Decision 2028E – California School Employees Association and its Chapter 379 (Dunn)

To establish a breach of the duty of fair representation, the charging party must show that the recognized employee organization engaged in conduct that was arbitrary, discriminatory or in bad faith, or that the employee organization’s negligence extinguished the employee’s right to pursue his or her grievance. Union did not breach its duty of fair representation by withdrawing an employee’s grievance one week before a scheduled arbitration hearing because the decision to withdraw was based on newly discovered documents that indicated the grievance lacked merit and the union’s interpretation of those documents was not unreasonable under the circumstances. While the union’s late discovery of the documents may have been negligent, the union’s conduct did not breach the duty of fair representation because under the collective bargaining agreement the employee could arbitrate his grievance without the union’s participation.

To establish a breach of the duty of fair representation, the charging party must show that the recognized employee organization engaged in conduct that was arbitrary, discriminatory or in bad faith, or that the employee organization’s negligence extinguished the employee’s right to pursue his or her grievance. Union did not breach its duty of fair representation by withdrawing an employee’s grievance one week before a scheduled arbitration hearing because the decision to withdraw was based on newly discovered documents that indicated the grievance lacked merit and the union’s interpretation of those documents was not unreasonable under the circumstances. While the union’s late discovery of the documents may have been negligent, the union’s conduct did not breach the duty of fair representation because under the collective bargaining agreement the employee could arbitrate his grievance without the union’s participation.

Under PERB Regulation 32635(b), the Board may not consider new allegations or new supporting evidence raised for the first time on appeal unless the charging party establishes good cause. No good cause to consider new allegations raised on appeal when the information underlying the allegations could have been obtained through reasonable diligence prior to the Board agent’s dismissal of the charge.

An addendum to an appeal filed after the expiration of the 20-day appeal period is untimely unless good cause is shown for the late filing pursuant to PERB Regulation 32136. No good cause to excuse late filing because nothing in addendum or circumstances surrounding its filing indicated charging party attempted to file the addendum within the 20-day period but was prevented from doing so by circumstances beyond charging party’s control.

The Board may exercise its discretion to take judicial notice of material from outside proceedings when the material is of probative value in the matter before the Board. The Board declined to take judicial notice of documents from two personnel commission proceedings that were unrelated to the grievance underlying a breach of the duty of fair representation charge.