Decision 1064S – California Union of Safety Employees (John)

S-CO-128-S

Decision Date: November 1, 1994

Decision Type: PERB Decision

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Perc Vol: 19
Perc Index: 26004

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.12000 – Lack of 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.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
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.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
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.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
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.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
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.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
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.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
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.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

The Board granted a request to file informational briefs by interested parties; p. 2.