PERB: Lack Of Notice To Members Violates The DFR

United Teachers of Los Angeles (Raines, et al) (2016) PERB Decision No. 2475-E (Issued on 2/29/16)

It’s well-settled that a union, as the exclusive representative, owes a duty of fair representation (DFR) to its bargaining unit members. The general rule is that a union violates its DFR when its conduct is “arbitrary, discriminatory, or in bad faith.” This standard gives a lot of deference to the union and there are very few cases where PERB has found a violation. So when PERB issues a decision finding a DFR violation, it’s definitely worth taking a look.

Background Facts

This decision is long. It’s 112 pages. So I’m going to keep the facts really short. The United Teachers of Los Angeles (UTLA) negotiated a side-letter with the school district that eliminated seniority as a factor in how certain substitutes are given assignments. The effect of the side-letter was to give preference to recently laid off teachers, all of whom had low seniority and were concentrated in the “hardest-to-staff” schools. This had a negative effect on more senior substitutes but helped reduce teacher turn-over in the “hardest-to-staff” schools.

Over a hundred substitutes filed DFR charges against UTLA in response to the side-letter. The charging parties alleged that: 1) the side-letter breached UTLA’s DFR because it treated senior substitutes less favorably than recently laid off teachers; and 2) was entered into without notice and consultation with bargaining unit members.

Procedural Issues

The first part of the decision deals with a tricky procedural matter. There were over a hundred unfair practice charges filed by individuals but the underlying proceedings were litigating by only a few representatives. The issue was what rights do these other individuals have? The discussion is too complicated to fully set forth here. But here are the important parts for PERB practitioners:

The Board affirmed that the Office of the General Counsel has the authority to process separate charges as a single case.
The Board appeared to suggest that a formal hearing could be brought by some “representatives” of a larger group. In essence, the Board appeared to hold that “class actions” are possible.
However, because this case was not litigated as a class action, any individual desiring a remedy must be a charging party.
Because there was no prejudice to the district, the Board allowed individuals to file unfair practice charges up to the conclusion of the hearing.

Substantive Terms of Side-letter Were Not Arbitrary, Discriminatory or Bad Faith

The Board found that the side-letter had a negative impact on more senior substitutes. However, the Board held that this fact alone was insufficient to establish a violation of the DFR. The Board recognized that in negotiating for all of its members, a union may sometimes be required to take a position contrary to the interests of some of its members. Here, the Board found that the side-letter had a rational purpose: to held maintain teacher continuity at “hardest-to-staff” schools.

Lack of Notice Constitutes a Breach of the DFR

While the Board held that the substantive terms of the side-letter were not a violation of the DFR, the Board reached a different conclusion on the process used in negotiating the side-letter. The Board held that a union must provide some consideration of the views of various groups of employees and some access for communication of those views. Here, the Board held that UTLA violated its DFR by not making substitutes aware that the elimination of their seniority was even under discussion. In short, UTLA kept its members in the dark over negotiations with the district.

Remedy

At some point prior to this decision the side-letter was rescinded and the prior system restored. With this in mind, the Board held that UTLA was liable for any damages suffered by its bargaining unit members from the imposition of the side-letter to the date it was rescinded. The Board held that UTLA was liable for damages only if a substitute can prove that but for the side-letter he or she would have received an assignment.

Concurrence and Dissent By Member Winslow

Member Winslow concurred with the majority’s holding that the substantive terms of the side-letter did not violate the DFR. However, she dissented from the majority’s conclusion that the lack of notice to UTLA constituted a DFR violation. Member Winslow would find a lack of notice to members a violation of the DFR only when arbitrary or taken in bad faith. Here, Member Winslow emphasized that there was a rational basis to keep negotiations secret. Moreover, Member Winslow noted that UTLA’s internal rules do not require the ratification of side-letters while it does for a memorandum of understanding. While keeping members apprised of negotiations is a good practice, Member Winslow noted that it was not required by UTLA’s own internal rules. Accordingly, Member Winslow would not have found a violation of the DFR.

Comments:

This decision is too long. While I appreciate the thoroughness of the decision, I think the decision would be equally persuasive, or not, in half the number of pages.
“Class action” treatment. I grimaced when I saw the references in the decision to “class action” and “class certification.” As someone who handles wage and hour class actions, I can say that class actions are incredibly complex and expensive. In my humble opinion, the utilization of “class action” procedures in an administrative proceeding is inconsistent with the notion that such proceedings are supposed to be relatively simple, fast, and inexpensive. However, I do concede that in rare situations it may make sense if the case would otherwise be too unwieldy. Here, the Board appeared to authorize class actions in the discretion of the administrative law judge. Fortunately, this issue should seldom arise in the vast majority of cases which involve charges against an employer by an exclusive representative. Where you have an exclusive representative, by law it represents a “class” (i.e. the bargaining unit) so you don’t need to worry about whether individuals are being properly represented.
As for the Board’s finding that the substantive terms of the side-letter were not a violation of UTLA’s DFR, that seems appropriate to me.
As for the finding of a DFR violation due to lack of notice to members, I find myself in full agreement with the dissent by Member Winslow. Here’s why. When I negotiate for an employer, whether a MOU or side-letter, I want any agreement to be final and binding, subject only to ratification if required. In other words, I want labor peace. I don’t want to have to worry about whether the union is keeping its members informed. I don’t want to worry about whether the agreement is going to be attacked by a dissident group of employees under a DFR theory. Here, because the side-letter was rescinded, its continued effect was not at issue. But it’s not a stretch to assume that in a different situation, the employees asserting the DFR violation would seek to somehow invalidate the agreement that was reached. That affects the employer. Perhaps there is no possibility that could ever happen; but I would rather not take that chance. So if a union’s bargaining unit members want to be kept informed of negotiations, it should be set forth in the union’s internal rules. Otherwise I would not find a lack of communication to constitute a DFR violation if an agreement did not otherwise violate the DFR.
Finally, it’s worth noting that this is one of the rare decisions drawing a dissent. According to my records, this is the first dissent by Member Winslow. This is also the first precedential decision where an appointee of Governor Brown has dissented to a majority opinion authored by another appointee of Governor Brown. In February, Chair Martinez dissented to a decision authored by Member Banks, but that was a non-precedential decision. (See Trustees of the California State University (2016) PERB Dec. No. 2473-H (Non-precedential.) Prior to that, the last dissent by an appointee of Governor Brown was back in 2011 by Member Huguenin. [Note: An earlier version of this post failed to note the recent dissent by Chair Martinez. It was in a non-precedential decision which is why I missed it initially.]