ABC Federation of Teachers, American Federation of Teachers (Murray, et al.) (PERB 1295E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STEVE MURRAY, RICHARD NEVILLE, )
AND ROD ZIOLKOWSKI, )

Charging Parties, ) Case No. LA-CO-747
)
Vv. ) PERB Decision No. 1295
)
ABC FEDERATION OF TEACHERS, AFT ) October 22, 1998
LOCAL 2317, )
)
Respondent. )
)
Appearance; Steve Murray and Rod Ziolkowski, on their own

behalf.
Before Johnson, Amador and Jackson, Members.
DECISION

AMADOR, Member: This case comes before the Public
Employment Relations Board (Board) on appeal’ by Steve Murray
(Murray) and Rod Ziolkowski (Ziolkowski) of a Board agent's
partial dismissal (attached) of their unfair practice charge.
The Board agent dismissed the portion of the charge which alleged
that the ABC Federation of Teachers, AFT Local 2317 violated
section 3543.6(b) of the Educational Employment Relations Act

(EERA)* by failing to properly determine the amount of agency

‘Richard Neville withdrew from the case.

°EERA 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

fees 	to be paid by nonunion members 	for the 	1996-97 	school 	year.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the Board agent's partial
warning and dismissal 	letters, 	and Murray and 	Ziolkowski's
appeal. 	The Board finds 	the partial dismissal 	to be 	free of
prejudicial 	error and adopts 	it 	as 	the decision of 	the Board
itself.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	LA-CO-747 is hereby AFFIRMED.
Members 	Johnson and Jackson 	joined 	in 	this 	Decision.
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
(ii) Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198 	•
July 21, 	1998
Steve Murray
Richard Neville
Rod 	Ziolkowski
Re: 	Steve Murray. 	Richard Neville, 	Rod Ziolkowski v. 	ABC
Federation of Teachers, 	AFT Local 2317
Unfair Practice Charge No. 	LA-CO-747
PARTIAL DISMISSAL LETTER
Dear Charging Parties:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board on August 6, 	1997. 	The charge
alleges that the ABC Federation of Teachers, 	AFT Local 2317
(Federation) 	violated the Educational Employment Relations Act
(EERA), Government Code section 3543.6(b), by failing to properly
determine the amount 	of agency fees to be paid by nonunion
members for the 1996-97 school year. 	This letter addresses only
the 	allegations 	concerning the method of 	identifying the
Federation president's 	chargeable 	and nonchargeable 	activities
and the error included in the budget of the Federation's national
affiliate, 	the American Federation of Teachers 	(AFT).
I indicated in the attached letter, 	dated July 13, 	1998, 	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
July 22, 	1998, 	the allegations would be dismissed.
On July 16, 	1998, 	I spoke with Steve Murray concerning the
attached letter. 	Mr. 	Murray stated that 	the charging parties did
not 	intend to file an amended charge 	in response to the partial

LA-CO-747
Partial Dismissal 	Letter
Page 2
warning letter.1 Therefore, 	I am dismissing those allegations
which fail 	to state a prima facie case based on the 	facts and
reasons contained in the attached July 13, 	1998 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
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.
1Mr. 	Murray indicated that he was 	speaking on behalf of 	all
three charging parties.

LA-CO-747
Partial Dismissal Letter
Page 3
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
Robin 	E. 	Wright
Regional Attorney
Attachment
cc: 	Lawrence Rosenzweig

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 13, 	1998
Steve 	Murray
Richard 	Neville
Rod 	Ziolkowski
Re: 	Steve Murray, 	Richard Neville. 	Rod Ziolkowski v. 	ABC
Federation of 	Teachers, 	AFT Local 	2317
Unfair Practice 	Charge No. 	LA-CO-747
PARTIAL 	WARNING 	LETTER
Dear 	Charging 	Parties:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on August 	6, 	1997. 	The 	charge
alleges 	that 	the ABC Federation of 	Teachers, 	AFT Local 	2317
(Federation) 	violated 	the 	Educational 	Employment 	Relations 	Act
(EERA), 	Government Code section 3543.6(b), 	by failing to properly
determine 	the 	amount 	of 	agency fees 	to be 	paid by nonunion
members 	for the 	1996-97 	school 	year. 	This 	letter addresses 	only
the 	allegations 	concerning 	the 	method of 	identifying 	the
Federation president's 	chargeable 	and 	nonchargeable 	activities
and 	the 	error 	included 	in 	the 	budget 	of 	the 	Federation's 	national
affiliate, 	the American Federation of Teachers 	(AFT).
Investigation of 	the 	charge 	revealed 	the 	following. 	In August
1996, 	the 	Federation notified nonunion members 	that 	it 	had
calculated 	the 	agency fee 	for 	1996-97 	as 	71 percent 	of 	the 	amount
of 	the 	dues paid by union members. 	The 	charging parties
responded 	to 	the 	notice 	by 	filing objections 	to 	the 	agency 	fee
set 	by 	the 	Federation.
The 	matter was 	set 	for 	arbitration. 	An 	arbitrator's 	award was
issued on 	July 	9, 	1997 	in which 	the 	arbitrator denied 	the
objectors' 	challenge. 	The 	arbitrator's 	award states:
1. 	The Agency 	Fee 	calculated by the 	Union at
.7100% 	of 	the 	total 	fee payable by Union
members 	is 	reasonable 	and 	is 	hereby upheld.
The 	calculation 	of 	the 	non-chargeable 	costs
at 	.2900% 	is 	reasonable 	and hereby upheld.

LA-CO-747
Partial Warning Letter
Page 2
2. 	The challenges 	(objections) 	to the fees as
calculated by the Union is denied.
3. 	The challenging 	(objecting) 	teachers have not
established that 	the Union has 	failed to
follow current 	statutory and decisional 	law
in calculating its chargeable and non-
chargeable costs, 	or that the agency fee as
calculated is unfair and unreasonable.
The 	charging parties 	allege that 	the 	Federation failed to
properly determine the amount of the 1996-97 agency fee.
Charging parties 	assert 	that 	the arbitrator failed to 	fully and
fairly address several issues 	in finding that the amount of the
agency fee is reasonable.
First, 	charging parties challenge the method used by the
Federation to determine 	the amount 	of chargeable time allocated
to the president of the Federation. 	The president completes a
weekly 	"Activity Report" 	by noting the number of hours 	she 	spends
engaged in chargeable 	and nonchargeable activities. 	The
chargeable percentage of 	the president's 	compensation is 	included
in the agency fee calculation. 	Charging parties contend that
this method of 	identifying the president's 	chargeable and
nonchargeable time 	is 	flawed because 	it 	is not objectively
verifiable and cannot be audited. 	Charging parties 	seek an order
requiring the president's 	chargeable 	time 	to be determined by
written public records, 	such as meeting minutes, 	written
communications or phone records.
Second, 	charging parties contend that the method of determining
the chargeable portion of the Federation's two staff members'
compensation is also flawed. 	Charging parties allege that the
staff members' 	chargeable time is determined by the Federation to
be equal to that of the president's chargeable time. 	The two
Federation staff members 	do not 	independently record their
chargeable and nonchargeable activities. 	Absent 	an objectively
verifiable method of 	identifying the amount of time the 	staff
members' 	participate 	in chargeable and nonchargeable activities,
charging parties 	contend that 	they cannot 	determine 	the accuracy
of the agency fee.
Third, 	charging parties allege that 	the budget prepared by AFT,
the Federation's national affiliate, 	may improperly include
nonchargeable expenses in the 	"Publications" 	budget category.
Specifically, 	charging parties note that AFT prepares a budget
which identifies 	chargeable 	and nonchargeable 	expenses 	for 	its
activities within California and a separate budget 	for AFT
activities 	in other states. 	The chargeable expenses 	in the
California budget 	are generally less 	in most 	categories 	than the
(

LA-CO-747
Partial Warning Letter
Page 3
budget prepared for other states. 	However, 	the publications
expenses 	in both AFT budgets, 	which specify expenses 	for eight
separate AFT publications, 	are identical. 	Charging parties
contend that 	it 	is 	reasonable to assume 	that 	some of the
nonchargeable activities 	identified 	in the California budget were
subjects of articles in AFT publications. 	Therefore, 	charging
parties reason, 	the chargeable expenses in AFT's publications
budget 	for California should also be 	lower.
Fourth, 	charging parties allege that the arbitrator failed to
adjust 	the agency fee amount 	after AFT submitted a declaration at
the arbitration hearing which stated that AFT's 	California budget
contained a $55,479 	error in employee expenses. 	AFT reported in
its declaration that 	in apportioning employee salary, 	severance
and vacation pay between chargeable and nonchargeable expenses 	it
erred by including an additional 	$55,479 	in chargeable expenses.
Based on its total expenses of $69,781,123, 	AFT concluded that
the error represented less than one-tenth of one percent, 	and,
therefore, 	the error was insignificant. 	The arbitrator informed
the parties at 	the arbitration hearing that he considered the
error to be 	"de minimis."
Finally, 	charging parties assert that 	the burden of proving the
reasonableness of 	the 	1996-97 agency fee was 	improperly shifted
to the agency fee objectors. 	Charging parties contend that the
Federation bears the burden of proving that 	its agency fee
calculations are appropriate.
PERB Regulation 32994 	requires an agency fee payer objecting to
the amount of an agency fee to exhaust 	the union's agency fee
appeal procedure before filing a charge with PERB. 	Regulation
32994 (a) provides:
If an agency fee payer disagrees with the
exclusive 	representative's 	determination of
the agency fee amount, 	that employee
(hereinafter known as 	an 	"agency fee
objector") 	may file an agency fee objection.
Such agency fee objection shall 	be 	filed with
the exclusive representative. 	An agency fee
objector may file an unfair practice charge
that challenges the amount of the agency fee;
however, 	no complaint shall issue until the
agency fee objector has 	first 	exhausted the
exclusive 	representative's Agency Fee Appeal
Procedure. 	No objector shall be required to
exhaust 	the Agency Fee Appeal 	Procedure where
it is insufficient on its face.
I

LA-CO-747
Partial 	Warning Letter
Page 4
This charge presents a novel 	issue. 	PERB has not previously
considered 	the 	applicable 	standard of 	review in post-arbitration
cases 	involving agency fee objections. 	Where there 	is no case
law directly on point, 	it 	is appropriate to seek guidance 	from
case 	law derived from other arbitral 	settings.
In unfair practice cases, 	PERB has adopted the National Labor
Relations Board's 	(NLRB) 	standard of deferral to an arbitrator's
award. 	(Dry Creek Joint 	Elementary School District 	(1980) 	PERB
Order No. 	Ad-81a; 	San Diego County Office of Education 	(1991)
PERB Decision No. 	880; 	Yuba City Unified School District 	(1995)
PERB Decision No. 	1095.) 	In determining whether to defer to an
arbitrator's award, 	the NLRB's post-arbitration review standard
considers whether: 	(1) 	the arbitration proceedings were fair and
regular; 	(2) 	all parties agreed to be bound; 	(3) 	the decision of
the arbitrator is not 	clearly repugnant to the purposes of the
Act; 	and 	(4) 	the arbitrator considered the unfair labor practice
issue. 	(Spielberg Manufacturing Company 	(1955) 	112 NLRB 1080 	[36
LRRM 1152]; 01in Corporation 	(1984) 	268 NLRB 573 	[115 LRRM
1056] .) 	If these standards are met, 	PERB will defer to the
arbitrator's award and dismiss 	the unfair practice charge.
A slightly modified version of 	this 	standard appears 	appropriate
to review allegations 	concerning agency fee objections where the
agency fee arbitration has 	already concluded. 	From the guidance
provided by the cases noted above, 	PERB will defer to an
arbitrator's award in an agency fee case and refuse 	to 	issue a
complaint where: 	(1) 	the arbitration proceedings were fair and
regular; 	and 	(2) 	the arbitrator's award is not clearly repugnant
to the purposes of the Act.
In applying this standard of review, 	there are no facts alleged
in the charge which demonstrate that 	the arbitral proceedings
were unfair or procedurally defective.
Concerning the repugnancy claim, 	charging parties allege that 	the
burden of establishing the reasonableness of 	the 1996-97 agency
fee was 	improperly shifted to the agency fee objectors. 	In
Railway Clerks v. 	Allen 	(1963) 	373 US 113, 	122 10 L Ed 2d 235,
the U.S. 	Supreme Court held that the burden of proving the
appropriate agency fee amount 	rests with the union. 	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 the burden

LA-CO-747
Partial 	Warning 	Letter
Page 5
of proving such proportion. 	[Id. 	at p. 	122.]
-
The U.S. 	Supreme 	Court 	has 	repeatedly affirmed 	this 	ruling 	in
later 	cases. 	(See Abood v. 	Detroit 	Board of 	Education 	(1977) 	431
US 209, 	239, 	fn. 	40, 	52 L Ed 2d 261, 	97 S Ct 1782 and Chicago
Teachers Union v. 	Hudson 475 US 292, 	306, 	89 L Ed 2d 232, 	106 S
Ct 	1066.) 	Furthermore, 	the 	California Supreme 	Court 	reached the
same 	conclusion 	in 	an 	agency 	fee 	case 	originating with 	PERB.
(Cumero v. 	Public 	Employment 	Relations 	Board 	(1989) 	49 	Cal.3d
575, 	262 Cal.Rptr. 	46.) 	Consistent with this holding, 	PERB
Regulation 	32994(b) 	requires 	an exclusive 	representative 	to
prepare 	and 	administer 	an Agency Fee 	Appeal 	Procedure 	which 	meets
certain criteria. 	PERB Regulation 32994(b)(6) 	specifically
requires 	an exclusive 	representative 	to bear 	the burden of
establishing 	the 	reasonableness 	of 	the 	amount 	of 	the 	agency 	fee.
In dismissing the 	agency 	fee 	objectors' 	challenge 	to 	the 	amount
of 	the 	agency fee 	set 	by the 	Federation, 	the 	arbitrator 	concluded
in his decision that, 	"The 	challenging 	(objecting) 	teachers have
not 	established 	that 	the 	Union has 	failed 	to 	follow 	current
statutory 	and decisional 	law 	in 	calculating 	its 	chargeable 	and
non-chargeable 	costs, 	or 	that 	the 	agency fee 	as 	calculated 	is
unfair 	and unreasonable." 	Based upon 	this 	determination and
charging parties' 	allegations, 	it appears that the arbitrator
improperly shifted 	the 	burden 	of 	proof 	to 	the 	agency 	fee
objectors 	to 	determine 	the 	reasonableness 	of 	the 	Federation's
agency fee. 	Accordingly, 	the 	arbitrator's 	award is 	contrary to
PERB regulations 	and is, 	therefore, 	repugnant 	to the purposes of
the EERA. 	Therefore, 	it 	is not 	appropriate 	to defer to the
arbitrator's 	award.
We 	must 	now consider whether 	the 	charge 	alleges 	sufficient 	facts
to 	demonstrate 	that 	the 	Federation violated EERA when 	it
calculated the 	1996-97 	agency 	fee.
Charging parties 	allege 	that 	the method of 	identifying 	the 	time
the 	Federation president 	spends 	engaged 	in 	chargeable 	and
nonchargeable 	activities 	is 	flawed because 	it 	is 	not 	objectively
verifiable 	and cannot 	be 	audited. 	The president 	completes 	a
weekly 	"Activity Report" 	by noting 	the 	number 	of 	hours 	she 	spends
engaged 	in 	chargeable 	and nonchargeable 	activities. 	The
nonchargeable 	percentage 	of 	the 	president's 	compensation 	is
included 	in 	the 	agency 	fee 	calculation.
While 	noting 	that 	unions 	bear 	the 	burden 	of 	proving 	the
reasonableness 	of 	the 	agency 	fee 	imposed upon nonmembers, 	the
U.S. 	Supreme 	Court 	has 	ruled 	that 	"absolute precision" 	is 	not
required 	in 	the 	calculation 	of 	the 	agency 	fee. 	(Railway 	Clerks
v. 	Allen 	(1963) 	373 US 113, 	122, 	10 L Ed 2d 235, 	83 S Ct 	1158;
Abood v. 	Detroit Board of Education, 	supra, 	431 US 209, 	239, 	fn.

LA-CO-747
Partial 	Warning Letter
Page 6
40, 	52 L Ed 2d 261, 	97 S Ct 1782; 	Chicago Teachers Union v.
Hudson. 	supra. 	475 US 292, 	307, 	fn. 	18, 	89 L Ed 2d 232, 	106 S Ct- -
1066. )
The 	Federation president 	completes 	an 	"Activity Report" 	which
tracks her activities 	each day of the week. 	The activity report
specifies 	the number of hours the president 	engaged in activities
specifically identified as 	chargeable and nonchargeable. 	The
charging parties 	contend that 	the 	time 	spent 	engaged 	in
chargeable 	activities must be verified by written documents 	such
as phone records or meeting minutes. 	However, 	it would no doubt
be 	impossible 	to verify with written documentation every hour
engaged in chargeable activities. 	As the U.S. 	Supreme Court
determined, 	the union is not required to calculate chargeable and
nonchargeable 	activities with 	"absolute precision." 	Accordingly,
this allegation fails to state a prima facie case.
Charging parties 	also allege that 	the arbitrator failed to adjust
the agency fee amount 	after AFT admitted that 	its California
budget 	contained a $55,479 error in employee expenses. 	Based on
total expenses of $69,781,123, 	AFT concluded that the error
represented less that one-tenth of one percent, 	and, 	therefore
the error was 	insignificant.
As discussed above, 	an exclusive representative is not required
to calculate an agency fee with 	"absolute precision." 	The error
in AFT's California budget represents 	less that one-tenth of one
percent of its total expenses. 	The 	insignificant level of this
calculation error does not demonstrate a prima 	facie violation of
the Federation's obligation in setting the amount of 	its agency
fee. 	Therefore, 	this allegation is dismissed.
For these reasons, 	the allegations concerning the method of
identifying the 	Federation president's 	chargeable and
nonchargeable 	activities and the error included in AFT's budget,
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 have the case number written on
the top right hand corner of the charge 	form. 	The amended charge
must be 	served on the 	respondent's representative and the
original proof of service must be 	filed with PERB. 	If 	I do not

LA-CO-747
Partial 	Warning Letter
Page 7
receive an amended charge or withdrawal 	from you before July 22
1998. 	I 	shall dismiss the above-described allegation from your
charge. 	If you have any questions, 	please call me at 	(916) 	322-
3198, ext. 305.
Sincerely,
Robin E. Wright
Regional Attorney