FYBEL, J. —
The Public Employment Relations Board (the Board or PERB) concluded the Orange County Water District (the District) committed an unfair practice, in violation of Government Code section 3502.5, when it refused to consent to an election petitioned for by the recognized employee organization seeking to implement a so-called modified agency shop. (All further statutory references are to the Government Code unless otherwise specified.) An agency shop is defined in section 3502.5, subdivision (a) as an arrangement that requires an employee, as a condition of continued employment, to either join the recognized employee organization or pay the organization a service fee. The proposed agency shop in this case is referred to as a "modified" agency shop because it would apply only to future employees hired into the bargaining unit and not apply to current employees. The District filed a petition for a writ of extraordinary relief from the Board's decision under section 3509.5, subdivision (a). We granted a writ of review.
We deny the petition for extraordinary relief. For the reasons we explain post, we hold that section 3502.5 authorizes the proposed modified agency shop.
The District is a public agency within the meaning of section 3501, subdivision (c), and is therefore subject to the provisions of the Meyers-Milias-Brown Act (MMBA), section 3500 et seq. The Orange County Water District Employees Association and the Orange County Employees Association
Since June 24, 2005, the District and the Association have been parties to a memorandum of understanding (MOU) and successor MOU's, which have set forth various wages, hours, and other terms and conditions of employment for the employees in the bargaining unit covered by the MOU.
In May 2011, in the course of negotiations for a successor MOU, the Association proposed a "modified" agency shop arrangement which would apply only to new employees of the District, hired on or after a set future date, and not apply to then-current employees. The District rejected the Association's proposed modified agency shop arrangement on the ground that section 3502.5 does not authorize the creation of such an arrangement.
In July 2012, the Association requested that the MOU be reopened to implement the proposed modified agency shop arrangement. The District rejected the Association's request on the same ground.
On November 14, 2012, the Association served the District and the State Mediation and Conciliation Service (SMCS) with a petition and request for an agency shop election, which stated, in part, that no management or confidential employees were included in the unit, and the petition had been signed by approximately 98 percent of the members of the unit.
The Association's petition contained the signatures of 125 employees of the District, who belonged to the bargaining unit. The petition stated: "We, the undersigned employees of the Orange County Water District represented by the Orange County Employees Association, hereby request a Modified Agency Shop Agreement and an election to implement an Agency Fee Arrangement pursuant to California Government Code section 3502.5 and other applicable laws or regulations. Pursuant to [the] Modified Agency Shop Agreement and Arrangement, all employees hired on or after March 1, 2013,
On December 4, 2012, the District's director of human resources, Stephanie Dosier, received an e-mail from SMCS mediator Jerry Fecher, in which Fecher confirmed receipt of the Association's request for an agency shop election. Fecher requested that a meeting be scheduled to discuss the logistics for setting up an election; he proposed December 12 and 14, 2012, as possible dates for such a meeting.
On December 7, the District's legal counsel responded to Fecher by requesting a postponement of the meeting "until SMCS verified its ability to conduct a modified agency shop election under Government Code section 3502.5(a)." On December 12, Fecher responded to that communication by stating the MMBA does not authorize SMCS to rule on the legality of a proposed agency fee arrangement and further stating, "if the parties are ready and in agreement to proceed, SMCS is available, if necessary, to check the level of support in the petition and/or to subsequent[ly] conduct an election."
After receiving further direction from the District's governing board, on January 3, 2013, the District's legal counsel informed Fecher that the District would not voluntarily consent to a modified agency shop election "which has the intention of creating an agency shop only for employees hired on or after March 1, 2013, and which exempts all current bargaining unit employees." The District reconfirmed its position that an agency shop arrangement must apply to all employees in the unit and therefore cannot be limited to employees hired after a future date.
On July 3, 2013, the Association timely filed an unfair practice charge based on the District's denial of the Association's petition for a modified agency shop election as a violation of section 3502.5. The Association stated it sought "administrative relief by requiring the District to agree to conduct an election pursuant to the petitions signed by significantly more tha[n] the requisite 30% of the eligible members." The Board issued a complaint.
An unfair practice hearing was conducted before an administrative law judge. The parties had filed a stipulated factual record and opening briefs which resulted in the hearing consisting of oral argument. The administrative law judge observed, "the issue presented in this case may be one of first impression for PERB or is likely one of first impression for PERB." The administrative law judge's proposed decision, issued on February 26, 2015,
The District timely filed a statement of exceptions, and the Association timely filed a response. The Board reviewed the hearing record in its entirety and concluded the administrative law judge's proposed decision was adequately supported by the evidentiary record, well-reasoned, and consistent with all relevant legal principles. The Board found no merit in the District's exceptions and "adopt[ed] the proposed decision, including its procedural history, statement of jurisdiction, findings of fact, identification of issue, conclusions of law, remedy, proposed order and Notice, as the decision of the Board itself as supplemented by a discussion of the District's exceptions."
On October 22, 2015, the District timely filed a "petition for a writ of extraordinary relief" under section 3509.5, subdivision (b) from the Board's decision. This court granted the District leave to file an amended petition on October 28 (the petition).
The District has filed a request that we take judicial notice of numerous documents. As pointed out in the petition, the District had previously requested that the administrative law judge and the Board each take judicial notice of the same documents, which are all included in the administrative record before this court. The District's request was granted by both the administrative law judge and the Board. Given that all the documents at issue were judicially noticed below and are in our record, we deny the District's request for judicial notice filed in this court as superfluous and moot.
"The MMBA is administered by PERB, a quasi-judicial administrative agency modeled after the NLRB. [Citations.] ... In 2000, the Legislature brought the MMBA within PERB's authority [citations], giving PERB exclusive initial jurisdiction over complaints alleging unfair labor practices violating the MMBA. [Citations.]" (County of Los Angeles, supra, 56 Cal.4th at p. 916.)
"Courts generally defer to PERB's construction of labor law provisions within its jurisdiction. [Citations.] `... PERB is "one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." [Citation.]' [Citation.] We follow PERB's interpretation unless it is clearly erroneous." (County of Los Angeles, supra, 56 Cal.4th at p. 922; see Banning
The stipulated facts show that in May 2011, the Association proposed the implementation of an agency shop (designed to apply only to new employees hired on or after a certain future date), during negotiations for a successor MOU with the District. The District rejected the Association's proposal. In July 2012, the Association requested that the MOU be reopened to implement the proposed agency shop arrangement. The District rejected that proposal too. In November 2012, the Association served the District and SMCS with a petition and request for an agency shop election.
The stipulated facts therefore show that the Association satisfied section 3502.5, subdivision (b)'s requirements that it wait 30 days after its request of the District to negotiate an agency shop arrangement before the Association filed its petition to establish an agency shop and have an election held to accomplish that goal. The stipulated facts also show the Association presented a petition signed by at least 30 percent of the employees in the
Here, the District indisputably refused to enter into a consent election agreement or otherwise allow an agency shop election to occur. The District did so on the ground that the proposed agency shop was unauthorized by statute because it applied only to new employees hired on or after a future date and not to the entire bargaining unit.
The District contends it properly withheld consent from the petitioned-for agency shop election because section 3502.5 does not permit an agency shop that applies to anything less than the entire bargaining unit. The District's appeal rests on the proper interpretation of section 3502.5.
The agency shop proposed by the Association is referred to as a "modified agency shop" because it consists of an arrangement that requires certain employees, as a condition of continued employment, to join the Association or pay the Association certain fees. The term "modified agency shop" is not a term found in the code or in the related regulations. That term appears to have developed in case law and in legislative discussions to distinguish agency shops that apply to all members of a bargaining unit from those that apply to fewer than all such members. (See 86 Ops.Cal.Atty.Gen. 169, 170 (2003) ["An agency shop provision that excludes employees hired before a specified date is known as a `modified' agency shop provision."].)
The Association's proposed agency shop, modified to apply only to employees hired in the future, is an arrangement that requires an employee, as a condition of continued employment, to either join the Association or pay the Association a service fee. It therefore appears to fall squarely within the statutory definition of an agency shop, and thus appears to be authorized by section 3502.5, subdivision (a).
Neither the California Supreme Court nor any appellate court has addressed whether section 3502.5 authorizes an agency shop that applies to
The Attorney General explained: "It is clear from the legislative history of section 3502.5 that the employee election procedures of subdivision (b) were added to the statute to deal with situations where the negotiated MOU procedures specified in subdivision (a) proved to be unsuccessful. When section 3502.5 was amended in 2000 (Stats. 2000, ch. 901, § 3) to add subdivision (b), the purposes of the proposed legislation were stated in the legislative committee reports as follows: [¶] `1. Some public agency employers unfairly withhold or refuse agreement on agency fee arrangements despite a significant interest demonstrated by employees. [¶] `2. The existing [statutory] provisions are said to provide employers with an unfair veto authority over such arrangements. [¶] `3. This bill provides employees with an alternative process to obtain an agency fee agreement through a fair, democratic process.' (Sen. Rules Com., Office of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 739 (1999-2000 Reg. Sess.) as amended May 13, 1999, p. 3.) [¶] It is only after the public agency and the union have failed to reach an agreement that an employee election may be conducted by the Division of Conciliation of the Department of Industrial Relations (`Division').[
In its opening brief, the District states: "The only MMBA case addressing the meaning of an agency shop by a California Appellate Court is City of Hayward v. United Public Employees[, supra,] 54 Cal.App.3d 761. In City of Hayward, the Court defines an agency shop to apply to all employees and states in this regard as follows: `In an agency shop, union membership is not a condition of employment, but
The District's reliance on City of Hayward v. United Public Employees[, supra,] 54 Cal.App.3d 761 (City of Hayward) is puzzling given that section
The District also argues: "The United States Supreme Court also had the occasion to interpret section 3502.5(a) in the very recent case of Knox[, supra, 567 U.S. 298] 132 S.Ct. 2277 .... In Knox, the court interprets section 3502.5(a) to apply to all employees ... [¶] ... represented by a union." Not true.
In Knox, supra, 567 U.S. at page ___ [132 S.Ct. at page 2284], the sole issue before the United States Supreme Court was "whether the First Amendment allows a public-sector union to require objecting nonmembers to pay a special fee for the purpose of financing the union's political and ideological activities." In the opinion, the court provided the following background: "Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an `agency shop' arrangement under which all the employees are represented by a union selected by the majority. Cal. Govt. Code Ann. § 3502.5(a) (West 2010). While employees in the unit are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union services related to collective bargaining (so-called chargeable expenses)." (Id. at p. ___ [132 S.Ct. at p. 2284].)
The District argues that "modified agency shops support free riders which is directly contrary to the primary purpose of agency shops." (Capitalization, boldface, & underscoring omitted.) Applying the rules of statutory interpretation as set forth by the California Supreme Court in Martinez v. Combs, supra, 49 Cal.4th at page 51, we do not need to review the legislative history of section 3502.5 and potential impact on public policy because, for the reasons discussed ante, we conclude the statutory language of section 3502.5 permits the modified agency shop proposed by the Association.
If we were, however, to conclude that "the language allows more than one reasonable construction," consideration of "the legislative history of the measure and maxims of statutory construction" and, "[i]n cases of uncertain meaning," the consequences of a particular interpretation, including its impact on public policy, would not change our conclusion. (Martinez v. Combs, supra, 49 Cal.4th at p. 51.) The District is correct that courts have stated the primary purpose of implementing an agency shop or similar arrangement is to prevent "free riders."
In the seminal case of Abood v. Detroit Board of Education (1977) 431 U.S. 209, 221-222 [52 L.Ed.2d 261, 97 S.Ct. 1782] (Abood), the United States Supreme Court explained the primary purpose of a union shop as follows: "The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. [Citation.] The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged `fairly and equitably to represent all employees ..., union and nonunion,' within the relevant unit. [Citation.] A unionshop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become `free riders' — to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees. [Citations.]" (Fn. omitted.)
The modified agency shop proposed by the Association does not conflict with the primary purpose described ante. By implementing such a modified agency shop, the number of so-called "free riders," who are not union members but enjoy the benefit of union representation by belonging to a bargaining unit, is reduced. Although the modified agency shop arrangement does not apply to current employees, it applies to all new employees hired on or after a certain date. Through attrition and new hires, the number of free riders would continue to decrease in number. Although an agency shop arrangement that applied to all current and future members of a bargaining unit would instantly eliminate the free-rider element, nothing in section 3502.5 suggests that type of arrangement is the only one permitted.
Although the record contains a significant amount of legislative history relating to section 3502.5, the District does not cite any portion of it, which reflects a specific legislative intent to limit agency shops to those that apply to all current and future members of a bargaining unit. If the Legislature wished to define an agency shop to exclude the type proposed by the Association, it could have done so.
The District argues, "a modified agency shop applying only to future employees renders virtually meaningless the rescission election provisions of [section 3502.5,]sub[division] (d)." (Capitalization, boldface & underscoring omitted.) Subdivision (d) of section 3502.5 provides: "An agency shop provision in a memorandum of understanding that is in effect may be rescinded by a majority vote of all the employees in the unit covered by the memorandum of understanding, provided that: (1) a request for that type of vote is supported by a petition containing the signatures of at least 30 percent of the employees in the unit, (2) the vote is by secret ballot, and (3) the vote may be taken at any time during the term of the memorandum of understanding, but in no event shall there be more than one vote taken during that term. Notwithstanding the above, the public agency and the recognized employee organization may negotiate, and by mutual agreement provide for, an alternative procedure or procedures regarding a vote on an agency shop agreement.
The District's argument continues: "An agency shop that has been created by a majority vote of the existing employees that only applies to new employees hired after a certain date, cannot be realistically rescinded by the new employees pursuant to sub[division] (d). The rescission of the agency shop requires a majority vote of all the employees in the unit. Thus, the modified agency shop for only new employees effectively disenfranchises newly-hired employees from having the ability to rescind the agency shop arrangement. Such an arrangement is contrary to the right of public employees to refuse to join or participate in the activities of employee organizations pursuant to section 3502."
The District argues the Board erroneously concluded "that a modified agency shop raises no First Amendment concerns." (Boldface, underscoring, & some capitalization omitted.) The United States Supreme Court has repeatedly expressed concern that the implementation of agency shops in general raises First Amendment issues. However, the United States Supreme Court has not held that an agency shop, in and of itself, is unconstitutional.
In Abood, supra, 431 U.S. at page 234, the United States Supreme Court held that nonunion public employees have a First Amendment right to prevent a union from spending a part of their compulsory service fees on contributions to political candidates or on "express[ions of] political views unrelated to [the union's] duties as exclusive bargaining representative." In Abood, the United States Supreme Court stated: "To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union
In Teachers v. Hudson (1986) 475 U.S. 292, 302-303 [89 L.Ed.2d 232, 106 S.Ct. 1066], the United States Supreme Court considered the "[p]rocedural safeguards" necessary to implement Abood, stating: "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." (Fns. omitted.)
In Knox, supra, 567 U.S. at page ___ [132 S.Ct. at page 2289], the United Supreme Court stated: "When a State establishes an `agency shop' that exacts compulsory union fees as a condition of public employment, `[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.' [Citation.] Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences [citation], the compulsory fees constitute a form of compelled speech and association that imposes a `significant impingement on First Amendment rights.' [Citation.] Our cases to date have
In Harris v. Quinn (2014) 573 U.S. ___, ___ [189 L.Ed.2d 620, 134 S.Ct. 2618, 2623], the majority refused to extend Abood and held that the First Amendment to the United States Constitution does not permit a state to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support.
The petition is denied. The Association is awarded its costs on appeal. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
O'Leary, P. J., and Bedsworth, J., concurred.