By Jim Cline and Peter Haller
In Hubert Gilmore v Teamsters 839, a Benton County corrections officer filed a ULP complaint against his Union alleging that it breached its duty of fair representation when it declined to pursue a grievance related to a newly adopted agreement that affected shift hours. Examiner Leonard of PERC dismissed the complaint because the corrections officer failed to ever seek Union assistance on the matter.
Hubert Gilmore, the complaining employee in this case, came back from vacation to find that shift durations had been changed from 8 to 12 hours. This was pursuant to an agreement that was adopted while Gilmore was away from work. The agreement was circulated around the bargaining unit and well understood by Gilmore’s fellow officers.
Gilmore grieved the new policy on the grounds that it violated the CBA because it was not well circulated and posted prominently. After Gilmore’s step 1 grievance was denied, he filed a step 2 grievance. This time Gilmore carbon copied his Union rep on the email. The Union representative wrote back to Gilmore and explained that they would not be pursuing the grievance because it was clear that the Employer had not violated the CBA in any way. Gilmore eventually filed a ULP complaint against the Union for declining to assist him.
The Examiner concluded that the facts did not demonstrate that Gilmore ever effectively sought assistance from the Union. Merely copying the Union rep on the email was not enough in this case. Additionally, the Union representative wrote to Gilmore to clarify why the Union decided not to assist. The Examiner reasoned,
“It would be nonsensical for the union to pursue a grievance alleging that, by agreeing to the MOU with the union, the employer had thereby breached the collective bargaining agreement with the union.”
The Examiner concluded that the Union’s decision was reasonable given the clear fault in Gilmore’s claim. Thus, Gilmore’s complaint was dismissed because he failed to show that the Union acted arbitrarily in making their decision.
There is a tremendous high hurdle for grievants to prove Duty of Fair Representation (DFR) charges even when the request for grievance assistance is clearly made. Unions have wide discretion in evaluating grievances and DFR liability is only established where there’s something approaching a discriminatory or very bad faith decision to reject the grievance.
In this situation where the employee didn’t expressly make the request to the union to pursue the grievance, this decision was the predictable response. That said, the best practice for union representatives is to maintain clear communication with the grievants and not make assumptions about their intent. The Teamsters were sloppy here but not sloppy enough to be liable.
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