Service Employees International Union, Local 1021 (Sahle) (PERB 2261M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SOLOMON SAHLE,
Charging Party,
V.
SERVICE EMPLOYEES Il'>JTERNATIONAL
UNION, LOCAL 1021,
Respondent.
Case No. SF-CO-199-M
PERB Decision No. 	2261-M
May 8, 2012
Appearances: 	Solomon Sahle, on his own behalf; Weinberg, Roger & Rosenfeld by
Kerianne R. Steele, Attorney, for Service Employees International Union, Local 1021.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Service Employees International Union, Local 1021
(SEIU) to a proposed decision by a PERB administrative law judge (ALJ). 	The underlying
unfair practice charge was filed on April 8, 2009 by Solomon Sahle (Sahle ), an employee of
the Alameda County Medical Center (ACMC) represented exclusively by SEIU. PERB's
Office of the General Counsel issued a complaint in March 2010, alleging that SEIU's conduct
was inconsistent with its duty of fair representation and thus violated sections 3 507 and
3 5 09(b) of the Meyers-Milias-Brown 	(MMBA)1 and 	Regulation 3 2604(b). 2
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 3 l 001 et seq.

THE ALI'S DECISION3
The ALJ conducted a formal hearing in October 2010 at which Sahle testified and
adduced documentary evidence, and at which SEIU presented four witnesses and adduced
documentary evidence. The ALJ' s proposed decision includes proposed factual findings, legal
conclusions and a remedy. 	We conclude the findings are free
of
prejudicial error and adopt the
proposed findings
of
fact as the findings
of
the Board itself,
as
supplemented by our factual
discussion below.
The proposed decision does not address the MMBA violations alleged in PERB' s
complaint. Instead, the ALJ reframed the issue and concluded that SEIU arbitrarily or
perfunctorily failed to file a grievance challenging ACMC's failure to reclassify Sahle, thereby
breaching SEIU' s duty
of
fair representation. The ALJ proposed remedial orders requiring that
SEIU pursue for Sahle a reclassification grievance, provide Sahle independent counsel at SEIU
expense, and pay Sahle a portion
of
any award obtained with interest.
We address below the MMBA violations alleged in PERB's complaint. We conclude
Sahle failed to prove these violations. We consider next the conclusions
of
law and the remedy
in the proposed decision. As discussed below, we conclude that the ALJ's conclusions present
an unalleged violation which we may not entertain. Accordingly, we shall dismiss the
complaint.
SEIU requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (City
of
Modesto
(2008) PERB Decision No. 1994-M.) Based on our review of the record, all of the above criteria
are met in this case. Therefore, SEIU' s request for oral argument is denied.
2

BACKGROUND
Factual Summary
Sahle commenced employment for ACMC in 1998 at Highland Hospital in Oakland. 	In
2002, he became a respiration inhalation aide in the respiratory therapy department.
In or about 2005, Sahle began discussing with the anesthesia department chair a
possible assignment in that department as a part-time backup anesthesia technician. The
anesthesia technician position would afford Sahle a pay increase, but Sahle would be required
to obtain anesthesia training and state certification. An SEIU official informed Sahle and
ACMC officials that the anesthesia technician position would have to be posted.
In 2007, Sahle requested that SEIU's worksite organizer (a different SEIU employee)
attend a meeting with ACMC officials. At this August meeting, an arrangement was
confirmed under which Sahle would receive anesthesia technician training from the
anesthesiology department chair. Sahle would work part-time in the anesthesia department to
receive the training while working reduced hours in the respiration inhalation aide position to
accommodate his training. 	Sahle believed the arrangement included i\.CMC's commitment to
place him part-time in an anesthesia technician position at the conclusion
of
his training. 	No
written agreement was produced at or after the meeting. Sahle commenced training in the
anesthesia department in September 2007. In September 2007, the SEIU reassigned its
worksite organizer who had attended the August 2007 meeting. Sahle's training was
completed in December 2007.
early January 2008, Sahle's supervisor 	the respiratory therapy
informed him that the anesthesia technician training was complete and directed him to resume
reporting full time to his respiration inhalation therapy aide position in respiration therapy.
3

Believing the arrangement was that he would now be awarded a part-time position as an
anesthesia technician, Sahle pushed to get the necessary paperwork processed. The paperwork
included, inter alia, signatures from the two department chairs/managers, one
of
whom was
then on a long-term leave. Sahle sought SEIU's assistance. The SEIU's staff had changed in
September. The replacement SEIU worksite organizer met with Sahle, and advised Sahle that
he should defer pursing an anesthesia department position until Sahle's respiratory therapy
department manager returned from leave to sign off.
By February 2008, Sahle had obtained permission from the anesthesia department chair
to report there twice per week in order to maintain his newly-acquired anesthesia technician
skills. Sahle followed this schedule through December 2008. He resigned outside
employment at a restaurant to free up the time to report to the anesthesia department. During
2008, ACMC did not post an anesthesia technician position, and Sahle did not seek
certification.
In the summer
of
2008, SEIU assigned yet a different worksite organizer to Sahle' s area
at ACMC. 	Sahle desired closure on his perceived arrangement and approached the SEIU
worksite or~anizer for help. 	SEIU's worksite organizer investigated the situation and
consulted with the then-new ACMC labor relations director. Both were new to Sable's
situation. In October 2008, the SEIU worksite organizer proposed to ACMC's labor relations
director that ACMC implement the arrangement Sable believed he had made for a position in
the anesthesia department, and in addition pay Sahle retroactively at the anesthesia technician
department. ACMC's new labor relations
expressed lack of knowledge of any arrangement for Sahle to become a part-time anesthesia
technician. 	He responded by requesting SEIU to have Sahle complete and submit
4·

questionnaires describing Sahle's duties in the respiratory therapy and anesthesia departments.
Sahle did so. 	ACMC's labor relations director then approved back pay for Sahle's 2008 time
in the anesthesia department, and so notified SEIU. No promotion or transfer was approved.
ACMC posted no anesthesia technician position. Sahle did not seek certification.
In December 2008, SEIU informed Sahle about the back pay. Before Sahle could
retrieve his back pay, ACMC's labor relations director reversed his earlier decision. 	Citing
alleged reports from the anesthesia department chair and the respiratory therapy department
manager, ACMC's labor relations director claimed that Sahle had not performed anesthesia
department tasks independently but instead merely shadowed another worker. Thus, claimed
ACMC, Sahle was due no back pay.
In January 2009, Sahle' s supervisor in the respiratory therapy department directed him
to cease reporting to the anesthesia department. 	Sahle renewed the effort to obtain a part-time
position as an anesthesia technician to which he believed he was entitled. On his behalf, SEIU
contacted ACMC's labor relations director to arrange a meeting, including respiratory therapy
and anesthesia department officials, to sort out Sahle's situation. The meeting v1as scheduled
for late February 2009. ACMC's labor relations director attended, as did Sahle, the SEIU
worksite organizer, Sahle's respiration therapy department supervisor and Sahle's respiration
therapy department manager. The anesthesia department chair, who had approved Sahle's
training and his 2008 time in the anesthesia department, did not attend. 	the meeting,
ACMC officials claimed that ACMC had no budget for a part-time anesthesia technician
position and denied that ACMC ever had agreed to award Sahle such a position. They
demanded documentation of Sahle's alleged arrangement. Neither Sahle nor SEIU could
5

produce documentation. ACMC then offered Sahle a much-reduced amount
of
back pay,
which Sahle declined.
Sahle pressed SEIU for documentation
of
his arrangement. 	SEIU's worksite organizer
referred him to the SEIU supervisor. In late March 2009, Sahle met with the SEIU supervisor,
and requested that she produce documentation supporting his arrangement. He asserted the
documentation would be found in the files kept by the SEIU worksite organizers previously
assigned to ACMC. 	SEIU's supervisor testified that she inquired
of
the worksite organizer
who had attended with Sahle the August 2007 meeting at which the training regime was
confirmed. There were no records. 	SEIU's supervisor communicated this to Sahle.
SEIU' s memorandum
of
understanding (MOU) provides, inter alia, that an employee
may challenge by grievance a failure to grant a requested reclassification, where the employee
believes he/she is being worked out
of
classification and that there has been a substantial
change in the employee's duties not covered by the classification. Sahle filed no such
grievance, nor did he request that SEIU do so on his behalf.
PERB's Complaint
On or about April
8,
2009, Sahle filed his unfair practice charge. On or about
March 17, 2010, PERB's Office
of
the General Counsel issued a complaint, alleging in
pertinent part:
4. 	On or about January 2008,[4] [SEIU] failed to provide
Charging Party with documentation
of
an agreement for
Charging Party to be promoted to the position of Anesthesia
Technician II following completion
of
required training.
At the hearing, the ALJ amended this allegation by changing the date to January 2009.
6

5. 	On or about January and February 2009, [SEIU] failed
and refused to respond to Charging Party's inquiries regarding
his proposed transfer.
6. 	On or about February 24, 2009, [SEIU] advised Charging
Party that it would try to obtain documentation of an agreement
for Charging Party to be promoted to the position of Anesthesia
Technician II following completion of required training;
subsequently, [SEIU] failed and refused to respond to Charging
Party's inquiries regarding his proposed promotion and failed
to obtain or provide the requested information.
At the hearing, SEIU moved to dismiss as untimely the allegation in paragraph 4 concerning
conduct in January 2008. The ALJ thereupon amended the complaint to restate the allegation
as occurring in January 2009. Nonetheless, the ALJ permitted Sahle to adduce background
evidence regarding alleged conduct of SEIU's agents in and before January 2008. 5 No other
amendments were proposed or made to the PERB complaint.
DISCUSSION
We consider first our jurisdiction. The complaint alleges breach of the duty of fair
representation, and violation of MMBA sections 3506 and 3509(b) and PERB
Regulation 32604(b ). The :r-..1MBA.. imposes on organizations exclusively representing
employees the duty of fair representation. (International Association of Machinists (Attard)
(2002) PERB Decision No. 1474-M (Attard); Hussey v. Operating Engineers Local Union
No. 3 (1995) 35 Cal.App.4th 1213 (Hussey).) Accordingly, PERB has jurisdiction over
complaint's allegations.
5 We note that such background evidence is appropriately admitted. (Local Lodge
No. 1424, 	International Association of Machinists, AFL-CIO v. National Labor Relations
Board (1960) 362 U.S. 411,416 [events occurring prior to the limitations period may be
utilized to shed light on the true character of matters occurring within the limitations period].)
7

Under the MMBA an employee organization must represent fairly the employees whom
it exclusively represents. (Attard; Hussey.) A breach
of
the duty
of
fair representation is
established where the employee organization's conduct is arbitrary, discriminatory or in bad
faith. 	(Redland Teachers Association (Faeth & McCarty) (1978) PERB Decision No. 72;
Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124
(Rocklin); Vaca
v.
Sipes (1967) 386 U.S. 171.)6 The duty applies to the conduct
of
a union
undertaken in the exercise
of
its exclusive right to represent employees, viz., either negotiating
a contract or MOU (Ford Motor
Co.
v.
Huffman (1953) 345 U.S. 330), or enforcing employee
rights under a procedure vesting in the union the exclusive right to access at least one step in
the grievance process, customarily the final step or arbitration. (Conley
v.
Gibson (1957)
355 U.S. 41.)
We next examine PERB's complaint in light
of
the hearing record.
Paragraph 4
of
PERB's complaint as amended alleges that "on or about January 200[9]
[SEIU] failed to provide [Sahle] with documentation
of
an agreement for [Sahle] to be
promoted to the position
of
Anesthesia Technician II foliowing completion
of
required
training." Whether SEIU had a fair representation duty to provide Sahle with the
documentation of "an agreement to be promoted" depends on whether such an agreement
existed. We conclude it did not.
The hearing record establishes that in August 2007, at Sahle's request, SEIU's worksite
organizer attended a meeting, also attended by 	various ACMC officials. At the
meeting, an arrangement was discussed for Sahle to be assigned part-time for training to the
6 PERB relies on federal private sector labor relations case law when interpreting
analogous provisions of California's public sector labor relations statutes. (Fire Fighters
Union v. City
of
Vallejo (1974) 12 Cal.3d 608.)
8

ACMC's anesthesia department.7 Prior to August 2007, Sahle and ACMC's anesthesia
department chair had reached already an understanding about the training, and SEIU' s
worksite organizer was invited to the August 2007 meeting not to negotiate an agreement for
Sahle, but to obtain SEIU' s assent for the arrangement. We conclude, therefore, that SEIU' s
worksite organizer attended the August 2007 meeting with Sahle in a ceremonial capacity
representing SEIU, and not as Sable's representative for negotiating the arrangement. 8
Notwithstanding this ceremonial role, however, we conclude that during the August 2007
meeting SEIU' s worksite organizer operated pursuant to SEIU' s exclusive status, implicating
SEIU's duty
of
fair representation.
The hearing record also establishes that the arrangement (the "agreement" alleged in
PERB's complaint) finalized at the August 2007 meeting was for Sable's training, to be
accomplished by a part-time reassignment from his position in the respiratory therapy
department to a part-time training assignment in the anesthesia department. 	SEIU9 disputes
Sahle's contention that the arrangement included an "agreement to be promoted" into a part-
time position in the anesthesia department.
We conclude that the preponderance
of
evidence favors the account urged by SEIU,
namely, that at the August 2007 meeting there was no "agreement to be promoted" but merely
7 Prior to August 2007, a different SEIU worksite organizer had consulted with Sahle
and/or ACMC officials, opining that
if
ACMC were to open a position in the anesthesia
department the new position would have to be posted for applications under the MOU vacancy
prov1s1ons.
8 An employer which negotiates separately with an employee over terms and conditions
of employment, absent sanction by the union, risks a charge of bypassing the union.
(Lake Elsinore School District (1987) PERB Decision No. 646.)
9 ACMC's labor relations director testified as well in support of the SEIU interpretation
of the August 2007 arrangement.
9

an arrangement for training which thereafter might, or might not, include a promotion to a part
time anesthesia technician position, depending upon uncertain future events, to wit, ACMC's
posting a position, Sahle's successful completion
of
the training, and Sahle's certification by
the State for anesthesia work. The allegation
of
an "agreement to be promoted" in paragraph 4
of
PERB' s complaint is not proved up and shall be dismissed. 	We look next at paragraph 5.
Paragraph 5
of
PERB's complaint as amended alleges that "[o]n or about January and
February 2009, [SEIU] failed and refused to respond to [Sahle's] inquiries regarding his
proposed transfer."
The hearing record establishes that by January and February 2009 SEIU's then-current
worksite organizer was well aware
of
the arrangement Sahle believed he had made for a
promotion, and had sought in the fall
of
2008, albeit unsuccessfully, to secure for Sahle
implementation
of
that arrangement. Fall 2008 discussions between SEIU and ACMC's labor
relations director devolved from an initial agreement for back pay, to ACMC denying that
there was an arrangement and denying as well that Sahle ever had worked other than as a
trainee in the anesthesia assignment. During January and February 2009, Sahle did inquire
regularly
of
SEIU regarding his perceived right to an anesthesia department position. 	SEIU
was responsive, although not as responsive as Sahle expected or desired. 	SEIU's worksite
orgarnzer, 	cooperation with the ACMC labor relations director, arranged a meeting with
ACMC officials and Sahle to discuss Sahle's situation. At the February 24, 2009 meeting
SEIU represented Sahle and sought, again unsuccessfully, to convince ACMC to agree to the
arrangement Sahle believed 	had 	for a promotion. ACMC again denied that 	ever
was an arrangement for promotion. Sahle rejected ACMC's reduced offer of back pay for his
2008 time in the anesthesia department.

We conclude that the preponderance of evidence demonstrates that SEIU did respond to
Sahle' s inquiries. The allegation in paragraph 5 of PERB' s complaint, that SEIU "failed and
refused" to respond to Sahle's inquiries, is not proved up and shall be dismissed. We look next
at paragraph 6.
Paragraph 6 of PERB's complaint as amended alleges that "[o]n or about February 24,
2009, [SEIU] advised [Sahle] that it would try to obtain documentation of an agreement for
[Sahle] to be promoted to the position of Anesthesia Technician II following completion of
required training; subsequently, [SEIU] failed and refused to respond to [Sahle's] inquiries
regarding his proposed promotion and failed to obtain or provide the requested information."
The hearing record establishes that following the February 24, 2009 meeting with SEIU
and ACMC officials, Sahle requested that SEIU provide him documentation he believed
existed of the agreement for him to be promoted following his training in the anesthesia
department. 	SEIU's worksite organizer referred Sahle to the SEIU supervisor, with whom
Sahle met in March 2009. Following that meeting the SEIU supervisor requested that the
SEIU worksite organizer who had attended the August 2007 meeting with Sahle provide the
documentation. No documentation was found, and the SEIU supervisor so notified Sahle.
We conclude that the preponderance of evidence demonstrates that following
February 24, 2009, SEIU did respond to Sahle's inquiries and did attempt to provide
documentary information in its possession supporting the arrangement Sahle believed he had
made for promotion to the anesthesia technician position. There was no such information, and
so informed Sahle. 	s complaint alleges as 	that SEIU failed to obtain such
information, and in any event, did not provide such information to Sahle. As to these latter
allegations, we rely on our conclusion discussed above in respect to paragraph 4 of 	's
11

complaint, namely, that the preponderance
of
evidence indicates there was no "agreement to be
promoted." We conclude therefore that SEIU did not fail to obtain or to provide to Sahle
"documentation
of
an agreement for [Sahle] to be promoted to the position
of
Anesthesia
Technician II." The allegations in paragraph 6
of
PERB' s complaint, that SEIU "failed
and
refused to respond to [Sahle's] inquiries regarding his proposed promotion and failed to obtain
or provide the requested information," are not proved up and shall be dismissed.
In sum, we conclude that a preponderance
of
the evidence fails to support the violations
alleged in
PERB'
s complaint. These allegations shall be dismissed.
We turn now to the violation determined by the ALJ, namely, that SEIU breached its
duty
of
fair representation to Sahle by neither initiating, nor grieving a denial of, a
reclassification study request on behalf
of
Sahle pursuant to Section 325
of
the MOU.
Contrary to the
ALJ's
conclusion, we conclude that this violation was unalleged and not fully
litigated. 	We explain.
PERB will consider an unalleged violation
if
the following requirements are met:
( 1) adequate notice and opportunity to defend has been provided the respondent; (2) the
conduct is intimately related to the subject matter
of
the complaint and part
of
the same course
of
conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have
had
the
opportunity to examine and be cross examined on the issue. (Fresno County Superior Court
(2008) PERB Decision No. 1942-C; Tahoe-Truckee Unified School District (1988) PERB
Decision No. 668 (Tahoe-Truckee); Eureka City School District (1985) PERB
Decision No. 481.) Absent
	of
these 	will not consider the unalleged
violation. (Tahoe-Truckee.)
12

Our unalleged violation policy affords all parties litigating disputes under California's
public labor relations statutes adequate notice and a fair opportunity to litigate their claims.
PERB adjudicates an unalleged violation only where the foregoing criteria are met.
We conclude there is insufficient evidence in the hearing record to justify our
consideration
of
the unalleged violation, viz., that SEIU breached its duty
of
fair representation
to Sahle by not requesting, and/or failing to grieve a denial of, a reclassification study request
on behalf
of
Sahle pursuant to Section 325
of
the MOU.
1.
	SEIU had insufficient notice that the unalleged violation was being litigated and had
no opportunity to defend.
The transcript
of
the hearing before the ALJ indicates that both Sahle and SEIU
believed the dispute turned on the existence
of
an agreement by ACMC to train Sahle and
thereafter to place him in a part-time position in the anesthesia department. PERB's complaint
alleged existence
of
such agreement and faulted SEIU for making insufficient effort to assist
Sahle in establishing the agreement's existence. Neither the charge nor the complaint alleged
that Sahle sought reclassification pursuant to the MOU, or that SEIU could or should have
sought reclassification for Sahle pursuant to the MOU, or that SEIU could or should have
grieved ACMC's failure to reclassify Sahle.
2. 	The conduct was not intimately related to the subject matter
of
the complaint,
although it was part
of
the same course
of
conduct.
The complaint's subject matter concerned documentation
of
an agreement Sahle
believed had been made, and Sahle' s allegations that SEIU had not provided the
had failed to respond to his requests 	the documentation. We conclude
that neither the charge nor the complaint alleged that Sahle sought reclassification pursuant to
the MOU, or that SEIU could or should have sought reclassification for Sahle pursuant to the
13

MOU, or that SEIU could or should have grieved ACMC's failure to reclassify Sahle.
Although the conduct
of
SEIU deemed by the ALJ to constitute a violation was part
of
the
same course
of
conduct, we conclude that this is not sufficient, standing alone as it does, to
enable us to consider the unalleged violation.
3. The reclassification issue was not fully litigated.
We conclude the reclassification issue was not fully litigated. 	Sahle made no claim that
SEIU should have, or failed to, pursue reclassification on his behalf. Had SEIU known
that
its
representation obligations to Sahle allegedly included a ministerial duty to press ACMC for
Sahle's reclassification, SEIU might have adduced evidence on this issue. It did not.
	The
proposed decision acknowledges this expressly, observing that SEIU did not present evidence
going to this issue.
4. 	The parties had no opportunity to examine and cross examine on
provision relating to reclassification.
the MOU
Neither party understood during the hearing the significance
of
the MOU provision
(Section 325) supporting the ALJ' s theory
of
SEIU' s violation
of
its duty
of
fair representation.
Sahle built his case around his belief in the existence
of
an arrangement, which was external to
the MOU. SEIU introduced the MOU to explain workplace practices regarding transfers and
promotions, such as posting
of
positions, and the right to compensation for out-of-class work.
Had Sahle or SEIU understood the 	s theory 	violation, 	or both could
presented evidence or cross-examined witnesses on the context surrounding the practices under
Section 325. Neither did so.
In sum, we conclude that neither Sahle's unfair practice charge nor PERB's complaint
placed SEIU on notice of the aliegation that it had a ministerial duty to pursue, and to grieve
denial of, a reclassification study on behalf of Sahle. Sahle proceeded on his belief that he had
14

a "deal" with the anesthesia department chair to receive training and thereafter a part-time job
in the anesthesia department. Sahle wanted SEIU to enforce his deal. When the ACMC
declined to honor the deal, Sahle faulted SEIU, which was unable to provide him written
documentation for his deal. Both Sahle's unfair practice charge and PERB's complaint allege
only that SEIU failed to produce documentation
of
Sahle's deal. Neither mentions
reclassification, and neither mentions a grievance. In accordance with our unalleged violation
policy, we decline to entertain the unalleged violation concerning reclassification.
10
In reaching this determination we do not hold that individual employees are responsible
to ascertain for themselves all available contractual remedies. Upon being presented by an
employee with a possible grievance, the exclusive representative has a duty to investigate and
make an "honest reasonable determination" whether to pursue a grievance, which
determination may not be arbitrary, discriminatory nor taken in bad faith.
11
We conclude
rather that in this case SEIU did not violate the MMBA as alleged in the charge and the
complaint, and that under our policy we may not consider the unalleged violation determined
by the ALJ.
At the hearing, Sahle and SEIU addressed the allegations in his charge and PERB' s
complaint. 	We have assessed those alleged violations and conclude Salhe' s proof fails to
establish a violation. We shall dismiss them. As for the unalleged violation, we have
The ALJ suggests we may entertain here the unalleged violation, and sustain his
conclusions, on the basis
of
PERB Regulation 32645, authorizing the Board to "disregard any
error or defect in the original or amended charge, complaint, answer or other pleading which
does not affect the substantial rights of the parties." We decline the invitation to do so 	for
the reasons outlined above, while reserving the right to proceed in that fashion in an
appropriate case.
II International Union
of
Operating Engineers, Local 39 (Siroky) (2004) PERB
Decision No. 1618-M; Sacramento City Teachers Association (Fanning, et al) (1984) PERB
Decision No. 428; Rocklin.
15

concluded that under our policy we may not entertain it. The parties lacked notice, the
allegations were not litigated and the MOU provision at the core of the ALJ's theory lacked
necessary evidentiary context. Consequently, the unalleged violation may not be the basis for
a conclusion that SEIU breached its duty of fair representation to Sahle.
CONCLUSION
Based on the findings of the ALJ, as supplemented herein, and the conclusions of law
herein, and on the entire record in this case, we hold that Sahle has failed to prove by a
preponderance of evidence the violations of the MMBA alleged in PERB' s complaint. We
further hold that the violation of the MMBA determined by the ALJ was unalleged, and that
under our unalleged violation policy we may not consider it. We therefore reverse the
proposed decision and dismiss the complaint.
ORDER
The complaint and the underlying unfair practice charge in Case No. SF-CO-199-M are
hereby DISMISSED.
Chair Martinez and Member DowdinCalvillo joined in this Decision.
16