PERB explains that once a Union properly petitions for an “agency fee election,” Employer may not refuse to cooperate in holding the election
In Orange County Water District (PERB Decision No. 2454-M), PERB held that an Employer may not refuse to participate in a properly petitioned-for agency fee election.
An “agency fee” clause found in a collective bargaining agreement requires an employee, as a condition of employment, to join the Union as a member, or instead pay the Union a service fee. In this case, the Union’s contract with the District did not have an agency fee clause, so the Union requested an agency fee election.
Under section 3502.5(b) of the Meyers-Milias-Brown Act (“MMBA”), even if a Union and Employer are unable to agree on an agency fee clause, the Union may adopt an agency fee clause by election. The Union need not wait until the contract expires. It can propose an agency fee clause mid-contract and, if the Employer does not agree, the Union can proceed by election. First, the Union must secure “a signed petition of 30 percent of the employees in the applicable bargaining unit requesting an agency shop agreement and an election to implement an agency fee arrangement.” After filing the petition, an election is held and the agency fee must receive “the approval of a majority of employees who cast ballots” in order to take effect.
In this case, the District and the Union failed to reach agreement on an agency fee clause, so the Union filed a petition for election. PERB Regulation 32999(b) provides that a union and employer must then enter a “Consent Election Agreement” to determine the time, place, and manner of the election. Here, the District alleged that the agency fee clause proposed by the Union would be illegal and so refused to agree on a time, place, and manner to hold the election. PERB held that once a union properly petitions for an agency fee election, an employer may not refuse to cooperate in holding the election. Such a refusal violates the MMBA. PERB also found that the District’s claim that the agency fee clause proposed would be illegal was not supported by applicable law.
For more information regarding public sector law and agency shop elections, contact your labor law counsel.
Author: Rob Szykowny
