County of Butte (2016) PERB Dec. No. 2492-M (Issued on 6/30/16)
I thought this case was interesting because of the remedy ordered by PERB. Here, there was an existing bargaining unit represented by the Butte County Employees Association (BCEA). Another union, United Public Employees of California (UPEC), filed a petition to modify the unit by transferring certain classifications into a new unit. The County took the position that BCEA had to qualify to be on the ballot; and when BCEA did not “qualify,” the County withdrew recognition and withheld dues from BCEA. This unfair practice charge followed.
The Board affirmed the ALJ’s determination that the County’s local rules were unreasonable to the extent they required BCEA to “qualify” for the ballot when it was already the exclusive representative. The ALJ also ordered the County to pay BCEA the dues that BCEA would have been entitled to if recognition had not been withdrawn. The payment of dues was the only issue before the Board.
In its exceptions, the County argued that the employees should be the ones ordered to pay dues to BCEA. The Board rejected this argument. The Board held that, “The appropriate remedy for an employer’s unlawful failure to remit dues is to order that it, not employees, make the injured party, in this case, the employee organization, whole.” The Board supported its ruling with the following rationale:
We have ordered similar remedies in the past, making clear that it was the employer’s responsibility to make the union whole for unremitted dues and fees, especially when employees were denied representation as a result of the employer’s wrongful act. (Regents of the University of California, supra, PERB Decision No. 2398-H; City of Sacramento (2013) PERB Decision No. 2351-M. See also Hospitality Care Center (1994) 314 NLRB 893, 895-896.)
In reaching its decision, the Board distinguished two prior decisions cited by the County: Fresno Unified School District (1982) PERB Decision No. 208 and San Mateo Community College District (1985) PERB Decision No. 543. In these cases, the Board ordered that any dues owed be taken from the employees. The Board, however, held that these two cases were distinguishable because the employer did not withdraw recognition in those cases but did in this one.
- I strongly disagree with the Board’s remedy in this case. I believe that if dues are owed they should be paid by the employees. I understand the union’s argument that it puts them in a difficult position when their bargaining unit members get hit with additional deductions after the union prevails. However, the union can simply direct the employees to read the Board’s order which will explain what happened and why they have to pay the dues.
- In my humble opinion, the two cases cited by the County—Fresno Unified School District and San Mateo Community College District—are directly on point. In both those cases the Board ordered that any dues owed be paid by the employees. I thought the Board’s attempt to distinguish these cases was extremely weak. It’s true that the employer did not “withdraw recognition” in these prior cases. But so what? There was also no withdrawal of recognition in the two cases cited by the Board in support of its remedy. It just seems to be a distinction without a difference.
- Further, the two cases cited by the Board in support of its remedy are really of no help. The City of Sacramento decision ordered the payment of dues by the employer with no discussion at all. In the Regents case, the Board merely cited to Hospitality Care Center (1994) 314 NLRB 893, 895-896 to support its holding that, “Contrary to UC’s argument, it is not appropriate to penalize employees for the employer’s unfair practice by requiring that they remit back dues.” Beyond this statement and the citation to Hospitality Care Center there was no analysis at all.
- When you actually read Hospitality Care Center, it is apparent that this case provides little to no support for the Board’s decision. In Hospitality Care Center, the collective bargaining agreement required the employer to deduct dues from employees and remit them promptly to the union. The employer withheld dues from the union for many months. The Board found an unfair labor practice and ordered the employer to pay the dues to the union with interest. But here’s the rub, when you carefully read the decision it is clear to me that the employer had deducted the dues from the employees, but for whatever reason had not remitted them to the union. Obviously, in such a situation it’s appropriate for the employer to pay the dues to the union. But this is a far cry from ordering the employer to pay the dues on behalf of employees.