Decision 2674M – Orange County Employees Association (Hamilton)

LA-CO-215-M

Decision Date: October 15, 2019

Decision Type: PERB Decision

Description: Respondent excepted to a proposed decision concluding that it breached its duty of fair representation when it failed to file a grievance signed and approved by Charging Party which included discrimination and retaliation claims, and instead, without telling her, filed a different grievance on her behalf that omitted the discrimination and retaliation claims.

Disposition: The Board affirmed the proposed decision but modified its remedy, reversing an order that Respondent reimburse the Charging Party for reasonable attorney fees. Attorney fees may only be awarded when an employee hires private counsel to pursue the same claims in their grievance that were impacted by the union’s unlawful conduct, which did not occur here.

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Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

Analogous federal precedent, while not controlling, often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 7, fn. 7.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

Analogous federal precedent, while not controlling, often provides persuasive guidance in construing California’s public sector labor relations statutes. (p. 7, fn. 7.)

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

Though mere negligence or poor judgment in handling a grievance do not constitute a breach of the duty of fair representation, a union’s negligence may rise to the level of arbitrary conduct in cases where the individual interest is strong and the union’s failure to perform a ministerial act completely extinguishes the employee’s right to pursue his claim. (p. 8.)

When a union’s failure to fairly represent an employee in grievance processing is so extreme that it cannot be relied on to represent the employee further in the proceeding, potential remedies include an order to pay outside counsel to represent the employee or to reimburse the employee’s attorney fees. (pp. 8-9.) Attorney fees, however, may only be awarded when the employee hires private counsel to pursue the claims in the grievance impacted by the union’s unlawful conduct. (p. 10.) Because the employee’s lawsuit against her employer did not encompass the MOU violation alleged in her grievance, attorney fees were not justified as damages for the union’s violation. (p. 11.)

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

Though mere negligence or poor judgment in handling a grievance do not constitute a breach of the duty of fair representation, a union’s negligence may rise to the level of arbitrary conduct in cases where the individual interest is strong and the union’s failure to perform a ministerial act completely extinguishes the employee’s right to pursue his claim. (p. 8.)

When a union’s failure to fairly represent an employee in grievance processing is so extreme that it cannot be relied on to represent the employee further in the proceeding, potential remedies include an order to pay outside counsel to represent the employee or to reimburse the employee’s attorney fees. (pp. 8-9.) Attorney fees, however, may only be awarded when the employee hires private counsel to pursue the claims in the grievance impacted by the union’s unlawful conduct. (p. 10.) Because the employee’s lawsuit against her employer did not encompass the MOU violation alleged in her grievance, attorney fees were not justified as damages for the union’s violation. (p. 11.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Although the Board reviews exceptions to a proposed decision de novo, to the extent an adopted proposed decision properly resolves issues underlying particular exceptions, the Board need not further address those exceptions. (p. 7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

Although the Board reviews exceptions to a proposed decision de novo, to the extent an adopted proposed decision properly resolves issues underlying particular exceptions, the Board need not further address those exceptions. (p. 7.)

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.01000 – In General

When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.)

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.01000 – In General

When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.)

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.04000 – Reimbursement of Dues, Fees and Exactions to Employees; Union Liability

When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.)