Service Employees International Union, Local 790 (Patterson) (PERB 1254E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

KATHERINE MARY PATTERSON, )

Charging Party, ) Case No. SF-CO-527
)
Vv. ) PERB Decision No. 1254
)
SERVICE EMPLOYEES INTERNATIONAL ) March 20, 1998
UNION, LOCAL 790, )
)
Respondent. )
}
Appearance; Katherine Mary Patterson, on her own behalf.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISTON

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of Katherine Mary Patterson's (Patterson) unfair
practice charge. As amended, the charge alleged that the Service
Employees International Union, Local 790 breached its duty of
fair representation in violation of sections 3543.6(a) and 3544.9
of the Educational Employment Relations Act (EERA) and

discriminated against her in violation of section 3543.6(b).*

'RERA is codified at Government Code section 3540 et seq.
Section 3543.6 provides, in relevant part:

Tt shall be unlawful for an employee
organization to:

(a) Cause or attempt to cause a public
school employer to violate Section 3543.5.

(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

The Board has 	reviewed the 	entire 	record 	in this 	case,
including the original and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	and Patterson's appeal. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	from
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-527 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
Section 3544.9 provides, 	in relevant part:
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.
22

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
December 18, 	1997
Katherine Mary Patterson
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Katherine Mary Patterson v. 	Service Employees 	International
Union. Local 790
Unfair Practice Charge No. 	SF-CO-527
Dear Ms. Patterson:
The above-referenced unfair practice charge, 	filed September 3,
1997, 	alleges the Service Employees International Union, 	Local
790 	(SEIU or Local 	790) 	breached its duty of fair representation.
This conduct 	is alleged to violate Government Code section
3543.6(a) 	of 	the Educational Employment Relations Act 	(EERA or
Act) .
I indicated to you, 	in my attached letter dated November 25,
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
December 2, 	1997, 	the charge would be dismissed. 	I later
extended this deadline until December 4, 	1997.
On December 3, 	1997, 	I received a first amended charge. 	The
amended charge reiterates 	the 	original 	allegation and adds 	the
following. 	The charge contends SEIU failed to fairly represent
you with regard to your grievance filed in April, 	1996. 	In
support of this allegation, 	you have provided the following
facts.
In April, 	1996, Roosevelt Middle School Principal, Charles
Corsiglia, 	transferred you to the counselling office. 	Charging
Party reported this 	transfer to SEIU representative, 	Pattie
Tamura. 	On April 12, 	1996, Ms. Tamura sent a letter to Assistant
Superintendent, 	Cynthia LeBlanc, 	regarding Charging Party's
transfer. 	On that same date, 	Ms. 	Tamura filed a grievance

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 2
regarding Charging Party's 	transfer. 	In the two weeks 	following
the filing of the grievance, 	Charging Party attempted, 	on
numerous occasions, 	to speak with Ms. 	Tamura regarding the
grievance. 	Apparently, Ms. 	Tamura did not respond to any of
Charging Party's messages. 	On April 30, 	1996, 	Charging Party
sent a letter to Ms. 	Tamura regarding Ms. 	Tamura's failure to
respond to Charging Party's messages. 	Ms. 	Tamura did not respond
to this letter.
On May 28, 	1996, 	Principal Corsiglia gave Charging Party an
"Unacceptable" performance evaluation. 	On June 14, 	1996,
Charging Party requested Principal 	Corsiglia meet with her and
Ms. 	Tamura regarding the performance evaluation. 	Principal
Corsiglia 	refused to meet with you stating he had already
discussed the matter with SEIU. 	On that same date, 	you sent a
letter to Ms. 	Tamura and other SEIU representatives, 	regarding
Principal 	Corsiglia's 	evaluation and your on-going grievance
against him.
On July 2, 	1996, 	Charging Party received a letter from SEIU
Executive Director, 	Paul Varacalli. 	Mr. Varacalli acknowledged
receipt of your letter and informed you that he was assigning
Staff Manager, 	LaWanna Preston, 	to investigate the matter. 	Ms.
Preston was 	told to contact you when she finished her
investigation. 	Ms. 	Preston failed to return any of Charging
Party's phone messages during the next few months, 	and Charging
Party did not 	receive any correspondence 	from SEIU.
On October 1, 	1996, 	Charging Party spoke with Ms. 	Preston over
the telephone and faxed Ms. 	Preston copies of relevant documents.
On October 4, 	and October 7, 	1996, 	Charging Party requested
meetings with Ms. 	Preston. 	On October 11, 	1996, 	Charging Party
met with Ms. 	Preston to discuss the grievance and SEIU's alleged
failure to represent Charging Party. 	After listening to Charging
Party's concerns, 	Ms. 	Preston suggested the matter be handled by
her supervisor, 	Josie Mooney. 	Charging Party was 	introduced to
Ms. 	Mooney and engaged in a brief conversation with Ms. 	Mooney
regarding her concerns over SEIU's treatment of her grievance.
Charging Party alleges Ms. 	Mooney was reluctant to discuss the
matter and referred Charging Party back to Ms. 	Preston.
On October 16, 	1996, 	Charging Party sent a letter to Mr.
Varacalli regarding the October 11, 	1996, meeting. 	In this
letter, 	Charging Party requests Mr. Varacalli discuss the
situation with Ms. 	Preston and urges SEIU to handle the matter
promptly. 	On October 22, 	1996, 	Charging Party sent another
letter to Mr. 	Varacalli complaining about Ms. Mooney's failure to
set up a meeting as promised, 	and SEIU's failure to provide her
with any information regarding her grievance. 	On October 24,

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 3
1996, 	Charging Party spoke with Ms. Mooney's assistant, 	Veronica
McKissnick. 	Ms. 	McKissnick informed Charging Party that Ms.
Mooney and Ms. 	Tamura had met regarding the grievance, 	and that a
meeting between Charging Party, 	Ms. 	Tamura and Ms. Mooney would
be scheduled at a later date. 	Ms. 	McKissnick did not call back
to schedule this meeting. Also, on October 24, 199 6, Ms. Tamura
sent a letter to Associate Superintendent, 	Judith Kell, 	regarding
the District's 	failure to respond to the grievance.
On October 30, 	1996, 	Charging Party states she spoke with Ms.
Preston, 	who informed her that the grievance was not 	filed 	"until
recently." 	Ms. 	Preston also stated Ms. 	Tamura would be sending
Charging Party the appropriate paperwork soon. 	On that 	same
date, 	Charging Party sent a letter to Mr. Varacalli recounting
her earlier conversation with Ms. 	Preston, 	and requesting Mr.
Varacalli 	investigate 	the matter and meet with Charging Party on
November 1, 	1996. 	This meeting did not, 	however, 	take place.
In November, 	1996, 	after receiving no assistance from SEIU shop
stewards, 	Charging Party requested assistance from Ricardo Lopez,
Hall of Justice Shop Steward. 	The charge does not explain Mr.
Lopez's role in the union, 	however, 	other facts provided
demonstrate Mr. 	Lopez is not affiliated with SEIU. 	On or about
November 19, 	1996, 	Charging Party spoke with Ms. Tamura, who
informed her that 	the District had not yet processed the
grievance and had yet 	to respond to SEIU's 	letter dated October
24, 	1996. 	On November 22, 	1996, 	Charging Party telephoned Ms.
Tamura regarding another alleged discriminatory act against her.
Ms. 	Tamura did not respond to Charging Party's messages.
On December 18, 	1996, 	Charging Party sent Mr. Varacalli a letter
regarding her affiliation with Mr. 	Lopez. 	The letter states in
pertinent part:
In reference to you letter sent to Mr.
Ricardo Lopez 	concerning his 	representing me
as shop steward, 	I have elected, 	because of
the lack of support that Local 	790 has shown
concerning my grievance, 	to utilize him as my
shop steward and counsel. 	Mr. 	Lopez is
cognizant of my issues with the Union.
Therefore, 	I'm not 	interested in obtaining
representation from a shop steward at 	the San
Francisco Unified School District.
On January 7, 	1997, 	Mr. 	Varacalli sent a letter to Charging Party
in response to the above-quoted correspondence. 	Mr. 	Varacalli's
letter states 	in relevant part:

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 4
Be advised Brother Lopez 	cannot 	represent you
in behalf of the Union as 	I have previously
noted.
Because the Union has 	the duty of 	fair
representation of all 	its members, 	any member
who wishes 	to go beyond the established
process and retain outside counsel must
advise the Union, 	in writing, 	that the
Union's 	responsibility for representation 	in
a particular case 	is 	relieved.
Please advise if you continue to wish to
retain outside 	counsel by following the steps
noted above.
On January 11, 	1997, 	Charging Party responded to Mr. Varacalli's
letter as follows:
However, 	by you and your staff's 	inaction and
failure to respond to my numerous 	requests
(faxes, phone calls, and letters) 	for
information concerning my grievance, 	and the
inability to receive help when I asked other
brothers and sisters 	in my chapter, 	there
wasn't any alternative. 	Therefore, 	I rely on
Mr. 	Ricardo Lopez as a resources because he
has been cooperative, understanding, and
thoughtful brother. 	[sic]
I 	find it very disappointing that you have
taken the time to write me two personal
letters which expressed a concern on who may
represent me, 	while no action has been taken
by you or your staff 	to resolve a grievance 	I
filed more than 10 months earlier.
I am again requesting 	that 	the Union process
my grievance, 	as soon as possible, 	in an
aggressive and efficient manner.
Charging Party did not receive a response from Mr. 	Varacalli
regarding this letter, 	nor has 	Charging Party received any
assistance 	regarding her grievance 	from SEIU since November,
1996.
On April 18, 199 7, Charging Party received a written reprimand
from Assistant Principal Eldoris Cameron. 	Ms. 	Cameron cited
Charging Party's 	failure to return to work on time, 	as the

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 5
reasons for the reprimand. On April 25, 199 7, Charging Party-
forwarded Ms. 	Cameron Charging Party's rebuttal 	to the reprimand.
Copies of the reprimand and rebuttal were sent to Ms. 	Tamura.
On August 1, 	1997, 	Charging Party spoke with SEIU representative
Shirley Black, 	as Charging Party had yet 	to receive her
assignment letter for the 1997-98 school year. 	Ms. 	Black
apparently contacted Human Resource Manager, 	Elaine Lee, 	on that
same date, 	and informed Charging Party that her position at
Roosevelt Middle School was being eliminated. 	On August 5, 	1997,
Ms. 	Lee informed Charging Party of her new assignment in the
Athletics Department. 	On August 8, 	1997, Ms. Black met with
Charging Party to discuss the reassignment.
Based on the above stated facts, 	the charge fails to state a
prima facie case within PERB's jurisdiction, 	and is therefore
dismissed.
Government 	Code section 3541.5(a)(1) 	prohibits the Board from
issuing 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. 	This 	limitations period is mandatory
and constitutes a jurisdictional bar to charges 	filed outside the
prescribed period. 	(University of California 	(1990) 	PERB
Decision No. 	826-H.)
With respect 	to duty of fair representation claims under 3544.9,
the limitations period begins to run on the date the employee, 	in
the exercise of reasonable diligence, 	knew or should have known
that 	further assistance or response from the union was unlikely.
(International Union of Operating Engineers. 	Local 501 	(Reich)
(1986) 	PERB Decision No. 	591-H; 	Los Rios College Federation of
Teachers 	(1991) 	PERB Decision No. 	889.)
It appears 	from the 	facts provided that Charging Party knew or
should have known of SEIU's alleged failure to represent her.
Charging Party requested, 	in April, 	1996, 	that SEIU file and
pursue a grievance regarding Charging Party's transfer. 	From the
outset, 	Charging Party alleges SEIU representatives were remiss
in returning her telephone messages and failed to provide
Charging Party with any information. 	Indeed, 	Charging Party
alleges 	she did not 	receive any correspondence 	from SEIU until
Mr. Varacalli's letter in July, 	1996, 	nearly three months after
the filing of 	the grievance and after several phone calls and
letters 	from Charging Party. 	Mr. 	Varacalli assigned the matter
to Ms. 	Preston, 	who allegedly also ignored Charging Party's
requests for meetings and information until October, 	1996, 	nearly
three months after she was assigned to the matter. 	Additionally,
on October 30, 	1996, 	Charging Party asserts Ms. 	Preston informed

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 6
her that 	SEIU had failed to file 	the grievance 	"until 	recently."
Finally, 	Charging Party herself 	states SEIU's actions best in her
letter on January 11, 	1997, 	which constitutes the final
communication between the parties regarding this grievance:
I 	find it very disappointing that you have
taken the time to write me two personal
letters which expressed a concern on who may
represent me, 	while no action has been taken
by you or your staff 	to resolve a grievance I
filed more than 10 months earlier.
As this charge was filed on September 3, 	1997, 	only matters
occurring after March 3, 	1997, 	can be considered. 	Facts provided
by Charging Party demonstrate 	that 	Charging Party knew or should
have known, 	as late as January 11, 	1997, 	that SEIU was allegedly
breaching its duty of fair representation. 	(See, 	Oakland
Education Association 	(Freeman) 	(1994) 	PERB Decision No. 	1057
(employee knew or should have known that union was 	refusing to
process his grievance when, 	outside the limitations period, 	it
failed to return his phone calls or reply to his
correspondence).) 	Indeed, 	Charging Party's letters to Mr.
Varacalli as early as October, 	1996, 	demonstrate Charging Party
knew of SEIU's lack of care or concern over the grievance. 	The
fact that SEIU continues to refuse or mishandle the grievance
does not start 	the limitations period anew. 	(California State
Employees Association 	(Calloway) 	(1985) 	PERB Decision No. 	497-S.)
Acting with reasonable diligence, 	Charging Party knew or should
have know early in the grievance process that SEIU was 	failing to
process the grievance, 	and thus the charge falls outside PERB's
jurisdiction and must be 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 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

Dismissal 	Letter
SF-CO-527
December 18, 	1997
Page 7
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.)
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 Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Pattie Tamura

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
November 25, 199 7
Katherine Mary Patterson
Re: 	WARNING LETTER
Katherine Mary Patterson v. 	Service Employees 	International
Union. 	Local 790
Unfair Practice Charge No. 	SF-CO-527
Dear Ms. Patterson:
The above-referenced unfair practice charge, 	filed September 3,
1997, 	alleges the Service Employees International Union, 	Local
790 	(SEIU or Local 	790) 	breached its duty of fair representation.
This conduct 	is alleged to violate Government Code section
3543.6(a) 	of the Educational Employment Relations Act 	(EERA or
Act) .
Investigation of the charge revealed the following. 	You are
currently employed by the San Francisco Unified School 	District
(District) 	as a 1446 Secretary, 	and are exclusively represented
by SEIU. 	SEIU and the District are parties to a collective
bargaining agreement 	(Agreement) 	which expired on June 30, 	1997.
The charge alleges SEIU filed a grievance on your behalf 	in
April, 	1996. 	The charge does not provide any details regarding
this grievance. 	The charge further alleges that you have
requested information from Local 	790 	regarding this 	grievance,
and that Local 	790 has refused to respond to your requests. 	The
charge does not provide dates or times when the requests were
made.
On November 24, 	1997, 	I telephoned you and informed you that
although I was aware of information regarding your allegations
against 	SEIU through your filing of another unfair practice
charge,1 pertinent 	information regarding this 	charge must be sent
as part of this charge, 	and served on SEIU, 	to be considered. 	As
1 Unfair Practice Charge No. 	SF-CE-1956, 	filed against the
District, 	which contains over 100 pages of narrative and
exhibits.

Warning Letter
SF-CO-527
November 25, 	1997
Page 2
such information has not been served on SEIU, 	I am unable to
consider it herein.
Based on the above stated facts, 	the charge as presently written,
fails to state a prima facie case 	for the reasons 	stated below.
Charging Party has 	alleged that 	the 	exclusive representative
denied Charging 	Party 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)
PERB Decision No. 	332, p. 	9, 	citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 	124.]

Warning Letter
SF-CO-527
November 25, 	1997
Page 3
As 	the 	charge presently fails 	to 	contain any facts demonstrating
SEIU acted arbitrarily, 	discriminatorily or in bad faith, 	the
charge fails 	to state a prima facie violation of the EERA.
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 December 2. 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney