Service Employees International Union, Local 99 (Arteaga) (PERB 1991E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HUGO ARTEAGA,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 99,
Respondent.
Case No. LA-CO-1342-E
PERB Decision No. 	1991
December 9, 2008
Appearance: Hugo Arteaga, on his own behalf
Before McKeag, Rystrom and Dowdin Calvillo, Members.
nPCISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (Board) on appeal by Hugo Arteaga (Arteaga) of a Board agent's dismissal (attached) of
his unfair practice charge. 	The charge alleged that the Service Employees International Union,
Local 99 (SEIU), violated the Educational Employment Relations Act (EERA) 1 by: 	(1) failing
to file a grievance over Arteaga' s termination; (2) improperly calculating/ deducting his agency
fees; and (3) retaliating against him for attempting to decertify SEIU. The Board agent
dismissed each of the allegations for failure to state a prima facie case.
The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charges, SEIU's position statements, the Board agent's
warning and dismissal letters, and Arteaga' s appeal. Based on this review, the Board finds the
1EERA is codified at Government Code section 3540 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HUGO ARTEAGA,
Charging Party, 	Case No. LA-CO-1342-E
V. 	PERB Decision No. 1991
December 9, 2008	SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 99,
Respondent.
Appearance: Hugo Arteaga, on his own behalf.
Before McKeag, Rystrom and Dowdin Calvillo, Members.
DECISION
DOWDIN CAL VILLO, Member: This case is before the Public Employment Relations
Board (Board) on appeal by Hugo Arteaga (Arteaga) of a Board agent's dismissal (attached) of
his unfair practice charge. The charge alleged that the Service Employees International Union,
Local 99 (SEIU), violated the Educational Employment Relations Act (EERA) by: (1) failing
to file a grievance over Arteaga's termination; (2) improperly calculating/ deducting his agency
fees; and (3) retaliating against him for attempting to decertify SEIU. The Board agent
dismissed each of the allegations for failure to state a prima facie case.
The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charges, SEIU's position statements, the Board agent's
warning and dismissal letters, and Arteaga's appeal. Based on this review, the Board finds the
EERA is codified at Government Code section 3540 et seq.

Board agent's warning and dismissal letters to be a correct statement
of
the law and well
reasoned, and therefore adopts them as the decision
of
the Board itself.lf.2
ORDER
The unfair practice charge in Case No. LA-C0-1342-E
is
hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
Although the first paragraph of the dismissal letter did not list retaliation as one
of
Arteaga's allegations, the Board agent nonetheless analyzed that allegation thoroughly in the
Discussion section of the letter. Accordingly, this minor omission does not preclude the Board
from adopting the dismissal letter as part of its decision.
2
Board agent's warning and dismissal letters to be a correct statement of the law and well
reasoned, and therefore adopts them as the decision of the Board itse
ORDER
The unfair practice charge in Case No. LA-CO-1342-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Rystrom joined in this Decision.
Although the first paragraph of the dismissal letter did not list retaliation as one of
Arteaga's allegations, the Board agent nonetheless analyzed that allegation thoroughly in the
Discussion section of the letter. Accordingly, this minor omission does not preclude the Board
from adopting the dismissal letter as part of its decision.
2

STATE
OF
CALIFORNIA 	(
===========-
	==============~
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
P.E-R.B
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
17624 Lorne Street
Northridge, CA 91325
ARNOLD
SCHWARZENEGGER, Governor
August 18, 2008
Hugo Arteaga
Re: 	Hugo Arteaga
v.
SEIU Local 99
Unfair Practice Charge No. LA-CO-1342-E
DISMISSAL LETTER
Dear Mr. Arteaga:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 17, 2008 and was amended on May 28, August 8 and 14,
2008. Hugo Arteaga alleges that the SEIU Local 99 (Local 99 or Union) violated the
Educational Employment Relations Act (EERA or Act)1 by failing to file a grievance on his
behalf and by improperly calculating/deducting his agency fees.
Mr. Arteaga was informed by the attached Warning Letter dated July 17, 2008, that the above
referenced charge did not state a prima facie case. Mr. Arteaga was advised that, if there were
any factual inaccuracies or additional facts which would correct the deficiencies explained in
the Warning Letter, he should amend the charge. 	Mr. Arteaga was further advised that, unless
the charge was amended to state a prima facie case or withdrawn prior to July 28, 2008, the
charge would be dismissed.
On July 28, 2008, Mr. Arteaga requested an extension of time to file an amended charge. 	Mr.
Arteaga' s request was granted and this office received an amended charge on August 8, 2008.
Mr. Arteaga' s August 8 amended charge states in its entirety:
Once again[,] facts given by the [L]ocal 99 are incorrect. 	In
reference to Article V, yes it states that a grievance may be filed
by an employee or by the [U]nion on behalf of an employee;
however, it doesn't state that the [U]nion may ignore pertinent
information to avoid filing a claim. As an employee and a
[U]nion member, I do have rights to fair representation. The
[U]nion states that Ms. Bovell told me the [U]nion would not
pursue a grievance on my behalf. This information is incorrect
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
Los Angeles Regional Office
3530 Wilshire Blud., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
August 18, 2008
Hugo Arteaga
Re: 	Hugo Arteaga v. SEIU Local 99
Unfair Practice Charge No. LA-CO-1342-E
DISMISSAL LETTER
Dear Mr. Arteaga:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 17, 2008 and was amended on May 28, August 8 and 14,
2008. Hugo Arteaga alleges that the SEIU Local 99 (Local 99 or Union) violated the
Educational Employment Relations Act (EERA or Act)' by failing to file a grievance on his
behalf and by improperly calculating/deducting his agency fees.
Mr. Arteaga was informed by the attached Warning Letter dated July 17, 2008, that the above-
referenced charge did not state a prima facie case. Mr. Arteaga was advised that, if there were
any factual inaccuracies or additional facts which would correct the deficiencies explained in
the Warning Letter, he should amend the charge. Mr. Arteaga was further advised that, unless
the charge was amended to state a prima facie case or withdrawn prior to July 28, 2008, the
charge would be dismissed.
On July 28, 2008, Mr. Arteaga requested an extension of time to file an amended charge. Mr.
Arteaga's request was granted and this office received an amended charge on August 8, 2008.
Mr. Arteaga's August 8 amended charge states in its entirety:
Once again[,] facts given by the [Local 99 are incorrect. In
reference to Article V, yes it states that a grievance may be filed
by an employee or by the [U]nion on behalf of an employee;
however, it doesn't state that the [U]nion may ignore pertinent
information to avoid filing a claim. As an employee and a
[Ujnion member, I do have rights to fair representation. The
[Union states that Ms. Bovell told me the [U]nion would not
pursue a grievance on my behalf. This information is incorrect
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..

LA-CO-1342-E
August 18, 2008
Page 2
LA-CO-1342-E
August 18, 2008
Page 2
because Ms. Bovell told me that Jerome Gibbons would be filing
my grievance on my behalf. The [U]nion states the CBA permits
the District to lay off an employee who
is
unable to return to
work and who has exhausted his leave, (Article XII, Section
11.5). Again[,] this information is incorrect. The primary
physician's [sic] had released me on 6/18/07 to full duty with no
restrictions, which was well before my time had expired. [(]See
copy of doctor's note attached to this amendment.[)]
On July 9, 2007, I received a letter from the Personnel
Commission indicating my paid leave benefits have been
exhausted effective June 26, 2007. [(]See copy
of
letter
attached.[)] I had already been back to work and working full
duty since 6/18/07. All [of] these facts were given to the
[U]nion. Also, on July 23, 2007[,] around 10:00 a[.]m[.], I told
Blanca in Personnel Commission about the whole incident and
she said if I had turned in all my paperwork and was released
from the primary physician, then I should have never been
released from work. Even the District acknowledged that Truck
Operations made an error in terminating me.
In conclusion, the [U]nion has not represented me fairly
throughout the wrongful termination and is now giving wrong
information to PERB. Since Ms. Bovell told me that Jerome
Gibbons would be handling my grievance claim, I strongly
believed that the matter would be handled timely and
professionally. I attempted to take the proper steps in filing a
claim by beginning with the [U]nion. The [U]nion is my
representative between my employer and me. I am also attaching
a copy of a time line that was given to Ms. Bovell back on
7/22/07. Ms. Bovell was also given doctor's notes and other
crucial information.
Attached to the August 8 amended charge is a letter from Cedar-Sinai Medical Center dated
June 18, 2007, a letter from the Personnel Commission dated July 9, 2007, and a timeline
written by
Mr.
Arteaga.
On August 14, 2008, Mr. Arteaga filed a third amended charge. Mr. Arteaga's August 14
amended charge states in its entirety:
The fallowing [sic] is another contributor leading to the lack of
and misrepresentation from Local 99. I, Hugo Arteaga, am
involved in an attempt to separate from Local 99. After this
action was taken, the [U]nion retaliated by failing to fairly
represent me with my dealings with LAUSD.
because Ms. Bovell told me that Jerome Gibbons would be filing
my grievance on my behalf. The [U]nion states the CBA permits
the District to lay off an employee who is unable to return to
work and who has exhausted his leave, (Article XII, Section
11.5). Again[,] this information is incorrect. The primary
physician's [sic] had released me on 6/18/07 to full duty with no
restrictions, which was well before my time had expired. [(]See
copy of doctor's note attached to this amendment.[]
On July 9, 2007, I received a letter from the Personnel
Commission indicating my paid leave benefits have been
exhausted effective June 26, 2007. [(]See copy of letter
attached.[)] I had already been back to work and working full
duty since 6/18/07. All [of] these facts were given to the
[Union. Also, on July 23, 2007[,] around 10:00 a[.]m[.], I told
Blanca in Personnel Commission about the whole incident and
she said if I had turned in all my paperwork and was released
from the primary physician, then I should have never been
released from work. Even the District acknowledged that Truck
Operations made an error in terminating me.
In conclusion, the [Union has not represented me fairly
throughout the wrongful termination and is now giving wrong
information to PERB. Since Ms. Bovell told me that Jerome
Gibbons would be handling my grievance claim, I strongly
believed that the matter would be handled timely and
professionally. I attempted to take the proper steps in filing a
claim by beginning with the [Union. The [U]nion is my
representative between my employer and me. I am also attaching
a copy of a time line that was given to Ms. Bovell back on
7/22/07. Ms. Bovell was also given doctor's notes and other
crucial information.
Attached to the August 8 amended charge is a letter from Cedar-Sinai Medical Center dated
June 18, 2007, a letter from the Personnel Commission dated July 9, 2007, and a timeline
written by Mr. Arteaga.
On August 14, 2008, Mr. Arteaga filed a third amended charge. Mr. Arteaga's August 14
amended charge states in its entirety:
The fallowing [sic] is another contributor leading to the lack of
and misrepresentation from Local 99. I, Hugo Arteaga, am
involved in an attempt to separate from Local 99. After this
action was taken, the [U]nion retaliated by failing to fairly
represent me with my dealings with LAUSD.

LA-CO-1342-E	LA-CO-1342-E
August 18, 2008
Page 3
Discussion
1.	
The Duty of Fair Representation	1 . 	The Duty of Fair Representation
As stated in the July 17 Warning Letter, EERA requires that exclusive representatives fairly
represent each and every employee in the bargaining unit. 	(Gov. Code, § 3544.9.) This duty
of
fair representation extends to grievance handling. (Fremont Teachers Association (King)
(1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258 (Collins).) However, a breach of the duty of fair representation
is
not stated
merely because an exclusive representative declines to proceed or negligently forgets to file a
timely appeal
of
a grievance. 	(SEID Local 99 (Jones) (2007) PERB Decision No. 1882;
San Francisco Classroom Teachers Association, CTA/NEA (Bramell) (1984) PERB Decision
No. 430.) The Board has recognized an exception to this rule where the exclusive
representative's negligence foreclosed any remedy for the grievant. (Coalition of University
Employees (Buxton) (2003) PERB Decision No. 1517-H.)
Here, Mr. Arteaga alleges that Local 99 violated the duty
of
fair representation by forgetting to
file a grievance on his behalf. While Local 99 may have been negligent in forgetting to file a
grievance on Mr. Arteaga' s behalf, nothing Local 99 did, or failed to do, completely
extinguished the right of Mr. Arteaga to pursue his claim. On the contrary, Mr. Arteaga
stipulates that Article V, Section 1.0
of
the CBA provides that a grievance may be filed by an
employee or Local 99 on behalf of an employee. Accordingly, Mr. Arteaga has failed to
establish that Local 99 breached its duty
of
fair representation.
2. 	Agency Fees	Agency Fees
Mr. Arteaga' s August 8 and 14 amended charges are devoid of new facts and arguments
regarding his allegation that Local 99 incorrectly calculates/deducts his agency fees.
Accordingly, this allegation is dismissed for the reasons stated in the attached July 17 Warnin
Letter.
g
3. 	Retaliation
Mr. Arteaga's August 8 and 14 amended charges are devoid of new facts and arguments
regarding his allegation that Local 99 incorrectly calculates/deducts his agency fees.
Accordingly, this allegation is dismissed for the reasons stated in the attached July 17 Warning
Letter.
3. 	Retaliation
To demonstrate a violation of EERA section 3543.S(a), the charging party must show that:
(1)	(1) the employee exercised rights under EERA; (2) the respondent had knowledge of the exercise
of
those rights; and (3) the respondent imposed or threatened to impose reprisals, discriminated
or threatened to discriminate, or otherwise interfered with, restrained, or coerced the employees
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Although the timing of the respondent's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
Page 3
August 18, 2008
Discussion
As stated in the July 17 Warning Letter, EERA requires that exclusive representatives fairly
represent each and every employee in the bargaining unit. (Gov. Code, $ 3544.9.) This duty
of fair representation extends to grievance handling. (Fremont Teachers Association (King)
(1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258 (Collins).) However, a breach of the duty of fair representation is not stated
merely because an exclusive representative declines to proceed or negligently forgets to file a
timely appeal of a grievance. (SEIU Local 99 (Jones) (2007) PERB Decision No. 1882;
San Francisco Classroom Teachers Association, CTA/NEA (Bramell) (1984) PERB Decision
No. 430.) The Board has recognized an exception to this rule where the exclusive
representative's negligence foreclosed any remedy for the grievant. (Coalition of University
Employees (Buxton) (2003) PERB Decision No. 1517-H.)
Here, Mr. Arteaga alleges that Local 99 violated the duty of fair representation by forgetting to
file a grievance on his behalf. While Local 99 may have been negligent in forgetting to file a
grievance on Mr. Arteaga's behalf, nothing Local 99 did, or failed to do, completely
extinguished the right of Mr. Arteaga to pursue his claim. On the contrary, Mr. Arteaga
stipulates that Article V, Section 1.0 of the CBA provides that a grievance may be filed by an
employee or Local 99 on behalf of an employee. Accordingly, Mr. Arteaga has failed to
establish that Local 99 breached its duty of fair representation.
2.
To demonstrate a violation of EERA section 3543.5(a), the charging party must show that:
the employee exercised rights under EERA; (2) the respondent had knowledge of the exercise
of those rights; and (3) the respondent imposed or threatened to impose reprisals, discriminated
or threatened to discriminate, or otherwise interfered with, restrained, or coerced the employees
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Although the timing of the respondent's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following

LA-CO-1342-E
procedures
LA-CO-1342-E
August 18, 2008
Page4
additional factors must also be present: (1) the respondent's disparate treatment of the employee
(State
of
California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
respondent's departure from established 	and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
respondent's inconsistent or contradictory justifications for its actions (State
of
California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the respondent's
cursory investigation of the employee's misconduct; (5) the respondent's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) respondent animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the respondent's unlawful motive. (Novato, supra, PERB Decision No. 210; North
Sacramento School District, supra, PERB Decision No. 264.)
Evidence
of
adverse action
is
also required to support a claim of discrimination or reprisal under
the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No. 689.)
	In
determining whether such evidence
is
established, the Board uses an objective test and will not
rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee found
the [respondent's] action to be adverse, but whether a reasonable
person under the same circumstances would consider the action to
have an adverse impact on the employee's employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
While Novato, supra, PERB Decision No. 210, and its progeny concerned employer
discrimination, PERB has held that the same standard applies to allegations of employee
organization discrimination. (California School Employees Association & its Chapter 36
(Peterson) (2004) PERB Decision No. 1683.)
In the August 14 amended charge Mr. Arteaga asserts that Local 99 failed and/or refused to file
a grievance on his behalf because he is "involved in an attempt to separate from Local 99."
While attempting to decertify an exclusive representative is protected activity under EERA,
there is no evidence that Local 99 knew that Mr. Arteaga exercised his rights under EERA by
attempting to decertify. Consequently, Mr. Arteaga has not established that Local 99 failed to
file a grievance on his behalf because he attempted to decertify it. Consequently, this
allegation must be dismissed because Mr. Arteaga has not satisfied the elements set forth in
Novato, supra, PERB Decision No. 210.
August 18, 2008
Page 4
additional factors must also be present: (1) the respondent's disparate treatment of the employee
State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
respondent's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
respondent's inconsistent or contradictory justifications for its actions (State of California
Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the respondent's
cursory investigation of the employee's misconduct; (5) the respondent's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) respondent animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the respondent's unlawful motive. (Novato, supra, PERB Decision No. 210; North
Sacramento School District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal under
the Novato standard. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In
determining whether such evidence is established, the Board uses an objective test and will not
rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee found
the [respondent's] action to be adverse, but whether a reasonable
person under the same circumstances would consider the action to
have an adverse impact on the employee's employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
While Novato, supra, PERB Decision No. 210, and its progeny concerned employer
discrimination, PERB has held that the same standard applies to allegations of employee
organization discrimination. (California School Employees Association & its Chapter 36
(Peterson) (2004) PERB Decision No. 1683.)
In the August 14 amended charge Mr. Arteaga asserts that Local 99 failed and/or refused to file
a grievance on his behalf because he is "involved in an attempt to separate from Local 99."
While attempting to decertify an exclusive representative is protected activity under EERA,
there is no evidence that Local 99 knew that Mr. Arteaga exercised his rights under EERA by
attempting to decertify. Consequently, Mr. Arteaga has not established that Local 99 failed to
file a grievance on his behalf because he attempted to decertify it. Consequently, this
allegation must be dismissed because Mr. Arteaga has not satisfied the elements set forth in
Novato, supra, PERB Decision No. 210.

LA-CO-1342-E	LA-CO-1342-E
August 18, 2008
Page 5
Right to Appeal
Pursuant to PERB Regulations,2 Mr. Arteaga 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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Gov. Code, § 11020(a).) A document
is
also
considered "filed" when received by facsimile transmission before the close of business
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 95811-4124
(916)	(916) 322-8231
FAX: (916) 327-7960
If Mr. Arteaga files 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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
August 18, 2008
Page 5
Right to Appeal
Pursuant to PERB Regulations," Mr. Arteaga 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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Gov. Code, $ 11020(a).) A document is also
considered "filed" when received by facsimile transmission before the close of business
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 95811-4124
322-8231
FAX: (916) 327-7960
If Mr. Arteaga files 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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1342-E
August 18, 2008
LA-CO-1342-E
August 18, 2008
Page 6
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.
Sincerely,
TAMI R. BOGERT
General Counsel
By
___
,.._
_____
..__
___
_By.
Sean McKee
Regional Attorney
Attachment
cc: Jonathan Cohen, Attorney
Page 6
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.
Sincerely,
TAMIR. BOGERT
General Counsel
Sean Mckee
Regional Attorney
Attachment
cc: Jonathan Cohen, Attorney

/,,,...-~
STATE
OF
CALIFORNIA 	l
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blud., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7508
Fax: (213) 736-4901
July 17, 2008
Hugo Arteaga
17624 Lome Street
Northridge, CA 913 25
Re: 	Hugo Arteaga v. SEIU Local 99
Unfair Practice Charge No. LA-CO-1342-E
WARNING LETTER
Dear Mr. Arteaga:
ARNOLD
SCHWARZENEGGER,
Governoi"
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 17, 2008 and was amended on May 28, 2008. Hugo Arteaga
alleges that the SEIU Local 99 (Local 99) violated the Educational Employment Relations Act
(EERA)1 by failing to file a grievance on his behalf and by improperly deducting his agency
fees.
Background
Local 99 is the exclusive representative
of
a bargaining unit
of
operations and support services
employees at the Los Angeles Unified School District (LAUSD).2 Arteaga is employed by
LAU SD as a heavy truck driver and is a Local 99 bargaining unit member.
Local 99 and LAUSD are parties to a collective bargaining agreement (CBA). Article V of the
CBA sets forth Local 99's and LAUSD's grievance procedure. Article V, Section 1.0
of
the
CBA provides that a grievance may be filed by an employee or Local 99 on behalf of an
employee.
Local 99 has a grievance hotline. Griselda Bovell is the name of the Local 99 employee who
answers the grievance hotline and provides information to bargaining unit members.
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 Nothing in PERB case law requires a Board agent to ignore facts provided by the
Respondent and consider only the facts provided by the Charging Party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
Los Angeles Regional Office
July 17, 2008
Hugo Arteaga
Re: 	Hugo Arteaga v. SEIU Local 99
Unfair Practice Charge No. LA-CO-1342-E
WARNING LETTER
Dear Mr. Arteaga:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 17, 2008 and was amended on May 28, 2008. Hugo Arteaga
alleges that the SEIU Local 99 (Local 99) violated the Educational Employment Relations Act
(EERA)' by failing to file a grievance on his behalf and by improperly deducting his agency
fees.
Background
Local 99 is the exclusive representative of a bargaining unit of operations and support services
employees at the Los Angeles Unified School District (LAUSD)." Arteaga is employed by
LAUSD as a heavy truck driver and is a Local 99 bargaining unit member.
Local 99 and LAUSD are parties to a collective bargaining agreement (CBA). Article V of the
CBA sets forth Local 99's and LAUSD's grievance procedure. Article V, Section 1.0 of the
CBA provides that a grievance may be filed by an employee or Local 99 on behalf of an
employee.
Local 99 has a grievance hotline. Griselda Bovell is the name of the Local 99 employee who
answers the grievance hotline and provides information to bargaining unit members.
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.
Nothing in PERB case law requires a Board agent to ignore facts provided by the
Respondent and consider only the facts provided by the Charging Party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)

(
LA-CO-1342-E
July 17, 2008
Page 2
LA-CO-1342-E
July 17, 2008
Page 2
The original charge states in its entirety:
I was fired from work wrongfully and Local 99 did not return my
calls or help me file [a] grievance. After many attempts[,] I took
matters in to my [own] hand[s] and got my job back. 	[Local 99]
turned [its] back on me.
The amended charge states in relevant part:
On July 16, 2007[,] I began my lengthy journey of phone calls. 	I
spoke with Griselda about being terminated . . . . She was going
to talk with Truck Operations to get more details. I called her
almost on a daily basis to follow up. 	On [July 18, 2007,] she
spoke with Andrew Guerrero in Truck Op[erations] to see what
they were going to do and asked Andrew why I was given a
[s]eparation notice prematurely. I had no responses from Andrew
or Griselda on the process or steps needed. I was always told
they were waiting for responses from other people. 	I began to
make calls myself to Personnel Commissions to try and resolve
the matter after getting the run around.
After going thr[ough] the rehire process and getting my job back
in August, the Personnel Commissions department got involved
and had me reinstated rather than rehired. On [August 10, 2007,]
I spoke with Griselda again and stated [that] I wanted to file a
grievance. She told me the case would be passed to Jerome
Gibson to file the grievance. 	I attempted to call him several times
but [I] never received a return call. Therefore, a grievance was
never filed. 	This is how Local 99 turned [its] back on me. 	I was
never told I didn't have a case. 	I never received any resolution in
this matter.
There is also another issue regarding agency fees. 	I am an
agency fee payor [sic] that should be paying half the dues of a
union member. I have been an agency fee payor [sic] over the
last year and a half without resolution. 	I thought this deduction
was a [p]ost-tax deduction and half the dues of a union member,
in which I was told, resulted to 1.1 %.
Discussion
1. The Duty of Fair Representation	The Duty of Fair Representation
EERA requires that exclusive representatives fairly represent each and every employee in the
bargaining unit. (Gov. Code, § 3544.9.) This duty of fair representation extends to grievance
The original charge states in its entirety:
I was fired from work wrongfully and Local 99 did not return my
calls or help me file [a] grievance. After many attempts[,] I took
matters in to my [own] hand[s] and got my job back. [Local 99]
turned [its] back on me.
The amended charge states in relevant part:
On July 16, 2007[,] I began my lengthy journey of phone calls. I
spoke with Griselda about being terminated . . . . She was going
to talk with Truck Operations to get more details. I called her
almost on a daily basis to follow up. On [July 18, 2007,] she
spoke with Andrew Guerrero in Truck Op[erations] to see what
they were going to do and asked Andrew why I was given a
[sjeparation notice prematurely. I had no responses from Andrew
or Griselda on the process or steps needed. I was always told
they were waiting for responses from other people. I began to
make calls myself to Personnel Commissions to try and resolve
the matter after getting the run around.
After going through] the rehire process and getting my job back
in August, the Personnel Commissions department got involved
and had me reinstated rather than rehired. On [August 10, 2007,]
I spoke with Griselda again and stated [that] I wanted to file a
grievance. She told me the case would be passed to Jerome
Gibson to file the grievance. I attempted to call him several times
but [I] never received a return call. Therefore, a grievance was
never filed. This is how Local 99 turned [its] back on me. I was
never told I didn't have a case. I never received any resolution in
this matter.
There is also another issue regarding agency fees. I am an
agency fee payor [sic] that should be paying half the dues of a
union member. I have been an agency fee payor [sic] over the
last year and a half without resolution. I thought this deduction
was a [plost-tax deduction and half the dues of a union member,
in which I was told, resulted to 1.1%.
Discussion
1.
EERA requires that exclusive representatives fairly represent each and every employee in the
bargaining unit. (Gov. Code, $ 3544.9.) This duty of fair representation extends to grievance

LA-CO-1342-E
July 17, 2008
Page 3
LA-CO-1342-E
July 17, 2008
Page 3
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258 (Collins).) In order to state
a prima facie violation
of
the duty
of
fair representation, a bargaining unit member must show
that his or her exclusive representative's conduct was arbitrary, discriminatory or in bad faith.
In Collins, the 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 bargaining unit member:
"
...
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 or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
(Reed District Teachers Association, CTNNEA (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 (Buxton)
that, under federal precedent, an exclusive representative'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. (9th Cir. 1983) 749 F.2d 1270, at p. 1274;
see also, Robesky
v.
Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
The Board has held that an exclusive representative's case-handling error (e.g., missing the
deadline for filing a grievance) only constitutes negligence and does not rise to the level ofarbitrary conduct sufficient to establish a breach of the duty of fair representation. (California
School Employees Association (Ciaffoni, et al.) (1984) PERB Decision No. 427.) The Board
has recognized an exception to this rule where the exclusive representative's negligence
foreclosed any remedy for the grievant. (Buxton, supra, PERB Decision No. 1517-H.)
In SEIU Local 790 (Chan) (2007) PERB Decision No. 1892-M (Chan), the Board held that
allegations that an exclusive representative failed to return an employee's phone calls
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258 (Collins).) In order to state
a prima facie violation of the duty of fair representation, a bargaining unit member must show
that his or her exclusive representative's conduct was arbitrary, discriminatory or in bad faith.
In Collins, the 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 bargaining unit member:
". . . 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 or 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 (Buxton)
that, under federal precedent, an exclusive representative'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. (9th Cir. 1983) 749 F.2d 1270, at p. 1274;
see also, Robesky v. Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
The Board has held that an exclusive representative's case-handling error (e.g., missing the
deadline for filing a grievance) only constitutes negligence and does not rise to the level of
arbitrary conduct sufficient to establish a breach of the duty of fair representation. (California
School Employees Association (Ciaffoni, et al.) (1984) PERB Decision No. 427.) The Board
has recognized an exception to this rule where the exclusive representative's negligence
foreclosed any remedy for the grievant. (Buxton, supra, PERB Decision No. 1517-H.)
In SEIU Local 790 (Chan) (2007) PERB Decision No. 1892-M (Chan), the Board held that
allegations that an exclusive representative failed to return an employee's phone calls

LA-CO-1342-E	LA-CO-1342-E
July 17, 2008
Page4
regarding the employee's request that his exclusive representative arbitrate his grievance
is
not
sufficient evidence that the exclusive representative acted in a manner that was arbitrary,
discriminatory, or in bad faith.
Here, Arteaga contacted Local 99 and inquired about filing a grievance. Arteaga was informed
by Bovell that Gibson would contact Arteaga about his inquiry. Thereafter, neither Bovell nor
Gibson contacted Arteaga about his inquiry or returned his phone calls. Arteaga alleges that
the issue was never formally grieved because no one from Local 99 ever contacted him to
discuss his case.
Arteaga does not provide facts explaining why he did not file a grievance on his own behalf.
Article V, Section 1.0
of
the CBA provides that a grievance may be filed by an employee or
Local 99 on behalf of an employee. Thus, while Local 99 was negligent in not returning
Arteaga's phone calls, Local 99's failure to return Arteaga's phone calls or file a grievance on
Arteaga's behalf did not completely extinguish Arteaga's right to pursue his claim. (Chan,
supra, PERB Decision No. 1892-M; Buxton, supra, PERB Decision No. 1517-H.)
Accordingly, Arteaga has not demonstrated that Local 99's conduct rose to a level of arbitrary
conduct sufficient to establish a breach of the duty of fair representation.
2. 	Agency Fees
PERB Regulation 32615(a)(5)3 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."
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
Oak Unified School District (1991) PERB Decision No. 873.)
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the
amount of the fee by filing an unfair practice charge with PERB must first exhaust his or her
exclusive representative's agency fee appeal procedure unless the procedure is insufficient on
its face. 	(Teachers Association of Long Beach (Aragon, et al.) (1999) PERB Decision
No. 1311.) In this case, there is no evidence that Arteaga filed an agency fee appeal through
Local 99's agency fee appeal procedure. In addition, Arteaga has not alleged or shown that
Local 99's agency fee appeal procedure is insufficient on its face. 	Accordingly, this allegation
must be dismissed.
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 Second Amended Charge, contain
3 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
July 17, 2008
Page 4
regarding the employee's request that his exclusive representative arbitrate his grievance is not
sufficient evidence that the exclusive representative acted in a manner that was arbitrary,
discriminatory, or in bad faith.
Here, Arteaga contacted Local 99 and inquired about filing a grievance. Arteaga was informed
by Bovell that Gibson would contact Arteaga about his inquiry. Thereafter, neither Bovell nor
Gibson contacted Arteaga about his inquiry or returned his phone calls. Arteaga alleges that
the issue was never formally grieved because no one from Local 99 ever contacted him to
discuss his case.
Arteaga does not provide facts explaining why he did not file a grievance on his own behalf.
Article V, Section 1.0 of the CBA provides that a grievance may be filed by an employee or
Local 99 on behalf of an employee. Thus, while Local 99 was negligent in not returning
Arteaga's phone calls, Local 99's failure to return Arteaga's phone calls or file a grievance on
Arteaga's behalf did not completely extinguish Arteaga's right to pursue his claim. (Chan,
supra, PERB Decision No. 1892-M; Buxton, supra, PERB Decision No. 1517-H.)
Accordingly, Arteaga has not demonstrated that Local 99's conduct rose to a level of arbitrary
conduct sufficient to establish a breach of the duty of fair representation.
2. 	Agency Fees
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."
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
Oak Unified School District (1991) PERB Decision No. 873.)
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the
amount of the fee by filing an unfair practice charge with PERB must first exhaust his or her
exclusive representative's agency fee appeal procedure unless the procedure is insufficient on
its face. (Teachers Association of Long Beach (Aragon, et al.) (1999) PERB Decision
No. 1311.) In this case, there is no evidence that Arteaga filed an agency fee appeal through
Local 99's agency fee appeal procedure. In addition, Arteaga has not alleged or shown that
Local 99's agency fee appeal procedure is insufficient on its face. Accordingly, this allegation
must be dismissed.
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 Second Amended Charge, contain
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1342-E
July 17, 2008
Page 5
LA-CO-1342-E
July 17, 2008
Page 5
all the facts and allegations Arteaga wishes to make, and be signed under penalty of perjury.
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 an amended charge or withdrawal is not
received from Arteaga before July 28, 2008, the charge shall be dismissed. 	Questions
concerning this matter should be directed to me at the above telephone number.
Sincerely,
Sean McKee
Regional Attorney
SM
all the facts and allegations Arteaga wishes to make, and be signed under penalty of perjury.
The amended charge must have the case number written on the top right hand corner 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 an amended charge or withdrawal is not
received from Arteaga before July 28, 2008, the charge shall be dismissed. Questions
concerning this matter should be directed to me at the above telephone number.
Sincerely,
Sean Mckee
Regional Attorney
SM