San Jose Unified School District (PERB 0463E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DONNA AUSTIN, ET AL.,
Charging Parties, Case No. SF-CE-935

Vv. PERB Decision No. 463

SAN JOSE UNIFIED SCHOOL DISTRICT, December 13, 1984

Respondent.

Appearances: David T. Bryant, Attorney for Donna Austin, et
al.; Littler, Mendelson, Fastiff & Tichy by Richard J. Loftus,
Jr. and Janice M. Jablonski for the San Jose 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 San Jose 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 prejudical error, adopt it as the decision of the
Board itself.

ORDER
The unfair practice charge in Case No. SF-CE-935 is

DISMISSED WITHOUT LEAVE TO AMEND.

By the BOARD

*Members Burt and Tovar did not participate in this Decision.

STATE OF CAllFORNfA
PUBl.!C EMPLOYMENT RELATIONS BOARD
Headquarters Office
103 l 	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
GEORGI! OEUKMEJIAN. Governor
Re: 	REFUSAL TO 	ISSUE 	COMPLAINT AND 	DISMISSAL OF 	UNFAIR PRACTICE
CHARGE; 	Austin, 	et 	al. 	v. 	San 	Jose 	USD, 	SF-CE-935
Dear 	Parties:
. Pursuant 	to 	Public 	Employni'ent 	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 	exce~ding 	the 	amount
of 	initiation 	fee, 	dues 	and 	general 	assessment.~/ 	These
1/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 	operative 	organizational 	security 	provision 	is
reflected 	in 	two 	documents. 	First, 	a 	prior 	collective
bargaining 	agreement 	between 	the 	parties 	(7/1/81 	- 	6/30/84)
contains 	relevant 	provisions 	which 	were 	subsequently 	included
in 	a 	successor 	agreement. 	The 	parties' 	agreement 	prescribed:
7500 	Every 	teacher 	shall 	become 	a 	member 	of 	the
Association 	or 	pay 	to 	the 	Association 	a 	iervice
fee 	in 	an 	amount 	equal 	to 	unified membership

David 	Brvant
Richard 	Loftus
September 	18, 	1984
Page 	2 ·
fees, 	it 	is 	alleged, 	are 	passed 	on by 	the 	employer 	to 	the
Associat:i.on, 	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. 	'!'he 	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
f48 	LRRM 	2345J; 	Abood 	v. 	Detroit 	Board 	of 	Education 	(1977) 	431
U.S. 	209 	f.95 	LRRM 	2411]; 	Ellis, 	et 	al. 	v. 	Brotherhood 	of
Railway, 	Aj_rline 	and. 	Steams11ip Clerks 	(4/25/84) 	U.S.
f80 	L.Ed.2d 	428, 	52 	U.S.L.W. 	4499].) 	Consistent 	with 	thi;--
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
.•
dues, 	initiation 	fe~s, 	and 	general 	assessments
payable 	to 	the 	Association. 	·
7510 	An 	employee 	may authorize 	payroll
deduction 	for 	service 	fees 	in 	the 	same
manner 	provided 	for 	in 	Section 	7100 or
make 	payment 	directly 	to 	the 	Association.
Second, 	a 	"Mediator's 	Comprehensive 	Settlement Agreement"
("Settlement 	Agreement") 	resolved 	designated 	disputes 	between
the 	Djstrict 	and. 	Association, 	including 	the 	parties' 	1983/84
and 	1984/85 	collective 	bargaining 	agreement 	(Settlement
Agreement, 	paragraphs 	1.8 and 	1.9). 	'I'he 	Settlement 	Agreement
(at 	p. 	9) 	amended 	Article 	7510 of 	the 	1981/84 agreement 	to 	add
the 	followj_ng:
Upon 	the 	written 	request 	of 	the 	Association, 	the
District 	will 	deduct 	the 	amount 	of 	the 	service 	fee
from 	the 	paycheck 	of 	any 	unit 	member 	who has 	not
authorized 	a 	payroll 	deduction 	or 	paid 	directly 	to 	the
Association. 	The 	Association 	will 	reimburse 	the
District 	for. 	the 	actual 	cost 	of 	payroll 	deductions
mane 	pursuant 	to 	7510.

David 	Bryant
Rj_chard 	Loftus
September 	18, 	1984
Page 	3
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 	j_nterest 	j_n 	the 	subject 	is
limited 	to 	its 	willingness 	to 	impose 	on 	its
non-union 	employees 	an 	agency 	fee
requirement 	and, 	if 	so, 	whether 	an
authorization 	election 	[Gov. 	Code 	section
3546] 	j_s 	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
without 	the 	permission 	of 	employees 	who 	are 	obligated 	under 	a
collective 	bargaining 	agreement 	to 	pay 	such 	fees. 	The 	Board
has 	observed 	that 	under 	the EERA,
Pri.or 	approval 	of 	the 	payer 	[for 	an 	agency
fee 	deduction] 	is 	not 	only 	unnecessary but
:i.nconsistent 	with 	the 	involuntary nature 	of
such 	fees. 	wj_thholding 	approval 	would
enable 	the 	nonmember 	to 	circumvent 	the
legislative 	purpose 	and 	negotiated
agreement. 	To 	provide 	involuntary payers
with 	this 	opti.on 	would 	inevitably 	lead 	to
unduly 	burdensome 	collection 	problems 	and
ul t:i.mately 	to 	tbe 	wholesale 	enforcement 	of
tbe 	employment 	terminatj_on 	provisions 	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.)

David 	Bryant
Richard 	Loftus
September 	18, 	1984
Page 	4
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 	foregoing 	reasons, 	no 	complaint 	will 	issue 	and 	the
charge 	is 	hereby 	DISMISSED.l/
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 	B.oard 	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,
October 	9, 	1984, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mai~ 	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) 	copies 	of 	a 	statement 	in 	opposition 	within 	twenty
(20) 	calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(Board 	Rule 	32635(b)).
l/The 	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
R:i.chard 	"Loftus
September 	18, 	1984
Page 	5
Service
Al.l 	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 	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 	Boa.rd 	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 	(Board 	Rule 	32132):
pj_nal 	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. 	SULLIVA..~
General 	Counsel
Sac 	8765b