Tuesday, February 28, 2012

PERB Clarifies Rules for Fair Share Fee Payers

In Office & Professional Employees International Union, Local 29, AFL-CIO, (February 7, 2012) PERB Dec. No. 2236-M, the Public Employment Relations Board decided a union cannot affirmatively misrepresent that full union membership was required as a condition of employment. The employee claimed the union sent her letters and information packets which stated she had to be a member in good standing with the union as a condition of employment and if she did not she would be terminated. She claimed she only learned later about her option to pay fair share fees.

The Board noted MMBA section 3502 grants covered employees the right to participate in the activities of employee organizations and the express right to refrain from doing so. Under an agency shop agreement the employee need not join the union or pay dues but is required to pay a fair share fee for representation activities. To be constitutionally valid an agency fee collection system must meet 3 requirements: (1) it must provide for the objection or challenge of agency fees before their collection; (2) it must provided nonmembers with adequate information about the basis for the agency fee; and (3) it must provide for a reasonably prompt decision regarding any challenge by an impartial decision maker. The Board found because the employee did not receive notice which “was reasonably calculated” to inform her of her right to pay the agency fees in lieu of becoming a member, a complaint should be issued in the matter.