling such
compliance, or the board may issue such compliance order on its
motion.
(Emphasis added.)
Untimeliness
of
the Three Year Records Request
In Rio Teachers Association (Lucas) (2011) PERB Decision No. 2157,
p.
3 (Rio), and
California School Employees Association & its Chapter 47 (Shampine, et al.) (2014) PERB
Decision No. 2355, p. 10, (Shampine), p. 10, the Board limited members' requests for financial
9

records pursuant to EERA 3546.5 to the "immediate preceding fiscal year." The six-month
statute
of
limitations in EERA section 3541.5, subdivision (a)(l), applies to requests for
financial records under EERA section 3546.5. (Rio, supra, PERB Decision No. 2157, p. 4;
Shampine, supra, PERB Decision No. 2355, p. 8.) As Lukk:arila made his requests for
financial records pursuant to EERA section 3546.5 between February 3 and March 3, 2014, the
immediate preceding fiscal year is 2012-2013. Any allegation that the Association did not
provide prior fiscal year reports to the 2012-13 fiscal year therefore cannot be considered and
are dismissed.
Mootness/Dismissal
The Higher Education Employer-Employee Relations Act (HEERA),5 at section 3587,
contains a provision virtually identical to EERA section 3546.5. In California Nurses
Association (0'Afalley) (2003) PERB Decision No. 1578-H (O'Afalley), the charging party
alleged that his union violated HEERA section 3587 by failing to provide financial reports. A
Board agent forwarded copies
of
the financial reports to the charging party, and then dismissed
the charge as moot. In upholding the dismissal, the Board stated in part:
[The union] provided the requested financial records to the
Board; and in tum, the Board agent forwarded them to [the
charging party]. That is all that is required by HEERA section
3587 and PERB Regulation 32125.
(Id, p. 6.)
5 HEERA is codified at Government Code section 3560 et seq.

Although PERB Regulation 321256 has been repealed, HEERA section 3587 has not
changed, nor has EERA section 3546.5. In O'Malley, supra, PERB Decision No. 1578-H, p. 6,
the Board further stated:
. Since [the union] has complied with the request for financial
records, the issue is now moot.
In 2014, well after the issuance
of
O 'Malley and the revision to the PERB Regulations
treating violations
of
EERA section 3546.5 as unfair practice charges, the Board rendered its
decision regarding an EERA case in Shampine. 	In Shampine, the Board found that the
employee organization violated EERA section 3546.5 by not providing the financial records,
but it did not remand the matter to the PERB Office
of
General Counsel for the issuance
of
a
complaint. Rather, it merely ordered the employee organization to produce the financial
records. (Shampine, supra, PERB Decision No. 2355, p. 13.)
Similarly, in the present case, the Association on or about February 5, 2015, has
complied with Lukkarila's request for financial records by providing financial records which
contain the same or equivalent information as a balance sheet and operating statement and
were "in the form
ofa
balance sheet and an operating statement."7 (EERA section 3546.5
(emphasis added).) 	As in O'Malley, supra, PERB Decision No. 1578-H, and in Shampine,
supra, PERB Decision No. 2355, p. 13, no other action should be taken and the allegation
therefore will be dismissed.
6 Regulation 32125, subdivision (b), was repealed in 2006, and the appropriate
procedure to remedy a failure to comply with section 3546.5 is now an unfair practice charge.
(PERB Reg. 32602, subdivisions (a) and (d), and Rio, supra, PERB Decision No. 2157, p. 4.)
7 See California State University Employees Union, SEIU Local 2579, CSEA (Sarca)
(2006) PERB Order No. Ad-351-H, p. 5, "once documents meeting the minimum requirements
...
are produced, the responding party's obligation has been fully discharged and dismissal is
appropriate."
11

Interference
In California School Employees Association & its Chapter
36
(Peterson) (2004) PERE
Decision No. 1683, the Board found that for an employee organization to interfere with the
right
of
an employee under BERA, unlawful motive need not be established, but only at least
slight harm to the employee's claimed BERA rights. However, the Board has been reluctant to
interfere in internal union affairs
of
an employee organization, unless the alleged interference
would substantially impact an employee's relationship with its employer. (California State
Employees Association (Hutchinson, et al.) (1998) PERE Decision No. 1304-S, pp. 27-28.)
In this case, Lukkarila asserts that the Association's actions in denying him the required
signed and certified financial documents impacted his ability to campaign for Association
President. However, one's candidacy for chapter office or one's holding a position within the
employee organization have been found to be purely internal union affairs that do not have a
substantial impact on one's employment relationship. (California School Employees
Association & its Chapter 36 (Peterson) (2004) PERE Decision No. 1733, p. 7; California
School Employees Association & its Chapter 36 (Peterson), supra, PERE Decision No. 1683;
California State Employees Association (Barker & Osuna) (2003) PERE Decision No. 1551-S,
p. 8; Service Employees International Union, Local 99 (Kimmett), supra, PERE Decision
No. 106, 15-17
.)
This is not a case where Lukkarila is asserting a violation
of
the employee
organization's duty
of
fair representation or an unreasonable application
of
the employee
organization's procedures for taking a disciplinary action against a member, where PERE has
in the past inserted itself into the dispute. (California State Employees Association (Hard, et
al.) (2002) PERE Decision No. 1479-S; California Correctional Peace Officers Association
(Colman) (1989) PERE Decision No. 755-S; California School Employees Association and its
12

Shasta College Chapter #381 (Parisot) (1983) PERB Decision No. 280.) Thus, Luk:karila's
allegations are insufficient to state a prima facie case
of
interference.
As a substantial impact on the employee-employer relationship cannot be established
according to prior PERB decisional law, the allegation
of
interference must also be dismissed.
Furthermore, as all
of
Lukkarila' s allegations have been dismissed, the motion to
dismiss the amended complaint is granted.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No.
LA-CO-1630-E, Dave Lukkarila
v.
Claremont Faculty Association, are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 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
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal.
_Code
Regs.,
tit
8, § 32300.)
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
13

which meets the requirements
of
California Code
of
Regulations, title 8, section 32135,
subdivision (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.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
14