Los Rios California Federation of Teachers, Local 2279 (Deglow) (PERB 0950E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANNETTE M. 	DEGLOW,
Charging Party,
v.
LOS 	RIOS COLLEGE FEDERATION OF
TEACHERS, 	LOCAL 22 79, CFT/AFT,
Respondent.
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) 	Case No. 	S-CO-279
PERB Decision No. 	950
September 	1, 	1992
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Appearances: 	Annette M. 	Deglow, 	on her own behalf; 	Robert J.
Bezemek, 	Attorney, 	for Los Rios College Federation of Teachers,
Local 2279, CFT/AFT.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Annette M. 	Deglow
of 	a 	Board agent's dismissal 	(attached hereto) 	of her charge 	that
the Los 	Rios College Federation of Teachers, 	Local 	2279, 	CFT/AFT
violated 	section 	3543.6(b) 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 and violated its duty of 	fair
representation under 	section 	3544.9 	of the EERA, 	as 	enforced
under section 3543.6(b). 	We have reviewed the dismissal 	and,
finding 	it to be 	free of prejudicial 	error, 	adopt 	it as 	the
decision of 	the 	Board 	itself.
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.

The unfair practice 	charge 	in Case No. 	S-CO-279 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
June 24, 	1992
Annette 	Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of Teachers.
Local 	2279. 	CFT/AFT. 	Unfair Practice Charge S-CO-279
DISMISSAL 	LETTER
Dear Ms. Deglow:
On January 23, 	1992, 	you filed the above-referenced charge
alleging violations 	of Government 	Code 	sections 	3543,
3543.6(a)-(d) 	and 3544.9. 	Specifically, 	you allege that the
Los Rios College Federation of 	Teachers has denied your right 	to
an agency 	fee 	determination hearing.
On June 22, 	1992, 	you submitted an amended charge. 	In the
amendment 	you allege 	that 	you have 	"not 	taken receipt 	of 	any 	fair
share 	refunds" 	(apparently you have not 	cashed the 	checks 	sent by
the union), 	that 	the union's 	fee payer notice requires agency fee
collection and provides 	you with a 	fee 	determination hearing,
that 	current 	case 	law supports your demand for a hearing, 	that
the union's 	return of 	the 	fee 	"causes 	[you] 	by Federation
definition 	to be 	identified as 	a 	'Free-loader,'" 	that 	the union's
refusal 	to accept your agency fee 	is 	"unfair to all 	unit members"
and 	that your 	rights 	under 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	have been violated.
The 	amended 	charge 	primarily 	sets 	forth 	further argument 	and
reasoning 	to 	support 	your original 	contention that 	the union's
procedure which 	includes 	escrowing your 	funds, 	refusal 	to 	collect
your agency 	fee 	and 	denial 	of 	an agency 	fee 	hearing violate your
rights under EERA. 	However, 	no 	facts have been submitted which
would 	change 	the 	reasoning 	or deficiencies 	explained 	in my 	letter
of June 12, 	1992. 	Accordingly, 	the charge must be dismissed.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board 	itself within twenty 	(20) 	calendar days

June 24, 	1992
Page 2
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
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
copies 	of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of service" 	must
accompany 	each 	copy 	of 	a document 	served upon a party or filed
with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 Board 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.
(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

June 24, 	1992
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will become 	final when the 	time 	limits 	have expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By -Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Robert J. 	Bezemek

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
June 12, 	1992
Annette 	Deglow
Re: 	Annette Deglow v. 	Los Rios College Federation of Teachers,
Local 	2279. 	CFT/AFT. 	Unfair Practice Charge S-CO-279
WARNING 	LETTER
Dear Ms. Deglow:
On January 23, 	1992, 	you filed the above-referenced charge
alleging violations 	of Government 	Code 	sections 	3543,
3543.6(a)-(d) 	and 3544.9. 	Specifically, 	you allege that 	the
Los Rios 	College 	Federation of Teachers has 	denied your right 	to
an agency 	fee 	determination hearing.
Your charge reveals 	the 	following. 	You are an instructor 	for the
Los 	Rios 	Community College District 	and a member of 	the
certificated 	employee bargaining unit 	which 	is 	represented by 	the
Los Rios College Federation of Teachers 	(LRCFT). 	The current
collective 	bargaining agreement 	between 	the 	District 	and 	the
LRCFT includes 	an agency fee provision. 	In August 	1991 	the 	LRCFT
sent a letter to all 	nonmembers which stated 	in part,
"Non-members who wish to challenge LRCFT, 	Local 	#2279's
calculation of 	the 	nonchargeable amount 	must 	inform LRCFT,
Local 	#2279 	of 	their challenge within thirty 	(30) 	days after the
date of notice." 	On September 14, 	1991, 	you requested a dues
reduction. 	On September 30, 	1991, 	you amended your request to
include a 	challenge 	to 	the 	amount being withheld 	for agency 	fee.
Your October 1, 	1991, 	pay warrant 	reflected a deduction of 	$8.82
to the LRCFT. 	Your November 1, 	1991, 	pay warrant 	reflected an
agency fee of 	$9.80. 	In a letter dated October 10, 	1991, 	you
were notified by the 	LRCFT that 	the union was 	returning your 	fee
and denying your 	request 	to proceed 	to 	arbitration 	regarding your
challenge to the amount of agency fee. 	On October 26, 	1991, 	you
joined 	15 	other unit members 	in a 	letter 	to 	LRCFT which declined
the union's 	offer to not 	collect 	an agency 	fee during 	the 	1991-92
school 	year and 	demanded an agency 	fee 	determination 	hearing.
Investigation reveals 	that 	the 	LRCFT has 	a 	fair 	share 	fee
procedure which provides 	in part 	that 	the union establish an
interest-bearing escrow account 	in which 	it 	deposits 	all 	fees 	of

June 12, 	1992
Page 2
all 	nonmembers 	received within 3 0 	days 	of 	the notice of a fee
determination. 	The procedures provide 	that 	during the pendency
of appeals 	the union shall 	continue 	to place 	in escrow all 	fees
collected 	from nonmembers 	who have 	filed appeals. 	On October 24,
1991, 	the LRCFT sent you a check for $8.82, 	the amount which had
been escrowed 	from your 	first 	agency fee 	deduction. 	On or about
November 20, 	1991, 	shortly after receiving the agency fee
deduction of November 1 	from the District, 	the union refunded the
amount 	of 	$9.80 	to you. 	No 	further agency fees were 	collected.
Bradley G. 	Booth. 	Suzanne M. 	Ambrose v. 	Association of California
State Attorneys 	and Administrative 	Law Judges. 	Unfair Practice
Case No. 	S-CO-110-S, 	presented similar issues 	to those which you
have set 	forth in this case. 	In that case, 	two nonmembers
objected 	to 	the 	allocation 	of 	chargeable 	and nonchargeable
expenses. 	The 	individuals 	sought arbitration to 	challenge 	the
agency 	fee amount 	established by 	the 	labor organization. 	The
union responded by notifying 	the 	two 	individuals 	that 	they were
relieved of 	any 	fair share 	assessment 	for the 	fee payer year.
Those amounts 	which had been wrongfully deducted 	for 	one month
were 	immediately refunded with interest. 	The remaining 	fees 	for
the year were waived. 	The union denied the 	requests 	for
arbitration. 	The 	two nonmembers 	filed an unfair practice 	charge
alleging 	that 	the union was 	required 	to provide 	arbitration and
could not 	evade 	that 	duty by waiving 	collection. 	The
administrative law judge 	(ALJ) 	determined that 	the 	charging
parties 	had no 	right 	to a hearing and dismissed 	the 	case. 	The
ALJ stated 	in part,
While 	Hudson 	sets 	forth 	certain procedural
guarantees, 	it does so for the purpose of
preventing 	the 	exclusive 	representative's
wrongful use of the agency fees. 	Here, 	the
exclusive 	representative 	has 	not 	used 	the
agency fees. 	Abood and its progeny have, 	as
a common basis, 	the 	fact 	that 	the 	exclusive
representative was 	entitled to, 	and did use
agency fees 	for various 	chargeable purposes.
Hudson provides 	a 	constitutional 	framework
for 	the agency fee-payer to 	challenge 	the
union's use of agency fees.1
The ALJ also determined that, 	because 	the 	fees 	had been returned,
there was 	no 	real 	remedy 	that 	PERB 	could afford 	the 	charging
1In the above quotation, 	"Hudson" 	refers 	to Chicago Teachers
Association v. 	Hudson 	(1986) 	475 U.S. 	292. 	"Abood" 	refers to
Abood v. 	Detroit Board of Education 	(1977) 	431 U.S. 	209.
("

June 12, 	1992
Page 3
parties 	that 	they had not 	already 	received. 	As 	the ALJ stated,
"since 	the 	charging parties 	in 	this 	case 	have 	suffered no harm,
nor do 	they have any potential 	for any harm, 	they have no
standing to 	challenge 	the 	union's 	refusal 	to provide 	them with
arbitration." 	Accordingly, 	the ALJ granted the union's motion to
dismiss.2
Because 	it 	is 	an ALJ decision and not a decision of 	the Board,
the ALJ's dismissal 	in Booth. 	Ambrose v. 	ACSA is not 	PERB
precedent. 	However, 	the 	facts are very similar to the 	facts
presented 	in your 	charge 	and 	the ALJ's 	reasoning 	is 	persuasive.
The 	right 	protected by the 	Educational 	Employment 	Relations 	Act
and the U.S. 	Supreme Court's Hudson decision is 	the 	"right to
prevent 	the use 	of his 	or her service 	fee 	for purposes beyond the
union's 	representational 	obligations." 	Cumero v. 	Public
Employment Relations Board 	(1989) 	49 	Cal.3d 575, 	590.3 You have
provided no 	facts 	demonstrating 	that 	the 	right 	to prevent use has
been violated. 	By providing 	for escrow of 	funds 	collected and/or
immediately returning those monies, 	that 	right 	is protected and
the union need not provide 	an arbitration hearing.
- 	- -
For these 	reasons, 	the charge as presently written does not 	state
a prima 	facie 	case. 	If 	there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would correct 	the
deficiencies 	explained above, 	please amend 	the 	charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form clearly 	labeled 	First 	Amended
Charge. 	contain all 	the facts and allegations you wish to make,
2The 	nonmember employees 	did not 	appeal 	the 	dismissal 	to 	the
Board.
3The 	right 	to be protected 	is 	the 	right 	to prevent 	the use
of nonmember 	funds 	for improper purposes. 	(Jerabek v. 	California
Public Employment Relations Board 	(1991) 	2 	Cal.App.4 	1298 	(pet.
writ cert, 	pending U.S. 	Supreme Ct.). 	In Jerabek, 	the court
determined 	that 	placing agency 	fees 	in 	escrow during 	the
objections 	period 	eliminated 	the 	risk 	that 	nonmember
contributions 	would 	be 	even 	temporarily used 	for 	impermissible
purposes. 	As 	the 	court 	stated,
At 	no 	time does 	a union have 	access 	to 	these
funds 	to use them for political, 	ideological,
or 	other non-representational 	purposes.
Consequently, 	the evil 	discussed in Abood,
Ellis. 	and Hudson, 	the involuntary
subsidization of 	ideological activity, 	is not
implicated.

June 12, 1992
Page 4
and must be signed under penalty of perjury by the charging
party. 	The amended charge must be served on the respondent and
the original proof of service must be filed with PERB. 	If I do
not 	receive an amended charge or withdrawal 	from you before
June 22, 	1992, 	I shall dismiss your charge. 	If you have any
questions, please call me at 	(916) 	322-3198.
Sincerely,
Bernard McMonigle
Regional Attorney
i