Long Beach Council of Classified Employees, American Federation of Teachers, AFL-CIO (Owese) (PERB 1934E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAMWEL OSEWE,

Charging Party, Case No. LA-CO-1291-E
Vv. PERB Decision No. 1934
LONG BEACH COUNCIL OF CLASSIFIED December 21, 2007

EMPLOYEES, AFT, AFL-CIO, '

Respondent.

Appearances: Samwel Osewe, on his own behalf; Law Offices of Jeffrey R. Boxer by Jeffrey
R. Boxer, Attorney, for Long Beach Council of Classified Employees, AFT, AFL-CIO.

Before Shek, McKeag and Rystrom, Members.
DECISION

SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Samwel Osewe (Osewe) of a Board agent’s dismissal of his
unfair practice charge. The unfair practice charge alleged that the LBCCE, violated the
Educational Employment Relations Act (EERA)’ by insisting on an informal appeal regarding
Osewe’s annual job performance evaluation and then abandoning his appeal. Osewe asserted
that this conduct violated the duty of fair representation guaranteed by EERA section 3544.9,

and thereby violated EERA section 3543 .6(b).

‘The unfair practice charge was filed against Alta Costa (Costa), president of the Long
Beach Council of Classified Employees, AFT, AFL-CIO (LBCCE). PERB regulations are
codified at California Code of Regulations, title 8, section 31001, et seq. PERB Regulation
32602(b) provides “that unfair practice charges may be filed by an employee, employee
organization, or employer against an employee organization or employer [emphasis added].”
Therefore, PERB will construe the charge as filed against the LBCCE and not Costa.

*EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this case, including but not limited to the
unfair practice charge, LBCCE's position statement, the amended unfair practice charge,
LBCCE's response to the amended charge, the Board agent's warning and dismissal letters,
Osewe's appeal
of
the dismissal and LBCCE's response. 	The Board hereby affirms the
dismissal
of
the unfair practice charge based on the following discussion.
BACKGROUND
The Unfair Practice Charge
The Board agent's investigation
of
Osewe's unfair practice charge filed on January 29,
2007, revealed the following facts.
Osewe was employed as a custodian at the Long Beach Community College District's
(District) Pacific Coast campus. 	Osewe received a less than satisfactory annual evaluation
from the District at a meeting on May 11, 2006. The District Plant Manager informed Osewe
on May 10, 2006, that he had a right to union representation. Osewe notifed LBCCE's
President, Costa, who attended the evaluation meeting with him. After the meeting, Osewe
and Costa discussed the filing
of
a grievance regarding the evaluation. Costa explained that
the first step in the grievance procedure was an informal meeting pursuant
of
Article 18.2
of
the collective bargaining agreement (CBA). 3 The next step was the filing
of
a formal written
3The last CBA between the District and LBCCE had effective dates
of
June 26, 2002
through June 30, 2005. The parties apparently continue to be bound by the provisions in the
Agreement during the period in question.
Article 18.2
of
the CBA provides:
18 .2 Informal Level
Within 15 days after the employee and/or LBCCE knew, or
reasonably should have known, of the alleged violation, the
grievant shall attempt to resolve the grievance by an informal
conference with the immediate supervisor.
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grievance pursuant to Article 18 .3 .1 of the CBA. 4 However, Osewe asserted that pursuant to
Article 18.4.3 of the CBA, a grievance can be filed at any level. Article 18.4.3 provides:
Whenever the District and LBCCE agree it is appropriate, they
may permit a grievance to be initiated at any step in the grievance
procedure.
In a telephone conversation on May 24, 2006, Costa insisted that the informal grievance
process be initiated, and that Osewe would "be on [his] own" if he chose to file his own
grievance. 	On or about June 2, 2006, against Costa's advice given to him in the May 24 th
telephone conversation and in an electronic mail dated June 1, 2006, Osewe filed his own
grievance via electronic mail against the District at the formal level.
Osewe sent an electronic mail to Costa on June 5, 2006, referencing an earlier e-mail
from Costa stating that Osewe had refused union representation. Costa responded on the same
date by electronic mail, stating:
When you filed your grievance and sent it (not on a grievance
form, but in an email), you knowingly filed it against advice of
the Union (which was to file at the informal level).
Since you chose to file your own grievance, you dismissed the
Union from representing you, and now you have the
4Article 18.3.1 of the CBA provides, in part:
18.3 Formal Level
18.3.1 	Level 1 (Dean/Director of Area Being Grieved)
Within 15 days after the informal conference, should the
grievance not be resolved, the grievant must present his/her
grievance in writing on the District Classified Grievance form to
the Dean/Director of the area being grieved, with a copy to
Human Resources. This statement shall be a clear, concise
statement of the circumstances giving rise to the grievance,
citation of the specific article, section and paragraph of this
Agreement that is alleged to have been violated, the decision, if
any, rendered at the informal conference, and the specific remedy
sought. ...
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responsibility to represent yourself, and there will be no Union
representative at any
of
your grievance meetings.
Osewe alleged that LBCCE had refused to represent him on June 19, 2006. 	The
grievance was subsequently denied on August 11, 2006.
The unfair practice charge further alleged that Osewe sent Costa an e-mail on
September
6,
2006, asking for copies
of
"union reports
of
all the disciplinary actions/hearings
which have been taken against [him] and also an email or letter confirming the date/venue and
participants in the mediation hearing [he] went through in the past year up to the last one."
Osewe alleged that Costa "simply ignored [him]."
Osewe filed an amended unfair practice charge on March 29, 2007, alleging that "it
wasn't until [August 11, 2006] when the vice president issued an arbitrary decision based on
intimidations and threats from the acting facilities director that [he] became aware that [his]
right to pursue [his] claim was foreclosed."
LBCCE's Response
LBCCE contended that Costa had informed Osewe in a conversation on May 24, 2006,
that his grievance regarding the less than satisfactory evaluation should be filed pursuant to the
informal grievance process under the applicable Article in the CBA. LBCCE asserted that
Costa had informed Osewe on that date that LBCCE would not assist him
if
he chose to file his
own grievance at another level. According to LBCCE, Costa confirmed this advice by
electronic mail on June 1, 2006.
LBCCE also provided a copy of an electronic mail from Costa to Osewe, dated July 17,
2006, stating that LBCCE represented Osewe at a disciplinary meeting on June 27, 2006,
regarding "safety rules in driving the carts." The electronic mail stated that there was no
contract violation based upon the "cart incidents," and that although Osewe "tacked on" the
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cart violation to the already-filed grievance, the union also could not represent Osewe in that
portion
of
the grievance.
Board Agent's Dismissal
The Board agent stated in the warning letter dated March 19, 2007, that the charge was
untimely filed. 	The Board agent found that Osewe was put on notice as early as May 24, 2006,
or at the latest July 17, 2006, that Costa would not serve as his representative
if
he ignored
their advice and filed his own grievance. Thus, the Board agent found that the statutory time
period began to run on May 24, 2006, or at the latest, July 17, 2006, and that the charge, which
was filed on January 29, 2007, was therefore outside the six-month statute
of
limitations
period. The Board agent further found that even
if
the charge were timely, it failed to state a
prima facie case
of
arbitrary conduct violating the duty
of
fair representation.
The Board agent dismissed the charge on July 25, 2007. The dismissal letter stated that
the date
of
"August 11, 2006" mentioned in the amended charge "has no bearing on the date
when LBCCE confirmed that it would cease representing Osewe
if
he chose to file a grievance
on his own." The Board agent found that the amended charge presented no new facts to
substantiate a prima facie case, and dismissed the charge for the reasons stated in the warning
letter.
Osewe' s Appeal
On appeal, Osewe contends that the unfair practice charge was timely and that it stated
a prima facie case of a violation of the duty of fair representation.
DISCUSSION
The primary issue in this case is whether the unfair practice charge was timely filed.
The Board's recent decision in Los Angeles Unified School District (2007) PERB Decision
No. 1929 (Los Angeles USD) is on point. Los Angeles USD relied on Sacramento City
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Unified School District (2001) PERB Decision No.
1461
(Sacramento City Unified School
District), in which the Board adopted a warning letter that cited the following rule:
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.) [Sacramento
City Unified School District, warning letter, at p. 8.]
Los Angeles USD further states that:
Additionally, the charging party has the burden
of
alleging facts
showing that the unfair practice charge was timely filed.
(Tehachapi Unified School District (1993) PERB Decision
No. 1024; City
of
Santa Barbara (2004) PERB Decision
No. 1628-M (City
of
Santa Barbara).) The Board held that by
failing to allege the date
of
a meeting at which an alleged
violation occurred, the charging party had failed to demonstrate
that the charge was timely. 	(City
of
Santa Barbara, warning
letter, at
p.
4.) [Los Angeles USD, at p. 6.]
In this case, Osewe has failed to satisfy his burden
of
stating sufficient facts to
establish that the alleged unfair practice occurred no more than six months prior to the filing
of
the charge. (EERA sec. 3541.S(a)(l).) Based on Osewe's own allegations, he knew or should
have known that Costa and LBCCE would not represent him in his grievance on or about
June 5, 2006 (when Costa communicated this fact to him by electronic m~il), or at the latest,
July 17, 2006 (when Costa informed him that LBCCE would not represent him with regard to
the alleged "cart incident"). All
of
these dates occurred more than six months prior to the
filing of the unfair practice charge on January 29, 2007. Therefore, the allegation in the unfair
practice charge that Costa and LBCCE failed to represent Osewe was untimely.
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The original unfair practice charge also alleged that Osewe made a futile attempt to
request information from Costa on September
6,
2006. Although this allegation was timely,
we find that it fails to state a prima facie case
of
a violation.
The Board has held that where an employee chooses self-representation, the employee
organization "has
no
obligation to provide representation or assistance." (Valley
of
the Moon
Teachers Association, CTA/NEA (McClure) (1996) PERB Decision No. 1165 (Valley
of
the
Moon), warning letter, at
p.
6.) In Valley
of
the Moon, the Board held that where an employee
chooses to be represented by his own attorney, and chooses to forego union representation,
"the Association, by refusing to provide information regarding her grievance, has not violated
its duty
of
representation." (Id., warning letter, at
p.
6.) In this case, Osewe chose to file his
own grievance after the union told him that he would not receive union assistance
if
he did so.
Under Valley
of
the Moon, Costa and LBCCE did not violate the duty
of
fair representation
even
if
they had failed to respond to Osewe' s information request.
Moreover, Osewe provided no further detail regarding why the requested information
was necessary or relevant, and failed to mention this claim in his appeal
of
the dismissal.
Therefore, although this allegation was timely, we find that it fails to state a prima facie case.
Based on the discussion above, the Board therefore finds that the unfair practice charge
fails to state a prima facie case
of
a breach of the duty
of
fair representation.
ORDER
The unfair practice charge in Case No. LA-CO-1291-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
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