Amalgamated Transit Union Local 256 (Gibson) (PERB 1054E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BETTY 	JEAN GIBSON,
Charging 	Party,
v.
AMALGAMATED TRANSIT UNION LOCAL
256,
Respondent.
)
)
) 	Case No. 	S-CO-313
PERB Decision No. 	1054
September 	6, 	1994
)
)
)
)
)
)
)
Appearance: 	Betty Jean Gibson, 	on her own behalf.
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Betty Jean Gibson
(Gibson) 	of a Board agent's dismissal 	(attached) 	of 	the unfair
practice 	charge 	against 	the Amalgamated Transit 	Union 	Local 	256
(ATU). 	Gibson's 	charge alleged that ATU violated her right 	to
fair 	representation guaranteed under 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA) 	thereby violating
EERA section 3543.6(b).1 The. Board has 	reviewed the warning and
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting and negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in
the appropriate unit.
Section 3543.6(b) 	states, 	in pertinent part:
It 	shall be unlawful 	for an employee
organization to:
e

(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.
dismissal 	letters, 	Gibson's appeal 	and the 	entire 	record 	in 	this
case. 	The Board finds 	the Board's 	agent's 	dismissal 	to be 	free
of prejudicial 	error and adopts 	it 	as 	the 	decision of 	the Board
itself 	in accordance with 	the 	following 	discussion.
DISCUSSION
On appeal, 	Gibson requested the 	Board 	to determine 	the
merits 	of her 	charge 	against ATU. 	Gibson alleges 	that ATU 	failed
to process 	her grievance 	within 	the 	time 	period allowed 	for 	in
the 	collective bargaining agreement. 	Gibson claims 	that 	even
though 	she was 	repeatedly 	reassured by ATU over a period 	of 	one
year, 	that 	they were attending 	to her grievance, 	they ultimately
stated that 	they missed the 	filing deadline. 	In addition, 	Gibson
argues 	that because of ATU's actions 	or inactions, 	she has
suffered a monetary 	loss.
To 	establish a prima 	facie 	case 	of 	a violation of 	the 	duty
of 	fair 	representation Gibson must 	demonstrate 	that 	ATU's
conduct was arbitrary, 	discriminatory or in bad faith. 	(United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258
(Collins).) 	The question here 	is whether ATU's 	"action or
inaction" 	was 	without 	a 	rational 	basis when ATU failed 	to 	file 	a
grievance 	on Gibson's 	behalf. 	(Reed District 	Teachers
Association, 	CTA/NEA 	(Reyes) 	(1983) 	PERB Decision No. 	332.)
22

In analyzing whether ATU's 	alleged 	failure 	to 	file 	a
grievance 	on behalf 	of Gibson constitutes a prima 	facie 	case, 	all
essential 	facts 	alleged 	in 	the 	charge 	and 	the 	supplemental
pleading are 	assumed to be 	true. 	(San Juan Unified School
District 	(1977) 	EERB Decision No. 	12.2)
Is ATU's 	"action or inaction" 	tantamount 	to processing a
grievance 	in a perfunctory manner and 	thus 	a violation 	of 	the
duty 	of 	fair 	representation? 	The 	Board agent's 	warning 	letter
stated that 	in August, 	1992, 	Gibson returned from a medical 	leave
and 	called attention 	to ATU's 	inaccurate 	calculation 	of 	her
seniority. 	The 	Board agent's warning 	letter also 	states 	that 	in
August, 	1993, 	one year after Gibson returned from medical 	leave,
Roy Williams, 	ATU president, 	advised her that he was 	"told 	[by
the District] 	that 	there was nothing that 	could be done." 	It was
too late 	to 	file a grievance. 	Thus, 	the 	reason Gibson filed 	this
charge.
In accordance with Collins. 	a union cannot accept 	a
grievance 	and 	then proceed 	to process 	that 	grievance 	in a
perfunctory fashion. 	In the 	instant 	case, 	ATU's handling of
Gibson's 	grievance 	falls 	slightly 	short 	of 	a perfunctory process
because 	Gibson alleged no 	facts 	that 	showed 	that ATU's 	conduct 	in
failing 	to pursue 	her grievance 	was 	anything more 	than mere
negligence. 	The Board in 	the past 	has 	found that mere negligence
2Prior to January 1, 	1978, 	PERB was known as Educational
Employment 	Relations 	Board.
33

on 	the part 	of 	a party does 	not 	constitute arbitrary,
discriminatory or bad 	faith 	conduct. 	(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.)
The 	Board hereby AFFIRMS 	the 	Board agent's 	dismissal 	of
Gibson's 	unfair practice 	charge.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-313 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Carlyle 	joined 	in 	this Decision.
44

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
May 3, 	1994
Betty 	Jean Gibson
Judy 	Boatwright
Re: 	Betty Jean Gibson v. 	Amalgamated Transit Union Local 	256
Unfair 	Practice 	Charge No. 	S-CO-313
DISMISSAL 	LETTER
Dear Mrs. Gibson:
On January 10, 	1994, 	you filed a charge in which you allege 	that 	the
Amalgamated Transit Union, 	Local 	256 	(ATU) 	violated section 3543.6 	of 	the
Government 	Code. 	Specifically you allege 	that 	the ATU did not 	adequately
represent 	you when you wished 	to 	contest 	the 	calculation of 	your
seniority points 	by your employer, 	the 	Elk Grove Unified School 	District
(District). 	You contend that 	in August, 	1992, 	upon your return from a
medical 	leave of 	absence, 	you called to the attention of ATU the
inaccurate 	calculation of your seniority by the District. 	ATU President,
Roy Williams, 	along with 	other ATU officers 	advised you 	they would 	look
into 	it 	and attempt 	to 	resolve 	the problem. 	A year passed 	in which you
continued to 	inquire as 	to the 	status 	of your complaint, 	you were
continually 	told 	it 	was 	being attended 	to by ATU representatives.
In August, 	1993, 	Roy Williams advised you that he had been told by the
District 	that 	there was nothing that 	could be done. 	It was 	too late 	to
file 	a grievance 	and Roy Williams 	advised you he 	should have 	filed 	one 	to
protect your 	interests.
Since you 	filed the 	charge, 	there have been further attempts 	to 	resolve
the question of your seniority. 	ATU did have 	the District 	reevaluate
your 	seniority and 	the 	four months 	that 	were 	deducted 	from your 	seniority
were 	restored. 	You 	continued 	to want 	PERB to determine 	the merits 	of
your charge.
You have 	alleged 	that 	the 	exclusive 	representative 	denied you 	the 	right
to 	fair 	representation guaranteed by EERA section 	3544.9 	and 	thereby
violated section 3543.6(b). 	The duty of 	fair representation imposed on
the 	exclusive 	representative 	extends 	to grievance handling. 	(Fremont
Teachers Association 	(King) 	(1980) 	PERB Decision No. 	125; 	United Teachers
of Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258.)

I 	indicated 	to you 	in my attached letter dated April 	15, 	1994 	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 May 2, 	1994,
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 April 	15, 	1994, 	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:
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.
2
)
2

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.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the dismissal
will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
7
ROBERT 	THOMPSON
Deputy General 	Counsel
By Roger 	Smith
Board 	Agent
Attachment
cc: 	Joseph Freitas, 	Jr.
3
)
3

STATE OF CALIFORNIA 	• 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
DEAD
April 15, 	1994
Betty Jean Gibson
Re: 	Betty Jean Gibson v. 	Amalgamated Transit Union Local 	256
Unfair Practice 	Charge No. 	S-CO-313
WARNING 	LETTER
Dear Mrs. Gibson:
On January 10, 	1994, 	you filed a charge 	in which you allege that 	the
Amalgamated Transit Union, 	Local 	256 	(ATU) 	violated section 3543.6 	of 	the
Government 	Code. 	Specifically you allege 	that 	the ATU did not 	adequately
represent 	you when you wished 	to 	contest 	the 	calculation of 	your
seniority points 	by your employer, 	the 	Elk Grove Unified School 	District
(District). 	You contend that 	in August, 	1992, 	upon your return from a
medical 	leave of absence, 	you called to the attention of ATU the
inaccurate 	calculation of your seniority by the District. 	ATU President,
Roy Williams, 	along with other ATU officers 	advised you 	they would 	look
into 	it 	and attempt 	to 	resolve 	the problem. 	A year passed 	in which you
continued to 	inquire as 	to the status of your complaint, 	you were
continually 	told 	it 	was 	being 	attended 	to by ATU representatives.
In August, 	1993, 	Roy Williams 	advised you that he had been told by the
District 	that 	there was nothing that 	could be done. 	It was 	too 	late 	to
file a grievance 	and Roy Williams 	advised you he 	should have 	filed one 	to
protect your 	interests.
Since you 	filed the 	charge, 	there have been further attempts 	to 	resolve
the question of your seniority. 	ATU did have 	the District 	reevaluate
your 	seniority and 	the 	four months 	that were 	deducted 	from your 	seniority
were 	restored. 	You 	continued to want 	PERB 	to determine 	the merits 	of
your charge.
You have 	alleged 	that 	the 	exclusive 	representative 	denied you 	the 	right
to 	fair 	representation guaranteed by EERA section 	3544.9 	and 	thereby
violated section 3543.6(b). 	The duty of 	fair representation imposed on
the 	exclusive 	representative 	extends 	to grievance handling. 	(Fremont
Teachers Association 	(King) 	(1980) 	PERB Decision No. 	125; 	United Teachers
of Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258.)
In order to state a prima facie violation of 	this 	section of EERA,
Charging 	Party must 	show that 	the Association's 	conduct was 	arbitrary,
discriminatory or 	in bad 	faith. 	In United Teachers 	of 	Los Angeles
(Collins). 	the Public Employment Relations Board stated:

April 15, 	1994
Page 2
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.
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.]
ATU's 	inaction 	in 	filing a grievance may demonstrate negligence 	but
negligence 	alone 	does 	not 	demonstrate a violation of 	the 	duty 	to 	fairly
represent you.
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 May 2, 	1994, 	I shall dismiss your charge. 	If
you have any questions, 	please 	call me 	at 	(916) 	322-3198 	ext.358.
Sincerely,	SiJ1.perely,
Roger 	Smith
Board Agent
cc: 	Judy Boatwright
•
)