Service Employees International Union Local 1000 (George) (PERB 1984S)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
LAURENDA GEORGE,	LAURENDA GEORGE,
Charging Party,	Charging Party,
VV..
SEIU LOCAL 1000,	SEIU LOCAL 1000,
Respondent.	Respondent.
Case No. SA-CO-299-S	Case No. SA-CO-299-S
PERB Decision No. 1984-S	PERB Decision No. 	1984-S
October 31, 2008	October 31, 2008
LAppearance: Laurenda George, on her own behalfaurenda George, on her own behalf.
Before Neuwald, Chair; Wesley and Rystrom, Members.	Before Neuwald, Chair; Wesley and Rystrom, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board	WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Laurenda George (George) of a Board agent's dismissal	(PERB or Board) on appeal by Laurenda George (George) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleges that SEIU Local 1000 (Local	(attached) of her unfair practice charge. The charge alleges that SEIU Local 1000 (Local
1000) breached its duty of fair representation in violation of the Ralph C. Dills Act (Dills	1000) breached its duty of fair representation in violation of the Ralph C. Dills Act (Dills
Act)	Act)1' .
The Board has reviewed the entire record in this matter, including the original and	The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, Local 1000' s response to the charge, the warning andamended unfair practice charge, Local 1000's response to the charge, the warning and
dismissal letters, and George's appeal. 	The Board affirms the dismissal of the charge and	dismissal letters, and George's appeal. The Board affirms the dismissal of the charge and
adopts the Board agent's dismissal as the decision of the Board itself consistent with the	adopts the Board agent's dismissal as the decision of the Board itself consistent with the
discussion below.	discussion below.
The Board agent dismissed certain allegations in the charge as untimely filed. 	Dills Act	The Board agent dismissed certain allegations in the charge as untimely filed. Dills Act
section 3514.5(a)(1) prohibits PERB from issuing a complaint with respect to "any charge	section 3514.S(a)(l) prohibits PERB from issuing a complaint with respect to "any charge
1
The Dills Act is codified at Government Code section 3512 et seq.	The Dills Act is codified at Government Code section 3512 et seq.
1

based upon an alleged unfair practice occurring more than six months prior to the filing of the	based upon an alleged unfair practice occurring more than six months prior to the filing
of
the
charge." 	The statutory limitations period begins to run	charge." The statutory limitations period begins to run once the charging party knows, or	once the charging party knows, or
should have known,
of
the conduct	should have known, of the conduct underlying the charge. (Gavilan Joint Community College	underlying the charge. (Gavilan Joint Community College
District (1996)	District (1996) PERB Decision No. 1177.)	PERB Decision No. 1177.)
The Board agent's dismissal appears to	The Board agent's dismissal appears to suggest that a charging party's burden to allege	suggest that a charging party's burden to allege
facts to establish the timeliness of a charge at the investigative stage arises only after a	facts to establish the timeliness
of
a charge at the investigative stage arises only after a
respondent has	respondent has raised the statute of limitations as an affirmative defense. However, the Board	raised the statute
of
limitations as an affirmative defense. However, the Board
has long held that in order to state a prima facie case, a charging party must allege sufficient	has long held that in order to state a prima facie case, a charging party must allege sufficient
facts to demonstrate that the charge is timely filed.	facts to demonstrate that the charge is timely filed. (Tehachapi Unified School District (1993)	(Tehachapi Unified School District (1993)
PERB	PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB	Decision No. 1024; State
of
California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.)	Decision No. 1197-S.)
Also, George	Also, George submitted new evidence and allegations in her appeal and after the filings	submitted new evidence and allegations in her appeal and after the filings
in this case were complete. PERB Regulation 32635(6)2 prohibits a charging party from	in this case were complete. PERB Regulation 32635(b) prohibits a charging party from
submitting new evidence	submitting new evidence and allegations on appeal absent good cause. We do not find good	and allegations on appeal absent good cause. We do not find good
cause to consider the late filings.	cause to consider the late filings.
ORDER	ORDER
The unfair practice charge in Case No. SA-CO-299-S is hereby DISMISSED	The unfair practice charge in Case No. SA-CO-299-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.	WITHOUT LEAVE TO AMEND.
2
Chair	Chair Neuwald and Member Rystrom joined in this Decision.	Neuwald and Member Rystrom joined in this Decision.
2
PERB regulations are codified at California Code of Regulations, title 8, section 31001	PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.	et seq.
2

STATE OF CALIFORNIA 	C 	ARNOLD SCHWARZENEGGER, Governor	
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC	PUBLIC EMPLOYMENT RELATIONS BOARD	EMPLOYMENT RELATIONS BOARD
Office	Office of the General Counsel	
of
the General Counsel
1031 18th Street	
103118th
Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
Telephone:	Telephone: (916) 327-8383	(916) 327-8383
Fax: (916) 327-6377	Fax: (916) 327-6377
July 23, 2007	July 23, 2007
Laurenda George
7878 Grandstaff Drive
Sacramento, CA 95823
Re:	Re: 	Laurenda George v. SEIU Local 1000	Laurenda George v. SEIU Local 1000
Unfair Practice Charge No. SA-CO-299-S	Unfair Practice Charge No. SA-CO-299-S
DISMISSAL LETTER	DISMISSAL LETTER
Dear Ms. George:	Dear Ms. George:
The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2007. Laurenda George alleges that SEIU Local 1000	Board (PERB or Board) on February 28, 2007. Laurenda George alleges that SEIU Local 1000
(Union) violated the Ralph C. Dills Act (Dills Act).' T
1 he statement of the original charge	(Union) violated the Ralph
C.
Dills Act (Dills Act). 	The statement
of
the original charge
alleged that:	alleged that:
The	The State Controller's Office and the SEIU Local 1000 are using	State Controller's Office and the SEIU Local 1000 are using
an improper third	an improper third party probationary period to terminate me	party probationary period to terminate me
based on harassment[,] using a stipulated settlement agreement.	based on harassment[,] using a stipulated settlement agreement.
Attached to the charge is a draft (and unsigned) settlement agreement regarding an appeal	Attached to the charge is a draft (and unsigned) settlement agreement regarding an appeal
pending	pending before the State Personnel Board (SPB). Also attached are numerous emails	before the State Personnel Board (SPB). Also attached are numerous emails
exchanged	exchanged by Ms. George and Jake Hurley, a Union attorney, as well as emails exchanged by	by Ms. George and Jake Hurley, a Union attorney, as well as emails exchanged by
Ms. George and Vicki Tully, Ms. George's supervisor at the State Controller's Office. The	Ms. George and Vicki Tully, Ms. George's supervisor at the State Controller's Office. The
charge	charge further states that Ms. George is employed by the State Controller's Office (SCO) in a	further states that Ms. George is employed by the State Controller's Office (SCO) in a
position	position included in State Bargaining Unit 1. Unit 1 is exclusively represented by the Union.	included in State Bargaining Unit
1.
Unit 1 is exclusively represented by the Union.
I informed you in my attached letter dated March 19, 2007, that the above-referenced charge	I informed you in my attached letter dated March 19, 2007, that the above-referenced charge
did	did not state a prima facie case. You were advised that, if there were any factual inaccuracies	not state a prima facie case. You were advised that, if there were any factual inaccuracies
or	or additional facts that would correct the deficiencies explained in that letter, you should	additional facts that 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	amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to March 29, 2007, the charge would be dismissed. At	prima facie case or withdrew it prior to March 29, 2007, the charge would be dismissed. 	At
your request, additional time to perfect the filing of an amended charge was granted, and a	your request, additional time to perfect the filing
of
an amended charge was granted, and a
First Amended Charge was filed with PERB on April 9, 2007. On June 4, 2007, a Second	First Amended Charge was filed with PERB on April 9, 2007. On June 4, 2007, a Second
Amended Charge was filed.	Amended Charge was filed.
(	
,;	
C	
============--·-~c===aa=============-=============
1
The Dills Act is codified at Government Code section 3512 et seq. The text of the	The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at	Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov	w 	.	ww.perb.ca.gov.

SA-CO-299-S
July 23, 2007
Page 2
SA-CO-299-S
July 23, 2007
Page 2
First Amended Charge	First Amended Charge
The First Amended Charge briefly states	The First Amended Charge briefly states the alleged violation as the Union's failure to enforce	the alleged violation as the Union's failure to enforce
the	the Bargaining Unit 1 contract. The First Amended Charge then itemizes this allegation in	Bargaining Unit 1 contract. The First Amended Charge then itemizes this allegation in
four	four parts:	parts:
1
1 The Union's refusal to submit a grievance on Ms. George's behalf against Vicki Tully,	The Union's refusal to submit a grievance on Ms. George's behalf against Vicki Tully,
Manager I in the SCO's Unclaimed Property Division "for Ms. Tully's continuous violation"	Manager I in the SCO's Unclaimed Property Division "for Ms. Tully's continuous violation"
of the contract since April 19, 2005. The First Amended Charge alleges 15 separate actions	
of
the contract since April 19, 2005. The First Amended Charge alleges
15
separate actions
taken against Ms. George's	taken against Ms. George's interests during the period from April 2005 through February 15,	interests during the period from April 2005 through February 15,
2007. While	2007. While acknowledging that certain of the described actions occurred more than six	acknowledging that certain
of
the described actions occurred more than six
months prior to the	months prior to the filing of the charge, Ms. George contends that the events listed	filing
of
the charge, Ms. George contends that the events listed
"collectively	"collectively [] represent a pattern of continuous inaction relative to SEIU Local 1000 in	
[]
represent a pattern
of
continuous inaction relative to SEIU Local 1000 in
response to a	response to a meritorious complaint which ultimately resulted in the challenged conduct: A	meritorious complaint which ultimately resulted in the challenged conduct: A
third/improper probationary period and subsequent Report of Performance for Probationary	third/improper probationary period and subsequent Report
of
Performance for Probationary
Employee issued to [Ms.	Employee issued to [Ms. George] on August 30, 2006 which is adverse in nature." Thus, Ms.	George] on August 30, 2006 which is adverse in nature." Thus, Ms.
Georg·e	George contends the events alleged should be considered as timely, for purposes of the	contends the events alleged should be considered as timely, for purposes
of
the
applicable statute
of	applicable statute of limitations, as continuing violations of the Union's duty of fair	limitations, as continuing violations
of
the Union's duty
of
fair
representation.
22.. The refusal by Union Labor Relations Representative Shawn Walker to represent Ms.	The refusal by Union Labor Relations Representative Shawn Walker to represent Ms.
George	George "during an investigatory meeting with Ms. Tully to discuss a third/improper	"during an investigatory meeting with Ms. Tully to discuss a third/improper
probationary period Report of Performance for Probationary Employee."	probationary period Report
of
Performance for Probationary Employee."
.
.
representation.
3.. Ms. Walker's "collusion with Ms. Tully" that interfered with Ms. George's "right to submit	Ms. Walker's "collusion with Ms. Tully" that interfered with Ms. George's "right to submit
a timely Appeal
of
Performance Report to the	a timely Appeal of Performance Report to the Department of Personnel Administration (DPA)	Department
of
Personnel Administration (DP A)
in dispute
of	in dispute of the aforementioned third/improper probationary period and subsequent Report(s)	the aforementioned third/improper probationary period and subsequent Report(s)
of Performance for Probationary Employee."	
of
Performance for Probationary Employee."
44.. The "discriminatory bad faith conduct of Mr. Jake Hurley," a Union attorney, "when during	The "discriminatory bad faith conduct
of
Mr. Jake Hurley," a Union attorney, "when during
the	the period of November 28, 2006 to February 23, [2007], Mr. Hurley interfered with [Ms.	period
of
November 28, 2006 to February 23, [2007], Mr. Hurley interfered with [Ms.
George's]	George's] protected right to file a timely Unfair Practice Charge by feigning representation	protected right to file a timely Unfair Practice Charge by feigning representation
which also had an adverse effect on	which also had an adverse effect on [Ms. George's] March 29, 2007 State Personnel Board	(Ms. George's] March 29, 2007 State Personnel Board
hearing."	hearing."
3
As	As background, the First Amended Charge includes information dating back to August 15,	background, the First Amended Charge includes information dating back to August 15,
2003, concerning Ms. George's employment at the SCO, culminating in her involuntary	2003, concerning Ms. George's employment at the SCO, culminating in her involuntary
transfer in	transfer in March or April 2005 to the position under Ms. Tully's supervision. The First	March or April 2005 to the position under Ms. Tully's supervision. The First
Amended	Amended Charge then recounts in detail various employment-related disputes with Ms. Tully	Charge then recounts in detail various employment-related disputes with Ms. Tully
and the SCO, including the filing of a whistleblower retaliation complaint, grievances, an	and the SCO, including the filing of a whistle blower retaliation complaint, grievances, an
EEOC	EEOC complaint, and an appeal of performance appraisal. In all, the statement of the First	complaint, and an appeal of performance appraisal. In all, the statement of the First
Amended	Amended Charge consists of 42 pages, with 66 attachments numbering approximately 200	Charge consists of 42 pages, with 66 attachments numbering approximately 200
pages.	pages.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 3	Page 3
Discussion	Discussion
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a	PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."	"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
(See Regents
of
the	(See Regents of the University of California (2004) PERB Decision No. 1585-H (Sarka).)	University
of
California (2004) PERB Decision No. 1585-H (Sarka).)
Legal	Legal conclusions are not sufficient to state a prima facie case. (State of California	conclusions are not sufficient to state a prima facie case. (State
of
California
(Department	Department of Food and Agriculture) (1994) PERB Decision No. 1071-S; Charter Oak	
of
Food and Agriculture) (1994) PERB Decision No. 1071-S; Charter Oak
Unified	Unified School District (1991) PERB Decision No. 873.)	School District (1991) PERB Decision No. 873.)
Much of the information in the First Amended Charge is focused on conduct of the employer	Much
of
the information in the First Amended Charge is focused on conduct
of
the employer
and is not relevant to an analysis of whether the Union breached its duty of fair representation.	and
is
not relevant to an analysis
of
whether the Union breached its duty
of
fair representation.
The	The right to fair representation is guaranteed by Dills Act section 3515.7(g) and California	right to fair representation is guaranteed by Dills Act section 3515.7(g) and California
State Employees' Association (Norgard) (1984) PERB Decision No. 451-S, and a breach of	State Employees' Association (Norgard) (1984) PERB Decision No. 451-S, and a breach
of
this duty violates section	this duty violates section 3519.5(b). The duty of fair representation imposed on the exclusive	3519.5(b
).
	The duty
of
fair representation imposed on the exclusive
representative extends to grievance handling.	representative extends to grievance handling. (Fremont Teachers Association (King) (1980)	(Fremont Teachers Association (King) (1980)
PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision	PERB Decision No. 125; United Teachers
of
Los Angeles (Collins) (1982) PERB Decision
No. 258.) To state a prima facie violation of this section of the Dills Act, Charging Party must	No. 258.) To state a prima facie violation
of
this section
of
the Dills Act, Charging Party must
show that the	show that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United	Respondent's conduct was arbitrary, discriminatory or in bad faith. 	In United
Teachers of Los Angeles (Collins), the Public Employment Relations Board stated:	Teachers
of
Los Angeles (Collins). the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere	Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in	negligence or poor judgment in handling a grievance does not	handling a grievance does not
constitute a breach of the union's duty. [Citations omitted.]	constitute a breach
of
the union's duty. 	[Citations omitted.]
A	A union may exercise its discretion to determine how far to	union may exercise its discretion to determine how far to
pursue a	pursue a grievance in the employee's behalf as long as it does not	grievance in the employee's behalf as long as
it
does not
arbitrarily ignore a meritorious grievance or process a grievance	arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process	in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.	an employee's grievance
if
the chances for success are minimal.
To state a prima facie case of arbitrary conduct violating the duty of fair representation, a	To state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation, a
Charging Party:	Charging Party:
( 	(
. "
...	". . . must at a minimum include an assertion of sufficient facts	must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the	from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a	exclusive representative's action or inaction was without a
rational basis or	rational basis or devoid of honest judgment. (Emphasis added.)"	devoid of honest judgment. (Emphasis added.)"
[Reed	Reed District Teachers Association, CTA/NEA (Reyes) (1983)	District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers	PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision	Professional Association (Romero) (1980) PERB Decision
No. 124.]	No. 124.]
With	With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed	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	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	federal precedent, a union's negligence breaches the duty of fair representation "in cases in

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 4	Page 4
which the individual interest at stake is strong and the union's failure to perform a ministerial	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.	act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas	Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)	Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
A union does not owe a duty of fair representation to unit members in a forum over which the	A union does not owe a duty of fair representation to unit members in a forum over which the
union	union does not exclusively control the means to a particular remedy. Thus, for example,	does not exclusively control the means to a particular remedy. Thus, for example,
refusing to assist an employee in an appeal before the State Personnel Board (SPB) is not a	refusing to assist an employee in an appeal before the State Personnel Board (SPB) is not a
violation (Stationary Engineers Local 39 (Quigley) (2005) PERB Decision No. 1790-S), nor is	violation (Stationary Engineers Local 39 (Quigley) (2005) PERB Decision No. 1790-S), nor is
a union required to assist an employee with filing an unfair practice charge with PERB.	a union required to assist an employee with filing an unfair practice charge with PERB.
(Teamsters Local 228 (Cardoso) (2006) PERB Decision No. 1845.)	(Teamsters Local 228 (Cardoso) (2006) PERB Decision No. 1845.)
Further, Dills Act section 3514.5(a)(l) prohibits PERB from issuing a complaint with respect	Further, Dills Act section 3514.5(a)(1) prohibits PERB from issuing a complaint with respect
to	to "any charge based upon an alleged unfair practice occurring more than six months prior 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,	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	or should have known, of the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177.) The statute of limitations is an affirmative	College District (1996) PERB Decision No. 1177.) The statute of limitations is an affirmative
defense raised by the respondent in this case. (Long Beach Community College District	defense raised by the respondent in this case. (Long Beach Community College District
(2003)	(2003) PERB Decision No. 1564.) Therefore, charging party bears the burden of	PERB Decision No. 1564.) Therefore, charging party bears the burden of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified School District (1993)	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	PERB Decision No. 1024; State of California (Department oflnsurance) (1997) PERB
Decision	Decision No. 1197-S.)	No. 1197-S.)
With the above standards in mind, each of the alleged violations of the duty of fair	With the above standards in mind, each of the alleged violations of the duty of fair
representation that can be discerned from the charge materials will be discussed.	representation that can be discerned from the charge materials will be discussed.
Arbitrary Conduct	Arbitrary Conduct
On pages 22-24 of the statement of the First Amended Charge, Ms. George describes six	On pages 22-24 of the statement of the First Amended Charge, Ms. George describes six
incidents that are alleged in support of the claim that the Union's conduct was arbitrary. The	incidents that are alleged in support of the claim that the Union's conduct was arbitrary. The
first numbered item references Ms. Walker's acknowledgement on January 13, 2005, that Ms.	first numbered item references Ms. Walker's acknowledgement on January 13, 2005, that Ms.
Tully was "harassing" Ms. George, and Ms. Walker's request on July 26, 2006, that Ms.	Tully was "'harassing" Ms. George, and Ms. Walker's request on July 26, 2006, that Ms.
George prepare a rebuttal to an informal reprimand received from Ms. Tully while Ms. Walker	George prepare a rebuttal to an informal reprimand received from Ms. Tully while Ms. Walker
pursued a grievance. The conduct described in this paragraph is outside the six-months	pursued a grievance. The conduct described in this paragraph is outside the six-months
limitations	limitations period, and does not describe conduct that breaches the duty of fair representation.	period, and does not describe conduct that breaches the duty of fair representation.
For these reasons, this allegation will be dismissed	For these reasons, this allegation will be dismissed.
The second numbered item states that, on August 7, 2006, Ms. Walker e-mailed Ms. George	The second numbered item states that, on August 7, 2006, Ms. Walker e-mailed Ms. George
concerning a desire to follow-up with her regarding a grievance against Ms. Tully. The First	concerning a desire to follow-up with her regarding a grievance against Ms. Tully. The First
Amended Charge further states that Ms. George asked Ms. Walker to file the grievance, or a	Amended Charge further states that Ms. George asked Ms. Walker to file the grievance, or a
PERB unfair practice charge. In the First Amended Charge, Ms. George opines, and cites	PERB unfair practice charge. In the First Amended Charge, Ms. George opines, and cites
"expert advise" of various law firms, to the effect that a grievance under Article 5.5 of the	"expert advise" of various law firms, to the effect that a grievance under Article 5 .5 of the
collective bargaining agreement alleging retaliation against Ms. George would have been	collective bargaining agreement alleging retaliation against Ms. George would have been
meritorious. Implicit in the charge allegation is that Ms. Walker did not file a grievance, but	meritorious. Implicit in the charge allegation is that Ms. Walker did not file a grievance, but
the charge does not indicate when Ms. George learned of this or what explanation, if any, Ms.	the charge does not indicate when Ms. George learned of this or what explanation, if any, Ms.
(

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 5	Page 5
Walker provided for not filing the grievance. The burden is upon a charging party to show	Walker provided for not filing the grievance. 	The burden is upon a charging party to show
how an exclusive representative abused its discretion and not on the union to show that it	how an exclusive representative abused its discretion and not on the union to show that it
properly exercised it. (American Federation of Teachers College Guild, Local 1521 (Saxton)	properly exercised it. (American Federation of Teachers College Guild, Local 1521 (Saxton)
(1995)	(1995) PERB Decision No. 1109.) As noted above, legal conclusions are not sufficient to state	PERB Decision No. 1109.) As noted above, legal conclusions are not sufficient to state
a prima facie case. (State of California (Department of Food and Agriculture), supra, PERB	a prima facie case. (State of California (Department of Food and Agriculture), supra, PERB
Decision No. 1071-S; Charter Oak Unified School District, supra, PERB Decision No. 873.)	Decision No. 1071-S; Charter Oak Unified School District, supra, PERB Decision No. 873.)
Thus, even assuming the charge allegation is timely filed, a prima facie violation of the duty of	Thus, even assuming the charge allegation is timely filed, a prima facie violation of the duty of
fair representation is not established, and the charge allegation will be dismissed.	fair representation is not established, and the charge allegation will be dismissed.
The third numbered paragraph in this section of the charge again references lack of follow-up	The third numbered paragraph in this section of the charge again references lack of follow-up
by	by Ms. Walker regarding the status of a grievance, but does not add any information to change	Ms. Walker regarding the status of a grievance, but does not add any information to change
the above-stated conclusion. Ms. George sent an e-mail to Ms. Walker on September 27,	the above-stated conclusion. Ms. George sent an e-mail to Ms. Walker on September 27,	2
2006," inquiring as to the status of a grievance against Ms. Tully, and received a response to	2006, 	inquiring as to the status of a grievance against Ms. Tully, and received a response to
the	the effect that Ms. Walker was "not clear what [Ms. George was] referring to when" asking	effect that Ms. Walker was "not clear what [Ms. George was] referring to when" asking
about the status of the complaint or grievance. Ms. George concludes that this response	about the status of the complaint or grievance. Ms. George concludes that this response
"implies dishonesty." Again, legal conclusions are not sufficient to state a prima facie case.	"implies dishonesty." Again, legal conclusions are not sufficient to state a prima facie case.
This allegation must also be dismissed.	This allegation must also be dismissed.
The fourth numbered paragraph merely states that, in the "same September 27, 2006 e-mail	The fourth numbered paragraph merely states that, in the "same September 27, 2006 e-mail
message, Ms. Walker referred me to a letter from Paul Harris III, Chief Counsel, SEIU Local	message, Ms. Walker referred me to a letter from Paul Harris III, Chief Counsel, SEIU Local
1000." The e-mail from Ms. Walker referenced in this paragraph, and presumably in the	1000." The e-mail from Ms. Walker referenced in this paragraph, and presumably in the
preceding paragraph, is not provided with the First Amended Charge. This paragraph of the	preceding paragraph, is not provided with the First Amended Charge. This paragraph of the
First	First Amended Charge does not state a prima facie violation of the duty of fair representation.	Amended Charge does not state a prima facie violation of the duty of fair representation.
The fifth numbered paragraph regarding arbitrary conduct references a letter sent by Ms.	The fifth numbered paragraph regarding arbitrary conduct references a letter sent by Ms.
George	George to the Union on August 23, 2006, expressing concerns about her representation, and	to the Union on August 23, 2006, expressing concerns about her representation, and
the	the September 20, 2006, letter from Mr. Harris in response. The First Amended Charge alleges	September 20, 2006, letter from Mr. Harris in response. The First Amended Charge alleges
that Mr. Harris' letter3 included the following: "After conducting an extensive investigation, I	that Mr. Harris' letter' included the following: "After conducting an extensive investigation, I
have been unable to substantiate any of your allegations." Ms. George alleges that Mr. Harris'	have been unable to substantiate any of your allegations." Ms. George alleges that Mr. Harris'
statement lacks a rational basis as he had not contacted her for information, and the Union did	statement lacks a rational basis as he had not contacted her for information, and the Union did
not request documents from her until December 18, 2006. The First Amended Charge here	not request documents from her until December 18, 2006. The First Amended Charge here
again relies on legal conclusions and does not provide sufficient, specific information to	again relies on legal conclusions and does not provide sufficient, specific information to
establish a breach of the duty of fair representation. This allegation will also be dismissed.	establish a breach of the duty of fair representation. This allegation will also be dismissed.
The sixth numbered paragraph also addresses a statement in Mr. Harris' September 20 letter,	The sixth numbered paragraph also addresses a statement in Mr. Harris' September 20 letter,
but	but focuses primarily on advice received from a Union steward in October 2005. On October	focuses primarily on advice received from a Union steward in October 2005. On October
18,	18, 2005, Ms. George e-mailed Ray Reynolds, a Union steward, concerning a meeting she had	2005, Ms. George e-mailed Ray Reynolds, a Union steward, concerning a meeting she had
scheduled for the following day with Ms. Tully. Ms. George's e-mail stated that she had been	scheduled for the following day with Ms. Tully. Ms. George's e-mail stated that she had been
unable to obtain representation for the meeting. Her e-mail further stated that, in the event Mr.	unable to obtain representation for the meeting. Her e-mail further stated that, in the event Mr.
Reynolds was unable to attend, she would "understand and [would] tape the meeting for [her]	Reynolds was unable to attend, she would "understand and [ would] tape the meeting for [her]
( 	(
2
The text of the First Amended Charge references the date of the e-mail as August 7,	The text of the First Amended Charge references the date of the e-mail as August 7,
2006, but the attached copy of the referenced e-mail shows its date as September 27, 2006.	2006, but the attached copy of the referenced e-mail shows its date as September 27, 2006.
3
The September 20, 2006 letter from Mr. Harris is not included among the 66	The September 20, 2006 letter from Mr. Harris is not included among the 66
attachments	attachments to the amended charge.	to the amended charge.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 6	Page 6
failure to investigate the facts "constitutes more than negligence or ineptitude."
attorney's review later." Mr. Reynolds responded, and advised that Ms. George tape the	attorney's review later." Mr. Reynolds responded, and advised that Ms. George tape the
meeting "for later use by [Ms. George's] attorney as the Union does not represent individuals	meeting "for later use by [Ms. George's] attorney as the Union does not represent individuals
who are also being represented by someone else." Mr. Reynolds further stated that if Ms.	who are also being represented by someone else." Mr. Reynolds further stated that if Ms.
George	George questioned his "decision," she should contact Ms. Walker.	questioned his "decision," she should contact Ms. Walker.
Ms. George objects here to the statement in Mr. Harris' September 20 letter that "it also	Ms. George objects here to the statement in Mr. Harris' September 20 letter that "it also
appears you were repeatedly warned by SEIU Local 1000 representatives that you did not haveappears you were repeatedly warned by SEIU Local 1000 representatives that you did not have
a right to tape record meetings with management." The First Amended Charge alleges that	a right to tape record meetings with management." The First Amended Charge alleges that
later discipline against Ms. George has referenced her recording of the October 19, 2005,	later discipline against Ms. George has referenced her recording of the October 19, 2005,
meeting; that Mr. Reynolds' advice caused prejudice to her employment; and that Mr. Harris'	meeting; that Mr. Reynolds' advice caused prejudice to her employment; and that Mr. Harris'
failure to investigate the facts "constitutes more than negligence or ineptitude."
As noted earlier, the September 20 letter from Mr. Harris to Ms. George is not provided with	As noted earlier, the September 20 letter from Mr. Harris to Ms. George is not provided with
the charge, and thus it is not clear whether Mr. Harris cited therein any specific advice given to	the charge, and thus it is not clear whether Mr. Harris cited therein any specific advice given to
Ms. George with respect to the tape recording of meetings with management. In any event, the	Ms. George with respect to the tape recording of meetings with management. In any event, the
facts presented with the charge make it clear that Ms. George expressed her intent to record thefacts presented with the charge make it clear that Ms. George expressed her intent to record the
meeting in October 2005 before receiving Mr. Reynolds' advice to do so, and that Mr.	meeting in October 2005 before receiving Mr. Reynolds' advice to do so, and that Mr.
Reynolds encouraged her to seek other advice if she did not disagree. Further, the advice by	Reynolds encouraged her to seek other advice if she did not disagree. Further, the advice by
Mr. Reynolds and Ms. George's act of recording the meeting occurred in October 2005, and	Mr. Reynolds and Ms. George's act of recording the meeting occurred in October 2005, and
thus fall well beyond the six months statute of limitations. While Mr. Harris' letter was written	thus fall well beyond the six months statute of limitations. While Mr. Harris' letter was written
within six months of the filing of the original charge, the charge as filed in February 2007 did	within six months of the filing of the original charge, the charge as filed in February 2007 did
not make any reference to the letter and did not allege that its contents constituted a breach of	not make any reference to the letter and did not allege that its contents constituted a breach of
the Union's duty of fair representation. The allegations concerning the September 20 letter	the Union's duty of fair representation. The allegations concerning the September 20 letter
were only introduced with the First Amended Charge filed in June 2007, and thus the	were only introduced with the First Amended Charge filed in June 2007, and thus the
allegations are not timely. For all these reasons, this allegation must also be dismissed.	allegations are not timely. For all these reasons, this allegation must also be dismissed.
Discrimination	Discrimination
On	On pages 26-34 of the First Amended Charge, Ms. George focuses on interactions with Ms.	pages 26-34 of the First Amended Charge, Ms. George focuses on interactions with Ms.
Walker	Walker between July 10 and November 16, 2006, as evidence of the Union's failure to	between July 10 and November 16, 2006, as evidence of the Union's failure to
represent her. The First Amended Charge reiterates that Ms. George asked Ms. Walker on July	represent her. The First Amended Charge reiterates that Ms. George asked Ms. Walker on July
10 and August 8, 2006, to file a grievance against Ms. Tully. The First Amended Charge	10 and August 8, 2006, to file a grievance against Ms. Tully. The First Amended Charge
references an e-mail sent by Ms. Walker to Ms. George on August 8, 2006, stating, "I would	references an e-mail sent by Ms. Walker to Ms. George on August 8, 2006, stating, "I would
like to follow up with you sometime this week regarding a grievance or filing a complaint	like to follow up with you sometime this week regarding a grievance or filing a complaint
against Vicki Tully." Ms. George does not state whether the requested meeting occurred, but	against Vicki Tully." Ms. George does not state whether the requested meeting occurred, but
does state that, sometime after August 23, 2006, she noticed the August 8 e-mail message was	does state that, sometime after August 23, 2006, she noticed the August 8 e-mail message was
missing from her computer and that, despite repeated requests, Ms. Walker had not forwarded	missing from her computer and that, despite repeated requests, Ms. Walker had not forwarded
a copy to her subsequently.	a copy to her subsequently.
On August 17, 2006, Ms. Walker forwarded an e-mail message to Ms. George requesting a	On August 17, 2006, Ms. Walker forwarded an e-mail message to Ms. George requesting a
return phone call. The First Amended Charge alleges the message was "deceptively titled" on	return phone call. The First Amended Charge alleges the message was "deceptively titled" on
the	the subject line as "RE: Trying to build a case." During the subsequent phone conversation,	subject line as "RE: Trying to build a case." During the subsequent phone conversation,
Ms. Walker informed Ms. George that she would no longer represent Ms. George in meetings	Ms. Walker informed Ms. George that she would no longer represent Ms. George in meetings
with	with Ms. Tully and that Ms. George should document the meetings. Later that same day, Ms.	Ms. Tully and that Ms. George should document the meetings. Later that same day, Ms.
Tully informed Ms. George that a meeting would soon be scheduled regarding Ms. George's	Tully informed Ms. George that a meeting would soon be scheduled regarding Ms. George's
( 	(

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 7	Page 7
first probation report. Ms. George then replied to Ms. Walker disputing her decision not to	first probation report. Ms. George then replied to Ms. Walker disputing her decision not to
attend meetings, such as the probation report meeting, with Ms. Tully. Ms. George sent	attend meetings, such as the probation report meeting, with Ms. Tully. Ms. George sent
another	another e-mail on the same topic to Ms. Walker on August 23, 2006, and also requesting	e-mail on the same topic to Ms. Walker on August 23, 2006, and also requesting
information on how to grieve the legitimacy of her probation. Ms. Walker responded with	information on how to grieve the legitimacy of her probation. Ms. Walker responded with
information from the collective bargaining agreement regarding grievances. 	On August 30,	information from the collective bargaining agreement regarding grievances." On August 30,
2006, Ms. George met with Ms. Tully regarding what the First Amended Charge characterizes	2006, Ms. George met with Ms. Tully regarding what the First Amended Charge characterizes
as the "third/improper probationary period Report of Performance for Probationary	as the "third/improper probationary period Report of Performance for Probationary
Employee."	Employee. "
4
5
The above information does not state a prima facie violation of the duty of fair representation,	The above information does not state a prima facie violation of the duty of fair representation,
and will be dismissed, for the following reasons. First, all of the conduct occurred outside the	and will be dismissed, for the following reasons. First, all of the conduct occurred outside the
six months statute of limitations period. In addition, the charge does not establish that the	six months statute of limitations period. In addition, the charge does not establish that the
August 30, 2006 meeting was of a nature that any duty would attach to the exclusive	August 30, 2006 meeting was of a nature that any duty would attach to the exclusive
representative to require a representative to attend. The meeting was scheduled to review a	representative to require a representative to attend. The meeting was scheduled to review a
probation	probation report, and not as an investigatory meeting that might lead to discipline, nor as a	report, and not as an investigatory meeting that might lead to discipline, nor as a
meeting to consider a grievance filed by the Union or Ms. George.	meeting to consider a grievance filed by the Union or Ms. George.
This section of the First Amended Charge next addresses Ms. Tully's denial of a one-day	This section of the First Amended Charge next addresses Ms. Tully's denial of a one-day
vacation request, for September 28, 2006, by Ms. George. Ms. George contacted Ms. Walker	vacation request, for September 28, 2006, by Ms. George. Ms. George contacted Ms. Walker
and asked her to grieve the vacation request denial. Ms. Walker declined to do so, citing the	and asked her to grieve the vacation request denial. Ms. Walker declined to do so, citing the
"on-going	"on-going attendance problem" that Ms. Tully had cited in denying the request. Ms. George	attendance problem" that Ms. Tully had cited in denying the request. Ms. George
alleges that Ms. Walker's failure to inquire into the validity of the "attendance problem" was	alleges that Ms. Walker's failure to inquire into the validity of the "attendance problem" was
"so unreasonable as to be arbitrary." Ms. George further alleges that the denial of her vacation	"so unreasonable as to be arbitrary." Ms. George further alleges that the denial of her vacation
request,	request, and Ms. Walker's refusal to enforce the collective bargaining agreement," caused her	and Ms. Walker's refusal to enforce the collective bargaining agreement,6 caused her
appeal of her performance appraisal to be filed late.	appeal of her performance appraisal to be filed late.
The allegation regarding the Union's refusal to file a grievance over the vacation request denial	The allegation regarding the Union's refusal to file a grievance over the vacation request denial
also	also fails to state a prima facie violation and will be dismissed. An exclusive representative	fails to state a prima facie violation and will be dismissed. An exclusive representative
does not violate the duty of fair representation where it provides an explanation for its	does not violate the duty of fair representation where it provides an explanation for its
conclusion that a grievance lacks merit and declines to pursue the grievance. (AFT Local 1521	conclusion that a grievance lacks merit and declines to pursue the grievance. (AFT Local 1521
(Paige)	(Paige) (2005) PERB Decision No. 1769.) As discussed previously, the burden is upon a	(2005) PERB Decision No. 1769.) As discussed previously, the burden is upon a
charging party to show how an exclusive representative abused its discretion and not on the	charging party to show how an exclusive representative abused its discretion and not on the
union to show that it properly exercised it. (American Federation of Teachers College Guild,	union to show that it properly exercised it. (American Federation of Teachers College Guild,
Local 1521 (Saxton), supra, PERB Decision No. 1109; see, also, California State Employees	Local 1521 (Saxton), supra, PERB Decision No. 1109; see, also, California State Employees
Association (Harris) (2004) PERB Decision No. 1696-S.)Association (Harris) (2004) PERB Decision No. 1696-S.)
* The amended charge does not include Ms. Walker's e-mail message as an attachment,	The amended charge does not include Ms. Walker's e-mail message as an attachment,
nor further indicate what information was provided.	nor further indicate what information was provided.
5
Much of the information in the charge addresses Ms. George's dispute with her	Much of the information in the charge addresses Ms. George's dispute with her
employer	employer over her being subject to probation at the time. As the instant charge is filed against	over her being subject to probation at the time. As the instant charge is filed against
the Union, and not the State, the merits of this dispute are not considered herein.	the Union, and not the State, the merits of this dispute are not considered herein.
6
"The amended charge does not indicate whether Ms. George filed a grievance herself	The amended charge does not indicate whether Ms. George filed a grievance herself
over the vacation request denial.	over the vacation request denial.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 8	Page 8
The First Amended Charge states that Ms. George "threatened" Ms. Walker with a PERB	The First Amended Charge states that Ms. George "threatened" Ms. Walker with a PERB
unfair practice charge
if
she refused to represent Ms. George at a second probation report	unfair practice charge if she refused to represent Ms. George at a second probation report
meeting scheduled for November 16, 2006. Ms. Walker did attend the meeting but "sat	meeting scheduled for November 16, 2006. Ms. Walker did attend the meeting but "sat
silently through the entire meeting." As discussed above, the charge does not establish that the	silently through the entire meeting." As discussed above, the charge does not establish that the
Union
is
obligated to attend or represent an employee during a discussion
of
a probation report,	Union is obligated to attend or represent an employee during a discussion of a probation report,
and thus this allegation also fails to state a prima facie violation and will be dismissed.	and thus this allegation also fails to state a prima facie violation and will be dismissed.
November 28, 2006 through February 23, 2007	November 28. 2006 through February 23. 2007
The First Amended Charge alleges that Mr. Hurley's conduct during this period was	The First Amended Charge alleges that Mr. Hurley's conduct during this period was
"discriminatory, devoid
of
honest judgment and in bad faith relative to SEID Local 1000	"discriminatory, devoid of honest judgment and in bad faith relative to SEIU Local 1000
representation with the ultimate unlawful motive of rendering this Unfair Practice Charge	representation with the ultimate unlawful motive
of
rendering this Unfair Practice Charge
untimely." Pages 34-41 of the First Amended Charge address this contention.	untimely." Pages 34-41
of
the First Amended Charge address this contention.
Charge,	In the First Amended Charge, Ms. George describes her initial contact with Mr. Hurley as	In the First Amended 	Ms. George describes her initial contact with Mr. Hurley as
follows:	follows:
Mr. Hurley contacted me, after I "threatened" a [PERB]	Mr. Hurley contacted me, after I "threatened" a [PERB]
complaint against SEIU Local 1000 in my November 15, 2006 e-	complaint against SEIU Local 1000 in my November 15, 2006 e-
mail message to Ms. Walker, informing me that he would be	mail message to Ms. Walker, informing me that he would be
representing me. Mr. Hurley explained that in his legal opinion,representing me. Mr. Hurley explained that in his legal opinion,
the third probationary period was "improper." Apparently this is	the third probationary period was "improper." Apparently this is
why Ms. Walker refused and later was reluctant to represent me	why Ms. Walker refused and later was reluctant to represent me
during meetings with Ms. Tully to discuss the subsequent Reports	during meetings with Ms. Tully to discuss the subsequent Reports
of
Performance for Probationary Employees for the third	of Performance for Probationary Employees for the third
"improper" probationary period. Mr. Hurley was consistent in	"improper" probationary period. Mr. Hurley was consistent in
this conclusion throughout all of our conversations verbally and	this conclusion throughout all
of
our conversations verbally and
via e-mail informing me that he was attempting to correct the	via e-mail informing me that he was attempting to correct the
problem. 	[Emphasis in original.]	problem. [Emphasis in original.]
from	The First Amended Charge also attaches an e-mail received by Ms. George from Mr. Hurley	The First Amended Charge also attaches an e-mail received by Ms. George 	Mr. Hurley
on November 28, 2006. The message reads:	on November 28, 2006. The message reads:
As per our telephone conversation (and your request) I am	As per our telephone conversation (and your request) I am
contacting you via email regarding my conversation with Mr.	contacting you via email regarding my conversation with Mr.
Anderson this morning. I discussed the facts of your case with	Anderson this morning. I discussed the facts of your case with
Mr. Anderson[7l and my concern that it is my understanding that	Mr. Anderson " and my concern that it is my understanding that
you have been placed on probationary status. Mr. Anderson	you have been placed on probationary status. Mr. Anderson
seemed genuinely surprised that you were on probation and stated	seemed genuinely surprised that you were on probation and stated
that if you were, you should not be. Assuming that you are	that if you were, you should not be. Assuming that you are
indeed on probation, he agreed that you should be taken off	indeed on probation, he agreed that you should be taken off
probation and that any documents relating to an improper	probation and that any documents relating to an improper
7
"Mr. Anderson is identified in charge documents as Gerard Anderson, a manager in	Mr. Anderson is identified in charge documents as Gerard Anderson, a manager in
SCO's Human Resources Division.	SCO's Human Resources Division.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 9	Page 9
probationary period should be expunged from your file. He is	probationary period should be expunged from your file. He is
looking into that situation now and expects to get back to me	looking into that situation now and expects to get back to me
sometime today. If you have any questions or concerns, please	sometime today. If you have any questions or concerns, please
contact me[.]	contact me[.]
The First Amended Charge references, at one point, a statement by Mr. Hurley in his	The First Amended Charge references, at one point, a statement by Mr. Hurley in his
November 28, 2006, e-mail message that he had "no idea what this sentence means with regard	November 28, 2006, e-mail message that he had "no idea what this sentence means with regard
to SEIU Local 1000." I am unable to locate such a statement in the above-quoted text of the	to SEIU Local 1000." I am unable to locate such a statement in the above-quoted text of the
November 28, 2006, e-mail message nor am I able to locate such a statement among the	November 28, 2006, e-mail message nor am I able to locate such a statement among the
various attachments to the charge."	various attachments to the charge. 8
The First Amended Charge next describes a telephone conversation between Ms. George and	The First Amended Charge next describes a telephone conversation between Ms. George and
Mr. Hurley on November 29, 2006. During this conversation, Mr. Hurley stated that "SCO	Mr. Hurley on November 29, 2006. During this conversation, Mr. Hurley stated that "SCO
management had no problem" with Ms. George's work, but that Mr. Anderson wanted Ms.	management had no problem" with Ms. George's work, but that Mr. Anderson wanted Ms.
George	George to stop talking about the circumstances of her transfer to the Unclaimed Property	to stop talking about the circumstances of her transfer to the Unclaimed Property
Division.	Division.
The First Amended Charge, referencing Attachment 27, next alleges that, on December 18,	The First Amended Charge, referencing Attachment 27, next alleges that, on December 18,
2006, "Mr. Hurley accused [Ms. George] of behavior that warranted management returning the	2006, "Mr. Hurley accused [Ms. George] of behavior that warranted management returning the
counseling memoranda" to her file. 	The First Amended Charge concludes that this conduct	counseling memoranda" to her file. The First Amended Charge concludes that this conduct
was	was biased and "so unreasonable as to be arbitrary and discriminatory." However, the only	biased and "so unreasonable as to be arbitrary and discriminatory." However, the only
communication from Mr. Hurley included under Attachment 27 is an e-mail message dated	communication from Mr. Hurley included under Attachment 27 is an e-mail message dated
December 18, 2006, responding to one of the same date from Ms. George, and stating, "I am	December 18, 2006, responding to one of the same date from Ms. George, and stating, "I am
unaware of any meeting. Please let me know when you intend to be here if you desire to meet	unaware of any meeting. Please let me know when you intend to be here if you desire to meet
with me. Thanks!" Also included under Attachment 27 is an e-mail message from Ms. George	with me. Thanks!" Also included under Attachment 27 is an e-mail message from Ms. George
to Mr. Hurley and Ms. Tully, dated December 14, 2006, in which Ms. George summarizes her	to Mr. Hurley and Ms. Tully, dated December 14, 2006, in which Ms. George summarizes her
understanding of statements made by Mr. Hurley in a telephone conversation of the same date,	understanding of statements made by Mr. Hurley in a telephone conversation of the same date,
as well as her responses to the statements. The statements attributed to Mr. Hurley are as	as well as her responses to the statements. The statements attributed to Mr. Hurley are as
follows:	follows:
In our telephone conversation today, you informed me that the	In our telephone conversation today, you informed me that the
meeting	meeting below would be canceled because you are unwilling to	below would be canceled because you are unwilling to
address management's concerns regarding your attitude at work	address management's concerns regarding your attitude at work
until every issue you have is completely resolved to your	until every issue you have is completely resolved to your
satisfaction.	satisfaction.
It is also my understanding, after our telephone conversation	It is also my understanding, after our telephone conversation
today, that you do not think it necessary to meet with Ms. Walker	today, that you do not think it necessary to meet with Ms. Walker
and I next week to further clarify facts and strategy.	and I next week to further clarify facts and strategy.
"As discussed earlier, the charging party's burden includes providing a clear and	As discussed earlier, the charging party's burden includes providing a clear and
concise statement of facts; and the Board has held that submitting a charge with hundreds of	concise statement of facts; and the Board has held that submitting a charge with hundreds of
pages of attachments does not meet this standard. (Regents of the University of California,	pages of attachments does not meet this standard. (Regents of the University of California,
supra, PERB Decision No. 1585-H.)	supra, PERB Decision No. 1585-H.)
(

SA-CO-299-S
July 23, 2007
Page 10
SA-CO-299-S
July 23, 2007
Page
10
Please note that I advised you to inform your supervisor that the	Please note that I advised you to inform your supervisor that the
cancellation of the meeting was due to a misunderstanding that I	cancellation
of
the meeting was due to a misunderstanding that I
had	had with regards to the meeting I attempted to set up between	with regards to the meeting I attempted to set up between
you,	you, Ms. Walker and I. I am concerned that the email below may	Ms. Walker and
I.
	I am concerned that the email below may
be interpreted by management as curt, or worse yet, discourteous.	be interpreted by management
as
curt, or worse yet, discourteous.
Central to the allegations based on Mr. Hurley's conduct are Ms. George's objections to a draft	Central to the allegations based on Mr. Hurley's conduct are Ms. George's objections to a draft
settlement	settlement agreement prepared by Mr. Hurley with respect to a pending appeal before the State	agreement prepared by Mr. Hurley with respect to a pending appeal before the State
Personnel Board (SPB). In addition to her substantive objections to the contents of the draft,	Personnel Board (SPB). In addition to her substantive objections to the contents
of
the draft,
which Ms. George contends would have caused harm to her employment relationship with the	which Ms. George contends would have caused harm to her employment relationship with the
SCO, Ms. George	SCO, Ms. George concludes that Mr. Hurley was merely "feigning" to represent her as a	concludes that Mr. Hurley was merely "feigning" to represent her as a
means delay the filing of the instant unfair practice charge against the Union.	means delay the filing
of
the instant unfair practice charge against the Union.
As	As discussed in my March 19, 2007 letter, an exclusive representative does not owe a duty of	discussed in my March 19, 2007 letter, an exclusive representative does not owe a duty
of
fair representation to unit members in a forum over which the union does not exclusively	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)	control the means to a particular remedy. (California State Employees Association (Parisi)
(1989)	(1989) PERB Decision No. 733-S.) Accordingly, the duty of fair representation does not	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	attach to an exclusive representative in extra-contractual proceedings before agencies such as
the Department of Fair Employment and Housing or the State Personnel Board. (California	the 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	Union
of
Safety Employees (John) (1994) PERB Decision No. 1064-S; California State
Employees Association	Employees Association (Carrillo) (1997) PERB Decision No. 1199-S.) For this reason, the	(Carrillo) (1997) PERB Decision No. 1199-S.) For this reason, the
allegations in the charge relating to Mr. Hurley's representation of Ms. George with respect to	allegations in the charge relating to Mr. Hurley's representation
of
Ms. George with respect to
matters pending before the SPB do not support finding a prima facie violation of the duty of	matters pending before the SPB do not support finding a prima facie violation
of
the duty
of
fair representation." Nor does the legal conclusion, unsupported by specific evidence, that Mr.	fair representation.9 Nor does the legal conclusion, unsupported by specific evidence, that Mr.
Hurley	Hurley "feigned" representation in order to delay the filing of the charge support a finding that	"feigned" representation in order to delay the filing
of
the charge support a finding that
the Union interfered with Ms. George's rights under the Dills Act.	the Union interfered with Ms. George's rights under the Dills Act.
For the	For the above reasons, the allegations concerning Mr. Hurley's conduct on behalf of the Union	above reasons, the allegations concerning Mr. Hurley's conduct on behalf
of
the Union
will	will also be dismissed.	also be dismissed.
Second Amended Charge	Second Amended Charge
In a brief	In a brief statement of the charge in the Second Amended Charge, Ms. George alleges that	statement
of
the charge in the Second Amended Charge, Ms. George alleges that
SEIU Local 1000 is refusing to represent me fairly (and has	SEIU Local 1000 is refusing to represent me fairly (and has
terminated	terminated representation) relative to the State Controller's Office	representation) relative to the State Controller's Office
(SCO)	(SCO) and is assisting the SCO in terminating me from State	and
is
assisting the SCO in terminating me from State
service via adverse action in collusion with Mr. Gerard Anderson,	service via adverse action in collusion with Mr. Gerard Anderson,
Chief,	Chief, Human Resources Division, and Vicki Tully, Manager I,	Human Resources Division, and Vicki Tully, Manager I,
SCO, Unclaimed Property Division.	SCO, Unclaimed Property Division.
(
\
9
" It is further noted that an exclusive representative may withdraw from representation	It is further noted that an exclusive representative may withdraw from representation
if	if it feels that its client is not following its advice and is acting independently in a manner that	it feels that its client is not following its advice and is acting independently in a manner that
undermines	undermines the representation process. (American Federation of Teachers College Staff Guild.	the representation process. (American Federation of Teachers College Staff Guild,
Local	Local 1521, CFT/AFT. AFL-CIO (Mrvichin) (1996) PERB Decision No. 1132.)	1521, CFT/AFT, AFL-CIO (Mrvichin) (1996) PERB Decision No. 1132.)

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 11	Page 11
The Second Amended Charge was submitted, in part, to provide corrections to and clarification	The Second Amended Charge was submitted, in part, to provide corrections to and clarification
of certain attachments to the First Amended Charge. In addition, the Second Amended Charge	of certain attachments to the First Amended Charge. In addition, the Second Amended Charge
provides argument in response to my March 19, 2007 letter, and adds one new allegation.	provides argument in response to my March 19, 2007 letter, and adds one new allegation.
While acknowledging the lack of any contractual obligation on the part of the Union to	While acknowledging the lack of any contractual obligation on the part of the Union to
represent her at a March 29, 2007 SPB hearing, Ms. George argues, citing California Union of	represent her at a March 29, 2007 SPB hearing, Ms. George argues, citing California Union of
Safety Employees (Coelho) (1994) PERB Decision No. 1032-S (CAUSE), that "Mr. Hurley's	Safety Employees (Coelho) (1994) PERB Decision No. 1032-S (CAUSE), that "Mr. Hurley's
abrupt withdrawal of representation was based on discrimination and unlawful motive," and	abrupt withdrawal of representation was based on discrimination and unlawful motive," and
that the Union is "deliberately refusing to fairly represent [Ms. George] (and has terminated	that the Union is "deliberately refusing to fairly represent [Ms. George] (and has terminated
representation) by covertly assisting [SCO] in terminating" Ms. George.	representation) by covertly assisting [SCO] in terminating" Ms. George.
First, I find reliance on CAUSE in the instant case misplaced and unpersuasive due to	First, I find reliance on CAUSE in the instant case misplaced and unpersuasive due to
significant factual distinctions. In CAUSE, the exclusive representative itself filed a citizen's	significant factual distinctions. In CAUSE, the exclusive representative itself filed a citizen's
complaint against Coelho, and a discrimination violation was found based on evidence that this	complaint against Coelho, and a discrimination violation was found based on evidence that this
adverse action was taken because of Coelho's filing of an earlier unfair practice charge against	adverse action was taken because of Coelho's filing of an earlier unfair practice charge against
the union, and his assistance to other employees in filing a grievance. Here, while Ms. George	the union, and his assistance to other employees in filing a grievance. Here, while Ms. George
alleges as a conclusion that the Union is assisting Ms. George's employer in taking adverse	alleges as a conclusion that the Union is assisting Ms. George's employer in taking adverse
action against her, there is no specific evidence to support a finding that the Union has done so.	action against her, there is no specific evidence to support a finding that the Union has done so.
The issue here, instead, is whether the Union breached its duty of fair representation by ceasing	The issue here, instead, is whether the Union breached its duty of fair representation by ceasing
its representation of Ms. George in an SPB appeal action. For reasons previously discussed, I	its representation of Ms. George in an SPB appeal action. For reasons previously discussed, I
conclude that this allegation must be dismissed.
The	The final issue, which was briefly addressed in the First Amended Charge and later expanded	final issue, which was briefly addressed in the First Amended Charge and later expanded
upon	upon in the Second Amended Charge, concerns a problem Ms. George had with her computer	in the Second Amended Charge, concerns a problem Ms. George had with her computer
at work on February 28, 2007. Ms. George states that the A drive on her computer worked	at work on February 28, 2007. Ms. George states that the A drive on her computer worked
perfectly the day before, but that on February 28 the A drive malfunctioned. Ms. George	perfectly the day before, but that on February 28 the A drive malfunctioned. Ms. George
reported	reported this problem to Ms. Tully and Ms. Tully's supervisor, and requested on February 28,	this problem to Ms. Tully and Ms. Tully's supervisor, and requested on February 28,
March 28, and May 18, 2007, that the drive be repaired. Ultimately, Ms. George determined	March 28, and May 18, 2007, that the drive be repaired. Ultimately, Ms. George determined
that one of Ms. Walker's business cards was lodged in the A drive, preventing it from reading	that one of Ms. Walker's business cards was lodged in the A drive, preventing it from reading
disks. Once the card was removed, the drive worked perfectly again. The Second Amended	disks. 	Once the card was removed, the drive worked perfectly again. 	The Second Amended
Charge alleges that Ms. Tully disabled Ms. George's computer in an effort to prevent Ms.	Charge alleges that Ms. Tully disabled Ms. George's computer in an effort to prevent Ms.
George filing a timely unfair practice charge against the Union.	George filing a timely unfair practice charge against the Union.
This allegation must be dismissed for several reasons. First, the instant charge is filed against	This allegation must be dismissed for several reasons. First, the instant charge is filed against
the Union and this allegation concerns alleged conduct by an agent of the employer. The	the Union and this allegation concerns alleged conduct by an agent of the employer. The
charge does not contain facts that would establish an agency relationship between Ms. Tully	charge does not contain facts that would establish an agency relationship between Ms. Tully
and the Union. Second, the allegation does not demonstrate how the disabling of State	and the Union. 	Second, the allegation does not demonstrate how the disabling of State
equipment interferes with the exercise of rights under the Dills Act. An interference violation	equipment interferes with the exercise of rights under the Dills Act. An interference violation
may only be found if the Dills Act provides the claimed rights. (Regents of the University of	may only be found if the Dills Act provides the claimed rights. 	(Regents of the University of
California (2006) PERB Decision No. 1804-H.) Finally, the Second Amended Charge	California (2006) PERB Decision No. 1804-H.) Finally, the Second Amended Charge
surmises but does not establish through specific facts that Ms. Tully engaged in the	surmises but does not establish through specific facts that Ms. Tully engaged in the
complained-of conduct.	complained-of conduct.
conclude that this allegation must be dismissed.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 12	Page 12
Conclusion	Conclusion
Therefore, I am dismissing the charge based on the facts and reasons set forth above, as well as	Therefore, I am dismissing the charge based on the facts and reasons set forth above, as well as
those	those contained in my March 19, 2007 letter.	contained in my March 19, 2007 letter.
Right to Appeal	Right to Appeal
Pursuant to PERB	Pursuant to PERB Regulations, " you may obtain a review of this dismissal of the charge by	Regulations,
10
you may obtain a review
of
this dismissal
of
the charge by
filing	filing an appeal to the Board itself within twenty (20) calendar days after service of this	
an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal.	dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5)	name and number, and the original and five (5) copies of all documents must be provided to	copies
of
all documents must be provided to
the Board.	the Board.
A document is considered "filed" when actually received during a regular PERB business day.	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	(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is	is also considered "filed" when received by facsimile transmission before the close of business	also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements of	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	Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies	required number of copies and proof of service, in the U.S. mail. (Regulations 32135(b), (c)	and proof
of
service, in the U.S. mail. (Regulations 32135(b ), ( c)
and (d); see also Regulations 32090 and 32130.)	and (d); see also Regulations 32090 and 32130.)
The Board's address is:	The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	1031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916)	(916) 322-8231	322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the	
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	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).)	following the date
of
service
of
the appeal. 	(Regulation 32635(b).)
Service	Service
3
(
All	All documents authorized to be filed herein must also be "served" upon all parties to the	documents authorized to be filed herein must also be "served" upon all parties to the
proceeding,	proceeding, and a "proof of service" must accompany each copy of a document served upon a	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	party or filed with the Board itself. 	(See Regulation 32140 for the required contents.) The
document will be considered	document will be considered properly "served" when personally delivered or deposited in the	properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be	mail or deposited with a delivery service and properly addressed. A document may also be
10
PERB's Regulations are codified at California Code of Regulations, title 8, section	PERB's Regulations are codified at California Code of Regulations, title 8, section
31001	1001 et seq.	et seq.

SA-CO-299-S	SA-CO-299-S
July 23, 2007	July 23, 2007
Page 13	Page
13
concurrently served via	concurrently served via facsimile transmission on all parties to the proceeding. (Regulation	facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)	32135(c).)
Extension of Time	Extension
of
Time
A request for	A request for an extension of time, in which to file a document with the Board itself, must be	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	in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at	must be filed at least three (3) calendar days before the expiration of the time required for	least three (3) calendar days before the expiration
of
the time required for
filing the document. The	filing the document. The request must indicate good cause for and, if known, the position of	request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and	each other party regarding the extension, and shall be accompanied by proof of service of the	shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)	request upon each party. (Regulation 32132.)
Final	Final Date	Date
If	If no appeal is filed within the specified time limits, the dismissal will become final when the	no appeal is filed within the specified time limits, the dismissal will become final when the
time	time limits have expired.	limits have expired.
Sincerely,	Sincerely,
TAMI R. BOGERT	TAMI R. BOGERT
General Counsel	General Counsel
By
______________
_By
Les Chisholm
Division Chief
Les Chisholm
Division Chief
Attachment	Attachment
cc:	cc: Paul Harris	Paul Harris

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PERB
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
Office	Office of the General Counsel	of the General Counsel
1031 18th Street	1031 18th Street
Sacramento, CA 95814-4174	Sacramento, CA 95814-4174
Telephone: (916) 327-8383	Telephone: (916) 327-8383
Fax: (916) 327-6377	Fax: (916) 327-6377
March 19, 2007	March 19, 2007
Laurenda George
7878 GrandstaffDrive
Sacramento, CA 95823
Re:	Re: 	Laurenda George v. SEID Local 1000	Laurenda George v. SEIU Local 1000
Unfair Practice Charge No. SA-CO-299-S	Unfair Practice Charge No. SA-CO-299-S
WARNING	WARNING LETTER	LETTER
Dear Ms. George:	Dear Ms. George:
The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 28, 2007. Laurenda George alleges that SEIU Local 1000	Board (PERB or Board) on February 28, 2007. Laurenda George alleges that SEIU Local 1000
(Union) violated the Ralph C. Dills Act (Dills Act). 1
The statement of the charge consists of the following:	The statement of the charge consists of the following:
The State Controller's Office and the SEIU Local 1000 are using	The State Controller's Office and the SEIU Local 1000 are using
an improper third party probationary period to terminate me	an improper third party probationary period to terminate me
based on harassment[,] using a stipulated settlement agreement.	based on harassment[,] using a stipulated settlement agreement.
Attached	Attached to the charge is a draft (and unsigned) settlement agreement regarding an appeal	to the charge is a draft (and unsigned) settlement agreement regarding an appeal
pending before the State Personnel Board (SPB). Also attached are numerous emails	pending before the State Personnel Board (SPB). Also attached are numerous emails
exchanged by Ms. George and Jake Hurley, a Union attorney, as well as emails exchanged by	exchanged by Ms. George and Jake Hurley, a Union attorney, as well as emails exchanged by
Ms. George and Vicki Tully. The position Ms. Tully holds is not clear except that it would	Ms. George and Vicki Tully. The position Ms. Tully holds is not clear except that it would
appear that she is or was Ms. George's supervisor at the State Controller's Office. The charge	appear that she is or was Ms. George's supervisor at the State Controller's Office. The charge
further indicates, on its face, that Ms. George is employed by the State Controller's Office in a	further indicates, on its face, that Ms. George is employed by the State Controller's Office in a
position included in State Bargaining Unit I. Unit I is represented by the Union.	position included in State Bargaining Unit 1. Unit 1 is represented by the Union.
Discussion	Discussion
The instant charge is filed against the Union and not the State Controller's Office. With this in	The instant charge is filed against the Union and not the State Controller's Office. With this in
mind, it appears Ms. George is alleging the Union breached its duty of fair representation.2	mind, it appears Ms. George is alleging the Union breached its duty of fair representation."
( 	,
(Union) violated the Ralph C. Dills Act (Dills Act)."
D
1
The Dills Act is codified at Government Code section 3512 et seq. The text of the	The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills	ills Act and the Board's Regulations may be found on the Internet at	Act and the Board's Regulations may be found on the Internet atwwww.perb.ca.gov	ww.perb.ca.gov. .
2
The Board has held that, where a charging party fails to allege that any specific	The Board has held that, where a charging party fails to allege that any specific
section of the Government Code has been violated, the Board agent, upon a review of the	section of the Government Code has been violated, the Board agent, upon a review of the
charge, may determine under what section the charge should be analyzed. (Los Angeles	charge, may determine under what section the charge should be analyzed. (Los Angeles
County Office of Education (1999) PERB Decision No. 1360.)	County Office of Education (1999) PERB Decision No. 1360.)

SA-CO-299-S	SA-CO-299-S
March 19, 2007	March 19, 2007
Page 2	Page 2
The right to fair representation is guaranteed by Dills Act section 3515.7(g) and California	The right to fair representation is guaranteed by Dills Act section 3515.7(g) and California
State Employees' Association (Norgard) (1984) PERB Decision No. 451-S, and a breach of	State Employees' Association (Norgard) (1984) PERB Decision No. 451-S, and a breach of
this duty and thereby violates section 3519.S(b). The duty of fair representation imposed on	this duty and thereby violates section 3519.5(b). The duty of fair representation imposed on
the exclusive representative extends to grievance handling. (Fremont Teachers Association	the exclusive representative extends to grievance handling. (Fremont Teachers Association
(King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982)	(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 the Dills	PERB Decision No. 258.) In order to state a prima facie violation of this section of the Dills
Act, Charging Party must show that the Respondent's conduct was arbitrary, discriminatory or	Act, 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	in bad faith. In United Teachers of Los Angeles (Collins), the Public Employment Relations
Board stated:	Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere	Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not	negligence or poor judgment in handling a grievance does not
constitute a breach of the union's duty. [Citations omitted.]	constitute a breach of the union's duty. 	[Citations omitted.]
a Charging Party:
A union may exercise its discretion to determine how far to	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	pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance	arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. A union is also not required to process	in a perfunctory fashion. A union is also not required to process
an employee's grievance if the chances for success are minimal.	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,	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	"... must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the	from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a	exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"	rational basis or devoid of honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)	[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers	PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision	Professional Association (Romero) (1980) PERB Decision
No. 124.]	No. 124.]
With	With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed	regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-Hthat, under	in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal	federal precedent, a union's negligence breaches the duty of fair representation "in cases in	precedent, a union's negligence breaches the duty of fair representation "in cases in
which	which the individual interest at stake is strong and the union's failure to perform a ministerial	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.	act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,	Caterpillar Tractor Co. (9" Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)	Robesky v. Quantas Empire Airways Limited (9" Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
However, an exclusive representative does not owe a duty of fair representation to unit	However, an exclusive representative does not owe a duty of fair representation to unit
members	members in a forum over which the union does not exclusively control the means to a	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	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	No. 733-S.) Accordingly, the duty of fair representation does not attach to an exclusive
representative in extra-contractual proceedings before agencies such as the Department of Fair	representative in extra-contractual proceedings before agencies such as the Department of Fair

SA-CO-299-S	SA-CO-299-S
March 19, 2007	March 19, 2007
Page 3	Page 3
Employment and Housing or the State Personnel Board. (California Union of Safety	Employment and Housing or the State Personnel Board. (California Union of Safety
Employees (John) (1994) PERB Decision No. 1064-S; California State Employees Association	Employees (John) (1994) PERB Decision No. 1064-S; California State Employees Association
(Carrillo)	(Carrillo) (1997) PERB Decision No. 1199-S.)	(1997) PERB Decision No. 1199-S.)
As noted above, the information provided with the instant charge indicates that the	As noted above, the information provided with the instant charge indicates that the
complained-of conduct by the Union is related to the Union's representation of Ms. George in	complained-of conduct by the Union is related to the Union's representation of Ms. George in
a State Personnel Board appeal. Thus, under the precedent cited above, the Board has held that	a State Personnel Board appeal. Thus, under the precedent cited above, the Board has held that
no duty exists and no breach of the duty of fair representation may be found. For this reason,	no duty exists and no breach of the duty of fair representation may be found. 	For this reason,
the charge must be dismissed.	the charge must be dismissed.
Further, while the attachments to the charge indicate that Ms. George disagreed with decisions	Further, while the attachments to the charge indicate that Ms. George disagreed with decisions
made by Union representatives in its representation, the charge fails to present evidence that	made by Union representatives in its representation, the charge fails to present evidence that
the Union's conduct lacked a without a rational basis or was devoid of honest judgment. (See,	the Union's conduct lacked a without a rational basis or was devoid of honest judgment. (See,
for	for example, California State Employees Association (Brushia) (1997) PERB Decision	example, California State Employees Association (Brushia) (1997) PERB Decision
No.	No. 1207-S and Riverside County Office Teachers Association, CTA/NEA (McAlpine, et al.)	1207-S and Riverside County Office Teachers Association, CTA/NEA (McAlpine, et al.)
(2000) PERB Decision No. 1401.) For this reason, even if a duty of fair representation	(2000) PERB Decision No. 1401.) For this reason, even if a duty of fair representation
attached to the Union's conduct in this matter, the charge fails to state a prima facie violation.	attached to the Union's conduct in this matter, the charge fails to state a prima facie violation.
For these reasons the charge, as presently written, does not state a prima facie case. If there	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	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	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	standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the	the facts and allegations you wish to make, and be signed under penalty of perjury by 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	charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's	corner of the charge form. 	The amended charge must be served on the respondent's
representative	representative and the original proof of service must be filed with PERB. If I do not receive an	and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before March 29, 2007, I shall dismiss your charge.	amended charge or withdrawal from you before March 29, 2007, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.	If you have any questions, please call me at the above telephone number.
Sincerely,	Sincerely,
Les Chisholm	Les Chisholm
Division	Division Chief	Chief