Service Employees International Union Local 521 (Chow) (PERB 2186M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ELAINE CHOW,
Charging Party, Case No. SF-CO-241-M
v. PERB Decision No. 2186-M
SEIU LOCAL $21, June 15, 2011
Respondent.

Appearances: Elaine Chow, on her own behalf; Weinberg, Roger & Rosenfeld by Kerianne R.
Steele, Attorney, for SEIU Local 521.

Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Elaine Chow (Chow) of a Board agent’s dismissal
(attached) of her unfair practice charge. The charge alleged that SEIU Local 521 (SEIU)
breached its duty of fair representation under the Meyers-Milias-Brown Act (MMBA)' by
failing to adequately assist Chow in resolving what Chow perceived as a “hostile work
environment” in her employment with the County of San Mateo. The Board agent found that
the charge failed to state a prima facie violation of the duty of fair representation.

The Board has reviewed the dismissal and the record in light of Chow’s appeal, SETU’s
response thereto, and the relevant law. Based on this review, we find the dismissal and
warning letters to be well-reasoned, adequately supported by the record, and in accordance

with applicable law. Accordingly, the Board adopts the dismissal and warning letters as the

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

decision
of
the Board itself, supplemented by the discussion below regarding issues raised on
appeal.
A. 	Timeliness
of
Appeal
SEIU asserts that the appeal is subject to dismissal because it was not timely filed. 	An
appeal from a Board agent's decision to dismiss an unfair practice charge must be filed within
20 calendar days from service
of
the dismissal. (PERB Reg. 32635(a).)2 In computing the
time period under PERB regulations, a five-day extension
of
time applies to any filing made in
response to documents served by mail. 	(PERB Reg. 32130(c).) When the last day to perform
an act falls on a Saturday, Sunday or holiday, the time period for filing is extended to the next
business day. (PERB Reg. 32130(b).)
The Board agent's decision dismissing the charge was served by mail on January 27,
2011. Accordingly, Chow had until February 22, 2011, within which to file an appeal from
dismissal
of
the charge.3 Therefore, Chow's appeal filed on February 22, 2011 was timely.
B. 	New Evidence and Allegations on Appeal
In her appeal, Chows presents new evidence and raises new factual allegations that were
not presented in the original charge. The evidence and allegations all relate to her claims that
SEIU breached its duty
of
fair representation by failing to adequately assist her in resolving her
workplace issues. "Unless good cause is shown, a charging party may not present on appeal new
charge allegations or new supporting evidence." (PERB Reg. 32635(b); see also CSU
Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.) The Board
has found good cause when "the information provided could not have been obtained through
2 PERB regulations are codified at California Code of Regulations, title 8,
section 3 1001 et seq.
3 Because the last day to file after applying the 5-day extension fell on a state holiday,
the deadline was extended by one additional day.
2

reasonable diligence prior to the Board
agent's
dismissal
of
the charge." (Sacramento City
Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
On
January 18, 2011, the
Board agent issued a letter advising Chow that the charge failed to state a prima facie case
and
warning her that the charge would be dismissed unless she amended the charge to state a
prima
facie case. Chow did not file an amended charge. Therefore, the Board agent dismissed
Chow's
charge on January 27, 2011. All
of
the dates
of
the events alleged for the first time on appeal
predate the dismissal, and the appeal provides no reason why they could not have been alleged in
the original charge or in an amended charge. Thus, we find no good cause to consider these
new
allegations and evidence.
ORDER
The unfair practice charge in Case No. SF-CO-241-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Martinez and Member McKeag joined in this Decision.
3

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMEl\ _._ RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
January 27, 2011
Elaine Chow
631 Orchid Drive
South San Francisco, CA 94080
Re: 	Elaine Chow v. SEIU Local 521
Unfair Practice Charge No. SF-CO-241-M
DISMISSAL LETTER
Dear Ms. Chow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 22, 2010. Elaine Chow (Chow or Charging Party)
alleges that SEIU Local 521 (SEIU or Respondent) violated the Meyers-Milias-Brown Act
(MMBA or Act) 1 by breaching its duty of fair representation.
Charging Party was informed in the attached Warning Letter dated January 18, 2011, 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 that 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 January 25, 2011, the charge would be
dismissed.
PERB has not received either an amended charge or a request for withdrawal. On January 26,
2011, the undersigned Board Agent spoke with Charging Party who stated she would not be
filing an amended charge. Therefore, the charge is hereby dismissed based on the facts and
reasons set forth in the January 18, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-241-M
January 27, 2011
Page 2
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB 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. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
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. (Cal. Code Regs, tit. 8, § 32635, subd. (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 Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personaily delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (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. (Cal. Code Regs, tit. 8, § 32132.)

SF-CO-241-M
January 27, 2011
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim~e1 Counsel
/ 	.
(
By___..__..,.___________ _
Katharine
Regional
Attachment
cc: 	Kerianne R. Steele, Attorney

STATE OF CALIFORNIA
EDMUND G. BROWN JR., Governor
EDMUND G. BROWN 	Governor
PUBLIC EMPLOYME~ ,,_ RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
January 18, 2011
Elaine Chow
631 Orchid Drive
South San Francisco, CA 94080
Re: 	Elaine Chow v. SEIU Local 521
Unfair Practice Charge No. SF-CO-241-M
WARNING LETTER
Dear Ms. Chow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 22, 2010. Elaine Chow (Chow or Charging Party)
alleges that SEIU Local 521 (SEIU or Respondent) violated the Meyers-Milias-Brown Act
(MMBA or Act) 1 by breaching its duty of fair representation.
Factual Background As Alleged
In April 2010, Chow starting making telephone contact with SEIU Lead Internal Organizer
Brady Calma (Calma) concerning problems she was having with her department manager, Bob
Alder (Alder). According to the charge, Calma acknowledged that Chow was being treated
unfairly and stated that he "would be [her] voice" in speaking to Alder.
Shortly thereafter, Calma assigned SEIU representative Nick Raisch (Raisch) to assist Chow.
According to the charge, Raisch was "not very good at returning calls." Chow would call
Raisch daily or several times a week, "but would not always get a call back."
On May 5, 2010, Raisch sent Chow an e-mail message arranging a meeting to prepare her to
meet with Alder. According to the charge, no meeting between SEIU and Alder ever occurred.
There was allegedly a meeting scheduled on June 3, 2010, however Charging Party states that
SEIU failed to show up or reschedule the meeting.
The charge also states that Raisch told Chow that he would carbon copy (cc) her on his
interactions with her employer, "but [she] has yet to ever receive any e-mails." In addition,
Raisch and Calma allegedly informed Chow that "they would seek a transfer for [her] and on
two occasions [she] told them there were other positions open with [her] job title yet [she] was
never set up for any interviews." According to Chow, there was a position open in her
department that was given to a temporary employee instead of her.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SF-CO-241-M
January 18, 2011
Page 2
The charge states next that:
On May 5, May 13, May 19, May 24, May 25, June 3, June 6,
June 7, June 11, June 13, June 15, June 18, June 20, June 21, June
22, June 28, June 30, July 1, July 7, July 14, July 21, July 23, July
29, July 30, July 31, Aug 2, Aug 3, Aug 4, Aug 5, Aug 6, Aug 10
and Aug 25, I had e-mailed to [Raisch] asking him to help me.
Many of my e-mails' subjects was "PLEASE CALL ME" or
"PLEASE HELP ME." He replied only a handful of times
assuring me that he was working on it. I had called and e-mailed
[Calma] on many occasions as well telling him that I was not
getting any results from [Raisch] but it also fell on deaf ears.
Finally on August 5, I called [SEIU] to ask to speak with a
supervisor as I was being ignored and was referred to Carmen
Hernandez. 	She said she would look into this and get back to me.
She asked me to fax her details of my work environment which I
did twice but she never responded back to me. I called back on
August 9 only for her to tell me that [SEIU] did all they could to
assist me and that they can not force an interview for me.
Discussion
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an
unfair practice. (State of California (Department of Food and Agriculture) ( 1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
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.4th
1213.) 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. 14 74-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
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-241-M
J
P
in such cases, including Reed District Teachers Association, CTAINEA (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).
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. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v.
Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
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), supra, 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 Board has long held that the duty of fair representation is limited to negotiations and
contractually based remedies under the union's exclusive control. (California School
Employees Association & its Chapter 130 (Simpson) (2003) PERB Decision No. 1550.) In
general, the duty of fair representation attaches only when the union "possesses the exclusive
means by which such employees can obtain a particular remedy." (San Francisco Classroom
Teachers Association, CTA/NEA (Chestangue) (1985) PERB Decision No. 544 [association not
required to represent teacher in Education Code proceedings].) The exclusive representative
only possesses exclusive access to matters within the scope of the collective bargaining
agreement, such as the negotiations process, grievances, and arbitration.3 (Ibid.)
anuary 18, 2011
age 3
To the extent that Charging Party is alleging that SEIU breached its duty of fair
representation by failing to file a grievance on Chow's behalf, the Board has held that while
the duty of fair representation extends to grievance handling by the exclusive representative
(Fremont Teachers Association (King) (1980) PERB Decision No. 125), a reasonable decision
not to pursue a grievance, regardless of the merits of the grievance, is not a violation of the
duty of fair representation. (California State Employees Association (Calloway) (1985) PERB
Decision No. 497.) In order for PERB to find a breach of the duty of.fair representation, the
charge must include facts demonstrating that the Union's decision not to pursue a grievance on
Charging Party's behalf was arbitrary, discriminatory or in bad faith. Here, after multiple
communications with SEIU, Chow was informed that SEIU could not assist her further because
3
It is unclear from the charge whether there was a possible contract violation at issue.

SF-CO-241-M
January 18, 2011
Page 4
they could not "force an interview" for her. No information presented herein demonstrates that
SEIU's decision not to pursue a grievance was arbitrary or in bad faith.
Charging Party alleges no other facts to demonstrate that SEIU abused its discretion or that its
actions were without a rational basis or devoid of honest judgment. (International Association
of Machinists (Attard), supra, PERB Decision No. 1474-M; United Teachers 	Los Angeles
(Wyler), supra, PERB Decision No. 970.) Merely alleging that the Union failed to return every
phone call is insufficient to establish an overall pattern of conduct. (Service Employees
International Union, Local 221 (Meredith) (2008) PERB Decision No. 1982.) As such, the
charge fails to state a prima facie violation of the duty of fair representation.
For these reasons the charge, as presently written, does not state a prima facie case. 4 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before January 25, 2011,5 PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Katharine Nyman
Regional Attorney
KN
4 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)