Lillebo v. Davis

• Decision Date: 20 August 1990
• Docket Number: No. C006009,C006009
• Citation: 272 Cal.Rptr. 638,222 Cal.App.3d 1421
• Court: California Court of Appeals Court of Appeals
• Parties: H. Paul LILLEBO, et al., Plaintiffs and Appellants, v. Gray DAVIS, as Controller, etc., et al., Defendants and Respondents.

Page 638

272 Cal.Rptr. 638

222 Cal.App.3d 1421

H. Paul LILLEBO, et al., Plaintiffs and Appellants, v. Gray DAVIS, as Controller, etc., et al., Defendants and Respondents.

No. C006009.

Court of Appeal, Third District, California.

Aug. 20, 1990.

Review Denied Oct. 30, 1990.

Ronald A. Zumbrun, Anthony T. Caso and Sharon L. Browne, Sacramento, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Richard M. Frank, Supervising Deputy Atty. Gen., Ramon M. de la Guardia, Deputy Atty. Gen., Gary P. Reynolds, Howard Schwartz, Tuttle & Taylor and Frank E. Melton, for defendants and respondents.

Diane Ross, Beverly Tucker, Ramon Romero, and A. Eugene Huguenin, Burlingame amicus curiae on behalf of defendants and respondents.

INTRODUCTION

SPARKS, Associate Justice.

The Ralph C. Dills Act ¹ (Dills Act) (Gov.Code, § 3512 et seq.) has as one of its declared purposes the establishment of "a uniform basis for recognizing the right of state employees to join organizations of their own choosing and be represented by those organizations in their employment relations with the state. It is further the purpose of this chapter, in order to foster peaceful [labor] relations, ... to permit the exclusive representative to receive financial support from those employees who receive the benefits of this representation." (§ 3512.) To this end, the Legislature has allowed these exclusive representatives ² to include in their labor contracts a provision "for organizational security in the form of ... [a] fair share fee deduction." (§ 3515.7, subd. (a).) A fair share fee deduction is defined as "the fee deducted by the state employer from the salary or wages of a state employee in an appropriate unit who does not become a member of and financially support the recognized employee organization." (§ 3513, subd. (j).) The purpose of the fee is to defray "the costs incurred by the recognized employee organization in fulfilling its duty to represent the [unit] employees in their employment relations with the state, ..." (Ibid.) The Legislature, however, has also accorded these nonunion members of the represented unit the right "to demand and receive ... a return of any part of that [fair share] fee paid ... which represents the employee's additional pro rata share of expenditures by the [union] that is either in aid of activities or causes of a partisan political or ideological nature only incidentally related to the terms and conditions of employment, or applied towards the cost of any other benefits available only to members of the [union]." (§ 3515.8.) This refund, however, does not include costs related to certain types of lobbying. "The pro rata share subject to refund shall not reflect, however, the costs of support of lobbying activities designed to foster policy goals and collective negotiations and contract administration, or to secure for the employees represented advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and conferring with the stated employer." (Ibid.)

In this case, plaintiff H. Paul Lillebo and other public employees brought suit against the state controller ³ and the California State Employees' Association (CSEA). The suit challenged the ability of the Legislature to allow recognized employee organizations, such as CSEA, to exact any fair share fee from those nonunion members of the represented unit who "desire" to exercise their statutory right "to represent themselves individually in their employment relations with the state." (§ 3515; see also § 3515.5.) Plaintiffs also raised facial constitutional challenges (1) to the mechanism set out in section 3515.8 by which objecting nonunion members of the represented unit may seek the return of that portion of their fair share fee permitted by section 3515.7 and (2) to the designation as nonrefundable in the remainder of section 3515.8 of the "costs of support of lobbying activities designed to foster policy goals and collective negotiations and contract administration, or to secure for the employees represented advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and conferring with the state employer."

The trial court ruled that the challenged statutes were constitutional and did not violate plaintiffs' First Amendment rights. It therefore granted summary judgment in favor of defendants. Plaintiffs appealed and renewed their arguments here. Finding none of the plaintiffs' arguments to be tenable, we affirmed the judgment in our original opinion. Thereafter, the Supreme Court granted plaintiffs' petition for review and transferred the cause back to this court with directions to "vacate [our] opinion and ... reconsider" it "in light of Keller v. State Bar of California (1990) 495 U.S. [----] [110 S.Ct. 2228, 110 L.Ed.2d 1]." Although Keller in essence merely restates the general principles of the previous cases in the particular context of the California State Bar, we have amended our opinion as instructed (after giving the parties an opportunity for comment) and now reissue it.

To reiterate the original summary of our holding, we first hold that employees exercising the right of individual representation do not usurp the authority of the union to act as the authorized representative of the unit; thus, they may lawfully be compelled to support its efforts on their behalf. Second, section 3515.8 may be read in harmony with the governing constitutional standard for refunds of fair share fees, so there is no facial invalidity. Finally, the statutory authorization under section 3515.8 to lobby for policy goals, properly construed, is limited to activities germane to collective negotiations, contract administration and employment benefits. So construed, the nature of public sector employment makes lobbying the Legislature for better terms and conditions of public employment or other representation-related policy goals a cost properly chargeable against objecting nonmembers in the represented unit without factially offending the First Amendment. Consequently, we shall affirm the judgment in favor of defendants.

BACKGROUND

Prior to its amendment in 1982, the SEERA authorized the state employer and recognized employee organizations, as part of a memorandum of understanding, to enter into agreements providing for organizational security in the form of "maintenance of membership" arrangements. ⁴ (Former § 3515; Stats.1978, ch. 776, § 4.3.) The SEERA, however, did not provide for an organizational security arrangement whereby the public employee must either join the employee organization or pay the organization a service fee to defray its costs in representing the nonunion member.

In 1982, the Legislature for the first time authorized the state employer and recognized employee organizations to negotiate a fair share fee arrangement as part of a memorandum of understanding by amending section 3515 to its current form. (Stats.1982, ch. 1572.) Now, once an employee organization has been recognized as the exclusive representative of an appropriate unit, "it may enter into an agreement with the state employer providing for organizational security in the form of maintenance of membership or fair share fee deduction." (§ 3515.7, subd. (a).) As we noted at the outset, a fair share fee is a fee deducted automatically from the salary or wages of state employees in appropriate units who do not become a member of the recognized employee organization ⁵ (§ 3513, subd. (j)); the state employer is required to "furnish the recognized employee organization with sufficient employment data to allow the organization to calculate membership fees and the appropriate fair share fees, and shall deduct the amount specified by the recognized employee organization from the salary or wages of every employee for the membership fee or the fair share fee. These fees shall be remitted monthly to the recognized employee organization.... Fair share fee deductions shall continue for the duration of the agreement, or a period of three years from the effective date of the agreement, whichever comes first" ⁶ (§ 3515.7, subd. (b)); and the statutory scheme envisages a return of that part of the fair share fee used for partisan political or ideological purposes or for benefits available only to members of the union (§ 3515.8). These amendments became effective on January 1, 1983. (Cal. Const., art. IV, § 8, subd. (c)(1).)

In May 1983, more than 200 state employees filed a complaint against CSEA and the State Controller. CSEA is a recognized employee organization under the Dills Act. As such it negotiates employment contracts for numerous bargaining units and lobbies on behalf of them. The suit sought declaratory and injunctive relief and money damages. Following a number of procedural skirmishes, the plaintiffs received permission to file a second amended complaint in December 1986. This pleading, with a reduced plaintiffic presence of 99, had as its first cause of action a claim that section 3515.8 is unconstitutional because it allows defendant CSEA (the union currently or formerly representing the plaintiffs) to expend fair share fees on lobbying the Legislature in violation of the plaintiffs' rights under the First Amendment to the United States Constitution. For their second cause of action, numerous plaintiffs alleged they "desired to represent themselves individually in their employment relations with the state as is their right under [sections 3515 and 3515.5]," but were nevertheless required to pay the fair share fee, which violated their First Amendment rights. The third cause of action challenged the constitutionality of the "pure rebate procedure used by CSEA and mandated by Section 3515.8." Finally, the fourth cause of action challenged the propriety of defendant State Controller continuing to deduct the allegedly impermissible fair share fees from the wages of the...