Office and Professional Employees International Union, Local 29, AFL-CIO and Central Labor Councils (Fowles) (PERB 2236M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAURA FOWLES,
Charging Party,
V.
OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 29,
AFL-CIO & CLC,
Respondent.
Case No. SF-CO-229-M
PERB Decision No. 	2236-M
February 7, 2012
Appearance: National Right to Work Legal Defense Foundation, Inc. by Erin E. Smith,
Representative, for Laura Fowles.
Before Martinez, Chair; McKeag, Dowdin Calvillo, and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Laura Fowles (Fowles) from a PERB Board agent's
dismissal of her unfair practice charge. The charge alleged that the Office & Professional
Employees International Union, Local 29, AFL-CIO & CLC (OPEIU) violated the Meyers
Milias-Brown Act (MMBA)1 and PERB Regulation 329922 by failing to inform Fowles of her
right not to become a member of OPEIU, failing to provide notice of her rights as an agency
fee payer, and by affirmatively misrepresenting to Fowles that full union membership was
required as a condition of employment. The Board agent dismissed the charge based upon the
determination that: 	(1) the charge, as amended, was not timely filed because the factual
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

allegations
of
the amended charge all occurred more than six months prior to the filing
of
the
amended charge and did not "relate back" to the allegations
of
the original charge; (2) the
charge failed to state a prima facie case
of
a violation
of
PERB Regulation 32992; and (3) the
charge failed to establish a prima facie case that the alleged misrepresentations violated either
the MMBA or PERB regulations.
The Board has reviewed the dismissal and the record in light
of
Fowles' s appeal and the
relevant law. Based on this review, the Board reverses the dismissal
of
the charge and directs
that a complaint be issued for the reasons discussed below.
FA.CTUAL ALLEGATIONS3
Fowles is employed by Alameda Hospital (Hospital) and is a member
of
a bargaining
unit represented by OPEIU. 	The Hospital and OPEIU were parties to a collective bargaining
agreement (Agreement) for the period February
1,
2007 through January 31, 2010. 	Section 4
of
the Agreement, entitled "Union-Agency Shop" states, in relevant part:
Employees who are members
of
the Union on May 13, 1970,
shall maintain such membership during the term
of
this
Agreement. All employees hired after May 13, 1970, shall, not
later than the thirty-first (31st) day following the commencement
of
their employment, become and remain members
of
the Union
in good standing. "Membership in good standing" shall be
defined to mean employed members in the Union who tender
periodic dues and initiation fees uniformly required
by
the Union
as a condition
of
acquiring or retaining membership.
All employees who have been employed prior to May 13, 1970,
and who are not members
of
the Union shall, as a condition of
continued employment, one month after May 13, 1970, pay to the
At this stage of the proceedings, we must assume that the essential facts alleged in the
charge are true. (Kings In-Home Supportive Services Public Authority (2009) PERB Decision
No. 2009-M; Golden Plains Unified School District (2002) PERB Decision No. 1489;
San Juan Unified School District (1977) EERB * Decision No. 12.) (*Prior to January 1978,
PERB was known as the Educational Employment Relations Board or EERB.)
2

Union each month a service charge as a contribution toward the
administration of this Agreement. The service charge shall be in
an amount equal to the Union's regular monthly dues.
A newly employed employee shall be notified of the Union
membership requirements of this Agreement immediately upon
employment.
The Union will provide copies of membership applications and
the collective bargaining Agreement to the Hospital and the
Hospital will furnish each newly employed employee with a copy
of this Agreement.
Upon written notice to the Hospital and upon examination of
documentary proof that an employee is or was a member of the
Union within the meaning of this Section, or that an employee
has failed to acquire and maintain membership as above
provided, the Hospital shall terminate the employment of such
employee unless the Hospital has reasonable grounds for
believing that Union membership was denied or terminated for
reasons other than failure to maintain good standing as defined
above. Failure to pay service charge where required is cause for
termination upon request of the Union.
On January 8, 2010, OPEIU sent Fowles a letter entitled "Welcome to OPEIU
Local 29" that stated, in part:
Welcome!! You are now represented by OPEIU Local 29. The
Collective Bargaining Agreement between your Employer and
OPEIU Local 29 (copy enclosed) requires that you become a
member in good standing and that you maintain such status as a
condition of employment.
Enclosed you will find the following documents, an "Application
For Membership" that must be completed and returned upon
your receipt of this letter, "This is Your Union" for important
information regarding your monthly Membership Dues/Fees,
"Our Commitment To You", services available to you since
you are now a Union member, "Local 29 Members Who Work
Less Than Full Time", a policy for all part time dues/fees
reimbursements and "Welcome To OPEIU Local 29" important
information regarding OPEIU Local 29.
(Emphasis in original.)
3

Believing she was required to join the union based on the letter and union application
provided to her by OPEIU on January 8, 2010, Fowles completed the union membership
application.
On or about February 10, 2010, while working at a second job, Fowles received a
handout from OPEIU, who was involved in a representation election with that employer.4 The
handout stated that, although management had told employees that they would have to become
union members if OPEIU won the election, "[i]t is against the law to compel you to be a
'member' of the union." The handout also informed employees of their option to be an agency
fee payer. 5 Fowles alleges that, until she received this handout, she was not aware that she had
the option to be a non-member agency fee payer.
On February 18, 2010, OPEIU sent Fowles a letter demanding the payment of dues for
the months of December 2009, and January and February 2010. Like the January 8, 2010
welcome letter, the February 18, 2010 letter contains the following statement:
The Collective Bargaining Agreement between your Employer
and Local 29 requires that you become a member in good
standing, and that you maintain such status as a condition of
employment.
On February 19, 2010, Fowles sent OPEIU a letter in which she resigned her
contained a check for $315.50 along with a membership application form in which Fowles had
struck out the word "Membership" and wrote in "Fee Payment Only," and wrote on the form,
"I choose not to join and will pay the fees associated." She also added the notation, "This is
Although not entirely clear, it appears that the other employer was a private employer.
5 As discussed in further detail below, an "agency fee" payer is an employee who
chooses not to become a member of the union but is nonetheless required to pay a fee to the
union for the cost of representational activities on the employee's behalf.
4

not an application for membership but, an authorization for non-member dues only."
(Underlining in original.) OPEIU contends that it received the letter on or about March 1,
2010 and that it thereafter changed Fowl es' status to that of a "Financial Core Member."
On May 20, 2010, OPEIU sent Fowles two letters demanding payment of delinquent
dues or fees for March and April 2010. Unlike the prior letters, one of the May 20, 2010
letters states that the Agreement between Fowles' employer and OPEIU requires that she be a
"member/fee payer" in good standing. The other letter also states that "dues/fees" have not
been submitted.
On June 24, 2010, OPEIU sent Fowles a letter that again asserted that the Agreement
between her employer and OPEIU required that she become a member in good standing and
that she maintain such status as a condition of employment. The letter asserted that Fowles
owed dues for March, April and May 2010. The letter further stated that failure to comply
with this request "may result in a request to your Employer for your termination for not
maintaining dues in good standings [sic] with the Union as required by your Collective
Bargaining Agreement."
On June 21, 2010, Fowles filed an unfair practice charge that alleged, in relevant part:
2) The employer and Local 29 have been parties to a contract
containing a "union security" clause. In enforcing this "union
security" clause, Local 29 has never informed the Charging Party
or any similarly situated discriminates [sic] of their right to be a
nonmember or of their rights under PERB Regulation 32992,
Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and
Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
3) To the contrary, since beginning employment and continuing
to date, Local 29 has misrepresented to the Charging Party and to
all employees that joining the union, signing dues deduction
cards, and paying full union dues and initiation fees is required as
a condition of employment.
5

On July 8, 2010, OPEIU responded to the charge and provided additional facts. 6
On March 1, 2011, the Board agent issued a letter warning Fowl es that the charge failed
to state a prima facie case and providing her with the opportunity to amend the charge to
correct the deficiencies identified in the warning letter. On March 15, 2011, Fowl es filed an
amended charge. The amended charge included the following allegations:
• 	The January 8, 2010 letter from OPEIU informed Fowles that the Agreement between
the Hospital and OPEIU required Fowles to become a member in good standing and
that she maintain such status as a condition of employment. Unaware that she had any
other option, Fowles completed a union membership card at that time.
• 	In both its welcome letter and the fine print of the membership card, OPEIU did not
inform Fowles that she had the right to be a non-member, pay an agency fee, or of the
safeguards provided to non-members under Hudson7 and PERB Regulation 32992.
• 	Prior to receipt of the February 10, 2010 handout Fowles received from OPEIU at her
second job, she was not aware she had the option to be a non-member agency fee payer.
• 	The February 18, 2010 letter from OPEIU demanded payment of dues and an initiation
fee and asserted that Fowles was required to become a member of OPEIU in good
standing and to maintain such status as a condition of employment.
• 	Fowles revoked her union membership on February 19, 2010 and objected to paying
anything more than an agency fee.
• 	The May 20, 2010 letter demanded payment of March and April 2010 dues.
6 Nothing in the MMBA or PERB law requires a Board agent to ignore the facts
provided by the respondent to an unfair practice charge and to consider only the facts provided
by the charging party. (Service Employees International Union #790 (Adza) (2004) PERB
Decision No. 1632-M.)
7 Chicago Teachers Union v. Hudson (1986) 475 U.S. 292 (Hudson).
6

• 	The June 24, 2010 letter stated that Fowles was required to become a member of
OPEIU and maintain that status as a condition of employment, and threatened her with
termination if she failed to pay dues for March, April and May 2010.
On April 5, 2011, the Board agent dismissed the charge for failure to state a prima facie
case. Fowles timely appealed the dismissal to the Board.
BOARD AGENT'S DISMISSAL
The Board agent determined that the charge was untimely because the factual
allegations of the amended charge all occurred more than six months prior to the filing of the
amended charge and did not "relate back" to the allegations of the original charge. The Board
agent further determined that, even if the amended charge were timely filed, it failed to state a
prima facie case of either a violation of PERB Regulation 32992 or that the alleged
misrepresentations by OPEIU that Fowles was required to become a union member rather than
advise her of her right to be an agency fee payer violated either the MMBA or PERB
regulations.
APPEAL
On appeal, Fowles argues that the charge is timely in that the amended charge does not
make any new factual allegations but only clarifies the broader statement of facts contained in
the original charge. Fowles further argues that, taken together, the original charge and the
amended charge state a prima facie violation of PERB Regulation 32992 and the rules set
forth by the United States Supreme Court in Abood v. Detroit Bd. of Education (1977)
431 U.S. 209 (Abood) and Hudson concerning the right not to become a union member.8
8 OPEIU did not file a response to the appeal.
7

DISCUSSION
Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd.
(2005) 3 5 Cal.4th 1072.) The limitations period begins to run once the charging party knows,
or should have known, of the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177.)9 A charging party bears the burden of
demonstrating that the charge is timely filed. 	(Long Beach Community College District (2009)
PERB Decision No. 2002.)
Fowles filed her charge on June 21, 2010. The Board has held that the statute of
limitations for allegations that a union improperly collected fair share fees begins to run during
the first pay period in which the improper fee is collected. (Service Employees International
Union Local 1000 (Slotterbeck) (2010) PERB Decision No. 2135-S [allegations that union
collected full fair share fee amount despite timely requests by employee to pay a reduced fee].)
Here, Fowles alleges that OPEIU improperly demanded full member fees beginning on
February 18, 2010. Thus, the charge is timely on that basis.
The Board has found amended unfair practice charges to "relate back" to the original
charge when they clarified existing allegations or added a new legal theory based on the same
set of facts in the original charge. (Temple City Unified School District (1989) PERB Order
No. Ad-190; Gonzales Union High School District (1984) PERB Decision No. 410.) The
relation back doctrine does not apply, however, when the amended charge raises new factual
When interpreting the MMBA, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act (NLRA), codified at 29 U.S.C. section 151 et seq., and
California labor relations statutes with parallel provisions. (Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608.)
8

allegations, separate conduct or acts not sufficiently related to or raised by the initial charge.
(Sacramento City Teachers Association (Franz) (2008) PERB Decision No. 1959; The Regents
of the University of California (Lawrence Livermore National Laboratory) (1997) PERB
Decision No. 1221-H; Los Angeles Unified School District (1992) PERB Decision No. 918;
The Regents of University of California ( 1990) PERB Decision No. 826-H; Burbank Unified
School District (1986) PERB Decision No. 589; Monrovia Unified School District (1984)
PERB Decision No. 460.)
In her original charge, Fowles alleged that, in enforcing the union security clause
contained in the Agreement, OPEIU had never informed her of her right to be a nonmember of
the union or of her rights under PERB Regulation 32992, Abood, and Hudson. Fowles further
alleged that, since the beginning of her employment, OPEIU had misrepresented to her that
joining the union, signing dues deduction cards, and paying full union dues and initiation fees
were required as a condition of employment. The amended charge clarifies these existing
factual allegations by providing specific dates and describing the factual circumstances under
which OPEIU allegedly made misrepresentations to Fowles concerning her obligation to join
OPEIU and pay union dues. We find these allegations to be sufficiently related to the original
allegations of the charge and therefore timely.
Duty to Provide Notice of Agency Fee Payer Rights
The central issue 	this case is whether OPEIU breached an obligation to inform
Fowles of her rights with regard to union membership under the MMBA. Historically,
statutory or contractual "organizational security" provisions have been recognized as a "means
by which an exclusive representative may lawfully require financial support from the
employees it represents, whether or not the employees are members of the organization."
(California Public Sector Labor Relations (2011) § 31.0l[l][a].) In the private sector, a
9

"union shop" requirement, under which all employees must become members of the exclusive
representative as a condition of employment, is expressly permitted under NLRA. (NLRA,
§§ 157, 158(a)(l) and (3); Communications Workers v. Beck (1988) 487 U.S. 735, 745 (Beck).)
Under federal law, however, the scope of a permissible union shop requirement is limited to
"financial core" membership, by which an employee may be compelled to pay union dues and
initiation fees but may not be denied or discharged from membership for any reason other than
the failure to pay such dues or fees. 	(NLRA, § 158(a)(3); Beck; NLRB v. General Motors
(1963) 373 U.S. 734, 743-744 (General Motors).) Closely related, but not identical, to the
union shop is the "agency shop," under which union membership is not a condition of
employment, but nonmembers represented by the union must pay a fee for the representation
services provided by the union. (See Abood at pp. 221-222.)
Under the MMBA, however, the union shop is not permitted. (City of Hayward v.
United Public Employees, Local 390 (1976) 54 Cal.App.3d 761, 764 (Hayward).) MMBA
section 3502 grants covered employees both the right to participate in the activities of
employee organizations as well as the express right to refrain from doing so, and provides:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
(Emphasis added.)
At the time Hayward was decided, nothing in the MMBA expressly permitted agency
shop agreements. Therefore, the court construed section 3502 to mean that, in the absence of
language expressly authorizing agency shop agreements, such agreements were unlawful under
the MMBA. Thus, the court stated:

Section 3502 implicitly recognizes that employees may choose to
join or participate in different organizations. (See, e.g.,
Sacramento County Employees Organization, Local 22 etc.
Union v. County of Sacramento [1972] 28 Cal.App.3d 424.) It
also confers upon each employee the right not to join or
participate in the activities of any employee organization.
Section 3506 not only prohibits management from interfering
with an employee's section 3502 rights, but also imposes the
same ban on employee organizations.
(Hayward at p. 766.)
In 1981, the MMBA was amended to expressly authorize a covered employer and an
exclusive representative to enter into an agency shop agreement, under which employees may
be required, as a condition of continued employment, either to join the recognized employee
organization or to pay to the organization a service fee in an amount not to exceed the standard
initiation fee, periodic dues, and general assessments of the organization. (MMBA,
§ 3502.5(a).) While it has been said that the agency shop is the practical equivalent of the
union shop (Hayward, citing Retail Clerks v. Schermerhorn (1963) 373 U.S. 746, 751 and
General Motors at p. 743), a distinction nonetheless exists in terms of the employee's
membership obligations. Under the union shop, the employee is required, as a condition of
employment, to join the union as a member, but "the burdens of membership upon which
employment may be conditioned are expressly limited to the payment of initiation fees and
monthly dues." (General Motors at p. 742.) Under an agency shop agreement, the employee
need not join the union or pay union dues, but is required to pay a fee for representational
activities. (Hudson at p. 303, fn. 10, citing R. Gorman, Basic Text on Labor Law 642 (1976).)
As indicated above, the courts have also limited the matters for which an employee may
be compelled to contribute financially to a labor organization. While there is no constitutional
barrier to an agency shop agreement requiring every employee in a bargaining unit to pay a
service fee to defray the costs of collective bargaining, contract administration, and grievance
11

adjustment, a union may not, consistent with the First Amendment to the United States
Constitution, require dissenting employees to pay money for the support of ideological causes
not germane to its duties as collective bargaining agent. (Abood at pp. 235-236.) To be
constitutionally valid, an agency fee collection system must meet three requirements: 	(1) it
must provide for the objection or challenge of agency fees before their collection; (2) it must
provide nonmembers with adequate information about the basis for the agency fee; and (3) it
must provide for a reasonably prompt decision regarding any challenge by an impartial
decision maker. (Hudson at p. 310.) Furthermore, a collective bargaining representative may
not, over the objection of a dues-paying nonmember, expend funds collected under a union
security agreement on activities unrelated to collective bargaining, contract administration, or
grievance adjustment. (Beck at p. 745.)
PERB Regulation 32992 represents the Board's codification of the rules governing
the collection of agency shop fees set forth by the United States Supreme Court in Hudson.
(Paso Robles Public Educators (Andrus, et al.) (2004) PERB Decision No. 1589
(Paso Robles).) Regulation 32992 provides:
(a) The exclusive representative shall provide annual written
notice to each nonmember who will be required to pay an agency
fee. 	The notice shall include:
(1) The amount of the exclusive representative's dues and the
agency fee;
(2) The percentage of the agency fee amount that is attributable
to chargeable expenditures and the basis for this calculation;
(3) The amount of the agency fee to be paid by a nonmember
who objects to the payment of an agency fee amount that includes
nonchargeable expenditures (hereinafter referred to as an "agency
fee objector"); and
(4) Procedures for (A) objecting to the payment of an agency fee
amount that includes nonchargeable expenditures and (B)
challenging the calculation of the nonchargeable expenditures.
12

(b) ( 1) The calculation of the chargeable and nonchargeable
expenditures will be based on an audited financial report, and the
notice will include either a copy of the audited financial report
used to calculate the chargeable and nonchargeable expenditures
or a certification from the independent auditor that the
summarized chargeable and nonchargeable expenditures
contained in the notice have been audited and correctly
reproduced from the audited report, or
(2) the calculation of the chargeable and nonchargeable
expenditures may be based on an unaudited financial report if th
exclusive representative's annual revenues are less than $50,000
and a nonmember is afforded a procedure sufficiently reliable to
ensure that a nonmember can independently verify that the
employee organization spent its money as stated in the notice.
e
(c) Such written notice shall be sent/distributed to the
nonmember either:
(1) At least 30 days prior to collection of the agency fee; or
(2) Concurrent with the initial agency fee collection provided
escrow requirements in Section 32995 are met; or
(3) In the case of public school employees, where the agency fee
year covers the traditional school year, on or before October 15 of
the school year, provided escrow requirements in Section 32995
are met.
In interpreting Regulation 32992, PERB has held that enough information must be
provided to potential agency fee objectors to make an "intelligent objection," and that the
information must be provided with the initial notice of collection of the agency fee.
(Paso Robles citing San Ramon Valley Education Association, CTA/NEA (Abbot and Cameron)
(1990) PERB Decision No. 802.)
In this case, Fowles alleges either that OPEIU did not provide her with notice of her
rights under PERB Regulation 32992 or that, if she received notice, it was inadequate because
it did not clearly inform her of her right not to be a member of OPEIU. Thus, she contends
that, if a notice was provided, it was insufficient because OPEIU misrepresented to her that she
13

was required to join the union and pay full union dues as a condition
of
employment. In
addition, she contends that the notice was insufficient because OPEIU failed to inform her
of
her rights to become an agency fee payer and to pay a reduced fee based only upon the cost
of
collective bargaining, grievance adjustment, and contract administration.
While the MMBA and cases interpreting it do not specifically address the nature
of
the
notice to be given to employees
of
their right to become an agency fee payer, rather than a
member
of
the employee organization, we find guidance in decisions under the NLRA
addressing the rights
of
agency fee payers.
10
Thus, the NLRB has held that, before a union
may seek to obligate newly hired nonmember employees to pay dues and fees under a union
security clause, it must inform them
of
their right to be or remain nonmembers, that
nonmembers have the right to object to paying for union activities unrelated to the union's
duties as the bargaining representative and to obtain a reduction in dues and fees for such
activities, and that the notice must be reasonably calculated to apprise nonmembers
of
their
rights. (See, e.g., Lamons Gasket
Co.
(2011) 357 NLRB No. 72; The Leland Stanford Junior
University (1977) 232 NLRB 326; California Saw and Knife Works (1995) 320 NLRB 224.)
In this case, Fowles alleges both that she did not receive notice
of
her right not to
become a union member and that the notice she did receive was inadequate to apprise her
of
her rights. Accordingly, we find that the charge states a prima facie violation
of
the l\1l\1BA
and PERB Regulation 32992. For this reason, we direct that a complaint be issued in this case
in order to develop a full record upon which it may be determined whether OPEIU complied
Although it is not bound by decisions of the National Labor Relations Board (NLRB),
the Board will take cognizance of NLRB precedent, where appropriate, as an aid in interpreting
identical or analogous provisions of the statutes administered by PERB. (Carlsbad Unified
School District (1979) PERB Decision No. 89; County
of
Imperial (2007) PERB Decision
No. 1916-M.)
14

with its obligations under the MMBA, PERB Regulation 32992, and the standards set forth in
Hudson and Abood.
ORDER
The Public Employment Relations Board hereby REVERSES the dismissal of the
unfair practice charge in Case No. SF-C0-229-M and REMANDS this case to the Office of the
General Counsel for issuance of a complaint consistent with this Decision.
Chair Martinez and Members McKeag and Huguenin joined in this Decision.
15