San Ramon Valley Unified School District (PERB 0751E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BARBARA C. 	ABBOT,
Charging 	Party,
v.
SAN 	RAMON VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
) 	Case No. SF-CE-1 157
PERB Decision 	No . 	751
June 	29, 1989
)
)
)
Appearances: 	National Right to Work Legal 	Defense Foundation,
Inc. 	by David T. 	Bryant, Attorney, 	for Barbara C. 	Abbot; 	Littler,
Mendelson, 	Fastiff & Tichy by Terry Filliman, 	Attorney, 	for
San Ramon Valley Unified 	School 	District.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the 	charging party,
Barbara C. 	Abbot, 	from a Board agent's dismissal of her charge
that 	the respondent, 	San Ramon Valley Unified 	School 	District
(District), 	violated section 3543.5, 	subdivision (a), 	of the
Educational Employment Relations Act 	(EERA).1 Specifically, 	the
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, 	subdivision 	(a), 	states
It 	shall be unlawful 	for a public 	school
employer to:
(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.
)
)
)
)
)
__________ )

charge 	alleges 	that 	the 	District 	is 	liable 	for the 	exclusive
representative's 	alleged 	failure 	to 	comply with 	the 	dictates 	of
the United States 	(U.S.) 	Supreme Court's decision in Chicago
Teachers Union. 	Local No. 	1 	v. 	Hudson (1986) 	475 U.S. 	292, 	106
S.Ct. 	1066 	[121 	LRRM 2793]. 	The Board agent found that the
charge 	failed to 	state 	a prima 	facie 	case because 	neither EERA
nor 	constitutional 	case 	law places 	upon the public 	employer 	the
affirmative 	obligation to 	ensure 	that 	the 	exclusive
representative 	adheres 	to 	the dictates 	of 	the 	Hudson decision.2
For the reasons 	set 	forth below, 	we affirm the dismissal.
DISCUSSION
On appeal, 	Abbot relies 	on various passages 	from Hudson and
its progeny which refer to the 	"government" 	or the 	"employer."
Abbot 	also provides 	three 	examples 	where 	the 	remedy provided
included 	injunctions 	against 	the 	employer. 	The 	import 	of 	these
references, 	Abbot insists, 	is to create a duty on the part of the
employer, 	as well as the union, 	to ensure that agency fees are
collected and 	spent 	in a 	lawful manner.
The District, 	in its opposition to Abbot's appeal, 	maintains
that 	neither 	Hudson nor any 	subsequent 	case places 	responsibility
2The 	Board 	agent 	found that 	the 	conduct 	of 	the 	District was
authorized by 	statute. 	EERA 	section 	3546 	and 	section 	3540,
subdivision 	(1), 	provide that a public 	school employer and an
exclusive 	representative 	may 	adopt 	an organizational 	security
provision in a 	collective bargaining agreement. 	EERA 	section
3546 	also 	allows 	for the holding of 	an agency 	fee 	election among
bargaining unit members. 	Education Code 	section 45061
specifically 	authorizes 	the public 	school 	employer to 	make
payroll deductions 	of agency 	fees 	pursuant to an organizational
security provision 	in a 	collective 	bargaining 	agreement.
22

on 	the public 	school 	employer to 	see 	that 	a 	union's 	procedures
are 	constitutionally 	sound. 	In the District's 	view, 	the
references 	to the 	"government" 	do not place a 	specific 	duty upon
the 	local public 	employer. 	Instead, 	the general references 	to
government 	refer to 	the 	state 	or 	federal 	government 	and 	impose
the duty to provide a mechanism to 	challenge the 	lawfulness 	of 	a
union's 	collection or expenditure 	of 	agency 	fees.3 According 	to
the District, 	violations of agency fee payers' 	rights 	stem
initially 	from 	government-sanctioned 	collective 	bargaining
systems 	that 	allow agency 	fees 	to 	be 	charged and 	not 	from 	salary
deductions by local public 	employers. 	Further, 	the District
asserts 	that placing a duty on the 	employer 	in the manner urged
by Abbot 	is 	incompatible with 	the 	employer's 	duty under EERA to
deal with the union 	"at 	arm's 	length" 	and to avoid 	interfering 	in
the union's 	internal 	affairs.
The key passage in Hudson appears at footnote 20, 	p. 	307.
We reject the Union's 	suggestion that 	the
availability 	of 	ordinary 	judicial 	remedies 	is
sufficient. 	This 	contention misses 	the
point. 	Since the agency shop 	itself 	is 	a
"significant 	impingement 	on 	First Amendment
rights," Ellis. 	466 U.S., at 455, the
government 	and union have 	a 	responsibility 	to
provide procedures 	that 	minimize 	that
33The 	District admits 	that 	the 	employer may be a necessary
party to 	a 	claim against 	the union 	solely 	for the purposes 	of
effectuating an adequate remedy, 	i.e., 	enjoining further
deductions, 	but distinguishes 	this 	from liability 	in the broader
sense.
Abbot 	is 	a party to 	a 	charge 	filed against her exclusive
representative, 	the 	San Ramon Valley Education Association,
CTA/NEA. 	That case, 	No. 	SF-CO-304, 	309, 	is now before the Board
on appeal 	from an administrative 	law 	judge's 	proposed decision.
33

impingement and that 	facilitate 	a 	non-union
employee's ability to protect his rights. 	. 	.
. 	Clearly, 	however, 	if a state chooses to
provide 	extraordinarily 	swift 	judicial 	review
for these challenges, 	that review would
satisfy the requirement 	of 	a 	reasonably
prompt decision by 	an 	impartial decision-
maker.
(Emphasis added.) 	In our view, 	these references 	to the
"government" 	or 	"state," 	particularly the reference 	involving
judicial 	review, 	connote the 	legislative 	and 	judicial 	capacities
of 	government. 	While Hudson concerned the 	constitutionality of 	a
procedure adopted by a union, 	with the approval 	of a 	local board
of 	education, 	there was 	no discussion of any duty on the part of
the government in its capacity as 	an employer. 	In fact, 	footnote
- - -
20 	is 	the only passage 	in Hudson that 	speaks 	expressly of 	the
responsibility of 	any entity other than the union. 	We believe
the 	above passage refers 	to 	the duty of 	the 	governmental 	body
which 	created 	the 	law sanctioning 	agency 	fees 	to 	apply 	and
enforce 	that 	law in a manner consistent with the Constitution.
It does 	not 	refer to an affirmative duty upon the government 	in
its 	capacity as 	employer 	(in the 	instant case, 	a 	school district)
-
to police 	the 	exclusive 	representative's 	compliance with 	Hudson.
Abbot 	also 	relies 	heavily 	on the 	following passage 	from the
Seventh Circuit's decision in Hudson v. 	Chicago Teachers 	Union.
Local 	1 	(7th Cir. 	1984) 	743 F.2d 	1187 	[117 LRRM 2314]:
[M]ost violations 	of 	the 	First Amendment
caused by union-security clauses 	. 	. 	. would
go unremedied 	-- 	maybe 	even undetected 	-- 	if
the 	employer had 	no 	duty 	to 	establish
- -.workable procedures 	for protecting
dissenters' 	rights. 	We interpret the First
Amendment to create such a duty. 	. 	. 	The
4

defendants 	owe another constitutional 	duty to
these plaintiffs 	* 	* 	* 	* 	[T]he public
employer must establish a procedure. 	. 	. 	.4
- - -
Abbot notes 	that the U.S. 	Supreme Court 	affirmed the Seventh
Circuit 	Court of Appeals 	and did 	not 	expressly disagree with 	the
above passage. 	First, 	given the Supreme Court's 	failure to
discuss 	any duty on the part 	of 	the 	employer and 	its 	admonition
(475 	U.S. 	301) 	that it was not necessary to resolve all the
questions 	raised 	in the decision below, 	we 	are unconvinced that
the 	above passage was 	implicitly 	adopted by the 	Supreme 	Court.
Second, 	the 	fact that the Seventh Circuit Court of Appeals
referred to 	the 	"employer" 	is 	not 	necessarily of 	any 	significance
in a public 	sector case. 	Since the employer is 	a 	subdivision of
the 	"government" 	in the broad 	sense, 	some interchange of terms,
albeit at the expense of confusion, 	is 	inevitable. 	Since
concerns 	about 	the protection of 	First Amendment 	rights 	reflected
in 	the passage 	above would be better 	satisfied by 	a 	judicial 	or
quasi-judicial procedure 	for 	reviewing 	a 	union's 	calculation 	and
use of 	agency fees, 	we 	find it unlikely that the Seventh Circuit
Court of Appeals was 	speaking of the 	employing entity 	itself, 	as
opposed to the government as 	a whole.
With one arguable exception, 	which will be discussed below,
cases 	subsequent 	to 	Hudson also 	fail 	to 	establish a duty on the
part 	of 	the 	employer to police 	a union's 	compliance with 	Hudson.
4This 	"passage" 	is 	reproduced as presented 	in Abbot's
appeal. 	It 	is 	actually an amalgamation of 	excerpts 	from three
separate passages at 	117 LRRM 2317, 	2318 and is, 	therefore,
somewhat misleading. 	In any event, 	the 	Seventh Circuit Court of
Appeals 	did 	twice 	refer to 	the duties 	of 	the 	"employer."
55

Two of 	the 	cases 	cited by Abbot 	speak of 	the employer only 	in
terms 	of 	providing 	injunctive 	relief 	against 	further deductions,
pending the union's 	compliance with Hudson. 	(Lehnert v. 	Ferris
Faculty Assoc. 	(W.D. 	Mich. 	1986) 	643 F.Supp. 	1306 	[123 LRRM 2361;
Gilpin v. 	AFSCME 	( C D . 	111. 	1986) 	643 F.Supp. 	733.) 	In McGlumphv
v. 	Fraternal Order of Police 	(N.D. 	Ohio 	1986) 	633 F.Supp. 	1074,
the 	court 	enforced 	an indemnification clause 	in the 	contract
relieving the 	employer of 	any 	liability 	for the union's 	actions,
but otherwise 	spoke 	only of 	the union's 	duty to provide
procedures 	passing muster under Hudson.
Even Tierny v. 	City of Toledo 	(6th Cir. 	1987) 	824 	F.2d 	1497
[125 	LRRM 3217], 	which thus 	far reflects 	the most expansive view
of Hudson's 	requirements, 	fails to 	support Abbot's view. 	At page
1505, 	the Sixth Circuit Court of Appeals discussed the duty of
defendant City of 	Toledo:
Plainly the City of 	Toledo 	owes 	a duty 	to 	its
non-union employees 	to assure 	that 	its
ordinance will 	not permit 	the union to
deprive 	them of 	their rights 	under the 	First
and Fourteenth Amendments. 	Hudson. 	106 	S.Ct.
at 	1076 n.20. 	Beyond that, 	however, 	we do
not 	endeavor to 	allocate which procedural
minima 	or guidelines 	must be 	contained 	in the
ordinance 	and which 	may properly 	be
incorporated in the TPPA's 	[the union] 	plan.
(Emphasis 	added.) 	The court's discussion of the City of 	Toledo's
duty 	focuses 	on the 	city's 	ordinance 	and the need 	for 	it 	to be
applied in a constitutionally adequate manner; 	i.e., 	it 	is 	the
city 	in its 	legislative 	capacity that 	is 	referred to, 	not 	its
capacity 	as 	an employer. 	The remainder of 	the decision 	focuses
on the union's 	responsibilities.
6

The 	confusion 	in the use of 	terms 	describing the 	government
in its various capacities 	is, 	of course, 	not present when the
employer is 	a private entity. 	In Ellis v. 	Western Airlines. 	Inc.
------and Air Transpor---t Employee- 	- s 	(S.D. 	Cal. 	1986) 	652 F.Supp. 	938, 	947
[127 	LRRM 2550], 	the court described the employer as 	a peripheral
defendant whose presence 	in the 	case was 	solely 	for the purpose
of 	effectuating various 	remedies 	that may lie against the union:
Western is a peripheral defendant, 	which only
opposes 	the entry of 	a 	judgment 	that would
create 	an affirmative obligation for 	it 	to
"verify, 	review and/oversee that the agency
fees 	. . . 	do 	not 	include 	amounts 	spent 	for
non-collective 	bargaining purposes."
Further, 	Western opposes 	any 	judgment
declaring 	that 	it 	should 	"take 	any action
with 	regard to 	the 	Plaintiff's 	employment
status 	because of his 	failure to pay agency
fees."
Western's 	objections 	are meritorious. 	This
Memorandum 	Decision 	and 	Order do 	not 	create
any 	affirmative duty 	for Western.
Western may, 	however, 	be required to insert
as 	a provision of 	the 	collective bargaining
agreement the 	remedy that this 	court
ultimately 	approves 	as 	consistent with
Hudson.
As 	noted above, 	there 	is 	only one reported case which
appears 	to 	support Abbot's 	reading of Hudson. 	In Dixon v. 	City
of Chicago 	(N.D. I11. 1987) 	669 F.Supp. 	851 	[126 LRRM 2572], 	the
court 	rejected the 	city of Chicago's 	argument 	that 	it had 	no duty
to 	ensure 	or 	establish 	the 	constitutionally 	adequate procedures
described by Hudson. 	The 	court 	first 	stated that 	the
administration of 	an agency 	shop 	by 	a public 	employer 	constitutes
the 	state 	action necessary 	to 	a 	constitutional 	claim brought
77

under section 	1983 	of the Civil Rights Act of 	1871 	(42 	U.S.C,
section 	1983). 	Next, 	the court relied on the reference to the
responsibility of 	the 	"government" 	at 	footnote 	20 	of 	the Hudson
decision. 	Lastly, 	the court concluded that the 	city of Chicago's
obligations 	were 	not discharged by 	the 	existence 	of 	the 	Illinois
Labor Relations 	Board because 	of 	the 	court's 	view that that board
does 	not have 	jurisdiction over 	such disputes. 	The 	availability
of 	the 	courts 	to hear constitutional 	challenges 	to 	agency 	fee
procedures was 	not discussed at all.
We do not 	find the court's 	analysis persuasive. 	The 	court
first 	errs 	by 	assuming 	that 	the public 	employer's 	agreement 	to 	an
agency 	shop provision in a 	collective bargaining 	agreement 	is 	the
state 	action that 	is 	essential 	to 	establishing a 	First Amendment
claim. 	Instead, 	the critical 	state action is 	found by virtue of
the 	exaction of 	agency 	fees 	pursuant to 	statutes 	creating a
state-sanctioned 	collective bargaining 	system. 	(See 	Ellis 	v.
Brotherhood of Railway. 	Airline and Steamship Clerks 	(1984) 	466
U.S. 	435, 	104 S.Ct. 	1883; Ellis v. Western Airlines. 	Inc., 	supra;
Smith v. 	United Transportation Union,. 	Local No. 	81 	(S.D. 	Cal.
1984) 	594 F.Supp. 	96 	[117 LRRM 3217].)
The Dixon court's 	analysis 	of 	the reference to 	"government"
in 	footnote 	20 	of 	the Hudson decision 	fails 	for the 	same 	reasons
we 	discussed above 	in analyzing 	a 	nearly 	identical 	argument 	put
forth by Abbot 	in her exceptions 	to the proposed decision. 	We
will 	not repeat that discussion here, 	but 	suffice 	it to 	say that,
when viewed in context, 	the reference to 	"government" 	most
8

logically connotes 	not 	the public 	entity's 	capacity as 	employer.
but 	the 	legislative and 	judicial 	capacities 	of 	the 	governmental
body which 	created the 	law under which 	agency 	fees 	are 	exacted.
To 	the 	extent 	that 	the court 	in Dixon relied on the
perceived 	lack of 	jurisdiction of 	the 	Illinois 	Labor 	Relations
Board, 	the case is 	clearly distinguishable. 	There 	is 	no question
but 	that 	PERB 	has 	jurisdiction over agency 	fee 	disputes 	arising
under EERA. 	(See Leek v. 	Washington Unified School 	District
(1981) 	124 Cal.App.3d 43; 	King City High School District
Association, 	et al. 	(Cumero) 	(1982) PERB Decision No. 	197, 	review
pending, 	Cal.Sup.Ct.) 	Moreover, 	the Board has adopted
regulations governing agency fee procedures 	(Cal. 	Admin. 	Code,
title 8, 	sec. 	32990 et seq.).
While 	the 	case 	law thus 	far 	fails 	to 	establish any
independent 	affirmative 	duty upon the public 	employer 	to 	ensure
the 	constitutional 	adequacy of 	the 	exclusive 	representative's
collection and expenditure of 	agency 	fees, 	there are also 	several
practical reasons why creating 	such a duty makes 	little 	sense. 	A
public 	school 	employer 	simply does 	not have 	the 	authority 	or
resources 	to 	review union procedures 	and determine 	if 	they 	are
statutorily or constitutionally adequate. 	It is 	this 	Board, 	in
the 	first instance, 	that must determine if a union's 	actions 	are
violative of EERA.5 In addition, 	the 	courts may determine 	if 	a
5PERB has 	exclusive, 	initial 	jurisdiction to resolve unfair
practice 	claims 	arising under EERA. 	(San Diego Teachers
Association v. 	Superior Court 	(1979) 	24 Cal.3d 	1; 	see also EERA
section 	3541.5.)
99

union's 	actions violate the Constitution. 	To 	say that the
employer is 	liable 	if 	it 	fails 	to ensure the adequacy of the
union's 	procedures 	is to 	force the employer to make 	its 	own
determination of 	the 	lawfulness 	of the procedures.
In addition to 	the 	lack of 	legal 	authority to make 	such
determinations, 	the 	employer can hardly be 	expected to be
disinterested. 	To avoid 	liability, 	the cautious 	employer may
either refuse 	to deduct 	agency 	fees 	because 	of perceived
procedural 	inadequacies, 	or 	simply refuse to ever include agency
fees 	in the 	contract. 	This would result 	in the effective
elimination of 	agency fees. 	Since the EERA expressly authorizes
such 	fees,6 such a 	result would 	constitute 	abrogation of 	the
statute.
Indeed, 	the role of the 	employer urged by Abbot 	is
incompatible with 	the 	entire 	notion of 	collective 	bargaining.
The 	"arm's 	length" 	relationship 	required by collective bargaining
recognizes 	that 	the 	employer and the union have 	conflicting
interests. 	Those 	conflicting 	interests 	obviously render
unworkable 	any 	scheme where 	the 	employer must police 	the 	union's
actions, 	lest it be held liable for them. 	Moreover, 	since the
exaction of 	agency 	fees 	is 	fundamentally a matter between the
exclusive representative and bargaining unit members, 	the
creation of 	a 	duty 	such 	as 	that urged by Abbot would 	conflict
6EERA 	section 	3546 	states 	that 	"organizational 	security" 	is
within the 	scope of 	representation. 	Section 3540.l(i) 	defines
"organizational 	security" 	as 	either an arrangement providing 	for
maintenance 	of 	membership 	or 	an arrangement providing 	for 	fair
share fees.
10

with 	the 	employer's 	statutory duty 	to 	refrain 	from 	interfering 	in
the administration of the union. 	EERA section 3543.5(d) 	states
that 	it 	shall be unlawful 	for a public 	school 	employer to:
Dominate 	or 	interfere with 	the 	formation or
administration of 	any 	employee 	organization,
or 	contribute 	financial 	or 	other 	support 	to
it, 	or in any way encourage employees 	to 	join
any organization 	in preference 	to 	another.
In 	sum, 	the creation of 	a duty on the part of 	the employer,
as 	urged by Abbot, 	is not 	supported by existing case 	law and
would be 	in clear 	conflict with the dictates 	of 	EERA. 	In any
event, 	absent an antecedent appellate court decision, 	it is not
within our authority to 	refuse to 	enforce 	some portion of 	the
statute 	because we view it 	as 	unconstitutional.7 As 	the 	District
readily admits, 	and as 	is 	reflected in the case law, 	in some
cases 	the 	employer may be 	a 	necessary party to 	a 	claim against
- -
the union for the purposes 	of 	injunctive relief. 	As 	noted by the
court in Ellis v. 	Western Airlines. 	Inc.. 	supra, 	in such cases
the 	employer is 	only a peripheral defendant. 	Absent 	evidence
7Article 	III, 	Section 3.5 	of the California Constitution
states, 	in pertinent part:
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;
11

that 	the 	employer 	actively 	conspired with 	the 	exclusive
representative to deprive 	agency 	fee payers 	of 	their rights, 	we
conclude 	that 	there 	exists 	no 	independent 	claim against 	the
employer.
ORDER
For the reasons discussed above, 	the unfair practice charge
in Case No. 	SF-CE-1157 	is 	DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson Hesse 	and Members 	Porter 	and 	Shank 	joined 	in this
Decision.
12