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.

Officers Are Entitled To Reasonable Prior Notice Of The Subject Matter Of An Interrogation

The Second District Court of Appeal recently ruled in Ellins v. City of Sierra Madre (Jan. 28, 2016) that public safety officers must be given notice of the specific subject matter of an investigation "reasonably prior to" an interrogation so that they have sufficient time to consult with a representative.

Officer John Ellins allegedly used the CLETS database to do unofficial searches of his ex-girlfriend. The Sierra Madre Police Department opened an investigation into Ellins' conduct after receiving a tip from the ex-girlfriend. The Department gave a vague notice to Ellins that it was investigating "an alleged abuse of your peace officer powers and duties." Minutes before the interrogation was to begin, the Department told Ellins the specific allegations. The Department then gave Ellins an hour to consult with his attorney representative.

POBR provides that an officer under investigation "shall be informed of the nature of the investigation prior to any interrogation." (Gov. Code, sec. 3303(c).) The Court of Appeal held this means “'reasonably prior to' the interrogation—that is, with enough time for the officer to meaningfully consult with any representative he elects to have present."

The Court rejected the Department's argument that notice can be given only minutes before an interrogation.  But the Court declined to set a hard rule about how far in advance notice must be given.  it stated the amount of time will depend on the circumstances, including whether the officer needs time to obtain a representative, the complexity of the allegations, the number of unrelated allegations, and any risk the officer will retaliate against persons involved in the investigation or will destroy evidence.

The Court explained notice allows officers to prepare for the interrogation and identify justifications, explanations, extenuating circumstances, and other mitigating factors. If an officer is not given adequate prior notice of the subject matter of the interview and time to consult with his representative, he cannot get effective help and protection from his representative.