Service Employees International Union Local 250 (Stewart) (PERB 1610M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CASSANDRA STEWART (MENTAL HEALTH
WORKERS),

Charging Party, Case No. SF-CO-17-M

Vv. PERB Decision No. 1610-M

SERVICE EMPLOYEES INTERNATIONAL April 2, 2004

UNION LOCAL 250,

Respondent.

Appearance: Cassandra Stewart, on her own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Cassandra Stewart (Mental Health Workers) (Stewart) of a Board
agent’s dismissal (attached) of her unfair practice charge. The charge alleged that the Service
Employees International Union Local 250 (SEIU) violated its duty of fair representation under
the Meyers-Milias-Brown Act (MMBA)' by negotiating a new salary scale that did not
immediately benefit Stewart and other similarly situated employees. The Board agent
dismissed the charge on the grounds that the fact that some bargaining unit members are not
satisfied with a negotiated collective bargaining agreement is insufficient to demonstrate a

prima facie violation of the duty of fair representation.

'MMBA is codified at Government Code section 3500 et seq.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters and Stewart's appeal.2 The
Board finds the warning and dismissal letters to be free
of
prejudicial error and adopts them as
the decision
of
the Board itself, subject to the discussion below.
DISCUSSION
Stewart is employed by the City and County
of
San Francisco (City) as a class 2303
mental health rehabilitation worker. Stewart is a member
of
the bargaining unit exclusively
represented by SEID and was elected a job steward during the relevant time period. SEID and
the City are parties to a collective bargaining agreement (CBA) effective July 1, 2000 through
June 30, 2003.
Stewart alleges that the salary increases provided by the current CBA are unfairly
directed towards new employees over incumbent ones. Specifically, SEID negotiated a higher
starting salary for newly hired mental health workers which did not directly benefit more
senior employees. Because Stewart and other similarly situated employees do not receive the
same level
of
benefit as newly hired employees, Stewart argues that SEID violated its duty
of
fair representation. The Board agent held that the fact that some bargaining unit members are
not satisfied with an agreement is insufficient by itself to demonstrate a prima facie violation
of
the duty
of
fair representation. (Los Rios College Federation
of
Teachers, CFT/AFT
(Violett, et al.) (1991) PERB Decision No. 889.) The Board agrees.
Unaddressed, however, are vague allegations by Stewart that she was threatened by
SEID because of her complaints regarding the CBA. Stewart alleges that the threats occurred
2In reaching its decision, the Board did not consider the additional material submitted
by Stewart after the filings were complete in this matter. The Board will consider late-filed
appeals only for good cause and Stewart failed to meet this standard. (Regents of the
University of California (1997) PERB Decision No. 1239-H.)
2

on August 25, 2002, during a meeting
of
SEIU job stewards. Stewart alleges that she was
further "threatened" on other dates and labeled a "troublemaker"
by
SEIU. Taken together,
these allegations fail to provide the factual specificity necessary to state a prima facie case
of
interference. Stewart does not allege the nature
of
her alleged protected activity or provide
details as to how she may have been threatened. 3 Accordingly, the charge must be dismissed.
ORDER
The unfair practice charge in Case No. SF-CO-17-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3Further, SEIU's alleged attempt to remove Stewart as a job steward may have been an
internal union matter. (See California State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S.)
3

c·
	( '	
_________________	_________
	STATE OF CALIFORNIA 	GRAY	
________	
DA VIS, Governor	_	
__....g.
___
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-W27
September 17, 2002
Cassandra Stewart
10516 Creekside Circle
Oakland, CA 94603
Re: 	Cassandra Stewart (Mental Health Workers) v. SEIU Local 250
Unfair Practice Charge No. SF-CO-17-M
DISMISSAL LETTER
Dear Ms. Stewart:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 22, 2002. Cassandra Stewart (Mental Health Workers)
alleges that the SEIU Local 250 violated the Meyers-Milias-Brown Act (MMBA)1 by
negotiating for a provision eliminating several steps in the pay scale for Mental Health
Workers. 	·
I indicated to you in my attached letter dated August 27, 2002, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to September 4, 2002, the charge would be
dismissed. I later extended this deadline to September 18, 2002.
On September 17, 2002, Charging Party filed a first amended charge. The amended charge
includes the same allegations as the original charge. However, the amended charge alleges the
Union's conduct was based on the Mental Health Workers race and/or national origin. 	I will
restate the relevant facts below.
The City and County
of
San Francisco employ Charging Party as a Mental Health
Rehabilitation Worker. As such, she is exclusively represented by SEIU Local 250. Local 250
and the City are parties to a collective bargaining agreement which expires on June 30, 2003.
Section 382 and 383 provide as follows:
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-17-M
September 17, 2002
Page2
r·
l
Salary Step Increase for Class 2303 Mental Health Rehabilitation
Worker
Effective July
1,
2002, the City shall eliminate Steps 1 through 4
in the compensation schedule for Class 2303 Mental Health
Rehabilitation Worker. The new compensation schedule will be
as follows: 	Step 5 becomes Step
1;
Step 6 becomes Step 2; Step
7 becomes Step 3; Step 8 becomes Step 4; Step 9 becomes Step 5;
and Step 10 becomes Step 6. All employees below the current
Step 5 will be placed at the new Step
1.
	All employees at or
above Step 5 shall be placed at the step corresponding to the new
salary steps defined above.
Effective July 1, 2001, the City shall eliminate Step 1 in the
compensation schedule for Class 2303 Mental Health
Rehabilitation Worker. The new compensation schedule will be
as follows: 	Step 2 becomes Step
1;
Step 3 becomes Step 2; Step
4 becomes Step 3; Step 5 becomes Step 4; and Step 6 becomes
Step 5. All employees shall be placed at the step corresponding
to the new salary steps as defined above.
While the provision seems to freeze current employees who have spent less than 5 years in the
Class, the base pay for newly hired employees increased substantially.
For the past several years, Charging Party has been complaining to Local 250 about the salary
schedule. More specifically, Charging Party and her co-workers believe the salary schedule
unfairly penalizes incumbent workers while benefiting newly hired employees. Although
Charging Party has been employed for 5 years, and was previously at Step 5 making $15.00
per hour, she is now on the new Step
1,
where her pay remains the same and is the same as
new employees. The charge contains nearly 100 pages
of
documents, most
of
which is
correspondence between Charging Party and Local 250, or union flyers announcing meetings.
The facts herein appear undisputed. Local 250 bargained for the new salary schedule and have
not rescinded the agreement per Charging Party's request.
Based on the facts provided herein, the charge as presently written, fails to state a prima facie
violation
of
the duty
of
fair representation for the reasons provided below.
As a general rule, an exclusive representative enjoys a wide range
of
bargaining latitude. As
the United States Supreme Court stated in Ford Motor Co. v. Huffman (1953) 345 U.S. 330,
338:
Inevitably differences arise in the manner and degree to which the
terms of any negotiated agreement affect individual employees
and classes of employees. The mere existence of such
differences does not make them invalid. The complete

C
SF-CO-17-M
September 17, 2002
Page 3
satisfaction
of
all who are represented is hardly to be expected. A
wide range
of
reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to good faith and honesty
of
purpose in the exercise
of
its
discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members
of
the unit it represents.
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty
of
fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members,
nor
is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation
of
Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Parties were not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Los Rios College Federation
of
Teachers (Violett),
supra, PERB Decision No. 889.)
Herein, Local 250 bargained for an agreement that benefited newly hired employees
by
increasing the beginning salary for these positions. 	Although incumbent employees did not
receive a commensurate salary increase, such conduct is not a violation
of
the duty
of
fair
representation. Local
250's
conduct does not appear arbitrary, as they were able to increase
starting wages, nor is there any evidence
of
discriminatory motive. The fact that some
employees are not satisfied with the outcome
of
negotiations does not mean the union has
breached its duty.
In the amended charge, Charging Party contends Local 250' s actions were based on the race
of
the Mental Health Workers. However, the only facts presented regarding racial discrimination
state that only two
of
the 45 Mental Health Workers are white. Such facts are insufficient to
demonstrate racial animus. As such, this allegation fails to state a prima facie case.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-17-M
September 17, 2002
Page4
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you fiie a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party
or
filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
ofeach other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

SF-C0-17-M,
September,17,,2002
Page,5
Sincerelk,
ROBERT,THOMPSON
General,Counsel,
Bk
Kristin,
...___
L.,Rosi,
----
Regional,Attornek
-m	- km- ---=-	r_,_
Attachment
cc:, William,Sokol

STATE OF CALIFORNIA 	(	
,_	
GRAY
DA
VIS, Governor
-------------------------- ------------
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2519
Telephone: (510) 622-1022
Fax: (510) 622-1027
August 27, 2002
Ellen Mendelson, Attorney
533 Bella Vista Way, 1st floor
San Francisco, CA 94127
Re: 	Cassandra Stewart (Mental Health Workers) v. SEID Local 250
Unfair Practice Charge No. SF-CO-17-M
WARNING LETTER
Dear Ms. Mendelson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 22, 2002. Cassandra Stewart (Mental Health Workers)
alleges that the SEID Local 250 violated the Meyers-Milias-Brown Act (MMBA)1
by
negotiating for a provision eliminating several steps in the pay scale for Mental Health
Investigation
of
the charge revealed the following. 	The City and County
of
San Francisco
employ Charging Party as a Mental Health Rehabilitation Worker. As such, she is exclusively
represented by SEID Local 250. Local 250 and the City are parties to a collective bargaining
agreement which expires on June 30, 2003. Section 382 and 383 provide as follows:
Salary Step Increase for Class 2303 Mental Health Rehabilitation
Worker
Effective July
1,
2002, the City shall eliminate Steps 1 through 4
in the compensation schedule for Class 2303 Mental Health
Rehabilitation Worker. The new compensation schedule will be
as follows: 	Step 5 becomes Step
1;
Step 6 becomes Step 2; Step
7 becomes Step 3; Step 8 becomes Step 4; Step 9 becomes Step 5;
and Step 10 becomes Step
6.
	All employees below the current
Step 5 will be placed at the new Step
1.
All employees at or
above Step 5 shall be placed at the step corresponding to the new
salary steps defined above.
Effective July 1, 2001, the City shall eliminate Step 1 in the
compensation schedule for Class 2303 Mental Health
Rehabilitation Worker. The new compensation schedule will be
as follows: Step 2 becomes Step 1; Step 3 becomes Step 2; Step
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-17-M
August 27, 2002
Page 2
(
4 becomes Step 3; Step 5 becomes Step
4;
and Step 6 becomes
Step
5.
All employees shall be placed at the step corresponding
to the new salary steps as defined above.
While the provision seems to freeze current employees who have spent less than 5 years in the
Class, the base pay for newly hired employees increased substantially.
For the past several years, Charging Party has been complaining to Local 250 about the salary
schedule. More specifically, Charging Party and her co-workers believe the salary schedule
unfairly penalizes incumbent workers while benefiting newly hired employees. Although
Charging Party has been employed for 5 years, and was previously at Step 5 making $15.00
per hour, she is now on the new Step
l,
where her pay remains the same and is the same as
new employees. The charge contains nearly 100 pages
of
documents, most
of
which is
correspondence between Charging Party and Local 250, or union flyers announcing meetings.
The facts herein appear undisputed. Local 250 bargained for the new salary schedule and has
not rescinded the agreement per Charging Party's request.
Based on the facts provided herein, the charge as presently written, fails to state a prima facie
violation
of
the duty
of
fair representation for the reasons provided below.
As a general rule, an exclusive representative enjoys a wide range
of
bargaining latitude. As
the United States Supreme Court stated in Ford Motor Co.
v.
Huffman (1953) 345 U.S. 330,
338:
Inevitably differences arise in the manner and degree to which the
terms
of
any negotiated agreement affect individual employees
and classes
of
employees. The mere existence
of
such
differences does not make them invalid. The complete
satisfaction
of
all who are represented is hardly to be expected. A
wide range
of
reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to good faith and honesty
of
purpose in the exercise
of
its
discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members
of
the unit it represents.
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty of fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation
of
Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Parties were not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Los Rios College Federation of Teachers (Violett),
supra, PERB Decision No. 889.)

SF-CO-17-M
August 27, 2002
Page 3
Herein, Local 250 bargained for an agreement that benefited newly hired employees
by
increasing the beginning salary for these positions. 	Although incumbent employees
did
not
receive a commensurate salary increase, such conduct is not a violation
of
the duty
of
fair
representation. Local
250's
conduct does not appear arbitrary, as they were able to increase
starting wages, nor is there any evidence
of
discriminatory motive. The fact that some
employees are not satisfied with the outcome
of
negotiations does not mean the union has
breached its duty.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter
or
additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by thecharging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
	If
I do not receive an
amended charge
or
withdrawal from you before September 4, 2002, I shall dismiss your
charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR