King City High School District Association, et al. (Cumero) (PERB 0197E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM 	J. 	CUMERO,
Charging 	Party,
v.
KING 	CITY 	HIGH SCHOOL 	DISTRICT
ASSOCIATION, 	CTA/NEA; 	KING 	CITY
JOINT 	UNION 	HIGH 	SCHOOL 	DISTRICT;
CALIFORNIA 	TEACHERS 	ASSOCIATION;
NA'rIONAL EDUCATION 	ASSOCIATION,
Respondents.
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______________________ )
Case 	No. 	SF-CO-5
SF-C0-72
SF-C0-73
SF-C0-74
PERB 	Decision 	No. 	197
March 	3, 	1982
~ppearances: 	Anthony 	T. 	Caso 	(Pacific 	Legal 	Foundation) 	and
Jan 	Alton 	Walker, 	Attorneys 	for 	Willaim J. 	Cumero; 	Joseph 	G.
Schumb, 	Jr., 	Attorney 	(La 	Croix 	and 	Schumb) 	and 	Kirsten 	L.
Zerger, 	Attorney 	(California Teachers 	Association) 	for 	King
City High 	School 	District Association, 	crA/NEA, 	and 	the
California Teachers 	Association.
Amici 	Curiae: 	National 	Right 	to Work 	Legal 	Defense 	Foundation
Inc., 	Robert 	F. 	Gore 	and 	Jan Alton 	Walker, 	Attorneys, 	and
Pacific 	Legal 	Foundation, 	Anthony 	T. 	Caso, 	Attorney 	in 	support
of 	Charging 	Party; 	State 	Council 	of 	Service 	Employees
International 	Unions 	and 	Service 	Employees 	International 	Union,
Locals 	22, 	250, 	390, 	614, 	and 	715, 	Robert 	J. 	Bezemek, 	Attorney
in 	support 	of 	Respondents.
Before 	Gluck, 	Chairperson; 	Jaeger, 	Moore, 	and 	Tovar, 	Members.
DECISION
This 	case 	is 	before 	the 	Public Employment 	Relations 	Board
proposed 	decision 	filed 	by 	William J. 	Cumero, 	the 	Charging
Party, 	and 	by 	Respondent, 	King 	City High 	School 	District
Association, 	CTA/NEA 	(hereafter 	CTA 	or 	Association).* 	The
*Respondents, 	King 	City 	Joint 	Union 	High 	School 	District 	and
National 	Education Association 	did 	not 	appear.

primary 	issue 	presented 	to 	the 	Board 	is 	what 	limitations, 	if
any, 	are 	imposed 	under 	the 	Educational Employment 	Relations
Actl 	(hereafter 	EERA) 	on 	the 	use 	of 	service 	fees 	nonmembers
may 	be 	obligated 	to 	pay 	to 	an 	exclusive 	representative 	pursuant
to 	a 	negotiated 	organizational 	security 	provision.
Cumero's 	exceptions 	place 	in 	issue:
Whether 	the 	use 	of 	service 	fees 	to 	finance
certain 	organizational 	activities 	violates
his 	rights 	under 	the 	First Amendment 	to 	the
United 	States Constitution 	and 	under 	EERA;
whether 	a 	nonmember 	must 	authorize 	in
writing 	the 	deduction 	of 	service 	fees 	from
his 	or 	her 	pay;
the 	standard 	of 	proof 	required 	of 	Respondent
organization 	to 	justify 	its 	use 	of 	service
fee 	funds;
whether 	a 	mere 	allegation 	of 	unlawful 	use 	of
such 	funds 	is 	sufficient 	to 	state 	a 	prima
facie 	violation 	of 	pertinent 	sections 	of 	the
EERA 	and 	thus 	shift 	the 	burden 	of 	going
forward 	to 	Res pendent;
the 	adequacy 	of 	Respondent's 	internal 	rebate
procedures; 	and
whether 	the 	absence 	of 	prehearing 	discovery
deprived 	him 	of 	due 	process.
In 	addition, 	Cumero 	asks 	that 	the 	Board
award 	him 	attorneys' 	fees.
With 	respect 	to 	those 	organizational 	activities 	Cumero
alleges 	to 	be 	beyond 	the 	reach 	of 	service 	fee 	support, 	he
1The 	Educational Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	All 	statutory 	references
are 	to 	the 	Government 	Code 	unless 	otherwise 	specified.
2

specifically
objects 	to
	lobbying,
	per
	capita
	payments
	by
	the
exclusive
	representative 	to
	organizations
	with
	which
	it
	is
affiliated,
	social
	and
	recreational
	activities,
	legal
	services,
and
	publications
	and
	other
	communications
	to 	the
	extent
	that
they
	do
	not
	directly 	relate
	to 	negotiations, 	contract
administration,
	and
	grievance 	handling. 	In
	fact,
	it
	is
Cumero's
	position 	that
	all
	permissible
	activities
	must 	be
limited 	to 	these
	three 	functions.
Respondent,
	the
	exclusive 	representative
	of
	the
	King
	City
Joint
	Union High
	School
	District's
	(hereafter
	District)
certificated
	employees,
	disputes
	Mr. 	Cumero, 	who
	is
	a 	nonmember
in
	the
	represented
	unit,
	on
	all
	points.
	In 	essence,
	it
	is
Respondent's
	position 	that
	the 	only
	restriction
	on
	the
	use
	of
service
	fee
	funds
	is
	the
	constitutional 	prohibition 	against
their
	use
	for
	political
	or
	ideological
	purposes
	unrelated
	to
collective
	bargaining.
	It
	therefore
	specifically
	excepts
	to
the
	proposed
	ruling 	that
	would make
	the
	use
	of
	service 	fees
impermissible 	to 	finance 	organizing
	and
	recruiting, 	social
activities,
	charitable 	contributions
	and
	liability
	insurance
made
	available
	only
	to
	members. 	Respondent
	also 	disagrees 	with
the 	hearing
	officer's	
proposed	
finding
	that
	Cumero 1 s
	prior
authorization 	of 	the
	payroll 	deduction
	was
	required
	and
contests 	his 	conclusion 	that
	a 	mere
	allegation
	of 	unlawful 	use
of 	fees,
	unsupported	
by	
facts, 	is 	sufficient 	to 	establish
	a
3

prima
	facie 	unfair
	practice
	and
	shift
	the
	burden
	of
	going
forward
	to
	the 	Respondent.
DISCUSSION
The
	initial
	matter
	this
	Board 	must
	address
	is
	the
	scope
	of
PERB's
	authority
	to 	decide 	the 	issues 	raised
	on
	appeal.
	As
	an
administrative
	agency,
	PERB
	is
	limited 	to
	deciding
	issues
raised
	under
	the
	specific
	Acts
	entrusted 	to
	it.
	The
	EERA,
under 	which
	this
	charge
	is
	brought,
	is
	one
	such
	Act.
	PERB
	must
decide 	cases
	arising
	out
	of
	EERA
	on
	the
	assumption
	that
	the
	Act
suffers
	no
	constitutional 	infirmity.2
Thus,
	the 	primary
	question 	to
	be
	addressed
	is
	whether
	the
service
	fee 	requirement
	in
	evidence
	has
	violated
	any
	right
vested
	in
	Mr. 	Cumero 	by
	the
	EERA.
	Cumero's
	charge
	alleges, 	in
part, 	that
	the
	negotiated
	fee
	provision
	violates 	rights
guaranteed
	him 	by
	section	
3543	
of 	the
	Act. 	This 	sec
	on
provides,
	in 	pertinent 	part:
Public 	school
	employees
	shall
	have
	the
	right
to
	form,
	join,
	and
	participate
	in
	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	of
employer-employee
	relations.
	Public 	schoolemployees
	shall 	also
	have
	the
	right 	torefuse 	to 	join
	or
	participate 	in
	the
activities
	of
	employee
	organizations
	and
sfiall
	have
	the
	right
	to 	represent
	themse 	s
individually
	int
	ir
	employment 	r
	ationswith 	the 	public 	school 	employer, 	except 	that
once 	the 	in
	an
	appropriate 	unit
ifornia Constit
	on
	Arti
	e
	III,
	section 	3.5.
4

have
	selected
	an
	exclusive
	representative
and
	it
	has 	been
	recognized 	pursuant
	to
Section
	3544.1 	or
	certified
	pursuant
	to
Section
	3544.7,
	no
	employee
	in 	that 	unit
	may
meet
	and
	negotiate
	with
	the
	public
	school
employer.
	. 	. 	.
	(Emphasis
	added.)
It
	is,
	of
	course,
	Cumero's
	right
	to 	refuse
	to
	participate
in
	the
	activities
	of
	employee
	organizations,
	and
	that
	is
	the
basis
	of 	the
	main
	charge.
	However,
	section
	3546
	of 	the
	Act
provides:
Subject 	to
	the
	limitations 	set 	forth 	in
	this
section, 	organizational
	security,
	as
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 	securityprovision 	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
	votingapprove
	the 	agreement.
	Such
	vote
	shall
	not
be 	deemed
	to
	either
	ratify
	or 	defeat
	theremaining
	provisions 	of 	the 	proposed
agreement.
(b) 	An
	or
	izati
	securi 	arr
whi
	is 	in
	e
	ect
	be
	res
	nded
majority 	vote 	of 	the 	employees
	in 	the
negotiating 	unit
	covered
	by
	such 	arrangement
in
	accordance 	with 	rules
	and
	regulationsgated
	by 	t
	board.
5

Section
	3540.l(i)
(2)
	defines 	organizational
	security:
(i) 	"Organizational
	security"
	means
	either:
. 	. . 	. 	. . . 	. 	. 	.
(2)
	An
	arrangement
	that
	requires
	an
employee, 	as
	a
	condition
	of 	continued
employment,
	either
	to
	join
	the
recognized
	or
	certified
	employee
organization,
	or 	to
	pay
	the
organization
	a
	service
	fee 	in
	an 	amount
not
	to
	exceed
	the
	standard
	initiation
fee, 	periodic
	dues,
	and
	generalassessments 	of
	such
	organization
	forthe
	duration
	of
	the
	agreement, 	or
	a
period 	of 	three
	years
	from
	the
effective
	date 	of
	such 	agreement,whichever
	comes
	first.
If
	the
	mandatory
	payment
	of
	service 	fees
	constitutes
"participation,"
	then 	the 	apparent
	conflict
	between
	these
sections
	must
	be
	reconciled.
	The
	Board
	finds
	no
	need
	for
extensive 	analysis
	to 	reach 	the 	conclusion
	that
	the
	service
	fee
requirement
	amounts
	to
	participation.
	Financial
	support 	of
	an
organization's
	activity,
	though
	involuntary,
	is
	a
	factor
	both
in
making
	that 	activity
	possible
	and
	in
	pursuing
	it
	in
	a
meaningful
	way.
	Neither 	of 	the
	parties
	to
	this
	action
	argues
otherwise.
The
	validity of	
compulsory 	payments
	to 	labor 	organizations
has	
long 	been
	established. 	In
	Railway 	EmEloyees
	Department
	v.
Hanson 	(1956) 	351 	U.S. 	225 	[38
	LRRM
	2099]; 	the
	Supreme
	Court
reversed 	the	
decision 	of 	the 	Nebraska 	Supreme
	Court 	which	
held
that 	the 	provision 	of
	the 	Railway 	Labor 	Act	
(RLA)
	authorizing
6

union 	shop 	arrangements 	violated 	the 	First 	and 	Fifth Amendments
of 	the 	United 	States 	Constitution. 	The 	Supreme Court 	found
that 	Congress, 	under 	its 	interstate 	commerce 	powers, 	could
enact 	the 	requirement 	of 	financial 	support 	of 	the 	collective
bargaining 	agency 	by 	all 	who 	receive 	the 	benefits 	of 	its 	work;
such 	legislation 	did 	not 	violate 	the 	two 	constitutional
amendments. 	Id. 	38 	LRRM 	2099 	at 	p. 	2104. 	The Court 	recognized
the 	Congressional 	right 	to 	make 	the 	policy 	determination 	that
the 	union 	shop 	was 	a 	stabilizing 	force 	in 	labor-management
relations 	and 	served 	to 	promote 	industrial 	peace. 	The 	Court
further 	rejected 	plaintiffs' 	argument 	that 	compulsory
membership would 	impair 	their 	freedom 	of 	expression, 	finding
that 	requiring 	financial 	support 	for 	the 	work 	of 	the 	union 	in
collective 	bargaining 	did 	not, 	in 	and 	of 	itself, 	force
ideological 	conformity. 	In 	International Machinists
Association 	v. 	Street 	(1961) 	367 	U.S. 	740 	[48 	LRRM 	2345], 	the
Court 	considered 	a 	claim 	that 	the 	RLA 	was 	violated 	when
dissenting 	members' 	dues 	were 	used, 	in 	part, 	to 	finance 	certain
political 	activities, 	a 	matter 	deferred 	by 	the 	Hanson Court.
According 	to 	the 	court, 	the 	II 	r 	share" 	obligation 	was
designed 	to 	compel 	each 	represented 	employee 	to 	compensate 	t
union 	for 	services 	performed 	but 	should 	not 	be 	applied 	to
activities 	not 	contemplated 	by 	t 	Act.
Recently, 	in ___ 	v. 	Det 	t 	Board 	Education 	( 	77) 	431
U.S. 	209 	[95 	LRRM 	24 	] , 	the 	Supreme Court 	der 	t
7

constitutional 	limitations
	on
	the
	use
	of
	agency
	fees
	in 	the
public
	sector.
	Likening 	the
	Michigan
	statute's
	purposes
	to
those 	of
	the
	RLA,
	the
	Court
	applied 	the
	Hanson 	and
	Street
rationales,
	holding
	that
	public 	sector
	nonmembers
	could
	not
	be
compelled
	to
	contribute
	to
	the 	support
	of
	all
	ideological
causes 	they 	opposed, 	but 	could
	be
	required,
	as
	a
	condition 	of
employment,
	to
	pay
	a
	fee 	to
	be
	applied
	toward
	matters
	related
to
	the
	union's
	activities
	in 	collective
	bargaining,
	contract
administration
	and
	grievance 	handling.
To
	compel 	employees
	financially 	to
	support
their 	collective
	bargaining
	representative
has
	an
	impact
	on
	their
	First
	Amendment
interests.
	An
	employee
may
	very 	well
	have
ideological 	objections
	to
	a 	wide
	variety
	of
activities
	undertaken
	by
	the
	union
	in
	its
role
	as
	exclusive
	representative.
	His 	moral
or
	religious
	views
	about 	the
	desirability
	of
abortion
	may
	not 	square 	with 	the
	union's
policy 	in 	negotiating
	a
	medical
	benefitsplan.
	One
	individual
	might
	disagree
	with
the
	union
	policy
	of
	negotiating
	limits
	on
the
	right
	to
	strike,
	believing 	that
	to
	be
the
	road
	to
	serfdom
	for 	the
	working
	class,
while 	another
	might
	have 	economic
	or
political
	objections
	to
	unionism
	itself.
	An
employee 	might
	object 	to
	the
	union's
	wage
policy
	because
	it
	violates 	guidelinesdesigned 	to
	limit 	inflation,
	or
	might
	object
to 	the 	union's 	seeking
	a
	clause 	in
	the
collective
	bargaining
	agreement
	proscribing
racial
	discrimina
	on.
	The
	examples 	could
be
	multiplied.
	To 	be
	required 	to
	he
finance 	the 	union 	as
	a
	collective
	bar
	i
agent 	might
	we
	be
	thought, 	therefore, 	to
interfere 	in
	some 	way
	with
	an
	employee'sfreedom
	to 	associate 	for 	the 	advancement
ideas,
	or 	to 	refr
	n 	from 	doing
	so,	
as 	he
sees
	fit.
	But 	judgment
	clearly
	made
	in
Hanson
	Street
	s
	interferenceas
	exists 	is 	constitutionally 	justified	
by
8

the
	legislative
	assessment
	of
	the
	important
contribution
	o~
	the
	union
	shop
	to
	the
	system
of
	labor
	relations
	established	
by	
Congress.
The
	furtherance
	of
	the
	common
	cause
	leaves
some
	leeway
	for 	the
	leadership 	of
	the
group.
	As
	long 	as 	they
	act
	to
	promote
	the
cause
	which
	justified
	bringing
	the
	group
together,
	the
	individual
	cannot 	withdraw
	his
financial
	support
	merely 	because
	he
iisagrees
	with 	the
	group's
	strategy.
	431
U.S. 	209,
	222 	[95
	LRRM
	2411
	at
	2416].
Emphasis
	added.
Like 	the
	Michigan
	statute
	considered 	in
	Abood,
	EERA
	is
modeled
	after
	federal
	law. 	In
	interpreting
	this
	Act,
	PERB
	may
find 	guidance
	in
	analogous
	federal
	legislation.3
We
	also
	note
	that
	it
	is
	an
	established 	principle
	of
statutory
	construction 	that 	specific
	language
	controls
	or
qualifies
	general
	language.
	Select
	Base
	Materials
	v.
	Board
	of
Education
	(1959) 	51
	Cal.2d 	640,
	645; 	335
	P.2d 	672.
	Provisions
which
	are 	apparently 	in
	conflict
	or
	inconsistent
	can
	be
harmonized 	by	
this 	rule.
In
	the
	construction 	of
	a
	statute
	the
intention
	of
	the
	Legislature
	.••
	is 	to
	be
pursued,
	if
	possible;
	and 	when 	a
	gene
	and
a
	particular
	provision 	are
	inconsistent,
	the
latter
	is
	paramount
	to 	the 	former.
	So 	a
particular 	intent 	will 	control
	a
	general
	one
that 	is 	inconsistent
	with
	it.
	California
Code
	of 	Civil
	Procedure
	section
	1859.
3san 	Die 	o
	Teachers
	Assoc
	ton 	v.
	~dp
	~or 	Court
	(1979)
24
	Cal.
3d 	1
	154 	Cal. Rptr.
	8 39; -59
3
F.
	83	
T
andFTre 	Fighters
v.
	City 	of 	Vallejo
	(1 	4) 	12
	Cal.3d
	608 	[116
	Cal.Rptr.
	507; 	87
LRRM
	2453].
9

Thus, 	the 	specific 	and 	unequivocal 	authority 	to 	negotiate 	a
mandatory 	service 	fee 	found 	in 	section 	3546 	controls 	and
qualifies 	the 	general 	right 	to 	refrain 	from 	participating 	in
organizational 	activities 	expressed 	in 	section 	3543. 	We
therefore 	conclude 	that 	the 	II interference" 	with Cumero' s 	right
to 	refuse 	to 	participate 	in 	organizational 	activities 	resulting
from 	his 	obligation 	to 	pay 	some 	service 	fee 	is 	justified 	by 	the
California Legislature's 	assessment 	of 	the 	important
contribution 	of 	organizational 	security 	arrangements 	to 	the
system 	of 	employer-employee 	relations 	established 	in 	the 	EERA.
This 	is 	not 	to 	say 	that 	the 	amount 	of 	service 	fees 	that 	may
be 	required 	is 	unlimited. 	Section 	3540.l(i) (2), 	~upra, 	limits
the 	fee 	to 	not 	exceed 	dues 	paid 	by members. 	Further
limitations, 	if 	any, 	would 	derive 	from 	Cumero's 	residual 	right
not 	to 	participate 	surviving 	his 	obligation 	to 	contribute 	to
the 	Association I s 	costs 	which 	are 	"germane 	to 	collective
bargaining. 11 4 	To 	balance 	Cumero' s 	right 	against 	his
obligation, 	he 	should 	not 	be 	required 	to 	support 	activities
which 	are 	beyond 	the 	Association's 	representational
obligations. 	For 	this 	reason, 	we 	reject 	the Association's
argument 	only 	constit 	onal 	(ideological) 	considerations
apply. 	The 	fact 	that 	the 	Constitu 	on 	not 	ohibit
certain 	uses 	of 	ser 	ce 	fee 	does 	not 	mean 	EERA 	permits
4rnternational Machi 	sts 	Association 	v. 	Street, 	at
p. 	23.
10

them. 	PERB 	must 	look 	to 	the 	latter 	to 	define 	the 	permissible
range 	of 	organizational 	activities 	for 	which 	Cumero 	may
lawfully 	be 	required 	to 	pay 	his 	fair 	share 	through 	service 	fees.
We 	also 	think 	Cumero's 	"test" 	is 	too 	restrictive. 	The
scope 	of 	representational 	obligations 	incurred 	by 	an 	exclusive
representative 	extends 	beyond 	actual 	negotiations, 	contract
adminstration 	and 	grievance 	adjustment. 	While 	EERA 	does 	not
require 	the 	employer 	to 	negotiate 	on 	all 	matters 	of
employer-employee 	relations, 	the 	representational 	rights 	and
obligations 	of 	an 	exclusive 	representative 	reach 	beyond 	those
matters 	subject 	to 	mandatory 	negotiations. 	Section 	3543.2,
after 	listing 	mandatory 	negotiable 	matters, 	continues:
In 	addition, 	the 	exclusive 	representative 	of
certificated 	personnel 	has 	the 	right 	to
consult 	on 	the 	definition 	of 	educatfonal
objectives, 	the 	determination 	of 	the 	content
of 	courses 	and 	curriculum 	and 	the 	selection
of 	textbooks 	to 	the 	extent 	such 	matters 	are
within 	the 	discretion 	of 	the 	public 	school
employer 	under 	the 	law. 	All 	matters 	not
specifically 	enumerated 	are 	reserved 	to 	the
public 	school 	employer 	and 	may 	not 	be 	a
subject 	of 	meeting 	and 	negotiating, 	provided
that 	nothing 	herein 	may 	be 	construed 	to
limit 	the 	right 	of 	the 	public 	school
employer 	to 	consult 	with 	any 	employees 	or
employee 	organization 	on 	any 	matter 	outside
the 	scope 	of 	representation. 	(Emphasis
added.)
Additionally, 	the 	Act 	specifies 	a 	variety 	of 	employee 	and
organizational 	rights 	which 	are 	not 	directly 	part 	of 	the
processes 	Cumero 	identifies. 	These 	include 	the 	right 	to 	join
and 	participate 	in 	organizational 	activities 	or 	to 	refuse 	to 	do
11

so 	(sec. 	3543); 	to 	select 	an 	exclusive 	representative
(sec. 	3543); 	and 	to 	have 	access 	to 	work 	areas 	and 	certain 	of
the 	employer's 	internal 	means 	of 	communications 	(sec.
3543.l(b)). 	Each 	of 	these 	rights, 	in 	turn, 	is 	protected 	by 	the
further 	right 	to 	be 	represented 	by 	an 	employee 	organization 	in
statutory 	unit 	determination 	and 	unfair 	practice 	proceedings
conducted 	by PERB.
But 	the 	list 	does 	not 	end 	here, 	for 	each 	of 	these
activities 	is 	intimately 	connected 	with, 	and 	often 	dependent
upon, 	collateral 	organizational 	activities 	which 	must 	be
ultimately 	considered 	as 	essential 	aspects 	of 	the
representational 	function.
There 	will, 	of 	course, 	be 	difficult 	problems
in 	drawing 	lines 	between 	collective
bargaining 	activities, 	for 	which
contributions may 	be 	compelled, 	and
ideological 	activities 	unrelated 	to
collective 	bargaining, 	for 	which 	such
compulsion 	is 	prohibitive 	•.• 	[i]n 	the
public 	sector 	the 	line may 	be 	somewhat
hazier. 	The 	process 	of 	establishing 	a
written 	collective 	bargaining 	agreement
prescribing 	the 	terms 	and 	conditions 	of
public 	employment may 	require 	not 	merely
concord 	at 	the 	bargaining 	table, 	but
subsequent 	approval 	by 	other 	public
authority; 	related 	budgetary 	and
appropriations 	decisions 	might 	be 	seen 	as 	an
intergral 	part 	the 	bargaining 	process.
Abood,..:._...___, 	431 	U.S. 	9, 	2 	[95 	LRRM
2421).
12

Clearly, 	many 	of 	the 	terms 	and 	conditions 	of 	employment
applicable 	to 	the 	school 	system 	are 	created 	or 	affected 	by
statute. 	Holidays, 	layoff 	and 	dismissal, 	tenure, 	professional
certification 	and 	retirement 	are 	but 	a 	few 	examples. 	Matters
of 	educational policy, 	whether 	or 	not 	subject 	to 	negotiations
or 	consultation, 	which 	are 	within 	the 	range 	of 	employees'
professional 	concerns, 	are 	formulated 	or 	directed 	by 	the 	Board
of 	Education. 	Such 	matters 	are 	most 	certainly 	included 	among
those 	constituting 	the 	"cause 	which 	justified 	bringing 	the
group 	together." 	Id. 	at 	p. 	222 	[2416].
The 	United 	States 	Supreme 	Court, 	upholding 	the 	right 	of 	a
union 	to 	distribute 	leaflets 	urging 	employee 	action 	on 	certain
political 	issues 	(right-to-work 	and 	minimum wages),
acknowledged 	that 	concerted 	activity 	for 	mutual 	aid 	and
protection 	includes 	seeking 	improvement 	of 	working 	conditions
through 	channels 	outside 	the 	immediate 	employer-employee
relationship. 	Eastex 	v. 	NL~~ 	(1978) 	437 	U.S. 	556 	[98 	LRRM
2717].5
An 	examination 	of 	the 	specific 	issues 	raised 	by 	the 	parties
should 	serve 	to 	illuminate 	the 	standard 	we 	perceive 	and 	as
guidance 	in 	resolving 	the 	difficult 	problem 	of 	drawing 	lines
5wh ile 	EERA does 	not 	employ 	the 	term 	"mutual 	a id 	and
protection 11 	found 	in 	NLRA 	section 	7, 	its 	central 	thrust 	is 	to
provide 	public 	school 	employees 	with 	the 	right 	to 	advance 	their
employment 	relations 	interests 	by 	joint 	participation 	in
organizational 	activity. 	The 	Eastex 	principle 	is 	relevant.
13

between
	activities
	for
	which
	contributions
	may 	be
	compelled
	and
those
	nonrepresentational
	activities
	for
	which
	compulsion
	is
prohibited.
Lobbying 	and
	Other
	Political
	Activity
We
	find 	in
	Abood 	no
	disapproval
	of 	the
	use
	of
	service
	fees
for
	all
	political
	activity.
	Rather, 	the
	Court
	barred 	the
	use
of 	fees
	only 	for
	such
	activity
	whose
	ideological
	purpose
	is
unrelated 	to
	the
	representational
	process.
	Recognizing
	the
difficulty
	of
	drawing
	lines
	between
	permitted
	collective
bargaining 	expenditures
	and
	prohibited 	ideological
	spending 	in
the
	public
	sector,
	the 	Court 	noted:
The
	process 	of
	establishing
	a
	written
collective
	bargaining
	agreement
	presenting
the
	terms	
and	
conditions
	of
	public
employment 	may
	require 	not
	merely 	concord
	at
the 	bargaining
	table,
	but 	subsequent
approval
	by	
other	
public
	authorities;related
	budgetary
	and
	appropriations
decisions
	might
	be
	seen 	as
	an
	integral 	part
of
	the 	bargaining 	process. 	Id.
	at
	p.
	236
[2421]6
Implied
	in
	this
	limited 	prohibition
	and
	the
	Court's
	approval 	of
Hanson 	and
	Street, 	is
	the
	acknowledgment
	that
	union 	involvement
6s
75
v.
	McDonnell 	Douglas 	Cdrp.
	(CD
	Cal.1973)
	371
	F.Supp. 	[85
	LRRM	
201Y7T·
reverse
	on
	other
	grounds 	1976,
	9th
Cir.
	533
	F.2d
	1126 	[92
	LRRM
	2063] 	may
	offer
	some
	assistance
	in
distinguishing
	between
	allowable
	and
	non-allowable 	uses
	of
service 	fees.
	The
	Court, 	in 	dictum, 	suggested 	the 	following
uses
	would
	not
	be
	permitted: 	to 	support 	candidates 	for 	public
office, 	contributions 	to
	political parties
	or 	to 	finance
meetings 	and
	publications 	in 	support 	of 	such 	candidates 	or
parties.
~
14

in 	some 	political 	activity 	may 	be 	required 	in 	pursuit 	of
representational objectives.? 	As 	Rehmus 	and 	Kerner 	express
it:
Union 	objectives 	and 	union 	members' 	economic
interests 	are 	as 	directly 	affected 	by 	tax
policies 	as 	bargain 	wage 	rates. 	National
health 	and 	Social 	Security 	legislation 	are
no 	less 	important 	to 	employee 	economic
interests 	than 	negotiated 	fringe 	benefits
plans. 	Moreover, 	these 	arguments 	apply 	with
greatly 	increased 	force 	and 	logic 	when 	one
considers 	the 	fact 	conceded 	by 	the 	Court 	in
Abood 	- 	that 	collective 	bargaining 	in 	the
public 	sector 	is 	inherently 	political 	in 	any
event.8
The 	test, 	therefore, 	is 	not 	simply 	the 	presence 	of
political 	action 	but 	whether 	employee 	representation 	is 	the
underlying 	purpose 	of 	such 	action.
CTA 	conducts 	lobbying 	activity 	through 	its 	Governmental
Relations 	Department. 	This 	department 	is 	staffed 	by 	employees
paid 	out 	of 	dues 	and 	service 	fees 	who 	monitor 	and 	testify 	on
proposed 	legislation 	concerning 	school 	financing 	and 	employee
working 	conditions.
7see 	also 	Eastex, 	supra; 	Demil!e 	v. 	American 	Federation
of 	Radio 	Artists 	(1947) 	31 	CaI.2d 	139.
Behar les 	M. 	Rehmus 	and 	Benjamin 	Kerner, 11
The 	(&tct 	Sh~~
After 	Abood: 	No 	Free 	Ride, 	But 	What's 	the 	Far~ 	o 	er 	80)
Industrial 	Labor 	Relations 	Review, 	Vol. 	34, 	No. 	1, 	reprinted 	in
California 	Public 	Employee 	Relations 	No. 	47, 	(December 	1980),
Institute 	of 	Industrial 	Relations, 	University 	of 	California 	at
Berkeley.
15

The Association 	has 	also 	established 	an 	"Association 	for
Better 	Citizenship" 	(ABC), 	essentially 	a 	political 	arm 	whose
activities 	are 	directed 	toward 	the 	campaigns 	of 	individuals
seeking 	local 	office 	and 	the 	support 	of 	or 	opposition 	to 	ballot
propositions 	relating 	to 	teachers' 	employment 	concerns. 	ABC's
acitivities 	are 	supported 	by 	voluntary 	contributions.
Some CTA 	staff 	members 	spent 	a 	portion 	of 	their 	time
working 	on Propositions 	6, 	8, 	and 	13. 	Each 	related 	directly 	to
teachers' 	employment 	conditions 	or 	school 	financing.9
The 	record 	indicates 	that 	one 	staff 	employee 	was 	paid 	for
such 	services 	out 	of 	the 	ABC 	voluntary 	funds. 	Another 	employee
so 	engaged 	testified 	that 	he 	did 	not 	know 	the 	source 	of 	the
compensation 	for 	this 	service.
CTA 	admits 	that 	it 	actively 	supports 	specific 	candidates
for 	local 	office 	who 	are 	sympathetic 	toward 	teachers' 	concerns
and 	supportive 	of 	their 	negotiation 	objectives.
We 	are 	mindful 	that 	candidates 	for 	public 	office 	and
political 	parties 	operate 	in 	a 	broad 	arena 	and 	deal 	with 	an
almost 	unlimited 	variety 	of 	ideologically 	saturated 	issues.
Many 	of 	these 	matters 	- 	possibly most 	of 	them 	- 	bear 	no
reasonable 	relationship 	to 	the 	employees' 	representational
interests. 	We 	find 	that 	forced 	contribution 	to 	union 	action 	in
9Proposition 	6 would 	have 	banned 	homosexuals 	from
teaching 	in 	the 	public 	school 	system. 	Propositions 	8 	and 	13
were 	property 	tax measures 	which 	would 	have 	a 	significant
impact 	on 	school 	funding.
16

support 	of
	or
	opposition
	to
	individual
	candidates
	and
	political
parties
	must
	be
	precluded.
Although
	there
	is
	no
	evidence
	that
	service
	fees 	are
contributed 	to
	such
	candidates, 	there
	is
	evidence
	that
	teachers
are 	trained
	by
	CTA
	to
	participate
	in
	local 	elections.
	The
	cost
of
	such
	training
	and
	the 	source 	of
	funds
	to
	meet 	such
	costs
	is
not
	made
	clear
	in 	the 	record.
	To
	the
	extent
	that
	service 	fees
may 	be
	used
	to 	support 	candidates
	for
	local 	office
	or
	otherwise
to
	assist
	in
	such
	campaigns,
	such
	as 	the
	training
	of 	teachers
here,
	the
	Association
	has 	improperly
	interfered
	with 	Cumero's
right
	to
	refrain
	from
	participation
	in
	activities
	which
	are
outside
	the 	reach 	of
	CTA's
	representational 	functions. 	Since
the 	evidence
	of
	CTA
1 s
	improper 	use
	of 	service 	fees,
	if
	any,
cannot
	be
	determined
	from
	the 	recordl0	
and
	since
	Cumero
	has
established
	an
	arguably
	improper 	use
	of
	his
	fees 	for
	this
purpose, 	the 	matter
	will
	be 	remanded
	to 	the 	Chief
Administrative
	Law
	Judge
	to 	take
	appropriate
	evidence
	and
action.
Organizing
	and
	Recruiting
The
	goal 	of	
all
	organizing	
is
	to	
bring 	employees
	together
in
	pursuit 	of
	the	
common
	cause.
l0The 	evidence 	only 	indicates 	that
	CTA
	employed 	a
consultant 	to 	train 	teachers, 	but
	fails
	to 	indicate 	the 	source
of 	the 	consultant's
	compensation.
17

Union 	was
	essential
	to 	give
	laborers
	an
opportunity 	to 	deal
	on
	equality
	with
	their
employer
	•.•
	to
	render
	this
	combination
	at
all
	effective,
	employees
	must
	make
	their
combination 	extend
	beyond 	one
	shop.
	It
	ishelpful
	to
	have
	as
	many
	as
	may
	be
	in 	the
same
	trade 	in
	the
	same
	community
	united,
because, 	in
	the 	competition
	between
employers, 	they
	are
	bound
	to
	be
	affected	
by
the
	standard 	of
	wages
	of
	their
	trade
	in 	the
neighborhood.
11
A
union's
	ability
	to 	secure
	representation 	rights
	and
	to
maintain
	them
	in 	the 	face
	of 	fluctuating
	employee
	attitudes,
shifting
	concerns,
	and
	encroaching
	competitive
	organizations
requires 	that
	the 	organizing
	activity
	be
	ever 	ongoing.
Particularly
	in
	view
	of
	the
	acknowledged
	political
	aspects 	of
representation
	in
	the
	public 	sector
	and
	the
	fact 	that
legislation
	affecting 	public
	school
	employees
	is
	almost 	always
applicable
	on 	a
	statewide 	basis,12 	representational
	activity
in 	the
	political
	arena
	is 	likely
	to
	be
	more
	effective
	when
founded
	on 	a
	broad 	base
	of 	organized
	employees.
Overall
	union
	effectiveness 	is
	a
	factor 	of
	membership
	size
and
	concomitant
	financial 	capability.
	It
	is
	from
	such 	union
strength 	that
	the
	nonmember
	derives
	the
	benefit
	of
representation.
	Accordingly,
	he 	may
	properly
	be
	compelled
	to
llAmerican
	Steel
	Foundries 	v.
	Tri-Cities
	Central 	Trades
Council
	( 1921)	
~	
209; 	66 	L.
-"Rd.
	189. 	See	
also
Tneodore 	Kheel 	Vol. 	I 	Labor 	Law Matthew 	Bender
	NY
	(1980).
12There 	are 	over 	one 	thousand	
separate 	public 	school
employers.
18

contribute 	a 	service 	fee 	towards 	the 	organizing 	activity, 	at
least 	with 	respect 	to 	those 	employees 	covered 	by 	EERA.
Payment 	to Affiliates
The 	benefits 	of 	affiliation 	is 	reflected 	in 	its 	purpose:
achievement 	of 	the 	consolidated 	strength 	of 	many 	organizations
working 	together 	in 	pursuit 	of 	the 	common 	cause 	recognized 	in
American Steel 	Foundries, 	supra. 	Payment 	to 	organizations 	with
which 	the 	exclusive 	representative 	is 	affiliated 	ultimately
inures 	to 	the 	benefit 	of 	the 	service 	fee 	payor 	in 	his
employment 	relationship. 	Such 	affiliation 	can 	augment 	and
enhance 	staff 	and 	legal 	assistance, 	training 	programs,
research, 	communications 	and 	a 	host 	of 	activities 	designed 	to
enhance 	the 	exclusive 	representative's 	own 	representational
services. 	For 	these 	reasons, 	affiliation 	dues 	may 	be 	financed
from 	compulsory 	service 	fees.
Publications
The 	vital 	role 	of 	communication 	between 	the 	exclusive
representative 	and 	its 	constituents, 	the 	employer 	or 	the 	public
in 	the 	representational 	process 	needs 	no 	expansive 	discussion.
The 	issue 	raised 	is 	whether 	service 	fees 	should 	be 	apportioned
to 	reflect 	the 	ratio 	of 	representational 	and
nonrepresentational 	matters 	contained 	in 	the 	organization's
publication.
Protection 	of 	Mr. 	Cumero's 	rights 	does 	not 	require 	an
algebraic 	approach 	by 	this Board. 	Where 	the 	content 	of 	the
19

publication 	is 	representation 	oriented, 	no 	apportionment 	shall
be 	required. 	Demanding 	column-inch 	exactitude 	in 	the
resolution 	of 	disputes 	of 	this 	kind 	would 	place 	an 	undue 	and
chilling 	burden 	on 	the 	very 	communications 	which 	redound 	to 	the
benefit 	of 	all 	employees 	represented.
The 	[financial 	support] 	that 	may 	be 	lawfully
imposed 	... 	relates 	... 	to 	the 	work 	of
the 	union 	in 	the 	realm 	of 	collective
bargaining. 	No 	more 	precise 	allocation 	of
union 	overhead 	to 	individual 	members 	seems
to 	us 	to 	be 	necessary 	..• 	(Hanson, 	supra,
at 	p. 	235.)
CTA 	has 	several 	official 	publications, 	all 	of 	which 	are
designed 	to 	either 	build 	a 	bond 	among 	teachers 	throughout 	the
State 	around 	employment 	and 	professional 	issues, 	or 	to
disseminate 	information 	on 	legislation 	and 	other 	political
issues 	affecting 	teachers, 	or 	to 	instruct 	them 	in 	the 	most
effective methods 	of 	collective 	bargaining. 	The 	publications
are 	used 	both 	as 	an 	organizing 	tool 	and 	a 	teaching 	device 	to
make 	CTA members 	more 	effective 	in 	their 	representational 	role.
In 	addition 	to 	the 	monthly 	newspaper, 	the 	CTA 	Action, 	the
Association 	publishes 	manuals 	on 	strengthening 	teachers'
positions 	during 	negotiations 	(Flying Colors): 	on 	public
r 	ations 	and 	media 	access 	concerning 	collective 	bargai
issues 	(Call 	to Action): 	and 	on 	organizing 	the 	community 	in
support 	of 	co 	ective 	bar 	ining 	demands 	(Blueprint 	for
Community Action). 	Service 	fees 	on 	1 	these 	is
20

permissible
	because
	of
	publications'
	direct
	relationship 	to
	the
effective
	use
	of
	collective
	bargaining.
Administrative
	Expenses
The
	operating 	costs
	of
	the
	exclusive
	representative
	cannot
reasonably
	be
	separated
	from
	its
	representational 	services.
Rent,
	utilities,
	stationery, 	salaries
	and
	other 	costs
	of 	doing
business 	provide 	the 	very
	means 	by
	which
	such
	services
	may
	be
carried
	on.
	To
	deny
	the
	organization
	the
	right
	to
	apply
service 	fees
	in
	meeting 	such
	costs
	would
	at
	once 	burden
members
with 	the
	exclusive
	obligation
	to
	support
	services
	beneficial
	to
nonmembers 	and
	exempt
	such
	nonmembers 	from
	the 	requirement
	that
they
	pay
	for
	representational 	services 	received.
However, 	where
	the 	organization maintains
	an
	operation
which
	is
	unrelated 	to
	its
	representational 	duties,
	which
	is
administered
	substantially
	independently 	of 	permissible
functions,
	and 	where
	the
	costs
	of
	such
	administration 	are
severable
	from
	permissible 	administrative 	costs, 	service 	fees
should 	not
	be
	utilized
	to 	finance
	them.13
Social Activities
Cumero 	does 	not 	provide	
any	
evidence,
	either
	through
	direct
or
	cross-examination,
	as
	to 	the 	nature	
of 	so-called 	social
13Here, 	for 	example, 	the 	Association 	maintains
	a
political 	affairs
	department 	which
	is
	financed
	entirely	
by
voluntary 	contributions.
21

activities. 	Nominal 	indentification 	of 	such 	activities 	in 	the
Association's 	budget 	is 	not 	sufficient 	to 	support 	a 	finding 	of
improper 	application 	of 	service 	fees.
"Social" 	activities 	may, 	in 	reality, 	be 	organizing 	and
communication 	devices. 	Attendance 	at 	regular 	union 	meetings,
conferences, 	workshops 	and 	planning 	sessions 	may 	be 	made 	more
appealing 	by 	the 	inclusion 	of 	some 	social 	amenities.
Similarly, 	activities 	which 	may 	be 	characterized 	as 	"social" 	or
"recreational" 	may 	actually 	serve 	as 	inducements 	to 	attendance
at 	organizing 	and 	membership 	recruitment 	functions, 	much 	in 	the
nature 	of 	door 	prizes 	and 	other 	such 	incentives. 	The 	test
remains 	the 	presence 	of 	an 	underlying 	representational 	purpose
as 	revealed 	by 	the 	facts.
Charitable 	and 	Philanthropic 	Activities
The 	record 	identifies 	only 	one 	activity, 	the 	Martin 	Luther
King 	Scholarship Fund, 	characterized 	in 	this 	manner 	by 	the
charges. 14 	While 	such 	matters 	may 	not 	be 	so 	readily
perceived 	as 	related 	to 	the 	Association's 	representational
services 	as, 	say, 	organizing 	or 	administration, 	such 	a
possibility 	is 	not 	foreclosed 	by 	the 	test 	we 	set 	forth 	here.
14The 	Fund, 	which 	is 	supported 	by 	voluntary
contributions, 	is 	described 	in 	the 	record 	as 	providing
scholarships 	to 	minority 	group 	members 	to 	prepare 	for
leadership 	roles 	in 	education. 	It 	is 	unclear 	from 	the 	record
whether 	administrative 	costs 	of 	the 	Fund 	are 	paid 	for 	by 	CTA.
22

It
	is
	common
	knowledge
	that
	the
	propriety
	of
	collective
negotiation
	for
	teachers
	has
	been
	questioned
	and
	that
	teachers
have 	been
	accused
	of
	placing
	their
	own
	interests
	in
	wages
	and
working
	conditions
	over
	educational
	quality.
	Such
	criticism
has
	created
	some
	public
	hostility
	toward
	collective
	bargaining
in 	the 	school
	system.
	By
	its
	scholarship
	fund,
	CTA
	seeks
	to
improve
	the
	public's
	perception
	of
	teachers'
	concern 	for
educational
	quality
	and
	thereby
	create
	a 	more
	favorable
	public
climate
	for 	the 	Association
	and
	its
	negotiating
	efforts.
	Thus,
the
	scholarship
	fund
	has
	a
	sufficient 	relationship
	to
	CTA's
representational 	obligations 	to
	justify
	the
	use
	of
	service 	fees
in
	its
	support.
The
	Board
	has 	been
	unable
	to
	reach
	a
	majority
	position
	on
the
	propriety
	of 	using
	service 	fees
	for 	the
	administration 	of
the 	Martin 	Luther
	King
	Scholarship
	Fund.
	However,
	the
	Board
has 	unanimously 	agreed
	that
	the
	use
	of
	service 	fees 	in
furtherance 	of 	nonrepresentational 	functions
	is
	not
	prohibited
where
	the
	cost
	of
	such
	functions 	are
	minor 	and
	cannot	
be
severed
	from
	those 	incurred 	in 	support 	of
	representational
activities.
	Consequently, 	the 	matter 	of 	the
	administration 	of
the 	Scholarship
	Fund
	is
	remanded
	to 	permit	
Mr. 	Cumero
	to	
prove
that 	service 	fees 	are
	utilized
	in 	administering
	this	
fund	
and,
if
	so, 	to 	permit 	the 	Association 	to 	prove
	that	
the	
service 	fees
used 	for	
this
	purpose 	are 	not 	refundable
	under
	the
	principles
stated 	here.
23

Other
	exceptions
Payroll
	deductions 	of
	service
	fees
	do
	not
	require
	the
	prior
written 	authorization
	of 	the 	payor.
15	
Section
	45060
	of
	the
Education
	Code,
	relied
	on 	by 	Cumero,
	refers
	expressly 	to
membership
	dues.16	
It
	makes 	no
	reference 	to
	service 	fees.
Although
	the
	Legislature
	has
	amended
	Education
	Code
sections
	45168 	and 	88167
	to
	allow
	classified
	employees
	the
l5while 	the
	California
	Attorney
	General's 	contrary
opinion
	(60
	Ops.
	Cal.
	Atty.
	Gen. 	(1977) 	370)
	is
	to
	be
	givenweight
	by
	an
	adjudicatory
	body,
	it
	is
	not 	binding
	thereon.
	The
Board
	finds
	ample
	reason 	here 	for 	reaching
	a
	different
conclusion.
16Education
	Code
	section
	45060
	provides,
	in
	pertinent
part:
Deductions 	for
	organization
	dues
The
	governing 	board
	of 	each
	school
	district
when
	drawing 	an
	order 	for 	the
	salary
	payment
due
	to
	a
	certificated
	employee
	of 	the
district,
	shall
	with 	or 	without 	chargereduce 	the 	order
	by
	the
	amount 	which
	it
	hasbeen
	requested 	in
	a
	revocable
	written
authorization
	by
	the
	ernployeee
	to
	deduct 	for
the
	£Urpose
	of 	paying 	the
	dues
	of 	the
employee
	for
	membership
	in
	any
	localprofessional 	organization
	or 	in
	any
statewide 	professional 	organization,
	or 	in
any
	other 	professional 	organization
affiliated
	or 	otherwise 	connected 	with
	a
statewide 	professional 	organization	
which
authorizes
	such
	statewide 	organization 	to
receive
	membership 	dues 	on
	its
	behalf	
and
for 	the 	purpose
	of	
paying
	his	
pro	
rata 	share
of
	the	
costs 	incurred	
by
	the	
district	
in
making
	the 	deduction.	
(Emphasis 	added.)
24

option
	of
	making
	direct
	payments
	to
	the
	organization
	or 	having
such 	payments
	deducted
	from
	their 	payroll,
	neither 	section
requires 	prior 	authorization
	for
	deductions
	from
	nonmembers'
salaries.
	Section
	45060
	remains 	unchanged.
	Nor
	has
	any
	other
legislation
	passed
	since
	EERA's
	enactment
	requiring 	prior
employee
	authorization
	for 	the 	deductions.
More
	significantly,
	membership
	in
	an 	employee
	organization
is 	entirely
	voluntary.
	It
	is
	reasonable 	for 	the
	employer
	to
	be
given 	evidence 	of
	that
	voluntary 	enrollment 	before 	deductions
from
	payroll
	are
	made.
	Service
	fees,
	however,
	are
	mandatory
	if
negotiated 	pursuant
	to
	the
	legislative
	authority
	found
	in
	EERA
section
	3546.
	Prior
	approval 	of 	the
	payor
	is
	not 	only
unnecessary 	but
	inconsistent
	with 	the 	involuntary 	nature 	of
such
	fees.
	Withholding 	approval
	would
	enable 	the
	nonmember
	to
circumvent 	the
	legislative
	purpose
	and
	negotiated
	agreement.
To
	provide 	involuntary
	payors 	with
	this
	option
	would
	inevitably
lead 	to
	unduly 	burdensome
	collection
	problems
	and
	ultimately 	to
the 	wholesale 	enforcement 	of 	the
	employment
	termination
provisions 	of 	section 	3540.l(i),
	a
	consequence
	that
	would 	be
detrimental 	to 	the 	educational
	system
	and
	to 	peaceful 	labor
relations	
in 	the	
districts. 	It 	is
	for
	this
	reason 	that
	we
	also
find 	additional	
ground	
for 	holding
	that
	the 	Education
	Code
provision 	is	
inapplicable 	to
	a	
deduction 	of 	service 	fees.
25

Prehearing
	Discovery
	is
	not
	required
	of
	an
	administrative
agency
	except
	in
	limited
	circumstances
	inapplicable
	here.17
PERB
	does
	not 	provide 	for
	prehearing 	discovery.
	The
	record
indicates 	that
	Mr. 	Cumero
	has
	had
	full
	opportunity 	in
	the
proceeding
	below
	to
	examine 	and
	cross-examine
	witnesses
	and
	to
obtain
	and
	inspect
	all
	requested
	organizational
	records.
	We
fail
	to
	find
	in
	these 	circumstances
	a
	denial
	of
	due
	process.
Cumero's 	Request
	For
	Attorney's
	Fees,
	raised
	for 	the
	first
time
	in
	his
	exceptions
	on
	appeal,
	is
	denied.
	In 	Unit
Determination,
	State
	of
	California
	(12/31/80)
	PERB
	Decision
No.
	llOc-S, 	the
	Board
	adopted
	the 	standard
	used
	by
	the 	National
Labor
	Relations
	Board
	in 	unfair
	practice
	cases 	to
	determine
when
	such 	awards
	would 	be
	made
	in
	representational 	cases.
	We
are
	pursuaded
	that
	the
	same
	standards
	should 	apply
	to 	requests
made
	in
	unfair 	practice 	cases.
	Thus,
	attorney's
	fees
	will
	not
be
	awarded
	to
	a
	charging
	party 	unless 	there
	is
	a
	showing
	that
the
	respondent's
	unlawful 	conduct 	has 	been
	repetitive
	and
	that
its
	defenses 	are 	without 	arguable 	merit.
	(See
	Tiidee 	Products,
Inc.
	(1972) 	194
	NLRB
	1234 	[79
	LRRM
	1175]; 	Heck's, 	Inc.
	(1974)
215
	NLRB
	765 	[88
	LRRM
	1049] ; 	Wellman
	Industries,
	Inc.
	(1980)
248
	NLRB
	3
	LRRM
	1483].
1	
Stevenson 	v.
	State
	Board 	Medical 	Examiners(1970) 	10
	Cal.App.3d 	433; 	Romero
	v.
	Hern 	(1969) 	276
	Cal.
787.
26

The
	instant
	case
	cannot
	be
	so
	characterized.
	Cumero's
further 	insistence
	that 	attorney's
	fees
	are
	in 	order
	because
	of
the
	constitutional
	issues
	presented
	is
	inappropriate.
	As
already
	indicated,
	PERB
	is
	dealing
	here
	solely
	with
	allegations
of
	violations
	of 	the
	EERA.
The
	Burden
	of
	Proof
Cumero
	argues
	that
	because
	the 	uses
	to
	which
	his
	fees
	are
put 	are
	solely
	within
	the
	respondent's
	knowledge,
	he
	should 	not
be
	obligated 	to
	provide
	facts
	sufficient
	to
	constitute
	a
	prima
facie
	charge;
	that
	the 	Association
	has
	the
	burden
	of
	going
forward
	and
	proving
	that
	its
	use
	of
	his
	fees
	is
	permissible;
and
	that,
	because 	of 	the
	constitutional
	issues
	involved, 	the
Association
	must
	prove
	its
	case
	by
	"clear
	and
	convincing
evidence"
	rather
	than
	by 	a
	mere
	preponderance
	thereof.
PERB
	rules 	require
	that
	unfair
	practice
	charges
	must 	be
supported
	by
	statements 	of
	fact
18	
and
	proved
	by 	a
18california
	Administrative
	Code,
	title
	8, 	section
	32615
provides 	in
	pertinent 	part:
(a) 	The
	charge
	shall
	be
	in
	writing,
	signed
by
	the
	party
	or
	its
	agent
	and
	contain 	the
following 	information:
(4) 	The
	sections 	of 	the
	Government 	Code
alleged 	to
	have 	been
	violated;
(5) 	A
clear	
and	
concise 	statement 	of 	the
facts
	and 	conduct	
alleged 	to 	constitute
	an
unfair 	practice, 	including,
	where 	known,
	the
27

preponderance 	of 	the 	evidence. 19 	There 	is 	no 	provision 	for
waiver 	of 	these 	regulations. 	The 	Board 	recognizes 	that
detailed 	information 	concerning 	the 	use 	of 	service 	fees 	may 	be
within 	the 	representative 	organization's 	exclusive 	knowledge.
Nevertheless, 	sufficient 	information 	is 	almost 	always 	available
to 	nonmembers. 	Insurance 	programs, 	philanthropic 	activities,
social 	events 	and 	political 	activity, 	as 	well 	as 	preparation
for 	and 	the 	progress 	of 	collective 	negotiations, 	are 	usually
publicized 	in 	organizational 	literature 	and 	openly 	discussed
among 	unit 	employees 	and 	may 	be 	reported 	in 	local 	media.
Charges 	based 	on 	such 	information, 	even 	if 	made 	upon 	the
information 	and 	belief 	of 	the 	charging 	party, 	may 	suffice 	to
establish 	a 	prima 	facie 	basis 	for 	issuance 	of 	a 	complaint.
Further, 	a 	complete 	report 	of 	its 	financial 	transactions 	must
be 	filed 	with 	PERB 	annually 	by 	each 	exclusive 	representative
and, 	as 	a 	public 	document, 	would 	be 	available 	to 	nonmembers
(section 	3546.5 	and 	Rule 	32125). 	While, 	in 	this 	instance, 	the
disclosure 	requirement 	is 	of 	limited 	use 	because 	most 	of
time 	and 	place 	of 	each 	instance 	of
respondent's 	conduct, 	and 	the 	name 	and
capacity 	of 	each 	person 	involved.
19california Administrative 	Code, 	title 	8, 	section 	32178
provides:
The 	charging 	party 	shall 	prove 	the 	charge 	by
a 	preponderance 	of 	the 	evidence 	in 	order 	to
prevail.
28

Cumero's
	service
	fees
	were
	used
	by
	the
	statewide
20	
Association,	
we
	note
	that
	the
	state
	Association
	was
	joined
as
	an
	indispensable
	party
	and 	was
	subject 	to
	examination 	about
its
	use
	of 	the
	service 	fees.
21	
Therefore,
	Charging
	Party
	had
the 	opportunity
	during 	the 	hearing
	to 	obtain
	full
	disclosure
	of
precisely
	how
	CTA
	spent
	its
	budget
	and
	of 	the
	purpose
	of
virtually
	every
	activity
	in
	which
	the
	local
	and
	statewide
organization
	engaged.
The
	Prima
	Facie
	Case
We
	reject
	CTA's
	argument
	that
	Charging
	Party
	did 	not
	make 	a
prima
	facie 	case.
	His
	original
	charges
	alleged
	that
	EERA
	had
been
	violated
	in
	that
	the
	agency
	fee
	collected
	exceeded
	the
"cost 	to
	Respondent
	in 	performing
	its
	duties
	to
	nonmembers
	as
compared
	to 	the
	benefits
	to
	Petitioner,"
	and
	that,
consequently,
	a 	nonmember
	will
	pay
	more
	than
	a 	member
	for
benefits
	received.
	At
	the 	opening
	of 	the 	hearing, 	in 	response
to
	a
	request
	by 	the 	hearing
	officer,
	Charging
	Party 	further
20see 	David
	W.
	Link
	v.
	California
	Teachers
	Association
and
	National 	Education 	Association
	(12/29/81)
	PERB
	OrderNo. 	Ad-123.
	Two
	of 	four
	Board 	members 	found
	that
	CTA
	was
	not
the 	exclusive 	representative
	of 	the 	Antioch 	Unified 	School
District's 	certificated	
employees 	and, 	for 	that 	reason,
	was
	not
required 	to
	file
	financial 	disclosure 	statements.
	Two	
other
members 	found
	that
	nonmembers
	did 	not
	have
	standing 	to
	compel
an
	organization 	to
	file
	the 	statements,
	and	
therefore	
did 	notreach 	the 	issue 	of	
whether
	CTA
	was	
required 	to
	file
	statements.
21For	
this
	reason
	we
	find
	it
	unnecessary 	to 	decidewhether
	PERB 	may	
subpoena 	nonexclusive 	representatives.
29

defined
	the
	"cost
	of
	performing
	duties"
	as 	the
	cost
	of
collective
	bargaining.
	These
	facts
	raised
	a
	sufficient 	legal
issue 	to
	permit 	the
	hearing
	to
	proceed.
	While
particularization
	may
	have 	been
	justified,
	CTA
	cannot 	claim
prejudice,
	since
	it
	had
	exclusive
	control
	over
	information
concerning
	its
	expenditures
	and
	could 	defend
	or
	admit
	the
charges
	as
	it
	saw
	fit.
	In
	presenting 	his 	case-in-chief,
	Cumero
demonstrated 	through
	testimony
	and
	exhibits 	specific
	uses
	of
service
	fees
	which
	he
	contended
	were
	illegal.
	Thus,
	a
	prima
facie
	case
	was
	established
	and
	the
	Association
	had
	the
	burden
of
	going 	forward.
Cumero's
	contentions
	concerning 	the
	level
	of
	evidence
required
	is 	rejected.
	PERB's
	determination
	is
	limited 	to 	the
question 	of
	whether
	an
	unfair
	practice
	has 	been 	committed 	under
EERA.
	Standards 	for
	constitutional
	challenges,
	if
	different,
are
	not
	applicable 	to
	PERB's
	proceedings.
2 2
The
	Association's
	Legal 	Costs
Cumero
	objects 	to 	Respondent's
	use
	of
	his 	service 	fees 	for
legal 	services 	utilized
	in 	the
	instant 	case.
22see
	Mt.
	Healthy 	City
	School
	District
	Board
	of 	Education
v.	
Doyle	
(1977) 	429
	U.S.
	274 	where
	the 	United
	States
	Supreme
Courtrequired 	that	
the 	employer
	justify 	its
	actions
	by 	a
preponderance	
of
	the 	evidence 	even 	though 	an 	employee 	had
asserted
	a
	violation 	of 	his 	constitutional 	rights
	by
	the
employer.
30

Respondent
	seeks
	to
	enforce
	its
	negotiated
	agreement
	and
defend
	itself
	against
	the 	charge
	that
	it
	has 	breached
	the 	duty
of
	fair
	representation
	it
	owes 	Cumero.
	To
	accept
	Cumero's
argument
	with
	respect 	to
	these
	purposes
	would 	be
	inconsistent
with 	the 	holdings 	in
	this
	case
	approving
	the
	use
	of 	fees 	in
pursuit
	of 	the
	organization's 	representational 	obligations.
Further,
	the
	use
	of
	service
	fees
	to
	defend
	against
	a
	charge
that
	the 	Association
	violated
	its
	duty
	of
	fair
	representation
is
	not 	impermissible 	unless 	the 	defense
	is
	frivolous
	or 	taken
in
	bad
	faith.
	Defending
	charges
	against
	itself
	preserves 	the
strength
	and
	integrity
	of 	the 	exclusive
	representative,
	and
thus
	benefits
	all
	unit
	members.
Group_Legal
	Services
The
	record
	indicates 	that
	these
	services 	are 	for 	the
representation
	of
	members 	and 	nonmembers
	alike
	on
employment-related
	matters 	only.
	Examples
	cited
	in 	the 	record
include 	grievance 	handling,
	representation 	in
	layoff,
dismissal, 	credential
	revocation 	hearings,
	and
	unfair 	practice
charge
	cases.
	These
	services 	are 	available
	through
	law
	firms
on 	a
	statewide 	basis 	to
	supplement 	"in-house"
	staff
availability.	
They	
are 	services
	toward 	which 	Cumero
	is
properly 	obligated 	to 	contribute
	through
	his 	service 	fees.
Insurance 	Programs
The
	insurance 	program 	involved 	here
	is 	described 	as
coverage 	for 	members'
	liability 	arising	
in 	the 	course 	of 	their
31

employment. 	The 	Board 	has 	not 	been 	asked 	to 	determine 	whether
such 	job protection 	is 	a 	subject 	available 	to 	the 	negotiation
process. 	We 	do 	not 	address 	that 	question 	now. 	However,
insofar 	as 	this 	insurance 	does 	have 	a 	relation 	to 	one 	aspect 	of
the 	employees' 	working 	conditions, 	it 	is 	of 	"representational"
character. 	By 	providing 	free 	insurance 	to 	members 	only, 	the
Association 	is, 	in 	effect, 	discriminating 	against 	Cumero 	in 	two
ways: 	(1) 	it 	has 	addressed 	a 	working 	condition 	common 	to 	all
employees 	in 	the 	unit 	only 	on 	behalf 	of 	those 	who 	are 	members;
and 	(2) 	by 	denying 	this 	representational 	service 	to 	Cumero, 	CTA
is 	offering 	more 	representational 	service 	to 	its 	members 	for
the 	same 	monthly 	amount 	of 	dues 	as 	Cumero 	is 	expected 	to 	pay 	in
service 	fees. 	Stating 	it 	otherwise, 	the 	Association 	is
charging 	Cumero 	more 	for 	those 	services 	which 	are 	available 	to
members 	and 	nonmembers 	alike. 	A refund 	in 	the 	amount 	of 	the
Association's 	cost 	for 	this 	insurance 	should 	be 	made 	to 	Cumero
and 	his 	future 	agency 	fee 	requirement 	should 	be 	reduced
accordingly.
The 	Duty of 	Fair 	Representation
Cumero 	charges 	that 	the 	Association 	breached 	the 	duty 	owed
him 	of 	fair 	representation23 	by 	imposing 	a 	discriminatory
23 section 	3544.9 	reads:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
32

charge 	for
	its
	services.
	His
	theory
	is
	that
	since
	his
	fee
obligation
	is
	equal
	to
	the
	members'
	dues,
	he
	is
	paying
	more
	for
the
	limited 	service
	he
	must
	support.
	As
	stated
	above, 	such
	a
charge
	does
	have
	merit
	as
	to
	the
	Association's
	utilization
	of
service
	fees
	to
	provide 	classroom
	liability
	insurance 	for
members
	only.
	Beyond
	this,
	Cumero
	has
	failed
	to
	prove
	that
	he
receives
	less
	compensable
	service
	than
	do
	members
	or
	that
	he
	is
paying
	more
	for 	those
	services
	than
	do 	members.
for 	the 	purpose 	of 	meeting
	and
	negotiating
shall 	fairly
	represent
	each
	and
	every
employee
	in 	the 	appropriate 	unit.
The
	Rebate
	Procedure
Absent
	express
	statutory
	provision 	to
	this 	effect,
	we
	are
without
	authority 	to 	refuse 	to
	hear
	an
	unfair 	practice
charge.
24 	Nor 	may
	we
	establish
	a
	general 	exhaustion
requirement,
	if
	at
	all,
	through
	case
	adjudication 	rather
	than
by
	appropriate
	rulemaking. 	In 	the
	instant
	matter,
	Respondent's
rebate
	procedure
	seems
	to 	require
	submission
	to
	final
	binding
arbitration.
	California 	public 	policy
	looks 	with
	disfavor
	on
involuntary
	arbitration
	arrangernents.25
24rt
	is
	possible 	that	
such	
charges
	can
	be
	avoided 	orminimized
	if
	the
	parties
	were
	to 	resort 	to 	internal 	rebateprocedures.
2
Ssee
	Code
	of 	Civil
	Procedure 	section
	1281.2 	(agreement
to 	arbitrate 	prerequisite 	to 	obtaining 	court 	order 	compelling
	a
party 	to 	arbitrate);
	Wheeler 	v. 	St.
	Joseph 	Hospital
	(1976) 	63
Cal.App.3d
	345 	[133
	Cal.Rptr. 	775]; 	Ramirez
	v. 	Superior 	Court(1980) 	103 	Cal.App.3d 	746 	[163
	Cal.Rptr. 	223]. 	See 	Also 	Nolde
33

Bros. 	v. 	Bakery 	and 	Confectionery Workers 	(1977) 	430 	U.S. 	243
[94 	LRRM 	2753] 	citing 	United 	Steelworkers 	of 	Amer 	v. 	Warrier
and 	Gulf 	Navigation 	Co. 	(1960) 	363 	U.S. 	574, 	582 	[46 	LRffi,1 	2416]
for 	national 	policy.
Service 	Fees 	as 	Condition 	of 	Employment
CTA 	excepts 	to 	an 	ambiguous 	ruling 	of 	the 	hearing 	officer
which 	it 	construes 	as 	finding 	a 	negotiated 	service 	fee 	invalid
if 	it 	does 	not 	require 	payment 	as 	a 	condition 	of 	employment.
Section 	3541.5 	of 	the 	EERA 	vests 	in 	PERB 	the 	initial,
exclusive 	jurisdiction of 	the 	determination 	of 	unfair 	practice
charges. 	The 	California 	Supreme 	Court 	has 	affirmed 	the
preemptive 	nature 	of 	this 	Board's 	jurisdiction. 	San 	Diego
Teachers 	Associaton, 	supra. 	We 	do 	not 	read 	section
3540.l(i) (2) 	as 	defining 	only 	permissible 	service 	fee
arrangements. 	This 	language 	simply 	expresses 	the 	limits 	of 	the
scope 	of 	negotiations 	on 	the 	subject 	of 	service 	fees. 	Just 	as
this 	section 	permits 	service 	fees 	to 	equal 	membership 	dues, 	it
permits 	enforcement 	through 	the 	termination 	provision. 	Just 	as
this 	section 	permits 	the 	negotiation 	of 	agency 	fees 	which 	are
less 	than 	membership 	dues, 	so 	it 	permits 	the 	negotiation 	of
fees 	without 	the 	termination 	condition.
ORDER
Upon 	the 	foregoing 	facts 	and 	conclusions 	of 	law, 	the 	Public
Employment 	Relations 	Board 	hereby 	ORDERS 	in 	the 	matter 	of
iam 	J. 	Cumero, 	a 	i
District 	Association, 	CTA/NEA; 	King 	City 	Joint 	Union 	High
34

School
	District;
	California
	Teachers
	Association; 	National
Education
	Association,
	Respondents,
	that:
1.
	The
	proposed
	order 	of 	the 	hearing
	officer 	is
	vacated;
2.
	To
	the
	extent
	that
	activities
	of
	the
	King
	City
	High
School
	District
	Association
	relate
	to
	its
	representational
duties
	and
	obligations
	toward
	the
	employees
	in 	the
	pertinent
unit
	of
	representation,
	it
	may
	use
	service
	fees
	to
	finance
those
	activities.
3.
	The
	following
	organizational
	activities
	engaged
	in
	by
the
	King
	City
	High
	School
	District
	Association
	relate
	to
	its
representational 	duties
	and
	obligations
	toward
	the
	employees
	in
the
	represented
	unit
	and
	may 	be
	financed
	through
	the
	use
	of
service
	fees
	as
	provided 	for 	in 	the
	collectively
	negotiated
agreement
	entered 	into
	by
	the
	King
	City
	Joint
	Union 	High
	School
District
	and
	the
	King
	City
	High
	School
	District
	Association:
a.
	Lobbying
	in 	favor 	of 	or 	in 	opposition 	to
legislation
	or
	policy 	affecting
	school 	employees'
	interests
with
	respect 	to 	matters 	of
	employer-employee
	relations;
b.
	Contributing 	to
	campaigns
	for 	or
	against 	ballot
propositions 	related 	to
	employees'
	interests
	with
	respect 	to
matters 	of
	employer-employee	
relations	
and	
school 	financing;
c.
	Organizing	
and	
recruitingt
d.
	Payments 	for	
representational	
purposes 	to
organizations 	with
	whom
	the 	Association
	is 	affiliated;
e. 	Publications
	and 	communications;
35

f. 	Administrative 	expenses 	except 	as 	otherwise
provided 	herein;
g. 	Social 	activities 	substantially 	related 	to 	the
Association's 	representational 	services;
h. 	Charitable 	and 	philanthropic 	activities
substantially 	related 	to 	the 	Association's 	representational
services.
i. 	Legal 	fees 	incurred 	by 	the 	Association 	in 	seeking
enforcement 	of 	the 	service 	fee 	provision 	in 	this 	case.
j. 	Group 	legal 	services 	related 	to 	representational
matters.
4. 	The 	utilization 	of 	service 	fees 	to 	provide 	classroom
liability 	insurance 	for 	members 	only 	is 	impermissible.
5. 	Charging 	Party;s 	request 	for 	attorney's 	fees 	is 	DENIED.
6. 	Payroll 	deduction 	of 	lawfully 	negotiated 	service 	fees
may 	be 	made 	without 	the 	prior 	written 	approval 	of 	the 	service
fee 	obligator.
7. 	A service 	fee 	arrangment 	which 	does 	not 	make 	payment 	as
a 	condition 	of 	employment 	is 	not 	invalid.
8. 	The 	complaint 	issued 	herein 	pursuant 	to 	charges 	filed
by 	William 	J. 	Curnero 	against 	the 	King 	City 	High 	School 	District
Association, 	CTA/NEA; 	the 	King 	City 	Joint 	Union 	High 	School
District; 	the 	California 	Teachers 	Association; 	and, 	the
National 	Education 	Association 	are 	hereby 	DISMISSED, 	except 	as
to 	the 	charge 	that 	the 	use 	of 	service 	fees 	to 	provide 	classroom
36

liability
	insurance
	is
	a
	violation
	of
	section
	3544.9,
	which
	is
SUSTAINED,
	and
	except
	as
	to
	paragraph
	No. 	9
	following:
9.
	The
	Board
	REMANDS
	to
	the 	Chief
	Administrative
	Law
	Judge
the
	question
	of
	whether
	respondent
	has 	improperly
	utilized
Charging
	Party's
	service
	fees 	in
	support 	of
	candidates'
campaigns
	for
	public
	office.
The
	Board
	also
	REMANDS
	to
	the 	Chief
	Administrative
	Law
Judge
	to
	determine
	whether
	service
	fees
	were
	used
	in 	the
administration
	of 	the 	Martin 	Luther
	King
	Scholarship
	Fund
	and,
if
	so,
	whether 	such 	use
	is
	not 	refundable 	pursuant 	to
principles
	enunciated 	in
	this
	decision.
10.
	The
	Board
	hereby
	ORDERS
	the 	Association 	to
	refund
	to
Charging
	Party
	the 	pro
	rata
	share 	of
	service
	fees
	collected
which 	have 	been 	used
	to
	provide 	classroom
	liability
	insurance
and,
	if
	found,
	the 	pro
	rata
	share 	of
	service 	fees
	used
	in
support
	of
	candidates'
	campaign
	for
	public
	office,
	and
	to
reduce
	his 	future
	fee
	obligation
	accordingly.
By:
	/HarryLGluck, 	c'n'airperson	
Jatfn'
	Jaeger,
	Member'	
~i.
Member
	Tovar's 	concurrence 	begins
	on 	page 	38.
37

Irene 	Tovar, 	Member, 	concurring:
I 	concur with 	every 	aspect 	of 	the 	decision 	except 	for 	the
portion 	dealing 	with 	administrative 	expenses 	incurred 	in 	relation
to 	the 	administration 	of 	the 	Martin Luther 	King 	Fund. 	While 	I
don't 	have 	a 	problem 	regarding 	the 	fund 	itself, since 	it 	is 	funded
exclusively 	through 	voluntary 	contributions, 	I 	do 	feel 	the
administration 	of 	the 	fund 	should be 	analyzed 	pursuant 	to 	the
standard 	developed 	in 	this 	case.
There 	aren't 	sufficient 	facts 	on 	the 	record 	to 	indicate
whether 	the 	operation 	of 	the 	fund 	is 	administered 	substantially
independently, 	and whether 	the 	costs 	of 	such 	administration 	are
severable 	from 	permissible 	aili~inistrative 	costs. 	If 	both 	of
those 	conditions 	are 	proven, then 	I 	would 	agree 	that 	service
fees 	should not 	be 	utilized 	to 	finance 	them. 	During 	the 	remand
the 	Charging 	Party will 	have 	an 	opportunity, 	if 	he 	chooses, 	to
present 	evidence 	of 	substantial 	independence 	of 	operation 	and
severable 	administrative 	costs.
IRENE 	TOVAR, 	MEMBER
Member 	Moore's 	concurrence 	and 	dissent 	begins 	on 	page 	39.
38

Barbara 	D. 	Moore, 	Member, 	concurring 	in 	part 	and 	dissenting 	in
part:
I 	agree 	with 	the 	majority's 	approach 	to 	determining
appropriate 	expenditures 	for 	agency 	fees 	and, 	with 	the
exceptions 	noted 	below, 	concur 	with 	its 	opinion.
Deduction 	of 	service 	fees 	from 	employees' 	wages.
I 	disagree 	with 	the 	majority's 	analysis 	that 	no 	statutory
authority 	is 	needed 	to 	withhold 	service 	fees 	from 	a 	service 	fee
payer's 	paycheck 	and 	that, 	unless 	there 	is 	a 	statutory
provision 	requiring 	prior 	authorization 	from 	an 	employee, 	money
may 	simply 	be 	withheld 	from 	an 	employee's 	wages. 	Thus,
according 	to 	the 	majority, 	since 	charging 	party's 	service 	fees
were 	withheld 	at 	the 	time 	when 	section 	45060 	required
authorization 	only 	for 	withholding 	union 	dues, 	no 	authorization
was 	needed 	to 	withhold 	service 	fees.
The 	majority 	cites 	no 	authority 	for 	this 	proposition. 	The
notion 	that 	a 	portion 	of 	employees' 	wages 	may 	be 	withheld
absent 	a 	statutory 	prohibition 	to 	the 	contrary 	runs 	counter 	to
the 	extensive 	statutory 	protection 	given 	employees' 	wages. 	The
California 	codes 	are 	replete 	with 	provisions 	which 	afford 	such
protection.I
lFor 	example, 	the 	California 	Code 	of 	Civil 	Procedure 	at
section 	723.010 	et 	seq. 	establishes 	the 	Employees' 	Earning
Protection 	Law 	which 	restricts 	the 	procedures 	for 	garnishment
and 	withholding 	of 	both 	public 	and 	private 	employees' 	wages.
The 	Labor 	Code 	at 	section 	300 	sets 	forth 	a 	number 	of 	rigorous
39

restrictions
	on 	an
	employee's
	ability
	to 	assign 	his/her
	wages.
An
	employee's 	claim 	for 	unpaid
	wages
	are 	given
	priority
	as
among
	other
	creditors
	of 	the
	employer
	by
	the 	Insolvency 	Act,
Code
	of
	Civil
	Procedure
	at
	section
	1204.
	Section
	487.020
	of
that
	code 	exempts 	from
	attachment
	all
	compensation 	payable 	to
an 	employee
	for
	services
	performed.
More
	specifically,
	the
	majority's
	reasoning 	completely
ignores
	significant
	Labor
	Code
	provisions
	which
	prohibit
	a
public
	or
	private
	employer
	from
	withholding
	funds
	from
	an
employee's
	paycheck
	unless
	the 	withholding
	has 	been
specifically
	authorized. 	Section
	221
	of 	the
	Labor
	Code
provides:
It
	shall
	be
	unlawful 	for
	any 	employer
	to
collect
	or
	receive
	from 	an 	employee 	any
	part
of
	wages
	theretofore
	paid
	by
	said
	employer
to 	said
	employee.
Only
	section
	224
	provides 	exceptions 	to
	this
	broad
prohibition
	and
	then 	only
	by
	permitting
	money
	to
	be
	withheld
from 	an
	employee's
	paycheck
	where
	the
	employer
	is
	required
	or
empowered
	to
	do
	so	
by	
state
	or
	federal
	law
	or
	when 	a
	deduction
is
	expressly 	authorized 	in
	writing
	by
	the
	employee.
2 	As
noted 	above,
	there
	is
	no
	Labor
	Code
	section 	authorizing
2
section
	224
	provides 	in
	part:
The	
provisions 	of 	Sections
	221, 	222 	and 	223
shall	
in	
no 	way 	make
	it
	unlawful 	for
	an
employer
	to 	withhold 	or
	divert
	any
	portionof
	an 	employee's	
wages 	when
	the 	employer
	isrequired 	or	
empowered
	to
	do
	so
	by	
state
	or
federal
	law
	or
	when 	a
	deduction
	is 	expressly
authorized 	in 	writing
	by	
the 	employee	
tocover 	insurance 	premiums,
	hospital 	or
ues, 	or 	other 	deductions 	not	medical 	d
40

withholding 	of 	service 	fees 	from 	a 	certificated 	employee's
paycheck 	with 	or 	without 	that 	employee's 	permission. 	Nor 	is
there 	any 	provision 	in EERA authorizing 	withholding 	of 	service
fees. 	Thus, 	unless 	one 	may 	infer 	such 	authority 	from 	EERA 	as 	a
whole, 	the 	majority's 	holding 	directly 	contradicts 	the 	above
Labor 	Code 	sections.
amounting 	to 	a 	rebate 	or 	deduction 	from 	the
standard 	wage 	arrived 	at 	by 	collective
bargaining 	or 	pursuant 	to 	wage 	agreement 	or
statute, 	or 	when 	a 	deduction 	to 	cover 	health
and 	welfare 	or 	pension 	plan 	contributions 	is
expressly 	authorized 	by 	a 	collective
bargaining 	or 	wage 	agreement.
The 	majority 	argues 	that 	providing 	involuntary 	payers 	with
the 	right 	to 	pay 	their 	service 	fees 	out-of-pocket 	would 	lead 	to
unduly 	burdensome 	collection 	problems 	allowing 	the 	nonmember 	to
circumvent 	the 	legislative 	purpose 	of 	agency 	shop. 	While 	it
does 	not 	say 	so 	directly, 	the 	majority 	seems 	to 	rely 	on 	this
potential 	difficulty 	to 	find 	that 	EERA 	must 	contain 	an 	implicit
right 	to 	withhold 	service 	fees. 	This 	is 	simply 	an 	assumption
which 	is 	at 	odds 	with 	both 	the 	Legislature's 	generally
protective 	stance 	regarding 	workers' 	wages 	as 	well 	as 	with 	its
specific 	statutory 	treatment 	of 	service 	fees.
Notably, 	the 	Legislature 	has 	authorized 	school 	employers 	to
deduct 	service 	fees 	pursuant 	to 	a 	negotiated 	agreement 	covering
classified 	employees, 	but 	it 	has 	reserved 	to 	the 	service 	fee
payor 	a 	choice 	to 	either 	have 	the 	fees 	withheld 	or 	to 	pay 	fees
41

out-of-pocket. 3 	Although 	the 	statute 	was 	enacted 	after
passage 	of 	EERA 	and 	is 	prospective 	only, 	it 	evidences 	that,
despite 	the 	potential 	problems 	noted 	by 	the 	majority, 	the
legislative 	intent 	is 	to 	give 	service 	fee 	payers 	a 	choice 	of
payment 	methods. 4 	This 	intent 	is 	ignored 	by 	the 	majority's
interpretation 	when 	it 	asserts 	that 	authority 	to 	have 	an 	agency
shop 	necessarily 	includes 	the 	authority 	to 	expropriate 	service
fees 	from 	employees' 	wages 	without 	their 	authorization.
Since 	Cumero's 	service 	fee 	was 	owed 	to 	the 	Association,
however, 	I 	would 	not 	refund 	the 	amount 	deducted, 	and 	I 	concur
with 	the 	majority 	in 	this 	regard.
Prima 	Facie 	Case 	and 	Burden 	of 	Proof:
Charging 	Party 	contends 	that 	the 	simple 	assertion 	that
agency 	fees 	have 	been 	improperly 	expended 	should 	be 	sufficient
to 	state 	a 	prima 	facie 	case. 	He 	argues 	that 	since 	the
Association 	has 	control 	of 	the 	information 	which 	will 	prove 	or
disprove 	the 	charge, 	Respondent 	rather 	than 	Charging 	Party
should 	then 	have 	the 	burden 	of 	going 	forward 	with 	the 	evidence.
3Assembly 	Bill 	No. 	1797 	introduced 	in 	April 	1979 	has 	been
enacted 	into 	law 	and 	amends 	sections 	45168 	and 	88167 	of 	the
Education 	Code. 	It 	became 	effective 	September 	29, 	1980 	and 	has
prospective 	effect 	only.
4similar 	legislation 	is 	pending 	affecting 	certificated
employees. 	Assembly 	Bill 	No. 	404 	would 	authorize 	either
withholding 	service 	fees 	from 	a 	service 	fee 	payor's 	paycheck
or, 	at 	the 	employee's 	option, 	paying 	the 	fee 	directly 	to 	the
union. 	This 	bill 	also 	has 	prospective 	effect 	only.
42

Charging 	Party's 	amended 	charge 	simply 	stated:
That 	the 	unified 	membership 	fee, 	initiation
fee 	and 	general 	assessment 	without
membership 	has 	exceeded 	the 	cost 	to
Respondent 	in 	performing 	his 	collective
bargaining 	duties 	to 	nonmembers.
The 	Respondent 	made 	a 	preliminary 	motion 	to 	dismiss
claiming 	that 	the 	Charging 	Party 	had 	not 	established 	a 	prima
facie 	case. 	Section 	32652(a) 	of 	PERB's 	rules 	provides 	in
relevant 	part:
The 	Board 	shall 	issue 	a 	complaint 	if 	the
charge 	and 	the 	facts 	presented 	in 	support 	of
the 	charge 	constitute 	a 	prima 	facie
allegation •.•. 	[Emphasis 	added.]
The 	majority's 	treatment 	of 	Cumero's 	charge 	is
inconsistent. 	After 	quoting 	from 	Cumero's 	assertion 	that 	the
agency 	fees 	collected 	exceeded 	Respondent's 	cost 	in 	performing
collective 	bargaining 	duties, 	the 	majority 	concludes 	that 	the
"facts" 	raised 	a 	"sufficient 	legal 	issue" 	to 	permit 	the 	hearing
to 	proceed. 	Apparently 	it 	means 	by 	this 	that 	the 	charge 	stated
a 	prima 	facie 	case. 	However, 	one 	must 	allege 	facts 	in 	support
of 	a 	legal 	assertion 	in 	order 	to 	establish 	a 	prima 	facie 	case.
I 	am 	at 	a 	loss 	to 	discern 	any 	factual 	allegations 	contained 	in
Cumero's 	charge. 	While 	holding 	that 	Cumero 1 s 	charge
established 	a 	prima 	facie 	case, 	the 	majority 	actually
bootstraps 	the 	facts 	presented 	at 	hearing 	to 	save 	Cumero's
initial 	charge 	which, 	under 	the 	majority's 	analysis, 	was
factually 	deficient. 	This 	development 	of 	the 	sufficiency 	of
43

Cumero's
	charge
	strains
	legal 	principles
	and
	is
	inconsistent
with 	the
	majority's
	requirements 	as
	to
	facial
	sufficiency
	of
	a
prima
	facie
	charge.
The
	confusion 	in 	the
	majority's
	discussion
	regarding
establishing
	a
	prima
	facie
	case
	stems
	from
	its
	failure
	to 	deal
with 	the
	issue
	of
	burden
	of 	proof.
	The
	hearing
	officer
resolved
	this
	by
	finding
	that
	the 	charging
	party
	had
successfully 	shifted
	the
	burden
	of 	proof 	to
	the 	respondent
Association,
	citing
	Brotherhood
	of
	Railway
	Clerks 	v. 	Allen
(1963) 	373
	U.S. 	113,
	118 	[53
	LRRM
	2128,
	2130]. 	That
	case
involved
	a
	challenge
	by
	several
	union
	members
	in
	a
	union 	shop
to
	the 	expenditure 	of
	union 	funds
	for
	allegedly
	political
purposes
	which
	the
	union
	members
	claimed
	violated
	their
	First
Amendment
	rights.
	In 	determining
	who 	had
	the
	burden
	of
producing 	the 	evidence 	regarding 	the
	allegedly 	unconstitutional
expenditures 	the 	Court
	stated:
Since 	the 	unions
	possess 	the
	facts
	and
records
	from 	which
	the 	proportion 	of
political
	to
	total
	union
	expenditures
	can
reasonably
	be
	calculated, 	basic
considerations 	of 	fairness
	compel
	that
	they,not 	the 	individual
	employees, 	bear 	theburden
	of 	providing 	such
	proportion.[Supra,
	at
	p. 	122.]
The
	majority
	rejects
	the 	hearing
	officer's
	determination 	of
the 	burden
	of 	proof.	
And,
	while
	it
	fails
	to 	address 	the
difficulty
	noted	
by
	the 	quoted 	language 	in 	the 	Allen 	case,
	it
evidently 	disagrees 	with 	that 	Court's	
placement 	of 	the 	burden
of 	proof.
	The
	majority 	maintains 	that 	the 	Charging 	Party 	bears
44

the 	burden 	hypothesizing 	that 	the 	information 	needed 	to
establish 	a 	prima 	facie 	case 	is 	almost 	always 	available 	to 	a
charging 	party. 	This 	assertion 	ignores 	the 	fact 	that 	most 	of
the 	financial 	information 	that 	Charging 	Party 	needs 	can 	only 	be
supplied 	by 	the 	state-wide 	or 	national 	affiliated 	organization,
where 	the 	bulk 	of 	the 	service 	fees 	are 	spent 5 	and 	that, 	under
the 	EERA 	[as 	we 	ruled 	in 	Antioch 	Unified 	School 	District 	(David
W. 	Link) 	(12/29/81) 	PERB 	Order 	No. 	Ad-123], 	a 	nonmember 	such 	as
Cumero 	is 	not 	entitled 	to 	the 	financial 	statements 	of 	the
state-wide 	or 	national 	affiliates. 	(See 	majority 	opinion 	at
page 	28, 	footnote 	20.) 	Thus, 	the 	majority's 	conclusion 	that
the 	Charging 	Party must 	bear 	the 	burden 	because 	PERB 	rules
regarding 	proof 	of 	unfair 	practice 	charges 	cannot 	be 	waived 	is
unresponsive 	to 	the 	realities 	of 	the 	situation 	and 	ignores
rather 	than 	reconciles 	these 	difficulties.
I 	would 	suggest 	that 	the 	Board 	establish 	the 	following
standard 	regarding 	service 	fee 	cases. 	First, 	it 	is 	incumbent
on 	the 	charging 	party 	to 	establish 	its 	prima 	facie 	case. 	The
Board 	should 	therefore 	look 	at 	the 	alleged 	facts 	of 	each 	case
to 	determine 	whether 	a 	prima 	facie 	case 	has 	been 	alleged. 	If
an 	insufficient 	factual 	basis 	is 	alleged 	in 	the 	charge 	to
Srn 	the 	instant 	case, 	the 	record 	demonstrated 	that 	only
$15 	out 	of 	$152, 	or 	less 	than 	10 	percent 	of 	Cumero's 	service
fees, 	were 	retained 	by 	the 	local 	organization; 	the 	remainder
was 	spent 	by 	either 	CTA 	or 	NEA.
45

establish 	a 	prima 	facie 	case, 	the 	Board 	should 	require 	the
charging 	party 	to 	either 	amend 	the 	charge 	or 	allege 	why 	the
information 	is 	not 	available.
I 	disagree 	with 	the 	hearing 	officer's 	view 	that 	a 	charging
party 	may 	make 	a 	bare 	assertion 	that 	service 	fees 	have 	been
spent 	improperly 	and 	thereby 	shift 	the 	burden 	of 	going 	forward
to 	the 	Association. 	However, 	we 	need 	to 	provide 	a 	method 	by
which 	the 	Board 	can 	reconcile 	the 	difficulty 	of 	requiring 	a
charging 	party 	to 	carry 	the 	burden 	of 	proving 	the 	charge 	with
the 	fact 	that 	only 	the 	respondent 	may 	have 	access 	to 	the
necessary 	information 	to 	establish 	that 	charge.
The 	majority 	glosses 	over 	this 	problem 	by 	viewing 	Cumero's
charge 	in 	concert 	with 	the 	facts 	addressed 	at 	hearing. 	This 	is
both 	improper 	and, 	under 	the 	above 	test, 	unnecessary. 	Under 	my
analysis, 	the 	Board's 	acceptance 	of 	Cumero's 	nonspecific 	charge
in 	this 	case 	is 	appropriate. 	Since 	Cumero 	had 	no 	access 	to 	the
needed 	CTA 	and 	NEA 	financial 	data, 	the 	nonspecific 	charge 	was
sufficient 	to 	state 	a 	prima 	facie 	case. 	Cumero 	alleged 	that
both 	CTA 	and 	NEA's 	financial 	records 	were 	not 	available 	to 	him
until 	the 	time 	of 	hearing. 6 	Thus, 	in 	accordance 	with 	my 	test
6As 	noted 	above, 	the 	Board 	has 	no 	policy 	which 	would
result 	in 	the 	availability 	of 	financial 	data 	from 	a 	state-wide
or 	national 	affiliate 	of 	an 	exclusive 	representative. 	Cumero
made 	several 	requests 	for 	subpoenas 	for 	prehearing 	discovery
all 	of 	which 	were 	denied 	by 	the 	Board. 	The 	Board 	does 	not
allow 	prehearing 	discovery. 	See 	majority 	opinion 	at 	page 	25.
46

outlined 	above, 	Cumero 	adequately 	demonstrated 	that 	he 	did 	not
have 	the 	necessary 	information 	to 	draft 	a 	more 	particularized
charge.
Administrative 	Cost 	of 	Scholarshie:
I 	dispute 	the 	lead 	opinion's 	assertion 	that 	the
administrative 	costs 	expended 	in 	conjunction 	with 	the 	Martin
Luther 	King 	Scholarship 	Fund 	may 	be 	financed 	through 	service
fees. 7 	While 	I 	in 	no 	way 	minimize 	the 	value 	of 	such 	activity
or 	its 	laudatory 	goal, 	I 	am 	unable 	to 	find 	that 	the 	fund's
enhancement 	of 	the 	public's 	view 	of 	teachers' 	concern 	for
educational 	quality 	is 	sufficiently 	related 	to 	CTA's
representational 	goals. 	Any 	number 	of 	philanthropic 	endeavors
could 	have 	similar 	results. 	Agency 	fee 	support, 	in 	my 	view,
must 	be 	based 	on 	a 	more 	direct 	relationship 	to 	the
organization's 	activities 	themselves 	than 	simply 	creating 	a
more 	favorable 	climate 	in 	which 	such 	activities 	could 	be
conducted. 	For 	this 	reason, 	I 	would 	not 	permit 	the 	use 	of
service 	fees 	for 	administration 	of 	this 	scholarship 	fund.
It 	is 	not 	clear 	from 	the 	record, 	however, 	whether 	CTA
rather 	than 	ABC 	funds 	are 	in 	fact 	used 	for 	such 	administrative
purposes 	nor 	whether 	such 	funds 	are 	substantially 	independent
7oespite 	the 	fact 	that 	this 	fund 	is 	supported 	by
voluntary 	contributions, 	my 	colleagues 	seem 	compelled 	to 	advise
that 	the 	fund 	itself 	could 	be 	financed 	by 	service 	fees. 	Only
the 	administrative 	costs 	are 	at 	issue, 	and 	it 	is 	with 	regard 	to
these 	that 	I 	disagree.
47

and 	severable 	from 	other 	administration 	costs. 	I 	would 	direct
on 	remand 	that 	Cumero 	be 	allowed 	to 	prove 	that 	the
administrative 	costs 	are 	financed 	by 	CTA 	and 	that 	CTA 	be
permitted 	to 	prove 	that 	they 	are 	not 	sufficiently 	distinct 	to
warrant 	a 	rebate 	pursuant 	to 	the 	standard 	articulated 	in 	the
majority 	opinion 	with 	regard 	to 	administrative 	costs 	in 	general.
Defense 	of 	Charges:
Finally, 	in 	discussing 	the 	Association's 	legal 	costs 	the
majority 	states 	that 	defense 	of 	charges 	is 	an 	appropriate
service 	fee 	expense. 	The 	issue 	in 	this 	case 	is 	whether 	service
fees 	may 	be 	permissibly 	used 	to 	defend 	against 	charges 	that 	the
Association 	violated 	its 	duty 	of 	fair 	representation. 	I 	limit
my 	holding 	to 	that 	issue 	and 	do 	not 	decide 	whether 	defense 	of
any 	other 	charges 	may 	be 	paid 	for 	from 	service 	fees.
Barbara 	D. 	Moore, 	Member
48