Cumero v. Public Employment Relations Bd., S

Decision Date07 September 1989
Docket NumberNo. S,S
Citation262 Cal.Rptr. 46,49 Cal.3d 575,778 P.2d 174
CourtCalifornia Supreme Court
Parties, 778 P.2d 174, 132 L.R.R.M. (BNA) 2575, 55 Ed. Law Rep. 651 William J. CUMERO, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. KING CITY HIGH SCHOOL DISTRICT ASSOCIATION, CTA/NEA, et al., Real Parties in Interest. F. 24905.

Ronald A. Zumbrun, John H. Findley and Anthony T. Caso, Sacramento, for petitioner.

Dennis Sullivan, John W. Spittler, Sacramento, Jeffrey Sloan, Los Angeles, Andrea L. Biren, San Francisco, and Peter Haberfeld, for respondent.

Kirsten L. Zerger, Berkeley, Diane Ross, Ramon E. Romero and Christine Bleuler, for real parties in interest.

A. Roger Jeanson, Haas & Najarian, San Francisco, Rex H. Reed, David T. Bryant, Springfield, Va., and Jeffrey D. Wedekind, as amici curiae on behalf of petitioner.

Peter A. Janiak, Madalyn J. Frazzini, E. Luis Saenz, Maureen C. Whelan, Marcia L. Meyers, Marci B. Seville, William C. Heath and Harry J. Gibbons, Jr., San Jose, as amici curiae on behalf of respondent.

Charles P. Scully, Donald C. Carroll, Charles P. Scully, II, Marsha S. Berzon, Michael Rubin, Fred H. Altshuler, George C. Harris, Altshuler & Berzon, San Francisco, and J. Albert Woll, as amici curiae for respondent and real parties in interest.

KAUFMAN, Associate Justice.

The Educational Employment Relations Act (EERA) 1 authorizes a public school district and a labor organization which constitutes its employees' exclusive bargaining representative to agree upon an organizational security arrangement whereby any of the employees who refuse to join the labor organization must pay it a service fee as a condition to continued employment. (§§ 3540.1, subd. (i)(2), 3543.2, subd. (a), 3543.3, 3546.) 2 We granted review in this case to examine the limitations imposed by the EERA and by the First and Fourteenth Amendments upon the uses the organization may properly make of the fee.

As will be explained, we have concluded that the EERA forbids any use of the fee, over the nonmember's objection, for activities beyond the organization's representational obligations, and that many of the uses questioned here are subject to objection under that statutory test, including most lobbying and electioneering expenses as well as the costs of recruiting new members, but that insofar as those uses are permitted by the EERA itself, they do not violate nonmembers' First Amendment rights. We shall further conclude that an organization's authorized affiliate may spend service fee funds in support of the organization's representational obligations, and that the organization has the burden of proving which of its expenses, including funds expended through its affiliates, are chargeable to dissenting employees' fees. We shall also uphold the organization's right under the EERA (apart from codification of the right in Ed.Code, § 45061) to collection of the fees through involuntary payroll deductions pursuant to the organization's agreement with the employer. Finally, we shall direct the Court of Appeal to reconsider the petitioner's application for attorney's fees.


Petitioner William J. Cumero is a high school teacher employed by the King City Joint Union High School District (district) and is within the bargaining unit represented by the King City High School District Association, CTA/NEA (association). As of September 1, 1977, the district and the association, pursuant to the EERA, entered into a one-year collective bargaining agreement that included an organizational security arrangement (see fn. 2, ante). In this connection, the agreement provided for mandatory deduction of the service fee from the paycheck of any nonmember teacher. 3

Dissatisfied with the payroll deduction, Cumero filed an unfair practice charge with the Public Employment Relations Board (PERB), which has broad powers to administer the EERA (§ 3541 et seq.; San Mateo City School Dist. v. Public Employment Relations Board (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523). Joined as respondents in the PERB proceeding were the district, the association, and the association's affiliates, the California Teachers Association (CTA) and the National Education Association (NEA). Cumero charged that the amount of the service fee violated the EERA because it exceeded the association's cost of performing its representational obligations to him as a nonmember, that he should not be required to contribute any amount whatsoever to the affiliates because neither of them is the designated employee representative, and that the district could not lawfully withhold the fee without his consent.

When the charges came before a PERB hearing officer, the parties agreed to focus initially on the question of the activities for which Cumero's service fee could properly be spent, deferring determination of the exact amount of any impermissible expenditure. It was also agreed to confine the testimony to the activities of the CTA during the fiscal year 1977-1978; those activities were deemed typical, for purposes of the hearing, of the activities of the CTA, the NEA, and the local association during the entire period in question. There ensued seven days of hearing, after which the hearing officer issued a proposed decision concluding that some but not all of the expenditures objected to were improper and that the district was not authorized to deduct the service fee from Cumero's salary without his consent. (Cumero v. King City High School District (Aug. 29, 1980) PERB Proposed Dec. [4 PERC p 11156] (hereafter PERB Proposed Dec.).)

On exceptions taken by Cumero, the association, and the CTA, the case was then considered and decided by PERB itself. Cumero's exceptions included a claim that the use of his service fees to finance certain organizational activities violated his rights not only under the EERA but also under the First Amendment to the United States Constitution.

In its decision (Cumero v. King City Joint Union High School District (Mar. 3, 1982) PERB Dec. No. 197 [6 PERC p 13065] ) (hereafter PERB Dec. No. 197), PERB defined its task as one of determining the parties' rights under the EERA "on the assumption that the Act suffers no constitutional infirmity," citing article III, section 3.5 of the California Constitution. (Id. at p. 4 [6 PERC p 13065, at p. 229].) The cited constitutional provision forbids an administrative agency to declare a statute unconstitutional or to refuse to enforce a statute on the ground of its unconstitutionality. As PERB apparently realized, however, the provision did not prevent it from construing the EERA in light of constitutional standards. (Regents of University of California v. Public Employment Relations Bd. (1983) 139 Cal.App.3d 1037, 1042, 189 Cal.Rptr. 298; see Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, 669, fn. 18, 153 Cal.Rptr. 802, 592 P.2d 289; Richmond Federation of Teachers v. Richmond Unified School District (Aug. 1, 1979) PERB Dec. No. 99, at pp. --- - --- [3 PERC p 10105, at pp. 327-328].)

PERB first noted that the exaction of a service fee from Cumero conflicts with his right, as a public school employee, "to refuse to join or participate in the activities of employee organizations" (§ 3543), but held that that general provision is modified (in accordance with Code Civ.Proc., § 1859) by the more particular provisions of sections 3540.1, subdivision (i)(2), and 3546, authorizing organizational security arrangements (fn. 2, ante). Noting that the United States Supreme Court had upheld the constitutionality of requiring nonmember employees to contribute to expenses germane to collective bargaining incurred by the labor organization exclusively representing them, both under the federal Railway Labor Act (Machinists v. Street (1961) 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141; Railway Employes' Dept. v. Hanson (1956) 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112) and under a Michigan statute applicable to public school teachers (Abood v. Detroit Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261), PERB concluded that "the 'interference' with Cumero's right to refuse to participate in organizational activities resulting from his obligation to pay some service fee is justified by the California Legislature's assessment of the important contribution of organizational security arrangements to the system of employer-employee relations established in the EERA" (PERB Dec. No. 197, supra, at p. 10 [6 PERC p 13065, at pp. 230-231] ). "To balance Cumero's right against his obligation," PERB continued, "he should not be required to support activities which are beyond the Association's representational obligations," and "[t]he fact that the Constitution does not prohibit certain uses of the service fee does not mean that EERA permits them." (Id. at pp. 10-11 [6 PERC p 13065 at p. 231].)

PERB then went on to enumerate various activities for which it concluded the fee could properly be used. Those activities included lobbying and contributions to ballot proposition campaigns on matters affecting the employees' interests in relation to their employer, organizing and recruiting, and organizational publications. PERB approved the inclusion in the service fee of payments to the association's state and national affiliates (CTA and NEA) for representational purposes. PERB also held that Cumero, as charging party, had the burden of proving that uses made of his fee were improper, but that charges based on information and belief could be the basis for a prima facie case, and that Cumero had made a sufficient case to require CTA to go forward with proof of its expenditures.

In addition, PERB upheld the propriety of deducting the fee from Cumero's salary without his consent. Finally, PERB ruled in Cumero's favor that he had been improperly charged for classroom liability insurance which was available only to members, and that there...

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