Association of California State Attorneys and Administrative Law Judges (Mayer) (PERB 0637S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN K. 	MAYER,
Charging 	Party,
v.
ASSOCIATION OF 	CALIFORNIA 	STATE
ATTORNEYS 	AND ADMINISTRATIVE 	LAW
JUDGES,
Respondent.
Case No. 	LA-CO-27-S
PERB Decision No. 	637-S
October 6, 	1987
Appearances; 	Marilyn K. 	Mayer, 	Attorney, 	on her own behalf.
Before Hesse, 	Chairperson; 	Craib and Cordoba, 	Members.
DECISION AND 	ORDER
This 	case 	is before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal by charging party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of her 	charge 	alleging 	that 	the
Association 	of 	California 	State 	Attorneys 	and 	Administrative
Law Judges 	violated 	section 	3515.7(c) 	of 	the 	Ralph C. 	Dills 	Act
(Act).1
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the Board
itself, 	insofar 	as 	the Board agent 	concludes 	that 	the
1 The 	Act, 	formerly known as 	the 	State 	Employer-Employee
Relations 	Act, 	is 	codified at Government 	Code 	section 3 512 et
seq.
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22
allegations 	in 	the 	instant 	charge 	fail 	to 	state 	a prima 	facie
violation of 	the Act.
By 	the 	Board.2
2Members 	Porter 	and 	Shank 	did 	not 	participate 	in 	this
Decision.

STATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	958)4-4174
(916) 322-3068
April 27, 	1987
Marilyn K. 	Mayer
Deputy Attorney 	General
2528 	Carman Crest 	Drive
Los Angeles, 	CA 90068
RE: 	Marilyn Mayer v. 	Association of California 	State Attorneys
& Administrative Law Judges. 	Case No. 	LA-CO-27-S, 	First
Amended Charge, 	Dismissal of Charge
Dear Ms. Mayer:
You 	have 	filed 	a 	charge 	against 	Respondent 	Association of
California 	State Attorneys 	and Administrative 	Law 	Judges 	(ACSA)
alleging 	that 	it 	violated 	the 	State Employer-Employee 	Relations
Act 	(SEERA) 	by 	refusing 	to 	grant 	your 	request 	that your 	fair
share contributions 	be donated 	to 	a 	charity.
I 	indicated 	to you 	in my attached 	letter dated April 	3, 	1987,
that 	the 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 	accordingly. 	You
were 	further 	advised 	that 	unless 	you 	amended 	the 	charge 	to
state 	a prima 	facie case, 	or withdrew it prior 	to April 	14,
1987, 	they would be dismissed. 	On April 	8, 	1987 you 	requested
an extension of 	time to 	file 	an amendment until April 	24,
1987. 	That 	request was 	granted.
On April 	24, 	1987, 	this office 	received your First Amended
Charge 	in which you 	urge 	that 	Government 	Code 	section 	3515.7(c)
is 	unconstitutional 	under 	both 	the 	California 	and United 	States
Constitutions 	to 	the extent 	that 	it 	requires membership 	in 	a
religious 	body 	in order 	to 	have 	fair 	share 	fees 	diverted 	from
an employee organization to 	a 	charitable organization. 	To 	the
extent 	that 	the 	PERB's 	decision 	in California 	State 	Employees
Association 	(Graham) 	(1984) 	PERB Decision No. 	434-S interprets
section 3515.7(c) 	to 	require membership 	in a 	religious
organization, 	the First Amended Charge 	asserts 	that 	it 	also 	is
unconstitutional. 	The document 	cites 	various 	California 	and
U.S. 	Supreme Court decisions which: 	(1) 	prohibit government
entanglement 	in 	religion 	and 	(2) 	prohibit 	government 	promotion
of 	religious 	purpose. 	The 	charge presents 	no 	new 	factual
information 	relating 	to 	the dispute.

Ms. Marilyn K. Mayer
April 27, 	1987
Page 	2
The PERB 	is 	an 	administrative 	agency whose 	jurisdiction 	is
limited 	to 	interpretation 	of 	certain provisions 	contained 	in
the Government 	Code. 	In 	interpreting 	the Government 	Code
section 3515.7(c), the 	PERB must 	assume 	that 	the 	provision,
"suffers 	no 	constitutional 	infirmity." 	Cumero 	v. 	King 	City
High School District, 	et. 	al.. 	(1982) PERB Decision No. 	197.
The 	PERB 	has 	no 	authority 	to 	declare 	that 	the 	provision 	is
unconstitutional. 	Article 	III, 	section 3.5 of 	the California
Constitution 	provides:
An 	administrative 	agency, 	including 	an
administrative 	agency 	created 	by 	the
Constitution or 	an 	initiative 	statute, 	has
no power:
(a) 	To declare a 	statute unenforceable, 	or
refuse to enforce 	a 	statute, 	on the basis of
it 	being 	unconstitutional 	unless 	an
appellate 	court 	has 	made 	a determination
that 	such 	statute 	is 	unconstitutional;
(b) 	To declare 	a 	statute unconstitutional;
(c) 	To declare 	a 	statute unenforceable, 	or
to 	refuse 	to enforce 	a 	statute on 	the basis
that 	federal 	law or 	federal 	regulations
prohibit 	the 	enforcement 	of 	such 	statute
unless 	an 	appellate 	court 	has made a
determination 	that 	the 	enforcement 	of 	such
statute 	is 	prohibited 	by 	federal 	law or
federal 	regulations.
Under 	this 	provision of 	the Constitution, 	the PERB 	is 	unable 	to
declare section 3515.7(c) 	unconstitutional. 	For 	these 	reasons,
and the 	reasons 	stated 	in my 	letter of April 	3, 	1987, 	your
charge does 	not 	state 	a 	prima 	facie case of 	a 	SEERA violation.
Right 	to 	Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	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 	(California Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such 	appeal 	must 	be 	actually
received 	by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5:00 p.m.) 	or 	sent 	by telegraph, 	certified or Express United
States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for

filing. 	Code of 	Civil 	Procedure 	section 	1013 	shall 	apply
(section 32135). 	The Board's address is:
Ms. 	Marilyn K. Mayer
April 27, 	1987
Page 3
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 	copies 	of 	a 	statement 	in opposition within 	twenty
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 each copy of 	a document 	served upon 	a
party or 	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.
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 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.
Sincerely,
JEFFREY 	SLOAN
General 	Counsel
By
Jorge 	A. 	Leon
Staff 	Attorney
Attachment
8882d

eSTATE 	OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
April 	3, 	1987
Marilyn K. 	Mayer
Deputy 	Attorney General
2528 Carman Crest Drive
Los Angeles, 	CA 90068
RE: 	Marilyn Mayer v. 	Association of 	California 	State Attorneys
& Administrative Law Judges, 	Case No. 	LA-CO-27-S
Dear Ms. Mayer:
You have 	filed 	a 	charge 	against 	Respondent 	Association of
California 	State Attorneys 	and Administrative 	Law Judges 	(ACSA)
alleging 	that 	it 	violated 	the 	State 	Employer-Employee 	Relations
Act 	(SEERA) 	by 	refusing 	to grant 	your 	request 	that 	your 	fair
share 	contributions be donated 	to 	a 	charity.
My 	investigation 	has 	revealed 	the 	following 	information.
You 	are 	employed 	as 	a Deputy Attorney General 	in Los 	Angeles
and 	are 	included 	in State bargaining Unit 	2. 	On January 	22,
1986 	you 	wrote 	to ACSA requesting 	that 	fair 	share 	fees
collected 	from 	you by ACSA be 	paid 	instead 	to Dedication 	and
Everlasting Love 	to Animals 	(DELTA), 	a charitable organization,
based 	on 	the 	fact 	that 	you hold 	"conscientious 	objections 	to
Union 	activities 	and/or being 	a member 	of 	a Union." 	Your
request 	was 	based 	on Government 	Code 	section 	3 5 1 5 . ( c ) . 1 On
January 	27, 	ACSA Staff 	Consultant 	Chris 	Voight 	replied 	stating
that 	your 	request 	did 	not 	comply with 	section 	3515.7(c)
1. 	Section 3515.7(c) 	provides:
Notwithstanding subdivision 	(b), 	any
employee who 	is 	a member 	of 	religious body
whose 	traditional 	tenets 	or 	teachings
include 	objections 	to 	joining or 	financially
supporting 	employee 	organizations 	shall 	not
be 	required 	to 	financially support 	the
recognized employee 	organization. 	That
employee, 	in lieu of a membership fee or a
fair 	share 	fee deduction, 	shall 	instruct 	the
employer 	to deduct 	and pay sums 	equal 	to 	the
fair 	share 	fee to a nonreligious, 	nonlabor
organization, 	charitable 	fund 	approved by
the 	State Board of 	Control 	for 	receipt 	of
charitable 	contributions 	by 	payroll
deductions.

and asked 	"the nature of 	the 	traditional 	tenants 	[sic] 	or
teachings 	which 	prevent 	your 	fair 	share 	fees 	from going 	to
ACSA."
Ms. 	Marilyn Mayer
April 	3, 	1987
Page 2
On 	February 4, 	you wrote 	to Voight 	stating 	your 	opinion 	that
section 	3515.7(c) 	is unconstitutional 	insofar 	as 	it 	requires
that 	an 	employee 	be 	a member 	of 	a 	religious 	body 	in 	order 	to be
exempt 	from the 	fair 	share provisions. 	You assert 	in 	that
letter 	that 	"one's 	own personal 	'religious' 	or 	'conscientious
objections' 	rise 	to an appropriate level 	to qualify 	for 	the
exemption." 	You 	repeat 	your 	request 	that 	the 	fair 	share 	fees
be paid to DELTA. 	Voight 	did not 	respond. 	After 	some 	further
correspondence between the 	two of you 	in March, 	April 	and May f
on 	June 	3, 	Voight wrote 	to advise 	you 	that 	the ACSA Board 	of
Directors 	had 	ruled at 	its 	May 17, 	meeting 	to 	accept 	your
application 	based 	on personal 	religious 	beliefs 	"provided 	you
can 	demonstrate 	by 	objective 	proof 	that 	your 	personal 	religious
beliefs 	are 	bona 	fide." 	He 	also 	explained 	that 	DELTA was 	not
on 	the 	State 	Board 	of Control's 	list 	of 	approved 	charitable
organizations.
On July 2, 	you wrote 	to Voight 	insisting 	that 	DELTA does
qualify as 	a 	charitable organization, 	and 	objecting 	to 	the 	fact
that 	ACSA was 	now 	deducting 	$5 	more 	per 	month 	than 	the 	previous
$16 	per 	month 	deduction which 	you 	had 	not 	authorized 	and
requesting 	a 	return 	of 	the 	"wrongful 	contribution." 	Voight
responded 	on 	July 	14 	stating 	that 	before 	the 	question whether
DELTA qualifies 	as 	a 	charitable 	deduction 	can 	be 	reached, 	the
question whether 	your 	fair 	share 	fees 	should 	be 	diverted 	to 	any
charity 	based 	on 	your 	religious 	beliefs 	had 	to 	be 	resolved.
He 	repeated 	the 	instructions 	he 	had given 	in 	his 	June 	3 	letter
and set 	a 	deadline of July 28, 	after 	which your 	request 	would
be denied. 	Further, 	the 	extra 	$5 	assessment which was 	effected
to 	fund 	an 	anti-Gann measure 	campaign 	was 	terminated 	and 	the
money 	refunded 	to 	you.
By 	letter 	dated August 	14, 	Voight 	acknowledged 	that 	his 	letters
of 	June 	2 	and July 14 	apparently did not 	reach you. 	He
included 	copies 	of 	those 	two 	letters 	and 	set 	a 	new 	deadline 	of
August 	29 	for 	you 	to 	file 	a 	complete 	request 	as 	directed 	in 	the
June 	2 	letter. 	On August 	24, 	you 	submitted a 	declaration which
noted, 	in full, as follows:

1. 	That my own personal
religious/conscientious 	beliefs 	prohibit 	my
supporting 	and/or 	paying 	for 	either 	unions
and or 	employee organizations.
2. 	That 	I 	have held 	these 	beliefs 	since
approximately 	18 	years 	of 	age.
3. 	That as a 	result 	of my own personal
religious/conscientious beliefs, 	I have
never 	belonged 	to 	an 	employee 	organization
and/or 	union.
Ms. 	Marilyn Mayer
April 	3, 	1987
Page 3
On 	September 	25 Voight 	wrote 	you 	a 	letter 	advising 	you 	that
your 	request 	had 	been 	denied 	by 	the 	ACSA 	Board 	on 	September 	20
on 	the 	basis 	that 	the declaration 	you 	provided 	"did 	not 	provide
evidence 	of 	a 	bonafide 	religious 	belief" 	The 	decision was 	also
based 	on 	your 	membership 	in 	an 	organization 	known 	as 	the
Association of Deputy Attorneys General, 	which he notes
preceded 	ACSA 	in 	acting 	on 	behalf 	of 	Deputy Attorneys 	General
in 	matters 	concerning 	their 	terms 	and 	conditions 	of
employment. 	You wrote 	to Voight 	on 	December 	1 	requesting 	an
appeal 	of 	the ACSA Board's 	ruling. 	That 	request was 	denied.
ANALYSIS
The 	charge 	alleges 	that 	the 	above 	conduct 	violates 	Government
Code section 3515.7(c). 	In a 	similar 	case, 	the PERB analyzed
an 	allegation 	that 	the 	employee 	organization 	refused 	to 	grant
an 	employee's 	request under 	3515.7(c) 	as 	an alleged violation
of 	3543.5(b).2 The PERB determined 	that 	3515.7(c) 	requires
2Section 	3543.5(b) 	provides 	that 	it 	is 	an unfair 	practice
for 	an 	employee 	organization 	to:
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.

that 	an 	employee who requests 	diversion 	of 	fair 	share 	fees 	to 	a
charitable 	organization 	establish 	two 	things: 	(l)that 	he/she
is a member 	of a 	religious body, 	and 	(2) 	the 	traditional 	tenets
or 	teachings 	of 	that body 	include 	objections 	to 	joining or
financially supporting 	employee 	organizations. 	The 	employee 	in
that 	case 	failed 	to 	establish 	membership 	in a 	religious 	body
and on 	that 	basis, 	the PERB held 	that 	the employee
organization's 	refusal 	to grant 	the 	request 	did 	not 	constitute
a 	violation of 	section 	3543.5(b). 	California 	State Employees
Association 	(Graham) 	(1984) 	PERB Decision No. 	434-S.
Ms. 	Marilyn Mayer
April 	3, 	1987
Page 4
The 	charge 	does 	not 	contain 	facts 	showing 	that 	you 	have
demonstrated 	to ACSA the 	requirements 	set 	forth 	in 	Graham,
supra, 	in 	order 	to qualify 	for 	diversion 	of your 	fair 	share
fees. 	To 	the 	contrary, 	the charge and 	the exhibits 	attached
make 	plain 	that 	you 	assert 	a 	religious 	objection 	based 	on 	your
individual beliefs. 	As 	in Graham, 	these facts do not establish
a violation of section 	3543.5(b)	- 	. 	Even 	if you 	did qualify for
diversion of 	fair 	share 	fees 	to 	a charitable organization, 	the
charge 	does 	not 	contain 	facts 	from which 	it 	can 	be 	determined
that 	DELTA qualifies 	as 	a 	charitable 	organization 	for 	the
purposes of section 3515.7(c).
For 	these 	reasons, 	the 	charge as presently written does 	not
state a prima 	facie case. 	If you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in this 	letter 	or 	any additional 	facts
which 	would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the 	charge 	accordingly. 	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 	signe	- 	d 	under 	penalty 	of
perjury by 	the 	charging party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed with 	PERB. 	If 	I 	do not 	receive 	an amended 	charge 	or
withdrawal 	from you before April 	14, 	198.7, 	I 	shall dismiss your
charge. 	If you have any questions 	on how to proceed, 	please
call me at 	(916) 	323-8015.
Sincerely,
Jorge 	Jorge A. Leon
Staff 	Attorney
8524d