Inlandboatmans Union of the Pacific (PERB 2297M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WILLARD PARK,
Charging Party,
V.
INLAND BOA TMANS UNION OF THE PACIFIC,
Respondent.
Case No. SF-CO-191-M
PERB Decision No. 2297-M
December 12, 2012
Appearance: Willard Park, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Willard Park (Park) to the proposed decision
(attached)
of
a PERB administrative law judge (ALJ) dismissing his unfair practice charge and
complaint. The complaint issued by the Office
of
the General Counsel alleged that the
Inlandboatmans Union of the Pacific (IBU) 1 breached its duty
of
fair representation under the
Meyers-Milias-Brown Act (MMBA)2 by failing to pursue a grievance it filed on Park's behalf
against his former employer, the Golden Gate Bridge, Highway and Transportation District
(District), concerning the District's decision to remove Park from a dispatch list based upon
allegations of insubordination and sexual harassment. 	ALJ determined that IBU did not
In his exceptions, Park contends that the 	improperly referred to the respondent by
the acronym "IUP" rather than "IBU" (presumably standing for "Inlandboatmans Union"). We
find no merit to this objection, as the designation accurately reflects the initial letters of
respondent's organizational name. In any event, any discrepancy in the acronym used to
designate the respondent in this case has no bearing on the merits of the dispute before us.
Without deciding the proper acronym, we defer to Park's apparent preference and refer herein
to the respondent as "IBU."
2 The MMBA is codified at Government Code section 3500 et seq.

breach its duty
of
fair representation in its handling
of
Park's grievance and by withdrawing
from representation after it determined that Park's conduct made success unlikely.
The Board has reviewed the proposed decision and the record in light
of
Park's
exceptions and the relevant law. 	Based on this review, we find the ALJ's proposed decision to
be well-reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the ALJ's proposed decision as the decision
of
the Board itself,
supplemented by the discussion below
of
Park's exceptions.
DISCUSSION
Request to Recuse ALJ
Prior to the hearing before the ALJ, Park requested that the ALJ recuse himself from
hearing this matter because the ALJ had presided over a related case involving an unfair
practice charge filed by Park against the District. (PERB Case No. SF-CE-598-M.)3	
On
September 1, 2010, the ALJ denied the request.
Although not formally labeled an exception, Park appears to renew his claim that the
ALJ should have recused himself in this case because he ruled in favor
of
the District in the
prior proceeding. PERB Regulation 3215 54 provides, in relevant part:
Disqualification
of
Board Agent or Board Members.
(a) No Board member, and no Board agent performing an
adjudicatory function, shall decide or otherwise participate in any
case or proceeding:
(4) When it is made to appear probable that, by reason
of
prejudice
of
such Board member or Board agent, a fair and
impartial
vv,.L..H'U.VL	
of
	case cannot 	had
nPT{V!'P,	
or
her.
2
No exceptions to the ALJ's proposed decision were filed in that case, and it became
final.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

(
c) Any party may request the Board agent to disqualify himself
or herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. 	Such request shall be
written, or
if
oral, reduced to writing within 24 hours
of
the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. The request must be made prior to
the taking
of
any evidence in an evidentiary hearing or the actual
commencement
of
any other proceeding.
If
such Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel or the Chief Administrative Law Judge, as appropriate,
who shall designate another Board agent to hear the matter.
Notwithstanding his or her disqualification, a Board agent who is
disqualified may request another Board agent who has been
agreed upon by all parties to conduct the hearing or investigation.
(d)	
If
the Board agent does not disqualify himself or herself and
withdraw from the proceeding, he or she shall so rule on the
record, state the grounds for the ruling, and proceed with the
hearing or investigation and the issuance
of
the decision. The
party requesting the disqualification may, within ten days, file
with the Board itself a request for special permission to appeal
the ruling
of
the Board agent. If permission is not granted, the
party requesting disqualification may file an appeal, after hearing
or investigation and issuance
of
the decision, setting forth the
grounds
of
the alleged disqualification along with any other
exceptions to the decision on its merits.
(h) Any party aggrieved by a determination made pursuant to
subsections (d) or (g)
of
this rule may include the matter
of
claimed disqualification in a writ
of
extraordinary relief filed
pursuant to Government Code Section 3509.5, 3520, 3542, 3564,
71639.4 or 71825.1 or Public Utilities Code section 99562
seeking judicial review
of
the Board's decision on the merits.
Park did not 	an appeal from the ALJ' s determination pursuant to
Regulation 32155(d) or (h). 	no facts indicating that, 	reason 	prejudice,
ALJ was unable to give a fair and impartial consideration of the merits of the instant case
before him. 	(Gonzales Union High School District (1985) PERB Decision No. 480 [making
factual findings with which a party to a proceeding disagrees is insufficient, as a matter of law,
3

to establish bias or prejudice).) Accordingly, we find no basis upon which to disturb the ALJ's
decision not to disqualify himself.
Denial of Request to Recall Witnesses
Park asserts that, prior to the close of the hearing before the ALJ, he requested to recall
three witnesses and also to call IBU's attorney, Dmitri Iglitzin (Iglitzin), as a witness. 5 Park
concedes that, in an e-mail dated April 17, 2012, he requested to withdraw his requests to call
the additional witnesses, including Iglitzin, provided that an e-mail dated April 16, 2012, from
Iglitzin addressed to both Park and the ALJ be admitted into evidence. The e-mail from
Igilitzin states, among other things, that Iglitzin represented IBU exclusively, did not represent
Park at any time, did not take any actions related to Park other than advising IBU, and that he
had no pertinent non-privileged testimony to give on Park's behalf. On April 17, 2012, having
heard no objection from Iglitzin, the ALJ granted Park's request.
Park appears to argue that the ALJ erred in failing to consider the April 16, 2012 e-mail
from Iglitzin or to include it on the list of exhibits admitted at the hearing. Given the ALJ' s
April 17, 2012 communication, we deem the April 16, 2012 e-mail admitted into the record in
this case.
Park further appears to argue that Iglitzin' s statements in the April 16, 2012 e-mail that
he was representing IBU, not Park, establishes a violation of the duty of fair representation.
The duty of fair representation does not require the union to provide a representative of the
grievant's choice. (American Federation of Teachers College Guild, Local 1521 (Saxton)
(1995) PERB Decision No. 1109.) The fact that Iglitzin represented IBU in the instant charge
filed against it by Park has no bearing on whether or not IBU previously violated its duty of
fair representation in its handling of Park's grievance. Moreover, the fact that IBU chose to
5 Based upon the record before us, it appears that Park requested to recall two
witnesses, plus Iglitzin.
4

provide another representative to handle Park's dispute does not establish a violation of the
duty of fair representation.
IBU Newsletter
At the hearing before the ALJ, Park introduced into evidence an IBU Newsletter from
the spring of 2010 that Park contends was put out by IBU Regional Director Marina
Secchitano and contains an article concerning internal charges brought against Park by IBU.
Park excepts to the ALJ' s failure to consider this exhibit and appears to argue that it indicates
animosity by IBU against him.6 We find no error in the ALJ's analysis of the evidence
presented and find that the publication of the Newsletter has no bearing on the issue of whether
IBU breached its duty of fair representation in its handling of Park's grievance.
IBU's Grievance Handling
The remainder of Park's exceptions dispute the ALJ's determination that the evidence
did not establish that IBU's conduct was arbitrary, discriminatory, or in bad faith. 	(United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258 (Collins); International
Association of Machinists (Attard) (2002) PERB Decision No. 1474-M (Attard).) Park denies
the underlying factual basis of the District's decision to remove him from the dispatch list
based upon allegations of insubordination and sexual harassment. In addition, Park disputes
IBU's determination that it would be best to try to "maintain the status quo," rather than
aggressively litigate the District's decision to remove him from the dispatch list, as well as its
ultimate determination that further processing of the grievance would be futile in light of
Park's conduct during the proceedings.
5
Park's allegations concerning the internal union disciplinary matter were dismissed by
the Office of the General Counsel in this case and not appealed. Therefore, the propriety of
IBU's actions in that proceeding are not before us.

In order to state a prima facie violation of the duty of fair representation, Park must
show that IBU's conduct was arbitrary, discriminatory, or in bad faith. (Collins, supra, PERB
Decision No. 258.) As stated by the Board in Collins:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does
not constitute a breach of the union's duty. 	[Citations.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does
not arbitrarily ignore a meritorious grievance or process a
grievance in a perfunctory fashion. 	A union is aiso not required
to process an employee's grievance if the chances for success
are minimal. 	[Citation.]
In order to state a prima facie case of arbitrary conduct violating the duty of fair
representation, a charging party:
must at a minimum include an assertion of sufficient facts from
which it becomes apparent how or in what manner the exclusive
representative's action or inaction was without a rational basis or
devoid of honest judgment.
(Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in originai.)
The Board has held that a union's decision not to take a grievance to arbitration is
lawful where a rational basis for the decision exists. (Castro Valley Unified School District
(1980) PERB Decision No. 149.) Because the charging party bears the burden of proof that a
violation of the MMBA has occurred, PERB will dismiss a complaint alleging a violation of
the duty of fair representation unless the employee establishes that the union's determination
was without a rational basis or devoid of honest judgment. (Service Employees International
Union Local 616 (.Jeffers) (2004) PERB Decision No. 1675-M; Sacramento City Teachers
Association (Fanning, et al.) (1984) PERB Decision No. 428 [dismissal of charge].) In
6

determining whether that standard is met, PERB does not determine whether the union's
decision was correct but whether it "had a rational basis, or was reached for reasons that were
arbitrary or based upon invidious discrimination." (California School Employees Association
& its Chapter 168 (Gibson) (2010) PERB Decision No. 2128 (California School Employees
Association); see also Vaca v. Sipes (1967) 386 U.S. 171, 195 [holding that "a breach of the
duty of fair representation is not established merely by proof that the underlying grievance was
meritorious"].) The burden is on the charging party to show how a union abused its discretion;
it is not the union's burden to show that it properly exercised its discretion. (United Teachers -
Los Angeles (Wyler) (1993) PERB Decision No. 970.)
We agree with the ALJ' s determination that, given the wide latitude accorded a union
in the representation of its members, the evidence presented did not establish a breach of the
duty of fair representation with respect to IBU's handling of Park's grievance. IBU
participated actively in attempting to resolve the dispute between Park and his employer.
While Park may have disagreed with IBU' s strategy in attempting to obtain a mediated
reinstatement, we agree with the ALJ that the evidence failed to establish that IBU' s conduct
was "without a rational basis or devoid of honest judgment." (Attard, supra, PERB Decision
No. 1474-M.) Likewise, we agree that IBU's decision to withdraw representation based upon
its belief that Park's conduct made further success unlikely had a rational basis and that there is
no evidence that it was otherwise arbitrary or based on invidious discrimination. (California
School Employees Association, supra, PERB Decision No. 2128.) Therefore, we affirm the
dismissal of the complaint and underlying charge.
7

ORDER
The unfair practice charge and complaint in Case No. SF-CO-191-M are hereby
DISMISSED WITHOUT LEA
VE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
8

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
WILLARD PARK,
Charging Party,
V.
INLANDBOATMEN'S UNION OF THE
PACIFIC,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CO-191-M
PROPOSED DECISION
(5/10/2012)
Appearances: Willard Park, in propria persona; Schwerin Campbell Barnard Iglitizin & Lavitt
by Dimtiri Iglitzin, Attorney, for Inlandboatsmen's Union of the Pacific.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Willard Park initiated this case under the Meyers-Milias-Brown Act (MMBA or Act)1
on February 9, 2009, by filing an unfair practice charge against the Inlandboatsmen's Union of
the Pacific (IUP). An amended charge was filed on February 17, 2010. On March 16, 2010,
the Office of the General Counsel of the Public Employment Relations Board (PERB or Board)
issued a complaint alleging that IUP breached its duty of fair representation by failing to
continue representing Park in regard to a grievance.2 This conduct is alleged to violate
sections3506 and 3509(b) of the Act and PERB Regulation 32604(b).3
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter all
statutory references are to the Government Code unless otherwise indicated.
2 Allegations that IUP retaliated against Park for protected activity, denied him
membership, and interfered with the rights of another employee were dismissed by the Board
agent.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

On April 6, 2010, IUP filed its answer to the complaint, denying the material
allegations.
On April 28, 2010, an informal settlement conference was held, but the matter was not
resolved.
On three non-consecutive days between August 9, 2011 and April 25, 2012, a formal
hearing was conducted in Oakland by the undersigned. The matter was submitted for decision
at the close of the hearing.
FINDINGS OF FACT
Park is a "public employee" within the meaning of section 350l(d). IUP is an
"employee organization," within the meaning of section 3501(a), and an "exclusive
representative" of a bargaining unit of public employees, within the meaning of PERB
Regulation 32016(b).
Park was employed by the Golden Gate Bridge, Highway and Transportation District
(District) as a casual deckhand in August 2008. Deckhands obtain work on the District's ferry
boats by bidding for work assignments at the IUP hiring hall.
Marina Secchitano is IUP's Regional Director for the San Francisco region. 	She is
responsible for providing representation to members of the union.
On August 7, 2008, Park's supervisor, Cindy Amadea, relieved Park of duty based on
allegations of insubordination toward the ship's captain and sexual harassment of another
deckhand, Sandy Ailes. The allegations were that Park rnised the boat's flag upside down (a
maritime distress signal), and, after arguing with Ailes on the vessel, stuck his tongue out at
her in a sexual manner when he departed work. Amadea contacted Secchitano by telephone
after the work shift and instructed her to bar IUP from granting Park any new assignments.
2

Based on the report, Secchitano believed that Park would be eligible for assignments sometime
in the future.
On August
8,
2008, Park drafted his own grievance, characterizing Amadea's directive
as a more serious action, namely, that he was "fired without just cause" and made
"undispatchable." He checked a box describing the nature
of
the employer's action as a
"discharge." Park further asserted he was unable to answer the charges against him unless they
were reduced to writing. He did not cite a specific provision
of
the collective bargaining
agreement alleged to have been violated, though he referenced the "contract rule on
terminatio[n]." He demanded a full make-whole remedy.
Secchitano was aware
of
Park's reputation as a longtime active union member. 	She
testified she bore no animosity towards him. Park has been active in the internal affairs
of
the
union, serving in elected positions, and writing a dissident newsletter entitled "The Hurricane"
beginning in the late 1960s. Secchitano acknowledged that Park had accomplished "some
good things" on behalf
of
the members.
Secchitano determined that it would not be wise to file Park's grievance since there had
been no notification that Park had been terminated. Nevertheless, Secchitano assumed
representation
of
Park in the dispute. 	She spoke with Tony Rives, an IUP shop steward, about
arranging a meeting with the District. One was arranged for September 2, 2008. In the
meantime, Secchitano undertook investigation, contacting Captain Colin McDermott, the pilot
of the ferry on which the incidents
of
misconduct allegedly occurred, and Bob Wells, a
deckhand on the vessel. She also spoke with Employee Relations and Diversity Program
Administrator Susan Spencer regarding the sexual harassment allegation.
In
assessing the merits of the case, Secchitano considered the fact that Ailes had been
the subject of prior complaints by union members and that McDermott had a reputation as a
3

stern task master. Secchitano consulted with union counsel and concluded that the best
approach was to maintain the status quo since no letter of disciplinary action had been issued
to Park in the days after the incident. In advance of the scheduled meeting, Secchitano
requested any written statements in the District's possession regarding the allegations. Park
expressed a preference for Rives representing him in the meeting, but agreed to allow
Secchitano to participate.
The District's ferry transit division maintains a "Non-Dispatch List." Based on
longstanding practice, the list identifies employees ineligible to receive assignments through
the hiring hall. An employee may be included for lack of security clearance, disciplinary
matters, or other issues. The list states "non-dispatch" for the employee's status, followed only
by the date of placement on the list. On or about August 27, 2008, Secchitano saw the latest
revision to the list with Park's name entered as of August 7, 2008.
On August 29, Secchitano e-mailed District Ferry Division Deputy General Manager
James Swindler indicating she had just seen the August 27 non-dispatch list and wanted to
warn him of a potential grievance for the purposes of preserving its tim.eliness.4 She also
advised Swindler that IUP wanted to convert the September 2 meeting into a formal grievance
meeting, believing now that Park may indeed have been terminated. 	Secchitano made a
request for a make-whole remedy. Although the dates are not clear, Secchitano engaged
Swindler in informal discussions during this time seeking permission for Park's return to work.
The meeting on September 2 was attended by Park, Rives, Secchitano, Operations
Manager Greg Hansard (who issued the non-dispatch list) and Spencer. District
representatives explained the nature of the incidents that occurred on the vessel on August 7,
the day Park was relieved of duty. 	McDermott was not pleased by Park's act of raising the
4 All dates listed hereafter are in 2008, unless otherwise indicated.
4

ship's flag in an upside down position and his accusation that the captain was a "bully" during
a discussion about the flag sometime after. McDermott also inquired about an incident
between Park and Ailes in the forecastle section
of
the boat which resulted in a shouting match
between the two. At the end
of
the trip, Amadea witnessed Park make an offensive, sexually
suggestive gesture with his tongue directed at Ailes. Amadea told Park she considered the
gesture extremely offensive. Park denied all
of
the accusations.
Going into the meeting Secchitano hoped Park would let his representatives do most
of
the talking, as she feared he might needlessly volunteer incriminating statements. Hence she
was disappointed when Park took an active role in the meeting, but more so because he leveled
blame at the feet
of
McDermott and Ailes. While Secchitano' s goal was to get the District's
consent to allow Park back to work, Park's absence
of
contrition undermined her efforts. 	Near
the end
of
the meeting, Park was asked
if
he was told his gesture to Ailes was offensive and
whether he had apologized. Park responded by asking why he needed to apologize, claiming
the situation was unfair to him. According to notes she kept
of
the meeting, Secchitano then
defended Park by arguing that Ailes had a history
of
being a provocateur. Secchitano testified
that Park also told her
"I'm
not going to kiss their ass; I'm not willing to compromise."
Citing confidentiality concerns stemming from the sexual harassment nature
of
Ailes'
complaint, the District declined to comply with Secchitano's request for release of the witness
statements generated by its investigation. 	Eventually, Spencer produced statements from
McDermott and Amadea.
On September
8,
Park e-mailed Spencer concerning the incident which he described as
him giving Ailes "a silent Bronx cheer." His subject line was "Joseph McCarthy style firing."
Citing a provision of the IUP contract, Park demanded copies of all written accusations against
him as well as the opportunity to confront his accusers in a meeting with a stenographer. 	Park
5

included IUP members
as
coaddressees using the union member forum's listserv. This e-mail
did not please Secchitano. She had never represented an employee who directly contacted the
employer's representative. 	She was trying to approach the goal
of
reinstatement cautiously,
and Park's actions raised doubts for her as to his ability to follow the employer's directives in
the future. 	Secchitano counseled Park on several occasions not to disparage Spencer and cease
his campaign against Ailes. 	Park insisted he would not apologize to anyone, claiming he had
committed no offense.
On September 11, Swindler sent a memorandum to Secchitano in which he explained
the District's determination following its investigation. After summarizing the District's
findings, Swindler informed the union that Park was to remain on the non-dispatch list
"indefinitely."
On September 12, Secchitano submitted a formal grievance to Swindler alleging
"termination without just cause." She requested a meeting to discuss the grievance and again
requested copies
of
all statements.
On September 13, Park e-mailed Secchitano, again copying the IUP membership,
accusing her
of
"giving [the District] his hide." He asserted that IUP conceded his case in
exchange for an economic concession from the District at the bargaining table. He signed the
letter, "Willard 'The Tongue' - not 'The Tom' - Park."
Later the same day, Secchitano replied to Park (and the members) that he would be
receiving a copy of Swindler's determination, the grievance, the union's request for copies of
all statements, and its request for a meeting. Park responded, again with posting to the
membership, proposing that while IUP waited for a response to the document request
Secchitano should ask the District the same question Senator Welch famously asked Senator
McCarthy regarding his lack of decency. On September 16, Park sent another e-mail to
6

Secchitano expressing shock that she had delayed requesting the documents for several weeks.
He asked to communicate with IUP's attorney regarding the request.
On September 16, Ailes responded to the IUP membership in an e-mail questioning
why the listserv had been used by Park as a forum to "post lies" and "bash fellow workers"
rather than discussion
of
union issues. She was referring to correspondence that she believed
Park was responsible for posting regarding a personal dispute between Ailes and Derrick
O'Keefe. 	O'Keefe is an IUP member and staunch supporter
of
Park. 	Secchitano testified that
at this point she still believed IUP could prevail in the grievance but that Park's behavior was
having a negative impact.
Also on September 16, Swindler informed Secchitano that the District would be
withholding some statements because
of
the requirement
of
confidentiality for sexual
harassment victims. By e-mail dated September 17, Secchitano acknowledged the District's
partial release
of
written statements but asserted that others, not dealing with the sexual
harassment incident, still needed to be provided. 	Secchitano informed Park she was consulting
with the union's attorney. 	Park responded that he wanted to be privy to further consultations
with the attorney.
By letter dated September 17, Secchitano informed Park that
if
he had questions for the
attorney, he should first propose them to her. She objected to Park's posting
of
the
correspondence involving Ailes and O'Keefe, stating,
"If
you want the Union to represent you
in this termination, I suggest that you stop generating any communication
...
that relates to
this case." By e-mail the same day, Secchitano explained that she was waiting for a response
from the attorney. 	Park responded that her denial of his access to the attorney was "absolute
and complete bullshit" and that he distrusted her "100 percent."
7

Around this time, Secchitano obtained authorization from IUP to file an unfair practice
charge against the District challenging the refusal to provide complete disclosure
of
the witness
statements against Park.
By e-mail dated September 23, District Deputy General Manager
Z.
Wayne Johnson
informed Secchitano that the District would be providing additional statements not protected
by the sexual harassment disclosure policy. By e-mail dated September 24, Secchitano
forwarded statements in her possession to Park. She suggested to Park that he formulate
questions for the attorney in anticipation
of
the next meeting with the District. Park responded
with a question in Latin. 	Secchitano objected to his "rhetorical" question as unhelpful.
On September 28, Secchitano sent an e-mail to Swindler with a cartoon (a picture
of
a
Halloween straw-man mooning the viewer) circulated by a member and argued that such
mildly offensive conduct was similar to Park's and should be tolerated.
Around this time, Park travelled to the District offices for the purpose
of
viewing his
personnel file. By e-mail dated October
1,
Park lodged a protest with Harvey Pye, an
employee
of
the District, regarding Spencer's refusal to allow him to view his entire personnel
file. 	Park commented that Spencer's conduct on that occasion was "oafish" ("not for the first
time") and enough to "gag a maggot." He added that Spencer's "making a case" out
of
the
tongue incident was "sick and perverted." Park forwarded a copy
of
the e-mail to Secchitano.
Secchitano's discovery
of
Park's independent attempts to engage in discovery led her to
conclude that Park was ignoring her previous advice. In Secchitano's mind, Park's actions
demonstrated he likely could not follow the employer's directives in the future.
By letter dated October 6, Secchitano informed Park that IUP would no longer
represent him. She began by recounting efforts by IUP to represent Park, including the
requests for documents. 	She then stated:
8

Once we received a copy
of
your October
1,
2008, 1:31 p.m.
e-mail to Mr. Pye, however, it became evident that it would be
futile to make further efforts to attempt to persuade Golden Gate
to change its position, and that there is no other meaningful
recourse in this situation. While aside from the gravity
of
your
original conduct which led to Golden Gate's disciplinary action
against you, which is open to interpretation, your statements and
language in the e-mail can only be characterized as insubordinate,
insulting, crude and inappropriate. We
do
no[t] believe there is
any non-negligible chance that further pursuit
of
your grievance
will get Golden Gate to change its mind and reinstate you to
employment, and we do not believe that any arbitrator (should
that be an option) would fail to find your post-discharge
misconduct - the October
1,
2001, e-mail - precludes any arbitral
award in your favor that would include either back-pay or
reinstatement.
[SJ
Secchitano ended the letter by advising Park
of
his appeal rights to the IUP's San Francisco
Region executive board.
Park appealed, and the appeal was heard by the regional board. An hour was spent
reviewing and discussing the case. Union officials advised Park to be supplicant. 	When asked
if
he was willing to accept this advice, Park answered, "Well, it depends." The appeal was
denied. 	Park appealed that decision to the national body, which upheld the regional board's
decision.
On October 22, the District officially placed Park on the non-dispatch list. According
to correspondence from Swindler, the District's action left open the possibility that Park could
return at some point in the future.
More than a year later in January 2010, Swindler was informed
of
communications by
Park to members, distrIUPted or posted at the worksite, disparaging the District's sexual
5 Swindler testified that Secchitano spent close to an hour of his time in various
exchanges informally advocating for Park's reinstatement and reminding him of McDermott's
stern reputation. Swindler testified that there was nothing in IUP's approach that affected the
District's decision. In the second formal meeting with the union, which he attended, Swindler
was offended by Park's apparent attempts to intimidate Spencer.
9

harassment training sessions (citing himself and Ailes
as
the primary object lesson) as well as
IUP's "high priced" lawyer. He suggested collusion between Secchitano and Swindler,
describing the latter as a "congenital liar."
By letter dated January 10, 2010, Swindler wrote to Secchitano informing her that Park
had been placed on the non-dispatch list permanently. At the hearing, Park asserted that IUP
failed to grieve this action.
At the hearing Park repeated his claim
of
collusion between IUP and the District. 	He
presented two witnesses in an attempt to show that he was treated less favorably in
representation because he had been a union dissident. The IUP members provided no evidence
to establish more favored treatment by the union.
Park also presented O'Keefe as a witness for his opinion that IUP failed to process
Park's grievance in a timely fashion. 	There is no evidence Park's grievance was ever in
jeopardy
of
being procedurally defaulted. O'Keefe further testified he was reprimanded by
Swindler (who "screamed at him") in January 2010 based on suspicion that he participated in
the distrIUPtion
of
the leaflets urging members to support Park at his unfair practice hearing in
the charge against the District.
ISSUE
Did the IUP breach its duty
of
fair representation owed to Park with respect to his
grievance against the District?
CONCLUSIONS OF LAW
The complaint alleges that IUP breached its duty of fair representation by ceasing
representation of Park in the grievance over his placement on the non-dispatch list.
MMBA unions "owe a
_duty
of fair representation to their members." This duty
requires them to refrain from representing their members arbitrarily, discriminatorily, or in bad

faith. 	(Hussey
v.
Operating Engineers Local Union
No.
3 (1995)
35
Cal.App.4th 1213
(Hussey); see also Service Employees International Union, Local 616 (Jeffers) (2004)
PERB
Decision No. 1675-M.) The exclusive representative's duty to fairly represent bargaining unit
members extends to grievance handling. (Fremont Unified District Teachers Association,
CTAINEA (King) (1980) PERB Decision No. 125.)
To establish a violation in the grievance handling context, the charging party must
show that the union's conduct was arbitrary, discriminatory, or in bad faith. (United Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) As PERB explained:
Whether a union has met its duty [
of
fair representation in
grievance processing] depends not upon the merits
of
the
grievance but rather upon the union's conduct in processing or
failing to process the grievance. 	Absent bad faith, discrimination,
or arbitrary conduct, mere negligence or poor judgment in
handling a grievance does not constitute a breach
of
the union's
duty. 	[Citations.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance
if
the chances for success are minimal.
[Citation.]
(Ibid.; see also International Association
of
Machinists (Attard) (2002) PERB Decision
No. 1474-M, citing Hussey, supra, 35 Cal.App.4th 1213.) The Hussey court stated:
A union is accorded wide latitude in the representation
of
its
members, 	courts are reluctant to interfere with a union's
decisions in representing its members absent a showing
of
arbitrary exercise of the union's power. [Citation.]
(35 Cal.App.4th at 	1219.)
With respect to the refusal to process a grievance, an aggrieved unit member must
show how the exclusive representative's decision was "without rational basis or devoid
of
honest judgment." (International Association
of
Machinists (Attard), supra, PERB Decision
11

No. 1474-M; see also California Faculty Association (Wunder) (2007) PERB Decision No.
1889-H [union not obligated to elevate a grievance when it has doubts as to the merits].)
Much
of
Park's presentation at the hearing focused on events beginning in late
2009
and into early 2010, around the time his formal hearing
of
the charge against the District. It
appeared the purpose
of
this showing was to demonstrate District-IUP collusion and
IUP's
animus toward Park based on his and O'Keefe's attempt to rally support for his PERB case.
These events were admitted over objection as relevant to the overall showing
of
bad faith.
Following his reprimand
of
O'Keefe, Swindler changed Park's status on the non-
dispatch list from "indefinitely" to "permanently." Park alluded to the fact that IUP never filed
a grievance when Swindler took this action. This allegation was never raised in the charge or
the complaint and Park never gave notice
of
his intent to litigate the matter prior to the hearing.
Therefore, even making allowances for his unrepresented status in the case, there is no good
cause for permitting litigation
of
the issue. (Tahoe-Truckee Unified School District (1988)
PERB Decision No. 668; Gonzales Union High School District (1984) PERB Decision No. 410
[facts set out in original charge]; Trustees
of
the California State University (2010) PERB
Decision No. 2151-H [facts not set out in original charge].)
The gravamen of the complaint is that IUP breached its duty of fair representation by
ceasing prosecution
of
Park's grievance challenging his placement on the non-dispatch list as a
result
of
the incidents involving Ailes in August 2008. IUP made a decision in this case to
cease representation, informed Park of that decision, and explained its reasons. Thus, IUP
exercised its discretion as the exclusive representative whether or not to pursue the grievance.
In such cases, the burden is on the charging party to demonstrate how the union abused its
discretion. (United Teachers - Los Angeles (Wyler) (1993) PERB Decision No. 970.)
12

The union's filing of a grievance does not constitute an unequivocal judgment as to the
merits of the grievance. (California State Employees Association (Cohen) (1993) PERB
Decision No. 980-S.) A union may withdraw a grievance if new information casts doubts on
the merits of the case. (Ibid.) However, a union may not refuse to process a grievance for
conduct on the part of the employee that it views as disloyal. ( California Union of Safety
Employees (Baima) (1993) PERB Decision No. 967-S [threat of litigation].)
Park has failed to demonstrate that IUP abused its discretion in declining to proceed
with his grievance. Park does not dispute the actions about which IUP registered its concern -
his demands directly to the District for production of witness statements and his campaign to
solicit support of other union members in his defense against a disciplinary action arising from
a complaint by another union member - and indeed, based on his militant actions throughout
the matter, he appears to have viewed his self-advocacy as courageous in the face of union and
management collusion.
Regardless of the merit of that view, IUP' s representation undoubtedly rested on
different concerns based on Secchitano's strategy for obtaining Park's reinstatement. District
deckhands are at will employees with a tenuous hold on continued employment. They receive
short-term ferry boat assignments based on bids at the union hall. The District maintains the
list of those eligible and ineligible to bid on jobs. Secchitano adopted a wait-and-see policy
initially, while Park presented a grievance which characterized Amadea's discipline as a
termination. No notification of formal action was issued until the non-dispatch list
approximately three weeks after the boat incident and following Spencer's investigation of the
charge of sexual harassment. In Secchitano' s mind this still did not obviate the potential for an
expeditious reinstatement. Nevertheless, Secchitano responded with her demand that the
meeting scheduled for September 2 be treated as a grievance meeting. During that meeting,
13

the District laid out the basis of its action against Park. To Secchitano's chagrin, Park took an
active role in the meeting and foiled Secchitano's hope that a show of contrition might result in
reinstatement to the bid list. Park was unrepentant.
Because Park was intent on fully litigating his dispute he followed the meeting with his
September 8 e-mail to Spencer demanding the witness statements that had prompted his
"McCarthy-style firing." As Secchitano testified, this communication raised doubts about the
viability of her strategy for a mediated reinstatement, one that was contingent upon the District
believing Park capable of following the District's directives. Regardless of whether the
incident actually involved sexual harassment or insubordination, Park's conduct cast doubt on
his being viewed as amenable to rehabilitation. Park adopted the righteous approach, but it
conflicted with Secchitano's pragmatic one.
With the courses set in this fashion, the events that followed Swindler's letterof
adverse findings were predictable. Park escalated his demands for proof of wrongdoing by
visiting the District office to inspect his personnel file. 	In the process he described Spencer as
oafish and forwarded Secchitano his October I e-mail to Pye. That e-mail, coming after
Secchitano's warning to cease personally-generated communications concerning his case,
triggered IUP's decision to cease prosecution of the grievance. In the letter to informing Park
of the decision, Secchitano reiterated her concern about Park's counterproductive approach to
the case, citing his conduct toward Pye as insubordinate, insulting, and crude. She added that
Park's post-discharge misconduct in the union's view would prevent an arbitrator from finding
in his favor.
The relationship conflict between grievant and union representative here provides an
apt occasion to emphasize that the union retains authority to make strategic and tactical
decisions within its duty of fair representation. As United Teachers of Los Angeles (Collins),
14

supra, PERB Decision No. 258 reminds, a breach is not dependent solely on the merits
of
the
grievance, but whether the union has processed the grievance in a good faith manner.
So
long
as a decision to withdraw from a grievance appears to have rational basis and there is no
evidence it is otherwise arbitrary or based on invidious discrimination, no violation will be
found. 	(California School Employees Association & its Chapter 168 (Gibson) (2010)
PERB
Decision No. 2128.)
Consistent with Park's history
of
advocacy generally, he viewed his case as an
opportunity for collective action aimed at illuminating the employer's arbitrary practices.
However, IUP had more pragmatic concerns, including how to achieve a successful outcome
when the impetus for the disciplinary action was the complaint by another member. Given
such, IUP's strategy was objectively sensible and non-arbitrary. In contrast, accommodation
of
interests was not in Park's contemplation.
I further conclude that IUP had a rational basis for believing that further processing
of
Park's grievance would be futile. 	Park never disputed that he stuck his tongue out at Ailes; the
only question is whether it amounted to sexual harassment, a matter subject to interpretation as
Secchitano reminded Park in her October 6 letter. The grievance was not clearly meritorious,
only arguably meritorious. In this context, I have no basis to dispute IUP's opinion that an
arbitrator would find Park's post-discharge misconduct detrimental to the case.
I also find no evidence
of
invidious discrimination on IUP' s part, notwithstanding
Park's history of dissident activity. 	Secchitano intervened promptly and vigorously in the
matter, including obtaining authority to file an unfair practice charge to compel production of
the witness statements.
Accordingly, I find that IUP did not breach its duty of fair representation in regard to
Park's alleged misconduct while on duty.
15

PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. SF-CO-191-M, Willard
Park v. Inlandboatmans Union of the Pacific, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 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, subd. (b), (c) and (d);
see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
16

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
17
Donn Ginoza
Administrative Law Judge