Los Altos School District (Broadwood, Chamberlain and Nutt) (PERB 0190E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
JOHN 	A. 	BROADWOOD, 	E.C. 	(BEVERLY)
CHAMBERLAIN, 	and 	BARBARA 	J. 	NUTT,
Charging 	Parties,
v.
LOS 	ALTOS 	TEACHERS 	ASSOCIATION,
Respondent.
Case 	Nos. 	SF-CO-30
SF-CO-31
SF-CO-32
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JOHN 	A. 	BROADWOOD, 	E.C. 	(BEVERLY)
CHAMBERLAIN, 	AND 	BARBARA 	J. 	NUTT,
Charqing 	Parties,
v.
LOS 	ALTOS 	SCHOOL 	DIS'rRICT,
_______
Respondent.
PERB 	Decision 	No. 190
December 29, 	1981
Case 	Nos. 	SF-CE-139
SF-CE-140
SF-CE-141
Appearances: 	David 	T. 	Bryant, 	Attorney 	(National 	Right 	to 	Work
Leqal 	Defense 	Foundation, 	Inc.) 	for 	John A. 	Broadwood, 	E. 	C.
(Beverly) 	Chamberlain, 	and 	Barbara 	J. 	Nutt; 	Joseph 	Schumb, 	Jr.
and 	James 	Keller, 	Attorneys 	(La 	Croix 	and 	Schumb) 	for 	Los 	Altos
Teachers 	Association.
Before 	Gluck, 	Chairperson, 	Moore 	and 	Tovar, 	Members.
DECISION	DECISION
The 	Los 	Altos 	Teachers 	Association 	(hereafter 	LATA 	or
Association) 	excepts 	to 	a 	hearing 	officer's 	proposed 	decision
that 	the 	negotiation 	and 	application 	of 	a 	retroactive 	service
fee 	provision 	violated 	subsections 	3543.S(a) 	and 	3543.6(a)
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN A. BROADWOOD, E. C. (BEVERLY)
CHAMBERLAIN, and BARBARA J. NUTT,
Charging Parties, 	Case Nos. 	SF-CO-30
SF-CO-31
v . 	SF-CO-32
LOS ALTOS TEACHERS ASSOCIATION,
Respondent.
PERB Decision No. 190
JOHN A. BROADWOOD, E. C. (BEVERLY) 	December 29, 1981
CHAMBERLAIN, AND BARBARA J. NUTT,
Charging Parties, 	Case Nos. 	SF-CE-139
SF-CE-140
v . 	SF-CE-141
LOS ALTOS SCHOOL DISTRICT,
Respondent.
Appearances: David T. Bryant, Attorney (National Right to Work
Legal Defense Foundation, Inc. ) for John A. Broadwood, E. C.
(Beverly) Chamberlain, and Barbara J. Nutt; Joseph Schumb, Jr.
and James Keller, Attorneys (La Croix and Schumb) for Los Altos
Teachers Association.
Before Gluck, Chairperson, Moore and Tovar, Members.
The Los Altos Teachers Association (hereafter LATA or
Association) excepts to a hearing officer's proposed decision
that the negotiation and application of a retroactive service
fee provision violated subsections 3543.5 (a) and 3543.6 (a)

and
	(b)
	of 	the 	Educational
	Employment
	Relations
	Act
	(hereafter
EERA
	or
	the 	Act).
1
r t	
For
	the 	reasons
	which
	follow,
	we
	reverse
the 	hearing
	officer's
	decision
	and
	dismiss
	all
	aspects
	of 	the
unfair
	practice
	complaint.
FACTS	FACTS
The
	facts
	in
	this
	case 	are
	simple
	and
	uncontested.
	After
being
	voluntarily
	recognized
	by
	the
	Los
	Altos
	School
	District
(hereafter
	District)
	in 	the
	spring 	of
	1976,
	the
	Association
1
lThe
	EERA
	is
	codified
	at
	Government
	Code
	section
	3540
et
	seq.
	All 	references 	herein
	will
	be
	to
	the
	Government 	Code
unless 	otherwise 	noted.
Subsection
	3543.S(a)
	reads:
It
	shall
	be
	unlawful 	for
	a
	public
	school
employer
	to:
(a) 	Impose
	or
	threaten
	to
	impose
	reprisals
on
	emplovees,
	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.
Subsections 	3543.6(a)
	and
	(b)
	read:
It
	shall
	be
	unlawful 	for
	an 	employee
organization 	to:
(a) 	Cause
	or 	attempt 	to 	cause
	a
	public
school
	employer
	to
	violate
	Section 	3543.5.
(b)
	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.
2
and (b) of the Educational Employment Relations Act (hereafter
EERA or the Act) . ! Fo 	he reasons which follow, we reverse
the hearing officer's decision and dismiss all aspects of the
unfair practice complaint.
The facts in this case are simple and uncontested. After
being voluntarily recognized by the Los Altos School District
(hereafter District) in the spring of 1976, the Association
The EERA is codified at Government Code section 3540
et seq. All references herein will be to the Government Code
unless otherwise noted.
Subsection 3543.5(a) reads:
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.
Subsections 3543.6 (a) and (b) read:
It shall be unlawful for an employee
organization to:
(a) Cause or attempt to cause a public
school employer to violate Section 3543.5.
(b) 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.
N

commenced 	negotiations 	with 	the 	District 	on 	July 	1 	of 	that
year. 	Ten 	months 	later, 	on May 	16, 	1977, 	the 	parties 	signed 	a
contract 	which 	was, 	by 	its 	terms, 	made 	retroactive 	to
July 	1, 	1976. 	The 	contract 	included 	a 	provision 	requiring
nonmembers 	to 	pay 	an 	annual 	service 	fee 	of 	$75.0o.2
Believing 	that 	they 	could 	be 	legally 	charged 	only 	a
pro 	rata 	portion 	of 	the 	annual 	fee. 	the 	charging 	parties
tendered 	to 	LATA 	approximately 	$10.00 	which 	represented 	the
portion 	of 	the 	annual 	fee 	calculated 	from 	the 	execution 	of 	the
contract 	to 	the 	end 	of 	the 	fiscal 	year. 	The 	Association
refused 	to 	accept 	this 	payment 	and 	requested 	that 	the 	District
initiate 	termination 	proceedings 	pursuant 	to Article 	II-F 	1.3
of 	the 	collective 	bargaining 	agreement.3 	On June 	22, 	1977 1
the 	District 	informed 	charging 	parties 	that 	it 	would 	be 	forced
to 	terminate 	them 	if 	they 	failed 	to 	join LATA 	or 	refused 	to 	pay
$75.00 	in 	service 	fees 	by June 	30, 	1977. 	Faced 	with 	these
alternatives, 	the 	charging 	parties 	paid 	the 	fee 	under 	protest
and 	filed 	the 	instant 	charges 	against 	the 	District 	and 	the
Association.
22The 	annual 	membershie 	fee 	in 	LATA 	is 	$202.00.
33The 	relevant 	portion 	of 	Article 	II-F 	reads:
The 	parties 	agree 	further 	that 	a 	failure 	by
any 	unit 	member 	to 	••. 	pay 	the 	service 	fee
during 	the 	term 	of 	this 	agreement 	shall
constitute 	just 	and 	reasonable 	cause 	for
discharge 	from 	employment.
3
commenced negotiations with the District on July 1 of that
year . 	Ten months later, on May 16, 1977, the parties signed a
contract which was, by its terms, made retroactive to
July 1, 1976. The contract included a provision requiring
nonmembers to pay an annual service fee of $75.00.2
Believing that they could be legally charged only a
pro rata portion of the annual fee, the charging parties
tendered to LATA approximately $10.00 which represented the
portion of the annual fee calculated from the execution of the
contract to the end of the fiscal year. The Association
refused to accept this payment and requested that the District
initiate termination proceedings pursuant to Article II-F 1.3
of the collective bargaining agreement. On June 22, 1977,
the District informed charging parties that it would be forced
to terminate them if they failed to join LATA or refused to pay
$75.00 in service fees by June 30, 1977. Faced with these
alternatives, the charging parties paid the fee under protest
and filed the instant charges against the District and the
Association.
The annual membership fee in LATA is $202.00.
The relevant portion of Article II-F reads:
The parties agree further that a failure by
any unit member to 	. pay the service fee
during the term of this agreement shall
constitute just and reasonable cause for
discharge from employment.
W

DISCUSSION	DISCUSSION
The 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or
Board) 	has 	not, 	until 	now, 	been 	called 	upon 	to 	consider 	whether
the 	retroactive 	enforcement 	of 	a 	service 	fee 	clause4 	violates
the 	right 	of 	employees 	specifically 	granted 	by 	section 	3543
" ..• 	to 	refuse 	to 	join 	or 	participate 	in 	the 	activities 	of
44subsection 	3540.l(i) 	reads:
"Organizational 	security" 	means 	either:
(1) 	An 	arrangement 	pursuant 	to 	which 	a
public 	school 	employee 	may 	decide 	whether 	or
not 	to 	join 	an 	employee 	organization, 	but
which 	requires 	him, 	as 	a 	condition 	of
continued 	employment, 	if 	he 	does 	join, 	to
maintain 	his 	membership 	in 	good 	standing 	for
the 	duration 	of 	the 	written 	agreement.
However. 	no 	such 	arrangement 	shall 	deprive
the 	employee 	of 	the 	right 	to 	terminate 	his
obligation 	to 	the 	employee 	organization
within 	a 	period 	of 	30 	days 	following 	the
expiration 	of 	a 	written 	agreement; 	or
(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.
Subsection 	3546(a) 	and 	(b) 	read:
Subject 	to 	the 	limitations 	set 	forth 	in 	this
section, 	organizational 	security, 	as
4
The Public Employment Relations Board (hereafter PERB or
Board) has not, until now, been called upon to consider whether
the retroactive enforcement of a service fee clause4 violates
the right of employees specifically granted by section 3543
. . . to refuse to join or participate in the activities of
subsection 3540.1(i) reads:
"Organizational security" means either:
(1) An arrangement pursuant to which a
public school employee may decide whether or
not to join an employee organization, but
which requires him, as a condition of
continued employment, if he does join, to
maintain his membership in good standing for
the duration of the written agreement.
However. no such arrangement shall deprive
the employee of the right to terminate his
obligation to the employee organization
within a period of 30 days following the
expiration of a written agreement; or
(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.
Subsection 3546(a) and (b) read:
Subject to the limitations set forth in this
section, organizational security, as

employee 	organizations •••
defined, 	shall 	be 	within 	the 	scope 	of
representation.
(a) 	An 	organizational 	security 	arrangement,
in 	order 	to 	be 	effective, 	must 	be 	agreed
upon 	by 	both 	parties 	to 	the 	agreement. 	At
the 	time 	the 	issue 	is 	being 	negotiated, 	the
public 	school 	employer 	may 	require 	that 	the
organizational 	security 	provision 	be 	severed
from 	the 	remainder 	of 	the 	proposed 	agreement
and 	cause 	the 	organizational 	security
provision 	to 	be 	voted 	upon 	separately 	by 	all
members 	in 	the 	appropriate 	negotiating 	unit,
in 	accordance 	with 	rules 	and 	regulations
promulgated 	by 	the 	board. 	Upon 	such 	a 	vote,
the 	organizational 	security 	provision 	will
become 	effective 	only 	if 	a 	majority 	of 	those
members 	of 	the 	negotiating 	unit 	voting
approve 	the 	agreement. 	Such 	vote 	shall 	not
be 	deemed 	to 	either 	ratify 	or 	defeat 	the
remaining 	provisions 	of 	the 	proposed
agreement.
(b) 	An 	organizational 	security 	arrangement
which 	is 	in 	effect 	may 	be 	rescinded 	by
majority 	vote 	of 	the 	employees 	in 	the
negotiating 	unit 	covered 	by 	such 	arrangement
in 	accordance 	with 	rules 	and 	regulations
promulgated 	by 	the 	board.
Charging 	parties 	acknowledge 	that 	an 	organizational
security 	agreement 	does 	constitute 	an 	exception 	to 	the 	right 	to
refrain 	from 	participating 	or 	joining, 	but 	claim 	that 	that
right 	cannot 	be 	abrogated 	by 	an 	agreement 	which 	did 	not 	exist
during 	the 	period 	in 	question. 	They 	argue 	that 	by
retroactively 	applying 	the 	service 	fee 	provision, 	employees 	are
penalized 	for 	exercising 	their 	right 	not 	to 	participate.
Charging 	parties 	urge 	that 	the 	private 	sector 	law 	which
supports 	their 	position 	should 	control 	our 	interpretation 	of
5
employee organizations.
Charging parties acknowledge that an organizational
security agreement does constitute an exception to the right to
refrain from participating or joining, but claim that that
right cannot be abrogated by an agreement which did not exist
during the period in question. They argue that by
retroactively applying the service fee provision, employees are
penalized for exercising their right not to participate.
Charging parties urge that the private sector law which
supports their position should control our interpretation of
defined, shall be within the scope of
representation.
(a) An organizational security arrangement,
in order to be effective, must be agreed
upon by both parties to the agreement. 	At
the time the issue is being negotiated, the
public school employer may require that the
organizational security provision be severed
from the remainder of the proposed agreement
and cause the organizational security
provision to be voted upon separately by all
members in the appropriate negotiating unit,
in accordance with rules and regulations
promulgated by the board. Upon such a vote,
the organizational security provision will
become effective only if a majority of those
members of the negotiating unit voting
approve the agreement. Such vote shall not
be deemed to either ratify or defeat the
remaining provisions of the proposed
agreement.
(b) An organizational security arrangement
which is in effect may be rescinded by
majority vote of the employees in the
negotiating unit covered by such arrangement
in accordance with rules and regulations
promulgated by the board.
5

the 	Act's 	pertinent 	provisions.5n 	Courts 	and 	the 	National
Labor 	Relations 	Board 	(hereafter 	NLRB) 	have 	consistently
interpreted 	section 	8(a) (3) 	of 	the 	National 	Labor 	Relations 	Act
(hereafter 	NLRA) 	as 	prohibiting 	the 	retroactive 	application 	of
any 	union 	security 	arrangement.6v 	However, 	we 	find 	these 	cases
distinguishable.
Virtually 	all 	of 	the 	cases 	relied 	on 	by 	the 	charging
parties 	and 	the 	hearing 	officer 	involved 	either 	maintenance 	of
membership 	or 	union 	shop 	clauses. 	In 	the 	principal 	case
concerning 	retroactive 	security 	agreements, 	the 	parties
included 	in 	their 	agreement 	a 	maintenance 	of 	membership 	clause
which 	applied 	retroactively 	to 	cover 	a 	hiatus 	period 	between
contracts. 	During 	this 	time, 	a 	rival 	organization 	mounted 	an
unsuccessful 	decertification 	campaign. 	In 	disallowing 	the
retroactive 	application 	of 	the 	clause, 	the 	NLRB 	offered 	two
Fi	Spire 	Fighters 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d 	608,
617 	concTiiaes 	that 	federal 	precedent 	"may 	properly 	be 	referred
to 	for 	enlightenment" 	in 	the 	interpretation 	of 	public 	sector
statutes 	which 	parallel 	the 	NLRA.
T6The 	relevant 	portion 	of 	the 	NLRA 	section 	8(a) (3) 	reads:
Provided, 	that 	nothing 	in 	this 	Act, 	or 	any
other 	statute 	of 	the 	United 	States, 	shall
preclude 	an 	employer 	from 	making 	an
agreement 	with 	a 	labor 	organization 	... 	to
require 	as 	a 	condition 	of 	employment
membership 	therein 	on 	or 	after 	the 	thirtieth
aay"rollowing 	lie-beg inning 	of 	such
employment 	or 	the 	effective 	date 	of 	such
agreement, 	whichever 	is 	the 	later 	..••
(emphasis 	added).
6
the Act's pertinent provisions. Courts a d the National
Labor Relations Board (hereafter NLRB) have consistently
interpreted section 8 (a) (3) of the National Labor Relations Act
(hereafter NLRA) as prohibiting the retroactive application of
any union security arrangement. Howe er, we find these cases
distinguishable.
Virtually all of the cases relied on by the charging
parties and the hearing officer involved either maintenance of
membership or union shop clauses. In the principal case
concerning retroactive security agreements, the parties
included in their agreement a maintenance of membership clause
which applied retroactively to cover a hiatus period between
contracts. During this time, a rival organization mounted an
unsuccessful decertification campaign. In disallowing the
retroactive application of the clause, the NLRB offered two
re Fighters v. City of Vallejo (1974) 12 Cal. 3d 608,
617 concludes that federal precedent "may properly be referred
to for enlightenment" in the interpretation of public sector
statutes which parallel the NLRA.
he relevant portion of the NLRA section 8 (a) (3) reads:
Provided, that nothing in this Act, or any
other statute of the United States, shall
preclude an employer from making an
agreement with a labor organization . 	to
require as a condition of employment
membership therein on or after the thirtieth
day following the beginning of such
employment or the effective date of such
agreement, whichever is the later .
( emphasis added) .

explanations.
	First,
	to
	permit
	retroactive
	maintenance
	of
membership
	would 	be
	to
	effectively 	establish
	a
	permanent
	closed
shop
7	
for 	those
	employees
	who
	had
	been
	members
	prior
	to 	the
execution
	of 	the
	agreement.
	Second, 	such
	a
	provision 	covering
a
	period
	during
	which
	the
	status
	of 	the 	exclusive
representative
	was
	in 	question
	would
	discourgage
	employees
	from
supporting
	rival
	organizations,
	Colonie
	Fibre
	(1946)
	69
	NLRB
589,
	[18
	LRRM
	1256], 	enforced
	(2d.
	Cir.
	1947) 	163
	F.2d
	65
[20
	LRRM
	2399]
	• 	As
	the
	NLRB
	said:
•..
	for
	us
	to
	hold
	otherwise
	would
	induce
in
	employees
	desirous
	of
	changing
	their
bargaining 	agent
	•••
	such
	a
	fear
	ofsubsequent
	reprisal
	in
	the 	event
	that 	their
efforts
	were
	unsuccessful
	that
	they
	would
never
	evoke
	their 	right
	in 	thesecircumstances
	to
	a
	change
	of
representatives.
	(p.
	59.)8
In
	New
	York
	Shipbuilding
	Corp.
	(1950)
	89
	NLRB
	1446 	[26
	LRRM
1124], 	the
	board
	invalidated
	a
	union 	shop
	clause9	
that
7
7A	
closed
	shop
	provision 	requires 	that
	the
	employer
	hire
only 	persons
	who
	are 	already
	members	
of 	the
	contracting
	union.
8
81n
	the
	NLRB's
	supplemental 	Colonie 	Fibre 	decision,
(1946) 	71
	NLRB
	354,
	[18
	LRRM
	1500],
	it
	discusses
	at 	greaterlength 	the
	chilling 	effects 	retroactive
	maintenance 	of
membership 	would 	have 	on
	the
	rights
	of 	employees
	to 	express
freely 	their 	right
	to
	select
	an
	exclusive 	representative 	during
a 	window	
period. 	This 	leaves
	little
	doubt
	that
	a
	significant
part
	of 	the
	rationale
	in 	Colonie 	Fibre
	was
	based
	on
	the 	need 	to
protect
	employees'
	right 	to 	freely 	select
	an
	exclusive
representative 	during
	a
	period
	when
	there
	was 	a
	valid 	questionconcerning 	representation.
"9A	
union 	shop 	clause 	requires
	all
	employees
	to
	become
members
	of 	the 	union 	within
	30
	days
	after 	hire 	or
	after 	the
contract 	is
	executed.
7
explanations. First, to permit retroactive maintenance of
membership would be to effectively establish a permanent closed
shop for those employees who had been members prior to the
execution of the agreement. 	Second, such a provision covering
a period during which the status of the exclusive
representative was in question would discourage employees from
supporting rival organizations, Colonie Fibre (1946) 69 NLRB
589, [18 LRRM 1256], enforced (2d. Cir. 1947) 163 F. 2d 65
[20 LRRM 2399] . As the NLRB said:
. for us to hold otherwise would induce
in employees desirous of changing their
bargaining agent . 	. such a fear of
subsequent reprisal in the event that their
efforts were unsuccessful that they would
never evoke their right in these
circumstances to a change of
representatives. (p. 59.)8
In New York Shipbuilding Corp. (1950) 89 NLRB 1446 [26 LRRM
1124], the board invalidated a union shop clause that
A closed shop provision requires that the employer hire
only persons who are already members of the contracting union.
In the NLRB's supplemental Colonie Fibre decision,
(1946) 71 NLRB 354, [18 LRRM 1500], it discusses at greater
length the chilling effects retroactive maintenance of
membership would have on the rights of employees to express
freely their right to select an exclusive representative during
a window period. This leaves little doubt that a significant
part of the rationale in Colonie Fibre was based on the need to
protect employees' right to freely select an exclusive
representative during a period when there was a valid question
concerning representation.
A union shop clause requires all employees to become
members of the union within 30 days after hire or after the
contract is executed.
7

would 	require 	retroactive 	membership 	to 	a 	period 	ante-dating
the 	effective 	date 	of 	the 	contract. 	Citing 	Colonie 	Fibre, 	the
NLRB 	held 	that 	the 	Act 	did 	not 	"sanction 	a 	contract 	which
requires 	past 	membership 	in 	the 	union 	as 	a 	condition 	of
employment." 	(p. 	1447.)lO 	Moreover, 	the 	NLRB 	noted 	that 	the
8 (a) (3) 	proviso 	of 	the 	Taft-Hartley 	amendments
specifically defers 	the 	lawful 	application
of 	a 	union 	security 	agreement 	until 	"on 	or
after 	the 	thirtieth 	day 	following 	the
beginning 	of 	such 	employment 	or 	the
effective 	date 	of 	such 	agreement 	whichever
is 	later."
Since 	the 	Taft-Hartley 	amendments, 	the 	NLRB, 	supported 	by
the 	courts, 	has 	guarded 	the 	grace 	period, 	refusing 	to 	enforce
union 	shop 	clauses 	which 	deny 	employees 	the 	full 	30 	days. 11
Il
As 	the 	board 	noted 	in Adams 	Division, 	Le 	Tourneau
Westinghouse 	Co. 	(1963) 	143 	NLRB 	827 	[53 	LRRM 	1421]:
. 	the 	denial 	of 	the 	grace 	period 	leaves
Respondents 	with 	no 	legal 	agreement 	to
justify 	Kellam 1 s 	discharge 	for 	nonpayment 	of
dues. 	(Emphasis 	added.)
Other 	cases 	which 	do 	not 	specifically 	rely 	on 	the 	grace
period 	for 	finding 	retroactive 	security 	clauses 	illegal 	seem 	to
10	l0see 	also 	Namms, 	Inc., 	(1953) 	102 	NLRB 	466 	[31 	LRRM
1328] 	and 	International 	Cliemical 	Workers 	(American 	Cyanamid)
t1n"78\	\ ..L::;, I 	23"7I 	J."J
	urnn	.. 	064 	(00 	,DOM	J 	U."'\.U V 	.7 J 	U .. 	11i::::2]	J	J.... \,J.'\.L".A .J.. 	II
8
llAssociated 	Machines 	(1955) 	114 	NLRB 	390 	[36 	LRRM 	1582];
Seaboard 	Terminal 	v. 	Refrigeration 	(1955) 	114 	NLRB 	1391
ffi 	LRRM 	1136]; 	Anderson 	Express 	Co. 	(1960) 	126 	NLRB 	798
[45 	LRRM 	1188].
would require retroactive membership to a period ante-dating
the effective date of the contract. Citing Colonie Fibre, the
NLRB held that the Act did not "sanction a contract which
requires past membership in the union as a condition of
employment. " (p. 1447.) . Moreover, the NLRB noted that the
8 (a) (3) proviso of the Taft-Hartley amendments
specifically defers the lawful application
of a union security agreement until "on or
after the thirtieth day following the
beginning of such employment or the
effective date of such agreement whichever
is later."
Since the Taft-Hartley amendments, the NLRB, supported by
the courts, has guarded the grace period, refusing to enforce
union shop clauses which deny employees the full 30 days.
As the board noted in Adams Division, Le Tourneau
Westinghouse Co. (1963) 143 NLRB 827 [53 LRRM 1421] :
. the denial of the grace period leaves
Respondents with no legal agreement to
justify Kellam's discharge for nonpayment of
dues. 	(Emphasis added. )
Other cases which do not specifically rely on the grace
period for finding retroactive security clauses illegal seem to
see also Namms, Inc., (1953) 102 NLRB 466 [31 LRRM
1328] and International Chemical Workers (American Cyanamid)
(1978) 237 NLRB 864 99 LRRM 1152] .
llAssociated Machines (1955) 114 NLRB 390 [36 LRRM 1582] ;
Seaboard Terminal v. Refrigeration (1955) 114 NLRB 1391
[37 LRRM 1136]; Anderson Express Co. (1960) 126 NLRB 798
[45 LRRM 1188].
CO

be
	based
	on
	"settled
	law.
11
	For
	example,
	in
	Namms,
	Inc.,
	supra,
the
	NLRB
	said:
It
	is 	settled
	law
	that
	a
	union
	shop
	contract
may
	not
	be
	retroactively
	applied
	to
	effect
the 	discharge 	of
	an 	employee
	for
	failing
	to
[pay]
	dues
	that
	accrued
	during
	a
	time
	when
he
	was
	under
	no
	contractual 	obligation
	to
	do
so 	as
	a
	condition
	of
	employment.
	p.
	469.
See
	also
	Teamsters,
	Local
	No.
	25
	(Tech
	Weld
	Corp.)
	(197 5)
	220
NLRB
	76
	[90
	LRRM
	1193]; 	United
	Mine
	Workers,
	Dist.
	50
(Ruberoid)
	(1968) 	173
	NLRB
	87 	[69
	LRRM
	1241];
	Eclipse
	Lumber
Co., 	Inc.
	(1951) 	95
	NLRB
	464,
	[28
	LRRM
	1329]; 	General
	American
Transportation
	Corp.
	(1950)
	90
	NLRB
	239 	[26
	LRRM
	1188].
As
	discussed
	above,
	Namms
	did 	not 	involve
	a
	retroactive
security 	clause,
	but
	an
	attempt
	by
	the 	union,
	pursuant 	to
	a
newly
	negotiated
	union
	shop
	clause, 	to 	force
	members
	to
	pay
back 	dues
	for
	a
	period 	during
	which
	there
	was 	no
	contract.
This 	case
	is
	not
	on
	point
	and
	we
	therefore 	decline 	to
	apply
	it
to 	the 	case 	before 	us.
In 	cases
	which
	are 	factually 	similar 	to 	the
	instant
	case
(i.e.,
	where
	the
	contract
	itself
	has 	been
	made
	retroactive),
the
	NLRB
	has, 	in
	some
	instances,
	without
	analysis, 	applied
Namms
	to 	find
	such
	clauses
	illegal.
	This 	subsequent
	reliance
on
	Namms
	to 	support 	conclusions 	in 	factually 	different
	cases
	is
inappropriate.
	We
	are 	also
	unpersuaded 	by	
those 	cases
	which,
while 	analogous 	to 	the
	instant
	case
	and
	not 	relying
	on
	Namms,
lack 	analysis 	or 	rationale 	to 	support 	their 	conclusions.
9
be based on "settled law." For example, in Namms, Inc., supra,
the NLRB said:
It is settled law that a union shop contract
may not be retroactively applied to effect
the discharge of an employee for failing to
[pay] dues that accrued during a time when
he was under no contractual obligation to do
so as a condition of employment. 	P. 469.
See also Teamsters, Local No. 25 (Tech Weld Corp. ) (1975) 220
NLRB 76 [90 LRRM 1193]; United Mine Workers, Dist. 50
(Ruberoid) (1968) 173 NLRB 87 [69 LRRM 1241]; Eclipse Lumber
Co., Inc. (1951) 95 NLRB 464, [28 LRRM 1329] ; General American
Transportation Corp. (1950) 90 NLRB 239 [26 LRRM 1188] .
As discussed above, Namms did not involve a retroactive
security clause, but an attempt by the union, pursuant to a
newly negotiated union shop clause, to force members to pay
back dues for a period during which there was no contract.
This case is not on point and we therefore decline to apply it
to the case before us.
In cases which are factually similar to the instant case
(i. e., where the contract itself has been made retroactive) ,
the NLRB has, in some instances, without analysis, applied
Namms to find such clauses illegal. This subsequent reliance
on Namms to support conclusions in factually different cases is
inappropriate. We are also unpersuaded by those cases which,
while analogous to the instant case and not relying on Namms,
lack analysis or rationale to support their conclusions.

NLRB
	law 	which
	addresses
	retroactive
	union
	security 	clauses
is
	based, 	in
	part,
	on
	the
	protection
	of 	the
	30-day
	statutory
grace 	period
	which 	must
	be
	available
	at
	the
	"beginning 	of
employment"
	or
	"following
	...
	the
	effective
	date 	of
	such
agreement,
	whichever
	is 	later."
	No
	such
	requirement
	exists
	in
EERA's
	service
	fee
	provision.
	EERA's
	only
	mention
	of
	a
	30-day
withdrawal
	period
	appears
	in
	the
	definition
	of
	maintenance
	of
membership
	(subsection
	3540.l(i) (1)),
	and
	there
	it
	is
	available
only
	at
	the
	expiration
	of
	a
	written
	agreement.
Significantly,
	EERA,
	unlike
	its
	federal 	counterpart,
contemplates 	the
	agency
	fee
	being
	in 	force
for 	the
	duration
	of 	the 	agreement, 	or
	a
period 	of
	three 	years
	from
	the
	effective
date 	of
	such 	agreementf 	whichever
	comes
fir-st.12	
(Emphasis 	added.)
The
	effective
	date
	is 	that
	on 	which
	the
	contract 	provisions
become
	operative.
	The
	duration 	of
	a
	contract
	covers
	that
period
	commencing
	with 	the	
effective
	date
	and
	ending
	on
	the
expiration 	date. 	Collective 	bargaining
	agreements
	frequently
contain
	retroactive 	provisions,
	a
	fact
	the
	Legislature
	was
surely
	aware	
of.
12	
12counterposed 	to 	the 	phrase 	"for 	the 	duration 	of 	theagreement," 	the
	words
	"three 	years
	from
	the
	effective 	date 	of
the 	agreement"
	takes 	into
	account
	that 	security
	agreements
cannot 	exceed 	the 	permitted
	term 	of 	the
	collective 	bargainingagreement. 	Subsection 	3540.l(h) 	prohibits
	any
	collectivebargaining 	agreement 	from 	exceeding 	three 	years.
10
NLRB law which addresses retroactive union security clauses
is based, in part, on the protection of the 30-day statutory
grace period which must be available at the "beginning of
employment" or "following . 	. the effective date of such
agreement, whichever is later. " No such requirement exists in
EERA's service fee provision. EERA's only mention of a 30-day
withdrawal period appears in the definition of maintenance of
membership (subsection 3540.1(i) (1) ) , and there it is available
only at the expiration of a written agreement.
Significantly, EERA, unlike its federal counterpart,
contemplates the agency fee being in force
for the duration of the agreement, or a
period of three years from the effective
date of such agreement, whichever comes
first . 12 	(Emphasis added . )
The effective date is that on which the contract provisions
become operative. The duration of a contract covers that
period commencing with the effective date and ending on the
expiration date. Collective bargaining agreements frequently
contain retroactive provisions, a fact the Legislature was
surely aware of.
Counterposed to the phrase "for the duration of the
agreement, " the words "three years from the effective date of
the agreement" takes into account that security agreements
cannot exceed the permitted term of the collective bargaining
agreement. Subsection 3540.1(h) prohibits any collective
bargaining agreement from exceeding three years.
10

The 	policy 	considerations 	which 	undoubtedly 	led 	to 	the
inclusion 	of 	organizational 	security 	in 	EERA 	lead 	us 	to
conclude 	that 	the 	retroactive 	clause 	negotiated 	in 	Los 	Altos
does 	not 	violate 	the 	Act. 	Unions 	must 	fairly 	represent 	all
unit 	members 	from 	the 	time 	the 	organization 	is 	certified 	or
recognized, 	regardless 	of 	whether 	there 	is 	a 	collective
bargaining 	agreement.13	Duri During 	the 	pre-contract 	period, 	the
organization 	incurs 	expenses 	while 	negotiating 	with 	the
employer, 	a 	process 	that 	produces 	the 	wages, 	hours, 	and 	terms
and 	conditions 	of 	employment 	which 	benefit 	members 	and
nonmembers 	alike. 	Section 	3544.9 	obligates 	the 	exclusive
representative 	to 	process 	meritorious 	grievances 	which 	may
arise 	before 	a 	contract 	is 	signed 	without 	regard 	to 	the
grievants 1 	membership 	status. 	To 	exempt 	nonmembers 	from 	a
retroactive 	application 	of 	the 	service 	fee 	would 	defeat 	the
very 	purpose 	of 	the 	fee. 	Ironically, 	the 	longer 	negotiations
took, 	the 	more 	difficulty 	in 	arriving 	at 	a 	settlement, 	the 	less
13	13section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
Fremont 	Unified 	District 	Teachers 	Association 	(Janet 	King)
(4/21/80) 	PERB 	Decision No. 	125;Rocklin Teachers 	Professional
Association 	(Thomas 	Romero) 	(3/26/80) 	PERB 	Decision No. 	124;
Vaca 	v. 	Sipes 	379 	U.S. 	650 	[58 	LRRM 	2193].
11
The policy considerations which undoubtedly led to the
inclusion of organizational security in EERA lead us to
conclude that the retroactive clause negotiated in Los Altos
does not violate the Act. Unions must fairly represent all
unit members from the time the organization is certified or
recognized, regardless of whether there is a collective
bargaining agreement. 13 	ng the pre-contract period, the
organization incurs expenses while negotiating with the
employer, a process that produces the wages, hours, and terms
and conditions of employment which benefit members and
nonmembers alike. Section 3544.9 obligates the exclusive
representative to process meritorious grievances which may
arise before a contract is signed without regard to the
grievants' membership status. To exempt nonmembers from a
retroactive application of the service fee would defeat the
very purpose of the fee. Ironically, the longer negotiations
took, the more difficulty in arriving at a settlement, the less
section 3544.9 states:
The employee organization recognized or
certified as the exclusive representative
for the purpose of meeting and negotiating
shall fairly represent each and every
employee in the appropriate unit.
Fremont Unified District Teachers Association (Janet King)
(4/21/80) PERB Decision No. 125; Rocklin Teachers Professional
Association (Thomas Romero) (3/26/80) PERB Decision No. 124;
Vaca v. Sipes 379 U.S. 650 [58 LRRM 2193] .
11

nonmembers
	would 	be
	obligated 	to
	pay,
	and
	the
	greater
	would 	be
their
	subsidy
	from 	members.
	Since
	the
	Legislature
	has
	decided
that
	the 	purposes 	of
	EERA
	are
	furthered
	by
	distributing
	the
representational 	costs
	among
	all
	employees
	in 	the
	unit,
	it
	is
logical 	that
	the
	nonmembers'
	financial 	obligations
	be
	congruent
with
	the
	organization's 	representational 	obligations.
In
	accord
	are
	at 	least
	five 	other 	public 	sector
jurisdictions.
1est	4	
Westbury,
	supra,
	is 	particularly
persuasive,
	as
	the
	pertinent
	provisions
	of
	New
	York's 	Taylor
Act
	closely
	resemble
	EERA's.
	Neither
	statute 	specifically
prohibits 	retroactive 	security
	agreements; 	both 	omit
	the
	NLRA
30-day
	grace 	period
	with
	respect 	to
	agency
	fee
	clauses;
	and
both 	render
	organizational 	security 	specifically
	negotiable.
The
	New
	York
	Public
	Employment
	Relations
	Board
	rejected
private 	sector 	precedent,
	viewing
	all	
of 	the 	post-1947
	cases
	as
rooted 	in 	the
	protection
	of 	the 	grace
	period.
	The
	Colonie
Fibre
	rationale
	was
	rejected
	as
	good
	authority
	because
	it
	was
based
	in
	significant 	part
	on
	the 	presence 	of
	a
	question
concerning
	representation,
	a
	fact
	not
	present 	in 	the
	New
	York
14	
14see
	Westbury	
School	
District 	(7/13/79)	
12
	New
	York
	PERB
4570; 	Berns 	v.
	WERC,
	W1scons1n
	Circuit	
Court 	Branch	
No.
	2,
#470-606	
(4/2/79) 	804
	GERR	
15; 	Milwaukee 	Board	
of 	Education
Wisconsin Court 	of 	Appeals 	(12/11/79)
	2
	NDER
	11018
	affirms
Berns, 	supra;	
Oregon
	City 	School	
District 	(12/27/76)	
OERB
Decision 	No. 	162,
	688
	GERR
	B-1; 	Leominster	
(l/24/80)	
6
	MLC
1809; 	Hawaii
	Fire 	Fighters,
	Local 	1463, 	IAFF, 	(1973) 	HPERB
Decision
	No.
	35.
12
nonmembers would be obligated to pay, and the greater would be
their subsidy from members. Since the Legislature has decided
that the purposes of EERA are furthered by distributing the
representational costs among all employees in the unit, it is
logical that the nonmembers' financial obligations be congruent
with the organization's representational obligations.
In accord are at least five other public sector
jurisdictions. 14 W 	bury, supra, is particularly
persuasive, as the pertinent provisions of New York's Taylor
Act closely resemble EERA's. Neither statute specifically
prohibits retroactive security agreements; both omit the NLRA
30-day grace period with respect to agency fee clauses; and
both render organizational security specifically negotiable.
The New York Public Employment Relations Board rejected
private sector precedent, viewing all of the post-1947 cases as
rooted in the protection of the grace period. The Colonie
Fibre rationale was rejected as good authority because it was
based in significant part on the presence of a question
concerning representation, a fact not present in the New York
see Westbury School District (7/13/79) 12 New York PERB
4570; Berns v. WERC, Wisconsin Circuit Court Branch No. 2,
#470-606 (4/2/79) 804 GERR 15; Milwaukee Board of Education
Wisconsin Court of Appeals (12/11/79) 2 NDER 11018 affirms
Berns, supra; Oregon City School District (12/27/76) OERB
Decision No. 162, 688 GERR B-1; Leominster (1/24/80) 6 MLC
1809; Hawaii Fire Fighters, Local 1463, IAFF, (1973) HPERB
Decision No. 35.
12

case. 	But, 	possibly 	the 	most 	powerful 	argument 	made 	by 	the
New 	York 	board, 	in 	our 	view, 	dealt 	with 	the 	very 	purpose 	of 	the
service 	fee, 	i.e., 	that 	policy 	considerations 	dictate 	imposing
mutual 	obligations 	on 	the 	parties 	involved. 	Since 	unions 	must
fairly 	represent 	all 	unit 	members 	during 	the 	pre-contract
period, 	it 	is 	only 	fair 	to 	require 	all 	unit 	employees 	to
contribute 	to 	the 	costs 	necessarily 	incurred 	by 	the 	union 	in
fulfilling 	its 	duty.
Finally, 	the 	collective 	bargaining 	scheme 	of 	EERA 	as 	a
whole 	supports 	retroactivity 	in 	several 	other 	respects.
Organizational 	security 	is 	specifically 	within 	the 	scope 	of
mandatory 	negotiations. 	Nothing 	in 	the 	Act 	indicates 	that 	the
negotiability 	of 	organizational 	security 	agreements 	is 	subject
to 	treatment 	different 	from 	other 	negotiable 	items 	such 	as
wages, 	hours 	or 	appropriate 	terms 	and 	conditions 	of
employment. 	All 	of 	the 	latter 	may 	be 	and 	frequently 	are 	given
retroactive 	effect 	by 	collective 	negotiating 	agreements.
Charging 	parties' 	contention 	that 	allowing 	retroactivity
would 	violate 	principles 	of 	constitutional 	law 	which 	generally
disapprove 	of 	the 	retroactive 	application 	of 	statutes 	is
without 	merit. 	We 	are 	concerned 	here 	not 	with 	a 	retroactive
statute 	but 	a 	retroactive 	contract, 	which 	did 	not 	ante-date 	the
effective 	date 	of 	the 	statute.
The Association 	and 	the 	District 	did 	not 	violate 	EERA 	by
negotiating 	and 	enforcing 	an 	agency 	fee 	provision 	retroactive
to 	the 	effective 	date 	of 	their 	contract.
13
case. But, possibly the most powerful argument made by the
New York board, in our view, dealt with the very purpose of the
service fee, i.e., that policy considerations dictate imposing
mutual obligations on the parties involved. Since unions must
fairly represent all unit members during the pre-contract
period, it is only fair to require all unit employees to
contribute to the costs necessarily incurred by the union in
fulfilling its duty.
Finally, the collective bargaining scheme of EERA as a
whole supports retroactivity in several other respects.
Organizational security is specifically within the scope of
mandatory negotiations. Nothing in the Act indicates that the
negotiability of organizational security agreements is subject
to treatment different from other negotiable items such as
wages, hours or appropriate terms and conditions of
employment. All of the latter may be and frequently are given
retroactive effect by collective negotiating agreements.
Charging parties' contention that allowing retroactivity
would violate principles of constitutional law which generally
disapprove of the retroactive application of statutes is
without merit. We are concerned here not with a retroactive
statute but a retroactive contract, which did not ante-date the
effective date of the statute.
The Association and the District did not violate EERA by
negotiating and enforcing an agency fee provision retroactive
to the effective date of their contract.
13

ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
unfair
	practice
	charges
	filed
	against
	the
	Los
	Altos
	School
District
	and
	the
	Los
	Altos
	Teachers
	Association 	are
	hereby
DISMISSED.
(
By:
	Harry 	Gluck,
	Chairperson 	Barbara
	D.
	Moore,
	Member
Iren~'--'rovar,
	Member
14
ORDER
The Public Employment Relations Board ORDERS that the
unfair practice charges filed against the Los Altos School
District and the Los Altos Teachers Association are hereby
DISMISSED.
By : 	Harry Gluck, Chairperson 	Barbara D. Moore, Member
Irene Tovar, Member
14

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN 	A. 	BROADWOOD, 	E.C. 	(BEVERLY)
CHAMBERLAIN, 	and 	BARBARA ,J. 	NUTT,
Charging 	Parties,
v.
LOS 	ALTOS 	TEACHERS 	ASSOCIATION,
Respondent.
UNFAIR 	PRACTICE 	CHARGE
Case 	Nos. 	SF-CO-30, 	31, 	&
32-77/78
)
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___________________ )
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___________________ )
JOHN 	A. 	BROADWOOD, 	E.C. 	(BEVERLY)
CHAMBERLAIN, 	and 	BARBARA J. 	NUTT,
Charging 	Parties,
V •
LOS 	ALTOS 	SCHOOL 	DISTRICT,
Respondent.
Case 	Nos. 	SF-CE-J3g, 	140,
141-77/78
PROPOSED 	DECISION
(9-6-78)
Appearances: 	David 	T. 	Bryant, 	Attorney 	(National 	Right 	to 	Work
Legal 	Defense 	Foundation, 	Inc.) 	for 	John 	A. 	Broadwood, 	E.C.
(Beverly) 	Chamberlain, 	and 	Barbara 	J. 	Nutt; 	Joseph 	Schumh, 	Jr. 	an~
James 	Keller, 	Attorneys 	(La 	Croix 	and 	Schumb) 	for 	Los 	Altos
Teachers 	Association; 	Maureen 	McCJ.ain, 	Attornev 	(Littler,
Mendelson, 	Fastiff 	and 	Tichy) 	for 	Los 	AJ.tos 	School 	District.
Before 	Gerald 	A. 	Becker, 	Hearing 	Officer.
PROCEDURAL HISTORY	PROCEDURAL 	HISTORY
On 	August 	l, 	1.977, 	three 	certificate~ 	employees 	of 	the 	Los
AJtos 	School 	District 	(hereafter 	District), 	John 	A. 	Broadwood,
E.C. 	(Beverly) 	Chamberlain, 	and 	Barbara 	J. 	Nutt 	(hereafter
Charging 	Parties) 	each 	filed 	separate 	unfair 	practice 	charges
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN A. BROADWOOD, E. C. (BEVERLY)
CHAMBERLAIN, and BARBARA J. NUTT,
Charging Parties, UNFAIR PRACTICE CHARGE
V.
Case Nos. SF-CO-30, 31, &
32-77/78
LOS ALTOS TEACHERS ASSOCIATION,
Respondent.
JOHN A. BROADWOOD, E. C. (BEVERLY)
CHAMBERLAIN, and BARBARA J. NUTT,
Charging Parties,
Case Nos. SF-CE-139, 140,
V. 	141-77/78
PROPOSED DECISION
LOS ALTOS SCHOOL DISTRICT, 	(9-6-78)
Respondent.
Appearances: David T. Bryant, Attorney (National Right to Work
Legal Defense Foundation, Inc. ) for John A. Broadwood, E.C.
(Beverly) Chamberlain, and Barbara J. Nutt; Joseph Schumb, Jr. and
James Keller, Attorneys (La Croix and Schumb) for Los Altos
Teachers Association; Maureen Mcclain, Attorney (Littler,
Mendelson, Fastiff and Tichy) for Los Altos School District.
Before Gerald A. Becker, Hearing Officer.
On August 1, 1977, three certificated employees of the Los
Altos School District (hereafter District), John A. Broadwood,
E.C. (Beverly) Chamberlain, and Barbara J. Nutt (hereafter
Charging Parties) each filed separate unfair practice charges

against 	the 	District 	and 	against 	the 	Los 	Altos 	Teachers
Association 	(hereafter 	Association) 	alleging 	that 	the 	District
1
violated 	Government 	Code 	section 	3543.5(a) 	and 	that 	the
Association 	violated 	section 	3543.6(a) 	and 	(b) 	by 	negotiating 	a
retroactive 	service 	fee 	for 	non-members 	of 	the 	Association. 	Both
the 	District 	and 	the 	Association 	filed 	answers 	to 	the 	charges 	not
denying 	the 	factual 	allegations, 	but 	denying 	any 	unfair 	practice
violation.
The 	six 	charges 	were 	consolidated 	and 	in 	lieu 	of 	a 	hearing,
the 	parties 	agreed 	to 	submit 	the 	matter 	to 	this 	hearing 	officer
for 	a 	proposed 	decision 	based 	on 	a 	stipulated 	statement 	of 	facts
and 	written 	briefs.
ISSUE	ISSUE
May 	an 	organizational 	service 	fee 	arrangement 	under 	sections
3540.l(i) 	and 	3546 	be 	made 	retroactive 	to 	the 	nate 	of 	commencement
of 	negotiations?
FINDINGS 	OF 	FACT
The 	essential 	stipulated 	facts 	are 	summarizea 	as 	follows:
On 	May 	3, 	1976, 	the 	District 	recognized 	the 	Association 	as
the 	exclusive 	representative 	of 	a 	unit 	of 	certificated 	employees
which 	includes 	each 	of 	the 	Charging 	Parties. 	On 	July 	1, 	1976 	the
lAll 	references 	are 	to 	the 	Government 	Code 	unless 	the 	context
indicates 	otherwise.
2
against the District and against the Los Altos Teachers
Association (hereafter Association) alleging that the District
violated Government Code section 3543.5 (a)* and that the
Association violated section 3543.6 (a) and (b) by negotiating a
retroactive service fee for non-members of the Association. Both
the District and the Association filed answers to the charges not
denying the factual allegations, but denying any unfair practice
violation.
The six charges were consolidated and in lieu of a hearing,
the parties agreed to submit the matter to this hearing officer
for a proposed decision based on a stipulated statement of facts
and written briefs.
May an organizational service fee arrangement under sections
3540. 1 (i) and 3546 be made retroactive to the date of commencement
of negotiations?
FINDINGS OF FACT
The essential stipulated facts are summarized as follows:
On May 3, 1976, the District recognized the Association as
the exclusive representative of a unit of certificated employees
which includes each of the Charging Parties. On July 1, 1976 the
All references are to the Government Code unless the context
indicates otherwise.
2

District 	and 	the 	Association 	commenced 	negotiations 	resulting 	in
execution 	of 	a 	collective 	negotiations 	agreement 	on 	May 	16, 	1977.
The 	agreement 	had 	a 	two-year 	term, 	retroactive 	to 	July 	l,
1976 	and 	running 	through 	June 	30, 	1978. 	An 	organizational
security 	provision 	in 	the 	agreement 	provides 	for 	payment 	to 	the
Association 	of 	a 	$75 	annual 	service 	fee 	by 	non-member 	employees 	in
the 	unit 	employed 	35 	percent 	or 	more 	("agency 	shop" 	fee), 	and
further 	provides 	that 	an 	employee 	shall 	be 	terminated 	for
non-payment 	of 	the 	service 	fee. 	Dues 	for 	Association 	members 	are
$202 	per 	year. 	Both 	membership 	dues 	and 	service 	fees 	were 	made
retroactive 	to 	July 	1, 	1976.
The 	Charging 	Parties 	at 	no 	time 	were 	members 	of 	the
Association. 	Each 	tendered 	$10.07 	to 	the 	Association 	representing
the 	prorated 	portion 	of 	the 	service 	fee 	for 	the 	period 	May 	16,
1977 	to 	June 	30, 	1977, 	and 	refused 	to 	pay 	the 	remainder 	of 	the 	$75
fee 	covering 	the 	period 	July 	1, 	1976 	to 	May 	]6, 	1977. 	The
Association 	refused 	to 	accept 	the 	tendered 	payment 	and 	requested
payment 	in 	full 	of 	the 	$75 	service 	fee 	by 	June 	30, 	1977. 	The
District 	notified 	the 	Charging 	Parties 	that 	unless 	they 	tendered
the 	$75 	service 	fee 	to 	the 	Association 	or 	authorized 	a 	payroll
deduction 	in 	this 	amount 	by June 	30, 	1977, 	it 	would 	be 	forced 	to
commence 	dismissal 	proceedings 	in 	accordance 	with 	the
organizational 	security 	provision 	of 	the 	agreement. 	Charging
Parties 	then 	paid 	the 	full 	service 	fee 	under 	protest.
3
District and the Association commenced negotiations resulting in
execution of a collective negotiations agreement on May 16, 1977.
The agreement had a two-year term, retroactive to July 1,
1976 and running through June 30, 1978. An organizational
security provision in the agreement provides for payment to the
Association of a $75 annual service fee by non-member employees in
the unit employed 35 percent or more ("agency shop" fee), and
further provides that an employee shall be terminated for
non-payment of the service fee. Dues for Association members are
$202 per year. Both membership dues and service fees were made
retroactive to July 1, 1976.
The Charging Parties at no time were members of the
Association. Each tendered $10.07 to the Association representing
the prorated portion of the service fee for the period May 16,
1977 to June 30, 1977, and refused to pay the remainder of the $75
fee covering the period July 1, 1976 to May 16, 1977. 	The
Association refused to accept the tendered payment and requested
payment in full of the $75 service fee by June 30, 1977. 	The
District notified the Charging Parties that unless they tendered
the $75 service fee to the Association or authorized a payroll
deduction in this amount by June 30, 1977, it would be forced to
commence dismissal proceedings in accordance with the
organizational security provision of the agreement. Charging
Parties then paid the full service fee under protest.
3

DISCUSSION AND 	CONCLUSIONS 	OF 	LAW	DISCUSSION AND CONCLUSIONS OF LAW
A. 	In 	General
In 	addition 	to 	the 	right 	to 	participate 	in 	organizational
activities, 	public 	school 	employees 	have 	the 	right 	under 	section
3543 	"to 	refuse 	to 	join 	or 	participate 	in 	the 	activities 	of
employee 	organizations." 	This 	right 	is 	protected 	by 	sections
3543.5(a) 	and 	3543.6(b) 	which 	respectively 	prohibit 	actions 	by 	an
employer 	and 	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.
Section 	3543.6(a) 	further 	makes 	it 	unlawful 	for 	an 	employee
organization 	to 	cause 	or 	attempt 	to 	cause 	a 	public 	school 	employer
to 	violate 	section 	3543.5.
But 	for 	its 	retroactive 	application, 	the 	Charging 	Parties 	do
not 	contest 	the 	validity 	of 	the 	organizational 	security 	provision
agreed 	to 	by 	the 	District 	and 	the 	Association. 	The 	sole 	question
presented 	is 	whether 	the 	retroactive 	application 	of 	this 	provision
to 	the 	date 	of 	commencement 	of 	negotiations 	constitutes 	unlawful
interference, 	restraint 	or 	coercion 	of 	non-members 	of 	the
Association.
4
A. 	In General
In addition to the right to participate in organizational
activities, public school employees have the right under section
3543 "to refuse to join or participate in the activities of
employee organizations." This right is protected by sections
3543.5 (a) and 3543.6 (b) which respectively prohibit actions by an
employer and 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.
Section 3543.6 (a) further makes it unlawful for an employee
organization to cause or attempt to cause a public school employer
to violate section 3543.5.
But for its retroactive application, the Charging Parties do
not contest the validity of the organizational security provision
agreed to by the District and the Association. The sole question
presented is whether the retroactive application of this provision
to the date of commencement of negotiations constitutes unlawful
interference, restraint or coercion of non-members of the
Association.

B. 	The 	Organizational 	Security 	Provisions 	of 	the 	Educational
Employment 	Relations 	Act e2 	are 	Silent 	as 	to 	Retroactivity.
Organizational 	security 	is 	defined 	in 	Government 	Code 	section
3540 .1 ( i) 	as 	follows:
(1) 	An 	arrangement 	pursuant 	to 	which 	a 	public 	school
employee 	may 	decide 	whether 	or 	not 	to 	join 	an 	employee
organization, 	but 	which 	requires 	him, 	as 	a 	condition
of 	continued 	employment, 	if 	he 	does 	join, 	to 	maintain
his 	membership 	in 	good 	standing 	for 	the 	duration 	of
the 	written 	agreement. 	However, 	no 	such 	arrangement
shall 	deprive 	the 	employee 	of 	the 	right 	to 	terminate
his 	obligation 	to 	the 	employee 	organization 	within 	a
period 	of 	30 	days 	following 	the 	expiration 	of 	a
written 	agreement; 	or
(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.
Government 	Code 	section 	3546(a) 	provides 	as 	follows:
(a) 	An 	organizational 	security 	arrangement, 	in 	order
to 	be 	effective, 	must 	be 	agreed 	upon 	by 	both 	parties
to 	the 	agreement. 	At 	the 	time 	the 	issue 	is 	being
negotiated, 	the 	public 	school 	employer 	may 	require
that 	the 	organizational 	security 	provision 	be 	severe~
from 	the 	remainder 	of 	the 	proposed 	agreement 	and 	cause
the 	organizational 	security 	provision 	to 	be 	voted 	upon
separately 	by 	all 	members 	in 	the 	appropriate
negotiating 	unit, 	in 	accordance 	with 	rules 	and
regulations 	promulgated 	by 	the 	board. 	Upon 	such 	a
vote, 	the 	organizational 	security 	provision 	will
become 	effective 	only 	if 	a 	majority 	of 	those 	members
of 	the 	negotiating 	unit 	voting 	approve 	the 	agreement.
Such 	vote 	shall 	not 	be 	deemed 	to 	either 	ratify 	or
defeat 	the 	remaining 	provisions 	of 	the 	proposed
agreement.
22Government 	Code 	section 	3540 	et 	seq. 	(hereafter 	EERA 	or 	Act).
5
B. The Organizational Security Provisions of the Educational
Employment Relations Act 2 ar 	Silent as to Retroactivity.
Organizational security is defined in Government Code section
3540. 1(i) as follows:
(1) An arrangement pursuant to which a public school
employee may decide whether or not to join an employee
organization, but which requires him, as a condition
of continued employment, if he does join, to maintain
his membership in good standing for the duration of
the written agreement. However, no such arrangement
shall deprive the employee of the right to terminate
his obligation to the employee organization within a
period of 30 days following the expiration of a
written agreement; or
(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.
Government Code section 3546 (a) provides as follows:
(a) An organizational security arrangement, in order
to be effective, must be agreed upon by both parties
to the agreement. At the time the issue is being
negotiated, the public school employer may require
that the organizational security provision be severed
from the remainder of the proposed agreement and cause
the organizational security provision to be voted upon
separately by all members in the appropriate
negotiating unit, in accordance with rules and
regulations promulgated by the board. Upon such a
vote, the organizational security provision will
become effective only if a majority of those members
of the negotiating unit voting approve the agreement.
Such vote shall not be deemed to either ratify or
defeat the remaining provisions of the proposed
agreement.
Government Code section 3540 et seq. (hereafter EERA or Act) .
5

Charging
	Parties
	argue
	that
	the
	clause, 	"in
	order 	to
	be
effective,"
	in 	the
	first
	sentence 	of
	section
	3546(a)
	should
	be
construed
	as
	a
	temporal
	limitation
	prohibiting
	an
	organizational
security
	provision
	from 	becoming
	effective 	prior
	to 	the
	date 	of
agreement
	by
	the
	parties.
	Charging
	Parties
	attempt 	to
	buttress
this 	interpretation
	by
	reference 	to 	the
	fact 	that
	a
	severed
organizational
	security
	provision
	becomes
	"effective
	only
	if"
	a
majority
	of
	unit
	members
	vote
	in
	favor
	of
	it.
The
	hearing
	officer
	does
	not 	find
	this 	interpretation
persuasive.
	The
	first
	sentence 	of
	section
	3546(a) 	above
	indicates
that
	an
	organizational 	security
	provision
	is
	not
	mandatory,
	but
	is
permitted
	only
	if
	agreed
	to
	by
	the
	parties.
	The
	clause 	"in 	order
to
	be
	effective" 	therefore 	refers
	to 	the
	means
	of
	effectuating
	an
organizational 	security
	provision 	rather
	than 	the
	time
	it
	becomes
effective. 	Similarly,
	a
	severed
	organizational 	security 	provision
becomes
	effective
	if,
	and
	not
	when,
	approved 	by	
the
	unit
	members.
Thus,
	on
	its
	face, 	section
	3546(a)
	neither
	permits
	nor
prohibits
	the
	retroactive 	application
	of
	an
	organizational
security 	provision.
However,
	although 	not
	directly
	in 	issue,
	it
	is
	noted
	that
retroactive
	imposition 	of 	the 	other 	organizational 	security
arrangement, 	maintenance 	of
	membership,
	clearly 	is 	prohibited
	by
the
	statute
	in 	certain 	situations.
Under
	section 	3540.l(i) (1),
	an 	employee 	under
	a
	maintenance 	of
membership
	provision 	has
	a
	30-day 	escape 	period 	after 	expiration
6
Charging Parties argue that the clause, "in order to be
effective," in the first sentence of section 3546 (a) should be
construed as a temporal limitation prohibiting an organizational
security provision from becoming effective prior to the date of
agreement by the parties. Charging Parties attempt to buttress
this interpretation by reference to the fact that a severed
organizational security provision becomes "effective only if" a
majority of unit members vote in favor of it.
The hearing officer does not find this interpretation
persuasive. 	The first sentence of section 3546 (a) above indicates
that an organizational security provision is not mandatory, but is
permitted only if agreed to by the parties. The clause "in order
to be effective" therefore refers to the means of effectuating an
organizational security provision rather than the time it becomes
effective. Similarly, a severed organizational security provision
becomes effective if, and not when, approved by the unit members.
Thus, on its face, section 3546(a) neither permits nor
prohibits the retroactive application of an organizational
security provision.
However, although not directly in issue, it is noted that
retroactive imposition of the other organizational security
arrangement, maintenance of membership, clearly is prohibited by
the statute in certain situations.
Under section 3540.1(i) (1), an employee under a maintenance of
membership provision has a 30-day escape period after expiration
6

of 	a 	negotiations 	agreement 	within 	which 	to 	resign 	from 	the
employee 	organization. 	If 	an 	employee 	were 	to 	exercise 	this
option 	upon 	expiration 	of 	an 	agreement 	and 	then, 	sav 	six 	months
later, 	the 	employer 	and 	the 	employee 	organization 	reached 	a 	new
agreement 	which 	again 	has 	a 	maintenance 	of 	membership 	provision,
it 	is 	clear 	that 	the 	provision 	cannot 	be 	made 	retroactive 	to 	the
date 	of 	expiration 	of 	the 	old 	agreement 	because 	the 	retroactivitv
would 	conflict 	with 	the 	employee's 	statutory 	r.ight 	to 	withdraw
from 	the 	organization.
In 	addition, 	in 	a 	situation 	prior 	to 	negotiation 	of 	a 	first
agreement, 	before 	a 	maintenance 	of 	membership 	provision 	has 	been
negotiated, 	an 	empJoyee 	organization 	member 	clearly 	has 	the 	right
to 	resign. 	If 	an 	employee 	were 	to 	do 	so, 	if 	a 	retroactive
maintenance 	of 	membership 	provision 	subsequentlv 	were 	negotiated,
it 	would 	obviously 	conflict 	with 	the 	employee's 	previously-
exercised 	right 	to 	resign 	his 	membership.
Although 	maintenance 	of 	membership 	is 	different 	from 	a 	service
fee 	arrangement, 	and 	different 	policy 	considerations 	might 	apply,
nevertheless, 	there 	is 	no 	indication 	in 	the 	EERA 	that 	the
Legislature 	intended 	that 	the 	two 	organizational 	security
arrangements 	be 	treated 	differently 	with 	respect 	to 	retroactivitv.
7
of a negotiations agreement within which to resign from the
employee organization. If an employee were to exercise this
option upon expiration of an agreement and then, say six months
later, the employer and the employee organization reached a new
agreement which again has a maintenance of membership provision,
it is clear that the provision cannot be made retroactive to the
date of expiration of the old agreement because the retroactivity
would conflict with the employee's statutory right to withdraw
from the organization.
In addition, in a situation prior to negotiation of a first
agreement, before a maintenance of membership provision has been
negotiated, an employee organization member clearly has the right
to resign. If an employee were to do so, if a retroactive
maintenance of membership provision subsequently were negotiated,
it would obviously conflict with the employee's previously-
exercised right to resign his membership.
Although maintenance of membership is different from a service
fee arrangement, and different policy considerations might apply,
nevertheless, there is no indication in the EERA that the
Legislature intended that the two organizational security
arrangements be treated differently with respect to retroactivity.
7

C. 	Retroactive 	application 	of 	an 	organizational 	security
provision 	is 	prohibited 	under 	the 	Labor 	Management 	Relations
Act. 	3
The 	LMRA 	authorizes 	the 	negotiation 	of 	an 	organizational
security 	provision 	in 	the 	proviso 	to 	section 	B(a) (3) 	which 	states
in 	pertinent 	part 	as 	follows:
Provided, 	that 	nothing 	in 	this 	Act, 	or 	any
other 	statute 	of 	the 	United 	States, 	shall
preclude 	an 	employer 	from 	making 	an
agreement 	with 	a 	labor 	organization ... to
require 	as 	a 	condition 	of 	emplovment
membership 	therein 	on 	or 	after 	the 	thirtieth
day 	following 	the 	beginning 	of 	such
employment 	or 	the 	effective 	date 	of 	such
agreement, 	whichever 	is 	the 	later ...•
Though 	the 	proviso 	does 	not 	expressly 	bar 	retroactivitv, 	the
National 	Labor 	Relations 	Board 	(hereafter 	NLRB), 	with 	judicial
affirmance, 	has 	consistently 	prohibited 	the 	retroactive 	application
of 	an 	organizational 	security 	provision 	on 	policy 	grounds. 	The
issue 	has 	arisen 	in 	a 	variety 	of 	factual 	contexts 	involving 	both
union 	shop 	and 	maintenance 	of 	membership 	provisions.
Unions 	and 	employers 	have 	been 	prohibited 	from 	demanding 	dues
retroactively 	for 	the 	interim 	period 	after 	expiration 	of 	a 	contract
containing 	an 	organizational 	security 	provision 	and 	before
execution 	of 	a 	new 	contract 	containing 	the 	same 	provision 	where 	a
329 	U.S.C. 	section 	151 	et 	seq. 	(hereafter 	LMRA).
8
C. Retroactive application of an organizational security
provision is prohibited under the Labor Management Relations
Act. 3
The LMRA authorizes the negotiation of an organizational
security provision in the proviso to section 8 (a) (3) which states
in pertinent part as follows:
Provided, that nothing in this Act, or any
other statute of the United States, shall
preclude an employer from making an
agreement with a labor organization. . . to
require as a condition of employment
membership therein on or after the thirtieth
day following the beginning of such
employment or the effective date of such
agreement, whichever is the later . . .
Though the proviso does not expressly bar retroactivity, the
National Labor Relations Board (hereafter NLRB) , with judicial
affirmance, has consistently prohibited the retroactive application
of an organizational security provision on policy grounds. The
issue has arisen in a variety of factual contexts involving both
union shop and maintenance of membership provisions.
Unions and employers have been prohibited from demanding dues
retroactively for the interim period after expiration of a contract
containing an organizational security provision and before
execution of a new contract containing the same provision where a
329 U.S.C. section 151 et seq. (hereafter LMRA) .
8

strike
	occurred 	during 	the
	hiatus
	(New
	York
	Shipbuilding
	(1950)
89
	NLRB
	1446 	[26
	LRRM
	1063]) 	(union
	shop);
	Aeronautical
	Industrial
District
	Lodge 	751
	(1968)
	173
	NLRB
	450
	f69
	LRRM
	1363]
	(maintenance
of
	membership);
	where
	a
	representation
	election
	was
	held 	during
the
	hiatus
	(Namms,
	Inc.
	(1953)
	102
	NLRB
	466
	[31
	LRRM
	1328]) 	(union
shop);
	Colonie
	Fibre
	Co.
	Inc.
	(1946)
	69
	NLRB
	589 	[18
	LRRM
	1256],
supplemented
	71
	NLRB
	354 	[18
	LRRM
	1500]
	enfd.
	(2d
	Cir.
	1947)
	163
F.
2d 	65 	[ 20
	LRRM
	2399]
	(maintenance
	of
	membership)
;
	and
	despite
the
	fact 	that
	the
	new
	contract
	has
	a
	retroactive 	effective
	date
eliminating
	the
	hiatus
	between
	contracts
	(Colonie
	Fibre
	Co.
	Inc.,
supra).
Unions
	and
	employers
	have
	not
	been
	permitted 	to
	collect
	dues
for 	the 	period
	between
	the
	effective
	date 	of
	a
	contract
	and
	the
later
	effective
	date 	of
	a
	severed
	organizational 	security
provision,
	nor
	for
	a
	period
	prior
	to 	the 	date 	of
	hire
	by
	the
contracting
	employer 	(Cottman
	Builders
	Supply
	Co.
	Inc.
	(1952)
101
	NLRB
	327
	[
31
	LRRM
	1077]
)
	(union
	shop)
;
	International
	Union
	of
Operating 	Engineers,
	Local
	139 	(1968) 	172
	NLRB
	173 	[68
	LRRM
	1301]
(maintenance
	of
	membership); 	nor
	prior
	to
	entry 	into
	the
bargaining 	unit
	(Teamsters 	Local
	Union
	No.
	174 	(1964) 	149
	NLRB
1570
	[57
	LRRM
	1524]) 	(maintenance
	of
	membership).
In 	those 	cases 	like
	the
	instant 	case, 	concerning
	a
	first
contract
	between 	the
	parties,
	the
	NLRB
	has
	prohibited 	the
collection 	of
	dues
	retroactively 	for 	the 	period
	between 	the 	date
of 	execution 	of 	the 	contract
	and
	its 	retroactive 	effective 	date
9
strike occurred during the hiatus (New York Shipbuilding (1950)
89 NLRB 1446 [26 LRRM 1063]) (union shop) ; Aeronautical Industrial
District Lodge 751 (1968) 173 NLRB 450 [69 LRRM 1363] (maintenance
of membership) ; where a representation election was held during
the hiatus (Namms, Inc. (1953) 102 NLRB 466 [31 LRRM 1328] ) (union
shop) ; Colonie Fibre Co. Inc. (1946) 69 NLRB 589 [18 LRRM 1256] ,
supplemented 71 NLRB 354 [18 LRRM 1500] end. (2d Cir. 1947) 163
F. 2d 65 [20 LRRM 2399] (maintenance of membership) ; and despite
the fact that the new contract has a retroactive effective date
eliminating the hiatus between contracts (Colonie Fibre Co. Inc.,
supra ) .
Unions and employers have not been permitted to collect dues
for the period between the effective date of a contract and the
later effective date of a severed organizational security
provision, nor for a period prior to the date of hire by the
contracting employer (Cottman Builders Supply Co. Inc. (1952)
101 NLRB 327 [31 LRRM 1077]) (union shop) ; International Union of
Operating Engineers, Local 139 (1968) 172 NLRB 173 [68 LRRM 1301]
(maintenance of membership) ; nor prior to entry into the
bargaining unit (Teamsters Local Union No. 174 (1964) 149 NLRB
1570 [57 LRRM 1524] ) (maintenance of membership) .
In those cases like the instant case, concerning a first
contract between the parties, the NLRB has prohibited the
collection of dues retroactively for the period between the date
of execution of the contract and its retroactive effective date
9

(Anderson
	Express
	Ltd.
	(1960)
	126
	NLRB
	798
	[ 45
	LRRM
	1388
J)
	(union
shop),
	despite
	the
	fact 	that 	salary
	increases
	were
	retroactive
	to
an
	even
	earlier
	date
	(Teamsters 	Local
	Union
	No.
	25
	(1975)
	220
	NLRB
76
	[90
	LRRM
	1193]
	(union
	shop).
The
	reasoning
	behind
	these
	decisions
	is 	set
	forth
	most
	fully
in
	a
	leading
	early
	case,
	Colonie
	Fibre
	Co.,
	Inc.
	(1946)
	supra,
	71
NLRB
	354, 	355-356:
[T]he
	proviso 	to 	Section
	8
	(3)
	of
	the
	Act
•..
in
sanctioning
	contracts
	which
	require
	membership
	in
	a
	union
as
	a
	condition 	of
	employment,
	does
	not
	sanction
	contracts
which
	require 	past
	membership
	as
	such
	a
	condition.
	A
construction 	permitting
	such
	a
	retroactive
	requirement
would 	be
	inconsistent
	both 	with
	the
	terms
	of
	the
	Act
	and
with 	the
	principle
	of 	free
	self-
	organization
	which
	the
Act
	is
	designed
	to
	protect.
The
	Act
	grants
	employees
	the
	right
	to
	self-organization
and
	the
	right
	to
	membership
	or
	non-membership
	in 	labor
organizations
...•
The
	proviso 	permits
	contracts
	which
require
	union
	membership
	during
	their
	terms
	of
	all
employees
	including 	those
	who
	have
	not 	joined 	the
contracting
	union
	prior
	to 	execution 	of 	the
	contract.
But
	to 	construe 	the 	proviso
	as
	also 	permitting 	contracts
which	
require
	membership
	in 	the
	past
	would
.•• penalize
employees 	for	
not 	having 	belonged
	to 	the
	victorious
	union
at
	a
	time
	when
	they
	were
	within
	their 	rights
	in 	not
belonging
..••
Approval
	of
	a
	contract
	which
	made
	it
	possible
	for 	the
contracting
	union
	to 	require	
payment	
of 	past
	dues
	as
	a
condition 	of 	future
	employment 	would 	have
	a
	seriouslydetrimental
	effect
	upon
	freedom
	of 	organization
.•.
Legalization 	of
	this 	practice
	would
	provide
	a
	device 	for
effectively 	constraining 	those
	who
	have
	not 	remained
members
	of 	the 	dominant 	union
	at
	a
	time
	when
	they 	are
under
	no
	obligation 	to
	do
	so. 	In
	all
	cases
	where
	it
appeared
	likely,
	or 	even
	possible, 	that
	a
	maintenance-of-
membership 	or 	closed-shop 	contract
	might 	follow 	the
selection 	of
	a
	representative, 	the 	employees 	would 	be
impelled 	to 	speculate 	as 	to
	which
	organization
	would
ultimately
	win 	the 	support 	of 	the 	majority 	in 	order 	toavoid 	the 	possibility 	of 	being 	faced 	with 	the 	requirement
10
Anderson Express Ltd. (1960) 126 NLRB 798 [45 LRRM 1388]) (union
shop) , despite the fact that salary increases were retroactive to
an even earlier date (Teamsters Local Union No. 25 (1975) 220 NLRB
76 [90 LRRM 1193] (union shop) .
The reasoning behind these decisions is set forth most fully
in a leading early case, Colonie Fibre Co. , Inc. (1946) supra, 71
NLRB 354, 355-356 :
[The proviso to Section 8 (3) of the Act. . . in
sanctioning contracts which require membership in a union
as a condition of employment, does not sanction contracts
which require past membership as such a condition. 	A
construction permitting such a retroactive requirement
would be inconsistent both with the terms of the Act and
with the principle of free self- organization which the
Act is designed to protect.
The Act grants employees the right to self-organization
and the right to membership or non-membership in labor
organizations. . . . The proviso permits contracts which
require union membership during their terms of all
employees including those who have not joined the
contracting union prior to execution of the contract.
But to construe the proviso as also permitting contracts
which require membership in the past would...penalize
employees for not having belonged to the victorious union
at a time when they were within their rights in not
belonging . . . .
Approval of a contract which made it possible for the
contracting union to require payment of past dues as
condition of future employment would have a seriously
detrimental effect upon freedom of organization. ..
Legalization of this practice would provide a device for
effectively constraining those who have not remained
members of the dominant union at a time when they are
under no obligation to do so. In all cases where it
appeared likely, or even possible, that a maintenance-of-
membership or closed-shop contract might follow the
selection of a representative, the employees would be
impelled to speculate as to which organization would
ultimately win the support of the majority in order to
avoid the possibility of being faced with the requirement
10

of 	paying 	a 	large 	sum 	in 	back 	dues. 	Hence 	in 	actual
practice 	the 	employee's 	right 	to 	support 	and 	select 	the
bargaining 	representative 	he 	wanted 	would 	largely 	be
reduced 	to 	the 	right 	to 	guess 	which 	of 	two 	or 	more
competing 	unions 	would 	ultimately 	be 	chosen 	bv 	the
majority. 	Thus, 	approval 	of 	the 	contract 	before 	us 	would
substantially 	impair 	freedom 	of 	choice 	at 	a 	time 	when 	the
statute 	requires 	such 	freedom. 	To 	permit 	this 	impairment
would 	make 	it 	difficult 	for 	advocates 	of 	a 	change 	in
representation 	to 	present 	their 	case 	to 	their 	fellow
employees.
This 	reasoning, 	articulated 	in 	an 	abbreviated 	form 	and
emphasizing 	the 	lack 	of 	contractual. 	obligation 	during 	the 	period
for 	which 	the 	dues 	are 	sought, 	is 	followed 	consistently 	throughout
the 	line 	of 	cases 	cited 	above. 	For 	example, 	in 	Namms, 	Inc. 	(1953)
supra, 	102 	NLRB 	466, 	the 	NLRB 	stated 	at 	page 	469:
It 	is 	settled 	law 	that 	a 	union-shop 	contract 	may 	not 	be
retroactively 	applied 	to 	effect 	the 	discharge 	of 	an
employee 	for 	failing 	to 	maintain 	membership 	in 	good
standing 	by 	paying 	dues 	that 	accrued 	during 	a 	time 	that
he 	was 	under 	no 	contractual 	obligation 	to 	do 	so 	as 	a
condition 	of 	employment. 	Such 	back 	dues 	are 	not 	periodic
dues 	within 	the 	meaning 	of 	Section 	B(a) (3) 	and 	Section
8(b) (2) 	of 	the 	Act.
The 	Association 	argues 	that 	the 	freedom 	of 	organization 	which
the 	NLRB 	sought 	to 	protect 	in 	Colonie 	Fibre 	is 	subject 	to
infringement 	only 	when 	a 	question 	of 	representation 	exists, 	and
that 	the 	holding 	of 	that 	case 	should 	be 	restricted 	to 	such
situations. 	The 	Association 	contends 	that 	in 	the 	line 	of 	cases
cited 	above, 	the 	Colonie 	Fibre 	rule 	has 	been 	blindly 	applied 	in
factual 	situations 	where, 	as 	in 	the 	present 	case, 	this 	underlying
rationale 	does 	not 	exist, 	and 	therefore 	these 	cases 	are 	wrongfully
decided 	and 	are 	not 	persuasive 	authority.
1.1
of paying a large sum in back dues. Hence in actual
practice the employee's right to support and select the
bargaining representative he wanted would largely be
reduced to the right to guess which of two or more
competing unions would ultimately be chosen by the
majority. Thus, approval of the contract before us would
substantially impair freedom of choice at a time when the
statute requires such freedom. 	To permit this impairment
would make it difficult for advocates of a change in
representation to present their case to their fellow
employees.
This reasoning, articulated in an abbreviated form and
emphasizing the lack of contractual obligation during the period
for which the dues are sought, is followed consistently throughout
the line of cases cited above. For example, in Namms, Inc. (1953)
supra, 102 NLRB 466, the NLRB stated at page 469:
It is settled law that a union-shop contract may not be
retroactively applied to effect the discharge of an
employee for failing to maintain membership in good
standing by paying dues that accrued during a time that
he was under no contractual obligation to do so as a
condition of employment. Such back dues are not periodic
dues within the meaning of Section 8 (a) (3) and Section
8 (b) (2) of the Act.
The Association argues that the freedom of organization which
the NLRB sought to protect in Colonie Fibre is subject to
infringement only when a question of representation exists, and
that the holding of that case should be restricted to such
situations. The Association contends that in the line of cases
cited above, the Colonie Fibre rule has been blindly applied in
factual situations where, as in the present case, this underlying
rationale does not exist, and therefore these cases are wrongfully
decided and are not persuasive authority.
11

The 	hearing 	officer 	cannot 	accept 	this 	argument. 	The 	wide
variety 	of 	factual 	situations 	in 	which 	these 	cases 	have 	arisen
demonstrates 	that 	the 	NLRB 	considers 	freedom 	of 	organization
subject 	to 	infringement 	by 	the 	retroactive 	application 	of 	an
organizational 	security 	provision 	not 	only 	when 	a 	question 	of
representation 	exists, 	but 	in many 	other 	situations 	as 	well. 	It
would 	be 	presumptuous 	to 	assume 	that 	this 	long 	line 	of 	cases
prohibiting 	retroactive 	application 	of 	organizational 	security
provisions 	is 	the 	result 	of 	a 	mistake.
Although 	the 	hearing 	officer 	is 	aware 	of 	no 	case 	applying 	the
4
Colonie 	Fibre 	reasoning 	to 	an 	agency 	shop 	provision, 	since
section 	B(a) (3) 	governs 	all 	forms 	of 	organizational 	security
sanctioned 	by 	the 	LMRA 	(NLRB 	v. 	General 	Motors 	(1963) 	373 	us 	734
[53 	LRRM 	2313]), 	the 	same 	rule 	would 	clearly 	apply 	to 	agency 	shop
provisions 	under 	that 	Act.
Therefore, 	the 	hearing 	officer 	finds 	that 	NLRB 	precedent
clearly 	prohibits 	the 	retroactive 	application 	of 	any 	form 	of
organizational 	security 	provision. 	Thus, 	the 	remaining 	question
to 	be 	decided 	in 	the 	instant 	case 	is 	whether 	NLRB 	precedent 	should
be 	followed 	in 	interpreting 	the 	organizational 	securitv 	provisions
of 	the 	EERA.
44The 	only 	agency 	shop 	case 	cited 	by 	the 	Charging 	Parties 	was
decided 	on 	other 	grounds. 	Adams 	Div.; 	Le 	Tourneau Westinghouse
Co. 	(1963) 	143 	NLRB 	827 	rs3 	LRRM 	1421].
12
The hearing officer cannot accept this argument. 	The wide
variety of factual situations in which these cases have arisen
demonstrates that the NLRB considers freedom of organization
subject to infringement by the retroactive application of an
organizational security provision not only when a question of
representation exists, but in many other situations as well.
would be presumptuous to assume that this long line of cases
prohibiting retroactive application of organizational security
provisions is the result of a mistake.
Although the hearing officer is aware of no case applying the
Colonie Fibre reasoning to an agency shop provision, since
section 8 (a) (3) governs all forms of organizational security
sanctioned by the LMRA (NLRB v. General Motors (1963) 373 Us 734
[53 LRRM 2313] ), the same rule would clearly apply to agency shop
provisions under that Act.
Therefore, the hearing officer finds that NLRB precedent
clearly prohibits the retroactive application of any form of
organizational security provision. Thus, the remaining question
to be decided in the instant case is whether NLRB precedent should
be followed in interpreting the organizational security provisions
of the EERA.
The only agency shop case cited by the Charging Parties was
decided on other grounds. Adams Div. , Le Tourneau Westinghouse
Co. (1963) 143 NLRB 827 [53 LRRM 1421] .
12

D. 	NLRB 	precedent 	provides 	reliable 	authority 	in 	interpreting
the 	organizational 	security 	provisions 	of 	the 	EERA.
The 	California 	Supreme 	Court 	in 	Fire 	Fighters 	Union 	v. 	City 	of
Vallejo 	(1974) 	12 	Cal.3d 	608,616-617 	r116 	Cal.Rptr. 	507], 	stated
that 	where 	the 	LMRA 	does 	not 	contain 	specific 	wording 	comparable 	to
the 	state 	act, 	if 	the 	rationale 	that 	generated 	the 	language 	"lies
embedded 	in 	the 	federal 	precedents 	under 	the 	NLRA" 	and 	"the 	federal
decisions 	effectively 	reflect 	the 	same 	interests 	as 	those 	that
prompted 	the 	inclusion 	of 	the 	[language 	in 	the 	EERA], 	[then]
federal 	precedents 	provide 	reliable 	if 	analogous 	authority 	on 	the
issue."
Despite 	differences 	in 	language 	between 	the 	organizational
security 	provisions 	of 	the 	EERA 	and 	section 	8{a) (3) 	of 	the 	LMRA,
the 	hearing 	officer 	finds 	for 	the 	reasons 	discussed 	below, 	that
under 	Vallejo 	the 	federal 	precedents 	provide 	authority 	on 	this
issue.
The 	Association 	argues 	that 	NLRB 	precedent 	is 	not 	persuasive
in 	the 	instant 	case 	because, 	in 	their 	view, 	both 	the 	language 	and
policies 	underlying 	section 	B(a) (3) 	are 	distinguishable 	from 	those
of 	sections 	3546(a) 	and 	3540.l(i).
The 	Association 	points 	to 	the 	inclusion 	in 	section 	8 (a) (3) 	and
the 	absence 	in 	section 	3540.l(i) 	of 	a 	30-day 	grace 	period 	before
employment 	may 	be 	conditioned 	on 	compliance 	with 	an 	organizational
. t 	. 	.secur1 	y 	prov1s1on. 5 The 	Association 	argues 	that 	the 	NLRB 	policy
s	5section 	3540.l(i) (2) 	requires 	no 	grace 	period 	for 	a 	service 	fee
arrangement, 	while 	section 	3540.l(i) (1) 	requires 	a 	30-day 	escape
period 	following 	the 	expiration 	of 	an 	agreement 	containing 	a
maintenance 	of 	membership 	provision.
13
D. 	NLRB precedent provides reliable authority in interpreting
the organizational security provisions of the EERA.
The California Supreme Court in Fire Fighters Union v. City of
Vallejo (1974) 12 Cal. 3d 608, 616-617 [116 Cal. Rptr. 507], stated
that where the LMRA does not contain specific wording comparable to
the state act, if the rationale that generated the language "lies
embedded in the federal precedents under the NLRA" and "the federal
decisions effectively reflect the same interests as those that
prompted the inclusion of the [language in the EERA], [then]
federal precedents provide reliable if analogous authority on the
issue . "
Despite differences in language between the organizational
security provisions of the EERA and section 8 (a) (3) of the LMRA,
the hearing officer finds for the reasons discussed below, that
under Vallejo the federal precedents provide authority on this
issue .
The Association argues that NLRB precedent is not persuasive
in the instant case because, in their view, both the language and
policies underlying section 8 (a) (3) are distinguishable from those
of sections 3546 (a) and 3540.1(i) .
The Association points to the inclusion in section 8 (a) (3) and
the absence in section 3540.1(i) of a 30-day grace period before
employment may be conditioned on compliance with an organizational
security provision. 	The Association argues that the NLRB policy
ection 3540.1(i) (2) requires no grace period for a service fee
arrangement, while section 3540.1(i) (1) requires a 30-day escape
period following the expiration of an agreement containing a
maintenance of membership provision.
13

of 	disallowing 	retroactive 	application 	of 	organizational 	security
provisions 	is 	based 	on 	the 	need 	to 	give 	effect 	to 	this 	grace
period, 	and 	that 	this 	policy 	is 	not 	applicable 	in 	the 	absence 	of 	a
similar 	grace 	period 	under 	the 	EERA.
The 	Association 	is 	correct 	that 	federal 	cases 	prohibiting
retroactive 	application 	of 	an 	organizational 	security 	provision 	on
the 	sole 	ground 	of 	the 	statutory 	grace 	period 	are 	distinguishable
from 	the 	instant 	case. 	See, 	e.g., 	Kress 	Dairy 	Inc. 	(1952) 	98 	NLRB
369 	[29 	LRRM 	1348]; 	Associated 	Machines 	Inc. 	(1955) 	114 	NLRB 	390
[36 	LRRM 	1582] 	enf. 	(6th 	Cir. 	1956) 	239 	F.2d 	858 	[39 	LRRM 	2264];
Adams 	Div., 	Le 	Tourneau Westinghouse 	Co. 	(1963) 	supra, 143 	NLRB 	827
f53 	LRRM 	1421]. 	However, 	the 	line 	of 	cases 	discussed 	in 	section 	C
above 	is 	not 	similarly 	distinguishable. 	The 	policy 	grounds 	on
which 	those 	decisions 	were 	based 	were 	first 	stated 	in 	the 	Colonie
Fibre 	case 	before 	the 	30-day 	grace 	requirement 	was 	added 	to 	section
B(a) (3) 	in 	1947. 	Cases 	following 	the 	Colonie 	Fibre 	rationale 	which
mention 	the 	grace 	period 	requirement 	rely 	on 	it 	merely 	for
additional 	support. 	See, 	e.g., 	New 	York 	Shipbuilding 	(1950) 	supra,
89 	NLRB 	1446, 	at 	1447.
Section 	3540.l(i) 	also 	differs 	from 	section 	B(a) (3) 	in 	that
section 	B(a) (3) 	sanctions 	compulsory 	union 	membership 	(union 	shop)
while 	section 	3540.l(i) 	provides 	only 	for 	a 	service 	fee 	(agency
shop) 	or 	maintenance 	of 	membership 	arrangement.
But 	under 	the 	LMRA, 	a 	second 	proviso 	to 	section 	8 (a) ( 3)
specifies 	that 	the 	only 	membership 	obligation 	upon 	which 	employment
14
of disallowing retroactive application of organizational security
provisions is based on the need to give effect to this grace
period, and that this policy is not applicable in the absence of a
similar grace period under the EERA.
The Association is correct that federal cases prohibiting
retroactive application of an organizational security provision on
the sole ground of the statutory grace period are distinguishable
from the instant case. See, e.g., Kress Dairy Inc. (1952) 98 NLRB
369 [29 LRRM 1348] ; Associated Machines Inc. (1955) 114 NLRB 390
[36 LRRM 1582] enf. (6th Cir. 1956) 239 F. 2d 858 [39 LRRM 2264];
Adams Div. , Le Tourneau Westinghouse Co. (1963) supra, 143 NLRB 827
(53 LRRM 1421]. However, the line of cases discussed in section C
above is not similarly distinguishable. The policy grounds on
which those decisions were based were first stated in the Colonie
Fibre case before the 30-day grace requirement was added to section
8 (a) (3) in 1947. Cases following the Colonie Fibre rationale which
mention the grace period requirement rely on it merely for
additional support. See, e.g. , New York Shipbuilding (1950) supra,
89 NLRB 1446, at 1447.
Section 3540. 1(i) also differs from section 8 (a) (3) in that
section 8 (a) (3) sanctions compulsory union membership (union shop)
while section 3540.1(i) provides only for a service fee (agency
shop) or maintenance of membership arrangement.
But under the LMRA, a second proviso to section 8 (a) (3)
specifies that the only membership obligation upon which employment
14

can
	be
	conditioned
	is
	the
	payment
	of
	uniformly
	required
	membership
dues
	and
	initiation
	fees.
6
The
	Supreme
	Court 	has
	held
	that
	for
these 	purposes,
	membership
	is
	limited 	to
	its
	"financial
	core"
	and
the
	payment
	of
	agency
	fees
	by 	nonmembers
	is
	"the
	practical
equivalent 	of
	membership."
	NLRB
	v. 	General
	Motors
	(1963)
	supra
	373
US
	734 	[53
	LRRM
	2313].
Therefore,
	the
	lack 	of
	a
	membership
	requirement 	in
	section
3540.l(i) 	is
	not
	a
	relevant
	distinction.
The	
Association
	argues
	that	
the	
retroactive 	application 	of
	an
agency
	fee
	provision
	furthers
	the
	objectives 	of
	the
	EERA
	by
ensuring
	that 	costs
	incurred 	during
	collective
	negotiations 	are
shared
	equally
	by
	all
	members
	of
	the
	negotiations
	unit,
	thereby
preventing
	"free
	riders."
	This
	argument 	does
	not 	support
respondent's 	position 	since,
	as
	discussed
	below,
	section
	B(a)
(3)
itself
	was
	intended 	to 	prevent
	"free
	riders," 	yet,
	as
	we
	have
	seen,
the
	retroactive 	application
	of 	organizational 	security 	provisions
has 	not
	been 	found
	permissible.
T	
6The
	proviso
	states
	in
	full
	as 	follows:
Provided
	further, 	that
	no
	employer
	shall 	justify
	any
discrimination 	against
	an 	employee
	for
	nonmembership
	in
	a
labor 	organization
	(A)
	if
	he
	has 	reasonabJ.e 	grounds
	for
believing 	that
	such 	membership
	was
	not
	available 	to 	theemployee
	on
	the
	same
	terms
	and
	conditions 	generally 	applicableto 	other
	members
	or
	(B)
	if
	he
	has 	reasonable 	grounds 	for
believing 	that
	membership
	was
	denied 	or 	terminated 	for 	reasons
other 	than 	the
	failure 	of 	the
	employee
	to 	tender 	the 	periodicdues 	and
	the
	initiation
	fees 	uniformly 	required 	as
	a
	condition
of 	acquiring 	or
	retaining
	membership.
15
can be conditioned is the payment of uniformly required membership
dues and initiation fees. 	The Supreme Court has held that for
these purposes, membership is limited to its "financial core" and
the payment of agency fees by nonmembers is "the practical
equivalent of membership. " 	NLRB v. General Motors (1963) supra, 373
US 734 [53 LRRM 2313] .
Therefore, the lack of a membership requirement in section
3540.1(i) is not a relevant distinction.
The Association argues that the retroactive application of an
agency fee provision furthers the objectives of the EERA by
ensuring that costs incurred during collective negotiations are
shared equally by all members of the negotiations unit, thereby
preventing "free riders." This argument does not support
respondent's position since, as discussed below, section 8 (a) (3)
itself was intended to prevent "free riders, " yet, as we have seen,
the retroactive application of organizational security provisions
has not been found permissible.
he proviso states in full as follows:
Provided further, that no employer shall justify any
discrimination against an employee for nonmembership in a
labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the
employee on the same terms and conditions generally applicable
to other members or (B) if he has reasonable grounds for
believing that membership was denied or terminated for reasons
other than the failure of the employee to tender the periodic
dues and the initiation fees uniformly required as a condition
of acquiring or retaining membership.
15

In 	Oil 	Workers 	v. 	Mobil 	Oil 	Corp. 	(1976) 	426 	US 	407 	[92 	LRRM
2737, 	at 	2240], 	the 	court 	discussed 	the 	legislative 	history 	of
section 	8 (a) (3) 	as 	follows:
... 	Congress' 	decision 	to 	allow 	union
security 	agreements 	at 	all 	reflects 	its
concern 	that •.• the 	parties 	to 	a 	collective
bargaining 	agreement 	be 	allowed 	to 	provide
that 	there 	be 	no 	employees 	who 	are 	getting
the 	benefits 	of 	union 	representation 	without
paying 	for 	them •••• 	The 	Senate 	Committee
Report 	... 	observed 	that 	section 	8(a) (3)
gives 	'employers 	and 	unions 	who 	feel 	that
funion 	security] 	agreements 	promoted
stability 	by 	eliminating 	'free 	riders' 	the
right 	to 	continue 	such 	arrangements.'
s. 	Rep. 	No. 	105, 	80th 	Cong., 	1st 	Sess., 	7, 	1
Leg. 	Hist. 	413.
The 	Supreme 	Court 	has 	found 	that 	a 	state 	agency 	fee 	provision
similar 	to 	that 	of 	the 	EERA 	served 	the 	same 	purposes 	as 	section
8(a) (3) 	of 	the 	LMRA. 	After 	noting 	the 	legislative 	history 	of
section 	B(a) (3), 	the 	court 	stated 	in 	Abood 	v. 	Detroit 	Board 	of
Education 	(1977) 	431 	US 	209 	[95 	LRRM 	2411, 	at 	2416-17]:
The 	governmental 	interests 	advanced 	by 	the
agency 	shop 	provision 	in 	the 	Michigan
statute 	are 	much 	the 	same 	as 	those 	promoted
by 	similar 	provisions 	in 	federal 	labor
law .•• 	The 	desirability 	of 	labor 	peace 	is 	no
less 	important 	in 	the 	public 	sector, 	nor 	is
the 	risk 	of 	'free 	riders' 	any 	smaller.
Finally, 	the 	Association 	argues 	that 	prohibition 	of
retroactive 	service 	fees 	will 	be 	destructive 	of 	the 	negotiations
process 	because 	the 	exclusive 	representative 	will 	be 	financially
weakened 	during 	negotiations 	and 	this 	will 	encourage 	the 	employer
to 	prolong 	negotiations 	while 	at 	the 	same 	time 	the 	exclusive
16
In Oil Workers v. Mobil Oil Corp. (1976) 426 US 407 [92 LRRM
2737, at 2240], the court discussed the legislative history of
section 8 (a) (3) as follows:
. Congress' decision to allow union
security agreements at all reflects its
concern that. . . the parties to a collective
bargaining agreement be allowed to provide
that there be no employees who are getting
the benefits of union representation without
paying for them . . . . 	The Senate Committee
Report ... observed that section 8 (a) (3)
gives 'employers and unions who feel that
[union security] agreements promoted
stability by eliminating 'free riders' the
right to continue such arrangements. '
S. Rep. No. 105, 80th Cong., Ist Sess. , 7, 1
Leg. Hist. 413.
The Supreme Court has found that a state agency fee provision
similar to that of the EERA served the same purposes as section
8 (a) (3) of the LMRA. After noting the legislative history of
section 8 (a) (3), the court stated in Abood v. Detroit Board of
Education (1977) 431 Us 209 [95 LRRM 2411, at 2416-17] :
The governmental interests advanced by the
agency shop provision in the Michigan
statute are much the same as those promoted
by similar provisions in federal labor
law... The desirability of labor peace is no
less important in the public sector, nor is
the risk of 'free riders' any smaller.
Finally, the Association argues that prohibition of
retroactive service fees will be destructive of the negotiations
process because the exclusive representative will be financially
weakened during negotiations and this will encourage the employer
to prolong negotiations while at the same time the exclusive
16

representative 	will
	be
	pressured
	either
	to
	seek
	a
	quick
	agreement
which
	includes
	an
	agency 	shop
	fee 	but
	which
	otherwise
	may
	be
unsatisfactory,
	or
	to
	engage
	in
	militant
	concerted
	activities.
	The
Association
	argues
	that
	in
	the
	private
	sector
	this
	employer
advantage
	is
	offset
	by
	the
	right
	to
	strike
	while
	public
	school
employees
	have
	no
	such
	right.
7
The
	simple
	answer
	to
	this
	argument
	is 	that
	the
	right
	of 	public
employees
	to
	strike
	is
	a
	question 	for 	the
	Legislature.
	There
	is
	no
indication
	in 	the
	EERA
	that
	the
	Legislature
	intended 	to
	compensate
for
	this
	lack 	of 	the
	right
	to
	strike
	by
	permitting
	an
organizational 	security
	provision 	to
	be
	applied
	retroactively.
Since 	the 	Association
	has
	failed
	to
	show
	that 	either
	the
language 	or
	policies
	underlying
	section
	8
(a) (3)
	are
	distinguishable
from
	those 	of
	sections
	3546(a)
	and
	3540.l(i)
	of 	the
	EERA,
	it
	is
found
	that
	the
	rationale 	that
	generated
	the
	EERA's
	organizational
security 	provisions
	"lies
	embedded
	in
	the
	federal 	precedents
	under
the
	NLRA"
	and
	"the 	federal 	decisions
	effectively 	reflect
	the
	same
interests
	as 	those
	that
	prompted
	the 	inclusion 	of 	the 	(language 	in
the
	EERA)"
	so
	that 	"federal 	precedents 	provide
	reliable
	if
analogous
	authority
	on
	the
	issue." 	Fire 	Fighters
	Union
	v.
	City 	of
Vallejo
	(1974)
	supra,
	12
	Cal.3d 	608,
	at
	616-617.
	As
	federal
precedent
	clearly 	prohibits
	the
	retroactive 	application 	of
"
7
See
	e.g.,
	Pasadena 	Unified 	School
	Dist. 	v. 	Pasadena
Federation 	of 	Teachers 	(1977) 	72
	Cal.App.3d 	100 T[40 	Cal96
	LRRM
	23631]; 	Trustees 	of 	Cal. 	State 	Colleges 	v. 	Local
0	
Rptr"41,1352,
S.F. 	State 	etc. 	Teachers 	(1970) 	13 	Cal.App.3d 	863 	[92 	Cal. 	Rptr. 	134,76
	LRRM
	22651]; 	City 	of 	San 	Diego 	v 0 	American 	Federation 	of 	State
etc.
	Employees 	(1970) 	8 	Cal.App.3d 	308 	[87 	Cal. 	Rptr. 	258, 	74
	LRRM
	2407].
17
representative will be pressured either to seek a quick agreement
which includes an agency shop fee but which otherwise may be
unsatisfactory, or to engage in militant concerted activities. 	The
Association argues that in the private sector this employer
advantage is offset by the right to strike while public school
employees have no such right.'
The simple answer to this argument is that the right of public
employees to strike is a question for the Legislature. There is no
indication in the EERA that the Legislature intended to compensate
for this lack of the right to strike by permitting an
organizational security provision to be applied retroactively.
Since the Association has failed to show that either the
language or policies underlying section 8 (a) (3) are distinguishable
from those of sections 3546 (a) and 3540.1 (i) of the EERA, it is
found that the rationale that generated the EERA's organizational
security provisions "lies embedded in the federal precedents under
the NLRA" and "the federal decisions effectively reflect the same
interests as those that prompted the inclusion of the (language in
the EERA) " so that "federal precedents provide reliable if
analogous authority on the issue." 	Fire Fighters Union v. City of
Vallejo (1974) supra, 12 Cal. 3d 608, at 616-617. As federal
precedent clearly prohibits the retroactive application of
See e.g., Pasadena Unified School Dist. v. Pasadena
Federation of Teachers (1977) 72 Cal. App. 3d 100 [140 Cal. Rptr. 41,
96 LRRM 23631]; Trustees of Cal. State Colleges v. Local 1352,
S. F. State etc. Teachers (1970) 13 Cal. App. 3d 863 [92 Cal. Rptr. 134,
76 LRRM 22651]; City of San Diego v. American Federation of State
etc. Employees (1970) 8 Cal . App. 3d 308 [87 Cal. Rptr. 258, 74 LRRM 2407].
17

organizational
	security
	provisions,
	the
	same
	rule
	should
	apply
	in
interpreting
	the
	organizational 	security
	provisions 	of
	the
	EERA. 8
By
	requiring
	the
	Charging
	Parties
	to
	pay
	retroactive 	service
fees
	for 	the
	period
	prior
	to
	the
	date 	of 	execution 	of 	the
	service
fee
	provision,
	at
	a
	time
	when
	the
	Charging
	Parties
	were
	under
	no
obligation
	to
	pay 	such
	fees,
	the
	District
	and
	the
	Association
interfered
	with,
	restrained
	and
	coerced
	these
	employees
	in
	the
exercise
	of
	their 	right
	guaranteed
	by
	section
	3543
	to 	refuse 	to
join
	or
	participate
	in 	the
	activities
	of
	employee
	organizations,
and
	thereby
	violated 	sections
	3543.5(a)
	and
	3543.6(b)
	of
	the
	EERA
respectively.
	In
	addition,
	by
	seeking
	District
	enforcement
	of,
	and
by
	negotiating
	the
	retroactive
	agency 	shop
	provision,
	the
Association
	caused
	the
	District
	to
	violate 	section
	3543.S(a), 	thus
the 	Association 	also 	violated 	section 	3543.6(a).
REMEDY	REMEDY
Section
	3541.5
{c)
	authorizes
	the
	PERB
	to 	issue	
a	
decision
	and
order 	in
	an
	unfair 	practice
	case
	directing
	an
	offending
	party 	to
8
8Though
	California
	case
	law
	under
	the 	Meyers-Milias-Brown 	Act
(Gov.
	Code,
	sec.
	3500
	et
	seq.)
	and
	the
	Winton 	Act
	(formerly
	Ed.
Code,
	sec.
	13080
	et 	seq.,
	repealed
	June 	30,
	1976)
	holds
	that
	a
public
	employer
	and 	an 	employee
	organization
	may
	agree
	on
	salary
and
	other 	provisions
	having
	retroactive 	effective 	dates
	(San
Joa 	uin
	Count	
Em	
lo 	ees' 	Association 	Inc. 	v. 	County
	of 	SanJoaquin
(1974)
	39
	Cal.App.3d
	83 	[113
	Cal.Rptr. 	912]; 	Goleta 	Educators
Association 	v. 	Dall
1
Armi 	(1977)
	68
	Cal.App.3d
	830
	1137
	cal..K.ptr
324])
	these 	cases 	are 	not
	dispositive 	of 	the 	issue 	presented 	here
as 	neither 	the 	Meyers-Milias-Brown 	Act 	nor
	the
	Winton 	Act
	permitsthe 	negotiation 	of
	an
	organizational 	security 	provision. 	(City	
of
Hayward 	v.
	United 	Public
	Employees 	(1976) 	54
	Cal.App.3d
	761 	r126
Cal.Rptr. 	710,
	91
	LRRM
	2898]
.)
18
organizational security provisions, the same rule should apply in
interpreting the organizational security provisions of the EERA.
By requiring the Charging Parties to pay retroactive service
fees for the period prior to the date of execution of the service
fee provision, at a time when the Charging Parties were under no
obligation to pay such fees, the District and the Association
interfered with, restrained and coerced these employees in the
exercise of their right guaranteed by section 3543 to refuse to
join or participate in the activities of employee organizations,
and thereby violated sections 3543.5 (a) and 3543.6 (b) of the EERA
respectively. In addition, by seeking District enforcement of, and
by negotiating the retroactive agency shop provision, the
Association caused the District to violate section 3543.5 (a) , thus
the Association also violated section 3543.6(a) .
Section 3541.5 (c) authorizes the PERB to issue a decision and
order in an unfair practice case directing an offending party to
Though California case law under the Meyers-Milias-Brown Act
(Gov. Code, sec. 3500 et seq. ) and the Winton Act (formerly Ed.
Code, sec. 13080 et seq., repealed June 30, 1976) holds that a
public employer and an employee organization may agree on salary
and other provisions having retroactive effective dates (San
Joaquin County Employees' Association Inc. v. County of San Joaquin
(1974) 39 Cal. App. 3d 83 [113 Cal. Rptr. 912]; Goleta Educators
Association v. Dall' Armi (1977) 68 Cal. App. 3d 830 [137 Cal . Rptr
324]) these cases are not dispositive of the issue presented here
as neither the Meyers-Milias-Brown Act nor the Winton Act permits
the negotiation of an organizational security provision. (City of
Hayward v. United Public Employees (1976) 54 Cal. App. 3d 761 [126
Cal. Rptr. 710, 91 LRRM 2898].)
18

cease
	and
	desist
	from
	the
	unfair
	practice
	and
	to
	take
	such
affirmative
	action
	as
	will 	effectuate
	the
	policies
	of 	the
	EERA.
In
	cases
	where
	retroactive
	dues
	and
	fees
	have 	been
	collected
under
	the
	LMRA,
	the
	NLRB
	has
	required
	reimbursement
	to
	employees
	of
such
	dues. 	See,
	e.g.
	Intl.
	Union
	of 	Dist.
	50
1
	UMW
	(1968) 	173
NL
RB
	8 7 	[ 2 7 	L
RRM
	118
8
],
	en
f.
	( 7
th
	C i
r.
	19
5 2 )
19
4 	F . 2 d 	2 9 8 	f 2 9 	L
RRM
2433].
	Such
	a
	remedy
	obviously
	is
	appropriate
	in
	this
	case.
With
	respect
	to 	the 	matter 	of
	interest,
	under
	section
	lO(c)
	of
the
	LMRA,
	upon
	which
	section
	3541.5
(c)
	is 	patterned,
	the
	NLRB
customarily
	awards
	interest
	on
	monetary 	awards. 	See,
	e.g., 	Isis
Plumbing
	and
	Heating
	Co. 	(1962) 	138
	NLRB
	716
	[51
	LRRM
	1122);
Reserve 	Supply Corp. 	v.
	NLRB
	(2d
	Cir.
	1963)
	317
	F.2d
	785
	[53
	LRRM
2374].
Under
	California
	law,
	pursuant 	to
	Civil
	Code
	section
3287(a),
9
school
	districts
	and
	other 	public
	employers 	have
	been
ordered 	to
	pay
	interest
	on
	back 	pay 	awarded
	to
	employees.
	Mass
	v.
Board
	of
	Education
	(1964)
	61
	Cal.2d
	612 	[39
	Cal. 	Rptr. 	739];
9
9civil
	Code
	section
	3287(a)
	provides:
Every
	person
	who
	is 	entitled
	to 	recover
	damages
	certain,
	orcapable 	of
	being
	made
	certain
	by
	calculation,
	and
	the
	right 	to
recover
	which
	is
	vested 	in
	him 	upon
	a
	particular
	day,
	is 	entitled
also 	to 	recover
	interest
	thereon
	from
	that
	day, 	except 	during
	such
time 	as 	the 	debtor
	is
	prevented
	by
	law, 	or
	by
	the 	act 	of 	the
creditor
	from
	paying 	the 	debt. 	This
	section 	is 	applicable 	torecovery 	of
	damages 	and
	interest
	from 	any 	such
	debtor, 	includingthe
	state
	or 	any
	county,
	city, 	city
	and
	county, 	municipal
corporation, 	public
	district,
	public 	agency, 	or
	any
	political
subdivision 	of 	the
	state.
19
cease and desist from the unfair practice and to take such
affirmative action as will effectuate the policies of the EERA.
In cases where retroactive dues and fees have been collected
under the LMRA, the NLRB has required reimbursement to employees of
such dues. See, e.g. Intl. Union of Dist. 50, UMW (1968) 173
NLRB 87 [27 LRRM 1188], enf. (7th Cir. 1952) 194 F. 2d 298 [29 LRRM
2433]. Such a remedy obviously is appropriate in this case.
With respect to the matter of interest, under section 10 (c) of
the LMRA, upon which section 3541.5 (c) is patterned, the NLRB
customarily awards interest on monetary awards. 	See, e.g. , Isis
Plumbing and Heating Co. (1962) 138 NLRB 716 [51 LRRM 1122] ;
Reserve Supply Corp. v. NLRB (2d Cir. 1963) 317 F. 2d 785 [53 LRRM
2374] .
Under California law, pursuant to Civil Code section
3287 (a) , school districts and other public employers have been
ordered to pay interest on back pay awarded to employees. Mass v.
Board of Education (1964) 61 Cal. 2d 612 [39 Cal. Rptr. 739];
civil Code section 3287 (a) provides:
Every person who is entitled to recover damages certain, or
capable of being made certain by calculation, and the right to
recover which is vested in him upon a particular day, is entitled
also to recover interest thereon from that day, except during such
time as the debtor is prevented by law, or by the act of the
creditor from paying the debt. This section is applicable to
recovery of damages and interest from any such debtor, including
the state or any county, city, city and county, municipal
corporation, public district, public agency, or any political
subdivision of the state.
19

Burgess 	v.
	Board
	of
	Education
	(1974)
	41
	Cal.App.
	3d
	571 	[116
Cal.Rptr.
	183]; 	Sanders
	v.
	City 	of
	Los
	Angeles
	(1970)
	3
	Cal.3d
	252
[90
	Cal.Rptr.
	169];
	see
	also
	Tripp
	v.
	Swoap
	(1976)
	17
	Cal.3d
	671,
677-85
	[131
	Cal.Rptr.
	7891.
Thus,
	although
	section
	3541.S(c)
	does
	not
	expressly 	authorize
interest,
	based
	on
	the
	above
	NLRB
	and
	state
	precedent,
	it
	is
appropriate
	to
	add
	interest
	at
	the
	legal 	rate
	to
	the
. 	b 	t	
re1m
	ursemen
	s.
10
Lastly,
	the
	Association
	and
	the
	District
	will
	be
	ordered 	to
post 	copies 	of
	this
	order.
	A
posting
	requirement
	effectuates
	the
purposes
	of
	the
	EERA
	in
	that
	it
	informs
	employees
	of 	the
disposition
	of
	the 	charge
	and
	announces
	the
	respondents' 	readiness
	to
comply
	with 	the 	ordered
	remedy.
11
"
PROPOSED
	ORDER	PROPOSED ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law,
	and
the
	entire
	record 	in
	this
	case,
	and
	pursuant 	to 	section
	3541.S(c)
of 	the
	EERA,
	it
	is
	hereby
	ordered
	that
	the
	Los
	Altos 	Teachers
Association
	and
	its
	representatives
	and
	the
	Los
	Altos
	School
10	
lOcalifornia 	Constitution,
	article
	XV,
	section
	1
	prescribes
	a
rate 	of
	interest
	of
	seven
	percent 	per
	annum.
	Although
	the 	National
Labor
	Relations
	Board 	imposes
	six 	rcent 	interest
	(the
	currentadjusted
	prime
	rate)
	on
	back 	pay 	awards
	(Florida 	Steel
	Corp.
	(1977)
2 3 l
	NL RB
	# 11 7 ) 	[ 9 6 	L
RRM
	10 7 0 J ,	
the
	Ca 1 i
for
n i a
	legal
	r a t e
	is
	the
a
	ropriate
	one
	to
	be
	applied.
11	
11
Posting
	ha~ 	been held 	to. effectuate cit~sp)uip~r:: 	~f [
ih~R~03]'
Pennstlvania
	Greyhound
	Lines, 	Inc.
fl938)
	303
	US
	261 	[2
	LRRM
	600];
	NLRB
	v 	Empress
~~bi:L~hing 	Co. 	(194i) 	312 	U.S. 	426 	[8
	LRRM
	415].
20
Burgess v. Board of Education (1974) 41 Cal. App. 3d 571 [116
Cal. Rptr. 183]; Sanders v. City of Los Angeles (1970) 3 Cal. 3d 252
[90 Cal. Rptr. 169]; see also Tripp v. Swoap (1976) 17 Cal. 3d 671,
677-85 [131 Cal . Rptr. 789].
Thus, although section 3541.5 (c) does not expressly authorize
interest, based on the above NLRB and state precedent, it is
appropriate to add interest at the legal rate to the
reimbursements.
Lastly, the Association and the District will be ordered to
post copies of this order. A posting requirement effectuates the
purposes of the EERA in that it informs employees of the
disposition of the charge and announces the respondents' readiness to
comply with the ordered remedy. L
Upon the foregoing findings of fact, conclusions of law, and
the entire record in this case, and pursuant to section 3541.5 (c)
of the EERA, it is hereby ordered that the Los Altos Teachers
Association and its representatives and the Los Altos School
California Constitution, article XV, section 1 prescribes a
rate of interest of seven percent per annum. Although the National
Labor Relations Board imposes six percent interest (the current
adjusted prime rate) on back pay awards (Florida Steel Corp. (1977)
231 NLRB #117) [96 LRRM 1070], the California legal rate is the
appropriate one to be applied.
Posting has been held to effectuate the purposes of the LMRA.
Pennsylvania Greyhound Lines, Inc. (1935) 1 NLRB 1 [1 LRRM 303],
enf. (1938) 303 U.S. 261 [2 LRRM 600]; NLRB v. Empress
Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415].
20

District,
	its
	governing 	board,
	superintendent
	and
	other
representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
Taking
	any
	action
	to 	enforce
	the
	service
	fee
	provision
	in
their
	negotiations
	agreement
	for 	the
	period 	July 	1,
	1976,
	to
	May
16,
	1977.
B.
	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
	EFFECTUATE
THE
	POLICIES
	OF 	THE 	ACT:
1,
	Refund
	to
	each
	of
	the
	Charging
	Parties
	John
	A.
	Broadwood,
E.
	C.
	(Beverly)
	Chamberlain
	and
	Barbara
	J.
	Nutt
	the
	amount
	of
	$64.93,
representing
	the
	prorated 	portion 	of 	service
	fees
	for~
the
	period
July
	1,
	1976
	to
	May
	16,
	1977,
	plus
	interest 	at
	the
	rate
	of
	seven
percent 	per
	annum.
2.
	Prepare
	and
	post 	copies 	of
	this
	order 	for 	twenty
	(20)
working 	days
	at
	the
	Association's
	and
	the
	District's
	headquarters
offices
	and
	at
	conspicuous
	locations
	in
	each
	school
	where
	notices
to
	certificated
	employees
	are 	customarily 	posted.
3.
	At
	the
	end
	of 	the 	posting 	period, 	notify
	the
	San
	Francisco
Regional
	Director 	of 	the 	actions
	taken 	to
	comply
	with
	this
	Order.
Pursuant 	to
	California 	Administrative
	Code,
	title
	8,
	part
	III,
section
	32305,
	this
	P
	Decision
	and 	Order
	shall 	final
on
	September 	26. 	1978
	unless
	a
	party
	files
	a
	timely
statement 	of 	exceptions
	and
	supporting 	brief 	within
	twe 	(20)
calendar
	days 	following 	the 	date 	of 	service 	of
	this 	decision.
	Such
statement 	of 	exceptions
	and
	supporting 	brief
	must 	be
	actually
2.1
District, its governing board, superintendent and other
representatives shall:
A. CEASE AND DESIST FROM:
Taking any action to enforce the service fee provision in
their negotiations agreement for the period July 1, 1976, to May
16, 1977 .
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE
THE POLICIES OF THE ACT:
1. Refund to each of the Charging Parties John A. Broadwood,
E. C. (Beverly) Chamberlain and Barbara J. Nutt the amount of $64.93,
representing the prorated portion of service fees for the period
July 1, 1976 to May 16, 1977, plus interest at the rate of seven
percent per annum.
2. Prepare and post copies of this order for twenty (20)
working days at the Association's and the District's headquarters
offices and at conspicuous locations in each school where notices
to certificated employees are customarily posted.
3. At the end of the posting period, notify the San Francisco
Regional Director of the actions taken to comply with this Order.
Pursuant to California Administrative Code, title 8, part III,
section 32305, this Proposed Decision and Order shall become final
on September 26, 1978 	unless a party files a timely
statement of exceptions and supporting brief within twenty (20)
calendar days following the date of service of this decision. Such
statement of exceptions and supporting brief must be actually
21

received
	by
	the 	Executive
	Assistant
	to 	the
	Board
	at
	the
headquarters
	office
	in
	Sacramento
	before
	the
	close 	of 	business
(5:00 	p.m.)
	on
	September 	26, 	1978,
	in 	order 	to
	be
	timely
	filed.
(See
	California
	Administrative
	Code,
	title
	8,
	part
	III,
	section
32135.)
	Any
	statement 	of 	exceptions
	and
	supporting
	brief
	must
	be
served
	concurrently
	with
	its
	filing
	upon
	each
	party
	to
	this
proceeding.
	Proof
	of 	service
	shall
	be
	filed
	with
	the
	Board
itself.
	See
	California
	Administrative
	Code,
	title
	8,
	part
	III,
sections
	32300 	and
	32305,
	as
	amended.
Dated:
	September 	6,
	1978
-------GERALD_A":""_B~KER----~-
Hearing
	Officer
22
received by the Executive Assistant to the Board at the
headquarters office in Sacramento before the close of business
(5:00 p.m. ) on September 26, 1978, in order to be timely filed.
(See California Administrative Code, title 8, part III, section
32135.) Any statement of exceptions and supporting brief must be
served concurrently with its filing upon each party to this
proceeding. Proof of service shall be filed with the Board
itself. 	See California Administrative Code, title 8, part III,
sections 32300 and 32305, as amended.
Dated : September 6, 1978
GERALD A. BECKER
Hearing Officer
22