Public Employees Union Local 1 (Pina) (PERB 1872E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MANUELA G. PINA,
Charging Party, Case No. SF-CO-660-E
V. . PERB Decision No. 1872

PUBLIC EMPLOYEES UNION LOCAL 1, December 29, 2006

Respondent.

Appearances: Manuela G. Pina, on her own behalf; Jeff Apkarian, Business Agent, for Public
Employees Union Local 1.

Before Duncan, Chairman; Shek and McKeag, Members.
DECISION

SHEK, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by Manuela G. Pina (Pina) of the dismissal (attached) of her unfair practice
charge. Pina alleges that the Public Employees Union Local 1 (Union) failed in its duty of fair
representation in dealing with Mt. Diablo Unified School District (District). Pina alleged that
this conduct constituted a violation of sections 3544.9 and 3543.6(b) of the Educational
Employment Relations Act (EERA).' |

The Board has reviewed the entire record in this case, including, but not limited to, the
unfair practice charge, the Union’s position statement, the warning and dismissal letters, the
appeal letter, and the Union’s opposition to the appeal. Based on this review, the Board adopts
the warning and dismissal letters as the decision of the Board itself, subject to the following

discussion.

‘EERA is codified at Government Code section 3540, et seq.

Pina filed the charge on July 12, 2005, but the charge failed to provide any statement of
facts. 	The August 4, 2005 warning letter informed Pina that a charge must include the "who,
what, when, where and how" of an unfair practice, and gave Pina until August 11, 2005 to file
an amended charge. No amendment was filed by the deadline, and the Board agent issued the
dismissal letter on August 12, 2005.
Pina's September 2, 2005 appeal letter included another completed unfair practice
charge form, as well as additional detail about her charge. This attempted amendment of the
charge was untimely, unless there was good ca11:se for the late filing. 2 In this case, there were
insufficient allegations to establish good cause.
Even if the September 2, 2005 letter had been a timely amendment to the charge, it
failed to provide sufficient factual detail to establish a prima facie case. The letter alleged that
the Union failed to represent her when she was fired. The letter stated that the Union steward
"reported to my supervisor all issues that I told him" because he was on the side of the District.
The letter alleged that when Pina called the Union, they never answered; that they never
returned her calls; and that they promised to see her later but never did. The letter further
alleged that attorneys would not take her case because the Union failed to do so. However, the
September 2, 2005 letter did not state "who", "when", or "where," and therefore failed to state
a prima facie case. (See State of California (Department of Food and Agriculture) (1994)
21n general, the charging party may file an amended charge "[b ]efore the Board agent
issues or refuses to issue a complaint," PERB Regulation 32621 (PERB Regs. are codified at
Cal. Code Regs., tit. 8, sec. 31001, et seq.), not after the charge is dismissed. However, the
Board may excuse a late filing for good cause, where the explanation was "reasonable and
credible." (See, e.g., Barstow Unified School District (1996) PERB Order No. Ad-227
(excusing late filing where a computer error caused the document to be mailed to the wrong
office).) Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence. (PERB Reg. 32635(b); Los Angeles County Office of
Education (2005) PERB Dec. No. 1743.)
2

PERB Decision No. 1071-S; United Teachers-L_os Angeles (Ragsdale) (1992) PERB Decision
No. 944.)
ORDER
The unfair practice charge in Case No. SF-CO-660-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chairman Duncan and Member McKeag joined in this Decision.
3

1
.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	,
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (51 0) 622-l 022
Fax: (510) 622-1027
August 12, 2005
Manuela Pina
150 Fig Tree Lane 2-A
Martinez, CA 94553
Re: 	Manuela G. Pina v. Public Employees Union Local 1
Unfair Practice Charge No. SF-CO-660-E
DISMISSAL LETTER
Dear Ms. Pina:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 12, 2005. Manuela G. Pina alleges that the Public Employees
Union Local 1 violated the Educational Employment Relations Act (EERA)1 by breached its
duty of fair representation.
I indicated to you in my attached letter dated August 4, 2005, 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 August 11,2005, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. Therefore, I am
dismissing the charge based on the facts and reasons contained in my August 4, 2005, letter.
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. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-660-E
August 12, 2005
Page 2
r 	(
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 file 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 of
each 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-CO-660-E
August 12, 2005
Page 3
Sincerely,
ROBERT THOMPSON
General Counsel
By 	/~ 	/. 	/-zKristin L. Rosi
Regional Attorney
Attachment
cc: Jeff Apkarian

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
August 4, 2005
Manuela G. Pina
150 Fig Tree Lane 2-A
Martinez, CA 94553
Re: 	Manuela G. Pina v. Public Employees Union Local 1
Unfair Practice Charge No. SF-CO-660-E
WARNING LETTER
Dear Ms. Pina:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 12, 2005. Manuela G. Pina alleges that the Public Employees
Union Local 1 violated the Educational Employment Relations Act (EERA) 1 by breached its
duty of fair representation.
The charge states in its entirety as follows:
Failed to fairly represent me in dealings with the Mt. Diablo
Unified School District.
On July 12, 2005, you filed this charge. However, the charge did not contain a Proof of
Service as required by PERB Regulation 32615(b). On July 13, 2005, PERB sent you a letter
concerning the deficiency in your filing and instructed you to provide a proof of service by
July 25, 2005.
On August 2, 2005, PERB received a proof of service form indicating you served Local 1 on
July 27, 2005.
Based on the above stated facts, the charge fails to state a prima facie violation of the EERA
for the reasons provided below.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
C. ·~
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-660-E
August 4, 2005
Page 2
(
Oak Unified School District (1991) PERB Decision No. 873.) Herein, both the original and
supplemental charge forms fail to provide any statement of facts. As such, PERB cannot
determine if the charge has merit or if it is timely filed.
It appears you wish to allege the union violated the duty of fair representation. In order to
assist you in creating a statement of facts, I have provided you, below, with the duty of fair
representation standard. Should you wish to amend this charge, this standard must be met
before a complaint may issue.
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section of BERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers of Los Angeles
(Collins). the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a Charging Party:
"... must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action m; inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)

SF-CO-660-E
August 4, 2005
Page 3
(
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 the
charging 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 August 11, 2005, 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