Tuesday, April 17, 2012

Court of Appeal: Fair Share Fee Payers Have No Right to Vote in Union Elections

In Williams v. PERB (B233494, April 13, 2012.), the Court of Appeal affirmed a previous PERB decision finding that fair share fee payers have no right to vote in union elections.

Members of the bargaining unit represented by the California Faculty Association at California State University, Northridge (CSUN) brought an unfair practice charge alleging that their state and federal rights were violated. The parties who filed the charge were fair share fee payers who allleged the union improperly denied them the right to vote on an furlough proposal. Instead, only members of the union were allowed to vote. PERB dismissed the charge on the ground that PERB has previously held that unions can exclude non-members from voting so long as the union provides non-members an opportunity to communicate their views.

The fee payers then sought review of PERB’s decision not to issue a complaint under the standards articulated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271 (Fire Fighters).)  In Fire Fighters, the Supreme Court held that PERB’s decision not to issue a complaint is only reviewable in three narrow situations: 1) to determine whether PERB’s decision violates a constitutional right, 2) exceeds a specific grant of authority, or 3) is based on an erroneous statutory construction.

The court first addressed whether the charging parties’ constitutional rights were violated because they were required to join the union in order to vote. The court found no authority that there is a constitutional right to participate in a union vote and declined to find that such right exists. Next, the court addressed whether PERB’s decision was clearly erroneous. After analyzing PERB and NLRB precedent, the Court concluded that under the circumstances here—where the union solicited the views of nonmembers—PERB’s determination that there was no unfair practice was not clearly erroneous.