United Teachers of Los Angeles (Hopper) (PERB 1447E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHEILA ANN HOPPER,
Charging Party,
V.
UNITED TEACHERS OF LOS ANGELES,
Respondent.
Case No. LA-CO-848-E
PERB Decision No.
	144
7
June
	21,
	2001
Appearances: 	Garrard & Davis
by
Donald A. Garrard, Attorney, for Sheila Ann Hopper;
Geffner & Bush by Steven K. Ury, Attorney, for United Teachers
of
Los Angeles.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal
by
Sheila Ann Hopper (Hopper)
of
a Board agent's dismissal
(attached)
of
her unfair practice charge. In the charge, Hopper alleged that the United
Teachers
of
Los Angeles (UTLA) violated the Educational Employment Relations Act
(EERA) 1
by providing an improper notice to nonmember fee payers as required by PERB
Regulation 32992.2
1EERA is codified at Government Code section 3540 et seq.
2PERB regulations are codified at California Code
of
Regulations, title 8, section 31001
et seq. PERB Regulation 32992 (a) reads:
Each nonmember who will be required to pay an agency fee shall
annually receive written notice from the exclusive representative
of:
(1) The amount of the agency fee which is to be expressed as a
percentage of the annual dues per member based upon the
chargeable expenditures identified in the notice;

(2) The basis for the calculation of the agency fee; and
(3) A procedure for appealing all or any part of the agency fee.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge and attachments, the warning and dismissal letters, Hopper's
appeal and UTLA's opposition to the appeal. 	The Board finds the Board agent's dismissal to be
free from prejudicial error and adopts it as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-848-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Baker joined in this Decision.
2

STATE
OF
CALIFORNIA 	GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95814-4 l 74
Telephone: (9 I 6) 327-8384
Fax:
(916)
327-6377
December 28, 2000
Ms. Sheila Hopper
1711 Tuna Canyon Rd.
Topanga, CA 90290
Re: 	Sheila Ann Hopper
v.
United Teachers
of
Los Angeles
Unfair Practice Charge No. LA-CO-848-E
DISMISSAL LETTER
Dear Ms. Hopper:
In the above-referenced unfair practice charge filed with the Public Employment Relations
Board on August 17, 2000, you allege that United Teachers
of
Los Angeles violated the
Educational Employment Relations Act (EERA) 1 by providing an improper notice
to
nonmember fee payers as required by PERB Reg. 329922 •
I indicated to you in my attached letter dated November 17, 2000, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts that would correct the deficiencies explained in that letter, you
should amend the charge. You were further advised that, unless you amended the charge to
state a prima facie case or withdrew it prior to November 24, 2000, the charge would be
dismissed.
On November 27, 2000, I received your amended charge that alleges the same facts alleged in
your initial charge filed with PERB on August 17, 2000. In your amended charge, you state
that UTLA's Notice to Nonmembers "is a travesty
of
the union's obligation to disclose relevant
information in discharge
of
its duties
of
fair representation
of
all members
of
its bargaining
unit; and moreover, it fails to comply with the requirements
of
section 32992." Regulation
32992( a)(
1)
provides in pertinent part:
Each non-member who will be required to pay an agency fee
shall annually receive a written notice from the exclusive
representative of:
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies may be purchased from PERB's Publications Coordinator, 1031 18th
Street, Sacramento, CA 95814-4174, and the text is available at www.perb.ca.gov.

LA-CO-848-E
December 28, 2000
Page 2
(
1)
The amount
of
the agency fee which is to be expressed as a
percentage
of
the annual dues per member based upon the
chargeable expenditures identified in the notice;
(2) The basis for the calculation
of
the agency fee; and
(3) A procedure for appealing all or any part
of
the agency fee.
You allege that UTLA has not stated the amount
of
the agency fee as a percentage
of
annual
member dues. 	You also state that the only reference to "objection" in the notice is to
the
objection to the calculation
of
fair share.
Regulation 32992 specifically requires:
1) The exclusive representative must send a written notice annually to each
nonmemberwho will be required to
pay
an agency fee.
2) The annual notice must express the amount
of
the agency fee.
3) The amount
of
the agency fee
may
be less than or equal to 100%
of
the annual dues.
4) The chargeable expenditures
of
the union must be expressed as a percentage
of
the
annual dues.
5) The notice must give the basis for the calculation
of
the chargeable expenditures.
6) The notice must contain a procedure for appeal
of
all or any part
of
the
agency
fee.
The amended charge does not provide any new evidence indicating that UTLA failed to meet
the requirements
of
32992 in the notice sent to nonmembers.
The first requirement set out above appears to have been met. Your use
of
the UTLA notice to
nonmembers as an exhibit in your amended charge supports this finding. 	You have provided
no evidence that UTLA did not send this notice to all nonmembers.
The second and third requirements are met by UTLA's Notice which reads in part:
If
you send an objection, then you will be required to pay only the
fair share amount as set forth in the enclosed dues schedule.
However, failure to respond will result in payment
of
an agency
fee equal to full membership dues ( 100%). Under California law
and a decision by the U.S. Court
of
Appeals for the 9 th
Circuit
involving UTLA, your failure to provide a written objection
allows UTLA to obtain 100%
of
membership dues. (page 2.)
The dues schedule attached to the notice lists the monthly dues for a regular full time teacher
($40.67) as well as the dues for other classifications within the bargaining unit. In addition it
states the monthly reduced Fair Share amount for each classification.
The fourth requirement is fulfilled by the paragraph on the first page of the Notice that reads:

LA-CO-848-E
December 28, 2000
Page 3
Based on the financial information for the respective 1997-1998
fiscal years, the fair share amount ofUTLA dues is $352.10 per
year, or 29.34 per month on a
12
month basis for regular full time
teachers. This represents 72.15%
of
the full UTLA dues. The
attached schedule states both UTLA dues in effect as
of
December, 1999 and the fair share see to be deducted the first
payroll in December, 1999. Full UTLA dues are established at
l ½ %
of
a beginning teacher's salary on the District's salary
schedule. The dues and the fair share fees are paid through
monthly salary deductions for twelve months.
The fifth requirement is fulfilled by pages 2 - 5
of
UTLA's Notice which reads in part:
The fair share fee amount has been calculated from the
expenditures for collective bargaining, grievances and arbitration,
contract administration and representation, as well as other
relevant and germane matters affecting the terms and conditions
of
your employment. Criteria for chargeable and non-chargeable
expenses have been adopted by UTLA under applicable law, and
include the following examples
of
chargeable expenses: (List
of
examples follow)
The fair share does not include any expenses, either direct or
indirect, for the following non-chargeable activities: 	(List
of
examples follows)
The fair share fee represents expenses by UTLA in the chargeable
categories, and the share
of
chargeable expenses by UTLA's state
and national affiliates. The attached financial reports set forth the
major categories
of
the expenditures ofUTLA, CTA, NEA, CFT,
and AFT that are chargeable to fair share payers pursuant to the
criteria listed above and in the separate reports
of
each state and
national affiliate.
The 72.15% fair share percentage of the full agency fee (100%
membership dues) was derived as follows:
1.	
$5.00 of the regular annual dues is allocated to political
activities and is nonchargeable.

LA-CO-848-E
December 28, 2000
Page 4 
2.
	A percentage
of
UTLA dues (in addition to the $5.00 political
allocation) is non-chargeable. 	The chargeable amount
of
UTLA
expenditures, as detailed in the enclosed Statement
of
Allocation
of
Expenses, is
83
.66%
of
regular dues. UTLA reduced the
chargeable expense percentage by 2% to take into account any
adjustments that may be deemed necessary at a later date.
3.
	State and national affiliation fees paid by UTLA to either the
CTA-NEA or the CFT-AFT, are in the net amount of$103.22 per
year to the state affiliate, and $114. 00 to the national affiliate.
Based on the lowest measure
of
chargeable activities
of
the state
and national affiliates, the amount
of
each affiliate's chargeable
expenditure that is attributable to a fair share fee payer is 63
.1
%
for the state affiliates and 56.68% for the national affiliates.
CTA-NEA reduced the chargeable expenses
by
5% to take into
account any adjustments that may be deemed necessary at a later
date.
The last requirement described above is fulfilled on pages 2 and 6 -7
of
UTLA's Notice. Page
2 reads in pertinent part:
If
you have any objections to the calculation
of
the fair share
amount, or any
of
the financial reports, then you must send or
deliver written notice to the UTLA office to be received by
November 15, 1999. We urge you to use the enclosed form that
can be detached.
The form, titled UTLA - Agency Fee-Fair Share Dues, has a space for the name and employee
number
of
teacher. 	On it the employee may request membership in UTLA, to pay the fair
share dues only, or to pay the fair share dues and object to amount, criteria, financial reports,
etc. and request arbitration. There is a line for date and signature as well as the address.
Pages 6 - 7 detail a specific procedure for appealing the calculation
of
the chargeable
expenditures that includes the right to challenge the criteria for chargeability, a procedure for
sending in written objection, and the process by which the challenge will be arbitrated.
Finally, UTLA summarizes the options of nonmember employees on page 7
of
the Notice:
Again, you have the following options:
1.
	Send to UTLA written notice of intent to pay fair share dues
only and/or objections. You will only be charged the reduced fair
share dues.
2.	
If
you do not send written notice to UTLA to be received by
UTLA by November 15, 1999, full UTLA dues will be deducted.

LA-CO-848-E
December 28, 2000
Page 5
3. You may voluntarily join UTLA as a full member.
We are enclosing a form for you to complete and return
to
UTLA,
as well as a UTLA membership application for those who elect to
JOlil.
If
you have any questions, please call Sue Cadena at UTLA,
(213) 368-6242.
Based on this discussion and those in the warning letter, your charge failed to state a
primafacie violation regulation 32992.
Right to Appeal
Pursuant to PERB Regulations,3 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. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
3 PERB's Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. 	Copies of the Regulations maybe purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

LA-CO-848-E
December 28, 2000
Page 6
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. 	(Regulation 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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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. 	(Regulation 32132.)
Final Date
If
no appeal
is
filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
By
Andria K. Borba
Board Agent
(!J:::t:..
·<::...,
--4:na,;d
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6a _
Attachment
cc: Steven Ury

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 l 18th Street
Sacramento, CA 958 l-4-4174
Telephone: (916) 327-8384
Fax:
(916)327-6377
November 17, 2000
Sheila Hopper
1
711
Tuna Canyon Rd.
Topanga, CA 90290
Re: 	Sheila Ann Hopper
v.
United Teachers
of
Los Angeles
Unfair Practice Charge No. LA-CO-848-E
WARNING LETTER
Dear Ms. Hopper:
In the above-referenced unfair practice charge filed with the Public Employment Relations
Board on August 17, 2000, you allege that United Teachers
of
Los Angeles violated the
Educational Employment Relations Act1 by providing an improper notice to nonmember fee
payers as required by PERB Reg. 329922 .
My investigation
of
the above reference charge disclosed the following facts.
You are a teacher in the Los Angeles Unified School District. UTLA is the exclusive
representative
of
the teacher's bargaining unit as defined by Government Code section
3540.l(e). You have exercised your right not to be a member ofUTLA.
On October
7,
1999, you received a "notice to non-member bargaining unit employees" from
UTLA. You allege UTLA violated its duty
of
fair representation because this notice was
inadequate according to Chicago Teachers Union
v.
Hudson 106 S.Ct. 1066 (1986) and PERB
Regulation 32992. 3 Your charge alleges that the notice was "intentionally misleading,
convoluted, and nebulous." You further allege that the distinction between agency fee and fair
share is unclear because the word "objection" refers to two separate issues in the notice to
agency fee payers.
1 EERA is codified at Government Code section 3540 et seq. The text
of
the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. 	Copies may be purchased from PERB's Publications Coordinator, 1031 18th
Street, Sacramento, CA 95814-4174, and the text is available at www.perb.ca.gov.
3 Chicago Teachers Union v. Hudson is a 1986 Supreme Court case discussing
necessary safeguards unions must take to "prevent compulsory subsidization of ideological
activity by nonunion employees."
GR.A
Y DAVIS, Governor

LA-CO-848-E
November 6, 2000
Page 2
The "notice to nonmember bargaining unit employees" attached to your unfair practice charge
states in pertinent part:
We are providing you this notice
of
the reduced fair share dues
that will become effective as
of
the first payroll deductions in
December, 1999. In addition to explaining the fair share dues, we
are sending you the attached financial reports for UTLA and state
and national affiliates for their respective 1997-199 8 fiscal years.
Under the Collective Bargaining Agreement and existing law,
if
you do not wish to join UTLA, you are required to pay the fair
share
of
UTLA dues that are chargeable and germane to
collective bargaining and representational activities
of
UTLA that
benefit the entire bargaining unit.
Based on the financial information for the respective 1997-1998
fiscal years, the fair share amount
of
UTLA dues is $352.10 per
year, or $29.34 per month on a
12
month basis for regular full
time teachers. This represents 72.5%
of
the full UTLA dues.
If
you have any objections to the calculation
of
the fair share
amount, or any
of
the financial reports, then you must send or
deliver a written notice to the UTLA office to be received by
November 15, 1999. We urge you to use the enclosed form that
can be detached.
If
you send an objection, then you will be required to pay only the
fair share amount as set forth in the enclosed dues schedule.
However, failure to respond will result in payment
of
an agency
fee equal to full membership dues (100%).
The fair share fee represents expenses by UTLA in the chargeable
categories, and the share
of
chargeable expenses by UTLA's state
and national affiliates. The attached financial reports set forth the
major categories
of
the expenditures ofUTLA, CTA, NEA, CFT,
and AFT that are chargeable to fair share payers pursuant to the
criteria listed above and in the separate reports
of
each state and
national affiliate.
You have the right to challenge the criteria for chargeability and
non-chargeability, the expenditures by UTLA and the state and
national affiliates, and the conclusion as to the amount that can be
charged to you as a fair share fee.	
If
you wish to file a challenge,
then you must send a letter of challenge to the UTLA office to be

LA-CO-848-E
November 6, 2000
Page 3
received by November 15, 1999.
	If
you believe you are entitled
to pay a lower fair share fee than the amount stated in this, notice,
then so indicate, as well as the amount you believe is in dispute.
UTLA will place into the independent interest-bearing escrow
account the amount
of
fees that are reasonably in dispute.
In Chicago Teachers Union
v.
Hudson, the Supreme Court
of
the United States held:
Under an agency shop agreement, procedural safeguards are
necessary to prevent compulsory subsidization
of
ideological
activity
by
nonunion employees who object thereto while at the
same time not restricting the union's ability to require an
employee to contribute to the cost
of
collective bargaining
activities. The fact that nonunion employees' rights are protected
by
the First Amendment requires that procedures be carefully
tailored to minimize an agency shop's infringement on those
rights. 	And the nonunion employee must have a fair opportunity
to identify the impact on those rights and to assert a meritorious
First Amendment claim. Chicago Teachers Union v. Hudson,
106 S. Ct. 1066, 1068-1069.
The Court further explained that potential objectors must be given sufficient information to
gage the propriety
of
the fee, a list
of
major categories
of
expenses, and verification
by
an
independent auditor.	
id.
at 1075-1077.
After the Supreme Court's decision in Hudson, PERB regulation 32992 was adopted which
requires an exclusive representative to provide an agency fee notice to each nonmember paying
an agency fee. 	PERB regulation 32992 (a) reads:
Each nonmember who will be required to pay an agency fee shall
annually receive written notice from the exclusive representative
of:
(1) The amount
of
the agency fee which is to be expressed as a
percentage
of
the annual dues per member based upon the
chargeable expenditures identified in the notice;
(2) The basis for the calculation
of
the agency fee; and
(3) A procedure for appealing the agency fee.
The procedure for agency fee appeai in regulation 32994 reads:
(a)
	If
an agency fee payer disagrees with the exclusive
representative's determination
of
the agency fee amount, that
employee (hereinafter known as an "agency fee objector") may
file an agency fee objection. Such agency fee objection shall be
filed with the exclusive representative. An agency fee objector

LA-CO-848-E
November 6, 2000
Page 4
may file an unfair practice charge that challenges the amount
of
the agency fee; however, no complaint shall issue until the
agency fee objector has first exhausted the exclusive
representative's Agency Fee Appeal Procedure. No objector shall
be required to exhaust the Agency Fee Appeal Procedure where it
is
insufficient on its face.
(b) Each exclusive representative that has an agency fee
provision shall administer an Agency Fee Appeal Procedure in
accordance with the following:
(1) A agency fee objection shall be initiated in writing and shall
be filed with an official
of
the exclusive representative who has
authority to resolve agency fee objections.
(2) An agency fee objection shall be filed not later than 30 days
following distribution
of
the notice required under Section 32992
of
these regulations.
(3) Within 45 days
of
the last day for filing an objection under
Section 32994(b )(2)
of
these regulations and upon receipt
of
the
employee's agency fee objection, the exclusive representative
shall request a prompt hearing regarding the agency fee before an
impartial decisionmaker.
(4) The impartial decisionmaker shall be selected by the Public
Employment Relations Board, the American Arbitration
Association, or the California State :Mediation Service. The
selection among these entities shall be made by the exclusive
representative.
(5) Any party may make a request for a consolidated hearing
of
multiple agency fee objections based on case similarities,
including but not limited to, hearing location. At any time prior
to the start
of
the hearing, any party may make a motion to the
impartial decisionmaker challenging any consoiidation
of
the
hearing.
(6) The exclusive representative bears the burden
of
establishing
the reasonableness
of
the amount of the agency fee.
(7) Agency fee objection hearings shall be fair, informal
proceedings conducted in conformance with basic precepts of due
process.

LA-CO-848-E
November 16, 2000
Page 5
(8) All decisions
of
the agency fee impartial decisionmaker shall
be in writing, and shall be rendered no later than 30 days after the
close
of
the hearing.
(9) All hearing costs shall be borne by the exclusive
representative, unless the exclusive representative and the agency
fee objector agree otherwise.
You have not indicated with specificity how UTLA's notice fails to meet the requirements
of
PERB regulations. The notice from UTLA explicitly expresses the amount
of
the agency fee
as a percentage
of
the annual dues per member based upon the chargeable expenditures as
required by section 32992(a)(l). The notice also fulfills the section 32992(a)(2) requirement
of
supplying the basis
of
the calculation
of
the agency fee.
Your allegation that the language used to describe the ability
of
agency fee payers to "object"
to the amount and the process
by
which the union calculated the amount was confusing to
nonmembers is not supported
by
the facts. The "notice to nonmembers" satisfies regulations
32992(a)(3) and 32994. The notice adequately states that a nonmember may object to the fee
and sets out an appeals process
by
which nonmembers may challenge UTLA's calculation
of
the chargeable amount. UTLA's use
of
the word "objector" in two different contexts is not a
violation
of
regulation 32994 and is in accordance with the language
of
the regulation.
You further allege that it appeared to you it was necessary to hire an auditor in order to
challenge UTLA's calculation
of
the fee. 	The notice does not state such a requirement and it
does not appear that a nonmember would need an auditor to participate in an arbitration
challenging the calculation
of
chargeable fees and therefore this allegation is unfounded.
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
beprepared 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 have the case number written on the
top right hand comer
of
the charge form. 	The amended charge must be served on the
respondent's representative and the original proof
of
service must be filed with PERB.
	If
I do
not receive an amended charge or withdrawal from you before November 24, 2000, I shall
dismiss your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Andria K. Borba
Board Agent
AKB
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