This article appears in the June issue of our monthly newsletter, Public Safety Labor News.

Melanie Stallings Williams and Demosthenes Andrew Halcoussis are professors at California State University, Northridge, and are members of the faculty bargaining unit represented by the California Faculty Association. The collective bargaining agreement has a “fair share” clause allowing individuals to be non-members of the Association if they pay to the Association a “fair share” assessment, also known as an “agency fee.” The agency fee amount is equal to the full amount of dues paid by union members, reduced by an amount representing the percentage of fees the Association spends on political activities. Williams and Halcoussis are fair share members of the Association.

In June 2009, facing budget cuts, the State approached the Association to discuss implementing furloughs in order to avoid layoffs. The Association sought feedback from all bargaining unit members regarding a tentative proposal that faculty employees take two unpaid furlough days per month. On its main website, the Association solicited input regarding the proposed furlough plan from all bargaining unit members. The Association explained that employees must be union members to vote on the proposal and advised employees that they could sign up to become union members. The Association also invited all faculty to attend a two-hour meeting on June 25. to discuss furloughs and layoffs. The Association also notified faculty members that issue updates could be followed and they could post messages about the proposed program on Twitter.com.

Only union members were permitted to vote on the furlough proposal. Williams wrote to the Association asking to be allowed to vote despite not being a member, referring to the Association’s duty of fair representation. The Association denied Williams’ request, but invited her to provide her views on the furlough issue and stating Association would carefully consider any views she provided. Following the membership vote, the State and the Association exchanged further proposals on the matter and reached an agreement on July 28. The furlough plan agreed on was slightly more favorable to employees than the furlough plan voted upon and approved by union members.

Williams and Halcoussis filed an unfair labor practice charge against the Association, alleging that the Association violated its duty of fair representation by not allowing fair share members to vote on the furlough proposal. The California Court of Appeals recently upheld a ruling from California’s Public Employment Relations Board dismissing the charge.

The Court noted that “almost 30 years ago, in discussing a union’s duty of fair representation, PERB reasoned held that ‘as to questions which do not involve the employer or which are strictly internal union matters, only those activities that have a substantial impact on the relationship of unit members to their employer are subject to the duty of fair representation.’ In concluding that a union could exclude nonmember employees from voting on proposals for negotiations and contract ratification, PERB reasoned that although the duty of fair representation implied some consideration of the views of various groups of employees and some access for communicating those views, the denial of formal structure to nonmembers does not have a substantial impact on the relationship of unit members to their employer.” The Court concluded that PERB’s rationale was not clearly erroneous.

Williams and Halcoussis argued that the Association “gave up its representative role when it left the issue of furloughs to be decided by vote, thus abandoning it negotiating function as to whether or not to agree to furloughs such that the vote was not an internal union matter but rather related to the terms and conditions of employment.” The Court disagreed, finding that “though furloughs are a term and condition of employment, some federal authority permits unions to limit vote participation to union members as long as the union considers the views of nonmembers. The Association had procedures in place to gather the views of nonmembers. On its main website, the Association solicited input regarding the proposed furlough plan from all bargaining unit members. On its web page specific to the Northridge campus, the Association invited all faculty to attend a meeting to discuss furloughs and layoffs, and the Association notified faculty members that they could post messages about the proposed program on Twitter.com. In response to Williams’ request to be allowed to vote, the Association stated it would consider any views she provided. Under the circumstances of this case, which included soliciting the views of nonmembers and continuing negotiations after the vote, the conclusion that the Association did not have to allow nonmembers to vote on the proposed furlough program was not a clearly erroneous construction of the duty of fair representation.

Williams v. PERB, No. B233494 (Cal. App. 2012).