Decision 1064S – California Union of Safety Employees (John)
S-CO-128-S
Decision Date: November 1, 1994
Decision Type: PERB Decision
Description: Union discriminated against employee for his exercise of protected activity.
Disposition: Violation found. Union ordered to reimburse employee for cost of representation.
Perc Vol: 19
Perc Index: 26004
Decision Headnotes
300.07000 – Minority Demands; Dissident Group; Intraunion Disputes
The charging party participated in protected activity when he attended the meetings of a rival employee organization; pp. 12-13.
300.08000 – Mistake as to Employee’s Activities
Where a prohibited motive is found, it is not controlling that the employer/union may have been mistaken in determining whether the individual was engaged in protected activity; p. 13, fn. 7.
501.03000 – Knowledge of Protected Activity
Where a probibited motive is found, it is not controlling that the employer/union may have been mistaken in determining whether the individual was engaged in protected activity; p. 13, fn. 7.
800.01000 – In General; Prima Facie Case
Although the Dills Act does not specifically provide for an employee organization's duty of fair representation, such a duty has been inferred from the fact that the Dills Act provides for exclusive representation; pp. 8-9. No duty owed unless exclusive representative posses the exclusive means by which an employee can obtain a particular remedy.
800.04000 – Scope of Duty; Internal Union Affairs
The union did not violate the duty of fair representation when it refused to represent the charging party before the State Personnel Board because it had no obligation to represent him in that forum; pp. 9-10. No duty owed unless exclusive representative posses the exclusive means by which an employee can obtain a particular remedy.
800.06000 – Other
In Lane v. I.U.O.E. Stationary Engineers (1989) 212 Cal.App.3d 164 [260 Cal.Rptr. 634], the court applied a standard of care "akin" to a duty of fair representation only after the union had affirmatively undertaken representation in a forum where representation by the union was not mandatory. Because the union in this case did not undertake the charging party's representation before the SPB, a Lane standard of case is inapplicable; pp. 10-11.
801.01000 – In General
The test for resolving allegations of discrimination set out in Novato applies to charges filed under the Dills Act; p. 11. The standard applied to cases involving employer misconduct is appropriate in cases involving employee organization discrimination; pp. 11-12. In order to establish unlawful discrimination under Novato, the charging party bears the burden of showing he engaged in protected activity; the respondent knew of his participation in protected activity; and the respondent took adverse action motivated by that activity; p. 12.
801.03000 – Employee Right to Participate; Improper Discipline or Refusal to Admit to Membership
The connection between the charging party's protected activity and the union's adverse action was clearly established by direct testimony that the union would not have terminated its representation of the charging party had he not been involved with a rival employee organization; p. 13.
806.01000 – In General
Certain actions taken by a union may be reasonable where they are motivated by self-preservation rather than retaliation; p. 14. There is a self-preservation exception to the rule which prohibits an employee organization from discriminating or retaliating against an employee for engaging in conduct protected by the Dills Act; p. 15.
806.02000 – Internal Union Procedures
PERB is authorized to inquire into the internal activities of an employee organization when it is alleged the organization has imposed reprisals on employees because of their protected activities; p. 14. Certain actions taken by a union may be reasonable where they are motivated by self-preservation rather than retaliation; p. 14. There is a self-preservation exception to the rule which prohibits an employee organization from discriminating or retaliating against an employee for engaging in conduct protected by the Dills Act; p. 15.
1107.14000 – Informational Briefs
The Board granted a request to file informational briefs by interested parties; p. 2.