Service Employees International Union, Local 1000 (Gutierrez) (PERB 2191S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED GUTIERREZ,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,
Respondent.
Case No. SA-CO-446-S
PERB Decision No. 2191-S
July 19, 2011
Appearances: Law Firm of Joanne DeLong by Joanne DeLong, Attorney, for Alfred Gutierrez;
Monica Ahuja, Attorney, for Service Employees International Union, Local 1000.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Alfred Gutierrez (Gutierrez) of a dismissal (attached) of his unfair
practice charge. The charge alleged that Service Employees International Union, Local 1000
(SEIU) violated the Ralph C. Dills Act (Dills Act)1 when it denied Gutierrez of the right to fair
representation. Gutierrez alleged that this conduct constituted a violation of Dills Act
section 3515. 7(g).
The Board agent found Gutierrez failed to plead sufficient facts to demonstrate that
SEIU abused its discretion or that its conduct was without a rational basis or devoid of honest
judgment. Accordingly, the Board agent dismissed the charge for failure to state a prima facie
case.
1 The Dills Act is codified at Government Code section 3512 et seq.

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 as a decision of
the Board itself.2
ORDER
The unfair practice charge in Case No. SA-C0-446-S is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Martinez and Member Dowdin Calvillo joined in this Decision.
The Board notes an apparent typographical error which appears on the third sentence
of the third paragraph on page 2 of the dismissal letter. This sentence should read, "The fact
that the union representatives appeared "uninformed" does not change this analysis."
(Emphasis added.)
2

STATE OF CALIFORNIA 	ARNOLD
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 21, 2010
Joanne De Long, Attorney
2520 S Street #5
Sacramento, CA 95816
Re: 	Alfred Gutierrez v. SEIU Local I 000
Unfair Practice Charge No. SA-CO-446-S
DISMISSAL LETTER
Dear Ms. DeLong:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 29, 2010. Alfred Gutierrez (Mr. Gutierrez or Charging
Party) alleges that SEIU Local 1000 (Union or Respondent) violated the Ralph C. Dills Act
(Dills Act)1 by breaching its duty of fair representation.
Charging Party was informed in the attached Warning Letter dated April 1, 2010, that the
above-referenced charge did not state a prima facie case. You were advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to April 8, 2010, the charge would be
dismissed.
On April 8, 2010, Charging Party filed a First Amended Charge.
In the amended charge, Charging Party restates the factual paragraph in the original charge.
Charging Party maintains that the Union breached its duty to Mr. Gutierrez by sending three
"uninformed" representatives to assist Mr. Gutierrez with his disputed adverse action, by
ultimately refusing to represent Mr. Gutierrez in the appeal of his disputed adverse action, and
by proposing a settlement whereby Mr. Gutierrez must waive his future legal rights against the
State without "all adverse actions being expunged from his record."
In addition, Charging Party states that the names of the union representatives representing Mr.
Gutierrez during meetings "without knowing anything about his case" are Cecilia Greenwald
(Ms. Greenwald), Jacqueline Campbell (Ms. Campbell), and Rene Maxon (Ms. Maxon).
Charging Party further states that these individuals did not ask for Mr. Gutierrez' account of
events in question. According to the amended charge, "it did not appear that they cared to
even understand what actually happened much less to adequately represent him."
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.

SA-CO-446-S
April 21, 2010
Page 2
In the April 1 Warning Letter, Charging Party was informed that in order to state a prima facie
violation of this section of the Dills Act, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory, or in bad faith. 	(United Teachers of Los Angeles
(Collins) (1982) PERB Decision No. 258.) With respect to the appeal of the adverse action,
Charging Party was informed that a union may refuse to pursue an appeal if it makes a
reasonable determination that the appeal lacks merit. (Service Employees International Union,
Local 715, AFL-CIO (Caviglia) (1995) PERB Decision No. 1116.)
The charge, as amended, still fails to demonstrate that the Union abused its discretion or that
the Union's actions were without a rational basis or devoid of honest judgment. (International
Association of Machinists (Attard), supra, PERB Decision No. 1474-M; United Teachers -
Los Angeles (Wyler), supra, PERB Decision No. 970.) Citing Service Employees International
Union, Local 221 (Meredith) (2008) PERB Decision No. 1982, Charging Party argues that the
Board must look at all of the Union's activities during the appeal process, not only Ms.
Campbell's letter.2 However, it is unclear what Charging Party means by "all of the Union's
activities."
To the extent that Charging Party is still asserting that the Union's denial of representation
breaches the duty of fair representation, the Board has held that a union may refuse to pursue
an appeal if it makes a reasonable determination that the appeal lacks merit. (Service
Employees International Union, Local 715, AFL-CIO (Caviglia), supra, PERB Decision
No. 1116.) Nothing in the amended charge contradicts the above facts or establishes that the
Union failed to investigate the matter. The fact that the union representatives appeared
"uninformed" does change this analysis. (See California School Employees Association & its
Chapter 374 (Wyman) (2007) PERB Decision No. 1903 [an allegation that the union stewards'
assistance was flawed is not persuasive as the duty of fair representation does not contemplate
the complete satisfaction for all represented and the allegation does not indicate that the union
stewards' conduct was performed without good faith or honesty].)
To the extent that Charging Party is asserting that the Union's proposed settlement breaches
the duty of fair representation, the Board has also held that a union settlement of a grievance
contrary to a grievant' s wishes does not necessarily demonstrate a breach of the duty of fair
representation. (United Teachers of Los Angeles (Seliga) (1998) PERB Decision No. 1289).
Charging Party has provided no additional Union "activities" to support its argument.
Charging Party's allegation that the Union breached its duty of fair representation by failing to
pursue his appeal is hereby dismissed based on the facts and reasons set forth herein and in the
April 1, 2010 Warning Letter.
1. Ms. Campbell's letter stated that she had reviewed Mr. Gutierrez' facts and denied
Mr. Gutierrez representation with respect to the pursuit of his appeal, determining that success
would be unlikely.

SA-CO-446-S
April 21, 2010
Page 3
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. 	(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 the
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.)
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 you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (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 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).)
3 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-446-S
April 21, 2010
Page 4
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.)
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
Ge~~unsel
~~~-------
By
Katharind Nym}n
Regional A'i:kl'fney
I 	I 	f 	\
Attachment
cc: Monica Ahuja, Staff Attorney

STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 1, 2010
Joanne DeLong, Attorney
Re: Alfred Gutierrez v. SEJU Local I 000
Unfair Practice Charge No. SA-CO-446-S
WARNING LETTER
Dear Ms. DeLong:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 29, 2010. Alfred Gutierrez (Mr. Gutierrez or Charging
Party) alleges that SEIU Local 1000 (Union or Respondent) violated the Ralph C. Dills Act
(Dills Act)1 by breaching its duty of fair representation.
Factual Background as Alleged
The charge states in its entirety:
The [U]nion breached its duty to Mr. Gutierrez by acting
arbitrarily: he appealed a suspension last year, and so far during
the process, the [U]nion has sent three different representatives,
each uninformed about his case. The [U]nion now refuses to
represent him further. To settle his appeal, Mr. Gutierrez must
waive ALL future legal rights against the State without ALL
adverse actions being expunged from his record. The remedy is
for the [U]nion to represent Mr. Gutierrez fairly and vigorously.
Attached to the charge is a letter dated November 4, 2009 from Union representative
Jacqueline Campbell (Ms. Campbell). The letter states in part as follows:
I have again reviewed the notice of adverse action on your
Twenty Days Suspension from your position as a Sheetfed Offset
Press Operator II (SOPO II) at the Board of Equalization (BOE).
As you recall, a Pre-Hearing Settlement Conference was held at
the State Personnel Board on October 20, 2009. You and I were
present at the conference before Administrative Law Judge,
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.

SA-CO-446-S
April
1,
2010
Page 2
Regina Brown; BOE was represented by Legal Counsel, Brian
Branine and a settlement was proposed. The parties reached
agreement but needed to return two (2) days later to read the
agreement into the record. Thereafter, but prior to the meeting on
October 22, 2009, you advised me that you would not accept any
settlement on your case. The State Personnel Board then set your
case for an evidentiary hearing in November, but the attorney for
the BOE was unavailable for those dates; on his motion, the
evidentiary hearing was taken off calendar and has not yet been
rescheduled. Mr. Gutierrez, I understand that you feel that the
State has treated you unfairly and I certainly sympathize with
your situation.
However, I have reviewed the facts
of
your case numerous times,
and, unfortunately,
if
your case went to hearing, you would not be
able to convince an administrative law judge to revoke or modify
your suspension.
While I am denying you further representation to pursue your
appeal, SEIU Local 1000 would still be willing to represent you
for the LIMITED purposes
of
settlement. As we have discussed
in cases like this, a state agency is sometimes willing to reduce
the penalty or agree to some other lesser discipline.
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. (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.)
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by Dills Act section 3515. 7(g) and California State Employees'
Association (Norgard) (1984) PERB Decision No. 451-S and thereby violated section
3519.5(b). The duty of fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125;
United Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima facie violation of this section of the Dills Act, Charging Party must show that the
Respondent's conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers
of
Los
Angeles (Collins), the Public Employment Relations Board stated:

SA-CO-446-S
April
1,
2010
Page 3
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance
if
the chances for success are minimal.
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a Charging Party:
must at a minimum include an assertion
of
sufficient facts from
which it becomes apparent how or in what manner the exclusive
representative's action or inaction was without a rational 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.)
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty
of
fair representation "in cases in
which the individual interest at stake is strong and the union's failure
to
perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac
v.
Caterpillar Tractor
Co.
(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.)
Charging Party alleges no facts demonstrating that the Union abused its discretion or that the
Union's actions were without a rational basis or devoid
of
honest judgment. (International
Association
of
Machinists (Attard), supra, PERB Decision No. 1474-M; United Teachers -
Los Angeles (Wyler), supra, PERB Decision No. 970.) Herein, Ms. Campbell reviewed the
facts provided to her and the likelihood
of
success in this matter. After reviewing such
information, Ms. Campbell decided to deny representation with respect to the pursuit
of
Mr.
Gutierrez' appeal, asserting that success was unlikely. Ms. Campbell did, however, state that
the Union would continue to represent Mr. Gutierrez should he choose to settle his case. No
information provided by Charging Party demonstrates that the Union acted arbitrarily or in bad
faith. 	A union may refuse to pursue an appeal if it makes a reasonable determination that the
appeal lacks merit. (Service Employees International Union, Local 715, AFL-CIO (Caviglia)
(1995) PERB Decision No. 1116.) Accordingly, the charge fails to provide sufficient
information to conclude that the Union breached its duty to fairly represent Mr. Gutierrez.

SA-CO-446-S
April
1,2010
Page 4
For these reasons the charge, as presently written, does not state a prima facie case. 2
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 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 corner
of
the charge form. 	The amended charge
must
be
served on the respondent's representative and the original proof
of
service must be filed with
PERB.	
If
an amended charge or withdrawal
is
not filed on or before April 8, 2010,3 PERB will
dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
KN
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." (lb id.)
3 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)