Service Employees International Union Local 790 (Hein) (PERB 1677E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PETER HEIN,
Charging Party,
V.
SEID LOCAL 790,	
August
Respondent.
Case No. SF-CO-642-E
PERB Decision No. 	1677
20,
	2004
Appearance: 	Peter Hein, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members .
.DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Peter Hein (Hein) from a Board agent's dismissal (attached)
of
his unfair practice charge. 	The charge alleged a violation
of
the duty
of
fair representation
by
SEID Local 790 (Local 790). 	The Board agent dismissed the charge for timeliness as to
the
. conduct alleged in May 2003 and for failure to state a prima facie case as to the other charges
under Educational Employment Relations Act (EERA)1 section 3544.9.
The Board has reviewed the entire record in this matter including the unfair practice
charge, warning and dismissal letters, and Rein's appeal. 	The Board finds the warning and
dismissal letters to be without prejudicial error and adopts them as the decision of the Board
itself.
1
EERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references herein are to the Government Code.

DISCUSSION
Hein has alleged a violation of the duty of fair representation by the exclusive
representative. 	He cites incidents of being questioned by his representative at a disciplinary
meeting, lack of proper notification ofa promotional exam, allegedly violating the collective
bargaining agreement and civil service rules, and an e-mail about him. 	There was also an
allegation related to a newly instituted sign-in policy at one campus library.
None of the allegations, individually or in totality, rise to the level of a breach of the
duty of fair representation.
Hein 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 Unified District Teachers Association. CTA/NEA (Xing) (1980) PERB
Decision No. 125; United Teachers ofLos Angeles (Collins) (1982) PERB Decision No. 258
(UTLA (Collins)).) In order to state a prima facie violation of this section ofEERA, charging
party must show that the respondent's conduct was arbitrary, discriminatory or in bad faith. 	In
UTLA (Collins). 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.]
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
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.
(Dism. letter, p. 5.)
In order to state a prima facie case of arbitrary conduct violating the duty of fair
representation, a charging party:
2

'
...
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
cir
inaction was without a
rationale basis or devoid ofhonestjudgment. 	(Emphasis added.)'
rReed District Teachers Association. CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
There are no cases indicating it was arbitrary or unlawful for the union representative to
ask questions
of
a union member in a disciplinary meeting. No facts were presented that
indicated Local 790 caused Hein to be reprimanded. 	An exclusive representative does not
owe
a duty to members in a forum over which the union does not control the means to a particular
remedy (California State Employees Association (Parisi) (1989) PERB Decision No. 733-S).
Local 790 was not required to represent Hein at the Civil Service Commission or in an
Americans with Disabilities Act action.
The e-mail inadvertently sent to Hein may have been insensitive but Hein does not
include any facts to indicate that he was treated differently by Local 790 because he filed a
complaint against the president
of
Local 790.
Further, there is no authority that requires a union to inform an employee
ofa
prorpotional exam and therefore this allegation is also dismissed.
One allegation is not timely filed under EERA. 	The alleged incident occurred in
May
2003 and the charge was filed on March 15, 2004, and so the merits were not reached.
ORDER
The unfair practice charge filed in Case No. SF-CO-642-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neimajoined in this Decision.
3

STATE OF CALIFORNIA 	r
PUBLIC EMPLOYMENT RELATIONS
BOARD
i)
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622· l 022
Fax: (510) 622-1027
. May 20, 2004
Peter Hein
Re: 	Peter Hein v. SEIU Local 790
Unfair Practice Charge No. SF-CO-642-E
DISMISSAL LETTER
Dear Mr. Hein:
'
'"\
(	
/OLD
SCHWARZENEGGER, G~vernor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March
15,
2004. Peter Hein alleyes that the SEIU Local 790 .
violated the Educational Employment Relations Act (BERA) 	by failing to file a complaint
with the Civil Service Commission and failing
to
file a grievance over a contract violation.
' 	.
I indicated
to
you in my attached letter dated May 3, 2004, 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
May 10,2004, the charge would be dismissed. 	On
May
6,
2004,1 extended this deadline to May
19,
2004.
I have not received either an amended charge or a request
for
withdrawal. 	Therefore, I am
dismissing the charge based on the facts and reasons contained in my May
3,
2004 letter.
Right to Appeal
Pursuant to PERB Regulatio~s, 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.
1 BERA is c6difi~d 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.
2 PERB's Regulations are codified at California Code ofRegulations, title 8, section
31001 et seq.

SF-CO-642-E
May 20, 2004
Page 2
A document is considered
11
filed"
when actually received before the close
of
business
(5
p.m.)
on 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.
(Regt!-lations 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 fileq herein mustalso beltserved
11
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
or deposited 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 oftime, in which to file a document with the Board itself, must
bein 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.

(.	
.
r·
'
SF-CO-642-E
May 20, 2004
Page3
Sincerely,
ROBERT THOMPSON
General Counsel
By
_____
-----~-·
	-
Kristin
L.
Rosi
Regional Attorney
Attachment
cc: 	SEIU Local 790

I 	,_S..,TA.,.TE....-....O_F_C_A_L_I_F_O_RN;.;,;_IA_,_____(~'"-·'· ________________r~TOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
(i) San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510)622-1027
May 3, 2004
Peter Hein
Re: 	Peter Hein v. SEIU Local 790
Unfair Practice Charge No. SF-CO-642-E
WARNING LETTER
Dear Mr. Hein:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 15, 2004. Peter Hein allefes that the SEIU Local 790 ·
violated the Educational Employment Relations Act (EERA) 	by failing to file a complaint
with the _Civil Service Commission and failing to file a grievance.over a contract violation.
Charging Party is a Library Assistant II and is employed by the San Francisco ~ommunity
. College District. As such, Charging Party is. exclusively represented by SEIU Local 790.
Local 790 and the District are parties to a collective bargaining agreement that expired on June
30, 2003. With regard to Job Postings and Transfers, Article 16 of the Agreement provides as
follows:
A. 	The District shall post at its Gough Street facility and on a
main bulletin board at the Phelan campus and each campus to
which the District has assigned a Campus Dean examination
announcements for full-time permanent positions.... 	The Union
acknowledges that the District's only obligation under this
section is to make a good faith effort to secure and post such
information, and that the District cannot be held legally
responsible for inadvertent errors by either the Civil Service
Commission, or District employees who are responsible for
processing the information or posting
D. Notice of Locations of Bulletin Boards:
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-642-E
May
3,
2004
Page 2
( 	("•
Within
120
days
of
the ratification date
of
this Agreement, the
District will mail, via campus mail, to each classified employee a
notice detailing the bulletin boards on which classifiedjob
announcements are posted
..
The Union acknowledges that the
District's only obligation under this section
is to
make a good
faith effort
to
mail such information, and that the District cannot
be held legally responsible
for
inadvertent errors by District
employees who are responsible
for
mailing.
Additionally, the San Francisco Civil Service Commission has specific rules and procedures
_for
promotional examinations. These provisions are found at Rule
110
of
the Commission's
rules anil regulations.
On October 20, 2003, Charging Party was called into a disciplinary meeting with Library
Administrator Rita Jones. 	During this meeting, Charging Party was represented by two Local
790 representatives. 	Charging Party asserts that during the meeting, his union representative
asked him questions about the incident, which ultimately lead
to
a disciplinary letter.
In February 2004, Charging Party complained
to
Local 790 representatives that he was
not
notified
of
a pro'motional examination in viola~ion
of
Civil Service Rules and Article 16.D
of
the parties' agreement. 	Charging Party contends Local 790 President, David Gallerani, wasobligated
to
provide him this information and failed
to do
so. 	Additionally, Charging Party
requested Local 790 file a grievance over this issue.
Also
in
February 2004, Charging Party contends he requested Local 790 file a grievance overan alleged Americans with Disabilities Act violation. 	Additionally, Charging Party requested
the union file a grievance over a sign-in policy at one campus library. 	Further, Charging Partyasserts the union failed
to
file a grievance over a reprimand Charging Party received in
May2003.
Lastly, Charging Party contends the union discriminated against him by noting in an electronic
mail message that Charging Party had filed a complaint against the union President. 	The
mailmessage instructs Charging Party's union steward to proceed with caution in handling this
matter and suggests Charging Party's complaint be assigned to another union representative. 	It
is unclear how Charging Party was adversely affected by such statements. 	Moreover, Local
790's statements merely indicate they were aware of Charging Party's complaint and noted the
sensitive nature thereof.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the EERA,
for
the reasons provided below.
I. 	Statute of Limitations
EERA section 3541.S(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

SF-CO-642-E
May
3,
2004
Page 3
('
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 statute oflimitations is an affirmative defense
which
has been raised
by
the respondent in this case. 	(Long Beach Community College District
(2003) PERB Decision No. 1564.) Therefore, charging party now bears the burden
of
demonstrating that the charge is timely filed, (cf Tehachapi Unified School District (1993)
PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB
Decision No. 1197-S.)
Charging Party asserts the union failed to represent him when he received a reprimand in
May
2003. As this refusal took place more than six months prior to the filing
of
the charge,
the
allegation must be dismissed as untimely.
II. 	Duty of Fair Represen~ation
Charging Party has alleged that the exclusive representative denied Charging Party 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
ofLos
Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima
facie violation
of
this section
of
BERA, Charging Party must show that the Respondent's .
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers ofLos Angeles
(Collins), the Public Employment Relations Board stated:
Absent bad faith, discrimination, or ar_bitrary 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 behalfas long as it does not
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 ofarbitrary 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 mann~r the
exclusive representative's action or inaction was without a
rational basis or devoid ofhonestjudgment. 	(Emphasis added.)"
[Reed District Teachers Association. CT A/NEA (Reves) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]

SF-CO-642-E
May 3, 2004
Page 4
(
First, Charging Party contends the union breached its duty of fair representation by asking him
questions during a disciplinary meeting. 	It is unclear why such an action is considered
arbitrary and it is unclear why Charging Party believes this action to be unlawful. 	My research
failed to uncover. any cases where a union representative was found to have violated the Act by
asking questions of an employee. 	Moreover, as two union representatives were present at this
meeting, the meeting was clearly investigatory and/or disciplinary in nature. 	Finally, there are
no facts supporting the contention that the union caused Charging Party to be reprimanded. 	As
such, this allegation fails to state a prima facie case.
Charging Party also contends the union failed to file a Civil Service complaint against the
District for alleged violations of Rule 110 and failed to assist him with an ADA complaint. .
However, an exclusive representative does not owe a duty of fair representation to unit
members in a forum over which the union does not exclusively control the means to a
particular remedy. 	(California State Employees Association (Parisi) (1989) PERB Decision
No. 733-S.) 	Accordingly, the duty of fair representation does not attach to an exclusive
representative in extra-contractual proceedings before agencies such as Department of Fair
Employment and Housing or the State Personnel Board. 	(California Union of Safety
Employees (John) (1994) PERB Decision No. 1064-S; California State Employees Association
(Carrillo) (1997) PERB Decision No·. 1199-S.) As such, Local 790 is not obligated to
represent you in front of the Civil Service Commission and is not required to assist you with
your ADA complaint. 	As they are not obligated to represent you, their failure' to do so cannot
violate the EERA.
With regard to the alleged contract violation, Charging Party contends he requested the union
file a grievance over the District's failure to mail out the location of bulletin boards and their
failure to post promotional opportunities. 	However, the parties' agreement clearly states the
District cannot be held legally liable for such failures. Moreover, many of these alleged
violations occurred well outside of the grievance time lines. As a union is not obligated to
pursue a grievance with a slim chance of success, their failure to file is not unlawful. 	Finally,
as the District cannot be held liable for violations of those provisions, the union's failure to file
a grievance is not a violation of the EERA.
Lastly, Charging Party contends the union's mention of his complaint against the President
violates the duty of fair representation. 	However, there are no facts to indicate that Charging
Party is being denied representation because ofhis complaint. 	Moreover, there is no indication
that Charging Party has been treated differently because of the complaint. As such, this
allegation must be dismissed. ·
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

SF-C0-642-E
May
3,
2004
Page5
r·
comer of the charge
form.
The amended charge must be served on the respondent's
~presentative and the original proof
of
service must be
filed
with PERB.
If
I
_do
not receive
an
amended charge or withdrawal from you
before May
10.
2004, 1 shall dismiss your charge. 	Ifyou
have any questions, please call me at the
above
telephone number.
Sincerely,
Kristin
L.
Rosi
Regional Attorney
KLR