Decision 1383E – Oakland Education Association (McKeel)
Decision Date: May 11, 2000
Decision Type: PERB Decision
Description: Employee appealed Board agent’s dismissal of unfair practice charge alleging that Association had felled to represent employee in his appeal of a dismissal action.
Disposition: Dismissed. Association was under no obligation to represent employee following his dismissal for use of a controlled substance; such a proceeding was not covered under the bargaining relationship.
Perc Vol: 24
Perc Index: 31095
800.04000 – Scope of Duty; Internal Union Affairs
The Association was under no obligation to represent Charging Party following his dismissal for use of a controlled substance, in that such a proceeding was not covered under the bargaining relationship. The duty of fair representation upon which Charging Party relies attaches to proceedings encompassed within the EERA; it does not extend to proceedings which originated under the Education Code.
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. PERB has never adopted the Lane theory as a basis for an unfair practice charge, but rather has viewed such a theory as implicating a cause of action in state court rather than a matter within its jurisdiction. This follows logically from the notion that such a breach of duty does not arise out of the union's status as an exclusive representative. Charging Party asserted that, under Lane, where the exclusive representative has voluntarily undertaken to represent members in extra-contractual proceedings, it is obligated to extend the same privilege to non-members. Here the facts of Lane are inapposite. Because the Association in this case withdrew from representation once it was discovered that Charging Party was not eligible for such representation, and where Charging Party was able to obtain private counsel to represent him and did not show that he had been damaged by the actions of the Association, the charge was dismissed.