American Federation of State, County and Municipal Employees, Council 36 (PERB 2165M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DARRELL J. MOORE, SR.,
Charging Party, Case No. LA-CO-104-M
Vv. PERB Decision No. 2165-M
AMERICAN FEDERATION OF STATE, February 25, 2011
COUNTY AND MUNICIPAL EMPLOYEES,
COUNCIL 36,
Respondent.

Appearance: Darrell J. Moore, Sr., on his own behalf.

Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.

oO

>

DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Darrell J. Moore, Sr. (Moore) of a Board agent’s dismissal (attached) of
his unfair practice charge. The charge alleged that the American Federation of State, County
and Municipal Employees, Council 36 (AFSCME) violated the Meyers-Milias-Brown Act
(MMBA)! when it failed to represent Moore in his disputes with his employer, the Housing
Authority of the City of Los Angeles. The Board agent dismissed the charge as untimely.
Even assuming the charge was timely, the Board agent found the charge failed to state a prima
facie case that AFSCME breached its duty of fair representation.

The Board has reviewed the dismissal and the record in light of Moore’s appeal and the

relevant law. Based on this review, the Board finds the Board agent’s warning and dismissal

' The MMBA is codified at Government Code section 3500 et seq.

letters to be well-reasoned and in accordance with applicable law. The Board therefore adopts
them as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-104-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.

ST
A TE OF CALIFORNIA 	ARNOLD 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
September 21, 2010
Darrell
J.
Moore, Sr.
P.O. Box 811845
Los Angeles, CA 90081
Re: 	Darrell J Moore
v.
AFSCME Council
36
Unfair Practice Charge No. LA-CO-104-M
DISMISSAL LETTER
Dear Mr. Moore:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 2, 2009. Darrell
J.
Moore (Moore or Charging Party)
alleges that the AFSCME Council 36 (Union or Respondent) violated the Meyers-Milias-
Brown Act (MMBA or Act). 1
Charging Party was informed in the attached Warning Letter dated August 13, 2010,
that
the
above-referenced charge did not state a prirna
fade
case. 	You were advised that,
if
there were
any factual inaccuracies or 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 prirna facie case or withdrew it prior to August 23, 2010, the charge
would
be
dismissed. 	Moore requested and received a one-week extension
of
time to file an amended
charge. 	Moore filed an amended charge on September
1,
2010.
As explained in the August 13, 2010 Warning Letter, PERB Regulation 32615(a)(5)2 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." The charging party's burden includes
alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California
(Department
of
Food
and
Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
22 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-104-M
September 21, 2010
Page 2
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) · PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
1. 	Timeliness of Moore's Allegations
In the present case, Moore filed the instant unfair practice charge on November 2, 2009. 	This
means that the statute of limitations extends back until May 1, 2009. Any allegations of
wrongdoing by the Union occurring prior to May 1, 2009, are therefore untimely and must be
dismissed. In the amended charge, Moore alleges that, in March 2009, the Union
misrepresented information in a letter addressed to the U.S. Equal Employment Opportunity
Commission. This alleged conduct occurred prior to May 1, 2009 and is therefore outside of
the statute of limitations period. Therefore, this allegation is dismissed.
2. 	Duty of Fair Representation
In original charge, Moore did not provide any facts regarding the Union and its obligation to
represent Moore.3 In the amended charge, Moore alleges that "Moore met with Union officials
in an attempt to mediate and negotiate representation, although Moore is prohibited from
discussing the exact contents of the meeting, the Union has failed to fairly an equally represent
and/or investigate Moore's employment status[.]" Moore also alleges that the Union "has
failed to represent Moore· and/or allow him to represent himself with HACLA under the terms
of any Union agreement[.]"
While the MMBA does not expressly impose a statutory duty of fair representation upon
employee organizations, the courts have held that "unions owe a duty of fair representation to
their members, and this requires them to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4th
1213.) In Hussey, the court further held that the duty of fair representation is not breached by
mere negligence and that a union is to be "accorded wide latitude in the representation of its
members ... absent a showing of arbitrary exercise of the union's power."
In International Association of Machinists (Attard) (2002) PERB Decision No. 1474-M, the
Board determined that it is appropriate in duty of fair representation cases to apply precedent
developed under the other acts administered by the Board. The Board noted that its decisions
The original charge consisted of a statement of facts and allegations that is identical
to the statement included in a charge Moore filed against the Housing Authority for the City of
Los Angeles, PERB case number LA-CE-572-M.

LA-CO-104-M
September 21, 2010
Page 3
in such cases, including Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB
Decision No. 332 and American Federation of State, County and Municipal Employees,
Local 2620 (Moore) (1988) PERB Decision No. 683-S, are consistent with the approach of
both Hussey and federal precedent (Vaca v. Sipes (1967) 386 U.S. 171).
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1274; see also, Robesky v. Quantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
Thus, in order to state a prima facie violation of the duty of fair representation under the
MMBA, a charging party must at a minimum include an assertion of facts from which it
becomes apparent in what manner the exclusive representative's action or inaction was without
a rational basis or devoid of honest judgment. (International Association of }.1achinists
(Attard), supra, PERB Decision No. 1474-M.) The burden is on the charging party to show
how an exclusive representative abused its discretion, and not on the exclusive representative
to show how it properly exercised, its discretion. ( United Teachers 	Los Angeles (Wyler)
(1993) PERB Decision No. 970.)
In this case, Moore does not provide sufficient information to conclude whether the Union has
breached the duty of fair representation. Moore acknowledges that he has declined to provide
any specific allegations of misconduct by the Union in either the original or the amended
charge. 	More specifically, Moore has not provided facts demonstrating when or how the
Union failed to represent him, failed to investigate his employment status, or prevented Moore
from representing himself. Thus, Moore has not met his burden of providing a "clear and
concise statement of facts" to demonstrate a violation of the MMBA. (See PERB Regulation
32615(a)(5).) Moore's conclusory remarks that the Union failed to represent him or
investigate his employment issues are not sufficient to demonstrate a violation. Therefore,
these allegations are dismissed. (State of California (Department of Food and Agriculture),
supra, PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale), supra,
PERB Decision No. 944.)
3. 	Interference with Right to Union Membership
Although not entirely clear, Moore also appears to allege that the Union refused to accept dues
payments from him, interfering with his right to be represented by the employee organization
of his choosing. The test for whether a respondent has interfered with the rights of employees
under the MMBA does not require that unlawful motive be established, only that at least slight
harm to employee rights results from the conduct. The courts have described the standard as
follows:

LA-CO-104-M
September 21, 2010
Page 4
All [a charging party] must prove to establish an interference
violation
of
section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain
or
coerce employees in the
exercise
of
those activities, and (3) that employer's conduct was
not justified by legitimate business reasons.
(Public Employees Association
of
Tulare County, Inc.
v.
Board
of
Supervisors
of
Tulare
County (1985) 167 Cal.App.3d 797, 807.) The Board has applied this same standard to
the
conduct
of
employee organizations. (State
of
California (Department
of
Developmental
Services) (1983) PERB Decision No. 344-S.)
The
MMBA
protects employees' ability to "form, join, and participate in the activities
of
employee organizations
of
their own choosing" in employer-employee relations. 	(Gov. Code,
§ 3502.) However, the MMBA permits employee organizations to "make reasonable
restrictions regarding who may
join
and may make reasonable provisions for the dismissal
of
individuals from membership." (Gov.
Code,§
3503.) In the present case, :tvfoore does
not
provide any
of
the factual circumstances for the Union's decision not to accept
Moore's
dues
money. It appears that, at some point, the Union informed Moore that he was not
included
in
the bargaining unit that the Union represents. Moore has not stated that the Union's
conclusion was in error. Therefore, Moore has not met his burden
of
establishing that
the
Union's
actions interfered with his MMBA-protected rights and this allegation is dismissed.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after
service
of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with
the
Board
must contain the case name and number, and the original and five (5) copies
of
all
documents
must
be
provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov.
Code,§
11020,
subd.
(a).)
A document is 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
PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof of
service, in the U.S. mail. 	(Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090
and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street

LA-CO-104-M
September 21, 2010
Page 5
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board
an
original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
§ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. 	(Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
Regional Attorney
Attachment
cc: Marcos E. Cardenas

STATE OF CALIFORNIA	STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
August 13, 2010
Darrell
J.
Moore
P.O. Box 811845
Los Angeles, CA 90081
Re: 	Darrell J Moore
v.
AFSCME
Council 36
Unfair Practice Charge No. LA-CO-104-M
WARNING LETTER
Dear Mr. Moore:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 2, 2009. Darrell
J.
Moore (Moore or Charging Party)
alleges that the AFSCME Council 36 (Union or Respondent) violated the Meyers-Miiias-
Brown Act (MMBA or Act). 1
In 2002 Moore was hired by HACLA as an Eligibility Interviewer. In 2004, Moore was laid-
off, but was rehired shortly afterwards to the same position. On June
1,
2004, Moore
was
instructed by HACLA to temporarily disregard increases in earned income when evaluating the
eligibility of applicants for HACLA assistance. Moore believed this to be inappropriate and
reported his concerns to both HACLA Chief Executive Officer (CEO) Rudolf Monteil
and
to
the United States Department
of
Housing and Urban Development (HUD).
At some point not specified by Moore, he was transferred to the Asset Management
Department at HACLA. By mid-February 2005, Moore was feeling ill because
of
stress and
frustration related to his job and requested to take leave. Moore's supervisor instructed Moore
to complete workers' compensation forms prior to taking leave.
During his time off, HACLA instructed Moore to meet with doctors prior to returning
to
work.
Moore followed HACLA's instructions and, despite being cleared to work from the doctors,
HACLA has not agreed to allow Moore to return to work. Moore subsequently filed to receive
unemployment benefits. In September 2005, HACLA appealed the decision to award
Moore
unemployment benefits on the grounds that he is still considered to be an employee
of
HACLA.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CO-104-M	LA-CO-104-M
August 13, 2010
Page 2
August 13, 2010
Page 2
Discussion:
PERB Regulation 32615(a)(5)2 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."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. 	(Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing
of
the charge. (Coachella Valley Mosquito
and Vector Control District
v.
Public Employment Relations Board (2005)
35
Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District (1996)
PERB
Decision No. 1177.) In duty
of
fair representation cases, the statute
of
limitations begins to run
when the charging party knew or should have known that further assistance from the
union
was
unlikely. (Alvord Educator's Association (Bussman) (2009) PERB Decision No. 2046.). 	A
charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi
Unified School District (1993) PERB Decision No. 1024; State
of
California (Departrnent
of
Insurance) (1997) PERB Decision No. 1197-S.)
In the present case, Moore does not provide any facts regarding the Union, Moore's
relationship to the Union, or any action or inaction by the Union. For this reason, Moore has
not provided a "clear and concise statement
of
the facts and conduct alleged to constitute an
unfair practice." PERB is unable to determine even whether the Union qualifies as an
employee organization that is subject to the MMBA.3 Even assuming that the Union is
an
employee organization under the MMBA, Moore has not provided information establishing
how it affected Moore's rights under the MMBA.
2 PERB' s Regulations are codified at California Code
of
Regulations, title 8,
section
31001 et seq.
3 MMBA section 3501 (a) defines an employee organization as either: "(1) Any
organization that includes employees of a public agency and that has as one of its primary
purposes representing those employees in their relations with that public agency[; or] (2) Any
organization that seeks to represent employees of a public agency in their relations with that
public agency."

LA-CO-104-M
August
13,
2010
Page 3
Moreover, Moore filed the instant unfair practice charge on November 2, 2009, This means
that the statute
of
limitations extends back until May
1,
2009. 	Moore does not allege any
conduct occurring after September 2005 which is more than three years beyond the statute
of
limitations period. Accordingly, Moore has not established that the charge was timely filed.
Moore also alleges that the Union violated a variety
of
other statutory schemes aside from the
MMBA including the Fair Employment and Housing Act (FEHA), Title VII
of
the Civil Rights
Act
of
1964 (Title VII), the Americans With Disabilities Act (ADA), the Age Discrimination
in Employment Act, workers' compensation laws and whistleblower protection laws. Moore
also alleges that HACLA violated his rights under both the United States and the California
Constitutions. 	PERB has previously found that it lacks jurisdiction over each
of
these claims.
(State
of
California (Department
of
Personnel Administration) (2009) PERB Decision
No. 2085-S [California Constitution]; Alvord Educator's Association (Bussman), supra, PERB
Decision No. 2046 [ADA, U.S. Constitution, whistleblower protections laws]; San Mateo
County Community College District (2008) PERB Decision No. 1980 [Title VII]; Trustees
of
the California State University (2005) PERB Decision No. 1741-H [FEHA]; California State
Employees Association (Carrillo) (1997) PERB Decision No. 1199-S [age discrimination];
State
of
California (Franchise Tax Board) (1992) PERB Decision No. 954-S [workers'
compensation laws].) Therefore, PERB lacks jurisdiction to address these issues.
To
the extent that Moore alleges that the Union violated an unidentified Memorandum
of
Understanding, Moore has not provided sufficient information to conclude that a violation
occurred.
For these reasons the charge, as presently written, does not state a prima facie case.4
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should
be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
·Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent
of
Charging Party. 	The amended charge must have the case
number written on the top right hand comer of the charge form. 	The amended charge
must
be
served on the Respondent's representative and the original proof of service must be filed with
PERB.
	If
an amended charge or withdrawal is not filed on or before August 23, 2010, 5 PERB
will dismiss your charge.
4 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint
be
issued and the matter be sent to formal hearing." (lb id.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

LA-CO-104-M
August 13, 2010
Page 4
If
you have any questions, please call me at the above telephone number.
lC 	. 	U
Regional Attorney
EC