Service Employees International Union, Local 790, AFL-CIO (Banks, et al.) (PERB 1636M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DELORES BANKS & PIYANOOT
MOLIDPIREE,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 790, AFL-CIO,
Respondent.
DELORES BANKS & PIYANOOT
MOLIDPIREE,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 790, AFL-CIO,
Respondent.
Case No. SF-CO-30-M
PERB Decision No.	
1636-M
June 	4,
	2004
Case No. SF-CO-30-M
PERB Decision No. 1636-M
June 4, 2004
Appearances: Delores Banks and Piyanoot Molidpiree, on their own behalf; Weinberg, Roger
& Rosenfeld by Vincent A. Harrington, Jr., Attorney, for Service Employees International
Union, Local 790, AFL-CIO.
Before Duncan, Chairman; Whitehead and Neima, Members.	Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION	DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Delores Banks and Piyanoot Molidpiree (Charging Parties) from a
Board agent's dismissal
of
their unfair practice charge. The charge alleged that the Service
Employees International Union, Local 790, AFL-CIO (SEIU) violated its duty
of
fair
representation under the Meyers-Milias-Brown Act (MMBA)
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
1
by failing to adequately
prosecute an unfair practice charge before PERB.	prosecute an unfair practice charge before PERB.
or Board) on appeal by Delores Banks and Piyanoot Molidpiree (Charging Parties) from a
Board agent's dismissal of their unfair practice charge. The charge alleged that the Service
Employees International Union, Local 790, AFL-CIO (SEIU) violated its duty of fair
representation under the Meyers-Milias-Brown Act (MMBA)' by failing to adequately
Appearances: Delores Banks and Piyanoot Molidpiree, on their own behalf; Weinberg, Roger
After reviewing the entire record in this matter, including the original and amended
unfair practice charge, the warning and dismissal letters, Charging Parties' appeal and SEIU's
response, the Board issues the decision below.
After reviewing the entire record in this matter, including the original and amended
1The MMBA is codified at Government Code section 3500, et seq.	The MMBA is codified at Government Code section 3500, et seq.
& Rosenfeld by Vincent A. Harrington, Jr., Attorney, for Service Employees International
Union, Local 790, AFL-CIO.
unfair practice charge, the warning and dismissal letters, Charging Parties' appeal and SEIU's
response, the Board issues the decision below.

BACKGROUND	BACKGROUND
Charging Parties are senior clerk typists with the City & County
of
San Francisco
(City). 	They allege that the City committed an unlawful unilateral change when it began
requiring senior clerk typists to enter "contact" information into a new computer-based case
management system for child welfare services.
On December 12, 2001, SEIU filed an unfair practice charge with PERB (Case No.
SF-CE-18-M) over this requirement. The charge alleged the City's decision to have senior
clerk typists input the "contact" information violated the MMBA. Included in the charge were
copies
of
the senior clerk typist job descriptions and a description
of
the new case management
system.
On December 12, 2001, SEIU filed an unfair practice charge with PERB (Case No.
SF-CE-18-M) over this requirement. The charge alleged the City's decision to have senior
clerk typists input the "contact" information violated the MMBA. Included in the charge were
copies of the senior clerk typist job descriptions and a description of the new case management
system.
On August 2, 2002, the Board agent dismissed the charge on the grounds that the
assignment
of
duties reasonably related to existing duties is a management prerogative and are
not subject to bargaining. Recently, the Board issued its decision affirming the dismissal. (See
City & County
of
San Francisco (2004) PERB Decision No. 1608-M (City & County
of
San Francisco).)
On August 2, 2002, the Board agent dismissed the charge on the grounds that the
assignment of duties reasonably related to existing duties is a management prerogative and are
not subject to bargaining. Recently, the Board issued its decision affirming the dismissal. (See
City & County of San Francisco (2004) PERB Decision No. 1608-M (City & County of
San Francisco).)
In this charge, filed before issuance
of
the Board's decision in City & County
of
San Francisco, Charging Parties contend that SEIU's failure to adequately prosecute its charge
resulted in the dismissal. Specifically, Charging Parties contend that SEIU failed to present
PERB with current job descriptions for senior clerk typists and failed to pursue a class action
grievance on the parties behalf.
DISCUSSION	DISCUSSION
2
Charging Parties are senior clerk typists with the City & County of San Francisco
In this charge, filed before issuance of the Board's decision in City & County of
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
While the MMBA does not expressly impose a statutory duty of fair representation
2
(City). They allege that the City committed an unlawful unilateral change when it began
requiring senior clerk typists to enter "contact" information into a new computer-based case
management system for child welfare services.
San Francisco, Charging Parties contend that SEIU's failure to adequately prosecute its charge
resulted in the dismissal. Specifically, Charging Parties contend that SEIU failed to present
PERB with current job descriptions for senior clerk typists and failed to pursue a class action
grievance on the parties behalf.
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

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. (IAM (Attard).) 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.)
3
members arbitrarily, discriminatorily, or in bad faith." (Hussey v. Operating Engineers Local
Union No. 3 (1995) 35 Cal.App.4 th 1213 [42Cal.Rptr.2d 389] (Hussey).) 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."
members arbitrarily, discriminatorily, or in bad faith." (Hussey v. Operating Engineers Local
In International Association
of
Machinists (Attard) (2002) PERB Decision No. 1474-M
(IAM (Attard), 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 in such cases, including Reed District Teachers Association, CTA/NEA
(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
[64 LRRM 2369].)
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M
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. (1AM (Attard).) 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 contractually-
based remedies under the union's exclusive control. (Capistrano Unified Education
Association, CTA/NEA (La Marca) (2001) PERB Decision No. 1422; California School
Employees Association & its Chapter 130 (Simpson) (2003) PERB Decision No. 1550.) Thus,
The Board has long held that the duty of fair representation is limited to contractually-
3
Union No. 3 (1995) 35 Cal.App.4" 1213 [42 Cal.Rptr.2d389] (Hussey).) 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."
(IAM (Attard), 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 in such cases, including Reed District Teachers Association, CTA/NEA
(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
[64 LRRM 2369].)
based remedies under the union's exclusive control. (Capistrano Unified Education
Association, CTA/NEA (La Marca) (2001) PERB Decision No. 1422; California School
Employees Association & its Chapter 130 (Simpson) (2003) PERB Decision No. 1550.) Thus,

Here, Charging Parties' allegations involve SEIU's prosecution of an unfair practice
charge before PERB. Specifically, Charging Parties assert that SEIU failed to submit certain
evidence which would have aided its case. The Board finds that even if a duty of fair
representation
basis or that its actions were devoid of honest judgment. Accordingly, Charging Parties have
failed to state a prima facie case and the charge must be dismissed.
a union is not obligated to assist an employee with matters before the State Commission on
Teacher Credentialing or with a law suit against a former school district employer (Ibid.), nor
with proceedings before a Commission on Professional Competence. (Oakland Education
Association (McKeel) (2000) PERB Decision No. 1383; see, also, Oxnard Federation
of
Teachers (Torres) (2002) PERB Decision No. 1494; California School Employees Association
(Garcia) (2001) PERB Decision No. 1444; California State Employees Association (Bradford)
(2001) PERB Decision No. 1421-S; San Bernardino Teachers Association, CTA/NEA
(Cooksey) (2000) PERB Decision No. 1387; California School Employees Association,
Chapter 724 (Professional School Bus Drivers Association) (1992) PERB Decision No. 923.)
Here, Charging Parties' allegations involve SEIU's prosecution
of
an unfair practice
charge before PERB. Specifically, Charging Parties assert that SEIU failed to submit certain
evidence which would have aided its case. The Board finds that even
if
a duty
of
fair
representation existed, such allegations fail to demonstrate that SEIU acted without a rational	existed, such allegations fail to demonstrate that SEIU acted without a rational
basis or that its actions were devoid
of
honest judgment. Accordingly, Charging Parties have
failed to state a prima facie case and the charge must be dismissed.
ORDER	ORDER
The unfair practice charge in Case No. SF-CO-30-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
The unfair practice charge in Case No. SF-CO-30-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
4
a union is not obligated to assist an employee with matters before the State Commission on
Chairman Duncan and Member Whitehead joined in this Decision.	Chairman Duncan and Member Whitehead joined in this Decision.
4
Teacher Credentialing or with a law suit against a former school district employer (Ibid.), nor
with proceedings before a Commission on Professional Competence. (Oakland Education
Association (McKeel) (2000) PERB Decision No. 1383; see, also, Oxnard Federation of
Teachers (Torres) (2002) PERB Decision No. 1494; California School Employees Association
(Garcia) (2001) PERB Decision No. 1444; California State Employees Association (Bradford)
(2001) PERB Decision No. 1421-S; San Bernardino Teachers Association, CTA/NEA
(Cooksey) (2000) PERB Decision No. 1387; California School Employees Association,
Chapter 724 (Professional School Bus Drivers Association) (1992) PERB Decision No. 923.)