California Faculty Association (Macdonald) (PERB 1046H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PATRICK T. 	MACDONALD,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case No. 	SF-CO-34-H
PERB Decision No. 	1046-H
May 	6, 	1994
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Appearance: 	John C. 	Elsbree, 	Attorney, 	for Patrick T. 	Macdonald.
Before Blair, 	Chair, 	Caffrey and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by 	Patrick T.
Macdonald 	(Macdonald). 	The Board agent 	found that 	the 	charge,
alleging 	that 	the 	California 	Faculty Association 	(CFA) 	violated
section 3571.1(e) 	of 	the Higher Education Employer-Employee
Relations Act 	(HEERA),1 did not 	state a prima facie 	case and
dismissed 	the 	charge.
1HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Section 3571.1 reads, 	in pertinent part:
HEERA
It 	shall 	be unlawful 	for an employee
organization to:
(e) 	Fail 	to represent 	fairly and impartially
all 	the 	employees 	in the unit 	for which 	it 	is
the 	exclusive 	representative.

The 	Board has 	reviewed the 	original 	and amended charge, 	the
dismissal 	and warning 	letters, 	and Macdonald's 	appeal.2 The
Board 	finds 	the Board agent's 	dismissal 	to be 	free 	of prejudicial
error and adopts 	it 	as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-34-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair 	Blair and Member Caffrey 	joined 	in 	this 	Decision.
2CFA did not 	file a 	response 	to 	the 	appeal.
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STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT R E L A T I O N S BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)557-1350
January 20, 	1994
John C. 	Elsbree
Law 	Offices
One Embarcadero Center, 	Ste. 	310
San Francisco, 	California 	94111
Re: 	DISMISSAL 	OF UNFAIR PRACTICE CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Patrick T. 	Macdonald v. 	California 	Faculty Association
Unfair 	Practice 	Charge No. 	SF-CO-34-H
Dear Mr. 	Elsbree:
The 	above-referenced unfair practice 	charge, 	filed on
September 28, 	1993, 	alleges that the California Faculty
Association 	(Association) 	denied 	Patrick Macdonald 	the 	right 	to
fair 	representation 	in 	connection with a 	grievance 	filed 	on his
behalf. 	This 	conduct 	is 	alleged 	to violate Government 	Code
section 3571.1(e) 	of 	the Higher Education Employer-Employee
Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated November 29,
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
December 7, 	1993, 	the charge would be dismissed.
Following 	the granting of an extension of 	time, 	you 	filed an
amended charge. 	The amended charge 	refers 	to the 	specific
provisions 	of 	the Memorandum of 	Understanding alleged 	to 	have
been violated by the University. 	The 	charge details 	the
University's 	responses 	to 	each of 	the 	allegations 	raised the
grievance 	through 	the 	first 	two 	informal 	levels. 	None of 	the
responses appears 	to address 	the merits 	of Macdonald's 	claims.
For example, 	in response 	to allegations 	that deal with
appointment 	to 	teaching positions, 	the University asserted 	that
it 	complied with the layoff provisions. 	In addition, 	the
University 	contended 	that 	Macdonald 	lacked 	the 	requisite 	academic
qualifications, 	when he 	had 	received an appointment 	letter and
had the 	required academic 	credential, 	at 	least 	as 	stated 	in 	the
job announcement. 	By letter dated October 9, 	1992, 	Gail Holmes,

Dismissal, etc.
SF-C0-34-H
January 20, 	1994
Page 	2
Director of 	Field Operations 	for the Association, 	advised
Macdonald 	that 	she 	had decided not 	to proceed 	to arbitration.
Macdonald appealed 	that 	decision 	to 	the 	Association's
Representation Committee. 	By letter dated March 29, 	1993, 	Larry
Giventer, 	Chairperson of 	the Representation Committee, 	advised
Macdonald 	that 	the 	Committee 	had decided not 	to arbitrate 	the
grievance. 	Macdonald contends 	that 	the University's 	failure 	to
address 	the merits 	of his 	grievances 	"implies 	that 	either 	(a)
[the Association] 	did not present 	the 	facts and the provisions 	of
the MOU at 	the hearings 	or 	(b) 	[the University ignored them," 	and
"[t]hat being the case, 	[the Association's] 	presentation of 	the
grievance was perfunctory, 	or 	[the Association's] 	review of 	[the
University's] 	responses was perfunctory or both." 	Finally,
Macdonald alleges 	that 	Giventer had personal 	differences 	with
him, 	although he does not 	allege a basis 	for this 	claim.
The new allegations 	fail 	to demonstrate 	that 	the Association's
refusal 	to arbitrate 	the 	grievance was 	for arbitrary,
discriminatory, 	or bad faith reasons. 	Macdonald attempts 	to rely
on 	the 	theory 	that 	a 	"perfunctory" 	handling of 	a grievance
constitutes 	"arbitrary" 	conduct. 	This theory, 	while not
universally 	accepted by 	courts 	and 	never 	expressly 	embraced by
the 	Public Employment Relations 	Board, 	is nevertheless a 	fairly
narrow one. 	(See McKelvey, 	The 	Changing Law of 	Fair
Representation 	(1985) 	at pp. 	145-169; 	Dutrisac v. 	Caterpillar
Tractor Compan
- - y 	(9th Cir. 	1983) 	749 	F.2d 1270; 	Hines v. 	Anchor
Motor Freight 	(6th Cir. 	1974) 	680 F.2d 598 	[110 LRRM 2939];
American Federation of State. 	County, 	and Municipal Employees
(1993) 	PERB Dec. 	No. 	982-H.) 	Assuming for argument's sake that
the theory is viable, 	under the applicable authorities, 	a
"perfunctory" 	handling of 	a grievance 	could 	result 	from a
complete 	failure 	to 	investigate 	the 	facts 	underlying a grievance
or 	an unexplained 	failure 	to perform a ministerial 	duty,
typically resulting 	in a procedural 	default. 	The 	facts 	alleged
in the 	instant 	charge 	fail 	to establish either of 	these 	theories.
There 	is 	insufficient 	foundational 	evidence 	to 	support 	an
inference 	that 	the Association's 	conduct 	was 	arbitrary.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	above and those 	contained in my November 29, 	1993 	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
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Dismissal, etc.
SF-CO-34-H
January 20, 	1994
Page 3
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:
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.)
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Dismissal, etc.
SF-C0-34-H
January 20, 	1994
Page 4
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
DONN GINOZA
Regional Attorney
Attachment
cc: 	Delia Bahan
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By

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
November 29, 	1993
John C. 	Elsbree
Law Offices
One Embarcadero Center, 	Ste. 	310
San Francisco, 	California 	94111
Re: 	WARNING LETTER
Patrick T. 	Macdonald v. 	California Faculty Association
Unfair Practice Charge No. 	SF-CO-34-H
Dear Mr. Elsbree:
The above-referenced unfair practice charge, 	filed on
September 28, 	1993, 	alleges that the California Faculty-
Association 	(Association) 	denied Patrick Macdonald the right 	to
fair representation in connection with a grievance filed on his
behalf. 	This conduct is alleged to violate Government Code
section 3571.1(e) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA).
Investigation of the charge revealed the following. 	Patrick
Macdonald was 	employed by the 	California State University
(University) 	until his termination in 1991. 	On or about August
23, 	1991, 	the Association presented a grievance alleging
violations of Articles 1, 	12, 	and 38 of the Memorandum of
Understanding 	(MOU) 	then in existence between the parties. 	The
grievance was pursued through the various procedures 	set forth in
the MOU. 	The Association made a demand for arbitration of the
grievance. 	On or about March 29, 	1993, 	the Association informed
the University that 	it was withdrawing its demand for
arbitration. 	A copy of 	the letter was also sent to Macdonald.
Macdonald was not notified prior to the letter that the
Association intended to withdraw its demand. 	Without 	specifying
the basis, 	the charge alleges that the Association abandoned a
meritorious grievance.
The undersigned provided the 	Charging 	Party with an opportunity
to provide additional evidence to support the allegations 	in the
charge, 	but no additional evidence has been submitted.
Based on the facts stated above, 	the charge as presently written
fails 	to state a prima facie violation of the HEERA for the
reasons that 	follow.
In order to state a prima facie violation, 	the Charging Party
must 	show that 	the Association's refused to process a meritorious
grievance for arbitrary, 	discriminatory or in bad faith reasons.
In United Teachers of Los Angeles 	(Collins) 	(1983) 	PERB Dec.
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SF-C0-34-H
November 29, 	1993
Page 2
No. 	258), 	the Public Employment Relations Board 	(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.
[Citations.]
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.
It 	has 	also been 	stated 	that 	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 Dec. No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Dec. No. 	124.)
The 	charge 	fails 	to allege 	sufficient 	facts 	from which 	it 	can be
concluded 	that 	a prima 	facie violation 	occurred under 	the
standards 	articulated above.
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
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SF-CO-34-H
November 29, 	1993
Page 3
amended charge or withdrawal from you before December 7, 1993991993, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
icember 7, 1 	3, I
Sincerely,
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DONN GINOZA
Regional Attorney
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