Decision 1472E – California School Employees Association, Chapter 258 (Gerber)

LA-CO-845-E

Decision Date: December 12, 2001

Decision Type: PERB Decision

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Perc Vol: 26
Perc Index: 33028

Decision Headnotes

803.00000 – UNION UNFAIR PRACTICES; UNION SECURITY; AGENCY/FAIR SHARE FEE; DUES DEDUCTION/CHECK OFF
803.01000 – In General

Violation found where agency fees were deducted from employee's paycheck before he was sent a Hudson notice. Where monies were improperly deducted from employee's paychecks for two consecutive months, and were not returned to the employee by the union until some eleven weeks after the first deduction and almost seven weeks after the second deduction, it is an unfair practice, without regard to whether the violation was advertent or inadvertent. The notion of a “de minimus” violation has only limited application in the agency fee context.

803.00000 – UNION UNFAIR PRACTICES; UNION SECURITY; AGENCY/FAIR SHARE FEE; DUES DEDUCTION/CHECK OFF
803.03000 – Procedures for Collection

Violation found where agency fees were deducted from employee's paycheck before he was sent a Hudson notice. Where monies were improperly deducted from employee's paychecks for two consecutive months, and were not returned to the employee by the union until some eleven weeks after the first deduction and almost seven weeks after the second deduction, it is an unfair practice, without regard to whether the violation was advertent or inadvertent. The notion of a “de minimus” violation has only limited application in the agency fee context.

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.04000 – Reimbursement of Dues, Fees and Exactions to Employees; Union Liability

The appropriate remedy is to direct the union to cease and desist from such conduct and, because it did not immediately return the monies deducted from the employee's paychecks, it is also appropriate to direct the union to pay interest to the employee until the total is paid at the rate of seven percent per annum. Employee's request to receive interest for a longer period of time, or until he cashes the fee reimbursement check he received from the union, denied because the purpose of an interest award is to make an aggrieved party whole. The remedy ordered by the Board accomplishes this goal. Employee's request for attorney's fees and costs denied because PERB awards such costs only after a finding of conduct that is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280.) Having discovered its error, the union made an attempt to correct it by issuing the employee a refund check. The fact that there was a delay in delivering the check to Gerber does not justify an award of attorney fees or costs under the standards articulated in Hacienda La Puente.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

Employee's request for attorney's fees and costs denied because PERB awards such costs only after a finding of conduct that is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280.) Having discovered its error, the union made an attempt to correct it by issuing the employee a refund check. The fact that there was a delay in delivering the check to Gerber does not justify an award of attorney fees or costs under the standards articulated in Hacienda La Puente.