Decision 2572M – San Bernardino Public Employees Association
LA-CO-186-M
Decision Date: June 21, 2018
Decision Type: PERB Decision
Description: An administrative law judge found that an exclusive representative committed an unfair practice by agreeing to an organizational security provision that did not adequately inform employees of their right not to become members of the organization. The ALJ also dismissed allegations that the exclusive representative retaliated against one of the charging parties and failed to provide financial reports. The charging parties filed exceptions.
Disposition: The Board affirmed in part and reversed in part. The Board affirmed the dismissal of the financial report and retaliation allegations. The Board reversed the finding that the organizational security provision was unlawful, holding that the law does not require the clause to spell out employees’ rights not to be members.
Perc Vol: 43
Perc Index: 7
Decision Headnotes
801.05000 – Union Threats; Violence
Statement that union president intended to file disciplinary charges against employee for perjury was not an adverse action where employee was informed the next working day, through no effort of his own, that union president would not be filing charges.
801.05500 – Discrimination
Statement that union president intended to file disciplinary charges against employee for perjury was not an adverse action where employee was informed the next working day, through no effort of his own, that union president would not be filing charges.
803.01000 – In General
Before an employee is obligated to join the union or pay an agency fee, union must give notice of right not to become a member and to object to paying for union activities unrelated to the union’s duties as the bargaining representative, but this notice need not be provided in the organizational security provisions in a memorandum of understanding.
803.03000 – Procedures for Collection
Before an employee is obligated to join the union or pay an agency fee, union must give notice of right not to become a member and to object to paying for union activities unrelated to the union’s duties as the bargaining representative, but this notice need not be provided in the organizational security provisions in a memorandum of understanding.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board declined to consider an argument not made to the ALJ.
1107.04000 – Unalleged Violations
The Board may consider an allegation not included in the complaint if: (1) adequate notice and opportunity to defend has been provided to respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the opportunity to examine and be crossexamined on the issue.
1107.04000 – Unalleged Violations
Making an argument for the first time in a post-hearing brief is not sufficient notice of an unalleged violation.
1107.06000 – De Novo Review; Standard of Review by Board
The Board declined to consider an argument not made to the ALJ.
1107.18000 – Review of Findings Not Excepted To
The Board has discretion to review matters not excepted to, including when, as here, the correction is needed to “prevent an erroneously-decided issue from becoming Board precedent.” Sua sponte review is particularly appropriate when the erroneously decided issue is closely intertwined with the exceptions before the Board.
1501.01000 – In General
No violation of MMBA section 3502.5(f) where employee received financial reports with stamps or watermarks that did not completely obscure any information in the report.