Sunday, January 25, 2009

Public Sector Unions May Use Agency Fees for National Litigation Expenses

Locke v. Karass (U.S. Supreme Court, Case 07-610) (Issued on 1/21/09)

Nonmembers (fair share fee payers) of a union local brought suit claiming that the First Amendment prohibits charging them for any portion of the service fee the local union pays the national that represents litigation conducted by the national union that does not directly benefit the local (what the court called “national litigation.”)

The Supreme Court held that under the First Amendment, “a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for ‘services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.’”


This decision resolves confusion among the circuit courts as to when national litigation costs may be assessed against fair share fee payers. However, the test enunciated by the Court raises other questions. For example, what constitutes a “reciprocal” arrangement and what is the test to determine if litigation inures to the benefit of nonmembers? A concurrence by Justice Alito and joined by the Chief Justice and Justice Scalia emphasized that these issues were not addressed in the main decision. The concurrence also cited to the Government’s argument that the burden of establishing a reciprocal arrangements rests on the national union, and not on the objecting fee payer.

Friday, January 23, 2009

Who is an “Employee”

San Francisco Unified School District (2009) PERB Decision No. 2000-E (Issued on 1/20/09)

A former employee of the San Francisco Unified School District (District) filed an unfair practice charge seeking salary benefits that were awarded retroactively in a MOU entered into by the District and Union after he left his employment. The Board affirmed the dismissal, finding that, “In order to have standing to file an unfair practice charge under EERA, a charging party must have been an employee, employee organization, or employer at the time of the alleged unfair practice.” Because the charging party was not an employee at the time the unfair practice arose, the Board held that he did not have standing to bring an unfair practice charge.


This decision doesn’t break any new legal ground. However, I just wanted to note that the issue of who is an employee can get tricky in certain situations, especially when it comes to remedies. For example, there are many public agencies throughout California that are attempting to modify retirement benefits, particular retiree health benefits. Several of these jurisdictions have implemented (or attempted to implement) changes. The unions in response have filed unfair practice charges. In the event an unfair practice is found, what is the remedy and who benefits? Normally, the remedy is to return to the status quo ante (ie the way things were before the change). In terms of who is covered by the remedy, certainly anyone who was an employee at the time a public agency made the change should be covered. However, what about individuals who were already retired – and thus not employees – at the time the unfair practice arose? Are they covered by PERB’s remedy? Retirees certainly wouldn’t have standing to bring an unfair practice charge on their own, so should they be allowed to go around that statutory prohibition by piggybacking onto a charge brought by current employees? Many of these issues are currently pending on the Board’s docket and it will be interesting to see what the Board decides.

Tuesday, January 6, 2009

Court Finds Employee Letter Protected; Overturns PERB Decision

California Teachers Association v. Public Employment Relations Board (Journey Charter School) (2008) __ Cal.App.4th __ (Issued on 1/5/09)

CTA appealed the Board’s decision in Journey Charter School (2008) PERB Decision No. 1945-E. The underlying unfair practice alleged that Journey Charter School (school) terminated the employment of three teachers in retaliation for their organizing efforts. The Administrative Law Judge (ALJ) sustained the allegations. The Board rejected the ALJ’s proposed decision and instead found that that the teachers were not terminated for their organizing efforts, but rather for a letter they sent to the parents of children at the school complaining about the “political climate” and the school’s direction. The Board found that the letter was not protected activity. Because writing and disseminating the letter was not protected activity, the Board found that it was not unlawful for the school to have terminated the teachers.

The court of appeal reversed the Board’s decision. Citing to California Faculty Assn. v. Public Employment Relations Bd. (2008) 160 Cal.App.4th 609—another recent case where a PERB decision was overturned—the court found that the Board’s decision was inconsistent with its own precedent. Specifically, the court found that the prior decisions cited by the Board to support its decision were distinguishable. Further, the court found that the Board’s precedential decision in Mt. San Antonio Community College District (1982) PERB Decision No. 224 actually required the Board to make the opposite finding—that the letter by the teachers was protected activity. After discussing the cases cited by PERB and reviewing Mt. San Antonio, the court concluded:

“Because PERB’s analysis of this July 26 letter in this case cannot be reconciled with its own precedent in Mt. San Antonio, we conclude its determination that the dissemination of the letter does not qualify as protected conduct was clearly erroneous and thus that its order dismissing the complaint must be reversed.”


1. As for the substantive holding in this case regarding what is protected activity, I see the court’s point, but I don’t know that I agree that the facts are there to support it. It seems to me the court’s conclusion that the letter was part of the employees' efforts to organize fellow teachers is a stretch. Speaking as a management lawyer, I think this case is consistent with what I perceive to be a trend to attach protection to more and more types of employee speech. If this trend continues, it threatens to turn EERA (and the other acts under PERB’s jurisdiction) into a kind of general code of conduct for employers and employees, which I do not think was the intent of the Legislature.

2. The part of the decision that actually caught my attention was footnote 6, which states: “PERB’s Mt. San Antonio decision states that it “adopts” the ALJ’s procedural history and finding of fact as its own, and “affirms” the ALJ’s conclusions of law “insofar as they are consistent” with its own written decision. [citation] This problematic approach greatly complicates the task of deciphering PERB’s decision.”

I guess this was the court’s way of telling PERB to consider changing the way it structures its decisions. Although I’ve never thought about it before, I must admit the court has a point. The Board’s practice of issuing a decision that “adopts” portions of the ALJ decision, which is then attached, has been long-standing. (I must admit, I was guilty of following this approach to drafting decisions when I was at PERB.) The NLRB uses a similar style.

The problem the court identified is that someone reading such a decision must try to determine which holdings of the ALJ were actually adopted and which weren’t. Admittedly, it’s not always clear and it certainly involves more work to read such a decision than a “unified” one. Anecdotally, I have noticed that in recent years that Board has been more prone to issue unified decisions than ones with an attached ALJ decision. I suspect that practice will accelerate in the future.

3. While we're on the topic of PERB decisions, I’ll take this opportunity to plug one of my pet ideas. I think PERB should cease its practice of designating every one of its decisions precedential. PERB has the statutory authority to designate only certain decisions as precedential, but per its regulations, PERB currently designates all its decisions as such. Many other administrative agencies are more selective. For example, the State Personnel Board issues hundreds of decisions a year but only designates a few as precedential.

The fact is that many PERB decisions really have no precedential value to people reading them. The ultimate example would be a decision that dismisses an unfair practice charge because the parties have settled. Because there is no discussion of the settlement or anything else in such decisions, there really is nothing of “precedential” value to be cited in the future. So why designate such a decision as precedent?

More common, I think many unfair practice charge dismissals (as opposed to charges that get to an ALJ hearing) do not need to be designated precedential because they merely apply established law to common facts. Also, because dismissals are nothing more than short letters to the charging party, there is not always a full rendition of the facts or a full discussion of the legal issues. Without all the facts or a full discussion of the legal concepts, using such a decision as precedent is problematic.

Practically, designating only certain decisions as precedent may allow the Board to dispose of more cases faster since the Board would not have to spend quite as much time on non-precedential cases (at least that’s one purported reason why the courts publish some decisions and not others). It would also help practitioners by reducing the number of decisions to read. Making this change would only require the Board to modify its regulations since it already has the statutory authority to designate which of its decisions are precedential. So that’s my two cents.