Kings Canyon Educational Association (Largent) (PERB 0958E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MILDRED 	LARGENT,
Charging 	Party,
v.
KINGS 	CANYON 	EDUCATIONAL
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	S-CO-282
PERB Decision No. 	958
November 18, 	1992
Appearances: 	Mildred Largent, 	on her own behalf; 	Diane Ross,
Attorney, 	for Kings Canyon Educational Association, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by Mildred Largent 	(Largent) 	to
a 	Board agent's 	dismissal 	(attached hereto) 	of 	her unfair
practice charge. 	In her charge, 	Largent alleged that the Kings
Canyon Educational Association, 	CTA/NEA 	(Association) 	violated
section 	3543.6(b) 	of 	the Educational Employment Relations Act
(EERA)1 by requiring her to pay a nonmember 	"personal
convictions" 	fee, 	which was the equivalent of Association dues.
1EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
EERA section 3543.6 	states, 	in pertinent part:
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
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter.
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The 	Board has 	reviewed 	the 	Board 	agent's warning 	letter 	and
dismissal 	letters, 	and finding them to be 	free of prejudicial
error, 	adopts 	them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CO-282 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Caffrey 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
August 21, 	1992
Ms. 	Mildred Largent
Re: 	Mildred Largent v. 	Kings 	Canyon Educational Association
Unfair Practice 	Charge No. 	S-CO-282
DISMISSAL 	LETTER
Dear Ms. Largent:
On June 	1, 	1992, 	you filed the above-referenced charge alleging
that 	the 	Kings 	Canyon Educational 	Association violated 	the
Educational Employment Relations Act 	section 3543.6(b).
Specifically, 	you have alleged that 	the Kings 	Canyon Educational
Association 	(KCEA) 	has violated your rights 	by requiring 	that you
pay a nonmember 	"personal 	convictions" 	fee 	the equivalent 	of
Association dues.
On August 20, 	1992, 	I received your amended charge. 	In the
amended 	charge you 	contend that, 	under the 	collective bargaining
agreement between the 	Kings 	Canyon Unified School 	District 	and
the Kings 	Canyon Educational Association, 	the service 	fee 	is not
defined as 	the equivalent 	of dues. 	For the 	reasons 	stated 	in my
letter of August 12, 	1992, 	it appears that the service fee is an
amount 	equal 	to membership dues and general 	assessments. 	You
also contend that, 	under existing 	case 	law and PERB regulations,
"dues and service 	fees are not the same amount" 	regardless 	of 	the
collective bargaining agreement. 	However, 	under the Educational
Employment Relations Act a service 	fee 	(or agency fee) 	may equal
a union's 	standard initiation 	fee, 	periodic 	dues 	and general
assessments 	(Gov. 	Code 3540.l(i) (2)). 	It is only when a
nonmember service 	fee payer objects 	to paying a 	fee which
includes 	purposes 	beyond 	a union's 	representational 	obligations
that his 	fee must be 	reduced. 	(Cumero v. 	Public Employment
Relations Bd. 	(1989) 	49 Ca.3d 575, 	589-590.) 	Accordingly, 	the
initial 	service 	fee may be 	the 	equivalent 	of 	dues. 	As 	explained
in my letter of August 	12, 	this 	fee 	reduction is 	required for
agency/service 	fee payers 	and not 	for 	those 	choosing 	to pay a
charitable contribution. 	Therefore, 	I am dismissing your charge
based on 	the 	facts 	and 	reasons 	contained 	in my letter of
August 12, 	1992.

August 21, 	1992
Page 2
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	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 dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal 	must 	be 	actually received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	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
copies 	of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

August 21, 	1992
Page 3
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By n 8. flash for
i	Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Diane Ross

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
August 12, 	1992
Ms. 	Mildred Largent
Re: 	Mildred Largent v. 	Kings 	Canyon Educational 	Association
Unfair Practice 	Charge No. 	S-CO-282
WARNING 	LETTER
Dear Ms. 	Largent:
On June 1, 	1992, 	you filed the above-referenced charge alleging
that 	the 	Kings 	Canyon Educational Association violated the
Educational Employment Relations Act section 3543.6(b).
Specifically, 	you have alleged that 	the Kings 	Canyon Educational
Association 	(KCEA) 	has violated your rights by requiring that you
pay a nonmember 	"personal 	convictions" 	fee 	the equivalent 	of
Association dues.
My 	investigation 	reveals 	the 	following. 	The Kings 	Canyon
Educational 	Association and 	the 	Kings 	Canyon Unified School
District 	negotiated an agency shop agreement 	in 	the 	fall 	of 	1991.
The agreement provides three options. 	Individuals are free to
choose membership 	in 	the 	KCEA or 	they may 	choose 	to be 	nonmember
agency 	(service) 	fee payers to the union. 	Additionally, 	if
because 	of 	personal 	beliefs 	an 	individual 	chooses 	not 	to give
financial 	support 	to 	the Association s/he may pay a 	fee 	"equal 	to
such dues 	or service 	fee" 	directly to 	charitable 	organizations
listed 	in 	the agreement. 	You 	chose 	to pay a 	fee 	to a charitable
organization.
On or about January 14, 	1992, 	you made a payment 	to charity the
equivalent of 	full union dues. 	On or about January 17, 	you
received the 	"Hudson notice" 	that public 	sector labor
organizations 	forward to nonmember agency 	(service) 	fee payers.
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notice 	informs 	nonmember agency 	(service) 	fee payers
of 	that 	amount 	of 	dues which 	is 	used for political 	and other
nonrepresentational 	purposes. 	An objecting 	fee payer may then
have his 	fee 	reduced by that 	amount. 	Otherwise 	the nonmember
continues 	to pay the full 	fee 	(the equivalent of dues) 	to the
Association.
1This

August 12, 	1992
Page 2
On February 2, 	1992, 	you sent a letter to KCEA's parent
organization, 	the California Teachers Association, 	objecting to
payment 	of 	any amount more 	than 	that 	required of 	agency 	(service)
fee payers. 	On March 23, 	the KCEA president 	informed you that
you must pay the 	equivalent 	of 	full 	dues 	to 	the 	charity. 	You
allege 	that 	"since dues and service 	fee are not 	equal 	and apply
to members 	and nonmembers 	respectively, 	I 	should pay an amount
equal 	to the service fee."
Article 	6 	of 	the 	collective bargaining agreement 	between 	the
District and the Association 	is 	titled, 	"Professional 	Dues 	or
Fees and Payroll Deductions." 	Paragraph 3 	of 	the article
describes 	the 	option available 	to 	those 	individuals who 	choose 	to
pay nonmember 	fees 	to 	the Association. 	That 	option states 	that a
nonmember 	"shall 	either become 	a member of 	the Association or pay
to 	the Association a 	service 	fee 	in an amount 	equal 	to unified
membership dues 	and general 	assessments." 	Paragraph 4 	provides
that 	those 	nonmembers 	choosing 	the 	charity option shall 	pay a
"sum equal 	to dues 	or service 	fee." 	Accordingly, 	it appears 	that
under the 	collective bargaining agreement 	the amount 	of 	service
fee 	is 	an amount 	equal 	to Association dues 	and assessments.
You state that on January 17, 	1992, 	you received the 	"Hudson
notice." 	You 	then sought 	to have your charitable 	contribution
reduced by that 	amount which agency 	(service) 	fee payers may have
their 	fees 	reduced.
It 	is 	generally 	true 	that 	an objecting agency 	fee 	(or 	service
fee) 	payer may be 	only required to pay for that 	share 	of a 	labor
organization's 	costs 	of performing 	the duties 	of 	an exclusive
representative 	of 	the 	employees 	in dealing with 	the 	employer on
labor-management 	issues. 	Cumero v. 	Public Employment 	Relations
Board 	(1989) 	49 Cal.3d 575, 	at p. 	588; 	Ellis v. 	Railway Clerks
(1984) 	466 U.S. 	435, 	at p. 	447. 	Nonmember employees have a right
to 	"prevent 	the union's 	spending a part 	of 	their 	required service
fees 	to 	contribute 	to political 	candidates 	and 	to 	express
political 	views 	unrelated 	to 	its 	duties 	as 	exclusive bargaining
representative." 	Abood v. 	Detroit Bd. 	of Education 	(1977) 	431
U.S. 	209, 	234. 	(Emphasis added.) 	To prevent the compulsory
subsidization of nonchargeable activities, 	certain procedural
safeguards must 	be 	in place prior 	to a union's 	collection of 	an
agency fee. 	Chicago Teachers Union, 	Local No. 	1 v. 	Hudson 	(1986)
475 U.S. 	292. 	The California Supreme Court has stated, 	"The
procedures prescribed in Chicago Teachers, 	supra. 	475 U.S. 	292,
for protecting nonmembers' 	constitutional 	rights 	against 	a
union's 	improper uses 	of 	their agency 	fees 	are 	likewise

sufficient 	and appropriate 	for protection 	of 	nonmember employees'
statutory 	rights 	to prevent 	improper use 	of 	their 	service 	fees
collected 	under 	an 	EERA organizational 	security 	arrangement."
(Emphasis 	added.) 	Thus, 	protections afforded agency fee payers
are 	devised 	to 	avoid 	compulsory 	subsidization of 	nonchargeable
activities 	of a 	labor organization. 	The money which you pay to
the 	charitable 	fund does 	not 	subsidize 	such nonchargeable
activities. 	Accordingly, 	the protections afforded agency fee
payers 	are 	not 	applicable 	and 	the Association need not 	reduce 	the
amount of 	charitable donation. 	Therefore, 	your charge must be
dismissed.
August 12, 	1992
Page 3
For these 	reasons 	the 	charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in 	this 	letter or additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please amend the charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by the 	Charging 	Party. 	The
amended 	charge must 	be 	served 	on 	the 	Respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge 	or withdrawal 	from you before August 	19, 	1992, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,	
I'	-i.	
...i
~Bernard 	McMonigle
Regional 	Attorney