UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION – In General; Prima Facie Case
Single Topic for Decision 1918S
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800.01000 – In General; Prima Facie Case
Union stewards made a rational determination that the Department's concerns regarding an employee’s productivity were a peripheral issue only brought to the forefront by the Department's other concerns with his behavior. The charge does not demonstrate that the Union's failure to file a grievance and advice to concentrate on correcting those issues which it believed were more likely to affect the employee's probationary report were devoid of honest judgment. An employee’s allegation that the Union violated its duty of fair representation by not filing a grievance against the Department when it denied him union representation during an investigatory meeting is dismissed. The charge does not demonstrate that the collective bargaining agreement includes a provision regarding the right to union representation in investigatory meetings and therefore does not demonstrate that filing a grievance regarding this issue was even possible. A Department received recurrent complaints about an employee and the charge reflects the Department provided the employee with consistent justifications for its actions including specific examples of the types of behaviors that were at issue. Therefore, the charge does not demonstrate that a union steward’s advice to resign rather than face termination was without a rational basis or devoid of honest judgment. An employee’s allegations that his union failed to represent him in his hearing before the EDD is dismissed as the duty of fair representation does not attach to an exclusive representative in extra-contractual proceedings before agencies such as the Employment Development Department. An employee’s allegations that his union failed to help him obtain a reasonable accommodation under the ADA is dismissed as the union does not owe a duty of fair representation to him in a forum over which the union does not exclusively control the means to a particular remedy. The charge alleges the union failed to help an employee when the Department ignored his request to be rehired. As the employee chose to resign, it does not appear that the union's duty of fair representation extended to include his post-resignation requests for representation. Even if the duty extended to include this post-resignation request, the application process for state employment is extra-contractual in nature. As such, the allegation is dismissed.