Bay Area Air Quality Management District Employees Association (Mauriello) (PERB 1808M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PAUL MAURIELLO,
Charging Party,
v.
BAY AREA AIR QUALITY MANAGEMENT
DISTRICT EMPLOYEES ASSOCIATION,
Respondent.
Case No. SF-CO-39-M
PERB Decision No. 	1808-M
J a n u a r y 	1 3 , 	2006
Appearances: Peter Rogosin, Representative, for Paul Mauriello; Sinclair Law Office by
Andrew Thomas Sinclair, Attorney, for Bay Area Air Quality Management District Employees
Association.
Before Whitehead, Shek and Neuwald, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Paul Mauriello (Mauriello) of a Board agent's dismissal (attached) of
his unfair practice charge. The charge alleged that the Bay Area Air Quality Management
District Employees Association (Association) violated the Meyers-Milias-Brown Act
(MMBA)1 by failing to represent Mauriello at a pre-termination hearing (Skelly2 hearing) on
January 21, 2004, and failing to provide him representation and/or assistance with two
grievances filed on January 21, 2004 and February 20, 2004.
The Board has reviewed the entire record in this matter, including the original unfair
practice charge, the amended unfair practice charges, the warning and dismissal letters of the
MMBA is codified at Government Code section 3500, et seq.
2Skellv v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14] (Skelly).

Board agent, and Mauriello's appeal. The Board finds the warning and dismissal letters to be
free from prejudicial error and adopts them as the decision of the Board itself, subject to the
discussion below.
DISCUSSION
On July 8, 2005, Mauriello submitted to the Board a copy of the arbitrator's award in
his termination grievance filed on February 20, 2004. Since the February 20, 2004 grievance
alleged identical facts and memorandum of understanding violations, and sought similar
remedies as those enumerated in the first grievance filed on January 21, 2004, the parties
mutually agreed to file the second grievance pursuant to Step 2 of the grievance procedure.
The grievance was submitted to arbitration, and on June 30, 2005, an arbitrator awarded
Mauriello reinstatement to his former position minus a sixty-day suspension without pay.
The arbitration award is new evidence presented for the first time on appeal. Pursuant
to PERB Regulation 32635(b)3, "[u]nless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting evidence." In this case, the
arbitration award was not available prior to June 30, 2005, therefore, the award can be
considered. However, the arbitration award neither diminishes nor supplants the Association's
reasoned decision not to represent Mauriello in the matter of his termination at the Skelly
hearing or in other grievance proceedings. 	The favorable arbitration award does not
necessarily imply the Association had acted in an arbitrary, discriminatory, or bad faith manner
when denying representation to Mauriello. 	In the absence of evidence to demonstrate that the
Association's decisions not to provide representation to Mauriello were discriminatory,
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
22

arbitrary or in bad faith, we conclude that the Association's conduct did not constitute a
violation of the duty of fair representation.
ORDER
The unfair practice charge in Case No. SF-CO-39-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neuwald joined in this Decision.
w	
3

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax:(510)622-1027	PERE
January 10, 2004
Peter Rogosin, Representative
351 Lowell Avenue
Mill Valley, CA 94941
Re: 	Paul Mauriello v. Bay Area Air Quality Mgmt Dist EA
Unfair Practice Charge No. SF-CO-39-M
DISMISSAL LETTER
Dear Mr. Rogosin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 27, 2004 and amended on September 16, 2004. The initial
charge alleges that the Bay Area Quality Management District Employees Association
(Association) violated the Meyers-Milias-Brown Act (MMBA)1 by failing to represent Paul
Mauriello at a disciplinary hearing on January 21, 2004, and failing to provide him assistance
with a grievance filed that same date. The amended charge also alleges that the Association
violated the MMBA by failing to represent Mr. Mauriello in a grievance filed on February 20,
2004.
I indicated to you, in my attached letter dated September 2, 2004, that the allegations contained
in the initial 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, which you did on September 16, 2004.
The amended charge states that Mr. Mauriello filed a second grievance with the employer on
February 20, 2004, based on his termination on February 11, 2004. The grievance contained
some assertions not previously raised, including procedural violations of the MOU. He
requested assistance from the union and was again refused. 	Subsequently, the matter went to
mediation with the employer and is currently scheduled for arbitration.
While the amended charge contains numerous arguments and legal conclusions as to why a
complaint should issue, it is lacking in the necessary elements, i.e., additional facts which
correct the deficiencies in the initial charge. That is, no factual evidence is set forth to support
the conclusion that the Association acted arbitrarily or capriciously, or harbored personal
hostility or bias toward Mr. Mauriello.
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-39-M
January 5, 2005
Page 2
Most of Mr. Mauriello's arguments rest on the premise that he "had absolute right to expect
[Association] representation at grievance meetings with management and to prepare his
defense during any and all stages of the pre-disciplinary and post-disciplinary process." This
premise is without merit.
As stated in the attached letter, a union has no duty to represent its members in a Skelly
proceeding. 	(Professional Engineers in California Government (Lopez) (1989) PERB Decision
No. 760-S; Service Employees International Union, Local 790 (Wardlaw) (1997) PERB
Decision No. 1219). 	Nevertheless, Association board of directors reviewed Mr. Mauriello's
situation at a meeting on December 23, 2003, and held a special meeting to hear him present
his case on January 13, 2004. The board of directors' recommended that he be denied
representation based on his alleged unauthorized re-entry into the District building, the lack of
candor and persuasiveness of his explanations for his alleged misconduct, and the unlikelihood
of success at arbitration. Mr. Mauriello was given an opportunity to present his case to the
membership on January 20, 2004, which then voted to deny him representation. Given the
consideration the Association gave to Mr. Mauriello, it cannot be found that the Association's
determination to deny him with representation, legal or otherwise, was arbitrary,
discriminatory or in bad faith. 	(California Faculty Association (MacDonald) (1994) PERB
Decision No. 1046-H.)
The Association also refused to provide Mr. Mauriello with representation in the two
grievances he filed regarding his termination. PERB has held that
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. [Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.
(United Teachers of Los Angles (Collins) (1983) PERB Decision
No. 258.)
Thus, if a union has made an reasonable determination that a grievance lacks merit, it has not
breached its duty of fair representation by refusing to process it. 	(United Teachers of Los
Angeles (Collins), supra, PERB Decision No. 258.) PERB does not decide whether the
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union's determination is correct, only if it had a "rational basis."
Both the January 21 and February 20, 2004 grievances, filed by Mr. Mauriello concern his
termination proceedings. 	The Association reviewed that matter previously and decided not to
provide him with representation. It had no obligation to continue to review new grievances
concerning the same underlying issue. As stated above, no facts are alleged in the amended
charge which demonstrate that these decisions were discriminatory, arbitrary or in bad faith.

SF-CO-39-M
January 5, 2005
Page 3
Further, it fulfilled its obligation to explain to Mr. Mauriello why it chose not to represent him.
(Oakland Unified School District (Mingo) (1984) PERB Decision No. 447.)
For the reasons stated above, this charge is dismissed.
Right to Appeal
Pursuant to PERB Regulations, 	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,
together with the required number of copies and proof of service, in the U.S. mail. 	(Regulation
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).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-39-M
January 5, 2005
Page 4
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
By
Jerilyn Gelt
Labor Relations Specialist
Attachment
cc: Tom Sinclair
JAG

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027	PER
December 23, 2004
Peter Rogosin, Representative
351 Lowell Avenue
Mill Valley, CA 94941
Re: 	Paul Mauriello v. Bay Area Air Quality Management District Employees Association
Unfair Practice Charge No. SF-CO-39-M
WARNING LETTER
Dear Mr. Rogosin:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 27, 2004. The charge alleges that the Bay Area Quality
Management District Employees Association (Association) violated the Meyers-Milias-Brown
Act (MMBA)1 by failing to represent Paul Mauriello at a disciplinary hearing on January 21,
2004.
Mr. Mauriello was employed as a webmaster by the Bay Area Air Quality Management
District (District) at all times relevant to this charge. 	On or about November 7, 2003, Mr.
Mauriello received an email from manager Michael Bachman stating that he wished to
interview Mr. Mauriello about his use of District email. Mr. Mauriello attended a meeting
with Mr. Bachman on or about November 19, 2003, accompanied by two Association
representatives.
At the meeting, Mr. Bachman questioned Mr. Mauriello regarding emails he had sent you,
Peter Rogosin, containing screen shots from a compensation survey that was in development at
the District. 	You were not employed by the District at the time, but were formerly employed
as acting human resources officer until your separation in approximately April, 2003.
Mr. Mauriello and you are involved in a business venture together.
On or about November 20, 2004, Mr Mauriello was given a letter placing him on
administrative leave with pay and escorted out of the building by Information Systems Director
Jeffrey McKay. 	Approximately 30 minutes later, Mr. Mauriello allegedly re-entered the
building, went to his workstation and deleted computer files. He was again escorted out of the
building. According to the Association, Mr. Mauriello did not inform the union of this
incident until more than a month after it occurred.
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-39-M
September 2, 2004
Page 2
The District notified Mr. Mauriello that a second interview would take place on December 12,
2003, attended by a "special investigator." The Association's attorney researched the legality
of this interview, drafted a document for the District's signature aimed at protecting Mr.
Mauriello against criminal prosecution, and requested and received a postponement of the
interview to ensure that Mr. Mauriello had legal representation at the interview. The interview
was held on December 15, 2003. You allege that the Association's attorney "slept through the
meeting."
On or about December 19, 2003, Mr. Mauriello received a termination notice. Mr. Mauriello
asked the Association for assistance in responding in writing to the charges outlined in the
notice. The Association provided no such assistance.
Mr. Mauriello also asked for representation at the pre-termination (Skelly) meeting scheduled
with the District. He was informed by Recording Secretary Terry Carter that, since additional
money would be needed to provide legal representation, approval by the Association board and
membership would be required for the expenditure., Mr. Carter informed Mr. Mauriello that he
would have an opportunity to present his case for representation at the board meeting.
Mr. Carter advised him that since legal representation by the Association was not assured, he
should seek private counsel in case the Association did not provide him with one at the Skelly
meeting. 2
The Association board initially reviewed Mr. Mauriello's case on December 23, 2003, and
agreed to schedule a special two hour meeting on January 5, 2004, to allow him an opportunity
to present his case.
The Association notified the District that the termination notice had been incorrectly addressed
and therefore improperly served. As a result, the Skelly meeting was postponed from an
earlier date to January 21, 2004, and the Association board meeting was postponed to
January 13, 2004. Mr. Carter notified Mr. Mauriello of these changes and again advised him to
seek private counsel, especially in light of the fact that the general membership would not vote
on whether to award him legal representation until January 20, 2004, the day before the Skelly
meeting.
According to the Association, Mr. Carter and Association President James Corazza spoke with
Mr. Mauriello by telephone on or about January 9, 2004, to advise him of his options under the
MOU, including hiring a private attorney and pursuing a grievance on his own. 	This
conversation was confirmed by email the next day.
Section 5.06 (2) of the MOU provides that prior to dismissal, an employee
will be given an opportunity to address the charges supporting
this disciplinary action with the EO prior to the dismissal
becoming effective.... The employee may bring a representative
of the Association and/or a private personal representative to the
meeting with the EO.

SF-CO-39-M
September 2, 2004
Page 3
The Association board met with Mr. Mauriello as scheduled on January 13, 2004. The meeting
lasted approximately 1-1/2 hours. Mr. Mauriello presented his case, and questions and answers
followed. 	Subsequently, the board voted against recommending representation and informed
Mr. Mauriello of this decision by telephone later that day. However, the board gave
Mr. Mauriello a chance to present his case to the general membership on January 20, 2004.
After Mr. Mauriello was given an opportunity to speak at the Association meeting, the board
recommended denying him representation for several reasons: his unauthorized re-entry into
the District building, the lack of candor and persuasiveness of his explanations for his alleged
misconduct, and the unlikelihood of success at arbitration. 	The membership voted in support
of this recommendation. According to the Association, Mr. Mauriello was informed of this
decision by email at approximately 2:30 p.m. on January 20, 2004.
This charge alleges that the Association refused to assist Mr. Mauriello with his written
response to disciplinary charges received from the District on or about January 6, 2004. 	In
addition, it alleges that the Association informed him on the date of the Skelly meeting that it
would not represent him, leaving no time for preparation for the meeting had the decision been
otherwise.
The charge further alleges that the Association refused to represent him in a grievance filed on
January 21, 2004, based on a vote of the membership in violation of its bylaws, which only
require that such a vote be taken prior to taking a case to arbitration. Mr. Mauriello claims that
the Association's decision was influenced by personal animosity toward him. 	In addition, he
asserts that the Association's refusal to represent him was arbitrary and capricious in light of
the fact that it had a "history of aggressively pursuing every possible grievance in every
possible way."
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]).
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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

SF-CO-39-M
September 2, 2004
Page 4
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.)
In California Faculty Association (MacDonald) (1994) PERB Decision No.l046-H, PERB
noted that a "perfunctory" handling of a grievance constituting "arbitrary" conduct "could result
from a complete failure to investigate the facts underlying a grievance or an unexplained failure
to perform a ministerial duty, typically resulting in a procedural default." As PERB stated in
United Teachers of Los Angles (Collins) (1983) PERB Decision No. 258:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. [Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.
PERB has held that "there is no duty of fair representation to unit members unless the
exclusive representative possesses the exclusive means by which such employee can obtain a
particular remedy.. . This is not the case in a Skelly proceeding." (Professional Engineers in
California Government (Lopez) (1989) PERB Decision No. 760-S; Service Employees
- -
International Union. Local 90 (Wardlaw) (1997) PERB Decision No. 1219.)
In this case, charging party has failed to allege any facts which demonstrate that the
Association's actions or inactions were arbitrary, in bad faith, without a rational basis or
devoid of honest judgment. On the contrary, it appears that the Association intervened on
Mr. Mauriello's behalf with the District on several occasions, provided him with legal
assistance regarding the December 12, 2003, meeting with the District, and repeatedly advised
him of his rights to employee private counsel and to file a grievance on his own behalf.
Furthermore, Mr. Mauriello was given ample opportunity to present his case to the Association
board and membership prior to their vote to deny him representation at the Skelly meeting.3
hi addition, no facts have been presented to support the allegation that the Association was
acted in bad faith when it determined not to assist him with his January 21, 2004, grievance.
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
3 Despite the fact that the Association and the District have incorporated "Skelly rights"
into their MOU, the fact remains that the Association does not maintain exclusive control over
such a proceeding.

SF-CO-39-M
September 2, 2004
Page 5
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before September 20, 2004, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Jerilyn Gelt
Labor Relations Specialist
JAG