Union of American Physicians and Dentists (Stewart) (PERB 0539S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
GEORGE S. 	STEWART,
Charging 	Party,
v.
UNION OF 	AMERICAN 	PHYSICIANS
AND DENTISTS,
Respondent.
Case No. 	S-CO-42-S
PERB Decision No. 	539-S
December 5, 	1985
Appearances: 	George S. 	Stewart, 	on his 	own behalf.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	George S. 	Stewart, 	D.D.S., 	charging
party, 	appeals 	a Public 	Employment 	Relations 	Board 	(PERB or
Board) 	regional attorney's 	dismissal of his 	unfair practice
charge 	against 	the 	Union 	of 	American Physicians 	and 	Dentists
(UAPD). 	For 	the purpose of determining whether a prima 	facie
case has been stated, 	we presume the 	factual 	assertions 	to be
true."
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DISCUSSION
Charging party 	is 	a dentist who works 	at 	Folsom Prison. 	In
1981, 	he 	joined UAPD, 	and paid his yearly dues 	from then
henceforth. 	He paid his 	dues 	in a 	lump sum at 	the beginning of
the fiscal year 	(FY).
ls	1 an	San 	Juan 	Unified 	School 	District 	(1977) 	EERB Decision
No. 	12. 	Prior to January 1, 	1978, 	PERB was known as the
Educational 	Employment 	Relations 	Board 	(EERB).
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In 1983, 	he 	learned 	that 	UAPD members 	who paid their dues
by an 	automatic 	deduction 	from 	their 	monthly paychecks 	were
charged 	less 	than members 	who paid 	their 	annual dues 	in a 	lump
sum or on a quarterly basis.222
In response 	to this 	knowledge, 	charging party sought a
refund 	from UAPD 	for 	the 	difference 	between 	the 	$340 he paid
and 	the 	$222 	paid by those 	members 	who 	used 	the payroll
deduction plan. 	Charging party was 	unsuccessful 	in 	receiving a
refund, 	so he 	sued UAPD in small 	claims 	court and won.33
Charging 	party 	and 	UAPD have 	continued 	to disagree 	over 	the
amount 	owed by charging party as 	a 	"direct 	dues 	payor."
Because 	charging party would not 	tender 	the 	full 	amount 	owed by
him according to UAPD's 	calculations, 	UAPD requested 	that 	the
State 	of 	California place 	charging party on a 	"fair 	share
payor" 	status. 	That 	is, 	an amount equivalent to the dues paid
by 	the 	"automatic deduction" 	member-payors 	was 	withheld 	from
charging party's paycheck 	from June 	1984 	to present.4
Charging party has 	vigorously protested 	UAPD's 	action 	in
making him a 	"fair-share payor." 	In 	September 	1984, 	charging
2 In FY 1982-83, 	the 	former paid $222, 	the latter $340.
By FY 1984-85, 	the amounts were $282 and $360, 	respectively.
3 The 	judgment was 	for $120 damages plus 	$20 in costs, 	and
was 	entered April 	1984.
4Authority 	for 	the union 	to 	require 	a 	fair 	share 	from
non-members 	is 	found at 	Government 	Code 	section 	3515.7.
Authority 	for 	the 	state 	to deduct 	such payments 	from employee
paychecks 	at 	the 	union's 	request 	is 	found 	at 	section 	3515.7(b) •
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party attempted 	to pay UAPD dues 	for 	the 	year, 	albeit 	with an
amount 	less 	than the 	union charged 	"direct 	dues" 	payors.5 In
November 1984, 	charging party paid the difference, 	under
protest, 	between what he had already paid 	($282) 	and what 	UAPD
charged 	($360). 	UAPD has 	refused to accept 	the 	full amount
tendered 	and has 	refused 	to 	remove 	charging party 	from
"fair-share payor" 	status. 	Charging party 	filed an unfair
practice 	charge 	in February 1985 	alleging 	that 	the 	union was
retaliating against him, 	in violation of 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA) 	section 3519.5.6
We note that, 	as 	a rule, 	the Board will not 	insert 	itself
into disputes 	between unions 	and 	their 	members 	that 	are
"strictly 	internal." 	(Service 	Employees 	International 	Union,
Local 	99 	(1979) 	PERB Decision No. 	106.) 	Whether 	the union may
5Charging 	party, 	relying upon 	the 	small 	claims 	judgment
he 	received 	that 	implied he 	could 	not 	be 	charged 	more 	than
those who paid by automatic deduction, 	paid 	$282.
6 SEERA is 	codified at 	Government 	Code 	section 	3512 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government 	Code. 	Section 3519.5 	reads, 	in
relevant 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
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of
rights 	guaranteed by this 	chapter.
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have a dual 	dues 	structure 	that 	charges 	some members 	more 	than
others 	is 	not a dispute 	for 	this 	Board to resolve, 	absent an
allegation 	that 	the 	dues 	schedule discriminates 	against 	certain
members 	for an 	impermissible reason. 	Rather, 	we confine
ourselves 	to an examination of 	allegations 	that 	support a
charge of violation of SEERA section 3519.5.7 7
Charging party alleges 	in his 	charge 	that he has 	been
denied membership 	in 	UAPD because 	of his 	successful 	small
claims 	action against 	the 	union 	concerning membership dues. 	In
support of that allegation, 	we note that, 	as of November 1984,
charging party has 	tendered 	the 	full 	amount 	due 	but 	that 	the
union has 	refused 	to accept 	it, 	presumably because 	charging
party has 	not 	signed 	a membership 	form. 	Because 	charging party
was permitted to pay dues 	in 1981, 	1982 and 1983 without
signing 	such a 	form, 	UAPD may have 	instituted a 	new 	requirement
for 	membership as 	to 	the 	charging party.
We 	do not 	know 	if 	the 	alleged changes 	in UAPD's 	membership
policies 	were 	instituted 	in order 	to keep charging party 	in a
"fair share payor" 	status 	and 	thus 	a non-member of UAPD,
notwithstanding charging party's 	efforts 	to 	remain a member.
But, 	in any event, 	an employee organization may not
7Furthermore, 	we 	confine 	ourselves 	to an 	examination of
allegations 	that 	occurred 	within 	the 	six 	months 	preceding 	the
filing of this charge. 	(Gov. 	Code sec. 	3514.5.)
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unreasonably 	interfere with an 	employee's 	right 	to be 	a
member. 8	88
Therefore, 	we will 	reverse 	the dismissal and request 	that
the general 	counsel 	issue a complaint 	as 	to the 	issue of
whether 	the 	union has 	violated 	SEERA by denying 	charging party
membership 	in UAPD despite 	the 	tender 	of 	the 	full 	"direct 	dues"
amount 	required. 	We affirm 	the dismissal 	as 	to the other
allegations.
ORDER
The dismissal 	of 	the 	regional 	attorney 	in Case 	No.
S-CO-42-S 	is 	hereby 	REVERSED and 	the 	general 	counsel 	is 	ORDERED
to 	issue 	a complaint 	consistent 	with 	the 	above discussion.
8Section 	3515 of SEERA provides, 	in relevant part, 	that:
. 	. 	. 	state 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.
The 	right 	to 	join an employee organization 	is 	qualified by
section 3515.6, 	which provides, 	in relevant part, 	that:
. 	. 	. 	employee organizations may establish
reasonable 	restrictions 	regarding 	who may
join and may make 	reasonable provisions 	for
the dismissal 	of 	individuals 	from
membership. 	(Emphasis 	added.)
The alleged denial 	of membership, 	if 	in 	fact precipitated by
charging party's 	small claims 	court 	suit, 	is 	at 	least arguably
not 	"reasonable." 	Thus, 	such denial 	could constitute 	unlawful
interference 	with 	the 	right 	to 	join an 	employee organization
pursuant to section 3519.5(b), 	cited above.
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alleging 	interference 	with 	the 	charging party's 	right 	to
membership 	in 	the 	Union of American Physicians 	and 	Dentists.
Members 	Morgenstern and Porter 	joined 	in 	this 	Decision.
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