Davis Teachers Association (Carlson) (PERB 1070E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAVID L. 	CARLSON,
Charging 	Party,
v.
DAVIS TEACHERS ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	S-CO-318
PERB Decision No. 	1070
November 29, 	1994
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Appearances: 	David L. 	Carlson, 	on his own behalf; 	California
Teachers Association by A. 	Eugene Huguenin, 	Jr., 	Attorney, 	for
the Davis Teachers Association, 	CTA/NEA.
Before Caffrey, 	Carlyle and Johnson, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by David L. 	Carlson
(Carlson) 	of a Board agent's partial dismissal 	(attached) 	of his
unfair practice 	charge 	regarding 	the 	denial 	of 	religious 	objector
status 	and 	the deduction and payment 	of 	agency 	fees. 	Carlson
alleged that by engaging 	in this 	conduct, 	the Davis 	Teachers
Association, 	CTA/NEA 	(Association) 	violated his 	rights under
sections 	3543.6(b) 	and 3546.3 	of 	the Educational 	Employment
Relations 	Act 	(EERA).1
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
_____ )

The 	Board has 	reviewed Carlson's 	appeal, 	the Association's
response, 	the warning and dismissal 	letters 	and 	the 	entire 	record
in 	this 	case. 	The 	Board 	finds 	the warning and dismissal 	letters
to be 	free 	of prejudicial 	error and adopts 	them as 	the 	decision
of 	the Board itself.
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
Section 3546.3 	holds:
Notwithstanding subdivision 	(i) 	of Section
3540.1, 	Section 3546, 	or any other provision
of 	this 	chapter, 	any employee who is a member
of 	a 	religious 	body whose 	traditional 	tenets
or 	teachings 	include 	objections 	to 	joining 	or
financially 	supporting 	employee 	organizations
shall 	not be required to join, 	maintain
membership 	in, 	or financially support any
employee 	organization as 	a 	condition 	of
employment; 	except 	that 	such employee may be
required, 	in lieu of a service fee, 	to pay
sums 	equal 	to 	such service 	fee 	either to a
nonreligious, 	nonlabor organization,
charitable 	fund 	exempt 	from taxation under
Section 501 (c) (3) 	of Title 26 of the Internal
Revenue 	Code, 	chosen by such employee 	from a
list of at 	least 	three such funds, 	designated
in 	the 	organizational 	security arrangement,
or 	if 	the arrangement 	fails 	to designate 	such
funds, 	then to any such fund chosen by the
employee. 	Either the employee 	organization
or 	the public 	school 	employer may 	require
that proof 	of 	such payments be made 	on an
annual 	basis 	to 	the public 	school 	employer as
a 	condition 	of 	continued 	exemption 	from the
requirement 	of 	financial 	support 	to 	the
recognized employee 	organization. 	If 	such
employee who holds 	conscientious 	objections
pursuant 	to this 	section 	requests 	the
employee 	organization 	to use 	the 	grievance
procedure 	or arbitration procedure 	on 	the
employee's behalf, 	the employee 	organization
is 	authorized to 	charge 	the 	employee 	for 	the
reasonable 	cost 	of 	using 	such procedure.
22

The 	Board hereby AFFIRMS 	the 	Board agent's 	partial 	dismissal
of 	the unfair practice 	charge 	in Case No. 	S-CO-318.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
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i(	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
July 15, 	1994
David L. 	Carlson
Re: 	NOTICE OF PARTIAL DISMISSAL
David L. 	Carlson v. Davis Teachers Association. 	CTA/NEA
Unfair Practice Charge No. 	S-CO-318
Dear Mr. Carlson:
I indicated to you, 	in my attached letter dated June 15, 	1994,
that certain allegations contained in the charge did not state a
prima facie case. 	You were advised that, 	if there were any
factual 	inaccuracies or additional facts which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended these
allegations to state a prima facie case or withdrew them prior to
June 27, 	1994, 	the allegations would be dismissed. 	Your
subsequent requests for additional time in which to respond were
granted, 	and a First Amended Charge was 	filed by certified mail
on July 12, 	1994.1
The First Amended Charge consists of a six-page response to my
June 15 letter, 	which reargues the facts alleged in the original
charge. 	Though not specified therein, 	it is assumed that all
facts originally alleged in the charge are incorporated in the
First Amended Charge.
Denial of Religious Objector Status
You first dispute that this allegation should be held untimely,
arguing that the Respondent's record of communications in this
area has been too unreliable for you to be held accountable for
knowing when their decision to deny you your religious objector
status was final. 	You argue that the six months statute of
limitations should toll only from the point in time 	(October 29,
1993) 	when agency fees were first withheld from your paycheck,
and not from the August 9, 	1993 letter informing you that
religious objector status had been denied.
It is true that you sent a letter to Charging Party on September
15, 	1993 seeking to reverse the decision communicated by the
August 9 	letter. 	The Respondent replied to that letter on
October 3, 	1993, 	however, 	and reiterated the decision to deny
1The amendment was received on July 13, 	1994.

Partial Dismissal
S-CO-318
July 15, 	1994
Page 2
your request 	for religious objector status. 	Your original 	charge
refers to the Respondent's October 3 letter as its 	"final
response." 	In addition, 	the District sent you a letter on or
about October 5, 	1993 which notified you that the agency fee
deduction would commence with your next paycheck.
Thus, 	you had knowledge of the conduct giving rise to this
allegation in your charge as early as August 9, 	1993, 	which was
then reaffirmed by both the Respondent and your employer in early
October 1993. 	Each of these dates falls outside the six months
period preceding the filing of your charge, 	and this allegation
must 	therefore be dismissed as untimely. 	(Regents of the
University of California 	(1993) 	PERB Decision No. 	1002-H;
Fairfield-Suisun Unified School District 	(1985) 	PERB Decision No.
547; 	Healdsburg Union High School District 	(1984) 	PERB Decision
No. 467.)
My June 	15 	letter also indicated that 	this allegation was subject
to dismissal because it does not allege that the Respondent's
requirements 	for obtaining religious objector status were greater
than provided for by statute. 	Your response acknowledges that
you have not alleged otherwise, 	and does not allege any
additional 	information which would constitute prima 	facie
evidence of a violation of the statute.
Lump Sum Payment Requirement
Your charge alleges that Respondent's requirement that religious
objectors make a lump sum, 	annual payment of an amount equivalent
to dues, 	rather than having an option of monthly payroll
deductions, 	constituted unlawful interference with employees'
protected right 	to not participate in an employee organization.
My June 15 letter indicates agreement with the basic theory, 	but
finds the evidence presented, 	including that available from
PERB's official files, 	does not support the claim that such a
requirement was 	in effect during the six months period preceding
the filing of the charge.
Your response to this point is in two parts: 	The Respondent did
not 	communicate its change in policy to you until after the
filing of the instant charge, 	and that the change in policy does
not remedy the defect. 	This response is unpersuasive on both
points.
The burden is on a charging party to allege facts which both
establish a prima facie violation and the timeliness of the
charge. 	(See, 	e.g., 	San Francisco Unified School District 	(1985)
PERB Decision Nos. 	501 and 502.) 	In the instant case, 	the July
12 amendment 	fails to allege facts which would show that
Respondent maintained a policy arguably violative of employees'
i I

Partial Dismissal
S-CO-318
July 15, 	1994
Page 3
rights in this respect after July 1, 	1993, 	and this allegation
must also be dismissed as untimely.
Rights of Religious Objectors
Your response in this area asserts that PERB has 	"read Hudson too
narrowly." 	The response does not allege any facts not already
considered in the analysis set forth in my June 15 letter, 	and
this allegation must be dismissed for the reasons set forth in my
earlier letter.
Duty of 	Fair Representation
Your response cites as missing from my June 15 letter any mention
of how you have 	"documented 	[Respondent's] 	inability, 	or
unwillingness, 	to represent 	[you] 	fairly either as a bilingually
certificated teacher or as a religious 	objector." 	You then
indicate that 	"the failure to represent 	fairly is the umbrella
under which the other allegations fall."
Your original 	charge includes allegations 	relating to negotiated
salary increases 	in 1990-91 which you believe reflect a lack of
understanding on Respondent's part of the value of bilingual
teachers, 	and also relates subsequent efforts on your part in
1991 to win approval of special compensation increases 	for
Spanish Immersion teachers in your district. 	Your charge also
includes allegations concerning Respondent's effort, 	in the fall
of 1993, 	to exclude non members from a Site Liaison Committee at
your school, 	but also relates that you were informed that a new
committee would be elected without the restrictions.
The right to fair representation is guaranteed by EERA section
3544.9 	and a breach of the duty thereby violates 	section
3543.6(b). 	The duty of fair representation imposed on the
exclusive representative extends to grievance handling. 	(Fremont
Teachers Association (King) 	(1980) 	PERB Decision No. 125; United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.)
In order to state a prima facie violation of this section of
EERA, 	Charging Party must show that the Association's conduct was
arbitrary, 	discriminatory or in bad faith. 	In United Teachers
of Los Angeles 	(Collins). 	the Public Employment Relations Board
stated:
Absent bad faith, discrimination, or
arbitrary conduct, 	mere negligence or poor
judgment in handling a grievance does not
constitute a breach of the union's duty.
[Citations.]
A union may exercise its discretion to
determine how far to pursue a grievance in
( CI 	(

f.
Partial Dismissal
S-CO-318
July 15, 	1994
Page 4
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or
process a grievance in a perfunctory fashion.
A union is also not required to process an
employee's grievance if the chances for
success are minimal.
In order to state a prima facie case of arbitrary conduct
violating the duty of fair representation, 	a Charging Party:
". 	. 	. must at a minimum include an assertion
of sufficient facts 	from which it becomes
apparent how or in what manner the exclusive
representative's action or inaction was
without a rational basis or devoid of honest
judgment. 	(Emphasis added.)" 	(Reed District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 332, p. 9, 	citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 124.)
Your charge, 	as written, 	does not allege conduct which states a
prima facie violation of the duty of fair representation. 	The
individual allegations discussed above, 	and in my June 15 letter,
do not constitute evidence of a such a violation.
Summary
Therefore, 	I am dismissing those allegations which fail to state
a prima facie case for the reasons set forth above as well as the
facts and reasons contained in my June 15, 	1994 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of certain allegations
contained in the charge by filing an appeal 	to the Board itself
within twenty 	(20) 	calendar days 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
-
! (

Partial Dismissal
S-CO-318
July 15, 	1994
Page 5
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.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Les Chisholm
Regional Director
Attachment
cc: 	A. Eugene Huguenin, Jr.

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 15, 	1994
David L. 	Carlson
Re: 	David L. 	Carlson v. Davis Teachers Association. 	CTA/NEA
Unfair Practice Charge No. 	S-CO-318
PARTIAL WARNING LETTER
Dear Mr. Carlson:
On April 29, 	1994 David L. 	Carlson, 	a teacher in the Davis Joint
Unified School District 	(District) 	filed the above-referenced
unfair practice charge with the Public Employment Relations Board
(PERB or Board). 	Mr. 	Carlson alleges that the Davis Teachers
Association, 	CTA/NEA 	(Association) 	has violated his rights under
the Educational Employment Relations Act 	(EERA) 	at Government
Code sections 3543.6 (b) and 3546.3.
Investigation of this charge has revealed the following pertinent
information. 	Mr. 	Carlson has been a school teacher in the
District for almost six years. 	He is a member of the bargaining
unit 	exclusively represented by the Association but 	is not a
member of the Association. 	An agency fee provision was
negotiated by the Association and the District in 1992 and PERB
conducted an organizational 	security election in October 1992.
In that election the agency fee arrangement was approved by the
voters and subsequently went into effect. 	Mr. 	Carlson requested
and was granted religious 	objector status by the Association in
January 1993. 	Mr. 	Carlson was informed at that time that he
would be 	required to pay the equivalent 	of the full Association
dues to a selected number of charities with all monies due and
payable by February 15, 	1993.1 Mr. 	Carlson requested the
1in addition, 	the information from the Association stated
that to obtain a religious exemption, 	one must provide to the
Association a letter of proof that one is a member of a religious
body whose teachings oppose payment of dues or agency fees to an
employee organization.

C
Partial 	Warning 	Letter
S-CO-318
June 15, 	1994
Page 2
Association provide him with a Hudson2 notification so 	that 	he
might 	reduce 	the amount 	of money he was 	going to pay to 	the
charity accordingly. 	The Association did not 	reply to Mr.
Carlson substantively until 	a letter dated August 	9, 	1993 	which
indicated 	that 	the Association had waived his 	obligation 	for 	fees
for the 	school year 1992-93, 	revoked his 	religious 	objector
status, 	and designated him as 	a fee payer 	for the 	school 	year
1993-94.
Mr. 	Carlson wrote the Association on September 15, 	1993
indicating 	that 	he 	should still be granted religious 	objector
status 	and 	that 	he 	should not be 	listed as 	an agency fee payer.
The Association 	responded on October 3, 	1993 	indicating 	that Mr.
Carlson 	had 	failed 	to comply with Article 	4.3.6 	of 	the 	collective
bargaining 	agreement 	between the District 	and 	the Association.3
The 	letter 	concluded 	that 	since he 	had not 	satisfied 	this
requirement 	he 	would be 	classified as 	a 	service 	fee payer and
receive 	the 	appropriate Hudson notice 	informing him of 	the 	steps
that 	he must 	take 	to request 	the 	rebate 	of 	the 	fees not used for
representation purposes.
2Chicago Teachers Union. 	Local No. 	1 v. 	Hudson 	(1986) 	475
U.S. 	292. 	In this decision, 	the U.S. 	Supreme Court established
three procedural 	safeguards 	to ensure 	that agency 	fee 	collection
minimizes 	infringement 	on nonunion members' 	First Amendment
Rights. 	First, 	the procedure must avoid the risk that the fees
will 	be 	used 	to 	finance 	ideological 	activities 	unrelated 	to
collective bargaining. 	Second, 	the plan must provide 	fee payers
with adequate 	information about the union's expenditures. 	Third,
the 	scheme must 	provide 	a 	reasonably prompt 	arbitration 	forum
where nonmembers 	can object 	to 	the amount 	charged.
3Section 	4.3.6 	of 	the 	collective bargaining agreement
states:
[A]ny 	certificated employee who enunciates 	in a
credible way religious 	tenets 	or teachings which
include 	objections 	to 	joining 	or 	financially 	supporting
employee 	organizations which qualify him or her as 	a
religious 	objector shall pay an amount 	equal 	to the
service 	fee 	to one of 	the 	three 	following non-
religious, 	non-labor organization charitable funds:
4.3.6.1 	American 	Heart 	Association
4.3.6.2 	American 	Cancer 	Society
4.3.6.3 	Alzheimer 	Society

Partial Warning Letter
S-CO-318
June 15, 	1994
Page 3
On October 5, 	1993, 	Mr. 	Carlson was notified by the District that
it would begin deducting the Association's agency fee on October
29, 	1993. 	The District also indicated that he could submit
direct and full payment to the Association by October 15, 	1993
and thus 	obviate 	the need for monthly withholding from his
paycheck. 	On October 29, 	1993 	the District commenced withholding
agency fees from Mr. 	Carlson's paycheck.
Mr. 	Carlson received a Hudson notification for the 1993-94 school
year from the Association on May 20, 	1994. 	On May 31, 	1994, 	the
Association refunded the agency fees 	collected from Mr. 	Carlson
for September 1993 	- April 1994 with 10% interest.
Mr. 	Carlson's Position
Mr. 	Carlson argues that the Association has violated the statute
by revoking his status as a religious objector. 	He believes that
the Association's publishing of requirements 	for a religious
objector status 	that were more stringent than those contained in
the contract 	constitutes 	intimidation of non-union members and a
violation of the contract. 	For example, 	an Association
representative indicated that 	religious objector status would not
be granted without a signature of a pastor/leader of an organized
religious body. 	He also asserts that religious objectors should
be allowed the same payment process as agency fee payers, 	that
is, 	allowing ten monthly payments rather than requiring religious
objectors to pay the equivalent of the full union dues 	in a
single lump sum payment. 	In addition he believes that religious
objectors have the right 	to receive a Hudson notification and pay
only the equivalent of fees used for representational purposes.
Generally Mr. 	Carlson also believes that agency fees should be
found to be unconstitutional.
Discussion
This charge boils down to four allegations: 	(1) 	Mr. 	Carlson was
illegally denied religious objector status by the Association in
August 1993; 	(2) 	the Association's practice of requiring
religious objectors to pay the entire amount equivalent to union
dues 	in one lump sum payment interfered with employees' 	rights to
not participate in the Association; 	(3) 	the Association illegally
denied religious 	objectors 	the right to receive a Hudson notice
and have their fees reduced to only those costs chargeable to
representation purposes; 	and 	(4) 	agency fees were collected from
Mr. 	Carlson prior to his receipt of a Hudson notification. 	This
letter addresses only the first three allegations.

C
Partial Warning Letter
S-CO-318
June 15, 1994
Page 4
Denial of Religious Objector Status
Mr. 	Carlson's loss of religious objector status took place
outside 	the statutory six month limitations period.4 The charge
was filed on April 29, 	1994 and would encompass any alleged
Association activities which occurred after October 29, 	1993.
Mr. 	Carlson was notified by the Association that he would not be
granted religious objector status or, 	in the alternative, 	that
his 	religious objector status had been withdrawn by letter dated
August 9, 	1993. 	This conduct is outside the statutory period and
should be dismissed as untimely.
However, 	even if the claim was timely, 	it appears that it does
not state a prima facie violation of the EERA. 	Government Code
section 3546.3 states:
Notwithstanding subdivision 	(i) 	of Section
3540.1, 	Section 3546, 	or any other provision
of this chapter, 	any employee who is a member
of a religious body whose traditional tenets
or teachings include objections to joining or
financially supportin
-------g employee 	organizations
shall not be required to join, 	maintain
membership in, 	or financially support any
employee organization as a condition of
employment; 	except that such employee may be
required, 	in lieu of a service fee, 	to pay
sums equal to such service fee either to a
nonreligious, nonlabor organization,,
charitable 	fund exempt from taxation under
Section 501(c) (3) of Title 26 of the Internal
Revenue Code, 	chosen by such employee from a
list of at least three such funds, 	designated
in the organizational security arrangement,
or if the arrangement fails to designate such
funds, 	then to any such fund chosen by the
employee. 	Either the employee organization
or the public school employer may require
that proof of such payments be made on an
annual basis to the public school employer as
a condition of 	continued exemption from the
requirement of financial support to the
recognized employee organization. 	If such
4Government Code section 3541.5(a)(1) 	prohibits PERB from
issuing a complaint 	"in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge."

C
Partial 	Warning 	Letter
S-CO-318
June 15, 	1994
Page 5
employee 	who holds 	conscientious 	objections
pursuant 	to this 	section requests 	the
employee 	organization 	to use 	the 	grievance
procedure 	or arbitration procedure 	on 	the
employee's behalf, 	the employee organization
is 	authorized 	to 	charge 	the 	employee 	for 	the
reasonable 	cost 	of using 	such procedure.
[Emphasis 	added.]
Based on 	the 	documents 	provided with the 	charge 	it 	appears 	that
the Association 	requested 	that Mr. 	Carlson provide a written
document 	indicating 	that 	his 	personal 	beliefs 	qualify him under
the 	religious 	exemption in 4.3.6 	of 	the 	contract. 	Mr. 	Carlson
responded 	that 	he 	had not 	provided his 	beliefs 	in written 	form
but 	that 	he 	had 	requested 	conscientious 	objector 	status 	based 	on
lengthy 	telephone 	conversations 	he 	had with 	the Association
president 	prior 	to 	the vote 	on organizational 	security.5 He
indicated 	that 	he 	repudiated not 	only 	the Association's 	judgment
in 	the matter but 	also 	the process used and that 	if 	there were
questions 	concerning his beliefs, 	he 	should be 	called to speak to
the Association's 	Representative Council.
It 	does not appear that 	the Association's 	requirements 	for
obtaining 	religious 	objector 	status 	are 	greater 	than 	those
provided 	for by the 	statute. 	Accordingly, 	the Association's
refusal 	to grant Mr. 	Carlson religious 	objector status does not
violate 	the 	provisions 	of 	the 	EERA and 	should be 	dismissed.6
Lump 	Sum 	Payment 	Requirement
The allegation 	that 	a requirement 	for religious 	objectors 	to pay
their 	fee 	in one 	lump 	sum as 	opposed to monthly payroll
5Mr. 	Carlson's letter of December 30, 	1992 to the
Association 	indicated that 	he 	is 	"not 	a member of 	any organized,
theistic 	society."
'Mr.	"Mr . 	Carlson's 	allegations 	focus not 	on the 	statutory
language 	but 	rather 	on the assertion that 	the Association applied
higher standards 	than the 	contract 	language allowed. 	PERB,
however, 	does not have
the 	authority 	to 	enforce agreements between
the parties, 	and shall not 	issue a complaint
on any 	charge 	based 	on alleged violation of
any 	agreement 	that 	would not 	also 	constitute
an unfair practice under 	[EERA] . 	(Government
Code 	section 	3541.5(b).)
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deductions may, 	in theory, 	constitute an interference violation
under the EERA. 	In Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89, 	the Board found that a section 3543.5(a)
violation existed where the charging party establishes that the
employer's conduct tends to or does result 	in some harm to
employee rights granted under the EERA. 	This 	test has been
applied to actions of an employee organization. 	(Service
-Employees International Union. 	Loca 	99 	(Kimmett) 	(1979) 	PERB
Decisio- 	-------------l
n No. 	106.) 	An Association rule which requires religious
objectors to pay the entire year's agency fee in a lump sum to a
charitable organization is arguably more onerous 	than the
procedure whereby agency fees are deducted for payment 	to the
Association on a monthly payroll basis.
An individual 	employee has an EERA right 	to seek to become a
religious 	or conscientious objector under Government Code
sections 3543 	(the right 	"to refuse to join or participate in the
activities of employee organizations") 	and 3546.3. 	The lump sum
payment 	rule would tend to discourage employees 	from seeking
and/or remaining religious objectors because of the financial
burden it imposes.
Mr. 	Carlson submitted a document with his charge which the
Association circulated to unit members 	in late 1992. 	This
document quotes 	section 4.3.7 	of 	the agreement between the
Association and the District which reads:
A certificated employee paying an amount equal 	to the
service fee to one of the organizations listed above
[three charities] 	shall submit proof of such payments
each year to the Association. 	If such proof is not
submitted in a timely manner, 	then upon receipt of
notice and proof from the Association, 	the District
shall 	implement the provisions of 4.3.3 above 	[agency
fee deduction].
This 	language 	is 	reasonably read to imply a requirement that the
payment must be made in one lump sum. 	Mr. 	Carlson's February 12,
1993 	letter to the Association clearly reflects 	such a reading on
his part.
In order to find a violation, 	however, 	the charge must allege
that this rule was in effect during the six months' 	period
preceding the filing of 	the charge. 	A review of the current
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Partial Warning Letter
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June 15, 	1994
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agreement7 between the Association and District reveals that it
contains a revised section 4.3.7, 	reading as follows:
A unit member authorized by the Association to pay the
service fee to one of the organizations listed above
[three charities] 	shall make payment in one of the
following ways:
1. 	Submit proof to the Association of a lump sum
payment to one of the organizations listed
above on or before October 15 of each year.
2. 	Submit a written request 	for monthly payroll
deduction of a full service fee, 	which shall
be irrevocable for the current school year.
Such request shall also contain a designation
of one of the organizations listed above who
will receive the service fee.
If a unit member does not submit proof of a lump sum
payment or a request 	for payroll deduction by October
15 of each year, 	the District shall withhold the
service fee 	from the unit member's 	salary and submit
such fee to the Association as provided in 4.4 below.
It thus appears 	that under the current agreement religious
objectors have a monthly withholding option, 	and that this new
policy has been in effect 	for more than six months preceding the
filing of the charge. 	The alleged violation would have occurred
prior to implementation of the new agreement, 	outside the six
months statute of limitations, 	and must be dismissed.
Rights of Religious Objectors
The allegation that the union failed to provide Hudson notices to
and an opportunity to pay a reduced fee to conscientious or
religious objectors must also be dismissed. 	This issue was
presented to the Board in Kings Canyon Educational Association
(1992) 	PERB Decision No. 	958, 	and the Board ruled that such a
notice and reduction were not required. 	This finding was based
upon the fact that protections such as Hudson notification and
reduction of service fees are afforded agency fee payers as a
7The agreement, 	though not signed until February 1 and 2,
1994, 	shows an effective date of July 1, 	1993. 	Association
representatives 	indicate that the agreement was ratified in June
1993, 	and, 	under section 1.4 of the agreement, 	its provisions
take effect upon ratification, 	not upon signature.
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June 15, 	1994
Page 	8
method 	to 	avoid 	compulsory 	subsidization 	of 	non-chargeable
activities 	of 	a labor organization. 	In Cumero v. 	Public
Employment 	Relations Board 	(1989) 	49 	Cal.3d 575 	the 	California
Supreme 	Court 	stated:
The procedures prescribed 	in 	[Hudson! 	for protecting
non-members' 	constitutional 	rights 	against a union's
improper uses 	of 	their agency 	fee 	are 	likewise
sufficient 	and appropriate 	for protection of 	non-member
employees' 	statutory rights 	to prevent 	imprope-- -----r use 	of
- -	their 	service 	fees 	collected under 	an EERA
organizational 	security arrangement. 	[Emphasis added.]
If 	an employee 	has 	been designated as 	a 	conscientious 	or
religious 	objector, 	his 	or her 	fees 	are paid to a 	charitable
organization and are never used by the union. 	Accordingly, 	such
objectors 	are 	not 	granted 	the 	rights 	of 	a Hudson notice 	or 	the
ability 	to pay a 	reduced amount 	to a 	charity.
Conclusion
For these reasons the allegations that 	(1) 	Mr. 	Carlson was
illegally 	denied 	religious 	objector 	status 	by 	the Association 	in
August 	1993; 	(2) 	the Association's practice of requiring
religious 	objectors 	to pay 	the 	entire amount 	equivalent 	to union
dues 	in one 	lump sum payment 	interfered with employees' 	rights 	to
not participate 	in the Association; 	and 	(3) 	the Association
illegally denied religious 	objectors 	the 	right 	to 	receive 	a
Hudson notice 	and have 	their 	fees 	reduced 	to only 	those 	costs
chargeable to representation purposes, 	as presently written, 	do
not 	state a prima 	facie 	case. 	If 	there are any factual
inaccuracies 	in this 	letter or additional 	facts 	which would
correct 	the 	deficiencies 	explained above, 	please amend the
charge. 	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,
and 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 	27.
1994. 	I 	shall 	dismiss the above-described allegations 	from your
charge. 	If you have any questions, 	please call me at 	(916) 	322-
3198, ext. 359.
Sincerely
Les 	Chisholm
Regional 	Director
' (