Decision 2581E – United Teachers Los Angeles (Le Mere)
LA-CO-1654-E)
Decision Date: August 21, 2018
Decision Type: PERB Decision
Description: A public school employee excepted to a proposed decision concluding that she did not prove her Union violated its duty of fair representation toward her by failing to file an appeal of her suspension.
Disposition: The Board adopted the proposed decision, finding no breach of the duty of fair representation because the collective bargaining agreement authorized either the Union or the affected employee to file a notice of appeal. Therefore, the Union did not have exclusive control over the employee’s contractually-based disciplinary appeal process and it did not owe the employee a duty of fair representation.
Perc Vol: 43
Perc Index: 44
Decision Headnotes
800.01000 – In General; Prima Facie Case
PERB rejected a bargaining unit member’s argument that their exclusive representative’s past practice in filing disciplinary appeals on behalf of unit members created a duty to file an appeal in her case. An exclusive representative’s past practice with regard to grievance processing may be relevant to whether the representative breached its duty of fair representation by deviating from that practice in a particular instance. However, the duty of fair representation arises from the collective bargaining contract, not from a past practice itself. (pp. 2-3.)
800.01000 – In General; Prima Facie Case
An exclusive representative does not owe a duty of fair representation to a bargaining unit member unless the representative possesses the exclusive means by which such member can vindicate an individual right. Here, the union did not have exclusive control over the disciplinary appeals process because the bargaining contract authorized either the union or the affected employee to file a notice of appeal. (pp. 4-5.)
800.02000 – Grievance Handling/Contract Administration
An exclusive representative does not own a duty of fair representation to a bargaining unit member unless the representative possesses the exclusive means by which such member can vindicate an individual right. Here, the union did not have exclusive control over the disciplinary appeals process because the bargaining contract authorized either the union or the affected employee to file a notice of appeal. (pp. 4-5.)
800.02000 – Grievance Handling/Contract Administration
The Board declined to adopt the ALJ’s statement that, even if a union does not have exclusive control over the grievance process, it may be liable for failing to file a timely grievance if it promised a bargaining unit member that it would do so and then arbitrarily did not do so. The Board found Amalgamated Transit Union, Local 1704 (Buck) (2007) PERB Decision No. 1898-M, which the ALJ cited for that proposition, to be inapposite because the Board in Buck found that the union owed the employee a duty of fair representation since it maintained exclusive control over his contractually-based remedy.