PERB Decision No. 0463E•San Jose Unified School District (PERB 0463E)
San Jose Unified School District (PERB 0463E)
PERB Decision No. 0463ECalperb13 de dez. de 1984
Texto completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD DONNA AUSTIN, ET AL., Charging Parties, v. SAN JOSE UNIFIED SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) _____________________ ) Case No. SF-CE-935 PERB Decision No. 463 December 13, 1984 Appearances: David T. Bryant, Attorney for Donna Austin, et al.; Littler, Mendelson, Fastiff & Tichy by Richard J. Loftus, Jr. and Janice M. Jablonski for the San Jose Unified School District. Before Hesse, Chairperson; Jaeger and Morgenstern, Members* DECISION This case is before the Public Employment Relations Board on exceptions filed by the Charging Parties to the Board agent's dismissal, attached hereto, of their unfair practice charge alleging that the San Jose Unified School District violated section 3543.S(a) of the Educational Employment Relations Act (Government Code section 3540 et seq.). We have reviewed the Board agent's dismissal and, finding it free from prejudical error, adopt it as the decision of the Board itself. ORDER The unfair practice charge in Case No. SF-CE-935 is DISMISSED WITHOUT LEAVE TO AMEND. By the BOARD *Members Burt and Tovar did not participate in this Decision.
STATE OF CAllFORNfA
PUBl.!C EMPLOYMENT RELATIONS BOARD
Headquarters Office
103 l 18th Street
Sacramento, California 95814
(916) 322-3088
September 18, 1984
David T. Bryant, Esq.
National Right to Work
Legal Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22160
Richard Loftus, Esq.
Littler, Mendelson, Fastiff & Tichy
111 Almaden Blvd., Suite 400
San Jose, CA 95113-2093
GEORGI! OEUKMEJIAN. Governor
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE
CHARGE; Austin, et al. v. San Jose USD, SF-CE-935
Dear Parties:
. Pursuant to Public Employni'ent Relations Board (PERB) Regulation
section 32620(5), a complaint will not be issued in the
above-referenced case and the pending charge is hereby
dismissed because it fails to allege facts sufficient to state
a prima facie violation of the Educational Employment Relations
Act (EERA) .1/
The charge alleges that the District violated the EERA by
entering into a collective bargaining agreement with the
Association which provided for automatic deduction of agency
fees. The agency fee clause in question calls for collection
of nonmember service fees in an amount not exce~ding the amount
of initiation fee, dues and general assessment.~/ These
1/References to the EERA are to Government Code sections
3540 et seq. All section references are to the EERA unless
otherwise indicated. PERB Regulations ("Board Rules") are
codified at California Administrative Code, Title 8.
2/The operative organizational security provision is
reflected in two documents. First, a prior collective
bargaining agreement between the parties (7/1/81 - 6/30/84)
contains relevant provisions which were subsequently included
in a successor agreement. The parties' agreement prescribed:
7500 Every teacher shall become a member of the
Association or pay to the Association a iervice
fee in an amount equal to unified membershipDavid Brvant
Richard Loftus
September 18, 1984
Page 2 ·
fees, it is alleged, are passed on by the employer to the
Associat:i.on, which allegedly spends them for purposes to which
the charging parties object.
Discussion
Any argument that the District conduct described above violated
the Act must be rejected for the following reasons:
1. '!'he validity of compulsory payments to labor organization
has long been established. (Railway Employees Department v.
Hanson (1956) 351 U.S. 225 [38 LRRM 2099]; International
AssocJ~ation of Machinists v. Street (1960) 367 U.S. 740
f48 LRRM 2345J; Abood v. Detroit Board of Education (1977) 431
U.S. 209 f.95 LRRM 2411]; Ellis, et al. v. Brotherhood of
Railway, Aj_rline and. Steams11ip Clerks (4/25/84) U.S.
f80 L.Ed.2d 428, 52 U.S.L.W. 4499].) Consistent with thi;--
principle, the EERA specifically permits collective bargaining
agreements to include agency fee provisions requiring employees
either .to join the exclusive representative, or pay a service
.•
dues, initiation fe~s, and general assessments
payable to the Association. ·
7510 An employee may authorize payroll
deduction for service fees in the same
manner provided for in Section 7100 or
make payment directly to the Association.
Second, a "Mediator's Comprehensive Settlement Agreement"
("Settlement Agreement") resolved designated disputes between
the Djstrict and. Association, including the parties' 1983/84
and 1984/85 collective bargaining agreement (Settlement
Agreement, paragraphs 1.8 and 1.9). 'I'he Settlement Agreement
(at p. 9) amended Article 7510 of the 1981/84 agreement to add
the followj_ng:
Upon the written request of the Association, the
District will deduct the amount of the service fee
from the paycheck of any unit member who has not
authorized a payroll deduction or paid directly to the
Association. The Association will reimburse the
District for. the actual cost of payroll deductions
mane pursuant to 7510.David Bryant
Rj_chard Loftus
September 18, 1984
Page 3
fee in an amount not to exceed the standard initiation fee,
periodic dues, and general assessments (sections 3546 and
3540.1(2)).
2. Employee organizations may violate the EERA when they spend
objecting nonmembers' agency fees on activities which are
unrelated to the exclusive representative's representational
role. (King City Union High School District (3/3/82) PERB
Decision No. 197; Abood, supra.) The employer, however, cannot
be held responsible for the expenditures of the exclusive
representative. Rather, agency fees, like membership dues, are
a matter of internal organizational policy and concern:
The employer• s j_nterest j_n the subject is
limited to its willingness to impose on its
non-union employees an agency fee
requirement and, if so, whether an
authorization election [Gov. Code section
3546] j_s desired. (Fresno Unified School
District (4/30/82) PERB Decision No. 208, at
p. 21.) ~
Indeed, the Board has held an employer's insistence on a "cap"
on agency fees constitutes an unlawful bargaining proposal.
(Fresno, supra, at pp. 21-22.) ·
3. The Charging Party finds particular fault in the employer's
implementation of automatic deduction of agency fees. Payroll
deductions of agency fees, however, may be lawfully made
without the permission of employees who are obligated under a
collective bargaining agreement to pay such fees. The Board
has observed that under the EERA,
Pri.or approval of the payer [for an agency
fee deduction] is not only unnecessary but
:i.nconsistent with the involuntary nature of
such fees. wj_thholding approval would
enable the nonmember to circumvent the
legislative purpose and negotiated
agreement. To provide involuntary payers
with this opti.on would inevitably lead to
unduly burdensome collection problems and
ul t:i.mately to tbe wholesale enforcement of
tbe employment terminatj_on provisions of
section 3540.l{i), a consequence that would
be detrimental to the educational system and
to peaceful labor relations in the
districts. (King City, supra, p. 25.)David Bryant Richard Loftus September 18, 1984 Page 4 Furthermore, the Education Code expressly provides that school district governing boards "shall, with or without charge, reduce the order for the payment of service fees to the certified or recognized organization as'required by an organizational security arrangement between the exclusive representative and a public school employer .•.• " (Education Code section 45061.) Accordingly, the automatic deduction clause in the parties' agreement does not contribute toward an unfair practice. For the foregoing reasons, no complaint will issue and the charge is hereby DISMISSED.l/ Pursuant to Board Rule 32635 (California Administrative Code, Title 8, part III), you may appeal the refusal to issue a complaint (dismissal) to the Board itself. Right to Appeal You may obtain a review of this dismissal of the charge by filing an appeal to the B.oard itself within twenty (20) calendar days after service of this dismissal (Board Rule 32635(a)). To be timely filed, the original and five (5) copies of such appeal must be actually received by the Board itself before the close of business (5:00 p.m.) on Tuesday, October 9, 1984, or sent by telegraph or certified United States mai~ postmarked not later than October 9, 1984 (Board Rule 32135). The Board's address is: Public Employment Relations Board 1031 18th Street Sacramento, CA 95814 If you file a timely appeal of the refusal to issue a complaint, any other party may file with the Board an original and five (5) copies of a statement in opposition within twenty (20) calendar days following the date of service of the appeal (Board Rule 32635(b)). l/The Charging Party appears to argue that the District is a necessary party to the formulation of a meaningful remedial order against the Association. Even if this is true, however, it does not mean that the District has committed an unfair practice. Further, adequate procedural mechanisms are available to protect the charging party's interest. See, e.g., Board Rule 32164(d)(l).
David Bryant R:i.chard "Loftus September 18, 1984 Page 5 Service Al.l documents authorized to be filed herein must also be "served" upon all parties to the proceeding, and a "proof of service" must accompany the document filed with the Board itself (see Board Rule 32140 for the required contents and a sample form). The document will be considered properly "served" when personally delivered or deposited in the first-class mail postage paid. and properly addressed. Extension of Time A request for an extension of time in which to file a document with the Boa.rd itself must be in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for filing the document. The request must indicate good cause for and, if known, the position of each other party regarding the extension, and shall be accompanied by proof of service of the request upon each party (Board Rule 32132): pj_nal Date If no appeal is filed within the specified time limits, the dismissal-will become final when the time limits have expired. Very truly yours, DENNIS M. SULLIVA..~ General Counsel Sac 8765b
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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DONNA AUSTIN, ET AL.,
Charging Parties, Case No. SF-CE-935
Vv. PERB Decision No. 463
SAN JOSE UNIFIED SCHOOL DISTRICT, December 13, 1984
Respondent.
Appearances: David T. Bryant, Attorney for Donna Austin, et
al.; Littler, Mendelson, Fastiff & Tichy by Richard J. Loftus,
Jr. and Janice M. Jablonski for the San Jose Unified School
District.
Before Hesse, Chairperson; Jaeger and Morgenstern, Members*
DECISION
This case is before the Public Employment Relations Board
on exceptions filed by the Charging Parties to the Board
agent's dismissal, attached hereto, of their unfair practice
charge alleging that the San Jose Unified School District
violated section 3543.5(a) of the Educational Employment
Relations Act (Government Code section 3540 et seq.).
We have reviewed the Board agent's dismissal and, finding
it free from prejudical error, adopt it as the decision of the
Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-935 is
DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD
*Members Burt and Tovar did not participate in this Decision.
STATE OF CAllFORNfA
PUBl.!C EMPLOYMENT RELATIONS BOARD
Headquarters Office
103 l 18th Street
Sacramento, California 95814
(916) 322-3088
September 18, 1984
David T. Bryant, Esq.
National Right to Work
Legal Defense Foundation
8001 Braddock Road, Suite 600
Springfield, VA 22160
Richard Loftus, Esq.
Littler, Mendelson, Fastiff & Tichy
111 Almaden Blvd., Suite 400
San Jose, CA 95113-2093
GEORGI! OEUKMEJIAN. Governor
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE
CHARGE; Austin, et al. v. San Jose USD, SF-CE-935
Dear Parties:
. Pursuant to Public Employni'ent Relations Board (PERB) Regulation
section 32620(5), a complaint will not be issued in the
above-referenced case and the pending charge is hereby
dismissed because it fails to allege facts sufficient to state
a prima facie violation of the Educational Employment Relations
Act (EERA) .1/
The charge alleges that the District violated the EERA by
entering into a collective bargaining agreement with the
Association which provided for automatic deduction of agency
fees. The agency fee clause in question calls for collection
of nonmember service fees in an amount not exce~ding the amount
of initiation fee, dues and general assessment.~/ These
1/References to the EERA are to Government Code sections
3540 et seq. All section references are to the EERA unless
otherwise indicated. PERB Regulations ("Board Rules") are
codified at California Administrative Code, Title 8.
2/The operative organizational security provision is
reflected in two documents. First, a prior collective
bargaining agreement between the parties (7/1/81 - 6/30/84)
contains relevant provisions which were subsequently included
in a successor agreement. The parties' agreement prescribed:
7500 Every teacher shall become a member of the
Association or pay to the Association a iervice
fee in an amount equal to unified membership
David Brvant
Richard Loftus
September 18, 1984
Page 2 ·
fees, it is alleged, are passed on by the employer to the
Associat:i.on, which allegedly spends them for purposes to which
the charging parties object.
Discussion
Any argument that the District conduct described above violated
the Act must be rejected for the following reasons:
1. '!'he validity of compulsory payments to labor organization
has long been established. (Railway Employees Department v.
Hanson (1956) 351 U.S. 225 [38 LRRM 2099]; International
AssocJ~ation of Machinists v. Street (1960) 367 U.S. 740
f48 LRRM 2345J; Abood v. Detroit Board of Education (1977) 431
U.S. 209 f.95 LRRM 2411]; Ellis, et al. v. Brotherhood of
Railway, Aj_rline and. Steams11ip Clerks (4/25/84) U.S.
f80 L.Ed.2d 428, 52 U.S.L.W. 4499].) Consistent with thi;--
principle, the EERA specifically permits collective bargaining
agreements to include agency fee provisions requiring employees
either .to join the exclusive representative, or pay a service
.•
dues, initiation fe~s, and general assessments
payable to the Association. ·
7510 An employee may authorize payroll
deduction for service fees in the same
manner provided for in Section 7100 or
make payment directly to the Association.
Second, a "Mediator's Comprehensive Settlement Agreement"
("Settlement Agreement") resolved designated disputes between
the Djstrict and. Association, including the parties' 1983/84
and 1984/85 collective bargaining agreement (Settlement
Agreement, paragraphs 1.8 and 1.9). 'I'he Settlement Agreement
(at p. 9) amended Article 7510 of the 1981/84 agreement to add
the followj_ng:
Upon the written request of the Association, the
District will deduct the amount of the service fee
from the paycheck of any unit member who has not
authorized a payroll deduction or paid directly to the
Association. The Association will reimburse the
District for. the actual cost of payroll deductions
mane pursuant to 7510.
David Bryant
Rj_chard Loftus
September 18, 1984
Page 3
fee in an amount not to exceed the standard initiation fee,
periodic dues, and general assessments (sections 3546 and
3540.1(2)).
2. Employee organizations may violate the EERA when they spend
objecting nonmembers' agency fees on activities which are
unrelated to the exclusive representative's representational
role. (King City Union High School District (3/3/82) PERB
Decision No. 197; Abood, supra.) The employer, however, cannot
be held responsible for the expenditures of the exclusive
representative. Rather, agency fees, like membership dues, are
a matter of internal organizational policy and concern:
The employer• s j_nterest j_n the subject is
limited to its willingness to impose on its
non-union employees an agency fee
requirement and, if so, whether an
authorization election [Gov. Code section
3546] j_s desired. (Fresno Unified School
District (4/30/82) PERB Decision No. 208, at
p. 21.) ~
Indeed, the Board has held an employer's insistence on a "cap"
on agency fees constitutes an unlawful bargaining proposal.
(Fresno, supra, at pp. 21-22.) ·
3. The Charging Party finds particular fault in the employer's
implementation of automatic deduction of agency fees. Payroll
deductions of agency fees, however, may be lawfully made
without the permission of employees who are obligated under a
collective bargaining agreement to pay such fees. The Board
has observed that under the EERA,
Pri.or approval of the payer [for an agency
fee deduction] is not only unnecessary but
:i.nconsistent with the involuntary nature of
such fees. wj_thholding approval would
enable the nonmember to circumvent the
legislative purpose and negotiated
agreement. To provide involuntary payers
with this opti.on would inevitably lead to
unduly burdensome collection problems and
ul t:i.mately to tbe wholesale enforcement of
tbe employment terminatj_on provisions of
section 3540.l{i), a consequence that would
be detrimental to the educational system and
to peaceful labor relations in the
districts. (King City, supra, p. 25.)
David Bryant
Richard Loftus
September 18, 1984
Page 4
Furthermore, the Education Code expressly provides that school
district governing boards "shall, with or without charge,
reduce the order for the payment of service fees to the
certified or recognized organization as'required by an
organizational security arrangement between the exclusive
representative and a public school employer .•.• "
(Education Code section 45061.) Accordingly, the automatic
deduction clause in the parties' agreement does not contribute
toward an unfair practice.
For the foregoing reasons, no complaint will issue and the
charge is hereby DISMISSED.l/
Pursuant to Board Rule 32635 (California Administrative Code,
Title 8, part III), you may appeal the refusal to issue a
complaint (dismissal) to the Board itself.
Right to Appeal
You may obtain a review of this dismissal of the charge by
filing an appeal to the B.oard itself within twenty (20)
calendar days after service of this dismissal (Board
Rule 32635(a)). To be timely filed, the original and five (5)
copies of such appeal must be actually received by the Board
itself before the close of business (5:00 p.m.) on Tuesday,
October 9, 1984, or sent by telegraph or certified United
States mai~ postmarked not later than October 9, 1984 (Board
Rule 32135). The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a
complaint, any other party may file with the Board an original
and five (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal
(Board Rule 32635(b)).
l/The Charging Party appears to argue that the District
is a necessary party to the formulation of a meaningful
remedial order against the Association. Even if this is true,
however, it does not mean that the District has committed an
unfair practice. Further, adequate procedural mechanisms are
available to protect the charging party's interest. See, e.g.,
Board Rule 32164(d)(l).
David Bryant
R:i.chard "Loftus
September 18, 1984
Page 5
Service
Al.l documents authorized to be filed herein must also be
"served" upon all parties to the proceeding, and a "proof of
service" must accompany the document filed with the Board itself
(see Board Rule 32140 for the required contents and a sample
form). The document will be considered properly "served" when
personally delivered or deposited in the first-class mail
postage paid. and properly addressed.
Extension of Time
A request for an extension of time in which to file a document
with the Boa.rd itself must be in writing and filed with the
Board at the previously noted address. A request for an
extension must be filed at least three (3) calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, if known, the
position of each other party regarding the extension, and shall
be accompanied by proof of service of the request upon each
party (Board Rule 32132):
pj_nal Date
If no appeal is filed within the specified time limits, the
dismissal-will become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVA..~
General Counsel
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