Decision 2204M – Service Employees International Union, Local 1021 (Horan)

SF-CO-219-M

Decision Date: September 23, 2011

Decision Type: PERB Decision

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Perc Vol: 36
Perc Index: 50

Decision Headnotes

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

Where substance of allegation was that union “failed to represent me at an arbitration hearing,” charging party failed to state sufficient facts, which if proven, would constitute a prima facie violation of the duty of fair representation, thereby warranting dismissal of the charge.

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

The duty of fair representation extends only to contractual remedies under the union’s exclusive control; the duty of fair representation does not attach to Skelly hearings because they are extra-contractual proceedings where the union does not possess exclusive control over the means to a particular remedy; where charge alleged that the arbitration followed from a “predecessor Skelly hearing” and did not allege that the union’s representation arose out of an obligation found in the collective bargaining agreement, the charge failed to state sufficient facts, which if proven, would demonstrate that the union owed charging party a duty of fair representation.

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.06000 – Other

In Lane v. I.O.U.E. Stationary Engineers (1989) 212 Cal.App.3d 164, 169-171 (Lane), the court held that even though a duty of fair representation does not extend to extra-contractual proceedings, a duty “akin” to the duty of fair representation may arise where the union chooses to provide representation; PERB has not adopted this theory as the basis for an unfair practice charge; rather, PERB views Lane as implicating a cause of action that may be prosecuted in state court, but is outside PERB’s jurisdiction.

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

Where substance of allegation was that union “failed to represent me at an arbitration hearing,” charging party failed to state sufficient facts, which if proven, would constitute a prima facie violation of the duty of fair representation, thereby warranting dismissal of the charge.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

Where substance of allegation was that union “failed to represent me at an arbitration hearing,” charging party failed to state sufficient facts, which if proven, would constitute a prima facie violation of the duty of fair representation, thereby warranting dismissal of the charge.

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

In cases alleging a breach of the duty of fair representation, the six-month limitations period begins to run on the date when the charging party, in the exercise of reasonable diligence, knew or should have known that further assistance from the union was unlikely; where the only conduct complained of in the charge was union’s failure to represent charging party at a scheduled arbitration, and charge was filed within six months of arbitration, charge was timely filed.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

In cases alleging a breach of the duty of fair representation, the six-month limitations period begins to run on the date when the charging party, in the exercise of reasonable diligence, knew or should have known that further assistance from the union was unlikely; where the only conduct complained of in the charge was union’s failure to represent charging party at a scheduled arbitration, and charge was filed within six months of arbitration, charge was timely filed.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

Unless good cause is shown, charging party may not present on appeal new charge allegations or new supporting evidence; where new allegations refer to events that predate the dismissal of the charge, and no good cause shown for charging party’s failure to provide these allegations to Board agent at the charge processing stage, Board declined to consider them on appeal.