Hubert Gilmore is a black corrections officer employed by Benton County in Washington and represented by Teamsters Local 839. In June 2022, the County and Local 839 signed a memorandum of understanding (MOU) modifying the CBA between the parties to increase corrections officers’ shifts from eight hours to 12 hours. The parties did so to address staffing issues and reduce unexpected mandatory overtime. Local 839 circulated the MOU to its membership shortly after its execution. Gilmore was on an extended vacation at the time and did not learn of the new shift policy until his return. Gilmore was then asked to select overtime shifts for the upcoming month in accordance with the MOU. Historically, Gilmore would have been asked to volunteer for overtime and he would be paid overtime pursuant to the CBA.
Gilmore grieved the change in policy as inconsistent with the CBA’s overtime rules, and as violative of a CBA provision requiring prompt circulation and public posting of policy changes. Gilmore did not apparently consult with Local 839 in submitting his grievance, and the County forwarded it to Local 839 business agent Jesus Alvarez. The County denied the grievance, and Alvarez notified Gilmore that it would not advance the grievance to arbitration, as he believed that the County did not violate the terms of the CBA or the MOU, and that the posting requirement did not apply to this policy change. Gilmore filed an unfair labor practice complaint with the Washington Public Employment Relations Commission (PERC), alleging that the Local violated its Duty of Fair Representation (DFR) by choosing not to advance his grievance to arbitration. Gilmore also alleged that Local 839’s failure to do so was discriminatorily based on his race and his status as a non-member of the union. After a hearing, PERC ruled in favor of Local 839.
PERC noted that three principles guide its analysis of a DFR claim: “(1) The union must treat all factions and segments of its membership without hostility or discrimination; (2) The broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty; and (3) The union must avoid arbitrary conduct.” Gilmore, as the complainant, bore the burden of proof that Local 839 fell short of its obligations. PERC concluded that Alvarez adequately and reasonably explained to Gilmore why Local 839 would not proceed to arbitration. Despite Gilmore’s failure to include the Local in his grievance, Alvarez proactively reached out to Gilmore to explain that Local 839 would not bring it to arbitration. Alvarez provided reasonable, non-discriminatory explanations for the Local’s decision, essentially concluding that the County did not violate the CBA as alleged. PERC emphasized that “it would be nonsensical for Local 839 to pursue a grievance alleging that, by agreeing to the MOU, the Employer had thereby breached the collective bargaining agreement.”
PERC found that Gilmore’s allegation of discrimination based on his race or union membership status was unsupported by the record: “Gilmore introduced pre-complaint evidence about unrelated events that he argues shows discriminatory tendencies by the Local. For example, Gilmore offered into evidence an investigatory report which concluded that a racial harassment complaint he filed in 2019 was unsubstantiated.
“Gilmore also introduced evidence that, in the past, the Local, and Alvarez specifically, had assisted him, represented him, and filed grievances on his behalf. For example, Gilmore’s evidence shows that in 2019, Gilmore and Alvarez interacted extensively about a possible grievance regarding Gilmore’s performance evaluation. Alvarez appeared to be courteous, professional, and fully willing to help Gilmore. There is no evidence that Gilmore’s race, union membership, union activity, or any other protected characteristic have ever been a factor in the Local’s dealings with him.” Accordingly, PERC ruled in favor of Local 839.
Gilmore v. Teamsters Local 839, Case 135929-U-22, 2024 WL 761452 (Wash. Pub. Emp. Rel. Com., 2024).