Cumero v. Public Employment Relations Board

ARGUELLES, J., * Dissenting.

Unlike Justice Mosk, I do not think that Government Code section 3540, *

1 the introductory provision of the Educa-

*611 tional Employment Relations Act (EERA), may properly be interpreted to incorporate into EERA a subsequently enacted provision of the State Employer-Employee Relations Act (SEERA), section 3515.8. On that point, I agree with the majority opinion that, in context, the relevant portion of section 3540 “appears to be an explanation of the Legislature’s plans for future legislation” (maj. opn., ante, p. 598), rather than a self-executing provision which automatically amends EERA any time any provision governing employer-employee relations of other public employees is subsequently enacted.

Nonetheless, I agree completely with Justice Mosk’s conclusion that the majority opinion is in error in interpreting the relevant provisions of EERA to preclude a union which has been certified as an exclusive representative from using service fees collected from nonunion members for lobbying on legislative measures directly related to the working conditions of the employees it represents. The language of the specific provision of EERA which is addressed to the “free rider” problem—section 3540.1, subdivision (i)(2) 2 —contains no hint that an exclusive representative’s use of such funds was intended to be limited in such a fashion, and because nonunion members, as well as union members, will reap the benefits of the union’s lobbying efforts *612 with regard to employment-related legislation, the overall purpose of the legislative provision supports the use of service fees for such efforts. Even a cursory review of California’s extensive Education Code demonstrates the extent to which public school employees’ working conditions are governed or affected by specific legislation, and thus it appears particularly anomalous to read into EERA a limitation that exempts nonunion public school employees from paying their fair share of lobbying efforts conducted by their exclusive representative on their behalf.

The majority opinion reaches a contrary conclusion as a matter of statutory interpretation, but it points to nothing in the statutory language or legislative history of EERA to suggest that the Legislature intended to limit an exclusive representative’s use of service fees in the manner prescribed by its opinion. While the majority opinion (see maj. opn., ante, pp. 586-587) purports to give “deference” to the interpretation of the legislation by the Public Employment Relations Board (PERB), the expert administrative agency charged with the administration of this statute, in the end the majority opinion squarely rejects PERB’s application of the statute with regard to lobbying expenses on employment-related measures.

In my view, the majority’s rejection of PERB’s application of the statute with respect to lobbying expenses is unwarranted, and does not accurately reflect the Legislature’s intent with respect to the use of service fees for such activities. Indeed, I believe the legislative history of section 3515.8, the provision of SEERA briefly referred to above, reveals quite clearly that the majority’s interpretation of EERA is contrary to the legislative design.

PERB issued its decision in this case on March 3, 1982, interpreting the relevant provisions of EERA as authorizing a union to charge nonunion members for the expenses of lobbying, and of ballot proposition campaigns, for or against measures affecting public school employees’ interests with respect to matters of employer-employee relations. (Cumero v. King City High School District Association, CTA/NEA et al. (Mar. 3, 1982) PERB Dec. No. 197, at pp. 14-17, 35 [6 PERC ¶ 13065, at pp. 231-232, 235].) Less than three weeks later, on March 22, 1982, a bill proposing changes in SEERA which was then pending in the Senate was amended to add a new provision, section 3515.8, which provided: “Any state employee who pays a fair share fee shall have the right to demand and receive from the recognized employee organization ... a return of any part of that fee . . . which represents the employee’s additional pro rata share of expenditures by the recognized employee organization 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 costs of any other benefits available only to members of the recognized employee organization. The pro rata share subject to refund shall not reflect, however, the *613 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.” (Sen. Bill No. 1419 (1981-1982 Reg. Sess.) § 5, as amended Mar. 22, 1982.) (Italics added.) As amended, the bill was enacted into law. (Stats. 1982, ch. 1572, § 5, p. 6200.) By adopting section 3515.8 in this form, the Legislature specifically extended to exclusive representatives governed by SEERA the same rights which PERB had concluded that EERA gave to exclusive representatives in the public school sector.

The majority opinion suggests that because the Legislature did not add the same language to EERA that it added to SEERA in section 3515.8, EERA cannot properly be interpreted as granting such rights to the exclusive representatives governed by EERA. With all respect, I believe that in light of the legislative history of section 3515.8, the majority’s position belies reality. The timing of the enactment of section 3515.8 indicates quite plainly that the unions which represent state employees wanted to be assured that they would be operating under the same ground rules which PERB had concluded that EERA provided for the unions governed by that act. Although the majority opinion posits some reasons which might theoretically have motivated the Legislature to create different rules for EERA and SEERA (see maj. opn., ante, pp. 596-598), the opinion fails to point to anything in the legislative history of the SEERA amendment to indicate that the Legislature actually had any such intent when it enacted the provision. Furthermore, the portion of section 3540 on which Justice Mosk’s dissent relies (quoted at fn. 1, ante)—even if not self-executing—plainly demonstrates that in the public labor relations arena the Legislature has pursued a general policy of according equal treatment to the labor organizations that operate under each of the statewide public employment labor relations acts. Viewing all of the related statutory provisions in realistic terms, I cannot agree with the majority’s conclusion that the Legislature has consciously chosen to provide different anti-free-rider protection to unions under EERA than that accorded unions under SEERA.

Finally, the majority opinion fails to persuasively distinguish the recent out-of-state decisions which have uniformly concluded that a public school union’s lobbying expenses with respect to employment-related legislation may properly be charged to nonunion employees. (See Abels v. Monroe County Educ. Ass’n (Ind.Ct.App. 1986) 489 N.E.2d 533, 540-542 , cert. den. (1987) 480 U.S. 905 [ 94 L.Ed.2d 518 , 107 S.Ct. 1347 ]; Lehnert v. Ferris Faculty Association-MEA-NEA (W.D. Mich. 1986) 643 F.Supp. 1306, 1323-1324 [interpreting Mich, statute]; Matter of Board of Educ. of Town of Boonton (1985) 99 NJ. 523 [ 494 A.2d 279, 290-292 ], cert. den. (1986) 475 *614 U.S. 1072 [ 89 L.Ed.2d 613 , 106 S.Ct. 1388 ]; see also Robinson v. State of New Jersey (3d Cir. 1984) 741 F.2d 598, 604-610 , cert. den. (1985) 469 U.S. 1228 [ 84 L.Ed.2d 366 , 105 S.Ct. 1228 ]; Champion v. State of Cal. (9th Cir. 1984) 738 F.2d 1082, 1086 , cert. den. (1985) 469 U.S. 1229 [ 84 L.Ed.2d 367 , 105 S.Ct. 1230 ].) Although one of the out-of-state decisions involved a statute that explicitly authorized an assessment for lobbying related to the collective bargaining process (see Boonton, supra, 494 A.2d at p. 282 ), a number of the decisions dealt with statutes—like EERA—that contained no specific provision directed at employment-related lobbying (see Abels, supra, 489 N.E.2d at pp. 541-542; Lehnert, supra, 643 F.Supp. at p. 1324 ) and nonetheless concluded that the assessment of such expenses was proper. In my view, there is nothing in the language or legislative history of EERA to suggest that the California Legislature intended to provide public school unions in this state with less protection from the free-rider problem than has been accorded to such unions under similar labor relations legislation in other states.

Accordingly, I respectfully dissent from the majority opinion to the extent it interprets EERA to preclude an exclusive representative from using service fees collected from nonunion members for lobbying activities on employment-related measures.

Broussard, J., concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.

Section 3540 provides in full: “It is the purpose of this chapter to promote the improvement of personnel management and employer-employee relations within the public school systems in the State of California by providing a uniform basis for recognizing the right of *611 public school employees to join organizations of their own choice, to be represented by the organizations in their professional and employment relationships with public school employers, to select one employee organization as the exclusive representative of the employees in an appropriate unit, and to afford certificated employees a voice in the formulation of educational policy. This chapter shall not supersede other provisions of the Education Code and the rules and regulations of public school employers which establish and regulate tenure or a merit or civil service system or which provide for other methods of administering employer-employee relations, so long as the rules and regulations or other methods of the public school employer do not conflict with lawful collective agreements.

“It is the further intention of the Legislature that this chapter shall not restrict, limit, or prohibit the full exercise of the functions of any academic senate or faculty council established by a school district in a community college to represent the faculty in making recommendations to the administration and governing board of the school district with respect to district policies on academic and professional matters, so long as the exercise of the functions does not conflict with lawful collective agreements.

“It is the further intention of the Legislature that any legislation enacted by the Legislature governing employer-employee relations of other public employees shall be incorporated into this chapter to the extent possible. The Legislature also finds and declares that it is an advantageous and desirable state policy to expand the jurisdiction of the board created pursuant to this chapter to cover other public employers and their employees, in the event that this legislation is enacted, and if this policy is carried out, the name of the Educational Employment Relations Board shall be changed to the ‘Public Employment Relations Board.’ ” (Italics added.)

Unless otherwise noted, all further section references are to the Government Code.

Section 3540.1, subdivision (i) provides in part: “‘Organizational security’means . . . [¶] “(2) An arrangement that requires an employee, as a condition of continued employment, either to join the recognized 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 the organization for the duration of the agreement, or a period of three years from the effective date of the agreement, whichever comes first.” (Italics added.)