Court and Public Employment Relations Board (PERB) decisions, commentary on California public sector labor relations

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Friedrichs v. CTA: Oral Argument Highlights

The Supreme Court has posted a transcript of the oral argument in Friedrichs v. California Teachers Association. (Click here.) Here are some highlights. I tried to focus on arguments and comments that have not already been highlighted in the press:

Is it permissible to allow the union to be the exclusive representative so that nobody else is at the bargaining table? (Justice Ginsberg to Petitioners’ Counsel). Petitioners’ position is that although having an exclusive representative impinges on them because it prohibits them from individually negotiating with the employer, it’s permissible because of the need for an exclusive representative.

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Oral Argument Held in Friedrichs v. California Teachers Association

Oral argument was held today before the United State Supreme Court (Court) in Friedrichs v. California Teachers Association (Friedrichs). According to news reports, it seems almost a certainty that the Court will overturn its 1977 decision Abood v. Detroit Board of Education and hold that compulsory “agency shop” or “fair share” fees are unconstitutional.  Justice Kennedy, a deciding vote in many close cases, reportedly led much of the criticism against California’s agency fee law. In response to the argument that agency fees are necessary to avoid “free riders,” Justice Kennedy replied that compulsory agency fees allow unions to make employees “compelled riders.” There was also some hope that Justice Scalia might be a surprise vote in favor of keeping Abood. But according to early news reports, he was just as hostile to agency fees as Justice Kennedy. “Everything that is collectively bargained with the government is within the political sphere, almost by definition,” said Justice Scalia.  Chief Justice Roberts and Justice Alito also made comments that appeared to be hostile to agency fees.  As usual Justice Thomas was silent but it’s hard to imagine that he would be in favor of agency fees.  Thus, it appears that there are five votes firmly in favor of overturning Abood.

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PERB Issues 2014-15 Annual Report

PERB has released its annual report for fiscal year 2014-2015. (The report is available here.)  Here is my annual summary of the statistics in the report:

Unfair Practice Charges

695 unfair practice charges (UPCs) were filed in fiscal year 2014-15. In fiscal year 2013-2014, there were 949 UPCs, but 173 of those were filed by the same individual on behalf of himself and/or other employees over agency fee issues. So if you subtract the 172 “duplicate” UPCs, there were 777 UPCs filed in fiscal year 2013-14.  That means fiscal year 2014-15 saw a 10.6% decrease in UPCs compared to the year before.

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PERB Provides Guidance on Who Can be a Weingarten Representative

Hartnell Community College District (2015) PERB Decision No. 2452-E (Issued on 09/04/15)

Have you ever had an employee designate a Weingarten representative who is not from the employee’s recognized union? I’ve had this happen a couple of times. Usually it occurs in the context of an organizational campaign. For example, one situation I dealt with involved an employee who wanted to use a Weingarten representative from a union trying to decertify the existing exclusive representative.

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PERB Affirms Position on Single-Issue Factfinding; Court of Appeal May Rule Soon

City & County of San Francisco (2015) PERB Decision No. A429-M (Issued on 10/15/15)

In this case, the City and County of San Francisco (City) filed an appeal over an order by the Office of the General Counsel to proceed to factfinding on a single-issue dispute. The City urged PERB to reconsider its decision in County of Contra Costa (2014) PERB Order No. Ad-410-M (Contra Costa), in which it held that MMBA factfinding applies to any dispute, even a single-issue dispute that arises outside of contract negotiations. The Board held that, “None of [the City’s] arguments persuade us to abandon our previous determination that both the plain language of the statute and its legislative history indicate that the Legislature intended to make MMBA factfinding available for any “differences” over any matter within the scope of representation, so long as the employee organization’s request is timely and the dispute is not subject to one of the statutory exceptions set forth in MMBA …”

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