Ventura Unified School District (PERB 0757E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT L. 	BEEM, 	ET AL.,
Charging Parties,
v.
VENTURA UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2625
PERB 	Decision No. 	757
September 	1 	1989
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Appearances: 	National Right to Work Legal 	Defense Foundation,
Inc. 	by John C. 	Scully, Attorney, 	for Robert L. 	Beem, 	et al.;
Liebert, 	Cassidy & Frierson by Bruce A. 	Barsook, 	Attorney, 	for
Ventura 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	from a PERB 	regional
attorney's 	dismissal 	of 	an unfair practice 	charge 	filed by 	Robert
L. 	Beem, 	et al. 	(Charging Parties). 	The charge alleges that the
Ventura 	Unified School 	District 	(District) 	has 	failed to 	ensure
that 	the procedural 	safeguards 	required by 	the 	United 	States
Supreme Court's decision in Chicago Teachers Union. 	Local No. 	1
v. 	Hudson 	(1986) 	475 U.S. 	292, 	106 S.Ct. 	1066 	[121 LRRM 2793]
have 	been 	correctly 	applied 	to 	the 	collection and use 	of 	agency
fees 	by the Ventura 	Unified Education Association 	(Association).1
Charging 	Parties 	are 	agency 	fee payers 	in the bargaining unit
1Charging Parties 	also 	filed 	an unfair practice 	charge
against the Association 	(Case No. 	LA-CO-428) 	alleging that the
Association had 	failed 	to 	comply with 	the 	dictates 	of 	the 	Hudson
decision. 	A complaint 	issued on October 	19, 	1987.

exclusively 	represented by 	the Association. 	The 	District's
conduct allegedly violates 	section 3543.5, 	subdivisions 	(a) 	and
(d), 	of the Educational Employment Relations Act 	(EERA).2
DISCUSSION
The 	central 	issue 	in this 	case, 	whether a public 	employer
has 	an affirmative 	obligation to 	ensure 	that 	an 	exclusive
representative 	complies with the procedural 	requirements 	set 	out
in Hudson, 	is 	identical 	to that 	in a 	case recently issued by the
Board, 	San Ramon Valley Unified School District 	(1989) 	PERB
Decision No. 	751. 	That case is controlling here.3
2EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5, 	subdivisions 	(a) 	and
(d), state:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	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.
(d) 	Dominate or interfere with the 	formation
or 	administration of 	any 	employee
organization, 	or contribute financial or
other 	support to 	it, 	or in any way encourage
employees 	to 	join any organization in
preference to another.
3At 	the request of the parties, 	the present case was held in
abeyance pending the 	Board's 	decision 	in San Ramon. 	By 	letter of
June 	30, 	1989, 	a Board agent 	informed the District that the
present 	case was 	no 	longer 	in abeyance 	and that 	the 	District 	had
20 days 	to file 	its response to Charging Parties' 	appeal 	(the
appeal had been filed before 	the 	case was placed 	in abeyance).
The due date was July 25, 	1989. 	The District's response, 	though
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ORDER
For the reasons discussed above, 	the unfair practice 	charge
in Case No. 	LA-CE-2625 	is hereby DISMISSED WITHOUT LEAVE TO
AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
un
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collective bargaining. 	(Ibid., 	at pp. 	9-11.) 	Specifically, 	the
Board observed 	that 	the 	"arm's 	length" 	relationship 	required by
collective 	bargaining would 	render 	unworkable 	any 	scheme where
the employer must police a union's 	actions, 	lest it be held
liable 	for them. 	The 	cautious 	employer may 	simply refuse 	to
deduct agency 	fees 	or refuse 	to 	include 	them in the 	contract,
thereby 	effectively 	eliminating 	agency 	fees. 	As 	the 	collection
and 	expenditure 	of 	agency 	fees 	are 	fundamentally matters 	between
the 	exclusive representative and bargaining unit members, 	if 	an
employer did 	engage 	in the 	type 	of 	policing 	function urged by
Charging Parties, 	it would 	likely run afoul 	of 	its 	statutory duty
to 	refrain 	from 	interfering 	in the 	administration of 	a 	union.
Moreover, 	a public 	school 	employer 	simply does 	not have the
authority 	or 	resources 	to 	review union procedures 	and determine
if 	they 	are 	statutorily 	or 	constitutionally 	adequate.
5EERA section 3543.5, 	subdivision 	(d), 	states that it shall
be 	unlawful 	for a public 	school 	employer to:
(d) 	Dominate or 	interfere with the 	formation
or 	administration of 	any 	employee
organization, 	or contribute 	financial or
other 	support to 	it, 	or in any way encourage
employees 	to 	join any 	organization 	in
preference to another.
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placed 	in the regula
- - r United States 	mail 	on July 	25, 	was 	not
received by PERB until 	July 	28. 	PERB Regulation 	32135 provides
that:
All 	documents 	shall 	be 	considered 	"filed"
when 	actually 	received 	by 	the 	appropriate
PERB office before 	the 	close 	of 	business 	on
the 	last date 	set 	for 	filing or when 	sent by
telegraph 	or 	certified 	or Express 	United
State	- -s 	mail 	postmarked not 	later 	than the
last day 	set 	for 	filing 	and 	addressed 	to 	the
proper PERB 	office.
(PERB 	Regulations 	are 	codified 	at California Administrative 	Code,
title 8, 	section 31001 	et seq., 	emphasis 	added.)
Since the District's response was 	sent by regular mail, 	it
was 	not 	filed until 	July 	28, 	when it was 	received by the 	Board.
No reason for the 	late filing was provided. 	We have, 	therefore,
not 	considered 	the 	District's 	response 	in rendering 	this
decision.
In San Ramon, 	the Board 	found that 	neither Hudson nor 	its
progeny place upon a public 	employer a duty to 	ensure 	the
constitutional 	adequacy 	of 	the 	exclusive 	representative's
collection and expenditure of agency fees. 	(See, 	generally, 	PERB
Decision No. 	751, 	at pp. 	2-9.) 	As the Board noted in San Ramon,
the 	employer may be 	a 	necessary party 	to 	a 	claim against 	the
union for the purposes 	of 	injunctive relief. 	(Ibid.. 	at p. 	11.)
The 	Board also 	noted that, 	absent 	an antecedent 	appellate 	court
decision, 	it 	is 	not within PERB's 	authority to refuse to 	enforce
some portion of 	the 	statute because 	it viewed that portion as
unconstitutional.4 (Ibid., 	at p. 	11.)
In addition, 	the Board found 	in San Ramon that the 	creation
of 	such 	a duty would be 	incompatible with the 	entire notion of
4See Article 	III, 	Section 	3.5 	of the California
Constitution.
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