Antioch Unified School District, et. al (Link); Mt. Diablo Unified School District, et al. (Townley); Fremont Unified School District, et al. (Neely) (PERB I047E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
DAVID W. 	LINK,
Charging 	Party,
v.
ANTIOCH 	UNIFIED 	SCHOOL 	DISTRICT;
ANTIOCH 	EDUCATION ASSOCIATION 	and
NATIONAL 	EDUCATION 	ASSOCIATION,
Respondents.
SF-CE-494
SF-CO-134
ALTA GRACE TOWNLEY, 	ET AL.,
Charging 	Parties,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT;
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Respondents.
SF-CE-605
SF-CO-159
PERB Order No. 	IR-47
March 22, 	1985
HOWARD W. 	NEELY, ET AL.,
Charging 	Parties,
v.
FREMONT UNIFIED 	SCHOOL 	DISTRICT;
FREMONT 	UNIFIED 	DISTRICT 	TEACHERS
ASSOCIATION,
Respondents.
SF-CE-612
SF-CO-163
Appearances; 	Haas 	& Najarian by A. 	Roger 	Jeanson and National
Right to Work Legal Defense Foundation, 	Inc. 	by David T. 	Bryant,

Attorneys 	for 	Charging 	Parties; 	Kirsten 	Zerger, 	Attorney 	for
Respondent 	Associations.*
Before Hesse, 	Chairperson; Jaeger, Morgenstern, 	and Burt,
Members.
DECISION
This case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	on 	a request 	for 	injunctive 	relief 	filed by:
Lewis 	C. 	Disbrow against 	the 	Antioch 	Unified 	School 	District
and 	the Antioch Education Association, 	CTA/NEA; 	Grace Townley
against 	the Mt. 	Diablo Unified 	School 	District 	and 	the
Mt. 	Diablo Education Association, 	CTA/NEA; 	Howard W. 	Neely and
Ann 	Halligan 	against 	the 	Fremont 	Unified 	School 	District 	and
the 	Fremont 	Unified District 	Teachers Association. 	Charging
Parties 	are 	teachers 	who 	have 	exercised 	their 	statutory 	right
(Gov. 	Code sec. 	3543) 	not to join the exclusive representative
Association but, 	by 	force of 	the collective bargaining
-'-The consolidated 	unfair 	practice charges 	were 	filed 	by:
David W. 	Link 	against 	the 	Antioch 	Unified 	School 	District
(SF-CE-494) 	as well as 	the Antioch District Teachers
Association, 	CTA/NEA 	(SF-CO-134) 	on September 	25, 	1980;
Howard W. 	Neely, 	et al., 	against 	the Fremont Unified School
District 	(SF-CE-612) 	and 	the 	Fremont Unified 	District
Teachers Association, 	CTA/NEA 	(SF-CO-163) 	on November 10, 	1981;
and Alta Grace Townley, 	Judith A. 	Mattson and 	Peter Margiotta
against 	the Mt. 	Diablo Unified School District 	(SF-CE-605) 	and
the Mt. 	Diablo Education Association, 	CTA/NEA 	(SF-CO-159) 	on
October 	16, 	1981. 	"CTA" 	refers to the California Teachers
Association 	and 	"NEA" 	refers 	to 	the 	National 	Education
Association. 	CTA and NEA are 	affiliated 	with 	the 	local
Associations 	in 	this case.
*Respondent Districts 	were 	not 	represented.

agreements 	in their 	respective 	school districts, 	are 	required
to pay 	agency 	fees equivalent 	to 	the 	amount of dues. 	Charging
Parties 	have 	objected 	to payment 	of 	the 	fees 	on 	the 	ground 	that
a portion 	of 	the 	amount 	is directed 	by 	the 	organization 	to
activities 	which 	are 	political 	and 	ideological 	and 	unrelated 	to
performance 	of 	the 	representational 	function 	envisioned 	by 	the
Educational Employment Relations Act 	(EERA or Act).2 They
filed 	unfair 	practice 	charges 	against 	the 	Districts 	and
Associations 	alleging 	that 	the 	required 	fee exceeds 	the 	amount
permissible 	under 	the 	United 	States 	Constitution 	and 	the 	EERA,
and 	that 	the Districts 	and Associations, 	by 	interfering with
the 	statutory 	"right not 	to participate," 	have 	thereby
2The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless otherwise 	indicated, 	all 	references are to 	the
Government Code.
3Section 	3543 	states:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities of 	employee 	organizations 	of
their 	own choosing 	for 	the purpose of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also have 	the 	right 	to
refuse 	to 	join or participate 	in the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the public 	school employer, 	except 	that
once 	the 	employees 	in an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified pursuant 	to

violated 	sections 	3543.5(a) 	and 	3543.6(a) 	and 	(b)
respectively.4
Complaints were 	issued 	in 	the 	Fremont cases 	on 	February 	4,
1982, 	the Mt. 	Diablo cases on February 4, 	1982, 	and the Antioch
Section 3544.7, 	no employee 	in that unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any 	employee may 	at 	any 	time 	present
grievances 	to his employer, 	and have 	such
grievances adjusted, 	without 	the
intervention of 	the 	exclusive 	representative,
as 	long 	as 	the 	adjustment 	is 	reached prior
to 	arbitration pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the
adjustment 	is 	not 	inconsistent with the
terms of 	a written agreement 	then 	in effect;
provided 	that 	the 	public 	school 	employer
shall 	not 	agree 	to 	a 	resolution of 	the
grievance 	until 	the 	exclusive 	representative
has 	received 	a copy 	of 	the 	grievance 	and 	the
proposed 	resolution 	and 	has 	been given 	the
opportunity to 	file 	a 	response.
1Sections 	3543.5(a) 	makes 	it unlawful 	for 	the District 	to:
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.
Sections 	3543.6(a) 	and 	(b) 	make 	it unlawful for 	the
employee 	organization 	to:
(a) 	Cause or attempt to cause a public
school employer 	to violate Section 	3543.5.
(b) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate against employees, 	or otherwise

cases on December 	4, 	1980. 	They were consolidated 	for 	hearing
on June 	9, 	1983 	and, 	by order 	of 	the Administrative Law Judge
to whom they are 	assigned, 	have 	been held 	in 	abeyance pending
judicial 	review of 	the Board's decision 	in 	King 	City 	High
School District Association 	(Cumero) 	(3/3/82) 	PERB Decision
No. 	197 	(currently before the Court of Appeal of 	the State of
California 	for 	the First Appellate District 	(Civ. 	No. 	A016723))
On December 	31, 	1984, 	Charging 	Parties requested 	that the
Board 	seek 	injunctive 	relief 	requiring 	the 	Respondent
CTA/NEA affiliates 	or 	the 	employer 	to 	escrow the 	entire 	amount
of 	agency 	fees collected 	from Charging 	Parties 	so 	as 	to
preclude 	improper 	use 	of 	such 	fees 	by 	the 	organization pending
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights guaranteed 	by 	this 	chapter.
Charging 	Parties 	also 	allege 	that 	the 	Association 	violated
section 3544.9. 	It states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the purpose 	of meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in the 	appropriate unit.
5As 	discussed 	infra, 	section 	3541.3(j) 	entitles the
Board, 	"[U]pon 	issuance 	of 	a complaint charging 	that 	any person
has engaged in or 	is engaging 	in an unfair practice, 	. 	. 	. 	[to]
petition 	the court 	for 	appropriate 	temporary 	relief 	or
restraining 	order." 	Injunctive 	relief 	is 	appropriate 	when 	(1)
"reasonable cause" 	exists to believe 	that an unfair 	practice
has been committed, 	and 	(2) 	the relief 	sought 	is 	"just and
proper." 	Public 	Employment 	Relations Board v. 	Modesto City
Schools 	(1982) 	136 Cal.App.3d 881, 	895.

final determination of the rebatable amount.6The Board has reviewed the informatio
General 	Counsel 	in 	its 	investigation of 	the 	request 	for
injunction, 	and 	has 	analyzed 	the 	judicial 	and 	administrative
decisions 	which 	have 	examined 	the constitutional 	sufficiency 	of
various 	rebate procedures. 	We conclude 	that 	some 	of 	the
Charging 	Parties 	were 	not 	accorded 	sufficient protection during
specific periods 	in the past. 	Accordingly, 	there 	is 	reasonable
cause 	to 	believe 	that 	the 	Districts 	and Associations 	unlawfully
interfered 	with 	their 	statutory 	right 	not 	to 	participate 	in
organizational 	activity 	in violation of 	sections 	3543.5(a) 	and
3543.6(a) 	and 	(b), 	respectively. 	On the other hand, 	the
advanced 	reduction 	and 	"escrow" 	mechanisms 	now operating 	on
behalf 	of 	all 	Charging 	Parties 	appear 	to 	offer 	at 	least 	the
minimum protections 	required 	by 	the 	United 	States 	Supreme 	Court
in Ellis v. 	Railway Clerks 	(1984) 	104 S.Ct. 	1883 	[116 LRRM
2001]. 	For 	the reasons that follow, 	we conclude that an
injunction 	requiring 	escrow of 	100 percent 	of 	the 	Charging
Parties1 agency fees 	is not 	"just and proper." 	(PERB v.
Modesto City School District, 	supra.) 	We 	also conclude 	that 	an
injunction 	requiring 	expansion 	of 	protections 	afforded 	Charging
6CTA uses 	the 	term 	"rebatable 	amount" 	to 	describe 	the
proportion 	of 	each 	objecting 	nonmember's 	fees 	which 	are
determined 	at 	year's 	end 	to 	have 	been 	spent on political 	and
ideological 	activities 	unrelated 	to performance 	of 	the
exclusive 	representative's 	EERA functions.

Parties 	by 	the procedures 	as 	currently 	implemented 	is 	not
required 	to 	avoid 	frustration of 	the purposes of 	the Act, 	and
therefore 	is not 	"just and proper" 	(ibid.).
FACTS
The 	General 	Counsel's 	investigation of 	the 	Request 	revealed
the 	following.
CTA has 	a 	formal mechanism for 	reducing 	in 	advance 	the
agency fee 	required from objectors; 	setting aside, 	in an agency
fee 	account, 	an amount which 	represents 	the 	estimated 	rebate;
and 	determining 	and 	refunding 	the 	rebatable portion 	of 	the
fee. 	While 	this mechanism was not 	invoked 	for 	some 	of 	the
Charging 	Parties 	in some of 	the Districts here 	involved, 	its
existence 	is 	relevant 	for 	the 	purpose 	of 	determining 	the
appropriateness 	of prospective 	injunctive 	relief. 	We 	turn
first 	to a discussion of 	the general 	contours 	of 	CTA's
procedure. 	Thereafter, 	we discuss 	the 	status of agency fee
payments 	in each of 	the Districts.
CTA's 	statewide 	agency 	fee procedure 	is 	triggered 	by
objection 	from a 	nonmember 	agency 	fee payor. 	CTA presumes 	that
unit members 	who 	objected 	in prior 	years 	have 	a continuing
information 	set 	forth 	below was 	obtained 	in 	the
course 	of 	the 	General 	Counsel's 	investigation of 	the 	injunctive
relief 	request. 	Final 	factual determinations, 	of course,
cannot 	be made 	until the conclusion of 	formal 	hearings of 	the
underlying 	unfair 	practice 	complaints.

objection 	to 	expenditure 	of 	their 	agency 	fee 	monies 	for
purposes 	deemed 	rebatable 	under 	Abood 	v. 	Detroit Board 	of
Education 	(1977) 	431 U.S. 	209 	[95 LRRM 2411] 	and King City,
supra. 	First, 	the annual fee 	is reduced by the percentage of
the 	fee 	found 	by CTA to 	be 	reimbursable 	in 	the previous
year.
8 	9
This process 	is 	termed 	"advance 	reduction."
Second, 	CTA has maintained 	since December 	1981, 	an agency fee
account 	containing 	a 	"cushion" 	amount 	equalling 	or
exceeding 	the 	amount estimated 	as 	the previous year's 	rebate.
Third, 	the 	local Association, 	CTA and NEA determine 	the
respective 	agency 	fee 	rebate 	upon conclusion of 	the 	fiscal
8During 	previous years, 	the Association found 	the
following 	percentages 	of 	the 	agency 	fee 	to 	be 	reimbursable:
7.42 percent 	in 1979/80, 	5.8 percent 	in 1980/81, 	6.4 percent 	in
1981/82, 	and 	6.31 percent 	in 1982/83. 	Prior 	to hearing 	in this
matter, 	PERB makes no 	finding 	as 	to 	the correctness of 	these
figures.
process for making advance 	reductions 	relies, 	in
part, 	upon the payroll department 	in the district 	involved.
Through payroll codes, 	the district's payroll 	operation
identifies those employees who, 	as objecting nonmembers, 	should
have 	their 	fees 	reduced 	in 	accordance 	with 	the 	Association's
advance 	reduction computation. 	For 	the 	first year 	in which a
nonmember 	has 	objected 	to payment 	of 	the 	full 	amount 	of 	the
fee, 	an 	advance 	reduction 	is given only 	if 	the objection has
been made 	before 	the 	time 	that 	the 	District's 	payroll 	operation
has 	entered 	agency 	fee codes.
10CTA 	refers 	to 	its 	agency 	fee 	account 	as 	an 	"escrow
account." 	However, 	we use the designation 	"agency fee account"
because we 	reserve 	judgment whether 	it 	is a true 	"escrow,"
given that 	its management continues 	to 	be 	in CTA's control.

year, 	and 	pay 	to 	the 	objecting 	nonmember 	the 	rebate 	amount 	plus
interest at 	the 	rate of 	seven percent.11
Thus, 	objecting 	nonmembers 	who 	registered 	their 	objections
early 	in 	the 	year 	are 	to 	receive 	advance 	reductions, 	and 	all
objecting 	nonmembers 	are 	to 	have 	money 	placed 	in 	the 	agency 	fee
account 	on 	their 	behalf 	to 	ensure 	that 	the 	Association 	will 	not
spend 	the 	portion 	of 	the 	service 	fee 	which 	is 	ultimately
determined 	to 	be 	reimbursable. 	If 	the 	advanced 	reduction 	falls
short 	of 	the 	required 	refund, 	this 	difference 	is 	ultimately
rebated, 	with 	interest, 	to objecting 	nonmembers. 	The 	amount
currently 	in 	the 	agency 	fee 	account 	(and 	beyond 	CTA's 	use)
covers 	835 	known objectors, 	and 	is 	in excess of 	$25,000.12
amount 	of 	rebate 	may 	be 	challenged 	by 	the 	nonmember
within 	fifteen 	days 	after 	receiving 	information 	from 	the
Association 	of 	the 	refund 	it 	has 	determined 	to 	be 	owing. 	The
objection 	by 	the 	nonmember 	is 	viewed 	as 	a 	request 	that 	an
arbitrator 	from 	the 	American 	Arbitration 	Association 	determine
the 	amount 	of 	rebate. 	Whatever 	rebate 	amount 	is 	determined
will 	be 	paid 	with 	interest 	from 	September 	30 	of 	the 	appropriate
school 	year 	to 	the 	date 	of 	payment.
12According 	to 	the 	Association, 	it 	established 	an 	escrow
account 	containing 	$5,000 	beginning 	December 	1981. 	The 	$5,000
figure 	represented
(a) 	the 	number 	of 	known 	objectors 	statewide
(348),
multiplied 	by
(b) 	an 	estimated 	rebate 	figure 	of 	$14.26.
The 	$14.26 	figure 	was 	based 	on 	the 	amount 	of 	rebate 	calculated
by 	CTA 	for 	the 	previous 	year.
During 	1982/83, 	rebates 	were 	paid 	from 	the 	CTA general 	fund,
the 	$5,000 	was 	not 	withdrawn, 	and 	no 	further 	sums 	were

For 	those 	objectors 	who 	receive 	advance 	reductions 	exceeding
the 	rebatable 	amount, 	no 	rebate 	is paid 	from the 	agency fee
account 	or 	the general 	fund.
For 	at 	least 	some period 	of 	time 	within 	the 	statutory
period covered 	by 	these charges, 	the Antioch and Mt. 	Diablo
Charging 	Parties 	and 	five 	of 	the 	nine 	Fremont 	Charging 	Parties
were 	not 	considered 	objectors 	by 	CTA and 	therefore 	the 	CTA
advance 	reduction/agency 	fee 	account/rebate 	procedure 	was 	not
triggered 	on 	their 	behalf.
However, 	the Antioch Charging 	Parties were plaintiffs 	in a
lawsuit which was 	filed 	against 	CTA 	in 	1978 	and 	ultimately
dismissed on January 24, 	1984. 	During 	that period, 	the
Association 	claims 	that 	an 	escrow 	account 	was 	established 	by
the parties 	to 	the court 	suit.14 For 	the duration of 	the
suit, 	25 percent of 	the 	service 	fee was deposited 	annually 	in
deposited. 	However, 	during the 	1983/84 year, 	additional sums
were 	deposited. 	No 	withdrawals 	have 	been made 	throughout 	the
fund's 	history.
13Section 3541.5(a) 	states:
(a) 	Any employee, employee organization, or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice charge, 	except 	that 	the
board 	shall not do either 	of 	the 	following:
(1) 	issue a complaint 	in respect of any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months prior 	to 	the
filing 	of 	the 	charge; 	. . .
account 	was 	jointly managed 	by 	the 	attorneys
representing 	the 	litigants 	in 	the 	suit.
10

the 	account 	on behalf 	of 	each charging 	party. 	Consequently,
from March 	1980 	(six months 	before 	the charge was 	filed) 	until
January 	24, 	1984, 	CTA was deprived of 	a sum that 	exceeded 	the
percentage 	of 	service 	fee 	determined 	each year 	to 	be
reimbursable.
The Mt. 	Diablo 	Charging 	Parties 	filed 	their 	unfair 	practice
charge 	in October 	1981. 	Notably, 	each of the Mt. 	Diablo
Charging 	Parties declined, 	during 	at 	least one year, 	to pay 	the
full amount of 	service 	fee. 	The 	amount 	in 	arrears could
ultimately 	be 	held 	to 	have 	exceeded 	the 	total 	reimbursable
amount.
In Fremont, 	nine of 	the 	fourteen Charging 	Parties were
known as objectors 	to CTA. 	They were 	among 	the 	statewide group
of 	objectors 	for 	whom the 	agency 	fee 	account 	was 	initiated 	in
December 	1981. 	Rebates 	were paid 	to 	these objectors 	annually
out of 	the CTA general 	fund. 	Beginning 	in 	1982/83, 	the 	advance
deduction 	procedure 	was 	created 	and 	applied 	to 	them.
15According 	to 	records provided 	to 	the 	General 	Counsel 	by
the Mt. 	Diablo District and CTA 	(1980-83), 	none of 	the three
Mt. 	Diablo 	teachers who 	are parties 	to 	the pending 	unfair
practice complaints 	has paid 	the 	full 	amount 	of 	fees 	owing.
Neither 	Margiotta 	nor 	Townley 	began 	to 	pay 	fees 	until April
1983. 	The 	Charging 	Parties have provided 	no 	information 	to 	the
contrary. 	Charging 	parties 	were 	not paid 	a 	rebate 	for 	years
during 	which 	they 	failed 	to meet 	their 	service 	fee 	obligations.
1 6 The Mt. 	Diablo Charging 	Parties' 	election of 	a
"self-help 	injunction" 	is 	relevant 	to 	the 	assessment of
competing 	equities 	which 	underlies 	a determination 	whether
injunctive 	relief 	is just and proper. 	See 	Dean v. 	Transworld
Airlines, 	Inc. 	(9th Cir. 	CA 1983) 	708 	F.3d 	486 	[113 	LRRM 3207].
11

However, 	the 	remaining 	five 	Fremont Charging 	Parties
received 	no 	advance 	reduction or 	rebate 	between 	1980 	and 	1983.
Similarly, 	they were 	not 	specifically made part 	of 	the group of
objectors 	on whose 	behalf 	the 	agency 	fee 	account was 	created.
Nevertheless, 	the Association 	argues 	that 	the 	agency 	fee
account 	it 	created 	in 	1980/81 	— 	which 	now contains 	more 	than
$25,000 	— 	is 	sufficient 	to 	cover 	all 	Charging 	Parties. 	The
Association explains 	that because of 	this 	fund, 	the
organization deprived 	itself 	annually 	of 	the 	use 	of 	a 	sum
exceeding 	that 	owed 	as 	rebates 	to 	all 	objecting 	nonmembers.
All 	Charging 	Parties' 	names 	now 	are 	recorded 	in 	the 	CTA
system 	and 	they 	are 	regarded 	as continuing 	objectors.
Beginning this year, 	CTA states, 	service 	fees are 	to be 	reduced
on 	their 	behalf 	in 	advance 	by 	an 	amount 	equivalent 	to 	the
estimate of 	the previous year's 	rebate, 	and 	sums 	identical 	to
that 	amount will 	be deposited 	in 	the 	agency fee 	account 	on
behalf of each 	individual. 	Thus, 	the amounts 	that are 	to be
set 	aside 	are 	approximately double 	the 	amount 	deemed 	by 	CTA 	to
be 	reimbursable.
Rebate 	checks 	were paid 	to 	Charging 	Parties 	by 	CTA 	in
January 	1985, 	reimbursing 	them for 	all preceding years,
including 	compound 	interest.
Position 	of 	Charging 	Parties
Charging 	Parties 	allege 	that 	the 	Association 	admittedly
directs 	funds 	collected 	from unit members 	to political 	and
12

ideological 	activities 	unrelated 	to 	collective 	bargaining.
They 	complain 	that 	the 	method 	by which 	the 	exclusive
representative determines 	the 	ultimate 	rebate 	figure, 	and
therefore 	arrives 	at 	the 	estimates 	on which 	the 	advanced
reduction and 	"escrow" 	amounts are 	based, 	lacks 	the elements of
fairness present 	in an adversary 	judicial proceeding. 	Thus 	the
results 	are 	inherently 	suspect 	and 	fall 	short 	of 	the 	amount
which 	should 	be 	rebated.
Charging 	Parties 	also object 	that payment 	of 	the 	rebate 	is
not made 	for 	over 	a year 	and 	they 	are deprived of 	the
opportunity 	to 	use money 	owed 	to 	them 	for 	the 	entire period.
In 	their 	view, 	the 	exclusive 	representative's purported 	use of
the 	rebatable 	portion 	of 	objecting 	nonmembers' 	service 	fees
forces 	them to 	extend an 	involuntary 	loan. 	In 	the 	absence of 	a
reliable method 	for 	determining 	the 	correct 	rebate prior 	to 	the
payment 	of 	service 	fees 	to 	the organization, 	Charging 	Parties
ask 	that 	the 	organization 	be 	denied 	use 	of 	any portion 	of 	the
fees collected 	until there 	is 	a final 	judicial determination.
Charging 	Parties 	also challenge 	the 	adequacy 	of 	the 	agency
fee 	account. 	They point out 	that CTA has not bound 	itself 	in
any way 	to continue 	such a procedure 	and 	that, 	unlike 	a 	true
escrow arrangement, 	management 	remains 	in 	the 	exclusive control
of 	the 	employee 	organization.
DISCUSSION
PERB's 	authority 	to 	seek 	injunctive 	relief 	is governed 	by
13

section 3541.3(j). 	That section empowers 	the Board:
To 	bring 	an action 	in a court of competent
jurisdiction 	to 	enforce 	any 	of 	its orders,
decisions or 	rulings or 	to enforce the
refusal 	to 	obey a 	subpoena. 	Upon 	issuance
of 	a complaint 	charging 	that 	any person has
engaged 	in or 	is 	engaging 	in an unfair
practice, 	the 	board may petition the court
for 	appropriate 	temporary 	relief 	or
restraining 	order.
An 	injunction 	is proper 	in circumstances 	mandating
extraordinary 	relief. 	Thus, 	the charge must not only state 	a
prima facie violation of 	the Act, 	but also 	(1) 	there must be
"reasonable 	cause" 	to 	believe 	that 	an unfair practice 	has 	been
committed, 	and 	(2) 	the 	relief 	sought must be 	"just and
proper." 	Public 	Employment 	Relations Board v. 	Modesto 	City
Schools, 	supra, 136 Cal.App.3d 881, 	895.
Reasonable 	Cause
Compulsory contributions 	in 	the 	form of 	agency 	fees 	to 	some
extent 	implicate 	the 	rights 	of 	association 	and 	free 	expression
protected 	by 	the 	First Amendment 	of 	the 	United 	States
Constitution. 	(Machinists v. 	Street 	(1960) 	367 U.S. 	740, 	773
[48 LRRM 345]; 	Abood v. 	Detroit Bd. 	of Education 	(1977) 	431
U.S. 	209, 	222 	[95 LRRM 2411].) 	However, 	the United States
Supreme 	Court 	has 	balanced 	the 	First Amendment 	rights 	of
employees 	compelled 	to 	support 	financially 	the 	collective
bargaining 	representative 	against 	the 	rights 	of 	the 	majority
employees 	to 	associate 	for 	the purposes 	of 	advancing 	their
interests and disseminating 	their 	ideas 	(Street, 	367 U.S.
14

at 773; Abood, 431 U.S. at 238, 	240-242). 	The dissenters'
interests 	are 	also 	balanced 	against 	the 	legislative 	interest 	in
establishing 	collective 	bargaining 	as 	a means 	of 	promoting
stable employment relationships. 	(Street, 	367 U.S. 	at 776,
778; Abood, 	431 U.S. 	at 222; 	and Robinson v. 	State of New
Jersey 	(3d Cir. 	1984) 	741 F.2d 598 	[117 LRRM 2001, 	2005] 	cert.
den. 	(1985) 	U.S. 	, 	53 U.S.L.W. 	3599.) 	The Court
concluded 	that 	the 	burden 	imposed 	by 	agency 	fee 	obligations 	is
a 	"tolerable 	infringement" on the objectors' 	constitutional
rights, 	but 	that 	the proportion of 	the 	agency fee 	that 	the
exclusive 	representative 	has 	spent 	on political 	and 	ideological
activities 	unrelated 	to 	collective 	bargaining 	must 	be
reimbursed 	to objecting nonmembers. 	(Abood, 	431 U.S. 	at 	222.)
PERB, 	in King City, 	supra, 	likewise held that the
interference 	with 	the 	statutory 	right 	not 	to 	participate
generated 	by 	the 	agency 	fee 	obligation:
is 	justified 	by 	the 	California 	Legislature's
assessment 	of 	the 	important contribution of
organizational 	security 	arrangements 	to 	the
system 	of 	employer-employee 	relations
established 	in 	the 	EERA 	(King 	City, 	supra,
at p. 10) .
However, 	the Board 	required 	the 	employee 	organization 	to 	refund
to 	the charging 	party 	that portion of 	the 	agency 	fee 	which was
spent 	for purposes not germane 	to collective bargaining, 	and
indicated 	that 	the 	"future 	agency 	fee 	requirement 	should 	be
reduced accordingly." 	(King City, 	supra, 	at p. 	32.)
15

In Ellis, 	supra, 	the Supreme Court elaborated 	further on
the protection 	to 	be 	afforded objecting 	nonmembers. 	The 	Ellis
Court 	held 	that 	a 	"pure 	rebate 	scheme" 	is unsatisfactory
because 	it 	fails 	to 	assure 	sufficient protection 	against
involuntary 	subsidization 	of 	union 	political 	and 	ideological
expenditures. 	Instead, 	a 	"demand and 	return" 	system must be
fashioned 	which 	accommodates 	objecting 	nonmembers 1 interests
without 	burdening 	legitimate 	union 	functioning. 	The 	Ellis
Court 	approved, 	as 	affording 	sufficient 	constitutional
protection 	against 	improper 	expenditure, 	a 	system consisting 	of
an 	advance 	reduction of 	dues 	and/or 	the 	placing 	of 	contested
funds 	in an 	interest-bearing 	escrow account 	(80 	L.Ed, 	at
438-439) . 	Either system, 	in the view of the Court, 	would avoid
the prospect 	of 	objecting 	nonmembers 	being 	required 	to 	finance,
through 	"involuntary 	loans," 	activities 	unrelated 	to 	the
union's 	representational 	functions.
Here 	the 	Association's current 	procedures 	appear 	to 	satisfy
the 	requirements of 	Ellis. 	The Antioch Charging 	Parties,
although 	not 	formally 	considered 	a 	part 	of 	the 	statewide 	group
of objectors until January 15, 	1985, 	were covered by a
25-percent 	escrow account 	set 	up by 	the 	Association 	in
connection with 	litigation 	in which 	the 	parties 	were 	involved.
Between January 24, 	1984 and January 15, 	1985, 	Charging 	Parties
were covered 	by CTA's 	agency 	fee 	account. 	The Association
offers 	a 	reasonably 	convincing 	argument 	that 	the 	accumulated
16

sum contained 	in 	the organization's 	agency 	fee 	account,
presently 	in excess of 	$25,000, 	represents monies of which 	it
has deprived 	itself, 	and 	therefore 	the 	Charging 	Parties 	have
been protected 	against 	being 	forced 	to make 	an 	"involuntary
loan."
There 	are 	some periods 	in 	the 	past 	during 	which 	the
protections 	afforded by CTA's procedure did not 	apply. 	Neither
the Mt. 	Diablo 	objectors 	nor 	the 	five of 	the 	fourteen Charging
Parties 	from 	Fremont were 	included 	in 	the 	Association's 	rebate
procedure. 	Their 	sole 	protection 	against 	being 	forced 	to make
an 	involuntary 	loan 	arose 	from 	the 	existence 	of 	the 	deposit
accumulating 	in 	the organization's 	agency 	fee 	account. 	That
account, 	however, 	did not protect these prior 	to
December 	1981. 	Thus, 	a cognizable 	injury apparently occurred
in 	the past. 	These Charging 	Parties were 	forced 	to 	extend an
involuntary 	loan to 	the Association. 	Thus, 	there 	is 	reasonable
cause 	to 	believe 	that 	Charging 	Parties will prevail 	in 	their
unfair 	practice 	complaints 	on 	the 	ground 	that 	the 	Association
interfered with 	their 	right 	not 	to 	support political 	and
ideological 	activities 	unrelated 	to 	the 	organization's
performance 	of 	its 	representational 	function.
17There 	is, 	of course, 	a possibility 	that 	the 	amount 	in
escrow, 	in addition to the amount of advance reduction, 	is less
than 	the 	amount 	that 	PERB will 	ultimately 	find 	rebatable 	under
the King 	City formula. 	In that event, 	the Charging 	Parties
will have extended 	involuntary loans. 	However, 	at 	this
17

Apart 	from questions 	about 	the proper 	amount 	to 	be placed
beyond 	CTA's 	use, 	Charging 	Parties 	— 	relying 	on 	a 	recent
decision of 	the 	Seventh Circuit 	Court 	of 	Appeals 	in Hudson
et al. 	v. 	Chicago Teachers Union Local 1 et al. 	(7th Cir. 	1984)
743 F.2d 	1187 	[116 LRRM 	2314] 	-- 	raise 	questions 	about 	other
components of 	the CTA procedure. 	The 	Hudson court determined
that 	the 	rebate 	procedure 	was 	inadequate 	protection of 	the
objecting nonmembers' constitutional 	rights. 	It concluded 	that
only 	a 	quasi-judicial 	hearing 	would 	yield 	a 	sufficiently
precise 	rebate, 	and 	held 	that due process 	required 	that
objecting 	nonmembers 	could 	not 	be 	deprived 	of 	any monies 	prior
to such a hearing. 	The court required, 	inter 	alia, 	100 percent
of 	the 	service 	fee 	to 	be 	escrowed.18
juncture, 	"reasonable cause" 	does not 	exist 	to believe 	that 	an
unfair 	practice 	has 	been committed on 	this ground. 	The 	CTA
procedures 	appear 	to be 	a good 	faith 	effort 	to meet 	the
constitutional 	and 	statutory 	standard, 	and 	the 	escrow and
advance 	reduction 	combination 	provide 	ample 	insulation 	against
the 	prospect of 	an 	involuntary 	loan.
is one 	additional 	jurisdiction which 	required
100 percent of 	the 	agency fee be 	set 	aside 	in an escrow
account. 	The New York 	Public Employment Relations Board, 	in
United 	University 	Professions, 	Inc. 	and Thomas C. 	Barry 	(case
nos. 	U-7449 and U-7482) 	(NY PERB Rptr. 	par. 	17-3098 	(9/84))
ordered, 	post-Ellis, 	that 	the charged party revise 	its 	agency
shop 	refund 	procedure 	and 	that 	100 percent of 	the 	fee 	be
escrowed. 	The 	New York 	board 	resolved 	that 	the 	New York 	State
public 	employee 	bargaining 	law affecting 	teachers 	(Taylor 	Law
sec. 	208.3) 	in combination with Ellis preclude use of an
advanced 	fee 	reduction 	scheme. 	The 	advanced 	reduction 	scheme
did 	not 	fit 	the 	New York 	law's definition of 	refund procedure.
Therefore, 	of 	the two Ellis alternatives, 	only an escrow
account can 	be 	utilized 	in New York. 	The New York 	board
18

First, 	Charging 	Parties 	argue 	that due process 	principles
preclude 	the 	Association 	from collecting 	any of 	the 	fees 	of
objecting 	nonmembers prior 	to 	a 	judicial 	determination of 	the
rebatable amount. 	However, 	the Supreme Court has declined 	to
require 	a hearing 	before collection of 	objector's 	fees; 	indeed,
the 	Court 	has 	consistently 	suggested 	that 	internal 	union 	rebate
procedures would 	be 	adequate. 	(Railway 	Clerks 	v. 	Allen 	(1963)
373 U.S. 	113, 	122 	[53 LRRM 2128]; Abood, 	431 U.S. 	at 240.)
Plainly, 	the opinion of 	the Hudson court cannot override 	Ellis
and 	other 	decisions 	holding 	that due process does 	not 	require 	a
quasi-judicial 	hearing 	as 	a precondition 	to depriving 	persons,
even temporarily, 	of 	their money. 	(Robinson, 	117 LRRM at 	2011
(cases cited 	and discussed).) 	Accordingly, 	we 	do not believe
that 	the 	absence 	of 	a precollection 	hearing 	establishes
"reasonable cause" 	to believe 	an unfair 	practice 	has occurred.
Second, 	the Charging 	Parties argue that, 	under Hudson,
agency 	fee 	accounts must 	be controlled, 	and 	possibly managed,
by 	a bank 	or 	trust company.19 Removing 	control of 	the
offered 	no 	justification of 	its 	requirement 	that 	the 	entire 	fee
be 	escrowed.
19Hudson, 	suggests 	but does not hold, 	that management 	as
well as custody 	is 	to be 	in 	the hands of 	a 	third party.
(117 LRRM at 	2321.) 	Further, 	Ellis does not define 	its use of
the 	term 	"escrow account" 	and 	therefore 	it cannot 	be 	said 	that
third party management 	of 	an agency 	fee 	account 	is
constitutionally required. 	(80 L.Ed. 	2d 	at 	439.)
19

account 	from 	the 	exclusive 	representative 	is 	arguably
necessary, 	in the view of the Hudson court, 	to ensure against
use of 	account 	funds. 	Additionally, 	placing management
responsibilities 	in 	the 	hands 	of 	a 	third party was 	seen 	as
necessary 	to 	optimize 	the 	incentive 	for 	sound 	investment 	of 	the
funds.
In 	the present case, 	CTA's agency 	fee 	account 	is with a
bank; 	CTA, 	however, 	is responsible for 	its management, 	and may
apparently withdraw the 	funds 	at any 	time. 	We 	believe 	that
these 	characteristics 	of 	the 	CTA account 	could 	be 	viewed 	as
insufficient 	to protect 	objecting 	nonmembers' 	interests.20
While we do not decide, 	at this point 	in the proceeding, 	that
these 	elements 	of 	the 	CTA account 	unquestionably present 	an
unfair 	practice, 	CTA's control 	and/or management 	of 	the 	account
do present 	"reasonable cause" 	to believe 	that an unfair
practice 	has 	been committed.21
20For related reasons, it could be argued that the
seven-percent 	interest 	rate 	involved 	in CTA's 	system 	is
insufficient 	to protect objecting 	nonmembers 1 interests. 	(See
State 	of 	California 	(Department of 	Transportation) 	(12/12/84)
PERB Decision No. 	459-S, 	where the Board awarded ten-percent
interest 	as 	a part 	of 	the 	remedy 	for 	unfair 	practice 	conduct.)
This conduct, 	in combination with the other possible
deficiencies 	posed 	by CTA's management 	and 	control 	of 	its
account may, 	after 	hearing, 	result 	in a finding 	that the EERA
has 	been violated.
2 1 It 	also could be argued, 	under Hudson, 	that 	the
procedure 	utilized 	to 	adjudicate 	the 	Abood 	amount must
culminate 	in 	review by either 	a neutral 	administrative 	agency
or 	an 	arbitrator 	who 	is not 	subject to 	the control or 	influence
of 	the 	exclusive 	representative. 	CTA's 	internal procedure,
20

Just 	and 	Proper
In Modesto City Schools, 	supra, 	at p. 	902, 	the Court of
Appeals, 	citing Agricultural Labor 	Relations Board v. 	Ruline
Nursery Co. 	(1981) 	115 Cal.App.3d 1005, 	1015 	[171 Cal.Rptr.
793) 	stated 	that an 	injunction is 	"just and proper,"
where 	there exists 	a probability 	that 	the
purposes of 	the Act will be 	frustrated
unless 	temporary 	relief 	is 	granted 	. . .
[or] 	the circumstances of a case create a
reasonable 	apprehension 	that 	the 	efficacy 	of
the Board's final order may be nullified, 	or
the 	administrative 	procedures 	will 	be
rendered meaningless. 	. 	. 	. 	Preservation
and 	restoration of 	the 	status 	quo 	are 	then
appropriate considerations 	in granting
temporary 	relief pending 	determination 	of
the 	issues by 	the Board.
Traditional 	equitable 	considerations 	apply during 	this 	part 	of
the test. 	(See Modesto City Schools, 	supra, 	at p. 	896, 	citing
Agricultural 	Labor 	Relations Board v. 	California Coastal 	Farms,
Inc. 	(1982) 	31 Cal.3d 469, 	479 	[183 Cal.Rptr. 	231].) 	If the
relying 	on 	the 	American Arbitration Association 	to 	select 	an
arbitrator, 	could be viewed as adequate 	even under 	Hudson.
More fundamentally, 	however, 	the appropriateness of CTA's
arbitration 	(and 	arbitrator 	selection) 	procedures 	is not
relevant 	herein. 	In King 	City 	the Board 	held 	that 	objecting
nonmembers 	need not 	exhaust 	internal 	rebate procedures 	as 	a
precondition 	to 	filing 	a charge alleging 	that, 	despite 	the
nonmember's objection, 	the exclusive 	representative 	has 	spent
the objector's monies 	for 	impermissible purposes. 	The Board's
decision 	not 	to 	require 	exhaustion permits 	the 	charging 	parties
not to pursue 	rebate through CTA's procedures, 	and 	none of 	the
charging parties did so. 	Accordingly, 	any flaws 	in the
arbitration component 	of 	the CTA procedure 	are 	not 	in 	issue
herein, 	and would 	not contribute 	toward a 	"reasonable cause"
determination.
21

damage 	is 	easily ascertain able and 	a money 	judgment 	will 	afford
adequate relief, 	an 	injunction should be denied. 	(See Witkin,
2 Cal. 	Procedure, 	Provisional Remedies, 	p. 	1508 and cases cited
therein.) 	However, 	injury to constitutional 	interests
ultimately cannot 	be 	fully 	addressed 	by money damages. 	Hence,
injunctive 	relief may be appropriate. 	(Op. 	Ait. 	at 	1506.)
Ellis has 	held 	that year-end 	payment 	of 	a 	rebate 	to 	objecting
nonmembers 	does 	not protect 	adequately 	the 	First 	Amendment
rights of objectors. 	Logically then, 	such a 	"pure 	rebate"
scheme may 	be 	enjoined.
An 	injunction 	requiring 	escrowing 	of 	100 	percent 	of
objecting 	nonmembers1 service 	fees does 	not 	strike 	a proper
balance 	between 	the competing 	interests 	involved. 	The 	Supreme
Court 	has 	consistently 	held 	that 	injunctions 	against collection
of 	all 	funds 	are 	inappropriate 	and 	exceed 	the minimum
safeguards 	necessary to protect dissenters' 	constitutional
rights. 	Street, 367 U.S. at 771, 722; Allen, supra, 373 U.S.
at 119-120 	[53 LRRM 2128]; Abood, 	431 U.S. 	at 240-242. 	In
Street, 	supra, 	the Court stated:
Restraining 	the collection of 	all 	funds 	from
the appellees 	sweeps 	too broadly, 	since
their 	objection 	is only to 	the use 	to which
some of 	their money 	is put. 	Moreover,
restraining collection of the funds 	. 	. 	.
might well 	interfere 	with 	the 	appellant
union's performance 	of 	those 	functions 	and
duties which 	. 	. 	. 	[legislation] 	places upon
them to 	attain 	its goal 	of 	stability 	in
industry. 	367 U.S. 	740 at 771.
22

The 	100-percent escrow is disfavored 	because, 	like 	the
injunction, 	it skews the balance unfairly in favor of 	the
objector 	and 	undercuts 	the 	ability 	of 	the 	exclusive
representative to 	function. 	(Poeppel et al. 	v. 	Board of
Education, 	Clinton Community School 	(1984) 	Wise. 	E.R.C.
Decision No. 	20081-C 	(citing 	Browne 	v. 	Milwaukee Board of
School Directors 	(1973) 	33 Wis.2d 	316). 	For 	these reasons,
courts 	have 	refused objectors' 	requested 	remedies 	that would
have 	prevented 	the 	exclusive 	representative 	from 	using 	all
portions of 	the 	service 	fee. 	Kempner 	v. 	Dearborn Local 	2077
(1983) 	337 N.W. 	2d 354 	[114 LRRM 3024], 	appeal dismissed for
want 	of 	a 	substantial 	federal question 	(1984) 	U.S. 	,
53 U.S.I.W 3323; 	White Cloud Educational Association v. 	Board
of 	Education of 	the White 	Cloud 	Public 	Schools 	(1980)
101 Mich.App. 	309 	[300 N.W. 	2d 551], 	appeal dismissed sub nom
Gibson v. 	White 	Cloud 	Education Association 	(1984) 	U.S. 	,
53 U.S.L.W. 	3268; 	Tierny v. 	City of Toledo 	(N.D. 	Ohio,
1984) 	F.Supp. 	[116 LRRM 3475].
Charging 	Parties 	have 	urged 	that 	the 	7th Circuit 	Court 	of
Appeals' 	decision in Hudson et al. 	v. 	Chicago Teachers Union
Local 1 et al., 	supra, 	is a further 	refinement of the Supreme
Court's 	analysis 	in Ellis 	and 	is 	therefore controlling 	in 	this
case. 	However, 	the analysis and 	result 	reached by the Seventh
Circuit Court of Appeals 	fails 	to 	follow 	that 	of 	the 	United
States Supreme Court 	in Ellis. 	For 	several reasons, 	we believe
23

Hudson 	does 	not compel 	a conclusion 	that 	an 	injunction
requiring 	escrow of 	100 percent of 	the 	fees 	is 	appropriate.
First, 	in concluding 	that the objector must 	be protected
against 	the 	"danger" 	that the 	amount of 	the 	advance 	reduction
or 	escrow will 	fall 	short of 	the correct 	rebate, 	the Hudson
court defined 	the 	objector's 	First 	Amendment 	rights more
broadly than did 	the Supreme Court 	in Ellis. 	Ellis found 	the
two 	alternatives 	to 	be 	sufficient protections 	of 	the 	objector's
First Amendment 	interests 22 even 	though, 	prior 	to
determination of 	the ultimate 	rebate, 	they 	are merely 	estimates
and 	therefore do 	not eliminate 	all possibilities of 	forced
loans. 	(See Robinson, 	supra, 	117 LRRM at p. 	2011, 	fn. 	12.)
The 	Supreme 	Court 	has 	not 	required 	"absolute precision 	in 	the
calculations" 	of the reimbursable amount 	(Allen, 	373 U.S. 	at
p. 	122; Abood, 431 U.S. at p. 	239, fn. 40; Ellis, 80 L.Ed.2d at
pp. 	447-448, 	fn. 	15). 	There is no reason to require precision
at an earlier 	stage.
22It is 	not 	significant 	that 	Ellis 	considered 	the 	First
Amendment 	interests 	of private-sector 	employees 	whereas 	the
Board must 	resolve 	a dispute 	among public 	sector 	employees. 	As
the 	Supreme 	Court 	held 	in Abood;
The 	differences 	between public 	and private
sector 	collective 	bargaining 	simply do 	not
translate 	into differences 	in First
Amendment rights. 	(431 U.S. 	at 232.)
24

Second, 	unlike 	the 	Supreme Court, 	the Hudson court 	failed
to 	balance 	the objector's 	First Amendment 	(albeit 	expanded)
interests 	against 	competing 	interests. 	The 	Hudson court did
not 	consider 	the 	legislative 	interest 	in 	stable 	labor 	relations
(Ellis, 	80 L.Ed.2d at pp. 	446-447) 	and the competing First
Amendment 	interests 	of 	the majority which 	selected 	the
exclusive representative 	(Street, 	367 U.S. 	at p. 	773; Abood,
431 U.S. at p. 238).
We 	follow the 	Supreme 	Court's 	analysis 	and 	reach 	the 	same
conclusions. 	The 	legislative purposes 	underlying 	the 	EERA are
furthered 	by promoting 	stable 	labor 	relations. 	Enforcing 	the
fair 	share 	requirement 	enhances 	the viability of collective
bargaining 	(King City, 	supra). 	Were the entire agency fee to
remain 	unavailable 	to 	the 	exclusive 	representative 	in a
100-percent escrow account, 	the members' 	dues would be diverted
to 	support 	collective 	bargaining 	work 	on 	behalf 	of 	agency 	fee
payors. 	Here, 	were the entire amount to be placed 	in escrow
pending 	final determination of 	the 	rebate, 	the Association
would 	have 	no 	access 	to 	that 	sizeable 	portion of 	the 	service
fee 	spent 	on permissible purposes, 	generally 	in 	the 	75-percent
to 	95-percent 	range, 	for months or 	even years 	(given 	the
ordinary timelines 	involved in judicial review). 	This would
burden 	unfairly 	the 	First Amendment 	rights 	of 	union members.
The Ellis alternatives, 	in contrast, 	protect against
25

involuntary 	loans 	while 	placing 	"only 	the 	slightest 	additional
burden, 	if any, 	on the union." 	(Ellis, 	80 L.Ed.2d at p. 	439.)
The 	Hudson court 	failed 	to give 	weight 	to 	other 	significant
principles of 	law as well. 	Interim injunctive 	relief 	is
designed 	to 	ensure 	the 	efficacy 	of 	the 	Board's 	final 	order
(PERB v. Modesto City School District, 	supra). 	Additionally,
equitable 	relief 	may 	not 	exceed 	that 	to 	which 	Charging 	Parties
would 	be 	entitled 	on 	a permanent 	basis 	if 	they 	ultimately
prevail on the merits 	(Poeppel, 	et al., 	supra).) 	Here, 	the
Charging 	Parties 	do 	not 	claim 	that 	they 	are 	entitled 	to 	have
the 	entire 	fee 	rebated, 	and 	they have made 	no 	showing 	that
escrowing 	of 	100 	percent of 	their 	fees 	is 	necessary 	to prevent
against 	the 	prospect 	of 	involuntary 	subsidization. 23 An
injunction calling 	for 	escrow of 	100 	percent 	of 	the 	Charging
Parties' 	fees is, accordingly, neither necessary, 	just, nor
proper. 	For 	these 	reasons, 	the Board 	rejects Charging 	Parties'
request 	for 	injunctive 	relief 	requiring 	escrow of 	100 percent
of 	objecting nonmembers' monies.
23Charging 	Parties 	have 	not 	alleged 	that 	the 	entire
amounts 	of 	their 	service 	fees 	are 	being 	used 	to 	finance
reimbursable 	activities. 	They claim, 	however, 	that 	they should
not 	be 	required 	to pay 	a 	fee 	to 	any entity 	but 	the 	exclusive
representative, 	namely the local chapter, 	and that the CTA and
NEA 	should 	not 	be 	entitled 	to collect monies 	from objecting
nonmembers. 	This 	argument was 	rejected 	by 	the Board 	in
King City, 	supra.
26

Neither 	do 	we 	find 	that 	an 	injunction 	requiring 	the
Association 	to 	increase 	the 	amount of 	advance 	reductions 	and/or
the 	amounts 	deposited 	in 	the 	agency 	fee 	account 	is
appropriate. 	Robinson, 	supra, 	examined 	the rebate procedure of
three 	different 	unions 24 which 	feature 	one 	or 	combine 	both 	of
the 	Ellis 	alternatives. 	The Robinson court held 	that all 	three
approaches 	contain 	"the 	principal 	protections 	required 	by 	Ellis
and the 	. 	. 	. 	Due Process caselaw." 	(117 LRRM at p. 	2012.)
Also see Tierney, 	supra.
The Ninth Circuit Court of Appeals, 	in Champion v. 	State of
California 	(9th Cir. 	1984) 	F.2d 	[117 LRRM 2030],
cert. denied 	2/20/85 	U.S.L.W. 	[BNA Daily 	Labor 	Report
(2/20/85), 	at p. 	A.-4) 	recently reviewed the sufficiency of an
advanced-reduction-of-fees 	approach 	to 	protect 	objecting
nonmembers. 	The court 	upheld 	the 	validity of 	the 	system
adopted 	by 	the California State 	Employees Association 	(CSEA) 	in
its capacity 	as 	exclusive 	representative of 	a 	unit 	of 	employees
24Immediately 	after 	learning 	of 	a 	nonmember's 	objection,
the National 	Education Association 	(NEA) 	escrows an amount
equal 	to 	five 	percent 	over 	what 	an 	independent 	auditor
determines 	was 	the 	amount 	spent 	the previous year 	on
noncompulsory 	representation 	matters. 	The 	American 	Association
of 	University 	Professors 	(AAUP) 	grants an 	"advanced 	rebate"
equal 	to 	the 	anticipated 	rebate 	and 	one 	of 	its 	chapters 	also
escrows 	100 percent of 	the 	representation fee. 	The
Communication Workers of America 	(CWA), 	upon receiving 	an
objection 	letter, 	automatically places 	40 percent of 	the 	agency
fee 	into escrow. 	Agency fees, 	by statute 	in New Jersey, 	are
15 percent 	less 	than union dues. 	(117 LRRM at p. 	2012.)
27

covered 	under 	The 	State 	Employer-Employee 	Relations 	Act
(SEERA).
25 The 	lower 	court had 	been asked 	to enjoin 	the
collection of 	the entire fee. 	Based on Street, 	Allen and
Abood, 	the court denied 	that 	extreme 	form of 	injunction.
(Champion, 	supra, 	117 LRRM at 2033.) 	Significantly, 	it also
considered 	but 	denied 	issuance 	of 	a more 	narrow 	injunction.
The Ninth Circuit was willing 	to defer 	to 	the process
followed 	and 	result 	reached 	by 	the 	exclusive 	representative.
Reviewing 	the 	pleadings 	and 	record 	of 	the 	request 	for
preliminary 	injunction below, 	the court 	noted, 	and 	regarded 	as
sufficient, 	CSEA's claim that 	it had
eliminated 	that 	portion 	of 	the 	fair 	share
which goes 	to 	"partisan political 	or
ideological 	causes 	only 	incidentally 	related
to 	the 	terms and conditions of 	employment".
The court 	stated:
Thus 	the 	amount collected 	no 	longer 	includes
amounts 	clearly 	subject 	to 	refund 	under 	the
statute. 	(117 LRRM at 	2033.)
The court was 	unwilling, 	at 	the pre-determination phase of
the 	rebate procedure, 	to challenge 	the 	accuracy 	of 	CSEA's
estimate. 	It 	referred 	to 	itself 	as 	facing 	the 	same problems
cited 	by 	the 	Supreme Court 	in Street 	and Allen; 	it would 	not
risk 	interfering 	with 	"the 	important 	functions 	of 	labor
organizations." 	(117 LRRM, 	at 2033, 	quoting Allen, 	supra.)
2 5 The 	SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq.
28

Ellis, 	in that court's view, 	is not authority for
invalidating 	a 	rebate 	scheme 	at 	the predetermination phase 	of
the proceedings:
In contrast, 	Ellis was decided on a fully
developed 	record 	and 	controls 	only 	the
remedy 	after 	a 	final 	judgment 	on 	the
merits. 	See Allen, 	supra, 	373 U.S. 	at 120.
In Kempner, 	supra 	(114 LRRM at 3026), 	the Michigan Court
reviewed 	the 	conclusion 	of 	the Michigan 	Employment 	Relations
Commission 	(MERC) 	that: 	it was premature 	to assess 	the
correctness 	of 	the 	labor 	organization's 	initial 	determination
that 	a 	six percent 	advance 	reduction was 	adequate 	to protect
objecting 	nonmembers; 	the objector was not entitled 	to 	insist
on escrowing 	the 	entire 	fee 	instead 	of 	paying 	a 	reduced
amount;26 and 	the 	objector 	was 	required 	to 	exhaust 	internal
union 	remedies, 	before obtaining 	judicial 	review, 	to determine
the correct 	rebate. 	The court 	upheld 	the MERC conclusions 	as
consistent with 	the Supreme Court's holdings 	in Street, 	Allen,
and Abood. 	(114 	LRRM at 	3027-3028.) 	Plaintiffs 	appealed 	to
the United States Supreme Court, 	which, 	subsequent to 	its
see Dean, 	ante at fn. 	9, 	in which the Ninth
Circuit 	Court 	of 	Appeals 	denied 	reinstatement 	of 	an 	employee
who 	unilaterally decided 	to 	reduce 	his 	monthly 	payments 	to 	the
union. 	The court 	characterized 	the 	refusal-to-pay 	approach 	by
objecting 	nonmembers 	as 	"self-help 	injunction." 	The 	court
stated: 	"If 	the 	court cannot 	enjoin 	the 	collection of 	union
dues, 	then certainly an 	individual 	should 	not 	be permitted
unilaterally 	to decide 	to 	reduce or 	stop dues payment." 	(113
LRRM 	3208.)
29

decision 	in Ellis, 	dismissed 	the Kempner 	appeal 	for want 	of a
substantial 	federal question.27
The 	Ninth 	and 	Third Circuit 	Courts 	of 	Appeal 	were 	asked 	in
Champion 	and 	Robinson, 	respectively, 	to 	uphold 	utilization 	of
injunctive 	powers 	by 	lower 	courts 	to modify 	the 	underlying
"demand 	and 	return" 	systems. 	Both declined to do 	so. 	The
underlying 	procedures 	involved 	were 	similar 	to 	the
Association's 	rebate 	scheme 	in 	the present case: 	the 	rebate 	is
determined 	by 	applying 	the 	Abood 	definition 	of 	reimbursable
amount, 	and 	the 	advance 	reductions 	and 	escrow amounts 	are 	based
on estimates 	of 	the 	eventual 	rebates. 	Both courts 	found 	that
these 	procedures 	appeared 	to provide 	sufficient 	protection
against 	impermissible expenditure; 	and, 	neither 	court was
willing 	to 	rule 	the 	system to 	be 	inadequate 	in 	the 	absence of 	a
fully developed 	record. 	In 	light 	of 	the 	foregoing, 	we 	believe
that 	an 	injunction 	requiring 	increases 	of 	the 	advance 	reduction
and/or 	rebate 	amount 	herein 	is 	neither 	constitutionally
required, 	nor 	just 	and proper.
We 	have 	said 	above 	that 	the Association's 	maintaining 	sole
control 	and management 	of 	its 	agency 	fee 	account might
establish 	a violation of 	the Act. 	Injunctive 	relief 	requiring
the 	Association 	to 	turn over 	management 	of 	the 	account 	to 	a
2 7 A dismissal 	of 	an 	appeal 	from 	a 	state 	court 	decision
for 	want 	of 	a 	substantial 	federal 	question 	has 	the 	same
precedential 	effect 	as 	a 	summary 	affirmance 	of 	a decision 	by 	a
federal court of appeals. 	Serrano v. 	Priest 	(1971) 	5 Cal.3d
584, 616, fn. 34.
30

third party, 	however, 	is not appropriate. 	There has been no
showing 	of 	spending 	from the 	agency 	fee 	account, 	nor 	indeed 	of
any withdrawals 	at 	all 	from that 	account. 	Absent 	such 	a
showing, 	no constitutional 	injury 	requiring 	injunctive 	relief
has occurred. 	Similarly under 	the 	statute, 	the possibility of
misuse 	of 	the 	fund does 	not 	rise 	to 	the 	level of 	irreparable
injury 	necessary 	to make 	it 	just 	and proper 	to 	seek 	an
injunction.28
In 	summary, 	with regard 	to the question whether 	it 	is 	"just
and proper" 	to 	seek 	injunctive 	relief 	to modify 	the
Association's 	demand 	and 	return 	system, 	we 	are 	satisfied 	that
rebates 	have 	been paid 	to 	all 	Charging 	Parties; 	all 	Charging
Parties 	are 	now part of 	CTA's 	rebate 	system; 	monies 	are 	being
set aside 	in the agency fee 	account on their 	behalf; 	and each
Charging 	Party 	is 	receiving 	the 	required 	advance 	reduction.
The 	advance 	reduction procedure, 	coupled 	with depositing 	and
retaining 	sums 	in the 	agency 	fee 	account, 	further 	insulates 	the
Charging 	Parties 	from 	the prospect 	of 	having 	extended
involuntary 	loans 	to CTA and NEA. 	Thus, 	even 	though 	reasonable
cause 	does 	exist 	to 	believe 	that certain elements 	in 	the
would 	an 	injunction 	requiring 	the 	Association 	to
invest 	the 	agency 	fee 	account 	funds 	at 	a 	higher 	interest 	rate
be 	just 	and proper. 	If 	the 	amount 	of 	interest 	accruing 	for 	the
small 	amount 	of 	funds 	involved 	is 	determined 	-- 	after 	hearing
and 	full 	briefing 	— 	to 	be 	inadequate, 	this 	problem can 	be
easily 	cured 	through 	a 	remedial 	order 	directing 	retrospective
payment 	of 	an 	appropriate 	rate 	of 	interest.
31

Associations' 	procedures constitute unfair practices, 	we find
no probability 	that 	the purposes 	of 	EERA will 	be 	frustrated,
that 	the 	efficacy 	of 	the 	Board's 	final 	order 	may 	be 	nullified,
or 	that 	the Board's procedures will 	be 	rendered meaningless
unless 	temporary 	relief 	is granted. 	(Public 	Employment
Relations 	Board 	v. 	Modesto City Schools 	District,
136 Cal.App.3d 	at 	897 	and 	902.
ORDER
For 	the 	foregoing 	reasons, 	we DENY the 	request 	for
injunctive 	relief 	filed 	by Charging 	Parties 	insofar 	as 	it 	seeks
escrowing of either 	100 percent, 	or 	a greater portion of
service 	fee 	than 	is now being 	escrowed. 	We 	also 	DENY any
implicit 	request 	to 	fashion 	a 	rebate procedure 	that 	is 	less
extreme 	than 	a 	100 	percent 	service 	fee 	escrow but more 	rigorous
than 	that currently 	followed 	by CTA. 	In 	the 	event 	that 	the
underlying 	factual circumstances 	change, 	the Charging 	Parties
may, 	of course, 	renew their 	request for 	injunctive 	relief.
By 	the 	BOARD
32