Service Employees International Union, Local 99 (Robinson) (PERB 1432E)

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STATE OF CALIFORNIA

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

KIRK ANTHONY ROBINSON,
Charging Party, Case No. LA-CO-856-E

v. PERB Decision No. 1432

SERVICE EMPLOYEES INTERNATIONAL April 30, 2001

UNION, LOCAL 99,

Respondent.

Appearance: Kirk Anthony Robinson, on his own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Kirk Anthony Robinson (Robinson) of a Board agent's dismissal (attached) of his
unfair practice charge.

The charge alleged that the Service Employees International Union, Local 99 violated
section 3543.6(b) of the Educational Employment Relations Act (EERA)' by breaching its duty

of fair representation in violation of Section 3544.9.

' BRERA is codified at Government Code section 3540 et seq. Section 3543.5 provides,
in pertinent part:

It shall be unlawful for an employee organization to:

(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.

After reviewing the entire record in this case, including the unfair practice charge, the
dismissal and warning letters, and Robinson's appeal, the Board finds the dismissal letter to be
free from prejudicial error and adopts it as the decision of the Board itself.3
ORDER
The unfair practice charge in Case No. LA-CO-856-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Whitehead joined in this Decision.
2 Section 3544.9 provides that:
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.
3 The second sentence of the dismissal letter states, "Charging Party alleges this
conduct violates Government Code section 3543.S(a) of the Educational Employment
Relations Act ... " The citation to 3543.S(a) is incorrect. The correct citation is 3543.6(b ).
2

STA TE OF CALIFORNIA 	GRAY D1\V\S, Governor
San Francisco Regional Office
i 5 i 5 Clay Street. Suite 2201
Oakland, CA 9461 2
(510) 622-1016
December 	11, 	2000
Kirk 	Anthony 	Robinson
1540 	W. 	186th 	Street
Gardena, 	CA 	90248
Re: 	DISMISSAL 	OF 	CHARGE/REFUSAL TO 	ISSUE 	COMPLAINT
Kirk Anthony 	Robinson v. 	Service 	Employees 	International
Union, 	Local 	99
Unfair 	Practice 	Charge 	No. 	LA-CO-856
Dear 	Mr. 	Robinson:
~~~ 	above-re~erenced 	unfair 	practice 	charge, 	filed 	October 	25,
2000, 	alleges 	the 	Service 	Employees 	International 	Union, 	Local 	99
(SEIU or 	Local 	99) 	breached 	its 	duty 	of 	fair 	representation.
Charging 	Party 	alleges 	this 	conduct 	violates 	Government 	Code
section 	3543.S(a) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA 	or Act) . 1
I 	indicated 	to 	you, 	in my 	attached 	letter 	dated 	November 	15,
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
November 	22, 	2000, 	the 	charge 	would 	be 	dismissed.
On November 	22, 	2000, 	Charging 	Party 	requested 	a 	one-week
extension 	to 	file 	an 	amended 	charge. 	That 	extension 	was 	granted
to 	November 	29, 	2000. 	No 	amended 	charge 	was 	filed 	by November
29, 	2000. 	On 	December 	4, 	2000, 	five 	days 	after 	the 	amended
charge 	was 	due, 	Charging 	Party 	telephoned 	this 	office 	requesting
a 	second 	extension. 	During 	this 	nearly 	one 	hour 	telephone
:onversation, 	I 	explained 	to 	Charging 	Party 	the 	deficiencies 	in
Charging 	Party also 	alleges 	Local 	99's 	conduct 	violated
the 	California 	Education 	Code, 	the 	California 	Constitution, 	the
United 	States 	Constitution, 	the 	Freedom 	of 	Information Act, 	and
the 	parties 	collective 	bargaining 	agreement. 	However, 	PERB 	only
has 	jurisdiction 	over 	violations 	of 	the 	EERA. 	Allegations
regarding 	the 	California 	Education 	Code 	and 	all 	other 	statutes
must 	be 	pursued 	in 	state 	or 	federal 	court.

Dismissal 	Letter
. II 	~ -~ 	) r- _,-	
..1.......,.,C-\,. .__v-o::)0
Page 	2
his 	charge 	and 	further 	informed 	Charging 	Party 	that 	I 	would
dismiss 	the 	charge 	if 	I 	did 	not 	receive 	an 	amended 	charge 	by 	5:00
p.m., 	December 	8, 	2000. 	During 	a 	second 	telephone 	conversation
on 	December 	4, 	2000, 	I 	again 	explained 	the 	deficiencies 	in 	the
charge 	and 	reiterated 	that 	any 	amended 	charge 	must 	be 	on my 	desk
by 	5:00 	p.m. 	on 	December 	8, 	2000.
I 	have 	not 	received 	either 	an 	amended 	charge 	or 	a 	request 	for
~~cndrawal. 	Therefore, 	I 	am 	dismissing 	the 	charge 	based 	on 	the
facts 	and 	reasons 	containad 	in my 	November 	15, 	2000, 	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 11 filedn 	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

Dismissal
	Letter
LA-CO-856
Page
	3
ucty~
	roiiowing
	che
	dace
	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"
sc	
a=company
	each
	copy
	of
	a
	document
	served
	upon
	a
	party 	or
~~~ed	
with
	the
	Board
	itself.
	(See
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32140
	for
	the 	requirad 	contents
	and
	a
	sample
	form.)
	The
d0"
1 1ment
	will
	be
	considered
	properly
	"served"
	when
	personallydelivered 	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
=x~ension
	must 	be
	filed 	at 	least
	three
	(3)
	calendar
	days
	beforethe
	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
By
Kristin
	L.
	Rosi
2egional 	Actorney
"'-l.-l.-ctcnmenc
cc:
	Hope
	Singer

ST A Tr OF CALIFORNIA
rPUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
151 5 Clay Street, Suite 2201
Oakland, CA 94612
(510) 622-1016
November 	15, 	2000
Kirk Anthony 	Robinson
1540 	W. 	186th 	Street
Gardena, 	CA 	90248
Re: 	WARNING 	LETTER
Kirk Anthony 	Robinson v. 	Service 	Employees 	International
Union, 	Local 	99
Unfair 	Practice 	Charge 	No. 	LA-CO-856
GRAY DAVIS, Governor
Dear 	Mr. 	Robinson:
The 	above-referenced 	unfair 	practice 	charge, 	filed 	October 	25,
2000, 	alleges 	the 	Service 	Employees 	International 	Union, 	Local 	99
(SEIU or 	Local 	99) 	breached 	its 	duty 	of 	fair 	representation.
Charging 	Party 	alleges 	this 	conduct 	violates 	Government 	Code
section 	3543.5(a) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA 	or Act) . 1
Investigation 	of 	the 	charge 	revealed 	the 	following. 	Charging
Party was 	employed 	by 	the 	Los 	Angeles 	Unified 	School 	District
(District) 	as 	a 	Campus 	Aide 	at 	King/Drew Magnet 	High 	School. 	As
a 	Campus 	Aide, 	Charging 	Party was 	exclusively 	represented 	by
SEIU. 	The 	District 	and 	SEIU 	are 	parties 	to 	a 	collective
bargaining 	agreement 	(Agreement) 	which 	expires 	on 	June 	30, 	2000.
On 	October 	15, 	1999, 	Charging 	Party was 	verbally 	counseled 	by 	Dr.
Ernie 	Roy, 	Principal, 	regarding 	the 	proper 	procedures 	for
reporting 	absences. 	Charging 	Party was 	reminded 	of 	the
requirement 	to 	notify 	the 	school 	if 	he 	was 	going 	to 	be 	absent.
On 	January 	21, 	2000, 	Charging 	Party was 	again 	verbally 	counseled
by 	Dr. 	Roy 	regarding 	the 	proper 	procedures 	for 	reporting
absences. 	Charging 	Party was 	also 	informed 	that 	his 	absences
were 	excessive 	and 	unacceptable.
Charging 	Party 	also 	alleges 	Local 	99's 	conduct 	violated
the 	California 	Education 	Code, 	the 	California 	Constitution, 	the
United 	States 	Constitution, 	the 	Freedom 	of 	Information Act, 	and
the 	parties 	collective 	bargaining 	agreement. 	However, 	PERB 	only
has 	Jurisdiction 	over 	violations 	of 	the 	EERA. 	Allegations
regarding 	the 	California 	Education 	Code 	and 	all 	other 	statutes
must 	be 	pursued 	in 	state 	or 	federal 	court.

Warning 	Letter
LA-C0-856
Page 	2
(
On 	February 	3, 	2000, 	Charging 	Party was 	verbally 	counseled 	for 	a
third 	time 	regarding 	his 	excessive 	absences 	and 	the 	proper
procedures 	for 	reporting 	absences. 	Charging 	Party was 	told 	to
call 	no 	later 	than 	7:30 	a.m. 	on 	the 	day 	of 	the 	intended 	absence.
Charging 	Party 	was 	also 	informed 	that 	his 	excessive 	absences
could 	result 	in 	dismissal.
On 	February 	4, 	2000, 	Charging 	Party 	called 	the 	school 	to 	report
his 	absence. 	In 	a 	conversation with Mr. 	Edwards, 	Charging 	Party
asked Mr. 	Edwards 	to 	tell 	pis 	supervisor 	Ms. 	Woods 	that 	Charging
Party 	needed 	some 	time 	off 	and 	would 	call 	when 	he 	was 	ready 	to
return 	to 	work.
On 	February 	10, 	2000, 	Charging 	Party 	called 	the 	school 	and 	left 	a
message 	for 	Ms. 	Woods 	stating 	he 	needed 	more 	time 	off, 	and 	would
call 	back 	at 	a 	later 	date. 	It 	appears 	that 	Charging 	Party 	was
homeless 	during 	this 	time 	period 	and may 	have 	been 	seeking
assistance 	for 	a 	drug 	or 	alcohol 	problem.
On March 	22, 	2000, 	Charging 	Party 	went 	to 	SEIU's 	office 	to
discuss 	his 	situation 	with 	a 	union 	official. 	While 	at 	SEIU,
Charging 	Party 	spoke 	with 	Labor 	Relations 	Representative 	Terry
Palmer. 	Charging 	Party 	informed Mr. 	Palmer 	that 	he 	had
"relapsed" 	but 	was 	now 	"clean" 	and 	ready 	to 	return 	to 	work. 	Mr.
Palmer 	informed 	Charging 	Party 	that 	he 	should 	report 	back 	to 	work
and 	stay 	"clean."
In 	the 	evening 	of 	March 	22, 	2000, 	Charging 	Party 	spoke 	to 	his
mother, 	who 	informed 	him 	that 	he 	had 	received 	a 	letter 	from 	the
District. 	Charging 	Party 	instructed 	his 	mother 	to 	open 	the
letter. 	Inside 	the 	envelope 	was 	a 	Notice 	of 	Unsatisfactory
Conduct 	recommending 	Charging 	Party 	be 	dismissed. 	Specifically,
the 	District 	cited 	Charging 	Party's 	twenty-four 	(24) 	absences
from 	October 	14, 	1999 	to 	February 	18, 	2000. 	On 	eighteen 	(18) 	of
those 	occasions, 	Charging 	Party 	failed 	to 	inform 	the 	school 	of
his 	absence. 	The 	District 	also 	cited 	the 	three 	verbal
counselings 	Charging 	Party 	received.
On 	March 	23, 	2000, 	Charging 	Party went 	to 	see 	Mr. 	Palmer 	at 	SEIU.
Mr. 	Palmer 	photocopied 	the 	notice 	and 	informed 	Charging 	Party
that 	the 	notice 	appeared 	to 	conform 	to 	the 	due 	process
requirements. 	Mr. 	Palmer 	also 	instructed 	Charging 	Party 	to
return 	to 	work.
On 	March 	28, 	2000, 	Charging 	Party 	telephoned 	his 	supervisor, 	Ms.
Woods, 	and 	expressed 	nis 	desire 	to 	return 	to 	work. 	Ms. 	Woods
asked 	Charging 	Party 	why 	he 	didn't 	call 	the 	school. 	Charging
Party 	stated 	he 	wasn't 	thinking 	clearly 	at 	the 	time 	and 	that 	he
needed 	to 	"clear" 	his 	head 	before 	calling. 	Ms. 	Woods 	then
informed 	Charging 	Party 	that 	his 	position 	had 	been 	filled 	by

(
Warning 	Letter
LA-C0-856
Page 	3
someone 	from 	Youth 	Services, 	but 	that 	he 	should 	come 	in 	on 	March
31, 	2000, 	to 	speak 	with 	Dr. 	Roy.
On 	March 	31, 	2000, 	Charging 	Party met 	with 	Ms. 	Woods. 	Ms. 	Woods
questioned 	Charging 	Party's 	absences, 	and 	then 	left 	to 	speak 	with
Dr. 	Roy. 	Upon 	returning, 	Ms. 	Woods 	presented 	Charging 	Party 	with
a 	March 	6, 	2000, 	letter 	from 	Dr. 	Roy 	requesting 	a 	meeting 	with
Charging 	Party 	for 	March 	14, 	2000. 	Although 	the 	letter 	was
mailed 	to 	Charging 	Party's 	address 	of 	record, 	Charging 	Party
states 	he 	did 	not 	receive 	the 	letter 	and 	saw 	the 	March 	6, 	2000,
letter 	for 	the 	first 	time 	during 	this 	meeting. 	When 	Charging
Party 	again 	inquired 	about 	his 	job 	status, 	Ms. 	Woods 	told 	him 	to
call 	Sheryl 	Negash 	next 	week 	to 	see 	about 	returning 	to 	work.
Upon 	returning 	home 	on March 	31, 	2000, 	Charging 	Party 	found 	he
had 	received 	a 	second 	Notice 	of 	Unsatisfactory 	Conduct 	from 	Dr.
Roy, 	dated 	March 	29, 	2000. 	This 	notice 	notes 	Charging 	Party's
excessive 	absences 	without 	leave 	and 	other 	dereliction 	of 	duty,
concluding 	with 	a 	recommendation 	that 	Charging 	Party 	be
dismissed.
On 	April 	4, 	2000, 	Charging 	Party 	telephoned Ms. 	Woods 	to 	discuss
his 	job 	status. 	Charging 	Party was 	then 	referred 	to 	Dr. 	Roy, 	who
in 	turn 	instructed 	Charging 	Party 	to 	telephone 	Sheryl 	Negash. 	On
April 	5, 	2000, 	Charging 	Party 	spoke 	with 	Dr. 	Roy, 	who 	instructed
Charging 	Party 	to 	meet 	with 	him on April 	7, 	2000.
On 	April 	7 1 	2000, 	Charging 	Party met 	with 	Dr. 	Roy. 	Dr. 	Roy
stated 	the 	meeting 	was 	a 	"formal 	meeting" 	and 	that 	Charging 	Party
would 	be 	dismissed 	due 	to 	his 	excessive 	absences 	and
unsatisfactory 	conduct. 	Upon 	leaving 	the 	school, 	Charging 	Party
went 	to 	Local 	99 	headquarters 	to 	speak with 	a 	representative.
Charging 	Party was 	met 	by Mr. 	Palmer who 	explained what 	Mr.
Palmer 	believed 	to 	be 	Charging 	Party's 	rights 	under 	the 	contract.
Mr. 	Palmer 	then 	telephoned 	District 	Staff 	Relations
representative 	John 	Brasfield 	to 	inquire 	about 	Charging 	Party's
employment 	status. 	Mr. 	Brasfield 	stated 	Charging 	Party was 	a
"restricted" 	employee 	and 	had 	no 	rights 	under 	the 	Personnel
Code. 2 	Charging 	Party 	disagreed 	with 	Mr. 	Brasfield 	and 	stated
2 	Education 	Code 	section 	45105 	and 	District 	Personnel
Commission 	Rule 	518 	state 	the 	following 	with 	regard 	to 	a
"restricted" 	employee:
(2) 	Persons 'employed 	in 	a 	position 	properly
classified 	as 	11 restricted 11 shall 	be
classified 	employees 	for 	all 	purposes 	except:
(A) 	They 	shall 	not 	be 	accorded
employment 	permanency 	under 	Section

Warning 	Letter
LA-CO-856
Page 	4
that 	he 	believed 	he 	was 	a 	permanent 	employee 	with 	rights 	under
the 	contract. 3
On 	April 	11, 	2000, 	Charging 	Party went 	to 	Local 	99's 	office 	to
discuss 	his 	employment 	status 	and 	any 	options 	he 	might 	have. 	Mr.
Palmer 	stated 	he 	could 	not 	assist 	Charging 	Party, 	because 	as 	a
restricted 	employee, 	Charging 	Party was 	not 	afforded 	the 	appeal
rights 	of 	a 	permanent 	employee. 	Charging 	Party 	then 	inquired
about 	the 	Employee 	Assistance 	Program. 	Mr. 	Palmer 	stated
Charging 	Party was 	not 	eli8ible 	for 	the 	assistance 	program
because 	he 	did 	not 	have 	Kaiser 	insurance.
On April 	12, 	2000, 	Charging 	Party went 	to 	the 	District's
Classified 	Personnel 	Office 	to 	request 	a 	copy 	of 	his 	personnel
status 	report. 	The 	report 	identifies 	Charging 	Party 	as 	a
restricted 	instructional 	aide. 	Charging 	Party 	believes 	the
report 	was 	changed 	recently 	to 	make 	him a 	restricted 	employee.
On 	April 	13, 	2000, 	Charging 	Party visited 	several 	District
offices 	seeking 	information 	regarding 	his 	rights. 	Additionally,
Charging 	Party 	visited 	Local 	99's 	office 	where 	he 	received 	a
pamphlet 	on 	discipline 	rights.
On April 	19, 	2000, 	Charging 	Party met 	with 	SEIU 	representative
Kenya 	Posten 	and 	Mr. 	Palmer. 	During 	this 	meeting, 	Ms. 	Posten
explained 	that 	in 	order 	to 	combat 	Charging 	Party's 	Notices 	of
Unsatisfactory 	Conduct, 	they 	must 	demonstrate 	Charging 	Party 	was
"clean" 	and 	rehabilitated. 	Additionally, 	Ms. 	Posten 	explained
that 	they 	would 	have 	to 	deal 	with 	Charging 	Party's 	absent 	without
leave 	(AWOL) 	status, 	and 	as 	such, 	Charging 	Party 	should 	compile
paperwork 	indicating 	he 	was 	in 	a 	rehabilitation 	facility 	during
his 	prolonged 	absence 	from 	work.
*
45113 	or 	Section 	45301 	of 	this
code, 	whichever 	is 	applicable.
* 	* 	*
(D) 	They 	shall 	not 	be 	eligible 	for
promotion 	into 	the 	regular
classitied 	service 	or, 	in 	districts
that 	have 	adopted 	the 	merit 	system,
shall 	not 	be 	subject 	to 	the
provisions 	of 	Section 	45241, 	until
they 	have 	complied with 	the
provisions 	of 	subdivision 	(c).
*
Although 	Charging 	Party 	disputes 	this 	fact, 	each 	Notice
of 	Unprofessional 	Conduct 	Charging 	Party 	received 	notes 	his
status 	as 	a 	restricted 	employee, 	and 	not 	permanent 	or
probationary. 	Additionally, 	Charging 	Party's 	personnel 	record
with 	the 	District 	clearly 	states 	his 	status 	as 	"restricted."

Warning
	Letter
LA-CO-856
Page
	5
{
On
	April
	20, 	2000,
	SEIU
	informed 	Charging
	Party
	that
	they
	had
	set
up
	a
	meeting
	with
	Dr.
	Roy
	for
	April
	21, 	2000.
	On
	April
	21,
	2000,
Charging
	Party
	telephoned
	Dr.
	Roy
	to
	ask
	what
	kind 	of
	meeting
	had
been
	arranged.
	Dr.
	Roy
	stated
	Charging
	Party
	should
	call
	SEIU
about
	the
	meeting
	since
	they
	had
	arranged
	it.
	Charging
	Party
	didnot
	attend
	the
	meeting
	with
	Dr.
	Roy.
On
	April
	24, 	2000, 	Charging
	Party
	met
	with
	Mr.
	Palmer,
	Ms.
	Posten
and
	Senior
	Labor
	Relations 	Representative
	Tim Tomas.
	Mr.
	Tomas
explained
	that 	in
	order
	t~ assist
	Charging
	Party,
	Charging
	Party
would 	have
	to
	provide
	medical
	records 	demonstrating
	his
	absence
was
	due
	to
	a
	medical
	condition.
	Charging
	Party 	refused
	to
provide
	this
	information,
	stating
	instead
	that
	he
	believe 	the
Personnel
	Code
	entitled
	him
	to
	hearings
	in 	front
	of 	the
	Personnel
Commission.
	Additionally,
	Charging
	Party
	asked
	SEIU
	to 	explain
the
	AWOL
	charge
	he
	had
	received 	for
	not
	calling 	into
	work.
	Ms.
Posten 	then 	questioned
	why
	Charging
	Party 	did
	not
	attend 	the
meeting 	she 	had
	set
	up
	for
	April
	21, 	2000. 	Charging
	Party
	stated
he
	needed
	more
	notice.
At
	this
	point,
	Labor
	Relations 	Representative
	Mr.
	Tatum
	enteredthe 	conversation
	and
	explained
	that
	he 	would
	try
	to 	contact
	Dr.
Roy
	for
	a
	second 	time
	regarding 	continued
	employment
	with
	the
District.
	Mr.
	Tatum
	telephoned
	Dr.
	Roy
	in
	Charging
	Party's
presence
	and
	attempted
	to
	secure
	employment
	for
	Charging
	Party.
After
	this
	apparently 	heated 	conversation,
	Mr.
	Tatum
	explained
that
	Charging
	Party
	would 	have
	to
	take
	a
	urine
	test
	to
demonstrate
	he
	was
	not
	currently
	using
	controlled 	substances.
Charging
	Party
	stated
	he 	would
	speak
	to
	his
	doctor
	about
	takingthe
	test.
On
	April
	26, 	2000,
	the
	District
	dismissed 	Charging
	Party
	from
	his
employment
	pursuant
	to
	Education
	Code
	section
	45240 	and
	45320.
Charging
	Party 	received
	a
	letter
	confirming
	this 	fact
	on
	April
29, 	2000.
	After 	receiving
	this 	letter,
	Charging
	Party 	telephoned
Mr.
	Tatum
	to 	inform
	him
	of 	the 	dismissal
	and
	to 	request
assistance.
	Mr. 	Tatum
	stated
	Charging
	Party
	should
	have
	allowed
the 	union 	access 	to 	his
	medical
	file
	so
	they 	could
	fight 	thecharges.
Based on
	the
	above
	stated
	information, 	the 	charge 	as
	presently
written, 	fails
	to 	state
	a
	prima
	facie 	violation 	of 	the
	EERA,
	forthe 	reasons 	provided 	below.
Charging 	Party 	does 	not 	specify
	an
	alleged 	violation 	of 	the
	EERA
in 	the 	charge, 	so
	it 	is
	assumed
	that 	Charging 	Party 	is 	alleging
SEIU
	breached
	its
	duty 	of 	fair 	representation.
	However,
	factsprovided 	fail 	to 	demonstrate 	an
	EERA
	violation.

Warning 	Letter
LA-CO-856
Page 	6
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).
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 	uriion'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:
11 	• 	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.) 11 	[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.]
Herein, 	Charging 	Party 	requested 	assistance 	from 	SEIU, 	and 	on
numerous 	occasions 	representatives 	from 	SEIU 	met 	with 	Charging
Party 	to 	discuss 	his 	situation. 	In 	fact, 	on 	April 	24, 	2000, 	SEIU
representatives 	requested 	information 	from 	Charging 	Party 	that
would 	assist 	them 	in 	preparing 	any 	possible 	defense 	to 	the
allegations. 	However, 	Charging 	Party 	states 	that 	he 	refused 	to
provide 	that 	information 	to 	the 	union. 	Moreover, 	it 	appears 	that
Charging 	Party was 	a 	probationary 	restricted 	employee, 	and 	as
such 	had 	no 	right 	to 	appeal 	his 	dismissal 	under 	the 	Personnel
Code. 	As 	such, 	facts 	provided 	fail 	to 	demonstrate 	SEIU breached
its 	duty 	of 	fair 	representation.

Warning 	Letter
LA-CO-856
Page 	7
(
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 	November 	22, 	2000, 	I
shall 	dismiss 	your 	charge. 	If 	you 	have 	any 	questions, 	please
call 	me 	at 	(510) 	622-1016.
Sincerely,
~/~Kristin 	L. 	Rosi
Regional 	Attorney