California State Employees Association (O'Connell) (PERB 0726H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARTHA 	O'CONNELL,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-14-H
PERB Decision No. 	726-H
March 21, 	1989
Appearances: 	Martha O'Connell on her own behalf; 	Howard
Schwartz, 	Attorney, 	for California State Employees Association.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	of 	a
proposed decision of an administrative 	law judge 	(ALJ),
dismissing charging party's, 	Martha O'Connell 	(O'Connell), 	charge
against 	California 	State 	Employees 	Association 	(CSEA or
Association). 	Charging party had alleged that 	section 	3571.l(e)
of 	the Higher Education Employment Relations Act 	(HEERA)1 was
1HEERA 	is 	codified 	at Government Code 	section 	3560 	et 	seq.
HEERA section 3571.l(e) 	provides:
It 	shall be unlawful 	for an employee
organization to:
(e) 	Fail 	to represent 	fairly and 	impartially
all 	the 	employees 	in the unit 	for which it 	is
the 	exclusive 	representative.
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violated when CSEA agents 	made 	misrepresentations 	about 	the
effect 	of 	a 	certain 	clause 	in 	its 	newly 	negotiated 	collective
bargaining agreement with California 	State University 	(CSU). 	A
complaint 	alleging 	that 	CSEA had 	violated 	HEERA 	section
3571.l(b)2 was 	issued January 	16, 	1987. 	The ALJ found that the
misrepresentations made by CSEA, 	inter alia, 	did not have a
substantial 	impact 	on charging party's 	relationship with her
employer, CSU.
Charging party 	filed 	a 	timely 	exception to 	the ALJ's
proposed decision, 	consisting, 	in toto, 	of the following
paragraph:
I 	am appealing this 	case 	to 	the 	Board on the
simple grounds 	that the 	conduct at 	issue had
a 	substantial 	impact 	on the 	relationships
between CSU employees 	and CSU. 	If the
grievance procedure 	is 	not 	"substantial
impact," 	what 	is? 	The hearing officer 	stated
"the remedy 	for the 	negligence 	or 	lack of
respect 	suggested by the 	evidence 	lies
elsewhere." 	I dissent.
In response, 	CSEA argued 	that 	the 	appeal 	should be dismissed 	for
failure 	to 	comply with PERB Regulation 	32300.3
2 Government Code 	section 3571.l(b) 	provides as 	follows:
(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.
3PERB Regulation 32300 reads, 	in pertinent part, 	as 	follows
. 	. 	. 	The statement of exceptions or brief
shall:
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The 	Board 	finds 	that 	the 	charging party's 	appeal 	is 	not 	in
compliance with PERB regulations. 	Exceptions 	must be 	stated with
specificity 	in order to 	afford both 	the 	respondent 	and 	the 	Board
with enough information to answer, 	and rule, 	on the appeal.
Failure 	to 	so 	specify the 	issues will 	result 	in the 	Board's
affirmance of 	the ALJ's dismissal. 	(San Diego Community College
District 	(1983) 	PERB Decision No. 	368.) 	Specifically, 	O'Connell
has 	failed to 	state 	the rationale 	to which her 	exception was
taken, 	nor has 	she 	identified that part of 	the decision to which
she 	is 	excepting 	in an adequate manner.
Although we dismiss the appeal, 	for the reasons 	below, 	we
need 	to 	clarify 	the 	duty of 	fair 	representation test 	given the
Board's 	instruction in CSEA 	(O'Connell) 	(1986) 	PERB Decision No.
596-H,4 and the 	legal 	analysis 	in the proposed decision. 	The ALJ
held that 	a misrepresentation constitutes 	a violation only 	if 	it
substantially 	impacts 	the 	employer-employee relationship. 	The
(1) 	State the specific 	issues of procedure,
fact, law or rationale to which each exception is
taken;
(2) 	Identify the page or part of the decision
to which each exception is 	taken;
(3) 	Designate by page 	citation or exhibit
number the portions of the record, 	if any,
relied upon 	for 	each 	exception;
(4) 	State the grounds 	for each exception.
4In PERB Decision No. 	596, 	the Board remanded charging
party's 	case 	to 	the 	regional 	attorney 	for reconsideration. 	From
this remand a complaint 	issued, 	a hearing was held, 	and the
proposed 	decision 	now under 	review was 	rendered.
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ALJ 	found the 	conduct at 	issue was 	a 	knowing misrepresentation,
but 	it 	did 	not 	impact on the 	relationships 	between CSU 	employees
and CSU. 	A different analysis 	must be made. 	In CSEA
(O'Connell), the Board held:
. 	. 	. 	We believe that a prima facie case of a
breach of 	the 	duty of 	fair representation has
been 	stated where 	it 	is 	alleged that 	the
exclusive 	representative 	knowingly
misrepresented 	a 	fact 	in order to 	secure 	from
its 	constituents 	their ratification of 	a
contract. 	(Emphasis added.)
The HEERA places on the 	exclusive representatives, 	a
statutory duty 	to 	fairly 	represent 	all 	employees 	in the
negotiating unit 	(Gov. 	Code sec. 	3578).5 The Legislature was, 	no
doubt, 	mindful of the standard 	set 	forth in Vaca v. 	Sipes 	(1967)
386 US 	171 	[64 LRRM 2369], 	using the very language that has, 	in
the past 	22 	years, 	become 	indispensable in labor relations
practice and litigation, 	" . . . 	arbitrary, 	discriminatory, 	or in
bad 	faith." 	We do 	not wish to 	add to 	the vast 	array of 	tests
used to describe the duty of 	fair representation. 	We, 	therefore,
hold that the 	standard set forth in CSEA 	(O'Connell). 	supra, 	is
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but 	one 	example of 	"bad 	faith." 	The 	facts 	in the 	case before us
5Government Code 	section 3578 	states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative
shall 	represent all 	employees 	in the unit,
fairly and 	impartially. 	A breach of 	this
duty 	shall 	be deemed 	to have occurred 	if 	the
employee 	organization's 	conduct 	in
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.
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suggest 	something 	less 	than bad 	faith 	conduct 	by 	the Association.
FACTS
From April 	through June of 	1985, 	CSEA and CSU were 	in
negotiations 	over a 	successor agreement. 	During that time,
changes 	in the 	contractual 	grievance procedures were discussed
and agreed to. 	The new language 	in the grievance procedures
effectuated two changes: 	(1) 	Level 	IV grievances were required
to now be heard 	in the 	chancellor's 	office 	in Long Beach; 	and 	(2)
grievants 	no 	longer had an explicit right to be present at 	the
meeting.
On August 	1, 	1985, 	a membership meeting was held at the San
Jose 	campus 	to discuss 	the proposed 	contract. 	The meeting was
conducted 	by 	two 	rank-and-file 	representatives 	from 	the 	CSEA
negotiating team and was 	attended by 	10 	to 	12 	members. 	Some of
the 	members present 	inquired as 	to CSEA's 	intention with respect
to payment 	for travel 	expenses 	for the 	grievants 	to attend 	the
Level 	IV meeting in Long Beach. 	One 	of 	the bargaining team
representatives 	initially 	responded 	that 	CSEA would 	send 	the
grievant, 	if necessary. 	Although the representative had not
previously discussed 	the 	new grievance 	language with 	CSEA 	staff
or 	leadership, 	and was 	not aware of 	any expressed 	internal policy
regarding travel reimbursements, 	after continued questioning, 	he
indicated 	that CSEA would pay all 	travel 	expenses. 	Testimony 	at
the 	hearing 	indicated 	that under the prior 	contract 	language,
CSEA had paid 	the 	travel 	expenses 	when a 	grievant 	travelled 	to
Long Beach.
5

Subsequent to ratification of 	the new contract, 	the new
chief 	of 	the 	CSU division of 	CSEA was 	dealing with 	the 	division's
financial problems due to a recent 	loss 	of membership. 	At 	one of
the 	first meetings 	held 	to 	discuss 	the 	new collective 	bargaining
agreement, 	he 	announced 	a 	new CSEA policy whereby the 	grievant
would be 	reimbursed 	for 	transportation 	expenses 	only 	in the 	most
extraordinary or rare cases. 	In November of 	1985, 	as 	a result of
the new policy, 	the charging party was 	denied her request 	for
payment 	of 	travel 	expenses 	to 	Long Beach 	concerning a 	grievance
she 	had pending 	against 	CSU.
DISCUSSION
This Board adopted the standard of Vaca v. 	Sipes. 	supra. 	in
Rocklin Teachers Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124, 	a case interpreting the duty of fair
representation under 	the 	Educational 	Employment 	Relations 	Act.6
That 	case dealt with an alleged 	failure 	of 	a union to 	negotiate 	a
mid-term 	salary 	increase 	and 	other benefits. 	Although 	the 	case
before us 	involves 	statements 	made 	at a preratification meeting,
i.e., 	a 	meeting 	set 	to provide 	information to Association members
about 	the details 	of 	a recently negotiated contract, 	the 	specific
alleged 	misrepresentation 	concerned 	a 	union policy 	regarding
reimbursement 	for grievants' 	travel 	costs 	and not a provision of
the 	contract.7
6The 	Board has 	adopted 	this 	standard 	under HEERA.
(International 	Union of Operating Engineers. 	Local 	501 	(Reich)
(1986) 	PERB Decision No. 	591-H.)
7PERB 	has 	recognized 	its 	authority 	to 	review the 	contract
6

It 	is 	not any misrepresentation made 	in the process 	of
securing 	a 	ratification of 	a 	collective bargaining 	agreement 	that
is 	a breach of 	the duty of 	fair representation. 	Because 	a union
should 	not 	be 	subjected 	to 	a 	standard more 	rigid 	than 	is
consonant with the realities 	of 	the bargaining process, 	a more
practical approach is necessary. 	There 	is, 	in the course of the
ratification process, 	the possibility that many 	representations
will 	be 	made 	that 	concern 	solely 	the 	internal 	relationship
between a union and its members. 	When dealing with matters 	of
internal union business, 	the 	fact misrepresented must have 	a
substantial 	impact 	on the relationships 	of 	the unit members 	to
their employer to give rise 	to 	the 	duty of 	fair representation.
(Service Employees International. 	Local 99 	(Kimmett) 	(1979) 	PERB
Decision No. 	106.)
In this 	case the conduct at issue, 	discussion of a
grievant's 	travel 	reimbursement policy, 	was 	a matter of 	internal
union business. 	That policy did 	substantially 	impact 	the
grievant's 	employer-employee 	relationship 	even 	though 	the 	parties
were not 	addressing the 	language or 	implementation of 	the
collective bargaining agreement 	itself. 	A grievant's 	decision on
how to 	frame 	a 	grievance may well depend on his 	or her ability to
ratification process 	vis-a-vis 	the 	union's 	duty of 	fair
representation. 	(See, 	e.g., 	Oxnard Educators Association 	(Gorcey
and Tripp) 	(1988) 	PERB Decision No. 	681 	(PERB can examine union
conduct 	in communicating bargaining 	information to 	constituents);
and Fontana Teachers Association 	(Alexander et al) 	(1984) 	PERB
Decision No. 	416 	(non-members must be allowed input 	into the
negotiation process, 	but the union 	is 	not required to permit 	them
to 	vote 	in 	formal 	contract 	ratification 	elections).)
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be present at a Level 	IV grievance meeting.
Independent of 	the 	appeal 	not being 	in compliance with 	PERB
regulations, 	we 	find that 	the 	conduct described by 	the 	evidence
does 	not 	amount to an unfair practice as defined by HEERA. 	The
evidence 	does 	not 	support a 	finding that CSEA acted 	in an
arbitrary, 	capricious or bad faith manner, 	or that the manner of
conducting the grievance with the 	10-12 	San Jose members 	was
improperly motivated. 	The CSEA representatives 	did 	not 	knowingly
misrepresent a 	fact. 	The actions 	of the CSEA representatives, 	in
context 	of 	a 	single meeting with employees who were 	aware 	of 	the
prospective financial burden on the Association, 	were, 	at worst,
poor 	judgment on their part. 	A breach of 	the duty will 	not 	be
found where 	the 	exclusive 	representative 	is 	guilty of 	"mere
negligence 	or poor 	judgment." 	(Service 	Employees 	International
Union 	(Scates) 	(Pitts) 	(1983) 	PERB Decision No. 	341.)
In 	sum, 	we dismiss 	the appeal 	on the grounds 	that 	it does
not 	meet 	the 	standards 	outlined 	in Regulation 	32300. 	We 	also
find that 	even if O'Connell's 	appeal met the 	standards, 	the
record does 	not 	establish 	that 	the Association knowingly
misrepresented 	facts 	in order to 	secure 	the ratification of 	the
contract.
ORDER
The 	charge 	and 	complaint 	against 	CSEA 	is 	hereby DISMISSED.
Member Shank 	joined 	in this 	Decision.
Member Porter's 	concurrence 	and dissent begins 	on page 	9.
8

Porter, 	Member, 	concurring and dissenting: 	I 	concur with the
majority's 	conclusion that, 	in examining this 	case on its 	merits,
the 	charging party 	failed 	to 	establish 	that 	the Association
violated 	its 	duty of 	fair representation. 	I must dissent,
however, 	from my colleagues' 	dismissal on procedural 	grounds 	of
charging party's 	exception to the ALJ's 	proposed decision. 	In
addition, 	I 	respectfully disagree with the majority's 	analysis
in 	connection with 	its 	application of 	the 	"substantial 	impact"
standard to 	the 	facts of 	this 	case.
Initially, 	as 	to the 	issue of 	the adequacy of 	charging
party's 	exception to the ALJ's proposed decision, 	examining
substance over 	form, 	I would find that the 	exception is 	in
substantial 	compliance with PERB regulations. 	The ALJ herein
dismissed 	charging party's 	complaint 	on the 	around 	that 	the
alleged 	misrepresentations 	by 	the Association 	concerning 	the
grievance procedure--even 	if 	true--did 	not 	have 	a 	substantial
impact on employer-employee relations. 	Charging party, 	in turn,
excepted to 	the ALJ's proposed decision 	"on the 	simple grounds"
that a 	grievance procedure 	(the 	subject matter of 	the alleged
misrepresentation) 	does 	indeed have a 	substantial 	impact on
employment 	relations. 	The 	statement 	from 	charging party 	clearly
indicates the specific issue of 	fact or law, 	as well as the
ground, 	on which the exception is based, 	as required by PERB
Regulation 32300(1) 	and 	(4). 	(See fn. 	2 at p. 	2.) 	Subsections
(2) 	and 	(3) 	of 	section 32300 require 	specification of the page or
part of 	the decision objected to, 	and designation of 	the record
99

page 	or exhibit number, 	if any, relied upon for the 	exception.
In this 	instance, 	inasmuch as the exception goes 	essentially to
the heart of 	the ALJ's proposed decision, 	I 	submit that 	charging
party's 	statement is 	sufficient as written. 	Alternatively, 	if
my 	colleagues 	felt 	that 	further clarification was 	necessary, 	an
opportunity 	to 	amend her 	timely 	filed 	exception 	should 	have 	been
afforded 	to 	charging party.
It 	is 	a well-established principle 	of 	California 	law that 	the
preservation of 	the right to 	appeal, 	and the hearing of 	appeals 	on
their merits, 	are favored. 	(See, 	e.g., 	City of Santa Barbara v.
California Coastal 	Zone Conservation Committee 	(1977)
75 Cal.App.3d 572, 	581; 	Gibson v. 	U.I.A.B. 	(1973) 	9 Cal.3d 494,
499; 	Pesce v. 	Department of Alcohol 	Beverage Control 	(1958)
51 Cal.2d 310, 	313.) 	Thus, 	since charging party's timely-filed
appeal 	substantially 	complied with 	PERB 	Regulation 	32300 	(or 	could
have been amended to comply therewith), 	I would find that, 	in
accordance with this principle, 	the 	appeal 	should be heard 	on 	its
merits 	by this 	Board.
Turning to the merits, 	I 	agree with the majority that
the record 	fails 	to 	show that the Association made a knowing
misrepresentation of 	a 	fact to unit members 	in order to 	obtain
ratification of 	the 	collective bargaining agreement. 	Accordingly,
I 	would 	find no breach of 	the Association's 	duty of 	fair
representation and, 	on this basis, 	I would dismiss the complaint.
However, 	I 	am in disagreement with the majority's 	analysis
to the 	extent that, 	in addition to proof of a knowing misrepre-
10

sentation made 	by 	an 	exclusive 	representative 	in order 	to 	secure
ratification, 	proof 	that the misrepresentation had 	a 	substantial
impact on employment relations 	is 	also required. 	In CSEA
(O'Connell) 	(1986) 	PERB Decision No. 	596-H,1 this Board held that
a prima 	facie 	case 	of violation of 	the duty of 	fair representation
is 	established where 	there has 	been a 	knowing misrepresentation of
a 	fact 	in order to 	secure ratification of 	a 	collective bargaining
agreement. 	The Board did not 	state that, 	in the context of 	a
contract ratification process, 	there must be a 	further 	showing
that 	the 	subject 	matter 	of 	the misrepresentation had 	a 	substantial
impact on employment 	relations. 	The 	application of 	the
"substantial 	impact" 	standard 	only 	becomes 	relevant 	and 	necessary
where 	the alleged duty of 	fair representation violation occurs 	in
the context of 	internal union affairs. 	(SEIU, 	Local 	99 	(Kimmett)
(1979) 	PERB No. 	106 	(internal union activities 	that do not have a
substantial 	impact on the 	relationships 	of 	unit members 	to 	their
employers 	are 	not 	subject 	to 	the duty of 	fair representation).)
Statements 	made by the exclusive representative's 	agents, 	in the
context of a 	contract ratification process, 	were not 	found to be
--
internal 	union activities 	in the 	earlier O'Connell 	decision.
Accordingly, 	on the facts 	in this 	case, 	I believe the proper
analysis 	should be 	limited to whether 	there was 	a 	knowing
misrepresentation of 	a 	fact by the Association's 	agents 	in order
to 	secure ratification of 	the 	contract by bargaining unit members.
1In this 	predecessor 	appeal 	by 	the 	charging party of 	a 	Board
agent's dismissal of her charges, 	this 	Board held that a prima
facie 	duty of 	fair representation violation was 	alleged.
11