American Federation of State, County and Municipal Employees (Martin) (PERB 1321E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEREMY 	PETERSON MARTIN,
Charging 	Party,
v.
AMERICAN FEDERATION OF STATE, 	COUNTY
AND MUNICIPAL 	EMPLOYEES,
Respondent.
)
)
) 	Case No. 	LA-CO-775
PERB Decision No. 	1321
April 	2, 	1999
)
)
)
)
)
)
)
Appearance: 	Jeremy Peterson Martin, 	on his 	own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Jeremy 	Peterson Martin
(Martin) 	to a Board agent's dismissal 	(attached) 	of 	the unfair
practice 	charge. 	Martin alleged that 	the American Federation of
State, 	County and Municipal 	Employees 	denied him the 	right 	to
fair and 	impartial 	representation 	guaranteed by 	section 	3544.9 	of
the Educational Employment Relations Act 	(EERA), 	in violation of
EERA section 3543.6(b),1 by failing to continue 	to appeal 	a
1BERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	provides 	that:
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 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
_________________ )

grievance 	arbitration.
(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.
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 	charge 	and Martin's 	appeal.
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-775 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
22

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
September 25, 	1998
Jeremy P. 	Martin
Re: 	Jeremy Peterson Martin v. 	American Federation of 	State,
____
County 	and Municipal 	Employees
Unfair Practice 	Charge No. 	LA-CO-775
DISMISSAL 	LETTER -_---
Dear Mr. 	Martin:
On August 	10, 	1998, 	you 	filed the above-referenced unfair
practice 	charge 	in which you 	allege 	that 	the American Federation
of State, 	County and Municipal Employees 	(AFSCME), 	violated the
Educational 	Employment Relations Act 	(EERA) 	by failing to
continue 	to 	appeal 	a grievance 	arbitration ruling of May 27,
1998. 	This 	charge 	is being analyzed as 	an allegation that AFSCME
failed to adequately represent 	you 	in violation of 	3543.6(b) 	and
3544.9.
I 	indicated to you, 	in my attached letter dated September 	10,
1998, 	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
September 18, 	1998, 	the charge would be dismissed.
You were 	granted an extension of 	time 	to 	submit 	an amended
charge. 	On September 21, 	an amended charge was 	received. 	In
reviewing the 	additional 	materials you have 	submitted, 	you have
not 	provided any additional 	facts 	to 	support 	your charge 	but
rather you 	argue 	why you believe 	you were 	not 	well 	served by
AFSCME or the 	arbitrator. 	As 	I 	pointed out 	in my warning 	letter,
the NLRB 	looks 	for 	"blatant 	unfairness" 	in deciding 	if 	a union
has 	violated 	its 	duty to represent by not 	appealing an
arbitration award. 	Likewise 	PERB, 	in 	its Reed District 	Teachers
Association, 	CTA/NEA 	(Reyes) 	(1983) 	PERB Decision No. 	332,
requires 	a 	Charging 	Party to provide 	sufficient 	facts 	to 	show why
the 	exclusive 	representative's decision does not 	have 	"a 	rational
basis" 	or 	is 	"devoid of 	honest 	judgement". 	You have not provided
those 	facts. 	Therefore, 	I 	am dismissing 	the 	charge based on 	the
facts and reasons contained in my September 	10, 	1998, 	letter.
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Dismissal 	Letter
LA-CO-775
Page 2
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.
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-CO-775
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 Roger 	Smith
Board 	Agent
Attachment
cc: 	Carol Wheeler

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
September
1998
Jeremy P. 	Martin
Re: 	Jeremy Peterson Martin v. 	American Federation of 	State,
County 	and Municipal 	Employees
Unfair 	Practice 	Charge No. 	LA-CO-775
WARNING 	LETTER
Dear Mr. 	Martin:
On August 	10, 	1998, 	you 	filed the above-referenced unfair
practice 	charge 	in which you 	allege 	that 	the American 	Federation
of State, 	County and Municipal 	Employees 	(AFSCME), 	violated the
Educational 	Employment 	Relations Act 	(EERA) 	by failing to
continue 	to 	appeal 	a grievance 	arbitration ruling of May 27,
1998. 	This 	charge 	is 	being analyzed as 	an allegation that AFSCME
failed to 	adequately 	represent 	you 	and thus 	as 	a violation 	of
3543.6(b) 	and 3544.9.
The 	investigation of 	the 	charge 	reveals 	that 	you 	filed a
grievance 	regarding your 	termination 	from your position 	as 	a
probationary Athletic 	Field/Equipment Manager 	II 	in April, 	1997.
The 	grievance 	raised 	a 	challenge 	to 	the 	evaluation procedures
used by the 	District 	in 	terminating you 	from your position.
Pursuant 	to Article 	4 	of 	the 	1996-1999 	written agreement 	between
AFSCME 	and your 	former employer, 	Anaheim Union High 	School
District 	(District), 	the grievance was processed to the 	final
stage, 	an arbitration hearing at which AFSCME 	represented you.
The 	hearing was 	held 	and 	the 	grievance 	was 	dismissed by 	the
arbitrator's decision which issued on May 27, 	1998.
The July 1, 	1996 	- 	June 30, 	1999 written agreement between AFSCME
and 	the 	District 	provides 	at 	Article 	4.3.4.7 	that 	"(t)he 	decision
of 	the arbitrator, 	within the 	limits herein prescribed, 	shall be
binding on the Union, 	the District 	and the grievant." 	It 	is your
contention 	that 	the 	arbitrator 	exceeded 	the 	limits 	prescribed 	in
the 	written 	agreement 	and 	that 	AFSCME 	should 	have 	appealed 	the
decision pursuant 	to 	rules 	of 	the American Arbitration
Association 	(AAA). 	Your argument points to Sections 4, 	10 	and 11
of 	the 	Federal 	Arbitration Act 	which provides grounds 	for
granting 	rehearing 	if 	the 	arbitrator 	fails 	to 	consider 	the
specific 	contract 	language 	or 	the 	award 	is 	based on materials 	not
submitted 	to 	them. 	You 	further 	argue 	that 	a 	hard copy of 	the
award was 	not 	received until 	more 	than 	a 	week after 	it 	allegedly
issued. 	For all 	of 	these 	reasons you 	contend that AFSCME 	should

LA-CO-775
Warning 	Letter
Page 	2
have 	challenged 	the 	arbitrator's 	decision 	which upheld your
termination.
You contend that AFSCME 	chapter president, 	Terry Mitchell, 	sent 	a
letter to the arbitrator on June 22, 	1998, 	effectively
withdrawing an appeal 	of 	the 	award. 	You 	contend that 	Mitchell
did 	this 	without 	consulting with you. 	You 	further 	contend 	that
lawyers 	for 	the 	District 	threatened 	retaliation 	against 	Mitchell
and AFSCME 	if 	the 	letter withdrawing the 	appeal 	was 	not 	sent.
Finally, 	you 	assert 	that 	the 	award 	should not 	stand because 	the
arbitrator 	did not 	apply proper 	standards 	nor 	comply with 	the
intent 	of 	the 	terms 	of 	the 	collective bargaining agreement.
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)
(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.]
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)
(

LA-CO-775
Warning 	Letter
Page 3
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
In the 	instant 	charge, 	you make 	several 	allegations 	regarding how
AFSCME 	handled your grievance. 	As previously stated, 	a decision
not 	to continue 	to pursue 	a grievance, 	regardless of 	the merits
of 	the grievance 	is 	not 	a violation of 	the 	duty of 	fair
representation. 	(California 	State 	Employees Association
(Calloway) 	(1985) 	PERB Decision No. 	497-H.) 	Nor are case
handling 	errors 	and 	simple 	negligence 	violations 	of 	the 	duty 	to
fairly represent. 	(American Federation of 	State, 	County and
Municipal Employees, 	Council 10 	(Olson) 	(1988) 	PERB Decision No.
682-H.)
In this 	case, 	AFSCME processed the grievance 	through the 	final
step of 	the grievance process, 	the arbitrator's 	award issued.
You wanted AFSCME 	to 	challenge 	the 	award on procedural 	grounds
either 	through AAA or 	the 	Courts. 	The 	chapter president 	decided
not 	to. 	You contend that 	this was at 	the urging of 	the District.
The 	question of whether 	the 	union has 	a 	duty of 	fair
representation 	after 	arbitration 	is 	discussed by The U.S. 	Court
of Appeals, 	First Circuit, 	in Sear, 	et. 	al. 	v. 	Cadillac
Automobile Company 107 LRRM 3218 	(1981). 	The Court held that:
. 	. 	. 	When a collective bargaining contract
calls 	for 	final 	and binding grievance
arbitration, 	as here, 	an arbitration decision
is ordinarily final, 	for the employees have
obtained what 	their union 	has 	bargained 	for.
United Steelworkers v. 	Enterprise Wheel 	& Car
Corp., 	363 U.S. 	593, 	599, 	80 S.Ct. 1358,
1362, 	4 L.Ed.2d 1424 	(1960). 	The rule of
judicial 	deference 	to 	such 	finality clauses
is 	in part 	designed 	to 	encourage 	grievance
arbitration 	and 	decentralized, 	informal
settlement of industrial disputes. 	Id. 	at
596, 	80 S.Ct. 	at 	1360. 	The rule is important
for 	"grievance 	machinery under 	a 	collective
bargaining agreement 	is 	at 	the very heart 	of
the 	system of 	industrial 	self-government".
United Steelworkers v. 	Warrior 	& Gulf
Navigation Co., 	363 U.S. 	574, 	578, 	80 S.Ct.
1347, 	1350, 	4 L.Ed.2d 1409 	(1960).
There 	is 	an exception to the 	"finality" 	rule
where 	the union does not 	represent 	the
employee properly at 	the 	arbitration
proceeding. 	Then 	the 	employee 	did not
I

LA-CO-775
Warning 	Letter
Page 	4
receive 	the 	remedy of 	arbitration 	that 	the
contract promised him. 	Vaca v. 	Sipes, 	386
U.S. 	171, 	185-86, 	87 S.Ct. 	903, 	914, 	17
L.Ed.2d 842 	(1967) . 	But 	that exception is
narrow. 	To take" advantage of 	it, 	the
employee 	must 	show 	a 	union breach of 	duty
that 	"seriously undermine(d) 	the 	integrity of
the 	arbitral process". 	Hines v. 	Anchor Motor
Freight, 	Inc., 	424 U.S. 	at 567, 	96 S.Ct. 	at
1057. 	He must 	show more 	than a 	"mere 	error
in 	judgment" 	or 	"occasional 	instances 	of
mistake", 	for 	"grievance processes 	cannot be
expected to be error free". 	Id. 	at 	571, 	96
S.Ct. 	at 	1059. 	He must 	establish that 	the
union was 	guilty of 	"malfeasance",
"dishonesty", 	"bad faith", 	or 	"discriminatory
treatment", 	id. 	at 568-69, 	571, 	96 S.Ct. 	at
1058, 	1059, 	or acted in a 	"perfunctory" 	or
"arbitrary" 	fashion, 	Vaca v. 	Sipes, 	386 U.S.
at 190, 	191, 	87 S.Ct. 	at 916. 	See Comment,
Employee 	Challenges 	to Arbitral Awards: 	A
Model 	for 	Protecting 	Individual 	Rights 	Under
the 	Collective Bargaining Agreement, 	125
U.Pa.L.Rev. 	1310, 	1320 	(1977).
(2) 	The burden that 	these 	terms 	are meant 	to
impose upon a union member 	is particularly
heavy 	if 	he 	attacks 	the union's 	failure 	to
appeal 	from 	an 	admittedly 	fair 	arbitration
proceeding 	a proceeding 	untainted 	by 	any
union 	failure 	to 	represent 	its 	members 	in
good faith. 	While we need not 	hold, 	as did
the 	district 	court, 	that 	a union's 	failure 	to
appeal 	could never breach 	its
representational 	duty, 	it 	is obvious 	that
courts ought 	to allow such actions, 	if 	at
all, 	only in unusual 	instances where
unfairness 	is blatant. 	See generally Tobias,
Individual 	Employee 	Suits 	for Breach of 	the
Labor Agreement 	and 	the 	Union's 	Duty of 	Fair
Representation, 	5 Toledo L.Rev. 	515, 	539-40
(1974) . 	Otherwise, 	the. threat of suit by
disappointed members 	will 	too 	often 	lead
unions, 	against their better judgment, 	to
appeal 	arbitration awards 	to the 	courts.
And, 	the 	advantages 	of grievance 	arbitration
the 	informal, 	speedy, 	inexpensive nonjudicial
settlement 	of 	disputes 	can be 	eroded.
(

LA-CO-775
Warning 	Letter
Page 5
You have 	provided no 	evidence 	to 	demonstrate 	that 	AFSCME's
decision 	not 	to 	appeal 	the 	arbitrator's 	award 	constituted blatant
unfairness.
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 	have 	the 	case 	number written on 	the 	top 	right
hand corner of 	the 	charge 	form. 	The 	amended charge must 	be
served on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before 	September 	18, 	1998,
I 	shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 358.
Sincerely,
ROGER 	SMITH
Board 	Agent
RCS:cke