California State Employees Association, Service Employees International Union Local 1000, AFL-CIO, Central Labor Councils (Sutton) (PERB 1553S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PAULA SUTTON,
Charging Party, Case No. LA-CO-105-S
Vv. PERB Decision No. 1553-S
CALIFORNIA STATE EMPLOYEES October 21, 2003
ASSOCIATION, LOCAL 1000, SEIU, AFL-CIO,
CLC,
Respondent.

Appearance: Paula Sutton, on her own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Paula Sutton (Sutton) of a Board agent’s dismissal (attached) of her
unfair practice charge. The charge alleges that the California State Employees Association,
Local 1000, SEIU, AFL-CIO, CLC (CSEA) violated the Ralph C. Dills Act (Dills Act)! by
breaching its duty of fair representation.

The Board has reviewed the entire record in this matter, including the original and
amended charge, the warning and dismissal letters and Sutton’s appeal. The Board finds the
warning and dismissal letters to be free from prejudicial error and adopts them as the decision

of the Board itself consistent with the discussion below.

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

DISCUSSION
This matter stems from Sutton's request for CSEA representation in a disciplinary
hearing. Based on the documents submitted with the charge, Sutton was aware in October
2000 that CSEA had denied her request for representation. For the next two years, Sutton
apparently tried to convince CSEA to reverse its decision and/or to provide her the funds to
hire a private attorney." Sutton alleges that the last denial by CSEA occurred in September
2002. On appeal, Sutton argues that each time CSEA denied her request for representation the
statute of limitations was re-triggered. Thus, according to Sutton, the limitations period should
be measured from September 2002, when CSEA last denied her request.
It is well-settled that in a claim for breach of the duty of fair representation, the statute
of limitations is triggered "on the date when the employee, in the exercise of reasonable
diligence, knew or should have known that further assistance from the union was unlikely."
(International Union of Operating Engineers, Local 501 (Reich) (1986) PERB Decision
No. 591-H; Los Rios College Federation of Teachers, CFT/AFT (Violett, et al.) (1991) PERB
Decision No. 889.) Thus, the statute of limitations begins to run once the employee is aware,
or should have been aware, that the union has made a firm decision not to represent her. Once
the statute begins to run, the employee cannot cause it to begin anew by making the same
request over and over again. Indeed, to allow such a result would eviscerate the purpose of the
statute of limitations.
Here, Sutton was aware in October 2000 that CSEA would not provide her an attorney.
Nothing in the charge suggests that CSEA thereafter gave Sutton any indication that its
2 Sutton's charge fails to provide a clear and concise statement of the facts as required
by PERB Regulation 32615 (PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001,
et seq). Although Sutton was told to provide specific facts and dates in the warning letter, she
failed to do so.

decision would change. Accordingly, Sutton's charge, filed on March 31, 2003, is untimely
and must be dismissed on that basis alone.
ORDER
The unfair practice charge and complaint in Case No. LA-CO-105-S is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 29, 2003
Paula Sutton
Re: 	Paula Sutton v. California State Employees Association, Local 1000. SEIU, AFL-CIO.
CLC
Unfair Practice Charge No. LA-CO-105-S
DISMISSAL LETTER
Dear Ms. Sutton:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 31, 2003. Paula Sutton alleges that the California State
Employees Association, Local 1000, SEIU, AFL-CIO, CLC violated the Ralph C. Dills Act
(Dills Act)' by failing to properly represent her.
I indicated to you in my attached letter dated April 8, 2003, 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 which 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 15, 2003, the charge would be dismissed. You
received an extension of time to file an amended charge.
I received a copy of your amended charge of April 28, 2003. In your amended charge you
continue to allege that CSEA failed to properly represent you between "early 2000 to late
2002". However you provide no specific dates except of a denial of assistance in September
2002. You describe the September incident "as the most recent example of unfair labor
practice by CSEA". As I stated in my letter of April 8,
Dills Act section 3514.5(a)(1) 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.) The charging party
bears the burden of demonstrating that the charge is timely filed.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-105-S
April 29, 2003
Page 2
Tehachapi Unified School District (1993) PERB Decision No.
1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
You have provided no specific dates beyond "fall 2002".
Without more information, it cannot be concluded that any
alleged violation occurred within six months of the filing of your
charge on March 31. 2003. Accordingly, your charge must be
dismissed.
Because your amended charge only states alleged violations outside the statutory limitations
period the charge must be dismissed.
Right to Appeal
Pursuant to PERB Regulations," you 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. (Regulation 32635(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 before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-105-S
April 29, 2003
Page 3
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. (Regulation 32635(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 Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(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. (Regulation 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,
ROBERT THOMPSON
General Counsel
By
Bernard McMonigle
Regional Attorney
Attachment
cc: Michael Shanahan

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
P.E.R.B
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 8, 2003
Paula Sutton
Re: 	Paula Sutton v. California State Employees Association, Local 1000, SEIU. AFL-CIO,
CLC
Unfair Practice Charge No. LA-CO-105-S
WARNING LETTER
Dear Ms. Sutton:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 31, 2003. Paula Sutton alleges that the California State
Employees Association, Local 1000, SEIU, AFL-CIO, CLC violated the Ralph C. Dills Act
(Dills Act)' by failing to properly represent her.
Your charge states that CSEA has failed to prevent Caltrans from retaliating against you for
your union activities and filing complaints and grievances. Your charge states that between
"early 2000 to late 2002" CSEA failed to represent you as you requested for a variety of
meetings and appeals.
The most recent denial of representation was at a fall 2002 Civil Service Division meeting (no
specific date provided).
Dills Act section 3514.5(a)(1) 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.) The 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) PERB Decision No. 1197-S.)
You have provided no specific dates beyond "fall 2002". Without more information, it cannot
be concluded that any alleged violation occurred within six months of the filing of your charge
on March 31. 2003. Accordingly, your charge must be dismissed.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-105-S
April 8, 2003
Page 2
Even if your charge is determined to be timely filed it does not state a prima facie case of a
violation of the duty of fair representation.
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:
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. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
Your charge presents insufficient facts to establish how the union violated its duty under this
legal standard. Accordingly, for this reason it must be dismissed.
Your charge alleges that CSEA has failed to represent you in a variety of forums including
Department of Fair Employment and Housing (DFEH) complaints. Please be advised that the
duty of fair representation is limited to contractually based remedies under the union's
exclusive control (such as the contractual grievance procedure) and does not include DFEH
procedures. California Union of Safety Employees (John) (1994) PERB Decision No. 1064-S

LA-CO-105-S
April 8, 2003
Page 3
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please 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 the
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 I do not receive an
amended charge or withdrawal from you before April 15, 2003, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC:b