Decision 2194E – American Federation of Teachers Part-Time Faculty United, Local 6286 (Peavy)

In order to state a prima facie violation of the duty of fair representation, charging party must show that the respondent’s conduct was arbitrary, discriminatory or in bad faith. Union’s failure to pursue grievance did not foreclose employee’s right to a remedy or completely extinguish his right to pursue his claim. Failure of union to present employee’s counter-offer to the employer does not establish a violation of the duty of fair representation. Charge failed to establish that union’s decision not to take grievance to arbitration was arbitrary or lacking in good faith.

Union’s failure to pursue grievance did not foreclose employee’s right to a remedy or completely extinguish his right to pursue his claim. Failure of union to present employee’s counter-offer to the employer does not establish a violation of the duty of fair representation. Charge failed to establish that union’s decision not to take grievance to arbitration was arbitrary or lacking in good faith, where union evaluated grievance in light of mediator’s assessment of the claim and provided employee with a written statement of the reasons it had decided not to pursue arbitration. Based upon the mediator’s assessment of the case, union determined that it would be better to address the contract language during negotiations rather than risk losing at arbitration. Employee failed to provide facts to demonstrate that the decision was without rational basis or devoid of honest judgment.

Absent evidence of arbitrary, discriminatory or bad faith conduct, a union’s decision to conduct its representation in a manner contrary to the wishes of a bargaining unit employee does not violate the duty of fair representation. Failure of union to present employee’s counter-offer to the employer does not establish a violation of the duty of fair representation. Charge failed to establish that union’s decision not to take grievance to arbitration was arbitrary or lacking in good faith, where union evaluated grievance in light of mediator’s assessment of the claim and provided employee with a written statement of the reasons it had decided not to pursue arbitration. Based upon the mediator’s assessment of the case, union determined that it would be better to address the contract language during negotiations rather than risk losing at arbitration. Employee failed to provide facts to demonstrate that the decision was without rational basis or devoid of honest judgment.

In analyzing allegations of discrimination that also violate the duty of fair representation, the Board follows the principles applicable for violations of parallel provisions prohibiting employer interference and reprisals. In order to prevail on a discrimination theory, the charging party must establish: (1) the employee exercised rights guaranteed by EERA; (2) the employee organization had knowledge of the employee’s exercise of those rights; (3) the employee organization took adverse action against the employee; and (4) the employee organization took the action because of the exercise of those rights.

Charge failed to establish that union’s refusal to represent him in his grievance constitutes disparate treatment and therefore discrimination because union handled the grievances of employees. A finding of disparate treatment requires a showing that others have been treated differently for similar or identical conduct or in a similar situation. Charge fails to allege any facts showing that the other grievances arose under similar circumstances and contains no facts concerning the nature of the other employees’ grievances. In addition, employee was not similarly situated because he expressly chose to file a grievance himself and to represent himself in mediation. Therefore, the charge fails to establish that union acted discriminatorily in its handling of his grievance.

Charge failed to establish that union’s refusal to represent him in his grievance constitutes disparate treatment and therefore discrimination because union handled the grievances of employees. A finding of disparate treatment requires a showing that others have been treated differently for similar or identical conduct or in a similar situation. Charge fails to allege any facts showing that the other grievances arose under similar circumstances and contains no facts concerning the nature of the other employees’ grievances. In addition, employee was not similarly situated because he expressly chose to file a grievance himself and to represent himself in mediation. Therefore, the charge fails to establish that union acted discriminatorily in its handling of his grievance.

Six-month statute of limitations did not begin to run when charging party filed grievance on his own, but instead began to run when charging party notified employer that he no longer sought union’s assistance in processing grievance and would proceed to mediation on his own. On that date, charging party knew or should have known that assistance from the union was unlikely. Furthermore, charging party knew or should have known that further assistance was unlikely when union informed him it would not take his case to arbitration. Charge filed within six months of either date was timely.

Six-month statute of limitations did not begin to run when charging party filed grievance on his own, but instead began to run when charging party notified employer that he no longer sought union’s assistance in processing grievance and would proceed to mediation on his own. On that date, charging party knew or should have known that assistance from the union was unlikely. Furthermore, charging party knew or should have known that further assistance was unlikely when union informed him it would not take his case to arbitration. Charge filed within six months of either date was timely.