Stationary Engineers Local 39 (PERB 2098M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JON RICHARD MAY,
Charging Party,
V.
STATIONARY ENGINEERS LOCAL 39,
Respondent.
Case No. SA-CO-76-M
PERB Decision No. 2098-M
February 24, 2010
Appearance: Jon Richard May, on his own behalf.
Before McKeag, Neuwald and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Jon Richard May (May)
of
a Board agent's dismissal
of
his
unfair practice charge. 	The charge alleged that the Stationary Engineers Local 39 (Local 39)
violated the Meyers-Milias-Brown Act (MMBA) 1 when it breached its duty
of
fair
representation. The Board agent dismissed the charge for failure to state a prima facie case.
The Board reviewed the dismissal and the record in light
of
May's appeal and the
relevant law. 	Based on this review, the Board affirms the dismissal
of
the unfair practice
charge for the reasons stated below.
BACKGROUND
May is employed as a Building Inspector by the City
of
Auburn (City). Local 39 is the
exclusive representative of a bargaining unit of
31
city employees, including May.
1 The MMBA is codified at Government Code section 3500 et seq.

In or before April 2009,2 the City and Local 39 engaged in negotiations over proposed
layoffs. The City proposed an addendum to the parties' memorandum
of
understanding that
would add a "Cost Savings Plan" to the contract. The proposal included mandatory time
off
(MTO or furloughs) to address the City's fiscal crisis. The MTO option called for a 10 percent
pay reduction and the layoff
of
two employees. In the alternative, the City proposed the layoff
of
eight bargaining unit employees.
On May 11, Local 39 Business Representative Kevin O'Hair (O'Hair) met with
bargaining unit employees and presented the addendum. The addendum was discussed and the
employees took an advisory vote regarding the proposal. The vote was
15
to 8 in favor
of
the
reduction in pay in lieu
of
the layoff
of
eight employees.
O'Hair informed the unit employees that the advisory vote results would be discussed
with Local 39 in Sacramento, and would be "approved, or disapproved" by May 13.
	O'Hair
also indicated that it would be unlikely that the results
of
a vote to approve the addendum by
the members would be ratified by Local 39 in Sacramento.
On May 13, May sent an e-mail to O'Hair requesting to know Local 39's decision
regarding the addendum discussed at the May
11
meeting. 	O'Hair responded stating, in
relevant part:
At our membership meeting on 5-11-09 there was an opinion poll
taken, Not [sic] a vote. I indicated that I would take your
response and forward it up to the leadership
of
this Local Union.
I also indicated that it was highly unlikely that I would get
permission to agree to the present City language.
Following two more e-mails from May to O'Hair on May 14, O'Hair responded on
May 14, stating:
2 Hereafter all dates refer to 2009.
2

We have decided to fight the layoffs. That is all that I can say for
now.
On May 15, May sent an e-mail to O'Hair and numerous other union officials on behalf
of
himself and
16
other unit employees, expressing disagreement with the bargaining position
taken by O'Hair and Local 39. The e-mail also complains about unanswered e-mails and
unreturned phone calls. The e-mail requests information regarding procedures to file an
internal union grievance, and procedures to elect new shop stewards and a new local
representative. The e-mail also states that a majority
of
the bargaining unit employees request
a special meeting pursuant to Local 39 bylaws for the purpose
of
voting to accept or reject the
City's proposal.3 O'Hair did not respond to this e-mail.
The charge does not provide facts indicating the results
of
negotiations between
Local 39 and the City. However, at least four bargaining unit employees were laid off. 	The
charge states that as a result
of
the layoffs, additional assignments and work duties were
imposed on May and the remaining unit employees.
The charge alleges Local 39 breached its duty
of
fair representation when it failed to:
(1) respond to·May's inquiry about Local 39's decision regarding the bargaining proposal
discussed at the May
11
meeting; (2) respond to the request for Local 39's procedures
concerning internal union grievances, and the election
of
job stewards and local
representatives; (3) call a special meeting
of
the general membership to allow the bargaining
3 Article XIII, Section 3(a)
of
the Local 39 bylaws states:
A Special Meeting
of
the general Membership shall be called
when ordered by the president or by a majority
of
the following
officers: Vice-President, Financial Secretary, Treasurer and
Business Manager-Recording-Corresponding Secretary, or upon
written request of one-third of the Members of the Local Union in
good standing.
3

unit members to vote on the proposed addendum; and (4) fairly represent its members in
negotiations with the City regarding the MTO proposals.
DISCUSSION
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 Local
Union No. 3 (1995)
35
Cal.App.4th 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 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, CTA/NEA
(Reye:,,)
(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), supra, 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
4

to show how it properly exercised its discretion. (United Teachers
-Los
Angeles (Wyler)
(1993) PERB Decision No. 970.)
It is well-established, however, that PERB does not have jurisdiction over matters
concerning internal union affairs unless they have a substantial impact on the relationship
of
bargaining unit employees to their ernployer so as to give rise to a duty
of
fair
representation. (Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106; California State Employees Association (Hutchinson, et al.) ( 1998) PERB
Decision No. 1304-S.) In California State Employees Association (Hutchinson) (1999) PERB
Decision No. 1369-S, the Board dismissed allegations that the union conducted elections
outside the timeframe required by union bylaws; and mailed election ballots, improperly
validated ballots, failed to properly distribute election results, and improperly installed union
officers in violation
of
union bylaws. In California State Employees Association (Hackett)
(1993) PERB Decision No. 1012-S, the Board found no substantial impact on the employee
employer relationship where the union suspended the bargaining team; submitted a proposal to
the membership for ratification that was not approved by the bargaining team; failed to provide
a secret ballot; and failed to give the membership any choice on the ballot except to vote for
ratification or strike.
In comparison, the Board has intervened in the internal affairs
of
a union when
alleged union reprisals against members substantially impacted the employment relationship.
For example, in California Union
of
Safety Employees (Coelho) (1994) PERB Decision
No. I 032-S, the union filed a citizen's complaint against an employee with his employer,
causing the employer to initiate an investigation of the employee's conduct. In finding a
violation, the Board held that the union's conduct directly and substantially impacted the
employee's employment relationship with his employer.
5

The present charge does not provide facts that establish that Local 39's failure to
inform May
of
its bargaining decision, provide union election and grievance procedures to its
members, or call a meeting
of
the union's general membership, has a substantial impact on the
employee-employer relationship. In this case, the manner
of
communication, or lack
of
communication, between Local 39 and its members has no direct and substantial impact on the
employment relationship between May and the City. Furthermore, union grievances, elections
and membership meetings concern the internal operation
of
the union. The charge does not
demonstrate how Local 39's failure to communicate this information to May has a substantial
impact on the employee-employer relationship.4
Finally, the charge alleges that Local 39 breached its duty to fairly represent its
members because it did not comply with the advisory vote in support
of
furloughs rather than
layoffs.
As a general rule, an exclusive representative enjoys a wide range
of
bargaining
latitude. As the United States Supreme Court explained in Ford Motor
Co.
v.
Huffman (1953)
345 U.S. 330:
Any authority to negotiate derives its principai strength from a
delegation to the negotiators
of
a discretion to make such
concessions and accept such advantages as, in the light of all
relevant considerations, they believe will best serve the interests
of
the parties represented. 	. . . Inevitably differences arise in the
manner and degree to which the terms
of
any negotiated
agreement affect individual employees and classes
of
employees.
The mere existence
of
such differences does not make them
invalid. The complete satisfaction
of
all who are represented is
hardly to be expected. A wide range of reasonableness must be
allowed a statutory bargaining representative in serving the unit it
4 May contends that his employment is impacted because the layoff of at least four
employees has resulted in additional work assignments. However, the dispute concerns
internal union operations and communication with union members, not the ultimate outcome of
negotiations between Local 39 and the City.
6

represents, subject always to complete good faith and honesty
of
purpose in the exercise
of
its discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members
of
the unit it represents.
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty
of
fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is
an employee organization obligated to bargain a particular item benefiting certain unit
members. (Ibid.; Los Rios College Federation
of
Teachers (Violett, et al.) (1991) PERB
Decision No. 889.) The mere fact that some employees are not satisfied with the agreement is
insufficient to demonstrate a prima facie violation. (Los Rios College Federation
of
Teachers
(Violett, et al.), supra.)
In contrast, a union violates its duty to fairly represent its members
if
its conduct in
representing bargaining unit employees in contract negotiations is arbitrary, without a rational
basis or devoid
of
honest judgment. (Rocklin Teachers Professional Association (Romero)
(1980) PERB Decision No. 124.) The duty
of
fair representation concerning contract
negotiations requires an exclusive representative to provide "some consideration
of
the views
of
various groups
of
employees and some access for communication
of
those views."
(El Centro Elementary Teachers Association (1982) PERB Decision No. 232.)
Here, O'Hair met with unit employees to discuss the proposed contract addendum.
Although it is unclear whether Local 39 and the City reached an agreement, May and other
employees had the opportunity to share their views with Local 39. While it appears Local 39
did not agree with some of the unit employees' views, there are no facts that establish that
Local 39's bargaining position was arbitrary, without a rational basis or devoid of honest
7

judgment. Accordingly, the charge does not demonstrate a prima facie case
of
a breach
of
the
duty
of
fair representation.
ORDER
The unfair practice charge in Case No. SA-C0-76-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwaldjoined in this Decision.
8