Agency fee.

A strong union is important for public librarians. We are on the cutting edge of an amazing information revolution. Our job description has changed dramatically over the last 15 years. We must now be fluent with new tools of technology in addition to the traditional fluency in literature being accessed by that technology.

We are caught between extremely rapid advances in the manifestation of information, on the one hand, and, on the other hand, library administrators who lag behind even the general public in knowledge of technology – but who nevertheless make decisions affecting our day-to-day workplace situations.

Indeed, public libraries now see the need to redefine their very identity and mission. A strong union is not only important in helping librarians survive these difficult times. A strong union is also important for the general public by charting the way for the future of the public library in our society. What is more valuable in this regard than meaningful input by our front-line rank-and-file librarians?

Unfortunately, our union has not been up to this challenge. Instead of a strong union we have a union dominated by management – and unable to exert any real change in regard to systemwide decisions.

The Librarians Guild is the labor union representing librarians at the Los Angeles Public Library. The Guild is composed of both rank and file librarians and their supervisors. Far more significant is that LAPL supervisors sit on the Guild’s Executive Board – making union decisions for rank-and-file employees. If you’re thinking – “isn’t that a “conflict of interest” or doesn’t that constitute management domination of a union – you’re thinking the same as I did for years.

Even in cases where supervisors could be members of a rank-and-file union they cannot hold office in the union. Where a member is promoted to supervisor and wants to keep his “. . . union membership as a form of job security or as a means of retaining union benefits, such persons may not be candidates for or hold office.” (29 CFR 452.47).

Back in 1991 I filed a grievance regarding a workplace issue – not realizing that my supervisor (against whom it was filed) happened to be Vice-President of the union. I saw then – first hand – how the supervisors on the Executive Board stonewalled my grievance. And I realized then how the rights of individual rank-and-file employees cannot be protected in a situation where the people against whom a grievance is filed are the very same people who decide the fate of the grievance!

I quit the union in protest over this issue. And I resisted the imposition of agency fees as a non-member because of this.

What is “agency fee”? The union must represent every employee within the bargaining unit, whether or not the employee is a member of the union. Agency fees are intended to compensate for this work (so that the employee must pay his “fair share” and doesn’t receive a “free ride” – to use the union’s language). They are calculated by taking the union’s costs of representation — contract negotiations and other forms of representation — and dividing those among all employees. They are generally less than member dues, and employees are generally required to either join the union and pay dues, or pay the lower “agency fee.”

Although agency fee may seem reasonable for most unions it is not reasonable in the case of the Librarians Guild.
See my reasoning taken from the body of my challenge to the fee:
Date: April 30, 2009

Re: Challenges **************
re Notice to All Non-Member Employees Paying Agency Fees to Council 36, Deadline May 8, 2009

This is my response to “Notice to All Non-Member Employees Paying Agency Fees to Council 36, Deadline May 8, 2009” (“Notice”) which I recently received from Council 36 of the American Federation of State, County and Municipal Employees (AFSCME).

The Notice sets forth a calculation by the union of my purported “fair share fee” (i.e., agency fee) as a non-member of Council 36 – described (at p. 5) as follows: ” . . . 67.17% of the fair share fees deducted from nonmembers’ payroll” are “fully chargeable”.

The Notice includes procedures for objecting to or challenging the payment of – or to the calculation of – said fee and it states (at p. 7) that “All challengers will automatically be treated as objectors . . . “.

Challenges:

1) As a rank-and-file employee, I am not responsible for expenses of negotiating the Supervisory Librarians’ Contract – nor for expenses of adjusting supervisory librarians’ grievances.

Membership of the Librarians Guild, Local 2626 (“Guild”) consists of both rank-and-file employees and their supervisors. The Notice fails to consider that the Guild negotiates on behalf of TWO different bargaining units. It negotiates BOTH of the following: a) a Rank & File Librarians’ Contract, and, b) a Supervisory Librarians’ Contract. Likewise, the Guild adjusts grievances both for supervisors and for those whom they supervise.

I am a rank and file librarian with the Los Angeles Public Library (“LAPL”). Supervisory librarians are part of a different bargaining unit.

Chicago Teachers Union v. Hudson (475 US 292, 1986) authorizes collection of agency fees “. . . to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes”. In this regard, it contemplates the collective bargaining, etc, to be only for the non-member’s particular bargaining unit – not for other bargaining units.

In other words, whatever could be my share of expenses in negotiating the contract for my bargaining unit (in order not to have a “free ride”), I should not be responsible for the expenses of negotiating the supervisory librarians contract, etc. Therefore whatever – if anything – could be determined to be a total fair share percentage of bargaining, etc, expenses needs to be divided by two (AT THE VERY LEAST – see below).

2) Supervisors negotiating for – and supervisors adjusting grievances of – those whom they supervise is a conflict of interest which I should not be required to support.

Year after year, the Executive Board of the Guild is packed with supervisors. Currently the President of the Guild, the Secretary-Treasurer of the Guild and the Guild’s publication editor (an at-large Board Member) are all branch managers. The Guild’s Recording Secretary is a higher level manager. And two of the Guild’s trustees are at nearly the highest levels of management.

This constitutes a conflict of interest because the Executive Board negotiates rank-and-file contracts and adjusts rank-and-file grievances.

“It takes no vivid imagination to see that, due to its closeness to management, the supervisory personnel might (and in many instances do) possess divided loyalty, rendering them ill-equipped to conduct labor negotiations and settle sensitive labor disputes from the standpoint of both the employer and the union. Recognizing the inevitable conflict of interest deriving from divided loyalty, the authorities and legal scholars go even further than the statute and either question the extension of representation rights to supervisory and managerial employees, or urge legislative amendment of the MMB Act to exclude supervisors from coverage by negotiated agreements.” (United Clerical Employees, Local 2700 v. County of Contra Costa (76 CalApp 3d at p. 128).

The Guild negotiates two contracts for two different units whose interests directly conflict with each other – one for supervisors and one for those whom they supervise. Therefore, the Guild (which acts as exclusive negotiating representative for members of the bargaining units – just as a lawyer acts as exclusive representative for his clients) should receive ZERO compensation for negotiating where there is a conflict of interest – under the same principle that a lawyer is subject to denial or disgorgement of legal fees when involved in a conflict of interest.

Furthermore, I should not be forced to support an unfair labor practice (for supervisors to handle rank-and-file grievances).

Supervisory employees are on the Executive Board of the Guild which adjusts rank-and-file grievances. However, supervisory employees are precluded from voting on or otherwise handling, a grievance of a rank-and-file employee.

The Meyers-Milias-Brown Act (CAL.GOV.CODE §3500 et seq) is applicable to local government employees. It is silent on this issue. However, California state employee supervisors are prohibited from handling a rank-and-file grievance under CAL.GOV.CODE §3529(b). The case, Public Employees of Riverside County, Inc. v. County of Riverside(1977) 75 Cal.App.3d 882, holds that the Court should look to the state Employer-Employee Relations Act in analyzing the Meyers-Milias-Brown Act. Therefore, CAL.GOV.CODE §3529(b) also applies to local government employees

3) So long as management employees are members of the Guild, I should not be required to support an organization which is in violation of the City Employee Relations Ordinance.

Employee Relations Ordinance of the City of Los Angeles ( “ERO”) Sec. 4.822(a)(7) states the following:
“(7) Management or confidential employees shall not be included in the same unit with other employees.”.
Library Branch Managers (Senior Librarians) and even higher level Regional Managers (Principal Librarians) are members of the Guild.

Branch Managers fall within the definition of “Management Employee” which is defined by ERO Sec.4.801 as follows:

“An employee having significant responsibilities for formulating or administering City or departmental policies and programs”.

LAPL Branch Managers do, in fact, have significant responsibilites for administering Library policies and programs.

Note that the law looks at the facts of what employees do – not to their job title in this regard:

” . . . the determination of “managerial” or “supervisory” is a matter of degree and depends on the authority actually exercised. (NLRB v. Bell Aerospace Co. (1974) 416 U.S. 267, . . . Whether an employee is a supervisor who possesses genuine management prerogatives and exercises independence of judgment is essentially a question of fact. (N.L.R.B. v. Bama Company (5th Cir. 1965) 353 F.2d 320, 322. . . The factual determination, however, does not depend solely on the job title, but rather on all the facts of the case.” (United Clerical Employees v. County of Contra Costa, 76 Cal. App. 3d 119).

LAPL Branch Managers develop and administer the policies of their branch and they administer the policies of the Library Department. They have descretion to formulate programs and to determine what type of programs – and what specific programs – their branches offer to the public. The Branch Manager is also responsible for the nature and content of the library’s collection (what will be available to the public). He/she is responsible for staff discipline, determines staff schedules, and regulates the flow of staff interaction with the public at his/her branch.

National Labor Relations Board has noted, “managerial status is not conferred upon rank and file workers or upon those who perform routinely, but rather it is reserved for those in executive type positions, those who are closely aligned with management as true representatives of management.” Bell Aerospace (1975) 219 NLRB 384.

LAPL Branch Managers have the day-to-day responsibilities of managing their libraries. They are, indeed, in an executive type position – true representatives of management to the public and also to their own staff.

Therefore, so long as Branch Managers are members of the Guild, the Guild is in violation of ERO 4.822(a)(7) and I should not be required to support an organization which is operating contrary to the ordinance.

4) The Guild is both a “professional organization” as well as a labor union. Therefore, the Notice’s data is based on an unfair comparison of different types of organizations.

The Guild purports to be more than a labor union. It purports to be a professional organization. The Guild web site (http://www.librariansguild.org/) states the following:

“The Librarians’ Guild represents the professional librarians of the Los Angeles Public Library. It is Local 2626 of AFSCME (American Federation of State, County & Municipal Employees). It is a member of AFSCME District Council 36. The Librarians’ Guild is both a labor union and an organization representing the professional concerns of librarians.” (emphasis added).

One of the objectives of the Guild as stated in Article III of its constitution is:

to uphold the highest standards of professional librarianship” (emphasis added).

Being a professional organization – in addition to its role as a labor union – it stands to reason that the time and resources spent by the Guild in negotiating labor contracts is clearly a smaller percentage of its total spent time and resources than it is for the vast majority of the AFSCME locals which are labor unions exclusively. However, the data upon which the “fair share fee” percentage is calculated is taken from a pool of locals which is most likely comprised of locals which are exclusively labor unions.

Furthermore, to the extent the Guild as a professional organization is a political or ideologically based organization I should not be required to make any contribution at all – based on First Amendment to the US Constitution freedom of association protections. Chicago Teachers Union is based on Abood v. Detroit Board of Education (431 US 209, 1977) and, in this regard, Abood states the following: “. . . .contributing to an organization for the purpose of spreading a political message is protected by the First Amendment.”.

5) Most of the “categories” listed in the Notice are, in fact, not chargeable

Abood permits an agency fee ONLY “. . . to finance expenditures by the Union for collective-bargaining, contract-administration, and grievance-adjustment purposes” – not for other, unrelated, activities.

All of the categories listed in the Notice (e.g., “5. The public advertising of positions on the negotiation, . . .”, “27. Social and recreational activities”, etc.) are for other, unrelated activities, except for the following: “1”, “2”, “3”, “4”, “7”, “9”, “12”, “14”, and “15”.

6) The information supplied by the Notice to support its calculations is insufficient to gauge the fee’s propriety.

The Notice does not provide sufficient information to gauge the fee’s propriety.
“In Hudson, a public-sector case in which limitations on the use of agency fees were prompted directly by the First Amendment, the Court held that unions and employers must provide three procedural protections for nonunion workers who object to the agency-fee calculation: sufficient information to gauge the fee’s propriety, 475 U. S., at 306;. . .” (Miller at para 19 – emphasis added).
The data used to calculate the fee is based on other AFSCME Locals, an unknown number of which are not professional organizations and are not mixed supervisors/rank-and-file.

7) As per Miller, I reserve the right to amend, or to add to, the grounds stated in this Challenge.

“. . . plaintiffs who challenge an agency-fee calculation are not required to state any grounds whatsoever for their challenge.” (Airline Pilots Association v. Miller, 523 U.S. 866 (1998) at para 52). “We have held that “the nonunion employee has the burden of raising an objection, but that the union retains the burden of proof.” Hudson, 475 U. S., at 306. And when pursuing the union’s internal remedies, an objector may preserve the right to subsequent judicial relief without “indicat[ing] to the Union the specific expenditures to which he objects.” Abood, 431 U. S., at 241 . . .” (Miller at para 53).

Furthermore, I do not agree to the arbitration procedure described in the Notice (see Miller at para 18).

This entry was posted in LAPL Related, Law Related. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

*