National Education Association (Henkel) (PERB 0656E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JO ANN HENKEL, 	et al.,
Charging 	Parties,
v.
NATIONAL 	EDUCATION ASSOCIATION,
Respondent.
Case No. 	LA-CO-402
PERB Decision No. 	656
December 31, 	1987
Appearances: 	David T. 	Bryant, 	National 	Right 	to Work Legal
Defense Foundation, 	Inc., 	for Jo Ann Henkel, 	et al.; 	Diane
Ross, 	Attorney, 	for National 	Education Association.
Before Hesse, 	Chairperson, 	Shank and Craib, 	Members
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on appeal by Jo Ann Henkel, 	et
al. 	(Charging Parties), 	of the General Counsel's dismissal of
its 	charge 	that 	the 	National 	Education Association 	(NEA)
violated 	sections 	3543.6(b), 	3544.9 and 3543 	of 	the Educational
Employment 	Relations Act 	(EERA),1 by using unconstitutional
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 provides, 	in pertinent part, 	as 	follows
It 	shall be 	unlawful 	for 	an employee 	organization 	to:
(b) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
)
)
)
)
)
)
)
)
)
)
. 	.	. .

procedures 	in 	the 	deduction of 	fees 	from Charging Parties'
salaries, 	pursuant 	to 	the 	organizational 	security provision.
Charging Parties' 	appeal 	from 	the 	dismissal 	is based on 	the
assertion 	that 	the 	Associated 	Chaffey 	Teachers 	(the 	exclusive
representative), 	the California Teachers Association, 	and the
National 	Education Association, 	collectively, 	constitute 	the
"union." 	The 	regional 	attorney 	in 	the 	attached 	letter
dismissed 	the 	charges because 	the 	exclusive 	representative, 	not
the affiliate, 	is the proper respondent.2 •
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise of
rights 	guaranteed by 	this 	chapter.
We 	concur 	in 	the 	regional 	attorney's 	analysis. 	In King
City High 	School 	District Association, 	et 	al.(1982) 	PERB
Decision No. 	19 7, 	the Board ruled 	that 	the proper respondent
for 	an agency 	fee 	challenge 	is 	the 	exclusive 	representative.
The 	Board 	reiterated 	this 	principle 	in 	Police 	Officers 	Research
Association 	of 	California 	and 	California 	Association 	of 	Food
and Drug Officials 	(1987) 	PERB Decision No. 	644-S, 	dismissing
the 	charges 	against 	the 	affiliate 	organizations 	and holding
that 	the 	exclusive 	representative 	is 	the proper 	respondent 	in
an 	agency 	fee 	challenge. 	Affiliation with 	the 	exclusive
representative 	is 	insufficient 	to make 	the 	statewide
organization 	the 	exclusive 	representative 	and 	"[h]ence, 	it was
2The 	General 	Counsel 	issued 	a 	complaint 	filed 	by 	Charging
Parties 	against 	Associated 	Chaffey 	Teachers on March 2, 	1987,
containing 	charges 	identical 	to 	the 	charges 	against 	NEA.
Associated Chaffey Teachers, 	LA-CO-397.
22

not 	liable 	for 	a 	violation of 	EERA." 	Fresno Unified 	School
District 	(1982) 	PERB Decision No. 	208; 	Washington Unified
School District 	(1985) 	PERB Decision No. 	549. 	Therefore, 	we
dismiss 	this 	case 	for 	failure 	to state 	a prima 	facie 	violation
of 	EERA.
ORDER
The 	unfair practice 	charge 	in 	Case 	No. 	LA-CO-402 	is hereby
DISMISSED.
Chairperson Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
33

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, California 94109
(415)557-1350
e
March 19, 	1987
David T. Bryant
National Right to Work Legal
Defense Foundation, I n c
8001 Braddcck Road
Springfield, VA 22160
Diane Boss
California Teachers Assn.
1705 Murchison. Drive
P. O. Box 921
Burlingame, CA 94010
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
JoAnn Henkel, et al. v. National Education Association
Charge No. LA-CO-402
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 alleg	. . 	e 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 5, 1987 JoAnn Henkel, et al. filed an unfair practice charge
against the National Education Association alleging violation of EERA
section 3543.6 (b). More specifically, charging parties alleged that the
California Teachers Association (CTA) is jointly liable for alleged defects in
the demand-and-return scheme provided by the Associated Chaffey Teachers, the
local chapter. 	These alleged defects are described as follows.
1. 	Mb information has been provided to the objecting fee payors concerning
the local Association's financial affairs.
2. 	There has been no independent audit of the expenses that are deemed
"chargeable."
3. 	No financial information has been provided which concerns actual
verifiable expenditures.
1 References to the EERA are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

David T. Bryant
Diane Ross
March 19, 1987
Page 2
4. 	The categories of expenditures are too general to be constitutionally
meaningful.
5. 	The appointment of an arbitrator by the American Arbitration Association
does not meet the Hudson standard.
6. 	The charging parties did not receive information demonstrating "Why
certain amounts are chargeable."
7. 	Information provided by CTA and the National Education Association (NEA)
fails to demonstrate how much of the money was spent in support of the
local chapter.
8. 	Charging parties did not receive information sufficient to enable them to
determine the pro rata share of chargeable expenses.
9. 	"All of the expenses for management, occupancy and capital expenditures/
depreciation should be categorized as administrative expenses except for
specific items spent far non-chargeable activities."
Charging parties also allege that the agency fee charged the objecting fee
payors was excessive, to wit: "FACT and the Crisis Assistance Fund costs are
not collective bargaining expenses." 	Charging parties appear also to object
to two other aspects of the fee. 	First, they allege "none of the 'political
affairs' expenses are chargeable to non-members"; and, second, "none of the
expenses for higher education are chargeable to units of secondary teachers
and vice versa."
On March 2, 1987 the regional attorney wrote to Mr. David T. Bryant, attorney
for charging parties, and pointed out the deficiencies in the charge. 	The
letter, attached and incorporated by reference, warned that unless withdrawn
or amended, the allegations would be dismissed on March 13, 1987. 	On
March 12, 1987 PERB received a letter from attorney Bryant, dated March 11,
1987, Which declined to amend or withdraw the charge. 	The letter, however,
contains arguments seeking to justify naming CTA and NEA as respondents.
Mr. Bryant's position can be reduced essentially to four propositions. 	They
are discussed separately below.
First, in Cumero v. Public Employment Relations Board (1985)
167 Cal.App.3d 137, the Court of Appeal affirmed PERB's ruling that EERA
section 3541.l(i).

David T. Bryant
Diane Ross
March 19, 1987
Page 3
requires nonmembers, like the charging parties in
these cases, to pay fees to affiliated organizations
as well as the exclusive representative.
Charging parties concede that the Court of Appeals' decision is currently
being reviewed by the California Supreme Court.
Charging parties incorrectly interpret the decision by the Court of Appeals.2
The Court did not view PERB's Cumero decision as requiring nonmembers to pay
fees to affiliated organizations. 	Rather, it held, consistent with PERB's
decision, that an exclusive representative can pass on to objectors the portion
of the costs that it has incurred affiliating with the statewide organization.
The agency fee payors are bound to accept the determination by the majority
that the representational function the exclusive representative is obligated
by statute to perform can best be carried out by affiliation with CIA.
Second, charging parties claim that PERB and the Court of Appeals held that it
has jurisdiction over the affiliate concerning the amount of the fees and/or
the procedures by which they are taken. 	This assertion incorrectly states the
law. 	Under Cumero, it is the exclusive representative, not the affiliate,
which is liable to the objecting fee payer. 	It, not CTA, is legally required
to refund the portion of the fee which is not spent on activities Which are
"germane to representational functions," and, provide a demand-and-return
procedure which protects the objector's constitutional rights.3
Third, charging parties insist that PERB has jurisdiction over the affiliate
by virtue of its statutory authority to do more than investigate unfair
practice charges. 	It is true that PERB has the authority to broaden
investigation beyond the exclusive representative. 	However, it may choose not
to exercise this authority.
2It 	should be noted that the Court of Appeal's decision in Cumero,
under California law, is nullified once the Supreme Court accepts jurisdiction
to review it, and it therefore cannot be cited as binding precedent. 	See
California Rules of Court 976(d) and 977(a).
3The 	Board's Order is particularly revealing in this regard. 	It is
directed to the exclusive representative, not the affiliate. 	That the
affiliates filed appearances in the Cumero matter and thereby submitted to
PERB's jurisdiction should not be confused with PERB's authority to find them
liable for the activities of the local chapter.

David T. Bryant
Diane Ross
March 19, 1987
Page 4
Fourth, charging parties claim that as a practical matter it does not make any
sense for PERB to accept jurisdiction over one level of the organization and
decline to exercise jurisdiction over the other levels. 	However, charging
parties offer no facts to support their claim of impracticality.
No practical difficulty is apparent. 	The exclusive representative is legally
obligated both to account for all the money it has collected from objecting fee
payors and refund all monies it cannot justify as retainable. 	No distinction
is made between monies which are spent locally and those which are paid to
affiliates for services rendered by those entities to the local chapter. 	Here,
the exclusive representative has not claimed that it is unable or unwilling to
obtain the information or refund the amount owing to objecting fee payers.
For the reasons set forth above as well as those contained in the warning
letter of March 2, 1987, the allegations of the charge are 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 may 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:
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

David T. Bryant
Diane Boss
March 19, 1987
Page 5
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 sail postage paid and properly addressed.
Extension ofTime	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

STATE Of 	CALIFORNIA 	GEORGE DEUKMEJIAN,
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, California 94108
(415)557-1350
March 2, 	1987
David T. Bryant
National Right To Work Legal
Defense Foundation, I n c
8001 Braddcck Road
Springfield 	Virginia 	22160
Ret 	JoAnn Henkel, et a l . v. 	National Education Association
Charge No. LArCO-402
Dear Mr- Bryant:
On February 5, 	1987 JoAnn Henkel, et a l . 	filed an unfair practice charge
against the National Education Association (NEA) alleging violation of EEEA,
section 	3543.6(b). 	More specifically, charging parties alleged that the NEA
is jointly liable far alleged defects in the demand-and-return scheme provided
by the Associated Chaffey Teachers, 	the local chapter. 	These alleged defects
are described as follows.
1. 	No information has been provided to the objecting fee payors concerning
the local Association's financial affairs.
2. 	There has been no independent audit of the expenses that are deemed
chargeable."
3. 	No financial information has been provided which, concerns actual
verifiable expenditures.
4. 	The categories of expenditures are too general to be constitutionally
meaning--.	meaningful
5. 	The appointment of an arbitrator by the American Arbitration Association	Asaociatiat
does not meet the Hudson standard.
6. 	The charging parties did not receive information demonstrating
certain amounts are chargeable."
7. 	Information provided by CTA and the National Education Association (NEA)
fails to demonstrate how much of the money was spent in support of the
local chapter.
8. 	Charging parties did not receive information sufficient to enable then to
determine the pro rata share of chargeable expenses.
9. 	"All of the expenses for management, occupancy and capital
expenditures/depreciation should be 	categorized as 	administrative
expenses except for specific items spent for non-chargeable activities."
Cs a 11 •
e

David T. Bryant
March 2, 1987
Page 2
Charging parties also allege that the agency fee charged the objecting fee
payors was excessive, to wit: "FACT and the Crisis Assistance Fund costs are
not collective bargaining expenses." 	Charging parties appear also to object
to two other aspects of the fee. 	First, they allege "none of the 'political
affairs' expenses are chargeable to non-members"; and, second, "none of the
expenses for higher education are chargeable to units of secondary teachers
and vice versa."
Investigation	Investfgatim of the charge revealed the following. 	The collective bargainings
agreement between the Chaffey School Distric	i 	t and the Association contains an
organizational security provision Which requires 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, initiation fees and general
assessments. 	If such individual does not authorize payroll deduction of the
service fee or make payment directly to the Association, the District, upon
written request from the Association, shall begin payroll deduction of the
service fee.
PERB records show that the NEA is a national organization with which the
Associated Chaffey Teachers (ACT) is affiliated, and only ACT is the exclusive
representative of District certificated employees. ACT pays NEA a portion of
its dues in return far services.
In Link v. Antioch Unified School District, - et al. (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-payors were sufficient to meet EEEA 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 politica1/ideologica1 expenses.
. .
1 Subsequent to PERB's
decision in Link, the U.S. Supreme Court issued its decision in Chicago
Teachers Union v. Hudson (1986) 106 S.Ct. 1066 [121 LRRM 2793]. Hudson held
that the exclusive representative is constitutionally required to provider an
1 There, as here, the exclusive representative was affiliated 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
state. 	The escrow account, for example, was administered at the state level
and contained a sum intended to protect all objectors in the state.

David T. Bryant
March 2, 1987
Page 3
adequate explanation of the basis for the fee, a reasonably prompt opportunity
to challenge the amount of the fee before an impartial decision-maker, and an
escrow for the amounts reasonably in dispute while such challenges are pending.
In Fresno Unified School District (1982) PERB Decision No. 208, and Washington
Unified School District (1985) PERB Decision No. 549, PERB held that mere
affiliation by the exclusive representative with the statewide organization
(such as CTA) 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) P E R B Order N o . A d - 1 2 3 . Similarly, t h e e x c l u s i v e r e p r e s e n t a t i v e ' s
affiliation with the NEA did not render NEA the exclusive representative.
The charge, as written, fails to state a prima facie violation of EEEA. 	Only
the exclusive representative is required to provide the procedural protections
discussed above. 	NEA is not the exclusive representative, and therefore is
not obliged to provide the Hudson-type procedural requirements. Having no
such obligation under EERA, NEA is not an appropriate a party to this action.
If you feel that there are any factual inaccuracies in this letter 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 farm clearly labeled First Amended
Charge, 	(2) contain all the facts and allegations you wish to sake,
(3) indicate the case number where indicated an the form (even though you are
not to write in the box when originally filing a charge), 	(4) and be signed
under penalty of perjury by the charging party. 	The amended charge East be
served an the respondent, and proof of service must be attached to tie
original as well as to all copies of the amended charge.
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 call me at (415) 557-1350.
Sincerely yours.
Peter Haberfeld	Habertela	i,aoe;rre.ia
Regional Attorney
. u .. .