Effective January 1, 2001 the Educational Employment Relations Act (EERA) has been amended so as to require all employees represented by an exclusive bargaining unit to either join the union and pay union dues or pay agency fees to the union.
Newly added Government Code section 3546 provides, in part, as follows:
Notwithstanding any other provisions of law, any public school employee who is in a unit for which an exclusive representative has been selected pursuant to this chapter 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 last several weeks we have received numerous questions about SB 1960 and we have elected to respond to them in one memorandum, to be distributed to all clients. Those questions, and our responses, are set forth below:
1. What public school employers are covered by the new law?
Response:
The new law applies to school districts, community college districts, and county offices of education.
2. Are all exclusive bargaining units subject to the new law?
Response:
Yes, the new law applies to all classified and certificated exclusive bargaining units.
3. What is the difference between an employee organization and an exclusive bargaining unit?
Response:
Essentially, the exclusive bargaining unit is an employee organization that has been recognized through Public Employment Relations Board (PERB) processes as the only employee organization that may represent its employees through collective bargaining.
Government Code section 3540.1(d) defines employee organization as follows:
"Employee organization" means any organization which includes employees of a public school employer and which has as one of its primary purposes representing those employees in their relations with that public school employer. "Employee organization" shall also include any person such an organization authorizes to act on its behalf.
Government Code section 3540.1(e) defines exclusive representative as follows:
"Exclusive representative" means the employee organization recognized or certified as the exclusive negotiating representative of certificated or classified employees in an appropriate unit of a public school employer.
4. Are there any exceptions to the requirement either to pay union dues or agency fees?
Response:
Yes. Government Code section 3546.3 provides as follows:
Notwithstanding subdivision (i) of Section 3540.1, Section 3546, or any other provision of this chapter, any employee who is a member of a religious body whose traditional tenets or teachings include objections to joining or financially supporting employee organizations shall not be required to join, maintain membership in, or financially support any employee organization as a condition of employment; except that such employee may be required, in lieu of a service fee, to pay sums equal to such service fee either to a nonreligious, nonlabor organization, charitable fund exempt from taxation under Section 501(c) (3) of Title 26 of the Internal Revenue Code, chosen by such employee from a list of at least three such funds, designated in the organizational security arrangement, or if the arrangement fails to designate such funds, then to any such fund chosen by the employee. Either the employee organization or the public school employer may require that proof of such payments be made on an annual basis to the public school employer as a condition of continued exemption from the requirement of financial support to the recognized employee organization. If such employee who holds conscientious objections pursuant to this section requests the employee organization to use the grievance procedure or arbitration procedure on the employee's behalf, the employee organization is authorized to charge the employee for the reasonable cost of using such procedure.
5. If we do not receive notification from the union is the district required to do anything prior to January 1, 2001?
Response:
No. Unless and until an exclusive representative notifies the district to begin deducting agency fees the district is under no obligation to do so. (See Government Code section 3546(a).)
6. What is the difference between union dues and agency fees?
Response:
Union dues are established by the exclusive representative and are the amount paid by an employee who elects to become a member of the union. Agency fees (sometimes called a
"fair share" or "service fee") are paid by employees who elect to not become a member of the union and may not exceed the amount of the union dues and, "shall cover the cost of negotiating contract administration, and other activities of the employee organization that are germane to its functions … . " (See Government Code section 3546(a).) In addition, Government Code section 3546(b) provides as follows:The costs covered by the fee under this section may include, but shall not necessarily be limited to, the cost of lobbying activities designed to foster collective bargaining negotiations and contract administration, or to secure for the represented employees advantages in wages, hours, and other conditions of employment in addition to those secured though meeting and negotiating with the employer.
7. What is the difference between a union and a collective bargaining unit?
Response:
A union is a term that in the context of agency fees refers to the employee organization that has become an exclusive representative. A unit is a term that refers to the type of employee organization (e.g., blue collar, classified or instructional staff certificated) represented by the exclusive representative. Thus, not all unit members are required to be union members.
8. Is a union
’s decision to require the payment of agency fees negotiable?Response:
No, but certain effects of that decision are negotiable.
9. What are the negotiable effects of the union
’s decision to require payment of agency fees?Response:
The following effects are negotiable:
•
Direct Payment OptionEducation Code Section 45168 with respect to classified employees and Sections 45060 and 45061 with respect to certificated employees provides for employees to have the option of paying service fees directly to the union.
•
Charging Certificated Units a Fee for the ServiceEducation Code sections 45060 and 45061 provide that the dues/agency fee collection by the district may be done
"with or without charge." The corresponding sections for classified employees provide that the service shall be provided "without charge."•
Religious Objections – Designation of Charitable FundGovernment Code section 3546.3 provides, in part, as follows:
"nonreligious, nonlabor organization" Section 501(c)(3) "from a list of at least three such funds, designated in the organizational security arrangement …"a charitable donation must be made to a
•
Religious Objections – Proof of Charitable DonationsGovernment Code section 3546.3 provides, in part, that
"either the employee organization or the public school employer may require proof of such [charitable] payments be made on an annual basis to public school employer."•
Timeline for and district method of disbursing funds to union•
Timeline for notification regarding changes in dues/feesEducation Code sections 45060 and 45168 provides that the
"employee organization shall provide the public school employee with notification of the change at a time sufficiently prior to the effective date of the charge to allow the employer an opportunity to make the necessary adjustments and with a copy of the notification of the change which has been sent to all concerned employees."•
GrievabilityContract articles on grievances typically define a grievance as a violation of an express provision of the contract. Thus, in the absence of an exclusion, unit members will be able to grieve a district on matters related to agency fee deductions.
•
Hold harmless/indemnificationSince the agency fees will be collected from employees who may otherwise be unwilling to pay the fees employee claims and lawsuits may result. In this environment the districts should negotiate for union agreement to defend and indemnify the district.
10. Is there a way for unit members to collectively object to mandatory agency fees?
Response:
Yes, Government Code section 3546(d) provides for a petition and election process but Government Code section 3456(c) provides, in part, that
"the employer shal l remain neutral and shall not participate in any election conducted under this article … ." Thus, management employees should decline to respond to any unit member inquiries on this issue other than to refer the unit member to their own unit representatives or to PERB.If you have any further questions please let us know.
Generously provided by: Robert J. Henry, General Counsel, Office of the Sonoma County Superintendent of Schools
