Service Employees International Union Local 1000, California State Employees Association (Burnett) (PERB 1914S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL M. BURNETT,
Charging Party, Case No. SA-CO-297-S

Vv. PERB Decision No. 1914-S

SEIU LOCAL 1000, CSEA, June 26, 2007

Respondent.

Appearance: Michael M. Burnett, on his own behalf.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Michael M. Burnett (Burnett) of a Board agent’s dismissal (attached) of
his unfair practice charge. The charge alleged that SEIU Local 1000, CSEA (SEIU) violated
the Ralph C. Dills Act (Dills Act)! by breaching its duty of fair representation.

The Board has reviewed the entire record in this matter, including the unfair practice
charge and amended charge, SEIU’s response, the warning and dismissal letters, and Burnett’s
appeal of the dismissal. The Board finds the Board agent’s warning and dismissal letters to be
without prejudicial error and adopts them as the decision of the Board itself.

ORDER
The unfair practice charge in Case No. SA-CO-297-S is hereby DISMISSED

WITHOUT LEAVE TO AMEND.

Members Shek and Neuwald joined in this Decision.

'The Dills Act is codified at Government Code section 3512, et seq.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118th
Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
March 5, 2007
Michael M. Burnett
6819 Coventry Drive
Citrus Heights, CA 95621
Re: 	Michael
M.
Burnett v. SEIU Local 1000, CSEA
Unfair Practice Charge No. SA-CO-297-S
DISMISSAL LETTER
Dear Mr. Burnett:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 3, 2007. Michael Burnett, alleges that SEIU Local 1000,
CSEA (SEIU) violated the Ralph
C.
Dills Act (Dills Act)1 by breaching its duty
of
fair
representation.
I indicated to you in my attached letter dated January 11, 2007, 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 January 22, 2007, the charge would be
dismissed. 	On January 17, 2007, I granted your request to extend the deadline to February 22,
2007.
In my January 11, 2007 letter, I emphasized that in order to show a prima facie violation
of
the
duty
of
fair representation, the charging party must show that the union's conduct was
arbitrary, discriminatory or in bad faith. My letter also cited Coalition
of
University
Employees (Buxton) PERB Decision No. 1517-H which is on point with the facts in this case.
[A union's failure to respond to a grievance for some
10
months does not meet the arbitrariness
standard required for a breach
of
duty
of
fair representation.]
On
February 22, 2007, you amended the charge to allege the following relevant facts in
support
of
a Dills Act violation: (1) that you called Joe Barnes (SEIU Central Coordinator) on
or about August 29, 2006 and asked him for the status of your grievance in writing, and he told
you to keep checking periodically with SEIU headquarters for any further updates; (2) that
you did not know that your arbitration request was denied until January 18, 2007, when Paul
Harris (SEIU Chief Counsel) filed a response to this unfair practice charge; and (3) that you
never received a copy of the arbitration denial by SEIU. The amended charge essentially
pleads the same facts presented in the original charge. As such, the charge fails to overcome
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-297-S
March 5, 2007
Page 2
the standard outlined in Buxton that is more fully discussed in my January 17, 2007 letter.
Although your amended charge express great frustration with SEIU's failure to notify you
about your arbitration request, the facts do not demonstrate that such conduct was arbitrary,
discriminatory or in bad faith. 	As such, the amended charge fails to demonstrate a prima facie
violation.
Conclusion
Therefore, I am dismissing the charge based on the facts and reasons set forth above and those
contained in my January 11, 2007 letter.
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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
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
I 031 18th Street
Sacramento, CA 95814-4174
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date
of
service of the appeal. (Regulation 32635(b).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-297-S
March 5, 2007
Page 3
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(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,
TAMI R. BOGERT
General Counsel
vf1	
By 	/
Yar~n Pa~6vi
Reg10nal jAttqrney
Attachment
cc: Paul Harris

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-7242
Fax: (916) 327-6377
January 11, 2007
Michael M. Burnett
6819 Coventry Drive
Citrus Heights, CA 95621
Re: 	Michael M. Burnett v. SEIU Local 1000, CSEA
Unfair Practice Charge No. SA-CO-297-S
WARNING LETTER
Dear Mr. Burnett:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 3, 2007. Michael Burnett, the charging party, alleges that
the SEIU Local 1000, CSEA (SEIU) violated the Ralph C. Dills Act (Dills Act)1 by breaching
its duty
of
fair representation.
SEIU is the exclusive representative
of
bargaining unit 15 employees. Michael Burnett is a
dues paying bargaining unit
15
member and a certified SEIU union steward.
Charging Party Requested SEIU to Submit A Contract Grievance to Arbitration.
On July 26, 2006 you filed a 4 th
level grievance. 	On August 20, 2006, after your grievance
was denied, you requested Joe Barnes (hereafter Barnes), SEIU Central Coordinator, to appeal
your grievance to arbitration. Barnes indicated to you that he did not see any contract
violations. You disagreed with Barnes' assessment
of
the grievance, and argued that there is
"mountains
of
evidence" to prove a contract violation. Regardless, Barnes forwarded the
arbitration request to Paul Harris (hereafter Harris), SEIU' s Chief Legal Counsel. During our
telephone conversation on January 8, 2007, you indicated that you did not discuss nor attempt
to discuss the arbitration request with Barnes until September 6, 2006. Barnes told you that he
would not give you anything in writing regarding the arbitration request.
To date, SEIU has not formally notified you about the status
of
the arbitration request.
However, you stated that in the past you have made many requests to have grievances
submitted to arbitration against the state, and that it was common practice for SEIU not to
provide written correspondence concerning the status of arbitration requests.
Harris, on behalf of SEIU, has indicated that when a request for arbitration is made to the
Department of Personnel Administration (DPA) a copy
of
the request is sent to the grievant.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-297-S
January 11, 2007
Page 2
After corresponding with DP A, SEIU legal staff evaluates whether the request for arbitration
has merit.
	If
the request has no merit, SEIU informs appellant in writing
of
the reasons for the
denial
of
the arbitration request. Furthermore, in our conversation, you stated that you were
well aware that arbitration requests can take over six months to process before ultimately
reaching a hearing.
Charging Party Submitted an Unfair Practice Charge To SEIU For Review.
According to your charge, on September 6, 2006, you submitted a completed unfair practice
charge (UPC) to SEIU for review as required by the Union procedure. The UPC was related to
the grievance you filed against the state. You indicated that the charge was not filed, and the
October 17, 2006 deadline to file the UPC had lapsed because SEIU refused to file the charge
with PERB. You further alleged in your charge that, "Union HQ and its legal office officials
continue verbally to tell me that this matter
is
being taken care
of
by the union, but after all this
elapsed time has failed to present anything to me in [writing] regarding it stating these facts."
You allege that SEIU committed an unfair practice charge by, "needlessly letting time laps
[sic] on [your] filed UPC."
Given the above facts you are alleging that SEIU, as the exclusive representative
of
bargaining
unit
15
employees, denied you the right to fair representation guaranteed by Dills Act section
3515.7(g) and California State Employees' Association (Norgard) (1984) PERB Decision No.
451-S and thereby violated section 3519.5(b).
DISCUSSION
The duty
of
fair representation imposed on the exclusive representative extends to grievance
handling. 	(Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation
of
this section
of
the Dills Act, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers
of
Los Angeles
(Collins), the Public Employment Relations Board stated:
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 omitted.]
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.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a Charging Party:

SA-CO-297-S
January 11, 2007
Page 3
"
...
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. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty
of
fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Ouantas Empire Airways Limited
(9
th Cir. 1978) 573 F.2d 1082
[98
LRRM 2090].)
As a general rule, PERB will dismiss charges that the duty
of
fair representation has been
breached by refusal to pursue a grievance
if
a union has made an honest, reasonable
determination that the grievance lacks merit. 	(See, e.g., Service Employees International
Union, Local 616 (Jeffers) (2004) PERB Dec. No. 1675-M.) In analyzing whether an "honest
judgment" has been made, PERB does not judge whether the union's assessment was "correct,"
but only whether that judgment "had a rational basis, or was reached for reasons that were
arbitrary or based upon invidious discrimination." (International Union
of
Operating Engineers
(Siroky) (2004) PERB Dec. No. 1618-M.) Thus, the favorable outcome
of
a grievance pursued
by an individual employee does not justify a finding that a union's prior refusal to handle the
case deprived the employee
of
fair representation. (IUOE Local 501 (Reich) (1986) PERB
Dec. No. 591-H.)
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.)
A. The Duty
of
Fair Representation Was Not Breached When SEIU Did Not Respond to
Charging Party's Arbitration Request.
As we discussed on the phone on January 5, 2007, you allege that SEIU breached their duty
offair representation when SEIU failed to communicate (in writing) with you regarding the status
of
your arbitration request and that SEIU was "stalling due process
of
your grievance."
Indeed, it has been about four months and SEIU has not yet notified you in writing about the
status of your arbitration request.
In Coalition of University Employees (Buxton), supra, PERB Decision No. 1517-H, a union
failed to inform an employee of the employer's response to her grievance for some ten months
[emphasis added.] The Board found that the union's conduct "approache[d]" the standard for

SA-CO-297-S
January 11, 2007
Page 4
arbitrariness, but did not meet it. The Board observed that the union "incompetently handled
Buxton's grievance but its conduct and the resulting consequences to Buxton do not meet the
standard for arbitrariness under established state and federal precedent." (Id. at p. 7.) In
reaching its conclusion, the Board determined that duty
of
fair representation claims based on
mere negligence or unintentional omissions, as opposed to a "reckless disregard for employee
rights," will be upheld only in "cases in which the individual interest at stake is strong and the
union's failure to perform a ministerial act completely extinguishes the employee's right to
pursue his claim." (Id. at p. 10.)
You have knowledge that it is a practice
of
SEIU not to provide written correspondence
concerning the status
of
arbitration requests. As you know, arbitration requests can take over
six months to process before ultimately reaching a hearing. Although it is a lengthy process,
there is no evidence that the union has failed to follow its procedure
to
determine whether to
submit your grievance to arbitration.
You also disagree with Barnes' statement and allege that there is "mountains
of
evidence" in
support
of
a contract violation and that the matter should proceed to arbitration. However, a
disagreement between the grievant and the union as to whether a grievance should proceed to
arbitration does not establish a breach
of
the duty
of
fair representation. (Service Employees
International Union, Local 250 (Hessong) (2004) PERB Dec. No. 1693-M, 28 PERC 257.)
Based on the above facts, the charge does not demonstrate a prima violation
of
§§
3515.7(g)
and 3519.S(b)
of
the Dills Act. Furthermore, the charge does not show that SEIU engaged in
"arbitrary, discriminatory or in bad faith" conduct in processing your arbitration request.
(Collins, supra.) The charge also fails to present facts that demonstrate that SEIU conduct was
without a "rational basis or devoid
of
honest judgment." (Reed District Teachers Association,
CTA/NEA (Reyes), supra, PERB Decision No. 332.) Mere legal conclusions are insufficient..
(See State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No.
1071-S.)
B. 	SEIU Does Not Owe a Duty to File an Unfair Practice Charge
You allege that SEIU breached its duty
of
fair representation when SEIU failed to file an unfair
practice charge with PERB on your behalf over the same allegations made in the grievance.
Under the Dills Act an exclusive representative is given the exclusive right to represent
employees before the employer in matters involving contract negotiations, administration
ofthe contract and grievance handling. Since the union has the exclusive authority to deal with
the employer over these matters, the Dills Act imposes upon the exclusive representative a
duty to fairly represent all bargaining unit members in these areas.
PERB has held that an exclusive representative does not owe a duty of fair representation to
unit members in a forum over which the union does not exclusively control the means to a
particular remedy. (California State Employees Association (Parisi) (1989) PERB Decision
No. 733-S.) Since PERB is a forum outside the contract, SEIU does not owe members a duty

SA-CO-297-S
January 11, 2007
Page 5
of
fair representation in proceedings involving PERB. Thus, SEIU' s refusal to file an unfair
practice charge with PERB on your behalf does not violate the duty
of
fair representation.
For these reasons, this allegation does not state a prima facie violation and will be dismissed.
C. 	Charging Party Has No Standing Under Section 3519.S(a).
You allege in your charge that SEIU has committed an unfair practice charge under section
3519.S(a)
of
the Dill's Act. You further indicate that SEIU has, "caused or attempted to cause
the State to violate section 3519(a), (b), and (d)
of
this said Act." You state that SEIU needs to
be "held strictly accountable for it because it has definitely acted in bad faith
of
the rank and
file who are paying it to represent them."
Section 3519.S(a) provides:
"It
shall be unlawful for an employee organization to:
(a) Cause or attempt to cause the state to violate 3519" [emphasis added.]
The United States Supreme Court stated, " ... the question
of
standing depends upon whether
the party has alleged such a 'personal stake in the outcome
of
the controversy,' [citation
omitted] as to ensure that 'the dispute sought to be adjudicated will be presented in an
adversary context and in a form historically viewed as capable
of
judicial resolution."
[Citation omitted.] (Sierra Club v. Morton (1972) 405 U.S. 727 at p. 732). In addition, the
Board has held that an individual employee does not have standing to pursue violations
of
the
rights
of
an employee organization. (State
of
California (Department
of
Corrections) (1993)
PERB Decision No. 972-S.) The Board has also held that an individual employee does not
have standing to challenge the violation
of
another employee's rights. (United Teachers
of
Los
Angeles (Hopper) (2001) PERB Decision No. 1441.) By the same token, individual employees
lack standing to allege that the employee organization violated the rights of an employer.
For these reasons, the allegation that SEIU violated§ 3519.S(a) will be dismissed.
CONCLUSION
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, clearly 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
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB.
	IfI
do not receive an
amended charge or withdrawal from you before January 22, 2007, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.

SA-CO-297-S

January 11, 2007

Page 6

Sincerely,
poner
aron Partovi
egional Attorney

YP