Service Employees International Union Local 790 (Lowery) (PERB 1666M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RAYMOND LOWERY,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 790,
Respondent.
Case No. SF-CO-44-M
PERB Decision No. 	1666-M
July 	27, 	2004
Appearances: Roger Lowery for Raymond Lowery; Weinberg, Roger & Rosenfeld by
Vincent A. Harrington, Attorney, for Service Employees Internation.al Union Local 790.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Raymond Lowery (Lowery) from a Board agent's dismissal (attached) of his
unfair practice charge. The charge alleged that the Service Employees International Union
Local 790 (SEIU) violated the Meyers-Milias-Brown Act (MMBA)1 by breaching its duty of
fair representation.
The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charges, the warning and dismissal letters, Lowery's appeal and
SEIU's response. The Board finds the warning and dismissal letters to be free of prejudicial
error and adopts them as the decision of the Board itself.
1The MMBA is codified at Government Code section 3500, et seq.

ORDER
The unfair practice charge in Case No. SF-CO-44-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	:~OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
J 	( ··
============================~
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 5, 2004
Roger Lowery
2602 Tuscany Road
Livermore, CA 94550
Re: 	Raymond Lowery v. SEIU Local 790
Unfair Practice Charge No. SF-CO-44-M; First Amended Charge
DISMISSAL LETTER
Dear Mr. Lowery:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 24, 2004. Raymond Lowery alleges that SEIU Local 790
violated the Meyers-Milias-Brown Act (MMBA)1 by breaching its duty of fair representation.
I indicated to you in my attached letter dated March 25, 2004, that the above-referenced charge
did not state a prima facie case. You were advised that, if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to April 1, 2004, the charge would be dismissed.
On March 29, 2004, you filed a first amended charge. The amended charge adds the following
information.
As noted in my March 25, 2004, letter, Mr. Lowery was employed by the City of San Ramon
as a Maintenance Worker, a position which required possession of a valid California Driver's
license. On May 25, 2002, Mr. Lowery received a citation for driving under the influence of
alcohol. As a result of this citation, Mr. Lowery's license was suspended for a time
unspecified in the charge. 	On December 2, 2002, the City terminated Mr. Lowery for not
possessing a valid driver's license.
On February 13, 2003, Local 790 rejected Mr. Lowery's request for representation for his
termination hearing. In so holding, Local 790 provided Mr. Lowery with a detailed response,
explaining their belief that the grievance lacked merit as Mr. Lowery did not possess the
minimum qualifications for employment.
Charging Party contends that four other employees have been allowed to keep their
employment with the City despite having suspended driver's licenses. Charging Party does not
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-44-M
April 5, 2004
Page2
provide the names or job descriptions for any of these employees. Moreover, Charging Party
does not demonstrate that Local 790 represented any of these employees at a termination
hearing.
Charging Party also states that Local 790 should have taken into account the fact that Mr.
Lowery became legally drunk while at a supervisor's house, and that such a fact should
mitigate Mr. Lowery's failure to possess the minimum job requirements. The charge fails to
provide any facts demonstrating that Mr. Lowery's supervisor forced Mr. Lowery to consume
the alcohol.
Finally, Charging Party contends Local 790 failed to represent Mr. Lowery during an
Unemployment Compensation Board hearing, in which Mr. Lowery ultimately prevailed.
Based on the above stated information and information provided in the original charge, the
charge still fails to state a prima facie violation of the MMBA, for the reasons provided below.
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.4 th 1213
[42 Cal.Rptr.2d 389].) 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, CTAJNEA (Reyes) ( 1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369]).
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a rational basis or devoid of honest judgment. (International Association of Machinists
(Attard) (2002) PERB Decision No. 1474-M.) The burden is on the charging party to show
how an exclusive representative abused its discretion, and not on the exclusive representative
to show how it properly exercised its discretion. (United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Herein, Local 790 reviewed the facts provided to them and reviewed the likelihood of success
in this matter. After reviewing such information, Local 790 decided to deny representation at
the fact finding level, asserting that success was unlikely given Charging Party's failure to
meet the minimum job qualifications. No information presented herein demonstrates the union

SF-CO-44-M
April 5, 2004
Page 3
acted arbitrarily or devoid
of
honest judgment. As a union may refuse to pursue a grievance
if
it makes a reasonable determination that the grievance lacks merit, the charge fails to state a
prima facie case. (United Teachers
of
Los Angeles (2001) PERB Decision No. 1453.) While
Charging Party may not agree with the union's decision, such disagreement does not constitute
bad faith on the union's part. The Union need only adequately explain its decision and act in
good faith. As the charge fails to present any facts demonstrating the union acted in bad faith,
the charge must be dismissed.
Charging Party additionally contends Local 790 failed to represent him during an
unemployment hearing. However, a union is not obligated to represent its members in forums
outside
of
those provided for in the collective bargaining agreement. (Oxford Federation
of
Teachers (2001) PERB Decision No. 1494.) As an unemployment hearing is a non-contractual
administrative proceeding, Local 790's refusal to represent Mr. Lowery does not violate the
MMBA.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review ofthis dismissal
of
the charge
by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must 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 before the close
of
business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close
of
business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b ). )
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-44-M
April 5, 2004
Page 4
Service
(
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
j,~L_-=	____ 	2_.A	-=--_	By_ 	-?('_~. 	_
Kristin L. Rosi
Regional Attorney
Attachment
cc: SEID Local 790; Vincent Harrington

STATE OF CALIFORNIA 	(. 	c~:~OLD SCHWARZENEGGER, Governor
===========~=::;;,,=============-
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
March 25, 2004
Roger Lowery
2602 Tuscany Road
Livermore, CA 94550
Re: 	Raymond Lowery v. SEIU Local 790
Unfair Practice Charge No. SF-CO-44-M
WARNING LETTER
Dear Mr. Lowery:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 24, 2004. Raymond Lowery alleges that SEIU Local 790
violated the Meyers-Milias-Brown Act (MMBA) 1 by breaching its duty of fair representation.
Investigation of the charge revealed the following. ~oger Lowery was employed by the City
of San Ramon as a Maintenance Worker. As such, he was exclusively represented by SEIU
Local 790. Local 790 and the City are parties to a collective bargaining agreement that
provides the following regarding disciplinary action:
17 .5: An employee shall have the right of appeal from any
disciplinary action taken under this article. Such appeal must be
filed in writing with the Department Head with a copy to
Employee Services within ten (10) calendar days after receipt of
written notice of such disciplinary action .... The Department
Head will respond within ten (10) days of receipt of the appeal.
If the employee is not satisfied with the Department Head's
review, the employee may appeal to the City Manager.
Such appeal must be filed in writing with the City Manager with
a copy to Employee Services and the Department Head within ten
(10) calendar days of receipt of the Department Head's response .
. . . The City Manager will respond within ten (10) calendar days
of receipt of the appeal.
If the employee is not satisfied with the City Manger's review,
the employee may appeal the matter to the City Council. The
appeal shall be made in writing to Employee Services within
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-44-M
March 25, 2004
Page 2
fourteen (14) calendar days
ofreceipt
of
the City Manger's
decision. The City Council shall assign the appeal to an impartial
fact finder who shall
be
selected
by
mutual agreement between
the City and the Union.
The fees and expenses
of
the fact finder and
of
a court reporter
· shall be shared equally
by
the Union and the City. Each party,
however, shall bear the cost
of
its own representation.
As noted above, Charging Party was employed as a Maintenance Worker. The
job
description
for this position states that incumbents will perform a variety
of
maintenance and repair duties,
which may include maintaining parks, lighting, traffic signals and street drainage. 	One
of
the
required qualifications for this position is stated as follows:
Must possess and maintain a valid California Class C driver's
license and a satisfactory driving record.
On
May
25, 2002, Charging Party received a citation for driving under the influence
of
alcohol. As a result
of
this citation and apparent conviction, Charging Party's driver's license
was suspended by the State.
On December 2, 2002, Charging Party's empioyment with the City was terminated as Charging
Party no longer possessed the minimum qualifications for the job. Charging Party contends
that he should be allowed to continue working despite the lack
of
a valid driver's license and
an unsatisfactory driving record.
On December 6, 2002, Charging Party appealed his termination to City Manager Jim Randall.
On December 30, 2002, Mr. Randall denied Charging Party's appeal, indicting Charging Party
no longer possessed the minimum qualifications for employment. On January 11, 2003,
Charging Party appealed the termination to the City Council level. On that same date,
Charging Party sent a letter to union representative Ron Bunch requesting the union represent
him in the fact finding hearing. On February 3, 2003, Charging Party provided the union with
the documents it requested regarding his termination.
On February 13, 2003, Charging Party received a letter from Local 790 Field Representative
Sue Oszewski. The letter provided in relevant part as follows:
I have reviewed the documents which your father provided to me
regarding your termination from the City
of
San Ramon and your
grievance appeal. I have also discussed this matter with the
Chapter Officers. In reviewing the Skelly notice, the termination
notice and the letter from City Manager Randall in response to
your grievance appeal, it is clear that all the documents
consistently reflect that the basis of your termination is the lack
of a driver's license. This is a basic job requirement of the

SF-CO-44-M
March 25, 2004
Page 3
position
of
a Maintenance Worker. Without a license you do not
meet the qualifications necessary to perform the job.
Based on the above understanding the Union has determined that
we will not continue to pursue a grievance to the fact finding
level
of
the grievance procedure. Since you do not meet the
requirements
of
the position, we have determined that further
appeal
of
this matter is not warranted and would not change the
decision made by the City to terminate your employment.
On March 7, 2003, Charging Party sent a letter to the City Manager asking how the process
would continue without union participation. On March 31, 2003, City Attorney Thomas Curry
indicated the City was willing to continue onto fact finding providing Charging Party paid his
portion
of
the fact finder's fees. On April 24, 2003, Charging Party agreed to pay his share
of
the fact finding fees.
On June 4, 2003, Charging Party sent a letter to Local 790 President Marshall ·walker
requesting SEID represent him in his fact finding hearing. Mr. Walker did not respond to this
letter. On July
8,
2003, Charging Party sent another letter to Local 790. This letter states that
SEID is obligated to represent the Charging Party.
On October 14, 2003, Charging Party participated in a fact finding hearing with the City. On
December 30, 2003, Charging Party requested Local 790 reimburse him for the $3200 spent on
the fact finding hearing. It appears the fact finder upheld the termination on November 23,
2003.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation
of
the MMBA, for the reasons provided below.
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.4 th 1213
[42 Cal.Rptr.2d 389].) In Hussey, the court further held that the duty
of
fair representation is
not breached by mere negligence and that a union is to be "accorded wide latitude in the
representation
of
its members
...
absent a showing
of
arbitrary exercise
of
the union's power."
In International Association
of
Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty
of
fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
in such cases, including Reed District Teachers Association, CTA/NEA (Reyes) ( 1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369]).

SF-CO-44-M
March 25, 2004
Page 4
(
Thus, in order to state a prima facie violation
of
the duty
of
fair representation under the
MMBA, a charging party must at a minimum include an assertion
of
facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a rational basis or devoid
of
honest judgment. (International Association
of
Machinists
(Attard) (2002) PERB Decision No. 1474-M.) The burden is on the charging party to show
how an exclusive representative abused its discretion, and not on the exclusive representative
to show how it properly exercised its discretion. (United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Herein, Local 790 reviewed the facts provided to them and reviewed the likelihood
of
success
in this matter. After reviewing such information, Local 790 decided to deny representation at
the fact finding level, asserting that success was unlikely given Charging Party's failure to
meet the minimum job qualifications. No information presented herein demonstrates the union
acted arbitrarily or in bad faith. As a union may refuse to pursue a grievance
if
it makes a
reasonable determination that the grievance lacks merit, the charge fails to state a prima facie
case. (United Teachers
of
Los Angeles (2001) PERB Decision No. 1453.)
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make,,and be signed under penalty
of
perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before April
1,
2004, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
/4-=c/2Kristin L. Rosi
Regional Attorney
KLR