California School Employees Association, Chapter 258 (Gerber) (PERB 1472E)

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STATE OF CALIFORNIA

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GEORGE R. GERBER, JR.,
Charging Party, Case No. LA-CO-845-E

v. PERB Decision No. 1472

December 12, 2001

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 258,

Respondent.

Appearances: George R. Gerber, Jr., on his own behalf; California School Employees
Association by Madalyn J. Frazzini, for California School Employees Association,
Chapter 258.
Before Amador, Baker and Whitehead, Members.
DECISION

AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by George R. Gerber, Jr. (Gerber) to an administrative
law judge's (ALJ) proposed decision (attached). The unfair practice charge alleged that the
California School Employees Association, Chapter 258 (CSEA) violated section 3543.6(b) of

the Educational Employment Relations Act (EERA)' when it deducted agency fees from

Gerber's paycheck without proper notice. The ALJ found a violation.

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:

After reviewing the entire record, the Board hereby affirms the ALJ's proposed
decision and writes to directly respond to Gerber's objection to the remedy and request for fees
and costs.
DISCUSSION
In addition to challenging various aspects of the proposed decision, in which he
prevailed, Gerber protests that he was not awarded sufficient interest by the ALJ. He seeks to
receive interest for a longer period of time, or until he cashes the fee reimbursement check he
received from CSEA. The purpose of an interest award is to make an aggrieved party whole.
The Board finds that the ALJ's proposed order accomplishes this goal and hereby denies
Gerber's request for an increased interest award.
In his exceptions, Gerber also seeks attorney's fees and costs. PERB awards such costs
only after a finding of conduct that is without arguable merit, frivolous, vexatious, dilatory,
pursued in bad faith or otherwise an abuse of process. (Hacienda La Puente Unified School
District (1998) PERB Decision No. 1280 (Hacienda La Puente).) Having discovered its error,
CSEA made an attempt to correct it by issuing Gerber a refund check. The fact that there was
a delay in delivering the check to Gerber does not justify an award of attorney fees or costs
under the standards articulated in Hacienda La Puente. Accordingly, the Board denies this
request.
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
2

ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law, and upon the entire
record in this matter, it is found that the California School Employees Association,
Chapter 258 (CSEA) violated the Educational Employment Relations Act (BERA),
Government Code section 3543.6(b ),
by
collecting agency fees from George R. Gerber, Jr.
(Gerber) before sending him the Hudson notice required by PERB Regulation 32992.2
Pursuant to Government Code section 3541.5(c), it is hereby ORDERED that CSEA
and its representatives shall:
A. 	CEASE AND DESIST FROM:
Collecting agency fees from Gerber before sending him a Hudson notice.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
1.	
Pay Gerber interest at the rate
of
seven percent per annum. CSEA shall
pay eleven weeks' interest on the $29.75 deducted on May 31, 2000, and seven weeks' interest
on the $29.75 deducted on June 30, 2000. CSEA shall also pay interest on the sum
of
these
two amounts
of
interest, for the period from August 17, 2000, until the total is paid.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to classified employees customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent
of
CSEA, indicating that CSEA will comply with the terms
of
this Order. Such posting
2 The Hudson notice is named for the decision in Chicago Teachers Union,
Local No. 1 v. Hudson (1986) 475 U.S. 292, 106 S.Ct. 1066 [121 LRRM 2793], which
established the requirement that such a notice be sent to all agency fee payers. The
requirement is now also embodied in PERB Regulation 32992 (Cal. Code Regs., tit. 8,
sec. 31001 et seq.).
3

shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure the Notice is not reduced in size, altered, defaced or covered with any other
material. 
3.	
Upon issuance
of
a final decision, make written notification
of
the
actions taken to comply with this Order to the San Francisco Regional Director
of
the Public
Employment Relations Board, in accord with the regional director's instructions.
Members Baker and Whitehead joined in this Decision.
4

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CO-845-E, George
R.
Gerber, Jr. v.
California School Employees Association, Chapter 258, in which all parties had the right to
participate, it has been found that the California School Employees Association, Chapter 25 8
(CSEA) violated the Educational Employment Relations Act (BERA), Government Code
section 3543.6(b), by collecting agency fees from George
R.
Gerber, Jr. (Gerber) before
sending him the Hudson notice required
by
PERB Regulation 32992. (The Hudson notice is
named for the decision in Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S.
292, 106 S.Ct. 1066 [121 LRRM 2793], which established the requirement that such a notice
be sent to all agency fee payers. The requirement is now also embodied in PERB Regulation
32992 [Cal. Code Regs., tit. 8, sec. 31001, et seq.].)
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Collecting agency fees from Gerber before sending him a Hudson notice.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
Pay Gerber interest at the rate
of
seven percent per annum. CSEA shall pay eleven
weeks' interest on the $29.75 deducted on May 31, 2000, and seven weeks' interest on the
$29.75 deducted on June 30, 2000. CSEA shall also pay interest on the sum
of
these two
amounts
of
interest, for the period from August 17, 2000, until the total is paid.
Dated:
---------
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 258
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE R. GERBER, JR.,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 258,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-845-E
PROPOSED DECISION
(6/8/2001)
Appearances: 	George R. Gerber, Jr., on his own behalf; Madalyn J. Frazzini, Deputy Chief
Counsel, for California School Employees Association, Chapter 258.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that his union unlawfully caused agency fees to be
deducted from two of his paychecks. The union denies that its conduct was unlawful.
George R. Gerber, Jr. (Gerber) filed an unfair practice charge against the California
School Employees Association, Chapter 258 (CSEA) on July 19, 2000. The Office of the
General Counsel of the Public Employment Relations Board (PERB) issued a complaint on
August 29, 2000, alleging in part:
4. 	On or about May 31 and June 30, 2000, Respondent
[CSEA] caused an agency fee to be deducted from Charging
Party's [Gerber's] paycheck. Respondent took this action without
first providing Charging Party with proper notice as required by
PERB Regulation 32992.[1]
1 PERB regulations are codified at California Code of Regulations, title 8, section
31001 and following.

The complaint further alleged that this conduct
of
CSEA violated Government Code section
3543.6(b)
of
the Educational Employment Relations Act (EERA).2
CSEA filed an answer on September 20, 2000, stating in part:
4.
	In answer to paragraph 4
of
the complaint, CSEA
admits that on or about May
31
and June 30, 2000 an agency fee
was deducted from Charging Party's paycheck and that such
deduction inadvertently occurred prior to receipt by Charging
Party
of
the notice required by PERB Regulation No. 32992 and
Charging Party has received a full refund from Respondent for all
monies inadvertently deducted; that the May and June deductions
were the sole deductions occurring prior to receipt
of
the required
notice by Charging Party, and that Respondent provided the
required notice on or about August 17, 2000. Except as thus
specifically admitted, Respondent denies each and every other
allegation contained in paragraph 4
of
the Complaint.
The answer also denied that CSEA's conduct violated EERA section 3543.6(b) and alleged as
an
affirmative defense that "the May and June deductions which have now been refunded are
de minim us conduct."
PERB held
an
informal settlement conference on October 19, 2000, but the case was
not settled. PERB held a formal hearing on January 10 and 25, 2001. At the beginning
of
the
hearing, a motion by Gerber to amend the complaint was denied. 3 With the receipt
of
the final
post-hearing brief on April 2, 2001, the case was submitted for decision.
FINDINGS OF FACT
Gerber is an employee under EERA and is a classified employee
of
the Sweetwater
Union High School District (District). 	CSEA is an employee organization under EERA and is
Gerber's exclusive representative.
2 is codified at Government Code section 3540 and following.
3 In his motion to amend, Gerber sought to add to the complaint the theory that the
underlying organizational security provision was null and void. Gerber had presented the same
theory in an unfair practice charge that had been dismissed on October 11, 2000. (See
Sweetwater Union High School District (2001) PERB Decision No. 1417.)
2

Since at least 1983, the collective bargaining agreement between CSEA and the District
has included an organizational security provision, providing for maintenance
of
membership,
dues deduction and agency shop. Since 1985, the organizational security provision has
included the following section 3 .10:
In the event that an employee revokes a dues or service fee
authorization or fails to make arrangements with CSEA for the
direct payment
of
service fee, the District shall deduct service
fees until such time as CSEA notifies the District that
arrangements have been made for the payment
of
such fees. 	The
District shall deduct service fees automatically upon notice from
CSEA,
if
an employee does not become a member or sign a
deduction authorization in accordance with Education Code
Section 45168(b ).
Since at least 1990, CSEA's policy has been that the required Hudson notice shall be published
in the April and May issues
of
its newspaper, to be sent to all unit members. 4
In the first part
of
1995, Gerber was a CSEA member. 	On June 30, 1995, however, the
collective bargaining agreement between CSEA and the District expired with no successor
agreement in place, and Gerber opted to suspend his support for CSEA. On September 14,
1995, Gerber sent memos to CSEA and the District revoking "all previous written
authorizations" and asking CSEA and the District to cease the collection
of
dues or service
fees. 	Gerber told CSEA:
Upon the ratification
of
a new contract between CSEA and the
Sweetwater Union High School District, and the resolving
of
other issues between myself and CSEA, I then will be more than
happy to meet with CSEA and see
if
you can convince me to
again pay fees or dues.
4 The Hudson notice is named for the decision in Chicago Teachers Union, Local No. 1
v. Hudson (1986) 475 U.S. 292, 106 S.Ct. 1066 [121 LRRM 2793], which established the
requirement that such a notice be sent to all agency fee payers. The requirement is now also
embodied in PERB Regulation 32992.
3

Gerber told the District that his memo should "remain in effect until further written
authorization is submitted by myself."
It does not appear that CSEA or the District responded directly in writing to Gerber's
September
14
memos. An internal District memo dated October 30, 1995, however, states that
a CSEA representative had indicated that the District could stop the deduction
of
dues for
Gerber and another unit member. 	Gerber testified that the September 14 and October 30
memos evidenced an agreement with CSEA that he would not have to pay any dues or fees
unless and until he authorized payment himself. 5
On March 21, 1996, CSEA and the District finally entered into a new successor
agreement, to be effective through June 30, 1998. This agreement included an organizational
security provision that in tum included the section 3.10 quoted above. Despite this provision,
no dues or fees for Gerber were deducted or paid once the agreement took effect. CSEA had
no explanation for this, but it appears that a CSEA chapter president may have been willing to
"look the other way" with regard to Gerber's fees. 	On May 20, 1999, CSEA and the District
entered into another successor agreement, to be effective through June 30, 2001. This
agreement also included the organization security provision and its section 3 .10, but still no
dues or fees for Gerber were deducted or paid.
CSEA periodically conducts audits
of
bargaining units with agency shop, to determine
whether all unit members are paying dues or fees. 	CSEA completed an audit
of
Gerber's unit
in early 2000, and on April 17, 2000, it sent the District a list
of
employees, including Gerber.
CSEA identified Gerber and the others as non-paying employees and asked the District to "find
5 Under EERA section 3563.2(b), PERB does not have authority to enforce agreements
between parties. Whether Gerber had a valid agreement with CSEA would not appear to be
relevant to the issues in this case, except to the extent that Gerber's belief in such an agreement
may help to explain what happened later.
4

out why." With regard to Gerber, the District responded
by
deducting an agency fee
of
$29.75
from Gerber's
May
2000 paycheck, issued on
May
31, 2000.
Gerber was, as he testified at the hearing, "surprised because I had not been paying dues
or fees since November
of
1995 due to an agreement I had with CSEA." Gerber further
testified in part:
The reason for
my
surprise and confusion was that I had not
given any authorization, I had not been approached
by
either the
District or CSEA about paying, I was not given any advance
warning or any notification that monies would be taken from
my
pay.
In a memo to the District dated June 6, 2000, Gerber stated his position as follows:
On.5-31-00, upon receipt
ofmy
pay warrant for the month
of
May, I noticed the withholding
of
union dues for the amount
of
$29.75. (Please see enclosed copy
of
the pay warrant) I was
much surprised about this withholding due to
my
withdrawing
from the union and the paying
of
monies to them, which was
started in 9-99 [sic] and completed in late 10-99 [sic]. (Please see
enclosed copies
of
letters )[6]
The reason for
my
surprise is that I had no prior notice
of
any
withholdings to be taken from my wages. 	I have never been
approached about any withholdings and I definitely have not
authorized the withholding
of
union dues or any other monies for
the union.
Due to the unexpected income shortfall I experienced, I would
like to correct this error, have this withholding stopped, and the
amount reimbursed to me.
If by
chance this is not a one time error and you have on file
some form
of
authorization for the above mentioned withholdings
or any other document which would cause such action, please
provide me with copies
of
them. As stated before, I have not
given any authorization verbal or written, so
if
you have anything
on file to the contrary, I would like to have it investigated further.
6 Apparently these enclosures were the memos of September 14 and October 30, 1995.
Gerber's references to "9-99" and "l 0-99" were apparently in error.
5

Gerber took his concerns to the District's payroll department, which referred him to the
District's labor relations department, which in tum referred him to CSEA Chapter President
Lawrence Gilly (Gilly).
Gerber met with Gilly. About their conversation, Gerber testified in part:
I then started to explain why I was. out
of
CSEA and how I had an
agreement not to pay dues. I also said that I had not given any
authorization for withholdings and that I had not been given any
notification.
Gerber showed Gilly the memos
of
September 14 and October 30, 1995. Gilly still thought the
agency fee deduction was appropriate, but he promised to check with "higher-ups" at CSEA.
He told Gerber he would try to report back, but he also gave Gerber his number.
Gerber testified that Gilly "did not think notice was needed" for the agency fee
deduction to be valid. It is not apparent, however, that Gerber and Gilly were talking about the
required Hudson notice, as Gilly had no apparent reason at the time to believe that Gerber had
not received the Hudson notice published in the CSEA newspaper. It seems more likely that
Gilly understood that Gerber wanted individualized notification, with a right to refuse to
authorize agency fee deductions altogether, rather than the generalized Hudson notification,
with a right only to object to a portion
of
the fee.
Gilly did in fact check with a CSEA "higher-up," Penelope DiBemardo, who
understood from Gilly that the only issue Gerber was raising was that he (Gerber) had not
authorized the agency fee deduction. She confirmed Gilly's understanding that under the
organizational security provision no such individual authorization was required. 	Gilly did not,
however, report back to Gerber, who called Gilly several times and tried to leave messages.
Gilly testified no messages were actually left.
6

The District, meanwhile, was apparently more sympathetic to Gerber's position. 	On
June
8,
2000, the District sent CSEA a memo, stating in full:
George Gerber, an HVAC Mechanic with the District, exercised
his right to stop deduction
of
his service fees in 1995 when his
bargaining unit was working without a contract. He never signed
an authorization for the deduction to be started again.
The list that you sent to payroll to be reconciled included his
name. A service fee was deducted from his May pay warrant.
Mr. Gerber is insistent that the District may not take a payroll
deduction without his signed authorization.
This is your notification that I have instructed the payroll
department to stop his payroll deduction.
CSEA responded to the District on June 13, 2000, with a memo from CSEA Field Director
John Baird (Baird) asserting that the District would be in violation
of
the organizational
security provision, and section 3 .10 in particular,
if
it did not make the deduction from Gerber's
paycheck. In the memo, Baird specifically asserted that "a signed deduction authorization is
not necessary." At the hearing, Baird testified he assumed at the time that all unit members
(including Gerber) had received the required Hudson notice.
The District promptly changed its position. In an internal memo dated June 13, 2000,
the payroll department was authorized "to deduct dues effective June, 2000, for Mr. Gerber."
A copy
of
the memo was sent to Gerber.
Gerber was undiscouraged. He began calling CSEA headquarters in San Jose. 	He
eventually spoke to CSEA Director
of
Field Operations Marjorie Ott (Ott), who told
him
it
sounded like a "notification deficiency" might have occurred. Ott did not testify at the hearing,
but it appears that she may have been the first CSEA official to realize that Gerber may not
have received the required Hudson notice. Ott promised to talk to the CSEA legal department
7

and report back. On approximately June 29, 2000, Ott did in fact ask CSEA Deputy General
Counsel Madalyn Frazzini (Frazzini) to look into Gerber's situation.
On June 30, 2000, the District again deducted an agency fee
of
$29.
75
from Gerber's
monthly paycheck. Gerber made more calls and on July 3, 2000, ended up talking to Frazzini
(apparently
by
coincidence). Frazzini agreed there might have been a notification deficiency;
she promised to look into it and report back. Frazzini did in fact look into the matter, and she
discovered Gerber would not have received the Hudson notice because he was not on the
CSEA newspaper mailing list.
Frazzini testified that on July 6, 2000, she asked the CSEA accounting department to
cut a refund check for Gerber. A check in the amount
of
$59.50 was actually cut on July 27,
2000, and was actually sent to Gerber by Frazzini on August 17, 2000; Frazzini attributed the
delay to "the press
of
business." Meanwhile, on July 19, 2000, Gerber had filed his unfair
practice charge.
Along with the refund check, Frazzini sent Gerber a letter dated August 17, 2000,
stating in part:
Based upon your request, I have determined that commencing in
May 2000, a payroll deduction for service fees was made from
your paycheck. A deduction for service fees was also made in
June 2000. These deductions occurred prior to your receiving a
notice
of
the basis for the fee as required by law and CSEA
policy. I regret this inadvertent mistake and enclose
reimbursement in the amount
of
$59.50. I understand that this
amount represents full reimbursement to you for the monies
deducted from your check to date.
Frazzini enclosed a copy
of
the Hudson notice for the 2000-2001 school year. 	She indicated
Gerber would be deemed an objector to the non-representational portion
of
the agency fee but
would be expected to begin paying the remainder of the fee directly to CSEA as
of September
2000. At the time of hearing, however, no more fees for Gerber had been paid or deducted.
8

ISSUE
Did CSEA unlawfully cause agency fees to be deducted from Gerber's paychecks?
CONCLUSIONS OF LAW
PERB Regulation 32992 states in full:
(a) Each nonmember who will be required to pay an agency fee
shall annually receive written notice from the exclusive
representative of:
(1) The amount of the agency fee which is to be expressed as a
percentage of the annual dues per member based upon the
chargeable expenditures identified in the notice;
(2) The basis for the calculation of the agency fee; and
(3) A procedure for appealing all or any part of the agency fee.
(b) All such calculations shall be made on the basis of an
independent audit that shall be made available to the nonmember.
(c) Such written notice shall be sent/distributed to the
nonmember either;
(1) At least 30 days prior to collection of the agency fee, after
which the exclusive representative shall place those fees subject
to objection in escrow, pursuant to Section 32995 of these
regulations; or
(2) Concurrent with the initial agency fee collection, provided
however, that all agency fees so noticed shall be held in escrow in
toto until all objectors are identified. Thereafter, only the agency
fees for agency fee objectors shall be held in escrow, pursuant to
Section 32995 of these regulations.
This regulation clearly requires (in part) that no agency fees be collected before a Hudson
notice is sent to the fee payer.
PERB Regulation 32997 states in full:
It shall be an unfair practice for an exclusive representative to
collect agency fees in violation of these regulations.
9

The use
of
mandatory language ("shall") in this regulation would seem to indicate that the
collection
of
agency fees in violation
of
PERB regulations (including PERB Regulation 32992)
is necessarily an unfair practice.
In the present case, CSEA admitted in its answer, and the evidence showed, that agency
fees were deducted from Gerber's paycheck before he was sent a Hudson notice. This would
appear to be a clear violation
of
Regulation 32992 and thus (under Regulation 32997) an unfair
practice.
In its post-hearing brief, however, CSEA argues that there has been no "actionable
violation" for the following reason:
Here, CSEA provided a full refund to Gerber as soon as
practicable after it verified the amount
of
his deduction and the
fact that he did not receive a Hudson notice.
CSEA relies on Los Rios College Federation
of
Teachers, Local 2279, CFT/AFT (1992) PERB
Decision No. 950 (Los Rios). That decision, however, does not entirely support CSEA's
argument. In Los Rios, PERB held in part that the right protected by the Hudson notice could
be vindicated by "immediately returning those monies" wrongfully deducted. In Los Rios,
monies deducted on October 1, 1991, were returned on October 24, 1991, and monies deducted
on November
1,
1991, were returned on or about November 20, 1991. Thus, in each instance,
the monies were returned in about three weeks.
In the present case, in contrast, monies were deducted from Gerber's paychecks on
May
31
and June 30, 2000, and were not returned to Gerber until August 17, 2000 -- some
weeks after the first deduction and almost seven weeks after the second deduction. 	One
could not fairly describe CSEA's conduct as "immediately returning" Gerber's monies within
the meaning of Los Rios. Indeed, CSEA did not return the monies until six weeks after
Frazzini asked the CSEA accounting department to cut a refund check (on July 6, 2000) and
10

until three weeks after the check had actually been cut (on July 27, 2000). I conclude that
CSEA's less than immediate return of Gerber's monies was insufficient to vindicate Gerber's
Hudson rights and to excuse CSEA's failure to comply with PERB Regulation 32992.
CSEA also argues that its failure to provide a Hudson notice was "de minimus" because
it was "simply an inadvertent error." As noted above, however, PERB Regulation 32997
seems to indicate that the collection of agency fees in violation of PERB regulations is
necessarily an unfair practice, without regard to whether the violation was advertent or
inadvertent. Furthermore, the notion of a "de minimus" violation has only limited application
in the agency fee context. In Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S.
292, 106 S.Ct. 1066 [121 LRRM 2793], the United States Supreme Court made clear that a
Hudson notice is important to protect an employee's First Amendment rights even if the
employee's financial stake is small, and even if the union's use of the employee's funds is only
temporary. 	I conclude that in the present case CSEA's collection of agency fees from Gerber,
before CSEA sent Gerber a Hudson notice, did amount to an unfair practice that violated
EERA section 3543.6(b).
REMEDY
EERA section 3541.S(c) gives PERB:
... the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter [EERA].
In the present case, CSEA has been found to have violated EERA section 3543.6(b) by
collecting agency fees from Gerber before sending him the Hudson notice required by PERB
Regulation 32992. It is therefore appropriate to direct CSEA to cease and desist from such
conduct.
11

Because CSEA did not immediately return the monies deducted from Gerber's
paychecks, it is also appropriate to direct CSEA to pay interest to Gerber. 	CSEA shall pay
eleven weeks' interest on the $29.75 deducted on May 31, 2000, and seven weeks' interest on
the $29.75 deducted on June 30, 2000. CSEA shall also pay interest on the sum
of
these two
amounts
of
interest, for the period from August 17, 2000, until the total is paid. Interest shall
be at the rate
of
seven percent per annum. 	(See Regents
of
the University
of
California (1997)
PERB Decision No. 1188-H.)
In his post-hearing brief, Gerber argues that CSEA should also pay him:
a) My actual out
of
pocket expenses to proceed with this case.
b) For my lost wages in order to appear at the various PERB
proceedings.
c) For my time to research, prepare and proceed with this case.
Gerber cites the following language from Hacienda La Puente Unified School District (1998)
PERB Decision No. 1280:
Although the Board [PERB] is rarely presented
with circumstances that justify an award
of
attorneys' fees
and costs, we have long held that such an award is
appropriate where a case is without arguable merit,
frivolous, vexatious, dilatory, pursued in bad faith or
otherwise an abuse
of
process.
The present case, however, is not such a case. Although I have disagreed with CSEA's
arguments, they were not frivolous or without arguable merit. Furthermore, there is nothing in
the procedural history
of
this case to suggest that CSEA has defended itself in a vexatious or
dilatory fashion. 	Finally, CSEA's actions on August 17, 2000, to send Gerber a Hudson notice
and a refund check, betoken a good faith attempt to comply with PERB Regulation 32992,
however belatedly. It is therefore inappropriate to direct CSEA to pay Gerber more than the
interest to which I have found him entitled.
12

It is appropriate, however, to direct CSEA to post a notice incorporating the terms of
the order in this case. Posting of such a notice, signed by an authorized agent of CSEA, will
provide employees with notice CSEA has acted in an unlawful manner, is being ordered to
cease and desist from this activity and take appropriate remedial action, and will comply with
the order. It effectuates the purposes of EERA that employees be informed both of the
resolution of this controversy and of CSEA's readiness to comply with the ordered remedy.
(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this matter, it is found that the California School Employees Association, Chapter
258 (CSEA) violated the Educational Employment Relations Act (EERA), Government Code
section 3543 .6(b ), by collecting agency fees from George R. Gerber, Jr. (Gerber) before
sending him the Hudson notice required by PERB Regulation 32992. (The Hudson notice is
named for the decision in Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S.
292, 106 S.Ct. 1066 [121 LRRM 2793], which established the requirement that such a notice
be sent to all agency fee payers. The requirement is now also embodied in PERB Regulation
32992 [Cal. Code Regs., tit. 8, sec. 31001 and following].)
Pursuant to Government Code section 3541.S(c), it is hereby ORDERED that CSEA
and its representatives shall:
A. 	CEASE AND DESIST FROM:
Collecting agency fees from Gerber before sending him a Hudson notice.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Pay Gerber interest at the rate of seven percent per annum. CSEA shall
pay eleven weeks' interest on the $29. 7 5 deducted on May 31, 2000, and seven weeks' interest
on the $29.75 deducted on June 30, 2000. CSEA shall also pay interest on the sum of these
two amounts of interest, for the period from August 17, 2000, until the total is paid.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to classified employees customarily are posted, copies
of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent of CSEA, indicating CSEA will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure the Notice is not reduced in size, altered, defaced or covered with any other
material.
3. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the San Francisco Regional Director of the Public
Employment Relations Board, in accord with the regional director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1032 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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In accordance with PERB regulations, the statement
of
exceptions should identify
by page
citation or exhibit number the portions
of
the record,
if
any, relied
upon
for such exceptions.
(Cal. Code Regs., tit.
8,
sec. 32300.)
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 delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit.
8,
sec. 32135(a); see also Cal. Code Regs., tit. 8, sec. 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
Cal. Code Regs., tit. 8, sec. 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. (Cal. Code. Regs., tit. 8, secs. 32135(b), (c) and (d); see also Cal.
Code
Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting
brief
must be served concurrently
with
its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
THOMASJ.AL 	N
Administrative
	Law
	Judge
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