Service Employees International Union, Local 790 (Bryant) (PERB 1419E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MILDRED NICOLE BRYANT,
Charging Party, Case No. SF-CO-573-E
v. PERB Decision No. 1419
SERVICE EMPLOYEES INTERNATIONAL February 26, 2001
UNION, LOCAL 790,
Respondent.

Appearance: Mildred Nicole Bryant, on her own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Mildred Nicole Bryant (Bryant) of a Board agent's dismissal (attached)
of her unfair practice charge.

Bryant's charge alleged that the Service Employees International Union, Local 790
violated section 3543.6 of the Educational Employment Relations Act (EERA)' by failing to

represent her properly.

' EERA is codified at Government Code section 3540 et seq. Section 3543.6 provides,
in pertinent part, that:

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.

The Board has reviewed the entire record in this case, including the unfair practice
charge, the warning and dismissal letters and Bryant's appeal. 	The Board finds that because
Bryant failed to meet her burden of supplying sufficient facts to show that the alleged unlawful
conduct occurred within six-months of the filing date of her charge, it is dismissed as untimely.
DISCUSSION
Bryant's charge stated, in its entirety:
Union has failed to provide adequate representation to me re:
grievances that have filed and set for arbitration.
One grievance was not filed. 	Requested that a grievance be filed
due to an evaluation that was in violation of our contract.
BERA section 3541.5 (a) (1) provides that the Board shall not, "issue a complaint in respect of
any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The Board has held that it is the charging party's burden to demonstrate
the charge has been timely filed. 	(Tehachapi Unified School District (1993) PERB Decision
No. 1024.) As Bryant's charge failed to provide any dates, it failed to supply sufficient facts to
show that the alleged unlawful conduct occurred within six-months of the filing date.
In her appeal, Bryant requests that the Board consider new supporting evidence offered
for the first time in her appeal. 	Consideration of new supporting evidence on appeal is
controlled by Board Regulation 326352 which provides, in pertinent part:
(b) Unless good cause is shown, a charging party may not present
on appeal new charge allegations or new supporting evidence.
Interpreting this regulation, the Board has been reluctant to find that good cause existed to
allow a party to raise new allegations or new evidence for the first time on appeal. The reason
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

for this reluctance is stated in South San Francisco Unified School District (1990) PERB
Decision No. 830:
The purpose of PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence
to the Board agent in the first instance, so that the Board agent
can fully investigate the charge prior to deciding whether to issue
a complaint or dismiss the case.
When a party has the opportunity to cure defects in a prima facie case at earlier stages and does
not do so, the Board is reluctant to allow them to raise such facts or evidence later. 	(Oakland
Education Association (Freeman) (1994) PERB Decision No. 1057.)
In support of her appeal, Bryant states that, "Due to a series of unavoidable and
uncontrollable circumstances" she was forced to move out of state and relocate to East
Carondelet, Illinois. Bryant claims in her appeal that she, "communicated (by phone) my
situation to Ms. Tammy Samsel, Regional Director of the San Francisco office, during a
conversation with her sometime in July." There is only one reference in the record of a phone
call in July of 2000. Board Agent Tammy Samsel noted in her August 1, 2000 warning letter
to Bryant that a phone call was placed to Bryant on July 12, 2000. 	The purpose of this call was
to let Bryant know that her charge did not state a prima facie violation of EERA and that more
information was needed. Had Bryant communicated her impending move out of state to the
Board agent during this phone call on July 12, 2000, or any other time in July, it would be
reflected in the record. Bryant's claim that she informed the Board agent of her impending
move is not supported by the record.
Bryant claims she did not receive the Board agent's August 1, 2000 warning letter until
after her charge was dismissed by the Board agent. Bryant claims she had her mail forwarded
to Illinois which resulted in a one-week to 14-day delay in receiving her mail. 	Even if Bryant
3

did not receive the August
1,
2000 warning letter until she reached Illinois on August 11, 2000,
Bryant has not demonstrated good cause to allow for the consideration
of
new evidence to
support her charge. The warning letter was mailed from the Board's San Francisco regional
office on Tuesday, August
1,
2000. Bryant did not move out
of
state until Sunday, August 6,
2000. Bryant provided no indication in her appeal as to when she submitted her change
of
address card to the Post Office, no effective date for the forwarding
of
her mail, and most
importantly, no reason why she could not have apprised the Board agent
of
her new address or
even that she was moving.
In light
of
the July 12, 2000, phone call wherein the Board agent explained that Bryant's
charge was deficient, the failure
of
Bryant to keep PERB informed
of
her current address and
to communicate with PERB in an effective and timely manner does not constitute good cause
under PERB Regulation 32635(b). The remainder
of
her appeal is an attempt to overcome
deficiencies in timeliness and establish a prima facie case for her charge. This portion
of
Bryant's appeal is not addressed as no good cause exists to consider the new supporting
evidence on appeal.
ORDER
The unfair practice charge in Case No. SF-CO-573-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
4

c,::.,L,For-=;NJM	
GRAY
DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS .BOARD
San Francisco Regional
Office
1
77
Post
Street,
9th
Floor
San Francisco,
CA
94108-4
737
(41 5)
439-6940
August 	11,
	2000
Mildred
	Nicole
	Bryant
3004
	1/2 	Martin 	Luther
	King
	Jr
	Way
Oakland
	CA
	94609
Re:
	Mildred 	Nicole
	Bryant
	v.
	SIEU
	Local
	790
Unfair
	Practice
	Charge
	No.
	SF-CO-573
Dismissal
	and
	Refusal
	to
	Issue
	a
	Complaint
Dear
	Ms.
	Bryant:
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	August 	1,
	2000,
that
	the 	above-referenced 	charge
	did
	not
	state
	a
	prima
	facie
case.
	You
	were
	advised
	that,
	if
	there
	were
	any
	factualinaccuracies 	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
August 	8, 	2000,
	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
	August 	1,
	2000
	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
	Regs.,
	tit.
	8,
sec.
	32635(a) .)
	Any
	document
	filed
	with 	the
	Board 	must
	contain
the 	case
	name
	and 	number, 	and
	the 	original
	and
	five
	(5)
	copies 	of
all
	documents 	must 	be
	provided 	to 	the
	Board.
A
document
	is
	considered
	11
filed
11
	when
	actually 	received 	before
the 	close 	of 	business
	(5
	p.m.) 	on
	the
	last
	day
	set 	for
	filing
	or
when
	mailed 	by
	certified
	or
	Express 	United
	States 	mail, 	as
	shown
on
	the 	postal 	receipt 	or
	postmark, 	or 	delivered 	to
	a 	common
carrier
	promising 	overnight 	delivery, 	as
	shown 	on
	the
	carrier'sreceipt, 	not
	later
	than 	the
	last
	day
	set 	for 	filing.
	(Cal.
	Code
Regs.,
	tit.	
8 1	
sec. 	32135(a); 	see 	also 	Cal.
	Code
	Regs.,
	tit.
	8,
sec. 	32130.)
A document
	is 	also 	considered 	"filed"
	when
	received 	by 	facsimile
transmission 	before 	the 	close 	of 	business 	on 	the 	last
	day 	for
filing 	together 	with
	a
	Facsimile 	Transmission 	Cover 	Sheet 	which
meets 	the 	requirements 	of 	Cal. 	Code 	Regs.,
	tit.
	8, 	sec. 	32135(d),
provided 	the 	filing 	party 	also 	places 	the 	original, 	together 	with

SF-CO-573
Dismissal
	Letter
Page
	2
the
	required
	number
	of 	copies
	and
	proof
	of
	service, 	in
	the
	U.S.
mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135(b),
	(c)
	and
	(d);see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and 	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174
FAX:
	(916)
	327-7960
If
	you
	file
	a
	timely
	appeal 	of 	the
	refusal 	to 	issue
	a
	complaint,
any
	other 	party
	may
	file
	with 	the
	Board 	an
	original
	and
	five
copies 	of
	a
	statement
	in
	opposition within
	twenty
	(20)
	calendar
days
	following 	the 	date 	of
	service
	of 	the 	appeal.
	(Cal.
	Code
Regs.,
	tit.
	8,
	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
	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.
	A
document
	filed
	by
	facsimile 	transmission
may
	be
	concurrently 	served
	via 	facsimile 	transmission
	on
	all
parties 	to 	the 	proceeding.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
32135 (c) . )
Extension 	of
	Time
A
	request 	for
	an
	extension 	of 	time,
	in
	which
	to
	file
	a
	document
with 	the
	Board
	itself,
	must 	be
	in 	writing
	and
	filed
	with 	the
Board
	at
	the 	previously noted 	address.
	A
request 	for
	an
extension
	must 	be
	filed 	at 	least
	three
	(3)
	calendar
	days
	before
the 	expiration 	of 	the 	time
	required 	for
	filing
	the
	document.The
	request
	must
	indicate
	good 	cause
	for
	and,
	if
	known,
	the
position 	of 	each 	other 	party 	regarding 	the 	extension,
	and
	shall
be 	accompanied 	by
	proof 	of 	service 	of 	the 	request
	upon 	each
party.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec. 	32132.)

SF-CO-573
Dismissal
	Letter
Page
	3
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
TammyL.SamselRegional
	Director
Attachment
cc: 	Vincent
	A.
	Harrington,
	Jr.

GRAY
DAVIS, Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
177
Post
Street,
9th
Floor
San Francisco, CA
94108-4
737
i41 5)
439-6940
August
	1,
	2000
Mildred
	Nicole
	Bryant
3004
	1/2 	Martin 	Luther
	King
	Jr
	Way
Oakland
	CA
	94609
Re:
	Mildred 	Nicole
	Bryant
	v.
	SIEU
	Local
	790
Unfair
	Practice
	Charge
	No.
	SF-CO-573
Warning
	Letter
Dear
	Ms.
	Bryant:
In 	the 	above-referenced
	charge
	you
	allege
	SIEU
	Local
	790
	violated
the 	Educational
	Employment
	Relations
	Act
	(EERA
	or
	Act)	
§	
3543.6.
On
	or
	about
	July
	12, 	2000,
	I
	called
	you
	and
	indicated 	that
	I
would
	need
	additional
	information 	regarding
	this
	charge.
	I
	have
not
	yet 	received
	any
	additional
	information.
	The
	charge
	states
in
	its
	entirety:
Union
	has
	failed 	to
	provide 	adequate
representation 	to
	me
	re:
	grievances
	that
	have
[sic]
	filed
	and
	set
	for
	arbitration.
One
	grievance
	was
	not
	filed.
	Requested
	that
a
	grievance
	be
	filed
	due
	to
	an
	evaluation
that
	was
	in 	violation
	of 	our
	contract.
The
	above-stated 	information
	fails
	to
	state
	a
	prima
	facie
violation 	for 	the 	reasons
	that
	follow.
EERA 	§	
3541.
5
(a) (1)
	provides 	the 	Public
	Employment
	Relations
Board
	shall
	not, 	"issue
	a
	complaint
	in 	respect 	of
	any
	charge
based
	upon
	an
	alleged 	unfair 	practice
	occurring
	more
	than
	six
months
	prior 	to 	the
	filing
	of 	the 	charge."
	It 	is
	your 	burden, 	as
the 	charging
	party 	to
	demonstrate 	the 	charge 	has 	been
	timely
filed.
	(See
	Tehachapi 	Unified
	School
	District
	(1993)
	PERB
Decision
	No.
	1024.)
	As
	the 	charge 	does 	not 	provide
	any
	dates,
	it
fails
	to 	demonstrate
	that
	it
	is
	timely
	filed.
	Thus,
	the 	charge
must 	be
	dismissed 	as 	outside 	the 	jurisdiction of
	PERB.
Even
	if
	the 	charge
	is
	timely 	filed,
	the 	charge
	fails
	to 	state
	a
prima
	facie 	violation.
	A
charging 	party 	should 	allege 	the
	''who,
what, 	when, 	where,
	anq_ 	how
11
	of 	an
	unfair 	practice.
	(United
Teachers-Los 	Angeles 	(Raosdale) 	(1992) 	PERB
	Decision 	944.) 	Mere
legal 	conclusions 	are 	insufficient.
	(See
	State 	of 	California(Department 	of
	Food 	and Agriculture
	(1994) 	PERB
	Decision
	No.
1071-S.) 	The 	charge 	as
	it 	is 	presently 	written 	does 	not 	provide
the 	requisite 	information. 	Thus, 	the 	charge 	must 	be 	dismissed.

SF-C0-573
Warning
	Letter
Page
	2
The
	duty
	of
	fair
	representation
	imposed
	on
	the 	exclusive
representative
	extends
	to
	grievance 	handling.
	(Fremont
	Teachers
Association
	(King)
	(1980)
	PERB
	Decision
	No.
	125; 	United 	Teachers
of
	Los
	Angeles
	(Collins)
	(1982)
	PERB
	Decision
	No.
	258.)
	In
	order
to
	state
	a
	prima
	facie
	violation
	of
	this
	section
	of
	EERA,
Charging
	Party
	must
	show
	that
	the
	Association's
	conduct
	was
arbitrary,
	discriminatory 	or
	in
	bad
	faith.
	In 	United 	Teachers 	of
Los
	Angeles
	(Collins),
	the 	Public
	Employment
	Relations
	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
	inthe
	employee's
	behalf
	as 	long 	as
	it
	does
	not
arbitrarily
	ignore
	a
	meritorious 	grievance
	orprocess
	a
	grievance
	in
	a
	perfunctory 	fashion.
A
	union
	is
	also
	not
	required 	to 	process
	an
employee's 	grievance
	if
	the
	chances
	forsuccess 	are
	minimal.
In
	order 	to
	state
	a
	prima
	facie
	case 	of
	arbitrary
	conduct
violating
	the 	duty 	of
	fair
	representation,
	a
	Charging
	Party:
11
	•
	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 	honestjudgment.
	(Emphasis
	added.)"
	[Reed
	District
Teachers 	Association,
	CTA/NEA
	(Reyes)
	(1983)
PERB
	Decision
	No.
	332, 	p.
	9,
	citing
	Rocklin
Teachers 	Professional 	Association
	(Romero)
(1980)
	PERB
	Decision
	No.
	124.]
The
	charge 	does 	not 	provide
	facts
	demonstrating 	the
	Respondent
engaged
	in 	arbitrary, 	discriminatory, 	or
	bad
	faith
	conduct. 	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 	deficienciesexplained 	above, 	please
	amend
	the 	charge.
	The 	amended
	charge
should 	be 	prepared 	on'a 	standard
	PERB
	unfair 	practice 	chargeform,
	clearly 	labeled 	First
	Amended 	Charge, 	contain 	all 	the 	factsand
	allegations
	you 	wish 	to
	make, 	and 	be 	signed 	under 	penalty 	of
perjury by 	the 	charging 	party.
	The 	amended 	charge 	must 	have 	the
case 	number 	written 	on 	the 	top 	right 	hand 	corner 	of 	the 	charge

SF-C0-573
Warning
	Letter
Page
	3
form.
	The
	amended
	charge
	must
	be
	served
	on
	the
	respondent's
representative
	and
	the
	original
	proof 	of
	service
	must 	be
	filed
with
	PERB.
	If
	I
	do
	not
	receive
	an
	amended
	charge
	or
	withdrawal
from 	you
	before
	August
	8,
	2000,
	I
	shall
	dismiss
	your 	charge.
	If
you
	have 	any
	questions, 	please
	call
	me
	at
	(415)
	439-6944.
Sincerely,
~~
TAMMY	
L.	
SAMSEL
Regional
	Director