Oceanside Unified School District (PERB A020E)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
	EDUCATIONAL
EMPLOYMENT
	RELATIONS
	BOARD
In
	the
	Matter
	of 	the
Administrative
	Appeal
OCEANSIDE
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
	APPELLANT,
and
CALIFORNIA
	SCHOOL EMPLOYEES
	ASSOCIATION,
CHAPTER
	370 ,
Employee
	Organization.
Case
	No.
	LA-R-502
EERB
	Order
	No. 	Ad-20
December
	21,
	1977
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_____________________
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ORDER
-
The
	decision 	of 	the
	Los
	Angeles
	Regional
	Director, 	in
	the
	above-
captioned matter,
	that
	a
	certification
	of
	results 	in 	organizational
security 	elections 	will
	issue
	upon
	the
·approval
of 	the
	provision
	by
a
	simple
	majority 	of
	those 	voting
	is
	sustained
by 	the
	Board
	itself.
The 	Board
	finds
	that
	the
	Regional
	Director
	correctly 	interpreted
Government 	Code
	Section 	3546(a).
Educational
	Employment
	Relations
	Board
by	
,,
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	I,
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- -
c./	
I.
	.
	---
,
STEPHEN
	BARBER
Executive
	Assistant
	to 	the
	Board
Reginald Alleyne,
	Chairman,
	dissenting:
r
	disagree with 	the 	Board's 	decision 	to 	invalidate 	the
	District's
and 	CSEA's
	uncontested 	agreement 	to 	require
	a
	67-percent 	vote 	rather
than 	a
	majority vote 	of
	employees 	to 	make
	effective
	an 	agency 	shop 	clause
in
	a
	negotiated 	agreement.

Few
	labor
	relations
	issues
	have 	prompted
more
	heated
	debate
	than
the 	question
	of
	whether
	the
	law
	should
	permit
	negotiated
	agreements
requiring 	unwilling
	employees
	to
	join
	or
	support unions.
	In 	response,
legislatures
	have
	devised
	different
	means
	of 	reconciling
	arguably
	valid
but
	competing
	claims 	concerning
	organizational 	security
	clauses.
1
1The
	term
	"organizational 	security"
	is
	defined
	in
	Gov. 	Code
Sec.
	3540.l(i)
	as
	follows:
"Organizational
	security"
	means
	either:
(1)
	An
	arrangement
	pursuant
	to
	which
	a
	public
school
	employee
	may
	decide
	whether
	or 	notto
	join
	an 	employee
	organization,
	but
	which
requires
	him, 	as
	a
	condition 	of
	continued
employment,
	if
	he 	does
	join,
	to maintain
	his
membership
	in
	good
	standing
	for
	the 	duration
of
	the
	written
	agreement.
	However, 	no
	such
arrangement
	shall
	deprive 	the
	employee
	of
	the
right
	to
	terminate 	his 	obligation
	to 	the
employee
	organization within
	a
	period 	of
	30
days
	following 	the
	expiration 	of
	a
	written
agre·ement;
	or
(2)
	An
	arrangement
	that 	requires
	an 	employee, 	as
a
	condition 	of
	continued
	employment,
	either
	to
join
	the 	recognized 	or
	certified
	employee
organization, 	or 	to
	pay
	the 	organization
	a
service
	fee
	in
	an 	amount
	not 	to 	exceed
	the
standard
	initiation
	fee, 	periodic
	dues,
	and
general 	assessments
	of
	such
	organization 	forthe
	duration 	of 	the 	agreement,
	or
	a
	period 	of
three 	years
	from
	the
	effective
	date 	of
	such
agreement, 	whichever
	comes
	first.
Gov. 	Code
	Sec.
	3540.l(i)(l)
	defines
	what
	is
	known
	in 	private 	sectorlabor
	law
	as
	a
	maintenance 	of
	membership
	clause.
	Gov. 	Code
	Sec.
	3540.l(i)(2)defines
	what
	is
	known
	in 	private 	sector 	labor
	law as 	an 	agency 	shop
agreement. 	These 	two
	clauses
	and
	others 	of 	similar 	vein 	are
	known
generically 	as 	union
	security 	clauses 	in 	private 	sector 	labor
	law.
	The
California Legislature
	has
	substituted 	the 	generic
	term
	"organizational
security" 	for 	the 	private 	sector 	generic 	term 	"union
	security."
	But
'~organizational 	security" 	in 	the
	EERA
	is 	limited 	to maintenance 	of
	member-
ship
	and 	agency 	shop
	clauses.
	It
	does
	not 	include 	union 	shop
	clauses,
which
	require 	union membership
	within
	a
	reasonable 	time 	(usually
	30 	days)as 	a
	condition 	of
	employment, 	without 	the 	option 	of paying 	the 	equivalent
of
	membership 	fees 	and 	dues. 	See 	Abood 	v. 	Detroit
	Board
	of Education,
·431u.s. 	209, 	95
	LRRM
	2411, 	2414,
	n.
	Io 	(1977 	.
-2-

Federal
	labor
	law
	authorizes
	union
	security
	clauses,
2
but with 	the
unique
	compromise
	proviso
	that
	states
	may
	enact
	legislation
making
them
	illegal.
3
In 	the
	public
	sector,
	the
	issue
	of
	the
	validity
	of
organizational 	security
	clauses
	has 	been
	further
	com?licated
	by
only
	recently
	resolved 	questions
	concerning
	their 	constitutional
.d.
va
l
1.
	1.ty.
4
The
	California 	Legislature, 	in
	enacting
	the
	Educational
Employment
	Relations
	Act,
	expressly 	authorized
	the
	negotiability
	of
11
"organizational 	security 	clauses.
5
A
palliative
	compromise,
	favoring
those 	opposed
	to
	required
	employee
	organization
membership
	or 	support,
provides
	for
	a
	vote
	of 	affected
	employees,
	at
	the 	option 	of 	the
employer,
	before
	a
	negotiated 	organizational 	security
	clause
	may become
2
NLRA
	Section 	8Ja)(3) 	(proviso),
	29
	U.S.C. 	Sec.
	158(a)(3)
. 1
3
NLRA
	Section 14(b),
	29
	U.S.C.
	164(b).
4
see
	Abood
	v.
	Detroit
	Board
	of
	Education,
	431 	U.S. 	209, 	95
	LRRM
2411
	(1977),
	a
	United
	States
	Supreme
	Court
	decision 	sustaining
	the
constitutional 	validi'ty 	of
	agency 	shop
	clauses 	in 	negotiated 	public
employment
	agreements.
5Gov. 	Code
	Secs. 	3543.2,
	3546.
Valid
	agency 	shop 	agreements
	require
	express
	legislativeauthorization 	in 	California. 	City 	of
	Hayward
	v. 	United Public
	Emyloyees,
Local 	390, 	SEIU, 	AFL-CIO, 	54
	Cal.
	App. 	3d 	761, 	91
	LRRM
	2898 	(1976 	. 	See
NLRB
	v. 	General 	Motors,
	sustaining 	the
	validity 	of
	agency 	shop 	agreements
under
	the 	National
	Labor
	Relations 	Act,
	373 	U.S. 	734, 	53
	LRRM
	2312 	(1963).
-3-

effective. 	Specifically,
	Government
	Code
	Section
	3546(a)
	provides:
An
	organizational
	security
	arrangement,
	inorder
	to
	be
	effective,
	must 	be
	agreed
	upon
by
	both
	parties
	to 	the
	agreement.
	At
	the
time
	the
	issue
	is
	being
	negotiated,
	the
public
	school
	employer
	may
	require
	that
	the
organizational
	security
	provision
	be
	severed
from
	the 	remainder
	of
	the
	proposed 	agreementand
	cause
	the
	organizational
	security
	provision
to
	be
	voted
	upon
	separately
	by
	all
	members
	in
the 	appropriate 	negotiating
	unit,
	in
	accordance
with
	rules
	and
	regulations
	promulgated
	by
	theboard.
	Upon
	such
	a
	vote,
	the
	organizational
security
	provision
will
	become
	effective
	only
	if
a
	majority 	of
	those
	members
	of
	the
	negotiating
unit
	voting
	approve
	the
	agreement.
	Such
	vote
shall
	not
	be
	deemed
	to
	either
	ratify
	or 	defeatthe
	remaining
	provisions 	of
	the 	proposed 	agreement.
6
No
	other 	negotiable 	subject,
	as
	defined
	in
	the
	EERA,
7
requires
	such
	a
6Gov. 	Code
	Sec.
	3546 was
	derived
	in
	the
	main 	from 	former
	and
	now
repealed National
	Labor
	Relations
	Act
	Section
	9(e)(l)
	of
	the
	1947
	Taft-
Hartley
	Amendments.
	Section
	9(e)(l)
	was
	repealed
	in
	1951, 	Act
	of
October
	22,
	1951, 	Chapter
	534,
	Section
	l(b),
	65
	Stat.
	601,
	principally
for
	the 	reason
	that
	97
	percent 	of
	the
	elections
	conducted 	under
	the
	union
shop
	authorization
	vote
	resulted 	in 	authorization 	of 	the 	union 	shop.
See
	16th
Annual
	Report
	of
	NLRB,
	p,
	54
	(1952).
	Under
	the 	present
	NLRA
Section
	9(e)(l),
	a
	majority 	of
	employees
	subject
	to
	a
	union
	security
arrangement
	may
	vote,
	under 	proper 	circumstances, 	to
	rescind
	a
	negotiated.
union
	security
	arrangement 	then
	in 	effect.
	See
	Morris,
	The
	DevelopingLabor
	Law,
	pp.
	699, 	700. 	The
	difference
	is 	that
	the 	old
	NLRA
	Section
9(e)(l), 	like
	the 	present
	EERA
	Section 	3546(a), 	authorized
	a
	vote 	to
bring
	a
	nonexistent
	union
	security
	clause 	into
	being; 	the
	new
	and
	present
NLRA
	Section
	9(e)(l)
	only 	deals 	with
	an
	already 	existing
	union
	securityclause,
	which
	voters
	may
	rescind.
7 See 	Gov. 	Code
	Sec. 	3543.2.
-4-

vote
	before 	negotiating
	parties
	may
	include
	it
	in
	their
	agreement,
another
	indication
	of 	the
	uniquely
	volatile
	status
	of
	organizational
security
	clause
	issues.
While
	the
.agreement
	is
	against
	the
	interests
	of
	one
	of
	its
parties,
	California
	School
	Employees
	Association, 	the
	interests
	of
the
	other 	party,
	the
	District,
	are
	presumably
	favored
	by
	the
	agreement.
But
	in
	this
	context,
	I
	believe
	that
	the 	question
	should
	not
	be 	whether
a
	party 	to
	the
	agreement
	is
	favored
	by
	it
	but
	whether 	those
	not 	party
to 	the
	agreement
	and
	in
	a
	position
	to
	be
	disfavored
by
	the
	agreement,
to
	the 	detriment 	of
	a
	statutory 	right
	established 	for
	their 	benefit,
are
	in
	fact
	disfavored
	by
	the
	agreement.
	I
	not
	only
	find
	no
	such
prejudicial 	effect
	inherent 	in 	this
	agreement,
	but 	find
	instead,
	as
	I
think
	one
	must
	necessarily 	find,
	that
	the
	more
	stringent
	67-percent 	vote
required
	by
	the
	agreement
	furthers
	the
	interests
	of
	those 	opposed 	to
organizational 	security 	clauses,
	beyond what
	the
	Act
	provides.
	The
agreement 	should be
	regarded, 	then,
	as
	a
	valid
	waiver
	of
	a
	statutory
provision.
In
	contrast,
	an 	agreement 	to
	require 	less
	than
	a
	majority 	vote
for
	an
	organizational 	security 	clause
	would 	be
	against 	the
	interests
	of
the
	individuals 	the majority 	vote 	requirement
	was
	intended 	to
	benefit,
and,
	it
	seems, 	could not
	be
	regarded
	as 	a
	valid
	waiver.
	But
	that 	is
	not
this 	case.
With 	the
	interpretation
	I 	would
	give 	to
	Government 	Code
Section 	3546(a), 	under 	an 	employer's
	threat 	that
	no
	organizational
security 	clause will
	be 	entered 	into 	unless 	the 	vote 	requirement
	demanded
by
	the 	employer
	is
	met, 	employee
	organizations 	might 	be 	pressured 	into
	an
agreement 	requiring
	a 	more-than-simple 	majority 	vote.
	However, 	an 	employee
-5-

organization may be 	validly pressured 	into 	an 	agreement 	containing
no 	organizational 	security 	clause 	at 	all. 	Whether 	and 	to what 	extent
an 	employee 	organization 	is 	so 	pressured 	is 	a 	matter 	the 	Act 	commits
to 	the 	dynamics 	of 	the 	negotiating 	process, 	the 	relative 	strength 	of
negotiating 	parties, 	their 	priorities, 	ultimate 	objectives, 	and what
they 	are willing 	to 	sacrifice 	in order 	to 	achieve 	them, 	the 	same 	things
that 	control 	the 	outcome 	of 	negotiations 	on 	other 	subjects 	and 	dictate
the 	terms 	of 	final 	agreements 	between negotiating 	parties.
It 	is 	axiomatic 	that 	under 	the 	EERA, 	an 	employer 	is 	not 	bound 	to
ma 	e 	concessions	. 	to 	an 	emp 1 oyee 	organization,	..	k 8 	b ut must 	instea	. 	d 	attempt
in 	good 	faith 	to 	reach 	an 	agreement with 	an 	exclusive 	representative
on 	negotiable 	subjects. 9 An 	employer with 	the 	negotiating 	strength 	to
command 	a 	67-percent 	vote 	in 	favor 	of 	an 	organizational 	security 	clause,
might well 	have 	the 	negotiating 	strength 	to 	resist 	including 	an
organizational 	clause 	of 	any 	kind 	in 	an 	agreement. 	The 	Act 	does 	not
require 	an 	organizational 	security 	vote 	in 	all 	cases 	where 	the
issue 	of 	organizational 	security 	arises 	at 	the 	negotiating 	table. 	The
organizationa	. 	. 	1 	security	' 	vote 	is	. 	ca 11 e d 	at 	t h e 	option	· 	o f 	t h e 	emp 1·oyer. lO 	rrt..	L11e
employer's 	exercise 	of 	the 	option not 	to 	call 	an 	organizational 	securitv
vote may 	be 	tantamount 	to 	the 	rejection 	of 	a 	negotiated 	organizational
8 Gov. 	Code 	Sec. 	3549; 	compare 	NLRA 	Section 	8(d), 	29 	U.S.C. 	158(d).
9Gov. 	Code 	Secs. 	3540.l(h), 	3543.S(c).
10Gov. 	Code 	Sec. 	3546(a) 	provides 	that 	the 	"public 	school 	employer
may 	require 	. 11 an 	organizational 	security vote. 	The 	vote 	itself 	is
not 	made mandatory with 	the 	use 	of 	the word 	"shall", 	rather 	than 	the
word 	"may".
-6-

security 	clause. 	If 	the 	organizational-security vote 	and 	the
organizational 	security 	clause 	itself 	are 	within 	the 	employer's
discretion 	to 	reject, 	following 	good 	faith 	negotiations 	on 	the
subject, 	it 	should 	follow 	that 	the 	employer 	and 	a 	willing 	employee
organization 	acting 	against 	its 	own 	interests, 	have 	the 	discretion
to 	require 	a 	more-than-simple majority organizational~security 	vote.
In 	this 	case, 	the 	District, 	having 	succeeded 	in 	obtaining 	a
67-percent 	vote 	requirement 	in 	an 	agreement, 	and 	having 	been 	rebuffed
in 	that 	effort by 	this 	Board, 	may 	possibly have 	the 	negotiating 	strength
to 	resist 	an 	organizational 	security vote 	based 	on 	a 	majority 	vote 	and,
consequently, 	to 	resist 	an organizational 	security 	clause 	altogether.
It 	is 	beside 	the 	point 	that 	the 	comparative 	negotiating 	power 	of 	the
pa~ties 	and 	their 	priorities 	may make 	that 	not 	true 	in 	this 	case, 	for
it may 	be 	true 	in 	future 	cases 	to which 	this 	decision 	of 	the 	Board will
apply.
Finally, 	implicit 	in 	the 	Board's 	decision 	is 	a 	rationale 	based 	on
a 	literal 	reading 	of 	Government 	Code 	Section 	3546(a). 	On 	that, 	I
think 	resolution 	of 	a 	conflict between 	a 	literal 	reading 	of 	the 	statute
and 	some 	other 	evidence 	of 	legislative 	intent 	is 	unnecessary 	here. 	I
find 	that, 	like most 	disputed 	labor 	legislation, 	a 	literal 	reading 	of
Government 	Code 	Section 3546(a) 	does 	not 	resolve 	this 	issue 	either
way. 	The 	Board's 	interpretation 	of 	that 	section would be 	consonant
with 	a 	literal 	reading 	if 	Government 	Code 	Section 	3546(a) 	provided
that 	" 	. 	. 	no 	more 	than 	a 	majority 	. 	. 	. 11 ; 	my 	interpretation 	of 	the 	Act
would be 	consonant with 	a 	literal 	reading 	of 	that 	section 	if 	it 	read
" 	.. 	no 	less 	than 	a 	majority 	... " 	I 	believe 	that 	logic, 	the 	history
of 	organizational 	security 	clauses, 	their 	unique 	treatment 	by 	both 	the
-7-

-8-
Congress 	and
	the
	California Legislature,
	and
	consideration 	of
Government 	Code
	Section
	3546(a)
	in
	light
	of
	the
	class
	of
	persons
intended 	to
	be
	benefited,
	all
	support
	the
	latter
	interpretation.
For
	these 	reasons,
	I
	would
	conclude
	that
	the
	parties'
	agreement
to
	require
	a
	67-percent vote
	in
	favor
	of
	an 	agency
	shop
	clause
	is
valid
	and
	that
	the
	Board
	incorrectly
	decides 	otherwise.
~
_c..s;rr
	_aJ---
~
ReginaAleyne,	
carrman
-8-