Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

No. 16-1466

3n The

Supreme Court of the Anited States

MARK JANUS,

Petitioner,

V.

AMERICAN FEDERATION OF STATE, COUNTY,

AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL..,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

°

BRIEF OF AMICI CURIAE CHABOT LAS-POSITAS

FACULTY ASSOCIATION, COLLEGE OF

THE REDWOODS FACULTY ORGANIZATION,

UNITED FACULTY OF CONTRA COSTA,

FOOTHILL-DE ANZA FACULTY ASSOCIATION,

SANTA MONICA FACULTY ASSOCIATION,

ALL FACULTY ASSOCIATION OF SANTA ROSA

JUNIOR COLLEGE, YOSEMITE FACULTY

ASSOCIATION, AND CALIFORNIA COMMUNITY

COLLEGES INDEPENDENT ORGANIZATION,

IN SUPPORT OF RESPONDENTS

°

ROBERT J. BEZEMEK

LAW OFFICES OF ROBERT J. BEZEMEK, P.C.

1611 Telegraph Ave., Suite 936

Oakland, CA 94612

Telephone: (510) 763-5690

rjbezemek@bezemeklaw.com

Counsel for Amici Curiae

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF AMICI

AACE ae el Ae ee 1

INTRODUCTION AND SUMMARY OF

SESE I, EMR MNES SO a Ie ar 3

PE EEE eee ee ee ae ae 4

I. California’s Shared Governance Process

Will be Severely Damaged, to the Disad-

vantage of Union Members, Fee Payers,

Colleges, Students and the Public if Abood

de hctntintethentnlatatntiludeiacinidenndanesen

A. The Labor Relations Structure of the

California Community Colleges ..........

A

2.

The Collective Bargaining Law for

Community Colleges.......................

The PERB Regulates the Agency Fee

PEs thcnevenindaatiesscncistsadiiscaditaencuenas

California Has Created a Generalized

Code of Workplace Governance.........

. Comprehensive Collective Agree-

ments Demonstrate that the EERA

created a New Governance Struc-

ture of which Agency Fees are

een

B. The Enormous Variety of Union Activ-

ities Funded by Member Dues and

Agency Fees in California ...................

1,

2.

Collective Bargaining Negotiations ....

Contract Enforcement ....................

10

12

14

16

16

19

il

TABLE OF CONTENTS — Continued

Page

3. Contract and Union Administra-

at REE Sis eo NO ee

5. Other Representational Activities,

Including Litigation........................

C. Receipt of Agency Fees is Essential to

Any Union, Especially Unions as Small

a cceihialinidanhicisiartie tn sundenminneaclitiaissioniaisle

1. The Pedestrian Reasons Some Unit

Members Elect to be Fee Payers.....

2. Many Part-time Faculty Have Non-

Ideological Reasons for Not Joining

Ret tadnciisinnpusshstncsiencinenteiieselegeanee

Il. The Absence of an Empirical Record Re-

quires that the Court Rule Against the Pe-

Se itiicctacdbthdahicineindicablaaaninisnidaaitamaciadialigaducins

Mites chacsiniesicinnpibibiiistaicasteclnnldavcnianteinate

21

22

24

27

28

28

ill

TABLE OF AUTHORITIES

Page

CASES

Abood v. Detroit Board of Education, 431 U.S.

SENET iikcsinsccnstiniianieabedils comsubnidabiseaeieesiuentied passim

Abraham v. Sims, 2 Cal. 2d 698 (1935)................00008 30

Adock v. Board of Education, 10 Cal.App.3d 60

Gieeeiecdhidnelninnsanlchocendinicabintanedetndnedsiasalanidsledibtiaeiaghiutianied 26

Anderson v. San Mateo County Community Col-

lege District, 87 Cal.App.3d 441 (1978).................. 23

Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001)........ 26

Beck v. Communications’ Workers, 776 F.2d 1187

(4th Cir. 1985), aff'd on reh’g, 800 F.2d 1280

(4th Cir. 1986), aff'd, 487 U.S. 735 (1988).............. 33

Bevli v. Brisco, 211 Cal.App.3d 986 (1989) ................ 26

Butt v. State of California, 4 Cal. 4th 668

SETI ‘Sita daheeiusrsicthaclinenteiieiiesiaipitlasbidinineeieltdadesisiduiniedigimeniiniieasdione 3

Campbell v. Graham-Armstrong, 9 Cal. 3d 482

Cpe cuncnasiuscethiadaditiinadaddvehinietpeukelnialitbesalasacpsetiiendouienies 30

Cervisi v. CUIAB, 208 Cal.App.3d 635 (19839) ........... 23

Chicago Teachers Union, Local No. 1 v. Hudson,

re ID spaiiricrintitsviitnsecenmanepesitesntsnteessastenes 33

Cohen v. San Bernardino Community College

District, 92 F.3d 968 (9th Cir. 1996) .....................4. 26

Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466

Se I aiidincstkiscrittianactiadniaahealiatlattidopatsadpasiunaiebabn 5

Garcetti v. Ceballos, 57 U.S. 410 (2006).............04. 15, 28

iv

TABLE OF AUTHORITIES — Continued

Kalina v. San Mateo Community College Dis-

trict, 132 Cal.App.3d 48 (1977) ...........::sceseeeeeees

Kamin v. Richmond Unified School District, 72

Cal. App.3d 1014 (1977)....sc.ssessesseessesssessessesseenes

Kempland v. Regents of the University of Califor-

nia, 155 Cal.App.3d 64 (1984) 0000.0... eee

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507

SEED ncdeerstndesiiepticssnaistpenincinnieiieesiesvieeninnnntndinnatns

Middaugh v. Board of Trustees, 45 Cal.App.3d

Fe sctichineiteninescicdvisieckintiannainnabiienvasiianes

Miller v. Chico Unified School District, 24 Cal.

ee IEE CD secctivicccuncossssuseceveniscerototnernidinssvenncnes

National Labor Relations Board v. Weingarten,

Se I CIID dittitictadetoiancntsinsiinisentinsinsenvenes

National Labor Relations Board v. Yeshiva Uni-

versity, 444 U.S. 672 (1980)...................ss000seeeeees

Redwoods Community College District v. PERB,

159 Cal. App.3d 617 (1984).....cc.sccssesssesseesseeseeeees

Retired Employees Ass’n of Orange Co., Inc. v.

County of Orange, 610 F.3d 1099 (9th Cir.

IE ahanhidaiticdnsanaiteitineintibinnualptvbidiigemicesitntipuasinesccase

Retired Employees Ass’n of Orange Co., Inc. v.

County of Orange, 52 Cal. 4th 1171 (2011).......

San Leandro Teachers Ass’n v. San Leandro Uni-

fied School District, 46 Cal. 4th 822 (2009).......

Vv

TABLE OF AUTHORITIES — Continued

San Mateo City School Dist. v. PERB, 33 Cal. 3d

GaP CIID snescsicossaconncsescosonnschubensnatebesbscbbenmnpulbiastamenne 17

Santa Monica College Faculty Ass’n v. Santa

Monica Community College District, 243

CaLApp.4th GES (BOIG) ....ccccrcvcocccosssssesvevecsesocosses 3, 25

Skelly v. State Personnel Board, 15 Cal. 3d 194

(DEPP scsnsitnvssseniannituadiainppminnedeneitampseaideatiodimdadaatiad 26

Steele v. Louisville & N.R.R., 323 U.S. 192 (1944)...... 20

Stryker v. Antelope Valley Community College

District, 100 Cal.App.4th 324 (2002).................. 3, 30

United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 363 U.S. 574 (1960)..............scccccccrseserererees 12

Vaca v. Sipes, 386 U.S. 171 (1967) ............:ccceseeeeeeeenees 20

Vittal v. Long Beach Unified School District, 8

CO ae Oe BE Ca re isin abuse niocsiialtinsadiiisdeiadiiniiieadeiiiae 30

CALIFORNIA ADMINISTRATIVE AND ARBITRATION DECISIONS

California Correctional Peace Officers Ass’n

(Pacillas) (1987) PERB Dec. No. 657-S, 12

PERC 4 12097, 1987 WL 1435728............ccccccceeneees 20

Charter Oak Unified School District (1991)

PERB Dec. No. 874, 15 PERC 4 22067, 1991

Wee OTT sccecdncbnscnscenddasaceiuactaiinitiaguaiatipadedtiailtches 17

Foothill-De Anza Community College District

(2015) 40 PERC ¥ 14, 2015 WL 4186875 ............... 21

vi

TABLE OF AUTHORITIES — Continued

Page

Grant Joint Union High School District (1982)

PERB Dec. No. 196, 6 PERC 4 13064, 1982

ESE ES AS a ea aR 12

Jefferson School District (1980) PERB Dec. No.

133, 4 PERC 7 11117, 1980 WL 603174................. 10

Oakland Unified School District (1984) PERB

Dec. No. 275, 8 PERC 4 15095, 1984 WL

STII naheitilinsdhbabieaniniennnbiarndianintutenieenaerneerareneneseseeesooee 18

Redwoods Community College District (1983)

PERB Dec. No. 293, 7 PERC 4 14098, 1983

I alelnmennenenenes 25

San Mateo County Community College District

(1991) 15 PERC ¥ 22174, 1991 WL 11749894,

aff'd in part, (1993) PERB Dec. No. 1030, 18

PERC 4 25027, 1993 WL 13699368......................... 18

San Mateo County Community College District

(2009 Riker) 2009 WL 94127689 ...................::006 23

Westminster School District (1982) PERB Dec.

No. 277, 7 PERC ¥ 14034, 1982 WL 9509866 .......... 17

STATUTES, REGULATIONS AND RULES OF CoURT

California Code of Regulations

i scar crnenpnanennsenontons 10

ar. scetnaanemnadnnnneal 9

RTE ESE i)

ST ee 11

vii

TABLE OF AUTHORITIES — Continued

Page

California Education Code

ERE Le eee a aN ee a 6, 7,8

Ee en a ee 7

| ec en mea ate am a RBS 8

Sa AIDE GUNNA siiciinsathsiinpstiningiiteniiniahcalaetnanitionienengenadgatie 7

| A A a en ae ae eS 30

| eee a se eM ena nO 2 29, 30

| EEN Spreeeeees cee Sanremo NPA KS 23

A MA sees eee 2h 29, 30

a i 23

| eee meen eee 10

| ESE Ie apron aes cenn cama 6, 13, 22

ene EE Re Tn 22

FN ee ee a eee 13

8 ES Ran ae a NE Ren 18

California Government Code

ep re RG, GD cntestcsoceceecsecnsvsccteminininnmngents 9

$§ 3540 et seg. (EEDRA) ..................ccceceseeeeseereeeeeees 9,10

5 Ee eee aes meme 17,18

Se ec ee eaten NI i]

SP AIID vinsitincsbesiinitnsiegitthasib anesiabipsiaityeliniiiteniurnighiaiinasiiantiaias 11

| EASTERN SE oer ane eee DE 11

| eee AR RR an 22

|) EE CS eee Noes Gene wn iet se Beer = 16

| ISI, ELA ee CE A ANN Se ee 16

6) EEE ERE cane seen Sena 16

SATII i isictintnsesicsinsisatteditietiiieiniainiantndeniiaeintaniataente 8

vill

TABLE OF AUTHORITIES — Continued

Page

a tcclaes eal deeaiataraiiiaeaaias 2

SPIT Dinisticcihnsdieiarineennaianhiienininteiiaenetapentemsnepbeaaniieagmnaiicde 16

eee 12

| Laer ances oreneae veer eae eee oe ne 17

SIs nnniendbnaetitibeneninsinienenstentiapmnaaicmibimeemasteabinaieedel 18

Se TIT caansenctaiensiaiaiaeiidnainsedipatatinbiaiinastibaianiandiieaionaibentia 18

STII icaisiiniaieistdiretasiiticedeniiniiennitiniiipipeiitatiiebssieninniiel 17

§$§ 3560 et seg. (Higher Education Employer-

ND IED cccncscnesscnsenscininepeundsnnnnitanimetnnmmianisasenteta 9

ee eee nee 11

National Labor Relations Act.......................0c.cceeeeeseeees 8

OTHER

“A General Theory of the Collective Bargaining

Agreement,” David Feller, 61 Cal. Law Rev.

nee innssecedesiscianielietiithaiieeciahrestaieapehahsiesiiiinedpieitiiateniin 12

California Public Sector Labor Relations, Lexis-

Nexis, June 2017, Kirsten Zerger, ed., §§ 1.01-

Scud cichestaiccibiidetinastailinaestin teipasttalenstpiapedaianipmdaatintbipediidiasiasibanbias 8,9

http://californiacommunitycolleges.cccco.ed u/

PolicyInAction/KeyFacts. aspx ................000c0eeceeeeeeeees 7

http://www.ccftcabrillo.org/california-locals-and-

SOE sicetnicciicainatescineiiinciiniatnticiaintiomenitimamnnicnn 14

http://www.communitycollegereview.com/blog/

support-for-esl-students-in-community-college......... 7

http://datamart.cccco.edu/Faculty-Staff/Staff_

I actneiscevscarinnisinsstnninsinnniatnantnaniiatitinaioeinniens 1,7

ix

TABLE OF AUTHORITIES — Continued

Page

http://fafhda.org/agreement_2013-2016/FA-

Agreement_2013-2016.pdf.................cccccceseeeeeeeeeeees 15

http://fafhda.org/agreement-20 16-19/2016-2019-

ater cnepistnecsccnnecbesasennppunvavaitianeiee 14,19

http://foundationccc.org/About-Us/About-the-

idiiictinichainimmnsatnsnncninnmniiniatiinnennmmtibvemennneed 6

https://www.perb.ca.gov/faq.aspx#UnfairPractice

STITT iis shenicicsiepdniepeelesipibbbaiiigetacbinsadhenniineniniahideinbsnidenteeinedine 11

Stats. 1988, c. 973 (A.B. 1725).............cccccceseeeeees 3, 6, 13

Stats. 1998, c. 973 § 4(n) (A.B. 1725) ...........cccccceeeeeeee 13

i CIPI Ai iccacninscteinsieteisncinstnnebinehinatinetiananees 23

Stats. 2008, c. 84 § 1 (A.B. 591) ..........cccccccceceeeseeeneeeens 29

EM, gt Rem maeree 23

Se NN II OU clin setiiicibersinesinarsetcmateenonninantil 23

RD, SET, GF GN BP cncncecnsccvsesesecceccessccssvcssececcess 7

1

IDENTITY AND INTEREST OF AMICI CURIAE'

Amici are seven small independent labor unions,

who have served for decades as the exclusive bargain-

ing agent for units of academic employees at seven

California community college districts, and the Califor-

nia Community Colleges Independents Organization

(“CCCI”), a federation whose membership consists of

13 independent faculty unions (including the seven

Amici unions).

Amici, with the size of their bargaining units

listed in parentheses,’ are the Chabot-Las Positas Fac-

ulty Association (917), United Faculty of the Contra

Costa Community College District (1638), Foothill-De

Anza Faculty Association (1466), College of the Red-

woods Faculty Organization (309), Santa Monica Fac-

ulty Association (1517), Santa Rosa All Faculty

Association (1545), and Yosemite Faculty Association

(733).* They are “independent” in that they are not af-

filiated with large, national labor organizations, such

' No counsel for a party authored this brief in whole or in

part, and no entity or person, other than Amici Curiae and their

counsel made a monetary contribution intended to fund the prep-

aration or submission of this brief. Blanket consent letters on be-

half of all the parties are on file with this Court.

® This is the most recent approximate unit size, as provided

by each organization.

* The CCCI’s other union members (with their approximate

unit membership in parentheses) are Allan Hancock Faculty As-

sociation (161), United Faculty of Ohlone (494), Pasadena Com-

munity College Faculty Association (1526), Mira Costa (187),

Yuba (117), and the Santa Barbara Instructors’ Association (776).

Source: Union or Cal. Comm. Colleges Chan. Office: http://datamart.

cececo.edu/Faculty-Staff/Staff_Demo.aspx

2

as the American Federation of Teachers or the Na-

tional Education Association. Though individually

small in terms of bargaining unit size, Amici unions

play a large role in California’s community college gov-

ernance system. In the aggregate they represent about

8,125 academic employees.‘ Amici depend on the re-

ceipt of both membership dues and agency fees to ful-

fill their numerous responsibilities as bargaining

agents.

Amici have depended on income from both mem-

bership dues and agency fees to meet their representa-

tional obligations. Their long service as an exclusive

bargaining agent gives them the experience and

knowledge to call into question several arguments and

stereotypes advanced by the Petitioner. Amici also

wish to bring to the Court’s attention the devastating

effect reversing Abood v. Detroit Board of Education,

431 U.S. 209 (1977) would have on small labor unions,

their members and agency fee payers, their employers,

California’s comprehensive labor relations system, and

the primary beneficiaries of the community college sys-

tem, its students and the residents of California.

* Bargaining units are composed primarily of teachers, li-

brarians, counselors and other academic positions. The EERA re-

quires separate units for academic employees, which as a rule

must include all academics. $§ 3545.5(b)(1), (3).

3

The CCCI or its counsel has frequently partici-

pated as Amicus before California courts in cases of im-

portance to academic unions and college faculty.”

.

¥

INTRODUCTION AND

SUMMARY OF ARGUMENT

Abood should not be overruled. The long-standing

principles of Abood have assured exclusive bargaining

agents in the California community colleges of neces-

sary funding from members and agency fee payers, giv-

ing them the resources needed to assume a meaningful

and expansive role in a “shared governance” system

that was created as an alternative to unilateral mana-

gerial rule-making and administration. Since the Leg-

islature enlarged the role of faculty unions with the

adoption of A.B. 1725 in 1988 (Stats. 1988, c. 973), this

“re-invented” community college system of employer-

employee relations has undergone a massive expan-

sion. There can be no question that the role of faculty

unions under this system depends on funding that

° Santa Monica College Faculty Ass'n v. Santa Monica Com-

munity College District, 243 Cal.App.4th 538 (2015); Stryker v.

Antelope Valley Community College District, 100 Cal.App.4th 324

(2002); Retired Employees Ass'n of Orange Co., Inc. v. County of

Orange, 52 Cal. 4th 1171 (2011); Retired Employees Ass'n of Or-

ange Co., Inc. v. County of Orange, 610 F.3d 1099 (9th Cir. 2010),

Butt v. State of California, 4 Cal. 4th 668 (1992); San Leandro

Teachers Ass'n v. San Leandro Unified School District, 46 Cal. 4th

822 (2009).

4

results from the collection of both membership dues

and agency fees.

Amici believe that overruling Abood would remove

the California community colleges’ system of em-

ployer-employee relations from the purview of the peo-

ple of the state and their elected representatives, cause

significant harm to the State’s management of its pub-

lic employee workforce.

,

¥

ARGUMENT

Petitioner paints a grim picture of recognized la-

bor unions forcing unwilling or oblivious public em-

ployees to subsidize union speech, which Petitioner

argues should be broadly defined as virtually anything

a public sector union spends money on. In support of

this astounding proposition the Petitioner imagines

that this Court, in deciding Abood, did not really un-

derstand what it was doing, “ignored” that Abood is

“unworkable,” and failed to appreciate a host of imag-

ined difficulties. This picture does not comport with the

reality experienced by the Amici unions.

The 40 years since Abood was decided have al-

lowed the compilation of a detailed factual record as to

how the agency fee procedures have actually worked.

Yet Petitioner deliberately avoided creating such a rec-

ord, hoping to convince the Court to accept Petitioner's

narrow view of labor relations, and on that basis re-

verse an employer-employee relations system which

has worked well and protects the First Amendment

5

rights of agency fee payers. Petitioner’s approach

contrasts sharply with the Court’s decisions that have

focused on the chargeability of specific classes of ex-

penditures, backed with a factual record. Ellis v. Bhd.

of Ry., Airline & S.S. Clerks, 466 U.S. 435, 447-448

(1984); Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507,

519 (1991). This approach is dangerous. A decision

holding every agency fee system in every public juris-

diction in every state is unconstitutional, would create

chaos, and interfere in employer-employee relations

systems carefully created by more than 20 states.

Given the potential sweep of this case, there is no log-

ical basis for deciding it without a rigorous factual

analysis.

Amici focus this brief on three issues. First, recog-

nized bargaining agents in the California community

college system have enormous responsibilities. Besides

collective bargaining, contract administration and en-

forcement, they are commissioned by the Legislature

to participate in “shared governance,” a costly yet

productive involvement. Amici outline the scope of

this activity. Second, the receipt of membership dues

and agency fees is critical to Amici fulfilling their

multiple responsibilities. Finally, Petitioner’s presen-

tation of this case without an evidentiary record,

where its stereotypes and assumptions can be criti-

cally de-constructed and examined, sets up a situation

where Abood could be overruled without any legiti-

mate basis, to the detriment of Amici and everyone

they represent.

6

I. California’s Shared Governance Process

Will be Severely Damaged, to the Disad-

vantage of Union Members, Fee Payers,

Colleges, Students and the Public if Abood

is Overruled

A. The Labor Relations Structure of the

California Community Colleges

The California community college system as it ex-

ists today was shaped by the omnibus bill A.B. 1725,

which expanded the role of faculty in employee-em-

ployer relations. Since A.B. 1725 enacted Education

Code section 87610.1, and other provisions which del-

egated meaningful roles to faculty and their bargain-

ing agents, the Legislature, and the community college

system’s trustees and administrators, have commis-

sioned more responsibilities.

The system consists of 72 districts, 114 community

colleges, and numerous satellite facilities.° It is readily

apparent why they are an “integral and effective ele-

ment in the structure of public higher education” in

California. Cal. Ed. Code § 70901. The colleges educate

70% of the states nurses, and 80% of firefighters, law

enforcement personnel, and emergency medical tech-

nicians. Twenty-nine percent of University of Califor-

nia graduates, and 51% of California State University

graduates, and nearly half of UC’s bachelor’s degrees

in science, technology, engineering and math come

through the community college system. The colleges

are the largest provider of workforce training in the

° http://foundationccc.org/About-Us/About-the-Colleges

7

nation, and 42% of all California veterans receiving GI

education benefits attend a California community col-

lege. Over 67% of the students are people of diverse

ethnic backgrounds, and more than half are female.’

English as a Second Language programs are critical

for preparing immigrants to prosper in California’s

economy.* Tuition is either relatively inexpensive or

entirely free.°

To achieve this level of success, the community col-

leges employ 11,000 tenured or probationary faculty

and 25,000 “temporary” faculty.'°

The system itself is led by a statewide Chancellor,

and Board of Governors which is appointed by the Gov-

ernor, and includes a tenured faculty member.'' They

provide general supervision of the local districts, estab-

lishing minimum academic and operational standards,

and ensuring that faculty and other employees have

the right to participate effectively in college and

district governance. Cal. Ed. Code § 70901. The Board

is required to maintain to the maximum degree

’ http:/californiacommunitycolleges.cccco.edu/PolicyInAction/

KeyFacts.aspx

* https://www.communitycollegereview.com/blog/support-for-

esl-students-in-community-college

* AB 19 (Stats. 2017, c. 735, Cal. Ed. Code §$§ 76396 et seg.),

which promises to make the first year free for large categories of

students.

'° Located at State Chancellor's Office website, http://datamart.

ececco.edu/Faculty-Staff/Staff_Demo.aspx

' Cal. Ed. Code § 71000(c).

8

>

permissible, local authority and control in the colleges

administration. /d.

State law requires that every California county

have a community college. Jd. § 74000. Local districts

have a publicly elected board of trustees, who hire ad-

ministrators and other employees. Jd. § 70901. These

local districts are the focus of labor relations, recogniz-

ing and negotiating with labor unions which obtain ex-

clusive representation rights through the Public

Employment Relations Board. Cal. Gov't. Code

§$§ 3544-3544.9.

1. The Collective Bargaining Law for

Community Colleges

In the early 1970s, the California Legislature em-

barked on an ambitious re-invention of its labor-man-

agement governance system based on the National

Labor Relations Act. This led to the adoption of the

EERA in 1975, which governs both public school dis-

tricts and community college districts.'* The Legisla-

ture explained its rationale:

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 Califor-

nia by providing a uniform basis for recogniz-

ing the right of public school employees to join

" This history is summarized in California Public Sector

Labor Relations, Lexis-Nexis, June 2017, Kirsten Zerger, ed.,

$§ 1.01-1.12.

9

organizations of their own choice, to be repre-

sented by the organizations in their profes-

sional and employment relationships with

public school employers, to select one em-

ployee organization as the exclusive repre-

sentative of the employees in an appropriate

bargaining unit. Cal. Gov’t. Code § 3540.

The EERA led to other statutes which now cover

most California’s public employees.'* This comprehen-

sive system includes a single administrative labor law

agency, the California PERB, which employs adminis-

trative law judges and a General Counsel, and is over-

seen by a single Board of up to five appointees.'* The

PERB is responsible for administering the union

recognition process, deciding unfair labor practice

charges filed by employers, unions and employees, and

attempting to resolve bargaining impasses through

mediators and “fact-finders.” Cal. Gov’t. Code §§ 3540

et seq. The EERA imposes the duty of fair representa-

tion on every exclusive representative. Jd. § 3544.9.

'S EERA was followed by the Dills Act in 1977, regulating the

State of California itself (Cal. Gov't. Code §§ 3512 et seq.), then

the Higher Education Employer-Employee Act in 1978, covering

the University of California, the California State University, and

Hastings College of Law (Cal. Gov't. Code §§ 3560 et seq.). Several

other employee groups were added starting in 1988, with jurisdic-

tion ceded to PERB. California Public Sector Labor Relations at

$$ 1.08-1.12. The law for cities, counties and special districts,

adopted in 1968, was eventually transferred almost entirely to

PERB’s jurisdiction.

™ Cal. Gov't. Code § 3541; Cal. Code Regs., tit. 8, § 32055,

32170.

10

The EERA establishes the “scope of negotiations,”

and integrates it with the state’s Education Code,

providing that mandatory provisions of the California

Education Code are not negotiable."° This integration

is apparent when considering subjects such as tenure.

Some aspects of the standards and processes for ob-

taining tenure or appealing tenure denial are left to

statutes, while evaluation and ultimate resolution of

disputes was merged into the process of collective bar-

gaining and contract enforcement.'® In accordance

with these laws, exclusive bargaining agents and Cal-

ifornia community college districts have negotiated

district-specific procedures to address probationary

status and tenure.

2. The PERB Regulates the Agency Fee

Process

The EERA’s agency fee process is but one part of

the overall statutory scheme.'’ The PERB has adopted

regulations governing agency fee collection and chal-

lenges. Cal. Code Regs., tit. 8, §§ 32990-32997. They re-

quire that a union charging an agency fee must provide

annual written notice of the membership dues and

agency fee amount charged to agency fee payers,

amount charged objectors, the challenge procedures, a

'® Section 3540 of the EERA declares that negotiations are

superseded when the language of the Education Code mandates

a “specific and unalterable policy.” Jefferson School District (1980)

PERB Dec. No. 133, 4 PERC 4 11117, 1980 WL 603174.

'® Cal. Ed. Code §§ 87604-87611.

'’ PERB has adopted 280 pages of regulations (Cal. Code Regs.,

tit. 8, $§ 31001 et seq.); only 7 (just 4 pages) relate to agency fees.

11

copy of backup data, including an audited financial re-

port or in limited circumstances a certification from an

independent auditor (§ 32992). The regulations dictate

the timing for disclosure and challenges, mandate es-

crow of disputed funds, and specify the challenge pro-

cedures. The exclusive representative has the burden

of establishing the reasonableness of the chargeable

expenditures. /d. at §§ 32993-32994. An agency fee

challenger need only file an objection in writing to

challenge the union’s chargeability determinations. It

is an unfair labor practice for a union to collect agency

fees in violation of PERB’s regulations. § 32997. An ob-

jector may file an unfair practice charge to challenge

the chargeability determination. If the case advances

to a hearing before a PERB ALJ, or review by the

Board itself, a challenger, or representative (which

need not be a lawyer),'* may represent the charging

party. When PERB finds a charge meritorious, PERB

itself, at no cost to the challenger, is empowered to en-

force final decisions in the state courts. Cal. Gov't. Code

§$§ 3541.3(j), 3542(d); Cal. Code Regs. tit. 8, § 32980."

Although agency fee provisions have ordinarily

been negotiated in union-employer collective agree-

ments, as it became more common for the Legislature

to commission exclusive representatives to participate

in shared governance, the California Legislature even-

tually provided, with the adoption of Cal. Gov't. Code

§ 3645, that an agency fee could be invoked by a labor

'* https://www.perb.ca.gov/faq.aspx#U nfairPractice Hearing3

'° PERB has similar authority under the other statutes it ad-

ministers.

12

organization where a sufficient percentage of unit

members approved of such a procedure in an election.

The statute specifies a process whereby unit members

may vote to revoke agency fee. Jd. § 3546(d)(1).

3. California Has Created a Generalized

Code of Workplace Governance

Academic employees at each of California’s com-

munity college districts have selected a labor union to

represent them. The Community Colleges Board of

Governors, the districts and colleges, and their unions

worked over the years to erect a workplace governance

system which is “more than a contract” — it is a “gener-

alized code” which covers virtually the entirety of the

employer-employee-union relationship.” This “gener-

alized code” consists of, inter alia, comprehensive col-

lective bargaining agreements, the State Education

Code, State regulations found in Title 5 of the Califor-

nia Code of Regulations, district policies and proce-

dures, and often a process for joint union-management

review of contractual issues.*'

°° United Steelworkers v. Warrior & Gulf Navigation Co., 363

U.S. 574, 580 (1960); “A General Theory of the Collective Bargain-

ing Agreement,” David Feller, 61 Cal. Law Rev. 663, 689-705

(1973).

" To the extent they apply to community college faculty,

many of these policies and procedures are the result of collective

bargaining negotiations and/or other shared governance mecha-

nisms involving inter alia, the exclusive representatives. Grant

Joint Union High School District (1982) PERB Dec. No. 196, 6

PERC 4 13064, 1982 WL 950759.

13

By the 1980s, this process resulted in the State

commissioning bargaining agents to participate in col-

laborative union-management efforts to improve the

quality of the community college system. A.B. 1725, su-

pra. \n order to assure that increased faculty responsi-

bilities would not deprive faculty of their status as

employees, the Legislature balanced its decision to

“authorize more responsibility for faculty members in

duties that are incidental to their primary professional

duties” by confirming that “the exercise of this in-

creased responsibility shall not make these faculty

members managerial or supervisory employees,” spe-

cifically referencing this court’s decision in National

Labor Relations Board v. Yeshiva University, 444 U.S.

672 (1980). The Legislature intended to enable faculty

members who perform the duties described in Educa-

tion Code Section 87610.1 to avoid having to choose be-

tween collective bargaining and greater participation

in these functions by ensuring that increased partici-

pation in the tenure system “shall not subject faculty

members to losing their status as employees” under

the EERA. Stats. 1998, c. 973 § 4(n). These enlarged

faculty duties in § 87610.1(e) include, but are not lim-

ited to, serving on hiring, selection, promotion, evalua-

tion, budget development, and affirmative action

committees, and making effective recommendations in

connection with these activities.

The evolution of this system is apparent in the de-

tailed agreements negotiated between Amici unions

14

and the corresponding college district,” which illus-

trates the scope of this vast college governance struc-

ture.”

4. Comprehensive Collective Agreements

Demonstrate that the EERA created a

New Governance Structure of which

Agency Fees are Merely One Part

The current agreement between the Foothill-De

Anza Faculty Association and the Foothill-De Anza

Community College District is illustrative of the new

shared governance structure.** Covering the period of

July 1, 2016 to June 30, 2019, the agreement, over 300

pages long, includes 41 articles, 55 appendices, and 12

Memorandums of Understanding (“MOUs”). The sub-

jects include Association Rights, Organizational Secu-

rity, Grievance Procedure, Evaluation, Probationary

Faculty Evaluation, Part-Time Faculty, Personnel

Files, Load and Class Size, Hours and Scheduling,

*" See the agreements for the unions at Chabot, Redwoods,

Contra Costa, Santa Monica, Santa Rosa and Yosemite at:

http://www.ccftcabrillo.org/california-locals-and-contracts/.

* The agreements negotiated by the local unions affiliated

with AFT or NEA illustrate the same breadth and depth. See, e.g.,

AFT Local 2121 which represents 1,800 faculty in San Francisco,

and Los Rios Federation of Teachers, AFT Local 2279, which rep-

resents 2,500 faculty at four colleges in the Sacramento area.

h ttp://www.ccftcabrillo.org/california-locals-and-contracts/.

* http//fafhda.org/agreement-2016- 19/2016-2019-FA-Agreement.

pdf. Copies of nearly all of the recent agreements covering the

entire 72 community college districts, and their faculty unions,

are located at: http://www.ccftcabrillo.org/california-locals-and-

contracts/.

15

Class Cancellation, Reassignment, Transfer, Travel

Expenses, Reduction in Force, Leaves, Professional De-

velopment Leave, Reduced Workload Program, Emeri-

tus Program, Early Notice Incentive, Post-Retirement

Employment, Paid Benefits, Paid Benefits for Part-

Time Faculty, Paid Benefits for Retired Employees,

Paid Benefits for Retired Employees Hired after July

1, 1997, Salaries for Faculty Employees, Special As-

signments, Summer Sessions, Calendar, Nondiscrimi-

netion, Contract Review and Consultation,

Resignation and Retirement, Reprimand of Faculty

Employees, Duration, Non-Credit (Adult) Education,

Distance Learning, Training/Retraining Stipend, Pro-

fessional Conference Fund, Contract Education, Pro-

fessional Achievement Awards, and _ Intellectual

Property.” The MOUs elaborate on some of the arti-

cles, or deal with other labor-management issues. /d.

The Foothill agreement creates a comprehensive

regulatory system governing the professional respon-

sibilities of academic employees in the Foothill-De

Anza Community College District, which are overseen

by the college employer acting within its role as an em-

ployer. Garcetti v. Ceballos, 57 U.S. 410, 421-423 (2006).

*° See http://fafhda.org/agreement_2013-2016/FA-Agreement_

2013-2016.pdf, pages iv-v.

16

B. The Enormous Variety of Union Activi-

ties Funded by Member Dues and Agency

Fees in California

Union activities may be roughly categorized

within five categories.

1. Collective Bargaining Negotiations

The EERA provides that unions that have been

certified by PERB as an exclusive representative have

the right to represent a bargaining unit in its employ-

ment relations with the public employer. Cal. Gov't.

Code § 3543.1. One of the most important rights an ex-

clusive representative has is to negotiate a binding col-

lective bargaining agreement for the bargaining unit.

But it is not a singular duty for the union. Under the

EERA, as with the NLRA, the union and employer

have a reciprocal duty to “meet and negotiate in good

faith” to “reach agreement” on matters within the

scope of representation, motivates both parties to bar-

gain. $$ 3543.5-3543.7.

The EERA defines the “scope of representation” as

being matters related to wages, hours, and terms and

conditions of employment, enumerating some of these

topics (e.g., leaves, safety conditions, transfer and reas-

signment rights, procedures for processing grievances,

and organization security arrangements pursuant to

Section 3546 of the EERA). § 3543.2.

Bargaining for an agreement usually starts with

the union and employer presenting their initial

17

contract proposals at a public meeting of the school

board, and thereafter they become matters of public

record which the public may comment upon. EERA

§ 3547; San Mateo City School Dist. v. PERB, 33 Cal.

3d 850, 864 (1983). Each party selects its “team” of rep-

resentatives, which usually includes several negotia-

tors. Westminster School District (1982) PERB Dec. No.

277, 7 PERC 4 14034, 1982 WL 950986. Amicis’ union

negotiators are generally faculty members, while the

employer team may include managers and/or attor-

neys.

There is no statutory limit to the number or length

of bargaining sessions held; such matters are in the

parties’ hands. Amicis’ experience is that negotiations

often last months. Bargaining is limited to the two par-

ties, and is held in private absent agreement other-

wise. EERA § 3549.1(a). Ordinarily, negotiations

involve a sequence of tentative agreements, before a

complete agreement is reached. Charter Oak Unified

School District (1991) PERB Dec. No. 874, 15 PERC

¥ 22067, 1991 WL 11749787. Complete agreements are

usually executed by both parties, approved by a dis-

trict’s board, and ratified by the union membership.

EERA § 3540. ith).

Because many agreements provide for periodic

“re-openers” during a contract term, which allows ei-

ther party to address pressing matters, and as the

EERA limits collective agreements to a duration of

three years, negotiations are a virtually continuous

process. § 3540.1(h). Although neither party is re-

quired to agree with a proposal made by the other, both

18

must negotiate in good faith in an effort to reach an

agreement. Cal. Gov't. Code § 3540.1(h); Oakland Uni-

fied School District (1984) PERB Dec. No. 275, 8 PERC

{ 15095, 1984 WL 967595. As a result of these and

other rules, the duration and intensity of collective bar-

gaining is inherently unpredictable. It is through this

process that the policies and procedures governing em-

ployees in the California community colleges, such as

the Foothill-De Anza agreement discussed above, are

mutually established.

Merely having a seat at the bargaining table does

not assure an agreement will be reached, nor does it

determine how long bargaining for an agreement will

take. The union invariably will pay for lawyers and

others to analyze and prepare contract proposals, re-

search complex issues, survey exemplar agreements,

analyze the implications of proposals, survey bargain-

ing unit members on their desires, hire and pay nego-

tiators and note-takers, confer with experts, and incur

incidental costs of negotiations. Should negotiations

reach impasse, mediation or fact-finding may result,

both of which are costly. EERA § 3548, 3548.1.

Some California unions have negotiated to pur-

chase “release time” or “reassigned time” from their

employer to compensate unit members who “take

leave” from their regular work and serve in union po-

sitions, such as members of the bargaining team. Cal.

Ed. Code § 87768.5; San Mateo County Community

College District (1991) 15 PERC ¥ 22174, 1991 WL

11749894, aff'd in part, (1993) PERB Dec. No. 1030, 18

PERC J 25027, 1993 WL 13699368.

19

Petitioner argues that simply winning the “crown”

of exclusive representative should be its own reward,

obviating the need for agency fees. That is nonsense.

Just as management labor lawyers who are hired to

represent colleges in bargaining or defend unfair prac-

tices charge for their services, charging a fee, so too

must unions hire others to assist them.

2. Contract Enforcement

Once an agreement is bargained, invariably im-

plementation and unanticipated issues arise, requir-

ing periodic mid-term discussions, negotiations,

grievances, or unfair practice charges. This is why

some employers and unions agree to participate in reg-

ular “contract review” sessions to solve problems.*°

A principal means of contract enforcement is a

grievance. These usually have an “informal,” or discus-

sion step, where the parties attempt informal resolu-

tion. Because a grievance ordinarily finds its genesis

in the collective agreement, any given grievance can

affect as few as one employee, or as many as every em-

ployee and the union. If not settled at an interim step

of the parties’ grievance procedure, grievances can re-

sult in arbitration. See Foothill Agreement, supra, at

Article 5, p. 15.

A union cannot refuse to represent a unit member

in a grievance simply because s/he is not a union

*© Foothill-De Anza Agreement, supra, Article 29, p. 137.

http//fafhda.org/agreement-2016-19/2016-2019-FA-Agreement.pdf

20

member. Steele v. Louisville & N.R.R., 323 U.S. 192,

2014 (1944); California Correctional Peace Officers

Ass’n (Pacillas) (1987) PERB Dec. No. 657-S, 12 PERC

{ 12097, 1987 WL 1435728. The duty of fair represen-

tation arises from the union’s statutory role as the ex-

clusive representative for all of its members. “The

exclusive agent’s statutory authority to represent all

members of a designated unit includes a statutory ob-

ligation to serve the interests of all members without

hostility or discrimination toward any, to exercise its

discretion with complete good faith and honesty, and to

avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171,

177 (1967). It is rare that an individual employee rep-

resents him or herself. As the agent for everyone, and

usually having accumulated considerable expertise,

when the union serves in its agent role, it is ordinarily

much better positioned to represent employees.

Another important tool for any union is the unfair

labor practice charge. There are statements or actions

by an employer or union that might result in an unfair

labor practice charge. These charges are also governed

by an extensive body of case law, and PERB regula-

tions. They typically involve the investigation, prepa-

ration and filing of unfair practice charges, research,

settlement conferences, trial preparation, hearings

(trials), briefing, appeals, and in rare instances, law-

suits. Unions file these charges to enforce rights held

by unit members, or the union itself. Often a charge

involving one employee may impact more, or all em-

ployees. For example, the Foothill-De Anza Faculty

Association pursued an unfair practice charge to

21

guarantee that whenever a unit member was ordered

to attend an investigatory interview arising out of a

complaint against her/him, the union would receive a

copy of the complaint in advance of the interview, so it

could prepare for the representation. This case re-

sulted in a trial, after which PERB held that the union

had a “reasonable” and “necessary” and right to receive

the information before having to represent an accused

employee. Foothill-De Anza Community College Dis-

trict (2015) 40 PERC ¥ 14, 2015 WL 4186875. The de-

cision benefits of every academic employee of the

District, as any could be the recipient of a student or

other complaint.

3. Contract and Union Administration

Whether it is getting the collective agreement to

every unit member, or assuring the union website is

up-to-date, contract and union administration takes

many forms, including handling the business of the un-

ion, holding union meetings, keeping bylaws up to

date, obtaining information from unit members, com-

municating with unit members, overseeing audits, par-

ticipating in committees, and attending employer-

called meetings.

Foothill-De Anza Faculty Association demon-

strates the need for sufficient union representatives.

It has a President, Vice-President, Chief Negotiator,

Executive Secretary, Office Manager, an Associate Sec-

retary for Part-time faculty, a Grievance Officer, two

22

Conciliators (one for each of the District’s colleges),*’

and a newsletter Editor. Bargaining teams also typi-

cally include several additional members. These ser-

vices require expenditures, and exemplify why unions

rely on both dues and fees to operate.

4. Legislatively Commissioned Activities

One of the more unique aspects of California labor

law over the last four decades is the Legislature’s prac-

tice of commissioning labor unions to perform services,

in hand with a public employer, to help manage the

State’s labor relations policies. The California Legisla-

ture has specifically commissioned the community col-

lege parties to negotiate and in some cases, reach

agreement, over specific subjects.

As mentioned earlier, in 1989, the Legislature as-

signed significant duties to labor unions, Education

Code § 87610.1 providing that: “In those districts

where tenure evaluation procedures are collectively

bargained pursuant to Section 3543 of the Government

Code, the faculty’s exclusive representative shall con-

sult with the academic senate prior to engaging in col-

lective bargaining on these procedures.” Cal. Ed. Code

§ 87610.1(a). Despite the statutory origin of the tenure

system, the same legislation required that denials of

re-employment during the four-year probationary pe-

riod, or tenure denials, were to be treated as grievances

under the union contract. Jd. In so doing, the

*’ Among other things, conciliators attempt to resolve prob-

lems before they become more serious or grievances.

23

Legislature conserved judicial resources by replacing

judicial review of such decisions by writs of mandamus,

with arbitration.”

This has included implementing legislation creat-

ing opportunities for part-time, temporary faculty to

earn “reappointment” preference after they are let go

each semester.*’ In 2001, the Legislature made negoti-

ations mandatory over this subject. Cal. Ed. Code

§ 87482.9 (Stats. 2001, c. 850 § 1). When that legisla-

tion failed to sufficiently address underlying job inse-

curity, in 2017 the Legislature adopted section

87482.3, requiring unions and employers to commence

negotiations which “shall establish minimum stand-

ards” specified in the legislation, for the terms of re-

employment preference for part-time, temporary fac-

ulty assignments, through a negotiation process be-

tween the community college district and the exclusive

representative for part-time, temporary faculty. Added

by Stats. 2016, c. 877 § 1 and c. 891 § 1.

** Contrast the more recent San Mateo County Community

College District (2009 Riker) 2009 WL 9412769 with the earlier

Anderson v. San Mateo County Community College District, 87

Cal.App.3d 441 (1978).

** Part-time faculty's employment automatically ceases at

the end of each term or year, with future assignments (re-hiring)

contingent on enrollment, funding, or program changes, or being

“bumped” out of a job by tenured faculty. Cervisi v. CUIAB, 208

Cal.App.3d 635 (1989).

24

5. Other Representational Activities,

Including Litigation

The scope of union involvement in other aspects of

college management has increased in the last 40 years.

For instance, in Contra Costa, the United Faculty par-

ticipate in numerous activities as part of the shared

governance process, and to better serve its unit mem-

bers. Among other things it mediates faculty-depart-

ment disputes, serves on hiring committees for senior

management, prepares handbooks for department

chairs and for part-timers, and collaborates with man-

agement in preparing faculty forms and procedures,

assists in orienting newly-hired faculty, participates on

numerous committees including a regular “contract re-

view” committee meeting with management to resolve

differences and work through the creation and modifi-

cation of district policies and procedures, serves on a

faculty staffing committee and a district benefits com-

mittee that studies proposals and potential changes in

health plans (and searches for cost-saving options), and

its president serves on the district’s “governance coun-

cil.” The other Amici unions engage in similar activities.

This level of involvement is common with all of the fac-

ulty unions in the community college system, whether

independent or affiliated with AFT or NEA, and all of

it inures to the benefit of every member of the faculty.

Litigation related to the bargaining unit is not

common, but it has its place. For example, the Santa

Monica City College faculty union negotiated re-em-

ployment preference rights for part-time faculty in a

collective agreement, and then defended those rights

25

at arbitration and then in court when the college dis-

trict attempted to disregard them.” This legal action

worked to the benefit of every employee because it re-

quired the district to adhere to its agreement, on a sub-

ject that could potentially affect every part-time

faculty member, regardless of their union membership.

A more common situation arises whenever an em-

ployee is under investigation and interviewed, the un-

ion often provides representation. Over the last

decade, increased regulation by the U.S. Department of

Education in areas of alleged discrimination, sexual

harassment and other subjects has dramatically in-

creased the number of employer investigations of fac-

ulty conduct, another area where unions provide

representation and often legal services. Unit members,

whether union members or not, are entitled to request

union representation in such cases,*' and unions rou-

tinely provide it to members and fee payers alike.

Another matter that is particularly importan® is

assuring due process for bargaining unit members fac-

ing formal disciplinary action, including dismissal.

* Santa Monica College Faculty Ass'n, supra, 243 Cal.App.4th

538 (2015).

*! National Labor Relations Board v. Weingarten, 420 U.S.

251 (1975). The PERB has ruled that the right to representation

under ERRA is even broader. Redwoods Community College Dis-

trict (1983) PERB Dec. No. 293, 7 PERC 4 14098, 1983 WL

862642, aff'd, Redwoods Community College District v. PERB,

159 Cal.App.3d 617 (1984).

26

This might include a “Skelly” hearing,” which occurs

before management decides to take serious discipli-

nary action against a unit member. A union generally

seeks to ensure that represented employees receive ad-

equate due process. This might include obtaining cop-

ies of derogatory material so one can rebut erroneous

information.** When serious discipline is issued (e.g.,

dismissal), unions often defend faculty at full hearings

on the merits.”

Even when faculty are not dismissed, unions

sometimes must go to court to vindicate important pol-

icies such as academic freedom or freedom of speech,”

or to protect faculty from disciplinary action that lacks

good cause or proper notice.” The potential instances

of union legal actions are obviously many.

But if California unions are burdened by the ina-

bility to require agency fees, then a union’s ability to

pursue important cases will be seriously compromised.

* Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975);

Kempland v. Regents of the University of California, 155 Cal. App.3d

64 (1984).

% Miller v. Chico Unified School District, 24 Cal. 3d 703

(1979).

“ Bevli v. Brisco, 211 Cal.App.3d 986 (1989).

* Adcock v. Board of Education, 10 Cal.App.3d 60 (1973);

Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001).

* Cohen v. San Bernardino Community College District, 92

F.3d 968 (9th Cir. 1996).

27

C. Receipt of Agency Fees Is Essential to

Any Union, Especially Unions as Small

as Amici

Unions rely on dues and agency fees to perform

the numerous duties outlined above, which benefit eve-

ryone in a bargaining unit. And because shared gov-

ernance means sharing the load, it also inures to the

benefit of the community college employer. A smooth-

running operation shared governance system ulti-

mately benefits everyone in a college, including stu-

dents and the larger community, by improving

decision-making and the entire college operation.

When agency fee payers represent a significant per-

centage of the bargaining unit, agency fees constitute

a correspondingly large percentage of the union’s an-

nual revenues.

All of the above-described union activities are crit-

ically important to a faculty union and the employees

it represents, regardless of the number of fee payers,

provided the fee payers pay their fair share. Prohibit-

ing unions such as Amici from collecting agency fees by

overruling Abood will not only create enormous insta-

bility and uncertainty, it will place such small unions

at an obvious disadvantage by preventing them from

engaging in activities that they should be fulfilling. If

California unions like Amici are strapped for funds,

then commissioned work for the Legislature will likely

suffer too. And it could place a union at a competitive

disadvantage with the employer, when it comes to pro-

tecting employee due process rights, negotiating the

agreement, and enforcing it.

28

It would be manifestly inconsistent if an employer

is shielded by Garcetti v. Ceballos, supra, from consti-

tutional challenges by its employees for actions taken

pursuant to their official role as employers under such

a system, while labor organizations participating with

the employer in creating and operating the underlying

employer-employee relations system are denied the

agency fees necessary to create and operate the sys-

tem.

1. The Pedestrian Reasons Some Unit

Members Elect to be Fee Payers

Petitioner hypothesizes, without offering evidence,

that non-member agency fee payers “want nothing to

do with the union,” and “oppose its advocacy.” These

and similar dubious claims are steeped in stereotypes

that harken back to an earlier time. Abood should not

be overruled because of suspicion and polemics. There

are many rational reasons which expiain why some

bargaining unit members choose to pay agency fees in

lieu of union membership.

2. Many Part-time Faculty Have Non-

Ideological Reasons for Not Joining

Unions

Nearly 70% of the academics in the California

community colleges work as part-time, temporary em-

ployees. These part-timers account, overall, for the

29

bulk of agency fee payers within the Amici unions.*’

There are multiple explanations, primarily having to

do with work priorities, time, and money. A bit of Cali-

fornia community college employment history is

needed to understand why this is.

Unlike public schools, part timers do a great deal

of the teaching in the California community colleges.

The California Education Code has long afforded the

California community colleges considerable control

and flexibility over the employment of these part-time

faculty. The basic rule is that the colleges can employ

them on an indefinite temporary basis provided their

workload does not exceed 67% of the load of a full-time

tenured faculty member. Kalina v. San Mateo Commu-

nity College District, 132 Cal.App.3d 48, 54-55 (1977).**

As noted earlier, they are ordinarily hired for a term

(semester or quarter), and then automatically released

when their limited-term contract expired. But many

are then immediately rehired for the next term.

This system has long had another feature. The

Legislature has mandated that if a part-time faculty

member’s workload exceeded the statutory ceiling

(presently 67% of a full-time load for more than two

semesters within three consecutive years) then the

District cannot thereafter employ the individual as a

temporary faculty member, but must employ her/him

as a probationary or permanent faculty member.

*’ Based on employer agency fee report information received

by Amici unions.

* The limit was 60% until the Code was amended to raise

the bar in 2008. $§ 87482, 87482.5 (Stats. 2008, c. 84 § 1 (A.B. 591)).

30

Education Code §§ 87477, 87482, 87482.5; Kamin v.

Richmond Unified School District, 72 Cal.App.3d 1014,

1017 (1977); Holbrook v. Board of Education, 37 Cal.

2d 316, 334 (1951); Vittal v. Long Beach Unified School

District, 8 Cal.App.3d 112, 118-119 (1979). The courts

recognize that, “ ... the matter of classification of

teachers as probationary or permanent is determined

by state law.” (Campbell v. Graham-Armstrong, 9

Cal.3d 482, 487 (1973)). This requirement is not sub-

ject to administrative discretion. Abraham v. Sims, 2

Cal.2d 698, 709-710 (1935).

But if statutory requirements are met, a teacher's

rights are automatically vested independently of any

action by the governing board. Middaugh v. Board of

Trustees, 45 Cal.App.3d 776, 781 (1975); Vittal v. Long

Beach Unified Sch. Dist., supra, at 112. Once statutory

requisites are met for probationary status, reclassifica-

tion as probationary or tenured occurs automatically

by operation of law and does not require action by an

employee or district. Siryker v. Antelope Valley Com-

munity College District, supra, 100 Cal.App.4th at 329-

338.

The vast majority of part-time faculty are em-

ployed in situations which offer rational reasons for

not joining the faculty union, and they have to do with

their wages, their time, their focus, and their assign-

ments. Typical reasons why a part-timer might be a fee

payer, as opposed to a union member are these:

1. Many part-timers maintain a “full” career by

accepting part-time employment at multiple colleges.

These dedicated part-time faculty travel from one

31

college to another every term, to earn a living wage.

They may work at one college where they are most

closely affiliated and join that union, but they disre-

gard the unions where they are only peripherally affil-

iated or where they simply do not have the time. After

all, many fee payers understand and appreciate that

as fee payers they are still represented by the union.

2. Many part-timers work on the periphery of a

college, teaching perhaps one specialty class every se-

mester, or every year. Their energies may be focused on

their regular “day job,” so they do not feel very engaged

with college gove»ance, including the work of the un-

ion, despite the fact that much of the union’s work may

be directly on behalf of part-time faculty. Because they

are marginally connected to their department and the

college, they are not motivated to join or participate in

their union and are not that interested in the means

through which they can influence union policies and

decisions. Quintessential examples are the practicing

attorney or judge who teaches business or real estate

law, or the respiratory therapist or other medical pro-

fessional or technician who teach a specific medical

course.

3. Wages may always play a role. Part-timers

routinely earn a percentage of what full-time faculty

earn. Taking advantage of the agency fee rate simply

makes good economic sense.

4. At many colleges, newly hired part-time fac-

ulty are asked to make a decision about becoming a

member or paying an agency fee immediately after be-

ing hired. They may well choose what appears to be

32

less costly since part-timers are paid less than full-tim-

ers.

5. It is sometimes not easy for the union to make

contact with new or intermittent part-timers to discuss

membership. Many districts have multiple worksites,

so they may be hard to track down when their time on

campus is limited.

These potential explanations indicate why Peti-

tioner’s assertion thar agency fee payers want “nothing

to do” with the union, is pure speculation when it

comes to community college faculty in California.

While ideology might play a role in some cases, the vast

proportion of California’s fee-paying community col-

lege part-timers are suspected of having far less lofty

reasons for deciding not to join a union. Small aca-

demic unions in the California community colleges

may not present the same factual situation as state

employees in Illinois, but Amici are still governed by

Abood. Hence the Court should be leery of reconsider-

ing Abood based on the lack of an evidentiary record,

and Petitioner's stereotype-based arguments.

Il. The Absence of an Empirical Record Re-

quires that the Court Rule Against the Peti-

tioner

Amici submit that Abood should not be overruled

because of the failure of Petitioner to support his

claims with evidence. The absence of evidence is per-

haps the most significant fact in this case. No evidence

was presented to show that, except for Petitioner, the

33

agency fee payers represented by unions recognized

under the Illinois Public Labor Relations Act, “want

nothing to do with the union and . . . oppose its advo-

cacy.” Petitioner erroneously implies this mindset from

every other non-member’s status as a fee payer. That

is too far a leap. As in the California community college

system, one can imagine numerous reasons why an II-

linois public employee might choose to remain a fee

payer, many of them having nothing to do with ideolog-

ical or political concerns.

There is also no evidence that it “is difficult for

employees to determine whether they are being over-

charged,” that non-members have “little understand-

ing about what they are being forced to subsidize,” or

that non-members “bear a heavy burden if they wish

to challenge” union fee determinations under state col-

lective bargaining laws across the nation. Nor is there

any evidence, since Hudson was decided in 1987, that

“litigating such cases is expensive.” Chicago Teachers

Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986). The

Petitioner's citation for the “painful burden” and “ex-

pense” of challenging a union’s determination of

chargeable amounts is, ironically, the extensive factual

record in the Beck case, which was created starting in

the initial trial lasting 28 days (and 2,100 exhibits), be-

gun in 1980 (776 F.2d at 1191), seven years before the

Hudson decision established the chargeability guide-

lines.** Abood has been of critical importance to public

®° Petitioner refers to the circuit court decision in Beck v.

Communications’ Workers, 776 F.2d 1187, 1194 (4th Cir. 1985),

aff'd on reh’g, 800 F.2d 1280 (4th Cir. 1986), aff'd, 487 U.S. 735

34

employees and their public employers for 40 years. A

decision to revisit or overrule a precedential case of

such widespread influence should not be made without

an evidentiary record. Amici’s point in filing this brief

is that employer-employee labor relations systems

which have evolved since Abood was decided have crit-

ical, distinctive features that should be taken into ac-

count when considering the issues raised by Petitioner,

and that overruling Abood would have dramatic ad-

verse impacts on Amici unions and other bargaining

agents across the country.

,

CONCLUSION

The Court should find for Respondent and leave

Abood intact.

Respectfully submitted,

ROBERT J. BEZEMEK

LAW OFFICES OF

RosBert J. BEZEMEK, P.C.

Counsel for Amici Curiae

January 18, 2018

(1988), which commented on the 4,000 pages of testimony and

over 3,000 documents.