International Union of Operating Engineers, Local 501 (Reich) (PERB 0591H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE E. 	REICH,
Charging 	Party,
v.
INTERNATIONAL UNION OF 	OPERATING 	)
ENGINEERS, 	LOCAL 501,
Respondent.
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) 	Case 	No. 	LA-CO-6-H
PERB 	Decision 	No. 	591-H
October 	3, 	1986
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Appearance: 	George E. 	Reich, 	on his own behalf.
Before Hesse, 	Chairperson; 	Morgenstern and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before 	the Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	Charging
Party George 	E. 	Reich 	to a 	dismissal 	of his 	unfair practice
charge 	against 	the 	International 	Union 	of 	Operating 	Engineers,
Local 	501 	(Union or Local 	501). 	In his charge, 	Reich alleges
that 	the 	Union 	failed 	to 	fairly 	represent him 	in 	contesting 	the
decision 	of 	the 	University of 	California 	at 	Los 	Angeles
(University) 	to place him 	on 	an 	investigatory leave pending
dismissal 	from 	employment.
SUMMARY 	OF 	FACTUAL 	ALLEGATIONS
In May 	1984, 	the 	University placed 	Reich 	on 	investigatory
leave 	for 	allegedly 	sleeping on 	the 	job. 	Reich had 	a back
problem 	that had become 	apparent 	several 	months 	before 	May 	1984,

and he 	claims 	he 	was 	performing 	exercises 	to 	relieve back 	pain
when his 	supervisor 	entered 	the 	room. 	Reich 	claims he 	had 	no
prior 	reprimands 	and his 	work 	performance 	had been 	highly 	rated.
After being placed on 	leave, 	Reich met with 	Fred W. 	Lowe, 	a
representative 	of 	Local 	501.l Lowe 	advised 	Reich 	to 	resign,
apparently 	in 	lieu 	of 	dismissal. 	According 	to 	the 	allegations
in 	the 	charge, 	Lowe 	told 	Reich 	that his 	case had been 	reviewed
by three 	Union 	lawyers, 	all 	of whom were 	of 	the 	opinion 	that
Reich 	would 	not 	succeed 	in 	reversing 	the 	University's 	decision
in 	arbitration. 	Reich 	told 	Lowe he had 	engaged 	a 	representative
outside 	the 	Union, 	and 	that 	individual 	told 	Reich he 	could
definitely win 	the 	case. 	Lowe's 	pessimistic 	view of 	the
likelihood 	of 	success 	remained 	unchanged.
Thereafter, 	Reich 	was 	represented by Lloyd 	Napier. 2 Napier
took 	Reich's 	case 	to arbitration on 	June 	10, 	1985. 	After 	the
University presented 	its 	case, 	the 	arbitrator 	ordered 	Reich
reinstated 	with 	back 	pay.
In 	the 	instant unfair, 	filed on December 4, 	1985, 	Reich asks
that 	Local 	501 	reimburse him 	for Napier's 	fees 	in 	the 	amount 	of
1Although 	the precise 	date 	of 	this 	meeting 	is 	not 	clear,
the 	charge places 	it during 	the 	summer of 	1984.
2 Reich 	does 	not 	allege 	in his 	charge 	that 	the 	Union 	refused
to 	represent him or 	to take his 	case 	to 	arbitration. 	By 	letter
dated July 16, 	1984, 	Lowe 	advised 	Reich 	that 	the 	Union was
withdrawing as 	his 	representative 	per 	Reich's 	request. 	Although
Reich 	asserts 	he 	did 	not 	receive 	this 	letter, 	he does 	not
challenge 	its 	factual 	content.
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$6,420, 	as well 	as 	an additional 	fee 	of 	$1,300 	to which Reich
maintains 	Napier 	is 	entitled.
In 	a 	letter dated March 27, 	1986, 	the Board's 	regional
attorney 	dismissed 	Reich's 	charge, 	finding 	that 	the 	charge 	was
both 	untimely 	filed 	and 	that 	the 	allegations 	contained 	in 	the
charge 	failed 	to 	establish 	a 	prima 	facie 	violation 	of 	the 	duty
of 	fair 	representation 	(DFR).
Reich appealed 	the dismissal 	on April 	15, 	1986, 	claiming
that, 	because he 	lacks 	legal 	training and 	could 	not properly
evaluate 	the 	Union 	attorneys' 	opinions 	of his 	case,
[i]t was 	not 	until 	the 	actual 	hearing was
heard on June 10, 	1985, 	and the arbitrator
found 	in my 	favor 	at 	the 	conclusion 	of 	the
university's 	case 	(without 	requiring 	one 	bit
of 	testimony 	from me 	or 	anyone 	on my behalf)
that 	I became 	aware of 	the 	fact 	that 	the
union had misrepresentd 	[sic] 	to me 	their
reason 	for 	not 	wishing 	to 	represent 	me 	. . . .
Calculating 	the 	six-month 	statute 	of 	limitations 	as 	beginning 	on
June 	10, 	1985 	(the date of the 	successful hearing), 	Reich views
his 	December 	4, 	1985 	PERB 	filing as 	timely.
DISCUSSION
Section 	3571.1(e) 	of 	the 	Higher 	Education 	Employer-Employee
Relations 	Act 	(HEERA)3 imposes 	on an exclusive 	representative
the 	duty 	to 	fairly 	and 	impartially 	represent 	all 	unit 	employees
for 	whom 	the 	employee 	organization 	is 	the 	exclusive
3
3 HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code.
w3

representative.4 The 	employee 	organization 	is 	said 	to 	violate
its 	DFR when 	its 	conduct 	is 	arbitrary, 	discriminatory or 	in bad
faith. 	Rocklin 	Teachers 	Professional 	Association 	(Romero) 	(1980)
PERB Decision No. 	124. 	As with any unfair practice, 	however, 	the
instant 	DFR charge 	must 	conform 	to 	the 	requirements 	of 	HEERA
section 	3563.2(a)5n and, 	therefore, 	must 	include 	allegations
that 	the 	conduct 	occurred 	no more 	than 	six 	months 	prior 	to 	the
filing of 	the 	charge. 	Here, 	since 	the 	charge was 	filed on
December 4, 	1985, 	only Reich's hearing, 	held on June 10, 	1985,
falls 	within 	the 	statutory period. 	In 	our 	view, 	the 	favorable
outcome 	rendered by 	the 	arbitrator 	affords 	no basis 	to 	entertain
this 	charge 	filed 	nearly 	17 	months 	after 	the 	Union 	assessed
Reich's 	case.
In 	general, 	a 	DFR claim accrues 	on the date 	when 	the
employee, 	in 	the exercise of 	reasonable diligence, 	knew or 	should
have 	known 	that 	further 	assistance 	from 	the 	union 	was 	unlikely.
4Section 	3571.l(e) 	makes 	it unlawful 	for an employee
organization 	to:
Fail 	to 	represent 	fairly 	and 	impartially 	all
the 	employees 	in 	the 	unit 	for which 	it 	is
the 	exclusive 	representative.
5 Section 3563.2(a) 	states:
Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	issue 	a 	complaint 	in 	respect
of 	any 	charge based 	upon 	an 	alleged 	unfair
practice 	occurring 	more 	than 	six 	months
prior 	to 	the 	filing of 	the 	charge.
•
4

Hill 	v. 	Georgia 	Power Co. 	(11th Cir. 	1986) 	786 F.2d 1071 	[122
LRRM 	2779], 	The 	statutory 	six-month 	limitation period under 	the
National 	Labor 	Relations 	Act begins 	to 	run 	when 	the 	employee
receives 	notice 	that 	the 	union will 	proceed 	no 	further 	with 	the
grievance. 	Hungerford v. 	United States 	(9th 	Cir. 	1962) 	307 F.2d
99, 	102. 	See, 	also, 	Hersh v. 	Allen Products Co. 	(3rd Cir. 	1986)
F.2d 	[122 	LRRM 	2730].
In 	the 	instant 	case, 	Reich 	contends 	that 	Local 	501 	violated
its 	DFR by erroneously assessing 	the 	merits 	of his 	case, 	and
that 	he became 	aware 	of 	this 	erroneous 	assessment 	only at 	the
conclusion of 	the 	arbitration hearing. 	However, 	in 	the private
sector, 	the 	courts 	have 	soundly 	rejected 	the 	notion 	that 	the
favorable 	outcome of 	a 	grievance, 	or 	the 	merits 	of a 	grievance
not pursued, 	demonstrates 	a breach of the 	DFR. 	See, 	for 	example,
Stanley v. 	General 	Foods 	Corp. 	(5th 	Cir. 	1975) 	508 F.2d 	274 	[88
LRRM 	2862]. 	The Supreme Court 	stated 	in Vaca v. 	Sipes 	386 U.S.
171, 	192-93 	[64 LRRM 2377-78]:
[I]f a 	union's 	decision 	that 	a 	particular
grievance 	lacks 	sufficient 	merit 	to 	justify
arbitration 	would 	constitute 	a 	breach 	of 	the
duty of 	fair 	representation because 	a 	judge
or 	jury 	later 	found 	the 	grievance
meritorious, 	the union's 	incentive 	to settle
such 	grievances 	short 	of 	arbitration 	would
be 	seriously 	reduced. 	The 	dampening effect
on 	the 	entire 	grievance procedure 	of 	this
reduction 	of 	the 	union's 	freedom 	to 	settle
claims 	in 	good 	faith 	would 	surely be
substantial.
Further, 	a breach of 	the 	DFR cannot be based on a 	later
tribunal's 	view 	regarding 	the 	probability of 	success 	on 	the
merits. 	Freeman v. 	O'Neal 	Steel, 	Inc. 	(5th Cir. 	1980) 	609 F.2d
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1123 	[103 	LRRM 2398]. 	Here, 	assuming arguendo 	that 	the charge
establishes 	a prima 	facie 	case, 	the 	complained-of conduct 	is 	the
Union's 	alleged misassessment 	of 	the 	merits 	of 	Reich's 	case.
That 	event 	occurred 	during 	the 	summer 	of 	1984. 	There 	are 	no
allegations 	in 	Reich's 	charge 	that 	would 	support 	a 	finding 	that
Local 	501 	misrepresented 	its 	underlying assessment. 	To 	the
contrary, 	Lowe's 	interaction with 	Reich was 	straightforward. 	He
told him 	plainly 	and promptly of 	the 	Union 	lawyers' 	assessments.
Nor 	do 	allegations 	appear 	in 	the 	charge 	demonstrating 	that
the 	Union 	had 	some 	ulterior 	motive 	that 	only 	came 	to 	light 	at
the 	time 	of 	the hearing 	or 	within 	the 	six 	months 	preceding 	the
filing of 	the 	charge. 	In 	short, 	the only event 	that occurred
within 	this 	time 	frame was 	the hearing 	itself. 	Without more,
the 	charge 	is 	untimely.
Contrary 	to our 	dissenting 	colleague, 	we 	are 	unconvinced 	that
Reich 	lacked 	sufficient 	knowledge 	or 	ability 	to 	realistically
assess 	his 	case. 	Reich was 	aware of 	Napier's optimistic 	view of
his 	case 	in 	July 1984 and, 	for 	the 	reasons 	expressed 	in 	Vaca,
supra, 	we 	are 	unwilling 	to 	rely 	solely on 	the 	eventual 	victorious
hearing 	to 	supply 	the 	requisite 	evidence 	of 	a 	prima 	facie 	case.
ORDER
Based on 	the 	foregoing, 	we AFFIRM 	the 	regional 	attorney's
dismissal.
Member 	Porter 	joined 	in 	this 	Decision. 	Chairperson Hesse's
dissent begins 	on page 	7.
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Hesse, 	Chairperson, 	dissenting: 	I dissent on the limited
grounds 	that 	the 	Charging 	Party's 	cause 	of 	action 	accrued 	when
he had 	reason 	to believe 	that 	the 	Union's 	alleged 	refusal 	to
represent him was made 	in bad 	faith, 	discriminatorily, 	or
arbitrarily. 	While 	I 	would 	agree 	that 	a 	decision by the
arbitrator 	in 	favor 	of 	a 	Charging 	Party does 	not 	necessarily
evince such bad faith 	(see Vaca v. 	Sipes, 	supra), 	I am not
willing 	to 	state 	that 	such 	a 	determination 	can 	never be
evidence 	of bad 	faith.
In 	this 	case, 	the 	Charging Party was 	aware of 	the Union's
opinion of his 	case 	in 	1984, 	outside 	the 	six-month 	statute.
But 	because 	of 	the 	Union's 	statement 	that 	"three 	Union 	lawyers
. 	. 	. 	all 	said the 	case would lose 	in arbitration," 	I 	find 	it
reasonable 	that he 	did 	not 	find 	the 	Union's 	reluctance 	to
pursue his 	case 	to be 	arbitrary or 	in bad 	faith. 	That
assessment 	could be 	made 	only when he 	won his 	arbitration
without his 	new 	attorney 	even having 	to 	call 	any witnesses.
Thus, 	in 	this 	factual 	situation, 	I would 	find the charge timely
filed 	as 	his 	cause 	of 	action 	arose 	only when 	the 	decision 	was
rendered.
As 	to 	the 	statement by 	the 	majority 	that 	the 	Union 	never
refused 	to 	represent 	the 	Charging 	Party, 	I believe 	that 	to be 	a
matter 	of 	fact 	to be 	decided 	at 	a hearing. 	Certainly 	the 	Union
would 	raise 	such a 	defense, 	but 	the 	allegation as 	stated 	in 	the
charge 	can be 	interpreted 	to mean 	that 	the 	Charging 	Party was
discouraged 	from 	using Union 	counsel. 	I 	would 	remand 	the 	issue
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of 	the 	Union's 	alleged breach 	of 	the 	duty of 	fair
representation 	to 	the 	general 	counsel 	for 	issuance 	of 	a
complaint 	so that 	these 	factual 	findings 	could be made 	at 	a
hearing.
8