American Federation of State, County, and Municipal Employees, Local 2620 (McGuire) (PERB 2286S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

KELLY MCGUIRE,
Charging Party, Case No. SF-CO-58-S
v. PERB Decision No. 2286-S
AMERICAN FEDERATION OF STATE, September 24, 2012
COUNTY, AND MUNICIPAL EMPLOYEES,
LOCAL 2620,
Respondent.

Appearance: Kelly McGuire, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Kelly McGuire (McGuire) from the dismissal (attached)
by the Office of the General Counsel of her unfair practice charge. The charge, as amended,
alleged that the American Federation of State, County, and Municipal Employees, Local 2620
(AFSCME) breached its duty of fair representation by failing to adequately represent McGuire
in dealings with her former employer, the California Department of Social Services, in
violation of the Ralph C. Dills Act (Dills Act)’ sections 3515.7(g) and 3519.5(b). The Board
agent found that most of the allegations were untimely and that the charge failed to state a
prima facie case of violation of the duty of fair representation or retaliation.

The Board has reviewed the dismissal and the record in light of McGuire’s appeal
and the relevant law. Based on this review, we find the dismissal and warning letters to be

well-reasoned, adequately supported by the record, and in accordance with applicable law.

' The Dills Act is codified at Government Code section 3512 et seq.

Accordingly, the Board adopts the dismissal and warning letters as the decision of the Board
itself, supplemented by the discussion below.
DISCUSSION
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635(a),2 an appeal from dismissal must:
( 1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements of PERB Regulation 32635(a), the appeal must sufficiently
place the Board and the respondent "on notice of the issues raised on appeal." (State
Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H
(State Employees Trades Council); City & County of San Francisco (2009) PERB Decision
No. 2075-M.) An appeal that does not reference the substance of the Board agent's dismissal
fails to comply with PERB Regulation 32635(a). (United Teachers of Los Angeles (Pratt)
(2009) PERB Order No. Ad-381 (Pratt); Lodi Education Association (Hudock) (1995) PERB
Decision No. 1124; United Teachers - Los Angeles (Glickberg) (1990) PERB Decision
No. 846.) Likewise, an appeal that merely reiterates facts alleged in the unfair practice charge
does not comply with PERB Regulation 32635(a). (Pratt; State Employees Trades Council;
Contra Costa County Health Services Department (2005) PERB Decision No. 1752-M; County
of Solano (Human Resources Department) (2004) PERB Decision No. 1598-M.)
The appeal in this case merely restates facts alleged in the original charge. It fails,
however, to reference any portion of the Board agent's determination or otherwise identify the
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

specific issues of procedure, fact, law or rationale to which the appeal is taken, the page or part
of the dismissal to which appeal is taken, or the grounds for each issue. Thus, it is subject to
dismissal on that basis. (City of Brea (2009) PERB Decision No. 2083-M.)
New Evidence and Allegations on Appeal
In her appeal, McGuire presents new factual allegations and evidence that were not
presented in the original charge or the amended charge. "Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence."
(PERB Reg. 32635(b); see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011)
PERB Decision No. 2175-H.) The Board has found good cause when "the information
provided could not have been obtained through reasonable diligence prior to the Board agent's
dismissal of the charge." (Sacramento City Teachers Association (Ferreira) (2002) PERB
Decision No. 1503.)
On December 22, 2011, the Board agent issued a letter advising McGuire that the
charge failed to state a prima facie case and warning her that the charge would be dismissed
unless she amended the charge to state a prima facie case. 3 McGuire filed a first amended
charge on April 2, 2012.4 AFSCME filed a response to the first amended charge on April 18,
2012. On April 30, 2012, the Board agent dismissed the charge. On May 2, 2012, PERB
received a letter from l\1cGuire dated April 30, 2012, stating that it was a "response in dispute
to Mr. Baker's letter dated April 26, 2012." It appears this letter was intended to be a reply to
AFSCME's April 18, 2012 response to the amended charge. Attached to this letter were the
following documents that were not previously provided to the Board agent: 	(1) an email thread
The warning letter gave McGuire until January 9, 2012, within which to file an
amended charge. The file indicates that McGuire was given an extension of time until April 2,
2012, to file an amended charge.
4 The proof of service attached to the amended charge states that it was sent by
facsimile and by U.S. mail on March 30, 2012.
3

reflecting a communication on May 10, 2011, from McGuire to AFSCME Director George
Popyack (Popyack) in response to an email from Popyack dated April 18, 2011; and (2) a letter
dated May 25, 2011, from McGuire to AFSCME President Gerald McEntee. The letter further
asserts that McGuire contacted AFSCME on or about February 22, 2011, and that the April 18,
2011 letter was the last communication McGuire received from Popyack.
McGuire filed an appeal from the dismissal on June 13, 2012. The appeal includes the
following attachments: (1) McGuire's March 30, 2012 letter in support
of
her amended
charge; (2) McGuire's April 30, 2012 letter received by PERB on May 2, 2012; and
(3) additional copies
of
the April
18
and May 10, 2011 emails and May 25, 2011 letter attached
to McGuire's April 30, 2012 letter. As indicated above, the April 30, 2012 letter was not
received by PERB until May 2, 2012, after the General Counsel had already dismissed the
charge. 	The appeal provides no reason why these documents and factual allegations could not
have been included in the original charge or in an amended charge. Thus, we do not find good
cause to consider these new allegations.
Even
if
we were to consider the additional ailegations and evidence, however, we
would still agree with the General Counsel that the charge failed to state a prima facie violation
of
the duty
of
fair representation. As set forth in the dismissal letter, Popyack repeatedly
requested that McGuire inform him whether she wished to have an AFSCME business agent
represent her at 	State Personnel Board (SPB) hearing or to confirm that she had
private counsel. McGuire's May 10, 2011 response continues to fail to provide this
information. The May 25, 2011, letter continues to request that AFSCME provide "effective
assistance of counsel/advocate" to represent McGuire in her hearing before the SPB, but fails
to provide the information requested by AFSCME concerning her use of private counsel. As
4

noted in the dismissal letter, AFSCME voluntarily represented McGuire at a Skelly5 meeting
and a settlement conference, although it had no initial obligation to do so. (Service Employees
International Union, Local I 021 (Horan) (2011) PERB Decision No. 2204-M; California
Correctional Peace Officers Association (Kashtanojj) (1993) PERB Decision No. 1007.)
These additional facts, even if considered, do not demonstrate that AFSCME's conduct in
attempting to determine whether McGuire was represented by private counsel violated its duty
of fair representation. Accordingly, we affirm the dismissal of the charge.
ORDER
The unfair practice charge in Case No. SF-CO-58-S is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
5 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
5

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
F
April 30, 2012
Kelly McGuire
P. 0. Box 11072
Santa Rosa, CA 95406
Re: 	Kelly McGuire v. AFSCME Local 2620
Unfair Practice Charge No. SF-CO-58-S
DISivIISSAL LETTER
Dear Ms. McGuire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 15, 2011. Kelly McGuire (McGuire or Charging Party)
alleges that AFSCME Local 2620 (AFSCME, Union or Respondent) violated the Ralph C.
Dills Act (Dills Act) 1 by failing to adequately represent her in dealings with her former
, employer. ,-, 	,,
Charging Party was informed in the attached Warning Letter dated December 22, 2011, 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 that letter, the charge should be amended. Charging Party was further advised
that, unless the charge was amended to state a prima facie case or withdrawn prior to January
9, 2012, the charge would be dismissed. 	Subsequently, an extension of time to respond was
granted.•
On April 2, 2012, Charging Party filed a First Amended Charge (FAC). AFSCME has filed
position statements dated January 17, 2012, and April 18, 2012. Because the FAC does not
cure the deficiencies discussed in the Warning Letter, the charge is hereby dismissed based
upon the reasons set forth herein and in the-December 22, 2011 Warning Letter.
Summary of Additional Facts Alleged in the First Amended Charge
As stated 	the \Varning 	McGuire was employed by the California Department of
Social Services (Department) in a position exclusively represented by AFSCME. From April
2008 through September 23, 2010, McGuire sought the union's assistance on a number of
occasions, and also filed complaints with the employer and 	administrative agencies.
Details of these events are summarized in the Warning Letter, and McGuire supplies additional
details in the FA C.
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.

SF-CO-58-S
April 30, 2012
Page 2
On June 27, 2008, AFSCME filed a letter of complaint regarding McGuire's hostile work
environment, but AFSCME "ultimately never followed through with this grievance." Later,
McGuire asked AFSCME business agent Pam Manwiller (Manwiller) for union representation
regarding weekly case load review meetings with management. 	Manwiller replied that she was
too busy to drive to McGuire's workplace in Rohnert Park, and asked McGuire to have a co-
worker accompany her in meetings with management. McGuire believes this violated her
Weingarten rights.2
In January 2009, Manwiller filed a grievance on McGuire's behalf regarding a negative
performance evaluation of McGuire. However, AFSCME "ultimately never followed through
with this grievance."
In February 2009, McGuire feared that a co-worker was being aggressive and hostile. She
reported this to her supervisor. She then told Manwiller she feared for her safety and also
feared retaliation for reporting this to management. Manwiller ignored McGuire's concerns
and did not represent McGuire when she was subsequently interviewed about the incident.
Later McGuire was "written up" for an alleged violation of an informal office procedure.
McGuire believes AFSCME's conduct violated her Weingarten rights.··
In March 2009, McGuire received a Notice of Adverse Action from her employer and was
suspended from employment for 30 days. On March 25, 2009, Manwiller represented
McGuire at a Skelly hearing and the suspension was reduced to 15 days. After the Skelly
hearing, Manwiller said she had advised management to issue McGuire an additional set of
expectations beyond what other staff had received. McGuire alleges that "it is apparent
Manwiller requested [that] management reprimand McGuire for asking Manwiller's assistance
regarding representation." After the Skelly hearing, Manwiller suggested McGuire leave her
employment and go live with her family. 	McGuire alleges that Manwiller was trying to get
McGuire to leave so that Manwiller would not have to travel to McGuire's Rohnert Park
workplace, which had a hostile environment.
On January 4~ 2010, McGuire called Man willer to confirm a settlement conference before the
State Personnel Board (SPB) scheduled for the next day. Manwiller replied that the settlement
conference had been cancelled because the SPB had told her a settlement offer had been
accepted. 	settlement conference was held on January 5, 2010 with a different
Administrative Law Judge (ALJ) than the one originally assigned.
alleges that Manwiller pressured 	into accepting a one-day suspension in
settlement of 	adverse action. It is unclear whether the SPB matter concerned the March
2009 adverse _action or some subsequent adverse action. McGuire alleges that Manwiller
2 In National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.

SF-CO-58-S
April 30, 2012
Page 3
recommended that McGuire accept the one-day suspension in settlement because it was a good
offer, and that if McGuire did not accept it there would be a hearing. Manwiller stated, "no
one cares that you have a disability," and "No one is going to listen to you." Manwiller
warned that the adverse action would stay in McGuire's personnel file for the rest of her
career.
On July 16, 2010, Manwiller represented McGuire in an internal investigation meeting at the
Department regarding a complaint filed by a co-worker. 	During this meeting, McGuire raised
a number of complaints concerning the Department's failure to accommodate her disability and
her fear at work for her personal safety.
In July 2010, McGuire filed a police report alleging that a co-worker had made threats against
her. AFSCME did not file any grievances concerning this incident.
On August 2, 2010, McGuire was placed on administrative time off. Department Regional
Manager Linda Kryla (Kryla) called McGuire at home to tell McGuire she was to testify
pursuant to a subpoena dated August 6, 2010, despite this creating a conflict with her
placement on administrative time off. McGuire contacted Manwiiler for clarification, however
Manwiller deferred providing clarity.
On August 5, 2010, Manwiller told McGuire that McGuire could file her own grievances.
McGuire then told AFSCME Director George Popyack that Manwiller said that employees
could file their own grievances. Popyack dismissed McGuire's report. McGuire ultimately
sent certified letters and e-mail messages to AFSCME President Gerald McEntee (McEntee),
which were ignored.
On December 13, 2010, McGuire received notice that the Department intended to dismiss her
from employment. On December 16, 2010, there was a Skelly meeting3 which included
McGuire and Manwill er. During this meeting, Manwill er told McGuire that her October 2010
appeal would be denied. It cannot be determined what this appeal denial refers to. McGuire
believes that Man willer had a continuing strategy to get McGuire to drop all of her grievances
prior to the January 5, 2010 SPB settlement conference. 	After the Skelly meeting, Manwiller
angrily screamed at McGuire: "you ruined my reputation! I have been getting calls from all
over the country about you!"
On December 21, 2010, the Skelly officer Sandra LaBaron (LaBaron) upheld the decision to
terminate. McGuire alleges, "It was not until this point that Manwiller' s intentions per her
prejudiced representation by insisting McGuire accept the unfavorable agreement of January 5,
"Skelly v. State Personnel Board (1975) 15 Cal.3d 194 held that due process mandates
that certain employees be accorded procedural rights before the imposition of discipline
becomes effective. A pre-discipline meeting held as part of these procedural rights is
commonly referred to as a Skelly meeting.

SF-CO-58-S
April 30, 2012
Page 4
2010 completely extinguished McGuire's right to pursue the grievances Man willer negligently
did not pursue."
On January 20, 2011, Man willer resigned from her position with AFSCME and returned to her
previous employment at the California Department
of
Personnel Administration (DP A).
McGuire believes that Manwiller's conduct towards her was discriminatory because Manwiller
had been trying to get a job with DPA.
On February 10, 2011, on AFSCME's recommendation, McGuire requested copies
of
her
personnel file.
On February 15, 2011, Popyack assigned Gregory Ramirez (Ramirez) to represent McGuire at
the SPB settlement conference on McGuire's dismissal. Ramirez admitted to McGuire that the
last woman he had represented had been terminated due to Ramirez's inadequate
representation. He told McGuire
"if
she did not accept the unlawful settlement [then] not to
call."
The SPB settlement conference apparently did not result in a settlement. McGuire repeatedly
called and sent e-mail messages to Popyack, requesting representation at the upcoming SPB
evidentiary hearing. As
of
March 11, 2011, Popyack had not responded.
On March 30, 2011, McGuire went to the Department's office in Sacramento to view copies
of
her personnel file. There were 118 pages to view.
On April 14, 2011, McGuire received a letter from the Department informing her that it had an
enormous number
of
documents which McGuire had not been told were available, or permitted
to view, on March 30, 2011.
On September 26, 2011, McGuire attended an evidentiary hearing before the SPB. It was
continued to November 28, 2011 through December
1,
2011. On November 28, 2011 through
December
1,
2011,•
McGuire represented	A
	herself and there were no further communications
from AFSCME. McGuire believes she was dismissed on the basis
of
her protected activity.
She further alleges that AFSCME allowed all grievances it filed on McGuire's behalf since
2008, to be ignored resulting in dismissal
of
the grievances.
Position of the Respondent
ASCME alleges that when Manwiller resigned from AFSCME, it assigned Ramirez to
represent McGuire 	a February 1 	2011 SPB settlement conference regarding McGuire's
dismissal. At that conference, the State made a generous settlement offer, which
recommended that McGuire accept. The ALJ also recommended that McGuire accept the
settlement offer. McGuire declined the offer and decided to proceed with the hearing, then
scheduled for April 25,201 L

SF-CO-58-S
April 30, 2012
Page 5
On Marchi i, 2011, McGuire asked AFSCME representative Yvonne Wheeler (Wheeler) to
provide an attorney for the hearing. Wheeler explained that the Union would not pay for an
attorney, but would provide an AFSCME business representative. McGuire asked that
AFSCME assign someone other than Ramirez, and AFSCME agreed.
By e-mail message dated March 12, 2011, Popyack told McGuire she could choose to have an
AFSCME business agent represent her at the hearing, at the Union's expense, or she could
choose to retain private counsel, at her own expense. The Union's policy is that it will not
provide a business agent if the member has retained private counsel; the member must choose
one or the other but may not choose both.
McGuire did not immediately respond and on March 15, 2011, Popyack sent her another e-
mail message to confirm she had received the first one.
On March 21, 2011, McGuire replied to Popyack, but did not answer his question regarding
whether she was choosing to have a business agent represent her or retain her own counsel. At
some point between March 15 and March 26, 2011, AFSCME learned that McGuire had
retained an attorney, Steven Bassoff (Basso ff) to represent her at the hearing, and that Basso ff
had filed a request with SPB to postpone the hearing.
By e-mail message dated March 26, 2011, Popyack informed McGuire that the Union had
learned that she had retained counsel and asked her again to confirm that she would not need
AFSCME to provide representation. McGuire responded via e-mail message on March 31,
2011, but again did not answer Popyack' s question. McGuire sent several further e-mail
messages to Popyack, referring back to her March 31, 2011 e-mail message, but still not
answering the question.
The Union subsequently learned from the Department's attorney that Bassoff had represented
McGuire at the SPB hearing but had left before the hearing concluded.
Standard of Review and Burden of Proof
In determining whether a prima facie case exists, PERB must accept Charging Party's facts as
true. (Golden Plains Unified School District (2002) PERB Decision No. 1489.) It is not the
function of the Board agent to judge the merits of the Charging Party's dispute. (Ibid) Where
there is a material factual dispute the Charging Party's allegations must be accepted as true.
(UPTE, CWA Local 9119 (Crisosto) (2006) PERB Decision No. 1811-H.) However, a Board
Agent is not required to ignore the facts provided by Respondent and to only consider the facts
provided by Charging Party. (Service Employees International Union #790 (Adza) (2004)
PERB Decision No. 1632-M.) Further, factually unsupported legal conclusions in the charge
need not be accepted as true. (Charter Oak Unified School District (1991) PERB Decision
No. 873.)
As stated in the Warning Letter, the charging party's burden includes alleging facts showing
that the unfair practice charge was timely filed; i.e., that the alleged unfair practice occurred no

SF-CO-58-S
April 30, 2012
Page 6
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 Co,nmunity College District
(1996) PERB Decision No. 1177.) In a charge alleging that a union breached its duty
of
fair
representation, the limitations period begins to run when the charging party knew, or should
have known, that further assistance from the union was unlikely. (IFPTE, Local 21, AFL-CJO
(Hosny) (2011) PERB Decision No. 2192-M.)
Discussion
A. 	Skelly Meetings and SPB Dismissal Hearing
Charging Party has aileged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by Dills Act section 3 515. 7(g) and California State Employees'
Association (Norgard) (1984) PERB Decision No. 451-S and thereby violated section
3 519 .5(b). 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 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, CTA/NEA (Reyes) (1983) PERB Decision No. 332.)
As discussed in the Warning Letter, the union's duty is to enforce the negotiated agreement;
the Union's duty generally does not extend to extra-contractual proceedings including Skelly
meetings and SPB proceedings. (United Faculty
of
Grossmont-Cuyamaca Community College
District (Tarvin) (2010) PERB Decision No. 2133; California Correctional Peace Officers
Association (Kashtanojj) (1993) PERB Decision No. 1007.) Under some circumstances,
if
a
union voluntarily undertakes representation in an extra-contractual forum, it may be held to the
duty
of
fair representation described above. (Lane
vo
IUOE Stationary Engineers, Local 39
(1989) 212 Cal.App.3d 164; California Union a/Safety Employees (John) (1994)
Decision No. 1064-S.)
AFSCME represented McGuire at her March 2009 Skelly meeting, although it apparently did
not have a contractual duty to do so. McGuire's proposed suspension was subsequently
reduced. 	There are no facts to establish that AFSCME breached its duty of fair representation

SF-CO-58-S
April30,2012
Page 7
by representing her at the March 2009 Skelly meeting. Moreover, the March 2009 Skelly
meeting occurred more than six months prior to the filing
of
the instant charge and therefore
allegations
of
a violation arising from this meeting are untimely filed. 	(JFPTE, Local 21, AFL-
CJO (Hosny), supra, PERB Decision No. 2192-M; Coachella Valley Mosquito and Vector
Control District
v.
Public Employment Relations Board, supra, 35 Cal.4th 1072.)
On January
5,
2010, AFSCME represented McGuire at an SPB settlement conference.
McGuire received a one-day suspension in settlement
of
an unspecified proposed adverse
action. McGuire alleges that AFSCME recommended that she accept the settlement instead
of
going forward to an SPB hearing. McGuire apparently took this advice. She alleges that
Manwiller "pressured" her into accepting the settlement, but there is nothing alleged to
establish that this was a violation
of
the duty
of
fair representation. (California School
Employees Association, Chapter 296 (Morrison) (2000) PERB Decision No. 1415 [union's
advice that employee resign to avoid further investigation did not violate duty
of
fair
representation].)
On December 16, 2010, AFSCME represented McGuire at another Skelly meeting.
Subsequently the Skelly officer upheld the employer's decision to terminate McGuire. After
the hearing, Manwiller angrily told McGuire "you ruined my reputation! 	I have been getting
calls from all over the country about you!" Shortly thereafter, Manwiller resigned from
AFSCME and returned to her previous employment at DP A. The facts that Manwiller made a
single angry outburst after the Skelly hearing, and later took another job, do not demonstrate
that the Union failed to fairly represent McGuire with respect to the Skelly meeting.
On February 15, 2011, AFSCME assigned Ramirez to represent McGuire at an SPB settlement
conference. As with the previous SPB settlement conference, it appears that the Union
voluntarily undertook this representation although under no initial obligation to do so. 	It
appears that McGuire alleges that Ramirez also pressured her to accept an "unlawful"
settlement, but does not allege any facts to establish how the proposed settlement was unlawful
or how Ramirez's conduct violated the duty
of
fair representation. Subsequently, McGuire
obtained private counsel to represent her at further proceedings. AFSCME was under no
obligation to provide her with legal counsel or the representative
of
her choice. (SEIU
Local I 021 (Delarge) (2009) PERB Decision No. 2068; Los Rios College Federation
of
Teachers/CFTIAFT Local 2279 (Deglow) (1998) PERB Decision No. 1275.)
Failure to File Grievances
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) 	Decision No. 258.) 	order to state a
facie violation of this duty under 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:

SF-CO-58-S
April 30, 2012
Page 8
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.
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.)
In June 2008, AFSCME filed a "letter of complaint" on McGuire's behalfregarding a hostile
work environment claim. McGuire alleges that AFSCME "never followed through with this
grievance," but it is unclear whether this was a grievance filed under the labor agreement or a
complaint to an outside agency. No other facts concerning this grievance. are provided.
In approximately January 2009, AFSCME filed a grievance on McGuire's behalf regarding a
"damaging evaluation" that prevented McGuire from getting a promotion. However,
AFSCME "never followed through with this grievance." No other details concerning this are
provided.
In July 2010, there was a workplace incident which resulted in McGuire filing a police report
alleging that a co-worker had made threats against her. AFSCME did not file any grievances
concerning this incident.
On August 5, 2010, Manwill er advised McGuire that McGuire could file her own grievances.
This is presumed to be a reference to a grievance procedure contained 	a labor agreement
which allows individual employees, as well as a union, to file grievances over violations
agreement. 	(See, e.g., Service Employees International Union, Local 790 (Rax) (2002) PERB
Decision No. 1488; Trustees of the California State University (1997) PERB Decision
No. 1231
These facts are insufficient to establish that AFSCME treated any of these grievances in an
arbitrary, discriminatory or bad faith manner. McGuire also does not meet her burden to
establish that the charge was timely filed within six months of the purported violation.
It appears that two grievances were filed on McGuire's behalf, but there are no facts alleged
concerning the purported contract violation underlying the grievance, or any information

SF-CO-58-S
April 30, 2012
Page 9
concerning when or why AFSCME did not pursue the grievance. With regard to any
grievances arising out
of
the July 2010 workplace incident, there are no facts alleged to
establish that there was any basis upon which AFSCME should have filed a grievance
over
a
contract violation or how AFSCME' s decision not to pursue the grievance would have
constituted arbitrary, discriminatory, or bad faith conduct. Likewise, Manwiller's advice that
McGuire could file her own grievance does not appear to violate the duty
of
fair
representation.
McGuire draws the legal conclusion that Manwiller's insistence that she accept the January 5,
2010 settlement agreement "completely extinguished McGuire's right to pursue the grievances
Manwiller negligently did not pursue"; however this conclusion is unsupported by any facts.
(Charter Oak Unified School District, supra, PERB Decision No. 873.) The facts do not
establish that AFSCME failed, within the limitations period, to perform some specific
ministerial act such that McGuire's claim was completely extinguished. Accordingly, these
allegations do not state a prima facie case.
C. 	Weingarten Rights
An employee required to attend an investigatory interview with the employer is entitled to
union representation where the employee has a reasonable basis to believe discipline may
result from the meeting. PERB adopted the Weingarten4 rule in Rio Hondo Community
College District (1982) PERB Decision No. 260. In order to establish a violation
of
this right,
the charging party must demonstrate: (a) the employee requested representation; (b) for
an
investigatory meeting; (c) which the employee reasonably believed might result in disciplinary
action; and ( d) the employer denied the request. (See Redwoods Community College District
v.
Public Employment Relations Board (1984) 159 Cal.App.3d 617 (Redwoods); Fremont Union
High School District (1983) PERB Decision No. 301; see also, Social Workers' Union, Local
535
v.
Alameda County Welfare Department (1974)
11
Cal.3d 382.)
In Rio Hondo Community College District, supra, PERB Decision No. 260, the Board cited
with approval Baton Rouge Water Works Company (1979) 246 NLRB 995, that provided:
the right to representation applies to a disciplinary interview,
whether labeled as investigatory or not, so long as the interview
in question_ is not merely 	the purpose
of
informing the
employee that he or she is being disciplined.
In approving the Weingarten rule, the U.S. Supreme Court noted with approval that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
conversations as, for example, 	giving of instructions or training or needed corrections
of
In National Labor Relations Board
v.
Weingarten (1975) 420 U.S. 251 (Weingarten),
the U.S. Supreme Court granted employees the right to representation during disciplinary
interviews.

SF-CO-58-S
April 30, 2012
Page 10
work techniques." (Weingarten, supra, 420 U.S. 251, quoting Quality Manufacturing Co.
(1972) 195 NLRB 197, 199.)
A right to union representation may be held to exist, in the absence of an objectively
reasonable fear of discipline, only under "highly unusual circumstances." (Redwoods, supra,
159 Cal.App.3d 617.) The finding of "highly unusual circumstances" in the Redwoods case
was based on the requirement that the employee attend a meeting that she no longer sought
over her appeal of a negative performance rating; the fact that the interview was investigatory
and formal;.the interview was held by a high-ranking official of the employer; and the hostile
attitude of the official toward the employee.
McGuire alleges that AFSCME deprived her of her Weingarten rights in June 2008 when
Manwiller did not agree to attend weekly case load review meetings with her, and in February
2009, when Manwiller did not represent her in an interview about a co-worker's aggressive
conduct. Both of these incidents occurred more than six months prior to the filing of the
instant charge and are therefore untimely. (IFPTE, Local 21, AFL-CIO (Hosny), supra, PERB
Decision No. 2192-M; Coachella Valley Mosquito and Vector Control District v. Public
Employment Relations Board, supra, 35 Cal.4th 1072.) Even if timely, McGuire does not
establish that the elements of the violation are established or that AFSCME, not the employer,
is the proper respondent.
D. 	Totality of Conduct
McGuire contends that the totality of ASCME's conduct demonstrates a breach of the duty of
fair representation. When a charge alleges that an exclusive representative breached its duty of
fair representation by failing to act on behalf of an employee, PERB looks to whether the
cumulative actions of the exclusive representative, considered in their totality, are sufficient to
constitute a prima facie showing of an arbitrary failure to fairly represent the employee.
(Service Employees International Union, Local 1021 (Schmidt) (2009) PERB Decision
No. 2080-M.)
Here, the totality of AFSCME' s conduct demonstrates that it represented McGuire on multiple
occasions over the course of several years. Although McGuire alleges that AFSCME failed to
follow through with grievances, she provides no specifics from which a violation can be
ascertained. With respect to the SPB hearing 	2011, concerning McGuire's termination, it
appears that McGuire elected to have a private attorney represent her instead of an AFSCME
representative, and that AFSCME repeatedly communicated with her regarding the status of
the hearing and her representation. 	of 	facts, no prima facie violation is
established.
Retaliation
In analyzing allegations of discrimination that also violate the duty of fair representation, the
Board follows the principals applicable for violations of parallel provisions prohibiting
employer interference and reprisals. (AFT Part-Time Faculty United, Local 6286 (Peavy)

SF-CO-58-S
April 30, 2012
Page 11
(2011) PERB Decision No. 2194.) In order to prevail on a discrimination theory the charging
party must establish: (1) the employee exercised rights guaranteed by the Dills Act; (2) the
employee organization had knowledge of the exercise of those rights; (3) the employee
organization took adverse action against the employee; and ( 4) the employee took such action
because of the employee's exercise of those protected rights. (Ibid.)
McGuire alleges that Manwiller had failed to pursue grievances on McGuire's behalf because
Man willer was seeking employment with the State DP A, and that this was retaliatory.
However, as discussed above, McGuire does not offer any facts to support her general
statement that AFSCME failed to follow through with unspecified grievances. Even if these
facts were alleged, McGuire alleges Manwiller did not pursue the grievances because
Manwiller was hoping to get a new job, not because McGuire engaged in protected activity
under the Dills Act.
McGuire also alleges that AFSCME retaliated against her for protected activity by not
continuing its representation of her after she had obtained private legal counsel. Under the
standard stated above, these allegations do not state a prima facie violation.
Rhrht to Appeal
Pursuant to PERB Regulations,5 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.)
5 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-58-S
April 30, 2012
Page 12
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 dC?cuments 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.)

SF-CO-58-S
April 30, 2012
Page
13
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
~
iauravtWsRegiofial Attorney
Attachment
cc: Andrew
H.
Baker, Attorney

============~- ===============	STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
F
December 22, 2011
Kelly McGuire
P. 0. Box 11072
Santa Rosa, CA 95406
Re: 	Kelly McGuire v. AFSCME Local 2620
Unfair Practice Charge No. SF-CO-58-S
WARNING LETTER
Dear Ms. McGuire:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 15, 2011. Kelly McGuire (McGuire or Charging Party)
alleges that AFSCME Local 2620 (AFSCME or Respondent) violated the Ralph C. Dills Act
(Dills Act) 1 by failing to adequately represent her in dealings with her former employer.
Summary of Facts as Alleged
Prior to December 17, 2010, McGuire was employed for six years by the California
Department of Social Services (Department) as a Licensing Program Analyst. Her position is
included in State Bargaining Unit 19; and AFSCME is the exclusive representative of Unit 19.
Beginning in or about April 2008, McGuire sought assistance from AFSCME regarding
alleged harassm.ent and discriminatory treatment at work. A meeting was held in June 2008,
between AFSCME representatives and Department managers, regarding these concerns. 	On
June 20, 2008, McGuire received a written reprimand from her supervisor, and was required to
participate in weekly case load review meetings through September 2008. A Department
manager, Linda Kryla, stated to McGuire that the reprimand and meetings were imposed
"because [McGuire J involved the union."
On June 27, 2008, AFSCME filed a "letter of complaint" regarding McGuire's "hostile work
environment." In December 2008, McGuire sought a promotion and was told to obtain an
evaluation. On January 13, 2009, McGuire received a "damaging evaluation that precluded
from obtaining a promotion." AFSCME filed a grievance on McGuire's behalf over the
evaluation.
1 The Dills .Act is codified at Government Code section 3 512 et seq. The text of the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-58-S
December 22, 2011
Page 2
On February
9,
2009, McGuire reported to her supervisor that a co-worker was "conducting
herself in an aggressive and hostile manner towards McGuire" and that McGuire was fearful
of
being assaulted by this co-worker.
On March
5,
2009, McGuire was placed on administrative time
off
and was escorted from her
work location without being informed
of
the reason. 	On March 19, 2009, McGuire was served
with a notice
of
adverse action in the form
of
a 30-day suspension. 	On March 25, 2009, the
suspension was reduced to
15
days. 	AFSCME filed an appeal regarding the adverse action
with the State Personnel Board (SPB). The appeal filed by AFSCME on behalf
of
McGuire
asserted that she was being retaliated against. AFSCME representative Pam Manwiller
(Manwill er) told McGuire that she had "advised management to outline [for] McGuire [ ]
expectations upon her return to work in April 2009." In March 2009 McGuire contacted
AFSCME management requesting fair union representation.
On April 16, 2009, McGuire filed a request for reasonable accommodation with the
Department. The Department did not enter into an interactive process with McGuire over this
request. 	Man willer, the AFSCME representative, "repeatedly screamed at [McGuire] when
conversing,
'If
you do not do your job they will get you for that!"'
On January 5, 2010, Manwiller advised McGuire that her appeal
of
the adverse action was
settled with a one-day suspension. 	Manwiller did not provide fair representation in the
prehearing settlement conference. 	On January
4,
2010, Manwiller had the prehearing
settlement conference originally scheduled for January 5, 2010, rescheduled and reassigned.
On February 10, 2010, McGuire received a merit salary adjustment. 	On May 12, 2010,
McGuire received approval from her supervisor to attend volunteer emergency service training
on June 30, 2010.
On June 2, 2010, McGuire complained to her supervisor about aggressive and hostile behavior
by the same co-worker she had reported earlier in February 2009. 	On June 8, 2010, McGuire
learned that the same co-worker had filed a complaint against McGuire in 2009. 	On July 16,
2010, McGuire was interviewed by an investigator regarding the co-worker's 2009 complaint.
The Department investigated the co-worker's complaint but did not take any action regarding
McGuire's complaint.
On July 21, 2010, McGuire was instructed by the Department's Acting EEO Director "to
report information in violation
of
EEO policy for zero-tolerance for violence in the
workplace." On July 21, 2010, McGuire provided the information as instructed as well as
reporting it to AFSCME representative Manwiller.
On July 23 and 24,2010, McGuire was "written up" on three occasions "for participating in
the Department's EEO investigation and for making the report as instructed by the EEO Acting
Director." On July 29, 2010, McGuire was advised by Department personnel of the right to
take complaints to the police. 	On July 30, 2010, McGuire filed a police report based on
alleged threats made by an unnamed manager.

SF-CO-58-S
December 22, 2011
Page 3
On August 2, 2010, McGuire was again placed on administrative time off, and again escorted
from her work location without being informed
of
the cause.
On August 5, 2010, Manwiller told McGuire she could file her own grievances. McGuire told
another AFSCME representative, George Popyack (Popyack) that Manwiller said this.
Popyack dismissed McGuire's report.
On September 23, 2010, McGuire filed a retaliation complaint with the Equal Employment
Opportunity Commission (EEOC).
On December 13, 2010, McGuire was served with a notice
of
adverse action terminating her
employment with the Department.
On December 16, 2010, after the Skelly hearing, Manwiller angrily screamed at McGuire that
McGuire had ruined her (Manwiller's) reputation.
On January 20, 2011, Manwiiler sent McGuire an e-mail message in appreciation
of
her work
and notifying McGuire that Manwiller had resigned from AFSCME that day. According to
Popyack, Manwiller had returned to her previous employment with the California Department
of
Personnel Administration.
On February 15, 2011, Popyack assigned AFSCME representative Gregory Ramirez (Ramirez)
to attend the prehearing settlement conference.2 Ramirez told McGuire he did not have the
tools to provide her with fair representation.
McGuire alleges that she was terminated in retaliation for her actions
of
seeking assistance
from AFSCME and exercising her rights. McGuire was dismissed because
of
her exercise
of
rights and because AFSCME allowed all grievances filed on McGuire's behalf since 2008 to
be ignored.
Six-lvlonth Statute of Limitations
Dills Act section 3514.S(a)(l) prohibits PERB 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." 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.) A charging party bears the burden
of
demonstrating that the
charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024;
State
of
California (Department
of
Insurance) (1997) 	Decision 	1197-S.)
2 It is assumed that this refers to a proceeding before the SPB.

SF-CO-58-S
December 22, 2011
Page 4
The charge was filed on June 15, 2011. Therefore, allegations occurring prior
to
December 15,
2010 are untimely filed and cannot form the basis
of
a prima facie case. McGuire alleges that
she was suspended in March 2009 and that AFSCME represented her at the subsequent SPB
proceeding. This occurred prior to December 15, 2010 and therefore these allegations are
untimely. McGuire also alleges that Manwiller made an angry statement towards her in
connection with a disability accommodation request. This incident occurred in April 2009.
These allegations are untimely.
McGuire also alleges that Manwiller failed to adequately represent her during an SPB
prehearing settlement conference in January 2010. This allegation is also untimely.
McGuire alleges that in August 2010 Manwill er told McGuire she could file grievances on her
own and Popyack allowed this. 	These allegations are similarly untimely.
Legal
Standard-Duty of
Fair Representation
Charging Party appears to allege that the exclusive representative denied Charging Party the
right to fair representation guaranteed by Dins Act section 3515.7(g) and California State
· Employees' Association (Norgard) (1984) PERB Decision No. 451-S and thereby violated
section
35
I 9.5(b
}.
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 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 asse1iion
of
sufficient facts from
whi.ch 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.)
A union's alleged negligence breaches the duty
of
fair representation "in cases in which the
individual interest at stake is strong 	the union's failure to perform a ministerial act
completely extinguishes the employee's right to pursue his claim." (Coalition
of
University
Employees (Buxton) (2003) PERB Decision No. 1517-H.)
The union's duty is to enforce the negotiated agreement; the Union's duty generally does not
extend to extra-contractual proceedings where the union does not control the exclusive means
to a remedy. 	(Bay Area Air Quality Management District Employees Association (Mauriello)
(2006) PERB Decision No. 1808-M.)

SF-CO-58-S
December 22, 2011
Page 5
It
appears
implied-although
not specifically
stated-that
AFSCME representative Manwiller
represented McGuire at her Skelly3 hearing on an unspecified date in approximately December
2010. The union does not have a duty to represent employees at a Skelly hearing. (Service
Employees International Union, Local 1021 (Horan) (2011) PERB Decision No. 2204-M.)
Even assuming, arguendo, that AFSCME had a duty
of
fair representation with respect to the
Skelly hearing, there is no showing that a single statement by Manwiller on December 16,
2010, followed by Manwiller's decision to change jobs, would constitute arbitrary,
discriminatory or bad faith conduct. Therefore, these allegations do not state a prima facie
case.
A SPB hearing is an extra-contractual proceeding and the union does not have a duty to
represent members with respect to an SPB proceeding. (California Correctional Peace
Officers Association (Kashtanojj) (1993) PERB Decision No. 1007.) Under some
circumstances, where the union has affirmatively acted to undertake representation
of
a party
in an extra-contractual forum, it may be held to the usual duty
of
fair representation. (Lane
v.
IUOE Stationary Engineers, Local 39 (1989) 212 Cal.App. 3d 164.)
It
appears that McGuire
. had a SPB hearing sometime in the Spring
of
2011, which included a prehearing settlement
conference on February 15, 2011. However, it is not alleged that AFSCME undertook
representation
of
McGuire with respect to this SPB proceeding. Assuming arguendo .that
AFSCME owed any duty to McGuire with respect to the SPB hearing, there is no showing that
it breached that duty in this case. McGuire alleges that Ramirez told her on February 15, 2011
he did not have the tools to provide her with fair representation. No other information is given.
This allegation does not show that AFSCME's conduct was arbitrary, discriminatory or in bad
faith. 	Therefore, this allegation does not state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case.4
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
3 Skelly
v.
State Personnel Board (1975)
15
Cal.3d 194 give employees the right to
certain due process safeguards prior to imposition of discipline.
4 In Eastside Union School District (1984) PERB Decision 	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.)

SF-C0-58-S
December 22, 2011
Page 6
PERB.
	If
an amended charge or withdrawal is not filed on or beforeJanuarv 9, 2012, 5
PERB
will dismiss your charge. If you have any questions, please call
me
at the above telephone
number.
·
L,a\lra
Davis
Regional A,.ttomey
LD
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)