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Friday, October 15, 2010

The employee organization's duty of fair representation

The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019

Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.

CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.

Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.

CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”

PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.

This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.

PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.

According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.

In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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