California Media Workers Guild/Communications Workers of America/Local 39521 (Zhang) (PERB 2245I)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JANICE ZHANG,
Charging Party,
V.
CALIFORNIA MEDIA WORKERS
GUILD/CW A/LOCAL 39521,
Respondent.
Case No. LA-CO-4-I
PERB Decision No. 2245-I
April 6, 2012
Appearance: Janice Zhang, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by Janice Zhang (Zhang) of the Office of the General
Counsel's dismissal (attached) of her unfair practice charge. The charge alleged that the
California Media Workers Guild/CWA/Local 39521 (Local 39521) violated the Trial Court
Interpreter Employment and Labor Relations Act (Court Interpreter Act) 1 by rejecting Zhang's
request for representation regarding her dispute with her employer, the Superior Court of
California, County of Los Angeles (Court). The charge alleged that this conduct breached
Local 39521 's duty of fair representation. The Board agent dismissed the charge, concluding
that it was untimely filed and that it failed to state a prima facie case.
The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. Based thereon, the Board finds the
Board agent's warning and dismissal letters to be well-reasoned, adequately supported by the
1 The Court Interpreter Act is codified at Government Code section 71800 et seq. 	Unless
otherwise indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JANICE ZHANG,
Charging Party, 	Case No. LA-CO-4-I
V . 	PERB Decision No. 2245-I
April 6, 2012	CALIFORNIA MEDIA WORKERS
GUILD/CWA/LOCAL 39521,
Respondent.
Appearance: Janice Zhang, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by Janice Zhang (Zhang) of the Office of the General
Counsel's dismissal (attached) of her unfair practice charge. The charge alleged that the
California Media Workers Guild/CWA/Local 39521 (Local 39521) violated the Trial Court
Interpreter Employment and Labor Relations Act (Court Interpreter Act)' by rejecting Zhang's
request for representation regarding her dispute with her employer, the Superior Court of
California, County of Los Angeles (Court). The charge alleged that this conduct breached
Local 39521's duty of fair representation. The Board agent dismissed the charge, concluding
that it was untimely filed and that it failed to state a prima facie case.
The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. Based thereon, the Board finds the
Board agent's warning and dismissal letters to be well-reasoned, adequately supported by the
The Court Interpreter Act is codified at Government Code section 71800 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.

record and in accordance with the applicable law. Accordingly, the Board hereby adopts the
warning and dismissal letters as the decision of the Board itself, as supplemented by a discussion
of the issue raised by Zhang on appeal.
DISCUSSION
The Board agent's dismissal of the charge was based on two grounds: 	the charge was
untimely filed; and, the charge failed to state a prima facie case of breach of the duty of fair
representation. 	Regarding the latter, Zhang's appeal raises no issues warranting the Board's
review. 	Regarding the former, Zhang argues that her charge was timely filed because it was
filed within six months of March 7, 2011, the date of a letter from the Court notifying Zhang that
she had been discharged from service as an employee with the Court. As the letter explains,
Zhang had failed to comply with language registration/certification requirements established by
the Judicial Council of California (Judicial Council), Administrative Office of the Courts. As a
result, on March 4, 2011, Zhang's name was removed from the Master List of Certified Court
Interpreters and Registered Interpreters of non-Designated Languages (Master List).
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd. (2005)
35 Cal.4 th 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.) A charging party bears the burden of demonstrating that the
charge is timely filed. 	(Long Beach Community College District (2009) PERB Decision
No. 2002.)
2
record and in accordance with the applicable law. Accordingly, the Board hereby adopts the
warning and dismissal letters as the decision of the Board itself, as supplemented by a discussion
of the issue raised by Zhang on appeal.
DISCUSSION
The Board agent's dismissal of the charge was based on two grounds: the charge was
untimely filed; and, the charge failed to state a prima facie case of breach of the duty of fair
representation. Regarding the latter, Zhang's appeal raises no issues warranting the Board's
review. Regarding the former, Zhang argues that her charge was timely filed because it was
filed within six months of March 7, 2011, the date of a letter from the Court notifying Zhang that
she had been discharged from service as an employee with the Court. As the letter explains,
Zhang had failed to comply with language registration/certification requirements established by
the Judicial Council of California (Judicial Council), Administrative Office of the Courts. As a
result, on March 4, 2011, Zhang's name was removed from the Master List of Certified Court
Interpreters and Registered Interpreters of non-Designated Languages (Master List).
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd. (2005)
35 Cal.4" 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.) A charging party bears the burden of demonstrating that the
charge is timely filed. (Long Beach Community College District (2009) PERB Decision
No. 2002.)
N

In cases involving the duty of fair representation, the six-month limitations period begins
to run on the date when the charging party, in the exercise of reasonable diligence, knew or
should have known that further assistance from the union was unlikely. (Los Rios College
Federation of Teachers, CFTIAFT (Violett, et al.) (1991) PERB Decision No. 889; International
Union of Operating Engineers, Local 501 (Reich) (1986) PERB Decision No. 591-H; SE![],
United Healthcare Workers West (Rivera) (2009) PERB Decision No. 2025-M.) Once the
statute begins to run, the charging party cannot cause it to begin anew by making the same
request over and over again. (California State Employees Association, Local 1000, SEIU,
AFL-CIO (Sutton) (2003) PERB Decision No. 1553-S.) Repeated refusals by a union to provide
assistance also do not start the statute of limitations period anew. (SEIU Local 1021 (DeLarge)
(2009) PERB Decision No. 2068.) Nor does a charging party's complaint to higher-level union
officials extend the limitations period. (California School Employees Association (Spiegelman)
(1984) PERB Decision No. 400.)
The amended charge alleges that Zhang contacted Local 39521 for assistance between
September 2007, and January 2010, and that Local 39521 had consistently declined to represent
her. Attached as an exhibit to Zhang's amended charge is a letter dated May 1, 2008, from
Zhang to the Newspaper Guild-CWA (CWA) attempting to "appeal Local 39521 's January 10,
2008 decision from Sheila Sexton of Beeson, Tayer, Bodine rejecting my request for legal
representation in a matter regarding changing the 'terms and conditions' of my employment by
the Judicial Council of California and Los Angeles Superior Court." By letter of May 19, 2008,
CWA informed Zhang that "contracts are held directly by the locals" and that she had the right
to challenge the decision at a local membership meeting. The charge fails to allege whether
Zhang pursued this avenue of appeal or what contact, if any, Local 39521 or CWA had with
Zhang after CWA's letter of May 19, 2008.
3
In cases involving the duty of fair representation, the six-month limitations period begins
to run on the date when the charging party, in the exercise of reasonable diligence, knew or
should have known that further assistance from the union was unlikely. (Los Rios College
Federation of Teachers, CFT/AFT (Violett, et al.) (1991) PERB Decision No. 889; International
Union of Operating Engineers, Local 501 (Reich) (1986) PERB Decision No. 591-H; SEIU,
United Healthcare Workers West (Rivera) (2009) PERB Decision No. 2025-M.) Once the
statute begins to run, the charging party cannot cause it to begin anew by making the same
request over and over again. (California State Employees Association, Local 1000, SEIU,
AFL-CIO (Sutton) (2003) PERB Decision No. 1553-S.) Repeated refusals by a union to provide
assistance also do not start the statute of limitations period anew. (SEIU Local 1021 (DeLarge)
(2009) PERB Decision No. 2068.) Nor does a charging party's complaint to higher-level union
officials extend the limitations period. (California School Employees Association (Spiegelman)
(1984) PERB Decision No. 400.)
The amended charge alleges that Zhang contacted Local 39521 for assistance between
September 2007, and January 2010, and that Local 39521 had consistently declined to represent
her. Attached as an exhibit to Zhang's amended charge is a letter dated May 1, 2008, from
Zhang to the Newspaper Guild-CWA (CWA) attempting to "appeal Local 39521's January 10,
2008 decision from Sheila Sexton of Beeson, Tayer, Bodine rejecting my request for legal
representation in a matter regarding changing the "terms and conditions' of my employment by
the Judicial Council of California and Los Angeles Superior Court." By letter of May 19, 2008,
CWA informed Zhang that "contracts are held directly by the locals" and that she had the right
to challenge the decision at a local membership meeting. The charge fails to allege whether
Zhang pursued this avenue of appeal or what contact, if any, Local 39521 or CWA had with
Zhang after CWA's letter of May 19, 2008.
3

Zhang's appeal mentions a prior PERB charge. Zhang states:
My efforts to obtain Union representation date back to 2008 when I
anticipated that my employment would be suspended. I file [sic]
my first charge with PERB in June of 2008 but it was dismissed. I
did not file an appeal at that time.
The Board may take notice of its own records and files. 	(San Ysidro School District ( 1997)
PERB Decision No. 1198.) The Board takes notice of the case file in Unfair Practice Charge
No. LA-CO-3-I. Review of that file reveals the following:
Zhang's prior charge alleged that Local 39521 breached its duty of fair representation by
declining to represent her regarding the same issue involved in the present case, i.e., Zhang's
failure to comply with the Judicial Council requirements for maintaining her status as an
employee with the Court. The prior charge was filed during a grace period before Zhang' s
services were terminated/suspended by the Court in February 2009. The prior charge was filed a
month after CW A's letter of May 19, 2008.
The file from the prior charge contains a copy of Sexton's letter of January 10, 2008.
The letter, addressed to Doug Cuthbertson of Local 39521, arrives at the following conclusions:
(1) it is questionable whether Local 39521 has standing to pursue a legal challenge to the
Judicial Council's certification requirements; (2) the facts do not sufficiently support a challenge
on the merits; and (3) in the event the Court terminates Zhang if she is unable to pass the
examination prior to February 1, 2008, when the grace period expires, there would be no valid
grounds for filing a grievance on Zhang's behalf. The file from the prior charge also contains a
copy of a memorandum from the Judicial Council dated January 22, 2008. It is addressed to
"Registered Interpreters in Eastern Armenian, Western Armenian, Mandarin, and Russian."
The memorandum states that: (1) the Judicial Council had approved a 12-month extension
4
Zhang's appeal mentions a prior PERB charge. Zhang states:
My efforts to obtain Union representation date back to 2008 when I
anticipated that my employment would be suspended. I file [sic]
my first charge with PERB in June of 2008 but it was dismissed. I
did not file an appeal at that time.
The Board may take notice of its own records and files. (San Ysidro School District (1997)
PERB Decision No. 1198.) The Board takes notice of the case file in Unfair Practice Charge
No. LA-CO-3-I. Review of that file reveals the following:
Zhang's prior charge alleged that Local 39521 breached its duty of fair representation by
declining to represent her regarding the same issue involved in the present case, i.e., Zhang's
failure to comply with the Judicial Council requirements for maintaining her status as an
employee with the Court. The prior charge was filed during a grace period before Zhang's
services were terminated/suspended by the Court in February 2009. The prior charge was filed a
month after CWA's letter of May 19, 2008.
The file from the prior charge contains a copy of Sexton's letter of January 10, 2008.
The letter, addressed to Doug Cuthbertson of Local 39521, arrives at the following conclusions:
(1) it is questionable whether Local 39521 has standing to pursue a legal challenge to the
Judicial Council's certification requirements; (2) the facts do not sufficiently support a challenge
on the merits; and (3) in the event the Court terminates Zhang if she is unable to pass the
examination prior to February 1, 2008, when the grace period expires, there would be no valid
grounds for filing a grievance on Zhang's behalf. The file from the prior charge also contains a
copy of a memorandum from the Judicial Council dated January 22, 2008. It is addressed to
"Registered Interpreters in Eastern Armenian, Western Armenian, Mandarin, and Russian."
The memorandum states that: (1) the Judicial Council had approved a 12-month extension
4

of the grace period for registered interpreters of these languages to pass certification
examinations; (2) the extended grace period would end on February 1, 2009; and (3) during the
additional 12-month grace period, registered interpreters would maintain their registered status
and their employment status with the courts.2 Zhang provided neither of these documents to the
Board agent assigned to process the present charge. Nor does it appear that the Board agent was
informed of Zhang's prior charge.
As we know from our review of the file from the prior charge, the date mentioned by
Zhang in her May 1, 2008, letter to CWA as the date of Local 39521 's decision not to represent
her refers to the January 10, 2008, letter from Sexton to Local 39521 in which she rendered a
legal opinion about the merits of Zhang's case. That letter concluded that there would be no
valid basis for bringing a grievance against the Court in the event Zhang were terminated for
failing to satisfy the Judicial Council's certification requirements. Assuming Zhang's
allegations to be true that Local 39521 continued to decline representation through January 2010,
in response to Zhang' s continued requests, the statute of limitations began to run with
Local 39521 's initial decision not to represent her on or about January 10, 2008, or at least on or
about May 19, 2008, when CWA informed Zhang that contracts are held directly with the locals
and that her right to challenge Local 39521 's decision was at a local membership meeting. At
that time, Zhang knew or should have known that Local 39521 's assistance was unlikely.
Zhang's continued requests and Local 39521 's continued refusals do not extend the statute of
Zhang's prior charge against Local 39521 was dismissed for failure to state a prima
facie case. The Board agent concluded that Local 39521 reviewed Zhang's case and declined
representation after determining that the chances for success were minimal and that
Local 39521 's decision not to represent Zhang was not without a rational basis or devoid of
honest judgment.
5
of the grace period for registered interpreters of these languages to pass certification
examinations; (2) the extended grace period would end on February 1, 2009; and (3) during the
additional 12-month grace period, registered interpreters would maintain their registered status
and their employment status with the courts." Zhang provided neither of these documents to the
Board agent assigned to process the present charge. Nor does it appear that the Board agent was
informed of Zhang's prior charge.
As we know from our review of the file from the prior charge, the date mentioned by
Zhang in her May 1, 2008, letter to CWA as the date of Local 39521's decision not to represent
her refers to the January 10, 2008, letter from Sexton to Local 39521 in which she rendered a
legal opinion about the merits of Zhang's case. That letter concluded that there would be no
valid basis for bringing a grievance against the Court in the event Zhang were terminated for
failing to satisfy the Judicial Council's certification requirements. Assuming Zhang's
allegations to be true that Local 39521 continued to decline representation through January 2010,
in response to Zhang's continued requests, the statute of limitations began to run with
Local 39521's initial decision not to represent her on or about January 10, 2008, or at least on or
about May 19, 2008, when CWA informed Zhang that contracts are held directly with the locals
and that her right to challenge Local 39521's decision was at a local membership meeting. At
that time, Zhang knew or should have known that Local 39521's assistance was unlikely.
Zhang's continued requests and Local 39521's continued refusals do not extend the statute of
Zhang's prior charge against Local 39521 was dismissed for failure to state a prima
facie case. The Board agent concluded that Local 39521 reviewed Zhang's case and declined
representation after determining that the chances for success were minimal and that
Local 39521's decision not to represent Zhang was not without a rational basis or devoid of
honest judgment.
5

limitations period. As the Board agent noted, even Zhang's most recent request for
representation in January 2010, is well outside the limitations period. 3
- 	.
That Zhang's final discharge by the Court occurred on or about March 7, 2011, does not
change this analysis. Removal of Zhang's name from the Master List was simply the final
administrative action taken by the Court in response to Zhang's continued failure to comply with
the Judicial Council's certification requirements. Despite the discharge language in the Court's
March 7, 2011, letter, Zhang's employment status with the Court appears to have ended with the
expiration of the extended grace period on February 1, 2009. Even if that is not the case,
Local 39521 's decision not to represent Zhang did not turn on the timing of the Court's final
action to discharge her and remove her name form the Master List. It turned on the merits of the
underlying certification dispute. Zhang knew or should have known that Local 39521 was
unlikely to assist her regarding her certification dispute at the time Local 39521 first declined to
represent her, not when the Court took its final action to discharge her and remove her from the
Master List on or about March 7, 2011.
Based on the foregoing discussion, the Board agent correctly determined that Zhang's
charge was untimely.
In her appeal, Zhang presents a new factual allegation not previously presented. Zhang
states, "I gave up trying to get their representation when I received Court's pre-warning letter in
February of 2011 regarding anticipated final discharge in March of 2011, I [sic] only recourse
was to file a new Charge with PERB immediately." This statement implies that Zhang's most
recent attempt to obtain representation occurred in February 2011, not on January 20 l 0, as
alleged in the amended charge. "Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence." (PERB Reg. 32635, subd. (b)
[PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001 et seq.].) The event alleged for
the first time on appeal occurred prior to the dismissal of the charge, and the appeal provides no
reason why it could not have been alleged in the original or amended charge. Therefore, we find
no good cause to consider this new allegation. More importantly, even were we to consider this
new allegation, our analysis would not change. Assuming Zhang requested assistance as
recently as February 2011, her renewed request would not start the limitations period anew.
(California State Employees Association, Local 1000, SEIU, AFL-CIO (Sutton), supra, PERB
Decision No. 1553-S.)
6
limitations period. As the Board agent noted, even Zhang's most recent request for
representation in January 2010, is well outside the limitations period.
That Zhang's final discharge by the Court occurred on or about March 7, 2011, does not
change this analysis. Removal of Zhang's name from the Master List was simply the final
administrative action taken by the Court in response to Zhang's continued failure to comply with
the Judicial Council's certification requirements. Despite the discharge language in the Court's
March 7, 201 1, letter, Zhang's employment status with the Court appears to have ended with the
expiration of the extended grace period on February 1, 2009. Even if that is not the case,
Local 39521's decision not to represent Zhang did not turn on the timing of the Court's final
action to discharge her and remove her name form the Master List. It turned on the merits of the
underlying certification dispute. Zhang knew or should have known that Local 39521 was
unlikely to assist her regarding her certification dispute at the time Local 39521 first declined to
represent her, not when the Court took its final action to discharge her and remove her from the
Master List on or about March 7, 2011.
Based on the foregoing discussion, the Board agent correctly determined that Zhang's
charge was untimely.
'In her appeal, Zhang presents a new factual allegation not previously presented. Zhang
states, "I gave up trying to get their representation when I received Court's pre-warning letter in
February of 201 1 regarding anticipated final discharge in March of 2011, I [sic] only recourse
was to file a new Charge with PERB immediately." This statement implies that Zhang's most
recent attempt to obtain representation occurred in February 2011, not on January 2010, as
alleged in the amended charge. "Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence." (PERB Reg. 32635, subd. (b)
[PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001 et seq.].) The event alleged for
the first time on appeal occurred prior to the dismissal of the charge, and the appeal provides no
reason why it could not have been alleged in the original or amended charge. Therefore, we find
no good cause to consider this new allegation. More importantly, even were we to consider this
new allegation, our analysis would not change. Assuming Zhang requested assistance as
recently as February 2011, her renewed request would not start the limitations period anew.
(California State Employees Association, Local 1000, SEIU, AFL-CIO (Sutton), supra, PERB
Decision No. 1553-S.)
6

ORDER
The unfair practice charge in Case No. LA-CO-4-I is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
7
ORDER
The unfair practice charge in Case No. LA-CO-4-I is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
7

STATE OF CALIFORNIA	
EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
<i"o-1tll!:JH
Re'-:r,o
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OF
c~t.
1
,;.o'l-
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Teiephone:
(8
I 8) 551-2804
Fax: (818) 551-2820
May 13, 2011
Janice Zhang
100
S.
Alameda Street, Unit 447
Los Angeles, CA 90012
Re: 	Janice Zhang
v.
California Media Workers Guild/CWA/Local 39521
Unfair Practice Charge No. LA-CO-4-I
DISMISSAL LETTER
Dear Ms. Zhang:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 16, 2011. Janice Zhang (Zhang or Charging Party)
alleges that the California Media Workers Guild/CW A/Local 39521 (Union or Respondent)
violated section 71822
of
the Trial Court Interpreter Employment and Labor Relations
Act
(Court Interpreter Act or Act) 1 by breaching the duty
of
fair representation.
Charging Party was informed in the attached Warning Letter dated April 29, 2011, that the
above-referenced charge did not state a prima facie case. 	She was advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, she should amend the charge. She was further advised that, unless she amended the
charge to state a prima facie case or withdrew it prior to May 9, 2011, the charge would be
dismissed. 	On May 9, 2011, Charging Party filed an amended charge.
According to the amended charge, Zhang was employed by the Superior Court
of
Los Angeles
(Court) as a Court Interpreter until March 7, 2011.2 Zhang alleges that she sought assistance
from her Union from September 2007 until January 2010. Although not entirely clear,
it
appears from correspondence attached to the amended charge that Zhang requested the Union's
assistance because the Judicial Council
of
California began requiring a certification exam as a
component
of
maintaining her license as a Court Interpreter.
I.
	Timeliness
of
the Charge
As explained in the April 29, 2011 Warning Letter, Zhang has the burden
of
demonstrating that
her charge is timely filed. 	(Los Angeles Unified School District (2007) PERB Decision No.
1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from
The Court Interpreter Act is codified at Government Code section 71800 et seq. 	The
text of the Court Interpreter Act and PERB Regulations may be found at www.perb.ca.gov.
2 In the original charge Zhang alleged that her "employment was terminated by her
employer, Superior Court of California, Los Angeles in February 2009."
STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
May 13, 2011
Janice Zhang
Re: 	Janice Zhang v. California Media Workers Guild/CWA/Local 39521
Unfair Practice Charge No. LA-CO-4-1
DISMISSAL LETTER
Dear Ms. Zhang:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 16, 2011. Janice Zhang (Zhang or Charging Party)
alleges that the California Media Workers Guild/CWA/Local 39521 (Union or Respondent)
violated section 71822 of the Trial Court Interpreter Employment and Labor Relations Act
(Court Interpreter Act or Act)' by breaching the duty of fair representation.
Charging Party was informed in the attached Warning Letter dated April 29, 2011, that the
above-referenced charge did not state a prima facie case. She was advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, she should amend the charge. She was further advised that, unless she amended the
charge to state a prima facie case or withdrew it prior to May 9, 2011, the charge would be
dismissed. On May 9, 2011, Charging Party filed an amended charge.
According to the amended charge, Zhang was employed by the Superior Court of Los Angeles
(Court) as a Court Interpreter until March 7, 2011." Zhang alleges that she sought assistance
from her Union from September 2007 until January 2010. Although not entirely clear, it
appears from correspondence attached to the amended charge that Zhang requested the Union's
assistance because the Judicial Council of California began requiring a certification exam as a
component of maintaining her license as a Court Interpreter.
I. 	Timeliness of the Charge
As explained in the April 29, 2011 Warning Letter, Zhang has the burden of demonstrating that
her charge is timely filed. (Los Angeles Unified School District (2007) PERB Decision No.
1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from
The Court Interpreter Act is codified at Government Code section 71800 et seq. The
text of the Court Interpreter Act and PERB Regulations may be found at www.perb.ca.gov.
2 In the original charge Zhang alleged that her "employment was terminated by her
employer, Superior Court of California, Los Angeles in February 2009."

LA-CO-4-I
May
13,
2011
Page 2
issuing a complaint with respect to any charge based upon an alleged unfair practice occurring
more than six months prior to the filing
of
the charge. (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.) In cases involving the duty
of
fair representation, the six-month statutory
limitations period begins to run on the date when the charging party, in the exercise
of
reasonable diligence, knew or should have known that further assistance from the union was
unlikely. (SEJU Local 1021 (Delarge) (2009) PERB Decision No. 2068.) Repeated refusals
by a union to provide assistance does not start the statute
of
limitations period anew. (Ibid.)
According to the amended charge, Zhang's most recent request for Union representation
occurred in January 2010, almost a year prior to February 16, 2011, the date Zhang filed the
instant unfair practice charge. In addition, Zhang alleges that the Union consistently declined
to assist her since September 2007. Under these circumstances it appears as though Zhang
knew or should have known that further assistance from the Union was not forthcoming at a
time outside the statute
of
limitations period. Accordingly, Zhang does not establish that the
instant charge is timely.
II. 	The Duty
of
Fair Representation
Even
if
Zhang's charge was timely, she does not establish that the Union breached the duty
of
fair representation. A union's duty
of
fair representation only applies to circumstances where
the exclusive representative possesses the exclusive means by which an employee may obtain a
particular remedy. 	(Cal(fornia Statewide Law Enforcement Association (Edelen & Lewis)
(2009) PERB Decision No. 2088-S, citing San Francisco Classroom Teachers Association,
CTAINEA (Chestangue) (1985) PERB Decision No. 544.) Accordingly, the duty
of
fair
representation typically does not apply to extra-contractual forums such as the civil litigation
process. (SEIU Local 790 (Hein) (2004) PERB Decision No. 1677.) In this case, Zhang
alleges that she sought the Union's assistance with a certification requirement
of
the Judicial
Council of California, the entity that issues Court Interpreter licenses in the State. Although
not specifically pled in the unfair practice charge, correspondence attached to the charge also
suggests that she requested that the Union assist her in pursuing claims concerning age-based
discrimination and violation
of her due process rights. However, Zhang does not establish
whether these issues are subject to the collective bargaining relationship between the Union
and the Court. Accordingly, there is insufficient information to conclude that the Union had a
duty to represent Zhang regarding these issues.
Moreover, as explained in the April 29, 2011 Warning Letter, "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 (Hussey).) 	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.)
LA-CO-4-1
May 13, 2011
Page 2
issuing a complaint with respect to any charge based upon an alleged unfair practice occurring
more than six months prior to the filing of the charge. (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.) In cases involving the duty of fair representation, the six-month statutory
limitations period begins to run on the date when the charging party, in the exercise of
reasonable diligence, knew or should have known that further assistance from the union was
unlikely. (SEIU Local 1021 (DeLarge) (2009) PERB Decision No. 2068.) Repeated refusals
by a union to provide assistance does not start the statute of limitations period anew. (Ibid.)
According to the amended charge, Zhang's most recent request for Union representation
occurred in January 2010, almost a year prior to February 16, 2011, the date Zhang filed the
instant unfair practice charge. In addition, Zhang alleges that the Union consistently declined
to assist her since September 2007. Under these circumstances it appears as though Zhang
knew or should have known that further assistance from the Union was not forthcoming at a
time outside the statute of limitations period. Accordingly, Zhang does not establish that the
instant charge is timely.
II. 	The Duty of Fair Representation
Even if Zhang's charge was timely, she does not establish that the Union breached the duty of
fair representation. A union's duty of fair representation only applies to circumstances where
the exclusive representative possesses the exclusive means by which an employee may obtain a
particular remedy. (California Statewide Law Enforcement Association (Edelen & Lewis)
(2009) PERB Decision No. 2088-S, citing San Francisco Classroom Teachers Association,
CTA/NEA (Chestangue) (1985) PERB Decision No. 544.) Accordingly, the duty of fair
representation typically does not apply to extra-contractual forums such as the civil litigation
process. (SEIU Local 790 (Hein) (2004) PERB Decision No. 1677.) In this case, Zhang
alleges that she sought the Union's assistance with a certification requirement of the Judicial
Council of California, the entity that issues Court Interpreter licenses in the State. Although
not specifically pled in the unfair practice charge, correspondence attached to the charge also
suggests that she requested that the Union assist her in pursuing claims concerning age-based
discrimination and violation of her due process rights. However, Zhang does not establish
whether these issues are subject to the collective bargaining relationship between the Union
and the Court. Accordingly, there is insufficient information to conclude that the Union had a
duty to represent Zhang regarding these issues.
Moreover, as explained in the April 29, 2011 Warning Letter, "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 (Hussey).) 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.)

LA-CO-4-I
May 13, 2011
Page 3
Zhang was informed in the Warning Letter that, because she did not provide sufficient details
about the Union's conduct, PERB was unable to conclude whether the Union's treatment
of
her
requests for representation was arbitrary, discriminatory, or taken in bad faith. (Hussey, supra,
35
Cal.App.4th 1213.) For that reason, Zhang was informed that she did not meet her burden
of
stating a prima facie case. (PERB Regulation 32615(a)(5).)3
In the amended charge, Zhang again does not provide sufficient information regarding the
Union's handling
of
Zhang's complaints. Zhang's conclusory remarks that the Union's
conduct was arbitrary and discriminatory are not sufficient to demonstrate a violation. 	(See
State
of
California (Department
of
Food and Agriculture) ( 1994) PERB Decision No. 1071-S.)
Moreover, Zhang has not demonstrated that the Union breached the duty
of
fair representation.
Accordingly, her unfair practice charge is dismissed
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.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CO-4-I
May 13, 2011
Page 3
Zhang was informed in the Warning Letter that, because she did not provide sufficient details
about the Union's conduct, PERB was unable to conclude whether the Union's treatment of her
requests for representation was arbitrary, discriminatory, or taken in bad faith. (Hussey, supra,
35 Cal.App.4th 1213.) For that reason, Zhang was informed that she did not meet her burden
of stating a prima facie case. (PERB Regulation 32615(a)(5).)'
In the amended charge, Zhang again does not provide sufficient information regarding the
Union's handling of Zhang's complaints. Zhang's conclusery remarks that the Union's
conduct was arbitrary and discriminatory are not sufficient to demonstrate a violation. (See
State of California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S.)
Moreover, Zhang has not demonstrated that the Union breached the duty of fair representation.
Accordingly, her unfair practice charge is dismissed
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.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916)	(916) 322-
FAX: (916) 327-7960
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-4-I
May 13, 2011
Page 4
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 anextension
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.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
· Sincerely,
M. SUZANNE MURPHY
General Counsel
By
_-----y
./	
/
/ 	.
//
/	
..
/
/	
..
ricJ~	ByE	Eric J. Cu
Regional Attorney
Attachment
cc: 	Doug Cuthbertson; Andrew H. Baker
LA-CO-4-I
May 13, 2011
Page 4
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.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
Regional Attorney
Attachment
cc: Doug Cuthbertson; Andrew H. Baker

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (8 I 8) 551-2804
Fax (818) 551-2820
April 29, 2011
Janice Zhang
100 S. Alameda Street, Unite 447
Los Angeles, CA 90012
Re: 	Janice Zhang v. Cal(fornia Media Workers Guild/CW.A/Local 39521
Unfair Practice Charge No. LA-CO-4-1
WARNING LETTER
Dear Ms. Zhang:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 16, 2011. Janice Zhang (Zhang or Charging Party)
alleges that the California Media Workers Guild/CW A/Local 39521 (Union or Respondent)
violated section 71822 of the Trial Court Interpreter Employment and Labor Relations Act
(Court Interpreter Act or Act) 1 by breaching the duty of fair representation.
Prior to February 2009, Zhang was employed by the Superior Court of Los Angeles (Court) as
a Court Interpreter and was the member of a bargaining unit represented by the Union. 	In
February 2009, the Court terminated Zhang's employment.
In May 2010, Zh,,mg filed a civil lawsuit against the Union for breach of the duty of
representation. On November 24, 2010 the lawsuit was dismissed without prejudice due to the
court's lack of primary jurisdiction over the issue raised in Zhang's complaint.
At unspecified times, Zhang requested that the Union assist her with reinstatement to her
former position with the Court. The Union denied Zhang's requests.
Zhang then alleges that the Union "never made any diligent inquiry or submit any form of
complaints or grievances on Zhang's behalf to her employer in an attempt to get her job back."
Discussion:
I. 	Standing to File Charge
Court Interpreter Act section 71822 states:
The Court Interpreter Act is codified at Government Code section 71800 et seq. 	The
text of the Court Interpreter Act and PERB Regulations may be found at www.perb.ca.gov.
STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
April 29, 2011
Janice Zhang
Re: 	Janice Zhang v. California Media Workers Guild/CWA/Local 39521
Unfair Practice Charge No. LA-CO-4-1
WARNING LETTER
Dear Ms. Zhang:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 16, 2011. Janice Zhang (Zhang or Charging Party)
alleges that the California Media Workers Guild/CWA/Local 39521 (Union or Respondent)
violated section 71822 of the Trial Court Interpreter Employment and Labor Relations Act
(Court Interpreter Act or Act)' by breaching the duty of fair representation.
Prior to February 2009, Zhang was employed by the Superior Court of Los Angeles (Court) as
a Court Interpreter and was the member of a bargaining unit represented by the Union. In
February 2009, the Court terminated Zhang's employment.
In May 2010, Zhang filed a civil lawsuit against the Union for breach of the duty of
representation. On November 24, 2010 the lawsuit was dismissed without prejudice due to the
court's lack of primary jurisdiction over the issue raised in Zhang's complaint.
At unspecified times, Zhang requested that the Union assist her with reinstatement to her
former position with the Court. The Union denied Zhang's requests.
Zhang then alleges that the Union "never made any diligent inquiry or submit any form of
complaints or grievances on Zhang's behalf to her employer in an attempt to get her job back."
Discussion:
I. 	Standing to File Charge
Court Interpreter Act section 71822 states:
The Court Interpreter Act is codified at Government Code section 71800 et seq. The
text of the Court Interpreter Act and PERB Regulations may be found at www.perb.ca.gov.

LA-CO-4-I
April 29, 2011
Page 2
The trial courts, the regional court interpreter employment
relations committee, and employee organizations may not
interfere with, intimidate, restrain, coerce, harass, or discriminate
against applicants for interpreter employment or interpreter
employees because
of
their membership in an interpreter
association or employee organization, because
of
their
participation in any grievance, complaint, or meet and confer
activities, or for the exercise
of
any other rights granted
to
interpreter employees under this chapter.
Court Interpreter Act section 71802(a) defines a "court interpreter" as either "an employee
of
the trial court or an employee
of
another trial court on cross-assignment." (Court Interpreter
Act, § 71802(a).) In this case, Zhang alleges that the Union violated the Court Interpreter Act
by not assisting her with getting her position back after her employment with the Court was
terminated in February 2009. All
of
Zhang's allegations
of
wrongdoing by the Union concern
events that took place after her employment with the Court ended. Accordingly, Zhang does
not allege that she was a "court interpreter" within the meaning
of
the Court Interpreter Act at
the time she sought the Union's assistance. As such, Zhang does not establish that she has
standing to allege that the Union violated rights protected by the Court Interpreter Act.
II. 	Charging Party's Burden
In
addition, PERB Regulation 32615(a)(5)2 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. I 071-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 ofSanta 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
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
Dec1s1on	· · 	N o.
1177)
	, , , .
2 PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.
LA-CO-4-I
April 29, 2011
Page 2
The trial courts, the regional court interpreter employment
relations committee, and employee organizations may not
interfere with, intimidate, restrain, coerce, harass, or discriminate
against applicants for interpreter employment or interpreter
employees because of their membership in an interpreter
association or employee organization, because of their
participation in any grievance, complaint, or meet and confer
activities, or for the exercise of any other rights granted to
interpreter employees under this chapter.
Court Interpreter Act section 71802(a) defines a "court interpreter" as either "an employee of
the trial court or an employee of another trial court on cross-assignment." (Court Interpreter
Act, $ 71802(a).) In this case, Zhang alleges that the Union violated the Court Interpreter Act
by not assisting her with getting her position back after her employment with the Court was
terminated in February 2009. All of Zhang's allegations of wrongdoing by the Union concern
events that took place after her employment with the Court ended. Accordingly, Zhang does
not allege that she was a "court interpreter" within the meaning of the Court Interpreter Act at
the time she sought the Union's assistance. As such, Zhang does not establish that she has
standing to allege that the Union violated rights protected by the Court Interpreter Act.
II. 	Charging Party's Burden
In addition, 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
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 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-4-I
April 29, 2011
Page 3
A. 	Timeliness
of
the Charge
Even
if
Zhang had standing to file the instant charge, she does not demonstrate that the charge
is timely. Zhang filed this unfair practice charge on February 16, 2011. This means that the
statute
of
limitations extends back until August 16, 2010. Any allegations
of
wrongdoing by
the Union occurring prior to August 16, 2010 are therefore untimely unless an exception to
the
statute
of
limitations applies. In this case, Zhang does not provide the dates for any
conduct
by
the Union. 	Thus, PERB is unable to conclude that Zhang's unfair practice charge is timely.
(City
of
Santa Barbara, supra, PERB Decision No. 1628-M.)
B. 	Burden to State a Prima Facie Case3
Even
if
the charge was timely, there is insufficient information to conclude that the Union
breached the duty
of
fair representation. While the Court Interpreter Act 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 o,f 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.)
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." (lb id.)
LA-CO-4-1
April 29, 2011
Page 3
A. 	Timeliness of the Charge
Even if Zhang had standing to file the instant charge, she does not demonstrate that the charge
is timely. Zhang filed this unfair practice charge on February 16, 2011. This means that the
statute of limitations extends back until August 16, 2010. Any allegations of wrongdoing by
the Union occurring prior to August 16, 2010 are therefore untimely unless an exception to the
statute of limitations applies. In this case, Zhang does not provide the dates for any conduct by
the Union. Thus, PERB is unable to conclude that Zhang's unfair practice charge is timely.
(City of Santa Barbara, supra, PERB Decision No. 1628-M.)
B. 	Burden to State a Prima Facie Case
Even if the charge was timely, there is insufficient information to conclude that the Union
breached the duty of fair representation. While the Court Interpreter Act 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, 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.
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.)
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.)

LA~CO-4-I
April 29, 2011
Page 4
Thus, in order to state a prima facie violation
of
the duty
of
fair representation under the Court
Interpreter Act, 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.)
Here, Zhang does not provide a "clear and concise statement
of
facts" regarding the
Union's
conduct. (PERB Regulation 32615(a)(5).) Zhang does not provide any specific details about
any action or failure to act by the Union. 	Without this information, PERB cannot determine
whether the Union has violated the Court Interpreter Act. Zhang's conclusory remarks
that
the
Union's conduct was arbitrary and discriminatory are not sufficient to demonstrate a violation.
(See State
of
California (Department
of
Food and Agriculture), supra, PERB Decision No.
1071-S.) Therefore, Zhang does not establish that a violation occurred.
To the extent that Zhang alleges that the Union breached the duty
of
fair representation after
her employment was terminated by the Court, there is again insufficient information to
establish a violation. The duty
of
fair representation requires the exclusive representative or
recognized employee organization
of
a bargaining unit to represent all members
of
that
bargaining unit fairly and equally. (SEJU Local 1000, CSEA (Burnett) (2007) PERB Decision
No. 1914-S.) In this case however, after Zhang's employment with the Court ended in
February 2009, Zhang does not provide facts demonstrating that she was still in the bargaining
unit represented by the Union. Thus, there is insufficient information to conclude that the
Union had a duty to represent her after her February 2009.
Zhang also includes as attachments documents regarding her continuing education
requirements and associated fees.
	It is unclear what relationship these documents have to the
Union's duty to represent Zhang in her employment. Thus, these documents do not support
Zhang's allegations that the Union violated the Court Interpreter Act.
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, 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
PERB.	
If
an amended charge or withdrawal is not filed on or before May 9, 2011,4 PERB will
dismiss your charge.
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)
LA-CO-4-I
April 29, 2011
Page 4
Thus, in order to state a prima facie violation of the duty of fair representation under the Court
Interpreter Act, 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.)
Here, Zhang does not provide a "clear and concise statement of facts" regarding the Union's
conduct. (PERB Regulation 32615(a)(5).) Zhang does not provide any specific details about
any action or failure to act by the Union. Without this information, PERB cannot determine
whether the Union has violated the Court Interpreter Act. Zhang's conclusemarks that the
Union's conduct was arbitrary and discriminatory are not sufficient to demonstrate a violation.
(See State of California (Department of Food and Agriculture), supra, PERB Decision No.
1071-S.) Therefore, Zhang does not establish that a violation occurred.
To the extent that Zhang alleges that the Union breached the duty of fair representation after
her employment was terminated by the Court, there is again insufficient information to
establish a violation. The duty of fair representation requires the exclusive representative or
recognized employee organization of a bargaining unit to represent all members of that
bargaining unit fairly and equally. (SEIU Local 1000, CSEA (Burnett) (2007) PERB Decision
No. 1914-S.) In this case however, after Zhang's employment with the Court ended in
February 2009, Zhang does not provide facts demonstrating that she was still in the bargaining
unit represented by the Union. Thus, there is insufficient information to conclude that the
Union had a duty to represent her after her February 2009.
Zhang also includes as attachments documents regarding her continuing education
requirements and associated fees. It is unclear what relationship these documents have to the
Union's duty to represent Zhang in her employment. Thus, these documents do not support
Zhang's allegations that the Union violated the Court Interpreter Act.
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, 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
PERB. If an amended charge or withdrawal is not filed on or before May 9, 2011,* PERB will
dismiss your charge.
*A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)

LA-C0-4-I
April 29, 2011
Page 5
If you have any questions, please call me at the above telephone number.
LA-CO-4-I
April 29, 2011
Page 5
If you have any questions, please call me at the above telephone number.
Sincerely,
EC
Eric J. Cu
Regional Attorney
EC