The opinion
Filed 2/1/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ORANGE COUNTY WATER DISTRICT,
Petitioner,
v. G052725
PUBLIC EMPLOYMENT RELATIONS (PERB Dec. No. 2454-M,
BOARD, Case No. LA-CE-856-M)
Respondent; OPINION
ORANGE COUNTY WATER DISTRICT
EMPLOYEES ASSOCIATION,
Real Party in Interest.
Original proceedings; petition for a writ of extraordinary relief. Petition
denied. Request for judicial notice denied.
Rutan & Tucker, George W. Shaeffer, Jr., and Joel D. Kuperberg for
Petitioner.
J. Felix De La Torre, General Counsel, Wendi L. Ross, Deputy General
Counsel, and Daniel M. Trump, Regional Attorney, for Respondent.
Donald L. Drozd for Real Party in Interest.
INTRODUCTION
The Public Employment Relations Board (the Board or PERB) concluded
the Orange County Water District (the District) committed an unfair practice, in violation
of Government Code section 3502.5, when it refused to consent to an election petitioned
for by the recognized employee organization seeking to implement a so-called modified
agency shop. (All further statutory references are to the Government Code unless
otherwise specified.) An agency shop is defined in section 3502.5, subdivision (a) as an
arrangement that requires an employee, as a condition of continued employment, to either
join the recognized employee organization or pay the organization a service fee. The
proposed agency shop in this case is referred to as a “modified” agency shop because it
would apply only to future employees hired into the bargaining unit and not apply to
current employees. The District filed a petition for a writ of extraordinary relief from the
Board’s decision under section 3509.5, subdivision (a). We granted a writ of review.
We deny the petition for extraordinary relief. For the reasons we explain
post, we hold that section 3502.5 authorizes the proposed modified agency shop.
1
STIPULATED FACTS AND PROCEDURAL HISTORY
The District is a public agency within the meaning of section 3501,
subdivision (c), and is therefore subject to the provisions of the Meyers-Milias-Brown
Act (MMBA), section 3500 et seq. The Orange County Water District Employees
Association and the Orange County Employees Association (collectively referred to as
the Association) constitute an employee organization within the meaning of section 3501,
subdivision (a). The Association is a recognized employee organization within the
meaning of section 3501, subdivision (b), which has been formally acknowledged by the
District as an employee organization that represents employees of the District. The
1
“Pursuant to the provisions of PERB Regulation section 32170,” the parties stipulated
“to the relevant facts in lieu of the taking of evidence and examination of witnesses.”
2
Association does not represent employees who have been designated by the District as
management and confidential employees of the District within the meaning of
section 3507.5.
Since June 24, 2005, the District and the Association have been parties to a
memorandum of understanding (MOU) and successor MOU’s, which have set forth
various wages, hours, and other terms and conditions of employment for the employees
2
in the bargaining unit covered by the MOU. “At all times herein relevant,” the total
number of employees in the bargaining unit represented by the Association was 184, of
which 126 employees were dues paying members of the Association.
In May 2011, in the course of negotiations for a successor MOU, the
Association proposed a “modified” agency shop arrangement which would apply only to
new employees of the District, hired on or after a set future date, and not apply to then
current employees. The District rejected the Association’s proposed modified agency
shop arrangement on the ground that section 3502.5 does not authorize the creation of
such an arrangement.
In July 2012, the Association requested that the MOU be reopened to
implement the proposed modified agency shop arrangement. The District rejected the
Association’s request on the same ground.
On November 14, 2012, the Association served the District and the State
Mediation and Conciliation Service (SMCS) with a petition and request for an agency
shop election, which stated, in part, that no management or confidential employees were
included in the unit, and the petition had been signed by approximately 98 percent of the
members of the unit.
The Association’s petition contained the signatures of 125 employees of the
District, who belonged to the bargaining unit. The petition stated: “We, the undersigned
2
The “current term” of the MOU between the District and the Association was July 1,
2013 to June 30, 2015.
3
employees of the Orange County Water District represented by the Orange County
Employees Association, hereby request a Modified Agency Shop Agreement and an
election to implement an Agency Fee Arrangement pursuant to California Government
Code section 3502.5 and other applicable laws or regulations. Pursuant to [the] Modified
Agency Shop Agreement and Arrangement, all employees hired on or after March 1,
2013, will be required to join as members the Orange County Employees Association or
pay to the Orange County Employees Association a ‘service fee’ as set forth in
Government Code section 3502.5(a), et seq. All employees hired prior to March 1, 2013
are specifically excluded from the Modified Agency Shop Agreement and Arrangement.”
On December 4, 2012, the District’s director of human resources, Stephanie
Dosier, received an e-mail from SMCS mediator Jerry Fecher, in which Fecher confirmed
receipt of the Association’s request for an agency shop election. Fecher requested that a
meeting be scheduled to discuss the logistics for setting up an election; he proposed
December 12 and 14, 2012, as possible dates for such a meeting.
On December 7, the District’s legal counsel responded to Fecher by
requesting a postponement of the meeting “until SMCS verified its ability to conduct a
modified agency shop election under Government Code section 3502.5(a).” On
December 12, Fecher responded to that communication by stating the MMBA does not
authorize SMCS to rule on the legality of a proposed agency fee arrangement and further
stating, “if the parties are ready and in agreement to proceed, SMCS is available, if
necessary, to check the level of support in the petition and/or to subsequent[ly] conduct
an election.”
After receiving further direction from the District’s governing board, on
January 3, 2013, the District’s legal counsel informed Fecher that the District would not
voluntarily consent to a modified agency shop election “which has the intention of
creating an agency shop only for employees hired on or after March 1, 2013, and which
exempts all current bargaining unit employees.” The District reconfirmed its position
4
that an agency shop arrangement must apply to all employees in the unit and therefore
cannot be limited to employees hired after a future date.
On July 3, 2013, the Association timely filed an unfair practice charge
based on the District’s denial of the Association’s petition for a modified agency shop
election as a violation of section 3502.5. The Association stated it sought “administrative
relief by requiring the District to agree to conduct an election pursuant to the petitions
signed by significantly more tha[n] the requisite 30% of the eligible members.” The
Board issued a complaint.
An unfair practice hearing was conducted before an administrative law
judge. The parties had filed a stipulated factual record and opening briefs which resulted
in the hearing consisting of oral argument. The administrative law judge observed, “the
issue presented in this case may be one of first impression for PERB or is likely one of
first impression for PERB.” The administrative law judge’s proposed decision, issued on
February 26, 2015, concluded that the District had violated section 3502.5 because it
refused to participate in a properly petitioned-for agency shop election. The
administrative law judge’s proposed decision further concluded that the District had
failed to assert a valid defense.
The District timely filed a statement of exceptions, and the Association
timely filed a response. The Board reviewed the hearing record in its entirety and
concluded the administrative law judge’s proposed decision was adequately supported by
the evidentiary record, well reasoned, and consistent with all relevant legal principles.
The Board found no merit in the District’s exceptions and “adopt[ed] the proposed
decision, including its procedural history, statement of jurisdiction, findings of fact,
identification of issue, conclusions of law, remedy, proposed order and Notice, as the
decision of the Board itself as supplemented by a discussion of the District’s exceptions.”
On October 22, 2015, the District timely filed a “petition for a writ of
extraordinary relief” under section 3509.5, subdivision (b) from the Board’s decision.
5
This court granted the District leave to file an amended petition on October 28 (the
3
petition). Following full briefing by the parties, this court issued a writ of review.
REQUEST FOR JUDICIAL NOTICE
The District has filed a request that we take judicial notice of numerous
documents. As pointed out in the petition, the District had previously requested that the
administrative law judge and the Board each take judicial notice of the same documents,
which are all included in the administrative record before this court. The District’s
request was granted by both the administrative law judge and the Board. Given that all
the documents at issue were judicially noticed below and are in our record, we deny the
District’s request for judicial notice filed in this court as superfluous and moot.
DISCUSSION
I.
THE MMBA AND PERB
“The National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.)
governs collective bargaining in private sector employment. [Citations.] However, the
NLRA leaves states free to regulate labor relationships with their public employees.
[Citations.] [¶] Public employees in California do not have the right to bargain
collectively absent enabling legislation. [Citation.] Rather than fashion a single
overarching employment relations law, like the NLRA, our Legislature has passed
several different statutes covering specific categories of public employees. [Citation.] In
1968, the Legislature enacted the MMBA, authorizing collective bargaining for
3
The petition, like the District’s original petition, is unverified. Although
rule 8.498(a)(3) of the California Rules of Court requires that a petition to review an
order or decision of the Board must be verified, no party raises this issue in this appeal.
In any event, the parties have stipulated to the relevant underlying facts. We do not
further address the lack of verification.
6
employees of most local governments . . . . [Citation.] . . . ‘The MMBA imposes on local
public entities a duty to meet and confer in good faith with representatives of recognized
employee organizations, in order to reach binding agreements governing wages, hours,
and working conditions of the agencies’ employees. (Gov. Code, § 3505.)’ [Citation.]”
(County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56
Cal.4th 905, 915-916, fn. omitted (County of Los Angeles).)
“The MMBA is administered by PERB, a quasi-judicial administrative
agency modeled after the NLRB. [Citations.] . . . In 2000, the Legislature brought the
MMBA within PERB’s authority [citations], giving PERB exclusive initial jurisdiction
over complaints alleging unfair labor practices violating the MMBA. [Citations.]”
(County of Los Angeles, supra, 56 Cal.4th at p. 916.)
II.
JURISDICTION AND STANDARD OF REVIEW
PERB processes charges of unfair practices brought under the MMBA.
(§ 3509, subd. (b).) “Any charging party, respondent, or intervenor aggrieved by a final
decision or order of the board in an unfair practice case . . . may petition for a writ of
extraordinary relief from that decision or order.” (§ 3509.5, subd. (a).) The petition must
be filed in the Court of Appeal. (§ 3509.5, subd. (b).) “The court shall have jurisdiction
to . . . make and enter a decree enforcing, modifying, and enforcing as modified, or
setting aside in whole or in part the decision or order of the board. The findings of the
board with respect to questions of fact, including ultimate facts, if supported by
substantial evidence on the record considered as a whole, shall be conclusive.” (Ibid.)
“Courts generally defer to PERB’s construction of labor law provisions
within its jurisdiction. [Citations.] ‘. . . PERB is “one of those agencies presumably
equipped or informed by experience to deal with a specialized field of knowledge, whose
findings within that field carry the authority of an expertness which courts do not possess
7
and therefore must respect.” [Citation.]’ [Citation.] We follow PERB’s interpretation
unless it is clearly erroneous.” (County of Los Angeles, supra, 56 Cal.4th at p. 922; see
Banning Teachers Assn. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804
[“‘[T]he relationship of a reviewing court to an agency such as PERB, whose primary
responsibility is to determine the scope of the statutory duty to bargain and resolve
charges of unfair refusal to bargain, is generally one of deference’ [citation], and PERB’s
interpretation will generally be followed unless it is clearly erroneous.”].) “‘It is,
however, “the duty of this court, when . . . a question of law is properly presented, to state
the true meaning of the statute . . . even though this requires the overthrow of an earlier
erroneous administrative construction.”’” (Cumero v. Public Employment Relations Bd.
(1989) 49 Cal.3d 575, 587.)
III.
SECTION 3502.5 PERMITS THE ESTABLISHMENT OF AN AGENCY SHOP,
WHETHER BY NEGOTIATION BETWEEN THE PUBLIC AGENCY EMPLOYER
AND A RECOGNIZED EMPLOYEE ORGANIZATION, OR BY PETITION SIGNED
BY 30 PERCENT OF THE BARGAINING UNIT MEMBERS COMBINED WITH A
MAJORITY APPROVAL IN A SECRET BALLOT ELECTION.
“[A] public agency may enter into an ‘agency shop agreement’ with the
organization recognized as the employees’ exclusive or majority bargaining agent”
(County of Los Angeles, supra, 56 Cal.4th at p. 912), under section 3502.5,
subdivision (a), which provides: “Notwithstanding Section 3502, any other provision of
this chapter, or any other law, rule, or regulation, an agency shop agreement may be
negotiated between a public agency and a recognized public employee organization that
has been recognized as the exclusive or majority bargaining agent pursuant to reasonable
rules and regulations, ordinances, and enactments, in accordance with this chapter.”
Section 3502.5, subdivision (a) defines the term “‘agency shop’” as “an arrangement that
requires an employee, as a condition of continued employment, either to join the
8
recognized 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 the
organization.”
California law further provides that if negotiations between a public agency
employer and a recognized employee organization to establish an agency shop fail,
“public-sector employees in a bargaining unit may decide by majority vote to create an
‘agency shop’ arrangement under which all the employees are represented by a union
selected by the majority. [Citation.] While employees in the unit are not required to join
the union, they must nevertheless pay the union an annual fee to cover the cost of union
services related to collective bargaining.” (Knox v. Service Employees (2012) 567 U.S.
__, __ [132 S.Ct. 2277, 2284], citing section 3502.5 (Knox).)
Section 3502.5, subdivision (b) provides in part: “In addition to the
procedure prescribed in subdivision (a), an agency shop arrangement between the public
agency and a recognized employee organization that has been recognized as the exclusive
or majority bargaining agent shall be placed in effect, without a negotiated agreement,
upon (1) a signed petition of 30 percent of the employees in the applicable bargaining
unit requesting an agency shop agreement and an election to implement an agency fee
arrangement, and (2) the approval of a majority of employees who cast ballots and vote in
a secret ballot election in favor of the agency shop agreement. The petition may be filed
only after the recognized employee organization has requested the public agency to
negotiate on an agency shop arrangement and, beginning seven working days after the
public agency received this request, the two parties have had 30 calendar days to attempt
4
good faith negotiations in an effort to reach agreement.” (Italics added.)
4
Section 3502.5, subdivision (b) further states: “An election that may not be held more
frequently than once a year shall be conducted by the California State Mediation and
Conciliation Service in the event that the public agency and the recognized employee
organization cannot agree within 10 days from the filing of the petition to select jointly a
neutral person or entity to conduct the election. In the event of an agency fee
9
IV.
THE STIPULATED FACTS SHOW THE ASSOCIATION SATISFIED THE PROCEDURAL
REQUIREMENTS OF SECTION 3502.5, SUBDIVISION (b) TO REQUIRE THAT A SECRET
BALLOT ELECTION REGARDING THE ESTABLISHMENT OF AN AGENCY SHOP BE HELD.
The stipulated facts show that in May 2011, the Association proposed the
implementation of an agency shop (designed to apply only to new employees hired on or
after a certain future date), during negotiations for a successor MOU with the District.
The District rejected the Association’s proposal. In July 2012, the Association requested
that the MOU be reopened to implement the proposed agency shop arrangement. The
District rejected that proposal too. In November 2012, the Association served the District
and SMCS with a petition and request for an agency shop election.
The stipulated facts therefore show that the Association satisfied
section 3502.5, subdivision (b)’s requirements that it wait 30 days after its request of the
District to negotiate an agency shop arrangement before the Association filed its petition
to establish an agency shop and have an election held to accomplish that goal. The
stipulated facts also show the Association presented a petition signed by at least 30
percent of the employees in the applicable bargaining unit requesting an agency shop
agreement and an election to implement an agency fee arrangement. The District does
not contend otherwise.
Upon satisfaction of the procedural prerequisites of section 3502.5,
subdivision (b), unless they are otherwise excused or the parties enter into an agreement
about how the election would occur, PERB regulation No. 32999 (codified at California
Code of Regulations, title 8, section 32999) required the District to enter into a consent
arrangement outside of an agreement that is in effect, the recognized employee
organization shall indemnify and hold the public agency harmless against any liability
arising from a claim, demand, or other action relating to the public agency’s compliance
with the agency fee obligation.”
10
election agreement to direct the manner in which the agency shop election would be
conducted. That regulation provides: “(a) The provisions of this Article are applicable
whenever SMCS conducts representation and agency shop elections pursuant to the local
rules of an MMBA, Trial Court Act or Court Interpreter Act employer. [¶] (b) SMCS
shall conduct such elections only pursuant to a Consent Election Agreement entered into
[5]
by all parties and SMCS. The term ‘Consent Election Agreement’ means either an
agreement by the parties as to the time, place and manner of an election, or an agreement
by the parties that authorizes the election supervisor assigned by SMCS to determine the
time, place and manner of the election.” (Cal. Code Regs., tit. 8, § 32999.)
Here, the District indisputably refused to enter into a consent election
agreement or otherwise allow an agency shop election to occur. The District did so on
the ground that the proposed agency shop was unauthorized by statute because it applied
only to new employees hired on or after a future date and not to the entire bargaining
unit.
V.
SECTION 3502.5 PERMITS THE ESTABLISHMENT OF AGENCY SHOPS WITHOUT
SPECIFYING WHETHER AGENCY SHOPS MUST APPLY TO ALL CURRENT AND
FUTURE EMPLOYEES IN A BARGAINING UNIT.
The District contends it properly withheld consent from the petitioned-for
agency shop election because section 3502.5 does not permit an agency shop that applies
to anything less than the entire bargaining unit. The District’s appeal rests on the proper
interpretation of section 3502.5.
5
“‘Parties’ means the MMBA, Trial Court Act, or Court Interpreter Act employer, the
employee organization which is the exclusive representative of employees in the voting
unit, any employee organization eligible to appear on the ballot in a representation
election, or any group of employees which has filed a valid petition pursuant to local
rules of the employer.” (Cal. Code Regs., tit. 8, § 33001.)
11
In Martinez v. Combs (2010) 49 Cal.4th 35, 51, the California Supreme
Court stated: “‘[O]ur fundamental task in construing a statute is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute.’ [Citation.] In this search
for what the Legislature meant, ‘[t]he statutory language itself is the most reliable
indicator, so we start with the statute’s words, assigning them their usual and ordinary
meanings, and construing them in context. If the words themselves are not ambiguous,
we presume the Legislature meant what it said, and the statute’s plain meaning governs.
On the other hand, if the language allows more than one reasonable construction, we may
look to such aids as the legislative history of the measure and maxims of statutory
construction. In cases of uncertain meaning, we may also consider the consequences of a
particular interpretation, including its impact on public policy.’”
The unambiguous language of section 3502.5 does not support the
District’s position. The statute does not define the term “agency shop” in terms of
bargaining units, but as a condition placed on an individual employee. Section 3502.5,
subdivision (a) states that the term “‘agency shop’ means an arrangement that requires an
employee, as a condition of continued employment, either to join the recognized
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 the organization.”
(Italics added.) The term “bargaining unit” is not mentioned in that definition and there
is nothing in the statute that implies that an agency shop must apply uniformly to a
bargaining unit, or not at all.
The agency shop proposed by the Association is referred to as a “modified
agency shop” because it consists of an arrangement that requires certain employees, as a
condition of continued employment, to join the Association or pay the Association
certain fees. The term “modified agency shop” is not a term found in the code or in the
related regulations. That term appears to have developed in case law and in legislative
discussions to distinguish agency shops that apply to all members of a bargaining unit
12
from those that apply to fewer than all such members. (See 86 Ops.Cal.Atty.Gen. 169,
170 (2003) [“An agency shop provision that excludes employees hired before a specified
date is known as a ‘modified’ agency shop provision.”].)
The Association’s proposed agency shop, modified to apply only to
employees hired in the future, is an arrangement that requires an employee, as a condition
of continued employment, to either join the Association or pay the Association a service
fee. It therefore appears to fall squarely within the statutory definition of an agency shop,
and thus appears to be authorized by section 3502.5, subdivision (a).
Neither the California Supreme Court nor any appellate court has addressed
whether section 3502.5 authorizes an agency shop that applies to anything less than the
entire bargaining unit. In 2003, the California Attorney General, however, concluded that
section 3502.5 authorizes an agency shop that applies to fewer than all employees in the
bargaining unit. Applying the rules of statutory construction, the Attorney General
stated: “[W]e first note that a ‘modified’ agency shop provision comes within the terms
of section 3502.5, meeting the definition contained in subdivision (a) of ‘an arrangement
that requires an employee, as a condition of continued employment, either to join the
recognized employee organization, or to pay the organization a service fee . . . .’ (Italics
added.) Not all employees are required to join the union or pay a service fee under the
statute. For example, employees are to be excluded if they object to union membership
based upon religious grounds (§ 3502.5, subd. (c)) or if they are ‘management,
confidential, or supervisory employees’ (§ 3502.5, subd. (e)).” (86 Ops.Cal.Atty.Gen.,
supra, at p. 173.)
The Attorney General explained: “It is clear from the legislative history of
section 3502.5 that the employee election procedures of subdivision (b) were added to the
statute to deal with situations where the negotiated MOU procedures specified in
subdivision (a) proved to be unsuccessful. When section 3502.5 was amended in 2000
(Stats. 2000, ch. 901, § 3) to add subdivision (b), the purposes of the proposed legislation
13
were stated in the legislative committee reports as follows: [¶] ‘1. Some public agency
employers unfairly withhold or refuse agreement on agency fee arrangements despite a
significant interest demonstrated by employees. [¶] ‘2. The existing [statutory]
provisions are said to provide employers with an unfair veto authority over such
arrangements. [¶] ‘3. This bill provides employees with an alternative process to obtain
an agency fee agreement through a fair, democratic process.’ (Sen. Rules Com., Office
of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 739 (1999-2000 Reg. Sess.)
as amended May 13, 1999, p. 3.) [¶] It is only after the public agency and the union have
failed to reach an agreement that an employee election may be conducted by the Division
[6]
of Conciliation of the Department of Industrial Relations (‘Division’). (§ 3502.5,
subd. (b).) Accordingly, while the Legislature has indicated its preference for collective
bargaining, the employees of a public agency may nonetheless adopt unilaterally an
agency shop provision when the bargaining process has proved unsuccessful.” (86
Ops.Cal.Atty.Gen., supra, at pp. 173-174.)
We acknowledge the Attorney General’s opinion is not binding on this
court, but it is entitled to considerable weight. (Lexin v. Superior Court (2010) 47
Cal.4th 1050, 1087, fn. 17.) “‘Reliance on Attorney General opinions is particularly
appropriate where, as here, no clear case authority exists, and the factual context of the
opinions is closely parallel to that under review.’ [Citation.]” (County of Orange v.
6
“In July 2012, SMCS was administratively transferred from the Department of
Industrial Relations to become a division of PERB. The regulations specifically
authorizing SMCS to conduct consent elections for MMBA jurisdictions took effect in
October 2013. However, SMCS has been conducting elections in the public sector for
much of its history. (See Fecher, CPER Pocket Guide to Public Sector Mediation in
California (2012).)” (County of Fresno (2016) PERB Order No. Ad-433-M,
Administrative Determination (Oct. 19, 2015) p. 16, fn. 17, available at
<https://www.perb.ca.gov/decisionbank/pdfs/A433M.pdf> [as of Feb. 1, 2017].)
Section 3502.5, subdivision (b) was amended in 2012 to substitute “California State
Mediation and Conciliation Service” for “Division of Conciliation of the Department of
Industrial Relations.”
14
Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 36.) As
discussed ante, there is no case authority on this issue, and the 2003 opinion of the
California Attorney General addresses the precise issue presented here regarding whether
a modified agency shop is authorized by section 3502.5. We find the analysis in that
opinion persuasive in concluding section 3502.5 authorizes the modified agency shop
proposed by the Association in this case.
VI.
NEITHER CITY OF HAYWARD V. UNITED PUBLIC EMPLOYEES (1976) 54 CAL.APP.3D 761
NOR KNOX, SUPRA, 567 U.S. __ [132 S.CT. 2277], SUPPORTS THE DISTRICT’S
INTERPRETATION OF SECTION 3502.5.
In its opening brief, the District states: “The only MMBA case addressing
the meaning of an agency shop by a California Appellate Court is City of Hayward v.
United Public Employees, Local 390 (1976) 54 Cal.App.3d 761. In City of Hayward, the
Court defines an agency shop to apply to all employees and states in this regard as
follows: ‘In an agency shop, union membership is not a condition of employment, but all
employees, including those who do not choose to join the union, must pay union dues.’”
The District goes on to argue: “Section 3510(a) requires the Board to interpret and apply
the MMBA in a manner consistent with and in accordance with judicial interpretations of
the MMBA. . . . [¶] In spite of the clear reference in City of Hayward that an agency shop
applies to ‘all employees,’ the Board instead opines: ‘That full agency shop applies to
‘all’ bargaining unit employees does not mean that lesser forms of union or
organizational security, like modified agency shop, are unlawful.’ . . . Board’s conclusion
is contrary to the requirements of section 3510(a), to interpret and apply section 3502.5 in
a manner consistent with and in accordance with City of Hayward, supra.”
The District’s reliance on City of Hayward v. United Public Employees
(1976) 54 Cal.App.3d 761 (City of Hayward) is puzzling given that section 3502.5 was
15
not enacted until 1981—about five years after that court decision. Our research shows
that the term “agency shop” did not appear in the California codes until 1981. Obviously,
the appellate court’s decision in City of Hayward did not involve any interpretation of
section 3502.5, or any other statute. The appellate court does offer a statement of its
understanding of the definition of an agency shop, but does not cite any authority in
support of its definition. In the absence of section 3502.5 or any other statute regarding
agency shops, the appellate court in City of Hayward construed section 3502’s language
that “[p]ublic employees also shall have the right to refuse to join or participate in the
activities of employee organizations” as prohibiting agency shop agreements between
MMBA employers and public employee unions. (City of Hayward, supra, at
pp. 764-767; see Zerger et al., Cal. Public Sector Labor Relations (2016) Protected
Activity, § 15.12[4], fn. 54.)
The District also argues: “The United States Supreme Court also had the
occasion to interpret section 3502.5(a) in the very recent case of Knox v. Service
Employees International Union, Local 1000 (2012) __ U.S. __, 132 S.Ct. 2277 . . . . In
Knox, the court interprets section 3502.5(a) to apply to all employees . . . [¶] . . .
represented by a union.” Not true.
In Knox, supra, 567 U.S. at page __ [132 S.Ct. at page 2284], the sole issue
before the United States Supreme Court was “whether the First Amendment allows a
public-sector union to require objecting nonmembers to pay a special fee for the purpose
of financing the union’s political and ideological activities.” In the opinion, the court
provided the following background: “Under California law, public-sector employees in a
bargaining unit may decide by majority vote to create an ‘agency shop’ arrangement
under which all the employees are represented by a union selected by the majority. Cal.
Govt. Code Ann. § 3502.5(a) (West 2010). While employees in the unit are not required
to join the union, they must nevertheless pay the union an annual fee to cover the cost of
16
union services related to collective bargaining (so-called chargeable expenses).” (Id. at
p. __ [132 S.Ct. at p. 2284].)
The majority in Knox did not interpret section 3502.5. That statute is not
again referenced in the majority opinion. The opinion does not provide any details about
the nature of the agency shop mentioned in the case. The Supreme Court did not
reference modified agency shops. The Supreme Court’s above cited quote, stating that
public sector employees may decide by a majority vote to impose an agency shop
arrangement that applies to all employees, is consistent with our analysis. Quite simply,
just because an agreement may cover “all” employees does not mean an agreement
cannot cover “some” employees. Section 3502.5 permits the implementation of agency
shop arrangements that apply to all current employees as well as future employees. The
Supreme Court’s language does not support the District’s argument that a modified
agency shop is not permitted by that statute.
VII.
OUR INTERPRETATION OF SECTION 3502.5 AS AUTHORIZING THE MODIFIED AGENCY
SHOP PROPOSED BY THE ASSOCIATION IS NOT CONTRARY TO LEGISLATIVE INTENT.
The District argues that “modified agency shops support free riders which
is directly contrary to the primary purpose of agency shops.” (Capitalization, boldface, &
underscoring omitted.) Applying the rules of statutory interpretation as set forth by the
California Supreme Court in Martinez v. Combs, supra, 49 Cal.4th at page 51, we do not
need to review the legislative history of section 3502.5 and potential impact on public
policy because, for the reasons discussed ante, we conclude the statutory language of
section 3502.5 permits the modified agency shop proposed by the Association.
If we were, however, to conclude that “the language allows more than one
reasonable construction,” consideration of “the legislative history of the measure and
maxims of statutory construction” and, “[i]n cases of uncertain meaning,” the
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consequences of a particular interpretation, including its impact on public policy would
not change our conclusion. (Martinez v. Combs, supra, 49 Cal.4th at p. 51.) The District
is correct that courts have stated the primary purpose of implementing an agency shop or
similar arrangement is to prevent “free riders.”
In the seminal case of Abood v. Detroit Board of Education (1977) 431
U.S. 209, 221-222 (Abood), the United States Supreme Court explained the primary
purpose of a union shop as follows: “The designation of a union as exclusive
representative carries with it great responsibilities. The tasks of negotiating and
administering a collective-bargaining agreement and representing the interests of
employees in settling disputes and processing grievances are continuing and difficult
ones. They often entail expenditure of much time and money. [Citation.] The services
of lawyers, expert negotiators, economists, and a research staff, as well as general
administrative personnel, may be required. Moreover, in carrying out these duties, the
union is obliged ‘fairly and equitably to represent all employees . . . , union and
nonunion,’ within the relevant unit. [Citation.] A unionshop arrangement has been
thought to distribute fairly the cost of these activities among those who benefit, and it
counteracts the incentive that employees might otherwise have to become ‘free riders’—
to refuse to contribute to the union while obtaining benefits of union representation that
necessarily accrue to all employees. [Citations.]” (Fn. omitted.)
In Knox, supra, 567 U.S. at page __ [132 S.Ct. at page 2289], the United
States Supreme Court acknowledged: “‘The primary purpose’ of permitting unions to
collect fees from nonmembers, we have said, is ‘to prevent nonmembers from free-riding
on the union’s efforts, sharing the employment benefits obtained by the union’s collective
bargaining without sharing the costs incurred.’”
The modified agency shop proposed by the Association does not conflict
with the primary purpose described ante. By implementing such a modified agency shop,
the number of so-called “free riders,” who are not union members but enjoy the benefit of
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union representation by belonging to a bargaining unit, is reduced. Although the
modified agency shop arrangement does not apply to current employees, it applies to all
new employees hired on or after a certain date. Through attrition and new hires, the
number of free riders would continue to decrease in number. Although an agency shop
arrangement that applied to all current and future members of a bargaining unit would
instantly eliminate the free rider element, nothing in section 3502.5 suggests that type of
arrangement is the only one permitted.
Although the record contains a significant amount of legislative history
relating to section 3502.5, the District does not cite any portion of it, which reflects a
specific legislative intent to limit agency shops to those that apply to all current and
future members of a bargaining unit. If the Legislature wished to define an agency shop
to exclude the type proposed by the Association, it could have done so.
VIII.
OUR INTERPRETATION OF SECTION 3502.5 DOES NOT RENDER SUBDIVISION (d) OF
SECTION 3502.5 MEANINGLESS.
The District argues, “a modified agency shop applying only to future
employees renders virtually meaningless the rescission election provisions of
[section 3502.5, ]sub[division] (d).” (Capitalization, boldface, & underscoring omitted.)
Subdivision (d) of section 3502.5 provides: “An agency shop provision in a
memorandum of understanding that is in effect may be rescinded by a majority vote of all
the employees in the unit covered by the memorandum of understanding, provided that:
(1) a request for that type of vote is supported by a petition containing the signatures of at
least 30 percent of the employees in the unit, (2) the vote is by secret ballot, and (3) the
vote may be taken at any time during the term of the memorandum of understanding, but
in no event shall there be more than one vote taken during that term. Notwithstanding the
above, the public agency and the recognized employee organization may negotiate, and
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by mutual agreement provide for, an alternative procedure or procedures regarding a vote
on an agency shop agreement. The procedures in this subdivision are also applicable to
an agency shop agreement placed in effect pursuant to subdivision (b).”
The District’s argument continues: “An agency shop that has been created
by a majority vote of the existing employees that only applies to new employees hired
after a certain date, cannot be realistically rescinded by the new employees pursuant to
sub[division] (d). The rescission of the agency shop requires a majority vote of all the
employees in the unit. Thus, the modified agency shop for only new employees
effectively disenfranchises newly-hired employees from having the ability to rescind the
agency shop arrangement. Such an arrangement is contrary to the right of public
employees to refuse to join or participate in the activities of employee organizations
pursuant to section 3502.”
Our interpretation of section 3502.5, as authorizing the type of agency shop
proposed by the Association, does not preclude an election rescinding the agency shop
arrangement under section 3502.5, subdivision (d). Nor does our interpretation of
section 3502.5 render it unrealistic, much less impossible, to secure a majority vote of all
the employees in the unit to rescind such an arrangement. Concluding the proposed
agency shop is statutorily authorized does not render subdivision (d) of section 3502.5
meaningless.
IX.
THE AGENCY SHOP ARRANGEMENT HAS WITHSTOOD CONSTITUTIONAL SCRUTINY.
The District argues the Board erroneously concluded “that a modified
agency shop raises no First Amendment concerns.” (Boldface, underscoring, & some
capitalization omitted.) The United States Supreme Court has repeatedly expressed
concern that the implementation of agency shops in general raises First Amendment
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issues. However, the United States Supreme Court has not held that an agency shop, in
and of itself, is unconstitutional.
In Abood, supra, 431 U.S. at page 234, the United States Supreme Court
held that nonunion public employees have a First Amendment right to prevent a union
from spending a part of their compulsory service fees on contributions to political
candidates or on “express[ions of ] political views unrelated to [the union’s] duties as
exclusive bargaining representative.” In Abood, the United States Supreme Court stated:
“To compel employees financially to support their collective-bargaining representative
has an impact upon their First Amendment interests. An employee may very well have
ideological objections to a wide variety of activities undertaken by the union in its role as
exclusive representative. His moral or religious views about the desirability of abortion
may not square with the union’s policy in negotiating a medical benefits plan. One
individual might disagree with a union policy of negotiating limits on the right to strike,
believing that to be the road to serfdom for the working class, while another might have
economic or political objections to unionism itself. An employee might object to the
union’s wage policy because it violates guidelines designed to limit inflation, or might
object to the union’s seeking a clause in the collective-bargaining agreement proscribing
racial discrimination. The examples could be multiplied. To be required to help finance
the union as a collective-bargaining agent might well be thought, therefore, to interfere in
some way with an employee’s freedom to associate for the advancement of ideas, or to
refrain from doing so, as he sees fit. But the judgment clearly made in [Railway
Employees’ Dept. v. ]Hanson[ (1956) 351 U.S. 225] and [Machinists v. ]Street[ (1961)
367 U.S. 740] is that such interference as exists is constitutionally justified by the
legislative assessment of the important contribution of the union shop to the system of
labor relations established by Congress. ‘The furtherance of the common cause leaves
some leeway for the leadership of the group. As long as they act to promote the cause
which justified bringing the group together, the individual cannot withdraw his financial
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support merely because he disagrees with the group’s strategy. If that were allowed, we
would be reversing the Hanson case, sub silentio.’” (Id. at pp. 222-223, fn. omitted.)
In Teachers v. Hudson (1986) 475 U.S. 292, 302-303, the United States
Supreme Court considered the “[p]rocedural safeguards” necessary to implement Abood,
stating: “First, although the government interest in labor peace is strong enough to
support an ‘agency shop’ notwithstanding its limited infringement on nonunion
employees’ constitutional rights, the fact that those rights are protected by the First
Amendment requires that the procedure be carefully tailored to minimize the
infringement. Second, the nonunion employee—the individual whose First Amendment
rights are being affected—must have a fair opportunity to identify the impact of the
governmental action on his interests and to assert a meritorious First Amendment claim.”
(Fns. omitted.)
In Knox, supra, 567 U.S. at page __ [132 S.Ct. at page 2289], the United
Supreme Court stated: “When a State establishes an ‘agency shop’ that exacts
compulsory union fees as a condition of public employment, ‘[t]he dissenting employee
is forced to support financially an organization with whose principles and demands he
may disagree.’ [Citation.] Because a public-sector union takes many positions during
collective bargaining that have powerful political and civic consequences . . . , the
compulsory fees constitute a form of compelled speech and association that imposes a
‘significant impingement on First Amendment rights.’ [Citation.] Our cases to date
have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s
former cases have given adequate recognition to the critical First Amendment rights at
stake.” (Italics added.)
In Harris v. Quinn (2014) 573 U.S. __, __ [134 S.Ct. 2618, 2623], the
majority refused to extend Abood and held that the First Amendment to the United States
Constitution does not permit a state to compel personal care providers to subsidize speech
on matters of public concern by a union that they do not wish to join or support.
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Although the United States Supreme Court has expressed great concern
over how compulsory union fees in the agency shop context might support ideological
causes that would impinge upon an employee’s First Amendment rights, the court has not
found the fact of an agency shop arrangement, modified or otherwise, in and of itself,
unconstitutional. Our case concerns whether the District wrongfully withheld its consent
to the holding of an election for a modified agency shop. This case does not and has not
raised issues or developed a record regarding how the Association might spend fees
collected from nonunion members if a majority voted in favor of the proposed agency
shop and whether any such spending decision might trigger the First Amendment
concerns addressed ante.
DISPOSITION
The petition is denied. The Association is awarded its costs on appeal.
(Cal. Rules of Court, rule 8.493(a)(1)(B).)
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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