California State Employees Association (Finch) (PERB 0959S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM PAUL 	FINCH,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-C0-142-S
PERB Decision No. 	959-S
November 20, 	1992
Appearance: 	William Paul Finch, 	on his own behalf.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by William
Paul 	Finch 	(Finch) 	to the Board agent's 	dismissal 	(attached
hereto) 	of his 	unfair practice 	charge. 	Finch alleged that the
California 	State Employees Association 	(CSEA) 	violated 	section
3519.5 of the Ralph C. 	Dills Act 	(Dills Act)1 by denying his
1 The 	Dills Act 	is 	codified at Government Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519.5 	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.
)
)
)
)
)
)
)
)
)
)
_______________ )

request 	for 	representation before 	the 	State 	Personnel 	Board
(SPB).
The Board has 	reviewed the dismissal, 	and 	finding 	it 	to be
free of prejudicial 	error, 	adopts 	it as 	the decision of the Board
itself 	consistent with 	the 	following discussion.
DISCUSSION
Finch 	filed a 	timely 	appeal 	of 	the 	Board 	agent's 	dismissal
of his 	unfair practice 	charge. 	Wherein he reasserts 	that he was
not 	informed by CSEA of 	his 	rights 	to appeal 	and was 	not
permitted to participate 	in CSEA's 	decision not 	to pursue his
grievance 	and provide 	representation before 	the 	SPB.
For the first time, 	on appeal, 	Finch argues that his CSEA
representative was 	ill and therefore, 	not competent to make 	a
judgment 	regarding Finch's 	case.
PERB Regulation section 32635Z states, 	in pertinent part:
(b) 	Unless good cause is 	shown, 	a charging
party may 	not present 	on 	appeal 	new charge
allegations 	or 	new 	supporting 	evidence.
Concerning 	the 	new allegation relating 	to 	the 	competence 	of
the CSEA representative, 	Finch 	is 	required to 	show good cause 	for
presenting new allegations 	or new 	supporting 	evidence. 	As 	Finch
has 	failed to 	show good 	cause, 	the 	Board will 	not 	consider this
allegation. 	(Association of 	California 	State Attorneys 	(Winston)
(1992) 	PERB Decision No. 	931-S.) 	Assuming, 	arguendo, 	that Finch
had presented this 	allegation to 	the 	Board agent, 	the 	factual
2PERB 	regulations 	are 	codified 	at California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
22

allegations 	in the unfair practice 	charge do not 	state a prima
facie violation of 	section 	3519.5 	of the Dills Act.
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-142-S 	is 	hereby
DISMISSED WITHOUT 	PREJUDICE.
Members 	Caffrey and Carlyle 	joined 	in this 	Decision.
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
June 18, 	1992
William Paul 	Finch
Re: 	William Paul 	Finch v. 	California State 	Employees Association
Unfair 	Practice 	Charge No. 	S-CO-142-S
DISMISSAL 	LETTER
Dear Mr. 	Finch:
On March 19, 	1992, 	you filed a charge 	in which you allege 	that
the 	California State Employees Association 	(CSEA) 	violated
Government Code section 3519.5 	(the Dills Act). 	Specifically,
you allege 	that 	CSEA violated 	its 	duty of 	fair 	representation by
denying your 	request 	for 	representation before 	the 	State
Personnel 	Board 	(SPB) 	regarding a rejection during probation.
I 	indicated to you in my attached letter dated March 24, 	1992,
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 	that would correct 	the
deficiencies 	explained in that 	letter, 	you should amend the
charge 	accordingly.
On March 31, 	1992, 	you filed a First Amended Charge. 	Your First
Amended Charge 	realleges 	that 	CSEA violated 	its 	duty of 	fair
representation by denying your 	request 	for 	representation before
the 	SPB 	regarding your rejection during probation and asserts 	the
following additional 	information, 	which I have 	summarized:
You mailed your original 	charge 	to 	the 	Public
Employment Relations Board 	(PERB or Board) 	on March 	17,
1992, 	thinking it would get 	to PERB or at 	least be
postmarked by March 18, 	1992.
CSEA held 	two appeals 	panel 	meetings 	regarding your
request 	for legal 	representation. 	The 	First Member
Representation Appeals 	Panel 	upheld the 	staff's 	denial
of your request 	for legal 	representation. 	The 	Second
Level 	Representation Appeals 	Panel 	confirmed 	the
decision 	of 	the 	First Member Representation Appeals
Panel. 	You did not 	receive 	assistance about 	this
appeals process 	from anyone at 	CSEA knowledgeable 	in
the process.

June 18, 	1992
Page 2
You were not 	allowed to discuss 	the 	case with 	the 	two
panels 	and you were 	informed 	that 	the Department 	of
Health Services 	and 	the 	State 	of 	California management
would do 	things 	to you 	if you pursued the matter of
being 	rejected 	during 	probation.
You 	received notification 	in 	the mail 	from the 	Second
Level 	Representation Appeals 	Panel 	on September 	18,
1991. 	The decision of 	this panel was made on September
12, 1991.
You believe 	that 	the 	action by 	CSEA was 	discriminatory
because 	CSEA previously helped you 	in 	1979 	and did not
do so, 	or does not propose 	to help you now.
You believe 	the 	action by CSEA is 	in bad 	faith because
CSEA staff 	told you 	that 	you 	had a 	case 	and promised
you 	that 	it was 	being handled and Jeff 	Young 	filed a
grievance, 	then everything changed. 	You believe
everything 	changed because 	a manager at 	the 	Department
of Health Services was 	having an affair with a
contractor employee, 	even though you do not 	have any
evidence 	to verify that 	an affair occurred.
You believe 	that 	the action by CSEA is 	arbitrary
because you were 	informed that 	there 	is 	another level
of appeal 	to the CSEA Board or the Civil 	Service
Division Board and the 	letter 	from the 	Second 	Level
Representation Appeals 	Panel dated September 17, 	1992
does 	not 	inform you 	that you have 	that 	right.
As 	I 	informed you in my letter of March 24, 	1992, 	in order to
state a prima 	facie 	case 	a Charging 	Party must 	allege 	and
ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month period
immediately preceding the 	filing of 	the 	charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194.
Government 	Code 	section 3514.5(a) 	states 	in relevant part:
Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not do either of 	the 	following: 	(1)
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, 	. 	. 	.
"

June 18, 	1992
Page 3
This 	limitations 	period 	is mandatory and 	constitutes 	a
jurisdictional 	bar to 	charges 	filed outside 	the 	statute 	of
limitations. 	See California State University. 	San Diego 	(1989)
PERB Decision No. 	718-H.
Unfair practice 	charges 	are 	considered 	filed when actually
received by 	the 	appropriate 	PERB 	office before 	the 	close 	of
business 	on the last day set 	for filing, 	or when sent by
telegraph, 	or certified or express United States mail 	postmarked
not 	later than the 	last day set 	for 	filing, 	and addressed 	to 	the
proper PERB office 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Your charge was 	sent by regular mail 	and received
in the Sacramento Regional Office of PERB on March 19, 	1992.
Therefore, 	your charge 	is untimely and must be dismissed because
it was 	filed outside 	the 	six-month statute 	of 	limitations.
Even assuming that your charge was 	filed 	in a timely manner, 	the
allegations 	contained in your First Amended Charge 	fail 	to
demonstrate a prima 	facie 	case 	that 	CSEA denied you 	the 	right 	to
fair representation. 	The duty of 	fair representation does 	not
extend to extra-contractual 	hearings 	such as 	SPB hearings. 	The
duty 	is 	limited 	to 	contractually-based 	remedies 	under 	the
employee organization's 	exclusive 	control. 	See American
Federation of State. 	County and Municipal Employees. 	Local 2620,
(Moore) 	(1988) 	PERB Decision No. 	683-S and Professional Engineers
in California Government 	(1989) 	PERB Decision No. 	760-S. 	In
other words, 	there is no duty of 	fair representation owed to a
unit member unless 	the 	exclusive 	representation possesses 	the
exclusive means 	by which 	such an 	employee 	can 	obtain a particular
remedy. 	See 	San 	Francisco Classroom Teachers 	Association.
CTA/NEA 	(Chestanque) 	(1985) 	PERB Decision No. 	544, 	California
Faculty Association 	(1988) 	PERB Decision No. 	698-H. 	The
exclusive 	representative possesses 	the 	sole means 	by which a unit
member has access 	to the negotiating process, 	as well 	as 	to the
grievance and arbitration procedure. 	This 	is not 	the 	case with
regard 	to 	representation at 	a SPB hearing.
Accordingly, 	for the 	reasons 	contained 	in 	this 	letter and my
letter of March 24, 	1992, 	your charge is dismissed.
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
"

June 18, 	1992
Page 4
service of this dismissal 	(California 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 	(5:00 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked no 	later 	than
the 	last date set 	for filing 	(California 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 	calendar days
following 	the date 	of 	service of 	the appeal 	(California 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 California 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 	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 	(California Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

June 18, 	1992
Page 5
Final 	Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Michael & Gas	~ 	~
Michael 	E. 	Gash
Regional 	Attorney
Attachment
cc: 	Gary Reynolds, 	CSEA
~-'

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
READ
March 24, 	1992
William 	Paul 	Finch
Re: 	William Paul 	Finch v. 	California 	State Employees Association
Unfair Practice Charge No. 	S-CO-142-S
WARNING 	LETTER
Dear Mr. 	Finch:
On March 	19, 	1992, 	you filed a charge in which you allege that
the California State Employees Association 	(CSEA) 	violated
Government Code section 3519.5 	(the Dills Act). 	Specifically,
you 	allege 	that CSEA violated 	its 	duty of 	fair representation by
denying 	your 	request 	for representation before the 	State
Personnel 	Board 	(SPB) 	regarding a rejection during probation.
My 	investigation revealed 	the 	following 	facts.
Charging Party has been a member of CSEA since 	1975. 	He is 	a 	job
steward 	and has 	served CSEA 	in chapter and activist work.
In 	1990, 	while working at the California Department of Health
Services, 	Charging Party was 	rejected during probation. 	With the
assistance of Jeffrey Young, 	CSEA representative, 	Charging Party
filed a 	grievance 	concerning a 	Probationary Report. 	Young did
not process 	the 	grievance 	through to 	completion with 	the State
Personnel 	Board. 	Charging 	Party 	filed 	an appeal 	of 	the 	rejection
with 	the 	SPB.
Young 	denied 	Charging 	Party's 	request 	to 	CSEA 	for 	representation
before 	the 	SPB 	regarding the 	rejection during probation.
During two 	(2) 	secret 	sessions, 	ending with a decision made on
September 	17, 	1991, 	CSEA panels decided that Young's decision
would 	stand. 	Charging Party was 	not 	able 	to present his 	case
before the panels, 	nor given an opportunity to respond to
statements, 	made against him or his 	case. 	Charging Party also
contends 	that 	CSEA did 	not 	conduct 	an 	investigation of 	his
matter.
• 
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Warning 	Letter 	- 	S-CO-142-S
Page 2
In order to 	state 	a prima 	facie 	case 	a Charging Party must 	allege
and 	ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month 	period
immediately preceding the 	filing of 	the 	charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194.
Government Code 	section 	3514.5(a) 	states 	in relevant part:
Any employee, 	employee organization, 	or
employer 	shall have 	the 	right to 	file 	an
unfair practice charge, 	except that the board
shall 	not do 	either of the 	following: 	(1)
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, 	. 	. 	.
Your 	charge was 	filed with 	the 	Public 	Employment Relations 	Board
on March 	19, 	1992, 	which means that any alleged unfair practice
by CSEA 	should have 	occurred 	during 	the 	six-month 	statutory
period which began on September 	19, 	1991.
Your charge 	states 	that a 	final decision was 	made by the two CSEA
panels on September 	17, 	1991. 	Since the conduct you complained
of 	occurred outside the 	six-month 	limitation period, 	your charge
is 	untimely and must be dismissed.
Even assuming that your charge was 	filed 	in a timely manner, 	you
have 	still 	failed to 	establish a prima 	facie 	case 	that CSEA
denied you the right 	to 	fair representation. 	Although the Dills
Act 	does 	not 	contain 	a 	specific 	section 	specifying an employee
organization's 	duty of 	fair representation, 	such a duty can be
implied 	from the 	fact that 	the 	Dills Act provides 	for exclusive
representation. 	Government Code sections 	3513(b) 	and 3515.5;
Norgard v. 	California State Employees Association 	(1984) 	PERB
- -	Decision No. 	451-S.
In order to 	state 	a prima 	facie violation of 	an employee
organization's 	duty of 	fair representation, 	Charging Party must
show that 	the 	employee 	organization's 	conduct was 	arbitrary,
discriminatory, 	or in bad 	faith. 	United Teachers 	of Los Angeles
(Collins) 	(1983) 	PERB Decision No. 	258. 	There is no duty of fair
representation owed 	to 	a unit member unless 	the exclusive
representative possesses 	the 	exclusive 	means 	by which 	such 	an
employee can obtain a particular remedy. 	California Faculty
Association 	(1988) 	PERB Decision No. 	698-H; 	San Francisco
Classroom Teachers Association, 	CTA/NEA 	(Chestangue) 	(1985) 	PERB
Decision No. 	544. 	In this 	case, 	the duty does not apply to your
request 	for representation by 	CSEA before 	the 	State 	Personnel
•

Warning 	Letter 	- 	S-CO-142-S
Page 3
Board 	regarding 	a 	rejection during probation because 	CSEA does
not possess 	the 	exclusive means 	of 	obtaining relief.
In addition, 	the duty of 	fair representation does 	not attach to
extra-contractual 	hearing 	such 	as 	State 	Personnel 	Board hearings
American Federation of 	State. 	County and Municipal 	Employees,
Local 2620 	(Moore) 	PERB Decision No. 	683-S.
Even assuming 	the duty of 	fair representation 	is 	applicable 	in
this case, 	in order to state a prima facie violation, 	Charging
Party must 	show that 	the 	exclusive 	representative's 	conduct was
arbitrary, 	discriminatory, 	or in bad faith. 	In United Teachers
of Los Angeles 	(Collins). 	Id., 	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.
A union may 	exercise 	its 	discretion to
determine how far to pursue a grievance 	on
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. 	Reed 	District Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
The 	facts 	alleged 	in your 	charge 	fail 	to 	assert 	sufficient 	facts
from which 	it 	becomes 	apparent how or 	in what manner CSEA's
action or 	inaction, 	by denying your request 	for representation

Warning 	Letter 	- 	S-CO-142-S
Page 4
before 	the 	State 	Personnel 	Board 	regarding 	a 	rejection during
probation, 	was without a rational basis 	or devoid of honest
judgment. 	In the absence of 	specific 	allegations 	of arbitrary,
discriminatory or bad 	faith denial 	of 	representation, 	you have
failed 	to 	establish 	a prima 	facie 	violation that 	CSEA breached
its 	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 any additional 	facts 	that would correct 	the
deficiencies 	explained above, 	please 	amend the charge
accordingly. 	The 	amended 	charge 	should be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First 	Amended
Charge, 	contain al
- l 	the 	facts 	and allegations 	you wish to make,
and 	must 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
March 31, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Michael 6. and
Michael E. 	Gash
Regional 	Attorney
MEG:er