Service Employees International Union #790 (Adza) (PERB 1632M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN ADZA,
Charging Party, Case No. SF-COQ-29-M

Vv. PERB Decision No. 1632-M

SERVICE EMPLOYEES INTERNATIONAL May 19, 2004

UNION #790,

| Respondent.

Appearance: Del Beccaro, Ratfield, Hornsby & Blake by Thomas G. F. Del Beccaro,
Attorney, for John Adza.

Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by John Adza (Adza) of a Board agent’s dismissal (attached) of his unfair practice
charge. The charge alleged that the Service Employees International Union #790 violated its
duty of fair representation under the Meyers-Milias-Brown Act (MMBA)'.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters and Adza’s appeal. The Board finds the warning and
dismissal letters to be free of prejudicial error and adopts them as the decision of the Board

itself.

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

ORDER
The unfair practice charge in Case No. SF-C0-29-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

,,r	
STATE OF CALIFORNIA 	( 	( 	'
--------------	
------------
GRAY DAVIS, Governor
.s----
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone:
(5
I 0) 622-1022
Fax: (510) 622-1027
September 17, 2003
Thomas Del Beccaro, Attorney
Del Beccaro, Ratfield, Hornsby & Blake
800
S.
Broadway #301
Walnut Creek, CA 94596
Re: 	John Adza v. Service Employees International Union #790
Unfair Practice Charge No. SF-CO-29-M
DISMISSAL LETTER
Dear Mr. Del Beccaro:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 9, 2003. John Adza alleges that the Service Employees
International Union #790 violated the Meyers-Milias-Brown Act (MMBA) 1 by breaching its
duty
of
fair representation.
I indicated to you in my attached letter dated August 6, 2003, that the above-referenced charge
did not state a prima facie case. 	You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to August 13, 2003, the charge would be dismissed. I
later extended that deadline to August 27, 2003.
On August 21, 2003, I had a lengthy conversation with Charging Party and his representative.
During this conversation, Charging Party's representative suggested that PERB's investigation
should only include those facts provided by the Charging Party and could not include facts
provided by the Respondent. I informed Charging Party and his representative that my
investigation would include all
of
the facts available and my decision would be based upon all
facts and not just those provided by the Charging Party. Charging Party's representative also
indicated that as the Association had failed to contact Mr. Adza for a three month period, the
Association's conduct automatically rose to the level
of
an MMBA violation. I again indicated
to Charging Party and his representative that I would analyze the charge based upon all
of
the
facts provided. Additionally, I asked Charging Party to explain how he had been harmed by
the Association's failure to communicate with him while awaiting the selection of an
arbitrator. Neither Charging Party nor his representative we able to explain how he had been
harmed. Finally, Charging Party's representative indicated that one of the Association's
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-29-M
September 17, 2003
Page 2
( (
representatives had a conflict
of
interest with Mr. Adza, and thus the Association breached its
duty
of
fair representation. I will address this allegation below.
The relevant facts are as follows.
On January 24, 2002, Watershed Keeper Kristina Wuslich made a complaint
of
sexual
harassment against Mr. Adza. The complaint alleged that on December 17, 2001, Mr. Adza,
Ms. Wuslich's supervisor, made repeated sexual advances towards Ms. Wuslich. Additionally,
Ms. Wuslich claimed Mr. Adza restrained her from leaving the facility and kissed and fondled
her. The incident ended when two fellow co-workers entered the facility.
On February 5, 2002, Ms. Wuslich, through her attorney Lynn Faris, made a seven page
complaint
of
sexual harassment. On February 19, 2002, Mr. Adza was placed on Unpaid
Administrative Leave pending the outcome
of
the investigation. SEID was informed
of
this
discipline.
On February 21, 2002, the City issued a
21
page report regarding Ms. Wuslich's complaint.
The investigator interviewed 14 witnesses, including Mr. Adza and Ms. Wuslich. After an
exhaustive investigation, the City found Ms. Wuslich' s testimony, and that
of
most
of
the
witnesses, as credible, and further indicated that Mr. Adza had directly violated an order to
refrain from discussing this issue with any employees
of
the City.
On March 7, 2002, the City issued a Notice
of
Action to terminate Mr. Adza from his
employment. An Employee Conference was scheduled for March 13, 2002, during which Mr.
Adza and his representative could challenge the findings and the City's decision.
After postponing the meeting on two separate occasions, Mr. Adza and his SEID
representative, Ruben Garcia, met with the City, on March 28, 2002, to discuss Mr. Adza's
termination. During this meeting, Mr. Adza and Mr. Garcia challenged the witnesses'
credibility and argued that Ms. Wuslich's complaint was made in retaliation for some past
marijuana discovery on Watershed property. More specifically, Mr. Adza asserted that Ms.
Wuslich's complaint was in retaliation for the investigation
of
Ms. Wuslich's brother for
growing marijuana on Watershed property. No other facts supporting this allegation are
provided, and the City rejected this explanation after investigating the facts surrounding the
marijuana discovery.
On April 17, 2002, the City issued its Notice
of
Dismissal to Mr. Adza. The Notice
ofDismissal noted the numerous arguments Mr. Garcia made on Mr. Adza's behalf, and further
explained why they were rejected. Moreover, the Notice indicated that Mr. Adza had violated
investigative procedures by contacting several of the witnesses after being admonished
otherwise. The Notice concluded by informing Charging Party
of
his appeal rights under the
MOU.
On May 1, 2002, SEIU filed a grievance on Mr. Adza's behalf, asserting the City violated
MOU provisions when it terminated Mr. Adza. The grievance was filed by SEIU Field

• I 	(
SF-CO-29-M
September 17, 2003
Page 3
Representative Michael Haberberger. Mr. Adza asserts that Mr. Haberberger had a conflict
of
interest in this case and thus should not have filed the grievance. However, as explained
during our conversation on August 21, 2003, the charge makes clear that Mr. Haberberger was
not directly handling Charging Party's case and that such representation was provided
by
Mr.
Garcia. Moreover, it is unclear what harm Charging Party allegedly suffered from the alleged
conflict
of
interest.
On May 21, 2002, having received no response from the City, SEIU elevated the grievance to
Step 3. The City rejected the grievance at Step 3, and on June 13, 2002, SEIU elevated the
grievance to arbitration.
Charging Party alleges that during the months
of
June, July and August, 2002, he telephoned
SEIU regarding his grievance but received no response. It appears that during these months,
SEIU was awaiting the selection
of
an arbitrator from the arbitration panel. As such, the
grievance sat in abeyance pending the selection
of
an arbitrator.
In September, 2002, SEIU representatives forwarded Mr. Adza's case file to SEIU's law
firn1
for analysis. SEIU's attorney, Vincent Harrington, reviewed the case file, including the 40+
pages
of
witness testimony and payroll records, and found that the Union had a "less than 50-
50 chance
of
prevailing in arbitration. On October 28, 2002, Mr. Harrington sent Mr. Adza
and SEIU his written opinion
of
the case.
On September 23, 2002, SEIU held a Grievance Committee meeting to discuss Mr. Adza's
request for arbitration. Mr. Adza failed to appear for this meeting. On October 10, 2002,
SEIU representative, Patricia Jackson, sent a letter to Mr. Adza stating as follows:
Your case was scheduled before the Grievance Committee on
September 23, 2002, which you did not appear (sic). It was my
understanding that you were aware
of
the meeting, date and time.
All cases must be heard by the Grievance Committee members,
who make the decision as to whether a case will or will not go to
arbitration. Therefore, until the Grievance Committee hears your
case, it will not be scheduled for arbitration.
The letter further informed Mr. Adza that the next Grievance Committee meeting would take
place in November.
On October 16, 2002, Mr. Adza received a letter from Mr. Haberberger. This letter stated in
relevant part as follows:
This is further clarification in response to your letter of October
1, 2002 to Pat Jackson regarding your pending grievance. As you
note, when we met several months ago, I disclosed to you my
concerns regarding a possible conflict with me representing you

SF-CO-29-M
September l 7, 2003
Page 4
in this matter. In light
of
those concerns, Ruben Garcia was
designated to serve as your staff representative. I have confirmed
this with
Staff
Director La Wanna Preston.
Therefore, you should contact Ruben Garcia directly for
representation from this office.
On October 31, 2002, Ms. Jackson sent Mr. Adza another letter, indicating the next Grievance
Committee meetings would take place on November 14 and November 25, 2002. Mr. Adzawas instructed to contact Ms. Jackson
if
he wished to have his grievance heard on either
of
these occasions. Mr. Adza did not contact Ms. Jackson and did not attend either meeting.
On November 26, 2002, Ms. Jackson sent Mr. Adza yet another letter regarding his grievance.
Ms. Jackson reiterated that the grievance would not be scheduled for arbitration
if
Mr. Adza
failed to have his grievance heard
by
the committee.
On January 10, 2003, Ms. Jackson sent a final letter to Mr. Adza stating that his grievance
would be heard on February 3, 2003, and that this was his final opportunity to address the
committee. Mr. Adza did not attend the February 3, 2003, meeting.
On March 24, 2003, SEIU sent Mr. Adza a letter indicating that it was closing his grievance
file, as he had failed to comply with the grievance procedures.
Based on the above stated facts and those provided in the original charge, the charge still fails
to state a prima facie violation
of
the MMBA, for the reasons provided below.
While the MMBA does not expressly impose a statutory duty
of
fair representation upon
employee organizations, the courts have held that "unions owe a duty
of
fair representation to
their members, and this requires them to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4 th 1213
[42 Cal.Rptr.2d 389].) 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, CTAJNEA (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
ofboth Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369]).
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without

SF-CO-29-M
September 17, 2003
Page 5
(
a rational basis or devoid
of
honest judgment. (International Association
of
Machinists
(Attard) (2002) 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. Qlnited Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Charging Party makes numerous statements which he believes merit the issuance
of
a
complaint. The first, as noted above, is that PERB must take all
of
Charging Party's facts into
consideration and must ignore additional facts provided by the Respondent. Were PERB to
take only Charging Party's facts into evidence herein, PERB would not be aware that SEIU
provided any representation to Mr. Adza. The charge does not mention that Mr. Garcia
attended the Skelly meeting with Mr. Adza, fails to note that SEIU filed a grievance over the
termination, and further fails to note that Mr. Adza refused to attend the numerous grievance
meetings held on his behalf. As indicated to Charging Party and his representative, PERB is
charged with investigating unfair practice charges, and such investigation necessarily requires
discussions with both the Respondent and the Charging Party. The warning letter provided
Charging Party with an opportunity to correct any misstatement
of
facts, however Charging
Party failed to do so in the amended charge or during our August 21, 2003, conversation.
Nothing in the MMBA or PERB case law requires a Board Agent to ignore the facts provided
by the Respondent, and to only consider the facts provided by the Charging Party. As such,
this contention is without merit, and the allegation will be addressed looking at the totality
of
the facts provided.
Charging Party further states that SEIU denied him his right to independent representation.
However, nowhere in the charge does Mr. Adza indicate he requested representation from
anyone other that SEIU. As such, this allegation is without merit. Charging Party also asserts
SEIU failed to give his sufficient notice
of
the grievance meetings. However, facts provided
demonstrate that Mr. Adza had at least two weeks notice for each meeting, and in some
instances had nearly a month's notice prior to the meetings. Moreover, when asked whether he
had contacted SEIU at any point to reschedule a meeting, Mr. Adza indicated that he had not.
As such, this allegation is also without merit.
The amended charge also alleges Mr. Haberberger' s conflict
of
interest violated the duty
of
fair
representation. However, Mr. Haberberger acknowledged the conflict
of
interest in March
when Mr. Garcia was appointed Mr. Adza's representative. Moreover, Mr. Haberberger
indicated to Charging Party that fairness required that Mr. Adza receive another representative.
As such, it is unclear what harm came from Mr. Haberberger's conflict
of
interest. Facts
provided demonstrate that Mr. Adza's grievance was pursued through the proper channels and
was considered for binding arbitration. Nothing in the charge demonstrates the conflict
ofinterest harmed Mr. Adza's grievance rights, and as such, this allegation must also be
dismissed. (CSEA Chapter 616 (Tornetta) (1985) PERB Decision No. 508 (charging party
must plead some harm or injury in order to state a prima facie case).)
As noted above, Charging Party points to the three months in which he was not in
communication with SEIU as evidence that his rights were violated. Facts provided, however,

SF-CO-29-M
September 17, 2003
Page 6
( 	I
demonstrate that during that time period, the grievance was in abeyance pending the selection
of
an arbitrator. As such, Mr.
Adza's
rights were not harmed
by SEIU's
failure to
communicate with him. Moreover, the failure to return phone calls is not sufficient to state a
violation
of
the MMBA. (AFSMCE (Dehler) (1996) PERB Decision No. 1152-H.)
As
such,
this allegation must also be dismissed.
Finally, Charging
Pa...rty
asserts that
SEIU's
failure to pursue the grievance to binding
arbitration demonstrates a breach
of
the duty
of
fair representation. However, again
considering all the facts available, this allegation is without merit.
	SEIU's
attorney's provided
a detailed explanation as to
why
they believed arbitration would fail. Moreover, SEIU gave
Mr. Adza at least four ( 4) opportunities to appeal this decision, and Mr. Adza failed to attend
any
of
the meetings
or
communicate in any other way with SEIU. As the union provided a
reasonable explanation for its decision, SEIU did not violate the MMBA.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge
by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed
by
certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(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
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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
l 031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CO-29-M
September 17, 2003
Page 7
(
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(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 Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed
byfacsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 3213 5( c). )
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Vincent Harrington

STAtE
OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
August 6, 2003
Thomas Del Beccaro, Attorney
800 So. Broadway, Suite 301
Walnut Creek, CA 94596
Re: 	John Adza v. Service Employees International Union #790
Unfair Practice Charge No. SF-CO-29-M
WARNING LETTER
Dear Del Beccaro:
(
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 9, 2003. John Adza alleges that the Service Employees
International Union #790 violated the Meyers-Milias-Brown Act (MMBA) 1 by breaching its
duty
of
fair representation.
Investigation
of
the charge revealed the following. 	Mr. Adza was employed
by
the City and
County
of
San Francisco as a Watershed Keeper Supervisor. As such, Mr. Adza is exclusively
represented by SEID. The City and SEIU are parties to a collective bargaining agreement that
expired on June 30, 2003. Article II, Paragraph 64 provides the following regarding sexual
harassment complaints:
Discrimination complaints will be treated in strict confidence by
both the Union and the City. Progressive disciplinary action shall
be imposed
by
the City upon any employee found to have
engaged in discriminatory conduct in violation
of
this section.
With regard to termination, Article IV, Paragraph 498, states:
Skelly Rights
An employee subject to discipline or discharge, shall be entitled,
prior to the imposition
of
that discipline or discharge, to a hearing
and to the following:
a. A notice of proposed action; and
b. The reasons for the proposed discipline, and
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-29-M
August
6,
2003
Page 2
/
I
c.	
A copy
of
the charges and the materials upon which the
action is based, and
d.	
The right
to
respond, either orally or in writing, to the
authority initially imposing the discipline.
On January 24, 2002, Watershed Keeper Kristina Wuslich made a complaint
of
sexual
harassment against Mr. Adza. The complaint alleged that on December 17, 2001, Mr. Adza,
Ms. Wuslich's supervisor, made repeated sexual advances-towards Ms. Wuslich. Additionally,
Ms. Wuslich claimed Mr. Adza restrained her from leaving the facility and kissed and fondled
her. The incident ended when two fellow co-workers entered the facility.
On February 5, 2002, Ms. Wuslich, through her attorney Lynn Faris, made a seven page
complaint
of
sexual harassment. On February 19, 2002, Mr. Adza was placed on Unpaid
Administrative Leave pending the outcome
of
the investigation. SEIU was informed
of
this
discipline.
On February 21, 2002, the City issued a
21
page report regarding Ms. Wuslich's complaint.
The investigator interviewed 14 witnesses, including Mr. Adza and Ms. Wuslich. After an
exhaustive investigation, the City found Ms. Wuslich's testimony, and that
of
most
of
the
witnesses, as credible, and further indicated that Mr. Adza had directly violated an order to
refrain from discussing this issue with any employees
of
the City.
On March 7, 2002, the City issued a Notice
of
Action to terminate Mr. Adza from his
employment. An Employee Conference was scheduled for March 13, 2002, during which Mr.
Adza and his representative could challenge the findings and the City's decision.
After postponing the meeting on two separate occasions, Mr. Adza and his representative,
Ruben Garcia, met with the City, on March 28, 2002, to discuss Mr. Adza's termination.
During this meeting, Mr. Adza and Mr. Garcia challenged the witnesses' credibility and argued
that Ms. Wuslich's complaint was made in retaliation for some past marijuana find on
Watershed property.
On April 17, 2002, the City issued its Notice
of
Dismissal to Mr. Adza. On May 1, 2002,
SEIU filed a grievance on Mr. Adza's behalf, asserting the City violated MOU provisions
when it terminated Mr. Adza. 	On May 21, 2002, having received no response from the City,
SEIU elevated the grievance to Step
3.
	The City rejected the grievance at Step 3, and on June
13, 2002, SEIU elevated the grievance to arbitration.
In September, 2002, SEIU representatives forwarded Mr. Adza's case file to SEIU's law firm
for analysis. 	SEIU' s attorney, Vincent Harrington, reviewed the case file, including the 40+
pages of witness testimony and payroll records, and found that the Union had a "less than 50-
50 chance of prevailing in arbitration. On October 28, 2002, Mr. Harrington sent Mr. Adza
and SEIU his written opinion of the case.

SF-CO-29-M
August
6,
2003
Page 3
(
On September 23, 2002, SEIU held a Grievance Committee meeting to discuss Mr.
Adza's
request for arbitration. Mr. Adza failed to appear for this meeting. On October 10, 2002,
SEIU representative, Patricia Jackson, sent a letter to Mr. Adza stating as follows:
Your case was scheduled before the Grievance Committee on
September 23, 2002, which you did not appear (sic). It was my
understanding that you were aware
of
the meeting, date and time.
All cases must be heard by the Grievance Committee members,
who make the decision as
to
whether a case will or will not go to
arbitration. Therefore, until the Grievance Committee hears your
case, it will not be scheduled for arbitration.
The letter further informed Mr. Adza that the next Grievance Committee meeting would take
place in November. 	On October 31, 2002, Ms. Jackson sent Mr. Adza another letter,
indicating the next Grievance Committee meetings would take place on November 14 and
November 25, 2002. Mr. Adza was instructed to contact Ms. Jackson
ifhe
wished to have his
grievance heard on either
of
these occasions. Mr. Adza did not contact Ms. Jackson and did
not attend either meeting.
On November 26, 2002, Ms. Jackson sent Mr. Adza yet another letter regarding his grievance.
Ms. Jackson reiterated that the grievance would not be scheduled for arbitration
if
Mr. Adza
failed to have his grievance heard by the committee.
On January 10, 2003, Ms. Jackson sent a final letter to Mr. Adza stating that his grievance
would be heard on February 3, 2003, and that this was his final opportunity to address the
committee. Mr. Adza did not attend the February
3,
2003, meeting.
On March 24, 2003, SEIU sent Mr. Adza a letter indicating that it was closing his grievance
file, as he had failed to comply with the grievance procedures.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation
of
the MMBA, for the reasons provided below.
While the MMBA does not expressly impose a statutory duty
of
fair representation upon
employee organizations, the courts have held that "unions owe a duty of fair representation to
their members, and this requires them to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4 th 1213
[42 Cal.Rptr.2d 389].) 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

SF-CO-29-M
August 6, 2003
Page 4
in such cases, including Reed District Teachers Association, CTAJNEA (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 [64 LRRM 2369]).
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a rational basis or devoid of honest judgment. (International Association of Machinists
(Attard) (2002) 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.)
Herein, facts provided demonstrate SEID consistently represented Mr. Adza throughout the
grievance process. Representatives were present at all relevant meetings and timely processed
the grievance through the MOU provided procedures. Additionally, SEID representatives sent
numerous letters to Mr. Adza requesting he comply with the procedures by attending a
Grievance Committee meeting. Mr. Adza failed to participate in those meetings and failed to
contact the union regarding his grievance. As Mr. Adza has not supplied facts demonstrating
the union acted arbitrarily or in bad faith, the charge fails to state a prima facie violation of the
MMBA.
Additionally, it appears Mr. Adza is contending SEID representative Michael Haberberger had
a conflict of interest in this matter. However, as Mr. Haberberger stated in his October 16,
2002, letter to Mr. Adza, because of the potential conflict of interest, Mr. Garcia would be
serving as Mr. Adza representative. As such, there appears to be no conflict of interest.
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, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clea,rly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer 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. IfI do not receive an
amended charge or withdrawal from you before August 13, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
k-/?Kristin L. Rosi
Regional Attorney