California Nurses Association (Rosa) (PERB 2182M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LINA ROSA,
Charging Party, Case No. SF-CO-232-M
Vv. PERB Decision No. 2182-M
CALIFORNIA NURSES ASSOCIATION, May 26, 2011
Respondent.

Appearances: Lina Rosa, on her own behalf; Donald W. Nielsen, Attorney, for California
Nurses Association.

Before Martinez, Chair, McKeag and Dowdin Calvillo, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Lina Rosa (Rosa) of a Board agent’s dismissal (attached)
of her unfair practice charge. The charge alleged that the California Nurses Association
(CNA) breached its duty of fair representation under the Meyers-Milias-Brown Act (MMBA)’
by failing to adequately represent Rosa in matters concerning her employment while she was
employed by the Washington Hospital Healthcare System (Hospital). The Board agent found
that the charge failed to state a prima facie violation of the duty of fair representation.

The Board has reviewed the dismissal and the record in light of Rosa’s appeal, CNA’s
response thereto, 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

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

with applicable law. Accordingly, the Board adopts the dismissal and warning letters as the
decision
of
the Board itself, supplemented by the discussion below.2
DISCUSSION
On appeal, Rosa asserts that the issues she raised concerning alleged workplace
hostility and harassment "could have been the subject
of
a formal grievance, which
inferentially could and should have been pursued" by CNA on her behalf. As noted in the
dismissal letter, however, even
if
the issues were covered by the collective bargaining
agreement and subject to the grievance procedure, the charge fails to allege facts to establish
that CNA's failure to file a grievance was arbitrary, discriminatory or in bad faith, or that its
failure to pursue a grievance extinguished Rosa's right to pursue any claim against the
Hospital. (United Teachers
of
Los Angeles (Adams) (2009) PERB Decision No. 2012.)
The charge fails to show that CNA's actions were "without a rational basis or devoid
of
honest judgment." (International Association
of
Machinists (Attard) (2002) PERB Decision
No. 1474-M.) 	The limited information provided with the charge indicates that, after
considering her complaints, CNA advised Rosa to pursue other remedies, such as attending
internal meetings, filing a workers' compensation claim and filing a discrimination complaint
with the Department
of
Fair Employment and Housing. Moreover, although CNA concluded
Rosa did not have a meritorious grievance, the charge alleges that it did pursue some sort
of
"grievance adjustment and arbitration" based upon her complaints. Therefore, the charge fails
to establish a prima facie violation
of
the duty
of
fair representation. 3
2 Rosa does not appeal from the Board agent's determination that the charge fails to
state a prima facie case with regard to contacts she had with CNA after she resigned her
position with the Hospital.
3 Rosa's apparent assertion that inadequate representation by CNA could have caused
her to resign her employment is not supported by any factual allegations in the charge.
Instead, the charge alleges that she voluntarily resigned her position because she was offered a
2

ORDER
The unfair practice charge in Case No. SF-CO-232-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Martinez and Member McKeag joined in this Decision.
position at another hospital. Similarly, Rosa's assertion that the dismissal letter "overlooks the
well settled doctrine of constructive discharge" does not support finding a prima facie violation
of the duty of fair representation, and the charge does not allege that Rosa was constructively
discharged. In addition, because we find that the charge failed to state a prima facie case, we
do not find it necessary to address any other issues raised on appeal.
3

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
F
November 2, 2010
Lina Rosa
Re: 	Lina Rosa
v.
California Nurses Association
Unfair Practice Charge No. SF-CO-232-M
DISMISSAL LETTER
Dear Ms. Rosa:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 3, 2010. 1 Lina Rosa (Rosa or Charging Party) alleges that
the California Nurses Association (CNA or Respondent) violated the Meyers-Milias-Brown
Act (MMBA or Act)2 by failing to represent her while Rosa was employed by the Washington
Hospital Healthcare System (Hospital).
Charging Party was informed in the attached Warning Letter dated October 14, 2010, 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 that 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 on or before October 25, 2010, the charge
would be dismissed.
On October 22, 2010, Charging Party filed a Second Amended Charge using the on-line filing
method authorized by PERB Regulation 32613, and the signed original
of
this Second
Amended Charge was timely filed on October 29, 2010.3
1 A signed copy
of
the charge was not filed with PERB until September 13, 2010. On
September 27, 2010, a First Amended Charge was filed clarifying the theory
of
the alleged
violation.
2 The MMBA, which provides for collective bargaining rights for employees
of
California cities, counties and other local agencies, is codified at Government Code section
3500 et seq. PERB Regulations are codified at California Code of Regulations, title 8, section
3 I 001 et seq.
3 The additional information contained in the Second Amended Charge is considered
herein even though a signed, original proof of service confirming service of the amended
charge on CNA has not been filed as of this date.

SF-CO-232-M
November 2, 2010
Page 2
The Warning Letter
In the Warning Letter, Rosa was informed that her unfair practice charge was subject to
dismissal for the following reasons:
The duty
of
fair representation is limited to contractually-based
remedies under a union's exclusive control. (Service Employees
International Union, Local 1021 (Schmidt) (2009) PERB
Decision No. 2080-M.) Here, the charge does not contain facts
clearly showing that issues
of
concern to Rosa were covered by
the collective bargaining agreement between the Hospital and
CNA. Thus, the charge fails to meet its burden
of
alleging
sufficient facts on which to find prima facie evidence
of
a
violation
of
the duty
of
fair representation. (Ibid.; [State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S].) Even
if
the duty
of
fair representation
was applicable to her issues, Rosa has not established that CNA' s
conduct was arbitrary, discriminatory or
in bad
faith, or that
CNA's conduct extinguished Rosa's right to pursue any claim
against the Hospital. Instead, it appears that Rosa's decision to
resign from the Hospital in order to accept a position at another
facility was the event,
if
any, that extinguished her rights in this
regard. Thus, because Rosa has not established that CNA's
conduct extinguished her right to pursue a claim, the charge must
be dismissed. (United Teachers
of
Los Angeles (Adams) (2009)
PERB Decision No. 2012.)
Finally, with regard to the contacts Rosa had with CNA after she
resigned from the position at another hospital, and was no longer
in a bargaining unit represented by CNA, it is less than clear
under what theory a violation could be found.
	A11
exclusive
representative owes a duty
of
fair representation to those
employees in the bargaining unit(s) it represents, but does not
owe a duty to employees who are not represented. ( Capistrano
Unified Education Association, CTAINEA (La Marca) (2001)
PERB Decision No. 1422; Los Rios College Federation
of
Teachers (Deglow) (1996) PERB Decision No. 1133.)
Second Amended Charge
As discussed in the Warning Letter, Rosa resigned her employment with the Hospital on
March 21, 2010 to accept employment at another facility. In her Second Amended Charge,
Rosa's statement of the charge and the attachments to the charge primarily address her
interaction with CNA and the Hospital after her employment voluntarily terminated at the
Hospital and after she resigned her position at the other facility. The Second Amended Charge

SF-CO-232-M
November 2, 2010
Page 3
does not provide any additional facts that would establish that the duty
of
fair representation
attached to CNA after March 21, 2010. (Capistrano Unified Education Association, CTAJNEA
(La Marca), supra, PERB Decision No. 1422; Los Rios College Federation
of
Teachers
(Deglow), supra, PERB Decision No. 1133:) Thus, the Second Amended Charge does not cure
this deficiency in the charge.
Rosa does provide additional information concerning her contacts with CNA Labor
Representative Tim Jenkins and other CNA representatives while still employed at the
Hospital. However, Rosa's Second Amended Charge does not allege facts that would
demonstrate that CNA' s
actions-or
inaction-extinguished her right to pursue any claim
against the Hospital. The instant charge is also subject to dismissal on this basis. (United
Teachers
of
Los Angeles (Adams), supra, PERB Decision No. 2012.)
Responding to the question
of
whether the issues over which she sought assistance from CNA
concerned matters under the union's exclusive control, Rosa alleges that
"a
grievance
adjustment and arbitration was initiated based on the complaints [made] to [CNA
representative] Cynthia Wardrobe," pursuant to the grievance procedure found in the
memorandum
of
understanding negotiated by CNA and the Hospital. While Rosa does not
provide any specifics regarding the "grievance adjustment and arbitration," it appears that
these alleged facts would
undercut-rather
than
support-the
claim that CNA failed to
represent Rosa.
Conclusion
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above as
well as in the October 14, 2010 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 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.)

SF-CO-232-M
November 2, 2010
Page 4
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
103 1 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 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 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-232-M
November 2, 2010
Page 5
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By 	L	
~
Les Chisholm
Division Chief
Attachment
cc: Donald W. Nielsen

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STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax (916) 327-6377
F
October 14, 2010
Lina Rosa
Re: 	Lina Rosa
v.
California Nurses Association
Unfair Practice Charge No. SF-CO-232-M
WARNING LETTER
Dear Ms. Rosa:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 3, 2010. 1 Lina Rosa (Rosa or Charging Party) alleges that
the California Nurses Association (CNA or Respondent) failed to represent her while Rosa was
employed by the Washington Hospital Healthcare System (Hospital).
While Rosa does not allege a violation
of
any specific statute, the charge will be analyzed
pursuant to provisions
of
the Meyers-Milias-Brown Act (MMBA or Act),2 as the Hospital is an
employer within the meaning
of
the MMBA. CNA is the exclusive representative
of
registered
nurses employed by the Hospital.
Rosa was employed by the Hospital until her resignation from employment there on March 21,
2010. Rosa previously went on medical leave in mid-December 2009, "due to work related
depression and post traumatic stress disorder." Rosa was scheduled to return to work from her
leave on March
1,
2010. In January 2010, Rosa contacted CNA Labor Representative Tim
Jenkins and informed Jenkins that she was having trouble on the unit where she worked.
Jenkins provided her with contact information for two Nurse Representatives at the Hospital,
Julie Tan and Cindy Wardrobe. According to the statement
of
the charge, Jenkins also agreed
with Rosa that the unit where Rose worked, and the manager
of
the unit, were "abusive."
Rosa also contacted Tan and Wardrobe, and reported her concerns about harassment and her
belief that she was discriminated against because
of
a medical condition. Tan and Wardrobe
allegedly promised to speak with Rosa's manager and to attempt to obtain additional time off
1 A signed copy of the charge was not filed with 	until September 13,201
2 The MMBA, which provides for collective bargaining rights for employees
ofCalifornia cities, counties and other local agencies, is codified at Government Code section
3500 et seq. PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of the MMBA and PERB Regulations may be found at
www.perb.ca.gov.

SF-CO-232-M
October 14, 2010
Page 2
for Rosa. However, they also referred Rosa back to Jenkins for assistance because Rosa's
issues were "complex."
Rosa alleges that she thereafter "tried several times" to contact Jenkins, both by e-mail and
telephone, to obtain advice and information as to legal options. These attempts were,
according to the charge, unsuccessful. The charge then states, verbatim:
Because I feared going back to work at the hospital and because I
was lead to believe I had no legal options and representation from
my union. [3l I resigned from my position because I was offered a
position in another hospital. Sadly, I only worked with this new
employer for 3 weeks and had to resign since the stress of a new
job was exacerbating my condition.
The statement of the charge continues with an account of Rosa's contacts with Jenkins and
other CNA representatives following her resignation from the other hospital. The charge does
not allege, however, that CNA was the representative of nurses at the other hospital, or that
Rosa was employed after March 21, 2010 in any position exclusively represented by CNA.
Discussion
1. 	Burden of Charging Party
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."
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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no 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
3 The statement of the charge does not explain the basis for how Rosa was "lead to
believe" that she had no legal options and would not receive representation. However, in
addition to disputing the assertion that Jenkins did not communicate with Rosa, CNA alleges in
its position statement that Jenkins informed Rosa by telephone on March 2, 2010, of his
conclusion that filing a grievance was not a viable option but also recommending an alternate
course of action with CNA's support in the workplace. CNA also asserts that Jenkins
recommended that Rosa consider filing a worker's compensation claim.

SF-CO-232-M
October 14, 2010
Page 3
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 Community College District (1996) PERB
Decision No. 1177.)
2.
	Duty
of
Fair Representation
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
.)
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."
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, CTAINEA (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).
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.)
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), supra, 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.)
3 	Analysis
The duty of fair representation is limited to contractually-based remedies under a union's
exclusive control. (Service Employees International Union, Local 1021 (Schmidt) (2009)

SF-CO-232-M
October 14, 2010
Page 4
PERB Decision No. 2080-M.) Here, the charge does not contain facts clearly showing that
issues
of
concern to Rosa were covered by the collective bargaining agreement between the
Hospital and CNA. Thus, the charge fails to meet its burden
of
alleging sufficient facts on
which to find prima facie evidence
of
a violation
of
the duty
of
fair representation. (Ibid.;
State
of
California (Department
of
Food
and
Agriculture), supra, PERB Decision No. 1071-S.)
Even
if
the duty
of
fair representation was applicable to her issues, Rosa has not established
that CNA's conduct was arbitrary, discriminatory or in bad faith, or that CNA's conduct
extinguished Rosa's right to pursue any claim against the Hospital. Instead, it appears that
Rosa's decision to resign from the Hospital in order to accept a position at another facility was
the event,
if
any, that extinguished her rights in this regard. Thus, because Rosa has not
established that CNA's conduct extinguished her right to pursue a claim, the charge must be
dismissed. (United Teachers
of
Los Angeles (Adams) (2009) PERB Decision No. 2012.)
Finally, with regard to the contacts Rosa had with CNA after she resigned from the position at
another hospital, and was no longer in a bargaining unit represented by CNA, it is less than
clear under what theory a violation could be found. An exclusive representative owes a duty
of
fair representation to those employees in the bargaining unit(s) it represents, but does not owe
a duty to employees who are not represented. (Capistrano Unified Education Association,
CTA/NEA (La Afarca) (2001) PERB Decision No. 1422; Los Rios College Federation
of
Teachers (Deglow) (1996) PERB Decision No. 1133.)
Conclusion
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
In Eastside Union School District (1984) PERB Decision No. 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-CO-232-M
October 14, 2010
Page 5
PERB. If an amended charge or withdrawal is not filed on or before October 25, 2010,5 PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
LLes Chisholm
Division Chief
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)