Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS097169, Dzintra Janavs, Judge.
Richard P. McKee, in pro. per., for Plaintiff and Appellant.
Michael D. Anderson and Victoria M. Camilli for Defendant and Respondent.
Plaintiff appeals from an order in which the defendant was found to have complied fully with the judgment (writ of mandate). We affirm.
SUZUKAWA, J.
INTRODUCTION
Defendant and respondent, the Pasadena City College Chapter of the California Teachers Association (the Union), is the exclusive representative for the Pasadena Area Community College District’s faculty bargaining unit (the unit). Plaintiff and appellant Richard P. McKee, a Pasadena City College chemistry professor, does not belong to the Union and is representing himself in this action.
In April 2005, the Union informed the unit’s nonmembers that they must either join the Union and pay dues, or begin paying a mandatory fair share service fee that is the equivalent of dues, less a 5 percent rebate for nonchargeable expenses. As discussed below, public school employee unions may charge nonmembers a fair share of the collective bargaining expenses (chargeable expenses) incurred for the benefit of both members and nonmembers alike. In collecting the fee, the unions must follow the procedural requirements adopted in Chicago Teachers Union v. Hudson (1986) 475 U.S. 292 (Hudson), to protect the nonmembers’ constitutional right not to finance objectionable political, ideological, and other activities unrelated to the collective bargaining process (nonchargeable expenses).
In this action, McKee challenged the sufficiency of the Hudson notice provided to the unit’s nonmembers regarding the basis for the fee. The purpose of the Hudson notice requirement is to provide enough information regarding the union’s chargeable and nonchargeable expenses to allow nonmembers to gauge whether the fee appears to include nonchargeable expenses. If that appears to be the case, the nonmembers who wish to dispute the charges may seek a prompt hearing before an impartial decision maker who will determine the propriety of the fee. (Hudson, supra, 475 U.S. at pp. 307-308.) Pending a resolution of the matter, the fee amount that is reasonably in dispute must be placed in escrow so as not to violate the objecting nonmember’s constitutional rights.
In this case, the superior court found that the first Hudson notice issued by the Union was insufficient and directed by writ of mandate that McKee be given a second notice. McKee objected that the second notice was also insufficient and filed an order to show cause re sanctions. The trial court concluded that additional information was required and ordered that McKee be given a third notice. When McKee also objected that the third notice was insufficient, the trial court disagreed and left McKee to pursue arbitration to challenge the propriety of the fee. In this appeal from that final order, McKee contends that the notices were insufficient to enable him to gauge the propriety of the fee and determine whether to challenge any of the charges.
FAIR SHARE SERVICE FEES
Before discussing the facts of this case, we will first discuss the fair share service fee and the notice requirements for imposing the fee.
Government Code section 3546, subdivision (a) allows public school employee unions to impose a fair share fee on nonmembers in order to address the problem of “free riders” who do not belong to the union but nevertheless receive the benefits of union representation. (Jerabek v. Public Employment Relations Bd. (1991) 2 Cal.App.4th 1298, 1302.) The amount of the fee, which may not exceed the dues paid by union members (Gov. Code, § 3546, subd. (a)), is usually calculated as a percentage of salary and must be limited to the “nonunion employees’ pro rata share of the union’s expenditures for collective bargaining activities. [Citations.]” (Robinson v. Pennsylvania State Corrections Officers Ass’n (M.D.Pa. 2005) 363 F.Supp.2d 751, 756, fn. omitted (Robinson).) The collective bargaining activities that may be covered by the fee include “the cost of negotiations, contract administration, and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative.” (Gov. Code, § 3546, subd. (a).)
Government Code section 3546 provides in part: “(a) Notwithstanding any other provision of law, upon receiving notice from the exclusive representative of a public school employee who is in a unit for which an exclusive representative has been selected pursuant to this chapter, the employer shall deduct the amount of the fair share service fee authorized by this section from the wages and salary of the employee and pay that amount to the employee organization. Thereafter, the employee shall, as a condition of continued employment, be required either to join the recognized employee organization or pay the fair share service fee. The amount of the fee shall not exceed the dues that are payable by members of the employee organization, and shall cover the cost of negotiation, contract administration, and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative. Agency fee payers shall have the right, pursuant to regulations adopted by the Public Employment Relations Board, to receive a rebate or fee reduction upon request, of that portion of their fee that is not devoted to the cost of negotiations, contract administration, and other activities of the employee organization that are germane to its function as the exclusive bargaining representative. [¶] (b) 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 through meeting and negotiating with the employer.”
Although imposing a fair share “fee substantially eliminates the free-rider problem,” it also “creates a constitutional free speech issue. See [Abood v. Detroit Board of Education (1977) 431 U.S. 209, 222-223, 235-236 (Abood)]; see also Hudson, 475 U.S. at 302-03, 106 S.Ct. 1066. [As] a compulsory assessment on nonunion employees for the purpose of subsidizing speech by the union[,] . . . the fair share fee . . . undoubtedly constitutes an infringement on nonunion employees’ freedom of expression. Hudson, 475 U.S. at 302-03, 106 S.Ct. 1066; Abood, 431 U.S. at 221-26, 235-36, 97 S.Ct. 1782.” (Robinson, supra, 363 F.Supp.2d at pp. 755-756.)
To avoid impairing the free speech rights of nonmembers who object to paying for political, ideological, and other activities unrelated to the collective bargaining process (Abood, supra, 431 U.S. at pp. 234-236), Hudson established three basic procedural requirements for collecting the fee. First, the union must provide nonmembers with advance notice containing sufficient information of the union’s chargeable and nonchargeable expenses, including verification by an independent auditor, to enable nonmembers to gauge the propriety of the fee. (Hudson, supra, 475 U.S. at p. 306.) Second, the union must provide nonmembers with “a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker.” (Id. at p. 310.) And third, the union must provide “an escrow for the amounts reasonably in dispute while such challenges are pending.” (Ibid.; see Jerabek v. Public Employment Relations Bd., supra, 2 Cal.App.4th at pp. 1301-1304, for a discussion of the California statutes and regulations implementing the Hudson requirements.)
Hudson recognized, however, that it is not possible to calculate the fee with precision. The major difficulty is that the fee calculation and notice must occur before the expenses are incurred in the fiscal year, which necessarily requires the union to estimate its income and expenses for the coming year in order to impose the fee. To enable nonmembers to identify potentially objectionable expenditures in the coming year, Hudson stated that the notice must disclose the union’s major categories of expenses from the previous year, with verification that the prior expenses were actually incurred. This requirement was expressed in Hudson as follows: “We continue to recognize that there are practical reasons why ‘[a]bsolute precision’ in the calculation of the charge to nonmembers cannot be ‘expected or required.’ [Citations.] Thus, for instance, the Union cannot be faulted for calculating its fee on the basis of its expenses during the preceding year. The Union need not provide nonmembers with an exhaustive and detailed list of all its expenditures, but adequate disclosure surely would include the major categories of expenses, as well as verification by an independent auditor.” (Hudson, supra, 475 U.S. at p. 307, fn. 18.)
Recognizing that unions transmit portions of their fee revenue to their state and national affiliates, Hudson extended the notice requirement to the affiliates. According to Hudson, if a union shares its fee revenue with its state and national affiliates (in this case, the Union is sharing its fee revenue with the California Teachers Association (CTA) and the National Education Association of the United States (NEA)), the Hudson notice must disclose, based on verified financial information from the previous year, either “that none of [the fee] was used to subsidize activities for which nonmembers may not be charged, or [provide] an explanation of the share that was so used . . . .” (Hudson, supra, 475 U.S. at p. 307, fn. 18.)
In evaluating the sufficiency of a Hudson notice, we must keep in mind that its purpose is to enable nonmembers intelligently to decide whether to challenge the possible nonchargeable expenses that are included in the fee. (See Hohe v. Casey (3d Cir. 1992) 956 F.2d 399, 410.) Given that the financial data is controlled exclusively by the union, when such a challenge is raised, the union bears the burden of proving the propriety of the fee; the nonmember need not prove that the fee includes nonchargeable expenses. Accordingly, the notice “was not intended to provide a full financial background of the union. See Hohe, 956 F.2d at 410; see also Gilpin [v. Am. Fed’n of State, County, & Mun. Employees (7th Cir. 1989)] 875 F.2d [1310] at 1316 (stating that notice should not be as ‘complicated as an SEC prospectus’). Nor was it meant to detail with ‘absolute precision’ the expenses and revenues involved in the fair share fee calculation. Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066; see also Hohe, 956 F.2d at 410; Tavernor v. Ill. Fed'n of Teachers, 226 F.3d 842, 850 (7th Cir. 2000). Rather, it was designed to give nonunion employees the information necessary to evaluate whether they should challenge the union’s fair share fee as an unconstitutional infringement on their expressive rights. See Hudson, 475 U.S. at 306-07 & n. 18, 106 S.Ct. 1066; Hohe, 956 F.2d at 410-11; see also Hudson v. Chi. Teachers Union, Local No. 1, 922 F.2d 1306, 1314 (7th Cir. 1991).” (Robinson, supra, 363 F.Supp.2d at pp. 757-758, fn. omitted.)
Given that this appeal addresses only the sufficiency of the notice, it is important to note that there “is a ‘clear distinction between the adequacy of a union’s notice, addressed by the Supreme Court in Hudson, and the propriety of a union’s chargeability determinations, considered separately by the Supreme Court in Lehnert [v. Ferris Faculty Association, 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991)].’ Jibson v. Michigan Education Association-NEA, 30 F.3d 723, 730 (6th Cir. 1994); see also Hudson v. Chicago Teachers Union, 922 F.2d 1306, 1314 (7th Cir. 1991) (holding that the plaintiffs ‘mistakenly equate [] the adequacy of the notice with the accuracy of the fee assessment’).” (Knight v. Kenai Peninsula Borough School Dist. (9th Cir. 1997) 131 F.3d 807, 813-814.) “[A]t the notice stage, we do not decide whether expenses are properly chargeable.” (Id. at p. 814.)
FACTUAL AND PROCEDURAL BACKGROUND
I. The First Hudson Notice
The first Hudson notice issued by the Union included the following information. Nonmembers who did not join the Union before May 2005 would be charged a fair share service fee of 1 percent of their salary, but they could apply for a 5 percent rebate for nonchargeable expenses. According to the notice, the fee was calculated based on the Union’s chargeable and nonchargeable expenses for 2003-2004. The notice stated that “[t]he law allows chargeable expenditures to be based on the most recent fiscal year for which audited figures are available. Accordingly, the PCC [Pasadena City College] Chapter, California Teachers Association and the National Education Association made calculations regarding their estimated chargeable and nonchargeable expenditures for the most recent fiscal years for which statements are available. These summaries are attached and include a full explanation regarding how the calculations were made.”
A. Financial Information
The Union’s summary of its 2003-2004 chargeable and nonchargeable expenses disclosed that the Union had a total income of $144,308.16, of which $138,556.29 came from membership dues. It paid $128,205.85 as dues to the CTA and NEA in 2003-2004, which left a balance of $28,768.70 for its local expenditures. The Union’s chargeable expenditures comprised 96 percent, or $27,520.96, of its total local expenditures (consisting of $13,500 for grievance officer, $1,539.30 for website maintenance worker, $5,728 for clerical help, $1,674.41 for printing, $914.07 for legal fees, $2,625 for arbitration fees, $1,286.89 for open meeting expenses, $157.87 for conferences relating to representational obligations, $14.80 for postage, $21.56 for bank fees, and $59.06 for miscellaneous expenses). The Union’s nonchargeable expenditures comprised 4 percent, or $1,247.74, of its total local expenditures (consisting of $1,026.20 for website maintenance worker and $221.54 for refunds of membership dues).
According to the verified financial information for the CTA and NEA during 2002-2003, the CTA’s chargeable expenditures constituted 72 percent ($106,386,487) of its total expenditures of $147,685,594; the NEA’s chargeable expenditures constituted 58.04 percent ($157,063,469) of its total expenditures of $270,618,916. For 2004-2005, the NEA projected that 53 percent of its expenditures would be chargeable. The NEA explained that “to assure against any possibility” of an “unexpected variation in expenditures between the 2002-2003 and 2004-05 years, NEA has added a cushion of 5.04%, resulting in a chargeable percentage of 53% and a nonchargeable percentage of 47%” for its 2004-2005 expenditures.
B. Rebate of Nonchargeable Expenses
The notice stated that the nonmembers who wished “to challenge the calculations of the chargeable amount” of the fee could request arbitration. In addition, nonmembers could apply for a 5 percent rebate of the nonchargeable expenses covered by the fee. The 5 percent rebate was intended to provide a 1 percent “cushion” above the 4 percent in nonchargeable expenses incurred by the Union in 2003-2004.
The notice further stated that the rebate represents “the nonchargeable amount for the PCC Chapter on a monthly basis. If you do not request arbitration, no further adjustment will be made based on the outcome of the arbitration hearing, if any is held. . . . [¶] . . . [I]f you wish to challenge the calculation for PCC Chapter, CTA, or NEA’s chargeable expenditures in an arbitration hearing before an impartial decision maker, you may check the appropriate boxes on the form. . . . [¶] The PCC Chapter will escrow all local fees received. If you request a rebate, your fees will continue to be held in escrow until the rebate is paid. If no rebate request is made, your fees will be released from escrow when the time period for making the request has passed. If you request arbitration, fees remaining after payment of the rebate will continue in escrow until completion of the arbitration and rebate adjustments, if any.”
C. Supplemental Information
The Union issued an amended balance sheet and statement of chargeable and nonchargeable expenses for 2003-2004. Although the amended figures differed from those provided with the original notice, the overall percentages of chargeable (95 percent) and nonchargeable (5 percent) expenses remained the same. The Union also issued an amended statement by Michael Di Pietro, certified public accountant, verifying that the Union’s income and expense figures corresponded with the bank statements, cancelled checks, and invoices and receipts supplied by the Union. Di Pietro stated that the “financial information presented is the representation of management” and that no independent audit or review of the reports had been conducted.
II. Writ of Mandate Petition
Contending that the Hudson notice was inadequate, McKee petitioned for a writ of mandate. He alleged that he was assessed an annual fee of $820.92, to be deducted from his salary at the rate of $68.41 per month for 12 months. He also alleged that, according to information provided by the District, the Union represents 1,289 faculty members, including some part-time faculty members who do not teach every semester. In 2004-2005, the faculty members in the unit will receive a total of $38,589,316 in salary, of which 1 percent, or $385,893.16, will be collected as a fair share service fee. Given that the Union spent $166,349 for chargeable and nonchargeable expenses in 2003-2004, McKee alleged that the Union’s anticipated revenue from the fair share service fee of $385,893.16 “is approximately 2.32 times as much as the Union’s apparent total expenditures for 2003-04.” “If, as the District reports, there are 1289 employees in the Certificated Bargaining Unit represented by the Union, Petitioner is informed and believes that dividing the estimated $121,435.43 of chargeable, annual Union expenditures by the 1289 Union-represented employees, produces an annual fair share fee of $94.21 per unit employee per year, and not the $820.92 annual Fee the Union has indicated it has assessed the Petitioner ($68.41 per month for 12 months). Therefore, [the] Fee the Union has assessed to Petitioner is estimated to be 8.7 times more than the Union is entitled to.”
Regarding the Union’s local expenditures, McKee sought to obtain: (1) an independent verification of the Union’s chargeable and nonchargeable expenditures through an audit of the Union’s 2003-2004 financial statements; (2) an explanation of how the 1 percent fair share service fee was calculated; and (3) an indication of how the annual revenue generated by the service fee will compare with the Union’s chargeable expenses.
Regarding the expenditures of the CTA and NEA, McKee alleged that because only 53 percent of the NEA’s 2004-2005 expenditures were chargeable and only 72 percent of the CTA’s 2002-2003 expenditures were chargeable, the 5 percent rebate failed to exclude all nonchargeable expenses from the fee.
III. Writ of Mandate
The trial court issued a peremptory writ of mandate ordering that the Union must provide McKee “with a proper Hudson notice, which shall include, at the minimum: [¶] 1) A showing of how the fair share fee of 1% of base salary was calculated; [¶] 2) A showing of how the revenues anticipated from that fair share fee compare to the Union’s annual chargeable expenses; [¶] [and] 3) A breakdown of [the Union’s] payments to both CTA and NEA.” With regard to McKee’s request for an independent verification based upon an audit of the Union’s 2003-2004 financial statements, the trial court ordered that “[a]ll financial statements as to the above, including financial statements showing annual revenues, along with chargeable versus non-chargeable expenses to justify the fair share fee[,] must be supported by verification that they have been subject to independent review equivalent to at least the ‘intermediate’ level of audit.” The trial court also ordered that after receiving the second Hudson notice, McKee was to have “a renewed opportunity to object to paying the non-chargeable portion of the fee.”
On appeal, McKee contends that the trial court erred by failing to require the Union to provide the second and third Hudson notices to each of the nonmembers in the unit. The reason for the trial court’s refusal to require additional notice to all nonmembers was that McKee, who is representing himself and is not an attorney, may not seek relief for others.
IV. The Second Hudson Notice and Order
In response to the writ of mandate, the Union provided McKee with a second Hudson notice that included the following information. The purpose of the fair share fee was to obtain the additional revenue needed in order for the Union to “become able to provide adequate collective bargaining services.” With the additional fee revenue, the Union hoped to increase its chargeable expenditures from $27,520.96 in 2003-2004, to $72,000 in 2005-2006.
In 2005-2006, the Union anticipated having a gross income of $364,000, consisting of $254,800 from the fair share service fee and $109,200 from membership dues. The $364,000 in anticipated gross income was more than twice the Union’s 2003-2004 gross income of $144,308.16.
In 2005-2006, the Union expected to pay $292,000 in dues to the CTA and NEA, more than twice its combined payment of $128,205.85 in 2003-2004. The Union expected to retain a balance of $72,000 for its local chargeable expenses. ($364,000 - $292,000 = $72,000.)
The Union provided a statement from Di Pietro that he had “verified the balance sheet and the calculations of chargeable and nonchargeable expenses and . . . confirmed that expenditures were made as set forth therein. [¶] I hereby verify that the financial records provided to me by the union appear substantially true and correct. My opinion is that the financial records are accurate and complete. The expenses were actually incurred.”
The courts have not rigidly applied the requirement that the union’s major expenses must be verified by an independent auditor. In Cummings v. Connell (9th Cir. 2003) 316 F.3d 886, for example, the court stated that unions need not always provide a full copy of the audit in the Hudson notice, nor must they always perform a full audit. (Id. at p. 892.) Cummings stated that when a union “contends that the relevant figures were simply lifted from an audited financial statement, it should suffice for the notice to include a certification from the independent auditor that the summarized figures have indeed been audited and have been correctly reproduced from the audited report.” (Ibid., fn. omitted.) Cummings also stated that the auditor need not verify that the union “has properly allocated its expenditures between chargeable and nonchargeable expenses,” because “it would make little sense for the auditor to undertake verifying the allocation when the union would have to justify its allocation when challenged by a fee payer regardless of the auditor’s opinion.” (Id. at pp. 892-893.)
A. McKee’s Request for an Order to Show Cause
McKee requested an order to show cause (OSC) re contempt, alleging that the Union had failed to comply fully with the writ of mandate. Among other things, McKee sought further information regarding the Union’s calculations of the 1 percent fair share service fee and its gross revenue estimate. McKee contended that: “1. [The Union’s] 2003-2004 total income . . . came only from Union members. [¶] 2. After implementing the 1% fair share fee, [the Union] lowered dues to Union members. [¶] 3. After implementing the fair share fee, [the Union] says its 2005-2006 income should be increased more than $218,000 (to a total of $364,000); that increase to be born[e] entirely by non-members[.] [¶] 4. [The Union] estimates it will forward $292,000 (or 80.2% of its increased revenues) to CTA and NEA, despite the fact that [the Union] presently forwards only 77% (or 73% if one believes the Union’s counsel) of its total expenditures to CTA and NEA.” McKee argued that it was “obvious” that the additional sum paid to CTA and NEA in 2005-2006, coming entirely from nonmembers, was “to be used in large part for non-chargeable expenditures like political lawsuits, organization efforts, and political campaigning.”
B. The March 14, 2006 Order
Agreeing that the Union had not fully complied with the writ of mandate, the trial court issued a March 14, 2006 order directing the Union to provide McKee with a third Hudson notice. Among other things, the Union was ordered to disclose “the factual basis for how the fair share service fee was calculated, and in particular, how the union arrived at a 1% fair share service fee, including how [the Union] estimated the 2005/2006 annual chargeable expenses to be $72,000.” In addition, the Union was ordered to provide “the CTA/NEA fair share service fee breakdown for the 2005 to 2006 fiscal year, including the basis/method how the amount to each was determined.”
V. The Third Hudson Notice and Order
In response to the March 14, 2006 order, the Union provided McKee with a third Hudson notice that included the following information. The Union had negotiated to pay $292,000 in dues to the CTA and NEA for 2005-2006, consisting of: (1) “$603 a year to CTA and $140 a year to NEA” for each of the bargaining unit’s 340 full-time faculty members (totaling $205,020 to CTA and $47,600 to NEA); and (2) “$60.30 a year to CTA and $39.75 a year to NEA” for each of the bargaining unit’s 973 adjunct and part-time faculty members (totaling $23,469 to CTA and $15,471 to NEA).
Regarding its calculation of the fair share service fee, the Union stated that it had calculated the fee to be “fair and equitable. A one-percent fee takes the same proportion from each faculty member’s salary. On average, the fee has been significantly decreased for all because of the implementation of the one-percent fee. A one-percent fee also allows senior faculty members, who are compensated in greater amount than their junior counterparts, and have received cumulatively more in wages and benefits due to union representation, to contribute in proportion to the correspondingly larger amount of compensation they received. Finally, part-time and adjunct professors who work irregular hours may be equitably charged as well instead of being charged a flat rate that would not fairly consider the differences among them in pay rate and workload.”
Regarding its estimated chargeable expenses of $72,000 in 2005-2006, the Union explained that it intended to spend $6,000 per month for: (1) “Contract negotiation and administration and grievance processing” ($2,025 per month); (2) “Faculty communications” ($350 per month); (3) “Office administration” ($2,295 per month); and (4) “Professional consulting” ($1,330 per month).
A. McKee’s Request for an Order to Show Cause
McKee again requested an order to show cause re contempt, contending that the Union had failed to comply fully with the March 14, 2006 order. McKee argued that the Union had reduced its membership dues by charging an unsubstantiated 1 percent fair share service fee to nonmembers, based on nothing more than guesswork concerning its chargeable expenses for 2005-2006. He argued that the 1 percent fee “was dreamed-up as a nice number that would produce a huge increase in revenue, both to [the Union] and to its state and national affiliates, at a time when their political and organizing expenditures (i.e., nonchargeable expenses) were increasing astronomically. And a 1% fee was a nice round number being utilized by some other local unions.”
In addition, McKee objected to paying dues of $603 to CTA and $140 to NEA, stating that, “Nonmembers do not pay union dues, they [are supposed to] pay a fair share fee that is less than union dues by the non-chargeable amount of dues!” McKee pointed out that although “both CTA and NEA claim that 28% and 47%, respect[ively], of their expenses are nonchargeable, [the Union] says nothing, makes no calculation adjustment for these nonchargeable amounts when determining the fair share fee.” McKee contended that “any determination of a fair share fee that is based upon union dues, rather than chargeable expenses, violates the First Amendment.”
B. The May 19, 2006 Order and This Appeal
On May 19, 2006, the trial court denied the second request for an order to show cause re contempt, stating in relevant part: “[The Union’s] Hudson notice is adequate. [¶] [The Union’s] Amended Return sufficiently responds to the questions in the Court’s Order of March 14, 2006. [¶] [McKee] is now in a position to exhaust his administrative remedy of arbitration.”
In this appeal from the May 19, 2006 order, McKee contends that the Hudson notices were constitutionally inadequate because: (1) the CTA and NEA expenses were neither adjusted for nonchargeable expenses nor independently verified; (2) the Union’s estimate of its 2005-2006 local chargeable expenses was neither supported by the record nor independently verified; and (3) there is no explanation of how the Union’s anticipated fee revenue for 2005-2006 was estimated. He further contends that (4) the trial court erred in failing to require the Union to send the second and third Hudson notices to all of the nonmember employees in the bargaining unit.
DISCUSSION
We begin our discussion by reemphasizing that the propriety of the fee is not at issue in this appeal, which concerns only the sufficiency of the Hudson notice. As the trial court correctly stated below, after a nonmember receives sufficient notice regarding the basis for the fee, any challenge to the accuracy of the fee must be timely raised before the Public Employee Relations Board, which has exclusive jurisdiction over the initial determination of unfair practices allegations. (Gov. Code, § 3541.5; Cal. Admin. Code, tit. 8, § 32997 [“It shall be an unfair practice for an exclusive representative to collect agency fees in violation of these regulations”]; San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 7; Leek v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 48-51; Link v. Antioch Unified School Dist. (1983) 142 Cal.App.3d 765, 768-769.) If McKee timely challenges the amount of the fee at an administrative hearing, the Union will bear the burden of proof. “While the nonmember employee has the burden of raising an objection to the agency fee, the union bears the burden of proving the validity of the assessment. [Citation.]” (Jerabek v. Public Employment Relations Bd., supra, 2 Cal.App.4th at p. 1302.)
I. CTA and NEA Nonchargeable Expenses
McKee contends that the notices were insufficient because the fee was not adjusted to deduct the nonchargeable expenses of the CTA and NEA. At the notice stage, however, the issue is not whether the CTA’s and NEA’s expenses were properly charged, but whether sufficient information was provided for McKee to decide whether to pursue arbitration to challenge the amount of the fee. (Knight v. Kenai Peninsula Borough School Dist., supra, 131 F.3d at p. 814.)
Based on our independent review of the record, we are satisfied that the notice was legally sufficient. From McKee’s annual fee of $820.92, the CTA will receive $603 and the NEA will receive $140, leaving a balance of $77.92 for the Union. Assuming that the 2005-2006 percentages of chargeable and nonchargeable expenditures of the Union, CTA, and NEA will remain constant at 5, 28, and 47 percent, respectively, the notice was sufficient to gauge whether the $820.92 fee will include nonchargeable expenses beyond the 5 percent rebate offered by the Union.
McKee argues that the notice approved by the court does not include a breakdown of the chargeable and nonchargeable expenses in dollars and cents. He cites no authority for the proposition that the Union is required to perform the math. He has been provided with verified percentages. Nothing more is required.
Whether these percentages prove to be correct, however, is a matter beyond the scope of this appeal. For our limited purpose of determining the sufficiency of the notice, we conclude the information was adequate to determine that the fee assessment arguably includes an ascertainable amount in nonchargeable expenses, which McKee may challenge by seeking arbitration. Given that the disputed portion of McKee’s fee must remain in escrow until the issue is resolved, McKee has not shown a violation of his constitutional rights.
McKee contends that the notice is invalid because the Union seeks to increase its income and expenditures by imposing a fee that is supported only by estimates of future spending. Hudson, however,does not preclude the estimation of future expenditures based on prior expenditures. Under Hudson, unions may calculate their projected chargeable expenses for the coming year based on verified expenses incurred during the preceding year. (Hudson, supra, 475 U.S. at p. 307, fn. 18.) Notice is sufficient if the union “identif[ies] the expenditures for collective bargaining and contract administration that had been provided for the benefit of nonmembers as well as members” (id. at p. 307), and provides independent verification that the expenses were actually incurred. (Harik v. California Teachers Ass’n (9th Cir. 2003) 326 F.3d 1042, 1045 .)
II. Verification of Future Expenses
McKee similarly argues that the notices are invalid because they were based on estimates of future expenses that, because they were only estimates, could not be independently verified. He argues, for example, that because these figures are only estimates, the Union cannot independently verify that it will pay $292,000 in dues to the CTA and NEA in 2005-2006, or receive $364,000 in gross revenue in 2005-2006. He also contends that the notices are invalid because the Union has not provided sufficient information regarding its negotiation of the CTA and NEA dues and its calculation of the fee.
McKee states that because “a Hudson notice, with its independently-verified financial statements, is required by the CCR § 32992 to be provided to nonmembers by the exclusive collective bargaining agent prior to or concurrent with the collection of the fair share fee from nonmembers and to be based upon an independent audit, it is unconstitutional for a union to base its calculation of its fair share fee on unaudited ‘estimates of anticipated chargeable expenses’ for a period that does not begin until three months after the union began collecting the fair share fee.”
“(a) Each nonmember who will be required to pay an agency fee shall annually receive written notice from the exclusive representative of: [¶] (1) The amount of the agency fee which is to be expressed as a percentage of the annual dues per member based upon the chargeable expenditures identified in the notice; [¶] (2) The basis for the calculation of the agency fee; and [¶] (3) A procedure for appealing all or any part of the agency fee. [¶] (b) All such calculations shall be made on the basis of an independent audit that shall be made available to the nonmember. [¶] (c) Such written notice shall be sent/distributed to the nonmember either: [¶] (1) At least 30 days prior to collection of the agency fee, after which the exclusive representative shall place those fees subject to objection in escrow, pursuant to Section 32995 of these regulations; or [¶] (2) Concurrent with the initial agency fee collection, provided however, that all agency fees so noticed shall be held in escrow in toto until all objectors are identified. Thereafter, only the agency fees for agency fee objectors shall be held in escrow, pursuant to Section 32995 of these regulations.” (Cal. Admin. Code, tit. 8, § 32992.)
The verification requirement does not apply, however, to future expenses. Moreover, this is not a case where the Union failed to provide verified financial information regarding previous years and sought to be excused from doing so. We therefore distinguish the case cited by McKee, Robinson v. Pennsylvania State Corrections Officers Ass’n (M.D.Pa. 2004) 299 F.Supp.2d 425, in which the court rejected the union’s argument that it was excused from providing a Hudson notice because, as a new union, “it had no history of expenditures on which to estimate the costs that would be incurred on ideological and non-ideological expenses. Left only to ‘guess’ at the proper allocation between permissible and impermissible expenditures, it argues that any notification to employees would have been insufficient under Hudson and its progeny to justify its fee calculation. Cf. id. at 134 (requiring that notice be based on audited financial information from previous year). Implicitly invoking the Latin maxim lex neminem cogit ad vana seu inutilia peragenda, the Association suggests that, because any notice would have been constitutionally deficient, no notice was required.” (Id. at p. 429.)
“‘The law forces no one to do vain or useless things.’ Black’s Law Dictionary 1653 (7th ed. 1999).”
In this case, unlike in Robinson,the Union provided a Hudson notice with verifiedfinancial information of its past expenditures, as well as those of the CTA and NEA. The Union’s figures for 2005-2006 were estimates, but unlike in Robinson,they were supported by verified financial statements for previous years. As the Supreme Court acknowledged in Hudson, estimates of future expenditures are necessary because “there are practical reasons why ‘[a]bsolute precision’ in the calculation of the charge to nonmembers cannot be ‘expected or required.’ [Citations.]” (Hudson, supra, 475 U.S. at p. 307, fn. 18.)
Having independently reviewed the record, we conclude that the notices provided to McKee were sufficient to comply with the Hudson requirements. To the extent McKee is challenging the validity of the expenses included in the fee, he must first raise those issues in arbitration. Until McKee has exhausted his administrative remedies, the other issues mentioned in the brief are not properly before us.
For example, McKee argues that the fair share fee is “unfair” and that the Union did not explain how expenditures to CTA and NEA increased.
III. Notice to Nonmembers
McKee contends that the trial court erred in failing to require the Union to provide the second and third Hudson notices to the other nonmember employees in his bargaining unit. As the trial court correctly determined, however, because McKee is not an attorney, he may not represent others in this litigation. Business and Professions Code “[s]ection 6125 states, ‘No person shall practice law in California unless the person is an active member of the State Bar.’ Under the statute, one who is not a licensed attorney cannot appear in court for another person. [Citations.]” (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 547-548.)
DISPOSITION
The May 19, 2006 order is affirmed. The parties are to bear their own costs.
We concur: EPSTEIN, P. J. MANELLA, J.