Milpitas Unified School District (PERB 0462E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FRANCES CHAPMAN, ET AL . ,
Charging Parties, 	Case No. SF-CE-933
v. 	PERB Decision No. 462
MILPITAS UNIFIED SCHOOL DISTRICT, 	December 13, 1984
Respondent.
Appearances : 	David T. Bryant, Attorney for Frances Chapman, et
al.; Littler, Mendelson, Fastiff & Tichy by Richard J. Loftus,
Jr. and Janice M. Jablonski for the Milpitas Unified School
District.
Before Hesse, Chairperson; Jaeger and Morgenstern, Members*
DECISION
This case is before the Public Employment Relations Board
on exceptions filed by the Charging Parties to the Board
agent's dismissal, attached hereto, of their unfair practice
charge alleging that the Milpitas Unified School District
violated section 3543.5(a) of the Educational Employment
Relations Act (Government Code section 3540 et seq. ) .
We have reviewed the Board agent's dismissal and, finding
it free from prejudicel error, adopt it as the decision of the
Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-933 is
DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD
*Members Burt and Tovar did not participate in this Decision.
STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
FRANCES 	CHAPMAN, 	ET AL. ,
Charging 	Parties,
v.
MILPITAS 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	SF-CE-933
PERB 	Decision No. 	462
December 	13, 	1984
Appearances: 	David 	T. 	Bryant, 	Attorney 	for 	Frances 	Chapman, 	et
al.; 	Littler, 	Mendelson, 	Fastiff 	& 	Tichy 	by Richard 	J. 	Loftus,
Jr. 	and 	Janice 	M. 	Jablonski 	for 	the 	Milpitas 	Unified 	School
District.
Before 	Hesse, 	Chairperson; 	Jaeger 	and 	Morgenstern, 	Members*
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
on 	exceptions 	filed 	by 	the 	Charging 	Parties 	to 	the 	Board
agent's 	dismissal, 	attached 	hereto, 	of 	their 	unfair 	practice
charge 	alleging 	that 	the 	Milpitas 	Unified 	School 	District
violated 	section 	3543.S(a) 	of 	the 	Educational 	Employment
Relations Act 	(Government 	Code 	section 	3540 	et 	seq.).
we 	have 	reviewed 	the 	Board 	agent's 	dismissal 	and, 	finding
it 	free 	from 	prejudical 	error, 	adopt 	it 	as 	the 	decision 	of 	the
Board 	itself.
ORDER
The 	unfair 	practice 	charge 	in 	Case 	No. 	SF-CE-933 	is
DISMISSED 	WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD
*Members 	Burt 	and 	Tovar 	did 	not 	participate 	in 	this 	Decision.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Stree
Sacramento, California 95814
(916) 322-3088
September 18, 1984
David T. Bryant, Esq.
National Right to Work
Legal Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22160
Richard Loftus, Esq.
Littler, Mendelson, Fastiff & Tichy
111 Almaden Blvd. , Suite 400
San Jose, CA 95113-2093
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE
CHARGE; 	Chapman et al. v. Milpitas USD, SF-CE-933
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation
section 32620 (5), a complaint will not be issued in the
above-referenced case and the pending charge is hereby
dismissed because it fails to allege facts sufficient to state
a prima facie violation of the Educational Employment Relations
Act (EERA) .1/
The charge alleges that the District violated the EERA by
entering into a collective bargaining agreement with the
Association which provided for automatic deduction of agency
fees. The agency fee clause in question calls for collection
of nonmember service fees in an amount not exceeding the amount.
of initiation fee, dues and general assessment. These
/ References to the EERA are to Government Code sections
3540 et seq. All section references are to the EERA unless
otherwise indicated. PERB Regulations ("Board Rules") are
codified at California Administrative Code, Title 8.
2/The organizational security provision in the parties'
collective bargaining agreement states, in relevant part:
20.4 	Each unit member covered by this agreement who is a
member of the Association at the time this agreement
STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 	18th Street
Sacramento, California 95814
(916) 322-3088
September 	18, 	1984
David 	T. 	Bryant, 	Esq.
National 	Right 	to Work
Legal 	Defense 	Foundation
8001 	Braddock 	Road, 	Suite 	600
Springfield, 	VA 	22160
Richard 	Loftus, 	Esq.
Littler, 	Mendelson, 	Fastiff 	& 	Tichy
111 Almaden 	Blvd., 	Suite 	400
San 	Jose, 	CA 	95113-2093
Re: 	REFUSAL 	TO 	ISSUE 	COMPLAINT AND 	DISMISSAL OF 	UNFAIR PRACTICE
CHARGE; 	Chapman 	et 	al. 	v. 	Milpitas 	USD, 	SF-CE-933
Dear 	Parties:
Pursuant 	to 	Public 	Employment 	Relations 	Board 	(PERB) 	Regulation
section 	32620(5), 	a 	complaint 	will 	not 	be 	issued 	in 	the
above-referenced 	case 	and 	the 	pending 	charge 	is 	hereby
dismissed 	because 	it 	fails 	to 	allege 	facts 	sufficient 	to 	state
a 	prima 	facie 	violation 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA).1/
The 	charge 	alleges 	that 	the 	District 	violated 	the 	EERA 	by
entering 	into 	a 	collective 	bargaining 	agreement 	with 	the
Association 	which 	provided 	for 	automatic 	deduction 	of 	agency
fees. 	The 	agency 	fee 	clause 	in question 	calls 	for 	collection
of 	nonmember 	service 	fees 	in 	an 	amount 	not 	exceeding 	the 	amount
2	of 	initiation 	fee, 	dues 	and 	general 	assessment. 	/ 	These
~·
1/	1 References 	to 	the 	BERA 	are 	to 	Government Code 	sections
3540 	et 	seq. 	All 	section 	references 	are 	to 	the 	EERA 	unless
otherwise 	indicated. 	PERB 	Regulations 	("Board 	Rules"} 	are
codified 	at 	California Administrative 	Code, 	Title 	8.
2/The 	organizational 	security 	provision 	in 	the 	parties'
collective 	bargaining 	agreement 	states, 	in 	relevant 	part:
20.4 	Each 	unit 	member 	covered 	by 	this 	agreement 	who 	is 	a
member 	of 	the Association 	at 	the 	time 	this 	agreement

David Bryant	David 	Bryant
Richard Loftus	Richard 	Loftus
September 18, 1984	September 	18, 	1984
Page 2	Page 	2
fees, 	it 	is 	alleged, 	are 	passed 	on 	by 	the 	employer 	to 	the
Association, 	which 	allegedly 	spends 	them 	for 	purposes 	to 	which
the 	chargj_ng 	parties 	object.
fees, it is alleged, are passed on by the employer to the
Association, which allegedly spends them for purposes to which
the charging parties object.
Discussion
Any argument that the District conduct described above violated
the Act must be rejected for the following reasons:
1 . 	The validity of compulsory payments to labor organization
has long been established. (Railway Employees Department v.
Hanson (1956) 351 U.s. 225 [38 LRRM 2099]; International
Association of Machinists v. Street (1960) 367 U.S. 740
T48 LRRM 2345.; Abood v. Detroit Board of Education (1977) 431
is executed shall maintain his/her membership in
the Association for the term of this agreement.
Discussion
Any 	argument 	that 	the 	District 	conduct 	described 	above 	violated
the 	Act 	must 	be 	rejected 	for 	the 	following 	reasons:
l. 	The 	validity of 	compulsory payments 	to 	labor 	organization
has 	long been 	established. 	(Railway Employees 	Department 	v.
Hanson 	(1956) 	351 	U.S. 	225 	[38 	LRRM 	2099]: 	International
AssocJ.ation 	of 	Machinists 	v. 	Street 	(1960) 	367 	U.S. 	740
T49 	LR.AA 	2345.I: 	Abood 	v. 	Detroit 	Board 	of 	Education 	(1977) 	431
is 	executed 	shall 	maintain his/her 	membership 	in
the 	Association 	for 	the 	term 	of 	this 	agreement.
20.4.1 	Bargaining 	unit 	members 	shall, 	within 	thirty 	(30)
days 	of 	the .. effective 	date 	of 	this 	agreement 	or
within 	thirty 	(30) 	days 	of 	their 	employment 	date,
whichever 	is 	later, 	either 	join 	the 	Association by
executing 	a 	payroll 	deduction 	authorization 	form
for 	payment 	of 	dues 	or 	pay a 	service 	fee 	equal 	to
dues, 	initiation 	fees 	and 	general 	assessment
(hereinafter 	"service 	fees"), 	by executing a
service 	fee 	deduction 	authorization 	form 	for 	the
payment 	of 	such 	fee.
Bargaining unit members shall, within thirty (30)
days of the effective date of this agreement or
within thirty (30) days of their employment date,
whichever is later, either join the Association by
executing a payroll deduction authorization form
for payment of dues or pay a service fee equal to
dues, initiation fees and general assessment
(hereinafter "service fees"), by executing a
service fee deduction authorization form for the
payment of such fee.
20.4.1.1 Nothing contained herein shall prohibit
a
service fees directly to the Association.
20.4.1.2 	If a unit member withdraws a dues or
service fee authorization and/or fails
to pay dues/service fees directly to the
Association, the District shall, upon
notification from the Association and
notice to the unit member, deduct from
the wages of said unit member, and pay
to the Association, all dues/service
fees owed to the Association as provided
in accordance with Education Code
Section 45061.
20.4.1.l 	Nothing 	contained herein 	shall 	prohibit
a unit member from paying dues or 	dues 	or
service 	fees 	directly 	to 	the 	Association.
unj_ t 	member 	from 	paying
20.4.1.2 	If 	a 	unit 	member 	withdraws 	a 	dues 	or
service 	fee 	authorization 	and/or 	fails
to 	pay dues/servj_ce 	fees 	directly 	to 	the
Association, 	the 	District 	shall, 	upon
notification 	from 	the 	Association 	and
notice 	to 	the 	unit 	member, 	deduct 	from
the 	wages 	of 	said 	unit 	member, 	and 	pay
to 	the 	Association, 	all 	dues/service
fees 	owed 	to 	the 	Association 	as 	provided
in 	accordance 	with 	Education Code
Section 	45061.

Davj_d 	Bryant
Richard 	Loftus
September 	18, 	1984
Page 	3
U.S. 	209 	r95 	LRRM 	2411]: 	Ellis, 	et 	al. 	v. 	Brotherhood 	of
Railway, 	Airline 	and 	Steamship Clerks 	(4/25/84) 	U.S.
f80 	L.Ed.2d 	428, 	52 	U.S.L.W. 	4499].) 	Consistent 	with 	thi_s_
principle, 	the 	EERA 	specifically 	permits 	collective 	bargaining
agreements 	to 	include 	agency 	fee 	provisions 	requiring 	employees
e5.ther 	to 	join 	the 	exclusive 	representative, 	or 	pay a 	service
fee 	in 	an 	amount 	not 	to 	exceed 	the 	standard 	initiation 	fee,
periodic 	dues, 	and 	general 	assessments 	(sections 	3546 	and
3540.1(2)).
2. 	Employee 	organizations 	may 	violate 	the 	EERA when 	they 	spend
objecting 	nonmembers' 	agency 	fees 	on 	activities 	which 	are
unrelated 	to 	the 	exclusive 	representative's 	representational
role. 	(King City Union 	High 	School 	District 	(3/3/82) 	PERB
Decision No. 	197: 	Abood, 	supra.) 	The 	employer, 	however, 	cannot
be held 	responsible 	for 	the 	expenditures 	of 	the 	exclusive
representative. 	Rather, 	agency 	fees, 	like 	membership dues, 	are
a 	matter 	of 	internal 	organizational 	policy 	and 	concern:
The 	employer's 	interest 	in 	the 	subject 	is
limited 	to 	its 	willingness 	to 	impose 	on 	its
non-union 	employees 	an 	agency 	fee
requirement 	and, 	if 	so, 	whether 	an
authorizat:i.on 	election 	[Gov. 	Code 	section
3546] 	is 	desired. 	(Fresno 	Unified 	School
District 	(4/30/82) 	PERB 	Decision No. 	208, 	at
p. 	21. )
Indeed, 	the 	Board has held 	an 	employer's 	insistence 	on 	a 	"cap"
on 	agency 	fees 	constitutes 	an 	unlawful 	bargaining proposal.
(Fresno, 	supra, 	at 	pp. 	21-22.)
3. 	The 	Charging 	Party 	finds 	particular 	fault 	in 	the 	employer's
implementation of 	automatic 	deduction of 	agency 	fees. 	Payroll
deductions 	of 	agency 	fees, 	however, 	may be 	lawfully made 	···
w:i.thout 	the 	permj_ssion 	of 	employees 	who 	are 	obligated 	under 	a
collective 	bargaining 	agreement 	to 	pay 	such 	fees. 	The 	Board
has 	observed 	that 	under 	the 	EERA,
Prior 	approval 	of 	the 	payer 	[for 	an 	agency
fee 	deduction] 	is 	not 	only 	unnecessary but
inconsistent 	with 	the 	involuntary nature 	of
such 	fees. 	Withholding 	approval 	would
enable 	the 	nonmember 	to 	circumvent 	the
legislative 	purpose 	and 	negotiated
agreement. 	To 	provide 	involuntary payors

Dav:i.d 	Bryant
Richard 	Loftus
September 	18, 	1984
Page 	4-
with 	this 	option 	would 	inevitably 	lead 	to
unduly burdensome 	collection problems 	and
ultimately 	to 	the 	wholesale 	enforcement 	of
the 	employment 	termination 	provls:i.ons 	of
section 3540.l(i), 	a 	consequence 	that 	would
be 	detrimental 	to 	the 	educational 	system 	and
to 	peaceful 	labor 	relations 	in 	the
districts. 	(King 	City, 	supra, 	p. 	25.)
Furthermore, 	the 	Education Code 	expressly 	provides 	that 	school
district 	governing boards 	"shall, 	with 	or 	without 	charge,
reduce 	the 	order 	for 	the 	payment 	of 	service 	fees 	to 	the
certified 	or 	recognized 	organization 	as 	required 	by an
organizational 	security arrangement 	between 	the 	exclusive
representative 	and 	a 	public 	school 	employer 	•••• "
(Education 	Code 	section 	45061.) 	Accordingly, 	the 	automatic
deduction 	clause 	in 	the 	parties' 	agreement 	does 	not 	contribute
toward 	an 	unfair 	practice.
• For 	the 	forego:i.ng 	reasons, 	no 	complaint 	will 	issue 	and 	the.
charge 	is 	hereby DISMISSED.3/
Pursuant 	to 	Board 	Rule 	32635 	(California 	Administrative Code,
Title 	8, 	part 	III), 	you may appeal 	the 	refusal 	to 	issue 	a
complaint 	(dismissal) 	to 	the 	Board 	itself.
Right 	to 	Appeal
-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 	(Board
Rule 	32635(a)). 	To be 	timely 	filed, 	the 	original 	and 	five 	(5)
copies 	of 	such 	appeal 	must be 	actually 	received by 	the 	Board
itself before 	the 	close 	of 	business 	(5:00 	p.m.) 	on Tuesday,
3/Th.e 	Charging 	Party appears 	to 	argue 	that 	the 	District
is 	a 	necessary party 	to 	the 	formulation 	of 	a 	meaningful
remedial 	order 	against 	the 	Association. 	Even 	if 	this 	is 	true,
however, 	it 	does 	not 	mean 	that 	the 	District has 	committed 	an
unfair 	practice. 	Further, 	adequate 	procedural 	mechanisms 	are
available 	to 	protect 	the 	charging 	party's 	interest. 	See, 	e.g.,
Board 	Rule 	32164(d)(l).

David 	Bryant
Richard 	Loftus
September 	18, 	1984
Page 	5
October 	9, 	1984, 	or 	sent 	by 	telegraph 	or 	certified United 	States
ma:i.1 	postmarked 	not 	later 	than 	October 	9, 	1984, 	(Board 	Rule
32135). 	The 	Board's 	address 	is:
Public Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
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 	(5)
cop:i.es 	of 	a 	statement 	in 	opposition within 	twenty 	( 20) 	calendar
days 	following 	the 	date 	of 	service 	of 	the 	appeal 	(Board
Rule 	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 	the 	document 	filed 	with 	the 	Board 	itself
(see 	Board 	Rule 	32140 	for 	the 	required 	contents 	and 	a 	sample
form). 	The 	a.ocument 	will 	be 	considered 	properly 	"served" 	when
personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail
postage 	pa:i.d 	and 	properly 	addressed.
Extension 	of 	Ti.me
A 	request 	for 	an 	extension 	of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	j_tself 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 	expiratlon 	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 	(Board 	Rule 	32132).

David 	Bryant
Rj_chard 	Loftus
September 	18, 	1984
Page 	6
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly yours,
DENNIS M. 	SULLIVAN
General 	Counsel
Byrst/4vJ 	FREY SLOAN
Assistant 	General 	Counsel
8764b