Service Employees International Union Local 616 (Jeffers) (PERB 1675M)

STATE OF CALIFORNIA
D~:CISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANDREW JEFFERS,
Charging Party,
v.
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 616,
Case No. SF-C0-23-M
PERB Decision No. 	16 7 5-M
August 	19, 	2004
Appearance: 	Andrew Jeffers, on his own behalf.
Before Duncan, Chairman; Whitehead and Ncima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on exceptions filed by Andrew Jeffers (Jeffers) to a proposed decision (attached) of the
administrative law judge {ALJ). The underlying unfair practice charge alleged that the Service
Employees International Union Local 616 (SEHJ) violated the Mcycrs-Milias-Brown Act
(MMBA)1 by breaching its duty of fair representation. The ALJ's proposed decision found
that JcffCrs failed to establish that SEIU breached its duty of fair representation and dismissed
the unfair practice charge and complaint.
The Hoard has reviewed the entire record in this matter, including the ALJ's proposed
decision and Jcffcr's exceptions. The Board finds the AIJ's findings of fact and conclusions
of law 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 and complaint in Case No. SF~C0-23-M is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANDREW JEFFERS,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 616,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CO-23-M
PROPOSED DECISION
(12/19/03)
Appearances: 	Andrew Jeffers, pro per; Weinberg, Roger & Rosenfeld, by Stewart Weinberg,
Attorney, for Service Employees International Union, Local 616.
Before Donn Ginoza, Administrative Law .Judge,
PROCEDURAL HISTORY
In this case, a skilled nursing care therapist claims that his exclusive representative
breached its duty of fair representation by failing to represent him in arbitration of a grievance.
On December 16, 2002, Andrew Jeffers initiated this action by filing an unfair practice
charge against Service Employees International Union, Local 616 (SEIU). 	On May 12, 2003,
the general counsel of the Public Employment Relations Board (PERB or Board) issued a
complaint. The complaint alleges that SEIU breached its duty of fair representation by failing
to inform Jeffers about the status of his grievance, failing to process the grievance to
arbitration and/or inform him why the grievance would not be arbitrated, and failing to respond
to his inquiries regarding the grievance. This conduct is alleged to violate Government Code
section 3506 and 3509(b) of the Meyers-Milias-Brown Act (MMBA or Act) and PERB
Regulation 32604(b). 1
The MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise
indicated all statutory references are to the Government Code.

On May 16, 2003, SEIU answered the complaint, denying all material allegations and
asserting an affirmative defense.
On June 11, 2003, an infmmal settlement conference was held, but the matter was not
resolved.
On October 10, 2003, a formal hearing was held before the undersigned administrative
law judge. On December 3, 2003, upon filing of the parties' post-hearing briefs, the matter
was submitted for decision.
PfNDJNGS OF PACT
Jeffers is employed as an activity therapist by the Alameda County Medical Center
(Medical Center). The Medical Center is a "public agency" within the meaning of
Section 3506 provides:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under Section
3502.
Section 3509(b) provides:
A complaint alleging any violation of this chapter or of any rules
and regulations adopted by a public agency pursuant to Section
3507 shall be processed as an unfair practice charge by the board.
The initial determination as to whether the charge of unfair
practice is justified and, if so, the appropriate remedy necessary
to effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. The board shall apply and
interpret unfair labor practices consistent with existing judicial
interpretations of this chapter.
PERB regulations arc codified at California Code of Regulations, title 8, section 3 I 001
et seq. Regulation 32604(b) provides that it shaH be an unfair practice for an employee
organization to:
Interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of rights guaranteed
by Government Code section 3502 or by any local rule adopted
pursuant lo Government Code section 3507.
2

section 350 l (c). Jeffers is a "public employee" within the meaning of section 3501 (d). 2 SElU
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 ).
The Medical Center provides health care services to residents of the County. In
December 1999, Jeffers was employed at Fairmont Hospital, a skilled nursing care facility. At
the time, he had 16 years of experience in his position as activity therapist. Activity therapists
provide recreational activities to patients for their emotional, spiritual, social and intellectual
well~being. When the position of chief of occupational therapy, psychiatric specialty, occupied
by Jeffcrs's supervisor, became vacant, Jeffers decided to seek a promotion to the position.
The Medical Center is governed by a board of trustees separate from the County Board of
Supervisors, and it does not adhere to rules of civil service as they relate to hiring and
promotion decisions, 3
According to Jeffers, the minimum qualifications for the posted vacancy included a
certification or license in occupational therapy. The County infom1ed Jeffers that he was
disqualified from competing in the selection process because of this requirement. Viewing the
minimum qualifications as biased toward occupational, rather than recreational, therapists,
Jeffers decided to complain.
Although the question whether the Medical Center qualifies as a "public agency" for
purposes of proper PERB jurisdiction could have been more clearly established in the hearing,
SEIU admits in its answer that Jeffers is a "public employee" within the meaning of section
3501(d). 	Evidence was presented that the Medical Center is represented by county counsel for
the County of Alameda (County). I also take judicial notice of the fact that the Medical Center
fulfills the County's Welfare and Institutions Code obligation to provide indigent health care.
3 At one time the Medical Center was under the direct jurisdiction of the Alameda
County Board of Supervisors. On January 1, 1999, the Medical Center reconstituted itself as a
separate entity, governed by its own board of trustees.
3

Jeffers received a bachelor's degree in recreation and leisure studies from Temple
University in the late l 970's. John Noiscttc was a professor in the department who taught
Jeffers and was his faculty adviser. At Jeffers's request, Noisette verified in writing that
Jeffers earned more than the 20 credits required for a specialty called Therapeutic Recreation.
Noiscttc noted that Jeffcrs's diploma and transcript would not have documented the specialty.
The same information was verified in an e-mail from John Shank, chair of the Department of
Therapeutic Recreation, the successor department to Recreation and Leisure Studies. Shank
noted that because the specialty was only offered as an "academic option," not a separate major
within the department, it would not have shown on Jeffers's diploma or transcript.
At some point earlier in his tenure, the Medical Center reclassified his position from
recreational therapist to activity therapist. Jeffers claims that being a recreational therapist, or
having a "specialty" in that field, was sufficient to meet the minimum qualifications, based on
his interpretation of the Business and Professions Code statute he believed motivated the
Medical Center's change in minimum qualifications for the position.4
Jeffers first lodged his objections at a meeting of the Medical Center board of trustees.
Among other points, Jeffers noted that his previous supervisor lacked either a degree or
certification in occupational therapy. Having no success, Jeffers decided to initiate a
grievance.
Jeffers has been active in SEIU. He has served as a job steward and has participated in
contract negotiations involving SETU and the Medical Center. In this connection, Jeffers
received some training in the filing of grievances. Thus, he was familiar with the grievance
forms and how to complete them.
Neither party identified the statute.
4

Jeffers acknowledges that in framing his grievance he did not review the collective
bargaining agreement. However, he relied on his SEIU training when he cited a provision on
"mutual respect." This apparently was a broadly worded provision that served as a catch-all
basis for grievances lacking grounding in a more specific provision of the agreement.5
According to Jeffers, it requires the Medical Center to deal with employees "openly, honestly,
righteously and justly." Jeffers testified:
No, l think l just put it under mutual respect as I was taught when
I was a union steward that you can grieve everything under
mutual respect, ...
Jeffers filed the grievance himself. He processed it without SEIU's assistance through
all four preliminary steps prior to arbitration. The grievance was denied at each step. Medical
Center Labor Relations Analyst Paul Vitulli responded for the employer in the later steps of the
process.
At some time during this process, Jeffers spoke with Alvaree Swayne, SEIU's field
representative. According to Jeffers, he informed Swayne that it was "his grievance," and as a
"union steward," he would "walk it through" all of the preliminary steps. He also told Swayne
that when the grievance got to arbitration, he would turn to SEIU. Jeffers asked Swayne to let
him know when SEIU's stewards meeting would occur so he could get approval for
representation in arbitration. According to Jeffers, Swayne answered, ''[O]kay, ... contact me
in five months."
By memorandum dated June 6, 2000, Vitulli informed Jeffers that he was complying
with Jcffers's request that a copy ofVitulli's notes from their grievance meeting be forwarded
lo Swayne. 	Jeffers also testified that Vitulli told him he sent "all this stuff' to Swayne. Jeffers
Neither party introduced into evidence a copy of the pertinent collective bargaining
agreement.
5

further testified that he informed Swayne throughout the process that his grievance was being
denied.
By memorandum to Vitulli dated September 25, 2000, Jeffers appealed his grievance to
arbitration.
Jeffers testified that he handed his grievance to Swayne and informed her it was ready
to go to arbitration. The following testimony was elicited:
[Jeffers] 	A 	... I said this is ready to go to arbitration.
Let me know when the Stewards Council is to get this approved.
I have to show up. It's in the by laws.
[Administrative Law Judge] 	Q 	Okay. Did you go to
the Stewards Council meeting?
A 	No. 	I said let me know when you set it up. In the past,
she's always said, okay, Drew, this is the date the Union, the
Stewards Council will sit on this and let you know. 	r said okay.
And I said, well, what about my grievance? When arc we going
to sit on this one? When are we going to sit down and talk about
it? She goes, Drew, this is a no-brainer. Don't worry about it.
I'll just have them approve it and we'll just go on from there.
Q 	Okay. And then what was your next - what happened
next?
A 	After a few weeks, I called and l said what's the situation
with this? When is the date for the arbitration? And she goes
they're backlogged, Drew. You know, give me a call in a few
weeks. Call in a few weeks. Two weeks later, what's the
situation. I don't know, Drew, they're this and they're that. T go
okay. I wait another week and I say where is this? Where is it
right now? And she goes it's sitting on Lydia Daniels' desk
collecting dust. And that's when I picked up the phone and I
believe l called the CEO and I just lambasted him.
Q 	Wait a second. Who is Lydia Daniels?
A 	She's the head of Human Resources for the whole
Medical Center. And I, you know,just said why is my Union
Rep saying this thing is sitting on your head of Human Resources
desk for so long collecting dust? What's the problem? You
6

know, it's been, you know, X-amount of days, months now. And
I believe that's when the County Counsel got involved ....
Deputy County Counsel Donna R. Ziegler was assigned the case for arbitration. She
testified that she spoke with Jeffers by telephone regarding scheduling of the arbitration. She
understood that Jeffers was representing himself and advised him he needed to submit his
contribution of the arbitrator's fee in order to proceed. Jeffers informed her that SElU was
representing him. Ziegler had had no contact with SEIU prior to this. Jeffers asked Ziegler for
some time to "straighten out" the confusion.
By letter dated June 27, 2001, Ziegler advised Swayne of her conversation with Jeffers,
at the same time she advised Swayne that she had been assigned to represent the Medical
Center in the matter. Ziegler indicated her desire to proceed with the selection of an arbitrator.
Swayne and Ziegler never spoke directly, but Swayne did leave a voieemail asking for
clarification.
Daniel Boone is an attorney in the finn that represents SEIU in grievance and
arbitration matters. Boone testified that Swayne would refer grievances to him to assess their
merits. SEIU's relationship with Boone had developed over the years to the point that SEIU
would unequivocally accept Boone's evaluation of a grievance. Boone's firm represented
Jeffers in an April 1998 grievance involving a disciplinary suspension.6 In June or July of
2001, Swayne referred him the promotion grievance to assess. Swayne infonned him that her
call was triggered by Ziegler's letter. Boone determined that the grievance lacked merit. The
minimum qualifications for the chief occupational therapist position required that the
6	- Jeffers took a g,:~~p of patients on an outing. One of the patients with a troubled
history left the group during the outing and was found dead several days later. Jeffers was
supervising the group by himself and he claims he was not forewarned of the patient's history.
SEIU was able to reduce the severity of the proposed discipline. Jeffers was not entirely
pleased with the outcome.
7

incumbent be a licensed occupational therapist, according to Swayne's investigation, and
Jeffers did not fulfill this requirement. Reviewing the collective bargaining agreement, Boone
also found no language that would provide grounds for a successful grievance. The vacant
position was outside of the bargaining unit, and the hiring decision was one committed to the
discretion of the employer. Boone also gave weight to Jeffcrs's disciplinary record, believing
that it would weaken his claim to a promotion. Boone advised Swayne to communicate to
Jeffers his opinion that the grievance lacked merit and would not be pursued.
In the meantime, Ziegler also had a conversation with an SEIU intern, Wayne
Templeton. Templeton testified that he and Jeffers had been friends for some time. They
worked together on various SElU matters. Jeffers approached Templeton and asked him to
find out the status of his grievances. Jeffers had at least two grievances pending. One
involved the suspension and the other involved the denial of promotion. Templeton agreed to
do "clue diligence" for Jeffers and inquire on his behalf. Templeton informed Ziegler he did
not have a copy of the promotion grievance, noting Jeffers had raised several different issues,
Ziegler forwarded Templeton a copy,
Templeton also spoke with Swayne. Swayne was aware of both of these grievances.
She informed Templeton that the promotion grievance was without merit. Templeton did have
one or more conversations with Jeffers after talking with Swayne. However Templeton's
testimony was unclear as to exactly what he told Jeffers.7 Templeton did testify that Jeffers
intimated there was a conspiracy within SEIU against him. Approximately one year later in
,.-,-~--, 	-~~· --·
Jeffers asked Templeton on cross-examination, during which counsel for SEIU
repeatedly interposed objections, to admit or deny that in the presence of other co-workers he
told Jeffers that Swayne said Jeffers's grievances were "stale and they don't know why you're
bringing it up." Due to the objections, Templeton never answered this question.
8

May 2002, Templeton assumed Swayne's duties. Swayne had become ill and went on leave.
She passed away some time prior to May 2002.
ISSUE
Did SElU breach its duty of fair representation owed to Jeffers with respect to the
processing of the grievance concerning the denial of his application to promote to chief
occupational therapist?
CONCLUSIONS OF LAW
While the MMBA docs not expressly impose a statutory duty of fair representation
upon employee organizations, the California 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'" 1213 [42 Cal.Rptr.2d 389] (Hussey).)
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M,
the Board detennine<l that it is appropriate in MMBA duty affair representation cases to apply
precedent developed under the other acts administered by the Board. 	The Board noted that its
decisions in such cases, including Recd 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 [64 LRRM
2369]). 8 	PERB further noted that the duty is not breached by mere negligence. (International
Andrews v. Board of Supervisors of Contra Costa County (I 982) 134 Cal.App.3d 274
[ 184 Cal.Rptr. 542] held that because section 3502 allows individuals to represent themselves
in their employment relations with the public agency, exclusive representation was absent and
the need for a reciprocal duty of fair representation did not exist. However, in light of
International Association of Machinists (Attard), supra, PERB Decision No. 1474-M, Andrews
is not controlling in PERB's view.
9

Association of Machinists (Attard), supra, PERB Decision No. 1474-M, citing Hussey.) The
Hussey court stated:
... A union is accorded wide latitude in the representation of its
members, and 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.]
(Id.atp.1219.)
Relying on Board precedent under the other acts it administers, PERB also noted, with
respect to a refusal to process a grievance, that the 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 No. 1474-M, citing
Reed District Teachers Association, CT NNEA (Re.YQfil, supra, PERB Decision No. 332 and
American Federation of State, County and Muni-cipal Employees, Local 2620 (Moore), supra,
PERB Decision No. 683-S.)
Initially, this case presents the novel threshold issue of whether the duty of fair
representation applies at all given that a Medical Center employee in SEIU's bargaining unit
may pursue a grievance in arbitration on his own without the union's consent. ln other
contexts, where the union does not have exclusive control over the pursuit of a remedy for the
aggrieved employee, PERB has held that the duty does not apply. (California Union of Safety
Engineers (John) (1994) PERB Decision No. 1064-S; San Francisco Classroom Teachers
Association (Chestangue) (1985) PERB Decision No. 544.) I conclude that the duty of fair
representation does apply in this context. (See Machinists, Local 697 (1976) 223 NLRB 832,
834 [91 LRRM 1529].) In Conley v. Gibson (1957) 355 U.S. 41, 46 [41 LRRM 2089], the
United States Supreme Court stated:
... The bargaining representative's duty ... does not come to an
abrupt end, ... with the making of an agreement between union
and employer. Collective bargaining is a continuing process.
Among other things, it involves day-to-day adjustments in the
10

contract and other working rules, resolution of new problems not
covered by existing agreements, and the protection of employee
rights already secured by contract. ...
(See also Teamsters Local 559 (1979) 243 NLRB 848,850 [l01 LRRM 1577].)9
The complaint alleges that SEIU's bad faith was demonstrated in several ways. SEIU
is alleged to have (1) failed to inform Jeffers about the status of his grievance, (2) failed to
process the grievance to arbitration and/or inform him why the grievance would not be
arbitrated, and (3) failed to respond to his inquiries regarding the grievance. The framing of
the complaint compels a brief statement about what this case is not about, based on the
evidence presented. This case is not about SEIU's failure to process the grievance through the
initial steps, nor even its failure to request arbitration of the grievance. Jeffcrs's own
testimony establishes that he initiated the grievance on his own and processed it through all of
the preliminary steps. Jeffers informed Swayne of this, including advising her of the denials at
each step. Jeffers requested that Vitulli forward Swayne information on the status of the
grievance and was led to believe he had. Jeffers then requested arbitration on his own, which
he was authorized to do under the tern1s of the collective bargaining agreemcnt. 10 Jeffers
informed Swayne that he would process the case in this manner and that when he reached the
arbitration step, he would contact SEIU for assistance. 	Swayne did not object to this approach.
I note that in its most recent pronouncement on the subject, the Board reaffirmed the
rule that the duty only applies "to contractually based remedies under the union's exclusive
control." (California School Employees Association (Simpson) (2003) PERB Decision No.
1550.) Following the same precedent cited herein, the Board held that the duty did not apply
to representation in a disciplinary proceeding before the school district's personnel
commission. I do not believe the Board intended by this case to address the issue posed here,
and I would distinguish it on grounds that the union is the exclusive representative with a
corresponding duty to enforce the tem1s of the agreement for bargaining unit members.
10 Ziegler never took the position that the grievance was not arbitrable because Jeffers
rather than SEIU had invoked arbitration. Jeffers intimates in his post-hearing brief that he
was prevented from arbitrating the grievance by SEIU's failure to act. This was not the case.
The only impediment to arbitration was forwarding his share of the arbitrator's fees.
I I

There was no evidence presented that Jeffers made inquiries to SEIU during the initial
processing of the grievance that were ignored. Instead, the theory of the case centers around
the fact that Swayne led Jeffers to believe that SElU would provide representation in the
arbitration and then refused to do so without informing him.
I therefore turn to SEIU's assessment of the merits of Jeffers's representation request.
In order to state a prima facie violation of the duty of fair representation under the MMBA, the
charging party must at a minimum produce evidence establishing that 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 the exclusive representative abused its discretion,
and not on the exclusive representative to show that it properly exercised that discretion.
(United Teachers,,_ Los Angeles (Wyler) (1993) PERB Decision No. 970.)
Although there is a duty to process grievances, a union may refuse to process a
grievance if it makes an honest and reasonable determination that the grievance lacks merit.
(United Teachers~ Los Angeles (Buller) (1984) PERB Decision No. 438; accord Vaca v.
_Sipes, supra, 386 U.S. 171, 181-192.) In Buchanan v. NLRB (4'" Cir. 1979) 597 F.2d 388, 394
[101 LRRM 3142], the court stated:
... The duty to avoid arbitrary conduct docs not require a union
to take every employee grievance to arbitration, and it has
considerable discretion in sifting out grievances which it regards
as lacking merit. Without such discretion, a union's effectiveness
as bargaining agent would be undermined .... [Fn. omitted.]
Thus, merely establishing a grievance has merit is insufficient to establish a breach of the duty
of fair representation. (Vaca v. Sipes, supra, 386 U.S. 171, 18 l ~ l 92.) On the other hand, a
grievance clearly lacking in merit would appear to defeat any claim of a breach. (Sec United
Teachers - Los Angeles (Collins) (I 982) PERB Decision No. 258; California State Employees
12

Association (Cohen) (1993) PERB Decision No. 980-S; San Jose Community College Faculty
Association (Maestas-Flores) (1997) PERB Decision No. 1200; Fremont Unified District
Teachers Association (Turney) (2001) PERB Decision No. 1443.)
In his post-hearing brief Jeffers relics heavily on arguments that his grievance had
merit. He argues that in its initial grievance response, the Medical Center relied on the fact
that Jeffers did not qualify as a recreational therapist, hut later claimed that the position
required an occupational therapist license. He claims there is a document he signed which
supports this claim. No such document was offered into evidence. Jeffers also claims that the
original job description allowed recreational therapists to apply, but later it was changed.
Again, no testimony or other documentary evidence was entered in the record to support this
claim. As noted above, even assuming such evidence were in the record, merely establishing
the merits of the grievance is insufficient. However, treating Jeffers's post-hearing brief
generously, I construe his claim to be that SEIU's decision not to proceed was in bad faith
because it either negligently or deliberately ignored evidence that the grievance had merit.
Since negligence is insufficient, his argument only has merit ifhe establishes that SEIU acted
deliberately. (International Association of Machinists (Attard). supra, PERB Decision
No. 1474-M.)
SEIU counters that its refusal to provide representation was due to its belief that the
grievance lacked merit. Boone examined the grievance and concluded that Jeffers lacked the
minimum qualifications to compete, because he was not a licensed occupational therapist
Boone also relied on the fact that there was no language in the agreement governing the
movement of a bargaining unit employee to a non-bargaining unit position.
Jeffers claims that he was qualified based on having the equivalent of a "specially" in
recreational therapy. The relevance of this is related to "the original document that [the
13

Medical Center was] floating to people to apply for this job," which presumably stated that a
recreational therapist would he qualified. By Jcffcrs's own arguments (e.g., that the
qualifications were changed, 11 that the prior incumbent lacked this certification, and that the
qualification itself was unjustified because occupational therapists perform the duties of
recreation therapists), he appears to concede that the final job posting did require licensure in
occupational therapy.
Boone also examined the entire agreement and could find no language that would
provide a sound basis on which to prevail. 	Jcffcrs's rebuttal to this was the existence of the
"mutual respect" clause of the agreemenl. The theory of his grievance was based essentially
on the unfairness of the qualification. Even assuming Boone failed specifically to appreciate
or consider this theory, the record docs not demonstrate that his omission was arbitrary,
discriminatory or in bad faith. 12 Jeffers admitted that he did not review the collective
bargaining agreement before drafting his grievance, and at no time in the hearing did he cite
any other provision of the agreement that would have applied to his situation.
Lastly, Jeffers asserts that Templeton told him in private that the grievance was too
expensive and that Jeffers was a "boat rocker." Again, no such evidence was introduced at the
hearing, either from Templeton or Jeffers.
1 Jeffers contends in his post-hearing brief that someone at the California Therapeutic
Recreation, which agency "wrote" the Business and Professions Code, offered him an
interpretation supporting his position, and that the Medical Center changed its defense when he
told them of this. There is no evidence in the record supporting this.
12 Both parties appear to acknowledge that the Medical Center relied on the Business
and Professions Code in establishing the qualifications for the position. The fact that Jeffers
had been advised in stewards training that "everything" could be grieved under the mutual
respect clause suggests that the language was so broad that when a weak grievance, lacking
any concrete support in the text of the agreement, presented itself, SEIU was advising stewards
to cite the mutual respect provision simply to initiate the process. This theory in my opinion
would have been a long-shot at best.
14

With the burden on the charging party to establish an abuse of discretion, I conclude
that Boone's opinion that the grievance lacked merit was reasonable and is supported by the
record. 	Although there is some evidence that Swayne may not have dealt with Jeffers in a
completely open and honest manner, 13 I find that there is insufficient evidence from which to
draw an inference that SEIU deliberately skewed its examination of the grievance so as to
arrive at the result that it did. 	Boone was only employed by SEIU as its attorney in grievance
processing, and the record lacks evidence from which it can be inferred that Boone harbored
any ill will toward Jeffers. I believe Boone made an honest judgment in the matter.
Based on the foregoing, I find that SEIU's refusal to represent has not been shown to be
"without rational basis or devoid of honest judgment" (International Association of
Machinists, supra, PERB Decision No, 1474~M.) 	SEIU's decision was reasonable and not
unlawful, because the potential for success in the arbitration was doubtful. (Sacramento City
Teachers Association (Fanning ct aL) (1984) PERB Decision No. 428.) Accordingly, Jeffers
has failed to dcmonstrak a violation involving a breach of the duty of fair representation, and
SEIU did not violate MMBA section 3506(b) or PERB Regulation 32604(6). 	Therefore, the
underlying charge and complaint must be dismissed.
· The complaint alleges that SEIU never provided Jeffers with an explanation of why it
was not pursuing the grievance. Although Boone advised Swayne to inform Jeffers that the
grievance lacked merit, Swayne did not testify. Jeffers never testified that Swayne infom1ed
him of this decision, but neither did he explicitly testify that she did not. 	In San Francisco
Web Pressmen and Platemakers Union No. 4 (1980) 249 NLRB 88 [104 LRRM 1050] (cited in
the dismissal affirmed in United Teachers - Los Angeles (Buller). supra, PERB Decision No.
438), discharged employees claimed that a union's action was arbitrary because it accepted as
fact "accounts of a dispute which lwere] ambiguous and susceptible of more than one
interpretation without making at least an effort to obtain the grievant's explanation of his
conduct." In dismissing that claim, the labor board held that accepting such a theory would
result in the board's role of"second-guessing" a union's assessment of the merits. I believe
the events resulting in Jcffcrs's lost opportunity to appear before the Stewards Council docs
not demonstrate bad faith on SEIU's part. However, I can understand how it fueled Jeffers's
sense of betrayal in the matter.
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-23-M, Andrew
Jeffers v. Service Employees International Union, Local 616, is 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
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
I 031 18th Street
Sacramento, CA 95814-4174
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, sec. 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, secs. 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 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. Co<le Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 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
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on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32!35(c).)
Administrative Law Judge
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