Public Employees Union Local 1 (Coleman) (PERB 1780M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MR. & MRS. WILLIE COLEMAN, JR.,
Charging Parties, Case No. SF-CO-92-M

Vv. PERB Decision No. 1780-M

PUBLIC EMPLOYEES UNION LOCAL 1, October 11, 2005

Respondent.

Appearances: Mr. and Mrs. Willie Coleman, Jr., on their own behalf; Roland M. Katz,
Attorney, for Public Employees Union Local 1.

Before Duncan, Chairman; Whitehead and Neuwald, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Mr. and Mrs. Willie Coleman, Jr. (the Colemans) of a Board
_ agent’s dismissal (attached) of their unfair practice charge. The charge alleges that the Public
Employees Union Local 1 (Local 1) breached its duty of fair representation to the Colemans in
its handling of a grievance in violation of the County of Contra Costa and Local 1’s
memorandum of understanding and the Meyers-Milias-Brown Act (MMBA).!

The Board has reviewed the entire record in this case, including the unfair practice
charge, the response, the warning and dismissal letters, the appeal and the request to include
the late-filed response to the appeal by Local 1.’ The Board finds the warning and dismissal
letters to be free of prejudicial error and adopts them as the decision of the Board itself as set

forth below.

‘The MMBA is codified at Government Code section 3500, et seq.

The Board does not find good cause to include the late-filed response to the appeal.

DISCUSSION
We adopt the warning and dismissal letters of the Board agent as a decision of the
Board itself. There are no new issues raised on appeal.
The appeal did not comply with the requirements of PERB Regulation 32635.3
LATE FILING
Local 1 indicated the response to the appeal was filed late because of an anticipation
that notice with timelines regarding the filing would be sent to Local 1 by the Board. The
response indicated that the preparer was unaware that the Board would not send that notice
because he did not regularly practice before PERB.
Under PERB Regulation 32136, a late filing may be excused at the discretion of the
Board for good cause only. Nothing in the request for acceptance of the late-filed response
indicates there is any ground for the Board to find good cause. Ignorarn;:e of the law is no
excuse and it is certainly not good cause. The response was therefore not considered by the
Board in this decision.
3PERB Regulation 32635 states, in pertinent part (PERB regs. are codified at Cal. Code
Regs., tit. 8, sec. 31001, et seq.):
The Appeal shall:
(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.
2

ORDER
The unfair practice charge in Case No. SF-CO-92-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neuwald joined in this Decision.
3

r-=~=============--c··,	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
~P=U=B=L=IC=E=M=P=L=O=YM==EN==il'RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622°1027
June 13, 2005
William & Lorraine Coleman
414 Coot Lane
Suisun City, CA 94585
Re: 	Mr. & Mrs. Willie Coleman, Jr. v. Public Employees Union Local 1
Unfair Practice Charge No. SF-CO-92-M
DISMISSAL LETTER
Dear Mr. and Mrs. Coleman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 29, 2005. Mr. & Mrs. Willie Coleman Jr. alleges that the
Public Employees Union Local 1 violated the Meyers-Milias-Brown Act (MMBA)1 by failing
to follow the promotion and bidding provisions in the collective bargaining agreement.
'I indicated to you in my attached letter dated May 18, 2005, 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 May 25, 2005, the charge would be dismissed.
On May 24, 2005, I received an additional packet of information from you. However, it does
not appear that the information was served on the Respondent. As such, the filing does not
meet the standard for an amended charge. However, despite this deficiency, I will recite the
relevant facts as follows.
Charging Parties are both employed by the Contra Costa County Department of Health
Services as Institutional Services Workers (ISW) at the Richmond Clinic. As such, they are
exclusively represented by Local 1.
ISWs are assigned to perform either various food service functions or custodial functions. The
ISW classification is a "Deep Class" as defined by the County. A Deep Class is one that has
several levels. In the case of the ISW classification, there are three levels: Generalist,
Specialist and Lead. The Generalist is the entry classification, while Specialists are assigned
1 The MMBA is codified at Government Code section 3500 et seq. The tex~ ofth~
MMBA and the Board's Regulations may be found on the Interp.~t at www.perb.ca.gov ..

SF-CO-92-M
June 13, 2005
Page2
C
more specialized tasks. An employee in the Lead category assigns and coordinates the
activities of the Generalists.
Advancement in Deep Classes are not done through promotional examination. Instead, the
County has adopted a special resolution to deal with Deep Classes. Resolution 82-102
provides as follows regarding Deep Classes:
9. Reassignment to a Specialist or Lead level position from a
Generalist position shall be preceded by written public notice for
a minimum of five working days at worksites accessible to the
majority of Generalist level Institutional Service Workers.
Selection from amongst interested employees shall then be based
on the following:
A. The quantity and quality of relevant experience of interested
Generalist level Institutional Service Workers;
B. The relevant qualifications of interested Generalist level ISW s
based upon a structured interview;
C. Seniority of interested Generalist ISWs;
D. Prior performance evaluations (particularly those for more
recent periods) of interested Generalist ISW s.
In 2001, several ISWs approached then-Business Agent Arlyn Erdman regarding several
Sp~cialist and Lead positions that they believed had been filled without being posted. Mr.
Erdman contacted the Department about the positions. Health Services responded by
providing Local 1 with information about the positions in question. Based upon a review of
that information, Local 1 determined that the County had not violated the MOU or Resolution
82-102.
In October 2003, Charging Parties approached Mr. Edrman and complained that certain
Specialist and Lead positions were not being posted. Most of the positions in question were
those reviewed in 2001. In or about late October 2003, Mr. Edrman and the Charging Parties
met with Department representatives to discuss the positions in question. After this meeting,
Mr. Erdman received information from the Department regarding when the positions in
question were filled. This information directly contradicted the information. to Mr. Erdman in
2001.
On November 18, 2003, Local 1 filed a class action grievance on behalf of all ISWs, including
the Charging Parties. On December 5, 2003, the County responded by indicating that the
grievance was untimely. 	On January 6, 2004, Local 1 appealed the grievance to Step 3 for a

SF-CO-92-M
June 13, 2005
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hearing. On January 13, 2004, the County denied the grievance, again arguing the grievance
was untimely filed.
On January 21, 2004, the union appealed the grievance to Step 4 for a Board of Adjustment
hearing. On February 19, 2004, after not receiving a response from the County, Mr. Erdman
sent another letter to the County requesting a Board of Adjustment hearing. On February 23,
2004, the County responded to Mr. Erdman' s request by again arguing the grievance was
untimely as the changes took place in 2001. Over the next several months, the parties traded
letters and information regarding the ISW issue.
During the summer of 2004, the parties met to discuss the underlying issues. During that
meeting, the County asserted the Specialist positions were not subject to posting requirements.
Additionally, the County asserted that several of the positions were management positions that
had been transferred to the Richmond Clinic after the County became aware of the need for
more ISWs at the Clinic. After failing to reach agreement, the parties scheduled a Board of
Adjustment hearing for October 27, 2004.
On or about November 3, 2004, the County and Local 1 met to attempt to resolve the
grievance. During this meeting, the parties agreed to meet and confer over new post and bid
requirements for ISWs. On November 8, 2004, Local 1 sent the Charging Parties a letter
informing them that the grievance had been settled. The letter further indicated that the union
chose to settle the grievance rather than take the chance that the Board of Adjustment or
arbitrator would rule against the ISWs and not afford any relief to those workers. The letter
also provided Charging Parties with extensive information regarding the County's position, as
well as information on why certain contract provisions did not apply. Lastly, the union
provided a detailed explanation as to why they chose the remedy they did, indicating that it
benefited the classification as a whole.
In or about December 2004, Local 1 provided all ISW s with a survey asking how employees
would like Local 1 to proceed during negotiations. More specifically, Local 1's survey
provided as follows:
_ 	I believe the Union should take the position that all ISW
positions in the department should be re-bid.
_ 	I believe the Union should take the position that all ISW's
should be returned to their bidded position.
_ 	I believe that the Union should take the position that all
ISWs should stay in their current assignment and that bid notices
should be created to reflect that current assignment.
After receiving survey results, Local 1 allowed members to chose their rank and file
negotiators from each worksite. Charging Party William Coleman is the representative from
the Richmond Clinic.

SF-CO-92-M
June 13, 2005
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Based upon these facts, as well as information provided by the union, the charge still fails to
state a prima facie violation of the MMBA, for the reasons provided below.
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
[42 Cal.Rptr.2d 389].) In Hussey, the court further held that the duty of fair representation is
not breached by mere negligence and that a union is to be "accorded wide latitude in the
representation of its members ... absent a showing of arbitrary exercise of the union's power."
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. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty of fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
in such cases, including Reed District Teachers Association, CTA/NEA (Reyes) ( 1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369]).
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a rational basis or devoid of honest judgment. (International Association of Machinists
(Attard) (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. (1Inited Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Herein, facts provided demonstrate Local 1 pursued the ISW issue for more than two years and
resolved the matter in a manner the benefited the classification as a whole. The union filed a
grievance as soon as it discovered the discrepancy and consistently communicated with ISWs
about the status of the grievance. In fact, Charging Parties received a copy of all
correspondence sent by Local 1 to the County. Lastly, the union provided a detailed
explanation as to why it settled the grievance, addressing the County's arguments as well as
those in favor of the union. As such, the conduct described does not indicate the union acted
arbitrarily, capriciously or in bad faith.

SF-Cq-92-M
June 13, 2005
Page 5
Right to Appeal
(
Pursuant to PERB Regulations,2 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. 	(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
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-clalss 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).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-92-M
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Page6
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 __ _L~J__2-	_	; 	_
Kristin L. Rosi
Regional Attorney
Attachment
cc: Rollie Katz

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
May 18, 2005
Mr. & Mrs. Willie Coleman
414 Coot Lane
Suisun City, CA 94585 ,
Re: 	Mr. & Mrs. Willie Coleman, Jr. v. Public Employees Union Local 1
Unfair Practice Charge No. SF-CO-92-M
WARNING LETTER
Dear Mr. & Mrs. Coleman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 29, 2005. Mr. & Mrs. Willie Coleman Jr. alleges that the
Public Employees Union Local 1 violated the Meyers-Milias-Brown Act (MMBA)1 by failing
to follow the promotion and bidding provisions in the collective bargaining agreement.
Investigation of this charge revealed the following. Both of you are employed by the County
of Contra Costa in the General Service and Maintenance Department. As such, both of you are
exclusively represented by Local 1. Local 1 and the County are parties to a collective
bargaining agreement that expires on September 30, 2005. With regard to promotions, Article
21 provides as follows:
21.1 Competitive Exam. Promotion shall be by competitive
examination unless otherwise provided in this MOU.
21.2 Promotion Policy. The Director of Human Resources, upon
request of an appointing authority, shall determine whether an
examination is to be called on a promotional basis.
With regard to bidding for vacant positions, Article 22 provides in relevant part as follows:
22.4 Voluntary Reassignment (Bidding) Procedure. The below
listed procedure shall apply to the following groups of
employees: the entire General Services and Maintenance Unit, the
entire LVN-Attendant/Aide Unit, the entire Health Services Unit,
Probation Counselors in the Probation Department and that
portion of the Engineering Unit in the Public Works Department.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-92-M
May 18, 2005
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Permanent employees may request reassignment to vacant
permanent positions in the same classification or in the same
level of their deep classification. All permanent vacancies will be
offered for bid to presently assigned full-time, part-time and
permanent-intermittent employees for reassignment.
The charge alleges as follows:
PEU, Local 1 failed to follow the proper procedures for
promotion of employees as stipulated in the Memorandum of
Understanding (MOU) between Contra Costa County and & PEU
Local 1. Section 22.4 (Bidding procedures). Furthermore, they
show disregard in their efforts to carry out the steps necessary to
complete the grievance procedure MOU Sect. 25.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the MMBA, for the reasons provided below.
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."
Thus, 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.) Herein, the charge is devoid of
any facts regarding the specific nature of the allegations made. As such, it is impossible for
PERB to investigate this charge.
Assuming Charging Parties wish to allege the union violated its duty of fair representation, the
following standard must be met.2 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.4 th 1213 [42 Cal.Rptr.2d 389].) In Hussey, the court further held
that the duty of fair representation is not breached by mere negligence and that a union is to be
"accorded wide latitude in the representation of its members ... absent a showing of arbitrary
exercise of the union's power."
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
2 Charging Parties allege the union violated the MOU. However, allegations of MOU
violations may only be made by the employer itself, not by individual employees. (Oxnard
School District (1988) PERB Decision No. 667.)

SF-CO-92-M
May 18, 2005
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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. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty of fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
in such cases, including Reed District Teachers Association, CTA/NEA (Reyes) ( 1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369]).
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a-rational basis or devoid of honest judgment. (International Association of Machinists
(Attard) (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.)
Should Charging Parties wish to amend the charge to allege such a violation, the above
standard should be addressed.
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
comer 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 May 25, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR