DECISIONS

King County (Amalgamated Transit Union Local 587), Decision 12759-A (PECB, 2018)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Claude R. Brown, the complainant.

Christie J. Fix, Attorney at Law, Frank Freed Subit & Thomas LLP, for the Amalgamated Transit Union Local 587.

Claude Brown filed an unfair labor practice complaint and an amended complaint against the Amalgamated Transit Union Local 587 (union).  The Commission’s unfair labor practice manager found a cause of action existed for union interference with employee rights by breach of the duty of fair representation.  Examiner Karyl Elinski conducted a hearing and issued a decision finding that the union did not interfere with employee rights by breaching its duty of fair representation.  King County (Amalgamated Transit Union Local 587), Decision 12759 (PECB, 2017).  Brown filed a timely appeal.

The issue before the Commission is whether the union interfered with employee rights by breaching its duty of fair representation by representing Claude Brown in an arbitrary, discriminatory, or bad faith manner.  We affirm the Examiner.  Brown did not meet his burden to prove that the union’s decision not to advance his grievance to the next step of the grievance procedure was arbitrary, discriminatory, or made in bad faith.

Applicable Legal Standards

Standard of Review

The Commission applies its experience and specialized knowledge in labor relations to decide cases.  RCW 34.05.461(5).  The Commission reviews conclusions and applications of law, as well as interpretations of statutes, de novo.  The Commission also reviews findings of fact to determine if they are supported by substantial evidence and, if so, whether those findings in turn support the examiner’s conclusions of law.  C-Tran (Amalgamated Transit Union, Local 757), Decision 7087‑B (PECB, 2002).  The Commission reviews factual findings for substantial evidence in light of the entire record.  Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.  Public Employment Relations Commission v. City of Vancouver, 107 Wn. App. 694, 703 (2001); C-Tran (Amalgamated Transit Union, Local 757), Decision 7087-B.  The Commission attaches considerable weight to the factual findings and inferences, including credibility determinations made by its examiners.  Cowlitz County, Decision 7007-A (PECB, 2000).  This deference, while not slavishly observed on every appeal, is highly appropriate in fact-oriented appeals.  C-Tran (Amalgamated Transit Union, Local 757), Decision 7087-B.

Duty of Fair Representation

The duty of fair representation arises from the rights and privileges held by a union when it is certified or recognized as the exclusive bargaining representative under a collective bargaining statute.  Id., citing City of Seattle (International Federation of Professional and Technical Engineers, Local 17), Decision 3199-B (PECB, 1991).  The Commission is vested with authority to ensure that the exclusive representatives safeguard employee rights.  City of Seattle (Seattle Police Officers’ Guild), Decision 11291-A (PECB, 2012).

A union breaches its duty of fair representation when its conduct is arbitrary, discriminatory, or in bad faith.  Vaca v. Sipes, 386 U.S. 171 (1967); City of Seattle (Seattle Police Officers’ Guild), Decision 11291-A, citing City of Redmond (Redmond Employees Association), Decision 886 (PECB, 1980).  The employee claiming a breach of the duty of fair representation has the burden of proof and must demonstrate that the union’s action or inaction was arbitrary, discriminatory, or in bad faith.  City of Seattle (Seattle Police Officers’ Guild), Decision 11291-A, citing City of Renton (Washington State Council of County and City Employees), Decision 1825 (PECB, 1984).

Application of Standards

Brown filed a grievance alleging that the employer improperly processed his application for a promotion.  The union represented Brown at Steps 1 and 2 of the grievance procedure.  After Step 2, Union Vice President and Assistant Business Representative Neil Safrin reviewed the grievance.  Safrin thought the grievance would be difficult to prove and that the remedy Brown requested was problematic.  Based on his analysis, Safrin concluded the union was unlikely to prevail on the grievance at arbitration and decided that the union would not advance the grievance to Step 3.

On appeal, Brown asserted that the question whether the union violated the contract was not answered by the Examiner.  The issue before the Examiner was not whether the grievance was meritorious or whether the employer or union violated the collective bargaining agreement.  The Examiner was limited to ruling on whether the union had acted arbitrarily, discriminatorily, or in bad faith when it decided not to advance Brown’s grievance to Step 3 of the contractual grievance procedure.

In handling a nonfrivolous grievance, a union has the responsibility to at least investigate the grievance objectively and in more than a perfunctory manner.  City of Redmond (Redmond Employees Association), Decision 886.  The union investigated the grievance and requested documents from the employer.  Brown did not prove that the union failed to investigate the grievance or that the union investigated it in a perfunctory manner.

A union must have a reason for not processing a grievance.  Othello School District (Public School Employees of Washington), Decision 3037 (PECB, 1988).  Safrin explained why he decided the union should not advance the grievance.  While Brown may not agree with Safrin’s assessment of the likelihood of the union prevailing on the grievance, the union was acting within its rights to evaluate the grievance and choose not to advance it.[1]  Brown did not prove that the union’s reason for not advancing the grievance to Step 3 was arbitrary, discriminatory, or in bad faith.

Conclusion

Substantial evidence supports the Examiner’s findings of fact, which in turn support the conclusions of law.  Brown did not meet his burden to prove that the union acted arbitrarily, discriminatorily, or in bad faith when it chose not to advance Brown’s grievance to Step 3.

ORDER

The findings of fact, conclusions of law, and order issued by Examiner Karyl Elinski are AFFIRMED and adopted as the findings of fact, conclusions of law, and order of the Commission.

ISSUED at Olympia, Washington, this  4th  day of January, 2018.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

                                                MARILYN GLENN SAYAN, Chairperson

                                                MARK E. BRENNAN, Commissioner

                                                MARK BUSTO, Commissioner