2018 - 2019 SCLEAMemorandum of Understanding:   Article 35: Association Security

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What’s on this Page

• 35.1 Maintenance of Membership
• 35.2 Agency Shop Service Fee
• 35.3 Separation From Unit Exception
• 35.4 Service Fee Choice
• 35.5 Calculation Of Basic Service Fee
• 35.6 Advance Notice Of Agency Shop Service Fee
• 35.7 Notice Of New Employees
• 35.8 Agency Shop Service Fee Collection
• 35.9 Indemnification
• 35.10 Rescission Of Agency Shop Provision
• 35.11 Recordkeeping And Reporting
• 35.12 Association’s Constitutional Obligations
• 35.13 Violation of Law

Read Next: Article 36: Invalid Sections

In accordance with Government Code Section 3502.5, all employees who have Association dues deduction authorization on file with the Auditor-Controller-Treasurer-Tax Collector (ACTTC) or who may thereafter authorize in writing the deduction of Association dues, shall remain on such payroll deduction. This maintenance of membership required payroll Association dues deduction shall continue for the term of this Memorandum, except that such maintenance of membership required dues deductions shall be voided under any of the following circumstances: when an employee is removed from a classification allocated to the representative bargaining units covered under this Memorandum ; consistent with applicable law, if the employee notifies the ACTTC in writing to cease such dues deductions, and a successor agreement has not been concluded which continues this provision or all applicable impasse procedures concerning negotiations for such a successor agreement have been exhausted without an agreement being reached; and at any time an employee and the Association stipulate in writing to the ACTTC that the employee is not to be subject to further dues deductions under this clause or any other provision herein.

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1. Any non-supervisory employee in a classification in the non-supervisory Bargaining Units covered by this agreement shall as a condition of continued employment, either:
   1. Pay to the Association an agency shop service fee as provided below; or
      1. Execute a written declaration that the employee is a member of a bona fide religion, body or sect which holds a conscientious objection to joining or financially supporting any public employee organization as a condition of employment; and
      2. Pay a sum equal to the agency shop service fee (full service fee) described below to a non-religious, non-labor charitable fund exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. Proof of such payments shall be made on a monthly basis to the County and the Association as a condition of continued exemption from the requirement of financial support to the Association.
   2. The employee shall have, on a bi-weekly basis, a payroll deduction of the agency shop service fee or charitable contribution. The sum so deducted shall be paid to the Association or applicable charity or deposited into escrow as directed by the Association.

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The provisions of Sections 35.1 and 35.2 shall not apply during periods of separation from the eligible Bargaining Unit by any employee otherwise subject to those provisions but shall reapply to such employee following the return of the employee to the Bargaining Unit. The term “separation” includes layoffs, transfer out of the covered Bargaining Units by request, promotion, demotion, reclassification or for any other lawful reason, and unpaid status, all of a duration of more than one (1) full pay period.

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1. Full service fee ― Each affected employee shall have the option by affirmative written election and voluntary written waiver of all constitutional objections to pay a full service fee to the Association in an amount equal to the regular periodic dues and general assessments charged to Association members.  Said payment shall entitle the full service fee payer to the same rights, level of benefits and privileges of Association membership except for the right to participate in Association elections and governance of the Association.
2. Basic service fee ― Each affected employee who does not affirmatively elect to pay a full service fee to the Association and who does not voluntarily waive all constitutional objections, shall pay a basic service fee to the Association in an amount calculated as described below, but, in no events, in excess of the regular periodic dues and general assessments charged to Association members.

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1. The basic service fee will be calculated by the Association to fairly value the collective bargaining activities, contract administration and grievance adjustment services provided.  The basic service fee shall not be used for any of the following:
   1. Lobbying or political activity by the Association;
   2. Payments to affiliates by the Association;
   3. Social activities for Association members;
   4. Charitable and philanthropic activities;
   5. Insurance and other benefit programs for members and full service fee payers.
2. The basic service fee shall not entitle the payer to the same rights, level of benefits and privileges as Association members or individuals electing to pay a full service fee. The Association shall fairly represent all employees covered by this agreement. However, that duty does not require that basic fee payers obtain the same level of individual representation benefits or other benefits as Association members and full service fee payers. For example, basic service fee payers may not receive legal representation in individual disciplinary actions or civil or criminal actions brought against them as a result of acts or omissions within the  course and scope of their employment. Basic fee payers will not be entitled to attorney consultation, retirement, insurance and death benefits provided only to members. The basic service fee will be calculated to fairly charge the represented employee for the representation services provided.

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No agency shop service fee shall be collected from any employee until the first pay period no less than thirty (30) days after the employee has received written notice sent by certified mail from the Association which includes legally adequate information concerning the calculation of the basic service fee, the services provided for a full service fee and basic service fee, a description of a reasonably prompt opportunity to challenge the amount of the basic service fee before an impartial decision-maker, and notice as to how the employee may elect to pay the full service fee, waive constitutional rights or object to the amount for the basic service fee. An escrow account shall be set up by the Association of any amounts reasonably in dispute while any challenges are pending.

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1. To the extent the information is available, the County shall provide the Association with the names, addresses, personal email addresses and telephone numbers of all new employees coming into the relevant Bargaining Units during each subsequent pay period.
2. The names and addresses provided the Association shall be kept confidential.

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To the extent authorized by law, the failure of an obligated employee to pay an agency shop service fee shall be a condition of continued employment and shall be grounds for the Association to file a legal action to collect the fees due subject to the following procedures:

1. The Association shall notify the employee (a copy to the Human Resources Department and the Department Head) of non-compliance by certified mail, return receipt requested.  Said notice shall detail the non-compliance by explaining that the employee is delinquent in not tendering the agency shop service fee due, specifying the amount of the delinquency, and warning the employee that unless such fees are tendered within thirty (30) calendar days, the Association has the right to file an action to collect the sums due.
2. If the employee fails to comply, the Association may file a legal action and the County may be notified that the employee has failed to satisfy this condition of employment.
3. The County shall not incur any cost due to court appearances by County staff, but shall provide a written statement to the Association at their request specifying the employee’s agency shop service fee obligations under this agreement.

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The Association shall defend, indemnify, hold harmless, release and save the County, its agents and employees, from and against any and all claims, demands, suits, orders, judgments, expenses or other forms of liability arising out of or in connection with this subsection and/or any action taken or not taken by the County and/or the Association under this Subsection, including, but not limited to, the collection and procedures for collection of agency shop service fees and the amount of such fees.  This section shall be in addition to any other remedy available to the County under this agreement or provision of law.

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The implementation of the provisions of this Subsection shall not prohibit or restrict an election to rescind this provision as provided by Section 3502.5 of the California Government Code.

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The Association shall comply with the financial record keeping and reporting requirements of Government Code Section 3502.5.

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It is recognized that this agency shop provision affects sensitive and important political speech and association rights of County employees, which are protected by the First Amendment of the U.S. Constitution. In an effort to ensure that these rights are not infringed, this Article sets forth procedures and requirements that the Association must, at a minimum, follow. Nothing in this Article or any other, however, relieves the Association of taking whatever additional action may legally be required to protect the constitutional rights of employees who are subject to an agency shop service fee under this Subsection. The Association also acknowledges that the law in this area is constantly evolving, and therefore, recognizes that it has an ongoing obligation to monitor relevant legal developments, including the case law on this subject, and to adapt its conduct in implementing this Article as required. The Association also recognizes that it is foreseeable that the employees subject to the agency shop service fee may suffer damages if this subsection is not carried out in accordance with the First Amendment.  For this reason, and others, the County has strongly encouraged and still does strongly encourage the Association to consult with competent legal counsel throughout the term of this contract over the implementation of this Subsection.

1. No employee shall be discriminated against or harassed on the basis of his or her status as a non-member. Reasonable communication regarding the Association and/or Association membership shall not be considered discrimination or harassment under this subsection.

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If a court finds the implementation of this Subsection to be in violation of constitutional law, the Association shall have sixty (60) days to comply with the Court’s order or the County may cease the collection of agency shop service fees and not condition continued employment upon the payment of agency shop service fee unless otherwise directed by the court.

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