SAN LORENZO EDUCATION ASSOCIATION v. WILSON (1981)

On this appeal which we ordered transferred to this court after certification by the superior court, we hold that the agency shop provision of a collective bargaining agreement negotiated and entered into by the San Lorenzo Unified School District and the San Lorenzo Education Association is invalid and unenforceable, by court action or otherwise, because it does not comply with the statutory definition of an organizational security arrangement. Accordingly, we reverse the judgments obtained in small claims court by the association against defendant nonmember teachers who refused to pay a service fee as required by the contract provision.

STATEMENT OF THE CASE AND THE FACTS 1

During the school year 1977-1978, the San Lorenzo Unified School District (District) employed defendants as certificated employees. Plaintiff San Lorenzo Education Association/CTA/NEA (Association) is recognized by the District as the exclusive bargaining representative of the District's certificated employees, which includes the defendants herein.

During contract negotiations the District's negotiating team refused the Association's request to make the organizational security provisions a condition of continued employment.

The District and Association entered into a collective bargaining agreement on May 25, 1977, effective that date through June 30, 1978.

Article II of the agreement is entitled “Organizational Security” and provides in pertinent part: “... B. For the duration of this agreement, all employees in the unit shall either join the Association or pay to the Association a service fee in an amount not to exceed the regular dues and general assessments required for Association membership.... D. The Association and not the District shall be responsible for requiring employees to fulfill their obligations under paragraph ... B ....”²

The Association made repeated demands on defendants either to join the Association or tender a service fee of $185 each. Defendants refused to join or pay.

The Association obtained judgments against defendants in a series of small claims court cases in the San Leandro-Hayward Municipal Court. Defendants appealed to the Superior Court of Alameda County, where the cases were consolidated for trial de novo on stipulated facts. After briefing and argument, the court, without opinion, granted the Association judgment for the full amount of the service fee plus the statutory attorneys' fees.

Upon defendants' application, the superior court certified the case for transfer to this court pursuant to rule 63 of the California Rules of Court, and we ordered the case transferred to us.

DISCUSSION

Government Code section 3540.1, subdivision (i), defines “organizational security” as follows: “(i) ‘Organizational security’ means either:

“(1) An arrangement pursuant to which a public school employee may decide whether or not to join an employee organization, but which requires him, as a condition of continued employment, if he does join, to maintain his membership in good standing for the duration of the written agreement. However, no such arrangement shall deprive the employee of the right to terminate his obligation to the employee organization within a period of 30 days following the expiration of a written agreement; or

“(2) An arrangement that requires an employee, as a condition of continued employment, either to join the recognized or certified employee organization, or to pay the organization a service fee in an amount not to exceed the standard initiation fee, periodic dues, and general assessments of such organization for the duration of the agreement, or a period of three years from the effective date of such agreement, whichever comes first.” (Emphasis added.)

It is readily apparent that article II of the agreement between the Association and the District approximates the second type of organizational security arrangement set out in the statute, that is, one where the employee must either join the association or pay it a service fee. The parties' agreement does not provide, however, that the employee must either join or pay “as a condition of continued employment,” and it is for this reason that defendants contend the contract provision is void.

We agree with defendants' position, which is supported by a literal reading of several portions of the Rodda Act.³ Article 7 of the act, which deals with certain aspects of organizational security including the manner in which the arrangement may be ratified,⁴ begins with the statement, “Subject to the limitations set forth in this section, organizational security, as defined, shall be within the scope of representation.” (Gov.Code, s 3546, emphasis added.) And section 3543.2 provides in relevant part: “The scope of representation shall be limited to matters relating to ... terms and conditions of employment ... (including) ... organizational security pursuant to Section 3546 .... All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating ....”

Thus when these provisions are taken together, they state that an “organizational security” arrangement is within the scope of representation and therefore validly negotiated and agreed to only if it comports with the definition found in section 3540.1, subdivision (i), that is, for our purposes, if it is made a “condition of continued employment.”

The Association has brought to our attention an out-of-state appellate decision which on the facts is arguably similar to ours. In Eastern Michigan University v. Morgan (1980) 100 Mich.App. 219, 298 N.W.2d 886 Eastern Michigan University and the American Association of University Professors negotiated a collective bargaining agreement which contained a “join or pay” union security agreement. The agreement, unlike that in the case at bench, contained a specific provision for the method of enforcement: “The parties further agree that the only means for enforcement of the obligations specified herein are by civil action for damages or other equitable enforcement.” (Eastern Michigan University v. Morgan, supra, 298 N.W.2d at p. 888, italics omitted.) However, the statute which established the authority for the agreement provided, as does ours, that payment of a service fee by nonmembers could be required “as a condition of employment.” (Id., 298 N.W.2d at p. 889, italics omitted.)

The essence of the court's reasoning in upholding the contract was as follows: “While (the statute) does approve the requirement of payment of a service fee as ‘a condition of employment,’ we prefer to give this terminology a liberal interpretation. We do not construe this language as mandating discharge as the only remedy against one who refuses to pay. If the contract, as in the case before us, provides for a civil suit, such suit, while more cumbersome to the union, is certainly more beneficial to the employee. (Citation.) We, therefore, reject the narrow construction defendant has placed upon the statute.” (Id., 298 N.W.2d at p. 890.)

The court found further support for its interpretation in the freedom to contract under the statute. The contract called for civil suit as a sanction, although it could have provided for discharge. The court reasoned that “(a) bsent any specific prohibition in (the statute) ... the agreement's preference for civil suit is entirely reasonable, and we are loath to interfere with the plain provisions of the contract.” (Id., 298 N.W.2d at p. 891.)

Eastern Michigan University is distinguishable on its facts from the case at bench, in that there the contract expressly provided for enforcement by civil action. Although the contract before us does not so provide, it does state that “The Association and not the District shall be responsible for requiring employees to fulfill their obligations ...” to pay service fees. Since the Association cannot discharge employees of the District, it is certainly arguable that some other method of “requiring employees to fulfill their obligations” was contemplated by the parties negotiating the contract. However, we do not believe that the contract may reasonably be read as an agreement specifically permitting civil suit, as did the contract in Eastern Michigan University.

CONCLUSION

The Rodda Act provides that public school employees “have the right to refuse to join or participate in the activities of employee organizations ....” (Gov.Code, s 3543.) This right is limited to the extent that the employer and employee organization are empowered to enter into an organizational security agreement under which, as a condition of continued employment, employees can be required to join the association or to pay a fee to it.

Where an organizational security arrangement, as defined, has been negotiated and included in a collectively bargained agreement, persons who do not wish to join or support the association are put on notice that they may be discharged from employment rather than be permitted to remain “free riders,” i. e., persons who receive the benefits of association representation but are unwilling to contribute their share of financial support to such association. (See Radio Officers v. Labor Board (1954) 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455.) However, nothing in the Rodda Act permits negotiation of a so-called organizational security arrangement which is not a condition of continued employment but which purports to subject nonmember employees to civil suit or any other form of what may be characterized as harassment or possibly discriminatory treatment. (See National Labor Relations Board v. Gaynor News Co. (1952) 197 F.2d 719.)

The judgments are reversed.

FOOTNOTES

FOOTNOTE.  

1.  The parties are in agreement as to the statement of the case and filed a “Stipulation of Facts” in the superior court on March 1, 1979. We adopt their agreed statement of case and facts.

2.  According to the parties' stipulation, article II in its entirety reads as follows: “A. Any employee who is a member of the Association, or who has applied for membership may sign and deliver to the District an assignment authorizing deduction of unified membership dues and general assessments in the Association. Such authorization shall continue in effect from year to year unless revoked in writing within 30 days of the termination of this contract. Pursuant to such authorization, the District shall deduct one-tenth of such dues from the employee's regular salary check each month for ten months. Deductions for employees who sign such authorization after the commencement of the school year shall be appropriately prorated to complete payments by the end of the school year.“B. For the duration of this agreement, all employees in the unit shall either join the Association or pay to the Association a service fee in an amount not to exceed the regular dues and general assessments required for Association membership. Employees who, because of religious, moral or ethical connections, choose not to pay the service fee shall pay an equivalent amount to the Association's scholarship fund.“C. An employee may sign and deliver to the District an assignment authorizing deduction of the service fee pursuant to paragraph B. Such authorization shall continue in effect from year to year unless revoked in writing within thirty (30) days of the termination of this contract. Pursuant to such authorization, the District shall deduct one-tenth of such dues from the employee's regular salary check each month for ten months. Deductions for employees who sign such authorizations after the commencement of the school year shall be appropriately prorated to complete payments by the end of the school year.“D. The Association and not the District shall be responsible for requiring employees to fulfill their obligations under paragraphs A, B, and C of this Article.“E. For audit purposes, a list of employees paying the service fee shall be made available to the Association upon request.“F. The Association shall indemnify and hold harmless the District and its Board against any and all claims, costs, suits, losses, demands, actions, judgments, damages, attorneys' fees, causes of action, liability and proceedings, of any nature, arising out of or related in any way to the provisions of this article.”

3.  The 1975 Educational Employment Relations Act (Gov.Code, ch. 10.7, s 3540 et seq.) is known as the Rodda Act. For a statement of its history and development, see Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 697-698, 163 Cal.Rptr. 464.

4.  See, generally, Bissell v. Public Employment Relations Bd. (1980) 109 Cal.App.3d 878, 167 Cal.Rptr. 498.

ANELLO, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SCOTT, Acting P. J., and BARRY-DEAL, J., concur.