Public Employees Union, Local #1 (Davidson) (PERB 1537E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

EDWARD DAVIDSON,
Charging Party, Case No. SF-CO-587-E

v. PERB Decision No. 1537

PUBLIC EMPLOYEES UNION, LOCAL #1, June 24, 2003

Respondent.

Appearance: Edward Davidson, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by Edward Davidson (Davidson) of a Board agent’s dismissal (attached) of
his unfair practice charge. The charge alleged that the Public Employees Union, Local #1
(Union) violated the Educational Employment Relations Act (EERA):! (1) by failing to
adequately represent Davidson in a Berkeley Unified School District (District) personnel
commission appeal challenging the termination of his employment; (2) by failing to timely file
a grievance regarding alleged deprivation of vacation and overtime pay at the time of his
termination; (3) by failing to file a grievance regarding his claim against the District for return
of personal property; and (4) by failing to honor promises to reimburse him for private

attorneys’ fees and otherwise provide recompense for inadequate representation. Davidson

'BERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

alleged that this conduct constituted a violation
of
the Union's duty
of
fair representation,
codified at EERA section 3544.9,2 thereby violating EERA section 3543.6(b).3
The Board agent dismissed Davidson's charge on grounds that the supporting
allegations were untimely and/or failed to state a prima facie case.
Davidson's Appeal
On appeal, Davidson reasserts his contention that the Union provided inadequate
representation during the District's personnel commission proceedings regarding his
termination. Davidson also submits documents related to employee dissatisfaction with the
Union and a successful decertification campaign.
PERB Regulation 32635(b
)4
provides: "Unless good cause is shown, a charging party
may not present on appeal new allegations or new supporting evidence." Davidson has failed
to demonstrate good cause to allow presentation
of
new allegations or evidence on appeal and
nothing in the contents
of
the newly filed documents indicates that such good cause exists.
Accordingly, the Board has not considered the new documents in resolving this case.
2 Section 3544.9 provides:
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.
3 Section 3543.6(b) states, in pertinent part:
It shall be unlawful for an employee organization to:
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
4 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

The Board also finds that none
of
Davidson's arguments address the deficiencies
identified in the Board agent's warning and dismissal letters.
After reviewing the unfair practice charge and first amended charge, the warning and
dismissal letters, and Davidson's appeal, the Board finds that the Board agent's warning and
dismissal letters are free
of
prejudicial error and adopts them as the decision
of
the Board
itself, subject to one exception: As the Board agent correctly determined that Davidson's
allegations regarding the Union's alleged failure to file a grievance on the subject
of
his
vacation and overtime pay were untimely, the Board declines to adopt the Board agent's
discussion
of
the merits
of
those allegations.
ORDER
The unfair practice charge in Case Number SF-CO-587-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Baker and Whitehead joined in this Decision.
3

. .r.
STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
0-;,:..ENT_/!~t,.,..
l
l
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~/:
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San Francisco Regional
Office
1515
Clay
S1rcet. Suite 2201
09~land,
CA
94612
Telephone:
(5 l
0) 622-1024
Fax:
(510) 622-1027
January 30, 2002
Edward Davidson
2806 Chanslor A venue
Richmond, California 94804
Re: 	Edward Davidson
v.
Public Employees Union, Local
#1
Unfair Practice Charge No. SF-CO-587-E
DISMISSAL LETTER
Dear Mr. Davidson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 3, 2001 and amended on January 18, 2002. Edward Davidson
alleges that the Public Employees Union, Local
#1
(Union) violated the Educational
Employment Relations Act (EERA)1
by failing to fulfill its duty
of
fair representation
in
regard
to the termination
of
his employment with the Berkeley Unified School District and related
matters.
I indicated to you in my attached letter dated December 28, 2001, 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 which 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 10, 2002, the charge would
be
dismissed.
Following the grant
of
additional time, an amended charge was filed on January 18, 2002. 	The
amended charge alleges that the overtime grievance was timely filed in May 1999, but the
Union took no action on the matter for many months. The grievance was in its final step, when
Jenny Lipow, the Union agent handling the matter "disappeared." As noted in the
undersigned's December 28, 2001 letter, the Union took no further action on the overtime
grievance -- or any other the other outstanding issues for that matter -- until September 2000,
when Davidson succeeded in getting the Union's new manager, Chuck Egbert, and the new
business agent, Lisa Davis, to investigate his issues. The allegation with respect to the
overtime issue is untimely because Davidson should have known no later than September 2000
that the Union had failed to prosecute his grievance. The charge was not filed until May 3,
2001. The remaining allegations of the amended charge have been reviewed, but it is
concluded that they fail to cure the deficiencies noted in the undersigned's December 28, 2001
letter. 	Even if the charge were timely filed, Davidson has failed to allege facts demonstrating
that the Union breached its duty of fair representation by acting in an "arbitrary,
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-587-E
January 30, 2002
Page 2
f
!
. "·
discriminatory, or bad faith" manner. 	(United Teachers of Los Angeles (Collins) (1982) PERB
Decision No. 258.)
Therefore, I am dismissing the charge based on the facts and reasons set forth above as well as
those contained in my December 28, 2001 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you 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. (Regulation 32635(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.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
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. 	(Regulation 32635(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 Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 l 001 et seq.

SF-CO-587-E
January 30, 2002
Page 3
(
\
or depos'ited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(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. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By~
Donn Ginoza
Regional Attorney
Attachment
cc: Chuck Egbert
DNG

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Fra:1cisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
Telephone: (510) 622-1024
Fax: (510) 622-1027
December 28, 2001
Edward Davidson
2806 Chanslor Avenue
Richmond, California 94804
Re: 	Edward Davidson v. Public Employees Union, Local #1
Unfair Practice Charge No. SF-CO-587-E
WARNING LETTER
Dear Mr. Davidson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 3, 2001. Edward Davidson alleges that the Public Employees
Union, Local #1 (Union) violated the Educational Employment Relations Act (EERA) 1 by
failing to fulfill its duty of fair representation in regard to the termination of his employment
with the Berkeley Unified School District and related matters.
Investigation of the charge revealed the following. 	Edward Davidson was employed by the
District as a Custodial Supervisor. He was a permanent employee assigned to Willard Jr. High
School. He had been employed by the District for approximately 30 years. In or around May
1999, the District accused Davidson of possession of an illegal substance, dishonesty, and
insubordination. The principal of Willard recommended that Davidson be dismissed.
The District has a personnel commission for review of disciplinary matters. At the first level,
the employee may appeal disciplinary action in a Skelly hearing before a staff member of the
District designated as a hearing officer. Following that, the matter may be appealed to a
hearing officer designated by the Commission. The final step of the appeal procedure involves
a review by the Commission itself.
Davidson requested representation from the Union in regard to the charges against him.
In or around May 1999, Business Agent Jenny Lipow became involved in the case. Davidson
alleges that Li pow was derelict in her representation of him. 	She failed to meet filing
deadlines, failed to return telephone calls, failed to use paperwork Davidson had offered, and
"disappeared" for months at a time. Davidson alleges that Lipow allowed deadlines to expire
and failed to initiate an investigation into certain matters despite "serious inconsistencies" in
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-587-E
December 28, 2001
Page 2
• ,r.
the evidence against him. Lipow did represent Davidson at the Skelly hearing before
Associate Superintendent Frank Brunetti. After evidence was received, Brunetti upheld the
principal's recommendation. But Davidson alleges that near the start of the hearing, Brunetti
told Lipow that he heard Lipow's baby crying in the next room, whereupon Lipow left the
meeting, leaving Davidson with only a shop steward.
After Davidson complained to the Union, Manager of Operations John Stallsmith assured
Davidson that he would make up for Lipow's failures. 	But Stallsmith failed to return telephone
calls and again "left him hanging in limbo." Davidson retained a private attorney in December
1999 because he had lost confidence in Lipow. Stallsmith wrote to Davidson's attorney that
the Union would secure a hearing through the Personnel Commission, but would also step
aside if Davidson wished to have his attorney represent him in the matter. Davidson's attorney
responded that Davidson wished to continue with Union representation. Stallsmith proceeded
to file an appeal with the Personnel Commission.
Davidson alleges that Lipow admitted having "dropped the ball" in his case and missed a filing
deadline for a grievance. It is unclear from the charge what the basis for this grievance may
have been, or whether it simply related to the filing of an appeal of the dismissal.
In or around March 2000, Stallsmith requested that the District appoint an independent
arbitrator to hear Davidson's appeal, rather than a hearing officer of the Personnel Commission.
The District refused stating that Article 15 of the parties' agreement ("Disciplinary Action and
Appeal") incorporates the Personnel Commission Rules as the basis for appeals of disciplinary
action. (Article 15, section 15.3 of the agreement exempts disciplinary appeals from the
grievance procedure.)
In any event, the matter was heard by Hearing Officer Jan Nieberlien on April 10, 2000.
Davidson objected to the Union allowing a biased hearing officer to be assigned his case.
Nieberlien upheld the dismissal based on testimony that Davidson stored items which did not
belong to him in the custodians' office in a locked cabinet which was accessible only to him.
While the hearing officer found that some of the items in the cabinet did belong to Davidson,
others such as a flute and a student's jacket should have been turned over to the District so that
they could be returned to their owners. The hearing officer found that Davidson had willfully
violated the school's "lost and found" policy as a result.
Evidence against Davidson was also received regarding an alleged transfer of an illegal
substance from Davidson to a student. Jake Stookey, an Art and Drama teacher at Willard,
observed Davidson carefully place an object wrapped in white paper on a bench in the
courtyard and then observed a student walking toward the bench. Stookey walked between
Davidson and the approaching student, picked up the object wrapped in white paper and took it
to the office. Stookey also saw Davidson and the student exchange some kind of nonverbal
communication. Stookey later examined the object and concluded it to be a marijuana joint. A
police officer testified, confinning that the object contained marijuana.

SF-CO-587-E
December 28, 2001
Page 3
. ,._
Business Agent Jenny Li pow represented Davidson at the hearing. She argued that the penalty
was excessive in light of Davidson's lengthy record of employment. Davidson testified and
denied that he placed any object on the bench. He also denied seeing Stookey pick up any
object from the bench.
No criminal charges were ever filed by the police against Davidson. Davidson notes that he
won a hearing against the District before the Unemployment Insurance Appeals Board.
Davidson contends that this evidence exonerates him.
Following the hearing officer's decision, Lipow and Union President Pat Robertson appeared
before the Personnel Commission on June 21, 2000 urging that the Commission reject the
decision. Robertson made her own presentation to the Commission.
On July 12, 2000, the District Personnel Services Department recommended that the
Commission adopt the hearing officer's decision. The minutes of the July 19 Commission
meeting state that the Union had requested that the Commission review the transcript of the
hearing, but then failed to provide the Commission with the transcript. They further indicate
that Brunetti asserted that the Commission was not obligated to read the transcripts. At this
meeting, the Commission voted to approve the hearing officer's decision.
Sometime in the middle of 2000, Business Agent Lisa Davis succeeded Lipow and Chuck
Egbert succeeded Stallsmith, Davis made promises to meet with the District's personnel
director to resolve the matter, but she failed to do so.
Egbert promised to address issues related to overtime and vacation pay, which the District had
allegedly failed to pay Davidson following his termination. Egbert claims that the vacation
and overtime underpayment issue was not brought to the Union's attention until September
2000, more than a year after Davidson received his last paycheck, thus rendering the prospect
of filing a grievance untenable. Davidson, however, asserts that he had provided the necessary
documentation to Lipow earlier. Lipow submitted the documentation to the District in October
2000. Although Davidson received 223 days of vacation pay, he claims the District shorted
him 27 days. Davidson's August 31, 1999 pay warrant indicates he had accumulated 250 days
of vacation. Davidson also requested 45 hours of overtime pay. 	It is not clear on what he
based this claim.
Egbert also offered the Union's assistance with regard to obtaining personal property belonging
to Davidson that he was unable to retrieve following his termination. In regard to the matter of
the termination however, Egbert informed Davidson by letter dated September 7, 2000 that
based on an opinion by the Union's attorney, the Union would not pursue a superior court
action in an attempt to overturn the Commission's decision.
Robertson then wrote a letter to Egbert on Davidson's behalf urging that the Union continue to
pursue the matter. 	In response, Egbert held a meeting attended by Davidson and Lipow.
Lipow made admissions that she had not done all she could have in the matter. Egbert ended

SF-CO-587-E
December 28, 2001
Page 4
. .,.,
the meeting by promising to "follow up." Egbert made apologies to Davidson for Lipow's
shortcomings and also promised to reimburse Davidson for his attorney's fees.
By letter dated January 17, 2001, Egbert stated that Davis or Robertson could accompany
Davidson to the District to retrieve his property. He also stated that in the event this failed,
Davidson could file a claim with the Board of Education for the monetary value of the
unreturned property.
Davidson alleges that he requested the items when he was first put on administrative leave in
May 1999. The District instructed him he could not come onto District property. He complied
with this directive. Lipow failed to follow up on the matter. Davidson asked Davis to assist
him. The District advised Davidson he could come and retrieve his property, but it did not
include the items he was seeking. A list of the items shown to Davidson by the District was
simply a list of the items in the "lost and found" locker. There were other more valuable things
missing. Davis assured Davidson she would file a grievance but she never did. Davis told him
she would do nothing further because he had filed the instant charge against the Union.
By letter dated February 16, 2001, Davidson wrote to Egbert to complain that Egbert had done
nothing to rectify the errors of Lipow and Stallsmith regarding his termination.. He insisted:
if there had been any type of investigation into the allegations by
anyone, most especially my union representative, this situation
would never have progressed to the point that it did.
Davidson indicated he had "numerous letters and packets proving" his innocence of the charges
against him.
Based on the facts stated above, the charge as presently written fails to state a prima facie
violation of the EERA for the reasons that follow.
Davidson has alleged that the exclusive representative denied him the right to fair
representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section of EERA, a charging party must show that the respondent's
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers of Los Angeles
(Collins), the Public Employment Relations Board (PERB) stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not

SF-CO-587-E
December 28, 2001
Page 5
(
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance if the chances for success are minimal.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a charging party:
" ... must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
PERB has also held that as to rights or remedies that do not derive from the collective
bargaining agreement, the exclusive representative does not owe a duty of fair representation.
This has been found in the context of appeals of disciplinary actions in proceedings pursued
outside the grievance procedure. (Los Angeles City and County School Employees Union
(Morgan) (1987) PERB Decision No. 645 [claim that employee was poorly represented at a
personnel commission dismissal hearing]; California State Employees Association (Parisi)
(1989) PERB Decision No. 733-S [State Personnel Board appeal].)
In this case, the claims that Davidson was poorly represented in the matter related to his
dismissal do not state a prima facie violation because the Union's performance before the
Personnel Commission is not governed by the duty of fair representation. 	(Los Angeles City
and County School Employees Union (Morgan), supra, PERB Decision No. 645.)
The matter of the Union's failure to file a grievance regarding the overtime and vacation
underpayment fails to state a prima facie violation because it is not timely filed. 	EERA section
3541.5(a)(l) prohibits PERB 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."
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.) The charging party bears the burden of demonstrating that the charge is
timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024; State of
California (Department ofinsurance) (1997) PERB Decision No. 1197-S.)
Here, it does appear that Davidson's claim for overtime and vacation pay first arose in the fall
of 1999 when he received his final paycheck. No action was taken by Lipow or the Union on
the matter for nearly one year, until September 2000, when Davidson again raised the issue,
this time with the new manager of the Union, Chuck Egbert. 	Li pow submitted Davidson's
documentation for the first time in October 2000, at a time when the grievance timelines had
clearly lapsed. Davidson knew or should have known in the fall of 1999, but certainly no later

SF-CO-587-E
December 28, 2001
Page 6
.....
than October 2000, that the Union did not intend to file a grievance over the matter.
	The
charge was not filed until
May
3, 2001.
Moreover, even assuming a grievance could have been filed, Davidson has not clearly
demonstrated that the Union refused to file one for arbitrary, discriminatory, or bad faith
reasons.	
It
appears that the Union concluded a grievance would have been untimely. 	Such a
decision would have had a rational basis.
It
also appears that the Union probably failed to file
the grievance when Davidson first approached Li pow on the matter in the fall
of
1999. In the
latter case, the charge fails to demonstrate that the Union's failure to file the grievance
in
a
timely fashion resulted from anything more than negligence. PERB has held that negligence
resulting in the failure to file a grievance is insufficient to demonstrate a breach
of
the
duty
of
fair representation. (United Teachers
of
Los Angeles (Collins), supra, PERB Decision
No. 258; American Federation
of
State, County and Municipal Employees (Olson) (1988)
PERB Decision No. 682-H.)
As to the claim for return
of
personal property, the charge also fails to demonstrate that the
Union's unwillingness to file a grievance over the matter was the product
of
arbitrary,
discriminatory or bad faith conduct. Matters
of
this kind are rarely covered in collective
bargaining agreements, and Davidson has failed to identify any provision
of
the agreement to
that effect. 2 Egbert informed Davidson that
if
he were unsuccessful in obtaining his property,
his recourse would be to file a claim for money damages with the District Board
of
Education.
Thus, it is unclear that the Union's failure to pursue the matter resulted in the forfeiture
of
a
meritorious grievance. (United Teachers
of
Los Angeles (Collins), supra, PERB Decision
No. 258.)
Finally, the Union's failure to live up to promises to reimburse Davidson for his attorney's fees
and to rectify its previous shortcomings do not demonstrate a breach
of
the duty
of
fair
representation. Such matters do not implicate the duty
of
fair representation. (See Lane v.
I.U.O.E. Stationary Engineers (1989) 212 Cal.App.3d 164.)
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please 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 the
charging party. The amended charge must have the case number written on the top right hand
comer
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
I do not receive an
amended charge or withdrawal from you before January 10, 2002, I shall dismiss your charge.
The undersigned has reviewed the collective bargaining agreement and was unable to
identify any provision covering such a dispute.

SF-CO-587-E
December 28, 2001
Page 7
If
you have any questions, please call me at the above telephone number.
Sincerely,
Donn Ginoza
Regional Attorney
DNG