Service Employees International Union Local 790 (Chan) (PERB 1892M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALBERT CHAN,
Charging Party,
v.
SEIU LOCAL 790,
Respondent.
Case No. SF-CO-128-M
PERB Decision No. 	1892-M
March 	1 5 , 	2007
Appearance: 	Albert Chan, on his own behalf.
Before Shek, McKeag and Neuwald, Members.
DECISION
SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Albert Chan (Chan) of a dismissal of his unfair practice charge.
The charge alleged that the SEIU Local 790 (Local 790) violated the Meyers-Milias-Brown
Act (MMBA)1 by failing to seek arbitration of Chan's termination from employment with the
City and County of Sacramento Recreation and Park Department (City). 	Chan alleged that this
conduct constituted a violation of Local 790's duty of fair representation and brought an unfair
practice charge under MMBA section 3509(b) and PERB Regulation 32604.2
The Board has reviewed the entire record in this case, including but not limited to the
unfair practice charge, the first amended charge, and the warning and dismissal letters. Based
upon this review, we affirm the dismissal of the charge.
MMBA is codified at Government Code section 3500, et seq.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.

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BACKGROUND
Chan was employed by the City as a Lifeguard/Swim Instructor until he was accused by
a female swimming pool patron of sexual harassment (an accusation which he denied). 	On
January 14, 2004, following a Skelly3 hearing, the City Aquatics Manager determined to move
forward with Chan's dismissal from employment. 	However, on that date, Chan requested and
was granted a medical leave of absence.
After Chan had been on disability leave for over a year, the City scheduled a meeting
with Chan and his lawyer to review the termination recommendation. At Chan's request, the
City postponed the meeting twice, ultimately settling on a date of July 11, 2005. Chan failed
to appear at the July 11, 2005 meeting or to exercise his option of responding in writing.
On July 14, 2005, the City issued a notice of dismissal terminating Chan's employment.
Chan alleges that he picked up a copy of the notice of dismissal at the post office on August 1,
2005.
Chan alleges that he thereafter telephoned Local 790 to request that Local 790 seek
arbitration of his termination according to the collective bargaining agreement (CBA) between
Local 790 and the City, but that Local 790 did not return his telephone calls. In an August 30,
2005, letter, Chan requested that Local 790 take his case to arbitration. On October 7, 2005,
Chan alleges that he went to the union's office and was informed that the deadline for
requesting arbitration had passed.
Chan filed an unfair practice charge on March 29, 2006, alleging that Local 790
violated its duty of fair representation. The Board agent issued a warning letter on April 5,
2006, and dismissed the charge on July 6, 2006. The Board agent reasoned that it was
"extremely likely" that the deadline for requesting arbitration had elapsed by the time Chan
3Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14] (Skellv).

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asked the union to seek arbitration, and that therefore, the union's decision not to pursue
arbitration was neither arbitrary nor devoid of rational basis.
On appeal, Chan alleges that the Board agent erred in stating that he was terminated in
2004, when, in fact, he was terminated in July 2005. Chan alleges that the CBA provides for
the union to request arbitration over the termination of a unit member. Additionally, he alleges
that he requested that Local 790 elevate his case to arbitration within approximately one month
after his termination, but that Local 790 failed to do so.
DISCUSSION
The issue in this case is whether Local 790 breached the duty of fair representation.
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.4 th 1213-
[42 Cal.Rptr.2d 389] (Hussey).)
Case law indicates 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." (Hussey.) A union
does not breach its duty of fair representation by declining to proceed or negligently forgetting
to file a timely appeal of a grievance. 	(San Francisco Classroom Teachers Association,
CTA/NEA (Bramell) (1984) PERB Decision No. 430 (Bramell).) In Bramell. the union was
found to have violated its duty of fair representation because it promised to obtain an extension
of time to file a grievance but inexplicably failed to do so. The Board has also held that a
disagreement between the union and the grievant as to whether a grievance should proceed to

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arbitration does not establish a breach of the duty of fair representation. 	(Service Employees
International Union. Local 250 (Hessong) (2004) PERB Decision No. 1693-M (Hessong).)
The facts of this case, as alleged, do not establish a prima facie case of a breach of the
duty of fair representation. 	Unlike the facts of Bramell, the unfair practice charge does not
allege that Local 790 ever promised to request arbitration of Chan's termination. Additionally,
under Bramell and Hessong. the allegations regarding Local 790's failure to return Chan's
phone calls regarding the request for arbitration are not sufficient evidence that the union acted
in a manner that was arbitrary, discriminatory, or in bad faith. The unfair practice charge did
not allege the date(s) on which he made such a telephone call(s) to the union. The record does
not establish whether Chan's case was even eligible for arbitration, as Chan and his lawyer
failed to appear at the meeting scheduled for July 11, 2005 to review his termination. The
record also does not establish that Chan requested the union to seek arbitration within the time
limit for doing so.4 The Board therefore finds that the unfair practice charge fails to state a
prima facie case of a breach of the duty of fair representation.
ORDER
The unfair practice charge in Case No. SF-CO-128-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
The record does not
the relevant CBA provisions, and we cannot determine the
deadline for filing a request for arbitration. 	However, the record indicates that Chan did not
pick up his notice of termination until two weeks after it was mailed, and telephoned the union
some time thereafter.