Service Employees International Union Local 99 (Jones) (PERB 1882E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
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RICKEY A. JONES,
Charging Party,
v.
SEIU LOCAL 99,
Respondent.
Case No. LA-CO-1192-E
PERB Decision No. 	1882
J a n u a r y 	2 5 , 	2007
Appearances: Rickey A. Jones, on his own behalf; Rothner, Segall & Greenstone by
Glenn Rothner, Attorney, for SEIU Local 99.
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
McKEAG, Member: 	This case is before the Public Employment Relations Board
(Board) on appeal by Rickey A. Jones (Jones) of a proposed decision (attached) by an
administrative law judge (ALJ) dismissing his unfair practice charge.1 The charge alleged that
SEIU Local 99 (SEIU) violated the Educational Employment Relations Act (EERA)2 by
denying Jones the right to fair representation. Jones alleged this conduct violated EERA
section 3543.6(b).
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint, the answer to the complaint, Jones' brief, and SEIU's
On November 15, 2005, the proposed decision was declared final automatically (PERB
Decision No. HO-U-887), because no exceptions were received. In SEIU Local 99 (Jones')
(2006) PERB Order No. Ad-352, the Board accepted late filed exceptions from Jones.
Consistent with the Board's Order accepting the late-filed exceptions and the Board's
consideration of Jones' exceptions on their merits, the automatic issuance of PERB Decision
No. HO-U-887 is hereby rescinded.
2
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EERA is codified at Government Code section 3540, et seq.

post-hearing brief. 	Based on this review, the Board finds the ALJ's proposed decision to be
free of prejudicial error and adopts it as a decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1192-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neuwald joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
RICKEY A. JONES,
Charging Party,
v.
SEIU LOCAL 99,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-1192-E
PROPOSED DECISION
(10/20/05)
Appearances: Rickey A. Jones, on his own behalf; Rothner, Segall & Greenstone by Glenn
Rothner, Attorney, for SEIU Local 99.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that his union violated its duty of fair representation.
The union denies any violation.
Rickey A. Jones (Jones) filed an unfair practice charge against SEIU Local 99 (SEIU)
on February 23, 2005. The General Counsel of the Public Employment Relations Board
(PERB) issued a complaint on March 18, 2005, to which SEIU filed an answer on April 12,
2005.
PERB held an informal settlement conference on April 28, 2005, but the case was not
settled. PERB held a formal hearing on July 7, 2005. With the receipt of the final post-hearing
brief on October 3, 2005, the case was submitted for decision.
FINDINGS OF FACT
Jones is an employee under the Educational Employment Relations Act (EERA).1
SEIU is an employee organization under EERA and is the exclusive representative of a unit of
1EERA is codified at Government Code section 3540 and following.

employees, including Jones, employed by the Los Angeles Community College District
(District).
The PERB complaint alleges in relevant part:
On or about November 5, 2004, the Charging Party [Jones] spoke
with Respondent's [SEIU's] agent, Rosemary Bowman, about
filing a grievance. Bowman indicated that the Charging Party
should keep her posted regarding the grievance but did not
conduct any investigation into the grievance. 	Bowman failed to
attend a December 17, 2004 meeting with the Charging Party's
employer regarding the grievance. Bowman indicated she was on
vacation when Charging Party left her messages regarding the
meeting, but failed to return his calls when she returned from
vacation. On January 19, 2005, Respondent's agent Bill Lloyd
decided not to take Charging Party's grievance to arbitration
based solely on the District's response and without any
investigation into the grievance. 	The Respondent failed to
respond to the Charging Party's February 9, 2005 letter
requesting a new representative and offering to pay for the
arbitration himself.
The PERB complaint further alleges that this conduct was inconsistent with SEIU's duty of fair
representation and therefore violated EERA section 3543.6 (b).
At the PERB hearing there were three witnesses: 	Jones himself and two SEIU officials,
Bill Lloyd (Lloyd) and Tom Beatty (Beatty). The testimony of all three witnesses was credible
and uncontradicted. 	SEIU official Rosemary Bowman, mentioned in the PERB complaint, was
not a witness.
The facts of this case revolve around a grievance Jones filed on November 7, 2004. In
that grievance, Jones alleged that the District violated its agreement with SEIU by failing "to
protect me against discrimination of hostile acts...by a member of the L.A. County Sheriff
2
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Dept, while working [on campus]."2N As a remedy, Jones requested monetary compensation for
fear, anxiety and distress and that "the offending officer [be] relieved of his duties" on campus.
On November 5, 2004, before filing the grievance, Jones spoke to Bowman by phone.
According to Jones, Bowman told him that "she didn't think I had grounds for a grievance but
if I think I had, file and keep her posted." Jones then started the grievance process and
completed Steps One and Two without SEIU involvement.
On December 10 and 11, 2004, Jones left messages on Bowman's answering machine,
informing her of an upcoming Step Three meeting with the college president and requesting
her presence. Jones did not hear back from Bowman. On December 17, 2004, Jones attended
the Step Three meeting without SEIU representation.
On January 13, 2005, the college president issued a memo to Jones in response to the
Step Three grievance meeting. The memo stated in part:
The college has taken several steps to resolve this matter. First,
as stated in the Step Two response, the grievant's administrative
supervisor, Tom Lopez, Facilities Manager, made arrangements
for the ranking Sheriffs Deputy, Randy Tuinstra, to meet with
the grievant and other members of the custodial staff to discuss
their concerns. 	Second, the administration reported the grievance
to the Sheriffs Office and requested a review through their
process. As a result, until the investigation is completed, the
work schedule for the officer in question has been changed so
that the individual will not be on campus during the grievant's
scheduled work day. 	The issue of completing the changing [of]
the officer's work location is under review by the Sheriffs
internal investigation process. Third, the college is pursuing an
investigation of the allegations of discrimination which were
formally filed by the grievant with the College Compliance
Officer.
At this point, I am not denying or granting the remedy of
relocating the officer because the investigation is incomplete.
w3
Article 3, section D, of the agreement states in part that the District "shall insure that
employees do not work in an environment which is unreasonable, intimidating or hostile." The
section is grievable.

Regarding the request for monetary compensation for the fear,
anxiety and undue stress caused by the officer in question, I am
denying this request because the investigation is incomplete and,
further, because the college is not authorized to grant such a
remedy.
There is no dispute that investigations were launched both by the Sheriffs Department and by
the College Compliance Officer.
Jones spoke to Bowman again on January 17, 2005. When he asked her why she had
not called him about the Step Three meeting, she replied that she was on vacation. There is no
evidence that she was not on vacation or that anyone else was monitoring her answering
machine.
Jones informed Bowman of the completion of Step Three and of his desire to proceed
to Step Four, arbitration. According to Jones, she said she would have to "give the grievance
to a higher authority for their decision on proceeding,"
On January 18, 2005, Jones delivered his grievance documents to SEIU, including a
three-page account of the events giving rise to the grievance. Bowman gave the complete file
to Lloyd, who was responsible for determining which grievances went to arbitration. Lloyd
testified that he had concerns about the remedy Jones had requested in his grievance. 	Lloyd
thought the request for monetary compensation for fear, anxiety and distress "might have
really problems [sic] with the contract section."3 He also thought "there might be problems
with our grievance procedure having a person removed who was not on the payroll for the
College District."
Lloyd described his decision about proceeding to arbitration as follows:
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Article 20, section E.4.h, of the agreement states in part, "If a monetary award, other
than salary for services rendered, is made in excess of $2,500, the Board of Trustees shall
review the arbitrator's decision and render a final decision as to the amount, in excess of
$2,500, to be granted."

My decision was since there were ongoing investigations to let
the investigations proceed and then make an evaluation when the
investigations had been finished.
Lloyd was still open to reviewing the matter once the investigations were over, and he believed
that arbitration was still a possibility. 	Lloyd passed the grievance file on to Beatty for
monitoring and follow-up.
On January 19, 2005, Bowman called Jones. According to Jones, she told him Lloyd
"wanted to wait and see what was the outcome of the sheriff investigation." She also told
Jones to "go ahead and file the grievance with the district as to not miss the 10 day deadline."
On January 26, 2005, Jones filed the grievance at Step Four.
On February 9, 2005, Jones sent SEIU a certified letter, asking that Bowman be
replaced as his representative and offering to pay the costs of arbitration himself. 	The letter
was referred to Beatty, who determined that there was no need to replace Bowman while the
grievance was being held in abeyance. Beatty also told Bowman to tell Jones that SEIU could
not charge unit members for the costs of arbitration. 	Beatty felt that the grievance had
potential merit but that the requested remedy was not attainable.
On February 23, 2005, Jones received a letter from the District stating that he had not
provided documentation verifying the concurrence of SEIU in his Step Four filing. As a result,
his request for arbitration was to remain in abeyance. On that same day, Jones filed his unfair
practice charge against SEIU.
ISSUE
Did SEIU violate its duty of fair representation?
CONCLUSIONS OF LAW
The PERB complaint alleges that SEIU denied Jones the right to fair representation and
thereby violated section EERA 3543.6(b). 	The duty of fair representation imposed on the
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exclusive representative extends to grievance handling. 	(Fremont Teachers Association (King)
(1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258.) In order to state a prima facie violation of this section of EERA, a charging
party must show that the exclusive representative's conduct was arbitrary, discriminatory or in
bad faith. In United Teachers of Los Angeles (Collins), PERB stated:
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.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a charging party:
" . . . must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. 	(Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
With regard to when "mere negligence" might constitute arbitrary conduct, PERB 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. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
66

In the present case, it appears from the evidence that there was some failure of
communication between Jones and SEIU, particularly with regard to the Step Three meeting.
To the extent the failure of communication may be attributed to SEIU, it appears at worst to
have been a matter of mere negligence. Nothing SEIU did or failed to do completely
extinguished the right of Jones to pursue his claim On the contrary, Jones was able to
represent himself at the Step Three meeting with some apparent success, and his Step Four
grievance is only in abeyance.
It also appears from the evidence that SEIU's decision to allow the Step Four grievance
to go into abeyance was not without a rational basis or devoid of honest judgment. Lloyd
testified credibly and without contradiction that he made that decision because of the two
investigations already under way of the facts underlying the grievance. This decision to "wait
and see" was all the more reasonable given the perceived difficulties in obtaining through
arbitration the remedy Jones sought.
Jones faults SEIU for not doing its own investigation of the facts. 	In the circumstances
of his case, however, it seems reasonable for SEIU not to have launched an investigation of its
own. At the time Lloyd made his decision, Jones had already provided SEIU with a three-page
account of the relevant facts. There is no evidence that SEIU had any reason to doubt that
account. Furthermore, as already noted, two investigations of the facts were already under
way. 	SEIU could reasonably hope that those investigations might yield the same information
as would its own investigation.
I conclude that Jones has not proved that SEIU violated its duty of fair representation
and the case should therefore be dismissed.
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PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and the underlying unfair practice charge in Case No.
LA-CO-1192-E, Rickey A. Jones v. SEIU Local 99Ricky A. Jones v. SEIU Local 99. 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 95814-4174
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, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 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 California Code of Regulations, title 8, section 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. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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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, secs. 32300, 32305,
32140, and 32135(c).)
Thomas J. Allen
Administrative Law Judge
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