Decision 2080M – Service Employees International Union, Local 1021 (Schmidt)

SF-CO-176-M

Decision Date: November 24, 2009

Decision Type: PERB Decision

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Perc Vol: 34
Perc Index: 12

Decision Headnotes

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.01000 – In General; Prima Facie Case

In order to state a prima facie violation of the duty of fair representation under the MMBA, a charging party must, at a minimum, include an assertion of facts from which it becomes apparent in what manner the exclusive representative’s action or inaction was without a rational basis or devoid of honest judgment. The burden is on the charging party to show how an exclusive representative abused its discretion, and not on the exclusive representative to show how it properly exercised its discretion.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.01000 – In General; Prima Facie Case

When a charge alleges that an exclusive representative breached its duty of fair representation by failing to act on behalf of an employee, PERB looks to whether the cumulative actions of the exclusive representative, considered in their totality, are sufficient to constitute a prima facie showing of an arbitrary failure to fairly represent the employee. Thus, prima facie case may be established based on an overall pattern of conduct, even if any one action by the exclusive representative, standing alone, would not constitute a breach of the duty of fair representation.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.04000 – Scope of Duty; Internal Union Affairs

An exclusive representative owes no duty of fair representation to a unit member, unless the exclusive representative possesses the exclusive means by which such an employee can obtain a particular remedy. The general rule is that when a bargaining unit member is free to represent themselves or hire an attorney to pursue their claim, the union is not bound by the duty of fair representation. This is especially true when the claims involve matters that are extra-contractual or the enforcement of state or federal statutes.

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

When a charge alleges that an exclusive representative breached its duty of fair representation by failing to act on behalf of an employee, PERB looks to whether the cumulative actions of the exclusive representative, considered in their totality, are sufficient to constitute a prima facie showing of an arbitrary failure to fairly represent the employee. Thus, prima facie case may be established based on an overall pattern of conduct, even if any one action by the exclusive representative, standing alone, would not constitute a breach of the duty of fair representation.