San Diego Unified School District (PERB 0610E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CLASSIFIED 	EMPLOYEES 	ASSOCIATION/
NEA,
Charging 	Party,
v.
SAN DIEGO UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-2101
PERB 	Decision 	No. 	610
January 	15, 	1987
Appearances: 	Rosalind D. 	Wolf, 	Attorney, 	California 	Teachers
Association, 	for 	Classified 	Employees 	Association/NEA; 	Jose 	A.
Gonzales, 	Attorney 	for 	San 	Diego Unified 	School 	District.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	The 	San 	Diego Unified 	School 	District
(District) 	appeals 	the attached proposed decision of 	a 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	administrative 	law
judge 	(ALJ), 	granting a Motion 	for 	Summary Judgment 	in 	favor of
the 	Classified 	Employees 	Association/NEA 	(Association). 	The
Board has 	reviewed 	the 	entire 	record 	in 	this 	case, 	and 	it
adopts 	the 	findings 	and 	conclusions 	of 	the ALJ, 	and 	affirms his
decision, 	consistent 	with 	the 	discussion below.
DISCUSSION
At 	the outset, 	we address 	the 	District's 	argument, 	raised
only on appeal 	to 	the 	Board 	itself, 	that 	the Motion 	for 	Summary
Judgment 	should 	not 	have 	been 	granted because 	there 	were
factual 	disputes 	that had 	not 	been 	resolved. 	Under 	the
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California 	Code of 	Civil 	Procedure 	(CCP), 	a motion 	for 	summary
judgment 	should be 	granted 	if 	there 	is 	"no 	triable 	issue 	as 	to
any material 	fact and 	. 	. 	. 	the moving party is entitled to a
judgment 	as 	a matter of 	law." 	(CCP sec. 	437c(c).) 	The
District 	contests 	the ALJ's 	determination 	that 	there 	are 	no
triable 	issues 	of 	fact 	on 	the 	grounds 	that when 	the 	District
stipulated 	to 	facts, 	it 	did so 	for 	the 	limited purpose of
establishing 	an 	affirmative 	defense 	and 	supporting 	its 	Motion
to 	Dismiss 	and 	not 	for 	the purpose 	of 	summary 	judgment.
The 	District's 	argument 	must be 	rejected 	inasmuch 	as 	a
close 	examination 	of 	the 	papers 	filed 	in 	this 	matter 	do 	not
reveal 	any material 	fact 	relevant 	to a 	valid 	legal 	defense
actually 	in 	dispute. 	The material 	facts 	in 	this 	case 	are 	not
complicated. 	They 	include 	whether 	the 	District 	is 	a 	public
school 	employer 	and 	the 	Association 	is 	an 	employee 	organization
within 	the 	meaning 	of 	the 	EERA, 	as 	well 	as 	whether 	the 	District
received 	and 	refused 	to honor 	a 	duly 	authorized 	request 	of 	the
Association 	for 	the 	District 	to 	commence 	membership 	dues
deductions. 	In 	its Answer, 	the 	District denied that 	it
committed 	an 	unfair 	practice, 	and 	additionally 	raised 	the
following affirmative 	defenses: 	(1) 	the 	charge 	did not 	allege
a prima 	facie 	case; 	(2) 	the 	acts 	alleged 	fell 	within managerial
prerogative; 	(3) 	the 	District acted reasonably in 	its 	failure
to honor 	the Association's 	request; 	(4) 	the 	collection 	of dues
would 	impose 	an 	unreasonable burden 	on 	the 	District; 	and 	(5)
the 	decision 	to 	collect 	dues 	is 	discretionary. 	With 	respect
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to the 	latter 	affirmative 	defense, 	the 	District argued 	in 	its
Motion 	to 	Dismiss 	that 	section 	3543.1(d) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA)1 and 	Education 	Code 	section
45168 do 	not 	require 	a 	school 	district 	to deduct 	dues 	for 	the
non-exclusive 	representative 	on 	behalf 	of hourly 	classified
employees, 	but 	instead only 	impose 	a 	discretionary duty. 	Upon
the ALJ's 	rejection 	of 	this 	pivotal 	legal 	defense, 	the
invalidity 	of 	the 	District's 	remaining 	affirmative 	defenses
became 	a 	foregone 	conclusion. 	They 	too were 	ultimately
rejected 	in 	the 	ALJ's 	proposed decision, 	affirmed herein.
CCP 	section 	437c(b) 	requires 	that 	a 	party who moves 	for
summary 	judgment 	set 	forth 	plainly 	and 	concisely 	all 	material
facts 	which 	the 	moving party 	contends 	are 	undisputed. 	CCP
section 	437c(b) 	additionally provides 	that 	the 	party opposing
the 	motion 	must 	set 	forth 	plainly any material 	facts 	which 	it
contends 	are 	disputed. 	The Association's 	papers 	contain 	a
partial 	reiteration 	of 	the 	facts 	to which 	the parties
stipulated 	for 	purposes 	of 	determining 	the 	District's 	Motion 	to
Dismiss, 	and 	a 	statement 	declaring 	that 	such material 	facts
remain 	undisputed. 	By their 	reference 	to 	the parties'
previous 	stipulation 	of 	facts, 	the Association's 	papers 	filed
in 	support 	of 	its 	Motion 	for 	Summary 	Judgment 	are 	admittedly
inartfully drafted. 	We believe, 	however, 	that 	they nonetheless
1EERA	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code.
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constitute 	a 	sufficient 	"statement 	setting 	forth 	plainly 	and
concisely all 	material 	facts 	which 	[the Association] 	contends
are 	undisputed." 	(CCP sec. 	437c(b).)
The 	District has 	not 	argued, 	either 	in 	opposition 	to 	the
Motion 	for Summary Judgment or 	in 	its 	exceptions, 	that 	a
material 	issue 	of 	fact 	exists 	with 	respect 	to 	the 	essential
allegations 	of 	the Association's 	prima 	facie 	case. 	Instead,
the 	District 	finds 	fault 	with 	the Association's papers 	in 	that
they 	fail 	to 	present 	undisputed 	facts 	to 	show 	that 	the
District's 	business 	operations 	would 	not 	be 	"unreasonably
burdened" 	in being 	required 	to make 	dues 	deductions, 	or 	that
the 	District's 	refusals 	are 	otherwise 	"unreasonable" 	under
these 	circumstances. 	However, 	the ALJ, 	in 	ruling on 	the
District's 	Motion 	to 	Dismiss 	that 	EERA 	section 	3543.1(d) 	does
impose 	upon 	the 	District 	a 	mandatory duty 	to deduct 	dues,
effectively 	eliminated 	the 	viability 	of 	the 	District's
remaining 	affirmative 	defenses. 	Inasmuch 	as 	we 	now affirm 	the
ALJ's 	ruling 	on 	the 	legal 	issue 	that 	the 	requirement 	of 	dues
deduction 	pursuant 	to section 	3543.l(d) 	is 	indeed mandatory
with 	respect 	to 	classified 	employees, 	no purpose 	would 	now be
served by 	overruling 	the 	ALJ's 	ruling 	on 	the 	Motion 	for 	Summary
Judgment, 	and 	thereby permitting 	a hearing 	on 	affirmative
defenses 	which we would 	not 	sustain 	as 	a 	matter 	of 	law.
CCP 	section 	437c(b) 	requires 	the opposition 	to a 	motion 	for
summary 	judgment 	to 	set 	forth 	"any other 	material 	facts 	which
the 	opposing party contends 	are 	disputed." 	We 	note, 	however,
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that 	the 	District, 	in 	its 	Opposition 	to 	the Motion 	for 	Summary
Judgment, 	never 	identifies 	the 	specific 	facts 	that 	it 	alleges
are 	in 	dispute. 	Certainly more 	is 	required 	than a 	general
statement 	that 	there 	exist 	facts 	to which 	the parties have 	not
stipulated. 	The burden was 	on 	the 	respondent 	to delineate
specific 	disputed 	facts 	that 	would 	defeat 	the 	Motion 	for
Summary Judgment, 	or 	that 	would alert 	the ALJ 	that 	certain
unresolved 	factual 	issues 	bore 	on his 	ability 	to 	entertain 	and
rule 	on 	the 	summary 	judgment 	request. 	The 	District 	failed 	to
identify any such 	issues 	of material 	fact. 	Thus, 	the ALJ's
Order 	was 	well-founded.
The 	Board 	notes 	the 	District's 	exception 	to 	the 	ALJ's
reliance 	on 	Fresno Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	208 	in 	rendering his 	decision. 	We 	do not 	agree 	that 	the
application of 	section 	3543.l(d) 	in 	Fresno 	turns 	solely on
whether 	the 	employees 	were 	certificated 	or 	classified.
Moreover, 	the 	Board 	finds 	that 	the 	ALJ did 	not 	rely exclusively
on 	Fresno 	in 	arriving at his 	decision.
Here, 	the harm to 	the 	organization 	is 	clear 	and 	results 	in
a violation 	of 	section 	3543.5(b). 	Yet 	the organization's 	right
to deductions 	arises because of 	(1) 	the 	enabling 	language 	of
section 	3543.1(d), 	and 	(2) 	the employee's deduction
authorization. 	The 	right 	under 	section 	3543.1(d) 	is 	inchoate
until 	the 	employee 	indicates 	by 	signed 	authorization 	that 	he 	or
she wishes 	such deductions 	to be made. 	Therefore, 	denial 	of
the 	organization's 	right 	to petition 	the 	District 	for 	duly
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authorized 	deductions 	concurrently 	interferes 	with 	the
authorizing employees' 	right 	to participate 	in 	the 	activities
of 	their 	employee 	organization, 	a 	violation 	of 	section
3543.5(a).
Therefore, 	having 	reviewed 	the 	whole 	record 	in 	light 	of 	the
exceptions 	filed, 	the 	Board 	affirms 	and 	adopts 	the ALJ's
decision 	as 	that 	of 	the 	Board 	itself.
ORDER
Upon 	the 	foregoing 	conclusions 	of 	law, 	including 	those
attached hereto 	in 	the 	Proposed Decision, 	and on 	the 	entire
record of 	this 	case, 	it 	is 	found that 	the 	San 	Diego Unified
School 	District has 	violated 	section 	3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment 	Relations 	Act. 	Pursuant 	to 	section
3541.5(c) 	of the 	Government Code, 	it hereby is 	ORDERED that 	the
District, 	its 	governing board and 	its 	representatives 	shall:
1. 	CEASE AND DESIST 	FROM:
A. 	Interfering 	with 	the 	protected 	right 	of 	employees
to 	have 	their 	organization 	membership 	dues 	deducted 	from 	their
paychecks 	through 	payroll 	deduction.
B. 	Denying 	the Association 	its 	statutory 	right 	to have
the 	dues 	of 	its 	members 	deducted 	from 	their 	paychecks 	through
payroll 	deduction.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
A. 	Effective 	with 	the 	first 	employee 	payroll 	after 	the
Decision 	is 	no 	longer 	subject 	to reconsideration, 	deduct
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Association 	dues 	from 	the 	paychecks 	of 	all 	instructional 	aides
employed 	by 	the 	District 	who have 	submitted 	payroll 	deduction
authorization 	cards 	for Association 	dues.
B. 	Within 	thirty-five 	(35) 	days 	after 	this 	Decision 	is
no 	longer 	subject 	to 	reconsideration, 	post at 	all 	school 	sites
and 	all 	other 	work 	locations 	where 	notices 	to 	employees 	are
customarily placed, 	copies 	of 	the 	Notice 	attached hereto as 	an
Appendix. 	The 	Notice 	must 	be 	signed by an 	authorized 	agent 	of
the 	District, 	indicating 	that 	the 	District 	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 	insure 	that 	the 	Notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered by any other material.
C. 	Upon 	issuance 	of 	this 	Decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to
the 	Los 	Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with 	the 	Director's 	instructions.
Member 	Burt 	joined 	in 	this 	Decision.
Member 	Porter's 	concurrence 	and 	dissent begins 	on 	page 	8.
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Porter, 	Member, 	concurring and dissenting: 	I 	join 	the
majority 	in 	affirming 	the ALJ's 	conclusion 	that 	the 	District
violated 	section 	3543.5(b) 	of 	the 	EERA by 	refusing 	the
Association's 	duly 	authorized 	request, 	pursuant 	to 	EERA 	section
3543.1(d), 	for membership dues deductions. 	However, 	I would
disavow 	the 	ALJ's 	reliance 	on 	Fresno 	Unified 	School 	District
(1982) 	PERB Decision No. 	208, 	and disassociate myself 	from the
majority opinion 	to 	the 	extent 	to which 	it 	approves 	the 	ALJ's
reliance 	on Fresno. 	Furthermore, 	I cannot 	find 	that 	the
District 	violated 	any 	rights 	of 	employees 	that 	are 	protected
under 	the EERA, 	and, 	accordingly, 	I dissent 	from 	the majority's
finding of a 	section 	3543.5(a) 	violation.
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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-CE-2101,
Classified 	Employees Association/NEA 	v. 	San 	Diego 	Unified
School 	District, 	in which all 	parties had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	San 	Diego Unified
School 	District 	violated 	sections 	3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment 	Relations 	Act. 	The 	District 	violated
the 	Act 	by 	refusing 	to deduct 	Association 	dues 	from 	the
paychecks 	of 	five Association members, 	all hourly 	instructional
aides 	who had 	submitted 	payroll 	dues 	deduction 	authorization
cards 	to 	the 	District 	in 	October of 	1984. 	By refusing 	to
deduct 	the 	dues 	from the 	employees' 	paychecks, 	the 	District
denied 	the 	employees 	their 	right 	to have 	their 	dues 	deducted
and 	denied 	the Association 	the 	right 	to have 	the 	dues 	of 	its
members 	deducted.
As 	a 	result 	of 	this 	conduct, 	we have been 	ordered 	to post
this 	Notice 	and 	will 	abide by the 	following. 	We 	will:
1. 	CEASE AND DESIST FROM:
A. 	Interfering with 	the protected 	right 	of 	employees
to have 	their 	organization 	membership 	dues 	deducted 	from 	their
paychecks 	through 	payroll 	deduction.
B. 	Denying 	the Association 	its 	statutory 	right 	to
have 	the 	dues 	of 	its 	members 	deducted 	from 	their paychecks
through 	payroll 	deduction.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS 	ACT:
A. 	Deduct 	Association 	dues 	from 	the paychecks 	of 	all
instructional 	aides 	employed by 	the 	District 	who have
submitted 	payroll 	deduction 	authorization 	cards 	for
Association 	dues.
Dated: 	SAN 	DIEGO 	UNIFIED 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
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, 	DEFACED, 	ALTERED OR
COVERED 	BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CLASSIFIED EMPLOYEES ASSOCIATION/NEA,
Charging 	Party,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT,
Respondent,
Unfair 	Practice
Case 	No. 	LA-CE-2101
PROPOSED 	DECISION
(12/20/85)
Appearances; 	Rosalind D. Wolf, 	Attorney, 	for 	the Classified
Employees Association/NEA; 	Jose A. 	Gonzales, 	Assistant General
Counsel, 	for 	the 	San Diego Unified 	School District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
ORDER GRANTING 	SUMMARY 	JUDGMENT
In this pre-hearing motion, 	the 	charging party seeks
summary 	judgment and 	asks 	that 	it 	be 	granted an 	order 	directing
the 	respondent 	to 	cease 	and desist 	from 	its 	refusal 	to commence
payroll 	dues 	deduction for 	five 	employees. 	The 	charging party
bases 	its motion 	upon 	a 	factual 	stipulation 	and 	an 	earlier
denial of 	the 	respondent's motion 	to dismiss. 	The 	charging
party argues that, 	together, 	the 	factual stipulation and the
ruling on 	the motion 	to 	dismiss 	remove 	the 	only 	triable 	issue
and 	the 	only significant 	defense 	to 	the 	respondent's 	actions.
Therefore, 	the charging party continues, 	it 	is entitled to an
order 	for 	summary 	judgment 	as 	a matter 	of 	law.
It 	is 	concluded 	that 	the motion 	for 	summary 	judgment 	must
be 	granted.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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CONCLUSIONS 	OF 	LAW
The principal 	legal 	issue 	in 	this 	case was 	disposed of 	in
the October 	31, 	1985, 	denial of the motion to dismiss,
incorporated herein by 	reference. 	That 	motion was 	submitted 	on
a 	stipulated 	record. 	As part of 	the 	stipulation, 	the 	San Diego
Unified 	School 	District 	(District) 	admitted 	that 	on 	November 	9,
1984, 	it 	refused 	to deduct membership dues 	from the paychecks
of 	five 	members 	of 	the Classified 	Employees Association/NEA
(Association). 	It was stipulated that all of the employees
properly completed 	dues 	authorization 	forms. 	By 	so 	stipulating
the 	District 	also 	removed 	the only 	triable 	factual 	issue.
The Association relies upon Section 	437 	(c) 	of 	the
California Code 	of Civil Procedure. 	Under 	that section, 	a
motion 	for 	summary 	judgment 	"shall 	be 	granted 	if 	all 	the papers
submitted show that 	there 	is 	no 	triable 	issue 	as 	to any
material 	fact 	and 	that 	the moving 	party 	is 	entitled 	to 	a
judgment 	as 	a matter 	of 	law." 	The 	moving party 	is 	entitled 	to
a 	judgment as 	a matter of 	law where there 	is 	no 	dispute over
the material 	facts 	and there 	is 	no 	defense 	to 	the 	respondent's
action. 	Here, 	the Association argues, 	the only remaining
contentions are four affirmative defenses, 	all 	of which are
meritless.
Originally, 	the 	District 	advanced 	five 	affirmative 	defenses
to 	its 	refusal 	to 	collect membership dues. 	The 	District 	argued
that 	the 	charge 	and 	complaint 	fail 	to allege a prima 	facie
N	
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case, 	that 	the acts alleged are within management's
prerogatives, 	that the obligation to collect dues 	is
discretionary, 	that 	the District's action is 	reasonable and
that 	the 	collection 	of 	dues 	would 	impose 	an 	unreasonable burden
on the District.
The 	complaint 	alleges 	that 	the 	District 	violated
Educational 	Employment Relations Act 	subsections 	3543.5(a) 	and
(b)1 by 	refusing 	to 	collect 	the 	dues 	of 	five Association
members 	through payroll withholding. 	It 	is 	an unfair 	practice
under 	EERA subsection 3543.5(a) 	for 	a public school 	employer 	to
"interfere with, 	restrain or 	coerce employees" 	in the exercise
of protected rights. 	It 	is 	an unfair practice under 	EERA
subsection 	3543.5(b) 	for 	a public 	school 	employer 	to 	"deny to
employee 	organizations 	rights 	guaranteed 	to 	them" 	by 	the 	EERA.
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The Educational 	Employment Relations 	Act
(hereafter EERA) 	is 	found at 	section 3540 	et 	seq. 	In 	relevant
part, 	section 3543.5 provides as follows:
It 	shall be 	unlawful 	for 	a 	public school
employer 	to:
(a) 	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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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In 	an 	unfair 	practice 	case 	involving 	an 	allegation 	of
interference, 	a violation will 	be 	found where 	the employer's
acts 	interfere 	or 	tend to 	interfere with 	the 	exercise 	of
protected 	rights 	and 	the 	employer 	is 	unable 	to 	justify 	its
actions 	by 	proving 	operational 	necessity. 	Carlsbad 	Unified
School District 	(1979) 	PERB Decision No. 	89. 	See also, 	Novato
Unified School 	District 	(1982) 	PERB Decision No. 	210 	and
Sacramento 	City Unified 	School 	District 	(1985) 	PERB Decision
No. 	492 	and cases cited therein. 	In an unfair 	practice case
involving interference, 	it 	is not 	necessary for 	the 	charging
party 	to 	show 	that 	the 	respondent 	acted with 	unlawful
motivation. 	Regents 	of 	the 	University of 	California 	(1983)
PERB Decision No. 	305-H.
EERA subsection 	3543.l(d) 	provides 	that:
(d) 	All employee organizations 	shall have
the 	right 	to have membership dues 	deducted
pursuant 	to Sections 	13532 	and 	13604.2 	[now
§§45060 and 45168] 	of 	the Education Code,
until 	such 	time 	as 	an 	employee 	organization
is 	recognized as 	the 	exclusive
representative 	for 	any of 	the 	employees 	in
an appropriate unit, 	and 	then such 	deduction
as 	to 	any employee 	in 	the 	negotiating 	unit
shall 	not be permissible 	except 	to 	the
exclusive 	representative.
The 	PERB has 	interpreted 	this 	section 	to mean 	that
individual 	employees 	have 	a 	derivative 	right 	to 	have 	their 	dues
deducted. 	Fresno Unified School District 	(1982) 	PERB Decision
No. 	208. 	Thus, 	where the District has admitted that 	it refused
to 	deduct 	the 	dues 	from the paychecks 	of 	five 	employees 	it 	is
A4

clear 	that a prima 	facie violation of 	subsection 3543.5(a) 	has
been 	shown 	for 	interference.
Similarly, 	it 	is 	clear 	that a prima 	facie violation of
subsection 	3543.5(b) 	also has 	been 	shown because 	of 	the
District's 	denial 	of 	the Association's 	right 	to 	have 	the 	dues
of 	its members 	deducted by checkoff. 	In Fresno, supra, 	the
PERB 	found 	that 	subsection 	3543.l(d) 	provides 	"an 	absolute
guarantee of 	dues deduction, 	unlike 	the NLRA which 	leaves 	the
issue to 	the collective bargaining area." 	Fresno, 	supra. 	The
admitted 	refusal 	to 	collect 	dues 	from the 	five 	employees
obviously 	ignores what 	the PERB 	found 	to be 	an 	absolute 	right.
Because 	the 	deduction 	of 	dues 	is 	an 	"absolute" 	right 	under 	the
EERA, 	it 	cannot be a 	subject of managerial prerogative 	as 	the
District 	argues. 	Thus 	the District's 	first 	two affirmative
defenses 	are wrong as 	a matter 	of 	law.
The District's 	third affirmative defense, 	that 	the
collection of 	dues 	is 	discretionary, 	rests upon 	its
interpretation 	of 	Education 	Code 	section 	45168 	and was 	the
basis for 	the District's August 1, 	1985, 	motion to dismiss.
The defense was 	rejected 	in the October 	31, 	1985, 	denial of 	the
motion.
The 	District's 	final 	defenses 	are based upon a 	rule of
reasonableness. 	The District 	argues 	that 	its 	refusal 	to 	deduct
the dues 	is 	reasonable and that a 	requirement 	that 	the 	District
deduct 	dues would 	impose 	an 	unreasonable burden. 	The 	District
5

argues 	that 	because 	the 	factual 	stipulation 	does 	not 	pertain 	to
the 	reasonableness 	defense, 	a motion 	for 	summary 	judgment 	is
not proper.
However, 	as 	the Association notes, 	subsection 3543.l(d)
differs 	from other 	statutory 	guarantees 	of 	employee
organization rights 	in 	that 	it 	does not 	contain the word
"reasonable." 	By contrast, 	the right of access 	is subject 	to
"reasonable regulation" 	and 	is 	available only at 	"reasonable"
times. 	Subsection 	3543.l(b). 	Similarly, 	employee
organizations 	are 	entitled 	to 	released 	time 	for 	a 	"reasonable"
number 	of 	representatives 	for 	a 	"reasonable" 	period 	of 	time.
Subsection 	3543.l(c). 	These differences are 	consistent with
the PERB's 	conclusion in Fresno, 	supra, 	that dues deduction 	is
-
an 	"absolute" 	right. 	If it is an 	"absolute" 	right, 	dues
deduction 	is 	not subject 	to a 	rule of 	reasonableness.
Respondent 	has 	provided no 	citation 	for 	why 	it 	should be
excused 	from 	a 	statutory 	mandate 	because 	compliance 	would
constitute an 	"unreasonable" 	burden on 	the District. 	Indeed,
there 	are 	numerous 	cases which hold 	that 	public 	agencies 	must
carry out 	statutory obligations 	even where 	burdensome. 	An
inability to pay, 	for example, 	will 	not 	excuse 	the performance
of a mandatory duty to act. 	Bellino v. 	Superior Court,
Riverside County (1977) 	70 Cal.App. 	3d 824 	[137 Cal.Rptr. 523].
See 	also 	City and County of 	San 	Francisco 	v. 	Superior 	Court
(1976) 	57 Cal.App.3d 44 	[128 Cal.Rptr. 	712].
66

V
It 	is concluded, 	therefore, 	that there is no evidentiary
record which 	would 	support 	a 	"reasonableness" 	defense 	to 	the
District's 	failure 	to afford 	the 	Charging 	Party 	its 	"absolute"
right 	to dues 	deduction. 	Accordingly, 	an order 	for 	summary
judgment 	is 	proper 	and 	it 	is 	found 	that 	the 	District has
violated EERA subsections 3543.5(a) 	and 	(b).
REMEDY
The Association has 	requested 	a 	cease-and-desist 	order 	and
the posting of 	a notice. 	These are 	the 	appropriate 	remedies 	in
an 	interference 	case. 	Posting of a notice, 	signed by an
authorized agent 	of 	the District, 	will provide 	employees with
notice 	that 	the District has 	acted 	in an unlawful manner, 	is
being 	required 	to 	cease 	and 	desist 	from 	this 	activity, 	and will
comply with 	the 	order. 	It 	effectuates 	the purposes 	of 	the 	EERA
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	the 	District's 	willingness 	to 	comply with 	the 	ordered
remedy. 	Davis 	Unified School 	District 	(1980) 	PERB Decision
No. 	116; 	see also Placerville Union School District 	(1978) 	PERB
Decision No. 	69.
PROPOSED 	ORDER
Upon 	the 	foregoing conclusions 	of 	law and 	the 	entire 	record
of 	this 	case, 	it 	is 	found that the 	San Diego Unified School
District 	has violated subsections 	3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment Relations Act. 	Pursuant 	to 	subsection
7

3541.5(c) 	of the Government Code, 	it hereby is ORDERED that 	the
District, 	its 	governing board and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Interfering with 	the 	protected 	right 	of 	employees
to 	have 	their 	organization membership 	dues 	deducted 	from 	their
paychecks 	through 	payroll 	deduction.
B. 	Denying 	the 	Association 	its 	statutory 	right 	to
have 	the 	dues 	of 	its 	members 	deducted 	from their 	paychecks
through 	payroll 	deduction.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS
ACT:
A. 	Effective with 	the 	first 	employee payroll 	after
service of 	a 	final 	decision 	in this matter, 	deduct Association
dues 	from the 	paychecks 	of 	all 	instructional 	aides 	employed 	by
the 	District 	who 	have 	submitted payroll 	deduction 	authorization
cards 	for 	Association dues.
B. 	Within ten 	(10) 	workdays of service of a 	final
decision 	in this matter, 	post 	at all 	school 	sites 	and all other
work 	locations where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the notice 	attached hereto as 	an appendix.
The notice must 	be 	signed by 	an 	authorized 	agent 	of 	the
District, 	indicating that 	the District will 	comply with 	the
terms of 	this 	order. 	Such posting 	shall 	be maintained 	for 	a
period of thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
8

shall be 	taken to 	insure that 	the notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered by any other material.
C. 	Upon 	issuance of a 	final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with the 	Order 	to
the 	Los Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance with 	the 	director's 	instructions.
Pursuant 	to 	California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become final on January 9, 	1986, 	unless a party files a 	timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part III, 	section 	32300. 	Such statement of exceptions and
supporting brief must 	be 	actually 	received 	by 	the 	Public
Employment Relations 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento before the close of business 	(5:00 	p.m.) 	on
January 9, 	1986, 	or sent by telegraph, 	certified or Express
United States mail, 	postmarked not 	later 	than 	the 	last 	day 	for
filing 	in order 	to 	be timely 	filed. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing upon 	each 	Party to 	this
9

proceeding. 	Proof of 	service shall 	be 	filed with 	the 	Board
itself. 	See California Administrative Code. title 	8, 	part 	III,
section 	32300 	and 	32305.
Dated: 	December 20, 	1985
Ronald 	E. 	Blubaugh
Administrative 	Law 	Judge
10