Washington Unified School District (PERB 0549E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARY MCFARLAND, 	ROSA ETSON,
JOAN HAW, 	LUCINDA MAESTAS 	AND
ROSEMARY 	POMMELS,
Charging 	Parties,
v.
WASHINGTON UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	S-CE-334
PERB Decision No. 	549
December 	16, 	1985
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Appearance; 	Pacific 	Legal 	Foundation by Anthony T. 	Caso 	for
Mary McFarland, 	et al.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	Charging parties 	appeal 	the attached
dismissal 	issued by an administrative 	law 	judge 	(ALJ) 	of 	the
Public Employment 	Relations 	Board 	(PERB or 	Board). 	In 	the
unfair 	practice 	charge, 	charging parties 	alleged 	that 	the
Washington 	Unified 	School 	District 	(District) 	violated 	sections
3543.5(a), 	3540.l(d) and 	(i)(2), 	3543.2, and 3546 of the
Educational 	Employment 	Relations 	Act 	(EERA or 	Act)1 by
executing 	a 	contract 	that 	recognizes 	more 	than one 	exclusive
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.
Section 3543.5 provides, 	in relevant part:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
)
________ )

representative 	and 	requires 	all 	members 	of 	the 	bargaining 	unit
to pay a 	representational 	fee 	equal 	to 	the 	combined dues 	of 	the
Washington Education Association 	(WEA), 	California Teachers
(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.
Section 3540.1 provides, 	in relevant part:
As 	used 	in this 	chapter:
(d) 	"Employee organization" means any
organization which 	includes 	employees 	of 	a
public 	school 	employer 	and which has 	as 	one
of 	its 	primary purposes 	representing 	such
employees 	in their 	relations 	with 	that public
school 	employer. 	"Employee organization"
shall 	also 	include 	any person 	such an
organization authorizes 	to act 	on 	its 	behalf.
(i) 	"Organizational security" means 	either:
(2) 	An arrangement 	that requires 	an employee,
as 	a 	condition of 	continued 	employment,
either 	to 	join 	the 	recognized 	or 	certified
employee organization, 	or 	to pay the
organization a service 	fee 	in an amount 	not
to 	exceed 	the 	standard 	initiation 	fee,
periodic dues, 	and general assessments 	of
such organization 	for 	the 	duration 	of 	the
agreement, 	or a period of 	three years 	from
the 	effective date of 	such agreement,
whichever 	comes 	first.
Section 3543.2 provides, 	in relevant part, 	the 	"scope of
representation 	shall 	be 	limited 	to matters 	relating 	to wages,
hours 	of employment, 	and other 	terms 	and conditions 	of
employment."
Section 	3546 	states 	how 	organizational 	security provisions
may be 	established 	and 	rescinded.
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Association 	(CTA), 	and National Education Association 	(NEA).
Charging parties 	further 	alleged 	that 	this 	fee 	exceeds 	the 	cost
of 	collective 	bargaining 	and 	contract 	administration 	incurred by
WEA, 	asserting 	that 	significant portions 	of 	this 	fee will be
used 	to 	finance 	political, 	social 	and 	ideological 	activities 	as
well 	as 	other 	activities 	with which 	the 	charging parties
disagree 	and 	from which 	they will 	derive 	no benefits.
On appeal, 	charging parties 	argue 	that 	the unfair practice
charge 	and 	complaint 	were 	improperly dismissed 	because 	the
allegations 	state 	a prima 	facie 	violation of 	the 	EERA and 	the
ALJ 	lacks 	the authority to dismiss 	the 	complaint 	sua 	sponte.
For 	the reasons 	set 	forth below, 	we affirm the ALJ's 	dismissal
of 	the unfair practice charge and complaint. 	We do, 	however,
find 	it necessary to discuss 	the ALJ's 	authority to dismiss 	the
complaint 	on his 	own motion.
DISCUSSION
On March 14, 	1985, 	and subsequent to the 	issuance of the
complaint, 	the ALJ 	issued a 	"warning letter," 	informing 	the
charging parties 	that 	recent 	PERB decisions 	hold 	that 	the
employer 	is 	not 	the proper 	respondent 	for 	an allegation 	that
excessive 	fees 	are 	charged under an agency 	fee agreement. 	Thus,
the allegations 	did 	not 	state 	a prima 	facie 	violation of 	the
EERA. 	Unless 	the 	charging parties 	could 	show cause why the
charge 	should not be dismissed, 	the ALJ 	indicated 	the 	charge 	and
complaint 	would 	be 	dismissed. 	Charging parties 	asserted 	two
reasons 	why 	the 	charge 	and 	complaint 	should 	not 	be 	dismissed:
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(1) 	no grounds 	exist 	for 	the agency to dismiss 	the charge and
complaint 	sua sponte; 	and 	(2) 	the ALJ's 	rationale 	for dismissing
the charge was 	underinclusive and 	incorrect. 	After 	a review of
the 	charging parties' 	assertions, 	the ALJ 	concluded 	that 	the
charge did not 	state 	a prima 	facie 	violation 	of 	the 	EERA and he
dismissed 	the 	unfair practice 	charge 	and 	companion 	complaint.
On appeal, 	the 	charging parties 	reassert 	their previous
arguments 	that 	the ALJ 	lacks 	authority to dismiss 	a 	complaint
sua sponte, 	the ALJ's 	rationale 	is 	underinclusive and incorrect,
and 	that 	the 	charges 	state a prima 	facie violation of 	the 	EERA.
They 	further 	argue 	that 	the ALJ's 	findings 	violate 	the 	rights
guaranteed by 	the 	Fourteenth Amendment 	of 	the 	United 	States
Constitution.2
Prima 	Facie Violation
The 	allegations 	did not 	state 	a prima 	facie 	violation of 	the
EERA. 	Contrary to charging parties' 	assertion, 	the District did
not 	recognize 	three 	employee 	organizations 	as 	the 	exclusive
representative. 	The 	District 	recognized only one 	exclusive
representative 	— WEA. 	The 	claim 	that 	the 	employer 	recognized
more 	than one 	exclusive 	representative 	is 	based wholly on the
2 The 	Fourteenth Amendment states, 	in pertinent part:
[N]or 	shall 	any State deprive any person of
life, 	liberty, 	or property, 	without due
process of law. 	. 	. 	.
[U.S. Const. amend. 	XIV, 	sec. 	1.]
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language of the contract. 	However, 	we take official 	notice of
Leek 	v. 	Washington Unified 	School 	District 	(1981) 	124 Cal.App.3d
43, 	which 	involved 	the same 	school district 	and 	the precise
contract 	language before us. 	In that case, 	the court stated, 	at
page 46:
WEA is 	the 	local 	affiliate 	of 	California
Teachers' 	Association 	(CTA) 	and the National
Education 	Association 	(NEA) 	. . . .
We have 	found 	in 	Fresno 	Unified 	School 	District 	(1982) 	PERB
Decision No. 	208 	that 	the mere affiliation of the 	local
organization with 	CTA was 	insufficient 	to make 	CTA the 	exclusive
representative and, 	hence, 	it was not 	liable 	for a violation of
the 	EERA. 	See also Link v. 	California 	Teachers Association and
National 	Education Association 	(1981) 	PERB Order No. 	Ad-123.
Thus, 	the allegation that the District, 	through the contract
language alone, 	has 	recognized more 	than one exclusive
representative, 	is 	resolved as 	a matter of law.
Assuming 	all 	the 	factual 	allegations 	asserted by 	the
charging parties 	are 	true, 	PERB decisions 	demonstrate 	that 	the
public school 	employer 	is 	not 	the 	appropriate 	respondent 	in 	this
case.3 Although 	the ALJ 	incorrectly 	cited 	Fresno, 	supra, 	for
3To 	the 	extent 	Link 	v. 	Antioch 	Unified 	School 	District
et al. 	(1985) 	PERB Order No. 	IR-47 is inconsistent, 	we
disapprove 	that 	case. 	In Link, 	complaints 	were 	issued against
the associations 	and the districts 	on February 4, 	1982. 	On
December 	31, 	1984, 	charging parties sought 	injunctive relief
requiring 	the 	CTA/NEA affiliates 	or 	the 	employers 	to 	escrow 	the
entire 	amount 	of 	agency 	fees 	collected 	from the 	charging
parties. 	In deciding 	if 	the 	first 	test 	for 	injunctive 	relief
had been met 	(whether 	there 	was 	reasonable 	cause 	to believe
that an unfair practice had been committed), 	the Board stated:
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holding 	that 	"a public school 	employer 	cannot be held 	liable 	for
unlawful 	expenditures 	made by 	the 	exclusive 	representative," 	he
did 	cite 	the 	two PERB 	cases 	that 	directly make 	this 	specific
finding: 	San Jose Unified 	School 	District 	(1984) 	PERB Decision
No. 	463 	and Milpitas 	Unified School 	District 	(1984) 	PERB Decision
No. 	462. 	The allegations 	concern the exclusive representative's
conduct. 	While 	the obligation to pay an agency 	fee 	arises 	by
virtue of a negotiated agency 	fee provision 	in the contract, 	the
Board held in Fresno, 	supra, 	that the amount of the 	fee 	is not
negotiable. 	Thus, 	the obligation to pay the 	specified amount
does 	not 	arise by virtue 	of 	the 	collective bargaining agreement,
but 	rather, 	the amount 	is 	determined by the exclusive
representative 	independently of 	that document. 	Therefore, 	we
reached 	the 	conclusion 	in 	San Jose 	Unified 	School 	District,
supra, 	and Milpitas 	Unified School 	District, 	supra, 	that 	the
employer 	is 	not 	the 	appropriate 	respondent 	for 	claims 	of
excessive agency fees. 	As 	a matter of 	law, 	the charging
Accordingly, 	there 	is 	reasonable cause 	to
believe 	that 	the 	Districts 	and Associations
unlawfully 	interfered 	with 	their 	statutory
right 	not 	to participate 	in 	organizational
activity 	in 	violation 	of 	section 	3543.5(a)
and 3543.6(a) and 	(b), 	respectively.
(Antioch, 	supra, 	at p. 	6.)
The 	Board 	in 	IR-47 	found 	that 	injunctive 	relief was 	not 	"just
and proper," 	and denied 	the charging parties' 	request 	for
injunctive relief. 	The 	issue of an employer's 	liability 	in
agency 	fee cases 	was 	not 	directly before 	the 	Board 	in 	that
decision. 	Indeed, 	the 	issue of the employers' 	liability in this
case was 	resolved on April 	1, 	1985, 	when the unfair practice
charges 	against 	the 	employers 	were dismissed.
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parties' 	allegations 	do not 	state a prima 	facie 	violation of 	the
EERA.
Further, 	in upholding 	the ALJ's 	conclusions, 	we 	find his
rationale 	was 	neither 	underinclusive 	nor 	incorrect.
Authority 	to 	Dismiss 	Complaint
The 	issue 	of 	whether 	an ALJ has 	the 	authority to dismiss 	a
complaint 	sua 	sponte has 	not 	been previously 	addressed by 	this
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Board. 	It 	is clear, 	however, 	that Board agents have the
authority to dismiss 	a charge 	that 	fails 	to establish a prima
facie 	case. 	The 	Legislature 	granted 	the Board broad powers 	with
regard 	to processing 	unfair 	practice 	charges,4 including 	the
4Section 3541.3 provides, 	in relevant part:
The board 	shall have 	all 	the 	following
powers 	and duties:
(g) 	To adopt, 	pursuant to Chapter 4.5
(commencing with 	Section 11371) 	of 	Part 	1 	of
Division 3 of Title 2, 	rules 	and regulations
to 	carry out 	the provisions 	and 	effectuate
the purposes 	and policies 	of 	this 	chapter.
(i) 	To investigate unfair practice charges
or alleged violations 	of 	this 	chapter, 	and
take 	such 	action 	and make 	such
determinations 	in respect of such charges 	or
alleged 	violations 	as 	the board deems
necessary to effectuate 	the policies 	of 	this
chapter.
(n) 	To take such other action as 	the board
deems 	necessary to discharge 	its 	powers 	and
duties 	and 	otherwise 	to 	effectuate 	the
purposes 	of 	this 	chapter.
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duty to determine 	if the charges 	are 	justified.5
Under 	this 	authority, 	the 	Board promulgated 	regulations
empowering 	its 	agents 	to determine 	if 	a prima 	facie 	case has
been established and, 	if so, 	how to 	proceed.6 There 	is 	no
5Section 	3541.5 provides, 	in relevant part:
The 	initial 	determination as 	to whether 	the
charges 	of 	unfair practices 	are 	justified,
and, 	if so, 	what remedy is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction of 	the board. 	Procedures 	for
investigating, 	hearing, 	and deciding these
cases 	shall 	be 	devised 	and promulgated by
the board. 	. 	. 	.
6PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq.
PERB Regulation 32620 provides, 	in relevant part:
(b) 	The powers 	and duties 	of such Board
agent 	shall be to:
(5) 	Dismiss 	the charge or any part thereof
as provided 	in Section 32630 	if 	it 	is
determined 	that 	the 	charge 	or 	the 	evidence
is 	insufficient 	to establish a prima 	facie
case. 	. . .
PERB Regulation 	32630 provides:
If 	the 	Board agent 	concludes 	that 	the charge
or 	the 	evidence 	is 	insufficient 	to establish
a prima 	facie case, 	the Board agent 	shall
refuse 	to issue complaint, 	in whole or 	in
part. 	The refusal shall 	constitute a
dismissal of 	the charge. 	The refusal,
including a 	statement 	of 	the 	grounds 	for
refusal, 	shall be 	in writing and shall be
served 	on 	the 	charging party 	and 	respondent.
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requirement 	that 	the 	respondent 	file 	a motion 	to dismiss 	a
charge or 	complaint 	before 	the 	Board agent 	can dismiss 	the
charge. 	Upon 	finding 	that 	the 	charge 	fails 	to establish a prima
facie case, 	the Board agent must dismiss 	the charge.
At 	issue here 	is 	whether 	a Board agent 	may dismiss 	a
complaint, 	prior 	to hearing, 	upon 	finding that 	the complaint and
underlying charge 	fail 	to state 	a prima 	facie 	case. 	Regulation
32652 	directs 	the 	Board 	agent 	to dismiss 	the 	complaint 	if 	the
charging party fails 	to prosecute the case. 7	7
In the 	instant 	case, 	however, 	the 	charging parties have not
failed 	to prosecute 	their 	case. 	Instead, 	because of 	the
unsettled 	state 	of 	the 	law regarding 	the 	issues 	involved 	in 	the
underlying charge, 	the case 	was held 	in abeyance by stipulation
of 	the parties. 	Only when cases 	decided 	subsequent 	to 	issuance
of 	the complaint 	showed, 	as 	a matter of 	law, 	that allegations 	of
this 	sort 	could not 	state 	a prima 	facie 	case 	against 	the
employer, 	did 	the ALJ dismiss 	the 	charge 	and 	accompanying
complaint.
Charging parties 	assert 	that, 	since PERB's 	regulations 	do
not have 	a specific provision 	for 	a 	Board 	agent 	to dismiss 	a
7PERB 	Regulation 	32652 provides, 	in relevant part;
If 	the 	informal 	conference procedure 	fails
to result 	in a voluntary settlement, 	any
party 	thereafter may 	file 	with 	the 	Board 	a
request 	for hearing 	or 	the 	Board may order 	a
hearing. 	If a request 	for hearing 	is 	not
filed within 	six months 	from the date of 	the
issuance of 	the complaint, 	the complaint
will 	be 	dismissed.
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complaint 	sua sponte, 	the ALJ was 	without authority to dismiss
this 	case. 	In 	support of 	this 	assertion, 	the charging parties
mistakenly rely on Mission 	Insurance Group, 	Inc. 	v. 	Merco
Construction Engineers, 	Inc. 	(1983) 	147 Cal.App.3d 1059. 	That
case, 	however, 	is 	inapposite to the situation presently before
us.u 	In Mission 	Insurance, 	the 	insurance company brought a
declaratory 	relief 	action 	to determine 	the 	correct 	amount 	of 	a
worker's 	compensation dividend due 	to the 	insured, 	who 	in 	turn
filed 	a cross-complaint 	for 	an accounting. 	The 	trial 	court
granted 	a 	summary 	judgment 	on the 	cross-complaint 	action. 	The
Court 	of 	Appeals 	found 	that 	summary 	judgment 	was 	improperly
granted, 	not because 	the trial 	court had no authority to dismiss
the 	case, 	but 	because 	the 	insured had 	established a prima 	facie
case. 	Therefore, 	there were several 	triable 	issues 	of 	fact.
In the 	instant case, 	there are no triable 	issues 	of 	fact.
As 	discussed above, 	the allegations 	regarding employer
recognition of 	more 	than one 	exclusive 	representative 	and
excessive 	agency shop 	fees 	are 	resolved as 	a matter 	of 	law.
Assuming all 	allegations 	are 	true, 	the allegations 	do not
establish 	that 	the 	employer 	violated 	the 	EERA.
Contrary to charging parties' 	assertions, 	the lack of
specific 	authority 	for a sua sponte dismissal 	is 	not 	fatal 	to 	the
ALJ's 	actions 	under 	these circumstances. 	In Rich Vision Centers,
8The 	Board has 	no quarrel 	with 	the proposition 	that
"administrative 	regulations 	have 	the 	force 	and 	effect 	of 	law."
(Mission Insurance, 	supra, 	at p. 	1069.)
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Inc. 	v. 	Board of Medical Examiners 	(1983) 	144 Cal.App.3d 110, 	the
court 	held 	that, 	although no 	statute 	expressly authorized 	the
Board of Medical 	Examiners 	to settle 	licensing disputes, 	the
Board did possess 	such power. 	In reaching 	this 	conclusion, 	the
court 	said:
Administrative 	agencies 	only have 	the power
conferred 	upon 	them by statute 	and 	an act 	in
excess 	of 	these powers 	is 	void. 	[Citations
omitted.] 	However, 	an agency's powers are
not 	limited 	to 	those 	expressly granted 	in
the legislation; 	rather, 	"[i]t is well
settled 	in 	this 	state 	that 	[administrative]
officials 	may 	exercise 	such 	additional
powers 	as 	are necessary 	for 	the due and
efficient 	administration 	of 	powers 	expressly
granted by statute, 	or 	as 	may 	fairly be
implied 	from 	the 	statute 	granting 	the
powers." 	[Citations 	omitted.] 	(Rich
Vision, 	supra, 	at p. 	114.) 	(Emphasis in
original.)
The 	court 	found 	that 	this 	additional 	power 	could be 	fairly
implied 	from the 	statute, 	because settlement 	is 	"administratively
efficient 	and 	furthers 	the purpose 	for 	which 	the 	Board 	was
created." 	(Rich Vision, 	supra, 	at p. 	115.)
Likewise, 	in the 	instant 	case there 	is 	no specific authority
in our 	regulations 	for an ALJ 	to dismiss 	a 	complaint 	sua
sponte. 	Nevertheless, 	to require the ALJ to proceed with a
formal hearing where there 	is no possibility, 	as 	a matter of
law, 	of 	finding a violation of 	EERA would 	clearly be 	a waste of
the 	taxpayers' 	money and would not 	effectuate 	the purposes 	of
the Act. 	That 	is 	the purpose 	for 	the 	specific 	authority of
Board 	agents 	to dismiss 	charges 	that 	fail 	to 	establish prima
facie violations. 	Thus, 	we hold that Board agents 	do have the
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authority to dismiss 	complaints 	where 	it 	is 	clear 	the
allegations 	do not 	establish prima 	facie 	violations.
Due 	Process
The 	charging parties 	assert 	that 	by 	finding 	that 	only one
employee 	organization 	was 	recognized by 	the 	District, 	the ALJ
violated 	their 	due process 	rights 	to a hearing 	and 	to present
evidence on that 	issue. 	The cases 	the 	charging parties 	cite 	for
asserting 	due process 	violations 	are 	inapposite 	to 	the 	instant
case. 	In Southern Railway Co. 	v. 	Commonwealth of Virginia
(1933) 	290 U.S. 	190, 	a state statute authorized the state
highway 	commissioner 	to deprive 	railway 	companies 	of 	certain
property rights 	if 	it 	was 	"necessary 	for public 	safety and
convenience." 	This 	violated 	the 	Fourteenth Amendment 	because
the 	commissioner 	could do so without prior 	notice 	or hearing 	and
there was 	no provision 	for 	any review. 	Such 	issues 	certainly
involved 	factual determinations. 	Also, 	in Cleveland Board of
Education v. 	Loudermill 	(1985) 	470 U.S. 	, 	105 S.Ct. 1487, 84
L.Ed.2d 	494, 	discharged 	employees 	were 	not 	afforded 	a
pretermination 	opportunity 	to 	respond 	to 	the 	charges.
In the 	instant 	case, 	the ALJ gave a warning notice and
provided 	for 	an opportunity to 	respond, 	of which 	the 	charging
parties 	took 	full advantage. 	The 	charging parties 	failed,
however, 	to provide 	further 	facts 	that would establish a
violation. 	Assuming all 	assertions 	of 	the 	charging parties 	are
true, 	there were 	no 	violations 	of 	the 	EERA committed by the
employer as 	a matter 	of 	law. 	Thus, 	no 	factual determinations
12

were 	required. 	A hearing 	and 	opportunity to provide 	evidence
would be 	futile 	in this 	case.
We have 	reviewed 	the ALJ's 	dismissal 	in 	light 	of 	the 	appeal
and 	find 	it 	to be 	free of prejudicial 	error. 	We agree 	the
charges 	do not 	establish a prima 	facie 	violation of 	EERA, 	and we
further 	find 	the ALJ properly dismissed 	the complaint. 	Thus, 	we
adopt 	the dismissal 	as 	the decision of 	the Board 	itself.
ORDER
The 	unfair practice 	charges 	and 	complaint 	in Case 	No. 	S-CE-334
are 	DISMISSED.
Members 	Burt 	and Porter 	joined 	in 	this 	Decision.
13

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18th STREET, SUITE 102
SACRAMENTO, CALIFORNIA 93814
(916) 323-3198
April 1. 	1985
Mr. Anthony T. 	Caso. Attorney
Pacific 	Legal 	Foundation
555 Capitol Mall, 	Suite 350
Sacramento. 	CA 	95814
Re: 	McFarland, 	et al. 	v. 	Washington Unified School District.
Unfair Practice Case No. 	S-CE-334.
Dear Mr. 	Caso:
I 	have received your March 28. 	1985, 	statement 	of 	opposition 	to
dismissal 	of 	the 	complaint 	in the 	above-referenced 	case. 	Your
statement was 	in response 	to a March 	14 	letter 	in which 	I
advised you 	that 	I would dismiss 	the 	charge on April 	1. 	1985,
unless* you 	could 	show cause 	before 	that 	date 	to 	prevent
dismissal.
After 	reviewing your 	statement 	and 	the 	authorities 	cited
therein. 	I 	have 	concluded 	that 	the 	charge and 	accompanying
complaint 	do 	not 	state 	a 	prima 	facie 	violation of 	the
Educational 	Employment 	Relations 	Act 	and 	must 	be 	dismissed.
The 	reasons 	for 	this 	conclusion 	are 	several.
As 	I 	advised you 	in the March 14 	letter, 	which 	I 	incorporate
herein by 	reference, 	decisions 	of 	the Public Employment
Relations 	Board 	issued 	since 	the 	filing 	of 	charge 	S-CE-334 	now
make 	it 	clear 	that 	a public 	school 	employer 	cannot 	be 	held
liable 	for 	unlawful 	expenditures 	made 	by 	the 	exclusive
representative. 	San Jose Unified 	School 	District 	(12/13/84)
PERB Decision No. 	463; 	Milpitas Unified 	School 	District
(12/13/84) 	PERB Decision No. 	462; 	Fresno Unified 	School
District 	C4/30/82) 	PERB Decision No. 	208.
In your March 28 	statement, 	you assert 	two 	reasons 	for why 	the
charge 	should 	not 	be dismissed 	despite 	the 	rationale 	set 	out 	in
my March 	14 	letter. 	You assert 	first 	that under 	PERB 	rules 	a
charge may 	be 	dismissed 	sua 	sponte 	only 	if 	either 	party 	fails
to 	request 	a 	hearing within 	six months 	of 	the 	issuance 	of 	a
complaint. 	Since 	the 	requirement 	that 	a 	hearing 	be 	requested
was 	dispensed with 	in this 	matter, 	you 	contend 	that 	no 	grounds
exist 	for 	the 	agency to dismiss 	the 	charge 	and 	complaint 	sua
sponte.

Mr. 	Anthony T. 	Caso
April 	1, 	1985
Page 	2
Regarding 	this 	contention, 	it 	should 	be 	noted 	that 	Government
Code 	subsection 	3541.3(i) 	gives 	PERB 	the 	power:
(i) 	To 	investigate unfair 	practice 	charges
or 	alleged violations 	of 	this 	chapter, 	and
take 	such action 	and 	make 	such
determinations 	in 	respect 	of 	such charges 	or
alleged violations 	as 	the 	board 	deems
necessary to 	effectuate 	the 	policies 	of 	this
chapter.
It 	seems 	self-evident 	that within 	this 	grant 	of 	power 	is 	the
authority 	to 	dismiss 	a 	charge 	and 	complaint which do 	not 	state
a 	prima 	facie 	violation of 	the 	Educational 	Employment 	Relations
Act. 	The 	agency 	is 	under 	no 	compulsion 	to 	require a hearing 	on
an 	allegation which 	it 	concludes 	cannot 	be 	found 	in violation
of 	the 	law. 	even if 	proven. 	A rule 	that 	the agency could not
dismiss 	its 	own 	complaints 	prior 	to 	hearing would 	lead 	to
frivolous 	litigation wasteful 	of 	both 	the 	agency's 	and 	the
respondent's 	resources. 	Here, 	the PERB 	itself 	has 	issued
decisions 	after 	the 	issuance 	of 	the 	complaint which make 	it
apparent 	that 	the 	complaint 	rests 	on 	an 	erroneous 	legal
theory. 	Based upon 	that 	ruling, 	dismissal 	of 	the 	complaint 	is
the 	only 	appropriate 	action which 	the 	hearing 	officer 	can 	take.
You 	next 	assert 	that my March 	14 	letter 	advances 	a 	rationale
for 	dismissing 	the 	action 	that 	is 	underinclusive and
incorrect. 	You assert 	that 	there 	are 	two 	allegations 	in the
complaint which my 	letter 	fails 	to 	consider. 	These 	allegations
are 	that 	the 	respondent 	school 	district 	has 	recognized 	more
than 	one 	exclusive 	representative 	in violation of 	Government
Code 	section 	3543.1(a) 	and 	that 	the 	amount 	of 	the
representation fee 	is 	excessive 	in violation of Government Code
section 3540.l(i).
Both 	of 	these 	allegations 	are 	answered 	in Fresno 	Unified 	School
District, 	supra. 	PERB Decision No. 	208. 	In that case, 	the PERB
considered 	a 	hearing 	officer's 	conclusion 	that 	the 	California
Teachers 	Association 	could 	be 	found 	guilty 	of 	an unfair
practice 	because 	it 	supported 	and 	ratified 	an unlawful 	strike
by 	the Fresno 	Teachers Association. 	Even 	though neither 	party
filed 	an 	exception 	to 	that 	conclusion, 	the 	Board 	itself 	raised
the 	issue 	sua 	sponte 	and 	reversed 	the 	hearing 	officer. 	The
Board 	concluded 	that 	the 	relationship 	between 	the 	Fresno
Teachers 	Association 	and 	the 	California 	Teachers 	Association

Mr. Anthony T. 	Caso
April 1. 	1985
Page 3
was 	one of 	affiliation and 	that mere affiliation was
insufficient 	to make the California 	Teachers Association 	the
exclusive representative. 	The Board 	therefore dismissed 	the
charge against 	the California Teachers Association.
Representation 	records maintained 	by the PERB reveal 	only one
recognition by 	the 	respondent 	of 	an exclusive 	representative
for 	certificated 	employees. 	That 	action occurred 	on
October 13. 	1977. 	when the school board recognized the
Washington Education Association as 	exclusive 	representative.
There are no 	factual 	allegations 	in the charge 	from which one
can conclude 	that 	the Washington Education Association, 	like
the Fresno Teachers Association, 	has anything other 	than an
affiliation 	relationship with 	the California Teachers
Association and 	the National Education Association. 	The charge
is 	therefore 	insufficient 	to establish a 	prima 	facie allegation
that 	the 	respondent has 	recognized more 	than one 	exclusive
representative 	in violation of 	the Educational Employment
Relations Act.
In Fresno Unified, 	supra, 	the Board also reversed a hearing
officer's 	conclusion that 	the 	school 	employer 	had 	a 	right 	to
negotiate about 	the amount of an agency fee. 	The Board found
that 	the employer 	could only negotiate 	over whether 	or not 	to
grant an agency fee arrangement. 	The Board 	concluded 	that 	the
employer's 	adamant 	insistence on a 	$75 	cap on the agency fees
bore no 	relationship to 	its 	legitimate concerns 	and 	constituted
an unlawful bargaining proposal. 	It is evident, 	therefore,
that 	the charging party states no prima 	facie allegation in its
contention here that the amount of 	the agency fee 	is
excessive. 	If 	the employer 	is precluded 	from negotiating about
the amount of 	the fee. 	it cannot be held 	in violation of the
Educational Employment Relations Act even 	if 	it be proven that
the fee was 	in fact excessive.
You argue, 	finally, 	that the validity of Fresno Unified School
District 	is dubious 	in light of Link v. 	Antioch Unified School
District 	(1983) 	142 Cal.App.3d 765. 	I 	find nothing in that
case 	to 	support your 	conclusion that 	the PERB 	"must 	exercise
jurisdiction over 	both 	the 	employer 	and 	the 	exclusive
representative 	regarding claims 	involving 	the wrongful
expenditure of 	fair share fees." 	The case holds 	that the PERB
has 	initial 	jurisdiction over 	the matters which arguably
constitute unfair 	practices 	and 	that 	the plaintiffs 	are
required 	to 	exhaust 	their 	administrative 	remedies 	before

Mr. 	Anthony T. 	Caso
April 1. 	1985
Page 4
seeking 	judicial 	relief. 	Nothing 	in 	the 	decision 	supports 	the
conclusion 	that 	the 	PERB 	must 	proceed 	to 	hear 	an unfair
practice 	charge which the 	agency does 	not 	find 	to 	state 	a 	prima
facie 	allegation 	of 	the 	EERA.
For 	these 	reasons, 	the 	unfair 	practice 	charge 	and 	companion
complaint 	in McFarland, 	et al. 	v. 	Washington Unified School
District. 	Case No. 	S-CE-334 	are 	hereby dismissed.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California 	Administrative 	Code, 	title 	8.
part 	III), 	you may appeal 	this 	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
(section 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
April 	22, 	1985. 	or 	sent 	by 	telegraph or 	certified United 	States
mail postmarked not 	later 	than April 	22, 	1985, 	(section
32135). 	The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento. 	CA 95814
If you 	file 	a 	timely appeal 	of 	the dismissal 	of 	the 	charge 	and
complaint, 	any 	other 	party may 	file with 	the 	Board 	an 	original
and 	five 	(5) 	copies 	of 	a 	statement 	in 	opposition within 	twenty
(20) 	calendar days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 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 	section 	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.

Mr. 	Anthony T. 	Caso
April 	1. 	1985
Page 5
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 	(section 32132).
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.
By
Ronald 	E. 	Blubaugh
Administrative 	Law 	Judge

STATE 	Of 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET. SUITE 102
SACRAMENTO, CALIFORNIA 93S14
(916) 322-3198
March 14, 	1985
Anthony T. 	Caso, 	Attorney-
Pacific 	Legal 	Foundation
555 Capitol Mall. 	Suite 	350
Sacramento. 	CA 	95814
Re: 	McFarland, 	et al. 	v. 	Washington Unified School District.
Unfair 	Practice 	Case No. 	S-CE-334
Dear Mr. 	Caso:
The 	above-referenced 	charge 	alleges 	that 	the Washington Unified
School District 	has 	entered 	into 	a 	collective 	bargaining
agreement which 	requires 	unit 	members 	who 	do 	not 	belong 	to 	the
Washington Education Association 	to 	either 	join 	that
organization or 	pay an agency fee. 	Authority to 	enforce 	the
contractual 	clause 	is 	delegated 	to 	the Association. 	The 	charge
further 	alleges 	on 	information and 	belief 	that.
. 	. 	. 	significant portions of this fee will
be used 	to 	finance 	political, 	social,
ideological, 	and 	other 	activities 	with which
charging parties 	derive no 	benefit.
This 	conduct 	is 	alleged 	to 	be 	in violation of 	Government 	Code
subsection 3543.5(a).
Decisions 	of 	the 	Public 	Employment Relations 	Board 	issued 	since
the 	filing 	of 	charge 	S-CE-334 	now make 	it 	clear 	that 	such
allegations 	against 	a 	school 	district do 	not 	state 	a 	prima
facie violation of 	the Educational 	Employment Relations 	Act.
The 	reasons 	for 	this 	conclusion are 	as 	follows:
The 	validity 	of 	compulsory payments 	to 	labor 	organizations 	is
well 	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 	[48 LRRM 2345];
Abood v. 	Detroit Board of Education 	(1977) 	431 U.S. 	209 	[95
LRRM 2411]; 	Ellis, 	et al. 	v. 	Brotherhood of Railway. 	Airline
and 	Steamship Clerks 	(1984) 	U.S. 	[116 LRRM 2001].
Consistent with 	this 	principle, 	the 	EERA specifically 	permits
collective 	bargaining 	agreements 	to 	include 	agency 	fee
provisions 	requiring 	employees 	either 	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).) 	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.
Anthony T. 	Caso, 	Attorney
March 14, 	1985
Page 	2
This 	case, 	however, 	involves 	an allegation that 	the 	employer
violated 	the EERA 	by agreeing 	to 	an agency fee 	clause 	under
which 	the 	exclusive 	representative 	allegedly has 	made 	improper
expenditures. 	PERB decisions 	now make 	it 	clear 	that 	the
employer 	cannot 	be 	held 	responsible 	for 	the 	expenditures 	of 	the
exclusive 	representative. 	Milpitas 	Unified 	School 	District
(12/13/84) 	PERB Decision No. 	462; 	San Jose Unified School
District 	(12/13/84) 	PERB Decision No. 	463; 	Fresno Unified
School District 	(4/30/82) 	PERB Decision No. 	208.
For 	these 	reasons, 	it 	is 	concluded 	that unfair 	practice 	charge
S-CE-334 	does 	not 	state 	a 	prima 	facie 	violation of 	the 	EERA.
Accordingly, 	this charge will 	be dismissed on April 	1, 	1985.
unless 	you 	can show cause 	before 	that 	date 	for 	why 	the 	charge
should 	not 	be 	dismissed.
Sincerely.
Ronald E. 	Blubaugh
Administrative 	Law Judge