Service Employees International Union, United Healthcare Workers West (Lacy) (PERB 2486M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CINDY LACY,
Charging Party,
v.
SERVICE EMPLOYEES INTERNATIONAL
UNION UNITED HEALTHCARE WORKERS
WEST,
Respondent.
Case No. SF-CO-355-M
PERB Decision No. 2486-M
June 30, 2016
Appearances: Cindy Lacy, on her own behalf; Weinberg, Roger & Rosenfeld by Xochitl A.
Lopez, Attorney, for Service Employees International Union United Healthcare Workers West.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by Cindy Lacy (Lacy) to the proposed decision (attached) of a
PERB administrative law judge (ALJ) dismissing the complaint and Lacy’s unfair practice
charge against Service Employees International Union United Healthcare Workers West
(SEIU-UHW). The complaint alleged that SEIU-UHW breached its duty of fair representation
under the Meyers-Milias-Brown Act1 and PERB regulations2 by not timely filing and, once
filed, not pursuing a grievance challenging Lacy’s termination from employment by the
Washington Hospital Healthcare System (Hospital) on or about January 30, 2014.
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 31001 et seq.

Following a formal hearing and briefing by the parties, the ALJ found that SEIU-UHW had
not breached its duty of fair representation as its conduct toward Lacy was not arbitrary,
discriminatory, nor dishonest. The ALJ found that SEIU-UHW reasonably and honestly exercised
its discretion when it investigated Lacy’s date of hire to determine whether she had completed
her probationary period, and when it investigated the circumstances surrounding Lacy’s
termination from employment. The ALJ also found no evidence that SEIU-UHW
discriminated against Lacy for any MMBA-protected conduct or that it dealt in bad faith
when it calculated Lacy’s probationary period from the date of her orientation, the first day of
paid service she performed for the Hospital, as opposed to the earlier date when Lacy had
received a conditional offer of employment from the Hospital.
Lacy’s exceptions assert various errors in the ALJ’s factual findings and reasoning.
SEIU-UHW’s response argues that Lacy’s exceptions are without merit and urges the Board to
adopt the proposed decision. The Board has reviewed Lacy’s exceptions, SEIU-UHW’s
response, the proposed decision and the entire record in light of applicable law. Based on this
review, we conclude that the ALJ’s factual findings are supported by the record and that her
conclusions of law are well-reasoned and in accordance with applicable law. Except as
otherwise noted below, we adopt the proposed decision as the decision of the Board itself,
subject to the following discussion of Lacy’s exceptions.
FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2013, the Hospital offered Lacy employment, which was conditioned
on her passing a background check. Her first day of paid employment was not until
November 11, 2013, when she attended an orientation for new hires.
On January 27, 2014, Lacy was removed from her scheduled shift and investigated for
allegations that she had fallen asleep on the job. On January 30, 2014, Lacy filed an internal
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complaint alleging that the investigation was discriminatory. The same day, the Hospital
mailed Lacy written notice that her employment would be terminated, effective immediately.
On various dates in February 2014, Lacy spoke with representatives of SEIU-UHW,
including SEIU-UHW Coordinator Jean Cronin (Cronin), each of whom advised Lacy that,
because she had not completed her 90-day probationary period, she was subject to at-will
termination and nothing could be done to protest her termination. On February 28, 2014,
Cronin also advised Lacy that, even if a contract violation had occurred, a grievance would
now be untimely, as it must be filed within 14 days of the event being grieved.
On March 13, 2014, Lacy again contacted Cronin with the additional allegation that her
termination violated the non-discrimination clause in the contract. On the basis of this new
information, Cronin filed a grievance on Lacy’s behalf, which the Hospital denied as untimely.
Cronin also investigated Lacy’s allegations of discrimination and determined that there was no
evidence to support the grievance, and that Lacy had admitted to “nodding off” during one of
her shifts. On Cronin’s recommendation, SEIU-UHW withdrew the grievance, which Lacy
appealed through SEIU-UHW’s internal review process. On October 6, 2014, SEIU-UHW
notified Lacy that it would not pursue the grievance and Lacy commended the present case
against SEIU-UHW on March 2, 2015.
DISCUSSION
Whether considered as a failure to file a timely grievance or, once filed, as a decision
not to pursue the matter further, the gravamen of Lacy’s charge is that SEIU-UHW acted
arbitrarily or dishonestly in determining that Lacy was a probationary employee with at-will
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status as of the date of her termination.3 Lacy contends that SEIU-UHW breached its duty of
fair representation by not considering the number of hours she had worked for the Hospital,
and instead relying solely on the fact that she had been employed for a period of less than
90 days when she was terminated. However, the record demonstrates, and Lacy’s exceptions
acknowledge, that under the applicable Memorandum of Understanding (MOU), her
probationary period would be the longer of either 90 calendar days or 320 hours worked since
the date of hire. Thus, under SEIU-UHW’s interpretation of the MOU, regardless of how
many hours Lacy had worked, she was obligated to complete a probationary period of at least
90 days before obtaining regular status. Lacy has offered no evidence to suggest that this
interpretation was arbitrary or advanced in bad faith. Even if SEIU-UHW’s interpretation were
incorrect, Lacy has not shown that any reasonable alternative interpretation of the MOU would
assist Lacy in this case and we therefore decline to disturb the ALJ’s factual findings on this
issue. (Los Angeles Unified School District (2015) PERB Decision No. 2432, p. 5; Fremont
Unified School District (2003) PERB Decision No. 1528, p. 3.)
Lacy also contends the ALJ erred in finding that the Hospital terminated her employment
on January 30, 2014. Although the Hospital’s notice of termination gave January 30, 2014 as
its effective date, according to Lacy, it was not mailed until February 1, and not received by
Lacy until February 3, 2014. We disagree. The ALJ found that SEIU-UHW’s representatives
3 Aside from one conclusory statement in her post-hearing brief, Lacy does not allege
that SEIU-UHW discriminated against her. Rather, the thrust of her allegation appears to be
that SEIU-UHW was negligent by not fully investigating whether she had completed her
probationary period before her termination and/or that it acted in bad faith by withdrawing the
grievance filed on her behalf. Lacy’s exceptions characterize her discrimination allegations as
separate from the present unfair practice case and acknowledge that the purpose of the PERB
hearing was to prove her case against SEIU-UHW not her discrimination allegations against
the Hospital. Because the charge does not allege and the record contains no evidence of
discriminatory conduct by SEIU-UHW, we find it unnecessary to consider that issue and
decline to adopt that portion of the proposed decision.
4

conducted a genuine investigation and that, after determining that Lacy was still a probationary
employee based on a reasonable interpretation of the MOU, concluded that a grievance
challenging her termination stood little to no chance of success. Lacy cites no evidence in
the record to undermine this finding nor offers any explanation of how her alternative version
of events would alter the outcome. Even assuming the proposed decision erred in finding
January 30, 2014 as the date of her termination, as of February 3, 2014, Lacy remained a
probationary employee and subject to at-will termination. We reject this contention as well.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CO-355-M are
hereby DISMISSED.
Members Winslow and Gregersen joined in this Decision.
5

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CINDY LACY,
Charging Party,
v.
SERVICE EMPLOYEES INTERNATIONAL
UNION UNITED HEALTHCARE WORKERS
WEST,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CO-355-M
PROPOSED DECISION
(February 29, 2016)
Appearances: Cindy Lacy, in propria persona; Weinberg, Roger & Rosenfeld, by Xochitl
Lopez, Attorney, for Service Employees International Union United Healthcare Workers West.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
Charging Party filed the above-referenced unfair practice charge on March 2, 2015,
alleging that the Respondent breached its duty of fair representation when it failed to file a
timely grievance on her behalf grieving her termination from the Washington Hospital
Healthcare System on January 30, 2014.1 Respondent filed a response to the charge on May 1,
2015, disputing the factual allegations in the charge and denying any violation of the duty of
fair representation. On July 24, 2015, PERB issued a complaint alleging a breach of the duty
of fair representation arising from the Respondent’s October 6, 2014 decision to cease
processing a grievance that had been filed on Charging Party’s behalf. Respondent filed an
Answer to the Complaint on August 18, 2014. An informal settlement conference was held on
1 Charging Party claims that she was dismissed on February 3, 2014, the date she
received notice of the termination. The written notice of termination, attached to the unfair
practice charge, states that her termination is effective on January 30, 2014.

August 19, 2015, but the matter was not settled. A Formal Hearing was held on November 12,
2015. An order for the transcript was placed on November 13, 2015.
On November 30, 2015, counsel for Respondent contacted me by e-mail to inquire
whether the transcript order had been placed, as she had not yet received a copy. A copy of the
transcript was subsequently received by Respondent on December 2, 2015. On December 8,
2015, Charging Party contacted me to notify me that she had not yet received a copy of the
transcript, (she had received a notice of attempted delivery from her postal carrier) and
requested assistance. Based on the scant information provided, Charging Party was advised to
pursue the matter with her local postal carrier, and to inform the ALJ upon her receipt of the
transcript. Charging Party subsequently received a copy of the transcript on December 9,
2015. As a result of the delay in receipt of her transcript, Charging Party was provided
additional time to file her brief, and although Respondent was required to file its brief
according to the original agreed-upon schedule, Respondent was given leave to withhold
service of its brief until the later filing date. This matter was fully briefed and submitted for
determination on January 4, 2016.
Meanwhile, on December 29, 2015, Charging Party filed a Motion To Correct The
Transcript, asserting a number of inaccuracies in the transcript that was produced.
Respondent’s response to the Motion to Correct the Transcript was timely filed on January 14,
2016.
FINDINGS OF FACT
On October 14, 2013, Charging Party was presented with a written offer of employment
from the Washington Hospital Health Care System (Hospital) for a full-time position as a
Certified Nurse Asst. [sic]. The letter did not include a start date, as the offer was contingent
2

________________________
upon Charging Party passing the Hospital’s background check. Charging Party was notified
that she would be given an orientation on November 11, 2013.
Charging Party attended an orientation on November 11, 2013, which was her first day
of paid service for the Hospital.2 At the orientation, Charging Party was provided a copy of the
Service Employees International Union-Hospital Memorandum Of Understanding (MOU), and
signed a document titled, “SEIU United Healthcare Workers-West Membership
Application/Payroll Deduction Authorization/Cope Check-off Authorization.” This document
lists Charging Party’s date of hire as November 11, 2013.
Jean Cronin, Coordinator for Service Employees International Union/United Healthcare
Workers West (SEIU/UHWW), also attended the orientation on November 11, 2013. At the
time, she was acting as the main representative for the SEIU/UHWW-represented employees at
the Hospital, which includes Certified Nurse Assistants. Cronin spoke at the orientation to
inform the new employees of their rights under the MOU, and informed employees that they
would be considered probationary for the first 90 days of their employment and during that
time they could be terminated for any reason.
On January 27, 2014, Charging Party received a call from her supervisor, informing her
that she was being taken off the schedule and placed under investigation, stemming from
allegations that Charging Party had, among other things, fallen asleep on the job. During the
conversation with her supervisor, Charging Party admitted that she had “nodded,” but denied
that she had slept during a recent work shift. At the hearing, Charging Party explained the
incident in question: she had been working a double shift and when a coworker pointed out to
2 Charging Party asserted at the hearing that she had worked for the Hospital for years
through a registry. She clarified, however, that while working through the registry, she was
not paid directly by the Hospital. From this scant information, I conclude that Charging Party
has not demonstrated employment by the Hospital at any time prior to November 11, 2013.
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her that she was “nodding,” she went to the cafeteria for some coffee and completed her double
shift without further incident.
On January 30, 2014, Charging Party filed a complaint with the Hospital’s Human
Resources office, alleging discrimination. Also on January 30, the Hospital sent Charging
Party written notice of termination. The Hospital sent Cronin a copy of the notice of
termination, but Cronin did not recall seeing it until it was brought to her attention by Charging
Party. According to Charging Party, she did not receive a copy of the notice of termination
until February 4, 2014.
Charging Party testified that on February 3 and 11, she called the union and spoke with
“Lee” on the phone.3 Both times, Lee informed her that she had not completed her
probationary period, and that because she had not completed her 90 day probationary period,
the Union could not help her.
Charging Party reached out to Cronin on February 28, 2014, by leaving her a voicemail.
Cronin telephoned Charging Party on March 4. During their conversation on March 4,
Charging Party provided Cronin the facts of her termination and requested the union’s
assistance to grieve the termination. When Cronin asked Charging Party her date of hire,
Charging Party responded that she was uncertain; Cronin’s records, which include Charging
Party’s union membership card and the Hospital’s seniority list, showed Charging Party’s hire
date as November 11, 2013. Cronin did not consider the number of hours that Charging Party
had worked in determining that she was still in her probationary period at the time she was
terminated. Cronin’s understanding of the MOU is that the probationary period ends at the
longer of 90 days or 320 hours. In other words, Cronin understands that the contract requires
3 Lee was not identified by either party.
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an employee to work at least 90 days, but if they have not fulfilled the minimum 320 hours
during that 90 day period, their probationary period may be extended until they have
completed 320 hours. Cronin counseled Charging Party that because the termination occurred
while Charging Party was still within her probationary period, the employer could terminate
her for any reason. Cronin also informed Charging Party that, even assuming there were
grounds to file a grievance, the contractual period for filing a timely grievance had already
expired.
On March 13, Charging Party again contacted Cronin to inform her that she (Charging
Party) had additional information about her termination which led her to believe that she had
been fired in violation of the non-discrimination clause in the MOU. When Cronin attempted
to get more information about the nature of the alleged discrimination against Charging Party,
Charging Party stated that the other nurses didn’t like her. Cronin told Charging Party that she
would investigate the matter and file a grievance on her behalf.
On March 14, 2014,4 Cronin filed a notice of grievance in the Hospital’s Human
Resources Department. The Grievance states, in its entirety:
Dear Bryant Welch
This will serve as notice of grievance.
Name of grievant: Cindy Lacy
Department: Nursing
Violation: Unjust termination and discrimination
4 Charging Party recalls a phone conversation with Cronin on March 14 during which
Cronin agreed that Charging Party had completed her probationary period by the date of her
termination, and also that Cronin stated she had never received a copy of the notice of
termination. Cronin had no recollection of this particular conversation, though stated that once
the grievance was filed, she and Charging Party had several phone conversations while the
Union investigated her allegations.
5

Articles: Applicable articles are Article 7 Employee Rules, and
Article 5 No Discrimination
Resolution: Requested resolution is to make the employee whole
and return her to work.
Charging Party recalled an additional conversation with Cronin on March 17, 2014, in
which Cronin agreed that the employer had been “messing with” Charging Party, and stated
that she would file a grievance right away. Cronin had no specific recollection of a
conversation with Charging Party on March 17. Notably, however, Cronin had already filed a
grievance on Charging Party’s behalf by the time this conversation allegedly took place.
The employer denied the grievance on March 18, citing the timelines in the MOU as
well as the fact that the grievant was still within her probationary period at the time she was
terminated. Cronin advanced the grievance through all the contractual steps up to arbitration.
While this process was underway, Cronin spoke with several Union stewards assigned to
Charging Party’s work floor, and concluded that there was no strong evidence demonstrating
that Charging Party was subjected to discriminatory treatment and also that Charging Party had
admitted to sleeping or nodding off during her work shift. Meanwhile, because the employer
had denied the grievance on timeliness grounds, it had refused to participate in the grievance
process or to provide any information to the union regarding the reason for Charging Party’s
termination. Thus, Cronin’s investigation included only the information provided by Charging
Party herself and by the union stewards on Charging Party’s work floor. On the basis of this
investigation, Cronin concluded that Charging Party’s case was weak, as it lacked proof of any
contract violations, and recommended to the union that Charging Party’s grievance be
withdrawn. Written notice of the union’s decision to withdraw the grievance was sent to
Charging Party on May 29, 2014. The letter states, in relevant part:
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This letter is to inform you that after careful consideration that
included a thorough review of the details of your case, input from
member leadership and staff, and knowledge of the interpretation
of the applicable collective bargaining agreement, SEIU UHW
(“the Union”) does not believe that we are likely to prevail in
arbitration and subsequently do not intend to further pursue the
above referenced grievance to arbitration.
Charging Party appealed the Respondent’s decision to withdraw her grievance on June
17, 2014, and participated in a hearing before the Union’s appeal panel. On October 6, 2014,
Respondent sent Charging Party written notice of the decision of the appeal panel, denying the
appeal. The union’s appeal panel concluded the following:
During the hearing, there was no testimony, nor additional
information, nor supplemental evidence provided that would
support over turning [sic] the original recommendation to
withdraw this grievance. For these reasons, this panel has
determined that the Union is not likely to prevail in arbitration.
The MOU between the Hospital and SEIU/UHWW contains the following relevant
provisions:
2. HIRING AND PROBATIONARY PERIOD
B. A probationary period of ninety (90) days from date of first
hiring shall be established for new employees, except that, for per
diem employees, this probationary period will be the longer of 90
calendar days or 320 hours worked. During such probationary
period, the employees may be discharged for any reason which,
in the opinion of the Hospital, is just and sufficient.
5. NO DISCRIMINATION
The Hospital and the Union agree that neither the Union nor the
Hospital shall discriminate in respect to employment and
continuing employment, by reason of Union activity, political
affiliation, race, color, creed, national origin, handicap or veteran
status, nor, to the extent provided by State, Federal, and County
law, by reason of sex, age, or sexual orientation.
24. EMPLOYEE COMPLAINTS AND GRIEVANCES
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B. Notwithstanding any of the above procedure, no grievance or
complaint shall be considered unless it has first been presented in
writing within fifteen (15) days of the alleged occurrence thereof.
. . .
26. SENIORITY
A. Seniority Defined
1) A full-time or part-time employee’s seniority is determined by
his/her most recent date of employment.
ISSUES
1. Has Charging Party established grounds to correct the transcript? and
2. Did the Union breach its duty of fair representation when it withdrew the grievance filed on
Charging Party’s behalf?
CONCLUSIONS OF LAW
I. Jurisdiction
Charging Party is a public employee as defined by MMBA section 3501, subdivision
(d). Respondent is the recognized employee organization of an appropriate unit of employees
of the Washington Hospital Health Care System, as defined by MMBA section 3501,
subdivision (b). Washington Hospital Health Care System is a public agency as defined by
MMBA section 3501, subdivision (c). Accordingly, I find that PERB has jurisdiction over the
parties to this case.
II. The Motion To Correct The Transcript
PERB Regulation 32209, Correction of Transcript, states:
A motion to correct alleged errors in the transcript of a
proceeding before a Board agent must be filed with the Board
agent presiding at the proceeding within 20 days of the date of
service of the transcript. The motion shall specify the alleged
errors and provide a proposed corrected version. Within 10 days
following the date of service of such a motion, any party may file
8

with the Board agent a response to the motion. Service and proof
of service of the motion and of any response to a motion pursuant
to Section 32140 are required. Failure to file a timely motion to
correct will be deemed a waiver of any objection to the accuracy
of the transcript.
On December 29, 2015, Charging Party filed a Motion To Correct the Transcript at
pages 5, 8, 10, 13, 18, 31, 55, 88, 120, and 122, as well as the official transcriber’s declaration,
and the index. Charging Party also notes a number of incomplete statements which reflect
actual statements from the hearing. She asks that testimony regarding the basis for her
complaint against the other nurses at the Hospital be removed from the transcript and asserts
that she only testified with regard to the union complaint. In place of the statements that
Charging Party requests to be removed, she provides proposed corrected versions. Charging
Party’s proposed corrections include additional evidence not presented at the hearing as well as
statements that were not uttered at the hearing.
After a review of the audio recording of the hearing and comparison against the written
transcript provided, I find that the written transcript is an accurate account of the oral
testimony provided at the hearing and I hereby DENY the Motion to Correct the Transcript.
III. The Duty of Fair Representation
Charging Party is angry that the Union did not do more to help her. From her
perspective, she was unfairly disciplined when she was placed on leave. When she complained
to the Hospital’s Human Resources Department about discrimination, the Hospital mailed her a
notice of termination. She sought the Union’s assistance several times before the contractual
period for filing a grievance had expired, and was incorrectly informed that she had not
completed her probationary period and there was nothing the Union could do to assist her.
When she finally got Cronin’s attention to the matter, Cronin filed a poorly written and
9

untimely grievance on her behalf. Cronin then failed to properly investigate Charging Party’s
claims that she was discriminated against and that she had completed her probationary period,
and the Union’s decision to withdraw the grievance was based on these misconceptions. As a
result of the Union’s misfeasance, Charging Party lost her job.
From the Union’s perspective, it went above and beyond what was required when it
filed a grievance on Charging Party’s behalf. Charging Party’s termination, during her
probationary period, was not grievable in and of itself. When Charging Party came to Cronin
with the additional concern that she had been fired for discriminatory reasons, Cronin filed a
grievance immediately and undertook an investigation of those claims, despite knowing that
the grievance was untimely. Cronin’s investigation revealed no evidence that Charging Party
had been discriminated against, and instead revealed that Charging Party had engaged in
workplace misconduct. After consideration of these facts, Cronin recommended that the Union
withdraw the grievance.
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 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
10

with the approach of both Hussey and with federal precedent in Vaca v. Sipes (1967) 386 U.S.
171.
Under the MMBA an employee organization must represent fairly the employees whom
it exclusively represents. (International Association of Machinists (Attard), supra, PERB
Decision No. 1474-M.) 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 and McCarty) (1978) PERB Decision No. 72; Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision No. 124; Vaca v. Sipes, supra, 386
U.S. 171.) The duty applies to the conduct of a union undertaken in the exercise of its
exclusive right to represent employees, that is to say, 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.)
Though the duty of fair representation standard has occasionally been haphazardly
applied, close examination of the NLRB and federal courts’ treatment of the standard reveals a
rigorous test for each theory of a violation, whether the union’s conduct is alleged to be a)
arbitrary, b) discriminatory, or c) in bad faith. Each of these theories is treated separately,
below.
A. The Union Did Not Act Arbitrarily
Citing the Supreme Court’s decision, Vaca v. Sipes, supra, 386 U.S. 171, the court of
appeal has stated,
…it is also essential that labor organizations have some freedom
and discretion in handling employee disputes with employers.
The union and employer must be able to develop a consistent
interpretation of the terms of the collective bargaining agreement,
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rather than being compelled to follow the desires of every
individual union member. In order to prevent the settlement
mechanism from being clogged by meritless complaints, the
union must be permitted to sort out the substantial grievances
from the unjustified ones. If the union did not have the power to
settle or discard groundless complaints, the employer would have
little motivation to participate in a dispute resolution mechanism.
The union's resources could also be depleted as a result of being
forced to pursue meritless complaints. Further, important public
interests are served by preserving unions as viable entities and
preventing their financial depletion as a result of extended legal
liability. For these reasons a union is held to have breached the
duty of fair representation only if it acts arbitrarily,
discriminatorily, or in bad faith.
(Lane v. International Union of Operating Engineers, Local 39 (1989) 212 Cal.App.3d 164,
169-170, internal citation omitted.)
The Ninth Circuit has stated that it will engage in a two-step analysis to determine
whether a union has breached the duty of fair representation.
First, we must decide whether the alleged union misconduct
involved the union’s judgement, or whether it was procedural or
ministerial. Second, if the conduct was procedural or ministerial,
then the plaintiff may prevail if the union’s conduct was arbitrary,
discriminatory, or in bad faith. However, if the conduct involved
the union’s judgment, then the plaintiff may prevail only if the
union’s conduct was discriminatory or in bad faith.
(Marino v. Writer’s Guild of America (9th Cir. 1993) 992 F.2d 1480, 1486, quoting Burkevich
v. Air Line Pilots Ass'n, Int'l. (9th Cir.1990) 894 F.2d 346, 349, internal quotation marks
omitted.) Notably, a union’s decision not to arbitrate a grievance that it considers to be
meritless is an exercise of its judgement. (Wellman v. Writer’s Guild of America (9th Cir.
1998) 146 F.3d 666.) This is not to say that there are no checks and balances in the application
of this standard, however. The court explained that in order to ensure that
… the union is employing some principled way of screening the
meritorious grievances from the meritless ones, we have held that
a union must conduct some minimal investigation of grievances
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brought to its attention. Consequently, when a union member
brings a meritorious grievance, the union’s decision to ignore that
grievance or to process it in a perfunctory manner is a ministerial
action that we will overturn if it is arbitrary, discriminatory or
performed in bad faith. But we will not find that the union has
exercised its duties perfunctorily unless it has treated the union
member’s claim so lightly as to suggest an egregious disregard of
her rights.
(Wellman v. Writer’s Guild of America, supra, 146 F.3d 666, 671, internal citations and
quotation marks omitted.) This framework is helpful in understanding the instant case.
The facts of this case involve the Union’s exercise of judgement to determine whether
it should pursue Charging Party’s grievance through arbitration. 	The Union exercised its
judgment first when determining that Charging Party was terminated within her probationary
period and next when it conducted an investigation in which it sought information from its
records as well as from the employer’s records to determine Charging Party’s date of hire and
whether she had completed her probationary period, as well as information corroborating
Charging Party’s claim of discrimination. Given my finding that the Union undertook a
genuine investigation of Charging Party’s claims, it has established that it exercised its
discretion and did not act arbitrarily in determining that Charging Party was a probationary
employee at the time she was terminated. The Union also investigated Charging Party’s claims
of discrimination and therefore, did not act arbitrarily in withdrawing Charging Party’s
grievance. Accordingly, in order for Charging Party to prevail, she must establish that the
Union’s exercise of judgment was discriminatory or in bad faith.
B. The Union Did Not Discriminate Against Charging Party.
When determining an allegation of discrimination under the statutes it enforces,
PERB’s jurisdiction is limited to discrimination that occurs not because of an employee’s
protected classification like age, race, or marital status, but because of an employee’s exercise
13

of rights under the collective bargaining statute(s). (Baldwin Park Education Association
(Hayek, et al.) (2011) PERB Decision No. 2223.) To determine whether a union has illegally
retaliated against an employee for engaging in protected union activity, PERB applies the same
test which has long been applied to employees under Novato Unified School District (1982)
PERB Decision No. 210. (California State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S.) Accordingly, Charging Party must establish that she engaged in
protected activity, that the Union knew of the protected acts, and that the Union took adverse
action against her because of her protected activity. It is axiomatic that protected conduct that
occurs after an adverse act does not establish that discrimination occurred. (Berkeley Unified
School District (2004) PERB Decision No. 1702.)
Charging Party does not clearly identify any “protected activity” under the MMBA that
precedes her request that the Union file a grievance on her behalf. It is possible that Charging
Party intends to argue that she engaged in protected conduct when she filed an internal
complaint with the Hospital’s Human Resources Department alleging workplace
discrimination, and any retaliation by the Union is in response to her actions in filing the
discrimination complaint. The only clue that Charging Party provides about the discrimination
complaint is in her statement to Cronin that “the other nurses” didn’t like her. A reasonable
inference from that statement is that Lacy was complaining about her coworkers’ interactions
with her. PERB has found that complaints to an employer about coworkers is not the same as
enforcing rights in the collective bargaining agreement. (See Coachella Valley Unified School
District (2013) PERB Decision No. 2342.) Thus, it is not clear that Charging Party engaged in
any protected conduct that precedes the request to “Lee” that the Union file a grievance on her
behalf. Thus, there can be no finding that the initial failure to file a grievance within the
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contractual time period was retaliatory. For the same reason, I am unable to find that the
Union’s later decision to withdraw the grievance was in retaliation for some protected activity.
Absent evidence that the Charging Party engaged in activity that is protected by the MMBA,
and that the Union knew about it, and that the Union withdrew the grievance because of that
protected activity, there can be no finding that the Union discriminated against Charging Party.
C. The Union Did Not Act In Bad Faith When It Withdrew The Grievance
Although PERB has occasionally found a union to have acted in bad faith in relation to
one of its members, the Board has not explicitly defined what constitutes bad faith conduct in
the context of an alleged breach of the duty of fair representation. In International Union of
Electronic, Electrical, Salaried, Machine and Furniture Workers v. NLRB (D.C. Cir. 1994) 41
F.3d 1532, the court denied enforcement of the NLRB’s finding of a bad faith breach of the
duty of fair representation because the NLRB failed to provide any evidentiary basis for its
finding of bad faith. The court noted that a finding of bad faith carries a high evidentiary
burden:
A bad-faith violation of the duty of fair representation requires a
showing of fraud, or deceitful or dishonest action. Courts have
applied a demanding standard for finding bad faith under the duty
of fair representation, … requiring a union’s actions toward unit
employees to be sufficiently egregious or so intentionally
misleading as to be invidious.
(Id. at p. 1537, internal citations and quotation marks omitted.)
Charging Party clearly disputes the manner in which the Union and employer determine
seniority. Charging Party asserts that that her first day of employment should be considered
the day she accepted a provisional offer of employment from the Hospital, rather than from the
first day of her paid service, which is the date both the employer and union consider for
establishing employees’ seniority. But the fact that the Union disagrees with Charging Party
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does not establish that it acted fraudulently, deceitfully or dishonestly. As noted above, “[t]he
union and employer must be able to develop a consistent interpretation of the terms of the
collective bargaining agreement, rather than being compelled to follow the desires of every
individual union member.” (Lane v. IUOE Stationary Engineers, Local 39, supra, 212
Cal.App.3d 164, 169.) In this case, there is no evidence demonstrating that the Union has been
inconsistent or dishonest in its application of Article 2, section B of the contract to begin the
probationary period after the first day of paid service rather than on the day the employee
accepts the offer of employment. Indeed, Charging Party’s own presentation of facts establish
that, from her first conversation with “Lee” after she received notice of her termination, the
Union informed her that she had not completed her probationary period and therefore, it could
not grieve her termination. While the Union later filed a grievance, there is no evidence that it
did so because it changed its calculation of Charging Party’s probationary period or conceded
that its earlier calculation was wrong. Thus, I cannot find that the Union engaged in bad faith
when it withdrew Charging Party’s grievance due, in part, to its determination that she was still
a probationary employee when the employer terminated her employment.
Based on all the facts presented, Charging Party has failed to meet her burden of
demonstrating that the Union breached its duty of fair representation by failing to file a
grievance within the contractual time period or by later withdrawing her grievance. Neither
the failure to file a grievance when Charging Party first made the request nor the Union’s later
decision to withdraw Charging Party’s grievance was arbitrary, discriminatory or made in bad
faith. The Union exercised its discretion first in determining that Charging Party had not
completed her probationary period and later in determining that the grievance it had filed
would not prevail at arbitration. 	These exercises of discretion establish that the Union did not
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act arbitrarily. There is no evidence that Charging Party engaged in protected conduct prior to
the alleged adverse acts and so she cannot establish that the Union retaliated against her. And
finally, Charging Party has not established that the Union engaged in fraud, deceit or
dishonesty such that its calculation of her probationary period or its decision to withdraw her
grievance was made in bad faith. Accordingly, the charge is hereby DISMISSED.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. SF-CO-355-M, Cindy
Lacy v. Service Employees International Union United Healthcare Workers West, are hereby
DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. 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
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
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
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transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (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.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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