The opinion
PUGLIA, P. J.
I dissent.
Appellants’ first two causes of action clearly raise issues within the jurisdiction of PERB pursuant to that Board’s statutory duty “To investigate ... alleged violations of this chapter.” (Gov. Code, § 3541.3, subd. (i).)
The latter three causes of action of appellants’ complaint tender issues which are not within the competence of PERB to decide. In those three causes of action appellants claim their federal and state constitutional rights are violated by the forced extraction of a representation fee in excess of the amount required to conduct collective bargaining and to administer the contract of employment, and the use of the excess for purposes hostile to their interests and beyond their control. (See Abood v. Detroit Board of Education (1977) 431 U.S. 209 [ 52 L.Ed.2d 261 , 97 S.Ct. 1782 ].)
Extraction of a representation fee from nonmembers of an employee organization is expressly authorized by the EERA (Gov. Code, §§ 3543.2 and 3546) which allows such fees “in an amount not to exceed the standard initiation fee, periodic dues, and general assessments of such [employee] organization ...” (Gov. Code, § 3540.1, subd. (i)(2)). The statute contains no other limitation on the amount of such fees and no restrictions on their use. The fees in question here do not exceed the amount authorized by the statute. Since the fees in issue are clearly authorized by statute both in their nature and amount, the challenge thereto does not raise an issue of violation of the EERA; for the same reason, the challenge cannot be said, even arguably, to involve a charge of unfair practices (see Gov. Code, §§ 3541.3, subd. (i); 3543.5; 3543.6). The statute does not confer jurisdiction on PERB to determine appellants’ constitutional claims. Moreover those claims involve a direct attack on the constitutionality of the statute. By the very nature of such a claim, PERB is incompetent to entertain it. (Cal. Const., art. Ill, § 3.5.)
*55 The first cause of action alleges that two of the three groups (CTA and NBA), which together constitute the “employee organization” to which representation fees are paid, do not have as one of their “primary purposes” the representation of employees in relations with their employer; because of this deficiency, neither qualifies as an “employee organization” within Government Code sections 3540.1, subdivision (i) and 3540.1, subdivision (i)(2). No such claim is made with respect to WEA, the third constituent of the contracting “employee organization.”
The second cause of action alleges that the three component organizations of the association representing the employees of Washington Unified School District in fact constitute three separate “employee organizations,” and the contract in requiring payment of a representation fee to more than one such organization violates Government Code sections 3540.1, subdivision (d) and 3540.1, subdivision (i)(2), 3543.2 and 3546.
It is apparent from the first two causes of action that even if appellants’ position were administratively vindicated, it is unlikely that their constitutional claims would thereby be resolved. The status of WEA as a legitimate employee organization is not questioned nor is there a challenge to the right of at least one of the three components of the association contracting for the employees to receive a representation fee. If appellants were to prevail in administrative proceedings on the issues posed by the first two causes of action, they would still be subject to payment to WEA of a representation fee in excess of the amount required to conduct collective bargaining and administer the contract. A fee in that amount is expressly authorized by statute (Gov. Code, § 3540.1, subd. (i)(2)) but constitutionally suspect (Abood v. Detroit Board of Education, supra).
Inability of PERB" to afford appellants relief on their constitutional claims creates an exception to the usual requirement that administrative remedies first be exhausted. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 7 [ 154 Cal.Rptr. 893 , 593 P.2d 838 ]; see generally, 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 182, pp. 1046, 1047.) The constitutional issue forms the gravamen of appellants’ complaint. Administrative determination of the incidental claims under the statute will not resolve the constitutional issue. Therefore deferral of the constitutional claims until PERB has resolved the statutory questions serves no legitimate purpose. The interests of justice are not served by requiring appellants’ complaint of violation of their constitu *56 tional rights to languish indefinitely as an inert appendage to incidental administrative proceedings before it can be heard and decided in the only forum in which appellants can receive relief.
I would reverse the judgment with instructions to the trial court to overrule respondents’ demurrer.
A petition for a rehearing was denied October 27, 1981, and appellants’ petition for a hearing by the Supreme Court was denied December 23, 1981.