Williams v. PERB (Court of Appeal Case No. B233494) (Issued on 3/13/12)
Members of the bargaining unit represented by the California Faculty Association at California State University, Northridge (CSUN) brought an unfair practice charge alleging that their state and federal rights were violated. Specifically, charging parties—who are fair share fee payers—alleged that CFA improperly denied them the right to vote on an furlough proposal. Instead, only members of the union were allowed to vote. PERB dismissed the charge on the ground that PERB has previously held that unions can exclude non-members from voting so long as the union provides nonmembers an opportunity to communicate their views. Charging parties then sought review of PERB’s decision not to issue a complaint under the limited standards enunciated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 271 (Fire Fighters).)
In Fire Fighters, the Supreme Court held that PERB’s decision not to issue a complaint is only reviewable in three narrow situations: 1) to determine whether PERB?s decision violates a constitutional right, 2) exceeds a specific grant of authority, or 3) is based on an erroneous statutory construction. The Supreme Court stressed in Fire Fighters that “it remains true that a refusal by PERB to issue a complaint under the MMBA is not subject to judicial review for ordinary error, including insufficiency of the evidence to support the agency’s factual findings and misapplication of the law to the facts, or for abuse of discretion.”
This case is the first published decision applying the criteria set forth in Fire Fighters. At issue in this case were the first and third situations. The court first addressed the argument that charging parties’ constitutional rights were violated because they must join the union in order to vote. The court found no authority that there is a constitutional right to participate in a union vote and declined to find that such right exists. Next, the court addressed whether PERB’s decision was clearly erroneous. After analyzing PERB and NLRB precedent, the Court concluded that under the circumstances here—where the union solicited the views of nonmembers—PERB’s determination that there was no unfair practice was not clearly erroneous.
- This was a fairly weak case to begin with so it may not be the best test of the Fire Fighters decision. However, the way the court approached the case is consistent with the Supreme Court’s warning that a decision by PERB not to issue a complaint is not subject to judicial review for ordinary error. In other words, this case reinforces the notion that the burden is extremely high on any party wishing to challenge a decision by PERB not to issue a complaint.