Sweetwater Union High School District (PERB 1417E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE
R.
GERBER, JR.,
Charging Party,
V.
SWEETWATER UNION HIGH SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-4209-E
PERB Decision No. 	1417
January
	26,
	2001
Appearance: George R. Gerber, Jr., on his own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by George R. Gerber, Jr. (Gerber) to a Board agent's dismissal
(attached)
of
his unfair practice charge. The charge alleged that the Sweetwater Union High
School District violated the Educational Employment Relations Act (EERA)1 when it deducted
agency fees from Gerber's paycheck on behalf
of
the California School Employees Association
without Gerber's written authorization.
After reviewing the entire record, the Board hereby affirms the dismissal.
1 BERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. LA-CE-4209-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

STATE OF
CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103 l 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
i
>-",.~
~/I"
~,.~;-(oq..~'
October 11, 2000
George
R.
Gerber, Jr.
176 Kearney Street
Chula Vista, CA 91910
Re: 	George R. Gerber, Jr.
v.
Sweetwater Union High School District
Unfair Practice Charge No. LA-CE-4209-E
DISMISSAL LETTER
Dear Mr. Gerber:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2000. Your charge alleges that the Sweetwater Union
High School District violated the Educational Employment Relations Act (EERA) 1 when it
deducted agency fees from your paycheck on behalf
of
the California School Employees
Association (CSEA) without your written authorization.
I indicated in the attached letter dated August 29, 2000, that the above-referenced 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, the charge should
be amended. You were further advised that unless the charge was amended to state a prima
facie case or was withdrawn prior to September 12, 2000, the charge would be dismissed. You
requested and were granted an extension
of
time to file an amended charge. An amended
unfair practice charge was timely filed on September 15, 2000.
The amended charge alleges that Article 3, the Organizational Security provision
of
the
collective bargaining agreement (CBA) in effect between CSEA and the District, "is null and
void due to its vague and ambiguous wording." Thus, the charge asserts that the District had
no lawful authority under the CBA to deduct agency fees from your paycheck.
The charge reviews several sections of Article 3 and discusses the basis for the assertion that
the organizational security provision is invalid. The charge alleges that sections 3.2, 3.3 and
3.9 contain similar language which provides, in essence, that nonmember employees must pay
a fee "which is equal to CSEA's annual dues." The charge alleges that these provisions are
invalid because PERB regulatiop.s permit agency fee payors who object to the payment of a
service fee which is equal to the amount union dues, to pay a reduced service fee which covers
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4209-E
October 11, 2000
Page 2
only representation activities. The charge alleges that these contract provisions are void
because they do not reference the PERB regulations or clearly specify that agency fee objectors
may pay a reduced service fee.
Under EERA, public school employees have a right to refrain from participating in the
activities
of
the union. 2 Thus, an employee has no obligation to
join
the union as a condition
of
employment. However, EERA section 3546 permits an exclusive representative union and a
public school employer to enter into an agreement to allow the union to collect a "fair share
fee"
or
an "agency fee" from nonmember employees, requiring them to pay their "fair share"
of
the union's cost in representing all bargaining unit members before the employer.
EERA permits unions to charge agency fee payors an amount equal to union dues.3 Since
EERA was enacted, the courts have held that employees cannot be compelled to pay for
political or nonrepresentational activities
of
a union. (Abood v. Detroit Board
of
Education
431 U.S. 209 (1977).) Thus, nonmembers have the option to pay the full dues amount
or
a
reduced service fee which does not include nonrepresentational expenditures. The courts have
also determined that agency fee payors are entitled to sufficient information to enable them to
challenge the union's calculation
of
the amount
of
the reduced service fee. 	(Chicago Teachers
Union v. Hudson 474 U.S. 292 (1986).)
PERB regulations are consistent with these requirements. And, as you state in the amended
charge, exclusive representative unions are bound by both case law and PERB regulations
which set forth these requirements. There is no requirement, however, that these procedural
requirements be included in an organizational security agreement negotiated between a union
and a school district. The absence
of
these requirements in negotiated agreements does not
relieve a union
of
its obligation to provide bargaining unit members with proper notice to pay a
reduced service fee or challenge the amount
of
the service fee. 4
Accordingly, under EERA, a union may lawfully charge agency fee payors an amount equal to
union dues. The union has an obligation, however, to provide agency fee payors with notice
of
their right to pay a reduced service fee and
of
their right to challenge the amount
of
the reduced
service fee set by the union. Thus, the language in the organization security provision which
specifies that the service fee amount is equal to union dues is not inaccurate and, therefore, the
provision is not invalid under EERA.
The amended charge also alleges that sections 3 .4 and 3 .10 provide that written authorization
is required before a school district can deduct agency fees on behalf
of
the union from
nonmember paychecks.
2 EERA section 3543.
3 EERA section 3540. l(i)(2)
4 In a separate charge against CSEA, you allege the union failed to provide you with
notice of your rights as an agency fee payor prior to taking the agency fee deduction.

LA-CE-4209-E
October 11, 2000
Page 3
As discussed in the attached letter, the Board has previously determined that written
authorization is not required before an employer may withhold agency fee deductions from
nonmember paychecks. (King City High School District (Cumero) (1982) PERB Decision
No. 197; San Jose Unified School District (1984) PERB Decision No. 463.) Although you
may argue that the language
of
Article 3 requires such written authorization, a school district
does not violate EERA by taking agency fee deductions from nonmember paychecks.
The charge also alleges that both CSEA and the District violated section 3.5 which provides
that, "CSEA agrees to furnish any information needed by the District to fulfill the provisions
of
this article." The charge states that had the parties complied with this provision, the District
would have been able to provide you with the documentation you requested concerning your
rights as an agency fee payor.
There is no evidence that the District requested information from CSEA. Thus, CSEA did not
violate its obligation to provide requested information. Furthermore, as we have previously
discussed, the District has no independent affirmative duty to ensure that CSEA has properly
complied with its obligation to provide you with notice
of
your rights as an agency fee payor.
As the Board stated in San Ramon Valley Unified School District (1989) PERB Decision
No.751:
A public school employer simply does not have the authority or
resources to review union procedures and determine
if
they are
statutorily or constitutionally adequate.
The "arm's length" relationship required by collective bargaining
recognizes that the employer and the union have conflicting
interests. Those conflicting interests obviously render
unworkable any scheme where the employer must police the
union's actions, lest it be held liable for them. Moreover, since
the exaction
of
agency fees is fundamentally a matter between the
exclusive representative and bargaining unit members, the
creation
of
a duty [requiring the employer to ensure the union
provided proper notice] would conflict with the employer's
statutory duty to refrain from interfering in the administration
of
the union.
Accordingly, the District did not violate EERA when it failed to ensure that CSEA had
provided you with the required notice prior to taking agency fee deductions from your
paycheck.
Finally, the amended charge alleges that CSEA failed to comply with section 3. 7 which
provides that CSEA shall indemnify the District for any claims or lawsuits arising out of the
organizational security provision. The charge alleges that after the District initially agreed to

LA-CE-4209-E
October 11, 2000
Page 4
cease taking agency fee deductions from your paycheck, CSEA wrote
to
the District and
threatened
to
take action against the District
if
it did not comply with the organizational
security provision and withhold agency fees from your paycheck. The charge contends that by
threatening the District with legal action, CSEA's conduct was contrary to section 3.7 which
requires CSEA to indemnify the District from legal action. Thus, the charge alleges that this
provision is void because it was not properly applied.
First, this allegation finds fault with CSEA and the present charge has been filed against the
District. CSEA cannot be found liable for any alleged unlawful conduct under this charge.
Secondly, the charge fails to demonstrate that section 3.7 is invalid on its face or that CSEA
breached its duty under the provision. No legal action was taken against the District and
CSEA did not fail to indemnify the District.
In summary, an exclusive representative union has the responsibility to provide nonmember
employees with sufficient information concerning their rights as an agency fee payor. Public
school employers have no duty under EERA to ensure that unions meet their obligation to
provide such notice.
Furthermore, an exclusive representative union and a public school employer are not required
to place all procedural requirements in an organizational security provision. The fact that these
requirements are not included in a collective bargaining agreement does not invalidate the
agreement under EERA. Nor does the absence
of
such language in an agreement relieve a
union
of
its obligation under the law to meet its notice requirements.
Based on the above discussion, the charge fails to demonstrate that the District violated EERA
when, at the request
of
CSEA, it withheld agency fees from your paycheck. 5 Therefore, the
charge is dismissed.
Right to Appeal
Pursuant to PERB Regulations 6, you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
5 By law, PERB's jurisdiction is limited to the determination of unfair labor practice
claims arising under EERA. PERB makes no determination of the validity of the CBA under
other principles of law.
6 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4209-E
October 11, 2000
Page 5
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. 	(Regulation 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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
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 fiied 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. 	(Regulation 32132.)

LA-CE-4209-E
October
11,
2000
Page 6
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-1<~~..U..,,,;;....J.~~~==+-----
R bin W. Wesley
Regional Attorney
Attachment
cc: Kathleen Dahlen

STATE OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l
031
18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
August 29, 2000
George R. Gerber, Jr.
176 Kearney Street
Chula Vista, CA 	91910
Re: 	George
R.
Gerber, Jr. v. Sweetwater Union High School District
Unfair Practice Charge No. LA-CE-4209-E
WARNING LETTER
Dear Mr. Gerber:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2000. Your charge alleges that the Sweetwater Union
High School District violated the Educational Employment Relations Act (EERA) 1 when it
deducted agency fees from your paycheck on behalf
of
the California School Employees
Association (CSEA) without your written authorization.
The charge makes the following factual allegations. 	George Gerber is employed
by
the
District in the maintenance department. Mr. Gerber is a member
of
the bargaining unit
exclusively represented by CSEA. In 1995, Mr. Gerber wrote to CSEA withdrawing from
union membership. He also instructed the union to cease taking dues or service fees.
On May 31, 2000, Mr. Gerber noticed that the amount
of
$29.75 was deducted from his
paycheck for "CSEA 258." Mr. Gerber immediately contacted Kathleen Dahlen, in the
District's Labor Relations Office. Ms. Dahlen informed Mr. Gerber that CSEA had provided
the District with a list
of
bargaining unit members who had not been paying their agency fees
directly to the union. Mr. Gerber's name was on the list. The District was instructed to begin
deducting agency fees from the listed employees' paychecks. Ms. Dahlen directed Mr. Gerber
to contact to CSEA.
On June 1, 2000, Mr. Gerber spoke with CSEA President Lawrence Gilly. Mr. Gilly told
Mr. Gerber that he did not believe notice
of
the payroll deduction was necessary. Mr. Gilly
stated he would look into the matter and get back to him. Mr. Gilly made no further contact
with Mr. Gerber, even after Mr. Gerber made numerous calls to Mr. Gilly and left several
messages.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4209-E
August 29, 2000
Page 2
On June 6, 2000, Mr. Gerber wrote to the District informing it that the agency fees had been
taken without notice and without his written authorization. He also reminded the District that
he had withdrawn from the union in 1995.
Initially, the District agreed with Mr. Gerber and indicated it would cease the agency fee
deduction. But on June 13, 2000, the District received a letter from CSEA which stated that
the District would be in violation
of
the parties' collective bargaining agreement (CBA)
"if
dues are not deducted from Mr. Gerber or any other bargaining unit employees." Thereafter,
the District reversed its previous position and directed that agency fees be deducted from
Mr. Gerber's paycheck.
Mr. Gerber met again with Ms. Dahlen on June 19, 2000. 	Mr. Gerber provided her with
various pages
of
the CBA and copies
of
selected California statutes and regulations.
Ms. Dahlen told Mr. Gerber that the District was properly complying with CSEA's request to
deduct agency fees.
Mr. Gerber received his June pay warrant on June 30, 2000. Agency fees were again deducted
on behalf
of
CSEA.
The charge alleges that the District improperly deducted agency fees from Mr. Gerber's May
and June 2000 paychecks ,vith out written authorization. The charge also alleges that
Organizational Security provision, Article 3
of
the CBA, "due to its ambiguous and fraudulent
wording, is null and void" and, thus, is not enforceable.
Based on the facts stated above, the charge fails
to
state a prima facie case.
The Board has previously considered the issue
of
whether a school district may implement a
negotiated organizational security provision and automatically deduct agency fees without
employee authorization. (King City High School District (Cumero) (1982) PERB Decision
No. 197 (King City); San Jose Unified School District (1984) PERB Decision No. 463.) In
King City, the Board held that agency fee payroll deductions may lawfully be made without
authorization from employees who are obligated under a CBA to pay such fees. 	The Board
explained:
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. f(i), a consequence that would be detrimental to
the educational system and to peaceful labor relations in the
districts. 	(p. 25)

LA-CE-4209-E
August 29, 2000
Page 3
This position was affirmed by the California Supreme Court in Cumero
v.
Public Employment
Relations Board (1989) 49 Cal.3d
575,605,262
Cal.Rptr. 46, 778 P.2d 174.
Therefore, the allegation in your charge that the District violated EERA when it deducted
agency fees from your paycheck without your prior written authorization fails to state a prima
facie violation and must be dismissed.
The charge also alleges that the Organizational Security provision in the CBA is "null and
void." 	Charging Party contends that because the language
of
the provision is "ambiguous and
fraudulent," the provision is unenforceable.
As you are aware, agency fees are authorized by EERA section 3546 and PERB Regulations
32990-32997. The charge fails to demonstrate why the Organizational Security provision is
inconsistent with the statutory authority to collect agency fees. 	Furthermore, there are no facts
alleged which demonstrate that the District engaged in bad faith bargaining in entering into the
agreement.
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 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 comer
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 receive an amended charge or withdrawal from you before September 12, 2000, I shall
dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
4-tUa
Robin W.
Wes
Regional
Atto:[y
~
;r