International Union of Operating Engineers, Local 501, AFL-CIO (Huff) (PERB 1382S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DONNA 	LYNN HUFF,
Charging 	Party,
v.
INTERNATIONAL 	UNION 	OF 	OPERATING
ENGINEERS, LOCAL 501, AFL-CIO,
Respondent.
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) 	Case No. LA-CO-82 -S
PERB Decision No. 	1382-S
May 2 , 2000
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Appearances: 	Donna Lynn Huff 	on her own behalf; 	Levy, 	Stern &
Ford by Lewis N. 	Levy, 	Attorney, 	for International Union of
Operating Engineers,. Local 501, AFL-CIO.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	from an administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached) 	dismissing Donna Lynn
Huff's 	(Huff) 	unfair practice 	charge. 	Huff's 	charge alleges 	that
the International Union of Operating Engineers, 	Local 501, 	AFL-
CIO breached 	its 	duty 	of 	fair 	representation 	in violation 	of 	the
Ralph C. 	Dills Act 	(Dills Act).1
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the unfair practice 	charge, 	the briefs of 	the parties,
the ALJ's proposed decision and Huff's 	appeal. 	The Board 	finds
the 	proposed decision 	to be 	free 	from prejudicial 	error and
adopts 	it 	as 	the decision of 	the Board itself.
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et. seq.

ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-82-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Amador and Baker 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DONNA LYNN HUFF,
Charging 	Party,
v.
INTERNATIONAL 	UNION 	OF 	OPERATING
ENGINEERS, 	LOCAL 501, AFL-CIO,
Respondent.
Unfair 	Practice
Case No. 	LA-CO-82-S
PROPOSED 	DECISION
(8/26/99)
Appearances: 	Donna Lynn Huff 	and Jim Cole, 	for Donna Lynn Huff;
Levy, 	Stern & Ford, 	by Lewis N. 	Levy, 	Attorney, 	for International
Union of Operating Engineers, 	Local 	501, 	AFL-CIO.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	a state employee alleges her exclusive
representative violated 	its 	duty of 	fair representation. 	The
exclusive 	representative 	denies 	any violation.
On August 	24, 	1998, 	Donna Lynn Huff 	(Huff) 	filed an unfair
practice 	charge 	against 	the 	International 	Union of 	Operating
Engineers, 	Local 501, AFL-CIO 	(IUOE). 	On December 30, 	1998, 	the
Office 	of 	the 	General 	Counsel 	of 	the 	Public 	Employment 	Relations
Board 	(PERB) 	issued a complaint 	against 	IUOE, 	which 	filed an
answer on January 20, 	1999. 	PERB held an 	informal 	conference on
February 18, 	1999, 	and a formal hearing on May 18-19, 	1999. 	With
the 	filing of post-hearing briefs on August 	16, 	1999, 	the case
was 	submitted 	for decision.1
1Huff's post-hearing briefs 	include 	some 	references 	to
matters outside 	the 	record, 	including 	settlement 	discussions.
Such references 	shall 	be 	disregarded 	in this 	decision.
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FINDINGS 	OF 	FACT
Huff 	is 	a 	state 	employee under the Ralph C. 	Dills Act 	(Dills
Act) .2 IUOE 	is 	a recognized employee organization under the
Dills Act 	and is Huff's 	exclusive 	representative.
Huff 	is 	employed by the 	State 	of 	California 	(Department 	of
Corrections) 	(State), 	at the Ironwood State Prison 	(Prison), 	in
the position of 	Material 	Stores 	Supervisor 	I.3 She 	seems 	to have
been a controversial 	figure at 	the 	Prison, 	liked by some 	of 	her
fellow 	employees 	and 	disliked by others.
The 	complaint 	alleges 	IUOE 	failed to 	represent 	Huff 	on 	three
occasions: 	in February-March 1998, 	in April-May 1998, 	and in
July 	1998.4 Each of 	these 	occasions 	shall 	be discussed 	in turn.
February-March 	1998
The 	complaint 	alleges 	in part:
On or about 	February 25, 	1998 	and March 	16,
1998, 	Charging Party 	[Huff] 	learned she was
required 	to 	attend 	an 	investigatory 	interview
for having 	allegedly 	created 	a 	hostile 	work
environment 	in professional 	areas 	of 	Ironwood
State 	Prison in Blythe, 	CA on or about
November 3, 	1997. 	Charging Party left
messages 	requesting 	representation 	for 	IUOE
Job Steward Weldon Saul 	[sic], 	but he 	failed
to 	return any of her telephone messages. 	The
interview was 	conducted on March 2 0, 	1998
2The 	Dills Act 	is 	codified at 	Government 	Code 	section 	3512
and 	following. 	Unless otherwise 	indicated, 	all 	statutory
references herein are 	to 	the Government 	Code.
3Despite her position title, 	Huff 	is not 	a 	"supervisory
employee" 	within the meaning of Dills Act 	section 3513(g).
4During 	the 	hearing, 	Huff withdrew allegations 	of 	a 	fourth
occasion, 	in March-April 	1998. 	Before 	the complaint was 	issued,
she withdrew allegations 	in her charge 	of 	occasions 	prior 	to
February 1998.
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without 	the 	attendance 	of 	any 	representative
of 	the 	Respondent 	[IUOE].
The 	IUOE 	steward referred to 	is 	actually named Weldon 	Sewell
(Sewell).
The 	evidence 	showed that 	on February 25, 	1998, 	Huff 	received
a 	written 	advisory 	from 	the 	Prison's 	Investigative 	Services 	Unit
that 	she 	"must 	appear" 	for an 	investigatory 	interview on
February 27, 	1998. 	The advisory explained:
You have 	been 	scheduled 	for 	this 	interview
due 	to 	the 	Investigative 	Services 	Unit
receiving 	information on or 	about 	November 	3,
1997, 	alleging that 	you created a hostile
working 	environment 	in professional
offices/areas 	of 	Ironwood 	State 	Prison.
If you choose, 	you have the right 	to have a
representative 	of your choice present 	at 	the
interview, 	provided that 	the 	representative
you choose 	is 	not 	a 	subject 	of 	this 	inquiry.
On or about March 16, 	1998, 	Huff received a second advisory,
rescheduling the 	investigatory interview to March 20, 	1998.
Huff 	testified that 	when 	she 	received 	the 	advisories 	in
February-March 	1998 	she 	"called Weldon 	Sewell 	on 	the 	work 	site
three to 	four times 	from the UPS 	cage" 	and left messages, 	but 	she
received no 	reply. 	She 	did not 	testify as 	to exactly what 	she
said 	in the messages.
In his 	testimony, 	Sewell 	seemed to 	deny receiving 	any of
these messages 	from Huff. 	A close 	examination of 	the 	questions
to which he responded, 	however, 	makes 	the denial 	seem less 	clear.
Sewell 	testified he 	did not 	receive 	telephone messages 	from Huff,
but 	the 	question he 	answered was 	"[w]ith regard 	to 	January of
1998" 	(before Huff 	received the advisories). 	He also testified
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Huff 	did not make 	a 	request 	during February 	1998, 	but 	the
question was 	only about 	a 	request 	"to 	file 	any sort 	of
grievance." 	He 	appeared to volunteer there was 	"no 	communication
whatsoever" 	from Huff, 	but 	the question was 	only about 	March
1998, 	not 	February. 	He 	later testified he 	"had no 	contact with
Ms. 	Huff" 	with regard to the 	investigatory interview, 	but 	it 	is
not 	clear whether he would count 	a mere 	telephone 	message 	as
"contact." 	Sewell's 	testimony was 	thus 	not 	necessarily
inconsistent 	with the possibility he 	did 	receive 	one 	or more
telephone messages 	from Huff 	in February 	1998 	(when 	she 	received
the first advisory).
Sewell's 	testimony was 	clearer on another point: 	that 	he
did not 	know Huff 	was 	facing 	an 	investigatory 	interview. 	He
credibly 	testified he 	had no 	knowledge 	of 	the 	advisories 	Huff
received. 	He also testified that, 	to his knowledge, 	Huff never
advised him 	she 	had been notified 	she 	was 	the 	subject 	of 	an
investigatory interview. 	If 	Sewell 	is 	to be believed, 	any
messages 	he 	received 	from Huff 	did not 	include 	that 	information.
I 	do believe 	Sewell 	on that 	point, 	but 	I 	also 	find he did receive
one 	or more 	(unspecific) 	telephone messages 	from Huff 	in February
1998, 	to which he then failed to respond.
Huff 	and Sewell 	had a history of previous 	dealings. 	The
evidence 	at 	hearing dated back to 	late 	1995, 	when another 	IUOE
steward, 	Michael Murphy 	(Murphy), 	represented Huff at a pre-
disciplinary hearing. 	Murphy 	testified 	Sewell 	told 	him before
the hearing 	that 	Huff was 	a 	"troublemaker" 	and a 	"dumb bimbo,"
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that 	Murphy should not 	represent her, 	and that 	Sewell 	was 	not
going to 	represent 	her. 	In his 	testimony, 	Sewell 	denied advising
Murphy not 	to 	represent 	Huff, 	but 	he 	did not 	deny or 	explain the
other 	comments 	attributed 	to 	him.
A few months 	later, 	however, 	Sewell 	was 	involved in
providing representation to Huff. 	In early 1996, 	Huff 	contacted
Sewell 	and 	informed him 	she 	had been 	threatened with 	rejection 	on
probation. 	Sewell 	contacted 	IUOE 	representative 	Chris 	Brown
(Brown) 	and set 	up a meeting with the warden. 	Sewell 	attended
the meeting, 	at which Brown was 	successful 	in defending Huff, 	in
part 	because 	Huff 	had 	actually 	already 	completed 	her probation.
Later 	in 	1996, 	Huff 	called Sewell 	about what 	she 	regarded as
a hostile work environment, 	and he 	agreed to 	stop by her home
after work to talk about 	it. 	When he did stop by, 	she 	showed him
"all 	this printed matter 	she 	had printed up." 	He 	thought 	the
material 	needed to 	be 	"better organized" 	and 	"more 	professionally
done," 	and he 	offered to try to have 	someone work on it, 	but 	he
was 	unable 	to 	find anyone willing 	to get 	involved. 	Apart 	from
that, 	he 	felt 	the 	issue 	"was way beyond what 	I 	could do within my
scope 	as 	a shop 	steward."
Sometime 	in 1996 	or 1997, 	the Prison's business 	services
office 	called 	Sewell 	to 	assist 	with a unit 	member who was very
upset. 	Sewell went 	to the office, 	where the unit member in
question was Huff. 	She had an appointment 	to 	see 	the warden, 	but
Sewell 	advised her 	to 	reschedule 	the 	appointment 	to 	a 	time 	when
she would not 	be 	so upset. 	He 	thought 	she 	tentatively agreed,
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but 	five 	minutes 	later she met 	with the warden anyway. 	Sewell
testified that 	"after that point, 	I 	felt 	real 	reluctant 	to offer
any advice," 	because he 	thought 	Huff 	"was 	in charge 	of her own
destiny." 	Sewell 	discussed the matter with Brown, 	who 	advised
Sewell 	to refer Huff 	to him 	(Brown), 	and on one occasion Sewell
did tell 	Huff 	just 	to call 	Brown.
Later in 1997, 	Huff 	called Sewell 	on another matter. 	He
investigated 	and 	"found 	out 	that 	only her 	supervisors 	were 	making
inquiries 	about 	her pay." 	He 	then left 	"a couple of messages"
for Huff 	at 	work, 	but 	it 	is not 	clear Huff 	actually received
these messages. 	Later, 	in December 1997 or January 1998, 	Sewell
wished Huff 	a 	"better and happier" 	new year. 	Sewell 	described
his 	ensuing 	conversation with Huff 	as 	follows:
And she 	said, 	well, 	it's 	funny you would say
that. 	I says, 	why? 	She says, 	well, 	you
never had the 	decency 	to get 	back to me 	after
I 	asked you to do 	something 	for me. 	I 	says
well, 	Donna, 	upon those words like that 	I
says, 	you need to 	learn about 	interpersonal
relationships 	and how to 	communicate 	with
people. 	All you do 	is 	alienate people 	and
make them dislike you, 	and I 	says, 	you need
to improve. 	And I 	says, 	your dealing with
people is really bad. 	And I 	says, 	if you 	--
if 	you'd've 	really wanted 	to 	know about 	this
you 	should've got 	back to me 	and 	I 	would've
told you your 	supervisor has 	to make 	the
initial 	pay inquiries. 	And if 	they refuse 	to
pay you, 	then we 	could take 	a 	look at 	it.
And that 	is 	the way.
As 	far as 	the evidence goes, 	this was 	the 	last 	conversation
between Sewell 	and Huff 	before 	the 	advisories.
In February-March 1998, 	Huff 	told people that 	IUOE was
refusing 	to 	represent 	her 	in 	the 	upcoming 	investigatory
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interview. 	Among others, 	she 	told Linda Sue Moore-Halliday
(Moore-Halliday), 	a 	fellow employee who was 	a steward for the
California Correctional 	Peace Officers Association 	(CCPOA).
Moore-Halliday 	testified 	she 	heard Huff's 	side 	of 	a 	telephone
conversation with 	someone 	Moore-Halliday understood was 	an 	IUOE
representative. 	Moore-Halliday also 	testified 	she 	understood
from what 	she 	heard 	that 	IUOE would not 	be 	representing Huff 	in
the 	investigatory interview. 	Whatever Moore-Halliday heard, 	it
was 	apparently not 	a 	conversation between Huff 	and Sewell, 	who
agree 	they never had 	such a 	conversation.5
Moore-Halliday advised Huff 	she 	had 	the 	right 	to 	have 	any
representative 	of 	her 	choice 	at 	the 	investigatory 	interview.
Moore-Halliday 	referred Huff 	to 	another 	CCPOA 	steward, 	George
Finely 	(Finley), 	who did represent Huff at 	the March 2 0
interview.
April-May 	1998
The 	complaint 	further alleges:
On April 	25, 	1998 	Charging Party wrote 	to
Frank Hanley, 	Respondent's General 	President,
Washington, 	D.C. 	requesting representation,
in part, 	for being 	relieved of 	duty and being
prevented 	from 	returning 	to 	work 	even with 	a
doctor's 	release; 	and 	for alleged retaliation
by the 	institution. 	The Respondent 	failed to
respond, 	and on May 12, 	1998, 	Charging Party
learned 	from a 	secretary under Mr. 	Hanley
that 	her matter had been 	sent 	to 	James
5Despite Moore-Halliday's 	testimony, 	Huff 	never 	testified
she 	had any actual 	conversation with an 	IUOE 	representative 	in
February-March 	1998. 	Huff 	did testify she made 	other efforts 	to
obtain 	IUOE 	representation 	for 	the 	investigatory 	interview, 	but
such efforts were not 	mentioned 	in her 	charge 	or the 	complaint,
and 	I 	have 	therefore 	not 	included them in these 	findings 	of 	fact.
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McLaughlin, 	Business Manager, 	Local 	501. 	He
failed 	to 	respond.
It was stipulated at hearing that 	on or about April 	25, 	1998,
Huff 	did send 	IUOE general 	president 	Frank Hanley 	(Hanley) 	a
letter, 	stating in relevant part:
My name 	is Donna Huff, 	Material 	Stores
Supervisor 	I. 	I 	am a 	state 	employee 	for the
department of corrections, 	in Blythe Ca., 	at
Ironwood 	State 	Prison.
I 	have 	encountered many 	trials 	at 	this
institution. 	One 	being 	denied proper union
representation.
I 	have 	corresponded with 	the 	following Union
agents, 	Weldon Sual 	[sic], 	Kriss 	[sic] 	Brown,
Larry Dolson, 	James Mclaughlin 	[sic], 	Don
Mear, 	Ron Glick.
April 	3, 	1998 	Ron Glick just 	confirmed to me
that the Union, 	(Larry Dolson) 	was refusing
to 	represent me 	in any of 	my request's
concerning 	the 	appeal 	hearing 	for
correctional 	officer. 	Wrongful 	dismissal 	and
retaliation brought 	on by the 	institution.
Currently 	I 	have been relieved of 	my job
duties 	and unable 	to return. 	This pending a
doctor's 	deposition 	for 	a work 	related
Injury. 	The doctor has 	released me 	full 	duty
but 	the 	Institution 	is 	denying me 	the 	right
to return. 	They have 	also 	took it upon
themselves 	to 	enter 	a 	resignation on another
part 	time 	job that 	I 	maintain at 	the
institution as 	a 	self-help 	sponsor.
I 	have 	requested union 	representation 	from
September 1997 until 	current. 	I 	have been
denied on all 	occasion's.
Mr. 	Hanley I 	am sending you a chronological
of 	past 	incident's 	that 	has 	occurred against
me. 	I 	truly hope you can help me make
thing's write 	[sic] 	with the proper
representation and or 	counsel.
It 	was 	further 	stipulated that 	Hanley received 	the 	letter.
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Huff 	testified 	she 	received no 	reply to her April 	25 	letter,
so 	she 	called and spoke 	to 	a 	secretary, 	who 	told her that 	"that
packet was 	sent 	back." 	According to Huff, 	she 	still 	never
received a 	reply. 	IUOE 	offered no 	evidence 	as 	to what 	happened
to 	the April 	25 	letter after Hanley received it.
Enclosed with the April 	25 	letter was 	a 	five-page
chronology, 	covering the period September 17, 	1997, 	to April 22,
1998. 	In this 	chronology, 	Huff provided some additional
information about 	the 	issues mentioned 	in the 	letter.
With regard 	to 	"the 	appeal 	hearing 	for 	correctional 	officer"
mentioned in the April 	25 	letter, 	the 	enclosed chronology
indicated that 	on September 	17, 	1997, 	Huff 	had been rejected for
a 	correctional 	officer position, 	apparently on both physical 	and
psychological 	grounds. 	The 	chronology later 	included the
following entry for April 22, 	1998:
I 	have 	a 	hearing 	for 	appealing my
Correctional 	Officer Job 	that 	I 	was 	denied on
September 17, 	1997. 	The appeal 	is held per
the 	State 	Personnel 	Board 	in Rancho
Cucamonga. 	It's suppose[d] 	to be impartial.
To date 	I 	have 	turned over the 	original
denial 	on the physic but 	there 	[sic] 	still
denying me per 	the 	psychological 	examiner.
The 	union refused to 	represent 	me.
The 	chronology 	further 	indicated 	that 	when Huff 	appeared 	for 	the
hearing 	she was 	told 	it 	had been taken off 	calendar, 	and that
Huff 	had 	requested 	another 	hearing be 	scheduled.
The position of 	correctional 	officer 	is 	outside 	the 	IUOE
bargaining unit. 	The 	IUOE bargaining agreement 	does 	not 	give
unit 	members 	rights with regard to positions 	outside 	the 	unit.
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With regard to 	the 	"wrongful 	dismissal" 	mentioned 	in 	the
April 	25 	letter, 	the 	chronology does not 	appear to provide any-
more 	information. 	It does 	not 	indicate Huff was 	dismissed from
employment 	or 	threatened with dismissal. 	The 	IUOE bargaining
agreement 	does not 	address 	"wrongful 	dismissal" 	in general.
With 	regard 	to 	the 	"retaliation brought 	on by the
institution" 	mentioned in the April 	25 	letter, 	the 	chronology
indicated Huff 	felt 	the 	Prison was 	"retaliating 	against 	me 	for
filing with outside agency's 	[sic]." 	It 	appears 	from the
chronology 	that 	the 	outside 	agencies 	in question 	included 	the
State 	Compensation 	Insurance 	Fund, 	the 	State Labor Commissioner
and 	the 	federal 	Equal 	Employment 	Opportunity Commission.
Although the 	IUOE bargaining agreement 	(in Article 	21, 	section
21.3) 	prohibits 	reprisals 	against 	employees 	"because of 	the
exercise 	of 	their 	rights 	under 	the Dills Act 	or any right 	given
by this Agreement," 	it 	does 	not 	generally protect 	the 	right 	of
employees 	to 	file 	with outside 	agencies 	(other 	than 	their 	right
under the Dills Act 	to file with PERB).
With 	regard to Huff 	being 	"relieved of 	my 	job 	duties 	and
unable to return," 	as mentioned in the April 	25 	letter, 	the
chronology 	indicated Huff 	was 	relieved of 	her 	job 	duties 	on March
20, 	1998, 	because of a doctor's report dated March 16, 	1998.
This 	doctor's 	report 	was 	generated 	in 	connection with a worker's
compensation case Huff had brought 	against 	the 	State, 	in which
Huff was 	represented by an attorney. 	On March 20, 	1998, 	Huff's
application 	for benefits 	was 	amended to 	include 	an 	allegation
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that 	"[o]n or about 	20 March 	1998 	applicant 	[Huff] 	was not
allowed 	to work." 	The matter was 	eventually 	settled.
The 	issue 	of 	Huff's 	relief 	from her 	duties 	and 	inability to
return to work was 	the 	focus 	of 	allegations 	in 	the 	complaint 	that
Huff 	withdrew during 	the 	hearing. 	Huff's 	post-hearing brief
states the 	"Worker Comp 	. 	. 	. 	part of the complaint was dropped."
I 	conclude Huff has 	abandoned this 	issue, 	and 	I 	shall 	make no
further 	findings 	or conclusions 	regarding 	it.
With regards 	to Huff's 	"resignation on 	another part 	time 	job
. 	. 	. 	as a self-help sponsor," 	the chronology indicated that when
Huff 	was 	not 	allowed to 	return to work 	"[t]his 	also 	cost 	me
another 	job 	that 	I 	sponsor 	every Thursday night 	on 	the 	minimum
yard for AA/NA 	(Alcohol 	and Narcotic's 	anonymous)." 	The 	entry
for April 	22, 	1998, 	indicated Huff 	received a personnel notice
from the 	Prison 	that 	"stated that 	they have 	resigned me" 	from the
part-time 	job, 	to which Huff 	responded 	"that 	at 	no 	time did 	I
resign from any job" 	at 	the 	Prison.
Huff's 	part-time 	position as 	a 	self-help 	sponsor was 	outside
the 	IUOE bargaining unit. 	As previously noted, 	the 	IUOE
bargaining 	agreement 	does 	not 	give 	unit 	members 	rights 	with
regard to positions 	outside 	the unit.
July 	1998
The 	complaint 	finally alleges:
On or about July 6, 	1998, 	Charging Party
contacted 	IUOE 	Union Representative 	Chris
Brown 	and 	requested 	representation 	for 	an
investigatory 	interview 	by 	management
scheduled 	for July 9, 	1998 	concerning
allegations 	that Electronics Technician, 	Mike
11

Murphy's 	life 	had been 	threatened by 	other
staff 	at 	Ironwood State 	Prison. 	The
Respondent 	did not 	respond 	to 	Charging
Party's message 	to 	call 	her. 	The 	interview
occurred without 	the 	attendance 	of 	any
representative 	of 	the 	Respondent.
The evidence 	showed that on June 30, 	1998, 	the Prison's
Investigative 	Services Unit 	did 	send Huff 	an advisory of 	an
investigatory interview scheduled for July 	9, 	1998. 	The 	advisory
explained:
You have 	been 	scheduled 	for 	this 	interview
due 	to 	the 	Investigative 	Services Unit
receiving 	information 	that 	you made 	false
allegations 	that Michael 	Murphy's,
Electronics Technician, 	life had been
threatened by others 	at 	Ironwood 	State
Prison.
The 	advisory also 	told Huff 	she 	had 	"the 	right 	to have 	a
representative 	of your choice present 	at 	the 	interview."
Huff 	testified 	she 	received the 	advisory 	in 	"the 	first 	part
of 	July" 	and then 	"made 	an attempt" 	to call 	IUOE 	to 	request
representation. 	Because 	she believed 	IUOE was 	refusing to 	return
her calls, 	she had someone 	else on the 	line with her as 	a
witness. 	According to that witness, 	on July 6, 	1998, 	at
approximately 12:15 	to 	12:30 	in the 	afternoon, 	Huff 	called the
voice 	mail 	of 	IUOE 	representative 	Brown and 	left 	a message 	about
why she was calling, 	when and where the 	"hearing" 	would be, 	and
how Brown 	could 	call 	Huff 	back. 	Huff's 	testimony was
substantially similar: 	that 	she 	called Brown's voice mail 	and
"stated my request 	and the 	urgency of 	the 	representation 	that 	I
needed." 	Huff got 	no return call, 	so 	she 	asked CCPOA steward
Finley to represent 	her at 	the July 9 	interview, 	which he 	did.
12

Brown 	specifically 	testified 	he 	did not 	receive 	a 	message
from Huff 	on July 6, 	1998. 	He did not 	specifically testify
whether he 	received a message 	from Huff 	on 	some 	other date 	in
early July. 	He did testify, 	however, 	that he 	checked his
messages 	"periodically, 	during the 	daytime, 	. . . 	a 	few times 	a
day." 	If, 	as Huff's witness 	testified, 	Huff called Brown's voice
mail 	on July 6, 	1998, 	at 	approximately 12:15 	to 	12:30 	in the
afternoon, 	Brown should have 	checked his 	voice 	mail 	later 	that
same 	day, 	and he 	therefore 	should have 	received Huff's 	message
that 	same day, 	if ever.
Furthermore, 	Brown credibly testified that 	whenever he
checked his voice mail 	he 	used a personal 	calendar 	to make 	a note
of 	each message, 	including the name of 	each person who 	left 	a
message. 	Brown's 	calendars 	for 	1996 	and 	1997 	list 	Huff 	as 	one of
the people who 	left 	messages 	for Brown on various 	dates. 	Brown's
calendar for July 1-9, 	1998, 	however, 	does not 	list Huff,
although 	it 	lists 	several 	other people who 	left 	messages 	on those
dates 	(including July 6, 	1998).
I 	find Huff 	did call 	Brown on July 6, 	1996, 	and did attempt
to leave a message on his voice mail. 	I 	also 	find, 	however, 	that
for 	some 	reason Brown did not 	receive 	the message.
Huff 	and Brown had a history of 	previous 	dealings, 	dating
back 	to 	early 	1996, 	when Brown 	successfully defended Huff 	against
a 	threat 	of 	rejection on probation. 	There was 	a 	turning point 	in
their 	relationship 	in September 	1997, 	when Huff 	contacted Brown
about 	being 	rejected 	for 	a 	correctional 	officer position. 	Brown
13

testified he 	asked Huff 	if 	she 	supposed 	the 	rejection had
anything 	to 	do with a petition 	complaining 	about 	her 	that 	had
been signed by some 	of 	her 	fellow employees. 	This 	was 	the 	first
time Huff had heard of 	such a petition. 	According to Brown, 	Huff
became 	argumentative 	and demanded a 	copy of 	the petition. 	Brown
was 	reluctant 	to give 	it 	to her, 	because he 	felt 	an obligation to
protect 	the 	employees who had 	signed 	it. 	After 	checking with his
supervisors, 	he 	told Huff he 	could not 	and would not 	give 	it 	to
her.
Huff 	called Brown again 	in October and November 	1997, 	again
demanding a 	copy of 	the petition, 	but 	Brown again refused.
According to Brown, 	Huff became 	"very abusive, 	screaming at me,"
and 	thereafter 	the 	communication between 	the 	two 	of 	them stopped.
At 	all 	relevant 	times, 	the 	IUOE bargaining agreement 	has
provided 	in part 	(in Article 	5, 	section 5.1) 	that 	the 	State
"recognizes 	and agrees 	to deal 	with 	IUOE-designated 	stewards" 	on
various matters, 	including employee 	adverse 	actions 	and matters
before the State 	Personnel 	Board 	(SPB). 	The agreement 	does not
otherwise address 	employee 	adverse 	actions 	in general, 	or matters
before 	the 	SPB.
ISSUE
Did 	IUOE violate 	its 	duty of 	fair 	representation?
CONCLUSIONS 	OF 	LAW
As 	the 	charging party 	in this 	case, 	Huff has 	alleged that
her exclusive 	representative, 	IUOE, 	violated its 	duty of 	fair
representation under the 	Dills Act. 	The 	duty of 	fair
14

representation 	imposed on 	an 	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 	(Collins).) 	In order to establish a
violation of 	the 	duty, 	a 	charging party must 	show the 	exclusive
representative's 	conduct was 	arbitrary, 	discriminatory or 	in bad
faith. 	In Collins, 	PERB stated in part:
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.
In order 	to 	state 	a prima 	facie 	case 	of 	arbitrary conduct
violating the duty of 	fair representation, 	a charging party:
[M]ust 	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. 	[Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision
No. 	124.]
In order to prevail, 	a charging party must 	then prove 	such facts.
In the present 	case, 	the 	complaint 	alleges 	IUOE violated its
duty of 	fair 	representation by 	failing 	to 	respond 	to 	three
requests 	for 	representation:
1. 	Huff's 	telephone messages 	to 	Sewell 	in February-March
1998, 	concerning the 	investigatory interview of March 20, 	1998.
2. 	Huff's 	letter to Hanley on April 	25, 	1998, 	concerning
alleged 	retaliation 	and 	other 	issues.
3. 	Huff's 	telephone message to Brown on July 6, 	1998,
concerning 	the 	investigatory interview of 	July 	9, 	1998.
15

In 	its post-hearing brief, 	IUOE argues 	in part 	that 	these
three 	requests 	for 	representation 	fell 	outside 	IUOE's 	duty of
fair representation under the 	Dills Act. 	As previously noted,
the 	duty 	of 	fair 	representation does 	extend 	to grievance
handling. 	It does not extend, 	however, 	to an extracontractual
forum, 	such as 	the 	SPB. 	(California Union of 	Safety Employees
- -
(John) 	(1994) 	PERB Decision No. 	1064-S 	(John).) 	In general, 	the
duty does 	not 	apply when 	a 	forum is 	not 	connected with 	some
aspect 	of 	negotiation 	or 	administration of 	a 	collective
bargaining agreement, 	and the 	exclusive 	representative 	does 	not
exclusively control 	the means 	to 	the 	particular 	remedy.6 (John.)
In California Union of 	Safety Employees 	(Coelho) 	(1994) 	PERB
Decision No. 	1032-S 	(Coelho), 	PERB held the duty of 	fair
representation did not 	apply to 	the 	State's 	internal
investigation of 	a 	citizen's 	complaint 	against 	an employee. 	PERB
held 	the 	exclusive 	representative 	had no 	obligation 	to 	represent
the 	employee 	in 	that 	forum and did not 	violate 	its 	duty by
refusing 	to 	represent 	him.
-
In the present 	case, 	IUOE argues 	that under Coelho 	its duty
of 	fair 	representation did not 	extend 	to 	the 	investigatory
interviews of March 20 	and July 6, 	1998. 	Huff points out 	that
Coelho, 	unlike the present 	case, 	involved a 	"citizen's" 	complaint
against an officer 	(a fish and game warden). 	It 	is not 	apparent,
Exclusive representatives may, 	of 	course, 	represent unit
members before 	the 	SPB, 	and in other extracontractual 	forums, 	but
whether 	they do 	so 	is 	outside 	the 	scope 	of 	the 	duty of 	fair
representation.
16

however, 	why this would be 	a principled reason to distinguish the
two cases.
Huff 	also points 	to 	the 	language 	in the 	IUOE bargaining
agreement 	providing 	that 	the 	State 	"recognizes 	and 	agrees 	to 	deal
with 	IUOE-designated 	stewards" 	on employee 	adverse 	actions 	and
matters before 	the 	SPB. 	This 	language appears 	to give 	IUOE and
its 	stewards 	a 	contractual 	right 	to 	represent 	unit 	members 	on
these matters. 	The language does not, 	however, 	make these
matters 	themselves 	contractual, 	as 	the agreement 	does not
otherwise 	address 	them. 	Furthermore, 	the 	language 	apparently
does 	not 	give 	IUOE 	exclusive 	control 	over 	investigatory
interviews: 	the 	Prison 	informed Huff 	she had the 	right 	to 	a
representative 	"of 	[her] 	choice," 	and it 	allowed her to be
represented by CCPOA 	steward 	Finley, 	rather 	than by an 	IUOE
steward.
Thus, 	as 	in Coelho, 	the 	investigative 	forum was apparently
unconnected with 	any aspect 	of 	negotiation or 	administration of 	a
collective bargaining agreement, 	and the 	exclusive 	representative
apparently did not 	exclusively control 	the 	means 	to 	the
particular remedy. 	I therefore conclude, 	as IUOE argues, 	that
the 	allegations 	concerning Huff's 	requests 	for 	representation at
the 	investigatory 	interviews 	must 	be 	dismissed, 	as 	falling
outside 	IUOE's 	duty of 	fair representation under 	the Dills Act.
I 	would 	also 	dismiss 	the 	allegations 	concerning Huff's
request 	for representation at 	the 	July 	9 	interview 	for 	the
independent 	reason that 	Brown 	(as 	I 	have 	found) 	somehow did not
17

receive 	the message. 	Brown cannot 	reasonably be 	faulted 	for
failing 	to 	respond 	to a message he 	did not 	receive.7 Even 	if
Brown or 	IUOE was 	somehow negligent 	in 	failing 	to 	receive 	Huff's
message, 	such mere 	negligence would not 	constitute 	a breach of
the 	duty of 	fair 	representation. 	(Collins.)
The 	only allegations 	in the 	complaint 	that 	remain are 	those
concerning Huff's April 	25 	letter to Hanley. 	It was 	stipulated
that 	Hanley received the 	letter, 	and 	it 	was 	apparently undisputed
that 	IUOE 	did not 	respond. 	As previously noted, 	Huff 	has
abandoned the 	issue 	raised 	in 	the 	letter 	of 	her 	inability to
return 	to work after her worker's 	compensation 	claim. 	The
question 	is 	whether 	the 	other 	issues 	raised 	in the 	letter 	fell
within 	IUOE's 	duty of 	fair 	representation.
The 	issue 	of 	the 	"appeal 	hearing 	for correctional 	officer"
raised 	in the 	letter 	clearly 	fell 	outside 	IUOE's 	duty of 	fair
representation. 	The hearing was before the 	SPB, 	an
extracontractual 	forum to which 	the 	duty does 	not 	extend.
(John.) 	Furthermore, 	the 	IUOE bargaining agreement 	does not 	give
unit 	members 	rights 	with regard 	to positions 	outside 	the
bargaining unit, 	including correctional 	officer positions. 	The
issue 	would 	thus 	appear 	to be 	unconnected with 	any aspect 	of
negotiation 	or 	administration of 	a 	collective 	bargaining
agreement.
7Sewell, 	on the other hand, 	could be 	faulted for not
responding to 	the messages 	from Huff 	that 	I 	have 	found he 	did
receive 	in February 	1998. 	Perhaps 	IUOE was 	fortunate 	those
(unspecific) 	messages 	turned out 	not 	to 	concern a matter within
IUOE's 	duty of 	fair 	representation.
18

The 	same would seem to be 	true 	for 	the 	"wrongful 	dismissal"
issue 	raised 	in the 	letter 	(although 	it 	is 	not 	clear exactly what
Huff meant, 	as 	she apparently had not 	actually been dismissed).
The 	IUOE 	bargaining 	agreement 	does 	not 	generally address
"wrongful 	dismissal," 	which would also 	seem to be 	an 	issue 	for
the 	SPB 	or 	some 	other 	extracontractual 	forum.
The 	issue 	of 	the 	"retaliation brought 	on by the 	institution"
might 	have been within the duty of 	fair representation, 	if 	it
appeared Huff 	was 	suffering 	reprisals 	"because 	of 	the 	exercise 	of
[her] 	rights 	under 	the Dills Act 	or any right 	given by this
[IUOE] 	agreement." 	Such reprisals 	are prohibited by the 	IUOE
agreement, 	and the 	issue would thus 	be 	connected with the
administration of the agreement. 	It appears, 	however, 	that Huff
felt 	the 	Prison was 	retaliating 	against 	her 	for 	filing with
outside 	agencies, 	such as 	the 	State 	Compensation 	Insurance 	Fund,
the 	State 	Labor Commissioner 	and the 	federal 	Equal 	Employment
Opportunity Commission. 	The 	IUOE 	agreement 	does 	not 	generally
address 	this 	kind of 	retaliation, 	which would 	seem to be 	another
issue 	for 	an extracontractual 	forum.
The 	final 	issue 	of 	Huff's 	involuntary 	"resignation 	on
another part time job 	. 	. 	. 	as a self-help sponsor" 	likewise
appears 	to be 	unconnected with any aspect 	of 	negotiation or
administration of 	a 	collective bargaining agreement. 	The 	self-
help 	sponsor position was 	outside 	the bargaining unit, 	and the
IUOE 	agreement 	does 	not 	give 	unit 	members 	rights 	with regard to
positions 	outside 	the unit.
19

As 	the 	charging party in this 	case, 	Huff has 	the burden of
proof. 	(PERB Regulation 32178.8) 	I 	conclude that Huff has not
met 	the 	burden of 	proving 	facts 	from which 	it 	appears 	that 	her
April 	25 	letter to Hanley 	fell 	within 	IUOE's 	duty of 	fair
representation. 	I 	therefore 	conclude 	the 	allegations 	concerning
that 	letter must 	be 	dismissed, 	along with the 	other 	allegations.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and upon the entire record in this matter, 	it 	is ordered
that 	the 	complaint 	and the 	underlying unfair practice 	charge 	in
Case No. 	LA-CO-82-S, 	Donna Lynn Huff v. 	International Union of
Operating Engineers, 	Local 	501, 	AFL-CIO, 	are hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board itself within 20 	days of 	service of 	this 	Decision. 	The
Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
In accordance with PERB regulations, 	the 	statement 	of
exceptions 	should 	identify by page 	citation 	or 	exhibit 	number 	the
portions 	of 	the 	record, 	if any, 	relied upon for such exceptions.
(Cal. Code Regs., 	tit. 8, 	sec. 32300.)
8PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 and following.
20

A document 	is 	considered 	"filed" 	when 	actually 	received
before the close of business 	(5 p.m.) 	on the 	last 	day set 	for
filing or when mailed by certified or Express 	United 	States 	mail,
as 	shown on the postal 	receipt 	or postmark, 	or delivered to a
common carrier promising overnight 	delivery, 	as 	shown on the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(Cal. Code Regs., tit. 8, 	sec. 32135(a); see also Cal. Code
Regs., tit. 8, sec. 32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
day 	for 	filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet
which meets the requirements of Cal. 	Code Regs., 	tit. 8, 	sec.
32135(d), 	provided the 	filing party also places 	the original,
together with 	the 	required number of 	copies 	and proof 	of 	service,
in the U.S. 	mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c)
and 	(d); 	see also Cal. Code Regs., 	tit. 	8, 	secs. 	32 090 and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting brief 	must 	be
served 	concurrently with 	its 	filing upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party or 	filed with the Board itself. 	(See Cal. 	Code Regs.,
tit. 	8, 	secs. 32300, 	32305, 	32140, and 32135(c).)
THOMAS J. 	ALLEN
Administrative 	Law 	Judge
21