California Teachers Association (Clegg) (PERB 0652E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PATRICIA L. 	CLEGG,
Charging 	Party,
v.
CALIFORNIA TEACHERS ASSOCIATION,
Respondent.
)
)
) 	Case 	No. 	SF-CO-313
PERB 	Decision 	No. 	652
December 30, 	1987
)
)
)
)
Appearances; 	Patricia L. 	Clegg, 	on her own behalf; 	Diane Ross,
Attorney, 	for 	California 	Teachers 	Association/National 	Education
Association.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	Charging party appeals 	the 	dismissal
of 	her 	unfair 	practice 	charge 	against 	the 	California 	Teachers
Association 	(CTA) 	alleging 	that 	CTA 	is 	liable 	for 	alleged
deficiencies 	in 	the 	collection procedures 	and 	amount 	of 	agency
fees 	collected by 	the 	Cambrian 	District 	Teachers 	Association, 	a
local 	chapter of 	CTA/National 	Education Association, 	in
violation of 	the 	Educational 	Employment 	Relations Act 	(EERA),
Government Code section 3543.6(b).1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the 	Government 	Code.
Section 3543.6(b) 	provides:
It 	shall be 	unlawful 	for 	an employee
organization 	to:
)
)
_____________ )
1

(b) 	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.
We 	concur 	with 	the 	regional 	attorney's 	analysis 	in 	the
attached 	letter 	dismissing 	the 	charge 	for 	failure 	to 	state 	a
prima 	facie 	case 	since 	CTA 	is 	not 	the 	exclusive 	representative
of 	charging party's 	bargaining 	unit.
ORDER
The 	Public 	Employment 	Relations 	Board hereby ORDERS 	that
the 	charges 	in Case No. 	SF-CO-313 	are hereby DISMISSED without
leave 	to 	amend.
Members 	Porter 	and Craib 	joined 	in 	this 	Decision.
2
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2

STATE 	OF 	CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street Suite 900
San Francisco, California 94108
(415)557-1350
March 13, 	1987
Patricia L. Clegg
Diane Ross
Teachers Assn.
1705 Murchison Drive
California	ca.Hfamia	P. O. Box 921
Burlingame, CA. 94011-0921
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Patricia L. Clegg v. California Teachers Association, Charge No. SF-CO-313
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Act
(EERA)).1 The reasoning which underlies this decision follows.
On February 25, 1987 Patricia L. Clegg filed an unfair practice charge against
the California Teachers Association (CTA) alleging violation of EERA
section 3543.6(b). 	Mare specifically, charging party alleged that the CTA is
jointly liable for alleged defects in the demand-and-return scheme provided by
the Cambrian District Teachers Association (Association), the local chapter.
These alleged defects are described as follows.
1. 	A portion of Ms. Clegg's monthly pay has been seized unlawfully from her
by the District. 	She is an objecting agency fee payor and therefore she
should have to pay no more than a certain percentage of membership dues.
A certain portion of dues, by CTA's admission, is chargeable to political
and ideological activities and therefore objectionable to Ms. Clegg. 	Yet
the District deducts 100 percent of the membership dues from Ms. Clegg's
paycheck. 	Despite her objection, the District continues to facilitate
the full deduction of CTA dues from her monthly paycheck. 	The District
is forcing her to extend an "involuntary loan" to CTA.
2. 	The method by which CTA determines that a certain portion of the monthly
membership dues is attributable to political and ideological expenses is
objectionable. 	The audit, while claiming to have been undertaken in
accordance with generally accepted accounting standards, does not
indicate that it complied with the Hudson decision. 	The itemization
contained in the audit lacks the specificity required by Hudson.

Patricia L. Clegg
Diana Ross
March 13, 1987
Page 2
3. 	CIA has failed to provide a reasonably prompt opportunity for Ms. Clegg
to challenge' the amount of the deduction. 	CTA did not initiate a
procedure in a prompt manner. Over nine months transpired between the
effective date of Hudson and the arbitration hearing commenced in
January 1987. 	The American Arbitration Association (MA) is not an
impartial decision-maker. It was selected by CTA unilaterally. 	Agency
fee objectors were not part of the selection process. 	The AAA hearing
does not present a reasonable opportunity to object to the agency fee
amount. 	The hearing was conducted at the headquarters of the statewide
CTA in Burlingame, California, during school hours over a period of six
days, and was set at a tins and date that could not be changed by any of
the objectors. 	Charging party has no reliable way to verify whether the
arbitrator selected by AAA is competent and impartial. CTA unilaterally	1lllil.mirally
selected the arbitrator from a list created by AAA-
4. 	CTA did not provide escrow for amounts reasonably in dispute during the
period that the deduction was being challenged. 	The escrow account, if
it exists, is solely controlled by CTA and therefore not in compliance
with Hudson. Charging party's requests for information about the escrow
account have come to naught. Be has not been told the names, location or
identity of those responsible for the account.
On March 2, 1987 the regional attorney wrote a letter to charging party
explaining that the allegations in the original unfair practice charge
insufficient to support a prim facie violation of EEEA sections 3543.6(b) and
3544.9. The letter, attached and incorporated by reference, warned that
unless the allegations were withdrawn or amended, they would be dismissed on
March 13, 1987. 	On March 13, 1987 the regional attorney spoke with charging
party concerning the warning letter. 	She conceded that she had received the
letter and resolved not to withdraw or amend the charge. 	Accordingly, for the
reasons set forth in the warning letter referred to above, as well as this
letter, the allegations are hereby dismissed. 	No complaint will issue thereon.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
You nay obtain a review of this dismissal of the charge by filing an appeal to
the Board itself within twenty (20) calendar days after service of this Notice
(section 32635(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.) or sent by telegraph or certified or Express United
States mail postmarked not later than the last date set for filing. 	Code of
Civil Procedure section 1013 shall apply. 	The Board's address is:

Patricia L. Clegg
Diane Ross
March 13, 1987
Page 3
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a complaint, any other
party may file with the Board an original and five (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 32635(b)).
Service
All documents authorized to be filed herein must also be "served" upon all
parties to the proceeding, and a "proof of service" must accompany each copy
of a document served upon a party or filed with the Board itself 	(see
section 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 file a document with the Board
itself must be in writing and filed with the Board at the previously noted
address. 	A request for an extension must be filed at least three (3) calendar
days before the expiration of the time required for filing the document. 	The
request must indicate good cause for and, if known, the position of each other
party regarding the extension, and shall be accompanied by proof of service of
the request upon each party (section 32132).
Final Date
If no appeal is filed within the specific time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
JEFFREY SLOAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: General Counsel

PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, California 94108
(415)557-1350
March 2, 	1987
Patricia L. Clegg
RE: Patricia L. Clegg v. California Teachers Association, Charge No. SF-CO-3I3
Dear Ms. Clegg:t
On February 25, 1987 Patricia L. Clegg filed an unfair practice charge
the 	California 	Teachers 	Associatio	the California Teachers Association (CTA) alleging violation of	n 	(CTA) alleging violation of EEEA
section 3543.6 (b)	() 	. M o r e specifically, charging party alleged that the CI	aga inst	A is
jointly liable for alleged defects in the demand-and-return scheme provided by
the Cambrian District Teachers Association (Association), the local chapter.
These alleged defects are described as follows.
1. 	A portion of Ms. Clegg's monthly pay has been seized unlawfully from her
by the District. 	She is an objecting agency fee payor and therefore she
should have to pay no more than a certain percentage of membership dues.
A certain portion of dues, by CTA's admission, is chargeable to political
and ideological activities and therefore objectionable to Ms, Clegg. 	Yet
the District deducts 100 percent of the membership dues from Ms. Clegg's
paycheck. 	Despite her objection, 	the District continues 	to facilitate
the full deduction of CTA dues from her monthly paycheck. The District
is forcing her to extend an "involuntary loan" to CTA.
2. 	The method by which CTA determines that a certain portion of the monthly
membership dues is attributable to political and ideological expenses is
objectionable. 	The audit, while claiming to have been undertaken in
accordance with generally accepted accounting standards, does not
indicate that it complied with the Hudson decision. The itemization
contained in the audit lacks the specificity required by Hudson.
3. 	CTA has failed to provide a reasonably prompt opportunity for Ms. Clegg
to challenge the amount of the deduction. 	CTA did not initiate a
procedure in a prompt manner. Over nine months transpired between the
effective date of Hudson and the arbitration hearing commenced in
January 1987. 	The American Arbitration Association (AAA) is not an
impartial decision-maker. 	It was selected by CTA unilaterally. 	Agency
fee objectors were not part of the selection process. 	The AAA hearing
does not present a reasonable opportunity to object to the agency fee
amount. 	The hearing was conducted at the headquarters of the statewide
CTA in Burlingame, California, during school hours over a period of six
days, and was set at a time and date that could not be changed by any of
the objectors. 	Charging party has no reliable way to verify whether the
arbitrator selected by AAA is competent and impartial. CTA unilaterally
selected the arbitrator from a l i s t created by AAA.
.... _...,,, ..... "'tx .........................

Patricia L. 	Clegg
March 2, 	1987
Page 2
4. 	CIA did not provide escrow for amounts reasonably in dispute during the
period that the deduction was being challenged. 	The escrow account, if
it e x i s t s , is solely controlled by CTA and therefore not in compliance 	Jiarv:e	Hiance
with	with Hudson. Charging party's requests for information about the escrow
account have come to 	naught. 	He has not been told the names* location or
identity at those responsible for the account.
Inve 	Investigation of the charge revealed the following. 	The collective bargaining
'"3L	agreement ,t between the Cambrian School District and the Cambrian District
Associated Teachers (Association) contains an organizational security provision
which require that members are to have their dues deducted by the District for
the duration of the agreement. Further, any member of the unit who is not a
member of the Association must authorize payroll deduction or make payment to
the Association of a service fee equivalent to unified membership dues, i n i t i -
ation fees and general 	assessments. 	If such individual does not authorize
payroll deduction of the service fee or make payment d i r e c t l y to the Associ-
ation, 	the District, 	upon written request from the Association, 	shall begin
payroll deduction of the service fee.
PERB records show that the CTA is a statewide organization with which the
Association is affiliated, 	and only the Association is the exclusive repre-
sentative of District certificated employees. The Association pays CTA a
portion of i t s dues in return for 	services.
In Link et a l . 	v. Antioch Unified School District, 	et a l , 	(1985) PERB Order
No. IR-47, the Board examined the exclusive representative's demand-and-return
system, 	and determined that the procedural protections made available to
objecting fee-pavors were sufficient to mee. .
t EERA, standards, even though they
did not require that the entire amount of the agency fee be escrowed pending
the exclusive representative's determination and reimbursement of the amount
attributable to 	political/ideological 	expenses.1 Subsequent to PERB's
decision in Link, 	the U.S. 	Supreme Court issued i t s decision in Chicago
Teachers Union v. Hudson (1986) 106 S.Ct. 1066 [121 LRRM 27933. 	Hudson held
that the exclusive representative is constitutionall	. . y required to provider an
1lT	li here,	rhere, as here, 	the exclusive representative was a f f i l i a t e d with
statewide California Teachers Association (CTA) and National Education
Association (NEA). Many aspects of the demand-and-return system were provided
by statewide CTA to the local chapter and to CTA chapters throughout the
s t a t e . 	The escrow account, 	for example, 	was administered at the state level
and contained a sum intended to protect a l l objectors in the state.
r.m,,,

Patricia L. Clegg
March 2, 	1987
Page 3
adequate explanation of the basis for the fee, a reasonably prompt opportunityaU;r	nity
to challenge the amount of the fee before an impartial decision-maker, and
escrow 	for 	the amounts reasonably in dispute while such challenges are prosding-	-pm'liag:
In Fresno Unified School District (1962) PERB Decision No. 208, and Washington
Unified School District (1985) PERB Decision No. 549, PERB held that more
a f f i l i a t i o n by the exclusive representative with the statewide organization
(such as CSU) 	is 	insufficient 	to make the statewide organization the exclusive
representative and "hence, 	it was not liable for a violation of 	EERA.." 	Also
see Link v. California Teachers Association and National Education Association
(1981) PERB 	Order No. Ad-123.
The charge, 	as written, 	f a i l s 	to state a prima 	facie 	violation of EERA. Only
the exclusive representative is required to provide the procedural protections
discussed above. CTA is not the exclusive representative, 	and therefore 	is
not obliged to provide the Hudson-type procedural requirements. 	Having no
such obligation under EERA, 	CTA is not an appropriate a party to this action.
If you feel that there are any factual inaccuracies in t h i s l e t t e r or any
additional facts which would correct the deficiencies explained above, please
amend the charge accordingly. 	(1) The amended charge should be prepared on a
standard PERB unfair practice charge form clearly labeled First Amended Charge,
(2) 	contain a l l the facts and allegations you wish to make, 	(3) 	indicate the
case number where indicated on the form (even though you are not to write in
the box when originally f i l i n g a charge), 	(4) and be signed under penalty of
perjury by the charging party (forms enclosed). 	The 	amended charge must be
served on the respondent, and proof of service must be attached to the original
as well as to all copies of the amended charge (forms enclosed).
If I do not receive an amended charge or withdrawal from you on or before
March 13, 	1987, 	I shall dismiss your charge. 	If you have any questions on how
to proceed, 	please c a l l me at 	(415) 	557-1350.
Sincerely yours.
PeterHaberfeldA
Regional Attorney
Enclosure
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