Service Employees International Union-United Healthcare Workers West Local 2005 (Hayes) (PERB 2168M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DENNIS DALE HAYES,
Charging Party, Case No. LA-CO-97-M
V. | PERB Decision No. 2168-M
SEIU-UNITED HEALTHCARE WORKERS February 25, 2011
WEST LOCAL 2005,
Respondent.

Appearance: Ronald G. Johnson, Representative, for Dennis Dale Hayes.

Before Dowdin Calvillo, Chair; McKeag and Miner, Members.

DECISION
MINER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on al by Dennis Dale Hayes (Hayes) from a Board agent’s dismissal (attached)

of an unfair practice charge. The charge, as amended, alleged that the SEIU-United Healthcare
Workers West Local 2005 violated numerous sections of the Meyers-Milias-Brown Act
(MMBA or Act)! by, inter alia, violating its duty of fair representation toward Hayes in
connection with one or more grievances filed by him. The Board agent determined that the
charge failed to establish a prima facie violation of the Act, and therefore dismissed the charge.
The Board has reviewed the dismissal and the record in light of Hayes’s appeal and the

relevant law. Based on this review, the Board finds the Board agent’s warning and dismissal

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

letters to be well-reasoned and a correct statement
of
the law, and therefore adopts them as the
decision
of
the Board itself, subject to the discussion below.
DISCUSSION
2
An unfair practice charge must include a clear and concise statement
of
the facts and
conduct by the respondent alleged to constitute an unfair practice under the MMBA. (PERB
Reg. 32615(a)(5);2 State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S; United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient, and the charging party bears the burden of
alleging all material facts necessary to state a prima facie case. (Los Angeles Unified School
District (1984) PERB Decision No. 473.) In processing a charge, the Board agent has a duty
to:
(
1)
Assist the charging party to state in proper form the
information required by section 32615;
(2) Answer procedural questions
of
each party regarding the
processing
of
the case;
(3) Facilitate communication and the exchange
of
information
between the parties;
(4) Make inquiries and review the charge and any accompanying
materials to determine whether an unfair practice has been, or is
being, committed, and determine whether the charge is subject to
deferral to arbitration, or to dismissal for lack
of
timeliness.
(5) Dismiss the charge or any part thereof as provided in
Section 32630
if
it is determined that the charge or the evidence
is insufficient to establish a prima facie case; or if it is determined
that a complaint may not be issued in light of Government Code
Sections 3514.5, 3541.5, 3563.2, 71639.l(c) or 71825(c), or
Public Utilities Code Section 99561.2; or if it is determined that a
charge filed pursuant to Government Code section 3509(b) is
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

based upon conduct occurring more than six months
priol'.
to the
filing
of
the charge.
(6) Place the charge in abeyance
if
the dispute arises under
MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter
Act and is subject to final and binding arbitration pursuant to a
collective bargaining agreement, and dismiss the charge at the
conclusion
of
the arbitration process unless the charging party
demonstrates that the settlement or arbitration award is repugnant
to the purposes
of
MMBA, HEERA, TEERA, Trial Court Act or
Court Interpreter Act, as provided in section 32661.
(7) Issue a complaint pursuant to Section 32640.
(PERB Reg. 32620.)
While the Board agent's duties include assisting the charging party in stating the proper
form
of
the charge, making inquiries and reviewing the charge and any accompanying
materials, the duty remains with the charging party to provide a clear and concise statement
of
the facts. 	(Regents
of
the University
of
California (2004) PERB Decision No. 1585-H; Regents
of
the University
of
California (2004) PERB Decision No. 1592-H.)
In this case, the Board agent communicated on numerous occasions with Hayes
in
an
attempt to assist him in filing a charge alleging specific facts that,
if
proven, would constitute
an unfair practice charge. In addition to speaking with him directly, the Board agent allowed
Hayes to amend his charge six times.3 On October 26, 2009, the Board agent issued a warning
letter advising Hayes
of
the deficiencies
of
the charge. On appeal, Hayes points to no specific
factual allegations in the charging documents that would establish a prima facie violation
of
the MMBA. Instead, he simply expresses his disagreement with the Board agent's analysis.
The purpose of the Board agent's review is to determine if the charge states sufficient facts
3 Subsequent to the filing of the initial charge, PERB' s file contains correspondence
from Hayes or his representative dated May 21, 2009, June 5, 2009, June 15, 2009, June 30,
2009, July 2, 2009 and November 21, 2009.
3

that,
if
proven, would constitute an unfair practice. It is incumbent upon the charging party to
provide such facts
to
the Board agent. (Regents
of
the University
of
California, supra, PERB
Decision No. 1585-H.) The remainder
of
the appeal consists
of
brief, conclusory responses to
the dismissal and warning letters but fails to identify any specific factual allegations in the
charge that would support finding a prima facie case. Because Hayes failed to provide specific
facts to support his charge, it was properly dismissed by the Board agent.
ORDER
The unfair practice charge in Case No. LA-C0-97-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
4

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
F
January 7, 2010
Ronald Glen Johnson
5711 Columbia Way #174
Quartz Hill, CA 93536
Re: 	Dennis Dale Hayes
v.
SEIU-United Healthcare Workers West Local 2005
Unfair Practice Charge No. LA-CO-97-M
DISMISSAL LETTER
Dear Mr. Johnson:
The above-referenced unfair practice charge was filed with the Public Employment
Relations
Board (PERB or Board) on May 7, 2009, 1 and was amended on May 21, June 8, 17, July 6, 8,
and November 21, 2009. In the original charge and in the first five amended charges,
Dennis
Dale Hayes (Mr. Hayes or Charging Party) alleged that the SEID-United Healthcare
Workers
West Local 2005 (Respondent or Local 2005) violated sections "3500-inclusive; 3500.5;
350l(A),
(1), (2), (B), (C), (D), (E); 3504; 3504.5(A); 3505; 3507-(5), (6), [and] (7)"
of
the
Meyers-Milias-Brown Act (MMBA or Act).2 In the November
21
amended charge,
Charging
Party alleges that Respondent also violated sections
350l(a)
through (i), 3501(b), (d),
and
(e),
3506, 3507(a) (5), (6), and (7)
of
the MMBA.
_
Charging Party was informed in the attached Warning Letter dated October 29, 2009,
that
the
above-referenced 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 the Warning Letter, Charging Party should amend the charge. Charging
Party
was
further advised that, unless he amended the charge to state a prima facie case or withdrew it
prior to November 9, 2009, the charge would be dismissed.
In a facsimile dated November 14, 2009, Charging Party's representative, Ronald Gien
Johnson, notified the undersigned that he did not receive the October 29 Warning Letter until
November 4, 2009, and thus he could not file an amended charge on Charging Party's
behalf
prior to the November 9, 2009 deadline. On November 16, 2009, the undersigned granted
1 On May 7, 2009, Mr. Hayes also filed an unfair practice charge against Service
Employees International Union (LA-CO-96-M) and another against Antelope Valley Hospital
District (LA-CE-534-M).
2 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB'S Regulations may be found at www.perb.ca.gov.

LA-CO-97-M
January 7, 2010
Page 2
Charging Party's request for an extension
of
time to file an amended charge. PERB received
Charging Party's sixth3 amended charge on November 21, 2009.
The November
21
amended charge provides in relevant part:
1.	
Withdraw alleged violations to MMBA sections 3500,
3500.5, 3501A-(2), 3501(C), 3504, 3504.5(A), and 3505.
2.	
The following MMBA section violations we charge:
3501A-(1), 3501-(B), 3501-(D), 3501-(E), 3506,
3507-(5), 3507-(6), and 3507-(7).
3501A-(l): 	Charging [P]arty was in fact an employee
of
a Special District for many years.
3501-(B): 	To the point, Antelope Valley Hospital
District is a Special District.
3501-(D): 	Charging [P]arty maintains he was a public
employee.
3501-(E): 	Charging [P]arty was not afforded a
mediator at anytime for either grievance.
3506 	Charging [P]arty was protected under this
section
of
MMBA as an employee
of
a
Special District.
3507A-(5): 	Charging [P]arty was among the first to
promote the Union. Subsequently, [he] was
punished. Specifically, with respect to
scheduling, wages, hours, and other
conditions
of
employment.
3 5 07 A-( 6): 	Charging [P) arty states that access to his
hospital representatives and Union
representatives for information concerning
scheduling, wages, hours, and seniority was
not afforded [to] 	by either at any
Charging Party refers to the November 21 amended charge as the fourth amended
charge.

LA-CO-97-M
January 7, 2010
Page 3
prior to filing [the above-titled charge] with
PERB.
3507 A-(7): 	An employment position was appointed
arbitrarily instead
of
collectively.
Mr. McKee, I assure you the following statements are based on
evidence
of
the conduct which constitutes unfair labor practices
towards Dennis D Hayes under the MMBA guidelines/statutes.
3501A-(1): 	No [R]espondent accepted responsibility for
grievances or remedies filed from May 2007
through May 2009 from Board
of
Directors to
immediate superiors Maria Kelly, Director
of
Radiology and Jill Bunch, Ultrasound Section
Supervisor at the time, including Vladimir
Dominguez, U.nion Representative
or
any
of
his
people.
3501-(B)[:] 	[Antelope Valley Health District] would not
disclose responsibilities under the articles
of
a
Collective Bargaining Agreement from May 2007
through May 2009.
3501-(D)[:] 	Human Resources management John Sullivan,
Vice President; Gregg Goins, Director; Staci
Johnson, Employee Relations Officer; and Rick
Rowe, Vice President Clinical Support Services
never released information to clarify my status as a
Special District employee or as a member
of
the
Collective Bargaining Agreement from May 2007
through May 2009 when [the above-titled charge]
was filed with PERB in May 2009.
3501-(E): 	Sue Vradenberg, Union Steward; Leo Ward, Union
Steward; Alonso Salinas, Union Steward; Rick
Rowe, Vice President Clinical Support Services;
Staci Johnson, Employee Relations Officer;
Dwayne Roberts, Chief Union Steward, Vladimir
Dominguez, Union Representative; John Sullivan,
Vice President Human Resources; Gregg Goins,
Director [of] Human Resources; all could have and
should have represented Charging [P]arty
comprehensively instead of provable negligence in
their duty from May 2007 through May 2009.

LA-CO-97-M
January 7, 2010
Page 4
3506 	No employees of [Antelope Valley Hospital
District] or [Respondent] treated Charging
[P]arty's case objectively from May 2007 through
May 2009 when complaint of violations of MMBA
guidelines/statutes was filed with PERB. Names
not withheld but too numerous to list here.
3507A-(5) 	Directly after [Charging Party's] promotion of the
[Respondent] beginning May 2007, John Sullivan,
Vice President Human Resources; Rick Rowe,
Vice President Clinical Support Services; Maria
Kelly, Director Radiology Services; and Jill
Bunch, Ultrasound Section Supervisor instigated a
document called the Last Chance Agreement
(LCA) atwhich time I was threatened with
.termination should I choose not to sign. 	I
immediately provided a response to the LCA and
all concerned parties.
3507A-(6) 	In a direct communique from Gail Buhler, Union
Coordinator I was informed absolutely that any
communication with anyone other than her was
prohibited and then only by telephone or fax. 	For
a period of months I was unable to contact Ms.
Buhler through her office. So I sought alternative
means for remedy through John Sullivan, Vice
President [ of] Human Resources; Rick Rowe, Vice
... President [of] Clinical Support Services; Jill
Bunch, Ultrasound Section Supervisor; Alonso
Salinas, Union Steward; Leo Ward, Union
Steward. Come to find out, Ms. Buhler had been
dismissed and no one listed above bothered to
inform me.
3507 A-(7) 	On or about December 2007, Karina Morales,
Ultrasound Student was hired by Jill Bunch,
Ultrasound Section Supervisor for a position of
which I had made many requests proving neither
[the Antelope Valley Hospital District] nor
[Respondent] fulfilled any
related to above.

LA-CO-97-M
January 7, 2010
Page 5
REMEDY 
Financial restitution for loss
of
monies, long-term
detriment to personal character and professional
reputation and other adverse impacts on my life.
Discussion
1.
	A Charging Party's Burden to Provide PERB with a Clear and Concise
Statement
of
Facts and Conduct Alleged to Constitute an Unfair Practice
Charging Party was advised in a letter dated May 8, 2009 and in the October 29 Warning
Letter that PERB Regulation 32615(a)(5)4 requires, among other things, 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)
Pl::;'RU
De
0	
.l.
J._/
"\....L.I	
V.l.
;s1'on
.l
No •
944)
• 	Mere legal conclus;ons	
.1.
.1.	
.l. l..1.	
ar""
V .i.not
\,
c,u-ff;.--,,,.nt	
U
	.1..1...l.'-'.l.VJ..1.1,,
tn	
1,.,V
s+atP.	
1,,
,._.._,
1...-1,
Cl
nrln>CI	
_l:-J.l..l..l..L.L~
-fcir'lP
	.J..~,,_...._,,_.
C'Cl<c:f'	
....,,_._,._,,._,.
(Ibid.; Char!er Oak Unified School District (1991) PERB Decision No. 873.)
The November
21
amended charge does not provide a clear and concise statement
of
fact.
Instead, the November
21
amended charge is comprised mostly
of
conclusions and citations to
Government Code sections with little or no explanation why Charging Party believes
the
particular Government Code section was violated by Respondent. Consequently, Charging
Party has failed to satisfy his burden
of
providing PERB with a clear and concise statement
of
facts and conduct alleged to constitute a violation
of
the MMBA. 	(PERB Regulation
32615(a)(5).)
2. 	The Duty
of
Fair Representation
The November
21
amended charge does allege that on April 27, 2008, Charging
Party's
grievance(s) was transferred to Local 2005 representative Gail Buhler and that Ms.
Buhler
denied him access to other Local 2005 stewards, failed and/or refused to return a number
of
his
grievance status inquiries, and ultimately ceased her employment with Local 2005
without
ever
notifying Charging Party. As stated in the October 29 Warning Letter, 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 	duty
of
fair representation cases to apply precedent developed
under
the
other acts administered by the Board.
4 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-97-M
January
7,
2010
Page 6
In American Federation
of
Teachers College Guild, Local 1521 (Saxton) (1995) PERB
Decision No. 1109, the Board held that an exclusive representative does not breach the duty
of
fair representation by failing/refusing to provide an employee with a union representative
of
his/her choice. Accordingly, Respondent's decision to assign Local 2005 representative Gail
Buhler to Charging Party's grievance(s) and prohibit Charging Party from speaking with other
Local 2005 stewards about his grievance(s) does not breach the duty
of
fair representation.
(Ibid; United Teachers
of
Los Angeles (Adams) (2009) PERB Decision No. 2012.)
In California Faculty Association (Wang) (1988) PERB Decision No. 692-H, the Board
held
that an exclusive representative's failure to return all
of
a grievant's phone calls does not, by
itself, breach the duty
of
fair representation. In
SEIU
Local 1000 (Diunugala) (2009)
PERB
Decision No. 2060-S, the Board held that a union's delay in responding to employees about
grievance proceedings based on mere negligence or inadvertent omissions does not constitute a
breach
of
the duty
of
fair representation. (See also Service Employees International Union,
Local 250 (Hessong) (2004) PERB Decision No. 1693-M [union did not violate duty
of
fair
representation despite taking more than two years to process a member's grievance].)
While Ms. Buhler's failure to respond to all
of
Charging Party's grievance status inquiries and
Respondent's failure to notify Charging Party
of
Ms. Buhler's separation from Local
2005
is
troubling, the facts alleged in the charge do not amount to more than mere negligence
on
the
part
of
Respondent. Negligent conduct breaches the duty
of
fair representation only
when
it
"completely extinguishes the employee's right to pursue his claim." (Coalition
of
University
Employees (Buxton) (2003) PERB Decision No. 1517-H, quoting Dutrisac
v.
Caterpilar
Tractor Co. (9th Cir. 1983) 749 F.2d 1270,1274.) Charging Party has failed to allege
or
provide a clear and concise statement
of
facts establishing that his grievance(s) was
denied
or
even prejudiced because
of
Ms. Buhler' s actions/inactions or because
of
any action/inaction by
Respondent. 	Consequently, Charging Party has not established that Respondent's negligence
completely extinguished his right to pursue his grievance(s) against his employer.
Accordingly, Charging Party's allegation that Respondent breached its duty
of
fair
representation to him is dismissed.
3. 	Remaining Allegations
As
previously stated, Charging Party alleges that numerous MMBA sections were violated by
Respondent but provides no facts, theories, or arguments in support of his allegations. 5
Furthermore, Charging Party lacks standing to allege that Respondent violated sections
of
the
MMBA applicable to the collective bargaining relationship between employee organizations
and employers. (See generally Oxnard Educators Association (Gorcey and Tripp) (1988)
PERB Decision No. 664.)
5 For example, Charging Party alleges that Respondent violated MMBA section 3501.
MMBA section 3501 merely defines words used in the MMBA. MMBA section 3501 does not
convey rights or prohibit conduct and thus MMBA section 3501 cannot be violated.

LA-CO-97-M
January 7, 2010
Page 7 
4.
	The MMBA's Six-Month Statute
of
Limitations
PERB is prohibited from issuing a complaint with respect to any charge based upon an alleged
unfair practice 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.) In cases alleging a breach
of
the duty
of
fair representation,
the six-month statutory limitations period begins to run on the date when-the charging party, in
the exercise
of
reasonable diligence, knew or should have known that further assistance from
the union was unlikely. (United Teachers
of
Los Angeles (Hopper) (2001) PERB Decision
No. 1441; Los Rios College Federation a/Teachers, CFTIAFT (Violett, et al.) (1991) PERB
Decision No. 889.) Repeated union refusals to process a grievance over a recurring issue do
not start the limitations period anew. (California State Employees' Association (Calloway)
(1985) PERB Decision No. 497-H.)
In the October 29 Warning Letter, Charging Party was advised, among other things,
that
the
above-titled charge was not filed within the MMBA' s statute
of
limitations because on April
15, 2008 Charging Party advised Respondent that it had failed to represent him and as a result,
he was going "to let higher authorities resolve this matter." Further, on April 15, 2008,
Charging Party informed Respondent that he no longer had an expectation that Respondent was
"listening." The October 29 Warning Letter concluded that these statements showed
that
Charging Party knew or should have known on or before April 15, 2009 that further assistance
from Respondent was unlikely, and thus the above-titled charge was untimely because
it
was
· not filed within six months
of
April 15, 2008. Significantly, however, the October 29 Warning
Letter did not consider the fact that Respondent continued to assist Charging Party with his
grievance(s) after April 15, 2008. Accordingly, the above-titled charge is not being dismissed
as
untimely. Instead, it is being dismissed for the other reasons stated.
Right to Appeal
Pursuant to PERB Regulations, 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. (Cal. Code Regs, tit. 8, § 32635, subd. (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.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB 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. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)

LA-CO-97-M
January 7, 2010
Page 8
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
service
of
the appeal. 	(Cal. Code Regs, tit.
8,
§ 32635,
subd. (b).)
Service
All docurn.ents 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 Cal. Code Regs., tit.
8,
§ 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.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the Board itself,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required
for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. 	(Cal. Code Regs, tit. 8, § 32132.)

LA-CO-97-M
January 7, 2010
Page 9
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~~~-
1
Sean McKee
Regional Attorney
Attachment
cc: Bruce Harland, Attorney

STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
F
October 29, 2009
Ronald Glen Johnson
5711 Columbia Way #174
Quartz Hill, CA 93536
Re: 	Dennis Dale Hayes
v.
SEJU-United Healthcare Workers West Local 2005
Unfair Practice Charge No. LA-CO-97-M
WARNING LETTER
Dear Mr. Johnson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 7, 2009, 1 and was amended on May 21, June 8, 17, July 6 and
8, 2009. Dennis Dale Hayes (Mr. Hayes or Charging Party) alleges that the SEID-United
Healthcare Workers West Local 2005 (Respondent) violated sections "3500-inclusive; 3500.5;
350l(A), (1), (2), (B), (C), (D), (E); 3504; 3504.5(A); 3505; 3507-(5), (6), [and] (7)"
of
the
Meyers-Milias-Brown Act (MMBA or Act).2
Background as Alleged
The original charge provides in relevant part: "Due to the volume
of
evidence, I request a
meeting for review with myself & my
advocate-Ron
Johnson." Attached to the charge is a
copy
of
a National Labor Relations Board form titled, "NOTICE AND
ACKNOWLEDGEMENT OF FILING OF CHARGE."
On May 7, 2009, I contacted Mr. Hayes3 via telephone and advised him that the above-titled
charge had been assigned to me for processing. I also advised Mr. Hayes that the charge was
not properly filed in accordance with PERB's Regulations.4 Specifically, PERB Regulation
32615(a)(5) requires, among other things, that an unfair practice charge include a "clear and
1 On May 7, 2009, Mr. Hayes also filed an unfair practice charge against Service
Employees International Union (LA-CO-96-M) and another against Antelope Valley Hospital
District (LA-CE-534-M).
2 The MMBA is codified at Government Code section 3500 et seq. The text
of the
MMBA and PERB'S Regulations may be found at www.perb.ca.gov.
3 Mr. Hayes did not complete a notice of appearance form designating Mr. Johnson as
his representative in this matter until May 21, 2009.
4 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-97-M
October 29, 2009
Page2
concise statement
of
the facts and conduct alleged to constitute an unfair practice." In
addition, PERB Regulations 32615(c) and 32140 require that a copy
of
an unfair practice
charge be served on the respondent.
During our May 7 telephone conversation, I explained to Mr. Hayes that the above-referenced
charge did not provide a clear and concise statement
of
conduct alleged to constitute an unfair
practice or a completed proof
of
service form declaring that a copy
of
the above-titled charge
was served on Respondent. I advised Mr. Hayes that his failure to correct the above-described
deficiencies by May 18, 2009, could result in the above-titled charge being dismissed.
	On
May
8,
2009, I sent Mr. Hayes a letter confirming our May 7 conversation. I also included
instructions with my May 8 letter on how to file an unfair practice charge.
PERB received an amended charge from Mr. Hayes on May 21, 2009. The May
21
amended
charge was accompanied by a deficient proof
of
service form (the name and address
of
the
person served the unfair practice charge does not appear on the proof
of
service form). 	(PERB
Regulation 32140.) Nevertheless, Respondent has not denied receiving a copy
of
the original
charge or the
:t-,1ay
21
amended charge. To the contrary, on June
5,
2009, Respondent filed a
response to the above-referenced charge.
The May
21
amended charge consists
of
a letter dated February 4, 2008, an undated letter
signed by Vladimir Dominguez concerning a meeting that took place in April 2008, several e-
mail messages dated between March and April 2008, one e-mail message dated January 6,
2009, and a timeline titled, "Statement
of
Facts." The "Statement
of
Facts provides verbatim:
#1. 	On or about 8/22/2007, a collective bargaining agreement
was signed by all parties authorized to make it a legal document.
#2. 	From September 2007 to February 2008: 	I personally
contacted every steward available to me with questions regarding
scheduling, seniority, and bargaining unit language. 	Their names
include Sue Vradenburg, Leo Ward, Vladimir Dominguez,
Alonso Salinas, and Duane Roberts, among others.
#3. 	2/04/2008: Personally delivered the attached document
(#1
of
the evidence packet), to the Union and the hospital with
proof
of
service.
#4. 	3/26/2008: All attempts failing, I wrote a letter to the
Union (#2
of
evidence packet) expressing my dismay over the
utter lack of representation for which I had 	paying.
#5. 	4/20/2008: This document (#3 of the evidence packet)
proves the Union and the hospital acknowledged that there was a
grievance. 	It further proves they chose to ignore the collective
bargaining agreement and refused grievance procedures.

LA-CO-97-M
October 29, 2009
Page 3
#6. 	4/21/2008: This document (#4
of
the evidence packet) is
proof
of
collusion between UHW-West and AV Hospital
authorities. Other evidence is available.
#7. 	4/25/2008: This document was acquired by a demand
from me alluding to charges in an attempt to justify his station.
Mr. Dominguez must have sent this to himself. His error is
evident.
#8. 	4/26/2008: This (#6
of
evidence packet) was evidence
of
Mr. Vladimir Dominguez' refusal to represent me in my
grievance is proved by the date(s) cited this document sent to me
as an attachment to an e-mail.
#9. 	4/26/2008: (#7 in the evidence packet): In my attempts
for recognition
of
my grievance I made everyone accountable,
aware
of
the Union's failure to represent. The result was the
denial
of
access to any person other than one Gail Buhler, and
only by personal phone or fax.
#10. 	1/07/2009: (#8 in evidence packet): To this date I have
not been afforded representation by SEIU, UHW-West, AV
Hospital, or NLRB.
Upon review
of
the documents attached to the May
21
amended charge, it appears that Mr.
Hayes filed one grievance in "May
of
2007" and another in March 2008. In the February 4,
2008 letter,5 Mr. Hayes expresses his frustration with how the Antelope Valley Hospital
District and his "union" handled the May 2007 grievance. In the February 4, 2008 letter, Mr.
Hayes also expresses his dissatisfaction with the assistance he was receiving from the '"union."
For example, Mr. Hayes wrote: "I finally put [the grievance] on hold expecting union
assistance when I signed up. Not only can I not get any assistance from the union, I
can't
even
get any information."
In an e-mail message dated April 15, 2008, Mr. Hayes informed Mr. Dominguez, several
Service International Employee Union representatives, and several Antelope Valley Hospital
District employees: "Everything you and Antelope Valley Hospital have done is bordering on
ludicrous if not criminal. Left with no other satisfaction from either party, I've chosen to let
higher authorities resolve this matter. No one to date has fulfilled their obligation to
me,
Antelope Valley Hospital, or the Union." Mr. Hayes' April
15
e-mail message continues in
relevant part: "I've spent l O...
~,.
..... - trying to get someone to hear me and [I] don't expect
anyone's listening now."
5 Neither the charge nor the amended charges specify the recipient(s) of the letter.

LA-CO-97-M
October 29, 2009
Page 4
In an e-mail message dated April 25, 2008, Mr. Dominguez informed Mr. Hayes:
On April 23, 2008 at 16:58 I received a letter from John Sullivan
regarding our meeting on 4/22/08. 	Shortly after I received John's
letter I contacted you. The time was about 17:32. You did not
answer the phone so I left you a message regarding the letter. At
19:09 you called me back. I asked you
if
you wanted me to read
the letter to you over the phone but you stated that you needed to
see the letter before any conversation between us could take
place. 	You asked me
if
I have a fax machine. I told you I did.
You asked me to fax the letter to you
...
and you told me that
you would get back to me later that day.
As
of
today, April 25, 2008, I have not received any
communication from you telling me what to do next. 	I need to
know
if
you want me to respond back to the Hospital or
if
you
want me to pursue this matter further since the letter from
Joh.1'1
was addressed to me.
Dennis, I need your recommendation regarding the above
mentioned issues. 	Quite honestly, I and some
of
the other
Stewards have made suggestions to you and tried to answer your
questions and give you advice. We have tried to help you,
represent you, and understand your issues and concerns but it has
been somewhat difficult trying to extrapolate data and
information based on the limited and changing information we
received from you. 	Regretfully,
if
I do not receive any response
back from you regarding this important matter I will have to
assume that you are satisfied with the remedies that the [Antelope
Valley Hospital District] Management is imposing on you and I
will be forced to close this case.
There are no facts contained in the charge or amended charges regarding whether Mr.
Hayes
ever responded to Mr. Dominguez's April 25 e-mail message. In an e-mail message
dated
April 27, 2008, Ms. Buhler informed Mr. Hayes: "I will be handling your case for the Union
now. It is highly inappropriate to email all of the people on this list about your personal
matter. 	You need to protect your privacy. Therefore, I am informing you that the Union will
no
longer be communicating with you through email. If you would like to discuss your case,
please contact me at.
...
"
The e-mail message dated January 1, 2009, was sent from Mr. Ward to Ms. Buhler with a
simultaneous copy of the e-mail message sent to Mr. Dominguez. The January 1 e-mail
message provides in relevant part:

LA-CO-97-M
October 29, 2009
Page 5
Dennis Hayes spoke to me last night inquiring about the status
of
a Grievance filed on his behalf several months back regarding
Seniority/Job Vacancies as it pertains to night-shift weekends (his
previous schedule which he wants reinstated). I confirmed with
Alonso Salinas that Alonso Salinas did contact you regarding 3
past attempts by Mr. Hayes to contact you through Alonso. Mr.
Hayes stated that he has not heard from you regarding this matter.
I told Mr. Hayes that I would follow up with you on his behalf
and provide you with contact numbers and include him (Cc) in
this correspondence. 	Since I am not privy to the status
of
his
Grievance or the progression
of
the steps I can only inquire.
The June 8 amended charge provides in its entirety: "The lack
of
substance in [Respondent's]
response should cause no concern as our evidence includes more than one document."
The June
17
amended charge provides in relevant part:	
"It
seems a hearing is forthcoming. 	I'd
appreciate any correspondence from [Antelope Valley Hospital District attorney Denn.is
Regan] to your agency. 	The only communication I've had thus far from Mr. Regan is
that
he
dialed my personal cell by mistake."
On
July
6,
2009, PERB received a letter from Mr. Johnson re-requesting "correspondence
between [PERB] and [Respondent]." On July 9, 2009, I contacted Mr. Johnson via telephone
and informed him that PERB Regulation 32620, subdivision (c), requires that any written
response filed by a respondent with PERB must be simultaneously served on the charging
party. 	I also assured Mr. Johnson that the only response I had received from Respondent in
this matter was the response it filed to the above-titled charge dated June 2, 2009. Mr. Johnson
confirmed that he had received a copy
of
the response filed by Respondent dated June 2, 2009.
The July 8 amended charge is a letter addressed by Mr. Johnson to the General Counsel
of
the
AFL-CIO. The July amended charge provides in relevant part:
Since 8/22/07 I've tried all avenues for any fotm
of
justice for
something that amounts to nothing more than an infraction
of
protocol and/or policy of an agency governed by you. 	Collective
bargaining agreement not excluded.
Charges from NLRB and PERB have been filed. 	I believe
knowledge of this situation should be
of
concern to you.
An attorney for UHW-West, Gail Buhler ordered my brother to
not communicate with your agency nor any other union or public
agency. 	So, he did not. I can't believe your organization
condones such an abuse of your Constitution and Bill of Rights.

LA-CO-97-M
October 29, 2009
Page 6
My brother backed the union when there was nothing but the
tailgate of a pick-up truck. My brother pays his dues each and
every pay period. Why can't my brother get any representation?
As my brother's advocate, feel free to contact me anytime.
Discussion
1. 	PERB's Jurisdiction
PERB is a quasi-judicial administrative agency charged with administering California's
collective bargaining statutes covering public employees. One of the statutes PERB
administers is the MMBA, a comprehensive statutory scheme governing labor relations in
California cities, counties, and special districts. (Gov. Code, §§ 3500, 3509.) However, the
MMBA is limited in scope, regulating only certain conduct by employers and unions. 	(Los
Angeles Community College District (1979) PERB Order No. Ad-64. 6) 	For example, the
MMBA does not specially address allegations of "collusion" between employee organizations
and employers. Additionally, "PERB has no jurisdiction to remedy a violation of a collective
bargaining agreement. ... " (City of Long Beach (2008) PERB Decision No. 1977-M.)
2. 	A Charging Party's Burden and the MMBA's Six-Month Statute of Limitations
PERB Regulation 32615(a)(5) requires, among other things, 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.)
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
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.)
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CO-97-M
October 29, 2009
Page 7
In cases alleging a breach
of
the duty
of
fair representation, the six-month statutory limitations
period begins to run on the date when the charging party, in the exercise
of
reasonable
diligence, knew or should have known that further assistance from the union was unlikely.
(United Teachers
of
Los Angeles (Hopper) (2001) PERB Decision No. 1441; Los Rios College
Federation
of
Teachers, CFTIAFT (Violett, et al.) (1991) PERB Decision No. 889.) Repeated
union refusals to process a grievance over a recurring issue do not start the limitations period
anew. 	(California State Employees' Association (Calloway) (1985) PERB Decision No. 497-
H.)
Based on the current record, Charging Party knew that further assistance from Respondent was
unlikely on or before April 15, 2008, because that is when Charging Party advised Respondent
that it had failed to represent him and as a result, he was going "to let higher authorities resolve
this matter." Further, on April 15, 2008, Charging Party informed Respondent that he no
longer had an expectation that Respondent was "listening." As previously stated, the
MMBA's
statute
of
limitations is six months. (Coachella Valley, supra,
35
Cal.4th 1072, 1092.)
Therefore, to timely file the above-titled unfair practice charge alleging that Respondent
violated the Act by failing to represent him, Charging Party needed to file the charge
by
no
later than October 15, 2008. As previously stated, Charging Party did not file the present
charge until May 7, 2009. Therefore, Charging Party has failed to provide a clear and concise
statement
of
facts establishing that the above-titled charge was filed within the MMBA' s six-
month statute
of
limitations period. Nevertheless, even
if
the above-titled charge was timely
filed, Charging Party has failed to establish that Respondent breached its duty to fairly
represent him for the following reasons.
3. 	The Duty
of
Fair 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
i2i3.) In Hussey, the appellate court fmiher 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, CTAINEA (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
both Hussey and federal precedent (Vaca
v.
Sipes (1967) 386 U.S. 171).
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in

LA-CO-97-M
October 29, 2009
Page 8
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.)
Thus, in order to state a prima facie violation
of
the duty
of
fair representation under the
MMBA, 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), 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.)
The current record is devoid
of
facts demonstrating that Respondent's representation
of
Charging Party was "without a rational basis or devoid
of
honest judgment." (International
Association
of
Afachinists (Attard), supra, PERB Decision No. 14
74-I'v1.)
To the contrary, the
current record demonstrates that Respondent met and discussed Charging Party's grievance(s)
with the Antelope Valley Hospital District. Further, on April 25, 2008, Mr. Dominguez
contacted Charging Party regarding the status
of
one or more
of
Charging Party's grievances.
There are no facts contained in the charge or amended charges demonstrating that Charging
Party ever responded to Mr. Dominguez's April 25 e-mail message.
While Charging Party attached an e-mail dated January 6, 2009 to the above-titled charge,
which contains facts regarding Ms. Buhler's failure to respond to some
of
Charging
Party's
grievance status inquiries, the Board has held that an exclusive representative's failure to
return all
of
a grieving employee's phone calls does not, by itself, breach the duty
of
fair
representation. (California Faculty Association (Wang) (1988) PERB Decision No.
692-H.)
Further, Charging Party does not allege or demonstrate that Ms. Buhler failed and/or
refused
to
respond to the January 6 e-mail message. 	Consequently, Charging Party has not established
that Ms. Buhler stopped responding to all
of
Charging Party's grievance status inquires
or
that
Charging Party's grievance(s) was adversely affected by Ms. Buhler's failure/refusal
to
respond to Charging Party's grievance status inquiries. Accordingly, based on the
current
record, even
if
the above-titled charge was timely filed, Charging Party has failed to establish
that Respondent breached its duty to fairly represent him.
4. 	Remaining Allegations
As
previously stated, Charging Party alleged sections "3500-inclusive; 3500.5; 350l(A), (1),
(2), (B), (C), (D), (E); 3504; 3504.5(A); 3505; 3507-(5), (6), [and] (7)"
of
the MMBA
were
violated by Respondent. However, Charging Party provides no facts, theories, or arguments
regarding why he believes the above-cited sections of the MMBA were violated by
Respondent. Many of the above-cited sections merely define words used in the MMBA and
PERB 's jurisdiction. Further, Charging Party does not have standing to allege that Respondent
violated sections of the MMBA applicable to the collective bargaining relationship between

LA-CO-97-M
October 29, 2009
Page 9
employee organizations and employers. (See generally Oxnard Educators Association (Gorcey
and Tripp) (1988) PERB Decision No. 664.)
For these reasons the charge, as presently written, does not state a prima facie case. 7
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
prepared on a standard PERB unfair practice charge form, clearly labeled Sixth Amended
Charge, contain all the facts and allegations Charging Party wishes 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 corner
of
the charge form. 	The
amended
charge must be served on 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
November
9,
2009,8 PERB will dismiss the above-titled charge. Questions concerning this matter
should
be
directed to me at the above telephone number.
Sincerely,
Sean McKee
Regional Attorney
SM
7 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause
of
action and
that the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt
of
conflicting allegations
of fact or
contrary theories of law, fair proceedings,
if
not due process, demand that a complaint
be
issued and the matter be sent to formal hearing." (Ibid.)
8 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)