California State Employees Association (Parisi) (PERB 0733S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROSE MARIE PARISI,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-85-S
PERB Decision No. 	733-S
May 3, 	1989
Appearances: 	James B. 	Macy, Attorney, 	for Rose Marie Parisi;
Darrell S. 	Steinberg, Attorney, 	for the California State
Employees Association.
Before Hesse, 	Chairperson; 	Craib, 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(Board) 	on appeal 	by the 	charging party of 	the administrative 	law
judge's dismissal, 	attached hereto, 	of her charge that the
respondent violated 	section 3519.5 	of the Ralph C. 	Dills Act. 	We
have 	reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt 	it as 	the decision of the Board 	itself.
The unfair practice charge 	in Case No. 	S-CO-85-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By the BOARD1
1Member Porter did not participate in this Decision.
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STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ROSE MARIE PARISI,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Unfair 	Practice
Case No. 	S-CO-85-S
ORDER 	DISMISSING
COMPLAINT
(1/26/89)
Appearances: 	James B. 	Macy, 	Attorney for Rose Marie Parisi;
Darrell 	S. 	Steinberg, 	Attorney for California State Employees
Association.
Before 	Martha Geiger, 	Administrative Law Judge.
INTRODUCTION
On March 	7, 	1988, 	Charging Party Rose Marie Parisi 	(Parisi
or 	Charging 	Party) 	filed an unfair practice 	charge 	against 	the
exclusive 	representative, 	California State Employees Association
(CSEA).
In her charge, 	as amended on April 	15, 	1988, 	Parisi alleges
that CSEA violated the 	Dills Act, 	Government Code 	Section 	3519.5,
specifically, 	the 	duty of 	fair representation 	owed by the
exclusive 	representative 	to 	members 	of 	the 	bargaining 	unit.1
1 The 	Dills Act is 	codified at Government Code 	Section 	3512
et.seg. 	Section 3519.5, 	in relevant part, reads:
It 	shall be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to impose reprisals on
employees, 	to discriminate or threaten to
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discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of rights
guaranteed by this 	chapter.
After 	a 	complaint was 	issued by the 	office of 	the General 	Counsel
of the Public Employment Relations Board 	(PERB), 	a 	formal hearing
was 	scheduled on August 	3, 	1988, 	to hear the matter between the
parties. 	Immediately prior to that time, 	however, 	CSEA filed a
Motion to Dismiss 	the 	complaint 	in this matter. 	Charging Party
opposed 	the 	Motion 	and 	filed 	a 	brief 	in opposition 	to 	the 	Motion
on August 	30, 	1988. 	For the reasons 	set forth below, 	the Motion
to Dismiss 	is granted.
FACTUAL 	BACKGROUND
Parisi was 	employed by the 	State 	of California as 	an Office
Assistant 	II 	assigned to the California Highway Patrol 	(CHP). 	In
the 	summer of 	1986, 	Parisi was 	placed on a 	six-month 	"medical
leave" 	from her 	position 	at 	the 	CHP. 	Charging Party wished to
return to her position in December 	1986. 	Instead, 	Parisi was
terminated 	from her position, 	pursuant 	to Government Code 	section
19253.5, 	(unfitness 	for work). 2
Prior to her hearing on March 	6, 	1987, 	Parisi 	contacted CSEA
for purposes 	of 	representing her 	in the 	appeal 	of her 	termination
2 CSEA places 	the termination date at December 	16, 	1986.
Parisi's brief places 	the date 	of 	termination at January 	17,
1986. 	Presumably, 	this was 	a typographical 	error and 	should have
read January 	17, 	1987. 	In any case, 	it is unnecessary to resolve
this 	ambiguity because 	the 	actions 	by CSEA that 	gave 	rise 	to this
complaint 	are undisputed to have been in 	1987.
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before the 	State Personnel 	Board 	(SPB). 	Judy O'Nan Roth, 	an
employee 	of CSEA, 	was 	assigned by CSEA to Parisi's 	appeal.
Immediately prior 	to 	the hearing, 	Parisi 	and Roth engaged 	in
a discussion of 	Roth's 	preparedness 	for 	the hearing. 	A 	factual
dispute 	exists 	as 	to whether Roth encouraged Parisi 	to withdraw
her 	appeal 	before 	the 	SPB due 	either 	to the 	lack of merits 	of
Parisi's 	appeal, 	or due 	to Roth's unpreparedness 	to proceed to
the hearing. 	For purposes of the Motion to Dismiss, 	it will be
assumed 	that 	Parisi's 	version 	is 	correct 	and 	that 	Roth was 	not
prepared 	to 	proceed with 	the 	appeal 	on March 	6. 	Roth allegedly
told Parisi 	that 	if her appeal were withdrawn 	it 	could
immediately be 	refiled 	"the 	next day," 	and the 	case 	could 	then
proceed 	before 	the 	SPB 	after 	Roth had had an 	adequate 	time 	to
prepare 	for the hearing. 	Again, 	for purposes of this Motion,
Parisi's 	version will 	be 	assumed to be 	correct.
The 	appeal was withdrawn, 	but CSEA did not file the new
petition 	for reinstatement on behalf 	of 	Parisi 	on March 	7, 	1987,
(the day after the original hearing) 	or on any other date.
Parisi 	inquired 	several 	times 	about her 	appeal 	during 	the
following months. 	She was 	told it was being prepared, 	and would
be 	filed shortly. 	On October 30, 	1987, 	however, 	Parisi received
a 	letter 	from CSEA 	informing her 	that 	the 	appeal was 	being
dropped.
On November 	17, 	1987, 	Parisi consulted a private attorney,
who 	informed her 	that 	the 	time 	for 	filing her appeal 	had passed.
Upon 	learning this, 	Parisi 	filed an unfair practice 	charge
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against CSEA, 	alleging that 	the 	association had violated 	its 	duty
of 	fair representation.
Initially 	it 	should be 	noted that neither 	side 	stated
outright whether Parisi was 	a member of CSEA. 	Both parties,
however, 	at various 	times 	in their briefs refer to Parisi 	as
being a member of CSEA. 	Accordingly, 	this order is 	predicated on
that basis. 3
CSEA'S 	MOTION TO DISMISS
CSEA 	sets 	forth 	three 	reasons 	why 	the 	complaint 	should be
dismissed. 	First, 	CSEA argues 	that 	it owed no duty of
representation 	to 	Parisi 	in her appeal 	before 	the 	State 	Personnel
Board. 	Second, 	CSEA alleges 	that the 	charge was not timely 	filed
pursuant to Government Code 	section 3514.5(a)(1). 	Finally, 	CSEA
alleges 	that 	Parisi 	did not 	exhaust her 	internal 	union remedies
prior 	to alleging the denial 	of representation, 	a requirement
found in CSEA Policy File, 	Divisions 	1601.05(a) 	and 	1002.02(a).
CSEA's 	first argument, 	that is, 	that it owed no duty of 	fair
representation to Parisi, 	is 	predicated on two 	1986 PERB
decisions, 	California State Employees Association 	(Lemmons),
(1985) 	PERB Decision No. 	545-S and California State Employees
Association 	(Darzins) 	(1985) 	PERB Decision No. 	546-S. 	Both of
these 	decisions 	addressed 	the 	issue 	of whether or not 	the
exclusive 	representative 	owed 	a 	duty 	to bargaining 	unit members
3 It 	should be noted, 	however, 	that the 	same analysis would
apply even if 	Parisi were not a member of CSEA.
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to 	represent 	them 	fairly 	in matters 	outside 	the 	setting 	of
exclusive representation. 	In other words, 	both of those 	cases
held 	that 	CSEA's 	duty 	of 	fair 	representation 	extended 	only 	to
those 	actions 	where CSEA was 	acting 	in 	its 	capacity as 	the
exclusive representative. 	Thus, 	CSEA owes a duty of fair
representation 	to 	the 	bargaining unit members 	in 	the 	handling 	of
grievances, 	which arise out of the 	collective bargaining
agreement; 	it owes 	a duty of 	fair representation in matters
before 	PERB; 	and it owes 	a duty of 	fair representation to the
bargaining unit members 	in negotiations. 	CSEA argues, 	however,
that 	the 	duty 	of 	fair representation does 	not 	extend 	to 	actions
in 	front of 	the 	SPB, 	where 	only individual rights 	and not
collective rights are at issue. 	Thus, 	CSEA had no duty to
represent 	Parisi 	in her appeal 	before 	the SPB, 	and thus 	it could
not breach that non-existent duty.
Second, 	CSEA argues 	that the 	charge is 	time-barred.
Government Code 	section 	3514.5(a)(1) 	sets 	forth a 	six-month
statute 	of 	limitations 	period 	for 	all 	unfair practice 	charges 	to
be 	filed. 	The 	charge 	in this 	case was 	filed initially on March
7, 	1988. 	CSEA argues that this cause of action accrued however,
on March 	7, 	1987, 	the day after the original 	SPB hearing. 	On
that date, 	CSEA is 	alleged to have 	failed to 	file 	Parisi's 	second
appeal 	in her dismissal. 	At that point, 	assuming it existed/ 	the
duty of 	fair representation was 	breached because 	at 	that point
CSEA allegedly 	failed to act in Parisi's 	interest. 	As 	the 	charge
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was not filed for a full year after March 7, 	1987, 	it is time-
barred.
Finally, 	CSEA alleges 	that 	Parisi was bound by CSEA's
internal 	union procedures, 	which called 	for an aggrieved party to
appeal 	internally CSEA's 	decision not to 	file 	(or 	in this 	case
re-file) 	any action before the 	SPB. 	Since the 	internal 	union
procedure 	had not been 	exhausted, 	Parisi 	should be barred 	from
litigating 	the matter before 	PERB.
PARISI'S 	RESPONSE
In her reply to CSEA's Motion to Dismiss, 	Parisi 	argues 	that
although 	CSEA did 	not 	have 	an 	initial 	duty to 	represent her 	in
front 	of 	the 	SPB, 	having agreed to do 	so CSEA should be 	held 	to
the 	standard 	applicable 	to 	those 	situations wherein 	the 	duty
clearly attaches. 	In other words, 	the duty of 	fair
representation may 	not 	have 	initially 	applied 	to 	CSEA 	in 	this
matter, 	but once CSEA agreed to represent Parisi 	in 	front of 	the
SPB, 	it was bound to do 	so in a manner consistent with the
standards 	set 	forth in 	the 	Dills Act 	for 	the duty of 	fair
representation. 4
4 The 	duty of 	fair representation 	for non-member 	is 	set
forth at Government Code Section 3515.7(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.
This 	standard of 	conduct 	is 	equally applicable 	to 	conduct
towards 	members 	of the 	exclusive representative 	organization.
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California State Employees Association 	(Norgard) 	(1984), 	PERB
Decision No. 	451-S.
As 	to the 	timeliness 	issue, 	Parisi 	argues that the 	cause of
action 	in this 	case 	accrued 	only 	after Parisi 	received a 	letter
from CSEA on October 	30, 	1987, 	informing her that her case was
being 	closed because 	she was 	"not 	interested" 	in proceeding at
that particular time. 	Indeed, 	Parisi 	argues that November 	17,
1987, 	the 	date 	that 	she 	first 	learned 	from her private attorney
that 	she 	could no 	longer pursue 	her appeal 	in 	front 	of 	the 	SPB,
is 	the date 	from which the 	six-month 	statute began to run.
Finally, 	Parisi 	argued that 	exhaustion of 	internal 	union
remedies 	was 	unnecessary 	because 	long 	established 	labor 	law
principles 	to not require 	exhaustion of 	internal 	union remedies
when 	such 	claims would be 	futile. 	See e.g. 	Clayton v.
International Union 	(1981) 	451 U.S. 	689 	[107 LRRM 2385].
ISSUES
As 	noted by the parties, 	the three 	issues raised in the
Motion to Dismiss 	are: 	(1) 	Did CSEA have a duty under the Dills
Act to represent Parisi 	in her hearing before the SPB; 	(2) 	Was
the charge 	against CSEA timely 	filed; 	and 	(3) 	Was 	Parisi 	required
to 	exhaust 	her 	internal 	union appeals 	prior 	to 	filing 	her 	unfair
practice 	charge with 	PERB?
CONCLUSIONS 	OF LAW
The Motion to Dismiss 	in this 	case 	is treated as 	a Motion
for Summary Judgment. 	That is, 	assuming all of the 	facts 	in a
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manner most 	favorable 	to the non-moving party 	(in this 	case,
Parisi), 	as 	a matter of law is CSEA entitled to the Motion to
Dismiss? 	If CSEA prevails 	on any one 	of the 	three 	issues 	raised,
Parisi's 	case must be dismissed, 	even if 	the resolution of the
remaining 	two 	issues 	would have been 	favorable 	to Parisi. 	This
is 	so because 	any one 	of 	the 	three 	grounds raised by CSEA 	is
fatal 	to the 	complaint if it is correct as a matter of law. 	I
conclude 	that 	the Motion 	is well-founded.
In this 	case, 	Parisi has 	failed to overcome the argument
that 	CSEA 	owed 	Parisi 	no 	duty 	of 	fair representation 	in 	its
actions representing her 	in 	front of 	the SPB. 	The duty of 	fair
representation 	evolved 	out 	of 	the 	exclusive 	representative's 	duty
to 	represent 	each and every unit member, 	regardless 	of membership
status, 	in actions that arise out of the obligations of
collective bargaining, 	specifically negotiation and
administration of 	a 	collective 	bargaining agreement. 	In this
case, 	as in CSEA (Lemmons), 	supra, and CSEA (Darzins), 	supra,
CSEA is 	being accused 	of 	failing 	to represent 	Parisi 	in a 	forum
that has 	no 	connection with collective bargaining. 	The right of
an employee 	to appear 	in 	front of 	the 	SPB 	is 	an 	individual 	right
granted 	by 	the 	California 	Constitution and unconnected with 	any
aspect 	of 	negotiating or 	administering a 	collective 	bargaining
agreement.
Parisi 	impliedly recognizes 	this 	limitation on the duty of
fair 	representation by 	arguing 	that 	the 	duty attached 	only when
CSEA agreed to represent Parisi 	in 	front of the 	SPB. 	In other
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words, 	had CSEA initially declined representation to 	Parisi 	for
her 	SPB 	appeal, 	it would not have breached 	its 	statutory duty of
representation. 	But, 	because 	it did agree 	initially to represent
her, 	CSEA had 	"fiduciary duty" 	to represent Parisi 	in a 	fair and
impartial 	manner. 	This 	"fiduciary duty" 	presumably 	springs 	from
Parisi's membership in CSEA, 	and 	stems 	from her payment 	of dues
to CSEA 	for various 	services, 	including presumably representation
at 	adverse 	action hearings 	in 	front of various 	state 	agencies.
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In 	support of this 	theory, 	Charging Party cites Archer v.
Airline Pilots Association, 	International 	(1979) 	609 F.2d 	934
(9th Cir). 	The case, 	however, 	is inapposite. 	Archer sued the
airlines 	in a 	civil 	court, 	seeking a civil remedy 	for breach of
the 	fiduciary duty. 	PERB's 	jurisdiction 	is 	limited to 	the
examination of CSEA's role as an exclusive representative, 	and
cannot pass 	judgment 	on CSEA's 	duties 	which may 	arise 	by virtue
of 	its 	fiduciary duty 	to 	its members 	outside 	the exclusive
representation 	setting. 	Under our 	case 	law and 	statutes, 	CSEA
did not breach its duty of 	fair representation to Parisi. 5
ORDER
The 	complaint in Case No. 	S-CO-85-S is hereby DISMISSED, 	for
the 	reasons 	stated above.
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations,
you may obtain a review of 	this 	dismissal 	of 	the 	complaint and
5 Because CSEA prevails 	on this 	issue, 	it is unnecessary to
address the other two issues, 	which now become moot.
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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 	(California Administrative Code, 	title 8, 	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 dismissal 	of 	the
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
(California Administrative Code, 	title 8, 	section 32635(b)).
Service
All 	documents 	authorized to be 	file 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 California
Administrative Code, 	title 8, 	section 32140 for the required
contents and a 	sample 	form.) 	The document will be 	considered
property 	"served" 	when personally delivered 	or deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
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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
(California Administrative Code, 	title 8, 	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.
See California Administrative Code, 	title 8, 	part III, 	section
32300.
Dated: 	January 26, 	1989
MARTHA 	GEIGER
Administrative 	Law Judge
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