California Correctional Peace Officers Association (Pacillas) (PERB 0657S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOAB PACILLAS,

Charging Party, Case No. LA~CO-17-S

V- PERB Decision No. 657-S

CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,

December 31, 1987

Respondent.

Appearance: Joab Pacillas, on his own behalf; Steven R.
Yamaguchi, Attorney for California Correctional Peace Officers
Association.

Before Craib, Porter and Shank, Members.
DECISION

CRAIB, Member: This case is before the Public Employment
Relations Board on appeal by Charging Party of the Board
agent's dismissal, attached hereto, of his charge alleging that
the California Correctional Peace Officers Association violated
section 3519.5(d) of the Ralph C. Dills Act (Gov. Code sec.
3512 et seq.).

We have reviewed the dismissal and, finding it free from
prejudicial error, adopt it as the Decision of the Board itself.

ORDER

The unfair practice charge in Case No. LA-CO-17-S is

DISMISSED WITHOUT LEAVE TO AMEND.

Member Porter's concurring opinion follows on page 2.

2
Porter, 	Member, 	concurring: 	I 	concur 	in 	the 	dismissal 	of 	the
charges 	in 	that 	they 	fail 	to 	allege 	a 	prima 	facie 	violation 	of
the 	State 	Employer-Employee 	Relations 	Act. 	(SEERA, 	Gov. 	Code,
secs. 	3512-3524.) 	I 	write 	separately 	to 	express 	my 	view 	and
the 	reasons 	for 	it, 	that, 	while 	an 	alleged 	breach 	of 	the 	"duty
of 	fair 	representation" 	as 	to 	a 	state 	employee 	who 	is 	a 	member
of 	the 	exclusive 	representative 	organization 	is 	actionable 	in
the 	courts, 	such 	a 	breach 	does 	not 	also 	constitute 	a 	violation
of 	SEERA 	actionable 	before 	this 	Board.
The 	unfair 	practice 	charges 	filed 	in 	this 	case 	allege 	in
essence 	that 	the 	respondent 	employee 	organization 	failed 	to
adequately 	represent 	the 	Charging 	Party 	in 	connection with 	a
"reasonable 	accommodation/handicap 	discrimination" 	matter 	which
the 	Charging 	Party 	sought 	to 	pursue 	before 	the 	State 	Personnel
Board 	in 	an 	attempt 	to 	retain 	his 	state 	employment 	status
notwithstanding 	an 	alleged 	physical 	handicap. 	Charging 	Party
asserted 	that 	such 	conduct 	by 	the 	respondent 	employee
organization 	constituted 	a 	violation 	of 	SEERA, 	section 	3519.5,
subdivision 	(d), 	which 	makes 	it 	an 	unfair 	practice 	for 	an
employee 	organization 	to 	refuse 	or 	fail 	to 	participate 	in 	good
faith 	in 	statutory mediation 	procedures.
After 	first 	determining 	that 	the 	charges 	did 	not 	constitute
a 	violation 	under 	section 	3519.5, 	subdivision 	(d), 	the 	Board
agent 	then 	analyzed 	whether 	such 	charges 	alleged 	a 	violation 	by
the 	respondent 	employee 	organization 	of 	its 	"duty 	of 	fair
2

W
representation" 	and 	thus, 	pursuant 	to 	this 	Board's 	analysis 	in
Norgard 	v. 	California 	State 	Employees 	Association 	(1984) 	PERB
Decision 	No. 	451-S, 	would 	be 	actionable 	as 	a 	violation 	of 	SEERA
under 	subdivision 	(b) 	of 	section 	3519.5. 1 Concluding 	that
the 	duty 	of 	fair 	representation 	does 	not 	apply 	to
"extra-contractual" 	proceedings 	before 	the 	State 	Personnel
Board, 	the 	Board 	agent 	dismissed 	the 	charges. 2
I 	agree 	that 	an 	exclusive 	representative's 	duty 	of 	fair
representation 	does 	not 	extend 	to 	extra-contractual 	matters
before 	the 	State 	Personnel 	Board 	and, 	accordingly, 	that 	any
alleged 	conduct 	with 	respect 	to 	matters 	before 	the 	State
Personnel 	Board 	could 	not 	constitute 	a 	breach 	of 	the 	duty 	of
lsubdivision 	(b) 	of 	SEERA 	section 	3519.5 	makes 	it 	an
unfair 	practice 	for 	an 	employee 	to:
Impose 	or 	threaten 	to 	impose 	reprisals 	on
employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
2rn 	his 	appeal 	to 	the 	Board, 	Charging 	Party 	has 	also
alleged 	new 	facts 	concerning 	an 	apparent 	formal 	grievance,
emanating 	from 	the 	collective 	bargaining 	agreement, 	and 	filed
and 	pursued 	in 	1983 	through 	the 	various 	grievance 	levels, 	but
allegedly 	not 	taken 	by 	the 	respondent 	employee 	organization 	to
arbitration. 	Even 	assuming, 	arguendo, 	that 	these 	new 	facts 	and
charges 	may 	be 	raised 	on 	appeal, 	such 	new 	charges 	concerning
alleged 	conduct 	occurring 	in 	1983 	are 	clearly 	untimely, 	having
occurred 	more 	than 	six 	months 	prior 	to 	the 	filing 	of 	the
instant 	charges 	with 	this 	Board 	in 	July 	1985. 	(Gov. 	Code, 	sec.
3514.S(a).)
3

fair 	representation. 3 I 	disagree 	with 	Norgard's 	footnote
analysis 	and 	holding 	that 	a 	breach 	of 	the 	duty 	of 	fair
representation 	as 	to 	a 	union 	member 	constitutes 	a 	violation 	of
SEERA 	and 	is 	thus 	actionable 	before 	this 	Board. 	This 	Norgard
analysis 	was 	relied 	upon 	by 	the 	Board 	agent 	in 	his 	analysis 	of
the 	charges 	and 	has 	been 	affirmed 	and 	perpetuated 	sub 	silentio
by my 	colleagues' 	adoption 	of 	the 	Board 	agent's 	determination
as 	the 	decision 	of 	the 	Board 	itself.
In 	Norgard, 	the 	charging 	party, 	who 	was 	a 	member 	of 	the
union 	that 	was 	the 	exclusive 	representative 	of 	the 	charging
party's 	bargaining 	unit, 	alleged 	that 	his 	union 	had 	violated
its 	duty 	of 	fair 	representation 	by 	affiliating 	with 	an
international 	union. 	Before 	reaching 	the 	merits 	of 	the 	case,
the 	following 	analysis 	and 	holding 	was 	set 	forth 	in 	footnote 	1
with 	respect 	to 	the 	charging 	party's 	allegation 	that 	his 	union
had 	breached 	its 	duty 	of 	fair 	representation 	in 	violation 	of
SEERA 	section 	3519.5, 	subdivision 	(b):
The 	duty 	of 	fair 	representation 	under 	the
State 	Employer-Employee 	Relations 	Act 	(SEERA
or 	Act, 	Government 	Code 	section 	3512
et 	seq.), 	unlike 	that 	under 	the 	Educational
Employment 	Relations 	Act 	(Government 	Code
section 	3540 	et 	seq.), 	is 	not 	expressly 	set
forth 	in 	a 	specific 	section 	of 	the 	Act. 	We
do 	not 	consider 	this 	omission 	to 	reflect 	an
intention 	on 	the 	part 	of 	the 	Legislature 	to
3rt 	may 	be 	observed 	that 	an 	alleged 	misfeasance
concerning 	an 	extra-contractual 	representation 	undertaken 	by 	an
employee 	organization 	might 	constitute 	a 	different 	type 	of
delict 	recognizable 	in 	the 	courts.
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5
deny 	SEERA-covered 	employees 	the 	right 	to 	be
fairly 	represented 	by 	their 	employee
organizations. 	Rather, 	the 	duty 	of 	fair
representation 	under 	SEERA 	arises 	as 	a 	quid
pro 	quo 	for 	the 	granting 	of 	exclusive
representational 	rights 	to 	employee
organizations. 	Such 	has 	long 	been 	the 	view
held 	by 	the 	federal 	courts 	in 	implying 	a
duty 	of 	fair 	representation 	under 	the
National 	Labor 	Relations 	Act. 	See Morris,
The 	Developing 	Labor 	Law, 	Chap. 	28;
Steele 	v. 	Louisville 	& Nashville 	Railroad
(1944) 	323 	U.S. 	192 	[15 	LRRM 	708]; 	Textile
Workers 	v. 	Lincoln 	Mills 	(1957) 	353 	U.S. 	448
[40 	LRRM 	3113]; 	Vaca 	v. 	Sipes 	{1967)
386 	U.S. 	171 	[64 	LRRM 	2369].
Under 	SEERA, 	violations 	of 	the 	duty 	of 	fair
representation 	are 	actionable 	under 	section
3519,5(b). 	That 	section 	provides 	in
pertinent 	part:
It 	shall 	be 	unlawful 	for 	an
employee 	organization 	to:
(b) 	Impose 	or 	threaten 	to
impose 	reprisals 	on
employees, 	to 	discriminate 	or
threaten 	to 	discriminate
against 	employees, 	or
otherwise 	to 	interfere 	with,
restrain, 	or 	coerce 	employees
because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this
chapter.
In 	this 	case, 	the 	charging 	party
appropriately 	alleged 	a 	violation 	of 	section
3519.S{b). 	However, 	in 	addition, 	the
charging 	party 	alleged 	violations 	of
sections 	3515, 	3518.5, 	and 	3522.2. 	These
sections 	do 	not 	involve 	the 	duty 	of 	fair
representation 	and, 	as 	the 	charging 	party
alleges 	no 	facts 	to 	support 	a 	finding 	of
violations 	of 	these 	sections, 	his 	unfair
practice 	charge 	with 	respect 	to 	them 	is
dismissed. 	{Norgard 	v. 	California 	State
Employees' 	Association 	(1984) 	PERB
No. 	451-S, 	fn. 	1, 	pp. 	1-2.)
5

I 	respectfully 	submit 	that 	this 	Board 	erred 	in 	its 	analysis
and 	holding 	in 	Norgard 	that 	a 	breach 	of 	the 	duty 	of 	fair
representation 	as 	to 	a 	member 	of 	the 	union 	constitutes 	a
violation 	of 	SEERA 	and 	is 	actionable 	before 	this 	Board 	under
SEERA 	section 	3519.5, 	subdivision 	(b).
The 	"duty 	of 	fair 	representation" 	(DFR) 	is 	a 	judicially
developed 	doctrine, 	with 	the 	duty 	enforceable 	in 	the 	courts
through 	a 	civil 	cause 	of 	action 	for 	injunction, 	damages 	and/or
other 	appropriate 	relief. 	The 	DFR 	is 	imposed 	on 	an 	employee
organization which, 	under 	a 	statutory 	authority 	or 	grant 	(or 	by
contract4 ), 	has 	become 	the 	exclusive 	representative 	of
employees 	in 	a 	bargaining 	unit 	and 	thus 	exclusively 	bargains
with 	the 	employer 	and 	administers 	any 	resultant 	collective
bargaining 	agreement, 	including 	the 	handling 	of 	employee
grievances 	and 	arbitration.
The 	DFR was 	first 	recognized 	and 	established 	by 	the 	courts
in 	Steele 	v. 	Louisville 	& Nashville 	Railroad 	Co. 	& Brotherhood
of 	Locomotive 	Firemen 	(1944) 	323 	U.S. 	192 	[89 	L.Ed. 	173,
15 	LRRM 	708], 	and 	Tunstall 	v. 	Brotherhood 	of 	Locomotive 	Firemen
(1944) 	323 	U.S. 	210 	[89 	L.Ed. 	187, 	15 	LRRM 	715]. 	In 	Steele, 	a
union 	that 	was 	the 	exclusive 	representative 	of 	a 	unit 	of
railway 	employees 	under 	the 	federal 	Railway 	Labor 	Act 	had, 	in
bargaining 	with 	the 	employer, 	discriminated 	against 	minority
members 	of 	the 	bargaining 	unit. 	The 	minority members 	brought
4Lerma 	v. 	D'Arriqo 	Brothers 	Co. 	(1978) 	77 	Cal.App.3d 	836,
842.
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suit 	in 	the 	Alabama 	state 	courts, 	seeking 	damages 	and
injunctive 	relief. 	The 	state 	courts 	dismissed 	the 	complaint
for 	failure 	to 	state 	a 	cause 	of 	action. 	In 	reversing 	the
dismissal, 	the 	U.S. 	Supreme 	Court 	set 	forth 	in 	pertinent 	part:
The 	question 	is 	whether 	the 	Railway 	Labor
Act 	[citation] 	imposes 	on 	a 	labor
organization, 	acting 	by 	authority 	of 	the
statute 	as 	the 	exclusive 	bargaining
representative 	of 	a 	class 	or 	craft 	of
railway 	employees, 	the 	duty 	to 	represent 	all
the 	employees 	in 	the 	craft 	without
discrimination 	because 	of 	their 	race, 	and,
if 	so, 	whether 	the 	courts 	have 	jurisdiction
to 	protect 	the 	minority 	of 	the 	craft 	or
class 	from 	the 	violation 	of 	such 	obligation.
If, 	as 	the 	state 	court 	has 	held, 	the 	Act
confers 	this 	power 	on 	the 	bargaining
representative 	of 	a 	craft 	or 	class 	of
employees 	without 	any 	commensurate 	statutory
duty 	toward 	its 	members, 	constitutional
questions 	arise.
Unless 	the 	labor 	union 	representing 	a 	craft
owes 	some 	duty 	to 	represent 	non-union
members 	of 	the 	craft, 	at 	least 	to 	the 	extent
of 	not 	discriminating 	against 	them 	as 	such
in 	the 	contracts 	which 	it 	makes 	as 	their
representative, 	the 	minority would 	be 	left
with 	no 	means 	of 	protecting 	their 	interest
.... 	The 	fair 	interpretation 	of 	the
statutory 	language 	is 	that 	the 	organization
chosen 	to 	represent 	a 	craft 	is 	to 	represent
all 	its 	members, 	the 	majority 	as 	well 	as 	the
minority, 	and 	it 	is 	to 	act 	for 	and 	not
against 	those 	whom 	it 	represents. 	It 	is 	a
principle 	of 	general 	application 	that 	the
exercise 	of 	a 	granted 	power 	to 	act 	in 	behalf
of 	others 	involves 	the 	assumption 	toward
them of 	a 	duty 	to 	exercise 	the 	power 	in
their 	interest 	and 	behalf 	....
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We 	hold 	that 	the 	language 	of 	the 	Act 	to
which 	we 	have 	referred, 	read 	in 	the 	light 	of
the 	purpose 	of 	the 	Act, 	expresses 	the 	aim of
congress 	to 	impose 	on 	the 	bargaining
representative 	of 	a 	craft 	or 	class 	of
employees 	the 	duty 	to 	exercise 	fairly 	the
power 	conferred 	upon 	it 	in 	behalf 	of 	all
those 	for 	whom 	it 	acts, 	without 	hostile
discrimination 	against 	them.
So 	long 	as 	a 	labor 	union 	assumes 	to 	act 	as
the 	statutory 	representative 	of 	a 	craft, 	it
cannot 	rightly 	refuse 	to 	perform 	the 	duty,
which 	is 	inseparable 	from 	the 	power 	of
representation 	conferred 	upon 	it, 	to
represent 	the 	entire 	membership 	of 	the 	craft
... 	it 	does 	require 	the 	union, 	in
collective 	bargaining 	and 	in 	making
contracts 	with 	the 	carrier, 	to 	represent
non-union 	or 	minority 	union 	members 	of 	the
craft 	without 	hostile 	discrimination,
fairly, 	impartially, 	and 	in 	good 	faith.
. . . . . 	. . 	. . . . 	.
We 	conclude 	that 	... 	the 	statute
contemplates 	resort 	to 	the 	usual 	judicial
remedies 	in 	injunction 	and 	award 	of 	damages
when 	appropriate 	for 	breach 	of 	that 	duty.
(323 	U.S. 	at 	193-194, 	198, 	201-204, 	207.)
In 	the 	campanion 	Tunstall 	case, 	a 	minority 	railway 	employee
had 	filed 	a 	complaint 	for 	injunction 	and 	damages 	against 	the
union, 	not 	in 	a 	state 	court 	as 	in 	Steele, 	but 	in 	a 	federal
district 	court. 	The 	lower 	federal 	court 	dismissed 	the
complaint 	on 	the 	ground 	that 	the 	court 	was 	without
jurisdiction. 	On 	appeal, 	the 	U.S. 	Supreme 	Court 	held 	that 	such
a 	complaint 	could 	also 	be 	brought 	in 	the 	federal 	courts 	(as
well 	as 	in 	the 	state 	courts), 	inasmuch 	as 	the 	union's 	DFR 	as
the 	exclusive 	bargaining 	representative 	arose 	under 	laws 	of 	the
8

United 	States: 	the 	federal 	Railway 	Labor 	Act.
Following 	Steele 	and 	Tunstall, 	the 	DFR 	doctrine 	was
extended 	by 	the 	courts 	to 	cover 	unions 	acquiring 	exclusive
representative 	status 	under 	the 	National 	Labor 	Relations 	Act
(NLRA), 	with 	a 	civil 	cause 	of 	action 	in 	the 	courts 	for 	damages
and 	injunctive 	relief 	when 	the 	duty was 	breached 	either 	in
bargaining 	or 	in 	administering 	the 	ensuing 	collective
bargaining 	agreement. 	(Ford 	Motor 	Co. 	v. 	Huffman 	(1953)
345 	U.S. 	330, 	337-338 	[97 	L.Ed. 	1048, 	1057-1058]; 	Sykes 	v. 	Oil
Workers 	International 	Union 	(1955) 	350 	U.S. 	892 	[100 	L.Ed.
785]; 	Humphrey 	v. 	Moore 	(1964) 	375 	U.S. 	335, 	342 	[11 	L.Ed.2d
370, 	377] .)
In 	1962, 	in 	a 	three-to-two 	decision, 	the 	National 	Labor
Relations 	Board 	(NLRB) 	held--for 	the 	first 	time 	since 	the 	1935
enactment 	of 	the 	NLRA--that 	unions 	acquiring 	an 	exclusive
representative 	status 	under 	the 	NLRA 	have 	a 	duty 	of 	fair
representation, 	and 	that 	a 	breach 	of 	the 	duty 	constitutes 	an
unfair 	labor 	practice 	under 	the 	NLRA 	and 	is 	actionable 	before
the 	NLRB. 	(Miranda 	Fuel 	Co. 	(1962) 	140 	NLRB 	181 	[51 	LRRM 	1584]
enforcement 	den. 	326 	F.2d 	172 	(2nd 	Cir. 	1963) 	[54 	LRRM 	2715] .)
In 	various 	DFR 	civil 	lawsuits 	brought 	in 	the 	courts 	after
Miranda 	Fuel 	Co., 	the 	issue 	was 	raised 	that, 	since 	the 	NLRB 	had
now 	found 	DFR 	breaches 	to 	be 	unfair 	labor 	practices 	under 	the
NLRA, 	the 	courts 	were 	preempted 	from 	entertaining 	DFR 	lawsuits
because 	of 	the 	exclusive 	jurisdiction 	of 	the 	NLRB 	over 	unfair
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practices. 	The 	courts 	have 	consistently 	rejected 	this
preemption 	argument, 	with 	the 	leading 	decision 	being 	Vaca 	v.
Sipes, 	supra, 	386 	U.S. 	171 	[17 	L.Ed.2d 	842], 	wherein 	the 	U.S.
Supreme 	Court 	declined 	to 	hold 	whether 	a 	DFR 	breach 	also
constituted 	an 	unfair 	labor 	practice 	under 	the 	NLRA, 	but 	took
the 	stance 	that 	even 	assuming 	the 	latter, 	preemption was 	not
applicable 	inasmuch 	as 	the 	courts 	had 	been 	dealing 	with 	and
enforcing 	the 	DFR 	for 	years 	before 	the 	NLRB 	first 	asserted 	such
jurisdiction 	in Miranda 	Fuel 	Co. 	(see 	386 	U.S. 	at 	176-186
[17 	L.Ed.2d 	at 	850-855]). 	As 	succinctly 	set 	forth 	by 	the 	U.S.
Supreme 	Court 	in Motor 	Coach 	Employees 	v. 	Lockridge 	(1971)
403 	U.S. 	274, 	299-301 	[29 	L.Ed.2d 	473, 	490-491]:
... 	in Vaca 	v. 	Sipes, 	386 	U.S. 	171,
17 	L.Ed.2d 	842 	{1967), 	we 	held 	that 	an
action 	seeking 	damages 	for 	injury 	inflicted
by 	a 	breach 	of 	a 	union's 	duty 	of 	fair
representation was 	judicially cognizable 	in
any 	event, 	that 	is, 	even 	if 	the 	conduct
complained 	of 	was 	arguably 	protected 	or
prohibited 	by 	the 	National 	Labor 	Relations
Act 	and 	whether 	or 	not 	the 	lawsuit 	was
bottomed 	on 	a 	collective 	agreement.
The 	duty 	of 	fair 	representation was
judicially 	evolved, 	without 	the
participation 	of 	the 	NLRB, 	to 	enforce 	fully
the 	important 	principle 	that 	no 	individual
union 	member 	may 	suffer 	invidious, 	hostile
treatment 	at 	the 	hands 	of 	the 	majority 	of
his 	coworkers. 	(Emphasis 	added.)
The 	U.S. 	Supreme 	Court 	has 	still 	not 	ruled 	on whether 	a
breach 	of 	the 	DFR 	constitutes 	a 	violation 	of 	the 	NLRA. 	In
Del 	Costello 	v. 	International 	Brotherhood 	of 	Teamsters 	(1983)
10

11
462 	U.S. 	151 	[76 	L.Ed.2d 	476], 	a 	case 	involving 	the 	issue 	of
what 	was 	the 	appropriate 	statute 	of 	limitations 	as 	to 	filing
civil 	lawsuits 	for 	breaches 	of 	the 	DFR, 	the 	court 	stated
(462 	U.S. 	at 	170):
The 	NLRB 	has 	consistently 	held 	that 	all
breaches 	of 	a 	union's 	duty 	of 	fair
representation 	are 	in 	fact 	unfair 	labor
practices. 	E.g., 	Miranda 	Fuel 	Co., 	140 	NLRB
181 	(1962), 	enf. 	denied, 	326 	F.2d 	172 	(CA2
1963). 	We 	have 	twice 	declined 	to 	decide 	the
correctness 	of 	the 	Board's 	position,22 	and
we 	need 	not 	address 	that 	question 	today.
22vaca, 	supra, 	at 	186, 	17 	L.Ed.2d 	842,
87 	S.Ct. 	903; 	Humphrey, 	375 	U.S., 	at 	344,
11 	L.Ed.2d 	370, 	84 	S.Ct. 	363; 	see 	Mitchell,
451 	U.S., 	at 	67-68, 	n 	3, 	67 	L.Ed.2d 	732,
101 	S.Ct. 	1559. 	(Emphasis 	added.)
And 	in 	affirming 	a 	court's 	liberal 	approach 	to 	the
sufficiency 	of 	a 	complaint 	filed 	in 	court 	against 	a 	union 	for
breach 	of 	its 	duty 	of 	fair 	representation, 	the 	U.S. 	Supreme
Court 	reiterated 	with 	approval 	the 	statement 	of 	the 	lower
federal 	circuit 	court 	of 	appeals 	that 	"where 	the 	courts 	are
called 	upon 	to 	fulfill 	their 	role 	as 	the 	primary 	guardians 	of
the 	duty 	of 	fair 	representation, 	complaints 	should 	be 	construed
to 	avoid 	dismissals 	.... " 	(Czosek 	v. 	O'Mara 	(1970) 	397 	U.S.
25, 	27 	[25 	L.Ed.2d 	21, 	24], 	emphasis 	added.)
California 	case 	law 	is 	in 	accord 	with 	the 	federal 	view
concerning 	a 	union's 	duty 	of 	fair 	representation 	being
enforceable 	in 	the 	(state) 	courts 	through 	civil 	lawsuits 	for
damages 	and/or 	injunctive 	relief 	(Griffin 	v. 	United
Transportation 	Union 	(1987) 	190 	Cal.
11

12
App.3d 	1359, 	2361-1265; 	Kerna 	v. 	D 1 Arrigo 	Brothers 	Co. 	(1978)
77 	Cal.App.3d 	836, 	839-842; 	Shaw v. 	Metro-Goldwyn-Mayer, 	Inc.
(1974) 	37 	Cal.App.3d 	587, 	599-601; 	Masgallanes 	v. 	Local 	300,
Laborers' 	Inter. 	Union 	of 	No. 	America 	(1974) 	40 	Cal.App.3d 	809,
815-816, 	hrg. 	den.; 	Sarro 	v. 	Retail 	Store 	Employees 	Union
(1984) 	155 	Cal.App.3rd 	206, 	212; 	Rosales 	v. 	General 	Motors
Corp, 	(1978) 	78 	Cal.App.3d 	94, 	102-103, 	hrg. 	den.).
Furthermore, 	the 	judicial 	enforcement 	of 	a 	union's 	DFR 	applies
to 	exclusive 	representatives 	in 	the 	public 	sector 	(Logan 	v.
Southern 	Calif. 	Rapid 	Transit 	District 	(1982) 	136 	Cal.App.3d
116, 	128).
Hence, 	it 	is 	well 	established 	in 	both 	federal 	and 	state
case 	law 	that 	when 	an 	employee 	organization 	becomes 	the
exclusive 	representative 	of 	a 	bargaining 	unit 	-- 	whether 	such
exclusivity 	is 	acquired 	under 	a 	federal 	or 	state 	statute, 	or 	by
contract 	a 	reciprocal 	duty 	of 	fair 	representation 	arises
which 	is 	enforceable 	in 	the 	courts 	through 	a 	civil 	lawsuit 	for
damages 	and/or 	injunctive 	relief.
Turning 	to 	the 	instant 	case, 	it 	is 	self-evident 	that 	an
employee 	organization 	that 	has 	obtained 	exclusive
representative 	status 	under 	SEERA has 	the 	reciprocal 	duty 	of
fair 	representation 	towards 	all 	members 	of 	the 	bargaining 	unit
it 	represents, 	and 	that 	breaches 	of 	this 	judicially 	recognized
duty 	are 	remediable 	in 	the 	California 	state 	courts 	through
civil 	lawsuits 	for 	damages 	and/or 	injunctive 	relief 	(Lerma 	v.
12

13
D'Arrigo 	Brothers 	Co. 	(1978) 	77 	Cal.App.3d 	836, 	839-842; 	Logan
v. 	Southern 	Calif. 	Rapid 	Transit 	District 	(1982) 	136 	Cal.App.3d
116, 	128; 	and 	see 	Griffin 	v, 	United 	Transportation 	Union 	1987)
190 	Cal.App.3d 	1359, 	1361-1365).
Independent 	of 	the 	judically 	recognized 	and 	enforced 	DFR,
is 	the 	issue 	of 	whether, 	under 	SEERA, 	breaches 	of 	a 	DFR 	are
also 	actionable 	and 	remediable 	before 	this 	Board. 	In 	looking,
as 	we 	must, 	to 	SEERA's 	provisions 	for 	the 	answer, 	it 	is
incumbent 	upon 	us 	to 	view 	those 	provisions 	against 	the
legislatively 	inscribed 	statutory 	backdrop 	which 	surrounds 	them
(Regents 	of 	the 	Univ. 	of 	Calif. 	v. 	Public 	Employment 	Relations
Board 	{1985) 	168 	Cal.App.3d 	939, 	942-944).
In 	1975, 	the 	Legislature 	enacted 	the 	Educational 	Employment
Relations 	Act 	(EERA, 	Stats. 	1975, 	ch. 	961; 	Govt. 	Code 	secs.
3540-3549) 	which 	established 	this 	Board 	and 	vested 	it 	with 	the
power 	to 	enforce 	the 	provisions 	of 	EERA 	with 	respect 	to 	unfair
practices 	or 	other 	violations 	of 	EERA 	(Govt. 	Code 	sec. 	3541.3,
subdivs. 	(h) 	& 	(i); 	Leek 	v. 	Washington 	Unified 	School 	District
{1981) 	124 	Cal.App.3d 	43, 	46, 	ftnte 	1, 	47-51, 	hrg. 	den.; 	Link
v. 	Antioch 	Unified 	School 	District 	(1983) 	142 	Cal.App.3d 	765,
768-769). 	EERA 	includes 	sections 	authorizing 	exclusive
representatives 	(Govt. 	Code 	secs. 	3544-3544.7} 	and 	a 	separate
section 	bearing 	the 	heading, 	"DUTY OF 	FAIR 	REPRESENTATION,"
which 	specifically 	prescribes 	a 	duty 	of 	fair 	representation 	for
exclusive 	representatives 	as 	to 	"each 	and 	every 	employee" 	in
13

14
the 	bargaining 	unit 	(Govt. 	Code 	sec. 	3544.9).
In 	1977, 	the 	Legislature 	enacted 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA, 	Stats. 	1977, 	ch. 	1159;
Govt. 	Code 	secs. 	3512-3524) 	which 	vested 	this 	Board 	with 	the
power 	to 	enforce 	the 	provisions 	of 	SEERA with 	respect 	to 	unfair
practices 	or 	other 	violations 	of 	SEERA 	(Govt. 	Code 	secs. 	3513,
subdiv. 	(g); 	and 	see 	Leek 	v. 	Washington 	Unified 	School
District, 	supra, 	124 	Cal.App.3d 	43, 	46, 	ftnte. 	1, 	47-41, 	hrg.
den.; 	Link 	v. 	Antioch 	Unified 	School 	District, 	supra, 	142
Cal.App.3d 	765, 	768-769). 	SEERA 	included 	sections 	authorizing
exclusive 	representatives 	(Govt. 	Code 	secs. 	3515.5 	and 	3520.5)
but--unlike 	EERA 	(supra) 	and 	HEERA 	(post)--omitted 	any
statutory 	provision 	prescribing 	a 	duty 	of 	fair 	representation
for 	exclusive 	representatives.
In 	1978, 	the 	Legislature 	enacted 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(HEERA, 	Stats. 	1978, 	ch. 	744;
Govt. 	Code 	secs. 	3560-3599) 	which 	vested 	this 	Board 	with 	the
power 	to 	enforce 	the 	provisions 	of 	HEERA with 	respect 	to 	unfair
practices 	or 	other 	violations 	of 	HEERA 	(Govt. 	Code 	sec. 	3563,
subdivs. 	(g) 	and 	(h); 	and 	see 	Leek 	v. 	Washington 	Unified 	School
District, 	supra, 	124 	Cal.App.3d 	43, 	46 	ftnte. 	1, 	47-51, 	hrg.
den.; 	Link 	v. 	Antioch 	Unified 	School 	District, 	supra, 	142
Cal.App.3d 	765, 	768-796). 	HEERA 	includes 	sections 	authorizing
exclusive 	representatives 	(Govt. 	Code 	secs. 	3573-3577), 	a
separate 	section 	bearing 	the 	heading, 	"DUTY OF 	FAIR
14

15
REPRESENTATION" 	which 	specifically 	prescribes 	a 	duty 	of 	fair
representative 	for 	exclusive 	representatives 	as 	to 	"all
employees" 	in 	the 	bargaining 	unit 	(Govt. 	Code 	sec. 	3578), 	and 	a
specific 	provision 	in 	another 	section 	with 	the 	heading
"UNLAWFUL 	PRACTICES: 	EMPLOYEE 	ORGANIZATION", 	making 	it 	an
unlawful 	practice 	for 	an 	exclusive 	representative 	to 	breach 	its
duty 	of 	fair 	representation 	(Government 	Code 	sec. 	3571.1,
subdiv. 	(e).).
Lastly, 	in 	1981, 	the 	Legislature 	amended 	SEERA 	(Stats.
1981, 	chapter 	1572, 	effect. 	January 	1, 	1983) 	to 	add 	a 	new
section 	(Government 	Code 	section 	3515.7) 	dealing 	with
maintenance 	of 	membership 	and 	the 	collection 	of 	"fair 	share
fees" 	from 	employees 	who 	are 	not 	members 	of 	the 	exclusive
representative 	organization. 	This 	new 	section 	included 	a
subdivision 	(g) 	which 	prescribes:
(g) 	An 	employee who 	pays 	a 	fair 	share 	fee
shall 	be 	entitled 	to 	fair 	and 	impartial
representation 	by 	the 	recognized 	employee
organization. 	A breach 	of 	this 	duty 	shall 	be
deemed 	to 	have 	occurred 	if 	the 	employee
organization's 	conduct 	in 	representation 	is
arbitrary, 	discriminatory, 	or 	in 	bad 	faith.
(Govt. 	Code 	sec. 	3515.7, 	subdiv. 	(g),
emphasis 	added)
Thus, 	in 	EERA 	and 	HEERA 	the 	Legislature 	has 	specifically
prescribed 	a 	duty 	of 	fair 	representation 	for 	exclusive
representatives 	as 	to 	"each 	and 	every 	employee" 	and/or 	"all
employees" 	in 	the 	bargaining 	unit 	(EERA: 	Government 	Code
sec. 	3544.9; 	HEERA: 	Govt. 	Code 	sec. 	3578), 	but 	omitted 	such 	a
15

16
DFR 	in 	SEERA.
A breach 	of 	the 	DFR 	under 	EERA 	is 	actionable 	and 	remediable
before 	this 	Board 	as 	a 	violation 	of 	EERA's 	DFR 	section 	3544.9
(Govt. 	Code 	sec. 	3541.3, 	subdiv. 	(h) 	and 	(i); 	Leek 	v.
Washington 	Unified 	School 	District, 	supra; 	Link 	v. 	Antioch
Unified 	School 	District, 	supra. 	A breach 	of 	the 	DFR 	under
HEERA 	is 	actionable 	and 	remediable 	before 	this 	Board 	as 	either
an 	unlawful 	practice 	(Govt. 	Code 	sec. 	3571.7, 	subdiv. 	(e)) 	or
as 	a 	violation 	of 	HEERA's 	DFR 	section 	3578 	{Govt. 	Code
sec. 	3563, 	subdivs. 	(g) 	and 	{h); 	and 	see 	Leek 	v. 	Washington
Unified 	School 	District, 	supra; 	Link 	v. 	Antioch 	Unified 	School
District, 	supra).
The 	1981 	amendment 	to 	SEERA, 	which 	provides 	for 	the
collection 	of 	"fair 	share 	fees" 	from 	employees 	in 	the
bargaining 	unit 	who 	are 	not 	members 	of 	the 	exclusive
representative 	organization, 	prescribes 	a 	DFR 	for 	exclusive
representatives 	as 	to 	''{a)n 	employee who 	pays 	a 	fair 	share 	fee"
{Govt. 	Code 	sec. 	3515.7, 	subdiv. 	{g).). 	As 	set 	forth 	in 	SEERA
section 	3513, 	subdivision 	{j):
(j) 	'Fair 	share 	fee' 	means 	the 	fee 	deducted
by 	the 	state 	employer 	from 	the 	salary 	or
wages 	of 	a 	state 	employee 	in 	an 	appropriate
unit 	who 	does 	not 	become 	a 	member 	of 	and
financially 	support 	the 	recognized 	employee
organization. 	The 	fair 	share 	fee 	shall 	be
used 	to 	defray 	the 	costs 	incurred 	by 	the
recognized 	employee 	organization 	in
fulfilling 	its 	duty 	to 	represent 	the
employees 	in 	their 	employment 	relations 	with
the 	state, 	and 	shall 	not 	exceed 	the 	standard
initiation 	fee, 	membership 	dues, 	and 	general
16

17
assessments 	of 	the 	recognized 	employee
organization, 	(Emphasis 	added.)
The 	DFR 	set 	forth 	in 	subdivision 	(g) 	of 	SEERA 	section 	3515.7
11does 	not 	apply 	to 	"each 	and 	every 	employee 5 and/or 	"all 	the
employees" 6 in 	the 	bargaining 	unit 	but 	only 	to 	the 	nonmember
employees 	from 	whom 	a 	fair 	share 	fee 	is 	collected.
Accordingly, 	a 	breach 	or 	violation 	of 	the 	DFR 	prescribed 	by
subdivision 	(g) 	of 	SEERA 	section 	3515.7 	is 	actionable 	and
remediable 	before 	this 	Board 	only with 	respect 	to 	a 	nonmember,
fair-share 	fee 	payor.
In 	the 	instant 	case, 	the 	charging 	party 	is 	not 	a 	nonmember
fair-share 	fee 	payer; 	he 	is 	a 	member 	of 	the 	exclusive
representative 	organization. 	Charging 	Party's 	remedy, 	if 	there
is 	a 	DFR 	breach 	as 	to 	him, 	lies 	in 	the 	courts 	(Lerma 	v.
D'Arrigo 	Brothers 	Co. 	(1978) 	77 	Cal.App.3d 	836, 	939-942; 	Logan
v. 	Southern 	Calif. 	Rapid 	Transit 	District 	(1982) 	136 	Cal.App.3d
116, 	128; 	Griffin 	v. 	United 	Transportation 	Union 	(1987) 	190
Cal.App.3d 	1359, 	1361-1365).
In 	Norgard 	v. 	California 	State 	Employees 	Association 	(1984)
PERB 	No. 	451-S, 	although 	this 	Board 	recognized 	that 	the
5see 	EERA's 	DFR 	section: 	Government 	Code 	section 	3544.9.
6see 	HEERA's 	DFR 	section: 	Government 	Code 	section 	3578.
17

18
Legislature
	had
	omitted
	a
	DFR
	from
	SEERA7 ,
	it
	went
	on
	to
consider
	this
	omission
	as
	not 	being
	reflective
	of
	a
	legislative
intent
	to
	deny 	employees
	the
	right
	to
	a 	DFR.
	This
	Board
	then
effectively
	inserted
	a
	DFR
	into
	SEERA.
	But
	this
	Board
	may
	not
by
	administrative
	interpretation 	insert
	into
	a
	statute 	that
which
	the 	Legislature
	has
	omittea
8
{Regents
	of
	the
	University
of
	California
	v.
	PERB 	&	
Laborers'
	Local
	1276,
	LIUNA,
	AFL-CIO
{1985)
	168
	Cal.App.3d
	937,
	942-945; 	Cadiz
	v.
	Agricultural
	Labor
Relations
	Board
	{1979)
	92
	Cal.App.3d
	365, 	372,
	hrg.
	den.
Vallerga
	v.
	Dept.
	of 	Alcoholic
	Beverage
	Control
	{1959)
	53
Cal.2d
	313, 	318;
	Estate
	of
	McDill
	{1975)
	14
	Cal.3d
	831,
	838;
Bailey
	v.
	Superior
	Court
	{1977)
	19
	Cal.3d
	970, 	977-978;
Westminster
	School
	District
	v. 	Superior
	Court	
&	
Westminster
Teachers
	Assn.
	{1972)
	28
	Cal.App.3d 	120, 	128-120,
	hrg.den.;
Code
	of
	Civil
	Procedure
	sec.
	1858).
Finally,
	while
	state
	employees
	who
	are
	members
	of 	the
exclusive 	representative 	organization
	have
	a
	remedy
	for
	DFR
breaches 	only
	in 	the 	courts
	and
	not 	before
	this
	Board,
	it
	is
appropriate 	to 	distinguish
	those 	possible
	situations
	where 	an
exclusive 	representative
	does
	not
	fairly
	represent
	a
	member
	M._
7
The
	Norgard
	decision
	recognized 	the 	omission 	of 	the
	DFR
as 	between
	SEERA
	and
	EERA,
	but
	it
	did 	not
	identify
	or 	analyze
the 	presence 	of
	a 	DFR
	provision 	in
	HEERA
	or 	the
	1981
	addition
to
	SEERA
	providing 	for
	a 	DFR
	as
	to
	nonmember
	fair-share 	feepayors.
8
whether 	the 	omission
	was
	intentional, 	inadvertent, 	or
the 	result
	of
	political
	compromise, 	only 	the 	Legislature
	may
change 	the 	statute. 
18

19
a 	reprisal 	or 	discrimination 	because 	of 	the 	member's 	exercise
of 	his 	or 	her 	SEERA 	rights. 	In 	such 	a 	situation, 	the 	exclusive
representative 	would 	be 	in 	violation 	of 	SEERA 	section 	3519.5,
subdivision 	(b) 9 and 	the 	violation would 	thus 	be 	actionable
and 	remediable 	before 	this 	Board.
9see 	Fn. 	1, 	supra.
19

GEORGE DEUXMEJIAN, Governor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS
ANGELES REGIONAL OFFICE
3470
WILSHIRE BLVD.,
SUITE
100,
LOS ANGELES, CALIFORNIA
	90010
(213) 736-3127
October 	17,
	1985
Joab
	Pacillas
GEORGE DEUKMEJIAN, Go,,,,mo,
Re:
	LA-C0-17-S,
	Joab
	Pacillas
	v.
	California 	Correctional
Peace
	Officers
	Association
Dear
	Mr.
	Pacillas:
The
	above-referenced
	charge
	alleges
	that
	the
	California
Correctional
	Peace
	Officers 	Association
	(CCPOA)
	failed 	to
	fairly
represent
	you 	on 	a
	"reasonable
	accom.'1todation"
	request
	filed
	with
the
	State
	Personnel
	Board
	(SPB).
	This 	conduct
	is
	alleged	
to
violate
	Government
	Code
	section
	3519.S(d)
	of
	the 	State
Employer-Employee
	Relations
	Act
	(SEERA).
Facts
Joab
	Pacillas
	was 	employed
	as
	a
	Parole
	Agent
	II
	by 	the
	Department
of 	Corrections, 	Parole
	and 	Community
	Services 	Division. 	After
	a
two-year 	absence
	from
	work 	due
	to 	injuries
	in
	an
	automobile
accident
	he
	returned 	to
	work
	full-time
	on
	October
	13, 	1983.
On
	Sept~n~e~
	16, 	19d3,
	Lee
	~hism,
	CCF2l.
	Le~al
	Assistant,
	filed
	a
request
	with 	the
	SPB
	Affirmative 	Action 	for 	the 	Disabled
	Unit
	for
reasonable
	accommodation 	by
	the
	Department
	of 	Corrections 	in
assigning
	Pacillas
	to
	work 	he 	was
	able 	to 	perform.
	The 	SPB
	has
jurisdiction
	over 	such
	requests
	based
	upon
	section
	504
	of
	the
Federal
	1973
	Rehabilitation
	Act
	and
	California
	Government 	Code
section
	19230
	which
	declares
	the
	policy 	of 	the
	State 	to 	enable
disabled 	persons 	to
	be 	employed
	in
	state 	service.
On
	or 	about 	October 	4, 	1983,
	Pacillas 	called 	the
	CCPOA
	office
	and
was
	advised
	that
	Chism 	no
	longer
	worked
	for
	CCPOA
	and
	that
attorney 	Steve
	Yamaguchi 	would
	handle
	his 	case.
	On
	or 	about
December
	15,
	1983, 	Pacillas
	informed
	Yamaguchi
	that
	he 	was
	again
not
	working 	and 	on
	industrial 	disability
	leave
	status.

October 	17,
	1985LA-C0-17-S
Page
	2
On
	January
	9,
	1984,
	Yamaguchi
	received
	a
	letter
	from
	the
	SPB
stating
	they
	assumed
	the 	case
	was
	inactive
	because
	CCPOA
	had
	not
returned
	a
	telephone
	call
	made
	on
	September 	22, 	1983.
On
	January
	27,
	1984,
	Pacillas
	and
	Yamaguchi
	discussed 	the
	case.
Pacillas
	states
	that
	Yamaguchi
	attempted
	to 	disuade
	him
	from
pursuing
	the
	accommodation
	request
	and
	in 	acquiesing 	in
retirement 	instead.
	On
	or
	about 	February
	22,
	1984
	Pacillas
advised
	Yamaguchi
	that
	he 	wished
	CCPOA
	to
	continue 	pursuing
	the
request.
On
	March
	19,
	1984,
	Yamaguchi
	called
	the
	SPB
	regarding 	the
	status
of 	the
	request. 	Thereafter
	he
	received
	a
	letter
	dated
	March
	19,
1984
	stating 	that
	the
	SPB
	would
	not 	take
	action
	on
	the
	request
because
	the 	request 	did
	not
	indicate
	that 	Pacillas
	had
	first
requested
	and
	been
	denied 	reasonable
	accommodation
	at
	the
departmental
	level.
	On 	May
	4,
	1984 	Yamaguchi
	sent
	the
	SPB
	letter
to
	Pacillas
	and
	stated 	that
	he 	would
	refile
	the 	request 	with 	the
SPB
	since 	the
	Department
	of 	Corrections
	had
	in
	fact
	denied
reasonable
	accomodation.
On
	October
	5,
	1984
	CCPOA
	Chief
	Counsel
	Buddingh
	brought
	the 	case
to
	Yamaguchi's
	attention.
	He
	had
	not
	acted
	on
	the
	case.
Yamaguchi
	does
	not
	recall
	what
	he
	did
	at
	this
	time.
On
	December
	3,
	1984 	Buddingh
	received
	a
	letter
	from
	Pacillas
requesting
	a
	written
	update
	on
	the
	status
	of
	his 	case.
	On
December
	10,
	1984
	Buddingh 	wrote
	to
	Pacillas 	stating 	that
Yamaguchi 	would
	pursue 	the 	reasonable
	accommodation
	request
	with
the
	SPB
	si~ce
	~he
	request
	h~1
	been
	dented
	at
	the
	dep3rtment:al
level.
Pacillas 	retired
	on 	Decewber 	22, 	1984.
	On
	January
	28, 	1985
Buddingh
	wrote
	Pacillas 	that
	CCPOA
	would
	not
	further 	represent
him
	since
	he 	had
	retired.
	On
	February 	8,
	1985
	a
	second
	letter
from 	Buddingh
	to
	Pacillas
	advised
	him
	that 	the
	SPB
	remedy
	must
	be
pursued 	within
	one
	year
	and 	he
	should 	see
	a
	private 	attorney.
The
	negotiated
	agreement 	between
	the 	State 	of 	California
	and
	the
CCPOA
	covering 	Corrections
	Unit
	6
	makes 	no
	reference 	to 	requests
for 	reasonable
	accommodation
	of 	disabled
	employees.
	Article
	VI
entitled
	"Grievance 	and
	Arbitration
	Procedure"
	defines
"grievance" 	in 	section
	22
	as:
a.
	A
grievance
	is
	a
	dispute 	of 	one
	or
	more
employees 	or
	a
	dispute
	between
	CCPOA
	and
	the
State 	involving 	the 	interpretation,
application 	or 	enforcement 	of 	this 	agreement.

October 	17,
	1985
LA-C0-17-S
Page
	3
b.
	A
grievance
	is
	also	
a	
dispute
	of
	one
	or
more
	employees
	or
	a
	dispute
	between
	CCPOA
	and
the
	State
	involving
	a
	law,
	policy,
	or
procedure 	concerning
	employment
	related
matters
	not 	covered
	in
	this
	Agreement 	and
	not
under
	the
	jurisdiction
	of
	the
	State
	Personnel
Board.
	(Emphasis
	added.)
No
	Breach
	of
	Duty
	of
	Fair
	Representation
Mr.
	Pacillas
	alleged
	a
	violation
	of
	Government
	Code
	section
3519.S(d)
	which
	makes
	it
	an
	unfair
	labor
	practice
	for
	an 	employee
organization
	to
	fail
	to
	participate
	in 	the 	mediation 	procedure
prescribed
	by
	SEERA.
	The
	facts
	above
	do
	not
	relate
	to
	this
	type
of
	violation.
	However,
	they
	do
	concern
	an
	alleged
	failure
	to
fairly
	represent
	Pacillas,
	which
	would
	constitute
	a
	violation
	of
section
	3519.
5
(b).
Although
	SEERA
	does
	not 	contain
	a
	specific 	section 	specifying
	an
employee
	organization's
	duty
	of
	fair
	representation,
	such
	a
	auty
can
	be
	implied
	from
	the
	fact 	that
	SEERA
	provides 	for
	exclusive
representation.
	Government
	Code
	sections
	3513(b)
	and
	3515.5;
Norgard
	v.
	California 	State
	Employees
	Association
	(1984)
	PERB
Decision
	No.
	451-S.	
·
Although
	the 	Public
	Employment
	Relations
	Board
	(PERB)
	has
	ruled
that
	the 	duty 	of
	fair
	representation 	applies 	to 	the 	handling 	of
contractual
	grievances,
	none
	of
	its
	decisions
	concern 	the
employee
	organization's
	duty
	to
	pursue
	extra-contractual
:rE'-:n:-.edies.
	Sn·:.-1
	a
	quest.ion,
	however,
	ha~
	been
	co.1Side1·ed 	by 	~he
federal 	court 	system.l
lThe
	California
	Supreme
	Court
	in
	Firefighters
	Union
	v.
City 	of 	Vallejo
	(1974)
	12
	Cal.
	3d
	608,
	stated 	that
	where
	the
National
	Labor
	Relations
	Act 	does 	not
	contain 	specific
	wording
comparable
	to 	the
	state 	act,
	if
	the
	rationale 	that
	generated 	the
language
	"lies
	embedded
	in
	the
	federal 	precedent
	under
	the
	NLRA
11
and: 
The
	federal 	decisions 	effectively 	reflect
	the
same
	interests
	as 	those
	that
	promoted 	the
inclusion 	of 	the 	[language 	in 	the
	SEERA],
[then] 	federal 	precedent 	provides
	reliable 	if
analogous 	authority
	on
	the 	issue.

October 	17,
	1985
LA-CO-17-S
Page
	4
In
	Hawkins
	v.
	Babcock
	and
	Wilcox
	Co.
	(1980)
	(U.S.D.C.,
N.
	Ohio)
	105
	LRRM
	3438,	
a	
case 	involving
	an
	employee
who
	alleged
	that
	the
	union 	should
	have
	advised
	him
regarding
	administrative
	and
	judicial
	remedies
	to
alleged 	discriminatory
	conduct 	by	
his
	employees,
	the
District
	Court
	ruled:
The
	National
	Labor
	Relations
	Act,
	authorizing
unions
	to 	represent
	employees
	in 	the
	creation
and
	administration
	of
	collective
	bargaining
agreements 	with
	employers,
	together 	with 	the
correlative
	duty
	of
	fair
	representation,
however,
	is
	limited 	to
	the
	collective
bargaining 	process.
	Outside 	of 	the
employer-employee
	relationship,
	the
	union 	has
no
	authority
	to 	represent
	union
	members, 	nor
duty
	to
	advise 	those
	members
	of
	their
extra-contractual 	legal
	rights.
	The
	union's
duty 	of
	fair
	representation
	is 	restricted
	to
the 	context 	of 	the
	collective
	bargaining
agreement
	and
	does 	not 	extend
	to
	legal
remedies
	available
	outside 	the
	employment
context.
	See,
	International
	Bro.
	of
Electrical
	Wkrs.
	v.
	?oust,
	442
	U.S. 	42,
	101
LRRM
	2365
	(1979);
	Vaca
	v.
	Sipes,
	386
	U.S.
171,
	64
	LRR~
	2369
	(1967);
	Humphrey
	v. 	Moore,375
	U.S. 	335,
	55
	L?,.RM
	2031 	(1964}; 	Ford
	Motor
Co.
	v.
	Huffman,
	345
	U.S.
	330,
	31
	LRRM
	2548
(1952);
	Steele
	v.
	Louisville	
&	
Nashville
	R.
Co.,
	323
	U.S.
	192,	
~-~	
LRF11
	708 	(:'_94L;).
In 	the 	present 	case,
	the 	defendant 	union
	was
not
	under
	any
	duty
	to 	advise 	the
	plaintiff
	of
his 	legal 	rights
	outside 	the 	context 	of 	the
collective
	bargaining 	agreement.
	The 	Union
had
	no
	duty
	to 	act	
as	
an
	attorney
	at
	law
advising 	the
	plaintiff
	of
	all
	possible
alternatives
	of
	legal 	recourse.
	The
	Court
therefore 	finds 	that
	the 	defendant 	did 	not,
in 	fact,
	inadequately 	represent 	the
	plaintiff
by
	not 	advising 	the
	plaintiff
	of
	all
	possible
administrative
	and
	judicial
	remedies
available.
	The
	plaintiff's
	claim,
consequently, 	that
	the 	defendant
	B&W
	violated
29 	u.s.c.
	section
	151
	et 	seq., 	relating 	to
unfair 	labor 	practices
	because 	of 	the 	union's
alleged 	inadequate 	representation 	is
	hereby
dismissed. 	Hines 	v. 	Anchor 	Motor
	Freight,

October
	17,
	1985
LA-CO-17-S
•
Page
	5
424
	U.S.
	554,
	91
	LRRM
	2481
	(1976);
	Baldini
	v.
Local
	Union
	No.
	1095,
	581
	F.2d 	145,
	99
	LRRM
2535
	(7th
	Cir.
	1978);
	Smart
	v.
	Ellis
	Trucking
Co.,
	Inc.,
	580
	F.
2d
	215,
	99
	LRRM
	2059
	(6th
Cir.
	1978).
This 	quoted
	case
	does
	not
	state
	what
	duty
	an
	employee
organization
	might
	have
	in
	representing
	a 	member
	once
	it
voluntarily
	takes
	a
	case
	it
	has
	no
	duty
	to 	pursue.
	However,
	in
Archer
	v.
	Airline 	Pilots
	Association
	International
	(9th
	Cir.
1979)
	609
	F.2d
	934, 	102
	LRR.i.'1
	2827, 	2830,
	cert.
	den.
	(1980) 	446
U.S. 	953,
	104
	LRRM
	2303,
	the
	Court
	held
	that
	an
	estoppel
	argument
does
	not 	apply 	to
	create
	a
	fiduciary
	duty
	where 	none
	previously
existed.
	See
	also
	American
	Federation 	of
	Government
	Employees 	v.
DeGrio
	(1985,
	Ct.
	App.
	Fla.,
	3rd
	Dist.)
	116
	LRRM
	3298,
	3300-1,
There
	the
	Court 	held
	the
	union
	had
	no
	duty 	of
	fair
	representation
to
	a
	nonmember
	under
	federal
	labor
	policy
	when
	it
	voluntarily
represented
	him
	in
	a
	discharge 	case.
	However,
	the
	union
	did
	have
a
	duty
	to 	exercise
	due
	care 	in 	his 	representation
	under
	the
common
	law
	of 	negligence
	and
	the
	employee
	was
	allowed
	to 	seek
damages
	in
	a
	civil
	action.
Following
	the
	rationale
	of
	the
	above-quoted
	cases,
	Pacillas'
request 	for 	reasonable
	accommodation
	filed
	with
	the
	SPB
	must
	be
found
	to
	be
	outside
	of
	CCPOA's
	duty 	of
	fair
	representation.
Therefore, 	the 	charge
	does
	not
	state
	a
	prima
	facie
	case
	and 	must
be
	dismissed.
Opportunity 	to
	Amend
For
	the 	reasons
	stated
	above,
	the 	charge 	as
	presently 	written
does
	not
	state
	a
	prima
	facie 	violation
	of 	the
	EERA.
	If
	you
	feel
that
	there 	are
	facts
	or 	legal
	arguments 	which 	would
	require
different
	conclusion,
	an
	amended
	charge 	should
	be
	prepared
	on
	a
standard
	PERB
	unfair 	practice
	charge
	form
	clearly
	labeled
	First
Amended
	Charge, 	should 	contain
	all
	the
	allegations
	you
	wish
	to
make
	and 	be
	signed
	under
	penalty 	of
	perjury.
	The 	amended
	charge
must 	be
	served
	on
	the 	respondent
	and
	the
	original
	proof 	of
service
	must 	be
	filed
	with
	PERB.
	If
	I
	do
	not 	receive
	an 	amended
charge 	or 	withdrawal
	from 	you
	by
	October 	24, 	1985,
	I
	shall
dismiss 	your
	charge.
	If
	you 	have 	any
	questions 	regarding
	how
	to
proceed, 	please
	call
	me
	at
	(213)
	736-3127.
Sincerely,
Barbara 	T.
	Stuart
Regional 	Attorney
BTS :djm

GEORGE DEUKMEJIAN, Governor	STATE
OF
CALIFORNIA 	GEORGE DEl.lKMEJIAN,
Go~mo,
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS
ANGELES REGIONAL
OFFICE
3470
WILSHIRE BLVD.,
SUITE
1001
lOS
ANGHES,
CALIFORNIA
	90010
(213)
736-3127
October 	31,
	1985
Joab
	Pacillas
Re: 	LA-C0-17-S,
	Joab
	Pacillas
	v. 	California 	Correctional
Peace
	Officers
	Association
DISMISSAL 	OF 	UNFAIR 	PRACTICE
	CHARGE
Dear
	Mr.
	Pacillas:
The
	above-referenced
	charge
	alleges 	that
	the
	California
Correctional
	Peace
	Officers
	Association
	(CCPOA)
	failed 	to 	fairly
represent
	you
	on	
a	
"reasonable
	accommodation
11
request
	filed
	with
the
	State
	Personnel
	Board
	(SPB).
	This 	conduct
	is
	alleged
	to
violate
	Government
	Code
	section
	3519.S(d)
	of 	the
	State
Employer-Employee
	Relations
	Act
	(SEERA).
I
	indicated 	to
	you
	in 	0y	
attached
	letter
	dated
	October
	17,
	1985
that 	certain 	allegations
	contained 	in 	the 	charge 	did 	not
	state
	a
prima
	facie 	case.
	You
	were
	advised
	that
	if
	there
	were 	any
factual
	inaccuracies
	or
	additional 	facts
	which 	would
	correct
	the
aeficiencies
	explained 	in
	that
	letter,
	you
	should
	amend
	the
charge
	accordingly.
	You
	were
	further
	advised
	that
	unless
	you
amended
	these
	allegations 	to
	state
	a
	prima
	facie 	case, 	or
withdrew
	them
	prior 	to
	Octoher 	?4,
	1985, 	t~ey
	wou~.d
	be
dismissed.
	On
	October 	22, 	1985,
	we
	agreed
	upon
	an
	extension
until
	October 	25,
	1985
	for
	you
	to
	mail
	any 	amendment.
To
	date,
	I
	have 	not 	received
	either
	a
	request 	for 	withdrawal
	or
an 	amended
	charge
	and
	am
	therefore 	dismissing 	those
	allegations
which
	fail
	to 	state
	a
	prima
	facie
	based
	on
	the
	facts
	and
	reasons
contained 	in
	my
	October 	17,
	1985
	letter.
Pursuant 	to 	Public
	E~ployment
	Relations
	Board
	regulation 	section
32635
	(California 	Administrative
	Code,
	title
	8, 	part
	III),
	you
may
	appeal 	the 	refusal 	to 	issue
	a
	complaint 	(dismissal)
	to
	the
Board
	itself.

October
	31,
	1985
LA-CO-17-S
Page
	2
Right
	to
	Appeal 
by	
You 	may
	obtain
	a
	review
	of
	this
	dismissal
	of 	the
	charge
	filing
an
	appeal 	to 	the
	Board
	itself
	within
	twenty
	(20)
	calendar 	days
after
	service
	of
	this
	dismissal
	(section
	32635{a).
	To
	be
	timely
filed,
	the
	original
	and
	five
	(5)
	copies
	of
	such
	appeal
	must 	be
actually
	received	
by	
the
	Board
	itself
	before
	the
	close
	of
business
	(5:00 	p.m.)
	on
	November
	20, 	1985,
	or
	sent
	by
	telegraph
or
	certified
	United
	States
	mail
	postmarked
	not
	later
	than
November
	20, 	1985
	(section
	32135).
	The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
1031
	18th
	Street
Sacramento,
	CA
	95814
other
	If
	you
	file
	a
	timely 	appeal 	of 	the
	refusal,
	any
	party
	may
file
	with 	the
	Board 	an
	original
	and
	five
	{5)
	copies
	of
	a
statement 	in
	opposition 	within
	twenty
	{20)
	calendar
	days
following 	the 	date
	of
	service
	of 	the 	appeal
	(section
	32635{b)).
Service
be
	All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	"served"
parties
	to 	the 	proceeding,
	and
	a
	"proof
	of 	service''
	must
	upon
	all
accompany
	each
	copy
	of
	a
	document
	served
	upon
	a
	party
	or
	filed
the
	Board
	itself.
	{See
	section
	32140
	for 	the 	required
	with
contents
	and
	a
	sample 	form.)
	The
	documents
	will
	be
	considered
properly
	"serv~a"
	when
	p?ru~nally 	delivered
	or 	deposit~d
	in 	the
first-class
	mail 	postage 	paid
	and
	properly 	addressed.
Extension 	of
	Time
document
	A
	request 	for
	an
	extension 	of
	time
	in
	which
	to
	file
	a
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 	the 	position
	of 	each
	other 	party
regarding 	the 	extension
	and
	shall
	be 	accompanied 	by	
proof 	of
service 	of 	the 	request
	upon
	each 	party 	(section
	32132).

October
	31,
	1985
LA-C0-17-S
Page
	3
Final
	Date
limits,
	If	
no	
appeal
	is
	filed
	within
	the
	specified
	time
	the
dismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Very
	truly
	yours,
Dennis
	Sullivan
General
	Counsel
Barbara
	T.
	Stuart
Regional 	Attorney
cc:	
Berrit
	Jan
	Buddingh, 	Esq.
Attachment
BTS:djm