Cumero v. Public Employment Relations Bd. (King City High School Dist. Ass'n, CTA/NEA)

Decision Date23 April 1985
Citation204 Cal.App.3d 87,213 Cal.Rptr. 326
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 204 Cal.App.3d 87 204 Cal.App.3d 87, 24 Ed. Law Rep. 364 William J. CUMERO, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; KING CITY HIGH SCHOOL DISTRICT ASSOCIATION, CTA/NEA, et al., Real Parties in Interest. A016723.

Ronald A. Zumbrun, John H. Findley, Anthony T. Caso, Pacific Legal Foundation, Sacramento, William J. Cumero, Greenfield, for petitioner.

Michael J. Tonsing, PERB, San Francisco Regional Office, San Francisco, Dennis M. Sullivan, Gen. Counsel, Jeffrey Sloan, Asst. Gen. Counsel, Peter Haberfeld, Regional Atty., Elaine B. Feingold, Legal Counsel, PERB, Sacramento, for respondent.

Kirsten L. Zerger, Raymond L. Hansen, Diane Ross, Ramon E. Romero, Burlingame, Joseph G. Schumb, Jr., LaCroix & Schumb, San Jose, David Berteaux, Superintendent, King City Joint Union High School District, Gorden Mittelsteadt, Pres., King City High School CTA/NEA, King City, Jan Alton Walker, Salinas, Robert Chanin, Gen. Counsel, James Altman, National Education Assoc., Washington, D.C., for real parties in interest.

A. Roger Jeanson, Haas & Najarian, San Francisco, Rex H. Reed, Robert F. Gore, Jeffrey D. Wedeking, National Right to Work Legal Defense Foundation, Inc., Springfield, for amicus curiae National Right to Work Legal Defense Foundation.

J. Albert Woll, Laurence Gold, Washington, D.C., Marsha S. Berzon, Michael Rubin, Altshuler & Berzon, Charles P. Scully, Donald C. Carroll, Charles P. Scully, II, Law Offices of Charles P. Scully, Inc., San Francisco, for amicus curiae California Labor Federation AFL-CIO.

WHITE, Presiding Justice.

Petitioner, a high school teacher employed by the King City Joint High School District (District) but not a member of the King City High School District Association, CTA/NEA (Union), challenges the withholding of a portion of his paycheck as a "service fee" and the use of that service fee by the Union for purposes not directly related to negotiation, contract administration and grievance handling. In a lengthy and detailed opinion, the Public Employment Relations Board (PERB or Board) rejected most of petitioner's objections, applying general guidelines from Abood v. Detroit Board of Education (1977) 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261. In April of 1984, while this petition was pending in this court, the United States Supreme Court decided Ellis v. Broth. of Ry., Airline and S.S. Clerks (1984) 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428. We ordered the matter on calendar to consider the effect of Ellis upon the Board's decision in this case.

This proceeding arises under the Educational Employment Relations Act (Stats.1975, ch. 961, § 2, p. 2247, operative July 1, 1976; codified as Gov.Code, §§ 3540-3549--hereinafter the Act or the EERA). The EERA established a system of collective bargaining for employees of public school districts educating students in grades kindergarten through 14. It required the school district employer to meet and negotiate in good faith with the duly selected exclusive representatives of its employees as to statutorily defined subjects. It provided that the parties may enter a binding agreement and may reach an agreement for resolving disputes. The Act created PERB as an independent board with broad powers to administer the Act. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 855-857, 191 Cal.Rptr. 800, 663 P.2d 523.)

In 1976, the King City High School District Association, CTA/NEA, became the exclusive representative for all nonmanagement certified employees of the King City Joint Union High School District, including petitioner, pursuant to the Act. On September 14, 1976, District and Union entered into a collective bargaining agreement which required all employees in the bargaining unit either to join Union or to pay Union a fee in an amount equal to the combined dues of Union, California Teachers Association (CTA) and National Education Association (NEA). The collective bargaining agreement also provided for the fee to be deducted from the nonmember's paycheck with or without the nonmember's authorization. Petitioner wished neither to join Union nor to pay a fee which would be used to finance political and ideological activities which he opposed. District nevertheless withheld a $150 fee from his paycheck in 10 monthly installments without his authorization.

On October 12, 1976, petitioner filed an unfair practice charge with the Board, alleging that Union had violated sections 3543.5, 3543.6, 3545, and 3546 of the Government Code and "Federal and State Due Process Laws." An amended charge was filed on March 23, 1977. District, CTA and NEA were subsequently joined as co-respondents with Union.

After prolonged prehearing procedures, the matter came on for hearing before a hearing officer who found (1) that District and respondent organizations had violated the Act by collecting an agency fee without petitioner's written consent; (2) that District and respondent organizations had violated the Act by using the agency fee for impermissible expenditures, such as (a) charitable contributions to the Martin Luther King Scholarship Fund, (b) expenses of recruiting and organizing, and (c) paying for personal liability insurance available only to members; (3) that the exclusive representative had separately and independently violated its duty of fair representation under the Act by assessing petitioner for services for which he was ineligible; (4) further, that the service fee refund procedure established by the statewide CTA violated the Act. The hearing officer proposed the remedy of the restoration of the status quo for the wrongful acts, reasoning that the status quo could only be restored if the service fee was refunded in its entirety with interest. The hearing officer also proposed that the offending portions of the collective bargaining agreement allowing the deduction of the service fee without prior authorization be rescinded. The proposed order contained cease and desist language and proposed affirmative actions to effectuate the purposes of the Act.

Petitioner excepted to the proposed decision. District, Union and CTA excepted to the proposed decision. On March 3, 1982, the Board issued its decision vacating the proposed order of the hearing officer. The Board found that payroll deduction of the service fee did not require petitioner's consent, found expenses for recruiting and organizing to be a proper use of the service fee, found the use of service fees to support candidates for local office or otherwise to assist in such campaigns to be an improper use of service fees, and agreed with the hearing officer with respect to improper use of the service fee for personal liability insurance available only to members. The Board set forth a list of permissible uses of the service fee, but did not reach a decision on the rebate procedure, concluding that the rebate procedure was a matter for arbitration.

The Board concluded by dismissing the complaint except as to the charge that the use of service fees to provide classroom liability insurance was a violation of section 3544.9 and except as to the charge that Union had improperly utilized petitioner's service fees in support of candidates' campaigns for public office. The Board remanded to the Chief Administrative Law Judge the question of whether service fees were used to support candidates' campaigns for public office or to administer the Martin Luther King Scholarship Fund (on which the Board was unable to reach majority position). The Board ordered Union to refund to petitioner the pro rata share of service fees collected which had been used to provide classroom liability insurance, and, if found, the pro rata share of service fees used in support of candidates' campaigns for public office, and to reduce Cumero's future fee obligation accordingly.

Petitioner then filed his petition for writ of review in this court. Briefs amicus curiae supporting and opposing the petition have been filed by National Right to Work Legal Defense Foundation, Inc., and the American Federation of Labor--Congress of Industrial Organizations (AFL-CIO), respectively.

Among the provisions of the Act is an authorization for the parties to agree to an "organizational security arrangement" such as an "agency shop." (See San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841, 843, fn. 1, 187 Cal.Rptr. 432, 654 P.2d 202.) Government Code section 3546 provides, in pertinent part: "[p] Subject to the limitations set forth in this section, organizational security, as defined, shall be within the scope of representation. [p] (a) An organizational security arrangement, in order to be effective, must be agreed upon by both parties to the agreement...." "Organizational security" is defined in Government Code section 3540.1, subdivision (i), to mean either: "(1) An arrangement pursuant to which a public school employee may decide whether or not to 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 ...; 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 for the duration of the agreement, or a period of three years from the effective date of such agreement, whichever comes first."

Shortly after the Act went into effect, the United States Supreme Court, in Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, upheld an "agency shop" provision...

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3 cases
  • Lehnert v. Ferris Faculty Association-MEA-NEA, G 78-346.
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    • U.S. District Court — Western District of Michigan
    • August 25, 1986
    ...of union activity that may be financed with representation fees. 741 F.2d at 609. See also Cumero v. Public Employment Relations Board, 167 Cal. App.3d 131, 145-46, 213 Cal.Rptr. 326, 336-37 (1985); cf. Beck v. Communications Workers of America, 776 F.2d 1187, 1210-11 & n. 31 (4th Cir.1985)......
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