Professional Engineers in California Government (Lopez) (PERB 0760S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EDWARD H. 	LOPEZ,
Charging 	Party,
v.
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA 	GOVERNMENT,
Respondent.
Case No. 	S-CO-92-S
PERB Decision No. 	760-S
September 13, 	1989
Appearances: 	Edward H. 	Lopez, 	on his own behalf; 	Ernest F.
Schulzke, 	Attorney, 	for Professional Engineers 	in California
Government.
Before Hesse, 	Chairperson; 	Porter, 	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 	a Board agent's
dismissal 	(attached hereto) 	of his 	charge that the respondent
violated 	section 3915.5 	of the Ralph C. 	Dills Act 	(Gov. 	Code 	sec.
3512 	et 	seq.). 	We have reviewed the dismissal and, 	finding it
free of prejudicial error, 	adopt 	it as 	the Decision of the Board
itself.
The unfair practice 	charge 	in Case No. 	S-CO-92-S 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By the BOARD
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STATE Of 	California 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
April 	20, 	1989
Edward H. 	Lopez
Dennis Alexander
Professional Engineers 	in California Government
660 J Street, Suite 445
Sacramento, 	California 	95814
Re: 	Edward H. 	Lopez v. 	Professional Engineers in California
Government 	(PECG)
Unfair Practice Charge No. 	S-CO-92-S
DISMISSAL LETTER
Dear Mr. Lopez:
In the above-referenced charge filed on December 22, 	1988, 	you
allege that the Professional Engineers 	in California Government
(PECG) 	violated section 3519.5 of the Dills Act. 	Specifically,
you allege that PECG representative Dennis Alexander failed to
satisfy the duty of 	fair representation by turning over evidence
to the State at a Skelly hearing which was subsequently used
against you. 	In addition, 	you allege that PECG breached its duty
of 	fair representation by not discussing with you certain
provisions 	contained in the collective bargaining agreement
governing subjects such as 	"Unfair Practices" and union "Access."
I 	indicated to you in my attached letter dated March 27, 	1989,
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 that 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 10, 	1989, the charge would be dismissed.
In a telephone call on April 4, 	1989, 	you requested and I granted
an extension of the dismissal deadline to April 	17, 	1989. 	On
April 	17 you again requested an extension of the deadline 	so that
you could obtain for my review a copy of legal authority you
believed to be relevant to your case. 	I explained to you that I
would either have to have a copy of the authority, 	or you could
telephone me its correct legal citation by Wednesday, April 	19,
1989. 	On April 	19, 	1989, 	I did not receive a copy of the case,
nor did you telephone me. 	Thus, 	I am dismissing the charge based
upon the facts and reasons contained in my March 27, 198 9 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 	(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 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 	(California
Administrative Code, 	title 8, 	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 California Administrative Code,
title 	8, 	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 	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 	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).
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Final 	Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal will 	become 	final when the time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
Jennifer A. 	Chambers
Regional 	Attorney
Attachment
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STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento. CA 	95814-4174
(916) 322-3198
March 	27, 	1989
Edward H. 	Lopez
Re: 	Edward H. 	Lopez v. 	Professional 	Engineers 	in California
Government 	(PECG)
Case. 	No. 	S-CO-92-S
Dear Mr. 	Lopez:
On December 	22, 	1988, 	you 	filed 	a 	charge 	in which you allege 	that
the 	Professional 	Engineers 	in California 	Government 	(PECG)
violated 	section 3519.5 	of 	the 	Dills 	Act. 	Specifically, 	you
allege 	that 	PECG 	representative 	Dennis 	Alexander 	failed 	to
satisfy 	the 	duty 	of 	fair 	representation 	by 	turning 	over 	evidence
to 	the 	State 	at 	a 	Skelly hearing which was 	subsequently 	used
against you. 	In addition, 	you allege 	that PECG breached 	its 	duty
of 	fair 	representation by 	not 	discussing with 	you 	certain
provisions 	contained 	in 	the 	collective 	bargaining 	agreement
governing 	subjects 	such 	as 	"Unfair Practices" 	and 	union 	"Access".
My 	investigation revealed 	the 	following 	facts.
In 	1986 	you were hired by 	the Office 	of 	the 	State Architect 	as 	a
Construction Project 	Inspector, 	and on December 	2, 	1987, 	you were
appointed 	by 	the 	State 	to 	the 	classification 	of 	Construction
Supervisor 	I. 	Your 	job 	required 	frequent 	travel 	throughout 	the
state 	in 	order 	to 	conduct 	on-site 	inspections 	of 	construction
projects. 	Your 	employer has 	a procedure by which 	it 	grants 	you
per diem advances 	for your 	out 	of 	area 	travel 	expenses. 	The
amounts 	requested 	in advance, 	however, 	must 	be 	substantiated 	by
receipts 	before 	new travel 	advances 	will 	be 	issued.
On March 	18, 	1988, 	you were assigned 	to 	the 	Los 	Angeles 	area 	to
inspect 	projects. 	Before you 	left 	you 	received 	a 	travel 	advance
of 	two 	checks 	totalling 	$1800. 	Approximately a 	month 	later, 	you
turned 	in 	a 	travel 	expense 	claim which was 	approved 	by 	your
supervisor. 	Then, 	you applied 	for 	and 	received 	a 	new advance 	for
the 	sum 	of 	$1200.
On April 	29, 	1988, 	a State policeman 	served you with a 	notice 	of
suspension. 	In 	it, 	you were placed on leave 	of 	absence without
pay 	while 	your 	employer 	investigated 	an 	alleged 	misappropriation
of 	state 	funds. 	When you 	received 	the 	notice 	of 	suspension, 	you
contacted 	your 	PECG representative, 	Dennis 	Alexander, 	who 	advised
you 	to wait 	until 	you 	heard 	further word 	from 	the 	State.
On 	May 	11, 	1988, 	you were 	served by the 	State with 	a Notice of
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State alleged that you had misappropriated State property by
altering credit card receipts 	in order to claim greater expenses
than were actually incurred. 	When you were 	served this Notice,
you requested Mr. 	Alexander to inspect all documents in the
State's possession relevant to your adverse action, 	which you
allege, he failed to do.
On May 13, 	1988, 	Mr. Alexander represented you at a Skelly
hearing in Sacramento. 	At this hearing, 	Mr. Alexander argued
that you did not alter the receipts, 	and that you had receipts to
substantiate that you were, 	at all times, 	at the location your
employer. intended for you to be. 	Most of these receipts were
located at your home in Madera, 	and were not turned over to the
employer representative on this date.
At the beginning of June, 	1988, you gave Mr. Alexander your
entire collection of receipts. 	Although you gave him permission
to show them to the State, 	you allege that you specifically
requested that he not turn them over. 	However, 	on June 9, 	1988,
Mr. 	Alexander met with employer representative Einer Christensen,
and turned over copies of the receipts. 	These were then used
against you at a subsequent State Personnel Board 	(SPB) 	hearing
in support of the State's case to uphold your termination.
On June 15, 	1988, you requested Mr. Alexander to no longer
represent you. 	You desired his withdrawal from the case because
you learned that he was attempting to obtain for you part of the
monies owed to you by the State. 	When the State dismissed you,
it owed you part of one month's pay. 	Mr. 	Alexander attempted to
get 	from the State the difference between the amount of your
outstanding pay and those monies alleged by the State to have
been misappropriated. 	You felt that Mr. 	Alexander was not
properly representing you because, 	in your view, 	you were
entitled to the entire amount of your pay warrant until the State
sustained its case against you at the SPB proceeding.
You also allege that Mr. 	Alexander failed to satisfy the duty of
representation by not explaining to you certain provisions of the
collective bargaining agreement. 	Some time in May or June 	1988,
you telephoned Mr. 	Alexander and requested that a PECG
representative go to Avenal, 	a small community southwest of
Fresno, California, 	to explain the following contractual
provisions: Section 12B (Unfair Practices), Section 18A, 	18B,
18C, 	18D, 	18E (Representation) and Section 22 	(Training). 	Mr.
Alexander told you that Avenal was too 	"out of the way" 	to send
anyone for the purpose of explaining these provisions, 	and that
these provisions did not apply to you, 	in any event.
Based on the allegations set forth above, 	I do not find that you
have established a prima facie violation of Dills. 	Under Dills,
a breach of the duty of fair representation occurs 	if the
employee organization's conduct is arbitrary, 	discriminatory or
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in bad 	faith. 	California 	State 	Employees' 	Association 	(Lemmons)
(1985) 	PERB Decision No. 	545-S.) 	PERB has determined, 	however,
that 	the 	scope of 	the duty 	is 	limited 	to 	contractually-based
remedies 	under the union's 	exclusive control. 	(San Francisco
Classroom Teachers' 	Association 	(Chestangue) 	(1985) 	PERB Decision
No. 	544; 	California State Employees Association 	(Lemmons), 	supra:
California State Employees' 	Association 	(Darzins) 	(1985) 	PERB
Decision No. 	546-S; 	California Faculty Association 	(Pomerantsev)
(1988) 	PERB Decision No. 	698-H.) 	In these decisions, 	the Board
has 	dismissed 	charges 	based on alleged union 	failures 	to pursue
non-contractual 	administrative or 	judicial 	relief 	such 	as 	an out-
of-class, claim before the SPB, 	or an appeal of an adverse SPB
ruling. 	In other words, 	there is no duty of 	fair representation
owed 	to 	a 	unit 	member unless 	the 	exclusive 	representative
possesses 	the 	exclusive means 	by which 	such 	employee 	can obtain a
particular 	remedy. 	The 	exclusive 	representative 	possesses 	the
sole means 	by which 	a 	unit 	member has 	access 	to 	the 	negotiating
process, 	as well as 	to the grievance and arbitration procedure.
This 	is 	not 	the 	case with regard to representation 	in a 	Skelly
proceeding.
PERB's 	legal 	conclusions 	are 	consistent with 	those 	established
under the National 	Labor Relations Act. 	In Hawkins v. 	Babbock
and Wilcox Co. 	(1980) 	(U.S.D.C., N. Ohio) 	[105 LRRM 3458], 	the
District 	court 	ruled:
The National Labor Relations Act, 	authorizing
unions 	to 	represent 	employees 	in the 	creation
and 	administration 	of 	collecting 	bargaining
agreements with employers, 	together with the
correlative 	duty of 	fair 	representation,
however, 	is 	limited to the collective
bargaining agreement process 	. 	. 	. 	The
union's 	duty of 	fair representation 	is
restricted 	to 	the context of 	the 	collective
bargaining 	agreement and does 	not 	extend 	to
legal 	remedies 	available 	outside of 	the
employment 	contract.
(See also Archer v. 	Airline Pilot's Association 	(9th Cir. 	1979)
609 F2d; 	Freeman v. 	Teamsters Local 	135 	(7th Cir. 	1984) 	746 F2d
1316, 	cert, 	den'd. 	(1980) 	446 US 953.)
Even 	assuming 	that 	Skelly proceedings 	are 	covered 	by 	the 	duty 	of
fair representation, 	it 	should further be noted that 	it 	is
unclear how Mr. 	Alexander, 	by giving the State copies 	of motel
receipts, 	jeopardized your case, 	or incriminated you, 	or violated
the duty of 	fair representation. 	In any event, 	your charge has
alleged no 	facts 	demonstrating that Mr. 	Alexander's
representation was 	arbitrary, 	discriminatory, 	or 	in bad 	faith.
At most, 	Mr. 	Alexander's 	relinquishment of the receipts was 	an
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act of negligence, 	which is an insufficient basis 	for finding a
breach of the duty of fair representation. 	Los Angeles City and
County School Employees Union 	(1983) 	PERB Decision 341.
Your charge, 	as currently alleged, 	further fails to show that
PECG treated you in an arbitrary, 	discriminatory or bad faith
fashion by failing to adequately explain to you certain
contractual provisions. 	The majority of the items you cite refer
to the exclusive representative's rights vis-a-vis the employer.
For example, 	in your charge you cite sections of the collective
bargaining agreement pertaining to the State's 	obligation to:
deal with PECG-designated representatives 	(Section 	18A),
provide PECG with a printout of the names of persons 	in the unit
(Section 18B), 	and to provide access to bargaining unit employees
and State-furnished bulletin boards. 	These provisions 	inure to
PECG's direct benefit and were negotiated to enhance 	its 	ability
to represent the unit. 	Mr. 	Alexander's statement that these
provisions did not apply directly to you did not evince
arbitrary, 	discriminatory or bad faith treatment. 	You also cite
Section 22 of the contract, which delineates the State's
obligation to reimburse unit employees 	for expenses 	incurred as a
result of attending job-required courses. 	While this provision
was negotiated for the unit employees' 	direct benefit, 	as opposed
to PECG's, 	you still have not alleged sufficient facts to show
how Mr. 	Alexander's failure have a PECG representative go to
Avenal to explain this provision, 	or to explain it more
adequately to you on the telephone, 	evidenced discriminatory,
arbitrary or bad faith conduct.
If you feel that there are any factual inaccuracies 	in this
letter or any additional 	facts which would require a different
conclusion than the one explained above, 	please amend the charge
accordingly. 	This 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
cfo not receive an amended charge or withdrawal from you before April
ro 17, 1989, I shall dismiss your charge without leave to amend. 	If
you have any questions on how to proceed, please call me at (916)
322-3198.
Sincerely,
Jennifer Chambers
Regional Attorney
JAC:djt
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