California State Employees Association (Sarca) (PERB 1813H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIU SARCA,
Charging Party,
V.
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Respondent.
Case No. SA-CO-23-H
PERB Decision No. 	1813-H
January 	27, 	2006
Appearances: Corneliu Sarca, on his own behalf; Harry J. Gibbons, Attorney, for California
State Employees Association.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Corneliu Sarca (Sarca). The Board agent issued a partial dismissal
(attached) on part of his unfair practice charge. The partial dismissal was appealed and
exceptions were filed to the administrative law judge's (ALJ) proposed decision (attached) on
the portion of the charge that went forward after a complaint was issued by the Office of the
General Counsel.
In most cases, when there is a partial dismissal that is appealed, the complaint is held in
abeyance until the Board has acted on the appeal of the partial dismissal. In this case Sarca
objected to the complaint being held in abeyance and it went forward. 	The two portions of the
case have been consolidated here. The charge alleged that the California State Employees
Association (CSEA) violated Higher Education Employer-Employee Relations Act (HEERA)1
1HEERA is codified at Government Code section 3560, et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIU SARCA,
Charging Party, 	Case No. SA-CO-23-H
V. 	PERB Decision No. 1813-H
January 27, 2006
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Respondent.
Appearances: Corneliu Sarca, on his own behalf; Harry J. Gibbons, Attorney, for California
State Employees Association.
Before Duncan, Chairman; Shek and Mckeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Corneliu Sarca (Sarca). The Board agent issued a partial dismissal
attached) on part of his unfair practice charge. The partial dismissal was appealed and
exceptions were filed to the administrative law judge's (ALJ) proposed decision (attached) on
the portion of the charge that went forward after a complaint was issued by the Office of the
General Counsel.
In most cases, when there is a partial dismissal that is appealed, the complaint is held in
abeyance until the Board has acted on the appeal of the partial dismissal. In this case Sarca
objected to the complaint being held in abeyance and it went forward. The two portions of the
case have been consolidated here. The charge alleged that the California State Employees
Association (CSEA) violated Higher Education Employer-Employee Relations Act (HEERA)'
HEERA is codified at Government Code section 3560, et seq.

section 3583.5 by denying him the right to challenge the calculation of the 2003-2004 agency
fee, incorrectly calculating the agency fee, and denying him a fair arbitration hearing. At the
heart of the matter, Sarca argued that HEERA was violated because CSEA was collecting
non-chargeable agency fees and maintaining a surplus of funds.
The Board has reviewed the entire record in this matter including the unfair practice
charge, as amended, the warning and partial dismissal letters, CSEA's motion to dismiss the
complaint, the ALJ's proposed decision and Sarca's appeals.2
Sarca's appeal reiterates arguments made to the Board agent contesting the agency fee
and the arbitration procedure and result after his objection to the fee amount. He asserts that
because the surplus is listed as an asset of CSEA at the end of the fiscal year it could be used
for purposes other than those allowed by case law and therefore should be returned to avoid the
potential of inappropriate use.
In this case, as the Board agent noted in the warning and partial dismissal letters, an
agency fee arbitration was held in November 2003 and each of Sarca's contentions were
presented to and rejected by the arbitrator. Although Sarca alleges that the arbitrator
conducted the procedure with hostility towards him and excluding his participation, the pages
from the arbitration hearing transcript which he provided to the Board agent show that he was
allowed to represent himself, in addition to another individual, in the arbitration hearing and he
was able to challenge the calculation of the agency fee.
The Board agent correctly noted that Sarca participated in the November 2003
arbitration by questioning witnesses and presenting evidence. The evidence and theories Sarca
presented were considered by the arbitrator before the decision was issued. There is no
2The response of CSEA was not timely filed and has not been considered. Sarca's
response to the late-filed response has also not been considered.
2
section 3583.5 by denying him the right to challenge the calculation of the 2003-2004 agency
fee, incorrectly calculating the agency fee, and denying him a fair arbitration hearing. At the
heart of the matter, Sarca argued that HEERA was violated because CSEA was collecting
non-chargeable agency fees and maintaining a surplus of funds.
The Board has reviewed the entire record in this matter including the unfair practice
charge, as amended, the warning and partial dismissal letters, CSEA's motion to dismiss the
complaint, the ALJ's proposed decision and Sarca's appeals.
Sarca's appeal reiterates arguments made to the Board agent contesting the agency fee
and the arbitration procedure and result after his objection to the fee amount. He asserts that
because the surplus is listed as an asset of CSEA at the end of the fiscal year it could be used
for purposes other than those allowed by case law and therefore should be returned to avoid the
potential of inappropriate use.
In this case, as the Board agent noted in the warning and partial dismissal letters, an
agency fee arbitration was held in November 2003 and each of Sarca's contentions were
presented to and rejected by the arbitrator. Although Sarca alleges that the arbitrator
conducted the procedure with hostility towards him and excluding his participation, the pages
from the arbitration hearing transcript which he provided to the Board agent show that he was
allowed to represent himself, in addition to another individual, in the arbitration hearing and he
was able to challenge the calculation of the agency fee.
The Board agent correctly noted that Sarca participated in the November 2003
arbitration by questioning witnesses and presenting evidence. The evidence and theories Sarca
presented were considered by the arbitrator before the decision was issued. There is no
The response of CSEA was not timely filed and has not been considered. Sarca's
response to the late-filed response has also not been considered.
2

evidence that the arbitration proceedings were not fair and regular or that the decision is
repugnant to HEERA with regard to each of Sarca's contentions before the Board.
Sarca argues that he has standing to object and be notified of the arbitration on
calculation of agency fees in fiscal year 2004-2005 as well. He bases his position on the fact
that when CSEA told him it would not accept agency fees from him in fiscal year 2003-2004
and stopped deducting them, Sarca sent in his personal checks to CSEA for his dues. CSEA
did relent and accept fees from him for fiscal year 2003-2004 but advised him that it could stop
accepting his fees at any time. That time came in fiscal year 2004-2005. Having paid fees in
fiscal year 2003-2004 does not give Sarca standing in fiscal year 2004-2005. The ALJ found
that Sarca did not have standing and granted CSEA's motion to dismiss. This was based on
Sarca not being allowed to pay agency fees by CSEA for the entire fiscal year of 2004-2005.
The ALJ was correct in her application of the law.
The Board finds the Board agent's warning and partial dismissal letters to be free of
prejudicial error and adopts them, and the proposed decision of the ALJ which it also found to
be free of prejudicial error, as the decision of the Board itself.
ORDER
The unfair practice charge and complaint in Case No. SA-CO-23-H are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Shek and McKeag joined in this Decision.
3
evidence that the arbitration proceedings were not fair and regular or that the decision is
repugnant to HEERA with regard to each of Sarca's contentions before the Board.
Sarca argues that he has standing to object and be notified of the arbitration on
calculation of agency fees in fiscal year 2004-2005 as well. He bases his position on the fact
that when CSEA told him it would not accept agency fees from him in fiscal year 2003-2004
and stopped deducting them, Sarca sent in his personal checks to CSEA for his dues. CSEA
did relent and accept fees from him for fiscal year 2003-2004 but advised him that it could stop
accepting his fees at any time. That time came in fiscal year 2004-2005. Having paid fees in
fiscal year 2003-2004 does not give Sarca standing in fiscal year 2004-2005. The ALJ found
that Sarca did not have standing and granted CSEA's motion to dismiss. This was based on
Sarca not being allowed to pay agency fees by CSEA for the entire fiscal year of 2004-2005.
The ALJ was correct in her application of the law.
The Board finds the Board agent's warning and partial dismissal letters to be free of
prejudicial error and adopts them, and the proposed decision of the ALJ which it also found to
be free of prejudicial error, as the decision of the Board itself.
ORDER
The unfair practice charge and complaint in Case No. SA-CO-23-H are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Shek and Mckeag joined in this Decision.
W

STATE OF CALIFORNIA 	''._-_r__--- 	(------..,	
ll 	-._ ~:- -~~~I,D SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RE=L~A=T=io=·=N=S=B=O=A=RD===..,..;,_
PERB
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
February 9, 2005
Corneliu V. Sarca
17950 Lassen Street, B-15
Northridge, CA 91325
Corneliu V. Sarca
.
Re: 	Corneliu Sarca v. California State Employees Association
Unfair Practice Charge No. SA-C0-23-H
PARTIAL DISMISSAL
Dear Mr. Sarca:
The above-referenced u;nfair practice charge was filed with the Public Employment Relations
~~ (PERB or Board) on July 19, 2004. Your charge alleges that the C~wnia State 	•-
Employees Association violated the Higher Education Employer-Employee Relations Act
(HEERA)1 by denying you the right to challenge the· calculation of the 2003/04 agency fee,
incorrectly calculating the agency fee, and denying a fair arbitration hearing.
I indicated in the attached letter dated January 10, 2005~ that the charge did not state a prima
facie case. You were advised that if there were any factual inaccuracies or additional facts that
would correct the deficienyies explained in that letter, you should amend the charge. You were
further advised that unless you amended the charge to state a prima facie case or withdrew the
charge prior to January 24, 2005, the charge would be dismissed. You timely filed an amended
charge on January 23, 2005. We discussed your amended charge on February 8, 2005. 	·
In the attached warning letter, I indicated that because CSEA refunded your agency fees in
advance of the arbitration hearing, you were not permitted to participate in the arbitration to
challenge the amount of the agency fee. 	I noted that you participated in the hearing, howeyer,
as the authorized representative of another agency fee objector.
In the amended charge you attached three pages from the arbitration hearing transcript which
appear to indicate that you were allowed to represent yourself in the hearing and challenge the
calculation of the agency fee, In fact, during the hearing CSEA attorney Harry Gibbons told
you that because you were representing yourself at the arbitration hearing, the Union would
reinstate agency fee deductions from your paycheck.
You continue to assert that CSEA must return that portion of the agency fees that are II above
and beyond the necessary and reasonable expenses for representation. 11 You cite several
1HEERA is codified at Government Code section 3560 et s~q. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
February 9, 2005
Re: 	Corneliu Sarca v. California State Employees Association
Unfair Practice Charge No. SA-CO-23-H
PARTIAL DISMISSAL
Dear Mr. Sarca:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2004. Your charge alleges that the California State
Employees Association violated the Higher Education Employer-Employee Relations Act
(HEERA) by denying you the right to challenge the calculation of the 2003/04 agency fee,
incorrectly calculating the agency fee, and denying a fair arbitration hearing.
I indicated in the attached letter dated January 10, 2005, that the charge did not state a prima
facie case. You were advised that if there were any factual inaccuracies or additional facts that
would correct the deficiencies explained in that letter, you should amend the charge. You were
further advised that unless you amended the charge to state a prima facie case or withdrew the
charge prior to January 24, 2005, the charge would be dismissed. You timely filed an amended
charge on January 23, 2005. We discussed your amended charge on February 8, 2005.
In the attached warning letter, I indicated that because CSEA refunded your agency fees in
advance of the arbitration hearing, you were not permitted to participate in the arbitration to
challenge the amount of the agency fee. I noted that you participated in the hearing, however,
as the authorized representative of another agency fee objector.
In the amended charge you attached three pages from the arbitration hearing transcript which
appear to indicate that you were allowed to represent yourself in the hearing and challenge the
calculation of the agency fee. In fact, during the hearing CSEA attorney Harry Gibbons told
you that because you were representing yourself at the arbitration hearing, the Union would
reinstate agency fee deductions from your paycheck.
You continue to assert that CSEA must return that portion of the agency fees that are " above
and beyond the necessary and reasonable expenses for representation." You cite several
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-23-H
February 9, 2005
Page2
decisions of the U.S. Supreme Court in support of your contention, including Communications
Workers v. B·eck (1988) 487 US 735. This case holds that union expenditures charged to
agency fee payers are limited to those agency fees necessary to finance collective bargaining,
contract administration or grievance adjustment. The decision does not, however, address your
theory that excess agency fees held in reserve and not expended during the year in which they
are collected must be refunded to agency fee payers. As previously discussed, PERB case law
is consistent with the rule that the calculation of the amount of an agency fee is based on the
expenditures made by a union for chargeable purposes, which include collective bargaining,
contract administration and grievance processing. (California State Employees Association,
CSU Division (Sarca) PERB Decision No. 1626-H.)
We als_o discussed your contention that the agency fee payer has the burden of raising an
objection, but the union has the burden of proving the correct proportion of the fee. PERB
Regulation 32994 supports your statement. Regulation 32994(a) permits an agency fee payer
to challenge a union's calculation of the amount-of an agency fee. Regulation 32994(b)(6)
states:
.
· The exclusive representative h~,Ars the burden of establishing the
reasonableness of the amount of the agency fee.
'
Finally, as discussed in the attached letter, PERB will defer to an arbitrator's decision in an
agency fee case and dismiss an unfair practice charge where: (1) the arbitration proceedings
were fair and regular, and (2) the decision of the arbitrator is not clearly repugnant to the
purposes o(HEERA. (ABC Federation of Teachers, AFT Local 2317 (Murray, et al.) (1998)
PERBDecision No. 1295; California Nurses Association (O'Malley) (2004) PERB Decision
No. 1607-H.)
You participated in the arbitration hearing, questioned witnesses and submitted evidence.
Before issuing his decision, the arbitrator considered your evidence and your theory that
surplus fees must be refunded. Although you disagree with the arbitrator's decision, there is no
evidence that the ar}?itration proceedings were not fair and regular, or that the decision is
repugnant to the purposes ofHEERA. In this situation, PERB will defer to the arbitrator's
decision arid will not relitigate whether the calculation of the agency fee was correct.
Accordingly, as discussed above and in the attached letter, the allegations that CSEA denied
you the right to challenge the calculation of the 2003/04 agency fee, incorrectly calculated the
amount of the agency fee and denied you a fair arbitration hearing do not state a prima facie
case and are dismissed.2
2 The new allegation in the amended charge that CSEA did not acknowledge your letter
challenging the amount of the 2004/05 agency fee and, thus, did not notify you of the 2004/05
arbitration hearing and allow you to participate in the hearing, is not addressed in this letter.
SA-CO-23-H
February 9, 2005
Page 2
decisions of the U.S. Supreme Court in support of your contention, including Communications
Workers v. Beck (1988) 487 US 735. This case holds that union expenditures charged to
agency fee payers are limited to those agency fees necessary to finance collective bargaining,
contract administration or grievance adjustment. The decision does not, however, address your
theory that excess agency fees held in reserve and not expended during the year in which they
are collected must be refunded to agency fee payers. As previously discussed, PERB case law
is consistent with the rule that the calculation of the amount of an agency fee is based on the
expenditures made by a union for chargeable purposes, which include collective bargaining,
contract administration and grievance processing. (California State Employees Association,
CSU Division (Sarca) PERB Decision No. 1626-H.)
We also discussed your contention that the agency fee payer has the burden of raising an
objection, but the union has the burden of proving the correct proportion of the fee. PERB
Regulation 32994 supports your statement. Regulation 32994(a) permits an agency fee payer
to challenge a union's calculation of the amount of an agency fee. Regulation 32994(b)(6)
states:
The exclusive representative bears the burden of establishing the
reasonableness of the amount of the agency fee.
Finally, as discussed in the attached letter, PERB will defer to an arbitrator's decision in an
agency fee case and dismiss an unfair practice charge where: (1) the arbitration proceedings
were fair and regular, and (2) the decision of the arbitrator is not clearly repugnant to the
purposes of HEERA. (ABC Federation of Teachers, AFT Local 2317 (Murray, et al.) (1998)
PERB.Decision No. 1295; California Nurses Association (O'Malley) (2004) PERB Decision
No. 1607-H.)
You participated in the arbitration hearing, questioned witnesses and submitted evidence.
Before issuing his decision, the arbitrator considered your evidence and your theory that
surplus fees must be refunded. Although you disagree with the arbitrator's decision, there is no
evidence that the arbitration proceedings were not fair and regular, or that the decision is
repugnant to the purposes of HEERA. In this situation, PERB will defer to the arbitrator's
decision and will not relitigate whether the calculation of the agency fee was correct.
Accordingly, as discussed above and in the attached letter, the allegations that CSEA denied
you the right to challenge the calculation of the 2003/04 agency fee, incorrectly calculated the
amount of the agency fee and denied you a fair arbitration hearing do not state a prima facie
case and are dismissed."
The new allegation in the amended charge that CSEA did not acknowledge your letter
challenging the amount of the 2004/05 agency fee and, thus, did not notify you of the 2004/05
arbitration hearing and allow you to participate in the hearing, is not addressed in this letter.

SA-CO-23-H
February 9, 2005
Page 3
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal.of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed'' when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) 	32130.) A document is also
considered "filed" when received· by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required.number of copies and proof of service, in the U.S. mail. (Regulation
32135(b), (c) and (d); see also Regulations 32090 and 32130.)
and
.
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint; any other party may file with the
Board an original and five copies of a statement in opposition within twenty {20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
· ·
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
3 PERB's Regulations are codified at California Code of Regulations~ title 8, section
31001 et seq.
CSA-CO-23-H
February 9, 2005
Page 3
Right to Appeal
Pursuant to PERB Regulations,' you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Regulation
32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-23-H
February 9, 2005
Page 4 	.
('
I 	/
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time ltmits have expired.
Sincerely,
ROBERT THOMPSON
Geri.era! Counsel
By 	ti 	Al,4<RobinW.Wesley
Regional Attorney
~
Attachment ·
cc: Harry Gibbons
C
SA-CO-23-H
February 9, 2005
Page 4
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired
Sincerely,
ROBERT THOMPSON
General Counsel
By
Robin W. Wesley
Regional Attorney
Attachment
cc: Harry Gibbons

r-- 	,(·
STATE OF CALIFORNIA 	(( _ 	( · · 	ARNOLD SCHWARZENEGGER, Governor
===========~=.d.
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
January 10, 2005
Comeliu V. Sarca
17950 Lassen Street, B-15
Northridge, CA 91325
Re: 	Comeliu Sarca v. California State Employees Association
Unfair Practice Charge No .. SA-CO-23-H
WARNING LETTER
.
Dear Mr. Sarca:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2004. Your charge alleges that the California State
Employees Association violated the Higher Education Employer-Employee Relations_Act
(HEERA)1 by denying you the right to challenge the calculation of the 2003/04 agency fee,
incorrectly calculating the agency fee, and denying a fair arbitration hearing.
You are employed by the California State University. Your job classification is included in a
bargaining unit which is exclusively represented by CSEA. You elected not to become a
member of the Union, thus you are subject to agency fees.
Following receipt of the annual notice to agency fee payers, you filed an objection to CSEA's
calculation of agency fees for the 2003/04 fiscal year. An agency fee arbitration hearing was
scheduled for November 14, 2003, to consider the objections of all agency fee objectors ..
You received a letter dated October 27, 2003, from CSEA attorney Harry Gibbons who
informed you that the Union had decided not to collect agency fees from you for 2003/04.
CSEA included a refund of the agency fees which had been deducted from your paycheck for
the months of July, August and September 2003, plus interest. CSEA instructed the State
Controller to stop deducting agency fees from your paycheck effective October 2003.
Mr. Gibbons also advised you that as a result of these actions you were not an agency fee payer
and you had no right to participate in the agency fee arbitration hearing on November 14,
2003.
·
On October 30, 2003, you sent a letter to Mr. Gibbons and Arbitrator John Kagel objecting to
your exclusion from the arbitration hearing. You stated that under the law you had an
1HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may·be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
January 10, 2005
Corneliu V. Sarca
Re: 	Corneliu Sarca v. California State Employees Association
Unfair Practice Charge No. SA-CO-23-H
WARNING LETTER
Dear Mr. Sarca:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2004. Your charge alleges that the California State
Employees Association violated the Higher Education Employer-Employee Relations Act
(HEERA)' by denying you the right to challenge the calculation of the 2003/04 agency fee,
incorrectly calculating the agency fee, and denying a fair arbitration hearing.
You are employed by the California State University. Your job classification is included in a
bargaining unit which is exclusively represented by CSEA. You elected not to become a
member of the Union, thus you are subject to agency fees.
Following receipt of the annual notice to agency fee payers, you filed an objection to CSEA's
calculation of agency fees for the 2003/04 fiscal year. An agency fee arbitration hearing was
scheduled for November 14, 2003, to consider the objections of all agency fee objectors.
You received a letter dated October 27, 2003, from CSEA attorney Harry Gibbons who
informed you that the Union had decided not to collect agency fees from you for 2003/04.
CSEA included a refund of the agency fees which had been deducted from your paycheck for
the months of July, August and September 2003, plus interest. CSEA instructed the State
Controller to stop deducting agency fees from your paycheck effective October 2003.
Mr. Gibbons also advised you that as a result of these actions you were not an agency fee payer
and you had no right to participate in the agency fee arbitration hearing on November 14,
2003.
On October 30, 2003, you sent a letter to Mr. Gibbons and Arbitrator John Kagel objecting to
your exclusion from the arbitration hearing. You stated that under the law you had an
HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-23-H
January 1o, 2005
Page2
obligation to pay agency fees 'and CSEA had an obligation to represent you. You stated that
you had not cashed CSEA's refund check.
On October 31, 2003, Mr. Kagel issued a statement indicating that because you were not
charged agency fees for 2003/04, you had no standing to object to the fees charged to other
employees. Accordingly, you wc;mld not be allowed to attend the arbitration hearing.
You appeared. at the arbitration hearing as the authorized representative of another agency fee
objector. During the hearing, you made an opening statement, questioned witnesses and
submitted documentary evidence.
In a letter to CSEA dated December 12, 2003, you stated:
I do not accept your decision to cancel my fee. It is
discriminatory and unfair. 	law you have to represent me and I
have to pay a fair share fee. 	In my opinion the fee is not fair, it is
beyond what are necessary and reasonable expenses for
representation presented by you and I intend to pursue in proving
my point through any legal venue available.
By
Enclosed is a check in the amount of $78.63 for the Oct., Nov.
and Dec. 2003 fee.
Mr. Gibbons responded to your letter on December 23, 2003, stating that it was not necessary
to be an agency fee payer to be represented by CSEA. However, Mr. Gibbons accepted your
decision to voluntarily pay agency fees. Mr. Gibbons informed you that CSEA would notify
the State Controller to collect fees from you beginning with your February 2004 paycheck.
On February 17, 2004, Mr. Kagel issued his decision finding that CSEA had properly
calculated the 2003/04 agency fees. In his decision, Mr. Kagel specifically addressed the
objections you raised, which included claims that the calculation should be based on both
expenses and income, not expenses alone; the surplus should be returned to fee payers; and
that CSEA did Iiot apply the proper accounting and auditing standar~s to its financial reports.
The arbitrator considered each of these issues before rejecting them.
Your charge alleges that you were denied the right to challenge the calculation of the 2003/04
agency fee. Furthermore, your charge alleges that CSEA improperly calculated the amount of
the agency fee because the Union did not take into account the surplus in agency fee revenues
from the prior year. You assert that the surplus demonstrates that CSEA did not follow proper
accounting procedures. You also allege that the calculation.of agency fees based exclusively
on expenditures is arbitrary, discriminatory and in bad faith.
Finaliy, the charge alleges that the arbitration hearing was not fair and regular. You allege that
the arbitrator ignored your objection that the fee was excessive and did not take the surplus
into account. Your charge also challenges the arbitrator's failure to find fault with the method
SA-CO-23-H
January 10, 2005
Page 2
obligation to pay agency fees and CSEA had an obligation to represent you. You stated that
you had not cashed CSEA's refund check.
On October 31, 2003, Mr. Kagel issued a statement indicating that because you were not
charged agency fees for 2003/04, you had no standing to object to the fees charged to other
employees. Accordingly, you would not be allowed to attend the arbitration hearing
You appeared at the arbitration hearing as the authorized representative of another agency fee
objector. During the hearing, you made an opening statement, questioned witnesses and
submitted documentary evidence.
In a letter to CSEA dated December 12, 2003, you stated:
I do not accept your decision to cancel my fee. It is
discriminatory and unfair. By law you have to represent me and I
have to pay a fair share fee. In my opinion the fee is not fair, it is
beyond what are necessary and reasonable expenses for
representation presented by you and I intend to pursue in proving
my point through any legal venue available.
Enclosed is a check in the amount of $78.63 for the Oct., Nov.
and Dec. 2003 fee.
Mr. Gibbons responded to your letter on December 23, 2003, stating that it was not necessary
to be an agency fee payer to be represented by CSEA. However, Mr. Gibbons accepted your
decision to voluntarily pay agency fees. Mr. Gibbons informed you that CSEA would notify
the State Controller to collect fees from you beginning with your February 2004 paycheck.
On February 17, 2004, Mr. Kagel issued his decision finding that CSEA had properly
calculated the 2003/04 agency fees. In his decision, Mr. Kagel specifically addressed the
objections you raised, which included claims that the calculation should be based on both
expenses and income, not expenses alone; the surplus should be returned to fee payers; and
that CSEA did not apply the proper accounting and auditing standards to its financial reports.
The arbitrator considered each of these issues before rejecting them.
Your charge alleges that you were denied the right to challenge the calculation of the 2003/04
agency fee. Furthermore, your charge alleges that CSEA improperly calculated the amount of
the agency fee because the Union did not take into account the surplus in agency fee revenues
from the prior year. You assert that the surplus demonstrates that CSEA did not follow proper
accounting procedures. You also allege that the calculation of agency fees based exclusively
on expenditures is arbitrary, discriminatory and in bad faith.
Finally, the charge alleges that the arbitration hearing was not fair and regular. You allege that
the arbitrator ignored your objection that the fee was excessive and did not take the surplus
into account. Your charge also challenges the arbitrator's failure to find fault with the method

rSA-CO-23-H
January 10, 2005
Page 3
of auditing CSEA's financial statements. Further, you contend that the arbitrator erroneously
concluded that the calculation of the agency fee is based exclusively on expenditures.
Based on tb,e facts stated above, the charge does not state a prima facie case.
HEERA section 3583.5 and PERB Regulation 32990(d) permit an exclusive representative to
"initiate implementation of an organizational security provision for the payment of 'fair share'
or 'agency shop' fees by covered employees." PERB Regulation 32992 states, in relevant part:
(a) Each nonmember who will be required to pay an agency fee
shall annually receive written notice from the exclusive
representative of:
(1) The amount of the agency fee which is to be expressed as a
percentage of the annual dues per member based upon the
chargeable expenditures identified in the notice;
PERB Regulation 32994 describes an exclusive representative's obligation to provide an
agency fee appeal procedure. This provision states, in part:	·
(a) If an agency fee payer disagrees with the exclusive
representative's determination of the agency fee amount, that
employee (hereinafter known as an "agency fee objector") may
file an agency fee objection....
(7) Agency fee objection hearings shall be fair, informal
proceedings conducted in conformance with basic precepts of due
process.
PERB will defer to an arbitrator's decision in an agency fee case and dismiss an unfair practice
charge where: (1) the arbitration proceedings were fair and regular, and (2) the decision of the
arbitrator is not clearly repugnant to the purposes .ofHEERA. (ABC Federation of Teachers,
AFT Local 2317 (Murray, et al.) (1998) PERB Decision No. 1295; California Nurses
Association (O'Malley) (2004) PERB Decision No. 1607-H.)
The Board has previously held that an agency fee payer has no standing to participate in
agency fee arbitration proceedings when a union has refunded their agency fees because there
is no possibility that the employee's fees will be misspent. The exclusion of employees from
arbitration proceedings who are exempt from paying agency fees does not demonstrate that the
arbitration proceedings are unfair, procedurally defective or repugnant to the HEERA.
(California Nurses Association (O'Malley), supra, PERB Decision No. 1607-H; Los Rios
College Federation of Teachers, Local 2279, CFT/AFT (Deglow) (1992) PERB Decision
No. 950.)
,
7
SA-CO-23-H
January 10, 2005
Page 3
of auditing CSEA's financial statements. Further, you contend that the arbitrator erroneously
concluded that the calculation of the agency fee is based exclusively on expenditures.
Based on the facts stated above, the charge does not state a prima facie case.
HEERA section 3583.5 and PERB Regulation 32990(d) permit an exclusive representative to
"initiate implementation of an organizational security provision for the payment of 'fair share'
or 'agency shop' fees by covered employees." PERB Regulation 32992 states, in relevant part:
(a) Each nonmember who will be required to pay an agency fee
shall annually receive written notice from the exclusive
representative of:
(1) The amount of the agency fee which is to be expressed as a
percentage of the annual dues per member based upon the
chargeable expenditures identified in the notice;
PERB Regulation 32994 describes an exclusive representative's obligation to provide an
agency fee appeal procedure. This provision states, in part:
(a) If an agency fee payer disagrees with the exclusive
representative's determination of the agency fee amount, that
employee (hereinafter known as an "agency fee objector") may
file an agency fee objection.
7) Agency fee objection hearings shall be fair, informal
proceedings conducted in conformance with basic precepts of due
process.
PERB will defer to an arbitrator's decision in an agency fee case and dismiss an unfair practice
charge where: (1) the arbitration proceedings were fair and regular, and (2) the decision of the
arbitrator is not clearly repugnant to the purposes of HEERA. (ABC Federation of Teachers.
AFT Local 2317 (Murray, et al.) (1998) PERB Decision No. 1295; California Nurses
Association (O'Malley) (2004) PERB Decision No. 1607-H.)
The Board has previously held that an agency fee payer has no standing to participate in
agency fee arbitration proceedings when a union has refunded their agency fees because there
is no possibility that the employee's fees will be misspent. The exclusion of employees from
arbitration proceedings who are exempt from paying agency fees does not demonstrate that the
arbitration proceedings are unfair, procedurally defective or repugnant to the HEERA.
California Nurses Association (O'Malley), supra, PERB Decision No. 1607-H; Los Rios
College Federation of Teachers. Local 2279, CFT/AFT (Deglow) (1992) PERB Decision
No. 950.)

SA-CO-23-H
January 10, 2005
Page4
At the time of the arbitration hearing, you were exempt from the payment of agency fees.
CSEA refunded your agency fees on October 27, 2003, and informed you that you would not
be subject to agency fees for the remainder of the year. Under the rule discussed above,
because you were not subject to the fees, you had no standing to challenge the calculation of
the agency fee in the arbitration hearing. Thus, your exclusion from the hearing because your
agency fees were refunded does not demonstrate that the arbitration proceedings were not fair
and regular, or were repugnant to the purposes ofl!EERA.
·
After the hearing, in December 2003, you insisted on paying agency fees and submitted a
check to CSEA to cover agency fees for October, November and December 2003. On
December 23, 2003, CSEA accepted your decision to pay agency fees and reinstated you as an
agency fee payer. Assuming you were entitled to participate in an arbitration hearing after
agency fees were reinstated for the remainder of the year, you actually participated in the
November 14, 2003 arbitration as the representative of another agency fee objector. You made
an opening statement on the record, questioned witnesses and submitted documentary evidence
during the hearing. You presented both evidence and your theories concerning the refund of
surplus fee revenues and proper accounting and auditing requirements. This evidence was
specifically considered and addressed by the arbitrator in his decision. Thus, there is no
evidence that the arbitration proceedings were not fair and regular, or were repugnant to
HEERA.
·
Finally, the issues you brought before the arbitrator are the same issues you raised in a prior
charge before PERB. (see·california State Employees Association. CSU Division (Sarca)
(2004) PERB Decision No. 1626-H.) In CSEA (Sarca). the Board explained that the amountof
an agency fee is based on the expenditures made by a union. Until the surplus funds are spent,
they are not used as a basis for calculating the amount of agency fees.
Because there is no evidence the agency fee arbitration proceedings were not fair and regular,
or were repugnant to HEERA, PERB will defer to the decision of the arbitrator and the charge
must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penaltyof perjury by the
charging party. The amended charge must have the case number writtenon the top right hand
comer of the charge form. The amended charge must be served on the respondent's
SA-CO-23-H
January 10, 2005
Page 4
At the time of the arbitration hearing, you were exempt from the payment of agency fees.
CSEA refunded your agency fees on October 27, 2003, and informed you that you would not
be subject to agency fees for the remainder of the year. Under the rule discussed above,
because you were not subject to the fees, you had no standing to challenge the calculation of
the agency fee in the arbitration hearing. Thus, your exclusion from the hearing because your
agency fees were refunded does not demonstrate that the arbitration proceedings were not fair
and regular, or were repugnant to the purposes of HEERA.
After the hearing, in December 2003, you insisted on paying agency fees and submitted a
check to CSEA to cover agency fees for October, November and December 2003. On
December 23, 2003, CSEA accepted your decision to pay agency fees and reinstated you as an
agency fee payer. Assuming you were entitled to participate in an arbitration hearing after
agency fees were reinstated for the remainder of the year, you actually participated in the
November 14, 2003 arbitration as the representative of another agency fee objector. You made
an opening statement on the record, questioned witnesses and submitted documentary evidence
during the hearing. You presented both evidence and your theories concerning the refund of
surplus fee revenues and proper accounting and auditing requirements. This evidence was
specifically considered and addressed by the arbitrator in his decision. Thus, there is no
evidence that the arbitration proceedings were not fair and regular, or were repugnant to
HEERA.
Finally, the issues you brought before the arbitrator are the same issues you raised in a prior
charge before PERB. (see California State Employees Association, CSU Division (Sarca)
(2004) PERB Decision No. 1626-H.) In CSEA (Sarca), the Board explained that the amount of
an agency fee is based on the expenditures made by a union. Until the surplus funds are spent,
they are not used as a basis for calculating the amount of agency fees.
Because there is no evidence the agency fee arbitration proceedings were not fair and regular,
or were repugnant to HEERA, PERB will defer to the decision of the arbitrator and the charge
must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's

SA-CO-23-H
January 10, 2005
Page 5
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you by January 24, 2005, I shall dismiss your charge.
Sincerely,
#l:~~
SA-CO-23-H
January 10, 2005
Page 5
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you by January 24. 2005, I shall dismiss your charge.
Sincerely,
Robin W. Wesley
Regional Attorney	Regional Attorney

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIU SARCA,
Charging Party,
V.
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CO-23-H
PROPOSED DECISION
(7/22/05)
Appearances: Corneliu Sarca, in pro per; Service Employees International Union, CSEA,
AFL-CIO, CLC by Harry J. Gibbons, Attorney, for California State Employees Association.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
Corneliu Sarca (Sarca), an employee of California State University Northridge, filed an
unfair practice charge against California State Employees Association (CSEA) on July 19,
2004, and an amended charge on January 26, 2005, alleging that CSEA incorrectly calculated
the agency fees for the fiscal years 2003/2004 and 2004/2005 and denied him a fair arbitration
hearing to challenge the calculations. On February 9, 2005, the Office of General Counsel of
the Public Employment Relations Board (PERB or Board) issued a partial dismissal letter
dismissing allegations regarding the 2003/2004 agency fee. 1 On the same date, the Office of
General Counsel of PERB issued a complaint alleging that CSEA denied Sarca the right to
challenge the 2004/2005 agency fee by failing to notify him of an arbitration hearing, conduct
inconsistent with its duty to comply with PERB Regulation 329942 and in violation of sections
SSarca appealed the dismissal; his appeal is pending before the Board.
2 PERB Regulation 32994 sets forth a procedure allowing employees to appeal agency
fees assessed by their exclusive representative, including the requirement that after an
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CORNELIU SARCA,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SA-CO-23-H
v . 	PROPOSED DECISION
(7/22/05)
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Respondent.
Appearances: Corneliu Sarca, in pro per; Service Employees International Union, CSEA,
AFL-CIO, CLC by Harry J. Gibbons, Attorney, for California State Employees Association.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
Corneliu Sarca (Sarca), an employee of California State University Northridge, filed an
unfair practice charge against California State Employees Association (CSEA) on July 19,
2004, and an amended charge on January 26, 2005, alleging that CSEA incorrectly calculated
the agency fees for the fiscal years 2003/2004 and 2004/2005 and denied him a fair arbitration
hearing to challenge the calculations. On February 9, 2005, the Office of General Counsel of
the Public Employment Relations Board (PERB or Board) issued a partial dismissal letter
dismissing allegations regarding the 2003/2004 agency fee.' On the same date, the Office of
General Counsel of PERB issued a complaint alleging that CSEA denied Sarca the right to
challenge the 2004/2005 agency fee by failing to notify him of an arbitration hearing, conduct
inconsistent with its duty to comply with PERB Regulation 32994 and in violation of sections
arca appealed the dismissal; his appeal is pending before the Board.
2 PERB Regulation 32994 sets forth a procedure allowing employees to appeal agency
fees assessed by their exclusive representative, including the requirement that after an

3571.l(b) and 3571.l(e) of the Higher Education Employer-Employee Relations Act
(HEERA).3
On February 5, 2005, CSEA filed a motion to dismiss the complaint on the basis that
CSEA had not collected any agency fees from Sarca for the 2004/2005 fiscal year, but rather
had returned Sarca's uncancelled check proffering a portion of the fees, therefore Sarca had no
standing to contest the fee calculations or to appear at an arbitration hearing. An informal
conference was held on March 24, 2005, but the matter was not resolved.
This proposed decision is in response to the motion to dismiss; no formal hearing has
been scheduled or held. The undersigned was assigned this case on June 27, 2005, and the
matter was submitted for a ruling on the motion on that date.
FINDINGS OF FACT
The facts are undisputed. 	Sarca is a higher education employee within the meaning of
HEERA section 3562(e). California State University is a higher education employer within the
meaning of section 3562(g). CSEA is an employee organization within the meaning of section
3526 (f)(l) and an exclusive representative within the meaning of section 3526 (i).
On June 24, 2004,4 Sarca received CSEA's June 2004 Notice to Fair Share Fee Payers
regarding the 2003/2004 agency fees. The notice required agency fee payers to file objections
employee has filed an objection to the fee, the representative "shall request a prompt hearing ..
. before an impartial decisionmaker" and that such hearings "shall be fair, informal
proceedings conducted in conformance with basic precepts of due process."
3 HEERA is codified at Government Code section 3560 et seq. Section 3571.1
declares it unlawful for an employee organization to "(b) Impose or threaten to impose
reprisals on employees, to discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because of their exercise ofrights
guaranteed by this chapter," or "( e) Fail to represent fairly and impartially all the employees in
the unit for which it is the exclusive representative."
4 All dates hereafter refer to the year 2004 unless otherwise specified.
2
3571.1(b) and 3571.1(e) of the Higher Education Employer-Employee Relations Act
(HEERA).3
On February 5, 2005, CSEA filed a motion to dismiss the complaint on the basis that
CSEA had not collected any agency fees from Sarca for the 2004/2005 fiscal year, but rather
had returned Sarca's uncancelled check proffering a portion of the fees, therefore Sarca had no
standing to contest the fee calculations or to appear at an arbitration hearing. An informal
conference was held on March 24, 2005, but the matter was not resolved.
This proposed decision is in response to the motion to dismiss; no formal hearing has
been scheduled or held. The undersigned was assigned this case on June 27, 2005, and the
matter was submitted for a ruling on the motion on that date.
FINDINGS OF FACT
The facts are undisputed. Sarca is a higher education employee within the meaning of
HEERA section 3562(e). California State University is a higher education employer within the
meaning of section 3562(g). CSEA is an employee organization within the meaning of section
3526 (f)(1) and an exclusive representative within the meaning of section 3526 (i).
On June 24, 2004,* Sarca received CSEA's June 2004 Notice to Fair Share Fee Payers
regarding the 2003/2004 agency fees. The notice required agency fee payers to file objections
employee has filed an objection to the fee, the representative "shall request a prompt hearing . .
before an impartial decisionmaker" and that such hearings "shall be fair, informal
proceedings conducted in conformance with basic precepts of due process."
HEERA is codified at Government Code section 3560 et seq. Section 3571.1
declares it unlawful for an employee organization to "(b) Impose or threaten to impose
reprisals on employees, to discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because of their exercise of rights
guaranteed by this chapter," or "(e) Fail to represent fairly and impartially all the employees in
the unit for which it is the exclusive representative."
4 All dates hereafter refer to the year 2004 unless otherwise specified.
2

and/or challenges to the amount of the agency fee by July 10. Sarca filed an objection and
challenge to the agency fee on July 3. 	On September 2, Sarca sent CSEA a check in the
amount of $56.46 for July and August fees. 	On September 8, CSEA returned the check with a
cover letter which stated:
On September 2, 2004, you sent CSEA check number 1525 in the
amount of $56.46. You claim that CSEA must accept the check
as payment for your fair share fees for the months of July and
August 2004. Until further notice, be advised that CSEA does
not wish to collect fair share fees from you. Accordingly, CSEA
is returning check number 1525 to you with this letter.
Although CSEA is not collecting fair share fees from you, rest
assured that CSEA fully intends to meet the duty of fair
representation it owes you under the law.
Finally, please do not send unsolicited checks to CSEA. If you
send unsolicited checks, CSEA will shred the checks without
further notice to you.
The record does not reveal whether an arbitration hearing was held which Sarca did not
receive notice of, or whether no arbitration hearing was scheduled. In any event, Sarca did not
have an opportunity to argue the fee calculation before an arbitrator.
ISSUE
Did CSEA unlawfully prevent Sarca from challenging the 2004/2005 agency fee?
CONCLUSIONS OF LAW
In Abood v. Detroit Board of Education (1977) 431 U.S. 209 [95 LRRM 2411]
(Abood), the Court held that there are no constitutional barriers to an agency shop agreement
between a public employer and a teachers' union which requires every bargaining unit
employee to pay his fair share of the union's costs of collective bargaining, contract
administration, and grievance adjustment. However, objecting nonmember employees do have
the right to "prevent the Union's spending a part of their required service fees to contribute to
political candidates and to express political views unrelated to its duties as exclusive
3
and/or challenges to the amount of the agency fee by July 10. Sarca filed an objection and
challenge to the agency fee on July 3. On September 2, Sarca sent CSEA a check in the
amount of $56.46 for July and August fees. On September 8, CSEA returned the check with a
cover letter which stated:
On September 2, 2004, you sent CSEA check number 1525 in the
amount of $56.46. You claim that CSEA must accept the check
as payment for your fair share fees for the months of July and
August 2004. Until further notice, be advised that CSEA does
not wish to collect fair share fees from you. Accordingly, CSEA
is returning check number 1525 to you with this letter.
Although CSEA is not collecting fair share fees from you, rest
assured that CSEA fully intends to meet the duty of fair
representation it owes you under the law.
Finally, please do not send unsolicited checks to CSEA. If you
send unsolicited checks, CSEA will shred the checks without
further notice to you.
The record does not reveal whether an arbitration hearing was held which Sarca did not
receive notice of, or whether no arbitration hearing was scheduled. In any event, Sarca did not
have an opportunity to argue the fee calculation before an arbitrator.
ISSUE
Did CSEA unlawfully prevent Sarca from challenging the 2004/2005 agency fee?
CONCLUSIONS OF LAW
In Abood v. Detroit Board of Education (1977) 431 U.S. 209 [95 LRRM 2411]
(Abood), the Court held that there are no constitutional barriers to an agency shop agreement
between a public employer and a teachers' union which requires every bargaining unit
employee to pay his fair share of the union's costs of collective bargaining, contract
administration, and grievance adjustment. However, objecting nonmember employees do have
the right to "prevent the Union's spending a part of their required service fees to contribute to
political candidates and to express political views unrelated to its duties as exclusive
3

bargaining representative." (Id, 431 U.S. at 234.) Following this principle in Chicago
Teachers Association v. Hudson (1986) 475 U.S. 292 [121 LRRM 2793] (Hudson), the Court
set forth procedures requiring unions to explain the basis for its fees, provide prompt
opportunity to challenge the amount of the fee before an impartial decisionmaker, and place
disputed fees in an escrow account pending the decision. In conformity with Hudson, as noted
above, HEERA contains specific requirements for unions to send employees annual "Hudson"
notices informing them of the fees and of their right to challenge the fee calculations.
However, in Los Rios College Federation of Teachers. Local 2279, CFT/AFT (Deglow)
(1992) PERB Decision No. 950 (Los Rios), the Board held that an employee who is not
required by the union to pay agency fees has no standing to challenge the fee calculations.
There, Deglow had received a Hudson notice and had filed an objection. Thereafter, the union
returned to Deglow the fees which had thus far been collected from her for that fiscal year,
denied her request to proceed to arbitration, and no further agency fees were collected.
Deglow filed an unfair practice charge alleging that the union unlawfully denied her right to a
fee determination hearing. In its warning letter, later incorporated into a dismissal letter which
was upheld by the Board on appeal, the Board agent cited a non-precedential decision of the
administrative law judge in Booth. Ambrose v. Association of California State Attorneys and
Administrative Law Judges, Unfair Practice Case No. S-CO-110-S as persuasive. In Booth,
Ambrose, the judge reasoned that "because the fees had been returned, there was no real
remedy that PERB could afford the parties that they had not already received," and that "since
the charging parties in this case have suffered no harm, nor do they have any potential for any
harm, they have no standing to challenge the union's refusal to provide them with arbitration."5
The Board agent in Los Rios also noted that the purpose of Hudson protections was to "prevent
5 The judge dismissed the case and it was not appealed.
4
bargaining representative." (Id, 431 U.S. at 234.) Following this principle in Chicago
Teachers Association v. Hudson (1986) 475 U.S. 292 [121 LRRM 2793] (Hudson), the Court
set forth procedures requiring unions to explain the basis for its fees, provide prompt
opportunity to challenge the amount of the fee before an impartial decisionmaker, and place
disputed fees in an escrow account pending the decision. In conformity with Hudson, as noted
above, HEERA contains specific requirements for unions to send employees annual "Hudson"
notices informing them of the fees and of their right to challenge the fee calculations.
However, in Los Rios College Federation of Teachers, Local 2279, CFT/AFT (Deglow)
(1992) PERB Decision No. 950 (Los Rios), the Board held that an employee who is not
required by the union to pay agency fees has no standing to challenge the fee calculations.
There, Deglow had received a Hudson notice and had filed an objection. Thereafter, the union
returned to Deglow the fees which had thus far been collected from her for that fiscal year,
denied her request to proceed to arbitration, and no further agency fees were collected.
Deglow filed an unfair practice charge alleging that the union unlawfully denied her right to a
fee determination hearing. In its warning letter, later incorporated into a dismissal letter which
was upheld by the Board on appeal, the Board agent cited a non-precedential decision of the
administrative law judge in Booth, Ambrose v. Association of California State Attorneys and
Administrative Law Judges, Unfair Practice Case No. S-CO-110-S as persuasive. In Booth,
Ambrose, the judge reasoned that "because the fees had been returned, there was no real
remedy that PERB could afford the parties that they had not already received," and that "since
the charging parties in this case have suffered no harm, nor do they have any potential for any
harm, they have no standing to challenge the union's refusal to provide them with arbitration."
The Board agent in Los Rios also noted that the purpose of Hudson protections was to "prevent
The judge dismissed the case and it was not appealed.
4

the use of nonmember funds for purposes beyond the union's representational obligations."
(citing Cumero v. Public Employment Relations Board (1989 49 Cal.3d 579, 590. [262 Cal.
Rptr. 46]) Thus, if the nonmember were not paying any funds, she would have no need of
protection.
A similar unfair practice charge was dismissed in Robert J. O'Malley v. California
Nurses Association (2004) PERB Decision No. 1607-H (O'Malley). There, O'Malley received
a Hudson notice and filed objections, after which the union returned in full the agency fees
collected from him for the relevant fiscal year. The union did proceed to an arbitration
hearing, however, it challenged O'Malley's standing to participate in the hearing, and the
arbitrator agreed. In its decision deferring to the arbitrator's decision and upholding the
dismissal, the Board followed the reasoning in Los Rios, citing that portion of the non-
precedential Booth, Ambrose case cited above, and stating:
Once CNA refunded the collected fees in full to O'Malley, CNA
could not use the fees in any way, let alone wrongfully use them.
There is no possibility for harm to O'Malley that the Board could
remedy. To hold otherwise would lead to an absurd result: that
individuals may challenge the use of funds no longer in the
possession of the exclusive representative or of funds held by the
exclusive representative but collected from other employees.
The Board also responded to O'Malley's argument that since the union refunded his agency
fees, HEERA section 3583.56 would require his termination from the university where he was
employed. In that regard, the Board noted that "there is no indication in the charge that either
CNA or the University have any interest in terminating O'Malley's employment."
6 Section 3583.5 requires in part that "(a)ny employee of... the University of
California ... who is in a unit for which an exclusive representative has been selected ... shall
be required, as a condition of continued employment, either to join the recognized employee
organization or to pay the organization a fair share service fee."
5
the use of nonmember funds for purposes beyond the union's representational obligations."
(citing Cumero v. Public Employment Relations Board (1989 49 Cal.3d 579, 590. [262 Cal.
Rptr. 46]) Thus, if the nonmember were not paying any funds, she would have no need of
protection.
A similar unfair practice charge was dismissed in Robert J. O'Malley v. California
Nurses Association (2004) PERB Decision No. 1607-H (O'Malley). There, O'Malley received
a Hudson notice and filed objections, after which the union returned in full the agency fees
collected from him for the relevant fiscal year. The union did proceed to an arbitration
hearing, however, it challenged O'Malley's standing to participate in the hearing, and the
arbitrator agreed. In its decision deferring to the arbitrator's decision and upholding the
dismissal, the Board followed the reasoning in Los Rios, citing that portion of the non-
precedential Booth, Ambrose case cited above, and stating:
Once CNA refunded the collected fees in full to O'Malley, CNA
could not use the fees in any way, let alone wrongfully use them.
There is no possibility for harm to O'Malley that the Board could
remedy. To hold otherwise would lead to an absurd result: that
individuals may challenge the use of funds no longer in the
possession of the exclusive representative or of funds held by the
exclusive representative but collected from other employees
The Board also responded to O'Malley's argument that since the union refunded his agency
fees, HEERA section 3583.5 would require his termination from the university where he was
employed. In that regard, the Board noted that "there is no indication in the charge that either
CNA or the University have any interest in terminating O'Malley's employment."
Section 3583.5 requires in part that "(any employee of. . . the University of
California . . . who is in a unit for which an exclusive representative has been selected . . . shall
be required, as a condition of continued employment, either to join the recognized employee
organization or to pay the organization a fair share service fee."

In the instant case, Sarca' s check for fees was not even accepted in the first place but
was returned uncancelled, and CSEA has made it clear that it does not intend to collect any
fees from him. And, like O'Malley, there is no indication here that either CSEA or the
University have any interest in terminating his employment. Accordingly, I find that Sarca has
no standing to challenge CSEA's fee calculations.
Sarca opposes the motion to dismiss on the following grounds: (1) CSEA did not
return "the amount that is above the necessary and reasonable expenses for representation."
[Emphasis added.] 	Sacra appears to argue that CSEA should have returned only the amount
expended for non-representational purposes, e.g., political contributions. However, as CSEA
returned the full amount of Sarca' s check, it would make no sense to fault CSEA for not
returning only a portion of the full amount. (2) The fee calculation for 2004/2005 was based
on fiscal year 1993, for which Sarca paid fees. The record does not reveal the basis for Sacra's
reference to fiscal year 1993. His argument fails in two respects: one, because as analyzed
above, Sarca has no standing to challenge the calculations for the 2004/2005 fees; and two,
because anything paid in 1993 is far beyond the statute oflimitations. (3) O'Malley is not
applicable because it refers to "chargeable expenditures" which in this case are not challenged.
Here, Sacra appears to suggest that he would make a different challenge to the agency fees
than O'Malley made. However, even assuming arguendo that Sarca would make a different
challenge, the principle that he lacks standing to make any challenge whatsoever remains. (4)
"There is not any legal support for the transfer of the surplus from the restricted refundable
trust account of fees as an unrestricted asset of the union." Here, Sarca raises a new issue, i.e.,
CSEA's accounting practices. There is no statutory guarantee in HEERA or in any of the cases
cited above which gives employees the right to challenge a union's accounting practices in an
6
In the instant case, Sarca's check for fees was not even accepted in the first place but
was returned uncancelled, and CSEA has made it clear that it does not intend to collect any
fees from him. And, like O'Malley, there is no indication here that either CSEA or the
University have any interest in terminating his employment. Accordingly, I find that Sarca has
no standing to challenge CSEA's fee calculations.
Sarca opposes the motion to dismiss on the following grounds: (1) CSEA did not
return "the amount that is above the necessary and reasonable expenses for representation."
[Emphasis added.] Sacra appears to argue that CSEA should have returned only the amount
expended for non-representational purposes, e.g., political contributions. However, as CSEA
returned the full amount of Sarca's check, it would make no sense to fault CSEA for not
returning only a portion of the full amount. (2) The fee calculation for 2004/2005 was based
on fiscal year 1993, for which Sarca paid fees. The record does not reveal the basis for Sacra's
reference to fiscal year 1993. His argument fails in two respects: one, because as analyzed
above, Sarca has no standing to challenge the calculations for the 2004/2005 fees; and two,
because anything paid in 1993 is far beyond the statute of limitations. (3) O'Malley is not
applicable because it refers to "chargeable expenditures" which in this case are not challenged.
Here, Sacra appears to suggest that he would make a different challenge to the agency fees
than O'Malley made. However, even assuming arguendo that Sarca would make a different
challenge, the principle that he lacks standing to make any challenge whatsoever remains. (4)
"There is not any legal support for the transfer of the surplus from the restricted refundable
trust account of fees as an unrestricted asset of the union." Here, Sarca raises a new issue, i.e.,
CSEA's accounting practices. There is no statutory guarantee in HEERA or in any of the cases
cited above which gives employees the right to challenge a union's accounting practices in an
6

unfair practice proceeding, nor is it alleged in the complaint. I therefore find Sarca' s
opposition to the motion lacks merit on each of its grounds.
Accordingly, I do not find that CSEA unlawfully denied Sarca his right to challenge
CSEA's agency fee calculations for the 2004/2005 fiscal year.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, it is found that the complaint in Case SA-CO-23-H, Corneliu Sarca v. California
State Employee Association, is without merit and it is hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
7
unfair practice proceeding, nor is it alleged in the complaint. I therefore find Sarca's
opposition to the motion lacks merit on each of its grounds.
Accordingly, I do not find that CSEA unlawfully denied Sarca his right to challenge
CSEA's agency fee calculations for the 2004/2005 fiscal year.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, it is found that the complaint in Case SA-CO-23-H, Corneliu Sarca v. California
State Employee Association, is without merit and it is hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies

and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
~ 	l 	1/bmvn~Ann L. Weinman
Administrative Law Judge
v
8
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
WenmanAnn L. Weinman
Administrative Law Judge
8