PERB issued a notable decision in United Teachers of Los Angeles (Rains, et al.) (2016), PERB Decision No. 2475-E, on February 29, 2016. The 112-page decision dealt with a variety of procedural issues, which we will not address here.

We address the part of the decision regarding whether the duty of fair representation (DFR) was violated by the union when it eliminated seniority as a factor in how certain substitutes were given assignments and who was subject to lay off.

Over 100 members filed DFR charges against the union in response to the adoption of a sideletter which they claimed treated senior substitutes less favorably than recently laid-off teachers and was negotiated without notice or consultation with bargaining unit members.

PERB ruled that the substantive terms of the sideletter were not arbitrary, discriminatory or in bad faith, and therefore did not violate the DFR. The agreement affected senior teachers adversely, but helped with teacher turnover in the “hardest-to-staff” schools.

However, the Board held that a lack of notice to the members of the adoption of the sideletter was a violation of the DFR and that the union must provide some consideration of the views of various groups of employees and some access for communication of those views, in order to avoid violating the DFR. In this case, the sideletter was negotiated in secret, entered into without a ratification by the membership, and the members were not notified of its existence until almost two months after it was executed by the parties.

A dissenting opinion by Board Member Winslow noted that the rational basis for maintaining confidentiality of the bargaining process, which is the fluidity of the give and take between labor and management, could be burdened by this decision and might not only impact full MOU negotiations, but also mid-term changes embodied in sideletters, reopeners, and possibly settlement agreements.

We believe that this decision will not interfere with or prohibit the confidentiality of negotiations for full MOUs, since these negotiations normally entail input from the members at the outset (survey for a demand list), and ratification of the MOU after a total tentative agreement is achieved (with the attendant explanation of the agreement). That contrasts with this case where the members did not know what was being negotiated, did not get any information, and were not asked to ratify it. This decision may impact some sideletters that are traditionally not ratified by the members, and more so settlement agreements, like PERB grievance or arbitration settlements, which are rarely ratified or publicized to members until execution. Of course, major sideletters impacting wages, hours, and terms and conditions of employment should be ratified to avoid this issue, or at the least, input should be obtained from those directly affected by those issues.

If you have any questions about this blog, please contact Gary Messing at 916.446.5297 or gary@majlabor.com.