Copyright© 2000 by School Services of California, Inc.
Implementation of Agency Fee Legislation
Becomes Slightly Clearer
Under provisions of SB 1960/Chapter 893, Statutes of 2000 (Burton, D-San Francisco), K-14 school districts are required to collect agency fees from those employees who have not joined the recognized union. Implementation of that legislation has raised numerous questions from school districts, but some of them, at least, are becoming slightly clearer.
Employee Organization Must Request Implementation of Agency Fee Provisions
The provisions of SB 1960 are not self-executing, but instead the recognized employee organization must request that the agency fee obligations be imposed on non-dues paying members.
The legislation indicates that "Upon notification to the employer by the exclusive representative, the amount of the [agency] fee shall be deducted by the employer from the wages or salary of the employee and paid to the employee organization." This provision is being interpreted by both union and management counsel as a trigger mechanism for the union to make a determination as to whether or not agency fees should be implemented in a specific district. While the legislation could have been clearer regarding the procedures for such notification, it does not seem logical or appropriate that the employer would implement agency fee provisions unless the employee organization provides the requisite information.
Implementation Likely to be Gradual
It is not likely that unions will require that employers implement the agency fee provisions uniformly as of January 1, 2001, the effective date of SB 1960. While they have the right to implement as of that date, it is more likely that implementation will be more deliberate and gradual. The California School Employees Association, as an example, indicates that it will be requesting agency fee incrementally over eight or nine months. The California Teachers Association indicates that the vast majority of its chapters will choose to delay implementation until the start of the 2001-02 fiscal year.
Part of the reason for the delay is the union obligation to provide employees with advance notice regarding the calculation of the fees as required by the U. S. Supreme Court in what is commonly described as the "Hudson Decision." Employee organizations must provide notice at least 30 days prior to collection of any income. Since some of the accounting information is not readily available-and the required audits are expensive-it is likely that unions will choose to delay implementation until all of the information can be properly collected.
Additionally, in many cases, it may not be in the union's best interest to seek agency fee implementation. If union membership is a significant minority of the total bargaining unit membership, implementation demands could trigger a decertification election, which is inimical to the union's interest. Unions are more likely to delay implementation until membership can be improved or they may avoid agency fee demands entirely.
District Liability
SSC cannot provide legal advice, but local agencies should be aware that there is a potential for employer liability if errors are made in the implementation of the agency fee. Although the employer, in the case of SB 1960, is performing a ministerial act only-implementing the obligations imposed by state law-it is possible that disgruntled employees may include the employer in suits over the controversial legislation.
Indemnification of the district against any liability is generally sought if agency fee provisions are negotiated by the parties, but since there is no negotiation obligation under SB 1960, it is not possible for the district to demand, in turn, that the union provide legal hold-harmless protection.
The Education Legal Alliance of the California School Boards Association is working with employee organizations to try to establish some standardized procedure to ensure that California school districts are not liable for implementing requirements of state law. In fact, that may be the best line of defense-districts are only implementing the obligations of state law and, thus, should not be held liable for actions that they are taking to administer legal obligations. School Services will provide additional information regarding indemnification discussions and any information regarding legislation in this field.
Mandated Program Costs
SSC believes that the Commission on State Mandates will find at some later date that there are considerable state-mandated program costs that are imposed upon local agencies as a consequence of SB 1960. Costs are likely to be significant; for example, as local unions jockey for representation in the very lucrative area of California public education. California could become a major representation battleground, since it is the only state, to our knowledge, that mandates agency fee in public employment.
There is likely to be considerable debate over the appropriateness of representation units as unions battle to carve out employees favorable to particular unions. While, as an example, today's classified units include all classified employees, it is possible that competing unions will seek to break up "wall-to-wall units" and separately represent instructional aides, transportation, or blue-collar employees.
While it will be a couple of years before the specific "parameters and guidelines" are adopted regarding the mandates of the new legislation, districts should begin to collect information on their costs early in the procedure in order to avoid last-minute catch-ups in some subsequent fiscal year.
Issues such as the cost of payroll deductions, the time required to respond
to employer or employee questions or determination of appropriate bargaining
units are all issues that may arise due to SB 1960 and, thus, may force increased
costs for implementation of the collective bargaining process in
California.
--Ken Hall