Decision 1747M – International Union of Operating Engineers Local 39 (Kempe)

SF-CO-54-M

Decision Date: February 4, 2005

Decision Type: PERB Decision

Description:  Employee alleged breach of duty of fair representation where union made decision to conduct arbitration hearing contrary to wishes of employee, by failing to meet with employee before the hearing and by failing to present certain evidence.

Disposition:  Board considered the totality of union conduct and dismissed charge after determination that although errors were made, the union’s conduct did not constitute negligence that foreclosed the arbitration of the grievance.

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Perc Vol: 29
Perc Index: 71

Decision Headnotes

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.02000 – Grievance Handling/Contract Administration

A union's "mere negligence" may breach the duty of fair representation in cases in which the individual interest at stake is strong and the union's failure to perform a ministerial act completely extinguishes the employee's right to pursue his claim; p. 7. The Board has found that various actions taken by a union, considered separately, would not violate the duty of fair representation. However, when considered in their totality, the actions represent a pattern of conduct which demonstrate an arbitrary failure to fairly represent the bargaining unit employee; p. 7. A union's decision to conduct an arbitration hearing contrary to the wishes of an employee; by failing to meet with employee before the hearing; and by failing to present certain evidence, does not violate the duty of fair representation; p. 9.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.05000 – Mode or Adequacy of Representation/Advocacy

A union's "mere negligence" may breach the duty of fair representation in cases in which the individual interest at stake is strong and the union's failure to perform a ministerial act completely extinguishes the employee's right to pursue his claim; p. 7. The Board has found that various actions taken by a union, considered separately, would not violate the duty of fair representation. However, when considered in their totality, the actions represent a pattern of conduct which demonstrate an arbitrary failure to fairly represent the bargaining unit employee; p. 7. A union's decision to conduct an arbitration hearing contrary to the wishes of an employee; by failing to meet with employee before the hearing; and by failing to present certain evidence, does not violate the duty of fair representation; p. 9.