University Professional and Technical Employees, Communications Workers of America Local 9119 (Abernathy, et al.) (PERB 1784H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STEPHANIE ABERNATHY,
CAROLYN G. LEM, XIAOQING QU,
Charging Parties,
v.
UPTE, CWA LOCAL 9119,
Respondent.
Case Nos. LA-CO-123-H,
LA-CO-152-H, LA-CO-168-H
PERB Decision No. 	1784-H
December 	1, 	2005
Appearances: Werner Witke, Representative, for Stephanie Abernathy, Carolyn G. Lem and
Xiaoqing Qu; Leonard Carder by Margot Rosenberg, Attorney, for UPTE, CWA Local 9119.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Stephanie Abernathy, Carolyn G. Lem and Xiaoqing Qu
(Abernathy1 or Charging Parties) of a Board agent's dismissal of their unfair practice charges.
The charges are the same in a number of cases filed by Werner Witke (Witke) on behalf of
numerous individuals. In each case the charge is the same and these cases have been addressed
together by the Office of the General Counsel and the parties. 	We therefore have addressed
these cases as noted in the caption. The charges allege that UPTE, CWA Local 9119 (UPTE)
violated the Higher Education Employer-Employee Relations Act (HEERA).2
Abernathy is indicated in this decision as the party for brevity and clarity but the
decision applies to all cases indicated in the caption, above.
2HEERA is codified at Government Code section 3560, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Abernathy alleges that UPTE has violated HEERA by collecting agency fees prior to
providing Hudson3 notices to nonmembers and benefiting from an interest free loan at the
expense of Charging Parties for the period between collection and refund of the challenged
agency fees. Abernathy alleges this is a violation of PERB Regulation 329924 which requires
written notice to be sent/distributed to nonmembers at least 30 days prior to collection of
agency fees and that fees subject to objection shall be placed in an escrow account as set forth
in PERB Regulation 32995.
The Board agent dismissed the unfair practice charges for lack of standing based on
the Board decision in California Nurses Association (O'Malley) (2004) PERB Decision
No. 1673-H (CNA (O'Malley)).
We have reviewed the complete record in this case, including, but not limited to, the
initial unfair practice charges, the warning and dismissal letters, the appeal and the response to
the appeal. We find that the Board agent's dismissal was based on a misreading of
CNA (O'Malley) a case not applicable to this set of facts. The charging party in that case,
Robert J. O'Malley (O'Malley), is not an agency fee payer. The Charging Parties here are
agency fee payers and therefore have standing. 	The essential facts alleged must be taken as
true. 	This case is referred to the Office of the General Counsel for a complaint to issue
immediately, as set forth below.
DISCUSSION
Abernathy is an agency fee payer in UPTE at the University of California, San Diego.
Her charge, filed October 4, 2004, stated that UPTE had not sent her notice as required under
3Chicago Teachers Union. Local No. 1 v. Hudson (1986) 475 U.S. 292 [121 LRRM
2793] (Hudson).
4PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
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the U.S. Supreme Court ruling in Hudson as specified in PERB Regulation 32992(c)(l).5
Under that section, the notice must be sent at least 30 days prior to the collection of the agency
fee, after which the exclusive representative shall place those fees subject to objection in
escrow pursuant to Section 32995 of these regulations.
Abernathy points to a Declaration of Lindey Cloud (Cloud) that was prepared by UPTE
in response to a request for injunctive relief by Witke, another UPTE agency fee payer. 	The
declaration is dated August 10, 2004. In it, Cloud states that there was a delay by UPTE in
sending the Hudson notices and that UPTE expected to have them out by August 20, 2004.
They were not sent by that date.
Abernathy alleges UPTE was in violation of PERB Regulation 32992 because UPTE
did not give written notice of the amount of the agency fee (expressed as a percentage of the
annual dues per member) based on the chargeable expenditures identified in the notice and
send it 30 days prior to taking the deduction. Further, the procedure for appealing must also be
included in the notice and the calculations are to be made based on an independent audit that
shall also be made available to nonmembers.6 Abernathy also states that UPTE has made the
deductions, not only prior to sending the Hudson notice, but using an advance reduction
method. 	She states this method was found to be unconstitutional by the U.S. Supreme Court in
the decision of Ellis v. Railway Clerks (1984) 466 U.S. 435 [116 LRRM 2001] (Ellis).
The Board agent determined that the Charging Parties had no standing. 	She
acknowledged that agency fees were deducted in July, August and September before the
5PERB Regulation 32992(c)(l) states:
Such written notice shall be sent/distributed to the nonmember . ..
[a]t least 30 days prior to collection of the agency fee, after which the
exclusive representative shall place those fees subject to objection in
escrow, pursuant to Section 32995 . . . .
6PERB Regulation 32992.
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Hudson notices were sent on September 3 and 7, 2004. Abernathy was later sent a check to
cover the amount equal to the agency fees deducted for the payroll period from July 1, 2004
through September 7, 2004, plus 7 percent interest. The Board agent has therefore
acknowledged there has been a violation of PERB Regulation 32992 by the taking of the
money prior to a Hudson notice. 	She finds no harm because the money was returned. 	She
ignores that the allegation must be taken at face value under PERB case law and the ruling of
Hudson by the U.S. Supreme Court.
The Board agent accepts as true the argument put forth by UPTE. UPTE argues that
because the money was returned with interest there was no harm. Thus, it acknowledges doing
the actions of which the Charging Parties complain. 	The Board agent cites the CNA
(O'Malley) case as a basis for the lack of standing. O'Malley is not an agency fee payer. The
California Nurses Association (CNA) accepts no fees from O'Malley.7
In this case, the Charging Parties are agency fee payers. In violation of PERB
regulations, fees were collected for three months prior to UPTE sending them a Hudson notice.
UPTE returned fees collected prior to the Hudson notice but continued to collect and use fees
after sending the notice. Because UPTE continues to collect fees from the Charging Parties,
they are agency fee payers entitled to the rights and protections provided in both case law and
PERB regulation.
The Board agent in this case ignored the intent and letter of Hudson and the
requirement of Golden Plains Unified School District (2002) PERB Decision No. 1489
(Golden Plains') that the essential facts alleged are to be taken as true. UPTE agrees that the
In CNA (O'Malley), it is noted that CNA has informed O'Malley it will accept no
agency fees from him. 	CNA has asked the University of California (UC) not to collect agency
fees from him. 	Because UC did not stop collecting fees from him when it collected fees from
the bargaining unit, CNA sent O'Malley reimbursements for the fees collected from him.
CNA also began sending advances to O'Malley because UC continued to make the deductions.
As a result, O'Malley is not an agency fee payer.
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money was taken. 	A complaint must issue to determine if UPTE followed Hudson in the
taking of the money and Ellis in the manner in which the agency fees were deducted.
In the appeal of the dismissal, Abernathy notes that additional refund checks from
UPTE were sent to agency fee payers later. Abernathy also alleges in the appeal that because
the entire year of agency fees was not sent from the alleged escrow account, UPTE has the use
of funds from November onwards to use for anything, including non-chargeable expenses. 	We
need not reach that issue here. Even if UPTE had returned all of the fees at one time there
would still be a problem with the procedure used.
The harm happens when the statute is violated. It may well be that by returning the
money with interest there is no financial harm but the agency fee payer has been harmed
because Hudson is not being followed. If there is no consequence for this harm then there is
no incentive for any union to follow Hudson.
There is an argument made by UPTE that because there is no harm there is no remedy
owed the agency fee payer. We disagree. As indicated above, the harm is the initial taking of
the money without sending the Hudso
- n notice first. Under Hudson there is standing and under
Golden Plains a complaint must issue.
Standing
In Hudson the U.S. Supreme Court held that there must be prior notice to agency fee
payers before agency fees are collected so that only the correct amount is collected. 	Saying
that there is no harm to the agency fee payers when the letter of the law in Hudson is violated
is wrong.
The Court in Hudson said:
The question presented in this case is whether the procedure used
by the Chicago Teachers Union and approved by the Chicago
Board of Education adequately protects the basic distinction
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drawn in Abood. [8] "[T]he objective must be to devise a way of
preventing compulsory subsidization of ideological activity by
employees who object thereto without restricting the Union's
ability to require every employee to contribute to the cost of
collective-bargaining activities." Id., at 237, 97 S.Ct., at 1800.
Procedural safeguards are necessary to achieve this objective for
two reasons. First, although the government interest in labor
peace is strong enough to support an "agency shop"
notwithstanding its limited infringement on nonunion employees'
constitutional rights, the fact that those rights are protected by
the First Amendment requires that the procedure be carefully
tailored to minimize the infringement. 	Second, the nonunion
employee — the individual whose First Amendment rights are
being affected ~ must have a fair opportunity to identify the
impact of the governmental action on his interests and to assert a
meritorious First Amendment claim.
. . . . . . . . . . . . 	. . . . . . .
[A] remedy which merely offers dissenters the possibility of a
rebate does not avoid the risk that dissenters' funds may be used
temporarily for an improper purpose. 	"[T]he Union should not be
permitted to exact a service fee from nonmembers without first
establishing a procedure which will avoid the risk that their funds
will be used, even temporarily, to finance ideological activities
unrelated to collective bargaining." Abood, 431 U.S., at 244, 97
S.Ct., at 1804 (concurring opinion). The amount at stake for each
individual dissenter does not does not diminish this concern.
For, whatever the amount, the quality of respondents' interest in
not being compelled to subsidize the propagation of political or
ideological views that they oppose is clear. In Abood, we
emphasized this point by quoting the comments of Thomas
Jefferson and James Madison about the tyrannical character of
forcing an individual to contribute even "three pence" for the
"propagation of opinions which he disbelieves." A forced
exaction followed by a rebate equal to the amount improperly
expended is thus not a permissible response to the nonunion
employees' objections. [Fns. omitted.]
That is exactly the issue before us in this agency fee case. There is a forced extraction
followed by a rebate equal to the amount improperly expended.
8Abood v. Detroit Board of Education (1977) 431 U.S. 209 [95 LRRM 2411].
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In Paso Robles Public Educators (Andrus. et al.) (2004) PERB Decision No. 1589, the
Board noted that Hudson must be followed. 	There, it was held that the Paso Robles Educators
Association did violate PERB Regulation 32992 and the Hudson decision by collecting agency
fees without providing the required Hudson notice thirty days prior. 	That is what UPTE has
done here. Here, the money and 7 percent interest has been returned but the bell cannot be
unrung. 	The harm occurred when the regulation and Hudson were violated.9
Essential Facts
To determine whether a charge alleges a prima facie case, the
Board must assume that the essential facts alleged in the charge
are true. 	(San Juan Unified School District (1977) EERB
Decision No. 12.10) It is not the function of the Board agent to
judge the merits of the charging party's dispute. 	(Saddleback
Community College District (1984) PERB Decision No. 433;
Lake Tahoe Unified School District (1993) PERB Decision
No. 994.) Disputed facts or conflicting theories of law should be
resolved in other proceedings after a complaint has been issued.
(Eastside Union School District (1984) PERB Decision No. 466,
pp. 6-7.)
(Golden Plains at p. 6.)
In this case, determining whether or not the tenants of Hudson have been met must go
through the appropriate process following the issuance of a complaint. 	Because we find there
is standing, the charge that the requirements of Hudson have not been met must be examined.
It must be left to the Board's hearing process to determine if the evidence supports the
allegations.
The essential facts alleged must be taken as true and the Charging Parties have standing
under Hudson and PERB Regulation. 	Based on the forgoing findings of fact and conclusions
of law, and the entire record in this case, it is found that a complaint should be issued.
PERB Regulation 32997 states, "It shall be an unfair practice for an exclusive
representative to collect agency fees in violation of these regulations."
10Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
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ORDER
The Public Employment Relations Board REMANDS the unfair practice charges in
Case Nos. LA-CO-123-H, LA-CO-152-H and LA-CO-168-H to the Office of the General
Counsel and ORDERS that a complaint issue.
Member Whitehead joined in this Decision.
Member Shek's concurrence begins on page 9.
8

SHEK, Member, concurring: I agree with the majority opinion that the Public
Employment Relations Board (PERB or Board) agent's dismissal, based on her interpretation
of California Nurses Association (O'Malley) (2004) PERB Decision No. 1673-H (CNA
(O'Malley)), was in error. In the CNA (O'Malley) case, the California Nurses Association had
exempted Robert J. O'Malley (O'Malley) from payment of any agency fees. Accordingly,
O'Malley was determined not to be an agency fee payer and the Board agency fee regulations
had no applicability to him. Here, Stephanie Abernathy, Carolyn G. Lem and Xiaoqing Qu are
agency fee payers, despite the refund by UPTE, CWA Local 9119 of three months of fees as an
attempt to remedy a possible violation of the PERB regulations. Their unfair practice charges
should be remanded to the Office of the General Counsel.
9
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