Service Employees International Union, Local 221 (Meredith) (PERB 1982E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KENNETH MEREDITH,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 221,
Respondent.
Case No. LA-CO-1322-E
PERE Decision No. 	1982
October 24, 2008
Appearance: Kenneth Meredith, on his own behalf
Before Neuwald, Chair; Wesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case
is
before the Public Employment Relations
Board (PERB or Board) on appeal by Kenneth Meredith (Meredith)
of
a Board agent's
dismissal
of
his unfair practice charge. 	The charge alleged that the exclusive representative
of
Meredith's bargaining unit, Service Employees International Union, Local 221 (SEIU),
violated the Educational Employment Relations Act (EERA)1 by: 	(1) violating the collective
bargaining agreement (CBA) between SEIU and Meredith's employer, the Grossmont Union
High School District (District); (2) failing to fairly represent Meredith regarding a demotion;
(3) causing or attempting to cause the District to violate EERA; and (4) failing to meet and
confer in good faith with the District. The Board agent dismissed all allegations.
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, SEIU' s position statement, the Board agent's
1EERA is codified at Government Code section 3540 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.
Kenneth Meredith, on his own behalf.
Respondent.

warning and dismissal letters, and Meredith's appeal. Based on this review, the Board
remands this case to the General Counsel for issuance
of
a complaint on the duty
of
fair
representation allegation consistent with the discussion below. Additionally, the Board affirms
the dismissal
of
the remaining three allegations for the reasons discussed below.
BACKGROUND
The District hired Meredith as an hourly custodian in 2003. 	In 2005, he was promoted
to "Classified, Permanent Custodian." As a result
of
this promotion, Meredith became a
member
of
the bargaining unit represented by SEIU. In April 2007, the District promoted
Meredith to head custodian at Santana High School. The promotion was subject to a 180-day
probation period.
	If
Meredith passed probation, he would attain permanent status in the
position.
Between April and August 2007, SEIU filed grievances with the District on behalf
of
employees supervised by Meredith regarding Meredith's conduct. The charge alleged that
SEIU Treasurer and Shop Steward Elena Long (Long) was the driving force behind these
grievances. More specifically, Meredith alleged that Long "led a crusade to sabotage my
employment by making a hostile environment for me by filing grievances against me and
undermining my authority to direct staff."
On July 18, 2007, Meredith met with Principal Timothy Schwuchow (Schwuchow),
who asked Meredith "to resign or receive a poor evaluation." By letter dated July 29, 2007,
Meredith informed Schwuchow that he refused to resign "for several reasons and that I was not
afforded representation."
On the morning of August 1, 2007, before Meredith reported for work, SEIU
Representative Ken Geary (Geary) met with Meredith's staff, Schwuchow and Meredith's
supervisor, School Facility Manager Therese Torres (Torres). 	When Meredith arrived for
2
position.
BACKGROUND
2

work, Torres called him into her office. Meredith had no advance notice of this meeting.
Sometime during the meeting, Torres asked Meredith if he wanted union representation;
Meredith responded "yes." Despite Meredith's request for representation, the meeting
continued without an SEIU representative being present. During the meeting Torres gave
Meredith an unsatisfactory performance report; the charge does not indicate whether anything
else was discussed during the meeting.
Immediately after his meeting with Torres, Meredith was called in to meet with
Schwuchow. When he arrived, he saw Geary exiting Schwuchow's office. 	Geary told
Meredith that he had met earlier that day with Meredith's staff regarding complaints against
Meredith.
During the meeting, Schwuchow told Meredith that Geary was called to this meeting to
represent Meredith's staff, not him. 	Schwuchow then informed Meredith that he was rejected
on probation and as a result would return to his prior custodian position.2 Meredith placed his
keys and radio on Schwuchow's desk and exited through the back door. 	Sometime later, Long
replaced Meredith as head custodian.
On or about August 21, 2007, Meredith met with SEIU representative Joe (no last name
given) about grieving his rejection on probation. SEIU Chapter President Luis Giorgi (Giorgi)
interrupted the meeting. Giorgi and Joe argued over Joe's right to meet with Meredith
regarding the matter. 	Giorgi then told Joe to "make it fast." Joe resigned from SEIU soon
after the meeting.
Sometime in late October 2007, Meredith met with SEIU representative Alexis (no last
name given). After this meeting, Alexis did not return Meredith's calls.
2Though the charge characterizes this action as a "demotion," it is clear from the facts
alleged in the charge that Meredith was rejected on probation.
3
after the meeting.
3

SEIU's Position Statement
SEIU asserts that Long and Geary had a legal right to meet with Meredith's employees
regarding their complaints against him and to present those complaints to District management.
SEIU claims this conduct did not violate the CBA nor did it constitute an unfair practice.
SEIU claims that Meredith never contacted SEIU about representation for either the
July
18
or August
1,
2007 meetings with Principal Schwuchow. SEIU also points out that the
charge indicates Meredith "was fully aware that Geary was not there to represent him" at the
August 1 meeting with Schwuchow.
Regarding the allegation that SEIU caused or attempted to cause the District to commit
an unfair practice, SEIU notes that the charge is unclear about what unfair practice the District
committed. However, assuming the charge alleged that Meredith's poor evaluation or
demotion was caused by SEIU, SEIU reiterates that it had a legal right to bring grievances
against Meredith and therefore its conduct was not unlawful.
Finally, SEIU asserts that Meredith
as
an individual has no standing to bring a charge
alleging that SEIU failed to bargain in good faith with the District.
Dismissal
After stating that PERB has no authority to enforce a CBA, the Board agent analyzed
whether the charge alleged a prima facie case
of
any unfair practices by SEIU.
Looking first at the allegation that SEIU breached its duty to fairly represent Meredith,
the Board agent observed that while the charge showed that Meredith asked for representation
on August 1, 2007, the charge did not state whether or how SEIU responded to the request.
The Board agent also concluded that the charge failed to establish that Geary or Long "acted in
bad faith or without a rational basis" by representing Meredith's staff in their grievances
against him. Regarding Meredith's attempts to obtain SEIU representation after his rejection
4

on probation, the Board agent concluded that the charge did not establish a violation because it
did not detail the extent
of
Meredith's contacts with SEIU nor did it show that SEIU' s
assistance was required for Meredith to file a grievance over the matter.
Turning to the allegation that SEIU caused or attempted to cause the District to commit
an unfair practice, the Board agent read the charge to allege that the District committed an
unfair practice by demoting Meredith. 	The Board agent concluded that while the District
demoted Meredith shortly after his request for representation on August
1,
2007, this was
insufficient to establish that the District demoted Meredith because
of
his protected activity.
Moreover, the Board agent found no evidence that SEIU had taken any affirmative action to
cause or attempt to cause the District to discriminate against Meredith. Nor did the Board
agent find any evidence that SEIU itself had discriminated against Meredith.
Finally, the Board agent found that Meredith lacked standing to allege that SEIU failed
to bargain in good faith with the District or to allege violations
of
SEIU's rights under various
EERA provisions.
Meredith's Appeal
On appeal, Meredith does not challenge the dismissal
of
the allegations that the Board
agent found he had no standing to raise. 	In his appeal letter, Meredith reiterates his argument
that Long's violations
of
the CB
A's union access provision constituted an unfair practice under
EERA. As for the allegation that SEIU caused or attempted to cause the District to violate
EERA, Meredith merely states that SEIU's "bad faith and/or inaction aided and/or directed the
clear EERA violation/s by the District's representatives."
Regarding the fair representation allegation, Meredith argues that "Geary could not
have provided me with any representation because I had no related discussion with him about
my evaluation or demotion before, during, or after my demotion date." Additionally, he
5
an unfair practice, the Board agent read the charge to allege that the District committed an
insufficient to establish that the District demoted Meredith because of his protected activity.
Turning to the allegation that SEIU caused or attempted to cause the District to commit
5

contends that Geary could not have provided him with the individual representation to which
he was entitled because Geary was working with Meredith's staff to demote him. Meredith
further asserts that SEIU's failure to provide him with representation after his demotion
prevented him from filing a grievance over the demotion.
DISCUSSION
1.
	Alleged Union Access Violations	1.
2.
The unfair practice charge alleged that SEIU Shop Steward Long violated the union
access provision
of
the CBA by not providing Meredith 24 hours' notice before meeting with
Moreover, the Board agent found no evidence that SEIU had taken any affirmative action to	his staff during work hours or obtaining his permission to do so. PERB has no jurisdiction to
remedy a violation
of
a CBA unless the violation also constitutes an unlawful unilateral
change. (Grant Joint Union High School District (1982) PERB Decision No. 196.) Thus, to
the extent the charge alleged an isolated breach
of
the CBA, PERB had no jurisdiction over the
charge. Further, Meredith does not have standing to allege a unilateral change because SEIU
has no statutory duty to meet and confer in good faith with him as an individual. (Union
of
American Physicians and Dentists (Menaster) (2007) PERB Decision No. 1918-S.) For these
reasons, the Board agent properly dismissed the allegation that SEIU' s alleged violation
of
the
union access provision of the CBA also violated EERA.
2. Duty
of
Fair Representation
The unfair practice charge alleged that SEIU breached its duty of fair representation by:
( 1) not providing Meredith with representation during the August 1, 2007 meetings about his
unsatisfactory performance evaluation and rejection on probation; and (2) not providing him
with representation so that he could file a grievance over these issues. Meredith renews these
arguments on appeal.
6	6

7
"The employee organization recognized or certified as the exclusive representative for
the purpose
of
meeting and negotiating shall fairly represent each and every employee in the
appropriate unit." (EERA sec. 3544.9.) A breach
of
this duty
of
fair representation constitutes
an unfair practice under EERA section 3543.6(b). In order to state a prima facie violation
of
this section, Meredith must show that SEIU's conduct was arbitrary, discriminatory or in bad
faith. 	(Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124.)
To establish arbitrary conduct by SEIU, Meredith must allege "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." (Reed District Teachers Association
(Reyes) (1983) PERB Decision No. 332 [emphasis added].)
When a charge alleges that the exclusive representative's failure to act on behalf
of
an
employee constituted a breach
of
its duty
of
fair representation, PERB looks to whether "the
cumulative actions
of
the exclusive representative, considered in their totality, [are] sufficient
to constitute a prima facie showing
of
an arbitrary failure to fairly represent the employee."
(American Federation
of
State, County and Municipal Employees, International, Council 57
(Dehler) (1996) PERB Decision No. 1152-H (AFSCME (Dehler)).) A prima facie case may be
established based on an overall pattern
of
conduct even
if
any one of the exclusive
representative's actions by itself would not breach the duty
of
fair representation. (AFSCME
(Dehler); San Francisco Classroom Teachers Association (Bramell) (1984) PERB Decision
No. 430 (San Francisco Classroom Teachers Association).)
During Meredith's meeting with his supervisor, Torres, on August 1, 2007, after being
asked, he indicated that he wanted union representation. SEIU Representative Geary was on
campus at that time but did not represent Meredith in, nor did he attend, the meeting with
Meredith and Torres. Immediately after his meeting with Torres, Meredith was called in to
7

meet with Principal Schwuchow. On his way into Schwuchow' s office, Meredith ran into
Geary. 	Geary told him that earlier that day he had met with Meredith's staff regarding
complaints against him. During the meeting, Schwuchow told Meredith that Geary was called
into that meeting to represent Meredith's staff, not Meredith. Thus, Geary appropriately did
not act as an advocate for Meredith during the meeting with Schwuchow. However, as a
result, Meredith was not represented by SEIU in this meeting either. Thus, the charge alleges
facts showing that SEIU provided Meredith with no representation at all on August 1.
8
After his rejection on probation, Meredith twice contacted SEIU about grieving his
rejection. Each time he met briefly with an SEIU representative. Chapter President Giorgi
interrupted the first meeting and argued with the representative, Joe, over whether Joe had a
right to meet with Meredith regarding the rejection on probation. The chapter president then
told Joe to make the meeting "fast." Joe resigned from the union approximately a week after
this meeting. It took almost two months for SEIU to assign another representative to
Meredith's case. After meeting once with Meredith, this representative did not return
Meredith's calls.
When viewed as a whole, the above alleged facts show that SEIU made no effort to
represent Meredith regarding his rejection on probation despite Meredith's multiple attempts to
enlist SEIU' s assistance. Under these circumstances, SEIU could not have made an "honest
and reasonable determination" about the merits of Meredith's case. (See Oxnard Federation of
Teachers (Torres) (2002) PERB Decision No. 1494 [a union "may refuse to pursue a grievance
if the union makes an honest and reasonable determination that the grievance lacks merit"].)
Indeed, SEIU' s lack of representation falls below that of the unions in both AFSCME (Dehler)
and San Francisco Classroom Teachers Association, where in each case the union filed a
grievance on behalf of the employee and then abandoned it without explanation. In both cases,
8

the Board found that the charge established a prima facie case
of
arbitrary failure to represent
the employee. Similarly, Meredith's charge alleged a pattern
of
conduct by SEIU which
demonstrated that the union arbitrarily failed to represent him regarding his rejection on
probation. Because this is sufficient to establish a prima facie case
of
a breach
of
the duty
of
fair representation, the Board agent should have issued a complaint on this allegation.
3. Causing or Attempting to Cause the District to Violate EERA
The unfair practice charge alleged that the District demoted Meredith in retaliation for
his protected activity. It further alleged that SEIU caused or attempted to cause the District to
demote Meredith. More specifically, the charge asserted that Long and Geary's solicitation
of
grievances against Meredith from his staff caused the District to demote him.
9
Under EERA, it is unlawful for an employee organization to cause or attempt to cause an
employer to commit an unfair practice. (EERA sec. 3543.6(a).) A violation
of
this provision
may only be established by a clear showing
of
how and in what manner the employee
organization affirmatively acted to cause or attempt to cause the unfair practice. (Tustin Unified
School District (1987) PERB Decision No. 626.) In addition, the facts must establish a causal
connection between the employds unlawful conduct and the employee organization's behavior.
(State
of
California (Department
of
Personnel Administration) (1987) PERB Decision
No. 609-S.)
Thus, before examining SEIU' s actions, it is necessary to determine whether the charge
established an unfair practice by the District. The charge alleged that the District rejected
Meredith on probation in retaliation for his engagement in protected activity. To demonstrate
retaliation in violation ofEERA section 3543.S(a), Meredith must show that: 	(1) he exercised
rights under EERA; (2) the District had knowledge of the exercise of those rights; and (3) the
District imposed or threatened to impose reprisals, discriminated or threatened to discriminate,
9

or otherwise interfered with, restrained, or coerced Meredith because
of
the exercise
of
those
rights. 	(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad
Unified School District (1979) PERB Decision No. 89.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more
of
the following additional factors must also be present: 	(1) the employer's disparate
treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation
of
the employee's misconduct (Trustees
of
the California
State University (1990) PERB Decision No. 805-H); (5) the employer's failure to offer the
employee justification at the time it took action or the offering
of
exaggerated, vague, or
ambiguous reasons (McFarland Unified School District (1990) PERB Decision No. 786); (6)
employer animosity towards union activists (Cupertino Union Elementary School District
(1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (Novato; North Sacramento.)
The only protected activity alleged in the charge is Meredith's request for union
representation on August 1, 2007. (San Diego Unified School District (1991) PERB Decision
No. 885.) Meredith's rejection on probation that same day constituted adverse action.
10

(Madera County Office
of
Education (1999) PERB Decision No. 1334; State
of
California
(Department of Industrial Relations) (1998) PERB Decision No. 1299-S.) While the adverse	adverse
action certainly occurred close in time to Meredith's protected activity, the charge fails to
establish that the District rejected Meredith because
of
his request for union representation. On
July 17, 2008, Schwuchow gave Meredith the option to resign in lieu
of
receiving a poor
performance review. This indicates that the District had already decided as
of
this date to
reject him on probation. Accordingly, the rejection was not the result
of
Meredith's later
request for union representation. 3
Nonetheless, even
if
Meredith's rejection on probation was retaliatory, the charge fails
to establish that SEIU acted affirmatively to cause the District to retaliate against him. 	The
charge alleged that SEIU filed grievances against Meredith with the aim
of
having him
removed as head custodian. Even assuming that SEIU had such a motive, the charge fails to
establish that by filing these grievances SEIU caused or attempted to cause the District to
retaliate against Meredith because
of
his protected activity. 	Thus, even
if
the grievances
played a part in the District's decision to reject Meredith on probation, the charge does not
establish that those grievances induced, or attempted to induce, the District to violate EERA.
On appeal, Meredith argues that SEIU's "bad faith and/or inaction aided and/or directed
the clear EERA violation/s by the District's representatives." In essence, Meredith asserts that
by failing to fairly represent him, SEIU caused or attempted to cause the District to violate
EERA. PERB rejected a similar argument in Los Rios College Federation
of
Teachers
11
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
request for union representation.'
'The charge asserts that in rejecting Meredith, the District failed to follow proper	The charge asserts that in rejecting Meredith, the District failed to follow proper
procedures, conducted a cursory investigation of his alleged misconduct, and failed to provide	procedures, conducted a cursory investigation of his alleged misconduct, and failed to provide
him with "unambiguous and unexaggerated reasons" for his rejection. The charge provides no	him with "unambiguous and unexaggerated reasons" for his rejection. The charge provides no
factual support for these assertions. Because mere legal conclusions are not sufficient to state	factual support for these assertions. Because mere legal conclusions are not sufficient to state
a prima facie case	a prima facie case (Charter Oak Unified School District (1991) PERB Decision No. 873), these	(Charter Oak Unified School District (1991) PERB Decision No. 873), these
assertions do not establish the required nexus between Meredith's protected activity and the	assertions do not establish the required nexus between Meredith's protected activity and the
District's adverse action.	District's adverse action.
11

(Deglow) (1999) PERB Decision No. 1651. In that case, PERB found an allegation that the
union failed to represent the charging party in grievance matters insufficient to establish a
violation of EERA section 3543.6(a) because it did not show that the union had acted
affirmatively "to encourage or assist" the employer in discriminating or retaliating against the
charging party. 	The Board made this finding even though the General Counsel had issued a
complaint against the union alleging a breach of the duty of fair representation based on the
same facts. 	Therefore, even though we find the charge established a prima facie case of a
breach of the duty of fair representation by SEIU, this is not enough to establish that SEIU
caused or attempted to cause the District to violate EERA. Accordingly, we affirm the Board
agent's dismissal of this allegation.
ORDER
The Board partially AFFIRMS the dismissal in Case No. LA-C0-1322-E and
REVERSES and REMANDS the remainder of the charge to the Office of the General Counsel
for issuance of a complaint consistent with this Decision.
Chair Neuwald and Member Wesley joined in this Decision.
12	12