Service Employees International Union, Local 1021 (Schmidt) (PERB 2080M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BARBARA SCHMIDT,

Charging Party, Case No. SF-CO-176-M
v. . PERB Decision No. 2080-M
SERVICE EMPLOYEES INTERNATIONAL November 24, 2009

UNION, LOCAL 1021,

Respondent.

Appearances: Law Offices of Randal M. Barnum by Randal M. Barnum, Attorney, for
Barbara Schmidt; Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 1021.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Barbara Schmidt (Schmidt) of a dismissal of an unfair practice
charge by a Board agent. The charge alleged that Service Employees International Union,
Local 1021 (SEIU) violated the Meyers-Milias-Brown Act (MMBA)! by abandoning
Schmidt’s grievances. Schmidt alleged that SEIU’s inaction with regard to her employment
concerns constituted a breach of SEIU’s duty of fair representation in violation of MMBA
section 3500.

The unfair practice charge alleges that SEIU breached its duty of fair representation by

failing to file grievances on behalf of Schmidt, abandoning grievances filed on behalf of

Schmidt and generally failing to take satisfactory action to protect Schmidt from numerous acts

* MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

of
alleged wrongdoing perpetrated by her employer, the Greater Vallejo Recreational District
(District). The Board agent dismissed numerous allegations
as
either untimely or beyond the
scope
of
PERB's jurisdiction. With regard to the remaining allegations, the Board agent held
that Sch.midt failed to demonstrate that SEIU' s conduct was either without rational basis
or
devoid
of
honest judgment. Accordingly, the Board agent dismissed the remainder
of
the
allegations for failure to state a prima facie case.
We have reviewed the entire record in this matter and find the warning and dismissal
letters well-reasoned, adequately supported by the record and in accordance with applicable
law. Accordingly, the Board hereby adopts the warning and dismissal letters (attached) as a
decision
of
the Board itself, subject to the following discussion regarding the applicability
of
Service Employees International Union, Local 221 (Meredith) (2008) PERB Decision
No. 1982 (Meredith) to the instant case.
DISCUSSION
On appeal, Schmidt claims that Meredith compels a finding that SEIU's inaction in this
case constitutes a breach
of
its duty
of
fair representation. In that case, the charging party
received a poor performance evaluation and was rejected on probation. The union failed to
provide any representation at either the evaluation meeting or the rejection on probation
meeting. 	Moreover, it appeared the charging party's union representative provided
representation to other District employees to the charging party's detriment. Later, when the
charging party sought to appeal his rejection on probation, the union again failed to provide
meaningful representation. In particular, the union only met briefly with the charging party on
two occasions and, following the second meeting, the union did not return the charging party's
calls.
2

The Board in Meredith explained that when a charge alleges that an exclusive
representative breached its duty
of
fair representation by failing to act on behalf
of
an
employee, PERB looks
to
whether "the cumulative actions
of
the exclusive representative,
considered in their totality, [are] sufficient to constitute a prima facie showing
of
an arbitrary
failure to fairly represent the employee." (Meredith, citing American Federation
of
State,
County and Municipal Employees, International, Council 57 (Dehler) (1996) PERB Decision
No. 1152-H.) A prima facie case may be established based on an overall pattern
of
conduct
even
if
any one action by the exclusive representative, standing alone, would not constitute a
breach
of
the duty
of
fair representation. (Ibid.)
Applying this legal framework, the Board found:
When viewed as a whole, the above alleged facts show that SEIU
made no effort to represent Meredith regarding his rejection on
probation despite Meredith's multiple attempts to enlist SEIU's
assistance. Under these circumstances, SEIU could not have
made an 'honest and reasonable determination' about the merits
of
Meredith's case.
Unlike the union in Meredith, SEIU did make an effort to represent Schmidt. For
example, SEIU wrote several letters on Schmidt's behalf and initiated at least one grievance.
In addition, an SEIU steward accompanied Schmidt to a "back to work" meeting when she
returned to work on January 10, 2008, and SEIU wrote and submitted the January 23, 2008,
letter regarding Schmidt's work assignment. Moreover, SEIU and Schmidt appeared to
in contact through at least March 10, 2008. Based on these facts, we find that SEIU was
responsive to Schmidt's complaints and that it did not unlawfully ignore or otherwise fail to
address Schmidt's concerns. Accordingly, we conclude Meredith does not compel a finding
that SEIU breached its duty of fair representation.
3

4
We, therefore, agree with the Board agent that Schmidt failed to allege a prima facie
case that SEIU breached its duty
of
fair representation and find the dismissal
of
this charge was
warranted.
ORDER
The unfair practice charge in Case No. SF-C0-176-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member Wesley joined in this Decision.
4

STATE OF CALIFORNIA 	( 	( 	ARNOLD
SCHWARZENEGGER,
Governor
PUBLIC EMPLOYMENT-RELATIONS BOARD
l
-<\.',Et-IT
AS-£	
'?,-.,,.0	
,-1,-/0 	San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
February
9,
2009
Barbara Schmidt
Re: 	Barbara Schmidt
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-176-M
DISMISSAL
Dear Ms. Schmidt:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 27, 2008. Barbara Schmidt (Ms. Schmidt or Charging Party)
alleges that SEIU Local 1021 (Union or Respondent) violated the Meyers-Milias-Brown
Act
(MMBA or Act) 1
by breaching its duty
of
fair representation. Charging Party is employed
by
the Greater Vallejo Recreation District (District or GVRD) and the Union is the exclusive
representative
of
the position in which she is employed.
Charging Party was informed in the attached Warning Letter dated January
8,
2009, that
certain allegations contained in the charge did not state a prima facie case. Charging Party was
advised that,
if
there were any factual inaccuracies or additional facts that would correct the
deficiencies explained in that letter, the charge should be amended. Charging Party was
further advised that, unless these allegations were amended to state a prima facie case or
withdrawn prior to January 16, 2009, the allegations would be dismissed.
The main concerns addressed in the Warning Letter included:
a)
the Charging Party's failure to
provide facts establishing the timeliness
of
her allegations; b) allegations that the Union failed
to assist Charging Party in her pursuit
of
extra-contractual matters for which there is no Union
duty
of
fair representation; and c) Charging Party's failure to provide sufficient facts upon
which PERB could base a finding that the Union acted arbitrarily, discriminatorily or in bad
faith.
On January 14, 2009, a first Amended Charge was filed. The Amended Charge contains a
number
of
attached documents. General Manager Shane McAffee is the highest ranking
manager at the District. Recreation Superintendent Phillip McCoy and Recreation Supervisors
Eileen Brown and Toni DeHaven are supervisors reporting to the General Manger. Charging
Party is a Recreation Coordinator. Prior to January 10, 2008, Charging Party reported to
Recreation Supervisor Eileen Brown. After January I 0, 2008, Charging Party was told to
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-176-M
February 9, 2009
Page 2
report directly to Recreation Superintendent, Phillip McCoy. Throughout the time period
of
this charge, Charging Party was in contact with a number
of
Union representatives, including:
Temporary Worksite Coordinators Gail Byrdsong and Kathy O'Neil, Worksite Coordinator
Marie Avincula,2 Union Steward Brad Nicolet and Union Representative Ian Arnold.
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through the Union's website. The grievance procedures outlined in the MOU
do
not provide
for final and binding arbitration. The MOU does not define what constitutes discipline
of
an
employee, and does not provide for progressive discipline
of
employees. It does state that
employees should be provided notice
of
disciplinary action, a description
of
the proposed
action to be taken, effective dates
of
the action, and an opportunity to respond before the
discipline is imposed. Indeed,
A unit member may respond to the action within ten (10) days
of
the receipt
of
the action.
	If
the unit member elects to respond in
person, a meeting shall be scheduled with the General Manger or
designee at which meeting the employee shall be afforded the
opportunity to respond to the proposed action. The unit member
is entitled to representation at this meeting. The General
Manager or designee may amend, modify, revoke or sustain any
or all
of
the charges. The General Manger or designee will
provide written notice
of
the unit member's right to appeal to an
Adjustment Board and the time within which that appeal must be
made. Appeals to the Adjustment Board must be filed in writing
within ten ( 10) working days
of
the receipt
of
the decision
of
the
General Manager.
A grievance is defined as the misinterpretation or misapplication or violation of the MOU.
The first step is for the employee to discuss the grievance with his or her immediate supervisor,
and give the supervisor five days to respond. The MOU does not specify whether the
supervisor's response must be in writing.
	If
the employee is dissatisfied with the response, the
employee may file a written grievance with the Superintendent, General Manager, or designee.
The written grievance must be made within 10 days
of
the supervisor's response or the date the
response was due, and must be signed by the employee and the Union president (or designee).
In her original charge, Charging Party alleged six separate instances vvhen she requested Union
assistance. The Amended Charge provides additional facts in support
of
each of these
allegations. Each
of
these is addressed below.
1.
The Union's failure to grieve a change in Charging Party's work hours.
This individual's name is spelled both "Avincula" and "Advincula" in various
attached documents. For the sake of consistency, the spelling, "Avincula" is adopted in this
letter.

SF-CO-176-M
February 9, 2009
Page 3
The original charge stated that Charging Party's hours were changed sometime in 2005. 	The
following facts were alleged in the Amended Charge.
On September 7, 2006, Charging Party was ordered to change the hours of operation sign
posted at the Foley Cultural Center (FCC). 	While other District properties would maintain
hours from 8:30 a.m. to 5:00 p.m., FCC v:ould be open from 9:00 a.m. until 6:00 p.m .. This
change meant that Charging Party would have to take a one-hour lunch rather than the thirty
minute lunch taken by employees assigned to work at other District locations, and work an
hour later than her coworkers at other locations.
Also on September 7, 2006, Charging Party sent a memo to the "SEIU/Mike" requesting a
review of her concerns about the change to her hours.
On May 25, 2007, Charging Party requested a transfer to the Vallejo Community Center
(VCC). The main purpose for this request was because the Coordinator position at VCC
worked from 8:30 a.m. to 5:00 p.m. with a 30 minute lunch.
On July 30, 2007, Union Worksite Organizer Marie Avincula filed a grievance over the
District's September 5, 2006 change to Charging Party's work hours. On August 1, 2007, the
District responded to Ms. Avincula, stating that the issue of Charging Party's hours had
already been resolved through an earlier grievance of the same issue, and that the most recent
filing would not be re-processed as a new grievance.
On August 8, 2007, there was some dispute between Charging Party and Ms. Avincula
regarding whether the District had made a timely response to the July 30 grievance. Ms.
A vincula believed that the District had responded in a timely manner, and Charging Party
believed that the District had not met the established time frame for responding to a grievance.
Charging Party believed that the District's failure to respond to a grievance should result in a
restoration of her former work hours.
On August 15, 2007, after learning that the VCC hours v:ould not be 8:30 a.m. to 5:00 p.m., as
she had expected, Charging Party withdrew her request for transfer.
During a meeting on August 16, 2007, with Ms. Brown, Ms. Brown informed Charging Party
that she would remain at FCC, the new Coordinator for VCC would be cross-trained at FCC.
She also stated that if Charging Party was planning to retire after her 50th birthday, she should
give the District at least three months' notice. 	Charging Party's notes from an all recreation
staff meeting on that same day state that she was singled out by Mr. McCoy and was
humiliated as a result.
On August 20, 2007, Charging Party was informed in writing by Mr. McAffee and Mr. McCoy
that she would be transferred to the VCC, effective August 23, 2007.
On August 21, 2007, Charging Party made a written request to "SEIU/Marie/Kris" to file a
grievance over an incident earlier that day, in which Mr. McAffee discussed Charging Party's

SF-CO-176-M
February
9,
2009
Page 4
I
work performance with another staff member. The staff member later repeated Mr.
McAffee's
statements to three board members, one
of
whom responded, "I know this is the employee who
has a grievance in."
2. 	Charging Party's return from Workers' Compensation leave.
Charging Party sustained a work-related injury on September 19, 2007. Her doctor authorized
her to return to work with no restrictions on January 10, 2008. On January 22, 2008, Charging
Party received a settlement check resolving her Workers' Compensation claims.
On Thursday, January 10, 2008, Charging Party was accompanied by Union Steward
BradNicolet to a "Back to Work" meeting with Mr. McAffee. At that meeting, Mr. McAffee
informed Charging Party that she would not be returned to her old position, but would retain
her salary and title. Instead, Charging Party would be working with special events, overseeing
contract classes and working on the class system. She would begin reporting directly to Mr.
McAffee, rather than to a Recreation Supervisor. Charging Party requested a written
jobdescription for this new assignment, but was told that one did not exist. Her title was notchanged. The hours for the new job assignment were 8:30 a.m. to 5:30 p.m., with possible
weekend assignments, when she had never been asked to work weekends before.
Charging Party and Mr. Nicolet expressed concerns that because Charging Party would nolonger be reporting to an intermediary supervisor, that she might be assigned duties out
of
her
class, and also expressed concerns that she was not returned to her former position when
herformer position was being left vacant. Charging Party stated her concern that the reassignment
was retaliatory in nature. The District's Activity Guide for Spring 2008 listed Charging Party
as a Recreation Coordinator. The District's Activity Guide for Summer 2008 did not list
Charging Party as a Recreation Coordinator.
3. Aggravation
of
Charging Party's Workers' Compensation injury.
Later on the day
of
January 10, 2008, Mr. McCoy gave Charging Party her first task pursuant
to the new assignment. The task was due to be completed by 8:30 a.m. the following Monday.
Because the 10th was a Thursday, Charging Party was given only Friday to complete the task.
Meanwhile, Charging Party was not given a computer passcode, and had to log-on with a
coworker's name and clearance. When she asked Mr. McCoy to explain one
of
the ten items
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After Charging Paiiy returned to work without restrictions on January 10, her previous injury
was aggravated by the assignment of new duties that had not been required of Charging Party
with her previous assignment. This resulted in her doctor placing her on modified duties from
January 16 through January 25, 2008. Her modifications included working a four hour day,
with no more than one hour per day ofrepetitive use of both hands and lifting no more than
five pounds.

SF-CO-176-M
February 9, 2009
Page 5
On January 22, 2008, Charging Party wrote a memo to "Gail/SEIU," requesting that the Union
send a memo to the District raising several concerns and demanding that Charging Party be
returned to her former assignment. On January 23, 2008, a temporary Worksite Coordinator,
Gail Byrdsong, wrote a letter to Mr. McAffee on behalf of Charging Party, raising concerns
about her new work assignment and the District's failure to comply with the modified duties
ordered by her doctor.
On January 30, 2008, Mr. McAffee responded to the Union's January 23 inquiry. 	In his
response, he justified Charging Party's new assignment stating that he believed the hours were
more to Charging Party's liking, the tasks were more suitable for her skill set, and the duties
were not so unlike those of her previous assignment that her doctor's restrictions were no more
able to be accommodated at one of the community centers than at her new assignment. The
Union's letter did not explicitly ask that Charging Party be returned to her former position, and
Mr. McAffee's response did not agree to return her to her former position.
4. Reprimand.
On January 14, 2008, Mr. McCoy wrote a memo regarding Charging Party's "unauthorized use
in CLASS/Completing programs." The memo acknowledges that this was something that Mr.
McCoy and Charging Party discussed when the error was discovered, that Charging Party did
not make the errors knowingly, and that she would not repeat the mistake in the future. 	The
memo directs Charging Party to "make every effort to use the CLASS system carefully in the
future to avoid costly errors," but does not identify any consequence for the present or future
failure to do so.
Charging Party's recollection of the conversation was that Mr. McCoy approached her not long
after she had asked him for clarification of the assignment he had given her upon her return to
work. He told her to figure it out, and she vvas obliged to search through the computer system
to find the information necessary to complete the assigned task. The unauthorized class
completions occurred during this time.
On January 16, 2008, Charging Party requested a meeting with Mr. McCoy, Mr. McAffee and
Ms. Byrdsong, in part to discuss the memo she received on January 14 from Mr. McCoy, but
also for the purpose of gaining more "direction/support" from her supervisors.
5 and 6. Ergonomics Stt1dy and Revised Work Restrictions.
According to Charging Party, while the duties in her old assignment included some computer
work, they also included other varied tasks so that Charging Party was able to move positions
frequently throughout the day. Assuming those working conditions to continue upon her return
from medical leave, her doctor did not recommend any workplace restrictions. Her new
assignment required her to sit at the computer almost exclusively, without much opportunity to
change physical position or engage in other activities throughout the day. These new
conditions exacerbated Charging Party's injuries, necessitating a second doctor's note and
some workplace restrictions which would not otherwise have been necessary.

SF-CO-176-M
February 9, 2009
Page 6
As noted above, the first doctor's note dated January 10, stated that Charging Party could
return to work with no restrictions, but required that an ergonomic evaluation be completed,
including the procurement
of
any new equipment deemed necessary. The ergonomic
evaluation recommended the purchase
of
a new chair, adjustable keyboard tray and ergonomic
keyboard for Charging Party.
The second doctor's note was issued on January 16, 2008. On that date, her doctor
placed
Charging Party on modified work from January 16 through January 25, 2008. During
this
period, Charging Party was restricted to the following working conditions: 	she was not
to
extend/flex her neck or reach above her shoulders; she could only occasionally use each
hand,
and could only lift/carry or push/pull up to five pounds. Her work day was further restricted to
four hours per day, 20 hours per week and no more than one hour per day total
of
repetitive use
of
both hands. 	The doctor's note also stated: "Please note:
	if
employer cannot accommodate
these restrictions, Barbara J Schmidt must be regarded as being unable to work for this period."
[Emphasis added.]
In the afternoon
of
January 16, Human Resources Administrator Kay Baughn instructed
Charging Party to make a copy
of
the January 16 doctor's note for Mr. McCoy and deliver
it
to
his office. Five minutes before the end
of
her shift on that day, Ms. Baughn informed
Charging Party that she should not work her scheduled shift on January 17, and that Mr.
McAffee would provide her further instructions on January
18
regarding the remainder
of
her
shifts while under the most recent medical restrictions.
On January 22, 2008, Human Resources Administrator Kay Baughn sent Charging Party a
notice that she was being placed on inactive status as
of
January 18, 2008, and that her dental
and life insurance would cease on January 31, 2008
if
she did not return to full active status
before then.
On January 23, 2008, Ms. Byrdsong sent a letter to Mr. McAffee addressing Charging
Party's
concern that since her return from medical leave on January l 0, the District had deliberately
assigned her to more difficult work at a less desirable location and with less desirable hours.
Ms. Byrdsong's letter also addressed the District's failure to accommodate Charging
Party's
doctor's medical restrictions from January 16-25. Ms. Byrdsong sent the letter to Mr. McAffee
by e-mail, and provided a courtesy copy
of
that e-mail to Charging Party.
Though not explicitly stated in the facts, it appears that Charging Party did not return to work
on January 25, the date her doctor's workplace restrictions were to have expired. Rather, it
appears that her doctor maintained the workplace restrictions after the initial date indicated on
the January 16 letter.
On January 30, 2008, Mr. McAffee responded to the January 23 letter. Essentially, Mr.
McAffee states that Charging Party was already informed that the decision to transfer her to a
different position at a different location with different hours was intended to accommodate her
more limited physical abilities while utilizing her skills to greater advantage and alleviating

SF-CO-176-M
February
9,
2009
Page 7
(
some
of
the concerns resulting from the late hours required at her previous position.
According to Mr. McAffee, the duties
of
her new assignment were "not dissimilar" to
those
in
her previous assignment.
Also on January 30, 2008, Ms. Byrdsong sent an e-mail message to Mr.
courtesy copies sent to both Mr. McCoy and Charging Party, requesting the District's response
to the January 23, 2008 letter and challenging the District's notice to Charging Party that
her
benefits would be reduced as a result
of
her inactive status.
McAffee, with
On January 31, 2008, Charging Party requested that Ms. Byrdsong continue assisting her with
her employment concerns, even after Ms. Avincula's expected return
as
the Worksite
Coordinator for District employees on February
1.
	Ms. Byrdsong replied to Charging
Party's
request and informed her that February 1 would be her last day as a Temporary Worksite
Coordinator for District employees.
On February 1 and 6, Charging Party sent e-mail messages to Ms. Byrdsong, requesting
an
update on the District's response to the Union's most recent letter. In an e-mail message dated
7:30 p.m. and 10:40 p.m. on February 6, 2008, and addressed to Ms. Byrdsong, Ms. Avincula
and three other unidentified individuals, Charging Party states that she and her husband will be
at the Union office in Fairfield, California before 10:00 a.m. on February
7,
"to receive
assistance from a SEIU 1021 representative."
Shortly after 11:00 p.m. on February 6, Ian Arnold, one
of
the recipients
of
Charging
Party's
e-
'mail, stated that Charging Party should schedule a meeting with Kathy O'Neil,
as
he would be
out
of
the office the next day and there may not be someone available to assist her
if
she
simply showed up at the office without a scheduled appointment.
It is not clear
if
Charging Party went to the Union office on the morning
of
February 7.
However, at 4:33 pm on February
7,
she sent an e-mail message to Mr. Arnold which states:
"Ian-----You informed me today that an appointment was set up for tomorrow 2-8-08 and yet
in your e-mail you direct me to set up an appointment. I will be in the Fairfield office
tomorrow at 10am."
In the evening on February 7, Charging Party received an e-mail message from Kathy O'Neil,
the new Temporary Worksite Coordinator for Solano County. In her e-mail message, Ms.
O'Neil states that she is unable to meet with Charging
Par--ty
until the next Tuesday, Febru.ary
12, but that she would be happy to meet with Charging Party at that time.
On February 8, Charging Party sent e-mail messages requesting to meet with Union President
Damita Davis-Howard, and Valerie McCan-Murrell, whose title is not provided. A meeting
was scheduled to take place in the morning of February 12, with Charging Party, Kathy O'Neil
and Damita Davis-Howard. It is not clear
if
that meeting ever took place.
On February 19, 2008, Charging Party sent e-mail messages to both Ms. Baughn and Ms.
A vincula. Each of these e-mail messages were courtesy-copied to a number of other

SF-CO-176-M
February 9, 2009
Page 8
individuals. 	In both e-mail messages, Charging Party requested additional information
'regarding a meeting scheduled for February 20, 2008.
On Feburary 20, Charging Party sent e-mail messages to Ms. Baughn, requesting information
regarding her right to take leave from her job under the federal Family Medical Leave Act
(FMLA).). ,Ms. Baughn responded that if Charging Party wished to apply for FMLA, she
should send a formal request to the General Manager and read District policy #2045. Charging
Party forwarded Ms. Bauhgn's e-mail responses to Ms. Avincula, stating that she was looking
forward to meeting with her on February 26, along with Ms. Avincula, Ms. O'Neil and Mr.
Arnold.
On February 24, Charging Party requested that Mr. McAffee "plac[e her] on FMLA as soon as
possible." This request was made by e-mail message, and courtesy copies were provided to
Ms. Avincula, Ms. DeHaven, Mr. Arnold and Ms. O'Neil.
On March 10, 2008, Charging Party spoke with Ms. Avincula. In their conversation, Charging
Party stated that she had provided the District with a firm retirement date, which appears to
have been April 1, and that she did so only because she did not trust that the grievance over her
Workers' Compensation concerns would result in a ruling in her favor.
On March 25, Mr. McAffee challenged the relevance of Charging Party's grievance, given her
announced retirement. Charging Party sent an e-mail response to Ms. Avincula on March 27,
2008, reminding her that her announced retirement date was intended as a precautionary
measure, and that she still wished to pursue the grievance process with the Union's assistance.
On April 2, Charging Party sent an e-mail message to Ms. Avincula stating, in relevant part:
I am very concerned on my grievance progress [sic] as I have not
heard from you/union on any up dates since Thursday, March 27,
2008. Plus, I sent you an e-mail request (March 27, 2008) and
you have not replied back.
On Friday, March 28, 2008, I went and seen [sic] the doctor. The
doctor still has me on 1/2 days with restrictions. I called
Superintendent and faxed & called (left message) to the HR
person on Friday, March 28, 2008 at 9:30am.
Please note: GVRD HR nor Superintendent never called me to
inform me if I was able to return back to work for 1/2 days or if
they had any position for me to work. This is the first
communications that I received from GVRD.
Where do we stand on the grievance process with GVRD/Shane
McAffee on setting up the meeting with a review committee?

(
SF-CO-176-M
February 9, 2009
Page9
I respectfully request to hear from you tomorrow and to set up a
meeting on the unions position in my matter.
On April 11, Charging Party sent an e-mail message to Ms. Avincula, with courtesy copies to
two others. The April 11 e-mail message states:
• 	It has been one week since I heard from you/SEIU on my
grievance progress [sic].
• 	Can you please give me any information?
• 	Please read the attached bold e-mail information from a
co-worker who works for GVRD at the North Vallejo
Community Center.
• 	I am very up set [sic] that GVRD/Shane sent an e-mail out
to all GVRD employees on my retirement.
• 	This is a privacy act on what is going on with me, I did
not hold a job that everyone needed to know if I was
working or not.
• 	What is this saying to the SEIU and SEIU members? (that
the union gave up on me/grievance and that everything
was dropped?)
• 	Does this not give you/SEIU the impression that
GVRD/Shane plans on not meeting with the Union on my
grievance?
• 	I am still waiting for a copy of the correspondences
that went back and forth with SEIU/you and
GVRD/Shane. [Emphasis in original.]
• 	Has SEIU/you and GVRD/Shane agreed on a resolution
that I am not aware of?
• 	Marie, I am in the dark and I would appreciate it if
you/SEIU could shade [sic] some light on this grievance?
• 	I respectfully request a reply no later than Tuesday, April
15, 2008 or SEIU/you will give me no chose [sic] but to
take further actions. 	Once again, I thank you for your
time and support in this matter. I look forward in hearing
from you/SEIU before or on Tuesday, April 15, 2008.
Attached to this e-mail message was a copy of an e-mail message Charging Party received
from a former coworker, informing her that her retirement had been announced by e-mail
message.
On May 1, 2008, Charging Party contacted Ms. Avincula asking for an update "on any action
that has been taken" on her behalf. This charge was filed on May 27, 2008.

SF-CO-176-M
February
9,
2009
Page
10
Discussion
( 	(
The attached January
8,
2009 Warning Letter explains that several
of
the concerns raised
by
Charging Party are beyond the scope
of
PERB
's
jurisdiction, either because they are untimely
or because they allege violations
of
statutes not administered by PERB. Charging Party's First
Amended Charge does not address these legal deficiencies. Accordingly, to the extent that
Charging Party's allegations are untimely or beyond the scope
of
PERB
's
jurisdiction,
they
are
hereby dismissed.
This does not resolve all
of
Charging Party's allegations, however. The attached January 8,
2009 Warning Letter also explains the standard applied by PERB to any facts alleged as
evidence
of
a breach
of
the duty
of
fair representation. That standard is that a charging party
must at a minimum include an assertion
of
facts from which it becomes apparent in what
manner the exclusive representative's action or inaction was without a rational basis or devoid
of
honest judgment. (International Association
of
Machinists (Attard) (2002) PERB Decision
No. 1474-M.) The burden is on the charging party to show how an exclusive representative
abused its discretion, and not on the exclusive representative to show how it properly exercised
its discretion. 	(United Teachers - Los Angeles (Wyler) (1993) PERB Decision No. 970.)
In her Amended Charge, Charging Party establishes that she has been in close contact with her
Union representatives throughout the period from her return from a medical leave
of
absence in
2007 until a few weeks before she filed the 01iginal unfair practice charge. One
of
the
concerns raised by Charging Party is that the constant turn-over
of
employees within SEIU has
resulted in disrupted service to SEIU members, and especially to Charging Party. During this
period she has worked off and on with the regular worksite coordinator, Marie Avincula, and
during periods
of
her absence, Charging Party was assisted by Temporary Worksite
Coordinators Gail Byrdsong and Kathy O'Neil. According to Charging Party, she met with
Union representatives who assured her that they were taking action on her complaints,
but
no
action was taken.
The facts provided by Charging Party tend to establish that the Union was responsive to some
of
Charging Party's concerns. For example, Charging Party alleges in the original charge that
the Union never took action on her behalf when the District changed her work hours without
notice. 	However, the Amended Charge includes a July 30, 2007 letter from Ms. Avincula
titled, "Grievance - Change of Work Hours." The District responded to the grievance the next
day. Indeed, according to the District, this issue had already been the subject of a grievance by
the Union.
Charging Party also alleges that after she received a letter from her supervisor "for failing at
[her] job," the Union did nothing. The letter in question is the January 14 memo from Mr.
McCoy. 	It is not clear from the face of the memo that it satisfies the MOU's definition
of
discipline. There is no proposed adverse employment action to be taken on the part of the
District and the memo does not contain a statement that the unit member has the right to
respond to any charges lodged in the memo.

SF-CO-176-M
February 9, 2009
Page
11
(
Assuming the memo could be considered discipline, Charging Party had the right, under
the
terms
of
the MOU, to respond to discipline and to elect to respond in person. Charging
Party
responded to the memo in writing on January 16, 2008, and requested a meeting with Mr.
McCoy and Mr. McAffee as soon as possible. Her response to the January 14 memo was
made
on
the same day that her doctor ordered significant workplace restrictions be implemented
to
prevent her further injury. 	On January 23, the Union sent a letter to the District which
addressed a number
of
concerns regarding the new assignment following Charging
Party's
January 10 return from a medical leave
of
absence.
Charging Party also alleges that the Union failed to take any action on her
behalf
in response to
the District's placing her on inactive status as
of
January 18, 2008. However, the District
acknowledged in a March 25 letter from Mr. McAffee that the above-described concerns
were
the subject
of
a grievance when he questioned the continuing relevance
of
the grievance
given
Charging Party's retirement from the District.
As noted above and in the Warning Letter, in order to establish a breach
of
the duty
of
fair
representation, Charging Party must provide facts from which it becomes apparent in
what
manner the exclusive representative's action or inaction was without a rational basis or devoid
of
honest judgment. (International Association
of
Machinists (Attard), supra, PERB Decision
No. 1474-M.) Furthermore, there is no duty
of
fair representation owed to a unit member
unless the exclusive representative possesses the exclusive means
by
which such an employee
can obtain a particular remedy. (San Francisco Classroom Teachers ,A~ssociation (Chestangue)
(1985) PERB Decision No. 544.) The contract's grievance provision does not provide for final
and binding arbitration. Nor does it appear to cover Workers' Compensation-related concerns.
Nevertheless, facts provided in the Amended Charge tend to indicate that the Union did
respond to Charging Party's requests for assistance, and wrote several letters and initiated at
1
lv
""ast
fnr~
gn·.
"'Van°es on her behalf	
11	
UTPrP.	
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....,	
1 	• .J.l...J..	
Llmr.ng	v 	the i:JU..UJV....,i..	
m,h~=r>i-g arld	
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1.1..J.ng
Party's concerns about the District's failure to accommodate her physical limitations in the
workplace. The facts provided in the Amended Charge do not establish that Charging
Party
was ignored
by
the Union or that it failed to address her concerns. Rather, it appears from the
facts that the Union transferred Charging Party's case to each successor Worksite Coordinator,
and that each Worksite Coordinator met with Charging Party on at least one occasion, several
of
which meetings resulted in letters or grievances being sent to the District. Based on the
facts provided, it is unclear in what manner the Union's assistance to Charging Party was
without a rational basis or devoid
of
honest jud6rnent.
Therefore, the allegations which fail to state a prirna facie case are hereby dismissed based on
the facts and reasons set forth in the January 8, 2009 Warning Letter.

SF-CO-176-M
February 9, 2009
Page 12
Right to Appeal
(
Pursuant to PERB Regulations,3 Charging Party 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 Government Code section 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. (Regulation 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) 322-8231
FAX: (916) 327-7960
If
Charging Party 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
senrice
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).)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-176-M
February
9,
2009
Page
13
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
knovvn, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 3213 2.)
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
BJ
--,--,,....,..------.........------
Al1ci a Clement
Regional Attorney
Attachment
cc: Damita Davis-Howard, President
AC

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
January 8, 2009
Barbara Schmidt
Re: 	Barbara Schmidt v. SEIU Local 1021
Unfair Practice Charge No. SF-CO-176-M
WARNING LETTER
Dear Ms. Schmidt:
(
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 27, 2008. Barbara Schmidt (Ms. Schmidt or Charging Party)
alleges that the SEIU Local 1021 (Union or Respondent) violated the Meyers-Milias-Brown
Act (MMBA or Act) 1 by breaching its duty of fair representation.
Charging Party is employed by the Greater Vallejo Recreation District (District), which is a
subdivision of the City of Vallejo and a public agency as defined by the MMBA. The Union is
Charging Party's exclusive representative.2
Specifically, Charging Party alleges as follows. The District changed her work hours in 2005
but the Union failed to file a grievance on time. Six months later she wanted to file a
grievance concerning the same allegations but the Union refused, and they also failed to file
NLRB charges at her request. She later went to the Union with a complaint about the
District's hiring practices but nothing happened. On an unspecified date, she was transferred
to a different facility that was run-down and dirty. 	She complained to the Union but it did not
fiie a grievance.
On September 26, 2007, Charging Party took a leave of absence from work due to a bulging
disk in her back. In January 2008, Charging Party won a Workers' Compensation case, but the
Union did not file a grievance on her behalf. 	On January 10, 2008, she returned from sick
leave with no medical restrictions. Despite the lack of restrictions, Charging Party was not
returned to her former position but was assigned to a newly created job with new hours, new
work location and new supervisor. She requested, but was not given a description of the new
job.
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.
2 The charge does not include Charging Party's title or position for the District.

SF-CO-176-M
January 8, 2009
Pa$e 2
(
On an unspecified date, Charging Party filed a new Workers' Compensation claim. She claims
that the District's General Manager retaliated against her for filing the claim, and that the
Union did not file a grievance on her behalf.
On an unspecified date, Charging Party was reprimanded at the new job and the Union again
failed to file a grievance on her behalf. Additionally, Charging Party asserts that the District
failed to comply with an ergonomics study and again, the Union failed to take action on her
behalf.
On an unspecified date, Charging Party was verbally reprimanded by a supervisor for asking
for assistance from co-workers regarding a new computer program that had been installed
during a period of her absence from work, and on which she had not been formally trained.
She complained to the Union that the employer's reprimand constituted verbal harassment and
was creating a hostile work environment. In response, the Union wrote a memo, but did not
file a grievance.
On January 16, 2008, Charging Party's doctor ordered her to work only half days as a result of
the District's failure to comply with an ergonomic study that had been conducted to address
Charging Party's Workers' Compensation claims. Even after her doctor faxed a medical
release directly to her supervisor, her supervisor refused to release her for the remainder of her
shift. At the end of that day, a District Human Resources officer informed Charging Party that
she should not return to work for the remainder of the week. The District docked her for the
four hours she was scheduled to work for the remainder of the week. She informed the Union
of this fact, but again, no action was taken on her behalf.
On the basis of the above-alleged facts, Charging Party filed claims with the Department of
Fair Employment and Housing. Although the District has expressed interest in settling these
claims, Charging Party alleges that the Union still has made no effort to assist her with these
concerns.
Discussion
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. 1 State of California 1De- artment of Food and A 	·culture (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere iegai conclusions are not sufficient to state a prima facie case. (fbid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No~ 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice

SF-CO-176-M
January 8, 2009
Page 3
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.) The statute of limitations on an alleged breach of the duty of fair
representation begins to rJ.n \vhen the charging party knevv or should have k.11ovvn that further
assistance from the union was unlikely. (IUOE Local 501 (Reich) (1986) PERB Decision No.
591.)
While the MMBA does not expressly impose a statutory duty of fair representation upon
employee organizations, the courts have held that "unions owe a duty of fair representation to
their members, and this requires them to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4th
1213.) In Hussey, the court further held that the duty of fair representation is not breached by
mere negligence and that a union is to be "accorded wide latitude in the representation of its
members ... absent a showing of arbitrary exercise of the union's power."
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty of fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
in such cases, including Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171).
There is no duty of fair representation owed to a unit member unless the exclusive
representative possesses the exclusive means by which such an employee can obtain a
particular remedy. (San Francisco Classroom Teachers Association (Chestangue) (1985)
PERB Decision No. 544.) The general rule is that when a bargaining unit member is free to
represent themselves or hire an attorney to pursue their claim, the union is not bound by the
duty of fair representation. 	(CSEA and its Chapter 130 (Simpson) (2003) PERB Decision No.
1550.) This is especially true when the claims involve matters that are extra-contractual or the
enforcement of state or federal statutes. (California School Employees Association (Garcia)
(2001) PERB Decision No. 1444.)
1	\ /ith regard to vvhen "mere negligence" might constitute arbitrary conduct, the Board obserled
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. (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.)
Additionally, while the duty of fair representation extends to grievance handling by the
exclusive representative (Fremont Teachers Association (King) (1980) PERB Decision No.

SF-CO-176-M
January
8,
2009
Page 4
125), a reasonable decision not to pursue a grievance, regardless
of
the merits
of
the grievance,
is not a violation
of
the duty
of
fair representation. (California State Employees Association
(Calloway) (1985) PERB Decision No. 497.)
Thus, in order to state a prima facie violation
of
the duty
of
fair representation under the
:M1vfBA,
a charging party must at a minimum include an assertion
of
facts from
'vvhich
it
becomes apparent in what manner the exclusive representative's action or inaction was
without
a rational basis or devoid
of
honest judgment. (International Association
of
Machinists
(Attard), supra, PERB Decision No. 1474-M.) The burden is on the charging party to
show
how
an exclusive representative abused its discretion, and not on the exclusive representative
to show how it properly exercised its discretion. (United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Many
of
the concerns raised by Charging Party appear to be related to her Workers'
Compensation claims. As noted above, where a member is free to pursue an extra-contractual
matter on their own, like her claims to the Department
of
Fair Employment and Housing, and
her claims for workers' compensation benefits, the Union does not have a duty to represent the
employee. Indeed, it appears that Charging Party has already pursued her rights under
the
State's anti-discrimination and workers' compensation statutes.
Also noted above, the burden is on the Charging Party to provide facts upon which a complaint
for breach
of
the duty
of
fair representation cari be based. In the present charge, Charging
Party notes that she made the Union aware
of
her concerns, but does not always provide dates
when she did so, and does not give the name
of
any Union Representative to whom she spoke.
Nor does she state whether the Union responded to her concerns. As explained above,
the
mere fact that the Union did not file a grievance on her behalf does not establish that the Union
breached the duty
of
fair representation.
In order for PERB to find a breach
of
the duty
of
fair representation, the charge must include
facts demonstrating that the Union's decision not to pursue a grievance on Charging
Party's
h=hnl+'n,a~	
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regarding the manner in which Charging Party requested the Union's assistance, the names
of
Union Representatives with whom Charging Party communicated, the dates upon which she
sought the Union's assistance, and the response,
if
any, from Union Representatives. In the
absence
of
these facts, PERB is unable to determine whether the concerns raised by Charging
Par(y were the types
of
concerns over
vvhich
the Union has the duty to take action or explain its
decision not to act, or conversely, whether the Union made a rational decision not to file a
grievance on Charging Party's behalf. These facts are also necessary in order for PERB to
distinguish between merely negligent behavior on the part
of
the Union which is not a violation
of
the Act, and arbitrary, discriminatory or bad faith conduct on the part of the Union which is
a violation of the Act.
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, Charging Party may amend the charge. The amended charge should be

SF-CO-176-M
January 8, 2009
Page 5
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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before January 16, 2009, PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Alicia Clement
Regional Attorney
AC