Teamsters Local 137 (Illum and DeMuro) (PERB A265E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MARIE 	ILLUM
	and
	VIRGINIA
	DeMURO,
Charging
	Parties,
V.
TEAMSTERS
	LOCAL
	137,
Respondent.
Case
	No.
	S-C0-333
Administrative
	Appeal
PERB
	Order
	No.
	Ad-265
February
	17,
	1995
Appearances:	
Marie
	Illum
	and
	Virginia
	DeMuro,
	on
	their
	own
behalf;
	Beeson,
	Tayer
	&
Bodine 	by
	John
	Provost, 	Attorney,
	for
Teamsters
	Local 	137.
Before
	Carlyle,
	Garcia
	and
	Johnson,
	Members.
DECISION
GARCIA,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	Marie
	Illum
	(Illum)
and
	Virginia
	DeMuro 	(DeMuro)
	of 	an
	administrative
	law
	judge's
(ALJ)
	order 	granting
	a
	motion
	to
	dismiss 	(attached)
	which
	was
filed
	by
	the
	Teamsters 	Local
	137
	(Teamsters). 	Illum
	and 	DeMuro's
unfair 	practice
	charge
	alleged 	that
	the 	Teamsters
	violated
	their
right
	to
	fair
	representation
	guaranteed under
	the 	Educational
Employment
	Relations
	Act
	(EERA)
	section
	3544.9
	thereby
	violating
section
	3543.6(b)
. 1	
The
	ALJ
	found
	that
	Illum
and
	DeMuro
	failed
1EERA
	is
	codified 	at
	Government 	Code
	section
	3540
	et
	seq.
Unless 	otherwise 	indicated,
	all 	statutory 	references 	herein 	are
to 	the
	Government 	Code.
	EERA
	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.

to
	state
	a
	prima
	facie
	case
	and
	dismissed 	the
	unfair 	practice
charge
	and
	complaint.
	After
	reviewing
	the 	case, 	the
	Board
	hereby
affirms
	the
	ALJ's
	order
	and
	dismissal.
JURISDICTION
PERB
	has
	jurisdiction
	over
	this
	case
	for
	the 	following
reasons: 	Illum
	and
	DeMuro
	are
	employees
	under
	EERA.
	The
Teamsters
	are
	an 	employee
	organization
	under
	EERA.
	The
	dispute
is
	not
	subject 	to
	any
	grievance
	agreement 	between
	the
	Teamsters
and
	Illum 	or
	DeMuro.
	The
	charge
	was
	timely
	filed.
ILLUM
	and
	DeMURO'S 	APPEAL
Illum
	and
	DeMuro
	filed
	a
	one-page
	appeal 	of
	the
	dismissal
	of
their
	unfair 	practice
	charge
	and
	complaint
	in
	which
	they 	claim
that 	the
	employer's
	disciplinary
	actions
	were
	based
	on
	lies,
	and
that
	Teamsters 	helped
	management 	remove 	them 	from
	their
	jobs.
The
	appeal
	also
	challenges 	the
	fairness
	of 	the 	mediation
	process
and
	seeks
	PERB's
	assistance 	in 	"finding 	the
	truth."
	The
	appeal
does
	not 	address 	the
	legal 	rules
	and
	conclusions
	upon 	which
	the
dismissal
	was
	based,
	other
	than
	a
	statement
	that 	"If
	lies
	don't
matter 	with 	the
	law,
	then
	our' laws 	need
	to
	be
	changed."
EERA
	section 	3543,6 	provides, 	in 	pertinent 	part, 	that:
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 	rightsguaranteed 	by
	this 	chapter.
2

TEAMSTERS' 	RESPONSE
	TO
	THE
	APPEAL
Teamsters 	argue
	that
	this
	appeal
	is
	invalid
	because 	motions
must
	be
	appealed
	by
	another 	process.
The
	Teamsters
	further
	argue
	that
	the
	appeal
	fails
	to
	state
any
	grounds
	on
	which 	an
	appeal
	can be
	sustained,
	citing
	PERB
Regulation
	32635(a)
, 2	
since 	the
	appeal
	fails
	to 	identify
	how
	the
ALJ
	erred
	and
	on 	what
	legal
	and
	factual
	grounds 	such
	allegations
rest.
DISCUSSION
The
	appeal
	fails
	to
	comply
	with 	Regulation
	32635(a)
	because
it
	does 	not 	address
	how
	the
	ALJ
	erred 	in
	applying 	the
	law
	to
	the
allegations
	before
	him.
2 PERB
	regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Regulation
	32635(a)
provides
	that:
(a)
	Within
	20
	days 	of 	the 	date
	of
	service
	of
a
	dismissal, 	the 	charging
	party
	may
	appeal
the 	dismissal 	to 	the
	Board
	itself.
	The
original
	appeal
	and
	five
	copies
	shall
	be
filed 	in writing
	with 	the
	Board
	itself
	in
	the
headquarters
	office,
	and
	shall
	be
	signed
	by
the 	charging
	party
	or
	its
	agent.
	Except
	as
provided
	in 	section
	32162,
	service
	and
	proof
of
	service
	of 	the 	appeal
	on
	the 	respondent
pursuant 	to 	section
	32140
	are 	required.
The
	appeal
	shall:
(1)
	State 	the 	specific 	issues 	of 	procedure,
fact,
	law
	or 	rationale 	to
	which
	the 	appeal
	is
taken;
(2)
	Identify 	the 	page 	or
	part
	of 	the
dismissal 	to
	which 	each 	appeal
	is
	taken;
(3)
	State 	the 	grounds 	for 	each 	issue 	stated.
3

4
The
	record 	supports 	the
	ALJ's
	analysis
	of
	the 	Teamsters'
statements
	and
	actions.
	No
	complaint 	should
	have
	been
	issued
because,
	from
	the
	outset,
	Illum
	and
	DeMuro
	failed
	to
	sufficiently
allege
	or 	provide 	evidence
	that
	the
	Teamsters' 	conduct,
statements, 	or
	inaction
	comprise
	a
	prima
	facie
	case 	of
	a
	breach
of
	the
	duty 	of
	fair
	representation.
While
	Illum
	and
	DeMuro's
	allegations
	are
	assumed
	to
	be
	true,
they
	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. 	[Rocklin 	Teachers
	Professional
Association
	(Romero)
	(1980)
	PERE
	Decision
	No.
124; 	emphasis 	added.]
Illum
	and
	DeMuro 	made
	allegations
	of
	inconsistent
statements, 	disparaging
	remarks 	and
	conflict
	of
	interest
	by
Teamsters, 	but
	failed
	to 	explain
	how
	Teamsters'
	decision 	not 	to
pursue
	arbitration
	was
	devoid 	of 	honest 	judgment.
	Since
	no
	prima
facie
	case
	was
	ever
	shown,
	the
	ALJ
	properly 	dismissed 	the
	unfair
practice
	charge 	and
	complaint.
ORDER
For
	the 	reasons 	discussed
	above,
	the
	Board
	AFFIRMS
	the
	ALJ's
order 	dismissing 	the 	unfair 	practice
	charge 	and 	complaint
	in
	Case
Members
	Carlyle
	and 	Johnson 	joined 	in 	this
	Decision.
4

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MARIE 	ILLUM
	and
	VIRGINIA
	DeMURO,
Charging
	Parties,
v.
TEAMSTERS
	LOCAL
	137,
Respondent. 
Unfair
	Practice
Case
	No.
	S-C0-333
ORDER
	GRANTING 	MOTION
TO
	DISMISS
NOTICE
	is
	given
	that
	the
	motion
	of 	Teamsters 	Local
	137
(Teamsters
	or
	Union)
	to 	dismiss 	the
	above
	charge
	and
	complaint,
on
	the
	ground
	that
	they
	fail
	to
	state
	a
	prima
	facie
	case,
	is
GRANTED.
	Unfair
	Practice
	Case
	No.
	S-C0-333
	is
	hereby
	DISMISSED
and
	the 	hearing 	previously
	scheduled
	for
	January
	25
	and 	26, 	1995,
is
	hereby
	CANCELLED.
The
	charge
	at
	issue
	was
	filed
	on
	August 	15,
	1994, 	by 	Marie
Illum
	and
	Virginia
	DeMuro,
	former 	employees
	of
	the
	Black
	Butte
Elementary 	School
	District 	(District).
	In
	a
	lengthy
	narrative,
failed
	the
	charge
	sets
	out
	an
	allegation 	that
	Teamsters 	Local
	137
to
	fairly
	represent 	the 	charging
	parties,
	first
	in
	a
	grievance
and
	then 	in
	a
	challenge 	to
	their
	terminations.
1
On
	September 	23, 	1994,
	the 	Office 	of 	the 	General 	Counsel 	of
the 	Public
	Employment
	Relations
	Board
	(PERB)
	issued
	a
	complaint
against 	the
	Union
	alleging 	that
	the
	Union
	breached
	its
	duty 	of
1
The
	duty 	of
	fair 	representation,
	which
	is 	set
	out
	at
Government
	Code
	section
	3544.9 	provides 	as 	follows:
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.

fair
	representation.
	By
	this
	action,
	the
	complaint
	alleges,
	the
Union
	violated
	Government
	Code
	section
	3543.6(b)
. 2	
The
	Union
answered
	the
	complaint
	on
	October
	11, 	1994,
	denying
	that
	it
	had
failed
	to
	fairly
	represent 	the
	charging
	parties.
	The
	motion
	to
dismiss
	followed
	on
	October
	27.
	The
	charging
	parties
	did
	not
file
	a
	response.
3
The
	charging
	parties
	were 	employed
	as
	cafeteria
	workers
	by
the
	District.
	One
	of
	the 	charging
	parties,
	Virginia
	DeMuro, 	was
notified
	on
	or
	about 	January
	10,
	1994,
	that
	her
	hours
	of
	work
would 	be
	reduced.
	Both
	of
	the
	charging
	parties
	were
	notified
orally
	on
	or
	about 	January
	21, 	1994,
	that
	they
	would
	be
terminated 	for 	allegedly
	falsifying
	their
	time
	sheets
	and
	other
alleged
	misconduct.
	They
	were
	notified
	in 	writing
	of
	the
	charges
against
	them 	on
	or
	about 	February 	1, 	1994.
	Their 	terminations
were
	upheld
	by
	the
	District
	school 	board
	on
	or
	about
	March
	1,
1994.
	The
	Teamsters
	Union
	notified
	the 	charging
	parties
	on
	or
about
	July
	6,
	1994,
	that
	the
	Union 	would
	not 	take
	their
grievances 	to
	arbitration.
2
In 	relevant 	part, 	section
	3543.6
	provides 	as 	follows:
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.
3
Under
	PERB
	Regulation 	32190(b) 	responses 	to 	pre-hearing
motions 	are 	to 	be
	filed 	within
	14
	days.
2

The
	complaint
	in
	its
	operative
	paragraphs
	alleges
	the
.1..O-1-..1..OWlng:
	-f' 	7 7 	'
3. 	During
	the
	period
	of
	time
	from
	March
through
	June
	1994,
	Respondent,
	acting
	through
its
	agents
	Dave
	Hawley
	and
	Gerry
	Flanigan,
made
	several
	inconsistent
	statements 	to
Charging
	Parties
	concerning
	Charging
	Parties'
ability
	to
	settle 	their
	pending
	grievances
	by
resigning
	jointly
	or 	separately
	and
	their
eligibility
	to 	receive
	pay
	for
	the 	period
	of
their
	suspension.
	In
	addition,
	Respondent,
acting
	through
	its
	agent
	Dave
	Hawley,
	made
disparaging
	remarks
	about
	Charging
	Parties
and
	continued
	to
	work 	on
	their
	grievance
despite
	a
	conflict
	of
	interest
	and
	his
assurance 	to
	Charging
	Parties 	that
	he 	would
not
	work 	on
	the 	grievance.
4.
	On
	or
	about 	June
	24, 	1994, 	Respondent
refused 	to 	authorize
	proceeding
	to
arbitration
	concerning
	the 	grievance
	filed
	by
Charging
	Parties
	over
	their
	termination
	from
employment 	by
	the
	Black
	Butte
	Elementary
School
	District.
Regarding
	the 	settlement 	proposals, 	the
	unfair 	practice
charge
	traces
	this
	dispute 	to
	an
	offer
	made
	by
	the
	District
on March
	1
	prior
	to
	a
	hearing 	before 	the
	school 	board.
	The
charge
	alleges 	that
	Teamster
	business 	agent
	Gerry
	Flanigan
	told
the 	charging
	parties 	that 	District
	settlement proposals
	were
contingent
	upon
	the 	resignation
	of 	both 	of 	the 	charging
	parties.
Mr.
	Flanigan 	allegedly 	stated 	that
	one
	of 	the 	charging
	parties
could 	not 	accept 	the 	settlement 	separately
	from
	the
	other.
The
	question 	of 	whether
	the 	charging
	parties
	could
	act
separately
	on
	settlement 	proposals 	next
	was
	raised
	on
	May
	18.
The
	charge 	alleges 	that
	Mr.
	Flanigan 	again 	stated 	that 	the
charging 	parties
	both 	had
	to 	resign 	under 	the 	terms 	of 	the
proposed 	settlement.
	On May
	19, 	the 	charge 	continues,
3

4
Mr.
	Flanigan
	called
	the 	charging
	parties
	to
	advise
	them
	that
after
	conferring
	with
	his 	legal
	counsel
	he 	had
	determined
	that
they 	did
	not
	have
	to 	resign 	together 	to
	get 	the
	settlement.
Regarding
	salary
	payment
	to
	the 	charging
	parties
	during
	the
period
	of
	their
	pre-dismissal
	suspensions, 	the
	charge
	alleges
that
	on
	March
	1
	Mr.
	Flanigan
	told
	them
	that
	they
	would
	be
	paid.
The
	charge
	alleges
	that
	on March
	2, 	Union 	shop
	steward
	Steve
Lynch
	told
	them
	that
	the 	superintendent
	had
	told
	him
	the 	charging
parties
	would
	not
	be
	paid.
	The
	charge
	alleges 	that
	on March
	24
they
	were
	told
	by 	David
	Hawley,
	Teamster
	local 	secretary-
treasurer, 	that
	the
	contract
	between
	the
	District
	and
	the
Union 	does
	not 	provide
	for
	payment
	to
	suspended 	employees.
Nevertheless, 	the
	charge
	asserts,
	the
	District
	on
	May
	18
	paid 	the
charging
	parties 	their
	wages
	for
	the
	five
	weeks
	they
	were
suspended
	before 	termination.
The
	only
	specific 	allegation
	of
	a
	disparaging
	remark
	set
	out
in 	the
	charge
	is
	that
	Mr.
	Hawley 	on
	January
	10
	called
	Ms. 	DeMuro
a
	"hysterical
	female."
	The
	charge
	also 	alleges 	that 	at
	a
Teamsters 	meeting
	on
	February
	15
	Mr.
	Hawley
	told
	school 	employees
in 	attendance
	that
	the 	Teamsters
	Union
	represents
	all 	its
members, 	"even
	if
	someone
	gets
	caught 	red-handed
	stealing."
	The
charge 	alleges 	that
	by
	the 	choice 	of
	this
	example
	Mr.
	Hawley
created 	the 	impression
	among
	those 	in 	attendance
	that 	the
charging
	parties
	had 	been
	terminated 	for 	theft.
Finally, 	the 	charge
	alleges 	that
	Mr.
	Hawley's
	representation
of 	the 	charging 	parties 	put
	him
	in
	a
	conflict
	between
	their 	best
4

interests
	and
	those
	of
	his
	wife,
	District
	employee
	Sue
	Hawley.
The
	charge
	alleges 	that
	District
	Superintendent/Principal
	Judith
Menoher
	on
	or
	about
	January
	10,
	told
	Ms. 	DeMuro
	that
	she
	could
not
	be
	reassigned 	to
	perform
	certain
	duties
	on
	a
	computer
	because
that
	work 	would 	be
	done
	by
	Sue 	Hawley.
	Later
	that
	day,
	the
charge 	continues,
	Mr.
	Hawley
	told
	Ms. 	DeMuro
	that
	because
	of 	the
appearance
	of
	a
	conflict
	he 	would
	let
	someone
	else
	from
	the
Teamsters
	represent
	the 	charging
	parties.
Thereafter,
	the
	charge
	continues, 	although
	Gerry
	Flanigan
supposedly
	was
	representing 	the
	charging
	parties,
	Mr.
	Hawlev
continued 	to
	be
	involved.
	The
	charge
	alleges 	that
	ac
	the
	meeting
of 	February
	15
	Mr.
	Hawley
	said 	that
	he
	still
	was
	actively
involved
	in
	their
	case 	behind
	the 	scenes.
	On
	March
	24,
	the
charging
	parties
	met
	with
	Mr.
	Hawley
	to
	give
	him
	a
	letter
	about
their
	complaints
	against
	him
	and
	the
	Teamsters. 	During
	a
	lengthy
discussion 	that
	ensued,
	the
	charge
	alleges,
	Mr.
	Hawley
	told
	the
charging
	parties 	that
	although
	he 	had
	officially
	removed
	himself
from
	their
	case
	he
	continued
	to
	be
	"very
	much
	involved 	with 	our
discharge."
In
	its
	motion
	to 	dismiss, 	the
	Union
	argues
	that
	the
allegations 	in 	the 	complaint
	do
	not
	set
	out
	a
	prima
	facie 	breach
of
	its
	duty 	of
	fair
	representation.
	The 	making
	of	
11
inconsistent
statements" 	about 	the 	Union's
	ability
	to
	settle
	a
	grievance
	and
to 	receive
	back 	pay 	does
	not, 	the
	Union
	asserts, 	constitute
arbitrary, 	discriminatory 	or 	bad
	faith 	action.
	Although
	it
denies 	that
	it
	made
	such 	statements, 	the
	Union 	argues 	that
	even
5

if
	it
	had
	this
	would
	not
	be
	evidence
	it
	had
	failed
	to
	fairly
represent
	the 	charging
	parties.
	Inconsistent
	statements 	could
have 	been
	due
	to
	a
	change
	in
	the
	employer's
	position,
	of
	the
Union's 	discovery
	of
	new
	information,
	or
	the
	Union's
	re-
evaluation
	of
	the 	grievance.
Similarly, 	the
	Union
	continues,
	even
	if
	a
	Union
	agent
	made
	a
disparaging
	remark
	about
	the 	charging
	parties
	it
	would
	not
constitute
	a
	breach 	of
	the 	duty
	of
	fair
	representation.
	The
issue,
	the
	Union
	asserts,
	is
	whether
	the
	Union
	made
	a
	good
	faith
determination
	that
	the 	grievance
	was
	without
	merit,
	"not 	whether
Union
	agents
	spoke
	about
	the
	grievants 	in
	a
	complimentary
fashion."
Finally, 	the
	Union
	argues, 	the 	complaint
	does
	not
	set
	out
any
	allegations 	that
	show
	a
	conflict
	of
	interest
	on
	the
	part
	of
Union
	agent
	Hawley.
	Neither
	does
	it
	allege 	facts 	to
	show
	that
	he
acted 	in
	bad
	faith.
The
	duty 	of
	fair
	representation 	applies 	to 	the 	handling 	of
grievances.
	(Fremont
	Teachers
	Association
	(King)
	(1980)
	PERB
Decision
	No.
	125; 	United 	Teachers 	of
	Los 	A.~geles
	(Collins)
	(1982)
PERB
	Decision
	No.
	258.) 	In 	order 	to
	state
	a
	prirna
	facie 	breach
of
	the 	duty 	of
	fair
	representation,
	a
	charging
	party
	must 	show
that
	the 	exclusive 	representative's
	conduct
	was
	arbitrary,
discriminatory 	or 	in
	bad
	faith.
	In 	United 	Teachers 	of
	Los
Angeles 	(Collins), 	the
	PERB
	stated:
Absent 	bad
	faith, 	discrimination, 	or
arbitrary
	conduct, 	mere
	negligence 	or 	poor
judgment
	in 	handling
	a
	grievance 	does 	not
6

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 1 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. 	[Citation.]
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
j udgrnent. 	( 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.]
The 	ultimate 	harm 	suffered 	by 	the 	charging 	parties 	in 	this
case 	is 	that 	the 	Union 	refused 	to 	proceed 	to 	arbitration 	with 	the
grievance 	about 	their 	terminations. 	Refusing 	to 	take 	a 	case 	to
arbitration 	can 	be 	a 	breach 	of 	the 	duty 	of 	fair 	representation
if 	the 	decision 	was 	arbitrary, 	discriminatory 	or 	in 	bad 	faith.
The 	complaint 	and 	the 	underlying 	allegations 	in 	the 	charge 	fail
to 	allege 	facts 	sufficient 	to 	set 	out 	a 	prima 	facie 	case.
The 	complaint 	finds 	evidence 	that 	the 	decision 	not 	to 	take
the 	case 	to 	arbitration was 	arbitrary, 	discriminatory 	or 	bad
faith 	conduct 	in 	allegations 	that 	Union 	agents: 	1) 	made
inconsistent 	statements 	about 	a 	settlement 	offer 	and 	entitlement
to 	back pay, 	2) 	made 	disparaging 	remarks 	about 	charging 	parties,
7

and
	3)
	proceeded
	to 	represent
	them
	despite
	a
	conflict
	of
	interest
and
	a
	promise
	to
	have
	someone
	else
	handle
	their
	grievance.
I
	believe
	that
	the
	allegation 	that
	a
	Union
	agent
	made
inconsistent
	statements
	about
	a
	settlement
	offer
	to
	be
	of
virtually
	no
	probative 	value. 	Basically
	this
	allegation
	is
	that
a
	Union
	agent,
	after 	telling
	the
	charging
	parties
	for
	two
	months
that
	they 	both
	had
	to 	resign
	to
	get
	a
	settlement 	offer,
	called
them
	to
	state
	that
	he 	had
	been
	wrong.
	The
	Union
	agent, 	under 	the
theory
	of 	the
	complaint,
	thus
	made
	inconsistent
	statements:
	an
incorrect
	version
	of 	the
	settlement
	offer
	and
	a
	correct 	version
of
	the 	offer.
	A
Union
	agent's 	recantation
	of
	an
	error
	is
	hardly
evidence
	of 	bad
	faith.
	A
much
	more
	compelling
	allegation
	of
	bad
faith
	would 	have
	existed
	if
	the
	Union
	agent
	had 	done
	exactly
	the
opposite
	of
	what 	he
	did 	here.
	A
Union
	agent's 	failure 	to 	correct
mistaken 	advice
	might 	well
	be
	evidence 	of
	bad
	faith.
Similarly
	unpersuasive
	is
	the
	allegation 	that
	Union
	agents
gave
	the 	charging
	parties 	inconsistent
	information
	about 	whether
they
	were
	entitled
	to
	pay
	for
	the 	period 	of
	their
	suspensions.
The
	charge
	alleges 	that
	the
	first
	Union
	agent,
	Mr.
	Flanigan,
	told
the 	charging
	parties
	they
	would 	be
	paid 	for
	the 	five-week
	period.
~be
	charge
	alleges 	that 	the
	second
	Union
	agent,
	shop
	steward
Lynch,
	told
	them
	that
	the 	superintendent
	had
	told
	him
	that
	they
would
	not
	be
	paid 	for 	the 	period.
	The
	charge
	alleges 	that 	the
third
	Union
	agent,
	Mr. 	Hawley,
	told 	the 	charging
	parties 	that
	the
contract
	between 	the
	Union 	and 	the
	District
	does 	not 	provide 	for
payment
	to
	employees
	who
	are 	suspended. 	Finally, 	the 	charge
8

alleges,
	the
	charging
	parties
	were
	given
	payment.
	Thus
	three
different
	Union
	agents
	at
	three
	different
	times
	told
	the 	charging
parties
	different
	things.
	There
	is
	no
	allegation
	in
	this
sequence
	that
	any
	of
	the 	agents
	told
	the
	charging
	parties
anything 	but 	the
	truth
	as 	they 	understood
	it
	at
	the 	time.
Nor
	does
	the
	allegation 	that
	a
	Union
	official
	told
	one
	of
the
	charging
	parties
	that
	she
	was
	a
	"hysterical
	female''
	show
	that
he
	acted 	in
	bad
	faith
	toward
	her.
	While
	such
	a 	comment
	obviously
would 	be
	impolite
	and
	insensitive,
	breaches 	of 	courtesy
	do
	not
demonstrate
	bad
	faith.
	Nor
	do
	I
	find
	bad
	faith
	in
	the
	allegation
that
	a
	Union
	agent
	told
	a
	gathering
	of
	employees
	that
	the
	Union
represented
	even
	people 	caught
	in
	theft.
	Evidence
	of 	such
	a
statement
	by
	a
	Union
	agent
	is
	not
	probative
	of 	whether
	the
	Union
acted 	in
	bad
	faith
	when
	it
	refused 	to 	take
	an 	employees
	grievance
to
	arbitration.
Finally,
	the
	complaint
	alleges 	that
	Mr.
	Hawley
	continued
	to
represent
	the 	charging
	parties
	even 	though
	his 	representation
	put
him
	in
	a
	conflict
	of
	interest.
	The
	alleged 	conflict
	was
	that
Mr.
	Hawley's 	wife,
	who
	operates
	a
	computer
	for 	the
	District,
temporarily
	assumed
	certain 	cafeteria 	tabulation 	duties 	formerly
performed manually 	by	
one
	of 	the 	charging
	parties.
	In
	addition,
the 	complaint
	and 	charge
	allege, 	despite
	Mr.
	Hawley's 	promise
	to
remove
	himself
	from
	the 	processing 	of 	the 	grievance 	because 	of
this 	potential 	conflict,
	he
	failed 	to
	do
	so.
A
	contention 	that 	this 	dispute 	put
	Mr. 	Hawley
	in
	a
	conflict
of
	interest 	is
	somewhat
	problematical. 	There 	are
	no
	allegations,
9

for
	example,
	which
	demonstrate
	how
	Mr.
	Hawley
	could
	have
	assisted
his
	wife
	by
	failing
	to
	pursue
	an
	arbitration
	over
	the
	dismissal
of
	the
	charging
	parties.
	Moreover,
	the
	mere
	possibility
	of
	a
conflict
	does
	not
	show
	that
	the
	Union
	acted 	in
	bad
	faith
	by
refusing
	to
	take 	the
	matter
	to
	arbitration.
The
	charge
	reveals
	that
	the
	Union's
	decision
	not
	to
	proceed
to
	arbitration
	followed
	a 	May
	18
	mediation
	conducted
	by
	a
State
	of
	California
	mediator 	as
	part
	of
	the
	grievance 	procedure
between
	the
	parties.
	The
	charge
	reveals
	that
	the 	mediator
	ruled
against
	the 	charging
	parties.
4	
Subsequently, 	the 	charge
	reveals,
Mr.
	Flanigan 	secured
	a
	waiver 	of
	the 	contractual 	timelines
	from
the
	District
	so
	he
	could
	consult
	with
	a
	Teamsters
	attorney
	prior
to 	deciding
	whether
	to
	take 	the 	case
	to
	arbitration.
	Thereafter,
the
	Union
	declined 	to
	take 	the 	grievance 	to
	arbitration.
	There
is
	no
	allegation 	that
	Mr.
	Hawley 	was
	involved 	in 	the
	final
decision.
None
	of
	these
	allegations
	is 	sufficient
	to
	show
	that
	the
Union's 	refusal 	to 	take 	the 	grievance
	to 	arbitration
	was
arbitrary,
	discriminatory 	or
	in
	bad
	faith.
	There
	is
	no
allegation
	to
	show
	that
	the
	refusal
	was
	"without
	a
	rational 	basis
or 	devoid 	of 	honest 	judgment." 	Accordingly,
	I
	conclude
	that
unfair 	practice
	charge
	S-C0-333 	must 	be 	dismissed.
4
The
	letter
	from
	the 	mediator
	is
	contained 	in 	the 	case
	file.
In 	the 	letter, 	State 	mediator William
	B.
	Hehir 	concludes
	that
	the
discharges 	of 	the
	two
	charging
	parties
	were 	for
	good 	cause 	and
offers
	an 	opinion 	that
	an
	arbitrator
	would 	deny
	their 	grievances.
10

11
Pursuant
	to
	Public
	Employment
	Relations
	Board
	regulations,
the
	charging
	parties
	may
	obtain
	a
	review 	of
	this
	dismissal
	of
	the
charge	
by	
filing
	an
	appeal
	to
	the
	Board
	itself
	within
	twe~ty
	(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
If
	the 	charging
	parties
	file
	a
	timely appeal 	of
	the
dismissal
	of
	the
	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)
.)
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.
11

12
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.)
If
	no
	appeal
	is 	filed
	within
	the
	specified
	time
	limits,
	the
dismissal 	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
RONALD
	E.
	BLUBAUGH
Administrative
	Law
	Judge
DATED:
	November 	17,
	1994
12