NLRB Issues New Standard For Duty Of Fair Representation Charge Defenses

On September 14, 2018 the National Labor Relations Board issued a memo addressing duty of fair representation charges against labor unions. The National Labor Relations Act makes it illegal for labor unions to restrain or coerce employees when they exercise their rights granted to them by the Act. The law states that a labor organization has a duty to fairly represent employees.

The NLRB believes that their past approach to duty of fair representation cases has created
confusion for employees in what duties are owed to them by union representatives. In response, the memo instructed regional directors that unions should be required to show they have procedures or systems in place to track grievances. It was also explained that a union which does not communicate or respond to a complaining member is negligent, and the negligence would be considered arbitrary and willful. The NLRB stated that it will not accept after-the-fact communication as a correction for negligence. 

The position taken by the NLRB is inconsistent with how they have interpreted duty of fair
representation law in the past. The change means that labor organizations can now be subject to charges based on careless or unprofessional actions that had previously been viewed as just plain error. To avoid a negligence charge, labor organizations should evaluate the procedures and case tracking systems they currently have to ensure their timeliness and thoroughness.

Supreme Court Rules in Favor of Free-Riders: Union Drop-Outs Don’t Have to Pay Fair Share Fees, Not Entitled to Non-Core Union Benefits

Today, the Supreme Court ruled that unions cannot collect fair share fees from employees who do not opt in to union membership.  While the decision means some unions will face a significant in drop in revenue, public safety unions are not expected to be as heavily affected.  This court decision was widely expected given the makeup of the Supreme Court and some recent cases.  California recently passed laws giving unions opportunities to reduce the impacts of the decision.

The case is about agency shop agreements.  In an agency shop, employees can chose to be full members of the union or decline union membership.  But non-members still have to pay part of the cost of supporting the union.  In some labor unions, non-members make up a big percentage of the employees covered by a contract.  In most public safety unions, non-members are already a very small share.  However, all unions should redouble efforts to provide high value to members and communicate with members about the benefits of union membership.

In Janus v. AFSCME, Mark Janus argued that his $45 monthly fee to the American Federation of State, County, and Municipal Employees (“AFSCME”) was unconstitutional and infringed on his first amendment rights. Specifically, he argued that as a public employee his contract negotiations are with the government, hence those fees were a form of political advocacy.

Based on long-standing precedent in Abood v. Detroit Board of Education, all covered employees must pay a fee to account for the benefits of collective bargaining that unions offer. Those fees cover collective bargaining costs, such as contract negotiations, but not political advocacy.

However, Janus claimed such a fee requirement violated his right to free speech, because those fees went to change government policy on salary, benefits, and pensions. Accordingly, his fees were a direct form of speech.

On the other side, the union strongly advocated that Janus’s agency fees simply prevented “free-riding” from employees who benefit from the union's negotiations. AFSCME argued that, because it was obligated by law to represent the interests of both union and non-union members, the fees were a way for employees to pay their fair share for contact negotiations for which they clearly benefited from.

In a 5-4 decision, the Supreme Court agreed with Mark Janus’s position. Justice Alito wrote:  "Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned," Avoiding free riders, Alito wrote: "is not a compelling interest."

Today’s ruling is a clear indication public sector unions must double their efforts to obtain full membership from their fair share bargaining unit members.  Unions should clearly communicate about the many benefits of union membership, including the right to vote on a contract, lawyers for legal defense and the ability to vote in union elections.  Other member-only benefits will vary from union to union.

Non-members are not entitled to many of the benefits unions provide to their members.  For example, non-members do not have a right to vote on a contract (though they must be given some avenue to express their views), they do not have a right to have an attorney represent them in a discipline case or critical incident, they do not get to attend union meetings, and they do not have a right to other benefits a union may provide like access to the union hall, free or reduced cost classes for educational incentive credit or CPR, or special life and disability insurance.

Unions should also be aware of new state laws designed to protect their rights.  The Legislature passed Senate Bill 866 on June 18, 2018 and it is currently awaiting Governor Brown’s signature.  The bill requires payroll deductions for union dues and makes the union, not management, responsible for determining member consent to union membership.  This prevents anti-union employers from using Janus as an excuse to drop members from the rolls, but it also requires unions to be actively engaged.  Senate Bill 285 prohibits employers from discouraging employees to join the union or trying to get members to drop their membership.  Again, it require vigilance from union to enforce the law.  Assembly Bill 119 gives unions the right to access new employee orientations and get contact information for new hires.  To get the benefit of this law, unions must request to bargain over new member access.  Since many unions, particularly in public safety, already have established policies and practices for new member orientations, this law sets the floor, not the ceiling for access.   A number of other bills mitigate the immediate impacts of Janus and unions should develop a plan to maximize use of these tools and member outreach to retain and grow membership.

Union Violated Duty of Fair Representation by Not Providing Notice and Opportunity for Members to Voice Concerns

The Public Employment Relations Board recently clarified that a union violates its duty of fair representation of its members when it fails to give at least some notice and opportunity for members to voice their concerns about an agreement under negotiation.

The United Teachers of Los Angeles ("UTLA") is the exclusive representative for L.A. Unified School District’s ("LAUSD") certificated employees, including around 4,000 “career” substitute teachers. In mid-2009 LAUSD laid off 1,800 teachers. Shortly after that the UTLA President signed a side letter with LAUSD giving priority for substitute assignments to laid off probationary substitute teachers. This changed the priority rule from one based on seniority. However, the President did not consult with UTLA representatives for substitute teachers nor request input from UTLA members.

When UTLA substitute teachers discovered this months later, one of them (Mr. Kennon Raines) filed an individual unfair practice charge against UTLA. Along with 149 other UTLA substitute teachers, he alleged that UTLA had violated its duty of fair representation.

PERB first ruled in Raines v. UTLA (2016) that UTLA did not violate the duty of fair representation by agreeing to the substantive terms of the side letter. PERB held that the terms were reasonable, even though they were not favorable toward career substitute teachers.

However, PERB also ruled that UTLA violated the duty of fair representation by failing to give notice to its members about the side letter. A violation of this duty involves conduct by the union that is arbitrary, discriminatory, or in bad faith. Here, although side letters do not require a ratification vote, the duty of fair representation "implies some consideration of the views of various groups of employees and some access for communication of those views." Because the UTLA President failed to provide any notice or opportunity for UTLA members to voice their concerns, he violated the duty of fair representation.

When negotiating an agreement that will substantially affect the terms and conditions of employment, a union should always provide at least some notice and opportunity for its members to voice their concerns. Union members must be given the opportunity to voice their concerns even about agreements that do not require a ratification vote.

Judge Strikes Down "Right to Work" Law as Unconstitutional

On April 8, 2016, a Circuit Court in Wisconsin held its “right to work” law was an unconstitutional taking of the Plaintiff-Union’s property without just compensation. (International Association of Machinists District 10, Local Lodge 1061 v. State of Wisconsin (Apr.8, 2016) Case No. 2015CV000628.)

Approximately 26 states have adopted “right to work” laws, which prohibit union security agreements requiring employees to pay union dues as a condition of employment. As the Wisconsin court noted, the “duty of fair representation” prevents a union from declining to represent non-paying members.

The Wisconsin Constitution, like the California and federal Constitutions, prevents the taking of property for public use without just compensation. A taking requires (1) a property interest (2) that has been taken (3) for the public use (4) without just compensation.

The Wisconsin court found the Unions had a property interest in the services they perform for their members and non-members and that the “right to work” statute was a regulatory taking. While the “right to work” laws were determined to be for the “public use,” the court found the State had not compensated the Unions with money for their services. The State argued the Unions had been justly compensated for their compelled labor with the privilege of “exclusive representation.” However, the court rejected this argument, noting “just compensation” requires the payment of money, not a grant of special privileges or other non-monetary benefits.

In a recent California case, Friedrichs v. California Teachers Association, plaintiffs argued that requiring union dues as a condition of employment violated their First Amendment right to free speech. Had the lawsuit been successful, California would have become a “right to work” state, barring agency-shop agreements and "fair share fees." After the death of Justice Scalia, however, the Supreme Court issued a 4-4 decision in the case. With no majority holding, California “fair share fees” were safe. Plaintiffs have already filed a petition for rehearing asking the Supreme Court to reconsider the case when a new, ninth Justice is confirmed.

Under the takings rationale, however, right to work states would either have to pay unions to provide services to all employees or allow unions to decline representation for non-paying members. 

Supreme Court to Decide Challenge to CTA's Fair Share Fees

On June 30, 2015, the United States Supreme Court agreed to hear a constitutional challenge to the California Teachers Association's ability to collect fair share fees from non-members who benefit from CTA contracts.

Fair share fees, also called agency fees, are fees paid by employees who benefit from a union contract, but opt out of full membership.  Many unions, particularly in public safety, have voluntary membership rates above 99%.  But other unions have lower voluntary member rates for a variety of reasons and rely on fair share fees to finance contract negotiations and other core union activities.

Courts have long considered fair share fees constitutional in the public sector since the Supreme Court's 1977 decision Abood v. Detroit Bd. Of Ed., 431 U.S.209, 232.  But courts require unions who collect them to divide their core labor activities from other other activities and assess a fair share fee that only covers the cost of core activities.  In California, these rules are part of PERB's regulations. They require unions to give non-members written notice about agency fees and, depending on their size, prepare audited financial statements.  In this way, the courts balance the rights of non-members with the needs of the unions that provide critical services.

But the Supreme Court indicated recently it may change that balance and let non-members free ride on union benefits.  Last year, in Harris v. Quinn, the Supreme Court held the First Amendment prohibited fair share fees from some types of organized workers.  In the opinion, the Court disparaged fair share fees and invited another challenge.  But that case involved home health care workers who did not have a traditional union-member relationship and did not apply to other types of employees.  Now, the Court will hear a direct challenge to fair share fee requirements under California's regulatory scheme in its October term.

Sacramento County LEMA Vindicates Right to Investigate and File Grievances Without Fear of Retaliation

Sacramento County Law Enforcement Managers Association (LEMA) President Michael Ziegler obtained a settlement protecting the right of union officers to investigate and pursue unpopular grievances in his lawsuit against former-Sheriff John McGinness and the County of Sacramento.

In March 2010, Ziegler filed a grievance on behalf of himself, LEMA, and LEMA’s members alleging violations of Sheriff’s Office policies relating to the handling of FEO files of a LEMA member running for sheriff. On the same day Ziegler appealed the denial of the grievance, it served Ziegler with a notice of interrogation. The notice said Ziegler was “suspected of misconduct” and indicated that the interrogation was related to Ziegler’s communications with a witness during his investigation of LEMA’s grievance. Between April 2010 and August 2010, Ziegler received three more notices of interrogation. Ziegler objected to the investigation.

All four notices told Ziegler he was prohibited from discussing the matter with anyone other than his representative. As a result, Ziegler was prohibited from discussing the substance of the investigation with LEMA’s board of director or members. Ziegler submitted to interrogation on August 18, 2010 under threat of discipline for insubordination.

Ziegler filed a petition for writ of mandate against the County of Sacramento and then-Sheriff John McGinness on August 10, 2010.   Ziegler’s petition alleges the County violated the Meyers-Milias-Brown Act by opening a retaliatory investigation against Ziegler for his efforts to investigate the improper handling of LEMA member’s personnel records. Ziegler also claimed the Sheriff’s actions impermissibly interfered with his representation of his members. The petition sought, among other things, a writ compelling the County to cease and desist from unlawfully retaliating against Ziegler and expunge all records of its investigation of Ziegler and a determination that the County willfully and maliciously violated the MMBA.

With encouragement from the Court, the parties participated in mediation and reached a global resolution of the suit. Under the settlement all references to the disciplinary investigation of Ziegler will be removed from his files and the County paid all mediation costs and Ziegler’s attorney fees for the mediation. The County is also required to email every member of LEMA a copy of the agreement, which includes the County’s acknowledgement that (1) “The investigation of an employee representative over engaging in concerted labor activity, including but not limited to the investigation of a potential grievance or the filing of a grievance is unlawful” and (2) “Employee representatives shall not be subject to the threat of discipline for exercising rights under the MMBA or any grievance process.”

Mastagni Law attorneys David E. Mastagni and Isaac S. Stevens represented LEMA President Mike Ziegler is the matter.

California Supreme Court to Decide Union's Right to Contact Fair Share Payers

The California Supreme will decide a dispute between Los Angeles County and SEIU about the union's access to fair share payers' names, addresses, and telephone numbers.  In County of Los Angeles v. Los Angeles County Employee Relations Commission, the Court of Appeal decided "non-member public employees who have not disclosed their personal information to the Union are entitled to notice and an opportunity to object before disclosure." In its review, the Supreme Court will address two questions affecting all public employee unions in California:

1. Do the state constitutional privacy interests of non-union-member public employees outweigh the interests of the union representing them in obtaining their contact information?

2. Did the Court of Appeal err in directing the trial court to apply a specific notice procedure to protect such employees' privacy rights instead of permitting the parties to determine the proper procedure?

Client Advisory: PERB, Not Courts, to Decide Probation Officers' Duty of Fair Representation Claims

In Paulsen v. Local No. 856 of Intern. Broth. of Teamsters (Cal. Ct. App., Mar. 18, 2011) 11 Cal. Daily Op. Serv. 3366, the Court of Appeal decided PERB’s exclusive jurisdiction extends to probation officers and to duty of fair representation cases. Click on the link below for a discussion of the case in PDF format:


- Court: PERB Must Decide If Union Breached Duty of Fair Representation to Probation Officer -