California State Employees Association (Brushia) (PERB 1207S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LYNDA G. 	BRUSHIA,
Charging 	Party,
v.
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-194-S
PERB Decision No. 	1207-S
June 23, 	1997
Appearance; 	Lynda G. 	Brushia, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Lynda G. 	Brushia's 	(Brushia) 	unfair practice
charge. 	Brushia's 	charge alleges 	that 	the 	California State
Employees Association violated section 3515.7(g) 	of 	the Ralph C.
Dills Act 	(Dills Act)1 when it 	failed to adequately represent
her in the processing of 	a grievance; 	interfered with her
communications with her employer; 	and 	failed to adequately
represent 	her 	in appealing her automatic 	resignation.
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et seq. 	Dills Act section 3515.7(g) 	provides:
(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.

The Board has 	reviewed 	the entire 	record 	in this 	case,
including Brushia's 	unfair practice 	charge, 	the warning and
dismissal 	letters, 	and Brushia's appeal. 	The Board finds 	the
warning and dismissal 	letters 	to be 	free 	of prejudicial 	error
and adopts 	them as 	the 	decision of 	the 	Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-194-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
2
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
March 31, 1997
Lynda G. Brushia
Re: 	Lynda G. 	Brushia v. 	California State Employees
Association
Unfair Practice Charge No. 	SA-CO-194-S
Dear Ms. Brushia,
The above-referenced unfair practice charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on January 6,
1997. 	In the charge you allege that the California State
Employees Association 	(CSEA) 	violated Government Code section
3519.5(b) 	and the duty of fair representation by 	(1) 	failing to
represent you properly during the grievance procedure,
(2) 	failing to inform the employer as to your extension of sick
leave and 	(3) 	not properly representing you in a hearing
concerning the automatic separation from state service.
I indicated to you, 	in my attached letter dated March 21, 	1997,
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
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 March
28, 	1997, 	the charge would be dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons 	contained in my March 21 	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:
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DISMISSAL LETTER
SA-CO-194-S
March 31, 	1997
Page 2
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
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 Dave 	Hitch
cc: 	Catherine Kennedy

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
March 21, 	1997
Lynda G. Brushia
Re: 	Lynda Brushia v. 	California State Employees Association
Unfair Practice Charge No. 	SA-CO-194-S
WARNING 	LETTER
Dear Ms. Brushia,
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or the Board) 	on January
6, 	1997. 	In your charge you allege that the California State
Employees Association 	(CSEA) 	violated Government Code 	section
3519.5 	(b) 	and the duty of fair representation by 	(1) 	failing to
represent you properly during the grievance procedure,
(2) 	failing to inform the employer as to your extension of sick
leave and 	(3) 	not properly representing you in a hearing
concerning the automatic separation from state service.
Investigation of this charge revealed the 	following information.
Lynda Brushia was employed by the Department of Health Services
(DHS) 	as a Staff Services Analyst. 	CSEA filed a grievance on
behalf of Ms. 	Brushia in February 1996. 	The CSEA assigned Ms.
Brushia's case to Jefferey Young. 	Mr. 	Young pursued this
grievance to the fourth level of the grievance process and is
awaiting the outcome of a private suit 	filed by Ms. 	Brushia
before proceeding any further.
In April of 1996 Ms. 	Brushia took time off from work due to work
related stress. 	In May Ms. 	Brushia received an informal letter
of reprimand for not 	submitting a physician's verification for
the time she had spent on leave. 	Ms. 	Brushia contacted Mr.
Young, 	who instructed Ms. 	Brushia to draft a response and deliver
it to him as soon as possible for editing. 	The response was
submitted to Mr. Young on May 20, 	1996. 	Ms. Brushia contacted
Mr. 	Young approximately 2 weeks 	later and the letter had not been
reviewed.
When Ms. 	Brushia contacted Mr. 	Young to inquire about the status
of her response, 	she was on another work related sick leave. 	Mr.
Young asked if she was going to return to work on June 18, 	1996,
the day the physician's verification expired. 	Ms. 	Brushia
responded in the negative, 	informing Mr. 	Young that the doctor
had extended her sick leave until July 30, 	1996. 	The allegation
then states that Mr. 	Young did not instruct Ms. 	Brushia to
provide either himself or DHS with the physician's extension of
I

Warning Letter
SA-CO-194-S
March 21, 1997
Page 2
her sick leave. 	Relying on this, 	Ms. 	Brushia did not send the
physician's verification of extended leave to DHS and, 	as a
result, 	DHS invoked the AWOL statute1 and sent a 	"NOTICE OF
AUTOMATIC RESIGNATION" to Ms. Brushia.
On July 11, 	1996 a Coleman2 hearing was scheduled. 	Prior to the
hearing, 	Mr. 	Young had left for vacation. 	The CSEA assigned Anna
Kammerer to represent Ms. 	Brushia at the hearing. 	Ms. 	Kammerer
and Ms. 	Brushia had a disagreement about how the case was going
to be handled. 	Ms. 	Kammerer said that the only way she would
represent Ms. 	Brushia at the Coleman hearing was if Ms. 	Brushia
would remain quiet and let Ms. 	Kammerer do all the speaking.
Although Ms. 	Brushia did not speak at the hearing, 	she submitted
a written account of Mr. 	Young's role in her work separation.
Ms. 	Kammerer and Ms. 	Brushia also disagreed upon whether Brian
Klock, Ms. Brushia's boyfriend, 	would attend the hearing. 	Upon
Ms. Brushia's insistence, Mr. 	Klock attended the hearing and
eventually made 	comments that adversely affected the outcome of
the hearing. 	At the conclusion of the hearing, 	Ms. 	Brushia was
not reinstated.
Discussion
A. 	Statute of Limitations
Government Code section 3514.5 	(a) 	states:
Any employee . 	. 	. shall have the right to
file an unfair practice charge, 	except that
the board shall not do either of the
following: 	(1) 	issue a complaint in respect
to any charge based upon an alleged unfair
practice charge occurring more than six
months prior to the filing of the charge. 	. 	.
1Government Code section 19996.2(a) 	provides that, 	"Absence
without leave, 	whether voluntary or involuntary, 	for five
consecutive working days is an automatic resignation from state
service, 	as of the last date on which the employee worked."
2In Coleman v. 	Department of Personnel Administration 	(1991)
52 Cal.3d 1102; 	278 Cal.Rptr. 	346; 	805 P.2d 300, 	the court held
that when the state exercises 	its 	statutory authority under
Government Code section 19996.2(a), 	it must give notice of facts
supporting resignation and an opportunity to respond in order to
satisfy the principles of due process. 	This hearing was
scheduled to meet these due process requirements.
I
I

Warning Letter
SA-C0-194-S
March 21, 1997
Page 3
The allegations that concern the editing of the response to the
informal letter of reprimand and the acts of Mr. 	Young and Ms.
Brushia concerning the physician's verification occurred more
than 6 months before the unfair practice charge was filed.
Therefore they are barred by the 6 month statute of limitations.
B. 	Violation of the Duty of Unfair Representation
Under the Dills Act, 	the union is prohibited from representation
that is 	"arbitrary, 	discriminatory, 	or in bad faith" 	(See Gov.
Code Section 3578.) 	and if the union's conduct toward a member is
such, 	a breach of the duty of fair representation will be found.
(Rocklin Teachers Professional Association 	(1980) 	PERB Decision
No. 	124.) 	In order to show a prima facie violation of a 	union's
duty of fair representation, 	the party must show facts that the
union acted without 	rational basis or in a way that 	is devoid of
honest judgment. 	(Reed District Teachers Association. 	CTA/NTA
(Reyes) (1983) 	PERB Decision No. 	332.)
1. 	Representation during the Grievance Procedure
From the investigation of this case, 	it was discovered that the
grievance CSEA had filed on behalf of Ms. 	Brushia has not been
abandoned and is currently pending. 	The charge 	is void of any
facts that would indicate that CSEA acted 	"arbitrary,
discriminatory, 	or in bad faith" 	in the handling of your case.
Additionally, 	you have failed to allege facts that would indicate
that the Union had acted with gross negligence 	in handling your
case. 	(See California School Employees Association 	(1984) 	PERB
Decision No. 	427 where the Board held that mere negligence by a
union in handling a grievance does not constitute a breach of the
duty of fair representation.) 	As a result, 	the facts submitted
do not establish a prima facie case.
2. 	Representation during the Coleman Hearing
It was alleged that the CSEA representative, Ms. Kammerer, 	stated
that she would only represent Ms. 	Brushia if Ms. 	Brushia would
remain quiet and allow her to do the talking. 	Taking this
statement as true, 	the charge still does not state a prima facie
case. 	" [T]he failure to introduce every favorable document or to
raise every argument deemed significant by the charging party
does not amount to a breach of the duty of fair representation."
California Faculty Association 	(Mirhady) 	(1989) 	PERB Decision No.
746-H. 	The charge does not indicate that Ms. 	Kammerer's decision
to have Ms. 	Brushia not speak at the hearing was 	"arbitrary,
discriminatory or in bad faith." 	Thus, 	the charge, 	as submitted,
fails to state a prima facie case.
(
I

Warning Letter
SA-CO-194-S
March 21, 	1997
Page 4
For these reasons the allegations that 	the CSEA violated their
duty for fair representation in violation of 3519.5(b) 	by 	(1)
failing to represent you properly during the grievance procedure,
(2) 	failing to inform the employer as to her extension of sick
leave and 	(3) 	not properly representing you in a hearing
concerning the automatic 	separation from state 	service fail 	to
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
practice charge form, 	clearly labeled First Amended Charge, 	must
contain all the facts and allegations you wish to make, 	and be
signed under penalty of perjury by the charging party. 	The proof
of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before March 28, 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Dave 	Hitch
Board 	Agent