Service Employees International Union, Local 1021 (Horan) (PERB 2204M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL HORAN,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Respondent.
Case No. SF-CO-219-M
PERB Decision No. 2204-M
September 23, 2011
Appearances: Chauvel, Abraham, Descalso by A.K. Abraham, Attorney, for Michael Horan;
Weinberg, Roger and Rosenfeld by Vincent A. Harrington, Jr., Attorney, for Service
Employees International Union, Local 1021.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Pubiic Empioyment Relations Board
(PERB or Board) on appeal by Michael Horan (Horan) of a Board agent's dismissal ofHoran's
unfair practice charge. The charge alleges that Service Employees International Union, Local
1021 (SEIU) violated the Meyers-Milias-Brown Act (MMBA) 1 by failing to represent Horan at
an arbitration hearing that arose out of disciplinary proceedings. The charge alleges that this
conduct constitutes a violation of MMBA section 3509 et seq. and PERB Regulation 32604.2
The Board agent dismissed the charge as untimely.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et

We have reviewed the unfair practice charge, the amended charge, the warning and
dismissal letters, the appeal and the entire record in light of the relevant law. Based on this
review, we affirm the dismissal for the reasons set forth below.
BACKGROUND
Horan was employed as a park patrol officer in the Recreation and Park Department of
the City and County of San Francisco (City), and was a member of a bargaining unit
represented by SEIU.
Horan filed an unfair practice charge on January 12, 2010. The charge states in its
entirety:
The union failed to represent me at an arbitration hearing
scheduled for July 13, 2009 involving discipline imposed against
me by my employer. This was an independent failure to
represent me; it also was a continuing practice of the union of
failing to process grievances filed by me as early as
September 2008. For the union's failure to properly represent
me, I seek the pay and other benefits I should have received 'but
for' the union's breach of its duty of fair representation, estimated
at $32,000+, plus the pension benefit differential (amount
currently undetermined).
(Bold added.)
SEIU' s position papers in response to the charge included a copy of a complaint for
damages (civil complaint) filed by Horan in the United States District Court for the Northern
District of California on March 13, 2009, against the City, SEIU and an individually named
defendant. 3 The first claim for relief in the civil complaint is against the City and SEIU for
breach of the duty of fair representation. 	this claim, Horan alleges that he submitted
multiple grievances with SEIU alleging contract violations, in September and December of
3 According to Horan, the lawsuit was ultimately dismissed.
2

2008. The civil complaint alleges that Horan was constructively discharged on November 21,
2008, and compelled to resign. The civil complaint also alleges that SEIU never responded to
the grievances. 4
· Based in part on Horan's own allegations in the civil complaint, the Board agent issued
a warning letter advising Horan that his charge was untimely. The Board agent concluded that
the July 13, 2009, arbitration referenced in the unfair practice charge was the culmination of
the September and December 2008, grievances referenced in the complaint, and that the
statute of limitations began to run at the time SEIU refused to process the grievances rather
than at a later date when the grievances were elevated to arbitration.
In response to the warning letter, Horan filed an amended charge on August 4, 2010,
which differed from the original charge in three ways: 	(1) a sentence in the original charge,
which appears in bold in the above quoted material, was deleted; (2) the sentence immediately
following the deleted sentence was changed to specify that the failure to represent was "in the
arbitration;" and (3) the remedy was slightly modified (in a manner not material here).
Because the Board agent concluded that Horan failed to provide her with additional facts
responsive to her request in the warning letter, the charge was dismissed as untimely by letter
dated August 9, 2010.
Horan argues on appeal that by stripping the charge of any reference to the earlier
grievances, Horan cured the timeliness issue because the only remaining allegation concerns
conduct that ostensibly occurred within the six-month limitations period, i.e., SEIU's failure to
represent Horan at the July 13, 2009 arbitration.
4 SEIU relies on the civil complaint to argue that Horan knew or should have known of
the conduct underlying the unfair practice charge on March 13, 2009, the date Horan sued
SEIU for breach of the duty of fair representation. Because the charge was not filed within six
months of this date, SEIU argues that it is untimely. For reasons explained herein, the Board
assumes for purpose of analysis that the charge was timely filed.
3

Horan' s appeal also provides the factual context in which the July 13, 2009 arbitration
occurred, facts that had not been previously alleged. In or around September 2008, the City
expressed an intent to suspend Horan for an alleged infraction of the City's harassment policy.
In or around October 20008, Horan participated in a Skell/ hearing and was represented by
SEIU. Following the Skelly hearing, the City affirmed the suspension. At SEIU's request, the
July 13, 2009 arbitration was scheduled in order to challenge the suspension. According to
Horan, Horan and SEIU were in contact in the weeks preceding the arbitration. On the day of
the arbitration, SEIU called Horan to tell him that SEIU would not be representing him. 	When
Horan called the arbitrator, he was told that SEIU had cancelled the arbitration.
DISCUSSION
Timeliness
A charging party bears the burden of demonstrating that the unfair practice charge is
timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024; State of
California (Department of Insurance) (1997) PERB Decision No. 1197-S.) For a charge to be
timely, the alleged unfair practice has to have 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 & Vector
Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4 th 1072.) The limitations
period begins to run once the charging party knows, or should have known, 	the conduct
5 Because permanent public employees have a protected property interest in their
employment, they are entitled to certain pre-disciplinary due process safeguards, including the
right to respond, either orally or in writing, to the authority imposing the discipline. (Skelly v.
State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly).)
4

underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision
No. 1177.)6
In cases alleging a breach
of
the duty
of
fair representation, the six-month 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.
(Los Rios College Federation
of
Teachers, CFT/AFT (Violett, et al.) (1991) PERB Decision
No. 889.)
In the amended charge, the only conduct complained
of
by Horan is SEIU's failure to
represent him at the July 13, 2009 arbitration. Despite having been asked to do so, Horan did
not provide the Board agent with sufficient facts in which to easily determine the nature
and
genesis
of
the July 13, 2009 arbitration. In dismissing the charge, the Board agent relied
in
part on information from the civil complaint provided by SEIU to find that the July 13, 2009
arbitration was the culmination
of
earlier grievances that SEIU had refused to process.
(Service Employees International
U11ion
#790 (Adza) (2004) PERB Decision No. 1632-M
[nothing in the MrABA or PERB law requires a Board agent to ignore the facts provided by the
respondent and 	only consider the facts provided by the charging party].)
Based
0:1
the allegations in the amended charge alone, it appears that the July 13, 2009
arbitration com ,3rned a disciplinary action that was not necessarily an outgrowth
of
the earlier
grievances. 	Accordingly, for purposes
of
reaching the issue whether the charge states a prima
facie breach
of
the duty
of
fair representation, we find that the charge was timely filed because
it was filed on January 12, 2010, which is within the six-month limitations period, using
July 13, 2009, as the date upon which the statute
of
limitations began to run.
6 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.)
5

New Evidence on Appeal
In his appeal, Horan presents, new factual allegations that were not presented in the
original or amended charge. These allegations concern the circumstances in which the July 13,
2009 arbitration arose including the City's expression of intent to suspend Horan in September
2008, the Skelly hearing in October 2008, the contact between Horan and SEIU prior to the
arbitration, and the pull-out by SEIU and cancellation of the arbitration on July 13, 2009.
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (Los Banos
Unified School District (2009) PERB Decision No. 2063 [new evidence on appeal not
considered where charging party was aware of such evidence prior to filing the charge and
there was no demonstration of good cause].) The purpose of this regulation "is to require the
charging party to present its allegations and supporting evidence to the Board in the first
instance, so that that Board agent can fully investigate the charge prior to deciding whether to
issue a complaint or dismiss the case." (South San Francisco Unified School District (1990)
PERB Decision No. 830.)
On July 9, 2010, the Board agent issued a warning letter advising Horan that the charge
"as presently written" does not state a prima facie case. The Board agent invited Horan to
amend the charge if there were any factual inaccuracies in the warning letter. Horan was also
invited to provide additional facts that would correct the deficiencies in the charge as outlined
in the warning letter. In response, Horan filed an amended charge that in main part deleted a
sentence from the original charge, and provided no additional facts. 	The Board agent
dismissed the charge on August 9, 2010.
All of the allegations presented by Horan for the first time on appeal refer to events that
predate the dismissal of the charge. Horan does not offer any evidence of good cause for his
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failure to provide these new allegations to the Board agent at the charge processing stage.
Thus, they are not considered here.
The Prima Facie Case
Charging Party's Burden
PERB Regulation 326 l 5(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 (State
of
California), 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 purpose
of
the Board agent's review is to determine
if
the charge states sufficient
facts which,
if
proven, would constitute an unfair practice. (Regents
of
the University
of
California (2004) PERB Decision No. 1585-H; SEIU - United Healthcare Workers West,
Local 2005 (Hayes) (2011) PERB Decision No. 2168-M.) At the charge processing stage, the
burden to provide specific allegations
of
fact, which demonstrate a prima facie case that an
unfair practice has been committed, is on the charging party. (Sacramento Municipal Utility
District (2006) PERB Decision No. 1838-M.)
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 1213, 1219 (Hussey).) In Hussey, the court further held that the duty of fair
7

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." (Ibid.)
In order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum allege 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.)
The duty of fair representation extends only to contractually-based remedies under the
union's exclusive control. (Bay Area Air Quality Management District Employees Association
(Mauriello) (2006) PERB Decision No. 1808-M (Bay Area Air); Professional Engineers in
California Government (Lopez) (1989) PERB Decision No. 760-S (Professional Engineers);
California State Employees Association (Parisi) (1989) PERB Decision No. 733-S [duty of
fair representation extends only where union is acting in its capacity as the exclusive
representative].) There is no duty of fair representation owed to a unit member unless the
exclusive representative possesses the exclusive means by which such member can obtain a
particular remedy. (Ibid.) The duty of fair representation does not apply in cases involving a
forum that concerns an individual right unconnected with negotiating or administering a
collective bargaining contract. (International Union of Operating Engineers, Local 501,
AFL-CIO (Huff) (2000) PERB Decision No. 1382-S; California State Employees Association
(Darzins) (1985) PERB Decision No. 546-S [union's refusal to provide representation in an
8

extra-contractual proceeding does not bar individual from seeking redress on his own]; Los
Rios College Federation a/Teachers, Local 2279, CFTIAFT, AFL-CIO (Deglow) (1993) PERB
Decision No. 992.)
Consistent with these principles, PERB has long held that a union has no duty to
represent its members at pre-deprivation Skelly hearings. The duty of fair representation does
not apply in a Skelly hearing because disciplinary issues are ordinarily handled in extra
contractual proceedings where the union does not possess exclusive control over the means to a
particular remedy. (Bay Area Air, supra, PERB Decision No. 1808-M; Professional
Engineers, supra, PERB Decision No. 760-S; Service Employees International Union,
Local 99 (Wardlaw) (1997) PERB Decision No. 1219.)7
The amended charge here consists of two sentences. The first sentence describes the
alleged actionable conduct; the second describes the remedy sought. In the first sentence,
Horan alleges that SEIU "failed to represent me at an arbitration hearing scheduled for July 13,
2009 involving discipline against me by my employer." He, hO\vever, does not allege any 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. In other words, Horan
does not show how SEIU's failure to represent him at the arbitration constitutes a breach of
7 In Lane v. IO. UE. Stationary Engineers (1989) 212 Cal.App.3d 164, 169-171 (Lane),
the court held that even though the duty of fair representation is inapplicable in extra
contractual proceedings, a duty "akin" to the duty of fair representation may arise where the
union chooses to provide representation. PERB, however, has never adopted this theory as the
basis for an unfair practice charge. (California Teachers Association and Oakland Education
Association (Welch) (2006) PERB Decision No. 1850; see also, California Union of Safety
Employees (John) (1994) PERB Decision No. l 064-S [reversing in part proposed decision
finding breach of duty based on Lane theory, Board found it unnecessary "to determine
whether a Lane duty of fair representation attaches to union representation in extra-contractual
services"].) Rather, PERB has viewed the court's decision in Lane as implicating a cause of
action in state court outside PERB's jurisdiction. (Oakland Education Association (McKee!)
(2000) PERB Decision No. 1383; California State Employees Association (Cohen) (1993)
PERB Decision No. 980-S.)
9

the duty of fair representation. Arguably the who, when and where are adequately alleged, but
the what and how are almost entirely missing. Even under a liberal interpretation of the
charging party's burden, the amended charge fails to state a prima facie violation.
Even were we to consider the facts alleged for the first time on appeal, they do not
remedy the problem. In the appeal, Horan alleges that "at the last minute" SEIU withdrew
from its prior commitment to represent him at the July 13, 2009 arbitration "after having
represented him in the predecessor Skelly hearing."
As stated by Horan, the July 13, 2009 arbitration arose out of a "predecessor Skelly
hearing." He does not, however, allege that SEIU's representation arose out of an obligation
found in the collective bargaining agreement (CBA). Horan did not include a copy of the CBA
with his charge, nor did he allege the specific CBA provision he claims was violated in the
disciplinary action taken against him. Neither did Horan allege that SEIU possessed exclusive
control over the July 13, 2009, post-Skelly arbitration hearing and the available remedies
associated with that process. Thus, there is no factual showing that there was anything more at
stake than an individual right unconnected with negotiating or administering a collective
bargaining agreement. Similarly, there was no factual showing that Horan was not allowed to
represent himself or that SEIU prevented him from doing so.
As discussed above, it is Horan' s burden to allege the "who, what, vvhen, where and
how" ofan unfair practice. (State of California, supra, PERB Decision No. 1071-S.)
Otherwise, the Board is left to guess at the facts necessary to establish a prima facie violation,
which it cannot do.
Accordingly, we find that Horan fails to meet his burden of providing specific
allegations of fact demonstrating a prima facie breach of the duty of fair representation.
10

ORDER
The unfair practice charge in Case No. SF-CO-219-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
11