Decision 1607H – California Nurses Association (O'Malley)
Decision Date: March 18, 2004
Decision Type: PERB Decision
Description: O’Malley claimed that CNA unilaterally returned agency fees collected from O’Malley and failed to follow the agency fee appeal procedure. During the appeal procedure, the arbitrator ruled that O’Malley lacked standing to participate since the fees were refunded.
Disposition: The Board found that O’Malley did not allege sufficient facts to show the arbitration proceedings to be unfair and procedurally defective. The arbitrator’s decision was not repugnant because it was not palpably wrong. The Board agreed that O’Malley lacked a remedy because the fees were returned. CNA did not violate the agency fee regulations since they presume possession of the fees.
Perc Vol: 28
Perc Index: 117
803.01000 – In General
Refunding agency fees does not require termination of non-members for failure to pay agency fees as required by a collective bargaining agreement. San Lorenzo Education Assn. v. Wilson (1982) 32 Cal. 3d 841, 847 [187 Cal. Rptr. 432].) In this case, CNA voluntarily refunded O’Malley’s fees and there is no indication that either CNA or the University of California plan to terminate his employment. O’Malley may not assert agency fee objections on behalf of other unit employees.
803.02000 – Proper Uses
Under Los Rios College Federation of Teachers, Local 2279, CFT/AFT (Deglow) (1992) PERB Decision No. 950, once CNA refunded the collected fees in full to O’Malley, CNA could not use the fees in any way, let along wrongfully use them. Thus there is no possibility of harm that the Board could remedy. CNA’s refund of agency fees to O’Malley does not violate PERB’s agency fee regulations (PERB Regs. 32990-32997). Those regulations presume the possession of collected fees by either the exclusive representative or deposit in an escrow account pursuant to PERB Regulation 32995
1100.03000 – Standing
O’Malley may not assert agency fee objections on behalf of other unit employees. Under Los Rios College Federation of Teachers, Local 2279, CFT/AFT (Deglow) (1992) PERB Decision No. 950, once CNA refunded the collected fees in full to O’Malley, CNA could not use the fees in any way, let along wrongfully use them. Thus there is no possibility of harm that the Board could remedy.
1102.02000 – Post Arbitration; Repugnancy
The Board will defer to an arbitrator’s award, including arbitration of an agency fee dispute, so long as the proceedings were fair and regular and the award is not repugnant to the purposes of HEERA. O’Malley did not allege sufficient facts showing that the arbitration proceeding was unfair or procedurally defective or that the arbitrator’s award was repugnant. The arbitrator’s award was not repugnant to HEERA since it was not “palpably wrong.”
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
O’Malley did not show good cause under PERB Regulation 32136 to excuse the late-filed supplement to his appeal. It will therefore not be considered.