April 19, 2006

I have asked that everyone send me their objection letter this year. The reason for this is that I can ensure that the letters are legally served on UPTE and that I will keep records of service, mailing receipts and copies of your letters. These letters are invalid if sent to UPTE now, the objection window will not open for several months. The objection window refers to the fact that UPTE must receive your letter within 30 days of the date that you receive the UPTE notice for this objection period and UPTE has not sent the notice yet. I need this time to make copies of the letters, enter names and addresses into my database and for the process server to check off every letter on the list. Last year I had over 600 and I expect that we will receive more this year.

Every year I have been able to inform, educate and assist more people. This pleases me. More and more of you now know that UPTE membership is not compulsory, know that you can request and receive the non chargeable portion (politically motivated expenses, lobbying expenses and other miscellaneous expenses) of your agency fee back. You now know that UPTE must notify you each year of your right to object, challenge and receive the money associated with these expenses. When UPTE has not complied with the law, hundreds of you have filed Unfair Practice Charges with the California Public Employment Relations Board (PERB) in order to hold UPTE accountable. After long, lengthy and arduous battles, we get a limited measure of justice doled out to us.

First and foremost, not everyone does get payment in response to their objection letter. UPTE has offered up several reasons for this such as "administrative error", "inadvertently not on the list", "letter never received" and "letter received too late". I know from experience that most of you will not keep the relevant documents and proofs so if you count on UPTE to get it right, you may be disappointed. This is why you are better off sending me your objection letters. My friends in the legal profession have advised me on what I need to do to have an adequate chain of evidence in case UPTE cannot find you on their list. I will then politely remind UPTE of their obligation and if they respond with nothing more than a promise of future payment, you can ask for legal redress in the appropriate venue. You do not have to do this on your own, we have attorneys and accountants dedicated to providing justice at no cost. Neither I nor anyone I know of has received full payment for the 2005-2006 objection period. I have sent a message to the UPTE agency fee administrator asking for payment. If payment is not received, I will seek legal redress at the appropriate time and I encourage you to do the same.

Let me talk about the limited justice we have received of late. PERB has issued over 50 complaints in cases regarding a late request for arbitration for the 2004-2005 objection period. UPTE provided it's answer to the complaint, the next step would be a settlement conference and if no agreement can be reached, the cases will be set for trial.

The 200 plus complaints regarding the late notice for the 2004-2005 objection period will not go to trial any time soon. Milton Chappell of the National Right to Work Legal Foundation and I were disconcerted by the language employed by the Board regarding a portion of the remand for complaint. The preliminary ruling was that yes, the notice was sent late but that an audit was not required. Mr. Chappell and I filed a motion for reconsideration of the audit question since numerous courts have ruled that an audit is required, the only exception (in one court ruling only) being that organizations with less than $50,000 in revenue do not need an audit (UPTE does not fall into this exception). The Board is considering our request and trial will not be scheduled until the Board holds a hearing on this point. This will probably take several months. The wheels of justice grind very slowly.

Arbitration hearings continue to be a source of black humor to me. They are a mixture of amusement, bemusement along with a sense of shame for several of those involved. But I do not have a sense of schadenfruede (happiness about someone else's troubles) about this. At best, you can only slow down the gravy train of injustice in arbitration.

The arbitrator in the 2002-2003 arbitration, Sue Olinger Shaw, has made her decision in this case. The lawyers and judges who read this will be highly amused. UPTE did pay the five UPTE challengers the full amount of their agency fees for the year (about $400), transmitting the checks a day before the hearing. Neither UPTE nor its lawyers showed up at the hearing but they did send a letter dated 3 days before the hearing. The letter argued that the challengers lacked standing since the claim had been paid in full, with interest. I argued successfully that the challengers did have standing. But something very strange transpired. I introduced a document into evidence that was sent to me by a friend of mine in UPTE castigating the actions of UPTE officers. The CWA attorney objected (the generator of the document was not there to testify to it's authenticity) and the document was summarily stricken from the record. I made a motion later in the proceedings to strike the document of chargeable and non chargeable expenses provided by the UPTE accountant. There was no objection by the CWA lawyer because he does not represent UPTE. There was no lawyer for UPTE so UPTE could not object to the motion and the UPTE accountant was not there to testify as to the authenticity and veracity of the document. What did this nice lady, Ms. Olinger Shaw do? She took this motion under advisement. UPTE banks 60% of agency fees but, she ruled in favor of both CWA and UPTE. UPTE had no lawyers to plead their case, no witnesses to provide foundation for their documents yet the arbitrator ruled in UPTE's favor. Welcome to the world of arbitration.

The arbitrator in the 2003-2004 arbitration, James Harkless has not responded to several straightforward requests. The case manager for Mr. Harkless sent letters that I received on consecutive late Thursdays, requiring an answer for accepting a hearing date on or before the following Monday. That does not leave a whole lot of time for me to contact my witnesses to inquire if their calendar is clear for the hearing dates. One of my advisors opined that they are just playing games with me. Well, you don't need a weatherman to know which way the wind blows.

The 2004-2005 arbitration hearing is scheduled for the end of April. This arbitrator put his foot down early on stating "I know how to run a hearing". Excluded me from appearing at the hearing with his ruling. No problemo amigo. This hearing is of little consequence, final rulings on the adequacy of the notice and timing of the request for arbitration are at least months if not years away. Justice in this case is now in the hands of the Administrative Court of PERB and the PERB Board.

There has been no word on the 2005-2006 arbitration hearing. The hundreds of objector requests for a hearing in this case were made sometime in July 2005. No objector that I know of has been informed by UPTE, CWA or the American Arbitration Association that a hearing will be held for this objection period. After 9 months, not even an acknowledgement of our requests. Do you think that we are being ignored?

I end this rather lengthy missive by telling all of you who pay attention to never give up in your quest for justice. In plain language, if you feel you're being jerked around, you may be right.

Werner