California State Employees Association (Coleman) (PERB 1407S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUANITA 	COLEMAN,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-93-S
PERB Decision No. 	1407-S
September 26, 	2000
Appearances: 	Juanita Coleman, 	on her own behalf; 	California
State Employees Association by Michael 	D. 	Hersh, 	Attorney.
Before Dyer, 	Amador and Baker, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case comes before the 	Public
Employment 	Relations 	Board 	(Board) 	on appeal 	by Juanita 	Coleman
(Coleman) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	Coleman 	filed a 	charge 	alleging 	that 	the
California 	State 	Employees Association violated 	section 	3519 (c)
of the Ralph C. 	Dills Act 	(Dills Act)1 in its handling of her
suspension 	and 	termination 	from employment. 	After 	investigation,
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(c) 	Refuse or 	fail 	to meet 	and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
)
)
)
)
)
)
)
)
)
)
______________ )

the 	Board agent 	dismissed 	the 	charge 	for 	failure 	to 	establish
timeliness 	and 	failure 	to 	state 	a prima 	facie 	case.
The Board has 	reviewed the 	entire 	record 	in this 	case, 	and
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-93-S 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer and Baker 	joined 	in 	this 	Decision.
N
	2

i 	•
STATE OF CALIFORNIA 	f 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
PERS
June 26, 2 00 0
Juanita 	Coleman
Re: 	Juanita Coleman v. 	California 	State Employees
Association
Unfair Practice Charge No. 	LA-CO-93-S
Dismissal 	and Refusal 	to 	Issue 	a 	Complaint
Dear Ms. 	Coleman:
In 	the 	above-referenced 	charge 	you 	allege 	the 	California 	State
Employees Association 	(CSEA or Association) 	violated the Ralph C.
Dills Act 	(Dills Act or Act) 	§ 	3519.5(c) . 	I 	indicated to you, 	in
my attached letter dated June 	9, 	2000, 	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 	16,. 2000, 	the charge would be dismissed. 	On
June 16, 	2 0 00, 	I 	received a letter as an amended charge.
The 	charge was 	filed on April 	28, 	2000. 	The 	statute of
limitations 	period 	included 	only 	those 	events 	occurring 	on 	or
after October 	28, 	1999. 	The Warning Letter explained 	that 	CSEA's
attempts 	to 	represent 	Coleman culminated at 	the October 	12, 	1999
SPB 	hearing 	which 	occurred more 	than 	six months 	prior 	to 	the
filing of 	the 	charge.
The 	amended 	charge 	provides 	information 	regarding 	Coleman's
initial 	meetings 	with the 	Civil 	Rights 	Officer, 	Igancio Trujillo
and 	CSEA regarding 	a 	racial 	discrimination 	complaint. 	Although
the 	amended 	charge 	does 	not 	provide 	a 	specific 	date 	for 	these
meetings, 	the 	charge 	indicates 	that 	they occurred prior 	to
Coleman's 	suspension on October 20, 	1998. 	Thus, 	the amended
charge 	does 	not 	provide 	any 	facts 	regarding 	events 	occurring
within 	the 	six months 	prior 	to 	the 	filing 	of 	the 	charge.
The 	amended charge 	alleges 	that 	the 	statute 	of 	limitations 	should
have began to run on November 	1, 	1999, 	which is 	the date when the
State 	Personnel 	Board 	(SPB) 	adopted 	the Administrative 	Law
Judge's 	dismissal 	of 	Coleman's 	appeal 	of 	her 	termination.
However 	it 	appears 	that 	CSEA's 	last 	contact 	was 	during 	the
October 	12, 	1999 	SPB hearing. 	The 	amended charge does 	not
provide 	facts 	indicating 	that 	CSEA had 	contact 	with 	Coleman 	after

LA-CO-93-S
Dismissal 	Letter
Page 2
that 	hearing. 	Thus, 	the charge 	is 	dismissed for the 	above-stated
reasons 	and 	those 	stated 	in 	the 	warning 	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
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with 	the 	Board must 	contain
the case name 	and number, 	and the original 	and five 	(5) 	copies 	of
all 	documents 	must 	be provided 	to 	the 	Board.
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. 	32090 and 32130.)
The Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
. 	FAX: 	(916) 	327-7960
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
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"

LA-CO-93-S
Dismissal 	Letter
Page 3
must 	accompany each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
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 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
Tammy 	L.Samsel
Regional 	Director
Attachment
cc: 	Michael D. 	Hersh

STATE OF CALIFORNIA 	' 	' 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
{415)439-6940
June 9, 	2 00 0
Juanita 	Coleman
Re: 	Juanita Coleman v. 	California 	State 	Employees
Association
Unfair Practice 	Charge No. 	LA-CO-93-S
Warning 	Letter
Dear Ms. 	Coleman:
In 	the 	above-referenced 	charge 	you 	allege 	the 	California 	State
Employees Association 	(CSEA or Association) 	violated 	the 	Ralph C.
Dills Act 	(Dills Act or Act) 	§ 	3519.5 (c). 	On or about May 4, 	I
spoke 	with you 	regarding 	this 	charge. 	My 	investigation 	revealed
the 	following 	information.
Coleman was 	employed by the Metropolitan 	State Hospital 	(State).
On or about October 20, 	1998, 	the 	State 	served Coleman with
notice of 	a two-week suspension. 	On October 23, 	1998, 	CSEA Labor
Relations 	Representative 	Maria 	Del 	Carmen 	Perez 	met 	with 	Coleman,
and 	subsequently 	filed an appeal 	of 	the 	suspension 	to 	the 	State
Personnel Board 	(SPB).
The 	charge 	states 	in 	its 	entirety:
I 	appealed 	the 	decision 	for 	the 	termination
but at the appeals dated, 	October 2, 	1999, 	I
was 	too 	ill 	(emotionally and physically 	ill,
+ 	could not 	handle 	the meeting, 	+ 	called 	for
another date was denied. 	[sic] 	I 	was very
disturbed 	and to make 	matters 	worse 	I 	was
denied 	legal 	representation by 	the 	attorney
after being 	told 	I 	would have 	one 	first 	at
the 	suspension by Linda McPherson, 	Union
Steward, 	then I was 	told that 	at 	the 	time of
the 	termination appeal 	I 	would definitely
have 	one, 	but was 	denied an attorney. 	I
tried 	to 	ask 	for 	another 	appeal 	but 	was
denied.
On October 28, 	1999, 	Perez 	represented Coleman at 	a 	Skelly
hearing. 	As 	a result 	of 	the hearing, 	one of 	the allegations
against 	Coleman was 	dismissed.

LA-CO-93-S
Warning 	Letter
Page 2
Following 	the 	Skelly 	hearing 	Coleman 	requested 	that 	an 	attorney
represent 	her at 	the 	SPB hearing. 	On November 24, 	1998, 	CSEA
Southeast Area Manager, 	William K. 	Sweeney, 	sent 	Coleman a letter
denying 	her 	request. 	Coleman was 	also provided 	an 	opportunity to
appeal 	Sweeney's 	decision.
On January 5, 	1999, 	the SPB held a hearing on Coleman's 	case.
Perez 	was 	present 	to 	represent 	Coleman at 	the 	hearing. 	At 	the
hearing, 	SPB Administrative 	Law Judge 	Ornah Becker 	told 	Perez
that 	Coleman 	had 	just 	called her 	on 	the 	telephone 	and 	indicated
that 	she 	was 	promised 	an attorney 	to 	represent 	her 	during 	the
hearing. 	Perez 	indicated 	that 	she 	had not 	promised 	Coleman 	an
attorney. 	Becker granted 	Coleman an extension by which 	to 	obtain
an 	attorney 	and 	rescheduled 	the 	hearing.
Coleman 	contacted 	CSEA and requested 	that 	a 	local 	job 	steward
represent 	her during 	the 	hearing, 	rather 	than Perez. 	CSEA denied
her 	request, 	indicating that 	job 	stewards 	were 	not 	trained 	to
conduct 	SPB 	hearings. 	CSEA 	indicated 	that 	a 	job 	steward 	could
represent 	her during the hearing as 	a 	separate 	individual, 	but
could not 	do 	so 	as 	an official 	representative of 	CSEA.
On March 25, 	1999, 	the SPB held a hearing on Coleman's 	case.
CSEA Job 	Steward, 	Linda McPherson, 	represented Coleman during 	the
hearing, 	but 	did 	so 	as 	an individual 	not 	in her official 	capacity
as 	a CSEA Job Steward. 	On May 4, 	1999, 	the 	SPB sustained
Coleman's 	suspension without 	modification.
On July 23, 	1999, 	the 	State notified Coleman of her termination.
Coleman 	requested 	CSEA 	representation, 	and 	Labor 	Relations
Representative, 	Dick Olnick was 	assigned to 	the 	case. 	On
September 	13, 	1999, 	Coleman asked Olnick to 	find out whether 	the
State would allow her 	to 	resign. 	The 	State 	agreed 	that 	if
Coleman resigned, 	the 	dismissal 	and 	the 	suspension would be
removed 	from her personnel 	file. 	Coleman 	later 	changed her mind
about 	this offer.
In October 	1999, 	Coleman requested that 	the 	SPB Administrative
Law Judge 	(ALJ) 	give 	her a continuance 	so 	that 	she might 	obtain
new counsel. 	The 	SPB 	denied the 	request, 	and told Coleman to
appear 	at 	the 	upcoming hearing 	or her 	appeal 	would be 	dismissed.
Coleman told 	the ALJ 	she 	would 	appear.
On October 	12, 	1999, 	the 	SPB held the hearing. 	Olnick appeared
on Coleman's, behalf, 	but 	Coleman did not 	appear. 	Olnick made a
request 	for a 	continuance, 	but 	the ALJ denied his 	request.
Olnick 	contacted Coleman by telephone, 	but 	she 	requested 	that 	he
call 	her back 	in 	five 	minutes. 	Olnick's 	return call 	was
unanswered. 	Olnick 	left 	a message 	requesting 	that 	Coleman 	come
to 	the 	hearing. 	Coleman did not 	attend the 	hearing, 	and the ALJ
.

LA-CO-93-S
Warning 	Letter
Page 3
dismissed Coleman's 	appeal. 	On November 	1, 	1999, 	the 	SPB adopted
the ALJ dismissal 	of 	the 	appeal 	as 	its 	decision 	in 	the 	matter.
The 	above-stated 	facts 	fail 	to 	state 	a prima 	facie 	violation 	for
the 	reasons 	that 	follow.
Dills Act 	§ 	3514.5(a) (1) 	provides the 	Public Employment Relations
Board shall 	not, 	"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." 	It 	is your burden, 	as
the 	charging 	party 	to 	demonstrate 	the 	charge 	has 	been 	timely
filed. 	(See 	Tehachapi Unified School 	District 	(1993) 	PERB
Decision No. 	1024.)
Coleman filed this 	charge on April 	28, 	2000. 	Thus, 	the 	statute
of 	limitations 	period would 	include 	those 	events 	occurring 	on or
after October 28, 	1999. 	It appears 	that 	CSEA's attempts 	to
represent 	Coleman culminated at 	the October 	12, 	1999 	SPB hearing.
This 	hearing 	occurred more 	than 	six months 	prior 	to 	the 	filing 	of
the 	charge. 	Thus, 	any allegations 	that 	CSEA failed to meet 	its
duty of 	fair 	representation would 	appear 	to 	be 	untimely 	filed.
The 	charge 	more 	specifically alleges 	CSEA 	failed 	to meet 	its 	duty
of 	fair 	representation by 	failing 	to provide 	Coleman with 	an
attorney. 	CSEA denied 	Coleman's 	request 	for 	an attorney on
November 24, 	1998. 	Coleman had knowledge of 	this 	action more
than six months prior to the 	filing of 	the 	charge. 	Thus, 	this
charge 	must 	be 	dismissed 	as 	untimely 	filed.
Even 	if 	the 	charge 	were 	timely filed, 	the 	charge 	fails 	to 	state 	a
prima 	facie 	violation. 	Charging 	Party has 	alleged 	that 	the
exclusive 	representative 	denied 	Charging 	Party 	the 	right 	to 	fair
representation guaranteed by Dills Act. 	In order 	to 	state 	a
prima 	facie violation of 	this 	section of Dills Act, 	Charging
Party must 	show 	that 	the Association's 	conduct 	was 	arbitrary,
discriminatory or 	in bad 	faith. 	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.]

LA-CO-93-S
Warning 	Letter
Page 4
The 	charge 	fails 	to provide 	facts 	indicating 	that 	CSEA acted 	in
an arbitrary, 	discriminatory, 	or bad 	faith manner. 	Although CSEA
did not 	provide 	Coleman with 	an 	attorney, 	CSEA provided 	Coleman
with written notice 	of 	that 	decision, 	and provided her with an
opportunity to 	have 	that 	decision reconsidered. 	CSEA also
provided Labor 	Relations 	Representatives 	to 	represent 	her 	at
several 	hearings. 	Thus, 	the 	charge 	fails 	to 	state 	a prima 	facie
violation.
For these 	reasons 	the 	charge, 	as presently written, 	does 	not
state 	a prima 	facie 	case. 	If 	there 	are 	any 	factual 	inaccuracies
in 	this 	letter 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First 	Amended 	Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge 	must 	have 	the 	case 	number written on 	the 	top 	right
hand corner of 	the 	charge 	form. 	The 	amended charge 	must 	be
served 	on 	the 	respondent's 	representative 	and the 	original 	proof
of 	service must 	be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge or withdrawal 	from you before June 	16, 	2000, 	I
shall 	dismiss your charge. 	If you have 	any questions, 	please
call me at 	(415) 	439-6944.
Sincerely,
TAMMY L. 	SAMSEL
Regional 	Director