Office & Professional Employees International Union, Local 29, AFL-CIO & CLC (Fowles) (2012) PERB Decision No. 2236-M (Issued on 2/07/12)
Most of the decisions issued by PERB involve appeals from dismissals as opposed to appeals from ALJ decisions. A significant number (almost 50%) of the appeals from dismissals involve unfair practice charges against unions alleging violation of the duty of fair representation (DFR). The vast majority of DFR charges are dismissed by PERB. This case is one of those rare situations where PERB reverses a DFR dismissal.
Here, the employee alleged that the union failed to inform her that she had the option of paying agency fees in lieu of becoming a member of the union. The employee alleged that the initial materials from the union contained a membership application but never mentioned the possibility of paying agency fees in lieu of becoming a member. Later, when the union demanded payment of dues for the prior months, the union included a letter stating:
The Collective Bargaining Agreement between your Employer and Local 29 requires that you become a member in good standing, and that you maintain such status as a condition of employment.
PERB noted that a union shop requirement (i.e. requiring an employee to join the union as a condition of employment) is expressly prohibited by the MMBA. Given these allegations, PERB held that the employee stated a prima facie case sufficient for the issuance of a complaint. Citing to NLRB precedent, the Board held:
[B]efore a union may seek to obligate newly hired nonmember employees to pay dues and fees under a union security clause, it must inform them of their right to be or remain nonmembers, that nonmembers have the right to object to paying for union activities unrelated to the unions duties as the bargaining representative and to obtain a reduction in dues and fees for such activities, and that the notice must be reasonably calculated to apprise nonmembers of their rights.