Decision 1918S – Union of American Physicians and Dentists (Menaster)

SF-CO-50-S

Decision Date: August 9, 2007

Decision Type: PERB Decision

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Perc Vol: 31
Perc Index: 135

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

PERB's jurisdiction is limited to the determination of unfair labor practice claims arising under the Dills Act and a few other public sector labor statutes. PERB's jurisdiction does not include, inter alia, enforcement of the Americans with Disabilities Act, the U.S. Constitution, the Whistleblower Protection Reporting Act, laws governing improper government activity, laws governing sexual harassment, laws governing defamation, or laws governing the unemployment insurance process. Thus, allegations regarding statutes other than the Dills Act are dismissed as outside of PERB's jurisdiction.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

Charging party’s charge under Dills Act section 3516 is dismissed where it is unclear under what theory this provision would have applicability to the circumstances presented in the charge.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.03000 – Standing

A Union is not responsible for the actions of an employer. As such, the charge against the union of misconduct by the Department are dismissed.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

Charging party’s charge under Dills Act section 3516 is dismissed where it is unclear under what theory this provision would have applicability to the circumstances presented in the charge.

805.00000 – UNION UNFAIR PRACTICES; CAUSING EMPLOYER TO VIOLATE ACT
805.01000 – In General

Dills Act § 3519.5 provides that it shall be unlawful for an employee organization to cause or attempt to cause the state to violate Dills Act § 3519. In order to state a prima facie violation, the charging party must allege facts showing how and in what manner the employee organization caused or attempted to cause the State to commit an unfair practice against the employee. Here, the charge does not demonstrate that the State unlawfully retaliated against an employee by defending its position that he was not entitled to receive unemployment insurance benefits because he had resigned. As such, the charge does not demonstrate that the employee’s union steward’s act of submitting a declaration to the Unemployment Appeals Board caused the State to commit an unfair practice against the employee.

804.00000 – UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT
804.02000 – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

An employee’s allegation that his union violated its duty to negotiate in good faith is dismissed, as it is a duty owed to the Department, not to unit members.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.08000 – Other

The charge does not provide facts indicating that an employee’s Union had an obligation to help him get reinstated. As such, the charge does not demonstrate that the Union's inaction can be considered an adverse action, nor does the charge provide facts indicating that its failure to respond to the Department's decision to not reinstate him was retaliatory in nature.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

The charge does not provide facts indicating that an employee’s Union had an obligation to help him get reinstated. As such, the charge does not demonstrate that the Union's inaction can be considered an adverse action, nor does the charge provide facts indicating that its failure to respond to the Department's decision to not reinstate him was retaliatory in nature.

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

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.

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

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.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
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.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

As the employee filed the charge on July 19, 2006, the statute of limitations dates back to include conduct occurring on or after January 19, 2006. As such, allegations of conduct that occurred before January 19, 2006, are untimely and must be dismissed.