Service Employees International Union United Long Term Care Workers (Smith) (PERB 2247M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CASSANDRA SMITH,
Charging Party, Case No. SF-CO-262-M
v. PERB Decision No. 2247-M
SEIU UNITED LONG TERM CARE WORKERS, April 6, 2012
Respondent.

Appearance: Cassandra Smith, on her own behalf.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (Board) on appeal by Cassandra Smith (Smith) of the Office of the General Counsel’s
dismissal (attached) of her unfair practice charge. The charge alleged that SEIU United Long
Term Care Workers breached its duty of fair representation under the Meyers-Milias-Brown
Act (MMBA)' by failing to assist Smith in obtaining proper payment for her services as an in-
home services provider. The Board agent found that the charge failed to state a prima facie
violation of the duty of fair representation.

The Board has reviewed the dismissal and the record in light of Smith’s appeal and the
relevant law. Based on this review, we find the dismissal and warning letters to be well-
reasoned, adequately supported by the record, and in accordance with applicable law.
Accordingly, the Board adopts the dismissal and warning letters as the decision of the Board

itself,

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

ORDER
The unfair practice charge in Case No. SF-C0-262-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
2

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMEN'l RELATIONS BOARD
Sacramento Regional Office
J
031
18th Street
Sacramento, CA
95
811-4 J24
Telephone: (916) 327-8386
Fax
(9
l 6) 327-6377
October 24,
2011
Cassandra Smith
20981 Royal Avenue
Hayward, CA 94541
Re: 	Cassandra Smith
v.
SEJU United Long Term Care Workers
Unfair Practice Charge No. SF-CO-262-M
DISMISSAL LETTER
Dear Ms. Smith:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 26, 2011. Cassandra Smith (Smith or Charging Party)
alleges that the SEIU United Long Term Care Workers (SEIU or Respondent) violated the
Meyers-Milias-Brown Act (MMBA or Act) 1 by breaching its duty
of
fair representation.
Charging Party was informed in the attached Warning Letter dated September 30, 2011, that
the above-referenced charge did not state a prima facie case. You were advised that, if there
were any factual inaccuracies or additional facts 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 prima facie case or withdrew it prior to October 14, 2011, the
charge would be dismissed.
PERB has not received either an amended charge or a request for withdrawal. 	On October 17,
2011, the undersigned Board Agent spoke with Charging Party stating that PERB had not
received any response to the Warning Letter and that the charge would be dismissed. At that
time, Charging Party stated that she would be filing an amended charge by October 18, 2011.
On October 18, 2011, Charging Party's process server, Cynthia Gail Walker, sent a letter to
enclosing a proof
of
service. However,
an
amended charge was not submitted with the	PERB
letter, and no additional facts were included in the letter. Therefore, the charge is hereby
dismissed based on the facts and reasons set forth in the September 30, 2011 Warning Letter.
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.

SF-CO-262-M
October 24, 2011
Page 2
Right to Appeal
Pursuant to PERB Regulations,2 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
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).)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-262-M
October 24, 2011
Page 3
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,
M. SUZANNE MURPHY
General Counsel
By
Katharine Nyman
Regional Attorney
Attachment
cc: Vincent Harrington, Jr., Attorney
By

.

STATE
OF
CALIFORNIA	
EDMUND G.
BROWN
JR.,
Governor
PUBLIC EMPLOYMEN1 KELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
September 30, 2011
Cassandra Smith
20981 Royal Avenue
Hayward, CA 94541
Re: 	Cassandra Smith
v.
SEIU
United Long Term Care Workers
Unfair Practice Charge No. SF-CO-262-M
WARNING LETTER
Dear Ms. Smith:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 26, 2011. Cassandra Smith (Smith or Charging Party)
alleges that the SEIU United Long Term Care Workers (SEIU or Respondent) violated the
Meyers-Milias-Brown Act (MMBA or Act) 1 by breaching its duty
of
fair representation.
Charging Party appears to be an In-Home-Support-Services worker for the Alameda County
Department
of
Social Services. According to the charge, Charging Party believed she was
improperly or untimely paid for work completed. Thereafter, Charging Party made a
complaint to SEIU. Though unclear, it appears that SEIU told her "no one will no (sic] when
they get paid, it don't come at the same time." According to Charging Party, SEIU
is
"not on
(her] side."
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.)
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
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.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-262-M
September 30, 2011
Page 2
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
in such cases, including Reed District Teachers Association, CTA/NEA (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
(l
967) 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, at p. 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
Machinists
(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.)
As presently written, nothing in the charge demonstrates how SEIU's alleged conduct was
arbitrary, discriminatory, or in bad faith and thus does not establish a prima facie violation. To
the extent Charging Party alleges that SEIU breached its duty of fair representation by failing
to pursue a grievance based on Charging Party's belief that she was improperly paid, the Board
has held that a union has the discretion whether or not to pursue a grievance. (United Teachers
of
Los Angeles (Thomas) (2010) PERB Decision No. 2150.) Refusal to pursue a grievance the
union believes is unmeritorious is not a violation, as long as the refusal is not arbitrary,
discriminatory, or in bad faith. 	(Ibid.) It is the charging party's burden to allege facts which
demonstrate that the refusal was arbitrary, discriminatory, or in bad faith. 	(Ibid.) 	Where
charging party failed to do so, the charge failed to establish a prima facie case for breach
of
the
duty of fair representation. (Ibid.) Regardless, as previously stated, nothing in the charge
demonstrates how SEIU's alleged conduct was arbitrary, discriminatory, or in bad faith and
thus does not establish a prima facie violation.

SF-CO-262-M
September 30, 2011
Page 3
For these reasons the charge, as presently written, does not state a prima facie case. 3
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 corner
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 October 14, 2011,4
PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
Sincerely
Katharine Mymah
Regional Alterney
KN
In Eastside Union School District (l 984) 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." (Ibid)
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)
KN