Service Employees International Union, Local 99 (Vercher) (PERB 1196E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANCELLE VERCHER,
Charging 	Party,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99,
Respondent.
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) 	Case No. 	LA-CO-722
PERB Decision No. 	1196
May 2, 	1997
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Appearance: 	Francelle Vercher, 	on his own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Francelle Vercher
(Vercher) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In the 	charge, 	Vercher alleged that 	the Service
Employees 	International 	Union, 	Local 	99 violated section 3543.6(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6 	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.
(c) 	Refuse 	or fail 	to meet and negotiate 	in
good 	faith with a public 	school 	employer of
any of 	the employees 	of which it 	is 	the
exclusive 	representative.

The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the unfair practice 	charge, 	the 	Board agent's 	warning
and dismissal 	letters2 and Vercher's 	appeal. 	The Board 	finds 	the
warning and dismissal 	letters 	to be 	free 	of prejudicial 	error and
hereby adopts 	them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-722 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
2The January 14, 	1997, 	warning letter cites Oxnard School
District 	(Gorcey/Tripp) 	(1988) 	PERB Decision No. 	667. 	The
correct 	citation 	is 	Oxnard Educators Association 	(Gorcey and
Tripp) 	(1988) 	PERB Decision No. 	664 which holds 	that an
individual 	employee 	does 	not 	have 	standing 	to allege 	that 	an
employee 	organization 	failed 	to negotiate 	in good 	faith with 	the
employer.
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
PERS
January 22, 	1997
Francelle Vercher
Re: 	Vercher v. 	Service Employees International Union. 	Local 99
Unfair Practice Charge No. 	LA-CO-722
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT
Dear Mr. Vercher:
In the above-referenced charge you allege the Service Employees
International Union, 	Local 99 	(SEIU) 	violated the Educational
Employment Relations Act 	(EERA or Act) 	section 3543.6(b) 	and 	(c).
I 	indicated to you, 	in my attached letter dated January 14, 	1997
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
January 21, 	1997, 	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 14, 	1997 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
(

LA-CO-722
Dismissal 	Letter
January 22, 	1997
Page 2
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.)
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
Tammy L. 	Samsel
Regional Director
Attachment
cc: 	Howard Z. Rosen

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 14, 	1997
Francelle Vercher
Re: 	Vercher v. 	Service Employees International Union. 	Local 99
Unfair Practice Charge No. 	LA-CO-722
WARNING LETTER
Dear Mr. Vercher:
In the above-referenced charge you allege 	the Service Employees
International Union, 	Local 99 	(SEIU) 	violated the Educational
Employment Relations Act 	(EERA or Act) 	section 3543.6(b) 	and 	(c).
The charge states in its entirety:
Failure to negotiate in good faith. 	This
contract states 	raises are due and negotiable
from year to year. 	The Local 99 stated, 	per
Mr. 	Andre Hayes that the union was not going
to allow the Los Angeles Unified School
District to keep the state give cost of
living adjustment 	some sixty seven million
dollars, 	this was lost. 	A three percent new
money for the new contract. 	In September 96
cease and desist was put 	into effect by Local
99 on the UTLA union. 	Failure to represent
in a hearing. 	This happened to myself in
July 95 in May 96 	it happened to another co-
worker named Manual, 	in Sept. 	96 Edward Dudly
was not represented. 	Failure to receive a
cost of living as per contract, 	[sic]
On January 13, 	1997 I spoke with you regarding this charge. 	I
indicated the 	charge as presently written did not 	state a prima
facie violation of the EERA. 	I explained individual employees
did not have 	standing to allege violations of EERA section
3543.6(c). 	I told you that you did have standing to allege the
union violated its duty of fair representation, 	but that I would
need more information regarding that allegation. 	However, 	you
indicated the union's 	failure to represent you in the hearing was
outside the statute of limitations period. 	Rather than
withdrawing this 	charge, 	you requested a letter explaining my
analysis of your charge.
This charge fails to state a prima facie violation for the
reasons 	stated below.
I

LA-CO-722
WARNING LETTER
An individual 	employee does 	not have standing to allege an
employee 	organization failed to negotiate 	in good faith with an
employer. 	(See Oxnar---------d School District 	(Gorcey/Tripp)- (1988) 	PERB
Decision No. 	667.) 	To the extent that this charge alleges SEIU
failed to negotiate in good faith with the Los Angeles Unified
School District it must be dismissed.
You do have standing to allege SEIU violated its duty of 	fair
representation. 	However this charge fails to factually
demonstrate a prima facie violation within the jurisdiction of
PERB. 	EERA § 3541.5(a)(1) 	provides the Public Employment
Relations Board 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." 	It 	is your
burden, 	as the charging party to demonstrate the charge has been
timely filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.)
Your charge alleges, 	and you confirmed during our telephone
conversation on January 13, 	1997, 	that the hearing in which SEIU
failed to represent you was held in July of 	1995. 	Your charge
was filed on December 6, 	1996. 	The appropriate statute of
limitations period only dates back to July 6, 	1996. 	Thus this
allegation is untimely filed.
The 	right 	to fair representation is guaranteed by EERA section
3544.9. 	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 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:
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.]
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
2
(
2

LA-CO-722
WARNING LETTER
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.]
The charge does not provide 	facts demonstrating SEIU violated its
duty of 	fair representation.
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 January 21. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director