Service Employees International Union Local 1021 (Lam) (PERB 2076M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED LAM,
Charging Party,
V.
SEIU LOCAL 1021,
Respondent.
Case No. SF-CO-181-M
PERB Decision No. 2076-M
November 4, 2009
Appearance: Alfred Lam, on his own behalf.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Alfred Lam (Lam) of a Board agent's
dismissal of his unfair practice charge. The charge alleged that the exclusive representative of
Lam's bargaining unit, SEIU Local 1021 (SEIU), violated the Meyers-Milias-Brown Act
(MMBA) 1 by: (1) colluding with Lam's employer, the City and County of San Francisco
(City), to close two grievances filed by Lam;2 (2) failing to notify Lam or local SEIU officers
of the grievance closure; and (3) failing to return Lam's telephone calls. The Board agent
dismissed the charge on the grounds that it was untimely filed and failed to state a prima facie
case of breach of the duty of fair representation.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 The City's role in the closure of Lam's grievances is the subject of the unfair practice
charge in Case No. SF-CE-574-M. Lam's appeal of the dismissal of that charge is addressed in
a separate Board decision.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALFRED LAM,
Charging Party, 	Case No. SF-CO-181-M
v . 	PERB Decision No. 2076-M
SEIU LOCAL 1021, 	November 4, 2009
Respondent.
Appearance: Alfred Lam, on his own behalf.
Before Dowdin Calvillo, Acting Chair; Mckeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Alfred Lam (Lam) of a Board agent's
dismissal of his unfair practice charge. The charge alleged that the exclusive representative of
Lam's bargaining unit, SEIU Local 1021 (SEIU), violated the Meyers-Milias-Brown Act
(MMBA)' by: (1) colluding with Lam's employer, the City and County of San Francisco
(City), to close two grievances filed by Lam;" (2) failing to notify Lam or local SEIU officers
of the grievance closure; and (3) failing to return Lam's telephone calls. The Board agent
dismissed the charge on the grounds that it was untimely filed and failed to state a prima facie
case of breach of the duty of fair representation.
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 The City's role in the closure of Lam's grievances is the subject of the unfair practice
charge in Case No. SF-CE-574-M. Lam's appeal of the dismissal of that charge is addressed in
a separate Board decision.

The Board has reviewed the dismissal and the record in light of Lam's appeal and the
relevant law. Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
BACKGROUND
Lam is employed by the City as a counselor in the Juvenile Probation Department. On
June 19, 2007, Lam filed a grievance alleging that he had been verbally harassed by his
supervisor in retaliation for filing a complaint against the supervisor. The grievance was
signed by an SEIU steward. On July 25, 2007, Lam filed a grievance alleging that Asian
American employees were being unfairly targeted for disciplinary action. Again, the grievance
was signed by an SEIU steward.
On August 15, 2007, Lam sent two letters to the Chief Probation Officer moving both
grievances to Level II. SEIU Local Vice President Kirk Edwards (Edwards) signed both
letters. On September 5, 2007, Lam sent letters to the City's Employee Relations Division
moving both grievances to Level III because the City had not responded to the grievances at
Level II. Edwards again signed the letters.
On July 21, 2008, Lam called the Employee Relations Division to ask about the status of
his two grievances. He was informed that both grievances were closed by City Labor Relations
Manager Mary Hao and SEIU Worksite Organizer Margot Reed on January 25, 2008.
On July 25, 2008, Lam filed the instant unfair practice charge alleging that SEIU
breached its duty of fair representation by colluding v~vith the City to close his grievances and
failing to notify him or any local SEIU official of the closure. The charge further aiieged that
Lam made "numerous attempts" to contact SEIU about his grievances.
The Board agent dismissed the charge on two grounds. First, she found the charge
untimely because it was not filed until seven months after SEIU stopped pursuing his
2
The Board has reviewed the dismissal and the record in light of Lam's appeal and the
relevant law. Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
BACKGROUND
Lam is employed by the City as a counselor in the Juvenile Probation Department. On
June 19, 2007, Lam filed a grievance alleging that he had been verbally harassed by his
supervisor in retaliation for filing a complaint against the supervisor. The grievance was
signed by an SEIU steward. On July 25, 2007, Lam filed a grievance alleging that Asian-
American employees were being unfairly targeted for disciplinary action. Again, the grievance
was signed by an SEIU steward.
On August 15, 2007, Lam sent two letters to the Chief Probation Officer moving both
grievances to Level II. SEIU Local Vice President Kirk Edwards (Edwards) signed both
letters. On September 5, 2007, Lam sent letters to the City's Employee Relations Division
moving both grievances to Level III because the City had not responded to the grievances at
Level II. Edwards again signed the letters.
On July 21, 2008, Lam called the Employee Relations Division to ask about the status of
his two grievances. He was informed that both grievances were closed by City Labor Relations
Manager Mary Hao and SEIU Worksite Organizer Margot Reed on January 25, 2008.
On July 25, 2008, Lam filed the instant unfair practice charge alleging that SEIU
breached its duty of fair representation by colluding with the City to close his grievances and
failing to notify him or any local SEIU official of the closure. The charge further alleged that
Lam made "numerous attempts" to contact SEIU about his grievances.
The Board agent dismissed the charge on two grounds. First, she found the charge
untimely because it was not filed until seven months after SEIU stopped pursuing his
2

grievances and the charge failed to establish that he could not have learned this through the
exercise
of
reasonable diligence. Second, the Board agent found that Lam failed to allege any
facts to show that SEIU acted arbitrarily, discriminatorily, or in bad faith by participating in
the closure
of
Lam's grievances.
On appeal, Lam contends that SEIU "corroborated" with the City to close his
grievances because it did not want to "alienate" the City. The appeal also reiterates the
allegation that SEIU refused to return Lam's telephone calls.
DISCUSSION
1.
	Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing
of
the charge.
(Coachella Valley Mosquito & Vector Control Dist.
v.
Public Employment Relations Bd.
(2005) 3 5 Cal.4th 1072.) The limitations period begins to run once the charging party knows,
or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177.)3 In cases alleging a breach
of
the duty
of
fair representation, the six-month statutory limitations period begins to run on the date when the
charging party, in the exercise
of
reasonable diligence, knew or should have known that further
assistance from the union was unlikely. ( United Teachers
of
Los Angeles (Hopper) (2001)
PERB Decision No. 1441; Los Rios College Federation
of
Teachers, CFTIAFT (Violett, et al.)
(1991) PEPJ3 Decision }~o. 889.)
P.J,.
charging party bears the burden
of
demonstrating that the
charge is timely filed. (Long Beach Community College District (2009) PERB Decision
No. 2002.)
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608.)
3
grievances and the charge failed to establish that he could not have learned this through the
exercise of reasonable diligence. Second, the Board agent found that Lam failed to allege any
facts to show that SEIU acted arbitrarily, discriminatorily, or in bad faith by participating in
the closure of Lam's grievances.
On appeal, Lam contends that SEIU "corroborated" with the City to close his
grievances because it did not want to "alienate" the City. The appeal also reiterates the
allegation that SEIU refused to return Lam's telephone calls.
DISCUSSION
1 . 	Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito & Vector Control Dist. v. Public Employment Relations Bd.
(2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging party knows,
or should have known, of the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177.)' In cases alleging a breach of the duty of
fair representation, the six-month statutory limitations period begins to run on the date when the
charging party, in the exercise of reasonable diligence, knew or should have known that further
assistance from the union was unlikely. (United Teachers of Los Angeles (Hopper) (2001)
PERB Decision No. 1441; Los Rios College Federation of Teachers, CFT/AFT (Violett, et al.)
(1991) PERB Decision No. 889.) A charging party bears the burden of demonstrating that the
charge is timely filed. (Long Beach Community College District (2009) PERB Decision
No. 2002.)
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
3

The charge alleged that SEIU breached its duty of fair representation by colluding with
the City to close Lam's grievances on January 25, 2008, and thereafter failing to notify him or
local SEIU officers of the closure. Lam filed the instant unfair practice charge on July 25, 2008,
exactly six months to the day after the alleged breach. Thus, these allegations are timely.
However, the charge did not state when Lam contacted SEIU about his grievances. Therefore,
Lam has not met his burden of demonstrating that the allegation regarding SEIU' s failure to
return his telephone calls is timely.
2. 	Breach of Duty of Fair Representation	Breach of Duty of Fair Representation
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 Local
Union No. 3 (1995) 35 Cal.App.4th 1213, 1219, citing Vaca v. Sipes (1967) 386 U.S. 171.) 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
hovv it properly exercised its discretion. ( United Teacl1ers 	Los ,(4ngeles (Tif1yler) ( 1993) PERB
Decision No. 970.)
The duty of fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Unified School District Teachers Association, CTAINEA (King)
(1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
4
The charge alleged that SEIU breached its duty of fair representation by colluding with
the City to close Lam's grievances on January 25, 2008, and thereafter failing to notify him or
local SEIU officers of the closure. Lam filed the instant unfair practice charge on July 25, 2008,
exactly six months to the day after the alleged breach. Thus, these allegations are timely.
However, the charge did not state when Lam contacted SEIU about his grievances. Therefore,
Lam has not met his burden of demonstrating that the allegation regarding SEIU's failure to
return his telephone calls is timely.
2.
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 Local
Union No. 3 (1995) 35 Cal.App.4th 1213, 1219, citing Vaca v. Sipes (1967) 386 U.S. 171.) 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.)
The duty of fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Unified School District Teachers Association, CTA/NEA (King)
(1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB
4

Decision No. 258.) The Board has held that an exclusive representative's settlement
of
a
grievance without consulting the grievant does not constitute "arbitrary conduct" that would
breach the duty
of
fair representation. (Hart District Teachers Association (Mercado and
Bloch) (2001) PERB Decision No. 1456.)
The facts alleged in the charge show that SEIU pursued Lam's grievances up to
Level III and then closed them in consultation with the City on January 25, 2008. The charge
did not allege any facts establishing that SEIU acted arbitrarily, discriminatorily, or in bad faith
by participating in the closure
of
Lam's grievances. Nor did SEIU's failure to consult with
Lam prior to the closure constitute a breach
of
the duty
of
fair representation.
As for SEIU's failure to notify Lam
of
the closure
of
his grievances, the charge alleged
no facts indicating that SEIU intentionally withheld this information from him. Thus, the
charge did not establish anything more than negligence on the part
of
SEIU. "The duty
of
fair
representation is not breached by mere negligence." (Hussey
v.
Operating Engineers, supra,
35 Cal.App.4th at p. 1219.) PERB has held that a union's negligent conduct breaches the duty
of
fair representation only when it "completely extinguishes the employee's right to pursue his
claim." (Coalition
of
University Employees (Buxton) (2003) PERB Decision No. 1517-H,
quoting Dutrisac
v.
Caterpillar Tractor
Co.
(9th Cir. 1983) 749 F.2d 1270, 1274.)
The charge alleged no facts demonstrating that SEIU's failure to notify Lam
of
the
closure
of
his grievances had any effect on his ability to further pursue those grievances. The
charge did not establish that Lam, as an individual employee, could pursue his grievances
beyond Level III without SEIU's approval. Thus, even if SEIU had informed Lam
of
the
closure immediately, the charge failed to establish that he had any means to pursue his
grievances at that point. Accordingly, SEIU's negligent conduct did not breach its duty of fair
representation.
5
Decision No. 258.) The Board has held that an exclusive representative's settlement of a
grievance without consulting the grievant does not constitute "arbitrary conduct" that would
breach the duty of fair representation. (Hart District Teachers Association (Mercado and
Bloch) (2001) PERB Decision No. 1456.)
The facts alleged in the charge show that SEIU pursued Lam's grievances up to
Level III and then closed them in consultation with the City on January 25, 2008. The charge
did not allege any facts establishing that SEIU acted arbitrarily, discriminatorily, or in bad faith
by participating in the closure of Lam's grievances. Nor did SEIU's failure to consult with
Lam prior to the closure constitute a breach of the duty of fair representation.
As for SEIU's failure to notify Lam of the closure of his grievances, the charge alleged
no facts indicating that SEIU intentionally withheld this information from him. Thus, the
charge did not establish anything more than negligence on the part of SEIU. "The duty of fair
representation is not breached by mere negligence." (Hussey v. Operating Engineers, supra,
35 Cal.App.4th at p. 1219.) PERB has held that a union's negligent conduct breaches the duty
of fair representation only when it "completely extinguishes the employee's right to pursue his
claim." (Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H,
quoting Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1274.)
The charge alleged no facts demonstrating that SEIU's failure to notify Lam of the
closure of his grievances had any effect on his ability to further pursue those grievances. The
charge did not establish that Lam, as an individual employee, could pursue his grievances
beyond Level III without SEIU's approval. Thus, even if SEIU had informed Lam of the
closure immediately, the charge failed to establish that he had any means to pursue his
grievances at that point. Accordingly, SEIU's negligent conduct did not breach its duty of fair
representation.
5

As for the allegation that SEIU breached its duty
of
fair representation by failing to
notify local SEIU officers
of
the grievance closure, this is an internal union matter which
PERB may not review because Lam has not demonstrated that the lack
of
communication had
a substantial impact on his employment relationship with the City. (Service Employees
International Union, Local 221 (Kroopkin) (2009) PERB Decision No. 2006-M; Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
ORDER
The unfair practice charge in Case No. SF-CO-181-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
6
As for the allegation that SEIU breached its duty of fair representation by failing to
notify local SEIU officers of the grievance closure, this is an internal union matter which
PERB may not review because Lam has not demonstrated that the lack of communication had
a substantial impact on his employment relationship with the City. (Service Employees
International Union, Local 221 (Kroopkin) (2009) PERB Decision No. 2006-M; Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
ORDER
The unfair practice charge in Case No. SF-CO-181-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Wesley joined in this Decision.
6