Monday, December 7, 2009

PERB: Complaint Must Issue on Union's Violation of DFR

IBEW Local 1245 (Flowers) (2009) PERB Decision No. 2079-M (Issued on 11/24/09)

Of the 35 Board decisions issued so far this year, 9 have been brought against unions alleging a violation of the duty of fair representation.  That's not unusual as DFR cases typically make up 25% of the Board's caseload.  In eight of the cases this year, the Board affirmed the dismissal of the unfair practice charge. In IBEW Local 1245 (Flowers), the Board actually overturned the Board agent’s dismissal. Getting a complaint issued on a DFR charge is not easy, so I thought this case was worth highlighting.

There are not a lot of facts.  The employee was terminated from his employment.  Under the collective bargaining agreement, the employee’s right to challenge his termination through arbitration was controlled by the union. The union filed a grievance on the employee’s behalf.  However, the employee never heard from the union again until a few months later when a union representative called the employee and said that union would not take the case to arbitration.  The union representative offered no explanation.

Under these facts, the Board held that the employee had stated a prima facie violation of the duty of fair representation.  First, the Board held that it could be inferred from the facts as alleged that the union did not undertake any investigation or evaluation into the merits of the employee’s case.  Second, the Board affirmed that the DFR requires a union to offer the employee an explanation as to why it will not elevate a case to arbitration.  Here, the union allegedly failed to provide such an explanation.  Accordingly, the Board overturned the dismissal and ordered a complaint to be issued.


1.  The facts in this case are unusual as most unions are acutely aware of their DFR obligations.  As long as a union does its due diligence and makes an informed decision about whether to take a case to arbitration, getting a DFR complaint issued is virtually impossible.  So congrats to Steve Bassoff for getting the Board to issue a complaint.

2.  However, the employee should not start celebrating just because a complaint has issued.  The hard part is still ahead: the employee has to actually prove a violation of the DFR.  Undoubtedly, the union will come into the hearing and provide an explanation as to why it did not take the case to arbitration.  However, does that cure the fact that the union didn't provide that explanation to the employee at the time?  In my mind it shouldn't.  However, even if it doesn't what's the remedy?  That's the problem with the current DFR jurisprudence - in the extremely rare instance where an employee can actually prove a DFR violation the remedy almost always falls short of making the employee whole.  Hopefully, given the right case, the Board will address this issue sometime in the future.