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PERB Confirms Rules of Grievance Handling and Union’s Duty of Fair Representation; Union Must be Fair, But Is Not Required To Be Perfect
A decision from California’s Public Employment Relations Board clarifies the rules that apply when an employee asserts that his/her union breached the “duty of fair representation” when handling (or in this case not handling) the employee’s grievance. Here is the nub of the PERB ruling in Jacala v. SEIU:
“The exclusive representative’s duty to fairly represent bargaining unit members,” wrote PERB Hearing Officer Donn Ginoza, “extends to grievance handling. (Fremont Unified District Teachers Association, CTA/NEA (King) (1980) PERB Decision No. 125,) To establish a violation in the grievance handling context, the charging party must show that the union’s conduct was arbitrary, discriminatory, or in bad faith. (United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258). As PERB there explained:
“Whether a union has met its duty of fair representation in grievance processing depends not upon the merits of the grievance but rather upon the union’s conduct in processing or failing to process the grievance. Absent bad faith, discrimination, or arbitrary conduct, mere negligence or poor judgment in handling a grievance does not constitute a breach of the union’s duty.”
“A union may exercise its discretion to determine how far to pursue a grievance in the employee’s behalf as long as it does not arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory fashion. A union is also not required to process an employee’s grievance if the chances for success are minimal.”
“A union is accorded wide latitude in the representation of its members, and courts are reluctant to interfere with a union’s decisions in representing its members absent a showing of arbitrary exercise of the union’s power.”
“With respect to a refusal to process a grievance, the aggrieved unit member must show how the exclusive representative’s decision was ‘without rational basis or devoid of honest judgment.’ (International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M; see also California Faculty Association (Wunder) (2007) PERB Decision No. 1889-H [union not obligated to elevate a grievance when it has doubts as to the merits].)”
The PERB board affirmed Hearing Officer Ginoza's decision.
While the Jacobi case did not break new ground, it nevertheless confirmed long standing rules that accord substantial deference to internal union decisions about whether or not to proceed with a given case and how best to argue a case once the union decides to proceed.
A copy of the Jacala decision is attached for your convenience.
We regularly advise public school unions about labor issues, including the handling of grievances under collective bargaining agreements. If you have an issue in this area, feel free to give us a call.