Service Employees International Union Local 1021 (Harris) (PERB 2275E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

NATHANIEL HARRIS,
Charging Party, Case No. SF-CO-761-E
Vv. PERB Decision No. 2275
SERVICE EMPLOYEES INTERNATIONAL June 26, 2012
UNION LOCAL 1021,
Respondent.

Appearance: Nathaniel Harris, on his own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Nathaniel Harris (Harris) of the Office of General Counsel’s
dismissal (attached) of his unfair practice charge. The charge, as amended, alleged that the
Service Employees International Union Local 1021 (SEIU) violated the Educational
Employment Relations Act (EERA)' by failing to represent him. The Office of the General
Counsel dismissed the charge, concluding that some of the allegations were untimely and the
remaining allegations failed to state a prima facie case of breach of the duty of fair
representation.

We have reviewed the entire record in this matter and given full consideration to the
appeal. Based on our review, the Board finds the warning and dismissal letters to be well-

reasoned, adequately supported by the record and in accordance with the applicable law.

'EERA is codified at Government Code section 3540 et seq.

Accordingly, the Board hereby adopts the warning and dismissal letters as the decision of the
Board itself.
DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a)2 an appeal from dismissal of an
unfair practice charge shall:
( 1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements of this regulation, the appeal must sufficiently place the
Board and the respondent "on notice of the issues raised on appeal." (State Employees Trades
Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H; City & County of
San Francisco (2009) PERB Decision No. 2075-M.) An appeal that does not reference the
substance of the Board agent's dismissal fails to comply with PERB Regulation 32635,
subdivision (a). (United Teachers of Los Angeles (Pratt) (2009) PERB Order No. Ad-381;
Lodi Education Association (Huddock) (1995) PERB Decision No. 1124; United Teachers
Glickberg (1990) PERB Decision No. 846.) Likewise, an appeal that merely reiterates facts
alleged in the unfair practice charge does not comply with PERB Regulation 32635,
subdivision (a). (Contra Costa Health Services Department (2005) PERB Decision
No. 1752-M; County a/Solano (Human Resources Department (2004) PERB Decision
No. 1598-M.)
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

The appeal reiterates allegations in the charge concerning Harris's dispute with the
Fremont Unified School District (District) about having been placed on a 39-month rehire list
instead of granted a leave of absence. The appeal also reiterates allegations in the charge
concerning Harris's dissatisfaction with SEIU in relation to this dispute.3 The appeal does not
reference any particular portion of the dismissal or otherwise state the specific issues of
procedure, fact, law or rationale to which the appeal is taken. Nor does it identify the page or
part of the dismissal to which the appeal is taken or state the grounds. Thus, the appeal is
subject to dismissal on this ground alone. (City of Brea (2009) PERB Decision No. 2083-M.)
ORDER
The unfair practice charge in Case No. SF-CO-761-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
3 The appeal also raises a question whether the District's termination of Harris' s
benefits violates Education Code requirements concerning leaves of absence and return rights
following an injury. This question is not germane to the issues raised in Harris' charge against
SEIU for breach of the duty of fair representation.
3

STATE OF CALIFORNIA	
EDMUND G.
BROWN
JR.,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
q'-'o-!~EIH REc~)-lo
-'1,-l:Of:(;J,,\,.\fO,;;.
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
December 19, 2011
Nathaniel Harris
5
921
Indian Avenue
San Jose, CA 95123
Re:	
Nathaniel Harris
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-761-E
DISMISSAL LETTER
Dear Mr. Harris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 12, 2011. Nathaniel Harris (Harris or Charging Party)
alleges that SEIU Local 1021 (Union or Respondent) violated the Educational Employment
Relations Act (EERA or Act)1 by failing
to
represent him. The Union's Response was filed on
April 21, 2011. An Amended Charge was filed on April 26, 2011.
Harris was employed as a Gardener at the Fremont Unified School District (District) in a
bargaining unit that was exclusively represented by the Union. Harris was informed in the
attached Warning Letter dated November 7, 2011, that the above-referenced charge did not
state a prima facie case. Harris was advised that,
if
there were any factual inaccuracies or
additional facts that would correct the deficiencies explained in that letter, the charge should be
amended. 	Harris was further advised that, unless the charge was amended to state a prima
facie case or withdrawn on or before November 17, 2011, the charge would be dismissed.
Harris requested and was granted several extensions to file an amended charge. On November
15, 2011, PERB received additional documents from Harris that were accompanied by a proof
of service demonstrating that the documents had been served on Respondent. Although the
documents were not prefaced with any explanatory message or cover letter, PERB has treated
these documents as a second amended charge.
Review of the second amended charge has revealed the following relevant facts. 	On October
27, 2010, Harris received a notice from the District that informed him that his last day in paid
status was October 22,2010. Additionally, the District informed Harris that he must elect one
of the following three options no later than December 1,2010:
"(l)
You may return to work
immediately with a release from your doctor; (2) You may request an unpaid FMLA Leave of
Absence for up to 12 weeks (This form is enclosed for your convenience); or (3) You may
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

SF-CO-761-E
December
19,
2011
Page 2
resign your position, in which case you will
be
placed on the 39-month rehire list. 	(This form
is enclosed for your convenience.)" Additionally, the notice from the District informed Harris
that
if
he
did not elect one
of
the above-stated options, his benefits would be terminated on
December
1,
2010. This letter was signed by Anita Finefrock, Benefits Desk.
On Tuesday, November 2, 2010, Harris telephoned Tim Woodward, the Director
of
Classified
Personnel and left a message requesting that Woodward call him. Harris again telephoned
Woodward on November 25, 2010, but did not speak with him. On November 30, 2010,
Harris submitted a handwritten letter
to
Woodward's office stating, in relevant part:
Re: 	Response to October 27, 2010 letter
Tim Woodward,
I have called your office on Tues Nov 2, 2010 at 12:30 pm and
left a message for you to call me. I did not hear back from you so
I called your office again on Thursday Nov 25, 2010 at 9:00 am,
again your girls in the office screened your calls and said they
would leave you the message. I have not heard from you so I am
letting you know that I would like to request a leave
of
absence. I
will contact Kaden Kratzer
to
advise him
of
the same decision.
On November 30, 2010, Union Representative Kaden Kratzer sent an e-mail message to
Woodward stating that Harris would be providing Woodward with a response to "the letter
received on October 27, 2010."
According to Harris, the October 27 letter from the District did not specify the manner in
which he was to elect one
of
the options listed in the letter. It is not clear whether the forms
referenced in the letter were attached to the copy that Harris received; there are no forms
attached to the copy provided to PERB. Thus, in telephoning Woodward, writing to
Woodward, and in requesting that Kratzer contact Woodward on his behalf, Harris believed
that he was invoking his FMLA right to a twelve-week unpaid leave of absence.
On December 6, 2010, Harris again contacted Kratzer to inform him that he had been unable to
obtain a doctor's release, as his medical benefits had been cancelled. He requested that Kratzer
inform Woodward
of
the delay. Kratzer complied with Harris's request by forwarding Harris's
e-mail message directly to Woodward.
On December 8, 2010, Harris sent an e-mail message to Kratzer stating that the District had
cancelled his health benefits and he was unable to get a doctor's evaluation of his medical
status. In response to Harris's e-mail message, Kratzer states the following:
Nathaniel I can contact them but I can tell you right up front that
they most likely will not reinstate the benefits because of the due
date given on the letter they sent you with choices.

SF-CO-761-E
December 19, 2011
Page 3
This letter was sent to you well in advance
of
that occurrence and
gave you a month to come to a resolution.
paid	On February
10,
2011, Harris received notification from the District that his last day
of
status with the District had been October 22, 2010, after which point he had been
on
unpaid
leave status pursuant
to
the Family Medical Leave Act. The twelve weeks
of
unpaid leave
under the FMLA had been exhausted, he had been placed on the 39-month rehire list, and his
health benefits had been terminated on December
1,
2010. The District had also received
notice from Harris in February 2011 that he was still considered medically unable to return to
work. Based on that information and in accordance with Government Code section 21153, the
District applied for a disability retirement on Harris's behalf.
On April 12, 2011, Harris delivered a handwritten letter to Woodward requesting responses to
a number
of
inquiries that had been made to Woodward in various e-mail messages.
On May 6, 2011, Harris sent a letter to Woodward that was apparently intended as an appeal
of
his placement on the rehire list, and requesting to be reinstated to his former position.
On an unspecified date prior to August 25, 2011, Harris filed a complaint with the District
regarding Woodward. On August 25, 2011, the District informed Harris that although he had
informed the District that he was capable
of
returning to work, he had not provided the District
with a full medical release. 	Therefore, the District found that Harris had been properly placed
on the 39-month rehire list, and the complaint against Woodward was unfounded.
On September 20, 2011, the District informed Harris that the physician's statement that he
provided to the District dated January 20, 2011 was insufficient to reinstate him to an eligible
work status and that the complaint against Woodward was unsubstantiated and would be
considered closed. Harris was to remain on the 39-month rehire list.
Discussion
Based on the facts provided in the original and amended charges, Harris argues that the Union
should have come to his aid when the District cancelled his health benefits on December
1,
2010. 	According to Harris, he had complied with the October 27 notice, had provided Kratzer
with evidence that he had complied, and that the District had denied the fact of his compliance,
resulting in the injurious loss of his medical benefits. Harris sought restoration of these
benefits by entreating the Union to intervene on his behalf.
In the November 7, 2011 Warning Letter, PERB informed Harris that his charge would be
dismissed unless he provided additional facts demonstrating that within the six months
immediately preceding the filing of the charge, the Union owed Charging Party a duty of fair
representation and breached that duty by engaging in arbitrary, discriminatory or bad faith
conduct.

SF-CO-761-E
December 19, 2011
Page 4
The facts provided in the second amended charge do not cure the deficiencies described
in
the
November 7, 2011 Warning Letter for the following reasons.
As noted in the November 7, 2011 Warning Letter, there is no duty
of
fair representation
owed
to a unit member unless the exclusive representative possesses the exclusive means by
which
such employee can obtain a particular remedy. (California State Employees' Association
(Darzins) (1985) PERE Decision No. 546-S.) The exclusive representative possesses the sole
means by which a unit member has access to the negotiation process, as well as the grievance
and arbitration procedure. 	(California State Employees' Association (Darzins) (1985)
PERB
Decision No. 546-S.)
In this case, Harris's request for a medical leave
of
absence and the need to comply with
federal or state regulations in order to establish his right to a medical leave
of
absence are not
matters exclusively within the
Union's
control. This issue is separate from the question
of
whether Harris met the requirements
of
the October 27, 2010 letter when he notified
Woodward
of
his intent to seek unpaid leave under the FMLA.
Indeed, even assuming Harris's November 30 letter to Woodward met the requirements
of
the
October 27 letter thereby entitling him to twelve weeks
of
unpaid leave, because the
Union
did
not have the ability to make the election on Harris' s behalf or possess any means by which
Harris could obtain one or the other
of
the three options presented in the October 27 letter, it
appears that the Union did not owe Harris any duty
of
fair representation in this matter.
The
matter is complicated further by Harris's apparent failure to properly make one
of
the three
possible elections given him in the October 27, 2010 letter by returning either
of
the attached
forms to Anita Finefrock at the Benefits Desk. Thus, despite the additional evidenceprovided
on December 15, 2011, demonstrating the Union's failure to intervene on Harris's behalf when
the District refused to recognize his November 30, 2010 attempt to comply with the October
2 7, 2010 letter, it is not clear that this conduct breached any duty owedby the Union.
Therefore, the charge is hereby dismissed based on the facts and reasons set forth in thisand
the November 7, 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.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CO-761-E
December 19, 2011
Page 5
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
Bmirrl's
::irlrlress 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 personally 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-761-E
December 19, 2011
Page 6
Final Date
If
no
appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
~
Regional Attorney
Attachment
cc: Vincent Harrington, Jr., Attorney

STATE
OF
CALIFORNIA 	EDMUND G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone; 510-622-1023
Fax: ( 510) 622-1027
November
7,
2011
Nathaniel Harris
5
921
Indian Avenue
San Jose, CA 95123
Re: 	Nathaniel Harris
v.
SEIU Local 1021
Unfair Practice Charge No. SF-CO-761-E
WARNING LETTER
Dear Mr. Harris:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 12, 2011. Nathaniel Harris (Harris or Charging Party)
alleges that SEIU Local 1021 (Union or Respondent) violated the Educational Employment
Relations Act (EERA or Act) 1 by failing to represent him. The Union's Response was filed on
April 21, 2011. An Amended Charge was filed on April 26, 2011.
PERB's investigation
of
the original and amended charges and the Union's response to the
original charge revealed the following relevant facts. 	Harris is a Gardener for the Fremont
Unified School District (District). He is employed in a bargaining unit that is exclusively
represented by the Union. 	In 2007, Harris was involved in an altercation with another
employee in which he was deemed the aggressor. 	Harris contends that the investigation
of
this
incident by the employer was faulty, and that the Union did not assist him in ensuring a fair
investigation was conducted. As a result
of
the incident and ensuing investigation, Harris was
placed on an involuntary leave
of
absence for a period
of
approximately 2.5 years.
After his return to work in June 2009, Harris experienced treatment from his supervisor(s) that
he characterizes as harassment. 	For example, he was denied a position as an equipment
operator, he was denied a request to work overtime, he was denied a request to transfer to a
different position, he was denied a request to work out
of
class, and at times he was told he
could not drive his vehicle to work sites, while at another point in time, he was required to
obtain a "class b [driver's] license" in order to keep his job.
January 2010, Harris had a "melt down due to all the stress and unfair treatment from [his]
employer" and sought a medical leave of absence from work. 	In March 2010, Harris attended
the	a meeting with his supervisor at which he was represented by the Union. The purpose
of
meeting was, apparently, to determine if Harris would be permitted to work at a temporary
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

SF-CO-761
November 7, 2011
Page 2
position with the District while he was on a medical leave from his permanent position.
Ultimately, Harris was not permitted to return to work as a temporary employee while still
on
a
leave
of
absence.
In November 2010, Harris received a notice from the District informing him that as
of
December 2010, one
of
the following conditions would need to be met:
1)
Harris returned to
work; 2) Harris resigned, or 3) Harris opted to take an unpaid sick leave. The District also
notified Harris that
if
he failed to respond, his health benefits would be cancelled as
of
December 2010. In the Charge, Harris states, verbatim,
November 2010, I recieve a letter from fremont unified school
distric stating my benifeits will be removed as
of
december 2010,
and i have 3 options, return to work, resighn, or take an unpaid
sick leave. I contacted my union about the matter before
December 2010 deadline and asked kaden kratzer to set up a
meeting because the only option i was able to elect was the sick
leave. My union told me this is a matter between my employer
and me and i need to contact them myself. I submitted a response
to fremont letting them know do to the fact they were unable to
accommodate my doctors reccomendation i am still out on stress
leave therefore i am electing to take a stress leave.
In January 2011, the District notified Harris that it had not received a response to its November
2010 letter to him, and that he would be placed on a 39-month rehire list.
In April 2011, the District notified Harris that it was freezing a vacant position for which he
had applied in February 2010. Also in April 2011, Harris received a letter from the District
informing him that his application for a position as a Painter had been denied because it was
incomplete. 	Harris inquired as to the specific deficits in his application, but has not received a
response from the District. 	When Harris contacted Union Business Agent Kaden Kratzer for
assistance with his application process, Kratzer declined to provide assistance, instead
informing Harris that the dispute was a matter between himself and the District.
In its response, which was filed before the Amended Charge, the Union raises a timeliness
defense. 	According to the Union, the charge on its face contains no allegations during the six
month period between November 12, 2010 and April 12, 2011, when this charge was
ultimately filed.
1. Timeliness
PERE 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 and Vector Control District
v.
Public Employment Relations Board (2005) 35
Discussion

SF-CO-761-E
November 7, 2011
Page 3
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 this case, the majority
of
facts contained in the charge pre-date the six month statute
of
limitation and therefore, may not form the basis
of
an alleged violation
of
the Act.
Accordingly, these allegations will be dismissed
However, there are some facts which occurred during the critical time-period in the six months
immediately preceding the
,A,_pril
12, 2011 filing date
of
this charge, and these facts will
be
examined for the prima facie elements
of
a complaint for a breach
of
the duty
of
fair
representation.
2. 	Breach
of
the Duty
of
Fair Representation
Harris has alleged that the Union denied him the right to fair representation guaranteed by
EERA section 3544.9 and thereby violated section 3543.6(b).
In
order to state a prima facie
violation
of
this section
of
EERA, Harris must show that the Union's conduct was arbitrary,
discriminatory or in bad faith. 	However, PERB has long recognized that there is no duty
of
representation owed to a unit member unless the exclusive representative possesses the
	fair
exclusive means by which such employee can obtain a particular remedy. (California State
Employees' Association (Darzins) (1985) PERB Decision No. 546-S.) The exclusive
representative possesses the sole means by which a unit member has access to the negotiation
process, as well as the grievance and arbitration procedure. (Ibid.) 	There are, however,
alternative sources
of
assistance available to a unit member who seeks to enforce statutory
rights in a court
of
law. (Ibid.)
Harris states that he contacted the Union about the District's November 2010 notice regarding
loss
of
his benefits "before [the] December 2010 deadline." This statement does not provide
sufficient specificity for PERB to find that the events occurred within the six month statute
of
limitations, or in this case, on or after November 12, 2010. Even
if
the events occurred within
the six month statute
of
limitations, however, it is unclear what form
of
assistance Harris
sought with regard to the District's notice to him. 	Where it is unclear what form
of
assistance
Harris sought, PERB cannot assess whether the Union possessed the sole means by which
Harris could obtain the desired remedy. As a result, PERB cannot determine whether the
Union had a duty to assist Harris with his particular request.
Harris also states that he contacted Union Representative Kratzer for assistance with regard to
an April 2011 notice he received from the District. 	Although an exact date is not provided, it
is clear that this event occurred within the six month statute of limitation. At the time, Kratzer
informed Harris that it would not assist him with his concern that the District had failed to
rehire him. 	However, given that Harris was no longer an employee of the District at the time
of his April 2011 request for the Union's assistance, it is not clear that the Union owed any
duty to assist him in seeking reemployment with the District. (Santa Ana Educators
Association (Felicijan & Hetman) (2009) PERB Decision No. 2008.)

SF-C0-761-E
November 7, 2011
Page 4
In summary, Charging Party must amend the charge to include facts demonstrating that, within
the six month period immediately prior to filing the above-referenced unfair practice charge,
the Union owed Charging Party a duty
of
fair representation and breached that duty by
engaging in arbitrary, discriminatory or bad faith conduct. 	Absent these facts, the charge will
be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case.2
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 November 17, 2011,
3
PERB will dismiss your charge.
If
you have any questions, please call me at the above
telephone number.
Sincerely,
Alicia Clement
Regional Attorney
AC
2 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.)
3 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)