Service Employees International Union Local 790 (Paez) (PERB 1774M)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RICARDO PAEZ,
Charging Party, Case No. SF-CO-90-M
v. PERB Decision No. 1774-M
SEIU LOCAL 790, August 10, 2005
Respondent.

Appearances: Ricardo Paez, on his own behalf; Weinberg, Roger & Rosenfeld by Anne I.
Yen, Attorney, for SEIU Local 790

Before Shek, McKeag and Neuwald, Members.
DECISION

NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Ricardo Paez (Paez) of a Board agent’s dismissal (attached) of
his unfair practice charge. The unfair practice charge alleges that SEIU Local 790 (SEIU)
violated the Meyers-Milias-Brown Act (MMBA)' by its failure to meet its duty of fair
representation.

The Board has reviewed the unfair practice charge, the amended unfair practice charge
and attached documents, the warning and dismissal letters, Paez’s appeal and SEIU’s response.
The Board finds the Board agent’s dismissal to be free of prejudicial error and adopts it as a

decision of the Board itself.

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

On appeal, Paez submits voluminous additional documentation in support of the
allegations he made in his charge. PERB Regulation 32635(b)2 provides, "Unless good cause
is shown, a charging party may not present on appeal new charge allegations or new supporting
evidence." Paez has failed to show good cause for acceptance of the additional documents on
appeal, as they simply add detail to the allegations in his original charge and there is no
indication that the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal of the charge.
ORDER
The unfair practice charge in Case No. SF-CO-90-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Shek and McKeag joined in this Decision.
2PERB regulations are codified at California Code of Regulations, title 8,
section 3100 I, et seq.
2

=ST=A=T=E=O=F=C=A=LI=FO=RNIA==·======..r-~··-=·===~===========~,~--~
PUELIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
June 13, 2005
Ricardo Paez
343 Heather Drive
San Pablo, CA 94806
Re: 	Ricardo Paez v. SEIU Local 790
Unfair Practice Charge No. SF-CO-90-M; First Amended Charge
DISMISSAL LETTER
Dear Mr. Paez:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 27, 2005. Ricardo Paez alleges that the SEIU Local 790
violated the Meyers-Milias-Brown Act (MMBA)1 by breaching their duty of fair
representation.
I indicated to you in my attached letter dated June 2, 2005, 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 June 9, 2005, the charge would be dismissed.
On June 9, 2005, you filed a first amended charge. The first amended charge disputes many of
the arbitrator's findings and again asserts the union breached its duty of fair representation by
failing to call certain witnesses and by failing to represent you at the Civil Service hearing.
Additionally, the amended charge attempts to explain why many of the uncoiitroverted
allegations against you, i.e. watching pornographic video tapes on City equipment in your
City-provided office, holding a part-time job, and requesting a co-worker remove evidence
from your office, should not be held against you. However, as these all these allegations were
admitted to at the arbitration hearing, there appears to be no reason to review them herein.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie violation of the MMBA.
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-90-M
June 13, 2005
Page2
Herein, you contend the union did not call certain witnesses on your behalf and did not present
sufficient evidence to support your case. However, facts provided demonstrate the union
provided you with an attorney, who presented witnesses and evidence on your behalf, and who
vigorously cross-examined the City's witnesses. In fact, the arbitrator's decision notes the
amount of evidence the union presented on your behalf.2 Moreover, the union's failure to
introduce every document you deem favorable or raise every argument you deem significant is
not a breach of the duty of fair representation. (United Teachers - Los Angeles (1990) PERB
Decision No. 797.) Additionally, the union is not required to call every witness the grievant
asserts is important to their case. (California Assn. of Professional Scientists (1998) PERB
Decision No. 1288-S; California Faculty Assn. (Pomerantsev) (1988) PERB Decision No. 698-
H.) As the union called most, if not all of your witnesses, and presented a large amount of
evidence in support of your claim, you allegations fail to state a prima facie violation of the
MMBA.
Additionally, you contend the union breached its duty of fair representation by refusing to
represent you at the Civil Service hearing. However, an exclusive representative does not owe
a duty of fair representation to unit members in a forum over which the union does not
exclusively control the means to a particular remedy. (California State Employees Association
(Parisi) (1989) PERB Decision No. 733-S.) Accordingly, the duty of fair representation does
not attach to an exclusive representative in extra-contractual proceedings before agencies such
as the State Personnel Board or the Civil Service Commission. (California Union of Safety
Employees (John) (1994) PERB Decision No. 1064-S; California State Employees Association
(Carrillo) (1997) PERB Decision No. 1199-S.) As the union is not required to represent you at
Civil Service hearings, Local 790's failure to do so does not violate the MMBA.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (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,
2 The arbitrator appears to base his decision in large part on the credibility of you and
Mrs. H, finding that Mrs. H's testimony was more credible. It is unclear how the union could
be at fault in such a case.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-90-M
June 13, 2005
Page3
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).)
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.)

SF-CO-90-M
June 13, 2005
Page4
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
B y 	;&J.;Z_	_________________ _
Kristin L. Rosi
Regional Attorney
Attachment
cc: Anne Yen

STATE OF CALIFORNIA 	(~=============='-(·~~\
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
June 2, 2005
Ricardo Paez
343 Heather Drive
San Pablo, CA 94806
Re: 	Ricardo Paez v. SEIU Local 790
Unfair Practice Charge No. SF-CO-90-M
WARNING LETTER
Dear Mr. Paez:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 27, 2005. Ricardo Paez alleges that the SEIU Local 790
violated the Meyers-Milias-Brown Act (MMBA)1 by breaching their duty of fair
representation.
Investigation of the charge revealed the following. 	You were employed by the City and
County of San Francisco's Department of Public Works as a Custodial Supervisor I. As such,
you were exclusively represented by Local 790. The City and Local 790 are parties to a
collective bargaining agreement that expired on June 30, 2006.
On October 23, 2003, you were terminated from your employment with the City for (1)
violating the City's sexual harassment policy; (2) violating the part-time employment policies;
(3) acting inappropriately and unprofessionally; (4) engaging in conduct unbecoming of a
supervisor; (5) mistreating persons; and (6) attempting to interfere with an investigation. You
do not deny that you engaged in outside, part-time employment in violation of City policy.
Additionally, there is no dispute that you misused employer resources by using your office
television to view pornographic video tapes on several occasions. Additionally, you
acknowledge that while watching these video tapes, you masturbated in your office. Lastly,
there is no dispute that you attempted to have a co-worker remove the pornographic video
tapes from your office after you were placed on administrative leave and instructed not to enter
your office.
Facts surrounding the sexual harassment allegations are as follows.2 In 2002, one of the
custodial workers under your supervision was Mrs. H, a Chinese woman.3 Mrs. H. was an "as
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.perh.ca.gov.
2 The facts recited herein are those presented during official interviews with both Mr.
Paez and Mrs. H., as well as those provided at the arbitration hearing.

SF-CO-90-M
June 2, 2005
Page2
(
needed" custodian, which meant that she did not work full-time and could not work more than
1040 hours per fiscal year.
In October or November 2002, you and Mrs. H. began discussing the possibility of having
Mrs. H. clean one of the apartment units that you managed. In November 2002, in the evening,
you and Mrs. H. traveled to the apartment building to view the vacant apartment. After
viewing one vacant apartment, you took Mrs. H. to another vacant apartment that did not have
electricity. Mrs. H. asserts that while in this apartment, which was pitch black, you sexually
assaulted her and forced her to have intercourse with you. You contend the sexual encounter
was consensual. Mrs. H. further indicated that you apologized for the assault and indicated it
would not happen again.
Mrs. H. also testified that a few days later you called her into your office and again attempted
to assault her. While in the midst of the assault, Mrs. H. testified that you reached into your
desk drawer and pulled out a condom. You deny this and all other encounters with Mrs. H.
However a search of your office by City officials found 36 unused condoms in the drawer
described by Mrs. H. You provided two contrary explanations for the presence of the
condoms, neither of which the arbitrator found compelling.
Mrs. H. also stated under oath that you forcibly raped her on three other occasions; twice in
your office and once more at the apartment building you managed. During her interviews and
at the arbitration, Mrs. H. was able to accurately describe your genitalia, including a mole on
the side of your penis. You deny all of these encounters but have no explanation for Mrs. H. 's
accurate description of your genitalia.
In March 2003, Mrs. H. reported the above incidents to City officials. Shortly after Mrs. H.'s
allegations, you were placed on administrative leave by the City. At that point, you contacted
Local 790 representative Michael Haberberger. On March 28, 2003, Mr. Haberberger
represented you at a "mini-Skelly'' hearing.
In April 2003, you hired attorney Douglas Warrick to represent your during your investigatory
interviews with the City and the San Francisco Police Department. On May 23, 2003, the City
terminated your employment for the reasons provided above. On June 5, 2003, Mr.
Haberberger appealed your termination. After the appeal, you provided Mr. Haberberger with
statements from a number of employees who stated you were a good co-worker and had not
sexually harassed them. However, none of the witness statements directly contradicted any of
Mrs. H's testimony.
On October 22, 2003, you and your private attorney appeared before the Civil Service
Commission to appeal your termination. After hearing from you and your attorney, the Civil
Service Commission upheld your termination. Despite the Commission's decision, Local 790
continued to pursue a grievance on your behalf.
3 Mrs. H's full name is known by all parties herein but will withheld from this letter in
order to protect her privacy.

SF-CO-90-M
June 2, 2005
Page3
C
On August 19, and September 10, 2004, Local 790 presented your case to arbitrator David
Nevins. On February 17, 2005, Mr. Nevins issued his decision, which states as follows
regarding the Union's presentation of evidence:
To begin with, significantly favoring the Grievant's version of his
encounters with Mrs. H. is the chronology of certain interactions
they had, which tend to portray that he did not forcibly pursue
her. After their first visit to the apartment building he managed,
which Mrs. H. dates to November 5 and portrays as involving
forcible sex in Apartment 8, the record is clear that in the two
weeks or so which followed the first visit she again
rendezvoused, voluntarily, with him at the apartment building ...
In addition, the Union argues that even on her last visit to the
apartment building, which involved taking a dining table from
there to her sister's house, after which Mrs. H. testified to being
forced into sex a second time, she made no effort to avoid being
alone with the Grievant, which she easily could have, and even
says she willingly accompanied him back into a vacant apartment
after the dining table had been left at her sister's. As the Union
contends, "If he had raped her previously at the apartment as she
claims, it is incredible that she would go back alone with him
without any reason at all to go there."
* 	* 	* 	* 	*
The Union also points to a number of other, more objective
factors which purportedly detract from any view that the Grievant
was guilty of forcible misconduct. Unfortunately, while certainly
worthy of noting, the factors all contain uncertainties ...
In addition, while the Union understandably argues that the
Grievant would not have been so unintelligent as to have
committed a violent crime in Apartment 8, it is difficult to put
strategic stock in that view ...
There are still other factors the Union raises in attacking the
charges against the Grievant. Some of these factors also provide
support for the Grievant. Thus, there are no co-workers brought
forward to corroborate either of the two sex encounters
purportedly occurring in the Grievant's office, or their aftermath.
But, the Union's use of Gilbert Hernandez's testimony about
normally being in the area of the Grievant' s office at and around
5 p.m. misses the true mark. Mrs. H. indicated the two
encounters happened at 3 p.m., not around the quitting time of 5

SF-CO-90-M
June 2, 2005
Page4
p.m., or, in other words, before Mr. Hernandez even came to
work.
In denying your grievance and upholding your termination, the arbitrator notes that Mrs. H.
had explicit knowledge of where you kept the condoms in your office, could accurately
describe your genitalia, and was visibly upset during her testimony. In short, the arbitrator
found:
Mrs. H's testimonial accounts were significantly more believable
and convincing than were the Grievant's rendition of events and
denials.
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.
You contend the union violated the MMBA by failing to call witnesses you suggested and by
failing to provide the arbitrator with all the evidence available.4 ·
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 3 89].) 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."
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Ouantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
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]).
4 You also contends you were not granted sufficient time at the Civil Service
Commission to present your case. However, Local 790 did not represent you at that hearing
and thus is not liable for any malfeasance at that hearing.

SF-CO-90-M
June 2, 2005
Page 5
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 ison 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. Qinited Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
Herein, you contend the union did not call sufficient witnesses on your behalf and did not
present sufficient evidence to support your case. However, facts provided demonstrate the
union provided you with an attorney, who presented witnesses and evidence on your behalf,
and who vigorously cross-examined the City's witnesses. In fact, the arbitrator's decision
notes the amount of evidence the union presented on your behalf. 5 Moreover, the union's
failure to introduce every document you deem favorable or raise every argument you deem
significant is not a breach of the duty of fair representation. (United Teachers - Los Angeles
(1990) PERB Decision No. 797.) Additionally, the union is not required to call every witness
the grievant asserts is important to their case. (California Assn. of Professional Scientists
(1998) PERB Decision No. 1288-S; California Faculty Assn. (Pomerantsev) (1988) PERB
Decision No. 698-H.) As the union called most, if not all of your witnesses, and presented a
large amount of evidence in support of your claim, you allegations fail to state a prima facie
violation of the MMBA.
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 casenumber 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 June 9. 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
5 The arbitrator appears to base his decision in large part on the credibility of you and
Mrs. H, finding that Mrs. H's testimony was more credible. It is unclear how the union could
be at fault in such a case.

SF-CO-90-M
June 2, 2005
Page 6

Sincerely,

Kristin L. Rosi
Regional Attorney

KLR