Capistrano Unified School District (PERB 0437E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CRAIG RICHTER ET AL.
Charging Parties, Case No. LA-CE-1967

Vv. PERB Decision No. 437

CAPISTRANO UNIFIED SCHOOL DISTRICT, November 21, 1984

Respondent.

Appearance: David T. Bryant, Attorney for Craig Richter et al.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.*
DECISION

This case is before the Public Employment Relations Board
on an appeal by the Craig Richter et al. of the Board agent's
dismissal, attached hereto, of their charge alleging that the
Capistrano Unified School District violated section
3543.5(a)(1) of the Educational Employment Relations Act
(Government Code section 3540 et seq.).

We have reviewed the dismissal and, finding it free from
prejudicial error, adopt it as the Decision of the Board itself.

ORDER
The unfair practice charge in Case No. LA-CE-1967 is

DISMISSED WITHOUT LEAVE TO AMEND.

By the Board

\

*Members Tovar and Burt did not participate in this Decision.

PUBLIC EMPLOYMENT RELATIONS BOARD	P~BLIC EMPLOYM:NT RELATIONS BOARD
HHeadquarters Office
1031 	18th Street
Sacramento, California 95814	Sacramento, 	California 95814
(916) 322-3088
August 2	August 	, 19	23, 	41984
STATE CF CALIFO~NIA
Davia 	T. 	Bryant, 	Esq.
National 	Right 	to 	work
Legal 	Defense· Foundation
8001 	Sraddock 	Road, 	Suite 	600
Springfield, 	VA 	22160
Jerome 	Thornsley, 	Superintendent
Linda A. 	Kroner, 	Director 	of 	Employee 	Relatio11u
Capistrano 	Unifiea 	School 	District
32972 	Calle 	Perfecto
San Juan 	Capistrano, 	CA 	92675
GEO~GE DEVKMEJIAN, Gov,,rnor
Re: 	~EFUSAL 	TO 	ISSUE 	COHPLAINT 	A.ND 	DIS:'.·lISSAL 	01:' 	UNFi\IR PRAC'l'ICE
CHARGE; 	Richter, 	et 	al. 	v. 	Capistrano 	USO_, 	.Lii..-CE-J.9b7
Dear 	Paz:ties:
Pursuant 	to 	Public 	Employment. 	?,elations 	Board 	(PEP.B) 	Regulation
section 	32620(5), 	a 	complaint 	will 	not 	be 	i5suea 	i11 	the
above-referenced 	case 	and 	the 	pending 	charge 	is 	nereby
dismissed 	because 	it 	fails 	to 	allege 	facts 	su1Ilcient 	to 	st~te
a 	prima 	facie 	violation 	of 	the 	Educational 	.Employrn8nt 	Relations
Act 	(EERA) ..!/
The 	charge 	alleges 	that 	the 	District 	violated 	the 	EERA 	by
entering 	into 	a 	collective 	oargaining 	agreement 	with 	the
Association 	which 	provided 	for 	automatic 	oeduction 	of 	agency
tees. 	The 	agency 	fee 	clause 	in 	question 	ca~ls 	for 	collection
of 	nonmember 	service 	fees 	in 	an 	amount 	not 	exceeaing 	the 	amount
of 	initiation 	fee, 	dues 	and 	general 	assessment.l/ 	These
fees, 	it 	is 	alleged, 	are 	passed 	on 	by 	the 	employer 	to 	the
Association, 	which 	allegedly 	spends 	them 	for 	purposes 	to 	which
the 	charging 	parties 	object •
.!/References 	to 	tne 	EEk:\ 	are 	to 	Go'lei:nr,:ent 	Cv'H: 	sectioas
3540 	et 	seq. 	All 	section 	reterences 	are 	to 	t:he 	EEAA 	unless
otherwise 	ind.ic<1ted. 	PERB 	Reg:...lations 	("Bo-::rd 	RuL:s") 	ctre
codified 	at 	California 	Aaministrative 	Coae, 	Title 	o.
~/A 	copy 	of 	the 	parties' 	organizational 	security
provision 	is 	attached. 	as 	ATTACHMENT 	l.

David Bryant
Jerome Thornsley
August 20, 1984
Page 2
David 	Bryant
Jerome 	Thornsley
August 	20, 	1984
Page 	2
Discussion
Any 	argument 	that 	the 	District 	conduct 	described 	a0ova 	violated
the 	Act 	must 	be 	rejected 	for 	the 	following 	reasons:
1. 	The 	validity of 	compulsory payments 	to 	la~or 	organization
has 	long been 	established. 	(Railway 	Employees 	Department 	v.
Hanson 	(1956) 	351 	U.S. 	225 	[38 	LRRM 	2099]; 	International
Association of 	Machinists 	v. 	Street 	(1960) 	~67 	u.s. 	no
(48 	LR~'1 	2345]; 	Abood 	v. 	Detroit 	Board 	of 	Education 	(1977) 	431
"u.s. 	209 	[95 	LRRM 	2411]; 	Ell1.s, 	et 	al. 	v. 	Brotherhood of
Railway, 	Airline 	and 	Steamship 	Cler1rn 	( 4/2~) 	U.S.
[80 	L.Ed-.2d 	428, 	52 	U.S.L.W. 	4499].) 	Consistent~/Ith 	thi_s_
principle, 	the 	EERA 	specifically 	permits 	collective 	bargaining
ag~eements 	to 	include 	agency 	fee 	provisions 	requiring 	employees
either 	to 	join 	the 	exclusive 	representative, 	or 	p~y 	a 	service
fee 	in 	an 	amount 	not 	to 	exceed 	the 	standard 	initiation 	fee,
periodi~ 	dues, 	and 	general 	assessments 	(sections 	3546 	and
3 540: 1 ( 2) ) .
2. 	Employee 	organizations 	may 	violate 	the 	EER!\ 	w"hen 	they 	spend
objecting 	nonmembers' 	agency 	fees 	on 	activities 	which 	are
unrelated 	to 	the 	exclusive 	representative's 	repres:?ntal::.iona.l
role. 	(Kin 	City Union 	High 	School 	District 	(3/3/32) 	PERB
Decision No. 	19 	; 	Aboo 	, 	supra. 	The 	employer, 	nowe•,~r, 	cannot
be held 	responsible 	for 	the 	expenditures 	of 	th~ 	exclusive
representative. 	Rather, 	agency 	fees, 	like 	membership 	dues, 	are
a 	matter 	of 	internal 	organizational 	policy and 	concern:
The 	employer's 	interest 	in 	the 	subject 	is
limited 	to 	its 	willingness 	to 	impose 	on 	its
non-union 	employees 	an 	agency 	fee
requirement 	and, 	if 	so, 	whether 	an
authorization 	election 	[Gov. 	Code 	section
3546] 	is 	desired. 	(Fresno 	Unified 	School
D:i.st:ri.c~ 	(4/30/3?.) 	?E.?..8 	D~cis1on 	;_,;.~. 	?.13-;- :-:.t
p. 	21. )
Indeed, 	the 	Board 	has 	held 	an 	employer's 	insist-::nc~ 	on 	3. 	"cap"
on 	agency 	fees 	constitutes 	an 	unlawful 	bargaining 	proposal.
(Fresno, 	supra, 	at 	pp. 	21-22.)

David Bryant
Jerome Thornsley
August 20, 1984
Page 3
David 	B~yant
Jerom~ 	Thornsl-3y
August 	20, 	1984
Pag~ 	3
3. 	The 	Charging 	Party 	finds 	particular 	fault 	in 	the 	employer's
implemantation of 	automatic 	deduction 	of 	~gency 	fees. 	Payroll
deductions 	of 	agency 	fees, 	however, 	may be 	lawfully 	made
without 	the 	permission 	of 	employees 	who 	are 	obligated 	under 	a
collective bargaining 	agreement 	to 	pay 	such 	fees. 	The 	Board
has observed 	that 	under 	the 	EERA,
Prior 	approval 	of 	the 	payer 	[for 	an 	agency
fee 	deduction] 	is 	not 	only 	unnecess~ry but
inconsistent 	with 	the 	involuntary 	:1ature 	of
such. fees. 	Withholding 	approval 	would
enable 	the 	nonmember 	to 	circumvent 	the
legislative 	purpose 	and 	negotiated
agree~ent. 	To 	provide 	involuntary 	payers
with 	this 	option would 	inevitably 	lead 	to
unduly burdensome 	collection 	problems 	and
ultimately 	to 	the 	wholesale 	enforcement 	of
the 	employment 	termination 	provisions 	of
section 	354O.l(i), 	a 	consequence 	that 	would
be 	detrimental 	to 	the 	educational 	system 	and
to 	peaceful 	labor 	relations 	in 	the
districts. 	(King 	City, 	supra, 	p. 	2 5.)
Furthermore, 	the 	Education 	Code 	expressly 	provides 	that 	school
district 	governing 	boards 	"shall, 	with 	or 	without 	ch.::irge,
reduce 	the 	order 	for 	the 	payment 	of 	servic~ 	fees 	to 	the
certified 	or 	recognized 	organization 	as 	required 	by 	an
organizational 	security arrangement 	between 	the 	exclusive
representative 	and 	a 	public 	school 	employer 	. · ..• 11
(Education 	Code 	section 	45061.) 	Accordingly, 	the 	automatic
deduction 	clause 	in 	the 	parties' 	agreement 	does 	not 	contri0ute
toward 	an 	unfair 	practice.
For 	the 	foregoing 	reasons, 	no 	complaint 	will 	issue 	and 	the
charge 	is hereby 	DISMISSED.~/
PL,rsuant: 	to 	Board 	Rule 	3263'.3 	(Cali:Eornia 	.:'\draini.s:.:.ra:.:.i.ve 	Coc'.e,
Title 	8, 	part 	III), 	you 	may appeal 	the 	refusal 	to 	issue 	a
complaint 	(dismissal) 	to 	the 	Board 	itself.
~/The 	Charging 	Party 	appears 	to 	argue 	that 	the 	District
is 	a 	necessary 	party 	to 	the 	formulation 	of 	a 	meaningful
remedial 	order 	against 	the 	Association. 	Even 	if 	this 	is 	true,
however, 	it 	does 	not 	mean 	that 	the 	District 	has 	committed 	a~
unfair 	practice. 	Further, 	adequate 	p~ocedural 	mechanisms 	are
available 	to 	protect 	the 	charging 	party's 	interest. 	See, 	e.g.,
Board 	Rule 	32164(d)(l).

David Bryant
Jerome Thornsley
August 20, 1984
Page 4
David 	Bryant
Jerome 	Thornsley
A1.1gust 	20, 	1984
Page 	4
Right 	to 	Appeal
You may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the 	cha:-ge by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20) 	calendar
days 	after 	serv'ice 	of 	this 	dismissal 	(Board 	Rule 	3263S(a)). 	To
be 	timely 	filed, 	the 	original 	and 	five 	(5) 	copies 	of 	such appeal
must 	be 	actually 	received 	by 	the 	Board 	itself 	before 	the 	close
of 	business 	(5:00 	p.m.) 	on Wednesday, 	September 	12 	or 	sent 	by
telegraph 	or 	certified United 	States 	mail 	postmarked 	not 	later
than 	Wednesday, 	September-12 	(Board 	Rule.32135). 	''.!:''he 	Board's
address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
If 	you 	file 	a 	timely 	appeal 	of 	the 	refusal 	l:.o 	issue 	a 	complaint,
any other 	party may 	file 	with 	the 	Board 	an 	original 	and 	five 	(5)
copi~s 	of 	a 	statement 	in 	opposition 	within 	twenty 	(20) 	calendar
days 	following 	the 	date 	of 	service 	of 	the 	appeal 	(Board
Rule 	32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein 	must 	also 	be
"served" 	upon 	all 	parties 	to 	the 	proceeding, 	and 	a· _"proof 	6~
service" 	must 	accompany 	the 	document 	filed 	with 	the 	Board 	itself
(see 	Board 	Rule 	32140 	for 	the 	required 	contents 	and 	a 	sample
form). 	The 	document 	will 	be 	considered 	properly 	"served" 	when
personally delivered 	or 	deposited 	in 	the 	first-class 	mail
postage 	paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for 	an 	extension 	of 	time 	in 	which 	to 	f.ile 	a 	r.ocument
;,:Lt.l1 	tl1e 	Board 	its-:lf 	mtut 	:1-e 	.i.n 	writ:.in·J 	~Y•11 	t~Ld 	:rir.'.1 	'.;""::1.~
Board 	at 	the 	previously 	noted 	address. 	A request 	for 	an
extension must be 	filed 	at 	least 	three 	(3) 	calendar 	days 	before
t'he 	expi:cu.tion 	of 	the 	time 	raqui:r-~a. 	fo-c 	fi1 L-:1 	t~1e 	doct1 m,~nt.
The 	request 	must 	indicate 	good 	cause 	for 	and, 	if 	known, 	the
position 	of 	each 	othor 	_r,arty 	:r.t=?gardi-~g 	the 	•~:~ter1sion, 	3nd 	s 1F1J.1_
be 	accompanied by 	proof 	of 	servica 	oft~~ 	requesL 	upon 	each
party 	(Board 	Rule 	32132).
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	ti.ma 	limits, 	the

David Bryant
Jerome Thornsley
August 20, 1984
Page 5
David 	Bryant
Jeroma 	Thornsley
August 	20, 	1984
Page 	5
dismiss3.l 	will 	becoma 	final 	when 	the 	time 	lim!.ts 	hav~ 	expired~
Very 	truly yours,
DENNIS M. 	SULLIVAN
General 	Counsel
Byy JE~FRE	EFFREY SLOAN	SLOAN
Asisistant	ssistant General Counsel	General 	Counsel
Sac 	8406b

~~TICLE 4 - Organizational Security
4.1 	The District and the Association recognize the rights cf
unit meir.bers to freely form, join, and participate in
~ct1vltles ai the employee organization.
4.2 	T~e Ois~rlct shall deduct cues frcm the wases of all unit
r::erc:ers ;;:10 .m1 r.;embers of the Association as of the
effective ca.e of this Article, or who may subsequently
sign and deliver to tlie District an authorization. form.
authorizing tMdeduction C>f unified membership due5 of
the organization. . 	. ·. 	· . . 	' 	,
4.3 	Pursuant to the signed authorization card, as specified
in 4.2, the District shall deduct cne tenth of the unified
dues from the regular salary·chetk of the unit member each
· r.;onth for ten (10) months.· Deductions for unit members who
sign such a~thorization after the co~mencement of the school
year shall be at the customary tenthly rate for the balance
of the school year •.
4.4 	Unit members who are not mcm~ers of the Association on the
effective da~e of this Article, and those who hereafter
beco~e recmbers of the unit shall, within thirty (JO) days
cf the effectiv~ date of this agrecracnt or within thirty (30)
days fror.i the date they convnence their assi.gned duties,
either become members of the Association or pay to the
Association a service fee in an amount equal to unified
membership dues, initiation fees and general assessments.
!>,1yment of such fees shall· be made either by monthly payroll
deductions, as specified 1n 4.3, or by cash payment directly
to the l\:;sociation in one lurnp-sum within thirty (JO) days
of thri ('ffcctlve dale of this agreement or October 1,
'\\'hlchcv,:r h 	l.1tcr: 	In the event th,,t a'unil'm,~mbcr sh,,11
not pJy such fee directly to the.Association, the'Assoclation
:;hal 1 notify the District of said failure to pJy nnd the
District shall begin aut~natic payroll deduction ns
provided for 1n section 45061 of the California Education
Code. 	There shall be no charge to the Association·for
mandatory service fee deduction.
4.5 	The District shall not make· service fee deductions from unjt
members who ar~ in unpaid status but shall deduct a pro-rata
,hare of the service fee for part-time unit 'members who have
not become members of the A~so<;1ation.' ·
4.6 	Unit members who are members of .a religious bodv whose
traditional tenets or teachings· incluae cbject1ons to the
joining or financially supporting employee organizations
shall not be required to Join or financially support the
llssoc.iation; except that such unit members shall have deducted
in lieu of the service fee J sum equal to such service fee to
o~,c of the following non-religious, non-labor organization,
charitable funds exempt from Laxation under the Internal Revenue
Code:
;1
'I
iI
J
Ii
I
I
f
4.6.1 	A written stutement of objection along with evidence
of membership in a religious body whose traditional
tenets er t~achings object to the joining or fininclally
supporting employee organizations shall be made on an
annual basis to the Association ar:d the District as a
condition of continu~d exemption from the payment of a
service fee. 	Election of one of the groups specified
in 4.6 may be changed only once per school year.
United Way
American C1:.ncer Society
American Heart Association
Boy and Girl Scouts of America
..-4
E-<
zμj
-	o<'.,
:r:
u,c(
E-<
E-<
,c(
4.7 	Nothing in this agreement shall be construed as t~ p~ohibit any
employee from making direct payments to th~ Association upon
written notice to the District and the Association.
4.8 	The District agrees to remit all dues or service fees to the
Association along with an alphabetical list of unit members for
whom such deductions have been made, annotating as to member
or non-member of the Association.
4.9 	The Association agrees to furnish ~ny inform~tion ~eeded by
the District to fulfill the provisions of this Article.
4.10 The Association agre>r:s to lndc-n 111ify and ho'.d the District
harmless rc9arding ,l11,v lcg,il c 1,,101 ,iri~.lng out of this ,,gcncy
fee provisions subjrtl lo the following,
, 4. 10. 1 ' 	The Association agrees to pay lo the District all
legal cost incurred in defending ~gainst any court
action and/or administrative action before PERS
challenging the legality or constitutionality of the
Organizational Security provisions of this Agreement
or their implementation.
4.10.2 	The Association shall have the exclusive right to
decide and determine whether any such action or
proceeding referred to in 4.10.1 )f this Article
shall or shall not be compromised, resisted, defen~cd,
or appealed.
-4-