Service Employees International Union, Local 715 (Caviglia) (PERB 1116E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GARY 	CAVIGLIA,
Charging 	Party,
v.
SERVICE EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715, AFL-CIO,
Respondent.
)
)
) 	Case No. 	SF-CO-490
PERB Decision No. 	1116
September 	14, 	1995
)
)
)
)
)
)
)
Appearances; 	Gary Caviglia, 	on his 	own behalf; 	Van Bourg,
Weinberg, 	Roger & Rosenfeld by Vincent A. 	Harrington, 	Jr.,
Attorney, 	for Service Employees 	International Union, 	Local 	715,
AFL-CIO.
Before Carlyle, 	Johnson and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on an appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by Gary Caviglia
(Caviglia). 	In his 	charge, 	Caviglia alleged that the Service
Employees International Union, 	Local 	715, 	AFL-CIO 	(SEIU) 	violated
section 3543.6(c) 	of 	the Educational 	Employment 	Relations Act
(EERA) 	when it 	failed to respond to his 	complaints 	about
representation matters. 	The 	Board agent 	also 	considered whether
by 	this 	conduct 	SEIU breached 	its 	duty of 	fair 	representation 	to
Caviglia 	guaranteed by EERA section 	3544.9, 	thereby violating
section 	3543.6(b).l
lEERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 	3544.9 	states:

The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
EERA section 3543.6 	states, 	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.
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with a public 	school 	employer 	of
any of 	the employees 	of which it 	is 	the
exclusive 	representative.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	the unfair practice
charge, 	Caviglia's appeal and SEIU's 	response thereto. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision 	of 	the 	Board 	itself.
The unfair practice charge in Case No. 	SF-CO-49 0 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Johnson 	joined 	in 	this 	Decision.
22

- -
STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
July 13, 	1995
Gary 	Caviglia
Re: 	DISMISSAL 	OF UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Gary Caviglia v. 	Service 	Employees 	International 	Union.
Local 715. 	AFL-CIO
Unfair Practice 	Charge No. 	SF-CO-490
Dear Mr. 	Caviglia:
The above-referenced unfair practice 	charge, 	filed on April 	24,
1995, 	alleges 	that 	the Service Employees 	International Union,
Local 	715, 	AFL-CIO 	(SEIU) 	failed to respond to a 	complaint 	letter
filed by Gary 	Caviglia 	regarding 	improper 	representation 	in 	a
dispute with 	the Morgan Hill 	Unified School 	District 	(District).
This 	conduct 	is 	alleged 	to violate Government 	Code 	section
3543.6(c) 	of 	the Educational 	Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 27, 	1995,
that 	the 	above-referenced 	charge 	did not 	state 	a 	prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended 	the
charge 	to 	state 	a prima 	facie 	case or withdrew it 	prior 	to July
11, 	1995, 	the charge would be dismissed.
On July 10, 	1995, 	Caviglia submitted a letter containing
corrections 	to the 	statement 	of 	facts 	set 	forth 	in the June 	27,
1995 	letter.
Caviglia 	indicates 	that 	the December 19, 	1994 	letter from the
District was 	not 	a notice 	that 	it 	intended to proceed with
terminating his 	employment. 	Rather it was 	a notice 	that 	the
District 	intended 	to 	recoup 	its 	alleged 	overpayment 	resulting
from his 	leaving work early. 	Nevertheless, 	Caviglia was 	aware 	of
the District's 	intent 	to 	terminate. 	Caviglia's 	decision not 	to
contest 	the 	termination 	occurred 	after 	SEIU advised him against
an appeal.
Caviglia alleges 	that 	SEIU's 	failure 	to 	represent 	him was 	evident
from 	its 	failure 	to 	give 	him advice with 	respect 	to 	the 	December
19 	letter or explain to him what 	its 	contents were. 	The
telephone 	receptionist 	for 	SEIU 	seemed 	irritated 	that 	he 	would
want 	to 	speak 	to a 	representative about 	the 	letter before
---'./

Dismissal 	Letter
SF-CO-490
July 13, 	1995
Page 2
receiving 	it. 	She advised him to open the 	letter and, 	if 	it were
important, 	notify SEIU. 	In addition, 	when his 	representative,
Kazi 	Fried, 	was 	out of 	the office on leave, 	he would be
transferred to 	another 	representative who was 	too busy 	to 	keep
the momentum going 	in his 	settlement 	discussions 	with 	the
District 	designed to avoid termination. 	He was 	not 	provided
updates 	on these discussions.
On January 11, 	1995, 	SEIU's 	executive board met and decided not
to challenge 	the District's demand that 	Caviglia resign, 	but 	to
negotiate a settlement 	instead. 	Fried put 	the 	SEIU chapter
president 	in charge of his 	case while 	she was 	gone 	for 	the next
four days, 	without notifying him of the change. 	On January 12,
1995, 	the District presented Caviglia with an ultimatum: 	that 	he
resign by January 13, 	or face 	termination. 	Caviglia 	tried
unsuccessfully 	on 	several 	occasions 	on January 	13 	to 	reach 	the
chapter president 	by telephone 	to obtain advice, 	but was 	forced
to 	leave messages. 	It 	is not 	clear how he knew to 	contact 	the
chapter president 	if 	he did not 	receive notice 	of 	the
substitution.
In any event, 	unable 	to reach the 	chapter president 	on January
13, 	Caviglia talked to 	two SEIU stewards who were unwilling 	to
advise him or be 	a witness 	to his 	discussion with the District.
He 	was 	concerned 	that prior 	tentative verbal 	agreements
surrounding the 	resignation, 	not 	committed to writing, 	would not
be 	honored by 	the District 	if 	he 	submitted 	the 	resignation
letter. 	He 	submitted the 	resignation letter under duress. 	The
subsequent 	letter, 	in which Caviglia sought 	to postpone the
effective date 	of 	resignation to January 31 	was 	submitted the
same day 	(January 13, 	not January 31), 	after he decided he should
pursue his 	objective 	in negotiations 	of 	a 	later resignation date
- - a n 	objective 	that 	he 	and 	SEIU had 	earlier agreed 	to pursue.
Caviglia 	alleges 	that 	throughout 	the 	course 	of 	the 	events 	he
promptly answered 	telephone messages 	left 	by SEIU but 	that 	SEIU
did not 	respond 	in kind.
Although 	Caviglia alleges 	new 	facts 	indicating 	a 	lack 	of
diligence 	on the part 	of 	SEIU in pursuing objectives 	on his
behalf 	in the negotiations 	for an alternative 	to 	termination,
these 	allegations 	are 	insufficient 	to establish that 	the 	SEIU
acted 	in an arbitrary, 	discriminatory 	or bad 	faith manner with
respect 	to 	its 	representation of him. 	The 	critical 	decision
(i.e., 	recommendation that he not appeal 	the termination) 	appears
to have been made 	on the basis 	of 	the 	improbability of 	prevailing
in the appeal, 	and therefore was properly based on an assessment
of 	the merits 	of 	the case. 	(Reed District Teachers Association.
CTA/NEA 	(Reyes) 	(1983) 	PERB Dec. 	No. 	332.)
(

Dismissal 	Letter
SF-CO-490
July 13, 	1995
Page 3
While 	it 	can 	certainly be 	argued 	that 	Caviglia would not 	have
faced 	the 	District's 	ultimatum to 	resign 	had SEIU been more
diligent 	in reaching closure 	on a settlement, 	there 	is 	no
guarantee 	that 	such 	added diligence 	would 	have 	altered 	the
outcome. 	Nor 	is 	that 	the appropriate 	test 	for a breach of 	the
duty of 	fair representation. 	The 	result 	in this 	case 	that was
unacceptable 	to 	Caviglia 	could 	also have 	stemmed 	from the
apparent 	lack of 	leverage 	that 	he 	and SEIU had with 	respect 	to
the District's 	alleged basis 	for 	terminating him, 	or simply 	the
District's unwillingness 	to compromise. 	Accordingly, 	the 	charge
does 	not 	establish a prima 	facie violation of 	the 	EERA. 	(United
Teachers of Los Angeles 	(Collins) 	(1983) 	PERB Dec. 	No. 	258.)
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	stated above and those 	contained 	in my June 	27, 	1995
letter.
Right 	to Appeal
Pursuant 	to Public Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and five 	copies
of 	such appeal 	must 	be 	actually 	received by the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express 	United States mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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 of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
( 	(

Dismissal 	Letter
SF-CO-490
July 13, 	1995
Page 	4
delivered or deposited in 	the 	first-class mail, 	postage paid and
properly 	addressed.
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 of Regs., 	tit. 	8, 	sec. 	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,
ROBERT 	THOMPSON
Deputy General 	Counsel
By	By
DONN 	GINOZA
Regional 	Attorney
Attachment
cc: 	Vincent A. 	Harrington, 	Jr.
(

- --
STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
June 27, 	1995
Gary 	Caviglia
Re: 	WARNING LETTER
Gary Caviglia v. 	Service 	Employees 	International 	Union,
Local 715. 	AFL-CIO
Unfair Practice Charge No. 	SF-CO-490
Dear Mr. 	Caviglia:
The above-referenced unfair practice 	charge, 	filed on April, 	24,
1995, 	alleges 	that 	the Service 	Employees 	International 	Union,
Local 	715, 	AFL-CIO 	(SEIU) 	failed to respond to a 	complaint 	letter
filed by Gary Caviglia 	regarding 	improper 	representation 	in a
dispute with 	the Morgan Hill 	Unified School 	District 	(District).
This 	conduct 	is 	alleged 	to violate Government 	Code 	section
3543.6(c) 	of the Educational 	Employment Relations Act 	(EERA).
Investigation of 	the 	charge 	revealed 	the 	following. 	Caviglia was
employed as 	a 	custodian by 	the 	District 	prior 	to 	his 	resignation
in January 	1995. 	In a memorandum to Caviglia dated December 	6,
1994, 	the District 	accused Caviglia of 	leaving one hour and
twenty minutes 	early every night 	for 	four months. 	The District
also demanded return of 	the alleged overpayment, 	calculated at
$11.37 per hour 	for 	77 hours. 	Caviglia was 	represented 	in a
"Skelly" 	hearing by SEIU 	steward Jesus 	Estrada 	on December 	12,
1994. 	By letter dated December 19, 	1994, 	the District 	informed
Caviglia 	that 	it 	would proceed with 	its 	intended 	termination,
effective January 13, 	1995. 	SEIU voted not 	to support 	Caviglia
in an appeal 	of 	the 	termination.
According 	to SEIU, 	Caviglia 	indicated that 	he would not 	contest
the 	termination but 	wished 	to 	negotiate 	a 	substitute 	result.
SEIU negotiated 	an agreement 	whereby 	the 	resignation 	date 	was
extended to January 20, 	1995, 	Caviglia would receive unemployment
benefits, 	vacation pay and wages 	from January 1 	through January
20, 	1995. 	Caviglia alleges 	that 	telephone calls 	and questions
were 	rarely answered during 	the 	first 	two weeks 	of 	January 	1995
during 	the 	settlement negotiations. 	He 	further alleges 	that 	SEIU
failed 	to 	support 	him when he 	was 	reluctant 	to 	sign 	for a
certified letter 	from the District, 	apparently, 	announcing 	its
decision to proceed with 	the 	termination. 	He also 	claims 	that
SEIU was 	not 	diligent 	in pursuing his 	desired 	terms 	of
settlement, 	lost momentum in the negotiations, 	and failed to
achieve 	a 	satisfactory 	result.
I

Warning 	Letter
SF-CO-490
June 27, 	1995
Page 	2
SEIU provided 	to 	the 	undersigned a 	copy 	of 	a handwritten
memorandum purporting 	to 	be 	from Caviglia 	to 	Lee 	Cunningham,
Director of 	Personnel, 	file stamped on January 13, 	1995, 	stating
that his 	resignation date would be January 20, 	1995. 	In a
subsequent memorandum, 	Caviglia wrote 	to 	Cunningham the
following: 	"I was 	in error on my resignation date. 	It 	should
read 	. 	. 	'Effective 31 January 1995.'" 	This memorandum was 	left
on Cunningham's desk on January 31, 	1995.
In response 	to 	this 	change, 	the District 	took the position that
it 	was 	excused 	from performance 	of 	the 	initial 	settlement
agreement based 	on Caviglia's 	breach 	of 	its 	terms 	and
consequently withheld 	$843.92 	(the 	amount 	it 	contended was 	owed
by 	Caviglia) 	from Caviglia's 	final 	paycheck.
SEIU 	representative 	Kazi 	Fried 	spoke 	to 	Cunningham on 	February 	3,
1995 	regarding the matter. 	According 	to SEIU, 	the District
proposed 	to 	restore 	the 	deducted amount 	if 	Caviglia would agree
to a 	repayment plan. 	SEIU refused to accept 	this 	offer and
insisted on 	the 	original 	terms 	of 	the agreement. 	SEIU 	claims
that 	it 	left 	a 	telephone message 	for 	Caviglia 	conveying 	this
settlement 	offer but 	did 	not 	receive 	any 	return 	communication
until 	the complaint 	letter of March 25, 	1995, 	described below.
By letter dated March 25, 	1995, 	Caviglia 	complained 	to SEIU
President Marlene 	Smith 	that 	the District 	had yet 	to 	repay 	the
$843.92 	and had 	incorrectly 	calculated his 	pay 	for 	the month of
January 	1995. 	The 	figure was 	short between $126.70 	and 	$190.52.
According 	to 	Caviglia, 	Fried 	told him that 	Cunningham had
admitted 	that 	deduction of 	the 	$843.92 	was 	illegal 	and 	that 	the
money would be 	restored. 	Caviglia also 	contends 	that 	the 	accrued
vacation 	check 	issued 	to 	him was 	grossly miscalculated.
SEIU contends 	that 	it 	continues 	to attempt 	to achieve 	a voluntary
settlement 	from the District 	regarding 	these 	issues, 	but 	contends
that 	regardless 	of 	the 	outcome, 	it has not breached 	its 	duty of
fair 	representation.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state a prima 	facie violation of 	the EERA for 	the
reasons 	that 	follow.
Caviglia 	lacks 	standing 	to allege 	that 	the 	SEIU has 	failed 	to
meet 	and negotiate 	in good 	faith with 	the 	District 	in violation
of 	section 3543.6(c). 	In Oxnard Education Association 	(Gorcey)
(1988) 	PERB Dec. 	No. 	664, 	the Public Employment Relations Board
(PERB) 	held that a 	charge 	of 	a 	refusal 	by the 	exclusive
representative 	to bargain 	in good 	faith must be brought 	by 	the
employer, 	and cannot be brought by an 	individual 	employee 	since
(

Warning 	Letter
SF-CO-490
June 27, 	1995
Page 3
the employee 	organization's 	duty to bargain is 	owed to 	the
employer, 	not 	to the 	individual unit employees. 	PERB went 	on to
note 	that 	the 	employee 	could address 	the 	dispute 	through 	a 	claim
of 	a breach of 	the 	duty of 	fair representation.
In 	order 	to 	state 	a prima 	facie violation 	regarding a breach of
the 	duty 	of 	fair 	representation with 	respect 	to 	grievance
representation, 	which appears 	to be in issue here, 	the Charging
Party must 	show that 	SEIU 	refused 	to process 	a meritorious
grievance 	for arbitrary, 	discriminatory, 	or bad faith reasons.
In United Teachers 	of Los Angeles 	(Collins) 	(1983) 	PERB Dec.
No. 258), 	the PERB stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling 	a grievance 	does 	not
constitute a breach of 	the union's duty.
[Citations.]
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
arbitrarily 	ignore 	a meritorious 	grievance 	or
process 	a grievance 	in a perfunctory 	fashion.
A union 	is 	also 	not 	required 	to process 	an
employee's 	grievance 	if 	the chances 	for
success 	are minimal.
It 	has 	also been stated 	that 	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 	from which 	it becomes
apparent 	how or 	in what manner 	the 	exclusive
representative's 	action 	or 	inaction was
without 	a 	rational 	basis 	or devoid of 	honest
judgment. 	(Emphasis added.)" 	(Reed District
Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Dec. No. 	332, 	p. 	9, 	citing Rockli	- - 	n
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Dec. No. 	124.)
The 	charge 	fails 	to allege 	sufficient 	facts 	from which 	it 	can be
concluded 	that 	a prima 	facie 	violation 	occurred under 	the
standards 	articulated above. 	There 	is 	insufficient 	evidence 	to
demonstrate 	that 	SEIU failed 	to pursue a meritorious 	grievance,
or if 	it did, 	that 	it did so for arbitrary, 	discriminatory, 	or
bad 	faith 	reasons.
(

Warning 	Letter
SF-CO-490
June 27, 	1995
Page 	4
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 	which would 	correct 	the
deficiencies explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty 	of 	perjury by 	the 	charging party. 	The
amended 	charge must 	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 before July 11. 	1995. 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN 	GINOZA
Regional 	Attorney
I	
l
\