California Faculty Association (Malamud) (PERB 1482H)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RICHARD MALAMUD,
Charging Party, Case No. LA-CO-74-H

Vv. PERB Decision No. 1482-H

CALIFORNIA FACULTY ASSOCIATION, May 30, 2002

Respondent.

Appearances: Richard Malamud, on his own behalf; Rothner, Segall & Greenstone by
Ricardo Ochoa, Attorney, for California Faculty Association.

Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Richard Malamud (Malamud) of a Board agent's dismissal (attached) of
his unfair practice charge. The charge alleged that the California Faculty Association (CFA)
violated the Higher Education Employer-Employee Relations Act (HEERA) section 3583.5! by

collecting non-chargeable agency fees.

'HEERA is codified at Government Code section 3560 et seq. Section 3583.5 provides,
in pertinent part:

(a)(1) Notwithstanding any other provision of law, any employee
of the California State University or the University of California,
other than faculty of the University of California who are eligible
for membership in the Academic Senate, who is in a unit for
which an exclusive representative has been selected pursuant to
this chapter, shall be required, as a condition of continued
employment, either to join the recognized employee organization
or to pay the organization a fair share service fee. The amount of
the fee shall not exceed the dues that are payable by members of

The Board has reviewed the entire record in this matter including the unfair practice
charge as amended, the warning and dismissal letters, Malamud's appeal and CFA's response.
Malamud's appeal reiterates arguments made to the Board agent contesting inclusion of
expenditures of CFA's affiliates within the agency fee and contesting the agency fee being
based on a percentage of membership dues, arguing it should instead be based upon CFA's
actual expenditures. As the Board agent correctly noted in the dismissal letter, an agency fee
arbitration was held in this matter and each of Malamud's contentions were presented to and
rejected by the arbitrator. The Board agent correctly found that the arbitrator's decision was
not repugnant to HEERA with regard to either of Malamud's contentions before the Board.
The Board finds the Board agent's dismissal letter to be free from prejudicial error and adopts
it as the decision of the Board itself.
the employee organization, and shall cover the cost of
negotiation, contract administration, and other activities of the
employee organization that are germane to its functions as the
exclusive bargaining representative. Upon notification to the
employer by the exclusive representative, the amount of the fee
shall be deducted by the employer from the wages or salary of the
employee and paid to the employee organization.
(2) The costs covered by the fee under this section may include,
but shall not necessarily be limited to, the cost of lobbying
activities designed to foster collective bargaining negotiations
and contract administration, or to secure for the represented
employees advantages in wages, hours, and other conditions of
employment in addition to those secured through meeting and
conferring with the higher education employer.
A non-substantive revision of Section 3583.5 became effective January 1, 2002
(Stats.2001, c. 159 (S.B. 662), sec. 104.) subsequent to the filing of this charge. The revision
has no bearing on the Board's consideration of this case.
2

ORDER
The unfair practice charge in Case No. LA-CO-74-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neima joined in this Decision.

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
Telephone: ($10) 622-1016
Fax: ($10) 622-1027
September 17, 2001
Richard Malamud
Re: 	Richard Malamud v. California Faculty Association
Unfair Practice Charge No. LA-CO-74-H
DISMISSAL LETTER
Dear Mr. Malamud:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 4, 2001. Richard Malamud alleges that the California Faculty
Association violated the Higher Education Employer-Employee Relations Act (HEERA)' by
collecting non-chargeable agency fees.
I indicated to you in my attached letter dated August 22, 2001, 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 which 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 August 31, 2001, the charge would be
dismissed. I later extended this deadline to September 7, 2001.
On August 30, 2001, Charging Party filed a first amended charge. The amended charge raises
two allegations: (1) CFA does not have valid affiliation agreements with other unions; and (2)
the amount CFA collected is not a "fair share." These issues were subject to an arbitration
hearing, in which the arbitrator found in favor of CFA. In raising these issues, Charging Party
is arguing the arbitrator's decision is repugnant to the HEERA.
Generally, PERB will defer to an arbitrator's award in an agency fee case and refuse to issue a
complaint where (1) the arbitration proceedings were fair and regular; and (2) the arbitrator's
award is not clearly repugnant to the purposes of the Act. (ABC Federation of Teachers, AFT
Local 2317 (1998) PERB Decision No. 1295.) As there are no facts alleged in the charge
which contend the proceedings were unfair or procedurally defective, I will address only the
repugnanty allegation and will take each of Charging Party's allegations in turn.
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-74-H
September 17, 2001
Page 2
With regard to the affiliation agreements, Charging Party contends the union has not met its
burden of demonstrating that the agreements are valid. More specifically, Charging Party
contends that only affiliation agreements between local, state, and national associations are
valid. Additionally, Charging Party contends the affiliation fees do not provide benefits to
bargaining unit employees as allegedly required in Lehnert v. Ferris Faculty Association
(1991) 500 U.S. 507.
As noted in my August 22, 2001, letter, Charging Party misinterprets the definition of
"affiliate." In Cumero, the California Supreme Court addressed the issue of whether a local
teachers union could charge nonmembers expenses incurred through affiliation agreements
with state and national teachers unions. In finding that such affiliation expenses chargeable,
the court stated:
that section 3540.1, subdivision (d), by expanding the definition
of an employee organization to include persons authorized to act
on the organization's behalf, was intended to permit a local union
to act through an affiliate in discharging the union's
representational obligations under the EERA. Accordingly, for
the purposes of determining nonmembers' rights to object to uses
of their service fees under an organizational security
arrangement, service fee funds spent by an authorized affiliate in
support of the union's representational obligations must be treated
as if spent by the union itself. (emphasis added.)
(Id. at 604.) Charging Party asserts that Cumero stands for the proposition that only payments
to parent affiliates are acceptable in calculating chargeable expenses. However, Cumero
specifically states that funds spent by an authorized affiliate are chargeable expenses to the
extent they would be chargeable by the union itself. Moreover, policy reasons behind such
decisions further illustrate that affiliation expenses are not limited to parent organizations.
In Lehnert v. Ferris Faculty Association (1991) 500 U.S. 507, the U.S. Supreme Court
addressed the issue of affiliation fees where nonmembers asserted only expenses for activities
undertaken directly on behalf of the unit were chargeable. The Court stated:
[Wje have never interpreted that test to require a direct
relationship between the expense at issue and some tangible
benefit to the dissenters' bargaining unit.
We think that to require so close a connection would be to ignore
the unified-membership structure under which many unions,
including those here, operate. Under such arrangements,
membership in the local union constitutes membership in the
state and national parent organizations. (Citing Cumero)

LA-CO-74-H
September 17, 2001
Page 3
The essence of the affiliation relationship is the notion that the
parent will bring to bear its often considerable economic, political
and informational resources when the local is in need of them.
We therefore conclude that a local bargaining representative may
charge objecting employees for their pro rata share of the costs
associated with otherwise chargeable activities of its state and
national affiliates, even if those activities were not performed for
the direct benefit of the objecting employees' bargaining unit.
(Id. at 524.)
As noted above, neither the California nor U.S. Supreme Court have restricted affiliate fees to
parent organizations. While neither case dealt with affiliation agreements such as those
considered herein, the arbitrator is not required to find such affiliation agreements void simply
because they have not been addressed by the Supreme Courts. Moreover, Cumero specifically
allows unions to charge fees for authorized affiliates. As such, the arbitrator's decision to
allow the affiliate expenses is consistent with federal and state case law, and not repugnant to
the Act. Thus, this allegation fails to state a prima facie case and must be dismissed."
Charging Party also attacks the wisdom of such affiliation agreements. However, PERB is not
charged with addressing the wisdom of such affiliation agreements. PERB is charged with
ensuring that the only expenses charged to agency fee payers are those considered
"chargeable" expenses related to the representational functions of the union. As such, this
allegation fails to state a prima facie case.
Charging Party further contends that the expenses charged by the affiliate organizations are not
chargeable expenses. In the instant charge, the arbitrator found that CFA's affiliation expenses
were chargeable to the extent such expenses would have been chargeable by CFA themselves.
In so holding, the arbitrator considered Charging Party's arguments, as well as financial
statements and testimony by each of the affiliate organizations. In finding such expenses
chargeable, the arbitrator relied on Cumero and Lehnert, and held that such affiliation
agreements were consistent with both holding. Indeed, it appears that CFA has valid affiliation
agreements with each of the organizations and that membership in CFA automatically grants
membership in each of the affiliates. Neither the California courts, nor the federal court, have
held such affiliation agreements to be outside the rules set forth above, and as such, the
arbitrator's award is not repugnant to the Act. As such, this allegation must be dismissed.
Additionally, the definition of "affiliate" in The American Heritage Dictionary does
not support Charging Party's position. The dictionary defines an "affiliate" as "a person or
organization associated with another in a subordinate relationship."

LA-CO-74-H
September 17, 2001
Page 4
Charging Party also contends the calculation of the fair share fee is repugnant to the Act. More
specifically, Charging Party contends that if the arbitrator's decision stands, the union's
collections of fees and dues will exceed the amount of chargeable and non-chargeable
expenses by one million dollars. It is unclear how Charging Party came to this conclusion, nor
is it even clear how much agency fee payers are required to pay CFA for their representational
activities. The following is clear, however. Government Code section 3583.5 allows CFA to
an agency fee. That amount shall not exceed the dues that are payable by members of CFA
and shall cover the cost of negotiations, contract administration and other activities germane to
its functions as the exclusive representative. Based on its 1999 budget and the auditor's report,
CFA charged agency fee payers 73% of the amount charged to union members. After
analyzing the union's financial statements, chargeable and non-chargeable expenses, and
relevant case law, the arbitrator concluded the 73% was an accurate assessment of CFA's
chargeable expenses. Nothing in the charge demonstrates the arbitrator's findings were
inconsistent with federal or state case law, and as such, this allegation must be dismissed.
Right to Appeal
Pursuant to PERB Regulations," 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
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-74-H
September 17, 2001
Page 5
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	
B
Kristin L. Rosi
Regional Attorney
Attachment
cc: Ricardo Ochoa, Esq.
KLR

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER-B
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
Telephone: (510) 622-1016
Fax: (510) 622-1027
August 22, 2001
Richard Malamud
Re: 	Richard Malamud v. California Faculty Association
Unfair Practice Charge No. LA-CO-74-H
WARNING LETTER
Dear Mr. Malamud:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 4, 2001. Richard Malamud alleges that the California Faculty
Association violated the Higher Education Employer-Employee Relations Act (HEERA)' by
collecting non-chargeable agency fees.
Investigation of the charge revealed the following. Charging Party is a Professor at California
State University Dominguez Hills. As such, Charging Party is exclusively represented by the
California Faculty Association (CFA), however Charging Party is not a member of CFA. CFA
and the University are parties to a collective bargaining agreement which expired on June 30,
2001. With regard to agency fee, Government Code section 3583.5 provides in relevant part:
(a)(1) Notwithstanding any other provision of law, any employee
of the California State University or the University of California,
other than faculty of the University of California who are eligible
for membership in the Academic Senate, who is in a unit for
which an exclusive representative has been selected pursuant to
this chapter, shall be required, as a condition of continued
employment, either to join the recognized employee organization
or to pay the organization a fair share service fee. The amount of
the fee shall not exceed the dues that are payable by members of
the employee organization, and shall cover the cost of
negotiation, contract administration, and other activities of the
employee organization that are germane to its functions as the
exclusive bargaining representative. Upon notification to the
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-74-H
August 22, 2001
Page 2
employer by the exclusive representative, the amount of the fee
shall be deducted by the employer from the wages or salary of the
employee and paid to the employee organization.
In January 2000, CFA notified all nonmember faculty that it would begin to deduct agency fees
from their paycheck, pursuant to Government Code section 3583.5. This notice included the
auditor's report as well as an explanation as to how the expenses were calculated and
determined. Nonmembers were informed that their agency fee would be substantially less than
that of union members. Specifically, nonmembers were to be charged 73% of the membership
dues. Additionally, agency fee payers were informed they could appeal the accuracy of the
calculations through arbitration.
After receiving a number of objections, CFA contacted the American Arbitration Association
to schedule an arbitration hearing on the expenses charged to nonmembers. Arbitration
hearings were held on July 26 and 27, 2000 in Sacramento, on October 23, 2000 in San
Francisco, and on October 24 and 25, 2000, in Los Angeles. Present at the hearing were
representatives from CFA, and CFA's affiliate organizations."
During the hearing, CFA and its affiliates presented evidence regarding how fees were
calculated and what the fees were used for. Agency fee objectors present were each afforded
the opportunity to present their arguments. Charging Party specifically objected to the affiliate
fees and to the use of federal law in determining the merits of Charging Party's objections.
Specifically, Charging Party argued the arbitrator could not use the allegedly more expansive
federal precedent in determining whether an expense was chargeable or nonchargeable.
Additionally, Charging Party argued that fair share fee payers should not be charged under the
fiscal year 2000 budget, which was more than double the fiscal year 1999 budget.
On March 6, 2001, Arbitrator Louis Zigman issued his decision. With regard to Charging
Party's objections, the arbitrator stated in relevant part:
In view of the fact that I agree than [sic] one must consider
determinations and rulings of the U.S. Supreme Court along with
the Supreme Court of California, I did not find Objector
Malamud's contention that a consideration of federal law was
inappropriate. Furthermore, I did not find Objector Malamud's
contention as persuasive to the effect that federal law is more
expansive than state law, i.e. SB 645.
CFA has affiliation agreements with the California School Employees Association,
the California Teachers Association, the Service Employees International Union, the American
Federation of Labor-Congress of Industrial Organizations, the National Education Association,
and the American Association of University Professors. CFA members receive automatic
membership in each of these organizations. The financial support provided to these
organizations, by CFA, is specified in the auditor's report along with those expenses that are
chargeable and nonchargeable.

LA-CO-74-H
August 22, 2001
Page 3
Turning next to the objections raised by several Objectors as to
the large amount of additional funds which the employee
organizations, i.e. CFA, received as a result of the passage of SB
645, I did not find their arguments persuasive that this additional
funding by itself invalidated the calculations of agency fees. In
this regard, I note that the legislation did not impose limits/caps
on the organizations' expenditures, other than in terms of their
representational activities. As for example, the legislation did not
mandate that the organizations could only spend the same amount
of money as it did in 1999.
Quite frankly, the fact that employee organizations received a
large increase in funds did create the opportunity for them to have
a [sic] significantly expanded their budgets and to have expanded
their ability to increase expenditures in their representational
activities. The fact that a number of nonmembers objected to the
increased activities by these organizations does not constitute a
basis, by itself, for invalidating the calculations. As such, the
objections based on the fact that these organizations received a
rather large increase in funds are not deemed as a relevant
objection with regard to the propriety of the calculations and
determination of the categories of expenses.
With regard to affiliate fees, the arbitrator stated:
Turning next to Dr. Gordon's objection that the employee
organizations' determination of chargeable expenses should not
be decided by the employee organizations' own interpretation of
the court cases, I agree. The question however is whether these
organizations' interpretations are in accordance with the law then
they shall be upheld and vice versa.
In noting the various objections raised by a number of different
Objectors as to particular expenditures not being within the
definition of chargeable expenses under the statute and/or under
the court decisions, I considered the evidence proffered in the
hearing along with the definition in SB 645 and the applicable
court decisions. In this regard I also considered the specific items
raised by Dr. Biles which are enumerated above.
After having reconsidered the evidence following my review of
the Objector's challenges I did not find that the objections,

LA-CO-74-H
August 22, 2001
Page 4
challenges and arguments raised by the Objectors was [sic]
persuasive. From the evidence in this record, I find and conclude
that the expenditures as described by the employee organizations
were properly characterized as chargeable and/or nonchargeable.
As for example, while I noted that there were a number of
objections to the expenditures to affiliates, I also noted that the
majority of the Lehnert Court upheld such expenditures.
Finally, with regard to Charging Party's contention that California case law restricted agency
fee, the arbitrator stated:
Turning next to Objector Malamud's objection based on the
Gerawan decision, I did not find Malamud's arguments
persuasive inasmuch as the Gerawan decision does not deal with
the specific issues involved in this proceeding and Malamud's
arguments in the face of the aforementioned U.S. and California
Supreme Court decisions were simply not persuasive.
On May 4, 2001, Charging Party filed an amended charge, reiterating his arguments regarding
affiliate fees and California case law. Additionally, Charging Party reiterates his concern over
the budget and CFA's charge for calendars.
Based on the above provided facts, the charge as presently written, fails to state a prima facie
violation of the HEERA, for the reasons provided below.
Generally, PERB will defer to an arbitrator's award in an agency fee case and refuse to issue a
complaint where (1) the arbitration proceedings were fair and regular; and (2) the arbitrator's
award is not clearly repugnant to the purposes of the Act. (ABC Federation of Teachers. AFT
Local 2317 (1998) PERB Decision No. 1295.) As there are no facts alleged in the charge
which contend the proceedings were unfair or procedurally defective, I will address only the
repugnanty allegation and will take each of Charging Party's allegations in turn.
I. Calendars
Charging Party contends the calendars CFA printed and distributed to all bargaining unit
members should not be considered a chargeable expense. CFA includes in its list of
chargeable expenses, an $8800 expense for calendars. These calendars include the names and
phone numbers of CFA officers and staff members, as well as the dates of union meetings.
Additionally, the calendars contain information regarding those University officials who have
responsibility for contract administration. It is unclear whether Charging Party raised this
issue in front of the arbitrator, however it appears the arbitrator heard testimony regarding the
calendars and considered the calendar a chargeable expense to nonmembers.

LA-CO-74-H
August 22, 2001
Page 5
In Ellis v. Railway Clerks (1984) 466 U.S. 435, the United States Supreme Court held that
publications are the "union's primary means of communicating information concerning
collective bargaining, contract administration, and employees' rights." (Id. at 450.) As such,
to the extent these publications serve an important representational purpose, they constitute a
chargeable expense to nonmembers. Moreover, the Supreme Court has found that charging
nonmembers for such publications does not violate the First Amendment. (Lehnert v. Ferris
Faculty Association (1991) 500 U.S. 507.)
Charging Party objects to the $8800 expense for calendars distributed to all bargaining unit
members. However, the arbitrator's decision to consider such a publication a chargeable
expense is not repugnant to the Act, but instead follows federal and state case law. As the
calendar provides relevant collective bargaining information, such as the names of officers and
dates of representational meetings, the calendar's publication is germane to the union's
representational duty. As such, this allegation fails to state a prima facie violation of the
HEERA.
Even assuming the calendar is a nonchargeable expense, the allegation still fails to state a
prima facie violation of the HEERA. The U.S. Supreme Court has held that "absolute
precision" is not required in the calculation of agency fee. (Chicago Teachers Union v.
Hudson (1986) 475 U.S. 292, 307, fn. 18; ABC Federation of Teachers, AFT Local 2317, supra
at pg. 5.) In ABC Federation of Teachers, supra, the Board found that while the arbitrator
erred in failing to adjust the union's budget after an admitted error in employee expenses, such
an error represented one-tenth of one percent of the union's budget, and was insignificant, and
thus not repugnant to the Act.
Herein, assuming the calendar is a nonchargeable expense, the arbitrator's failure to adjust
CFA's chargeable expenses of $3,873, 172 by the calendar's cost of $8800, results in an error of
two-tenths of one percent (.23%), and as such is clearly insignificant. Thus, the arbitrator's
failure to adjust the chargeable expenses by $8800 is not repugnant to the Act.
II. Affiliate Fees
Charging Party asserts that none of the affiliates expenses should be chargeable as the
affiliation agreements are not between local, state or national chapters. In so asserting,
Charging Party relies on the California Supreme Court case Cumero v. Public Employment
Relations Board (1989) 49 Cal.3d 575. However, Charging Party misunderstands Cumero's
holding and fails to consider other relevant case law, including U.S. Supreme Court precedent.
In Cumero, the California Supreme Court addressed the issue of whether a local teachers union
could charge nonmembers expenses incurred through affiliation agreements with state and
national teachers unions. In finding that such affiliation expenses to be chargeable, the court
stated:
that section 3540.1, subdivision (d), by expanding the definition
of an employee organization to include persons authorized to act

LA-CO-74-H
August 22, 2001
Page 6
on the organization's behalf, was intended to permit a local union
to act through an affiliate in discharging the union's
representational obligations under the EERA. Accordingly, for
the purposes of determining nonmembers' rights to object to uses
of their service fees under an organizational security
arrangement, service fee funds spent by an authorized affiliate in
support of the union's representational obligations must be treated
as if spent by the union itself. (emphasis added.)
(Id. at 604.) Charging Party asserts that Cumero stands for the proposition that only payments
to local, state and national affiliation agreements are acceptable in calculating chargeable
expenses. However, Cumero holding specifically states that funds spent by an authorized
affiliate are chargeable expenses to the extent they would be chargeable by the union itself.
Moreover, policy reasons behind such decisions further illustrate that affiliation expenses are
not limited to parent organizations.
In Lehnert v. Ferris Faculty Association (1991) 500 U.S. 507, the U.S. Supreme Court
addressed the issue of affiliation fees where nonmembers asserted only expenses for activities
undertaken directly on behalf of the unit were chargeable. In so holding, the Court stated:
[W]e have never interpreted that test to require a direct
relationship between the expense at issue and some tangible
benefit to the dissenters' bargaining unit.
We think that to require so close a connection would be to ignore
the unified-membership structure under which many unions,
including those here, operate. Under such arrangements,
membership in the local union constitutes membership in the
state and national parent organizations. (Citing Cumero)
The essence of the affiliation relationship is the notion that the
parent will bring to bear its often considerable economic, political
and informational resources when the local is in need of them.
We therefore conclude that a local bargaining representative may
charge objecting employees for their pro rata share of the costs
associated with otherwise chargeable activities of its state and
national affiliates, even if those activities were not performed for
the direct benefit of the objecting employees' bargaining unit.
(Id. at 524.)

LA-CO-74-H
August 22, 2001
Page 7
In the instant charge, the arbitrator found that CFA's affiliation expenses were chargeable to
the extent such expenses would have been chargeable by CFA themselves. In so holding, the
arbitrator considered Charging Party's arguments, as well as financial statements and testimony
by each of the affiliate organizations. In finding such expenses chargeable, the arbitrator relied
on Cumero and Lehnert, and held that such affiliation agreements were consistent with both
holding. Indeed, it appears that CFA has valid affiliation agreements with each of the
organizations and that membership in CFA automatically grants membership in each of the
affiliates. Neither the California courts, nor the federal court, have held such affiliation
agreements to be outside the rules set forth above, and as such, the arbitrator's award is not
repugnant to the Act.
III. Use of federal case law
Charging Party also takes issue with the arbitrator's use of federal case law in analyzing the
objector's claims. Charging Party contends the arbitrator erroneously applied the U.S. Supreme
Court's holding in Lehnert in determining which expenses were chargeable. Charging Party
argues, instead, that the arbitrator should apply only Cumero, supra, in determining chargeable
expenses. Charging Party also contends, both in this charge and at arbitration, that California
agency fee case law is more restrictive than federal case law, and as such, only California law
should apply. In support of his contention that California case law is more restrictive,
Charging Party cites Gerawan Farming, Inc. v. William J. Lyons, Jr. (2000) 24 Cal.4th 468.
In Lehnert, decided three years after Cumero, the court fashioned a three prong test for
determining chargeable and nonchargeable expenses. First, such activities must be "germane"
to collective bargaining. Second, the expenditures must be "justified by the government's vital
policy interest in labor peace and avoiding free riders." Third, objecting employee can be
charged only for activities as to which compulsory financial support does not "significantly
add to the burdening of free speech that is inherent in the allowance of an agency or union
shop. (Id. at 528-529.) In so holding, the Supreme Court not only cites past federal cases
regarding agency fee, but cites with approval the California Supreme Court's holding in
Cumero.
Charging Party concludes somehow, that federal case law is more restrictive than California
case law on this issue. However, Charging Party fails to note the court's decision in Cumero
relies entirely on federal precedent, as does PERB's own case law on this subject. The court
does not find that Cumero supercedes federal case law, but instead fashions its holding to rest
squarely with existing federal case law at that time. Moreover, nothing in Cumero indicates its
holding is more restrictive than Lehnert. The court in Cumero applies the federal test for
affiliate fees, political expenses, and organizing and recruiting expenses. (Id. at 600-604.)
Indeed, Cumero relies heavily on Ellis v. Railway Clerks, supra, and Abood, supra in
determining each of the tests it fashions. (Id. at 600, 605.)

LA-CO-74-H
August 22, 2001
Page 8
It is unclear why Charging Party believes Gerawan Farming, Inc. is controlling or even
applicable to agency fee cases. In Gerawan Farming. Inc., a plum producer brought an action
against the California Secretary of Food and Agriculture challenging the state's plum
marketing program. More specifically, plum producers argued that their First Amendment
rights were violated when they were compelled to fund a state plum marketing. Although
Gerawan Farming, Inc. cites Abood v. Detroit Board of Education (1977) 431 U.S. 209, a First
Amendment case regarding agency fee, such a fact does not render Gerawan Farming, Inc.
applicable to agency fee cases. In Abood, the United State Supreme Court held that to the
extent an agency fee arrangement is used to finance union expenditures for the purpose of
collective bargaining, contract administration and grievance adjustment, it is constitutionally
valid. (Id. at 225-226.) The Court's holding is neither modified nor repealed by Gerawan
Farming. Inc., and as such, Gerawan Farming, Inc. is inapplicable to agency fee cases.
Moreover, Gerawan Farming, Inc. does not modify Cumero's holding or the test for
determining chargeable expenses in agency fee cases.
As the arbitrator applied current federal and state case law to the expenses charged, and as the
Charging Party fails to identify specific expenses which should not be allowed under his
restrictive case law theory, the arbitrator's decision is not repugnant to the Act.
IV. "Fair Share" Definition
Charging Party makes several arguments regarding the validity of the calculations made by
CFA. Specifically, Charging Party objects to CFA's increased fiscal year 2000 budget,
questions the definition of "fair share," and argues Government Code section 3583.5 is
unconstitutional. Each of these contentions will be addressed in turn.
With regard to the year 2000 budget, Charging Party argues that nonmembers should not be
required to pay an agency fee based on a budget that includes their money. In the years prior
to the enactment of Government Code section 3583.5, CFA's ability to collect money from
agency fee payers was extremely limited. As such, CFA's budget was based primarily on the
dues of union members, although such money benefited members and nonmembers alike.
After the passage of SB 645, CFA began collecting agency fee from nonmembers. The
increased fees obviously increased CFA's revenue, allowing them to spend more money, a
majority of which went to representation. Charging Party asserts that nonmember fair share
fees should not be based on a percentage of the new budget, but instead should be based on
prior years budgets. Charging Party fails to cite, however, any precedent for such a
conclusion. Indeed, the arbitrator addressed this contention in his decision, as noted on page 3,
above. As the arbitrator's decision on this issue is consistent with statutory and case law, his
decision is not repugnant to the Act.
Charging Party also asserts the definition of "fair share" should have been interpreted
differently by the arbitrator. Charging Party contends:
Since we are not members, I believe that the fair share can only
be calculated at the end of each year based on the actual

LA-CO-74-H
August 22, 2001
Page 9
expenditure from member fees only. Thus, any budget that
continues the .95% fee for union member dues, for which
reimbursement is sought as fair share, is not, by definition fair
share. Thus, I object to all expenditures in the budget by the CFA
that exceed 0.95% times the members (dues paid by members) as
that is the only possible calculation of fair share.
Government Code section 3583.5 provides that a fair share fee or agency fee shall cover the
cost of negotiation, contract administration, and other activities germane to its functions as the
exclusive representative. The statute does not state the fee must be calculated after spending
member fees or in any other way hypothesized by the Charging Party." Moreover, neither the
Senate bill nor the statute limit the amount of money a union may spend on representational
activities. As the arbitrator's decision is consistent with California case law, the allegation
must be dismissed.
Finally, Charging Party contends Government Code section 3583.5 is unconstitutional. The
constitutionality of agency fee provisions has been addressed and upheld in both federal and
state case law. (See, Cumero, supra at 605-606; Abood, supra at 225-226.) As such, the
arbitrator's decision regarding this issue is not repugnant to the Act.
Charging Party seems also to argue that there is a difference between an "agency fee"
and a "fair share fee." However, PERB Regulation 32990 and above mentioned case law
clearly demonstrate the terms are interchangeable.
* Charging Party also cites to CFA's dissolution clause, asking what would happen to
dues if CFA were decertified as the exclusive representative. However, any future
decertification of the union is speculative at best, and would not require the dissolution of the
corporation itself. Thus, it is unclear how such an argument is relevant to the collection of
agency fees while CFA is, in fact, the exclusive representative.

LA-CO-74-H
August 22, 2001
Page 10
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 that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared 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
corner 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 August 31, 2001, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR