By Jim Cline and Amy Liden
In Columbia Basin College, the PERC Examiner dismissed the Duty of Fair Representation complaint, as while the union representative was abrasive and arguably negligent, the facts presented didn’t rise above mere negligence.
The College started a serious investigation against an employee for charges involving inappropriate conduct and insubordination The union represented the employee during the investigation and was able to get the charges limited to a written reprimand. Later, though, the college decided not to renew her tenure, citing the written reprimand as a factor.
The union contested this tenure decision, arguing that the college could not use the reprimand to influence the tenure decision. However, the union ultimately withdrew the grievance, as the CBA did not limit what the board could consider when making tenure decisions. The union’s grievance withdrawal letter wasn’t sent to the employee until a month later.
Throughout this process, the employee claimed the union representative had been abrasive. For example, the representative had started one of their conversations by saying, “Well, you’re f’ed.” (Unclear if that was in the original or the Examiner’s restatement of the conversation.) The employee also claimed the representative had frequently ignored her emails and phone calls and had retaliated against her for filing a complaint about a coworker who happened to be friends with the union representative. In response, the union representative explained he had a heavy workload, which required him to give direct communications, and that he had not intentionally ignored the employee’s emails or phone calls or delayed sending the grievance withdrawal letter. He argued he had helped the employee avoid termination by securing a written reprimand, and that he had brought a grievance when her tenure was denied. Ultimately, the union representative decided to withdraw the grievance, as he reasonably believed the college had not violated the CBA.
The Examiner held the union’s behavior did not demonstrate that it had breached its duty of fair representation for five reasons. First, there was insufficient evidence that the union representative handled the employee’s case differently from others. Second, there was no evidence the union representative was abrasive only with the employee and was described by others as “not a warm and fuzzy guy.” Third, the union representative demonstrated diligence in investigating the case, facilitating the grievance, and consulting with in-house counsel about the college’s two-step grievance response. Fourth, the decision to withdraw the grievance was not arbitrary because the union reasonably believed it was meritless since the college did not violate the CBA. Finally, the representative made an “honest mistake” when he failed to respond to some of the employee’s communications due to his heavy workload. The Examiner summarized it best:
“Though regrettable, [the union representative’s] inattentiveness did not rise to the level of surpassing mere negligence… A union breaches its duty of fair representation when its conduct is more than merely negligent; it must be arbitrary, discriminatory, or in bad faith…”
Since the union’s conduct was merely negligent, the complaint was dismissed.
In Chapter 13 of our Washington State Representatives Manual available on the Premium Website, we provided details and practical guidelines for how to process grievances. None of the guidelines involve being lazy in responding or telling the employee that “you’re f’ed.”
That said, this case demonstrates, which we also explain in these guidelines that the standard for a successful DFR claim is high indeed. Don’t be negligent or rude but if you are, you may deflect DFR claims by ensuring that the decision not to pursue the grievance is based on the merits.
**Visit our Premium Website for more information on Duty of Fair Representation.**
