Service Employees International Union, Local 1021 (Estival) (PERB 1998M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NELSON A ESTIV AL,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Respondent.
Case No. SF-CO-169-M
PERB Decision No. 	1998-M
January 14, 2009
Appearances: Nelson A Estival, on his own behalf; Weinberg, Roger & Rosenfeld by
Kerianne R. Steele and Vincent A Harrington, Jr., Attorneys, for Service Employees
International Union, Local 1021.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
NEUV/ ALD, Chair: 	This case is before the Public Employment Relations Board
(Board) on appeal by Nelson A Estival (Estival) to a Board agent's dismissal (attached) of his
unfair practice charge. 	Estival alleged that the Service Employees International Union,
Local 1021 (SEIU) violated the Meyers-Milias-BrownAct (MMBA) 1 by breaching its duty of
fair representation when it failed to file a grievance or challenge his release from employment.
The Board reviewed the entire record including the unfair practice charge,the amended
charge, the warning and dismissal letters, Estival' s appeal, and SEIU' s response to the appeal.
The Board finds the Board agent's dismissal and warning letters to be free of prejudicial error
and adopts them as the decision of the Board itself
1MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
On appeal, Estival presents new charge allegations and new supporting evidence that
were not previously presented and that were known to Estival when he filed his unfair practice
charge. PERB Regulation 32635(b)2 precludes a charging party from raising new charge
allegations or new supporting evidence on appeal without good cause. Estival fails to
demonstrate good cause for the presentation
of
new allegations and/or supporting evidence on
appeal, and nothing in the documents filed, related to the appeal, indicates good cause.
ORDER
The unfair practice charge in Case No. SF-CO-169-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
2

STATE
OF
CALIFORNIA	
(--=============~(-
, 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
August 26, 2008
Nelson A. Estival
273 Gateway Drive #259
Pacifica, CA 94044
Re: 	Nelson A. Estival
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-169-M
DISMISSAL LETTER
Dear Mr. Estival:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 11, 2008. Nelson A. Estival (Charging Party) alleges that
SEIU Local 1021 (Union) violated the Meyers-Milias-Brown Act (MMBA) 1
by breaching its
duty
of
fair representation.
Charging Party was informed in the attached Warning Letter dated July 31, 2008, that the
above-referenced charge did not state a prima facie case. 	Charging Party was advised that,
if
there were any factual inaccuracies or additional facts which would correct the deficiencies
explained in that Warning Letter, the charge should be amended. 	Charging Party was further
advised that, unless the charge was amended to state a prima facie case or withdrawn prior to
August 8, 2008, the charge would be dismissed. Of particular concern in the July 31, 2008
Warning Letter was Charging Party's failure to allege timely facts demonstrating that the
Union's failure to challenge his August 31, 2007 release from employment was without a
rational basis or devoid
of
honest judgment.
On August 18, 2008, an Amended Charge was received in this office. 	In the Amended Charge,
Charging Party provides copies
of
a complaint he had made to the Department
of
Labor (DOL)
in May 2006. As a result
of
the DOL complaint, Charging Party received a ruling in February
2007 that he was entitled to an additional $240 in overtime wages. According to the Amended
Charge, Charging Party requested assistance from Union representatives on several occasions
in pursuing this matter. As noted in the July 31, 2008 Warning Letter, however, events
occurring prior to August 11, 2007, are untimely and must be dismissed. Accordingly, the
Union's failure to assist Charging Party in the pursuit
of
his claims to the DOL are untimely, as
they occurred more than a year before the charge was filed, and must be dismissed.
In addition to the above, Charging Party presented "evidence" to the Union that his employer
had terminated him in retaliation for his May 2006 charge with the DOL. At the time he was
terminated, Charging Party apparently spoke with Union representative Robert Jones, who told
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-169-M
August 26, 2008
Page2
(
him to go to Human Resources and apply for another position. Furthermore, "[ w ]hen the
Union finally realize[d] that [Charging Party had] a reason for a grievance it was too late to file
one."
As noted
in
the Union's Response, and in the July 31, 2008 Warning Letter, the Union
investigated the circumstances
of
Charging Party's termination and determined that, as a
provisional employee,
he
was not entitled to a "just cause" protection for his position. Indeed,
under the "Provisional Appointments" section
of
the City's Charter, Charging Party was not
entitled to hold a provisional position for more than three years unless, for reasons beyond his
or her control, the Human Resources Director has been unable to conduct examinations for the
position. According to the Union, it investigated Charging Party's discrimination claims and
was unable to find any evidence that Charging Party was dismissed for retaliatory reasons,
rather than for the simple reason that his provisional appointment had expired.
Charging Party does not state what "evidence" he provided to the Union in August 2007. 	Even
assuming his complaint to the DOL was protected activity under the EERA, the fact that
Charging Party filed a complaint with the DOL, which was resolved in his favor six months
before his termination, does not, without more, establish that he was terminated in retaliation
for protected activity. (Charter Oak Unified School District (1984) PERB Decision No. 404.)
Assuming the copy
of
the complaint to the DOL was the extent
of
the "evidence" provided to
the Union in August 2007
of
the alleged retaliatory termination, as amended, the charge lacks
evidence that the Union acted arbitrarily, discriminatorily or in bad faith when it failed to
challenge Charging Party's termination. 	That the Union may have reached an incorrect
conclusion after consideration
of
Charging Party's evidence does not demonstrate a breach
of
the Union's duty
of
fair representation. 	(California State Employees Association (Calloway)
(1985) PERB Decision No. 497.)
Therefore, I am dismissing the charge based on the facts and reasons contained in this letter
and the July 31, 2008 Warning 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 containthe 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 l 1020(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
2 PERB' s Regulations are codified at California Code of Regulations, title 8, sectio
31001 et seq.
n

SF-CO-169-M
August 26, 2008
Page 3
(
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
1031 18th Street
Sacramento, CA 95811-4124
(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).)
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.)

SF-CO-169-M
August 26, 2008
Page4
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR.
BOGERT
General Counsel
Byi,_,...,..._._._____
........
_________
_
:A.hcia
Clement
Regional Attorney
Attachment
cc: Vincent Harrington, Jr., Attorney

STATE OF CALIFORNIA	
(-	
(,--	
ARNOLD SCHWARZENEGGER, Governor
============-,================-
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
July 31, 2008
Nelson A. Estival
881 Skyline Drive
Daly City, CA 94015
Re: 	Nelson A. Estival
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-169-M
WARNING LETTER
Dear Mr. Estival:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 11, 2008. Nelson A. Estival (Charging Party) alleges that
SEID Local 1021 (the Union) violated the Meyers-Milias-Brown Act (MMBA) 1 by breaching
its duty
of
fair representation.
l\1y investigation revealed the following facts. 	Charging Party began working for the Asian
Art Museum (Museum), which is a Department
of
the City and County
of
San Francisco (the
City), in March 2004. Charging Party was hired as a per-diem Museum Guard. 	In March
2006, Charging Party's status was changed to "Provisional Full-Time." Charging Party's last
day at the Museum was August 31, 2007. Throughout his three and a half years' employment
with the Museum, Charging Party filed several complaints against his supervisor. Charging
Party's complaints included personality disputes with other Guards, requests for overtime, and
sexual harassment allegations both by and against Charging Party.
According to Charging Party, he requested the Union's assistance on several occasions.
Charging Party's first request for assistance was on July 25, 2006, when he filed a harassment
complaint against another Guard. 	On January 4, 2007, Charging Party requested that the
Union assist him in filing a request for overtime. Charging Party's third request for assistance
from the Union was on March 11, 2007, when he wanted to take a day off of
work. His final
request for assistance was sometime after his August 31, 2007 release from employment,
although an exact date is not provided. According to Charging Party, despite his requests, the
Union never assisted him with any
of
these complaints.
In July 2007, the City created five new, permanent positions at the Museum. Charging Party
applied for one
of
these positions. On August 30, 2007, Charging Party was notified by the
Museum that he was not selected for a full-time, permanent position, and would be released
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-169-M
July 31, 2008
Page 2
from his provisional appointment, effective at the close
of
business on August 31, 2007. The
written notice from the Museum states that Charging Party's release is "Non-Disciplinary."
On
September 24, 2007, Charging Party wrote to Union President Damita Howard. 	In his
letter, Charging Party requests a refund
of
his Union dues and a written explanation from
Chief
Steward Robert Jones as to why the Union did not challenge Charging
Party's
release from
employment. Additionally, Charging Party requests that Mr. Jones
be
removed from his
position as Union Steward, and complains that Don Evans (who is not identified
by
title) told
him, on an unspecified date, that it was too late to file a grievance over his release from
employment. According to Charging Party, these interactions led him to the conclusion that he
and other bargaining unit members "will
be
wasting our time asking the Union for
help.
	[Sic.]
Because our field rep. [sic] and Union
Chief
Steward
don't
think that losing a City
job
is very
important."
In its response to the charge, the Union states:
The Union did investigate whether or not Mr. Estival was in fact
provisional, and concluded that
he
was. Because
he
did not have
a
"just
cause protection" in his position, [and] because there was
no evidence presented to the Union by [Mr.] Estival that he was
the victim
of
any unlawful discrimination, the Union determined
it could not/would not, pursue his release from the provisional
appointment.
Discussion
As a threshold matter, PERB is prohibited from issuing a complaint with respect to any charge
based upon an alleged unfair practice occurring more than six months prior to the filing
of
the
charge. 	(Coachella Valley Mosquito and Vector Control District v. PublicEmployment
Relations Board (2005) 35 Cal.4th 1072.) Many
of
the alleged complaints made
by
Charging
Party to the Museum, and the Union's alleged failure to assist him in filing those complaints,
occurred more than six months prior to February 11, 2008. Indeed, the only timely allegation
of
a failure by the Union to properly represent Charging Party is the alleged refusal to
challenge Charging Party's August 31, 2007 release from employment
by
the Museum. To the
extent that the other alleged failures to assist Charging Party in filing complaints against the
Museum are alleged to have violated the MMBA, these allegations must be dismissed.
With regard to the remaining alleged failure to represent Charging Party, it is important to note
that the MMBA does not expressly impose a statutory duty
of
fair representation upon
employee organizations. However, 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, (Hussey).) 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

SF-CO-169-M
July 31, 2008
Page 3
(
union's power." Furthermore, regardless of the merits of a grievance, the union does not
breach its duty of fair representation by failing to pursue the grievance, as long as its decision
is rationally based. (California State Employees Association (Calloway) (1985) PERB
Decision No. 497 .)
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty of fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
in such cases, including Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171).
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.)
In the present case, Charging Party has not provided facts demonstrating that the Union's
failure to challenge his release from employment was without a rational basis or devoid of
honest judgment. Indeed, Charging Party's own facts state that, at the time he inquired about
his right to grieve his termination, he was informed it was too late to file a grievance. Under
the circumstances, it is not possible for PERB to find that the Union breached its duty of fair
representation when it refused to file an untimely grievance.
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
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.

SF-C0-169-M
July 31, 2008
Page4
If
I do not receive an amended charge or withdrawal from you before August 8, 2008, I shall
./dismiss
your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Alicia Clement
Regional Attorney
AC