# Cumero v. Public Employment Relations Board

> California Supreme Court · September 7, 1989 · 49 Cal. 3d 575

URL: https://www.frixlaw.com/law-library/cases/9855538

## Case

- **Full name:** WILLIAM J. CUMERO, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; KING CITY HIGH SCHOOL DISTRICT ASSOCIATION, CTA/NEA Et Al., Real Parties in Interest
- **Court:** California Supreme Court
- **Decided:** September 7, 1989
- **Citations:** 49 Cal. 3d 575; 262 Cal. Rptr. 46; 778 P.2d 174; 132 L.R.R.M. (BNA) 2575; 1989 Cal. LEXIS 1603
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Kaufman, Mosk, Arguelles
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855538

## How later opinions describe it (automated extraction)

- noting that despite broad powers conferred by sections 35160 and 35160.1, "the local districts are denied control over many aspects of teachers' terms of employment by detailed provisions in the Education Code governing such matters"
- noting "broad" powers conferred under § 35160 subject only to statutory preemption
- noting the inherent "close organizational relationship"

## Opinion text

MOSK, J.
I dissent. I disagree with the majority’s conclusion that the Educational Employment Relations Act (EERA; Gov. Code, § 3540 et seq.) 1 prohibits service fees paid by nonunion members from being used for lobbying and electioneering unless the employer invites the union to participate in promoting public support for a measure. This somewhat odd result is, in my view, both unprecedented and erroneous. The EERA does not justify it; indeed, its provisions are to the contrary.
First, I disagree with the majority’s conclusion that the EERA does not incorporate section 3515.8 of the State Employer-Employee Relations Act (SEERA) which authorizes the use of nonmember fees to support certain lobbying activities by the union. (Maj. opn., ante, at p. 598 et seq.) Section 3540 of the EERA provides that legislation governing employer-employee relations “of other public employees” (i.e., other than school employees) must be incorporated into the EERA “to the extent possible.” The majority refuse to follow this statutory direction for incorporation on the ground that the SEERA applies to state employees rather than school employees. But this reasoning is obviously flawed. The EERA expressly provides for the incorporation of provisions that do not relate to school employees, so long as they cover public employees. In order to resist incorporation, the *608 majority must demonstrate that state employees are not public employees, or that it is impossible to incorporate the provisions of section 3515.8 into the EERA. This the majority do not even attempt to do. 2
Even less justified is the holding of the majority that the incorporation by reference of the SEERA provision in the EERA would violate the constitutional prohibition against amendment of a statute without reenactment as amended. (Cal. Const., art. IV, § 9.) It is settled that incorporation of another statute by reference does not amount to an amendment within the meaning of the constitutional provision. (Sutherland, Statutory Construction (1985 rev.), § 22.25, p. 245.) If the majority are correct, then the large number of statutes which incorporate others by reference would also be unconstitutional.
Furthermore, the majority make the unjustified assumption that incorporation of the SEERA provision would amount to amendment of the EERA. There is no provision of the EERA which states that nonmember contributions cannot be used for lobbying. This is just an inference which the majority draw in the process of balancing certain provisions of the EERA against one another. California Constitution Article IV, section 9, was not intended to apply to such a situation. Its purpose is “ ‘to avoid the confusion which almost always results when amendments are attempted by way of directing the insertion, omission or substitution of certain words, or by adding a provision, without setting out the entire context of the section to be amended.’ ” (Scott A. v. Superior Court (1972) 27 Cal.App.3d 292, 295 [ 89 L.Ed.2d 232 , 106 S.Ct. 1066 ].) The constitutional provision does not apply to “self-sufficient and complete legislative pronouncements, even if they might be said to ‘amend’ other earlier acts by implication.” (Glendale Unified School Dist. v. Vista del Rossmoyne Co. (1965) 232 Cal.App.2d 493, 498 [ 42 Cal.Rptr. 899 ].) The Scott case, on which the majority rely, involved the first situation. The incorporation commanded by section 3540 involves the second. It does not insert, omit, or substitute any words to an existing statute; it is a complete legislative pronouncement. Therefore, by requiring incorporation of the provisions of the SEERA insofar as possible, the Legislature cannot be said to have amended the EERA.
In addition, the majority, in my view, take far too narrow a view of the functions of a labor union as the collective bargaining representative of the employees. As I understand it, they reason as follows: A balance must be
*609 made between the provision of the EERA that a nonunion member may refuse to join or participate in union activities (§ 3543) and the provision authorizing organizational security arrangements (§§ 3540.1, subd. (i)(2), 3546). In order to achieve this balance, the fees of a nonmember may be used only to support those activities that the union is required to undertake pursuant to its representational obligations as defined by the EERA. Since the obligation of the union under the act is only to meet and confer with the employer as to the terms and conditions of employment (§ 3540.1, subd. (h)), the union is entitled to use a nonmember’s fees only for the purpose of fulfilling this duty. However, because the act also allows the employer to “consult” on educational objectives to the extent such matters are within the employer’s discretion, if the employer invites the union’s participation, the union may also use nonmember fees for the purpose of fulfilling this consultation function. In addition, if the employer seeks the union’s help in bringing about political change that would affect the employer’s resources within the scope of representation, then the union may use nonmember fees to promote community support for the proposal because its cost of providing such assistance may be “sufficiently related to its representational obligations to be chargeable to the nonmembers.” (Maj. opn., ante, p. 594.)
But nothing in the EERA restricts use of a nonmember’s fees for political activities or justifies restrictions on the use of such fees to activities which the union is required to conduct under the act. The majority infer such a restriction from the provision allowing an employee to refuse to join the union, but they do not explain why the balance between nonmembers’ rights and a union’s obligations under the act justifies this restriction. In my view, the nonmembers’ rights are sufficiently vindicated by preventing their contributions from being used for political activities not related to the welfare of school employees.
But even if the majority’s premise that nonmember fees may be used only to defray the cost of activities required of the union under the EERA were correct, I disagree with the conclusion they draw from that premise, i.e., that such fees may not be used to cover the cost of advocating measures of benefit to school employees unless the union’s participation is invited by the employer and the matter is within the scope of representation.
The majority take an unjustifiably narrow view of a union’s representational obligations. The primary reason for requiring a nonmember to contribute to the cost of a union’s activities is to avoid giving him a “free ride.” That is, to obtain the benefits of the union’s participation as exclusive bargaining agent without paying his fair share of the costs incurred in carrying out this function. (Ellis v. Railway Clerks (1984) 466 U.S. 435, 446 [ 80 L.Ed.2d 428, 441 , 104 S.Ct. 1883 ].) The restrictions imposed by the majority do not give adequate recognition to this purpose. For example, if *610 the union were to advocate more advantageous rules relating to dismissal of teachers—a subject over which it may not bargain under the EERA (§ 3540; Ed. Code, § 44932 et seq.), and a matter as to which the employer cannot realistically be expected to invite the union’s assistance—why should not the nonmember employee be required to contribute to such an effort which, if successful, would clearly benefit him?
Furthermore, although Ellis recognizes that the appropriate test applicable to the use of a nonmember’s fee is whether he should be required to contribute to the cost of the union’s performance of its “function of exclusive bargaining agent” ( 466 U.S. 435, 446 [ 80 L.Ed.2d 428, 441 ]), and this is the same test employed by the majority here, the United States Supreme Court takes a broader view of the scope of such activities than do the majority. Ellis holds that a nonmember must contribute his fair share not only for the cost of negotiating and administering a collective bargaining agreement and of settling disputes, but also for activities “normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative. . . .” (Id. at p. 448 [ 80 L.Ed.2d at p. 442 ].) The high court concludes that a nonmember’s dues may be used to support the cost of holding a union’s national convention, to print and distribute its monthly magazine, and to purchase refreshments for union meetings and social functions.
It seems clear that if a nonmember’s fees may be used to fund these activities on the ground that they are reasonably related to the union’s function as exclusive bargaining agent, the use of the fees to advocate benefits for all school employees also meets this test. Thus, in the context of the “free ride” rule, which is the underlying justification for the use of nonmember contributions by a union, the fact that the union under the EERA may not directly negotiate with the employer regarding a particular benefit and is not invited by the employer to promote a measure relating to its representational obligations should not prevent it from using nonmember fees to promote political activities on behalf of school employees.
I would hold that a nonmember’s contributions may be used to pay for the cost of lobbying and ballot proposition campaigns so long as those activities have as their goal the promotion of the welfare of school employees.
All statutory references are to the Government Code unless otherwise noted.
The fact that section 3513, subdivison (c), of the SEERA defines the term “state employee” to exclude school employees is irrelevant to the incorporation issue not only because the EERA provides for the incorporation of provisions relating to public employees other than nonschool employees but also because the definitions stated in section 3513 are only for the purposes of applying the SEERA, not the EERA. The introduction to the section states that the provisions of the section are for the purposes of defining the terms as “used in this chapter.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855538. Public record. Not legal advice.