Decision 2580S – Cal Fire Local 2881
Decision Date: August 17, 2018
Decision Type: PERB Decision
Description: An administrative law judge (ALJ) found that Respondent Cal Fire 2881 (Local 2881) did not violate the Dills Act or breach its duty of fair representation by ignoring Charging Party Sean Joseph Tobin’s (Tobin) request for assistance with a Name-Clearing Hearing and failing to assist Tobin in appealing his termination by the California Department of Forestry and Fire Protection to the State Personnel Board. The ALJ dismissed the complaint on a pre-hearing motion brought by Local 2881, concluding that the allegations did not state a prima facie case because Local 2881 had no duty as a matter of law to represent Tobin. Rather, the exclusive representative has no duty of fair representation unless it possesses the exclusive means by which such member can vindicate an individual right, and the right in question derives from a collective bargaining agreement. (National Education Association-Jurupa (Norman) (2014) PERB Decision No. 2371, pp. 14-15.) Because the Name-Clearing hearing and State Personnel Board appeal are statutory and rather than collectively-bargained for, Local 2881 owed Tobin no duty of fair representation in either of these contexts.
Disposition: The Board agreed that Local 2881 had no duty to represent Tobin and affirmed the proposed decision’s dismissal of the complaint allegations.
Perc Vol: 43
Perc Index: 43
800.01000 – In General; Prima Facie Case
The law does not impose any obligation to represent employees, unless the exclusive
representative possesses the exclusive means by which such member can vindicate an individual
right, and the right in question derives from a collective bargaining agreement. (National
Education Association-Jurupa (Norman) (2014) PERB Decision No. 2371, pp. 14-15.) A Name-Clearing hearing and State Personnel Board appeal are statutory rather than collectively-bargained for. Therefore, a union owes employees no duty of fair representation in either of these contexts.
1105.15000 – Privileged Communications
Although PERB follows federal precedent protecting certain communications under specified circumstances (see, e.g., State of California (Department of Corrections) (1995) PERB Decision No. 1104-S, pp. 16-20 [endorsing quasi-privileges/protections under Cook Paint and Varnish Co. v. NLRB (D.C. Cir. 1981) 648 F.2d 712 and Johnnie's Poultry Co. (1964) 146 NLRB 770]; Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113, p. 6 [endorsing protections under Berbiglia, Inc. (1977) 233 NLRB 1476]), the California Evidence Code presently includes no privilege protecting communications between a grievant and a non-attorney union representative. (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 888–896.)