Union of American Physicians and Dentists (Menaster) (PERB 1918S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL MENASTER,
Charging Party, Case No. SF-CO-50-S
Vv. PERB Decision No. 1918-S
UNION OF AMERICAN PHYSICIANS & August 9, 2007
DENTISTS,
Respondent.

Appearance: Michael Menaster, on his own behalf.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION

DUNCAN, Chairman: This case comes before the Public Employment Relations Board
(Board) on appeal by Michael Menaster of a Board agent’s partial dismissal (attached) of his
unfair practice charge. The charge alleged that the Union of American Physicians & Dentists
(UAPD) violated the Ralph C. Dills Act (Dills Act)! by violating its duty of fair representation.

We have reviewed the entire record in this case including the unfair practice charge and
amended charge, the response from UAPD, the warning and partial dismissal letters, and the
appeal of the partial dismissal. We find the Board agent’s warning and partial dismissal letters
to be without prejudicial error and adopt them as the decision of the Board itself.

ORDER
The partial dismissal of the unfair practice charge in Case No. SF-CO-50-S is hereby

AFFIRMED.

Members Shek and McKeag joined in this Decision.

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

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
F
December 20, 2006
Michael Menaster
119 Gladeview Way
San Francisco, CA 94131
Re: 	Michael Menaster v. Union
of
American Physicians & Dentists
Unfair Practice Charge No. SF-CO-50-S, First Amended Charge
PARTIAL DISMISSAL
Dear Mr. Menaster:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2006. Michael Menaster alleges, inter alia, that the Union
of
American Physicians & Dentists (UAPD) violated the Ralph C. Dills Act (Dills Act). 	The
charge consists
of
a fifty-page, single-spaced narrative and seventy-nine exhibits. Menaster
filed an Addendum to the charge, which consists
of
a five-page, single-spaced narrative and
five exhibits.
On November 27, 2006, I issued Menaster a Partial Warning Letter which explained that many
of
the charge's allegations did not state a prima facie violation. Following Menaster's receipt
of
the Partial Warning Letter, I discussed with him, inter alia, the letter's contents, which
of
his
allegations were not subject to the Partial Warning Letter, and PERB's process.
The Partial Warning letter summarized the allegations that were subject to dismissal as
follows: the Department violated the Act; the UAPD's conduct violated statutes other than the
Dills Act; the UAPD's conduct before January 19, 2006 violated the Act; the UAPD violated
Dills Act§§ 3515 and 3516; the UAPD retaliated against Menaster by refusing to help him
when the Department did not rehire him; the UAPD failed to negotiate in good faith; the
UAPD denied Menaster his duty
of
fair representation with regard to ADA violations,
unemployment insurance benefits, and a bid to be rehired.
Menaster did not withdraw any
of
the allegations listed in the Partial Warning Letter and filed
an amended charge. The amended charge includes sixty-eight pages and eighty-four exhibits.
The amended charge notes that Menaster is filing in pro per and sets forth a page
ofinformation and case citations regarding the legal standards for reviewing the pleadings
of
pro
se litigants. The amended charge also sets forth a "facts" section which essentially reiterates
the facts stated in his original charge. Within this recitation Menaster indicates that he is
aware of the statute of limitations period and that he is aware that because this charge is filed
against the exclusive representative a complaint cannot be issued regarding the Department's

SF-CO-50-S
December 20, 2006
Page 2
conduct. 1 Following the "facts" section, the charge set forth the following "discussion"
headings: UAPD breached its fiduciary duty; UAPD breached its duty
of
fair representation;
Admission against interest; UAPD materially contributed to and failed to respond to tangible,
adverse employment action; UAPD failed to file a grievance or complaint when the
Department denied progressive discipline; UAPD failed to file a complaint or grievance when
the Department violated Article 12.6
of
its Agreement with UAPD; UAPD failed to file a
grievance when the Department violated the right to union representation; UAPD failed to file
a grievance or complaint in response to the Department's acts
of
discrimination and retaliation.
As the amended charge does not correct the deficiencies noted in the Partial Warning Letter,
the allegations in the Amended Charge which were addressed in the Partial Warning Letter are
dismissed without further discussion here. The Partial Warning Letter set forth general legal
standards regarding PERB
's
limited jurisdiction, the statute
of
limitations period, and the
UAPD 's lack
of
agency relationship for the Department's conduct. To the extent that the
amended charge includes new allegations that the UAPD violated laws other than the Dills
Act, new events occurring outside the statute
of
limitations period, and new allegations
of
Department conduct these allegations are dismissed for the same reasons stated in the Partial
Warning Letter and will not be addressed further. 	The remainder
of
this letter will only
specifically address the amended charge's new allegations that are not addressed by the above
discussion.
To review, the State
of
California, Department
of
Social Services hired Menaster as Medical
Consultant I (Psychiatrist) on October 31, 2005. Menaster was exclusively represented by the
Union of American Physicians and Dentists. Menaster resigned after the Department placed
him on administrative leave. Menaster was a probationary employee at the time and the
Department was planning to reject him on probation.
Duty
of
Fair Representation: Productivity Problems
Menaster alleges that, although UAPD union stewards assured Menaster that he would not be
subject to discipline for his productivity problems, the Department used productivity as a basis
for rejecting him on probation. Menaster alleges that UAPD violated its duty
of
fair
representation by making those assurances and failing to file a grievance regarding these
productivity expectations.
On January 19, 2006, UAPD Steward VM Meenakshi explained to Menaster that his
supervisor was making an issue
of
productivity because that is the only way the supervisor
could concretely complain about Menaster's socializing.
On January 26, 2006, Menaster complained to Meenakshi about his supervisor's productivity
expectations.
Menaster did not, however, withdraw these allegations. Allegations regarding the
State's conduct are addressed separately in another charge. 	See SF-CE-240-S.

SF-CO-50-S
December 20, 2006
Page
3
(
On
January 27, 2006, in response to Menaster's concerns regarding productivity, Meenakshi
wrote,
in
pertinent part:
i did talk to
jim
moore and they will not hold productivity against
you, it is all
of
the other things we talked about yesterday that
will decide your prob. report. to reiterate: no talking to anyone
including mes,
you
dont know who is going to squeal, and do
notsend e-mails to bob unless he ask you to reply, and
if
you have a
question, give a tentative reply
...
[sic]
Meenakshi also told Menaster that she had spoken to his supervisor about this issue.
As
stated in the Partial Warning Letter, in order to state a prima facie violation
of
the duty
of
fair representation, the 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. (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.] [2]
Here, the facts do not demonstrate that the UAPD engaged in arbitrary, discriminatory, or bad
faith conduct. Instead the facts indicate that the UAPD stewards made a rational determination
that the Department's concerns regarding Menaster's productivity were a peripheral issue only
brought to the forefront by the Department's other concerns with Menaster's behavior. 	The
charge does
not
demonstrate that UAPD's failure to file a grievance and
UAPD's
advice to
concentrate on correcting those issues which it believed were more likely to affect Menaster's
probationary report were devoid
of
honest judgment. As such, this allegation must be
dismissed.
Duty
of
Fair Representation: Denial
of
Union Representation
On February 10, 2006, Menaster told Meenakshi that his supervisor had denied his request to
have a union representative present during an investigatory meeting. Meenakshi told Menaster
that he had the right to refuse to answer questions
if
his union representative was not present.
Menaster alleges Meenakshi failed to file a grievance about his supervisor's failure to allow
him union representation.
As the legal standards regarding the duty of fair representation were set forth in the
Partial Warning Letter and here, they will not be repeated again in this letter.

SF-CO-50-S
December 20, 2006
Page 4
The charge does not demonstrate that the collective bargaining agreement includes a provision
regarding the right to union representation in investigatory meetings. As such, the charge does
not demonstrate that filing a grievance regarding this issue was even possible. A charging
party should allege the "who, what, when, where, and how"
of
an unfair practice. 	(United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision 944.) Although a collective
bargaining agreement could include a provision on this issue, the right to union representation
is usually alleged as a violation
of
the Dills Act. Enforcement
of
the Dills Act is accomplished
through the filing
of
unfair practice charges at PERB. The UAPD does not owe a duty
of
fair
representation to Menaster in a forum over which the union does not exclusively control the
means to a particular remedy. (California State Employees Association (Parisi) (1989) PERB
Decision No. 733-S.) 	As such, this allegation must be dismissed.
Violation
of
Dills
Act§
3519.5
The amended charge alleges that when UAPD Steward Sandra Clancey submitted a declaration
regarding Menaster to the Unemployment Appeals Board hearing, UAPD violated 3519.5 by
enabling the Department to violate Dills Act § 3 519.
Dills Act § 3 519. 5 provides that it shall be unlawful for an employee organization to cause or
attempt to cause the state to violate Dills Act § 3 519. In order to state a prima facie violation,
the charging party must allege facts showing how and in what manner the employee
organization caused or attempted to cause the State to commit an unfair practice against the
employee. (California State Employees Association (Hutchinson) (1999) PERB Decision
No. 1355-S.)
Menaster resigned from state employment and then sought to receive unemployment insurance
benefits. The charge does not demonstrate that the State unlawfully retaliated against
Menaster by defending its position that Menaster was not entitled to receive unemployment
insurance benefits because he had resigned. As such, the charge does not demonstrate that
Clancey's act
of
submitting a declaration to the Unemployment Appeals Board caused the
State to commit an unfair practice against Menaster. Thus, this allegation must be dismissed.
Duty
of
Fair Representation: Progressive Discipline, Professional Judgment, Retaliation,
Advice to Resign
Menaster alleges that UAPD violated the duty
of
fair representation when UAPD Steward Jim
Moore advised Menaster to resign rather than filing complaints or grievances regarding the
State's conduct. More specifically, Menaster alleges the UAPD should have filed grievances
regarding the Department's failure to use progressive discipline, allowing his professional
judgment to be compromised and the Department's retaliatory conduct.
Menaster was a probationary employee. The charge indicates the Department received
complaints regarding Menaster' s behavior immediately after he was hired and that Unit
Manager Robert Schoenfelder spoke with Menaster regarding his behavior on several

SF-CO-50-S
December 20, 2006
Page 5
occasions. Complaints regarding Menaster's behavior were recurrent and from employees in
both the Sacramento office and the Oakland office. The charge reflects the Department
provided Menaster with consistent justifications for its actions including specific examples
of
the types
of
behaviors that were at issue. Under these circumstances, the charge does not
demonstrate that Moore's advice to resign rather than face termination was without a rational
basis or devoid
of
honest judgment. Nor do these facts indicate that UAPD was without a
rational basis or devoid of honest judgment when it chose not to file grievances on Menaster' s
behalf.
Right to Appeal
Pursuant to PERB Regulations,3 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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section l 1020(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
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. (Regulation 32135(6), (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
(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. 	(Regulation 32635(6).)
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
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-50-S
December 20, 2006
Page 6
party or filed with the Board itself. (See Regulation 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. 	(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,
ROBIN WESLEY
Acting General Counsel
By	
6~
Tam~el
Regional Attorney
~
✓
"'
Attachment
cc: Gary Robinson
TLS

STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
103118th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
F
November 27, 2006
Michael Menaster
119 Gladeview Way
San Francisco, CA 94131
Re: 	Michael Menaster v. Union
of
American Physicians & Dentists
Unfair Practice Charge No. SF-CO-50-S
PARTIAL WARNING LETTER
Dear Dr. Menaster:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 19, 2006. Michael Menaster alleges that the Union
of
American Physicians & Dentists violated the Ralph C. Dills Act (Dills Act)1 by failing to
provide its duty
of
fair representation. The charge consists
of
a fifty-page, single-spaced
narrative and seventy-nine exhibits. Menaster filed an Addendum to the charge, which
consists
of
a five-page, single-spaced narrative and five exhibits, My investigation revealed
the following information.
The State
of
California, Department
of
Social Services hired Menaster
as
Medical Consultant I
(Psychiatrist) on October 31, 2005. Unit Manager Robert Schoenfelder had interviewed
Menaster and had spoken with Menaster' s psychiatrist about Menaster' s mental impairment
and past discipline by the Medical Board
of
California. Menaster initially worked in the
Sacramento office and later worked in the Oakland office. Menaster was exclusively
represented by the Union
of
American Physicians and Dentists.
The charge includes information dating back to October 31, 2005. In the charge, Menaster
summarized his allegations as follows:
The Department violated several laws, including
mischaracterization
of
my working conditions during the hiring
process, denial
of
reasonable accommodation, violation ofFreedom of Speech and Assembly, the UAPD warning me not to
assert my rights or engage in protected activity or I would be
terminated, my reporting multiple incidences of improper
government activity, whistleblower retaliation, denial of
progressive discipline and due process, a constructive discharge,
material and intentional alteration of Department business records
1 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.

SF-CO-50-S
November 27, 2006
Page 2
by Mr. Schoenfelder and possibly other Department employees,
and a pervasive code
of
silence.
Menaster divided the charge into the following sections: Whistleblower Retaliation; Altered
Business Records; Retaliation/Discrimination by the Department; Interference by an Employer
with Employee Rights; Employer Interference with Employee Organization Rights; Employer
Failure to Negotiate in Good Faith--Unilateral Change; Employer Failure to Negotiate in Good
Faith-Surface
Bargaining.
Menaster also provided the following summary:
UAPD offered me no representation during my unemployment
appeals hearing and did not oppose Dr. Clancey's declaration.	
It
failed to file any grievances on my behalf or oppose any
discipline or inform me
of
my rights.
It
kept no documentation
about meetings.
It
offered no opposition to Dr. Clancey's
disclosures to Department management or her declaration to the
Court. It did not respond to my inquiries
of
union steward-union
member confidentiality. 	[reference omitted.]
The Addendum focuses on Menaster's attempt to be rehired by the Department and makes the
following allegations: the UAPD violated Government Code section 3515 and 3516; UAPD
violated its duty
of
fair representation; UAPD violated Government Code section 3519.5; the
UAPD retaliated against him; and the UAPD failed to negotiate in good faith.
Many
of
the allegations set forth in the charge fail to state a prima facie violation for the
reasons that follow.
Allegations
of
Conduct by the Employer
This charge is filed against Menaster's exclusive representative. UAPD is not responsible for
the actions
of
Menaster's employer. As such, allegations
of
conduct by the Department must
be dismissed. 2
PERB's Limited Jurisdiction
PERB'sjurisdiction is limited to the determination of unfair labor practice claims arising under
the Dills Act and a few other public sector labor statutes. (California School Employees
Association, Chapter 245 (Waymire) (2001) PERB Decision No. 1448; Sweetwater Union High
School District (2001) PERB Decision No. 1417-E.) PERB's jurisdiction does not include, inter
alia, enforcement of the Americans with Disabilities Act, the U.S. Constitution, the
2 Menaster also filed Unfair Practice Charge No. SF-CE-240-S against the Department.
Allegations of conduct by the Department will be addressed in the course of the investigation
of that charge.

SF-CO-50-S
November 27, 2006
Page 3
Whistleblower Protection Reporting Act, laws governing improper government activity, laws
governing sexual harassment, laws governing defamation, or laws governing the unemployment
insurance process. Thus, allegations regarding statutes other than the Dills Act are dismissed as
outside
of
PERB 's jurisdiction. 3
Statute
of
Limitations
Dills Act section 3514.5( a)(l) prohibits PERB from issuing a complaint with respect to
11
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 statute
of
limitations is an affirmative defense which
has been raised by the respondent in this case. (Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden
of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified School District (1993)
PERB Decision No. 1024; State
of
California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.)
As Menaster filed the charge on July 19, 2006, the statute
of
limitations dates back to include
conduct occurring on or after January 19, 2006. As such, allegations
of
conduct that occurred
before January 19, 2006, are untimely and must be dismissed.
Dills Act§§ 3515 and 3516
Menaster alleges the UAPD violated Dills Act sections 3515 and 3516 by failing to help him
gain reinstatement into his former position.
Dills Act section 3 515, is the provision which sets forth, "Employee organizational rights;
maintenance
of
membership; fair share fee; self representation" rights. The charge does not
provide any facts indicating the UAPD violated this section. A charging party should allege
the "who, what, when, where, and how"
of
an unfair practice. (United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision 944.) Mere legal conclusions are insufficient. (See State
of
California (Department of Food and Agriculture (1994) PERB Decision No. 1071-S.) As such,
this allegation must be dismissed.
Dills Act section 3516
is
the provision which defines the scope ofrepresentation. The "scope
of
representation" is a term
of
art describing those matters which the exclusive representative
and employer must negotiate. It is unclear even under what theory this provision would have
applicability to the circumstances presented in the charge. United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944; State of California (Department of Food and
Agriculture) (1994) PERB Decision No. 1071-S.) As such, this allegation must be dismissed.
This letter does not address whether Menaster has rights or remedies under other state
or federal laws.

SF-CO-50-S
November 27, 2006
Page 4
Retaliation (Dills Act§ 3519.5)
Menaster alleges the UAPD retaliated against him for his participation in protected activities
when it "failed to respond to the Department's refusal to reinstate me."4
To demonstrate a violation of Dills Act section 3519(a), the charging party must show that:
(1) the employee exercised rights under the Dills Act; (2) the exclusive representative had
knowledge of the exercise of those rights; and (3) the exclusive representative imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained or coerced the employees because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified
School District (1979) PERB Decision No. 89; California School Employees Association & its
Chapter 36 (Peterson) (2004) PERB Decision No. 1683.)
The refusal to rehire Menaster is conduct attributable to the Department, not the UAPD. The
charge does not provide facts indicating that UAPD had an obligation to help Menaster get
reinstated. As such, the charge does not demonstrate UAPD's inaction can be considered an
adverse action. Nor does the charge provide facts indicating that its failure to respond to the
Department's decision to not reinstate Menaster was retaliatory in nature. 	A charging party
should allege the "who, what, when, where, and how" of an unfair practice. (United Teachers-
Los Angeles (Ragsdale) (1992) PERB Decision 944.) Mere legal conclusions are insufficient.
(See State of California (Department of Food and Agriculture (1994) PERB Decision No.
1071-S.) 	As such, this allegation must be dismissed.
Failure to Negotiate in Good Faith
Menaster alleges the UAPD violated its duty to negotiate in good faith. The duty to negotiate
in good faith is set forth in Dills Act§ 3519.5. It is a duty owed to the Department, not to unit
members. 	(Alum Rock Education Association, CTA/NEA (Kirkaldie) (1995) PERB Decision
No. 1118.) As such, this allegation must be dismissed.
Denied Duty of Fair Representation
The charge includes a lengthy chronology of facts regarding the UAPD conduct toward
Menaster. Not all of that information is set forth below. Information regarding UAPD conduct
before January 19, 2005 has been excluded because, as discussed above, allegations regarding
that conduct is untimely filed and must be dismissed. 	The information set forth below is
limited to those facts which center on the UAPD's failure to represent Menaster with regard to
the ADA, unemployment insurance benefits, and his bid to be rehired.
The charge also alleges UAPD's failure to help Menaster get rehired was a violation
of its duty of fair representation. 	These theories are addressed separately.

SF-CO-50-S
November 27, 2006
Page 5
When Menaster filed for unemployment insurance benefits the Department opposed his
application. 	The UAPD refused to represent Menaster in the hearing, claiming that it does not
provide representation services for unemployment hearings. During the hearing on this matter,
the Department submitted a declaration by Clancey which referenced, inter alia, the bake-sale
conversation with Menaster. Menaster alleges Clancey mischaracterized several
of
their
conversations.
The UAPD did not help Menaster when the Department ignored Menaster's request to be
rehired.
Some
of
the above-stated information does not state a prima facie duty
of
fair representation
violation.
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:
11
•••
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

SF-CO-50-S
November 27, 2006
Page 6
(
Professional Association (Romero) (1980) PERB Decision
No. 124.]
The charge alleges that UAPD failed to represent Menaster in his hearing before the EDD.
The duty
of
fair representation does not attach to an exclusive representative in extra-
contractual proceedings before agencies such
as
the Employment Development Department.
(See generally California Union
of
Safety Employees (John) (1994) PERB Decision No. 1064-
S; California State Employees Association (Carrillo) (1997) PERB Decision No. 1199-S .) As,
such this allegation must be dismissed.
The charge alleges the UAPD failed to help Menaster obtain a reasonable accommodation
under the ADA. 	UAPD does not owe a duty
of
fair representation to Menaster in a forum over
which the union does not exclusively control the means to a particular remedy. (California
State Employees Association (Parisi) (1989) PERB Decision No. 733-S.) 	As such, this
allegation must be dismissed.
The charge alleges the UAPD failed to help Menaster when the Department ignored his request
to be rehired. 	As Menaster chose to resign, it does not appear that the UAPD's duty
of
fair
representation extended to include his post-resignation requests for representation. Even
if
the
duty extended to include this post-resignation request, the application process for state
employment is extra-contractual in nature. As such, this allegation must be dismissed.
For these reasons the following allegations, as presently written, must be dismissed: that the
Department violated the Act; that the UAPD's conduct violated statutes other than the Dills
Act; that the UAPD's conduct before January 19, 2006 violated the Act; that the UAPD
violated Dills Act§§ 3515 and 3516; that the UAPD retaliated against Menaster by refusing to
help him when the Department did not rehire him; that the UAPD failed to negotiate in good
faith; that the UAPD denied Menaster his duty
of
fair representation with regard to ADA
violations, unemployment insurance benefits, and a bid to be rehired.
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

SF-CO-50-S
November 27, 2006
Page 7
withdrawal from you before December 7, 2006, I shall dismiss the above-described allegation
from your charge.
	If
you have any questions, please call me at the telephone number listed
above.
Sincerely,
--	
~
~.
Tammy Samsel
Regional Attorney
TLS