IBEW Local 1245 (Flowers) (PERB 2079M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVID FLOWERS,
Charging Party,
V.
IBEW LOCAL 1245,
Respondent.
Case No. SA-CO-62-M
PERB Decision No. 2079-M
November 24, 2009
Appearance: Law Office of Steven B. Basso ff by Steven B. Bassoff, Attorney, for
David Flowers.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by David Flowers (Flowers) of a dismissal of his unfair practice
charge by a Board agent. The charge alleged that the IBEW Local 1245 (IBEW) violated the
Meyers-Milias-Brown Act (MMBA) 1 when it failed to adequately pursue a grievance filed on
Flowers' behalf. Flowers alleged that this conduct was without rational basis and/or devoid of
honest judgment and, therefore, constituted a breach of IBEW' s duty of fair representation.
The Board agent dismissed the charge, finding that Flowers failed to allege sufficient
facts to demonstrate a prima facie case that IBEW breached its duty of fair representation.
Flowers appealed. We have reviewed the entire record and find that Flowers established a
prima facie violation that IBEW breached its duty of fair representation. In addition, we find
that Flowers established a prima facie violation that IBEW breached its duty to provide an
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

explanation to Flowers why it chose not to elevate the grievance to arbitration. Accordingly,
for the reasons set forth below, we remand this charge to the General Counsel's Office for the
issuance of a complaint consistent with this decision.
BACKGROUND
Flowers was employed by the Sacramento Municipal Utility District (S1'.1UD) as an
electrician technician/splicer. IBEW was his exclusive representative. In November of 2007,
Flowers was terminated from his employment "for cause." Under the SMUD-IBEW
memorandum of understanding, the grievance procedure was the exclusive method for
challenging "for cause" terminations. The procedure consists of four steps, with the final step
being binding arbitration.
IBEW filed a grievance on Flowers' behalf on November 30, 2007. Flowers, however,
received no further communication from IBEW regarding his grievance. He was not
interviewed regarding the termination and he was not consulted regarding potential issues
raised by SMUD in support of the termination. In fact, Flowers was not even advised of the
status of the grievance or whether the grievance steps were being followed.
On February 19, 2008, Flowers received a telephone call from Sam Glero (Glero), an
IBEW business agent, who informed Flowers that IBEW was not going to arbitrate his
grievance. Glero did not offer an explanation for IBEW' s decision.
On April 2, 2008, Flowers filed the instant unfair practice charge alleging that IBEW's
failure to investigate the facts surrounding the termination and its subsequent prosecution of
the grievance without sufficient facts was irrational and devoid of honest judgment.
Accordingly, Flowers contends IBEW's conduct amounted to a breach of its duty of fair
representation. IBEW did not respond to the charge.
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The Board agent concluded that Flowers' allegation that IBEW never investigated his
claim was conclusory and speculative. Accordingly, the Board agent dismissed the charge,
finding that Flowers failed to allege sufficient facts to demonstrate a prima facie case. 	Flowers
appealed, making the same arguments as those set forth in the amended charge. IBEW did not
file a response to the appeal.
DISCUSSION
While the MMBA does not expressly impose a statutory duty
of
fair representation
upon employee organiz~tions, the courts have held that "unions owe a duty
of
fair
representation to their members, and this requires them to refrain from representing their
members arbitrarily, discriminatorily, or in bad faith." (Hussey
v.
Operating Engineers Local
Union
No.
3 (1995) 35 Cal.App.4th 1213 (Hussey).) In Hussey, the court further held that the
duty
of
fair representation is not breached by mere negligence and that a union is to be
"accorded wide latitude in the representation
of
its members
...
absent a showing
of
arbitrary
exercise
of
the union's power."
With regard to when "mere negligence" might constitute arbitrary conduct, the Board
observed in Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H
that, under federal precedent, a union's negligence breaches the duty
of
fair representation "in
cases in which the individual interest at stake is strong and the union's failure to perform a
ministerial act completely extinguishes the employee's right to pursue his claim." (Quoting
Dutrisac
v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also,
Robesky
v.
Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
Thus, in order to state a prima facie violation of the duty of fair representation under
the MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
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a rational basis or devoid
of
honest judgment. (International Association
of
Machinists
(Attard) (2002) PERB Decision No. 1474-M.) The burden is on the charging party to show
how an exclusive representative abused its discretion, and not on the exclusive representative
to show how it properly exercised its discretion. (United Teachers
-Los
Angeles (Wyler)
(1993) PERB Decision No. 970.)
A. 	Flowers Pled Sufficient Facts To Demonstrate A Prima Facie Case
In the instant case, the Board agent found that the allegations that IBEW never
investigated the facts to his claim and that IBEW never intended to resolve his grievance were
conclusory and speculatory. We agree that Flowers failed to plead sufficient facts to
demonstrate IBEW did not intend to resolve his grievance. However, Flowers did assert the
fact that IBEW never contacted him while prosecuting his grievance. Typically, an
investigation regarding the propriety
of
a termination includes the questioning
of
the
terminated employee. Therefore, Flowers' allegation that IBEW did not investigate his claim
is not a bald assertion; rather, it is supported by the fact that IBEW failed to interview the
actual terminated employee.
In California Faculty Association (lv1acdonald) (1994) PERB Decision No. 1046-H,
PERB noted that a "perfunctory" handling
of
a grievance constituting "arbitrary" conduct
"could result from a complete failure to investigate the facts underlying a grievance."
Accordingly, since Flowers pled sufficient facts to demonstrate that IBEW failed to conduct an
investigation, we find Flowers established a prima facie case that IBEW breached its duty of
fair representation.
B. 	IBEW Failed To Adequately Explain Why It Chose Not To Arbitrate Flowers'
Grievance
The Board has held that a reasonable decision not to pursue a grievance, regardless of
the merits of the grievance, is not a violation of the duty of fair representation. (California
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State Employees' Association (Calloway) (1985) PERB Decision No. 497-H.) Similarly, the
Board has held that case handling errors and simple negligence do not constitute violations
of
the duty
of
fair representation. (American Federation
of
State, County and Municipal
Employees, Council 10 (Olson) (1988) PERB Decision No. 682-H.) Notwithstanding these
authorities, ho,vever, the Board has held that the exclusive representative must explain why
it
chose not to process an employee's grievance. (United Faculty Association
of
North Orange
County Community College District (Kiszely) (1998) PERB Decision No. 1269; Oakland
Education Association, CTAINEA (Mingo) (1984) PERB Decision No. 447 (Mingo).)
In this case, Flowers alleges that on February 19, 2008, he received a telephone call
from Glero and was informed that IBEW was not going to arbitrate his grievance. Flowers
further alleges that Glero did not offer an explanation for IBEW' s decision. Based on Mingo
and its progeny, we find that IBEW breached its duty to explain to Flowers why it chose not to
elevate the grievance to arbitration.
C. 	Conclusion
We find that Flowers established a prima facie violation that IBEW breached its duty
of
fair representation when it failed to conduct an investigation into Flowers' grievance. In
addition, we find that Flowers established a prima facie violation that IBEW breached its duty
to provide an explanation to Flowers why it chose not to elevate the grievance to arbitration.
ORDER
The Board hereby REVERSES the dismissal of the unfair practice charge in Case
No. SA-CO-62-M and REMANDS this case to the Generai Counsel's Office for the issuance
of a complaint consistent with this Decision.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
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