SAN JOSE TEACHERS ASSOCIATION v. ABERNATHY (1984)

In Link v. Antioch Unified School Dist. (1983) 142 Cal.App.3d 765, 191 Cal.Rptr. 264, we held that nonunion employees of a school district who wished to challenge the constitutionality of a union's “service fee,” imposed under the terms of the union's agency-shop collective bargaining agreement with the district, were required to exhaust their remedies before the Public Employment Relations Board (PERB) before initiating court action.   In this case, it is the union which has initiated court action, seeking to collect service fees claimed under a similar agency-shop agreement;  the nonmember employees have asserted their constitutional challenge by way of affirmative defense in the union's lawsuit.   We hold that the union, having selected the judicial forum, cannot insist on judgment for the full service fee while compelling the nonmember employees to take their affirmative defense to the PERB.

I.

San Jose Teachers Association, CTA/NEA (“Union”), entered into an agency-shop agreement with the San Jose Unified School District.  (Cf. Gov.Code, §§ 3540.1, subd. (i);  3546.)   Abernathy and others (“Nonmembers”) were district employees who chose not to become members of Union.   The agreement required nonmember employees to pay service fees equal to dues paid by union members, but did not authorize the school district to discharge nonmember employees for nonpayment.   Nonmembers did not pay the service fees and the Union sued to collect the full amount.

In Abood v. Detroit Board of Education (1977) 431 U.S. 209, 235, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261, the United States Supreme Court concluded that a nonmember employee subject to an agency-shop agreement such as this one could not constitutionally be compelled to “contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.”   In practical effect, the Abood rule is that an objecting nonmember can be required to pay no more than his aliquot share of the union's expenditures for collective bargaining, contract administration, and grievance adjustment.  (Cf. also Ellis v. Railway Clerks (1984), –––U.S. ––––, –––– [104 S.Ct. 1883, 1887–1888, 80 L.Ed.2d 428, 436].)  This limited share is sometimes referred to as the “Abood amount.”

Answering Union's complaint, Nonmembers asserted, as a matter of affirmative defense, that Union is entitled to collect no more than the equivalent of the Abood amount and that in Union's lawsuit, the burden is on Union to prove the amount to which it is entitled.   Union moved for summary judgment for the full amount.   Respondent court denied the motion.   This writ petition followed.

Union does not contend that it will ultimately be entitled to keep and use the full amount of Nonmembers' “service fees.”   At oral argument, it acknowledged that it is prepared to refund $14.83, with interest, to each Nonmember upon receipt of the payments.   Nonmembers have made clear that they will not accept Union's figure without further inquiry.   Union contends that Nonmembers must pay the entire service fee in the first instance, and that if they are dissatisfied with the refund, Union proposes they must then take their Abood argument to the PERB which can keep the “enormous undertaking” of litigating Abood amounts out of the courts and assure uniformity of decision.   Union argues (1) that as a matter of labor management relations, Union must be permitted, pending litigation of the Abood amount, to collect the full service fee in order to maintain its financial ability to provide collective bargaining services to members and nonmembers alike;  and, alternatively, (2) that as a matter of California administrative procedure, Nonmembers should not be permitted to litigate the Abood amount in court until they have “exhausted their administrative remedies” before the PERB.

There is no triable issue of fact material to Union's contentions.   The question for respondent court was whether Union had established that it was entitled to judgment for the full amount as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  Respondent court concluded that Union had not.   We agree.

II.

 Relying primarily on Machinists v. Street (1961) 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, Railway Clerks v. Allen (1963) 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235, and Abood v. Detroit Board of Education, supra, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, Union argues that “if dissenting employees can refuse to pay while the Abood amount is being litigated, the Association's financial ability to carry out its duty of fair representation and to perform its various functions will be severely undermined.”   But Union is entitled only to the Abood amount:  No sound reason can be found for the suggestion that, for fiscal or any other reasons, Union should have the use of money to which it will not ultimately be entitled.  (See in the context of the federal Railway Labor Act, Ellis v. Railway Clerks, supra, –––U.S. ––––, –––– [104 S.Ct. 1883, 1890, 80 L.Ed.2d 428, 439].)  It would be fair and equitable to place upon Union (if it wishes to expedite collection of the amount actually due) the burden of making the necessary information available, and of demanding from nonmember employees no more than a plausible approximation of the Abood amount, at the outset.   Should nonmember employees refuse to pay such an approximation, or to negotiate in good faith for an amount on which the union and nonmember employees can agree, then suit for the Abood amount would be justified and a motion for summary judgment based on an adequate factual showing of the Abood amount would be appropriate.

 Procedurally, Union's reliance on the Street-Allen-Abood line is misplaced.   In each of the federal cases, payment in full pendente lite was viewed in effect as a condition to continued maintenance of a suit which was initiated by the employee for the ultimate purpose of adjudicating the Abood amount.   Here, it is Union which has gone to court seeking affirmative relief and which must meet the conditions precedent to such relief.   In its action for money it must bear the burden of establishing the amount to which it is entitled.  (Cf. generally, Witkin, Cal. Evidence (2d ed. 1966) Burden of Proof and Presumptions, § 197, pp. 180–182;  Carpenter Foundation v. Oakes (1972) 26 Cal.App.3d 784, 799, 103 Cal.Rptr. 368 [damages generally].)  Allen stressed, and Abood and subsequent cases recognized, that the burden of proving the Abood amount should be upon the union:  “Since the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion.”  (Railway Clerks v. Allen, supra, 373 U.S. 113, 122, 83 S.Ct. 1158, 1163, 10 L.Ed.2d 235;  cf. Abood v. Detroit Board of Education, supra, 431 U.S. 209, 240–242, 97 S.Ct. 1782, 1802–1803, 52 L.Ed.2d 261;  Witkin, op. cit., supra, § 198, pp. 182–183.)

In supplemental briefing, Union argues that Ellis v. Railway Clerks, supra, decided after oral argument, validates Union's practice of holding the estimated amount of the “agency fee political action rebate” (by which Union appears to mean the difference between the Abood amount and the full service fee) in an escrow account.   According to Union, “[a]ny concern about [Union's] attempt to collect the full amount of the agency fee in the first instance should be alleviated” by Ellis.   We need not pass on the propriety of Union's escrow account procedure in this action:  Ellis does not reach the narrow procedural question upon which the summary judgment in this action turned.

III.

Union's alternative theory is that Nonmembers' Abood defense “must, in the first instance, be brought to the Public Employment Relations Board for resolution since the actions complained of also constitute arguable violations of the Educational Employment Relations Act.”

 It is uncontested that conduct which violates the Educational Employment Relations Act is within the initial exclusive jurisdiction of the PERB;  to extend that rule to this action, Union relies on Link and on the earlier decision in Leek v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 177 Cal.Rptr. 196.  Link and Leek make clear that a violation by a union, under an agency-shop agreement, of the principles stated in Abood will constitute an “unfair practice” subject to the initial exclusive jurisdiction of the PERB, and that any employee who seeks to invoke jurisdiction of a court to resolve a dispute over the Abood amount must show that he has first exhausted his administrative remedy before the PERB.

In Link and Leek, as in the federal cases cited above, it was the employee who went to court in the first instance.   Here, Nonmembers raise the Abood issues defensively in a collection action initiated by Union.  Link and Leek applied the general doctrine of exhaustion of administrative remedies, “a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292–293, 109 P.2d 942).  Leek reiterated that “ ‘[t]he basic purpose for the exhaustion doctrine is to lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the wanted relief.   It is the rule that if an administrative remedy is available, it must be exhausted even though the administrative remedy is couched in permissive language.’  [Citation.]”  (Leek v. Washington Unified School Dist., supra, 124 Cal.App.3d at p. 53, 177 Cal.Rptr. 196.)   In Link, we added that “[r]eferring this dispute to PERB first would promote the Legislature's purpose in creating an expert administrative body whose responsibility it is to develop and apply a comprehensive, consistent scheme regulating public employer-employee relations.  [Citations.]”  (Link v. Antioch Unified School Dist., supra, 142 Cal.App.3d at p. 769, 191 Cal.Rptr. 264.)

 Neither the rule nor the rationale is applicable here.   Nonmembers have not sought affirmative relief in the courts and did not choose this forum.   To require Nonmembers to submit to judgment in a civil action and then to pursue remedies before the PERB as to the amount properly due would surely increase rather than decrease procedural redundancy, would not appreciably lighten the load on the court which already had Union's lawsuit before it, and would not make efficient use of the PERB's expertise.   The doctrine of exhaustion of administrative remedies logically applies only to a claim for affirmative relief which could have been obtained from an administrative agency in the first place.

In the exhaustion-of-remedies cases on which Union relies, the collective bargaining agreement has characteristically contained a clause under which the union could insist that a nonmember employee be fired for nonpayment of service fees.   The practical effect has been to compel the employee to initiate proceedings to resolve the Abood issues.   Union argues that in this case Nonmembers are attempting to take improper tactical advantage of the fact that the collective bargaining agreement does not contain such a discharge clause.   The argument is unpersuasive.   Union cannot at this stage call upon the courts, in derogation of well-established procedural principles, to compensate for bargaining power which Union did not have or chose not to use when the collective bargaining agreement was written.

 We conclude that neither policy nor precedent supports Union's affirmative claim for judgment for an amount greater than that which it will ultimately be entitled to retain.   Summary judgment was properly denied.

IV

We are optimistic that our holding on these narrow issues will promote prompt disposition of the parties' dispute.   But neither in their briefing nor at oral argument have the parties on either side yet displayed any inclination to cooperate in what should be a relatively straightforward calculation, based on elements recently further elucidated in Ellis v. Railway Clerks, supra, –––U.S. ––––, –––– – –––– [104 S.Ct. 1883, 1890–1897, 80 L.Ed.2d 428, 440–447].  The need for more efficient resolution of disputes over the Abood amount warrants legislative attention.

 Pending legislative action, we commend to the trial court two procedures which might help get these cases resolved.   Under Code of Civil Procedure section 572, a court is empowered, upon motion, to order that money due be deposited in court pendente lite upon such conditions as may be just, subject to the further direction of the court.   And under the “doctrine of primary jurisdiction,” developed in federal cases, and applied in state courts, the judge may in an appropriate case briefly abate the judicial proceedings to give the parties a reasonable opportunity to resolve accounting or technical issues before an administrative agency with relevant expertise.  (See E.B. Ackerman Importing Co. v. City of Los Angeles (1964) 61 Cal.2d 595, 598–602, 39 Cal.Rptr. 726, 394 P.2d 566;  cf. Cal. Administrative Agency Practice (Cont.Ed.Bar 1970) Procedure After Hearing, § 4.64, pp. 246–247.)   In an action such as this, a trial court could synthesize and apply these procedures to require nonmember employees to deposit a reasonable approximation of the Abood amount in court and then to direct the parties to seek an expedited determination of the exact Abood amount before the PERB.   This use of expert nonjudicial resources is analogous to those authorized for reference (Code Civ.Proc., § 639 et seq.) and consultation with persons learned in relevant subject matter (Evid.Code, §§ 454, 455, 460).   Assuming a prompt response from the PERB, the trial court would be in a position to entertain a motion for summary judgment.

The alternative writ is discharged.   The petition for a peremptory writ of mandate is denied.

LOW, Presiding Justice.

KING and HANING, JJ., concur.