American Federation of State, County and Municipal Employees (Dehler) * * * OVERRULED IN PART by Mount Diablo Education Association (Scott) (2010) PERB Decision No. 2127 (PERB 1152H)

OVERRULED IN PART by Mount Diablo Education
Association (Scott) (2010) PERB Decision No. 2127
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BONNIE DEHLER,
Charging Party,
v.
AMERICAN 	FEDERATION 	OF 	STATE,
COUNTY AND MUNICIPAL 	EMPLOYEES,
INTERNATIONAL, 	COUNCIL 	57,
Respondent.
)
)
) 	Case No. 	SF-CO-45-H
PERB Decision No. 1152-H
May 29, 1996
)
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)
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Appearance: 	Bonnie Dehler, 	on her 	own behalf.
Before 	Caffrey, Chairman; 	Garcia and Johnson, Members.
DECISION
CAFFREY, Chairman: 	This 	case is before 	the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by Bonnie
Dehler 	(Dehler) 	of 	a Board agent's dismissal of her unfair
practice 	charge. 	In her 	charge, Dehler alleged 	that 	the American
Federation of State, County and Municipal 	Employees,
International, Council 	57 	(AFSCME) 	breached 	the duty 	of 	fair
representation mandated by section 3578 of 	the Higher Education
Employer- Employee Relations Act 	(HEERA,1 and 	thereby violated
1HEERA is codified at Government 	Code section 3560 et seq.
Unless otherwise 	indicated, 	all 	statutory references herein are
to the Government 	Code. 	Section 3578 states:
The employee organization 	recognized 	or
certified 	as the exclusive representative
shall represent 	all employees in the unit,
fairly and impartially. 	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.

section
	3571.l(b)
	and
	(e)
	of
	the
	HEERA,
	in
	its
	handling 	of
	a
grievance
	Dehler
	filed
	against
	her
	employer,
	the 	University
	of
California
	(University).
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case,
including 	the
	original
	and
	amended
	unfair practice
	charge,
	the
warning 	and
	dismissal
	letters,
	and
	Dehler's
	appeal.
	The
	Board
hereby
	reverses 	the
	Board
	agent's
	dismissal
	and
	remands
	the
	case
to 	the
	PERB
	General
	Counsel's
	office 	for
	issuance 	of
	a
	complaint
in
	accordance 	with
	the
	following
	discussion.
FACTUAL
	SUMMARY
Dehler
	is
	employed by
	the 	University
	as
	an
	administrative
assistant 	at
	the 	University 	of
	California 	Press.
	On May
	10,
1993,
	Dehler
	filed
	a
	grievance
	alleging
	fraud
	and
	mismanagement
of
	her payroll
	and
	personnel 	records
	by
	the 	University.
Dehler's
	grievance
	was
	handled
	by
	a
	succession 	of
	AFSCME
representatives.
	Robert
	Dietrich 	represented
	Dehler
	until
September 	1994,
	at
	which
	point
	Dehler
	alleges 	that
	he 	abandoned
the 	grievance 	without 	informing
	her.
	Dehler 	complained
	to
	AFSCME
Section
	3571.1
	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 	coerceemployees 	because 	of
	their 	exercise 	of
	rightsguaranteed by
	this
	chapter.
(e)
	Fail 	to 	represent 	fairly
	and
	impartially 	all
	theemployees
	in 	the 	unit 	for
	which
	it
	is 	the 	exclusive
representative. 
2

and
	requested
	assignment
	of
	a
	new
	representative.
	After
	a
subsequent
	request
	in
	October
	1994,
	Dehler's
	grievance
	was
assigned
	by
AFSCME
	to
	Howard
	Eberhart
	(Eberhart). 	In
	February
1995,
	Eberhart
	informed
	the 	University
	that
	George 	Popyack
(Popyack) 	would
	be
	handling
	Dehler's
	grievance.
On May
	2,
	1994,
	at
	Step
	1
	of 	the 	grievance 	procedure,
	the
University
	proposed
	a
	settlement
	of
	Dehler's
	grievance.
	After
receiving
	no
	response
	to
	the 	settlement
	offer,
	on
	February
	28,
1995,
	the 	University
	wrote
	to
	Eberhart
	indicating
	that
	the
settlement
	offer
	would
	be 	withdrawn
	after
March
	10, 	1995.
	The
University 	also 	indicated
	that
	if
	the 	settlement
	was
	not
accepted,
	AFSCME
	could proceed with 	the
	grievance
	by
	scheduling
	a
Step
	2
	meeting
	by
March
	27, 	1995.
On
	March
	22, 	1995,
	University 	representative
	Patricia
Donnelly
	(Donnelly)
	called
AFSCME
	and 	spoke
	to
	Popyack's
assistant,
	reminding
	the
	union 	of 	the
	March 	27
	deadline
	for
scheduling
	a
	Step
	2
	grievance meeting.
On
	March
	30, 	1995, 	Donnelly wrote
	to
	Popyack 	and
	described
her 	contacts 	with
	AFSCME
	by
	both
	letter
	and
	telephone
	in
	which
she 	reminded
	AFSCME
	of 	the 	deadline 	for
	proceeding with Dehler's
grievance. 	Donnelly's
	letter
	notes
	that
	Popyack's
	assistant
	had
assured 	her during 	the
	March
	22
	telephone 	conversation
	that
AFSCME
	would
	get
	back
	to 	her
	by
	the
	March 	27
	deadline 	for
scheduling
	a
	Step
	2
	grievance meeting. 	Since 	Donnelly
	failed 	to
receive 	any 	contact
	from
	AFSCME
	by
	that 	date, 	she
	indicates 	in
3

the
	March
	30
	letter
	that
	the 	University
	considered
	Dehler's
grievance
	to
	be
	resolved
	based
	on
	the
	Step
	1
	response.
Dehler
	learned
	of
	these
	developments
	when
	she
	received
	a
copy
	of 	Donnelly's
	March
	30
	letter
	on
	April
	11,
	1995.
	On
	that
date,
	Dehler
	wrote
	to
	Donnelly
	objecting 	to
	the 	closure 	of
	her
grievance.
	On
April
	19,
	1995,
	Dehler
	wrote
	to
	Eberhart
complaining 	about
	his
	handling 	of 	her 	grievance.
	On
April
	21,
1995,
	Dehler wrote
	to
	Popyack
	complaining 	about
	AFSCME's
representation
	and
	requesting
	copies 	of
	all
	correspondence
relating
	to
	the 	grievance.
	Dehler
	received
	no
	response
	to 	her
letters
	to
	Eberhart
	and
	Popyack.
Dehler
	filed
	her
	unfair practice
	charge
	against
	AFSCME
	on
October
	11, 	1995, 	and an
	amended
	charge
	on
	January
	8, 	1996,
alleging 	that
	AFSCME
	had
	not
	fairly
	represented 	her
	beginning
	in
September
	1994, 	had
	unlawfully
	abandoned
	her 	grievance 	without
informing
	her,
	and
	that
	AFSCME's
	actions
	and
	inactions
	reflected
its
	collusion
	with 	the 	University
	and
	failure 	in
	its
	duty 	of
	fair
representation.
	A
Board
	agent 	dismissed 	Dehler's
	charge
	on
January
	12, 	1996,
	based
	on
	its
	untimeliness
	and
	failure 	to
	state
a
	prima
	facie
	case 	of
	a
	violation
	by
	AFSCME
	of
	its
	duty 	of
	fair
representation.
	Dehler
	filed
	an 	appeal 	of 	the 	dismissal
	on
February
	6, 	1996,
	in
	which
	she
	reiterates
	her allegations 	against
AFSCME,
	and
	asserts 	that
	AFSCME's
	actions
	were 	"wantonly
negligent
	and
	constitute
	bad
	faith
	and
	a
	breach 	of 	the 	union's
duty 	to 	provide
	fair 	representation."
	AFSCME
	filed
	no
	response
to 	Dehler's 	appeal. 
4

DISCUSSION
HEERA
	section
	3563.2(a)
2
bars
	PERB
	from
	issuing
	a
	complaint
relative
	to 	alleged
	unlawful
	conduct
	which
	occurred
more
	than
	six
months
	prior
	to
	the
	filing
	of 	the
	unfair 	practice
	charge.
	The
limitations
	period
	begins
	to
	run
	once
	the
	charging
	party
	knows,
or
	should
	have
	known,
	of 	the
	alleged
	unlawful 	conduct.
(Healdsburg
	Union 	High
	School
	District
	(1984)
	PERB
	Decision
No.
	467.) 	Since
	Dehler's
	charge
	was
	filed
	on
	October 11,
	1995,
the
	allegations 	relating
	to
	AFSCME's
	handling 	of
	Dehler's
grievance
	which
	she
	knew
	about,
	or
	should
	have
	known
	about,
	prior
to
	April
	11, 	1995,
	are
	untimely
	and must
	be
	dismissed.
The
	allegation 	that
	AFSCME
	violated
	its
	duty 	of
	fair
representation
	by
	its
	conduct
	relating
	to 	the
	failure 	to
	meet
	the
University's
	deadline 	for
	scheduling
	a
	Step
	2
	meeting
	on
	Dehler's
grievance
	is
	timely, 	since
	Dehler
	learned 	of
	AFSCME's
	actions
	on
April
	11, 	1995,
	when
	she
	received
	a
	copy
	of 	Donnelly's
	letter
	to
Popyack.
Dehler
	alleges 	that
	AFSCME's
	actions
	and
	inactions
	denied
her 	the
	right 	to
	fair
	representation
	guaranteed
	by
	HEERA
	section
3578,
	in violation
	of 	sections 	3571.l(b)
	and
	(e).
	The
	duty 	of
2HEERA
	section
	3563.2
	states, 	in pertinent 	part:
(a) 	Any
	employee, 	employee
	organization, 	or
employer
	shall
	have
	the 	right 	to
	file
	an
unfair practice
	charge, 	except
	that 	the 	board
shall 	not 	issue
	a
	complaint
	in 	respect 	of
	any
charge 	based upon an
	alleged unfair 	practiceoccurring
	more
	than
	six
months
	prior 	to 	the
filing 	of 	the 	charge.
5

fair
	representation
	imposed 	on
	an
	exclusive
	representative
extends
	to
	grievance 	handling.
	(Fremont
	Unified
	School
	District
•reachers
	Association,
	CTA/NEA
	(King) 	(1980)
	PERB
	Decision
No.
	125;
	United 	Teachers
	of
	Los
	Angeles
	(Collins)
	(1982)
	PERB
Decision
	No.
	258
	(UTLA)
.)
	In 	order
	to
	state
	a
	prima
	facie
violation
	of
	this
	duty,
	Dehler
must
	show
	that
	AFSCME's
	conduct
was
	arbitrary,
	discriminatory 	or 	in
	bad
	faith.
	In
	UTLA,
	the
Board
	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.
	[Citations.]
In 	order 	to
	state
	a
	prima
	facie
	case 	of
	arbitrary
	conduct
violating
	the 	duty 	of
	fair
	representation,
	a
	charging
	party:
[M]ust
	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 	honestjudgment. 	[Emphasis 	added; 	Rocklin 	Teachers
Professional 	Association
	(Romero) 	(1980)
	PERB
Decision
	No.
	124.]
In
	numerous
	cases, 	the
	Board 	has
	reiterated 	that
	a
	union's
honest, 	reasonable 	determination 	not 	to 	pursue
	a
	grievance 	does
not 	breach
	its
	duty 	of
	fair 	representation, 	regardless 	of 	the
merits 	of 	the 	grievance. 	(California 	State
	Employees'
6

Association
	(Calloway)
	(1985)
	PERB
	Decision
	No.
	497-H;
	American
Federation 	of
	State.
	County and
	Municipal
	Employees,
	Local
	2620
(Moore)
	(1988)
	PERB
	Decision
	No.
	683-S.)
	The
	Board
	has
	also
consistently
	held
	that
	case 	handling
	errors
	and
	incidents
	of
simple
	negligence
	in
	a
	union's 	prosecution 	of
	a
	grievance
	are
insufficient
	to
	demonstrate
	a
	breach 	of 	the
	duty 	of
	fair
representation.
	(American
	Federation 	of
	State,
	County
	and
Municipal
	Employees.
	Council
	10
	(Olson)
	(1988)
	PERB
	Decision
No.
	682-H.)
However,
	the
	Board
	has
	also
	held
	that
	the 	exclusive
representative
	has 	an
	obligation 	to 	explain
	why
	it
	has 	chosen
	not
to
	process
	an
	employee
	grievance.
	(Oakland
	Education
Association,
	CTA/NEA
	(Mingo)
	(1984)
	PERB
	Decision
	No.
	447.)
Furthermore,
	~n
	San
	Francisco
	Classroom
Teachers
	Association.
CTA/NEA
	(Bramell)
	(1984)
	PERB
	Decision
	No.
	430 	(San
	Francisco
Classroom Teachers
	Association), 	the
	Board 	found
	that
	the
cumulative
	actions
	of 	the 	exclusive 	representative,
	considered
	in
their 	totality,
	were
	sufficient 	to 	constitute
	a
	prima
	facie
showing
	of
	an
	arbitrary 	failure 	to
	fairly
	represent 	the
	employee.
In
	that
	case, 	the 	exclusive 	representative
	took
	no
	action 	to
pursue 	an 	employee
	grievance 	to 	the
	second
	level
	of 	the 	grievance
procedure, 	then advised 	the
	employee
	that
	it
	would
	seek an
extension 	of 	time
	to 	allow
	it
	to
	do
	so, 	and
	ultimately 	failed 	to
do
	so without 	explanation 	to 	the
	employee. 	The 	Board,
considering 	the 	overall 	pattern 	of 	union 	actions,
	any one
	of
which would not 	breach
	its
	duty 	of
	fair 	representation, 	reversed
7

a
	Board
	agent's
	dismissal
	of 	the
	case
	and
	remanded
	it
	for
	further
proceedings
	to
	resolve 	the
	factual 	disputes
	concerning
	the
union's 	representation
	of
	the
	employee.
Similar 	to
	San
	Francisco
	Classroom
Teachers
	Association,
this
	case
	presents
	a
	pattern
	of
	conduct 	by
	AFSCME
	which,
considered
	in
	its
	entirety,
	demonstrates
	a
	prima
	facie
	showing
	of
an
	arbitrary 	failure
	to
	fairly
	represent
	Dehler.
	AFSCME
	was
contacted
	by
	the 	University
	by
	letter
	and by
	telephone 	concerning
the
	withdrawal
	of
	the
	proposed
	settlement
	of
	Dehler's
	grievance,
and
	the
	need
	to
	schedule
	a
	Step
	2
	grievance
	meeting
	no
	later
	than
March
	27, 	1995.
	Donnelly
	reiterated 	that
	deadline
	in
	a
conversation with 	Popyack's
	assistant,
	and
	was
	assured
	that
AFSCME
	would
	contact 	her
	by
	that
	date.
	However, 	no
	contact
	was
made
	and
	the 	University
	considered
	Dehler's
	grievance 	resolved
based
	on
	the 	Step
	1
	response.
	AFSCME
	did 	not
	notify
	Dehler
	or
offer
	her
	any
	explanation 	for
	its
	actions.
	Dehler
	became
	aware
of 	those
	developments
	only 	through
	receipt
	of
	a
	copy
	of
Donnelly's
	March 	30
	letter
	to
	Popyack.
	Dehler's
	subsequent
attempts
	to
	address 	her
	concerns 	with
	AFSCME's
	representation 	of
her
	were
	not 	responded
	to
	by
	AFSCME.
AFSCME's
	failure 	to
	respond
	to 	the 	University's 	inquiry
after
	indicating 	that
	it
	would 	do
	so,
	its
	failure 	to
	schedule
	a
Step
	2
	grievance meeting,
	its
	failure 	to 	notify
	Dehler
	or 	explain
AFSCME's
	actions 	to 	her,
	and
	its
	failure 	to
	respond
	to 	her
specific 	written 	inquiries, 	present
	a
	pattern 	demonstrating
	a
prima 	facie
	showing 	of 	an
	arbitrary 	failure
	by
	AFSCME
	to 	fairly
8

represent
	Dehler. 	Accordingly,
	the
	Board
	concludes
	that
	this
case 	should
	be
	remanded
	to
	the
	General
	Counsel's
	office 	for
further
	proceedings.
ORDER
The
	Board
	reverses 	the
	Board
	agent's
	dismissal
	in
	Case
No.
	SF-C0-45-H
	and
	REMANDS
	the 	case
	to
	the
	PERB
	General
	Counsel's
office
	for
	issuance 	of
	a
	complaint
	in
	accordance
	with
	the
foregoing
	discussion.
Member
	Johnson
	joined
	in
	the 	Decision.
Member
	Garcia's
	concurrence 	begins
	on
	page 	10.
9

GARCIA,
	Member,
	concurring:
	I
	concur
	with 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	majority
	opinion
	to
reverse 	the 	dismissal
	because
	I
	agree
	that
	Bonnie
	Dehler
	(Dehler)
has
	stated
	a
	prima
	facie
	case 	of
	a
	violation
	of
	the
	duty
	of
	fair
representation
	by
	the
	American
	Federation 	of
	State,
	County 	and
Municipal
	Employees,
	International
	Council
	57
	(AFSCME).
	However,
I
	disagree
	with
	the 	majority 	opinion's
	statements
	that
"allegations
	relating
	to
	AFSCME's
	handling 	of
	Dehler's
	grievance
which
	she
	knew
	about,
	or
	should
	have
	known
	about,
	prior
	to
	April
11, 	1995,
	are
	untimely
	and must
	be
	dismissed."
This
	conclusion misses
	the 	point
	of
	San
	Francisco
	Classroom
Teachers
	Association,
	CTA/NEA
	(Bramell)
	(1984)
	PERB
	Decision
No.
	430 	(San
	Francisco
	Classroom Teachers
	Association). 	In
San
	Francisco
	Classroom Teachers
	Association, 	the
	Board
considered 	the 	cumulative
	actions
	of 	the 	exclusive 	representative
and
	ruled
	that
	a
	prima
	facie
	showing
	of
	arbitrary 	failure 	to
fairly
	represent 	the 	grievant
	had 	been
	made. 	The
	majority
	in
	the
case
	at
	bar 	correctly
	compares
	the
	facts
	here
	to 	that
	case:
AFSCME's
	failure
	to 	notify
	Dehler 	of 	the
	status
	of 	her grievance
and
	its
	failure 	to
	respond
	to 	her
	specific 	written 	requests 	for
information
	constitute
	an
	identifiable 	pattern
	of 	conduct
	similar
to 	that 	in
	San
	Francisco
	Classroom Teachers 	Association.
	The
letter
	received
	by Dehler
	on
	April
	11,
	1995 	was
	simply 	the
culmination 	of
	a
	long 	period 	of 	inaction
	by
	AFSCME.
To
	immunize
	AFSCME
	from
	liability
	for
	any 	events 	occurring
prior 	to 	April 	11, 	1995
	is 	to 	dilute 	the 	message 	of
	San
	Francisco
10

Classroom
	Teachers
	Association:
	without
	the
	allegations
	of
AFSCME's
	cumulative
	(in)actions,
	the
	grievant
	is
	left
	with
	a
single
	allegation 	that
	on
	a
	certain
	date
	she
	no
	longer
	had
	the
benefit
	of 	the 	grievance 	procedure.
	In
	this
	type 	of 	case, 	the
focus 	should
	be
	on
	the 	chain 	of 	events 	as 	the
	cumulative 	cause 	of
the
	alleged
	unfair 	practice,
	the 	exclusive
	representative's
pattern
	of
	conduct
	during 	the
	entire
	course 	of 	handling
	the
grievance,
	rather
	than 	the
	effect
	(i.e.,
	the 	date
	when
	Dehler
learned 	the
	result).
	The
	six-month
	statute
	of
	limitations
	is
jurisdictional,
	and
	should not
	be
	used
	to 	bar 	the
	allegations
necessary 	to
	prove 	an
	otherwise 	timely
	filed
	charge.
The
	majority
	recites
	PERB
	precedent
	that
	the
	statute
	of
limitations
	period
	begins
	to
	run
	once
	the
	charging
	party
	"knows,
or
	should
	have 	known,"
	of 	the 	alleged
	unlawful 	conduct
	(citing
Healdsburg
	Union 	High
	School
	District
	(1984)
	PERB
	Decision
No.
	467).
	Thus,
	we
	must
	identify
	the
	moment 	when
	Dehler
	knew
	or
should
	have
	known
	that
	AFSCME's
	inaction 	or
	method
	of 	handling
her 	grievance
	was
	intentional, 	negligent, 	capricious, 	or
arbitrary.
	In
	this
	case,
	that
	moment
	did 	not 	occur
	until
	she
realized
	the
	result
	of 	the 	inaction,
	not
	when 	some
	hypothetical,
and
	perhaps
	more
	perceptive 	person, 	could
	have
	realized
	something
was
	wrong.
	In
	such
	a
	situation
	the 	grievant
	cannot
	tell
	until
after
	the
	harm
	has 	occurred
	that 	his 	or 	her 	right 	to
representation
	has 	been
violated.
	That
	is
	the 	rationale 	for 	the
"cumulative violation" 	concept 	embodied
	in
	San
	Francisco
11

Classroom
	Teachers
	Association,
	and
	it
	is
	appropriate
	to
	apply
	it
here.
Another
	reason 	not
	to 	bar
	Dehler
	from
	including
	the
allegations
	prior
	to
	April
	11
	is
	that
	it
	is
	bad
	policy.
	When
	the
"conduct"
	in
	dispute 	consists
	of
	a
	lengthy period 	of
	silence
	and
inaction,
	the
	Board must 	be
	able 	to
	consider 	the
	entire
	course 	of
processing
	a
	particular
	grievance
	to 	discern
	whether
	a
	pattern
exists:
	otherwise
	grievants 	will
	be 	encouraged
	to
	file
	unfair
practice
	charges 	prematurely,
	perhaps
	even
	before 	the
	outcome
	of
their
	grievance
	is
	known,
	in
	order
	to 	protect
	their
	chain 	of
evidence
	and
	preserve
	their
	cause
	of
	action
	should 	they
	later
realize
	they
	were
	not
	fairly
	represented.
In 	conclusion, 	applying
	San
	Francisco
	Classroom
	Teachers
Association 	to
	the
	facts
	of
	this
	case,
	I
	would
	allow Dehler
	to
include
	all
	allegations
	dating
	back
	to 	the 	point
	at
	which
	she
first
	requested
	AFSCME
	to 	represent 	her
	in
	handling
	this 	specific
grievance, 	since 	the
	pattern
	of
	improper 	conduct 	could 	not
	be
identified
	without 	viewing
	the
	entire
	course 	of 	conduct. 	Without
the
	benefit
	of 	hindsight,
	I
	see
	no
	evidence
	that
	Dehler
	knew
	or
should
	have
	known
	of 	the 	alleged
	unlawful 	conduct
	at
	any
	point
earlier
	than April
	11, 	1995.
12