American Federation of State, County and Municipal Employees (Perry) (PERB 1134H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DEJUAN MARCUS 	PERRY,
Charging 	Party,
v.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
Respondent.
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) 	Case No. 	LA-CO-52-H
PERB Decision No. 	1134-H
January 25, 	1996
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Appearance: 	Dejuan Marcus 	Perry, 	on his 	own behalf.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Dejuan Marcus 	Perry 	(Perry)
to a Board agent's dismissal 	(attached) 	of 	the unfair practice
charge and refusal 	to 	issue a 	complaint. 	Perry alleged 	that 	the
American 	Federation of 	State, 	County and Municipal 	Employees
(AFSCME) 	denied him the 	right 	to 	fair and 	impartial
representation guaranteed by 	section 	3578 	of 	the 	Higher 	Education
Employer-Employee Relations Act 	(HEERA), 	in violation of HEERA
section 3571.l(e),1 by declining to process a grievance 	on his
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
HEERA section 3578 	provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative
shall 	represent all 	employees 	in the unit,
fairly and 	impartially. 	A breach 	of 	this
duty 	shall 	be 	deemed to have 	occurred 	if
the 	employee 	organization's 	conduct 	in
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.

behalf.
Perry 	filed an appeal 	of 	the dismissal, 	claiming 	that 	he
does 	not 	understand why 	the 	Board agent 	dismissed his 	charge 	and
repeated 	his 	allegation 	that 	AFSCME 	should have 	represented him
by 	filing a grievance.
The Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the Board agent's 	warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charges, 	and Perry's 	appeal.
Our 	review shows 	that 	the 	Board agent 	explained 	in detail 	why he
was 	dismissing 	the 	charge. 	The 	Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of 	prejudicial 	error and 	therefore
adopts 	them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-52-H is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
Section 3571.1 provides, 	in pertinent part:
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.
2	. 	2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERO
Los Angeles Regional Office .
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
August 24, 	1995
Dejuan Marcus 	Perry
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-52-H, Dejuan Marcus Perry v. American
Federation of State, 	County and Municipal Employees
Dear Mr. 	Perry:
In the above-referenced charge, 	filed on June 22, 	1995, 	you
allege that the American Federation of State, 	County and
Municipal Employees 	(AFSCME) 	denied you the right to fair and
impartial 	representation guaranteed by Government 	Code 	section
3578 	of the Higher Education Employer-Employee Relations Act
(HEERA) 	and thereby violated HEERA section 3571.1 	(e) .
I indicated to you, 	in my attached letter dated August 3, 	1995,
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 August
14, 	1995, 	the charge would be dismissed. 	I later extended the
deadline to August 23, 1995.
On August 21, 	1995, 	you filed an amended charge, 	alleging in full
as follows:
As 	I've stated before, 	Robert Battles did not
represent me at the time I was unfairly
terminated 	from my position at UCLA Family
Health. 	He stated that because of past
writes up from my previous 	job at UCLA
Communications, 	it would be impossible to
win. 	All I was asking of him, 	was to simply
try and make some type of bargain with UCLA
Family Health. 	He 	failed to even try to look
into my case. 	As 	far as those write ups were
concern, 	they were written up many years ago
prior to my termination. 	I feel that if
AFSCME had represented my case at the time,
we could have come down to some type of an
agreement which would prevent 	[me] 	from being
unemployed at this time. 	Again as stated
------

LA-C0-52-H
August 24, 1995
Page 2
before on June 14, 	1995, 	and under the unfair
practice amendment, 	I'm filing a charge
against 	(AFSCME union) 	on an exclusive
representative's 	failure to represent an
employee.
It is still not apparent from this amended charge, 	however, 	how
AFSCME's 	failure to file a grievance on your behalf was
arbitrary, 	discriminatory or in bad faith. 	As explained in my
August 3 	letter, 	an exclusive representative may exercise its
discretion to determine how far to pursue a grievance and is not
required to process a grievance 	if 	the chances 	for success are
minimal. 	I am therefore dismissing the charge, 	based on the
facts and reasons 	contained in this 	letter and in my August 	3
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.

LA-C0-52-H
August 24, 	1995
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 	(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.)
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: 	Joseph R. 	Colton, 	Esq.

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
August 3, 	1995
Dejuan Marcus Perry
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-52-H,
Dejuan Marcus Perry v. 	American Federation of State. 	County
and Municipal 	Employees
Dear Mr. Perry:
In the above-referenced charge, 	filed on June 22, 	1995, 	you
allege that the American Federation of State, 	County and
Municipal Employees 	(AFSCME) 	denied you the right to fair and
impartial 	representation guaranteed by Government 	Code 	section
3578 	of the Higher Education Employer-Employee Relations Act
(HEERA) 	and thereby violated HEERA section 3571.1 	(e).
My investigation of the charge reveals the following relevant
facts.
You were employed by the University of California in a unit 	for
which AFSCME is the exclusive representative. 	The charge
describes your employment by the University, 	which ended when you
were 	"let go" 	on an unspecified date. 	The charge then states as
follows:
I'm filing a charge against AFSCME union for
breached duty of fair representation; 	by
failing to file grievances and missing the
time limits.
The 	charge contains no further information about AFSCME's 	failure
to file grievances. 	(In its response to the charge, 	AFSCME
states that you called AFSCME after you received a notice of
termination, 	that AFSCME investigated your case, 	and that AFSCME
ultimately informed you that your case was extremely weak and
could not be won.)
Based on the facts stated above, 	the charge does not state a
prima facie violation of the HEERA, 	for the reasons that follow.
As Charging Party, 	you allege that AFSCME, 	as your exclusive
representative, 	denied you the right to fair and impartial
representation guaranteed by HEERA section 3578 	and 	thereby
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LA-CO-52-H
August 3, 	1995
Page 2
violated section 3571.l(e). 	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) 	(1982)
PERB Decision No. 	258.) 	In order to state a prima facie
violation of this section of HEERA, 	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). 	the Public Employment Relations Board 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.
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 the present case, 	it is not apparent from the charge how
AFSCME's 	failure to file a grievance was arbitrary,
discriminatory or 	in bad faith.
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

LA-C0-52-H
August 3, 	1995
Page 3
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 August 14, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
Regional Attorney
Thomas J. Allen
TJA:wc