No Duty Of Fair Representation Where Union Not Exclusive Rep

Written on 09/11/2021
Will Aitchison

In a factually bizarre case, the General Counsel for Florida’s Public Employment Relations Commission stressed what is and what is not covered by a union’s duty of fair representation.

The unfair labor practice charge was filed by Marcus Brinson, an internal affairs investigator for the University of Florida Police Department (UFPD). Brinson is a member of the Police Be­nevolent Association of Florida.

Brinson conducted an investigation into allegations of bias by one UFPD officer against another. As part of that investigation, on November 16, 2020, Brinson and another internal affairs investigator, Gregory Castronover, conducted a meeting with the subject of the investigation, Officer Nicholas Doyle. Following that meeting, Doyle filed a complaint with the UFPD chief of police alleging that Brinson violated his rights under Florida’s Law Enforcement Officer’s Bill of Rights. On December 3, 2020, a “compliance review” hearing was held which sustained the allegations.

Brinson filed a duty of fair repre­sentation complaint against his union, alleging that the PBA representative, Bradley Roberts, failed to provide knowledgeable representation to Doyle during the internal affairs meeting. The charge asserted that had Roberts provid­ed knowledgeable representation there would have been no complaint that the Bill of Rights was violated. The charge further asserted that Roberts’ demeanor during the meeting was calculated to pressure the investigators into making a mistake and violating Doyle’s rights.

PERC’s General Counsel dismissed Brinson’s complaint. To begin with, the General Counsel ruled, “In providing representation to Officer Doyle, any duty the PBA owes is to Officer Doyle, not Brinson. Brinson lacks standing to assert Doyle’s rights through an unfair labor practice charge.

“Secondly, even if Brinson had standing to bring this charge, the inter­nal affairs meeting did not involve the negotiation of a collective bargaining agreement or the enforcement of such an agreement through the grievance procedure. Therefore, the PBA’s conduct with respect to that assistance does not implicate the PBA’s duty of fair represen­tation because the PBA was not acting in an area over which it had exclusive control. Since the PBA’s representation of one of its members during an internal affairs investigation exceeds the scope of its duty of fair representation, the adequacy of such representation is not subject to the Commission’s review.”

Brinson v. Florida PBA, 48 FPER ¶ 19 (Fla. PERC Gen. Counsel 2021).

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