California Teachers Association and National Education Association (Link) (PERB A123E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVID W. LINK,
Charging Party,
APPELLANT
v.
CALIFORNIA TEACHERS ASSOCIATION
AND NATIONAL EDUCATION
ASSOCIATION,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
___________________)
Case No. SF-CO-134
SF-CE-494
PERB Order No.Ad-123
Administrative Appeal
December 29, 1981
Appearances: A. Roger Jeanson, Attorney (Haas & Najarian) and
David T. Bryant, Attorney (National Right to Work Legal Defense
Foundation) for David w. Link.
Before Gluck: Chairperson; Jaeger: Moore; and Tovar: Members,
DECISION
David Litk, a nonmember of the Antioch Education
Association (hereafter AEA) appeals a determination by the
San Francisco regional director that he is not entitled to the
financial statements of the California Teachers Association
(hereafter CTA) and the National Education Association
(hereafter NEA) for the fiscal year ending August 31, 1980, on
the grounds that only members of the exclusive representative
may allege noncompliance with Government Code section 3546.5.l
i
lsection 3546.5 states:
Every recognized or certified employee
organization shall keep an adequate

We
	find
	that
	Link,
	a 	nonmember
	of
	the
	exclusive
representative
	who
	is,
	nevertheless, 	obligated
	by
	the
	existing
agreement
	to
	pay
	a
	service
	fee
	to 	that
	organization,
	does 	have
standing 	to
	petition
	to
	compel
	compliance 	with
	section
	3546.5.
In
	our
	perception,
	Link
	is
	an
	"employee
	within
	the
organization."
The
	phrase
	is
	ambiguous.
	To
	decide
	its
	meaning
	requires
both 	the
	comparison
	of 	the 	phrase 	with
	other
	terms
	used
	in 	the
Educational
	Employment
	Relations
	Act
	(hereafter
	EERA
	or
	the
2	
Act)
	to
	identify
	employees
	and 	an
	examination
	of 	the
	Act
	as
a
	whole
	to 	discover 	the 	underlying
	legislative 	intent.
There
	appears 	throughout
	EERA
	at 	least
	six
	different
references 	to
	employees.
	Section 	3546(a).
	fn
	setting
	fo,..th
procedures 	for
	~stablishing 	organizational 	security
arrangements, 	uses 	the 	expression
	"members
	in 	the
	appropriate
itemized 	record 	of
	its
	financial
transactions
	and
	shall
	make
	availableannually, 	to 	the
	board
	and
	to 	the
	employees
who
	are
	members
	of 	the
	organization, 	within
60
	days
	after
	the
	end
	of
	its
	fiscal
	year,
	a
detailed 	written 	financial 	report 	thereof
	in
the
	form
	of
	a
	balance 	sheet
	and 	an
	operating
statement, 	signed
	and
	certified
	as
	toaccuracy
	by
	its
	president
	and
	treasurer
	or
corresponding
	principal 	officers.
	In 	theevent 	of 	failure
	of 	compliance 	with
	thissection,
	any 	employee
	within 	the
organization
	may
	petition
	the 	board 	for
	an
order 	compelling 	such 	compliance, 	or 	theboard 	may
	issue
	such 	compliance 	order
	on
	its
motion.
2EERA
	is 	codified 	at
	Government 	Code
	section
	3540
et
	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted. 2

negotiating
	unit,"
	and 	"members
	of
	the
	negotiating
	unit.n
Section
	3546 (b)
	uses 	the
	term 	"employees
	in
	the
	negotiating
unit."
	In
	the
	provision
	for
	intervention
	in
	representational
elections
	(sec.
	3544.l(b))
	both
	"employees
	in
	the
	unit"
	and
"members
	of
	an
	appropriate 	unit"
	are
	used. 	In
	section
	3543.
the
	term
	"public
	school
	employees"
	is
	used.
	Section 	3546.5,
under
	which
	this
	action
	is
	brpμght, 	uses 	both 	the 	phrase
"employees
	who
	are
	members
	of 	the
	organization"
	and
	"any
employee
	within 	the
	organization."
	Thus,
	while 	the
	statute 	is
less
	than
	consistent
	in
	its
	reference 	to
	employees,
	the 	phrase
in 	question,
	"employees
	within
	the
	organization,"
	is
	unique
	to
the
	compliance
	section
	at
	issue 	here.
Differences
	in
	statutory
	language
	are
	presumed
	to
	have
	a
different
	meaning.
	What
	different
	meaning,
	if
	any,
	is
	intended
here?
	We
	think
	it
	is
	the
	inclusion,
	in 	the
	latter
	term, 	of-
nonmembers 	who
	are 	obligated 	to
	make
	service
	fee
	contributions
to
	the 	exclusive 	representative.
	Service 	fee
	payers,
	who
	have
no
	express
	statutory 	rights
	to
	direct
	access 	to 	the
organization's
	records 	(including
	financial 	statements),
	would
thus
	have 	some
	opportunity 	to
	become 	aware
	of 	the
	use
	to
	which
the 	organization's
	funds
	and
	their
	fees 	are 	put.
3

Section 	3546.5, 	itself, 	entitles 	members 	of 	the
organization 	access 	to 	the 	financial 	statement. 	Yet, 	the 	Act
does 	not 	expressly 	limit 	pursuit 	of 	compliance 	to 	members. 	Ead
the 	Legislature 	so 	intended, 	it 	could 	have 	repeated 	the 	earlier
phrase. 	By 	choosing 	"employees 	within 	the 	organization" 	rather
than 	the 	narrow 	term 	"members 	of 	the 	organization" 	or 	the 	broad
113term 	"employees 	in 	the 	unit 	the 	Act 	evidences 	a 	legislative
intent 	that 	employees 	who 	have 	some 	intermediate 	connection
with 	the 	exclusive 	representative 	be 	allowed 	to 	petition 	for
compliance. 	Agency 	fee 	payors, 	of 	course, 	have 	such 	a
connection 	in 	that 	they 	are 	nonmembers 	who 	are 	forced 	to
contribute 	financially 	to 	the 	organization.
Since 	agency 	fee 	payers 	are 	not 	expressly 	entitled 	to
direct 	access 	afforded 	to 	members, 	compliance 	with 	section
3546.5 	ensures 	that 	they 	will 	have 	access 	to 	this 	agency's 	copy
4
of 	the 	financial 	statements 	required 	by 	its 	rule 	32125.
Where 	the 	organization 	has 	not 	voluntarily 	submitted 	the
311 Employees 	in 	the 	unit" 	undoubtedly 	includes 	nonmembers
who 	are 	not 	subject 	to 	a 	security 	arrangement.
4PERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31000 	et 	seq.
Pursuant 	to 	the 	California 	Public 	Records 	Act, 	Government
Code 	Section 	6250 	et 	seq., 	the 	public 	is 	entitled, 	with 	limited
exceptions, 	to 	records 	kept 	by 	a 	public 	agency.
4

documents
	to
	the 	agency,
	and
	compliance 	has
	not
	been
	otherwise
obtained,
	the
	service
	fee
	payor
	should
	be
	allowed
	to
	seek
	such
relief.
	While
	it
	is
	possible
	that
	a 	nonmember
	could
	discover
the
	organization's
	expenditures
	through
	alternate
	sources,
	the
union's
	own
	financial
	statement
	filed
	with
	PERB
	is 	likely
	to
	be
the
	most 	immediate
	and
	complete
	source
	of
	such
	information.
We
	conclude,
	therefore,
	that
	in 	attempting 	to 	assure
nonmembers
	the
	right
	to
	know
	how
	their
	forced
	contributions
	are
being
	utilized,
	the
	Legislature
	intended 	the 	phrase
	"employees
within
	the
	organization" 	to
	mean 	members
	of
	the
	organization
and 	nonmembers
	who
	are 	obligated 	to
	pay
	a
	fee
	under
	an
organizational 	security
	arrangement.
5
However,
	we
	dismiss 	the
	petition
	for
	other 	reasons.
Section
	3546..5
	requires
	only 	"recognized or
	certified
employee
	organizations" 	to
	keep
	and 	make
	available
	an 	itemiz.ed
record 	of
	its
	financial 	transactions.
	The
	petition
	for
recognition
	filed	
by	
respondent 	in 	the
	Antioch
	Unified 	School
District
	(hereafter
	District)
	reads:
	"Antioch Education
Association/California
	Teachers
	Association/National 	Education
Association."
	The
	school
	board's
	official
	notice 	to 	the
	PERB
that
	it
	granted 	recognition 	refers
	to 	the 	"Antioch 	Education
5
tink's 	petition
	before
	this
	Board 	does 	not 	seek 	theAntioch 	Education 	Association's 	financial 	statements 	because
	he
has 	already
	been 	provided
	a 	copy
	of 	that
	document
	filed
	with
the 	regional 	director 	in 	compliance 	with 	section 	3546.5.
5

6
Association/CTA/NEA." 	While
	AEA
	is
	clearly
	affiliated
	with
both· the
	CTA
	and
	the
	NEA,
	neither
	of
	the
	latter
	two
organizations
	is
	recognized
	or
	certified
	as
	an
	exclusive
representative
	in
	the
	District.
	Neither,
	therefore,
	is
required
	by
	the
	EERA
	to
	keep
	or
	make
	available
	a
	record 	of
	its
financial
	transactions.
By:>', ~~';y/
Gluck,
	Chairman
Moore 	and
	Tovar,
	Members:
We
	join
	in 	the
	result
	reached
	by
	Chairperson
	Gluck 	and
Member
	Jaeger, 	but
	for
	a
	different
	reason.
	we
	find
	that
	Link
does 	not
	have
	standing 	to
	petition
	for
	compliance
	pursuant
	to
section
	3546.5
	and 	would
	therefore 	affirm
	the
	regional
director's
	decision.
6 The
	identification
	of 	organizations
	with
	which 	an
exclusive 	representative
	may 	be
	affiliated 	is
	a 	common
	practice
in
	PERB' s
	proceedings. 	For 	example, 	"AFL-CIO"
	generally
follows 	the
	designation 	of 	exclusive 	or 	recognized
representatives
	who
	are
	affiliated
	with
	that 	organization.
Similarly, 	certified
	and
	recognized 	chapters 	of 	the
	California
Teachers 	Association 	invariably 	indicate 	their 	affiliation
	with
the
	California
	Teachers 	Association
	and 	the 	National 	Education
Association 	in 	the 	same 	manner.
I
(
6

section 	3546.5 	requires 	a 	recognized 	or 	certified 	employee
organization 	to make 	available 	to 	employees 	who 	are members 	of
the 	organization 	a 	financial 	report 	itemizing 	its 	financial
transactions. 	It 	then 	provides 	that 	if 	the 	organization 	does
not 	provide 	the 	information 	to 	its 	members, 	" 	any
employee 	within 	the 	organization may 	petition. 	" 	for
compliance 	[emphas_is 	added.] 	PERB 	rules, 	at 	California
Administrative 	Code 	~ection 	32125, 	essentially 	track 	the
statutory 	language 	on 	petitioning 	for 	compliance.
Taken 	together, 	the 	requirements 	that 	the 	financial 	report
be 	provided 	to 	members 	of 	the 	organization 	and 	that 	employees
within 	the 	organization may_petition 	for 	compliance 	dictate 	a
finding 	that 	under 	section 	3546.5 	and 	PERB 	rules, 	only
employees 	who 	are 	members 	of 	the 	organization 	have 	standing 	to
file 	a 	petition 	for 	compliance.
We 	base 	this 	conclusion 	on 	several 	factors. 	First, 	the
literal 	language 	of 	section 	3546.5 	indicates 	that 	it 	refers 	to
organization members. 	second, 	to 	read 	the 	statute 	to 	provide
that 	nonmembers 	may 	petition 	to 	require 	the 	organization 	to
supply 	the 	report 	to 	its 	members 	seems 	anomalous. 	Third, 	since
7
EERA 	refers 	in 	numerous 	places 	to 	employees 	within 	the 	unit,
as 	opposed 	to 	members, 	if 	the 	Legislature 	by 	section 	3546.5 	had
meant 	to 	authorize 	any 	employee 	in 	the 	unit 	to 	seek 	compliance,
it 	would 	likely 	have 	used 	such 	language.
7 see, 	e.g., 	procedures 	for 	filing 	unfair 	practices,
section 	3541.S(a) 	and 	rights 	of 	employees, 	section 	3543.
7
·

Petitioner
	argues
	that
	to
	allow
	only
	the
	members
	of
organizations
	to 	seek 	compliance
	is
	discriminatory 	since
nonmembers
	may
	be
	paying
	an
	agency
	fee
	to
	the
	organization
	and
therefore
	should
	have
	access
	to
	financial
	data 	of
	the
organization.
	The
	fallacy
	of
	this
	argument
	is
	that
section
	3546.5
	applies
	whether
	or 	not
	nonmembers
	are
contributing
	support 	to
	the
	recognized 	or
	certified
representative.
For
	the 	foregoing 	reasons,
	we
	would
	affirm
	the
	regional
director's
	decision 	that
	Link, 	as
	a 	nonmember
	of 	the 	Antioch
Education
	Association,
	is
	not
	entitled
	to
	petition
	for
compliance
	pursuant 	to
	section
	3546.5
	and
	Board
	rule
	32125(b).
'1:farbara
	D.
	Moore;
	Member
Iren~<:::tf'ovar~ 	Member
ORDER
David
	w.
	Link's
	appeal 	of 	the
	regional
	director's
determination
	is
	therefore
	DENIED.
PER 	CURIAM
8
-	
:,,,-