American Federation of State, County and Municipal Employees, Local 2620 (Moore) (PERB 0683S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAMES 	ALIN MOORE,
Charging 	Party,
v.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL 	EMPLOYEES,
LOCAL 	2620,
Respondent.
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) 	Case 	No. 	SF-CO-12-S
PERB 	Decision 	No. 	683-S
June 20, 	1988
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Appearances; 	James Alin Moore on his own behalf; 	Beeson, 	Tayer,
Silbert 	& 	Bodine by Joseph 	R. 	Colton 	for American 	Federation 	of
State, 	County and Municipal 	Employees, 	Local 	2620.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(Board) 	on 	appeal 	by charging party
of 	the 	attached Board agent's 	dismissal 	of his 	charge 	that 	the
American 	Federation 	of 	State, 	County and Municipal 	Employees,
Local 	2620 	(AFSCME) 	violated section 3519.5(b) 	of 	the 	Ralph C.
Dills 	Act 	(Dills A c t ) . 1
We have 	reviewed 	the 	appeal 	and 	the 	dismissal 	and, 	finding
the dismissal 	free 	from prejudicial 	error, 	adopt 	it as 	the
Decision 	of 	the 	Board 	itself, 	insofar 	as 	the 	Board agent
1Formerly 	referred 	to 	as 	the 	State 	Employer-Employee
Relations Act, 	the 	Dills 	Act 	is 	codified at 	Government 	Code
section 	3512 	et 	seq.

concluded 	that 	allegations 	relating 	to AFSCME's 	actions 	in 	the
State 	Personnel 	Board hearing 	are 	untimely, 	and 	that 	the
allegations 	also 	fail 	to 	state 	a prima 	facie 	violation of 	the
Dills Act.
ORDER
The 	dismissal 	of 	the 	unfair practice 	charge 	in 	Case 	No.
SF-CO-12-S 	is hereby AFFIRMED.
Members 	Craib 	and 	Shank 	joined 	in 	this 	Decision.
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERS
San Francisco Regional Office
177 Post Street. Suite 900
San Francisco, CA 	94108-4737
(415)557-1350
April 6, 1988
James Alin Moore
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
James Alin Moore v. American Federation of State, County, Municipal
Employees AFSCME 2620, Unfair Practice Charge No. SF-CO-12-S
Dear Mr. Moore:
The above-referenced charge alleges that the American Federation of State,
County and Municipal Employees, Local 2620 failed to fairly represent you in a
discipline and termination hearing before the State Personnel Board and
further failed to fairly represent you by deciding not to take your grievance
concerning the discipline and termination to arbitration. 	I indicated to you
in my attached letter dated March 21, 1988, 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 accordingly. 	You were
further advised that unless you amended the charge to state a prima facie
case, or withdrew it prior to April 4, 1988, it would be dismissed.
I have received an amended charge, but it does not cure the deficiencies in
your case, as explained below. 	Therefore, I am dismissing the charge based on
the facts and reasons contained in my March 21, 1988 letter and those below.
SPB HEARING REPRESENTATION
With regard to the timeliness of the allegation regarding the violation of the
duty of fair representation in the conduct of the proceeding before the SPB,
you now state that you put the union on notice by phone in February, March,
April and May that it failed in its duty. 	You also attach letters dated in
May and June, 1987. 	Even assuming that all these communications put the union
on notice of your complaint against it, the arbitration procedure which you
were attempting to use concerned your grievance against the employer, not
against the union. 	The statute of limitations is only tolled when an
alternative procedure for settling the case is pursued. 	Therefore, you have
alleged no facts indicating that you pursued an alternative procedure for
settling your complaint against the union in the period from the end of the
SPB hearing (Dec. 1986) or from the issuance of the SPB decision (May 1987)
until the filing of this charge on February 8, 1988, well beyond the six month
limitation contained in Government Code section 3514.5(a).
Moreover, there are no new facts alleged to indicate that there was a duty of
fair representation applicable or that the representation was so grossly
negligent as to violate the duty of fair representation of a non-attorney
; .

James Alin Moore
Dismissal Letter
April 6, 1988
Page 2
union representative. 	See also California State Employees Assn (Darzins)
(1985) PERB Decision No. 546-S.
DECISION NOT TO TAKE GRIEVANCE TO ARBITRATION
You have added the following facts: a) the headings of correspondence evolved
from "Dear Jim" to "Dear Mr. Moore"; b) the letters themselves which you
characterize as hostile; c) an outside lawyer presented the no-arbitration
position at the second AFSCME arbitration committee; d) at the SPB hearing,
Mr. Sharpe moved to have the charges dismissed as untrue, unfounded and
unproven but later posited that the case should not be taken to arbitration.
The remainder of the material in your amended charge is argument, including
many characterizations of Richard Sharpe's actions as "in bad faith", or pure
speculation.
The new facts do not indicate that the decision not to arbitrate was without a
rational basis or devoid of honest judgment. 	The evolution of the headings of
the letters do not indicate hostility which would color honest judgment. 	The
tenor of the letters to you do not indicate hostility either. 	No facts
regarding the content of the phone calls are alleged; you have merely made the
conclusory statement that they were hostile. 	The fact that a lawyer presented
the non-representation position does not indicate hostility which would color
honest judgment; it is more amenable to the interpretation that the union
wished to keep Mr. Sharpe's personal views out of consideration. 	Mr. Sharpe's
motion to dismiss the charges at the SPB was consonant with the performance of
a zealous advocate, whether or not he believed the charges to have merit. 	On
the other hand, when advising the union whether to take a grievance to
arbitration, considerations other than those of a zealous advocate for the
individual grievant come into play. 	These factors include union finances,
impact on other unit members, and the effect of the SPB judgment.
In sum, the question is whether the union, not Mr. Sharpe alone, failed in its
duty of fair representation in not taking the grievance to arbitration. 	The
union may consider whether taking a grievance to arbitration will spark
divisiveness among employees. 	See Castro Valley Teachers Association
(McElwain) (1980) PERB Decision No. 149. 	Other considerations were detailed
in the letters to you from the two arbitration committees. 	Our inquiry
focuses on whether the Association's judgment had a rational basis, or was
arbitrary or based upon invidious discrimination, not whether the judgment was
correct. 	See Sacramento City Teachers Assn (Fanning) (1984) PERB Decision No.
428. 	The letters from the arbitration committees indicate a rational,
nonarbitrary, good faith assessment that your grievance should not go to
arbitration. 	You have not presented any facts indicating the decision was
arbitrary, discriminatory or in bad faith. 	Thus, your allegations still do
not rise to the level of a prima facie case of a violation of the duty of fair
representation.

James Alin Moore
Dismissal Letter
April 6, 1988
Page 3
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 (California
Administrative Code, title 8, section 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 (5:00 p.m.) or sent by telegraph,
certified or Express United States mail postmarked no later than the last date
set for filing (section 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 calendar days following the date of service of the
appeal (section 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
section 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 nail 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 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 (section 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,
John Spittler
Acting General Counsel
B y _
A N D R E A B I R N
Staff 	Attorney

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Son Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415)557-1350	PEAS
March 21, 	1988
James Alin Moore
Re: Moore v. AFSCME 2620, Charge No. 	SF-CO-12-S
Dear Mr. Moore:
The 	above-referenced 	charge alleges 	that 	the 	American
Federation of State, 	County and Municipal Employees, 	Local 	2620
failed 	to 	fairly 	represent 	you 	in a 	discipline and 	termination
hearing before 	the 	State 	Personnel 	Board and 	further 	failed 	to
fairly represent 	you by deciding 	not 	to 	take 	your 	grievance
concerning 	the 	discipline and 	termination 	to arbitration. 	This
conduct 	is 	alleged 	to violate Government 	Code 	section 	3519.5(b)
of the Ralph C. 	Dills Act 	(formerly known as 	SEERA).
Facts
My 	investigation revealed the 	following 	facts. 	Mr. 	Moore has
been a 	state employee 	since 1972. 	Re became a member 	of unit
19, 	represented by AFSCME Local 2620, 	in June 1984. 	In October
1985, 	Mr. 	Moore became a union board member and rehabilitation
occupational 	chairperson.
In November 	1985, 	a 	female worker 	filed a 	complaint against 	Mr.
Moore alleging 	improper 	conduct and 	sexual harassment. 	In
February 1986, 	Mr. 	Moore received a written reprimand 	for 	this
and 	sought 	union help in 	filing an appeal 	with 	the 	State
Personnel Board 	(SPB). 	Richard Sharpe, 	a union staff person,
agreed 	to handle 	the 	case.
One week before 	the 	SPB hearing, 	Mr. 	Moore was 	fired 	following
a 	second 	complaint 	from a different 	female alleging 	sexual
harassment. 	Richard 	Sharpe undertook 	to appeal 	the 	termination
also, 	and the discipline and termination matters were heard
together 	in December 1986. 	Mr. 	Moore 	felt that Mr. 	Sharpe did
not give him adequate representation. 	Specifically, 	Mr. 	Moore
was dissatisfied because Mr. 	Sharpe did not: 	1) 	allow Mr. 	Moore
to be present when Mr. 	Sharpe interviewed witnesses; 	2) 	allow
Mr. 	Moore to look at 	the witnesses; 	3) 	raise union animus as an
issue; 	4) 	question the credibility of the accusing witnesses
although Mr. 	Moore 	provided him with 	information which might
reflect on credibility; 	5) allow Mr. 	Moore to bring in an
outside attorney to work with the union. 	Mr. 	Moore 	felt 	that
AFSCME had 	a 	conflict 	of 	interest because 	it 	is 	the 	exclusive

p.2
Jim Moore
March 21, 1988
representative for both Mr. 	Moore and one of the accusing
witnesses. 	The final SPB decision issued on May 5, 	1987,
upholding both the discipline and 	the termination.
Meanwhile, 	in February 1987, Mr. Moore filed an unfair practice
charge against the 	state employer alleging that the termination
was retaliatory based on Moore's union activities. 	This was
filed without the union's participation. 	It was deferred to
binding arbitration on May 7, 	1987 and Mr. Moore informed the
union of this through Richard Sharpe in May 1987. 	Mr. 	Sharpe
did not 	feel the union should undertake this arbitration.
However, 	pursuant to AFSCME's representation policy subsection
E, 	in June 1987, an arbitration committee did review the matter
and also decided that the union would not take the case to
arbitration. 	After that decision, Mr. Moore appealed to the
Executive 	Board which 	formed another arbitration committee,
consisting of different individuals, 	to review the request
again. 	On August 6, 	1987, 	that committee informed Mr. Moore
orally of 	its unanimous decision not to pursue his grievance to
arbitration. 	A further appeal to the Executive Board was
waived by Mr. Moore.
Timeliness
Under Government Code section 3514.5(a), this Board cannot
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 charge alleges two possible
violations of the duty of 	fair representation - the inadequate
representation at the SPB and the decision not to take the
retaliatory dismissal case to arbitration. 	The SPB decision
was issued on May 5, 	1987, 	more than six months before the
February 8, 	1988 filing date of this charge. 	However, 	Mr.
Moore claims that the statute of limitations was tolled during
the period during which he attempted to get the union to
represent him in the arbitration because some of the issues
were the same and the remedy, 	reinstatement, 	would be the
same. 	The decision not to arbitrate was final on August 6,
1987. 	Six months from August 6, 	1987 was February 6, 	1988, a
Saturday. 	Thus, 	the final date for 	filing a charge relating to
the decision not to arbitrate was February 8, 	1988, 	the 	first
working day following the Saturday, 	and the charge was 	filed on
that date. 	(See PERB Regulation 32130(b).)
However, 	the statute of limitations 	is only tolled when a
procedure 	is 	followed which will put the charged party on
notice that the charging party has a grievance and exactly what

p.3
Jim Moore
March 21, 	1988
that grievance 	is. 	The arbitration proceeding 	involved 	the
decision of the employer 	to terminate Mr. 	Moore. 	Mr. 	Moore has
alleged no 	facts 	which 	show that 	the 	union was 	on 	notice 	during
that 	period 	that 	Mr. 	Moore believed 	the 	union had 	violated 	the
duty of 	fair 	representation 	in 	its 	representation of him before
the SPB. 	Hence, 	it does not appear 	that the 	statute of
limitations was 	tolled during 	the period Mr. 	Moore 	sought 	to
bring his grievance 	to arbitration. 	Therefore, 	the allegations
regarding 	the 	representation at 	the 	SPB hearing are 	untimely.
No Breach 	of 	the 	Duty of 	Fair 	Representation
Even assuming 	that 	the 	charge with 	regard 	to the 	representation
at the 	SPB is 	timely, 	it does not 	state a prima 	facie 	case as
currently written. 	In 	California Correctional 	Peace 	Officers
Assoc. 	(1987) PERB Decision No. 	657-S, 	the Board upheld the
dismissal 	of 	a 	similar 	charge 	in which a 	state 	employee 	sought
"a reasonable accommodation" to his disability from the 	SPB, 	and
felt 	that his 	union did not 	adequately 	represent him 	in 	that
forum. 	Essentially, 	this case 	stands 	for 	the proposition that
there 	is 	no duty of 	fair 	representation 	for 	extra-contractual
remedies 	such as 	those pursued through 	the 	SPB. 	Furthermore,
there 	is 	no duty of 	fair representation even 	though 	the 	union
voluntarily takes a 	case 	it has no duty to pursue. 	(See Archer
v. 	Airline Pilots Association International 	(9th Cir. 	1979) 	609
F.2d 934, 	102 LRRM 2827, 	2830, cert. den. 	(1980) 446 U.S.
953). 	In American Federation of Government Employees v. 	De
Grio (1985 Ct. App. 	Fla.) 116 LRRM 3298, 3300-1, however,- the
court held 	that 	though a 	union had no 	duty of 	fair
representation when 	it 	voluntarily undertook 	to 	represent 	a
nonmember 	in a 	discharge 	case, 	it did have a 	duty to exercise
due 	care 	in his 	representation under 	the 	common 	law 	of
negligence and 	the 	employee 	would be allowed 	to 	seek 	damages 	in
a civil action in court. 	Furthermore, 	the duty which a union
representative 	owes 	to a 	member 	is not 	one of attorney 	to
client, 	nor does 	the union 	representative necessarily violate
the 	duty of 	fair 	representation by 	failing 	to perform at 	the
level 	of a 	competent attorney. 	See e.g. 	Beverly Manor
Convalescent Center 	(1977) 	229 NLRB 692, 	n.2 [95 LRRM 1156].
Applying this 	law to the 	facts alleged, 	Mr. 	Moore has 	not made
a 	prima 	facie 	case because 	the 	representation was 	not by a
lawyer, 	was before the SPB, 	and was voluntarily undertaken.
However, 	Mr. 	Moore may have a cause of action in court.
As 	to the decision not 	to take 	the discrimination charge 	to
arbitration, 	the 	facts alleged also do not 	support a prima
facie case 	of 	failure 	to carry out 	the duty of 	fair

p.4
Jim Moore
March 21, 1988
representation. 	The 	facts alleged must 	indicate that 	the
union, 	while acting within the scope of its duty as an
exclusive representative, acted arbitrarily, 	discriminatorily,
or 	in bad faith. 	(United Teachers of Los Angeles 	(Collins)
(1983) PERB Decision No. 258.
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.
To show arbitrary conduct violative of 	the duty of 	fair
representation the charging party "must, 	at a minimum, 	include
an assertion of facts 	from which it becomes apparent how, 	in
what manner, 	the exclusive representative's action or 	inaction
was without a rational basis or devoid of honest 	judgment."
(Reed District Teachers Assoc, 	CTA/NEA (Reyes) 	(1983) PERB
Decision No. 332.) 	Here, 	the charge and its attachments show
that the union convened not one but two arbitration committees,
the second one with entirely uninvolved individuals, 	both of
which rejected the request 	for arbitration. 	The letters
detailed the reasons therefor, 	which included that the
grievance is not winnable because the evidence of anti-union
motivation was too weak and 	the two independent complaints
against Mr. 	Moore were extremely serious. 	The facts alleged do
not 	show a prima facie case of a violation of the duty of 	fair
representation because they fail 	to indicate any arbitrary,
discriminatory or bad 	faith action on the part of the union.
For these reasons, 	the charge as presently written does not
state a prima 	facie case. 	If you feel that there are any
factual 	inaccuracies in this letter or any additional 	facts
which would correct the deficiencies explained above, 	please
amend the charge accordingly. 	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 April 4, 	1988, 	I shall dismiss your
charge. 	If you have any questions on how to proceed, 	please
call me at 	(415) 557-1350.
Sincerely.
ANDREA BIREN
Staff Attorney