California Association of Highway Patrolmen (Burks) (PERB 1021S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT BURKS,
Charging 	Party,
v.
CALIFORNIA ASSOCIATION 	OF
HIGHWAY 	PATROLMEN,
Respondent.
Case No. 	LA-CO-53-S
PERB Decision No. 	1021-S
October 22, 	1993
Appearance: 	Robert Burks, 	on his own behalf.
Before Hesse, 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Robert Burks 	(Burks)
of a Board agent's dismissal 	(attached) 	of his unfair practice
charge which alleged 	that 	the 	California Association of 	Highway
Patrolmen 	(CAHP) 	violated section 3519.5 	of 	the Ralph C. 	Dills
Act 	(Dills 	Act).1 Burks 	alleged 	that 	the 	CAHP violated 	its 	duty
of 	fair 	representation when 	it 	failed 	to negotiate with 	the 	State
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519.5 	states, 	in pertinent part:
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.

employer 	over a 	contract 	provision 	specifically 	requested by
Burks.
The 	Board has 	reviewed 	the warning and dismissal 	letters 	and
the 	appeal 	filed by Burks. 	The Board 	finds 	the Board agent's
dismissal 	to be 	free 	of prejudicial 	error and adopts 	it 	as 	the
decision of 	the Board 	itself.
DISCUSSION
On appeal, 	Burks makes 	several 	new allegations 	involving
CAHP's violation of 	its 	duty of 	fair representation. 	However,
PERB Regulation 32635(b)2 prohibits 	the 	introduction of new
allegations 	on appeal 	absent 	a 	showing of 	good 	cause. 	Burks 	has
not 	shown good 	cause 	to 	justify presenting his 	new allegations 	on
appeal.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-53-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Hesse 	and Garcia 	joined 	in 	this 	Decision.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32635
states, 	in pertinent part:
(b) 	Unless good cause 	is 	shown, 	a charging party
may not 	present 	on appeal 	new charge 	allegations
or new supporting 	evidence.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
— —
February 22, 	1993
Robert 	Burks
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-C0-53-S, 	Robert Burks v.
California Association 	of 	Highway 	Patrolmen
Dear Mr. 	Burks:
In 	the above-referenced charge, 	you allege 	that 	the 	California
Association of 	Highway Patrolmen 	(CAHP) 	failed to 	represent you
fairly 	in negotiations with the 	State 	of 	California. 	This
conduct 	is 	alleged to violate Government 	Code 	section 3519.5 	of
the Ralph C. 	Dills Act.
I 	indicated to you, 	in my attached letter dated January 26, 	1993,
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. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case or withdrew it prior 	to
February 5, 	1993, 	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 January 26 	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 of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs.., 	tit. 	8,
sec. 	32135.) 	Code of 	Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is;
I
4i)

Dismissal 	Letter
LA-CO-53-S
February 22, 	1993
Page 2
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 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal* 	Code of
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 of 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.
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 of Regs., 	tit. 	8, 	sec. 	32132.)
(

Dismissal Letter
LA-C0-53-S
February 22, 	1993
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 THOMAS J. [ALLEN
Regional Attorney
Attachment
cc: 	Jon H. Hamm
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 26, 	1993
Robert 	Burks
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-53-S,
Robert 	Burks v. 	California Association of 	Highway
Patrolmen
Dear Mr. 	Burks:
In 	the above-referenced charge, 	you allege 	that 	the 	California
Association 	of 	Highway Patrolmen 	(CAHP) 	failed 	to 	represent 	you
fairly 	in negotiations 	with the 	State 	of 	California. 	This
conduct 	is 	alleged 	to violate Government 	Code 	section 	3519.5 	of
the Ralph C. 	Dills Act.
My 	investigation of 	this 	charge 	reveals 	the 	following 	facts.
You 	are 	employed by 	the 	California Highway 	Patrol 	as 	a 	State
Traffic Officer, 	in a unit 	for which the 	CAHP 	is 	the exclusive
representative. 	For more 	than a year, 	and most 	recently 	in April
1992, 	you requested that 	the 	CAHP negotiate a collective
bargaining 	agreement 	with 	the 	State 	that 	would 	"make 	race
discrimination/retaliation 	complaints 	a part 	of 	the 	grievance
process." 	The 	CAHP 	negotiated and 	ratified a new agreement,
effective July 	1, 	1992, 	that 	did not 	comply with your request.
You allege 	that 	CAHP's 	failure 	to negotiate 	in accordance with
your request was 	"arbitrary" 	and 	"irrational." 	In response, 	the
CAHP points 	out 	that 	the agreement 	it 	negotiated 	is 	similar to
other State 	agreements 	in not 	subjecting 	race 	discrimination
issues 	to the grievance process. 	It 	also points 	out 	that 	there
are 	other 	legal 	avenues 	for race discrimination 	cases, 	including
the 	Highway 	Patrol's 	internal 	Equal 	Employment 	Opportunity
program, 	the State 	Personnel 	Board, 	the 	California Department 	of
Fair Employment 	and Housing, 	and the United States 	Equal
Employment 	Opportunity 	Commission.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima facie violation of 	the Ralph C. 	Dills Act, 	for the 	reasons
that 	follow.
The 	CAHP's 	duty of 	fair 	representation extends 	to negotiations,
but 	it 	does 	not 	establish an 	obligation 	to negotiate as 	to 	any
specific 	subject. 	Rocklin Teachers 	Professional 	Association
I 	r'

Warning 	Letter
LA-CO-53-S
January 26, 	1993
Page 2
(Romero) 	(1980) 	PERB Decision No. 	124, 	at p. 	11. 	In order to
state a prima 	facie violation, 	a Charging Party must 	show 	"by
virtue 	of 	specific 	factual 	circumstances" 	that 	a 	failure 	to
negotiate was arbitrary. 	Id.
It 	is not 	enough 	for a 	Charging 	Party 	to 	allege 	the 	conclusion
that 	a 	failure 	to negotiate was 	"arbitrary" 	or 	"unreasonable."
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. 	(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.]
In Oxnard Educators Association 	(1988) 	PERB Decision No. 	664, 	the
Charging 	Parties 	stated a prima 	facie 	case by alleging 	in part
that 	the 	exclusive 	representative 	knowingly bargained away 	the
Charging 	Parties' 	statutory rights 	to pay equity. 	In the present
case, 	it 	does not 	appear that 	the CAHP 	"bargained away" 	statutory
rights 	to nondiscrimination. 	It 	appears 	rather that 	the 	CAHP
simply 	failed 	to 	negotiate 	for 	an additional 	contractual
procedure 	for the vindication of 	statutory rights. 	The present
case 	is 	thus more 	similar 	to Reed District 	Teachers Association.
CTA/NEA 	(Reyes) 	(19 83) 	PERB Decision No. 	332, 	in which the
Charging 	Party 	failed 	to 	state 	a prima 	facie 	case 	when he 	alleged
that 	the 	exclusive 	representative 	had negotiated an 	agreement
that 	denied 	individual 	employees 	the 	right 	to 	redress 	grievances.
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
deficiencies 	explained above, 	please amend the 	charge. 	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 	February 5, 	1993, 	I
(

Warning Letter
LA-C0-53-S
January 26, 	1993
Page 3
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
VV
Thomas J. Allen
Regional Attorney
(