Inlandboatmans Union of the Pacific (Treas) (PERB 1919M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DANIEL JAMES TREAS,
Charging Party, Case No. SF-CO-149-M

Vv. PERB Decision No. 1919-M

INLANDBOATMANS UNION OF THE PACIFIC,| A8ust 10, 2007

Respondent.

Appearance: Daniel James Treas, on his own behalf.
Before Duncan, Chairman; Shek and Wesley, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Daniel James Treas of a Board agent’s dismissal (attached) of his unfair
practice charge. The charge alleged that the Inlandboatmans Union of the Pacific (Union)!
violated the Meyers-Milias-Brown Act (MMBA)’ by failing to secure his sick leave and lunch
time pay.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the warning and dismissal letters, and the appeal of the dismissal. The Board finds the
Board agent’s warning and dismissal letters to be without prejudicial error and adopts them as

the decision of the Board itself.

‘While transit districts, with their own statutorily prescribed method of administering
employer-employee relations, are not subject to the MMBA (see Rae v. Bay Area Rapid
Transit Supervisory Etc. Assn. (1980) 114 Cal.App.3d 147, 251 [170 Cal.Rptr. 448]), the
Golden Gate Transportation District is a “public agency” within the meaning of MMBA
section 3501(c). Therefore, the Board has jurisdiction to decide this case involving this
“recognized employee organization” under MMBA section 3501(b).

*MMBA is codified at Government Code section 3500, et seq.

ORDER
The unfair practice charge in Case No. SF-CO-149-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Shek and Wesley joined in this Decision.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 16, 2007
Daniel Treas
758 Renfrew Road
El Sobrante, CA 94803
Re: 	Daniel James Treas v. Inlandboatmans Union of the Pacific
Unfair Practice Charge No. SF-CO-149-M
DISMISSAL LETTER
Dear Mr. Treas:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 8, 2007. Daniel James Treas alleges that the
Inlandboatmans Union of the Pacific violated the Meyers-Milias-Brown Act (MMBA)1 by
failing to secure his sick leave and lunch time pay.
I indicated to you in my attached letter dated April 2, 2007, 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 April 9, 2007, the charge would be di~missed.
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 April 2, 2007, 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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA 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 of Regulations, title 8, section
31001 et seq.

SF-CO-149-M
April 16, 2007
Page 2
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
(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. 	(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.) 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. 	(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.)

SF-CO-149-M
April 16, 2007
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
By-"-/L_,_-___A	___r_Z	_____	A __
Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Dmitri Iglitzin

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	(
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 2, 2007
Daniel Treas
758 Renfrew Road
El Sobrante, CA 94803
Re: 	Daniel James Treas v. Inlandboatmans Union of the Pacific
Unfair Practice Charge No. SF-CO-149-M
WARNING LETTER
Dear Mr. Treas:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 8, 2007. Daniel James Treas alleges that the
Inlandboatmans Union of the Pacific violated the Meyers-Milias-Brown Act (MMBA) 1 by
failing to secure his sick leave and lunch time pay.
Investigation of the charge revealed the following. 	You are employed by the Golden Gate
Transportation District as a Deckhand on the Golden Gate Ferry. As such, you are exclusively
represented by the Inlandboatmen's Union. The Union and the District are parties to a
collective bargaining agreement, which was not provided with the charge.
On May 2, 2006, you received a letter from the District informing you of your assignment as a
provisional deckhand during the 2006 baseball season. The letter stated in pertinent part as
follows:
While the District and your Union are still discussing the option
of making provisional appointments to allow us to offer benefits
for work during the baseball season, the District will provide you
the following benefits while we continue working toward a
resolution of this matter. Beginning in April, and until the
baseball schedule terminates towards the end of September, you
will receive:
* Medical benefits
* Pension contributions
* Fixed or observed holiday pay
* Sick leave and vacation accruals
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-149-M
April 2, 2007
Page 2
On January 5, 2007, Charging Party filed a grievance against the District alleging the District
failed to provide him sick leave, holiday pay and a uniform allowance. 	The status of this
grievance is unclear.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the MMBA, for the reasons provided below.
Charging Party contends the Union violated its duty of fair representation. 	However, Charging
Party fails to provide any facts regarding his contact with the union. The charge is devoid of
any facts regarding when the Charging Party contacted the Union about this problem, whom he
spoke with and what their response was. Without such information, it is impossible for PERB
to determine if a violation has occurred.
Should Charging Party wish to file an amended charge, the following is the standard that will
be applied by PERB to such allegations. 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 arbitrarilK, discriminatorily, or in bad faith." (Hussey v.
Operating Engineers (1995) 35 Cal.App.4t 1213 [42 Cal.Rptr.2d 389].) 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."
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
thCaterpillar Tractor Co. (9 	Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
thRobesky v. Quantas Empire Airways Limited (9 	Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
In International Association of Machinists {Attard) (2002) PERB Decision No. 1474-M, 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/NBA (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]).
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. (International Association of Machinists
(Attard) (2002) PERB Decision No. 1474-M.) The burden is on the charging party to show
how an exclusive representative abused its discretion, and not on the exclusive representative

SF-CO-149-M
April 2, 2007
Page 3
(
to show how it properly exercised its discretion. 	(United Teachers - Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
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 April 9, 2007, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR