Service Employees International Union Local 1021 (Joshua) (PERB 2225M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FIDEL JOSHUA,
Charging Party, Case No. SF-CO-233-M
v. PERB Decision No. 2225-M
SEIU LOCAL 1021, November 30, 2011
Respondent.

Appearance: Fidel Joshua, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Fidel Joshua (Joshua) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge, as amended, alleged that SEIU
Local 1021 (SEIU) breached its duty of fair representation under the Meyers-Milias-Brown
Act (MMBA)' by failing to file a grievance on his behalf concerning his employment with the
City and County of San Francisco, Recreation and Parks Department. The Board agent found
that the charge failed to state a prima facie violation of the duty of fair representation.

The Board has reviewed the dismissal and the record in light of Joshua’s appeal and the
relevant law. Based on this review, we find the dismissal and warning letters to be well-
reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the dismissal and warning letters as the decision of the Board

itself, supplemented by the discussion below.

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

DISCUSSION
In his appeal, Joshua presents new factual allegations that were not presented in the
original charge or the amended charge. "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (PERB
Reg. 32635(b); see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.) The Board has found good cause when "the information provided could
not have been obtained through reasonable diligence prior to the Board agent's dismissal
of
the
charge." (Sacramento City Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
On March 22, 2011, the Board agent issued a letter advising Joshua that the charge failed
to state a prima facie case and warning him that the charge would be dismissed unless he
amended the charge to state a prima facie case. Joshua filed amended charges on April 14 and
May 18, 2011. Thereafter, on August 9, the Board agent dismissed Joshua's charge, as amended.
Joshua filed an appeal from the dismissal on September 5, 2011. The appeal includes new
factual allegations concerning other actions by SEIU representative Margo Reed. While
not
all
of
the allegations are identified by date, at least one concerns a conversation that occurred
on
an
unspecified date in March 2011. The appeal provides no reason why these allegations could not
have been alleged in the original charge or in the two amended charges. Thus, we do not find
good cause to consider these new allegations.
Even
if
we were to consider the new allegations as part
of
the charge, they fail to
establish a prima facie violation
of
the duty
of
fair representation. Joshua alleges 	SEID
failed to file a "grievance" on his behalf. However, as noted by the Board agent, it is not clear
whether the "grievance" he wanted filed was a grievance under an applicable collective
bargaining agreement or a complaint in another forum. As set forth in the August 9, 2011
dismissal letter, the duty of fair representation attaches only when the union possesses the
2

exclusive means by which an aggrieved employee can obtain a particular remedy. (County
of
San Diego (2008) PERB Decision No. 1989-M.) In addition, the union does not have a duty to
represent an employee with respect to extra-contractual proceedings that are not within the
scope
of
a collective bargaining agreement. (Ibid.; California School Employees Association
(Garcia) (2001) PERB Decision No. 1444.) Moreover, in the absence
of
evidence that the
exclusive representative's negligence foreclosed any remedy for the grievant,
"a
breach
of
the
duty
of
fair representation is not stated merely because an exclusive representative declines to
proceed or negligently forgets to file a timely appeal
of
a grievance." (Service Employees
International Union, Local 99 (Arteaga) (2008) PERB Decision No. 1991, citing SElU Local 99
(Jones) (2007) PERB Decision No. 1882 and San Francisco Classroom Teachers Association,
CTAINEA (Bramel!) (1984) PERB Decision No. 430; see also United Teachers
of
Los Angeles
(Strygin) (2010) PERB Decision No. 2149 [failure
of
the exclusive representative to file a
grievance does not rise to the level
of
a breach
of
the duty
of
fair representation, where the
employee failed to file a grievance on his own behalf and the union's failure to file did not
completely extinguish his right to file a grievance].) Accordingly, the charge fails to establish a
prima facie violation
of
the duty
of
fair representation.
ORDER
The unfair practice charge in Case No. SF-CO-233-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
3

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland,
CA
94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
August 9, 2011
Fidel Joshua
316 Valencia Street #213
San Francisco,
CA
94103
Re: 	Fidel Joshua
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-233-M
DISMISSAL LETTER
Dear Mr. Joshua:
EDMUND G.
BROWN
	Governor
The above-referenced unfair practice charge was filed with the Public EmploiYment Relations
Board (PERB or Board) on August
9,
2010. Fidel Joshua (Mr. Joshua or Charging Party)
alleges that SEIU Local 1021 (SEIU or Respondent) violated the Meyers-Milias-Brown Act
(MMBA or Act)1 by breaching its duty
of
fair representation.
Charging Party was informed in the attached Warning Letter dated March 22, 2011, 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 that would correct the deficiencies
explained in that 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 April 4,
2011, the charge would be dismissed. Subsequently, an extension
of
time was granted.
On April 14, 2011, Mr. Joshua filed a first amended charge. On May 18, 2011, Mr. Joshua
filed a second amended charge. Because neither amended charge cures the deficiencies
discussed by the Warning Letter, the charge is hereby dismissed based on the facts and reasons
set forth herein and in the March 22, 2011 Warning Letter.
Additional Facts Alleged
The first amended charge attaches a series
of
e-mail messages between Mr. Joshua and SEIU
representative Margo Reed (Ms. Reed). As stated in the Warning Letter, SEIU was Mr. 	·
Joshua's exclusive representative with respect to his employment with the City and County
of
San Francisco, Recreation and Parks Department (RPD).
On April 17, 2010, Mr. Joshua sent an e-mail message to Ms. Reed stating,
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-233-M
August
9,
2011
Page 2
I haven't received anything from you concerning my grievance. I
submitted my statement to you on April
7,
2010. You sent me an
email on the April 12, 2010 (sic) stating that you were typing as
fast as you can. That was 5 days ago.
	I'm
being questioned by
several people in our department about the grievance and nothing
has been sent back to me for review as you stated would occur.
Have you submitted anything to HR? And what
is
the procedure
when submitting a grievance? Something just doesn't feel right.
I need clarity ASAP.
The e-mail messages show that on multiple dates between April 12, 2010 and April 22, 2010,
Mr. Joshua asked Ms. Reed for a status report or update or documentation. On April 22, 2010
Mr. Joshua sent an e-mail message to Ms. Reed stating that he had expected a status report on
April 20, 2010, but had not yet received anything, and that "not knowing what is going on with
the paperwork is added stress."
The second amended charge generally alleges that Ms. Reed failed to comply with SEIU
bylaws. 	SEIU Bylaw Article 12.3 provides that a steward's roles and responsibilities include:
mobilizing, educating and informing members
of
union activities; resolving worksite issues
and processing grievances; and providing timely and effective representation for the members.
Mr. Joshua also alleges that a Collective Bargaining Agreement (CBA) between the San
Francisco Community College District (SFCCD) and SEIU provides at Article
10
for a
grievance procedure. This Article provides that the SFCCD's failure to timely respond at any
step entitles the grievant to advance to the next step, and states, "time is of the essence in all
processing
of
grievances."
Position of the Respondent
SEIU filed a position statement dated September 13, 2010. The position statement includes a
declaration by Ms. Reed. In the declaration, Ms. Reed states that Mr. Joshua had approached
her in April 2010 because he and another bargaining unit employee wanted to file a harassment
and discrimination claim against another employee.
Amendment
of
Pleadings
A lay person is not expected to know the difference between an amendment to a charge
amended charge. (Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB
Decision No. 332.) Where a later charge incorporates the pleadings of
an original charge, all
will be considered one pleading. (Ibid.) It is assumed herein that Mr. Joshua intended for his
first and second amended charges to incorporate by reference the original charge.
and

SF-CO-233-M
August
9,
2011
Page 3
Duty
of
Fair Representation
As stated in the Warning Letter, unions under the MMBA "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.4th
1213.) 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."
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
to show how it properly exercised its discretion. ( United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
The duty
of
fair representation attaches only when the union possesses the exclusive means by
which an aggrieved employee can obtain a particular remedy. 	(County
of
San Diego (2008)
PERB Decision No. 1989-M.) The union does not have a duty to represent an employee with
respect to extra-contractual proceedings that are not within the scope
of
a CBA. (Ibid.;
California School Employees Association (Garcia) (2001) PERB Decision No. 1444.) In the
original charge, Mr. Joshua alleges he sought
to
file grievances against two supervisors. 	Mr.
Joshua does not allege that he sought to file grievances under an applicable CBA or that a
specific provision
of
the CBA was violated.2 He does not explain on what basis he sought to
file grievances against the supervisors. It is not clear whether the "grievance" he wanted the
union to file was a grievance under a CBA provision or a complaint designed for another
forum, such as the Equal Employment Opportunity Commission.3 According to the
declaration submitted by Ms. Reed, he was seeking to pursue a claim for discrimination and
harassment against another employee. This matter would not necessarily be covered by a CBA
and its grievance procedure.
In the first amended charge, Mr. Joshua alleges that he sent multiple e-mail messages to Ms.
Reed and she did not respond by April 22, 2010. A delay in filing grievances, alone, is not a
violation where it is not established that the union's conduct foreclosed any remedy for
Charging Party. (United Teachers
of
Los Angeles (Strygin) (2010) PERB Decision No. 2149.)
In his second amended charge, Mr. Joshua appears to allege a violation of a CBA
between SFCCD and SEIU. Because Mr. Joshua's employer was the RPD for the City and
County of San Francisco, not the SFCCD, it does not appear that this CBA covers him at ali.
3 In his initial charge, Mr. Joshua states he was retaliated against because he pursued a
complaint with the EEOC.

SF-CO-233-M
August
9,
2011
Page 4
Mr. Joshua does not allege that SEIU ultimately failed to file a grievance, or that he was unable
to file a grievance
of
his own, or that SEIU' s conduct in any way prevented him from obtaining
a remedy. Mr. Joshua alleges that Ms. Reed did not respond to him within the time frame she
promised, but he does not allege that she never acted.
PERB generally does not have jurisdiction over the internal affairs
of
a union unless there is a
substantial impact upon employer-employee relations. (International Brotherhood
of
Electrical Workers, Local 1245 (Gallardo) (2010) PERB Decision No. 2146-M.) Mr. Joshua
appears to allege that Ms. Reed violated SEIU bylaws, which are internal rules
of
the union.
No facts are alleged to show that the purported violation
of
these bylaws had a substantial
impact upon employer-employee relations.
Right to Appeal
Pursuant to PERB Regulations,4 Charging Party 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. 	(Cal. Code Regs, tit.
8,
§ 32635, subd. (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.
(Cal. Code Regs, tit. 8,
§§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (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
PERB 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. 	(Cal. Code
Regs, tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
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. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
4 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-233-M
August 9, 2011
Page 5
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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit. 8, § 32135, subd. (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. (Cal. Code Regs, tit. 8, § 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,
M. SUZANN,E--MQRPHY
General
cO-U:nsel	
)
Laura Davis
Regional Attorney
.Attachment
cc: Vincent Harrington, Jr., Attorney

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
March 22, 2011
Fidel Joshua
316 Valencia Street #213
San Francisco, CA 94103
Re: 	Fidel Joshua
v.
SEIU
Local 1021
Unfair Practice Charge No. SF-CO-233-M
WARNING LETTER
Dear Mr. Joshua:
EDMUND
G.
BROWN 	Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 9, 2010. 1 Fidel Joshua (Mr. Joshua or Charging Party)
alleges that SEIU Local 1021 (SEIU or Respondent) violated the Meyers-Milias-Brown
Act
(MMBA or Act)2 by breaching its duty
of
fair representation.
Summary
of
Facts Alleged by Charging Party
It is presumed that, at all times relevant, Mr. Joshua was employed by the City and County
of
San Francisco, Recreation and Parks Department (RPD) in a position in a bargaining unit
exclusively represented by SEIU.
On March 30, Mr. Joshua notified the RPD Human Resources Department that he would file a
grievance against his supervisors, Karla Rosales and James Wheeler. 	On April 2, Mr. Joshua
notified SEIU representative Margo Reed (Ms. Reed)
of
his intent to file the grievance. 	Ms.
Reed asked Mr. Joshua to provide his statement
of
the grievance and she would review it.
After reviewing Mr. Joshua's statement
of
the grievance, Ms. Reed stated, "this is serious and
the timing couldn't be worse.
	I'm
applying for a supervisor position and filing this could hurt
my chances." Subsequently, Ms. Reed repeatedly failed to respond to Mr. Joshua's telephone
calls and e-mail messages.
Mr. Joshua then filed a complaint with the Equal Employment Opportunity Commission
(EEOC). After Ms. Reed learned
of
this complaint, she asked to meet with Mr. Joshua.
During this time Mr. Joshua was harassed and retaliated against because he had complained to
the EEOC. Mr. Joshua and others in his position (Directors) recently had to re-apply for their
jobs. The RPD is restructuring. Although Mr. Joshua is one of the most qualified individuals
1
All dates herein are in the 2010 calendar year unless otherwise stated.
2 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-233-M
March 22, 2011
Page 2
in the RPD, he was not offered re-employment. Mr. Joshua believes he was not offered re-
employment because
of
the lack
of
response from his union representative, Ms. Reed.
Duty
of
Fair Representation
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.4th
1213.) 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, CTAINEA (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 (Vacav. Sipes (1967) 386 U.S. 171).
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.)
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 incfode 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
to show how it properly exercised its discretion. (United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
PERB Regulation 32615(a)(5)3 requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001etseq.

SF-CO-233-M
March 22, 2011
Page 3
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
Mr. Joshua alleges that he took steps to file a grievance against his supervisors, for unspecified
reasons, on March 30. He consulted with Ms. Reed about the grievance and she stated that
filing the grievance could hurt her chances for a promotion. Subsequently she refused to return
his phone calls and e-mail inquiries. As a result
of
this failure, Mr. Joshua alleges, the
RPD
failed to re-employ him. 	These facts do not demonstrate that SEIU treated him in a way that
was arbitrary, capricious, or in bad faith. 	Mr. Joshua does not allege, for example, that
he
was
unable to pursue his grievance, that Ms. Reed's failure to respond affected the outcome in any
way, or that SEIU failed to perform a ministerial act. Mr. Joshua does not establish any causal
connection between Ms.
Reed's failure to respond and the employer's decision not to re-
employ him.
PERB' s jurisdiction is limited to resolving claims
of
unfair practices, as defined, which violate
the Acts enforced by PERB. (See, e.g., Los Angeles Unified School District (1984) PERB
Decision No. 448.) PERB lacks jurisdiction to enforce other statutory schemes. 	(State
of
Caltfornia (Department
of
Personnel Administration) (2009) PERB Decision No. 2018-S.) For
example, PERB lacks jurisdiction to enforce laws prohibiting discrimination on the basis
of
race. (Alum Rock Union Elementary School District (2005) PERB Decision No. 1748.)
Accordingly, PERB has no jurisdiction over Mr. Joshua's allegations that he was retaliated
against4 because he had made a complaint to the EEOC.
For these reasons the charge, as presently written, does not state a prima facie case. 5 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent
of
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
Mr. Joshua does not specify whether SEIU or the employer retaliated against him.
5 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Con_sequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

SF-CO-233-M
March 22, 2011
Page 4
PERB. 	If an amended charge or withdrawal is not filed on or before April 4, 2011,6
PERB
will dismiss your charge. 	If you have any questions, please call me at the above telephone
number.
La ra Davis
Regional Attorney
LD
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)