California Association of Highway Patrolmen (Burks) (PERB 0878S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT 	BURKS,
Charging 	Party,
v.
CALIFORNIA ASSOCIATION OF 	HIGHWAY
PATROLMEN,
Respondent.
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) 	Case No. 	LA-CO-39-S
PERB 	Decision No. 	878-S
May 	16, 	1991
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Appearance: 	Robert Burks, 	on his own behalf.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal by Robert Burks 	(Burks) 	of a
regional 	attorney's dismissal 	(attached hereto) 	of Burks' 	charge
that 	the 	California Association of 	Highway 	Patrolmen violated
subdivisions 	(a), 	(b), 	and 	(c) 	of section 3519.5 of the Ralph C.
Dills Act.1 We have reviewed the dismissal 	and, 	finding 	it 	to be
1Ralph C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Section 3519.5 	states 	in relevant part:
It 	shall be unlawful 	for an employee
organization to:
(a) 	Cause or attempt to cause the 	state to
violate Section 	3519.
(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.
______ )

free of prejudicial 	error, 	adopt it as 	the decision of the Board
itself.2
The unfair practice charge 	in Case No. 	LA-CO-39-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse and Member Camilli 	joined 	in this 	Decision.
(c) 	Refuse or 	fail 	to meet and 	confer 	in
good 	faith with 	a 	state 	agency 	employer 	of
any of the employees 	of which 	it 	is 	the
recognized 	employee 	organization.
2The 	full 	citation to the Collins 	case, 	cited by the
regional 	attorney in his warning 	letter, 	is 	United Teachers 	of
Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.
22

.STATE Of CALIFORNIA 	PETE 	WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
353O Wilshire Boulevard. Suite 650
l o t Angles, CA 	90010-2334
(213) 736-3127
January 30, 	1991
Robert 	Burks
RE: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-39-S, 	Robert Burks v. 	California
Association 	of 	Highway 	Patrolmen
Dear Mr. 	Burks:
I 	indicated to you 	in my attached 	letter dated January 	11, 	1991,
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 	correc
. . 	t 	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 January 18, 	1991, 	the charge would be dismissed. 	I
later extended that deadline to January 25, 	1991.
I 	have not received either a 	request 	for withdrawal 	or an amended
charge. 	On January 28, 	1991, 	I received from you a letter dated
January 23, 	1991, 	and sent by certified mail on January 24, 	1991.
The 	letter was 	not 	signed under penalty of perjury and was 	not
accompanied by a proof of 	service. 	The 	letter 	states 	that 	there
are 	some omissions 	in my January 	11 	letter, 	even though my 	letter
quoted 	in full 	the allegations 	contained 	in your 	charge. 	Your
letter states, 	in relevant part, 	(1) 	that sometime after May 8,
1990, 	you wrote another 	letter to the CAHP 	requesting 	assistance
with 	another race 	discrimination 	complaint 	(which you do 	not
describe), 	(2) 	that in late May or early June 	1990 you wrote yet
another 	letter to 	the CAHP 	requesting 	assistance with 	a
retaliation complaint 	(which you do not describe), 	and also made
a verbal request for assistance, 	but received no response, 	and
(3) 	that at 	some point 	(perhaps 	in your 	letter of 	late May or
early June 	1990) 	you also requested that 	the CAHP 	negotiate 	to
prevent acts 	of 	race discrimination.
Accepting these statements 	as 	true, 	it 	is 	still not apparent how
the 	CAHP violated 	its 	duty of 	fair 	representation. 	The
memorandum of understanding between 	the CAHP 	and 	the CHP, 	of
which you 	sent me a 	copy, 	does 	not appear to make discrimination
or retaliation subject to 	the grievance procedure, 	to which 	the
duty 	of 	fair representation 	extends. 	The duty 	also 	extends 	to

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CO-39-S
January 30, 	1991
Page 2
negotiations, 	but 	it does 	not appear that 	the CAHP did or could
engage 	in
negotiations during the 	six months prior to the 	filing of 	your
charge 	(on October 5, 	1990). 	From Article XVIII of the
memorandum of understanding 	("Duration"), 	it 	appears 	that 	the
last negotiations were 	in 	1988 	and 	that 	the 	memorandum became
subject 	to 	renegotiation only 	in the 	six 	months prior 	to
June 30, 	1991.
I 	am therefore dismissing the charge based on the 	facts 	and
reasons 	contained 	in this 	letter and 	in my January 	11 	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 Code of Regulations, 	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 	Code 	of
Regulations, 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 Code of 	Regulations,
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.

Dismissal 	and 	Refusal
to 	Issue Complaint
LA-CO-39-S
January 30, 	1991
Page 3
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 	Code 	of
Regulations, 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.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas J. Allelen	len	n
Regional 	Attorney
Attachment
cc: 	John D. 	Markey

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
.
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 	11, 	1991
Robert 	Burks
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-39-S,
Robert 	Burks 	v. 	California Association of 	Highway 	Patrolmen
Dear Mr. 	Burks:
In the above-referenced charge, 	it 	is 	alleged that 	the California
Association of 	Highway Patrolmen 	(CAHP) 	has 	failed 	and 	refused 	to
assist 	you with race discrimination 	complaints 	against 	your
employer, 	the California Highway Patrol 	(CHP). 	This conduct 	is
alleged to violate Government Code sections 	3519.5(a), 	(b) 	and
(c) 	of the Ralph C. 	Dills Act 	(Dills Act).
The charge, 	filed October 5, 	1990, 	alleges 	in full as 	follows:
The 	California Association of 	Highway 	Patrolmen
referred 	to as 	the 	CAHP has 	been 	recognized 	by 	the
State as 	the 	exclusive 	negotiating agent 	for all
employees 	in the law enforcement unit 	#5. 	Members 	of
the 	California 	Highway 	Patrolmen are 	members 	of 	unit
#5.
The CAHP 	has 	the 	responsibility 	for representing 	its
members 	before the 	State regarding wages, 	hours 	and
other terms 	and 	conditions 	of 	employment.
The 	CAHP 	has 	not 	negotiated with 	the 	California 	Highway
Patrol 	to 	solve 	the problems 	of 	Black employees 	being
disciplined or 	fired more 	often 	than Whites. 	The 	CAHP
has 	not worked to assure 	all 	employees 	fair 	treatment
and 	fair opportunity 	for promotions.
The 	CAHP 	has 	not 	negotiated 	and 	worked 	out 	an 	agreement
with the 	California 	Highway 	Patrol 	to 	secure 	the 	rights
of 	Blacks 	to 	have 	a 	good 	favorable working 	atmosphere
free 	from 	intimidation, 	harassment 	and discriminatory
practices.
The CAHP has 	not conducted unbias 	[sic], 	independent
investigations 	of 	race 	discrimination 	complaints
against 	the 	California 	Highway 	Patrol.
Ji\	~- )
~~
.....~~

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 2
The 	CAHP 	has 	not provided 	competent 	qualified
representative 	to assist 	Blacks with 	race
discrimination 	complaints.
The 	CAHP has 	provided 	competent representatives 	in
other disputes 	and 	employment 	matters.
I 	have 	requested that the CAHP 	assist me with the 	race
discrimination 	complaints 	since 	the 	discriminatory 	acts
started.
I 	am 	still 	being 	subjected 	to 	acts 	of 	race
discrimination. 	I 	am still distressed 	from the 	results
of past discrimination acts 	and the CAHP 	refuses 	to
assist 	me with my race 	discrimination 	complaints
against 	the 	California 	Highway 	Patrol.
I 	beleive 	[sic] 	the CAHP 	refused to assist me with my
complaint because of 	my 	race 	and 	the 	complaint 	is 	about
race 	discrimination.
I 	have 	asked you 	to provide 	me with 	information concerning
specific 	instances within the 	six-month 	Dills Act 	statute 	of
limitations 	(beginning April 	5, 	1990) 	when the CAHP 	failed or
refused 	to assist you with matters 	within 	its 	duty 	of 	fair
representation. 	You provided me with a 	copy of 	the memorandum of
understanding between the CAHP 	and 	the CHP. 	That memorandum does
not 	appear to 	contain any provision 	to prohibit 	or 	remedy 	race
discrimination. 	The memorandum 	states 	that 	it was 	entered 	into
on July 	1, 	1988.
You also provided 	me with copies 	of 	some 	correspondence 	between
you and the CAHP. 	On November 	1, 	1987, 	you asked the CAHP to
file 	a petition 	for rehearing 	in a 	case before 	the 	State
Personnel Board. 	The CAHP 	informs me that 	it did 	file a petition
for rehearing, 	but the petition was denied on January 	6, 	1988.
The CAHP also 	informs 	me 	that on January 	4, 	1990, 	the 	federal
Equal 	Employment Opportunity 	Commission 	(EEOC) 	issued 	to you 	a
"right to 	sue" 	letter on a 	charge of 	race 	discrimination and
retaliation you had 	filed, 	although 	the 	EEOC 	concluded 	that 	the
evidence 	obtained 	during 	its 	investigation 	did 	not 	establish 	a
violation. 	You requested assistance 	from the CAHP, 	which, 	on
March 	15, 	1990, 	requested that you provide 	specific 	details 	and
documents. 	On March 	18, 	1990, 	you provided 	such 	information to
CAHP. 	You requested a written response 	from the CAHP 	by March
30, 	1990, 	and a 	full written explanation 	if your request was
denied. 	On April 24, 	1990, 	the CAHP responded as 	follows:

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 3
The 	Board 	of 	Directors 	of 	the 	California 	Association 	of
Highway 	Patrolmen 	considered 	your 	request 	for
assistance at their meeting of April 	19-21, 	1990.
After 	reviewing 	the 	material 	which 	you provided,
including the determination of 	the 	U.S. 	Equal
Employment 	Opportunity 	Commission 	and 	the 	background
material 	which 	you provided 	concerning your 	EEOC
complaint, 	the 	Board of 	Directors 	concluded 	that 	there
was 	an 	insufficient 	basis 	presented 	to provide 	you with
CAHP 	legal assistance. 	Accordingly, 	your request has
been 	denied.
Much 	of 	the 	information which 	you 	provided 	concerned
incidents 	which were 	the 	subject 	of 	an adverse 	action
against you 	in 	1987. 	The adverse action taken against
you by the CHP was 	appealed to 	the 	State Personnel
Board and 	a 	hearing was 	held before 	Judge 	Byron 	Berry.
As 	a 	result of 	that hearing. 	Judge 	Berry 	found against
you 	and was 	unwilling 	to 	conclude 	that 	you were 	the
victim of 	race discrimination. 	The 	State Personnel
Board 	supported his 	findings.
Thereafter, 	you pursued your remedies before the U.S.
Equal 	Employment 	Opportunity Commission. 	You 	alleged
that 	the 	CHP had engaged 	in a 	systematic 	practice of
violating Title VII 	of 	the United States Code. 	In his
letter to you of January 4, 	1990, 	Michael Dougherty of
the 	U.S. 	Equal 	Employment Opportunity Commission set
forth 	the 	Commission's 	conclusion 	"...that 	the 	evidence
obtained during 	the 	investigation does 	not 	establish 	a
violation of 	the 	statute." 	He previously advised you
that 	you would be obliged 	to preserve your rights 	to
file 	a private 	action 	in Federal 	District Court by
filing 	such 	an 	action within 	the 	appropriate 	time
limit, 	since the Board of 	Directors was 	not 	scheduled
to meet until 	after 	the 	expiration of 	that 	limit.
Legal 	assistance 	from the Association 	is 	discretionary,
according to CAHP Bylaws. 	Legal assistance 	"may" 	be
provided 	in certain cases. 	The 	Board of 	Directors 	has
considered the 	material 	which 	you provided, 	has
discussed 	the 	case with 	Legal 	Counsel 	and has
considered 	the 	likelihood 	that 	a 	successful 	suit 	can be
brought 	on your 	behalf 	after 	two 	separate 	entities
which have 	had 	the 	opportunity 	to 	review your 	charges
have 	chosen not 	to accept 	them as 	valid. 	There 	is 	no
reason 	to 	believe 	that 	a 	Federal 	District Court would
reach 	a 	different 	decision with 	regard 	to 	your 	claims.

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 	4
The 	approval 	of 	legal 	assistance 	in 	any case 	involves
the allocation of 	limited CAHP assets. 	Legal
assistance 	is primarily used 	for officers who 	face
disciplinary action. 	It was made available to you at 	no
expense when you 	faced disciplinary 	action. 	Your
contention with 	regard 	to 	the 	State 	Personnel 	Board
being 	essentially a 	rubber 	stamp 	for 	management 	is 	not
supported by the evidence. 	The CAHP 	consistently
persuades 	the 	State 	Personnel 	Board 	to 	revoke 	or modify
disciplinary 	actions 	taken against 	CHP 	officers,
particularly 	in 	serious 	cases 	involving 	large penalties
or dismissal. 	Your 	statement 	that 	the Department
"...will 	violate 	the 	law and 	it's 	own policies 	because
the 	Department 	knows 	that 	almost 	every 	case presented
[to the Board will be decided] 	in favor of the
Department 	by Administrative 	Law Judges 	regardless 	of
the 	circumstances 	in evidence." 	is 	simply no	
. t accurate.
You do, 	of course, 	have the right to pursue this matter
on your own time and at your own expense. 	That 	is 	your
choice. 	The Board of Directors 	did 	as 	you requested.
It 	thoroughly 	reviewed 	the 	case which 	you presented 	and
considered carefully all 	of the 	issues 	raised. 	The
Board 	concluded 	that 	your 	case 	could 	not 	succeed 	in
Federal 	District Court 	since 	it 	has 	not 	succeeded
before 	two 	separate and distinct 	independent 	quasi-
judicial bodies.
On May 8, 	1990, 	you wrote again to 	the CAHP, 	asking CAHP to
provide you with an attorney or with 	funds 	to pay 	for one. 	You
stated an 	intention to 	file 	a 	lawsuit 	in 	court 	in the 	next 	30 	to
60 days. 	You also stated 	in part as 	follows:
I 	am not asking the 	Board 	of 	Directors 	to 	form an
opinion or attempt 	to 	conclude whether my 	case 	could 	or
could 	not 	succeed 	in 	court.
I 	am not asking the 	Board of 	Directors 	to review my
request. 	I 	am asking that the 	Board of Directors
specifically 	honor 	my 	request.
If 	the 	Board of 	Directors 	forms 	an opinion or 	come 	to
the 	conclusion that 	my 	case will 	not 	succeed 	in Court
the 	Board of 	Directors will 	be denying me due process.
You have 	not 	informed me whether or 	how 	the 	CAHP 	responded 	to
this 	last 	request.

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 5
Based on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie 	violation of 	the 	Dills 	Act within 	the 	jurisdiction of
the Public 	Employment 	Relations 	Board 	(PERB), 	for the 	reasons
that 	follow.
Government Code 	section 	3514.5(a)(l) 	provides 	in part 	that PERB
"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 present 	charge was 	filed
on October 5, 	1990. 	Alleged unfair practices occurring before
April 	5# 	1990, 	are 	thus 	outside 	the 	six-month Dills Act 	statute
of 	limitations.
PERB Regulation 	32615(a)(5) 	requires 	that 	an unfair practice
charge 	contain a 	"clear 	and 	concise 	statement 	of 	the 	facts 	and
conduct 	alleged 	to 	constitute 	an unfair practice." 	The present
charge does 	not 	clearly 	state 	specific 	facts 	and 	conduct
constituting an unfair practice within 	the 	six-month 	statute 	of
limitations. 	Furthermore, 	the 	supplementary 	information you have
provided, 	while more 	specific, 	does 	not establish a prima 	facie
case of unlawful 	conduct.
The 	charge 	essentially alleges 	a 	violation of 	the duty of 	fair
representation. 	While this 	duty 	extends 	to 	grievance handling
and collective bargaining, 	it does 	not extend to 	extra-
contractual matters, 	such as matters 	before the State Personnel
Board 	(California 	Correctional 	Peace Officers 	Association 	(1987)
PERB Decision No. 	657-S, 	American Federation of State. 	County and
Municipal Employees 	(1988) 	PERB Decision No. 	683-S, 	California
State Employees Association 	(1989) 	PERB Decision No. 	733-S) 	or
civil 	lawsuits 	(California 	Faculty Association 	(1988) 	PERB
Decision No. 	698-H). 	CAHP's 	failure or refusal to assist you
with a 	civil 	lawsuit 	thus 	could 	not 	violate 	its 	duty of 	fair
representation.
Furthermore, 	in order to 	state 	a prima 	facie violation of 	the
duty of 	fair representation, 	a 	Charging 	Party must 	show that 	the
exclusive 	representative's 	conduct was 	arbitrary, 	discriminatory,
or 	in bad faith. 	In United Teachers of Los Angeles 	(Collins).
Id.. 	the PERB 	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.

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 6
A 	union may 	exercise 	its 	discretion 	to
determine 	how far to pursue 	a 	grievance 	on
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.
In order to 	state 	a prima 	facie 	case 	of arbitrary 	conduct
violating 	the duty of 	fair 	representation, 	a Charging 	Party:
. 	. 	. 	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
honest 	judgment. 	Reed 	District 	Teachers
Association. 	CTA/NEA 	(Reyes\ 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
The present 	charge does 	not 	include 	sufficient 	facts 	from which
it 	is 	apparent 	how CAHP's 	action or 	inaction was 	without 	rational
basis 	or devoid 	of 	honest 	judgment 	or was 	discriminatory 	or 	in
bad 	faith. 	Although you apparently disagree with CAHP's
assessment of whether your 	lawsuit would 	succeed, 	that 	is 	the
kind 	of 	assessment 	an 	exclusive 	representative 	may 	reasonably
make 	(California 	School 	Employees Association 	(1983) 	PERB
Decision No. 	372, 	California 	State 	Employees Association 	(1987)
PERB Decision No. 	614-S).
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 	any 	additional 	facts 	that 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 	must 	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

Warning 	Letter
LA-CO-39-S
January 	11, 	1991
Page 	7
not 	receive 	an amended 	charge 	or withdrawal 	from 	you 	before
January 	18, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney