By Jim Cline and Peter Haller
In Washington State Department of Children, Youth, and Families, a PERC Examiner dismissed a complaint alleging AFSCME breach of its duty of fair representation (DFR) when failed to facilitate a request for information. The Examiner reasoned that the failure was due to a mistake in interpreting the nature of the request, as thus, was mere negligence and not unlawful union interference.
Anjelita Fornara, the complaining employee, reached out to AFSCME representative regarding a grievance she planned to file against her employer. Fornara sought assistance from AFSCME in retrieving information related to her grievance. Fornara sent her union representative an email with the subject line “Public Disclosure Request.” The AFSCME representative informed Fornara that the Union does not facilitate public record requests on behalf of its members. However, Fornara was requesting information from the Union directly.
Without the help of the Union, Fornara ran into delays in retrieving this information. This ultimately resulted in fatal deficiencies to her grievance. Fornara then brought a ULP complaint against the Union.
The Examiner was not persuaded by Fornara’s arguments that the Union failed to live up to its duty of fair representation through their negligence. Citing PERC case law, the Examiner noted that mere negligence by a union is not enough to prove a breach of duty. The Examiner stated:
“At most, it appears that the union made a mistake in misinterpreting Fornara’s request as a public records request and not a request for information. As noted above, such mere negligent actions by a union do not constitute a violation of the union’s duties. Rather, the union must have taken actions or inactions that were arbitrary, discriminatory, or in bad faith.”
Thus, the Examiner dismissed the complaint alleging a breach of duty of fair representation when the Union was negligent in interpreting her request for information.
Both PERC and the courts have established a high standard for proving DFR claims. Sometime equal to or approaching intentional discrimination or bad faith is required to create union liability. In this situation, it appears that there was a massive communication breakdown between this employee and AFSCME. It is unclear why the union wasn’t preparing the grievance itself. It may have been (unclear from the written decision) that they simply believed it lacked merit and didn’t warrant its time. Regardless, whether or not it was truly negligent, that alleged negligent isn’t enough to create DFR liability.
**Visit our Premium Website for more information on General Standard for Discrimination, General Elements of Discrimination and Specific Proof of Discrimination**
