By Jim Cline
In Spokane School District, Examiner Hickey held that the Spokane Education Association had violated its duty of fair representation by withholding requested information from an investigatory meeting. Complainant had relied on the Union representative’s promise to share notes, but the representative later refused without citing any legitimate interest for the withholding.
Complainant was a teacher and had been a member of the Union for many years. In September 2021, the statewide COVID-19 mandate – which required vaccinations or mask-wearing for those with medical or religious exemptions – went into effect for employees in educational settings, including Complainant. In late November 2021, Complainant participated in a protest against the mandate, refusing to wear a mask at work. She was then placed on administrative leave.
Complainant was called for an investigatory interview in early 2022, which she attended with her requested union representation. The representative told Complainant prior to the interview that he would share his notes with Complainant after the meeting. Relying on that promise, Complainant did not take any notes during the interview, which lasted several hours and resulted in multiple pages of notes. When Complainant later requested the representative’s notes, she was told the notes would not be shared with her. Complainant was later terminated.
The Union argued that they had an internal practice of not providing notes for fear of accusations of insufficient notetaking. The union representative had never provided his notes to a member prior and considered them his property. As well, the Union argued that poor judgement or simple negligence do not constitute a breach of the duty of fair representation.
Complainant, however, argued that the Union did breach its duty of fair representation when arbitrarily refusing to provide copies of the notes taken in her investigatory interview. Complainant was terminated shortly after the meeting and thus, the notes pertained to relevant information regarding her termination. The Union did not provide Complainant with a legitimate interest in refusing to share the notes nor any policy prohibiting sharing the notes.
Using six factors from similar cases, Examiner Hickey found that the Union’s refusal to provide Complainant with notes from her investigatory interview constituted arbitrary conduct lacking any reasonable explanation. The Union representative had promised to share his notes with Complainant, then later refused to do so without providing any legitimate interest. Such conduct violated the Union’s duty of fair representation, and Examiner Hickey awarded Complainant standard remedies.
The Examiner acknowledged that the decision was unprecedented, and we can find no precedent for this ruling. In past “DFR” cases, PERC has only exercised jurisdiction over claims of discrimination, not breach of contract issues which belong in court. The fact that the union didn’t keep its alleged promise is troubling, but doesn’t seem to form a sufficient basis for this ULP finding.
On the other hand, the reach of the decision is limited. The union wasn’t held liable for damages for the grievance or termination. The simple remedy issue was an order to turn over the promised notes.
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