International Brotherhood of Electrical Workers, Local 1245 (Gallardo) (PERB 2146M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC LEE GALLARDO,
Charging Party,
v .
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1245,
Respondent.
ERIC LEE GALLARDO,
Charging Party,
V.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 1245,
Respondent.
Case No. SA-CO-83-M
PERB Decision No. 2146-M
December 7, 2010
Case No. SA-CO-83-M
PERB Decision No. 2146-M
December 7, 2010
Appearance:	Appearance: Eric Lee Gallardo, on his own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
Eric Lee Gallardo, on his own behalf.
DECISION	DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric Lee Gallardo (Gallardo) of a Board agent's dismissal of his
unfair practice charge. As amended, the charge alleged that the International Brotherhood of
Electrical Workers, Local 1245 (IBEW) breached its duty of fair representation in violation of
the Meyers-Milias-Brown Act (MMBA)
WESLEY, Member: This case is before the Public Employment Relations Board
1 when it failed to properly represent Gallardo
regarding his grievance. The Board agent dismissed the charge for failure to state a prima
facie case.
the Meyers-Milias-Brown Act (MMBA)' when it failed to properly represent Gallardo
The Board has reviewed the dismissal and the record in light of Gallardo' s appeal and
the relevant law. Based on this review, the Board affirms the dismissal of the charge as
discussed below.
The Board has reviewed the dismissal and the record in light of Gallardo's appeal and
the relevant law. Based on this review, the Board affirms the dismissal of the charge as
discussed below.
1 The MMBA is codified at Government Code section 3500 et seq.	The MMBA is codified at Government Code section 3500 et seq.
Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.
(PERB or Board) on appeal by Eric Lee Gallardo (Gallardo) of a Board agent's dismissal of his
unfair practice charge. As amended, the charge alleged that the International Brotherhood of
Electrical Workers, Local 1245 (IBEW) breached its duty of fair representation in violation of
regarding his grievance. The Board agent dismissed the charge for failure to state a prima
facie case.

BACKGROUND	BACKGROUND
Gallardo is employed as a public works maintenance worker by the City of Redding
(City) and is in the bargaining unit represented by IBEW. In November 2009,
Gallardo is employed as a public works maintenance worker by the City of Redding
2 the City
imposed a disciplinary demotion on Gallardo because he used his cell phone while working
during a traffic flagging assignment. Gallardo filed a grievance alleging the discipline was
excessive when compared to the discipline imposed on other employees for other types of
safety violations.
(City) and is in the bargaining unit represented by IBEW. In November 2009, the City
On December 3, Gallardo's supervisor, Dave Rader (Rader), superintendent of the
Transportation and Engineering Department, met with Gallardo and IBEW Shop Steward Matt
Cervenka (Cervenka) to discuss the grievance. Gallardo felt threatened and intimidated by
some of Rader's comments. The next day, Gallardo requested that Cervenka provide a written
statement verifying the comments made by Rader. Cervenka told Gallardo he did not view the
comments as threatening and declined to provide a written statement.
On December 3, Gallardo's supervisor, Dave Rader (Rader), superintendent of the
Transportation and Engineering Department, met with Gallardo and IBEW Shop Steward Matt
Cervenka (Cervenka) to discuss the grievance. Gallardo felt threatened and intimidated by
some of Rader's comments. The next day, Gallardo requested that Cervenka provide a written
statement verifying the comments made by Rader. Cervenka told Gallardo he did not view the
comments as threatening and declined to provide a written statement.
On December 4, Gallardo contacted IBEW Senior Business Representative Ray
Thomas (Thomas) to request that Cervenka be required to provide a written statement.
On December 4, Gallardo contacted IBEW Senior Business Representative Ray
3
Thomas informed Gallardo that he had talked with Cervenka and was aware that Cervenka did
not believe Rader' s comments were threatening. Thomas and Gallardo also discussed
Gallardo's grievance. Thomas was set to meet with Brian Crane (Crane), director of
Thomas (Thomas) to request that Cervenka be required to provide a written statement.'
Thomas informed Gallardo that he had talked with Cervenka and was aware that Cervenka did
not believe Rader's comments were threatening. Thomas and Gallardo also discussed
Gallardo's grievance. Thomas was set to meet with Brian Crane (Crane), director of
2 Unless otherwise noted, all dates hereafter refer to 2009.	Unless otherwise noted, all dates hereafter refer to 2009.
2
3 The charge alleges that IBEW' s website provides guidance to its shop stewards,
including the following:
The charge alleges that IBEW's website provides guidance to its shop stewards,
When investigating a complaint, it is important to take notes.
This is especially true if discipline may be involved. A detailed
written record that can be made available to higher levels of the
grievance procedure could mean the difference between a
successful defense based on facts, and a failed defense based on
faulty memory ....
When investigating a complaint, it is important to take notes. . . .
This is especially true if discipline may be involved. A detailed
written record that can be made available to higher levels of the
grievance procedure could mean the difference between a
successful defense based on facts, and a failed defense based on
faulty memory . . . .
2
imposed a disciplinary demotion on Gallardo because he used his cell phone while working
during a traffic flagging assignment. Gallardo filed a grievance alleging the discipline was
excessive when compared to the discipline imposed on other employees for other types of
safety violations.
including the following:

transportation and engineering, for the next level grievance meeting. A series of emails
between Gallardo and Thomas followed. 	Thomas continued to refuse to require Cervenka to
prepare a written statement.
transportation and engineering, for the next level grievance meeting. A series of emails
On December 10, Thomas notified Gallardo by letter and email that following his
meeting with Crane, IBEW had decided not to pursue Gallardo's grievance further. 	The letter
stated, in relevant part:
On December 10, Thomas notified Gallardo by letter and email that following his
meeting with Crane, IBEW had decided not to pursue Gallardo's grievance further. The letter
stated, in relevant part:
Subsequent to my meeting with Director Crane, and based on the
facts of the case, I have determined that the disciplinary demotion
as outlined in Director Crane's 'Notice of Demotion' internal
communication to you dated November 11, 2009 was for just
cause.	cause.
Subsequent to my meeting with Director Crane, and based on the
facts of the case, I have determined that the disciplinary demotion
as outlined in Director Crane's 'Notice of Demotion' internal
communication to you dated November 11, 2009 was for just
Your disregard for the safety of your co-workers and the public
while you utilized your personal cellular phone during a traffic
flagging operation on October 23, 2009 violated both City of
Redding Street Division Handbook Policies and Work Rules
(Personal Electronic Devices), and City Personnel Policies (17.60
C #5, and 17.60 B #10).
Your disregard for the safety of your co-workers and the public
Your disciplinary demotion grievance is settled without
adjustment.
Your disciplinary demotion grievance is settled without
Gallardo responded to Thomas that he disagreed with the resolution of his grievance
and asserted that IBEW failed to adequately compare his disciplinary action with that of
another employee disciplined for other safety violations. Gallardo also continued to demand
that Cervenka provide a written statement.
Gallardo responded to Thomas that he disagreed with the resolution of his grievance
and asserted that IBEW failed to adequately compare his disciplinary action with that of
another employee disciplined for other safety violations. Gallardo also continued to demand
that Cervenka provide a written statement.
Subsequently, Gallardo contacted IBEW Staff Attorney Jenny Marston (Marston).
Marston also refused to direct Cervenka to prepare a statement and she agreed with Thomas'
resolution of Gallardo' s grievance.
Subsequently, Gallardo contacted IBEW Staff Attorney Jenny Marston (Marston).
Marston also refused to direct Cervenka to prepare a statement and she agreed with Thomas'
resolution of Gallardo's grievance.
3
The Board agent concluded that the charge did not state a prima 	case, finding no
evidence that IBEW acted in an arbitrary, discriminatory or bad faith matter in violation of its
duty of fair representation.
The Board agent concluded that the charge did not state a prima facie case, finding no
3
between Gallardo and Thomas followed. Thomas continued to refuse to require Cervenka to
prepare a written statement.
while you utilized your personal cellular phone during a traffic
flagging operation on October 23, 2009 violated both City of
Redding Street Division Handbook Policies and Work Rules
(Personal Electronic Devices), and City Personnel Policies (17.60
C #5, and 17.60 B #10).
adjustment.
evidence that IBEW acted in an arbitrary, discriminatory or bad faith matter in violation of its
duty of fair representation.

On appeal, Gallardo continues to make the same arguments, asserting that IBEW did
not properly consider evidence of lesser discipline imposed on another employee for safety
violations.
On appeal, Gallardo continues to make the same arguments, asserting that IBEW did
DISCUSSION	DISCUSSION
Gallardo has alleged that IBEW breached its duty of fair representation in its grievance
representation. 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 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.
Gallardo has alleged that IBEW breached its duty of fair representation in its grievance
The duty of fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125;
United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima facie violation, a charging party must show that the respondent's conduct was arbitrary,
discriminatory or in bad faith. 	In United Teachers of Los Angeles (Collins), supra, the Board
stated:
The duty of fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125;
United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima facie violation, a charging party must show that the respondent's conduct was arbitrary,
discriminatory or in bad faith. In United Teachers of Los Angeles (Collins), supra, 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.]
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.]
4
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.
A union may exercise its discretion to determine how far to
4
not properly consider evidence of lesser discipline imposed on another employee for safety
violations.
representation. 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 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.
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.

In order to state a prima facie case of arbitrary conduct violating the duty of fair
representation, a charging party:
In order to state a prima facie case of arbitrary conduct violating the duty of fair
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 rationale [sic]
basis or devoid of honest judgment.
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 rationale [sic]
basis or devoid of honest judgment.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
(Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9,
In deciding whether this standard is met, PERB does not determine whether the union's
decision is correct but whether it "had a rational basis, or was reached for reasons that were
arbitrary or based upon invidious discrimination." (Sacramento City Teachers Association
(Fanning, et al.) (1984) PERB Decision No. 428.)
In deciding whether this standard is met, PERB does not determine whether the union's
decision is correct but whether it "had a rational basis, or was reached for reasons that were
arbitrary or based upon invidious discrimination." (Sacramento City Teachers Association
(Fanning, et al.) (1984) PERB Decision No. 428.)
5
Thomas discussed the grievance with Gallardo, including Gallardo's assertions that the
discipline was excessive. Thomas then met with the department director and considered the
applicable policies and contract provisions. Based on his review, Thomas concluded that the
City's actions were justified. Although Gallardo may not agree with IBEW's decision not to
pursue the grievance, the charge does not demonstrate that Thomas' decision was without a
rational basis, or was arbitrary or based on invidious discrimination.
Thomas discussed the grievance with Gallardo, including Gallardo's assertions that the
it	Gallardo also asserted that IBEW breached its duty when 	refused his requests to
prepare a written statement concerning the meeting with Gallardo's supervisor. Absent
evidence of arbitrary, discriminatory or bad faith conduct, a union's decision to conduct its
representation in a manner contrary to the wishes of a bargaining unit employee, does not
violate the duty of fair representation. ( United Teachers-Los Angeles (Simms) (1992) PERB
Decision No. 932; California Faculty Association (Pomerantsev) (1988) PERB Decision
No. 698-H.) The charge does not provide evidence that the refusal to prepare a written
statement was arbitrary, discriminatory or in bad faith. 	The shop steward told Gallardo he did
Gallardo also asserted that IBEW breached its duty when it refused his requests to
5
representation, a charging party:
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
discipline was excessive. Thomas then met with the department director and considered the
applicable policies and contract provisions. Based on his review, Thomas concluded that the
City's actions were justified. Although Gallardo may not agree with IBEW's decision not to
pursue the grievance, the charge does not demonstrate that Thomas' decision was without a
rational basis, or was arbitrary or based on invidious discrimination.
prepare a written statement concerning the meeting with Gallardo's supervisor. Absent
evidence of arbitrary, discriminatory or bad faith conduct, a union's decision to conduct its
representation in a manner contrary to the wishes of a bargaining unit employee, does not
violate the duty of fair representation. (United Teachers-Los Angeles (Simms) (1992) PERB
Decision No. 932; California Faculty Association (Pomerantsev) (1988) PERB Decision
No. 698-H.) The charge does not provide evidence that the refusal to prepare a written
statement was arbitrary, discriminatory or in bad faith. The shop steward told Gallardo he did

not view the statements as threatening and he declined to provide his observations in writing.
Furthermore, PERB does not have jurisdiction over the internal affairs of an employee
organization unless there is evidence of a substantial impact on the employer-employee
relationship. (Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106; California State Employees Association (Hutchinson, et al.) (1998) PERB
Decision No. 1304-S.) The charge does not provide evidence that IBEW's conduct here had a
substantial impact on Gallardo's relationship with his employer. Accordingly, the charge does
not state a prima facie violation of the duty of fair representation.
not view the statements as threatening and he declined to provide his observations in writing.
ORDER	ORDER
The unfair practice charge in Case No. SA-CO-83-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
The unfair practice charge in Case No. SA-CO-83-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
6
Chair Dowdin Calvillo and Member McKeag joined in this Decision.	Chair Dowdin Calvillo and Member Mckeag joined in this Decision.
6
Furthermore, PERB does not have jurisdiction over the internal affairs of an employee
organization unless there is evidence of a substantial impact on the employer-employee
relationship. (Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106; California State Employees Association (Hutchinson, et al.) (1998) PERB
Decision No. 1304-S.) The charge does not provide evidence that IBEW's conduct here had a
substantial impact on Gallardo's relationship with his employer. Accordingly, the charge does
not state a prima facie violation of the duty of fair representation.