International Union of Operating Engineers Local 501 (Cutshall and Wack) (PERB 1130H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DANIEL F. 	CUTSHALL AND CASEY WACK,
Charging Parties,
v.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	LOCAL 501, 	AFL-CIO,
Respondent.
)
)
) 	Case No. 	LA-CO-49-H
PERB Decision No. 	1130-H
January 5, 	1996
)
)
)
)
)
)
)
Appearances: 	Daniel 	F. 	Cutshall and Casey Wack, 	on their own
behalf; 	Levy, 	Goldman & Levy by Adam N. 	Stern, 	Attorney, 	for
International Union of Operating Engineers, 	Local 	501, 	AFL-CIO.
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's dismissal
(attached hereto) 	of 	an unfair practice 	charge 	filed by Daniel 	F.
Cutshall 	(Cutshall) 	and Casey Wack 	(Wack). 	In their charge,
Cutshall 	and Wack alleged 	that 	the 	International 	Union of
Operating Engineers, 	Local 	501, 	AFL-CIO 	(IUOE) 	breached its duty
of 	fair 	representation guaranteed by 	section 3578 	of 	the 	Higher
Education Employer-Employee Relations Act 	(HEERA), 	thereby
violating HEERA section 3571.l(e),1 in resolving the grievance
1HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3578 	states:
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

filed 	against 	their 	employer.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	Cutshall 	and Wack's
original 	and amended 	charge, 	their appeal 	and 	IUOE's 	response
thereto. 	The 	Board 	finds 	the warning and dismissal 	letters 	to be
free 	of 	prejudicial 	error and adopts 	them as 	the decision of 	the
Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-49-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.
Section 3571.1 states, 	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.
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
June 13, 1995
Daniel F. 	Cutshall
Casey Wack
Rt. 2, Box 129-R
Bishop, 	CA 	93514
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. LA-C0-49-H, Daniel F. Cutshall and
Casey Wack v. 	International Union of Operating
Engineers. Local 501, AFL-CIO
Dear Charging Parties:
In the above-referenced charge, 	you allege that the International
Union of Operating Engineers, 	Local 501, AFL-CIO 	(IUOE) 	denied
you the 	right 	to fair representation guaranteed by Government
Code section 3578 of the Higher Education Employer-Employee
Relations Act 	(HEERA) 	and thereby violated HEERA section
3571.l(e).
I indicated to you, 	in my attached letter dated May 23, 	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 June
5, 	1995, 	the charge would be dismissed. 	I later extended that
deadline.
On June 12, 	1995, 	you filed an amended charge. 	Although the
amended charge argues strenuously against 	the dismissal 	of 	the
charge, 	it does not allege significant additional facts that
would alter the conclusion stated in my May 23 	letter. 	I am
therefore dismissing the charge, 	based on the facts and reasons
contained in that 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
-~~______=:--- 	-

LA-C0-49-H
June 13, 	1995
Page 2
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.)

LA-CO-49-H
June 13, 1995
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
thomas all	By THOMAS J. ALLE	LLEN	N
Regional Attorney
Attachment
cc: 	Adam N. Stern, 	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
May 23, 	1995
Daniel F. 	Cutshall
Casey Wack
Rt. 2, Box 129-R
Bishop, 	CA 	93514
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-49-H,
Daniel F. 	Cutshall and Casey Wack v. 	International
Union of Operating Engineers. 	Local 501. AFL-CIO
Dear Charging Parties:
In the above-referenced charge, 	you allege that the International
Union of Operating Engineers, 	Local 501, AFL-CIO 	(IUOE) 	denied
you 	the right 	to 	fair representation guaranteed by Government
Code section 3578 	of the Higher Education Employer-Employee
Relations Act 	(HEERA) 	and thereby violated HEERA section
3571.l(e).
My investigation of 	the charge reveals 	the 	following relevant
facts.
The charge, 	which was filed on February 21, 	1995, 	alleges a
series of events going back to 1988. 	Although the six-month
statute of limitations in HEERA section 3563.2(a) 	limits PERB's
jurisdiction to alleged unlawful practices occurring on or after
August 21, 	1994, 	some of the earlier events are relevant to an
understanding of the more recent events.
You were employed by the University of California 	(University) 	in
a unit for which IUOE is the exclusive representative. 	In 1988,
the University laid you off. 	Your layoffs led to grievances
which culminated in arbitration before arbitrator Louis 	Zigman.
This arbitration was 	settled with a stipulated award 	(the 	"Zigman
award"). 	Questions about implementation of the Zigman award
ultimately led to additional arbitration before arbitrator
R. Douglas Collins. 	This arbitration specifically addressed
whether the University properly implemented the 	Zigman award by
making pension contributions 	and giving 	seniority.
On August 10, 	1994, 	arbitrator Collins issued an opinion and
award in favor of the University, 	on the ground that there was
insufficient evidence that the Zigman award was 	improperly
implemented. 	Collins further stated as follows:
==---_-_-_-

LA-CO-49-H
May 23, 	1995
Page 2
This is not to say, however, 	that
Grievants have no remedy if they can secure
persuasive evidence that 	the University has
failed to properly implement the terms of the
Zigman Award. 	The California Arbitration
Law, 	Title 9 of the Code of Civil Procedure,
provides in § 12 88 that, "A petition to
confirm an 	[arbitration] 	award shall be
served and filed not 	later than four years
after the date of service of a signed copy of
the award on the petitioner." 	The Zigman
Award was 	issued on or about October 16,
1990, 	or approximately three years and 10
months prior to this award. 	It is therefore
recommended that 	the parties 	review the
University's records to assure that Grievants
were properly 	credited with all pension
contributions 	and seniority as 	required by
the Zigman Award.
In a footnote, 	Collins added as follows:
The 	Zigman Award clearly and
unambiguously provides that Grievants'
pension contributions 	shall be deducted from
wages. 	It further provides that Grievants'
backpay shall be paid as wages 	for the period
January 1, 	1990, through October 31, 	1990.
It is thus clear that Grievants' pension
contributions were to be made for that period
only. 	It follows that the University's
contribution to the pension fund for each
Grievant was similarly limited; 	it would be
unreasonable to require the employer to make
pension contributions 	for a period during
which Grievants 	earned no wages and made no
employee contributions to the pension fund.
Nothing in the Agreement or in the Zigman
Award would compel such an order. 	The Zigman
Award is also clear and unambiguous 	that
Grievants 	"shall accrue seniority from
November 1, 	1988, 	to their date of return to
work," which occurred May 9, 	1991, 	"for all
purposes 	covered by the collective bargaining
agreement." 	Again, 	there is no cogent record
evidence that either of these aspects of the
Zigman Award was not 	implemented.
.

LA-CO-49-H
May 23, 	1995
Page 3
On October 11, 	1994, 	IUOE filed in Superior Court a petition to
confirm the Zigman award, 	as Collins had suggested. 	Thereafter,
IUOE received a letter from the University dated November 28,
1994, 	stating in part as follows:
With regard to the pension contributions, 	I
have learned that beginning on November 1,
1990, 	because of a change in the University's
retirement system rules, 	employer and
employee pension contributions were
discontinued for all University employees 	in
the retirement 	system.
Administratively, 	the back-pay checks for
Wack and Cutshall were processed on different
dates. 	Mr. 	Cutshall's checks were processed
in October 1990. 	This means that both the
employer and employee 	contributions were made
to the pension fund for the 10-month period
covered by the 	checks and he received
retirement service credit for that time.
Therefore, 	as he admitted at the hearing, 	he
received pension contributions 	and service
credit 	for the 10-month period 	from January
1990 through October 1990 as called for in
the Zigman Award. 	He disputed the length of
time for which the payments should have been
made, 	but Arbitrator Collins confirmed the
University's position on that point.
Mr. Wack's back-pay payments were made in
November 1990. 	Because his payment was after
the date on which employer and employee
contributions 	to the retirement system
ceased, 	no employer or employee pension
contributions were made for Wack. 	However,
he was credited with the 10 months of service
in the retirement system. 	Because the
University's 	retirement program is a defined
benefit plan, 	retirement benefits are not
based on pension contributions but rather on
a combination of age, 	years of service
(service credit) 	and salary. 	This means that
Mr. 	Wack was not harmed in any way by the
cessation of 	the pension contributions and
the fact 	that no contributions were made for

LA-CO-49-H
May 23, 	1995
Page 5
On January 17, 	1995, 	IUOE caused its Superior Court petition to
be dismissed. 	It is alleged that IUOE notified attorney Olins of
the dismissal only after the fact, 	although IUOE states that it
had previously informed Olins of 	its 	intentions and the reasons
therefor. 	IUOE did not directly notify either of you 	(Wack and
Cutshall). 	IUOE states that it believed in the light of the
University's letter of November 28, 	1994, 	that the Superior Court
petition 	"was not 	legally sustainable and could further expose
[IUOE] 	Local 501 to the risk of sanctions for maintaining a
meritless suit.".
Based on the facts stated above, 	the charge does not state a
prima facie violation of HEERA, 	for the reasons that follow.
As Charging Parties, 	you have alleged that IUOE, 	as your
exclusive representative, 	denied you the right to fair
representation guaranteed by HEERA section 3578 	and 	thereby
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

LA-CO-49-H
May 23, 	1995
Page 4
those ten months. 	He will receive retirement
benefits at the time of retirement which will
include the 10 months of service credit from
January 1990 through October 31, 	1990.
The University is in compliance with the
Zigman Award because 	it 	specifically calls
for pension contributions to be made in
accordance with the collective bargaining
agreement and in accordance with 	"the pension
law." 	The University complied with the
collective bargaining agreement and with the
rules of the retirement system for both Wack
and Cutshall. 	Therefore, 	as recommended by
Arbitrator Collins, 	the University can assure
you and them that 	they were properly credited
with all the appropriate pension
contributions 	(and more importantly,
retirement service credit).
With regard to 	"seniority credit," 	when Wack
and Cutshall 	returned to work in May 1991
their years of service was recalculated for
vacation accrual purposes. 	The recalculation
resulted in Wack receiving a higher vacation
accrual rate. 	Mr. 	Cutshall was already
receiving vacation credit at the higher rate.
The only other issue 	for which seniority
would be significant would be in the case of
a layoff. 	As I have explained to you, 	the
University does not keep running seniority
calculation lists. 	The only time such lists
are prepared is in the case of imminent
layoff. 	Since seniority and layoff are only
relevant for career employees and Wack and
Cutshall were casual employees, 	the issue of
seniority points for this purpose is moot.
On December 5, 	1994, 	IUOE forwarded a copy of this letter to
Douglas F. 	Olins, 	attorney for Casey Wack, 	along with a cover
letter asking Olins 	to review the matter with Wack and then
discuss it with IUOE. 	According to IUOE, 	Olins did not respond
to the letter. 	On December 19, 	1994, 	IUOE also forwarded a copy
of the University letter to Daniel F. 	Cutshall.
.

LA-CO-49-H
May 23, 	1995
Page 6
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, p. 9, citing Rocklin
Teachers 	Professional Association 	(Romero)
(19 80) PERB Decision No. 124.]
In the present case, 	it is not apparent from the charge that
IUOE's 	conduct within the six months before the charge was filed
(that is, 	on or after August 21, 	1994) 	was arbitrary,
discriminatory or in bad faith. 	Even if 	IUOE was guilty of
negligence or poor judgment 	in causing the Superior Court
petition to be dismissed without 	communicating 	further with you,
that would not establish a violation of 	IUOE's 	statutory duty.
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 June 5, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
Thomas 	J. Allen
Regional Attorney
whomang. alle