The Education Employment Relations Act (EERA) Section 3544.9 states that the “employee organization recognized or certified as the exclusive representative for the purpose of meeting and negotiating shall fairly represent each and every employee in the appropriate unit.” A union can not refuse to represent a person employed in the unit in a contractual matter because that person is not a member of the union.
The union commits an unfair labor practice when it fails to meet its duty of fair representation. The Public Employees Relation Board (PERB) decides whether a union has failed to provide fair representation by considering whether the union’s conduct was arbitrary, discriminatory, or in bad faith.
It should be noted that negligence or judgement errors have not been found to be enough to establish a violation of the duty of fair representation. It is also not a failure to provide fair representation when a union takes a position unfavorable to one unit member in order to protect the rights of other members.
PERB has ruled that the union decides who will handle a grievance. It is not a choice that the grievant makes. The selection of a grievance representative is an internal union matter and internal union matters are not subject to the duty of fair representation.
Arbitrary: A union’s conduct must be without a rational basis or devoid of honest judgement in order to be considered arbitrary.
A union can decide not to take a case to arbitration. The decision may not be made in an arbitrary fashion or be discriminatory or be made in bad faith. If a grievance screening committee decides that a case is without merit or unlikely to be successful or too costly or will injure other unit members, it may decide not to take the case to arbitration. The decision of the grievance review committee need not be the “best” decision, it need only have been made on a rational basis.
The union has no duty of fair representation in noncontractual proceedings such as in an employees’ discrimination suit or in a judicial or administrative proceeding to enforce statutory rights (e.g. layoff).
Some PERB decisions relating to the duty of fair representation are:
Employee does not have the right to arbitrate grievance; the union can refuse to pursue arbitration based on a determination that a favorable ruling would not be beneficial to the majority of unit members (Castro Valley Teachers Association 1980).
PERB has exclusive jurisdiction over Duty of Fair Representation enforcement; violation may not be litigated in court. (Council of School Nurses v. Los Angeles USD 1980).
Arbitrary conduct must include conduct that is without rationale and devoid of honest judgement. The union has latitude in the conduct of negotiations and is not required to justify every decision made at the bargaining table (Rocklin Teachers Professional Association 1980).
Prepared by M. Hittelman
Source: Pocket Guide to Unfair Practices, California Public Employees Relations Program, U.C. Berkley
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