California Union of Safety Employees (Baima) (PERB 0967S)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOSEPH 	ANTHONY 	BAIMA,
Charging 	Party,
v.
CALIFORNIA 	UNION OP 	SAFETY
EMPLOYEES,
Respondent.
Case No. 	SF-CO-17-S
PERB Decision No. 	967-S
January 19, 	1993
Appearances: 	Richard L. 	Coelho, 	Representative, 	for Joseph
Anthony Baima; 	Leona M. 	Cummings, 	Esq., 	Representative, 	for
California 	Union of 	Safety 	Employees.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the California 	Union
of 	Safety Employees 	(CAUSE) 	to a proposed decision 	(attached
hereto) 	of a PERB administrative law judge 	(ALJ). 	The ALJ found
that CAUSE violated 	section 	3519.5(b) 	of 	the Ralph C. 	Dills Act
(Dills Act)1 by 	failing to pursue to arbitration Joseph Anthony
Baima's 	(Baima) 	grievances 	against the State of California.
1The Dills Act 	is 	codified at Government Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519.5 	states, 	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.
)
)
)
)
)
)
)
)
)
)
______________ )

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	CAUSE'S
exceptions 	and Baima's 	response 	thereto. 	The 	Board 	finds 	the
ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them as 	the decision of 	the 	Board
itself.
DISCUSSION
CAUSE'S 	exceptions 	focus 	on 	its 	rationale 	for 	suspending 	the
processing of 	Baima's 	grievances with the 	state 	employer. 	CAUSE
contends 	that 	it 	merely 	suspended work on the 	grievances 	until
litigation that 	Baima 	threatened 	to 	file 	against 	CAUSE was
concluded.
However, 	when CAUSE decided to 	stop processing Baima's
grievances, 	no 	such 	lawsuit had been filed. 	Although Baima had
threatened 	legal proceedings, 	the Board 	finds 	that threatened
legal 	action against 	an 	exclusive 	representative 	by 	a 	bargaining
unit 	member does 	not 	relieve 	the 	exclusive 	representative's 	duty
in the representation of that member. 	Therefore, 	this 	exception
is rejected.
Further, 	CAUSE 	also argues 	that 	its 	suspension of 	action on
Baima's 	grievances was 	not an arbitrary act. 	In an August 	20,
1991 	letter 	sent by CAUSE Chief Counsel 	Sam McCall, 	Baima was
informed 	that CAUSE would 	not proceed 	further with 	arbitration
nor discuss 	the 	issues 	of 	the 	case with him until 	litigation
between the parties was 	concluded.
22

The ALJ 	relying 	on NLRB 	and 	federal precedent 	(Plummer's
Local 	Union 	598 	(Columbia 	Mechanical 	Contractors 	Association)
(1980) 	250 NLRB 	75 	[104 	LRRM 	1400]) 	found that a union cannot
refuse 	to process 	a 	grievance because 	of 	activity the union
considers 	disloyal. 	As 	the ALJ 	correctly determined, 	the
suspension of 	Baima's 	grievances was 	not due to their validity
but 	rather 	in response 	to 	Baima's 	threatened 	legal 	action against
the exclusive representative. 	CAUSE has 	the obligation to
represent 	its 	employees 	in their relations with the 	employer.
Although CAUSE 	may have distaste 	for the 	actions 	of 	a
bargaining unit member, 	a threatened 	lawsuit by 	itself 	is
insufficient 	to 	alter the duty 	to provide representation. 	The
Board 	affirms 	the ALJ's 	conclusion and rationale 	that 	CAUSE'S
conduct was 	arbitrary and 	in violation of 	3519.5(b) 	of 	the 	Dills
Act.
Finally, 	as 	to the proposed order, 	the Board affirms 	the
ALJ's 	determination that 	CAUSE 	reimburse 	Baima 	for 	reasonable
attorney 	fees 	for the processing of 	his 	grievances 	to
arbitration.
ORDER
Upon the 	foregoing 	findings 	of 	fact and conclusions 	of 	law,
and the 	entire record in this 	case, 	it 	is 	found that the
California Union of 	Safety Employees 	(CAUSE) 	violated 	section
3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act or Act). 	CAUSE
violated 	the Act 	by 	failing 	to 	fairly 	represent 	Joseph Anthony
. . .
33

Baima 	by 	arbitrarily 	and 	in bad 	faith 	refusing 	to process 	his
grievances 	to arbitration.	
-.,,
Pursuant to section 3514.5(c) 	of the Dills Act, 	it is hereby
ORDERED that CAUSE, 	its 	officers 	and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to pursue to arbitration the transfer and
psychological 	examination 	grievances 	of 	Joseph Anthony 	Baima
(Baima) 	which were 	authorized 	for 	arbitration by the CAUSE 	Labor
Relations 	Committee 	in June 	and December of 	1989.
2. 	Failing and/or refusing 	to 	fairly represent 	Baima
in his 	employment 	relations with the 	State of 	California.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Effective 	immediately upon 	service of a 	final
decision 	in this matter, 	reactivate and pursue to arbitration the
transfer 	and psychological 	examination grievances 	of 	Joseph
Anthony 	Baima which were 	authorized 	for 	arbitration by 	the 	CAUSE
Labor Relations 	Committee 	in June and December of 	1989. 	In the
further processing of these grievances, 	CAUSE is 	to pay
reasonable 	expenses 	for Baima 	to hire outside counsel, 	should he
desire, 	to represent him in the arbitration hearing.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post at
all work 	locations where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of CAUSE. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
4

Reasonable 	steps 	shall be taken to 	insure that this 	Notice 	is 	not
reduced 	in size, 	defaced, 	altered or covered by any material.
3. 	Written notification of the actions 	taken to 	comply
with 	this 	Order 	shall be made 	to the 	Sacramento 	Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance with 	the
director's 	instructions.
Chairperson 	Hesse 	and Member Caffrey 	joined 	in 	this 	Decision.
55

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CO-17-S,
Josep--	h Anthony Baima v. 	Californi	-----	a 	Union of 	Safety Employees, 	in
which all parties 	had the 	right 	to participate, 	it has 	been 	found
that 	the 	California 	Union 	of 	Safety 	Employees 	(CAUSE) 	has
violated 	section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Act).
CAUSE 	violated 	the Act when 	it 	failed 	to 	fairly 	represent 	Joseph
Anthony 	Baima 	by 	arbitrarily 	and 	in 	bad 	faith 	refusing 	to 	process
his 	grievances 	to 	arbitration.
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this 	notice 	and we will:
A. 	CEASE AND 	DESIST FROM:
1. 	Refusing to pursue 	to 	arbitration the 	transfer 	and
psychological 	examination 	grievances 	of 	Joseph 	Anthony 	Baima
(Baima) 	which were 	authorized 	for 	arbitration by 	the 	CAUSE 	Labor
Relations 	Committee 	in June 	and 	December of 	1989.
2. 	Failing 	and/or 	refusing 	to 	fairly 	represent 	Baima
in his 	employment 	relations 	with 	the 	State 	of 	California.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
1. 	Effective 	immediately upon 	service of 	a 	final
decision 	in 	this 	matter, 	reactivate 	and pursue 	to 	arbitration 	the
transfer 	and psychological 	examination 	grievances 	of 	Joseph
Anthony 	Baima 	which were 	authorized 	for 	arbitration 	by 	the 	CAUSE
Labor 	Relations 	Committee 	in June 	and 	December 	of 	1989. 	In the
further processing 	of 	these 	grievances, 	CAUSE 	is 	to pay
reasonable 	expenses 	for Baima 	to 	hire 	outside 	counsel, 	should 	he
desire, 	to 	represent him 	in 	the 	arbitration hearing.
Dated: 	CALIFORNIA 	UNION 	OF
SAFETY 	EMPLOYEES
By:.
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT 	BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OP 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOSEPH ANTHONY 	BAIMA,
Charging 	Party,
v.
CALIFORNIA 	UNION 	OF 	SAFETY
EMPLOYEES,
Respondent.
Unfair 	Practice
Case No. 	SF-CO-17-S
PROPOSED 	DECISION
(5/8/92)
Appearances: 	Richard Coelho for Joseph Anthony Baima; 	Leona
Cummings, 	for the California Union of Safety Employees.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A State 	Fish and Game warden brings 	this 	action against his
union 	for 	failure 	of 	the union to pursue 	to 	arbitration his
grievances 	against 	the State 	employer. 	The warden alleges 	that
the 	union acted 	in bad 	faith by refusing 	to 	go 	forward with 	the
grievances. 	The union contends 	that 	it was 	compelled to delay
processing the grievances by financial problems. 	Then, 	it
suspended action on the grievances 	because of 	a 	lawsuit which was
filed against 	it by 	the 	charging party.
Joseph Anthony 	Baima 	filed 	the 	underlying unfair practice
charge on September 	19, 	1991, 	against the California Union of
Safety Employees 	(CAUSE or Union). 	The general 	counsel of 	the
Public 	Employment Relations 	Board 	(PERB 	or Board) 	followed on
November 26, 	1991, 	with a complaint against the Union. 	The
complaint alleges 	that by refusing to take Mr. 	Baima's 	grievances
to arbitration, 	as promised, 	the Union breached its duty of 	fair
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
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. . - .. .
representation.1 This 	action was 	alleged to be 	in violation of
section 3519.5(b) 	of the Ralph C. 	Dills Act.2
1Specifically, the 	complaint 	makes 	the 	following 	factual
allegations 	regarding the decision not to take Mr. 	Baima's
grievances 	to arbitration:
Between January and November 	1989, 	Charging Party
filed a total of 	seven grievances, 	which
Respondent 	agreed 	to 	consolidate 	and 	take 	to
arbitration. 	However, 	on or about May 8, 	1991,
following 	a 	decertification 	election 	involving
Respondent held on or about May 	3, 	1991,
Respondent 	informed 	Charging 	Party 	that 	it 	had
decided to 	reconsider whether 	or 	not 	to 	take 	his
cases to arbitration. 	Thereafter, 	in June of
1991, 	Respondent's President, 	Cecil Riley,
informed 	Charging 	Party 	during 	a 	discussion
concerning Charging Party's 	grievances, 	that
Charging Party's 	affiliate, 	the California Fish
and Game Wardens 	Protective Association, 	should
have been 	"tighter with CAUSE" 	during the
decertification election. 	By 	letter dated
August 2, 	1991, 	Charging Party advised Mr. 	Riley
that 	he was 	considering 	civil 	litigation against
Respondent 	unless 	the 	latter 	compensated him 	for
his damages 	in failing to represent him. 	By
letter dated August 20, 	1991, 	Respondent's
representative, 	Sam McCall, 	advised Charging Party
that CAUSE would not 	take his 	cases 	to arbitration
because 	it 	appeared 	that 	the 	Charging 	Party was
prepared to 	sue 	Respondent.
2Unless 	otherwise 	indicated, 	all 	statutory references 	are to
the Government Code. 	The Ralph C. 	Dills Act 	(Dills Act) 	is
codified at Government Code 	section 	3512 	et 	seq. 	In relevant
part, 	section 3519.5 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.
22

The 	Union answered the 	complaint on December 	5, 	1991,
denying 	any wrong-doing. 	A hearing was 	conducted 	in 	San
Francisco on March 3 and 4, 	1992. 	With the filing of briefs, 	the
matter was 	submitted for decision on May 	1, 	1992.
FINDINGS 	OF 	FACT
Joseph Anthony 	Baima 	has 	been 	employed by 	the 	State 	of
California 	(State) 	as 	a 	fish and game officer 	for 	14 	and one-half
years. 	Currently he works out of Petaluma. 	At all 	times
relevant, 	CAUSE has 	been the 	exclusive representative of 	State
employee Unit 	7, 	Protective Services 	and Public 	Safety, 	which
includes 	fish and game wardens.
Beginning in June of 	1987, 	Mr. 	Baima filed a 	series of
grievances 	against the Department of Fish and Game 	(Department).
In the first of these, 	Mr. 	Baima unsuccessfully challenged the
procedure 	by which 	the 	Department 	conducted 	a promotional 	exam
for the position of 	lieutenant. 	Mr. 	Baima 	contended that the
Department 	improperly used 	a 	captain's 	eligibility 	list 	for 	the
lieutenant's 	examination. 	Other grievances 	and 	complaints
followed, 	many of 	them alleging 	that 	subsequent 	actions 	against
him were 	in retaliation 	for his 	challenge of 	the 	1987 	exam 	for
lieutenant.
In 	1989, 	Mr. 	Baima filed a 	series of 	seven grievances which
led to 	the present 	charge 	against CAUSE. 	The 	Department denied
all 	seven grievances. 	In summary form, 	the grievances by date of
filing are as 	follows:
January 4, 	1989. 	Mr. 	Baima alleged that
he was 	denied a 	transfer to 	a patrol 	boat
33

when 	Department procedures 	were 	not 	followed
and a warden 	junior to him got the 	job. 	He
asked 	that 	the person who 	got 	the position be
removed 	and 	it be 	given to him.
July 8, 	1989. 	Mr. 	Baima alleged that when
a 	new position was 	established 	at 	the 	Napa
Fish and Game Academy, 	it was 	offered to
another warden without 	the 	proper procedures
being 	followed. 	Since he did not 	get 	the
opportunity to 	apply 	for a 	transfer to 	the
position, 	he requested a 	transfer to Bodega
Bay or $15,000.
July 8, 	1989. 	Mr. 	Baima alleged that his
captain used 	improper management 	techniques
in a 	corrective 	interview and 	letter of
warning given to him. 	He requested $10,000.
---September 22, 	1989. 	Mr. 	Baima alleged
improper 	management 	techniques 	and 	reprisal
by two 	supervisors 	relating to 	an order to
him that he report 	to 	the 	Regional
Headquarters 	for assignment on September 	15.
He requested $10,000.
- September 24, 	1989. 	Two grievances were
filed on this 	date but 	the record contains 	a
copy of 	only one of them. 	Although the
record is 	not definite on this point, 	both
grievances 	apparently 	involved a 	September 	19
order to Mr. 	Baima that he report to a San
Francisco psychologist 	for a 	fitness 	for duty
evaluation. 	He requested $10,000 	and $900 	a
week 	for 	loss 	of 	family 	income.
September 26, 	1989. 	Mr. 	Baima alleged
that the September 	19 	order that he 	secure 	a
fitness 	for duty evaluation was 	a reprisal.
Some of these grievances were 	filed by Mr. 	Baima 	in his 	own
name. 	Others were 	filed by CAUSE on Mr. 	Baima's behalf.
Mr. 	Baima received advice 	from CAUSE 	representatives 	on the
grievances 	he 	filed 	himself 	and 	CAUSE 	ultimately 	assumed
responsibility 	for processing all 	of 	the 	grievances. 	The 	record
shows that beginning 	in March of 	1989, 	various CAUSE
44

representatives wrote letters 	on Mr. 	Baima's behalf 	to Department
and State administrators. 	Efforts 	to 	settle the grievances were
not 	successful.
Beginning in June of 	1989, 	several of the grievances were
put before 	the CAUSE 	Labor Representation Committee. 	The
committee, 	composed of 	four members 	appointed by the president 	of
CAUSE, 	is 	authorized under CAUSE procedures 	to decide whether
grievances will be taken to arbitration. 	On June 	14, 	the
committee 	reviewed 	and 	authorized 	for 	arbitration 	the 	transfer
grievance.3 In December, 	the 	committee 	reviewed and 	authorized
for 	arbitration 	the 	three 	consolidated 	grievances 	spawned 	by 	the
required 	psychological 	examination.4
There were 	further efforts 	to 	settle 	the grievances 	in the
early part of 	1990. 	When these proved unsuccessful, 	CAUSE moved
in November to 	schedule the cases 	for arbitration. 	In March, 	the
State 	and CAUSE 	agreed on an arbitrator. 	Because 	counsel 	for the
State 	had been called to 	one month 	of 	military 	service 	beginning
on April 	8, 	the parties 	agreed that 	the 	arbitration 	should be
postponed until mid to late May. 	Ultimately, 	the arbitration was
set for May 29 and 	30.5
3Charging Party's exhibit No. 	2 	identifies this 	grievance as
follows: 	"LR GREV 2754-89/TRANSFER."
Respondent's 	exhibit No. 	3 	identifies this 	grievance as
follows: 	"LR GREV 3006-89/REPRISALS."
Consistent with 	the 	committee's 	approval 	of 	the 	grievances
for arbitration, 	CAUSE has 	at no time 	in these proceedings
contended that 	the 	grievances were 	not meritorious.
un	
5

The 	delay between the 	filing of 	the 	grievances 	and 	their
scheduling 	for arbitration, 	produced a high 	level 	of 	friction
between CAUSE 	and 	the California 	Fish 	and Game Wardens 	Protective
Association 	(Association).6 This 	can be 	seen in a 	spring 	1991
exchange 	of 	letters 	between Association President 	Todd 	Tognazzini
and CAUSE President Cecil Riley. 	On April 	2, 	Mr. 	Tognazzini
wrote 	the CAUSE president to 	complain about the delays 	noting
that 	"[e]ach time 	I 	inquire, 	some new reason for delays 	is
found." 	He observed that 	it has been 	"several years" 	since CAUSE
had 	carried 	an arbitration 	for a 	member of 	the 	fish 	and 	game
wardens 	association.
7
Mr. 	Riley replied on April 	26. 	After describing what CAUSE
had done 	for various 	of 	its 	law enforcement members 	in recent
years, 	Mr. 	Riley complained that very 	little appreciation had
been 	shown in return. 	He then observed that Mr. 	Tognazzini 	and
his 	affiliate 	"did nothing 	to 	indicate you opposed 	the 	[then
pending] 	decertification7 or disagreed with the 	allegations 	of
poor representation." 	He accused Mr. 	Tognazzini 	of offering
"weak assurances 	that you were 	remaining neutral."8
6The Association 	is 	a 	constituent 	organization within CAUSE.
7A decertification 	election between CAUSE 	and 	a 	rival 	union
was 	conducted by mail ballot between April 	1 	and April 	29, 	1991.
Ballots were counted on May 2, 	1991, 	with CAUSE the apparent
winner.
8The California 	Fish 	and 	Game Wardens 	Protective Association
maintained 	an 	official position 	of 	neutrality during 	the
decertification 	election.
6

By 	letter of May 8, 	CAUSE Chief Counsel Sam A. 	McCall
notified 	Mr. 	Baima 	that CAUSE 	planned 	to 	cancel 	the 	arbitration
and reschedule 	it for a 	later date. 	Mr. 	McCall wrote that the
recent decertification 	election 	"has 	required CAUSE 	to
re-evaluate 	its 	representational programs 	in order to more 	fully
maximize 	its 	personnel 	and 	financial 	resources 	to 	the betterment
of the maximum 	[number] 	of members." 	Mr. 	McCall's 	letter did not
suggest 	a date 	for rescheduling the 	arbitration.
The 	cancellation of 	the 	arbitration produced 	an 	immediate
reaction from Mr. 	Baima. 	He hired an attorney who 	called and
then, 	on May 23, 	wrote to Mr. 	McCall complaining about the
Union's 	failure to take the grievances 	to arbitration. 	In the 	,
letter, 	the attorney expressed a concern that 	if 	the grievances
were 	not 	taken to 	arbitration 	soon the 	State might 	argue 	that
they had 	lapsed 	for 	failure to timely prosecute. 	Mr. 	McCall
replied on May 	30, 	stating that CAUSE 	had never agreed to 	take
all 	seven grievances 	to arbitration. 	He 	said the Union would
take 	the appropriate 	cases 	to arbitration 	"[a]t 	the time 	I
understand CAUSE 	is 	[in] 	a position to proceed."
'
At the hearing, 	Mr. 	McCall testified that a 	shortage of
money was 	the primary reason the 	cases were 	not 	taken to
arbitration 	as 	originally 	scheduled.9 He 	said the 	cost 	of
9Mr. 	McCall outlined the cost of 	an arbitration as 	follows:
$600 per day 	for the arbitrator, 	$450 	to 	$800 per day 	for a
transcript, 	$400 	to 	$500 per day 	for travel 	and 	lodging expenses
for each witness. 	Mike Nadeau, 	chairman of the CAUSE Labor
Relations Committee, 	estimated the 	cost at $3,000 to 	$4,000 	per
arbitration.
7

fighting 	the 	decertification 	attempt 	had 	severely drained 	the
CAUSE treasury. 	He 	said that 	in March and April of 	1991, 	CAUSE
was unable to order 	supplies because 	it had not paid 	its 	bills.
He 	said 	a printer refused 	to 	take more CAUSE work and the 	copy
machine was 	not 	fixed when 	it broke. 	He 	testified 	that CAUSE
representatives 	were 	not 	being 	reimbursed 	for 	travel 	expenses 	and
for a time they had to travel 	out of 	their own pockets.
Mr. 	McCall also suggested, 	during the hearing, 	that the
transfer 	grievance was 	inappropriate 	for 	arbitration because 	it
would pit one unit member against another. 	If Mr. 	Baima were to
prevail 	and secured a transfer to the patrol boat, 	Mr. 	McCall
said, 	the warden who 	got 	the position would be transferred out.
Mr. 	McCall 	said that 	for this 	reason the 	Union would 	"have 	to
take a 	second look" 	at that grievance. 	Mr. 	McCall acknowledged,
however, 	that he had never gone back to the Labor Relations
Committee with this 	concern. 	Mr. 	Baima was 	never given this
reason before 	the hearing.
Mr. 	Baima and Mr. 	Tognazzini had been given the 	shortage of
funds 	rationale by 	several CAUSE representatives, 	including
Mr. 	McCall, 	when they were trying to get the grievances
processed. 	Upon hearing this 	explanation, 	Mr. 	Tognazzini offered
on behalf 	of 	the wardens 	association to pay part 	of 	the 	cost. 	No
CAUSE 	representative 	ever pursued 	this 	offer to 	determine 	how
much the 	association would 	contribute.10 Mr. 	Tognazzini
10Mr. 	McCall testified that Mr. 	Tognazzini did not make the
offer of assistance until much later, 	after Mr. 	Baima had 	sued
CAUSE.
8

testified that 	"as 	soon as 	I 	made that offer, 	then there was 	some
other reason why 	they wouldn't 	go. . forward."
Mr. 	Baima testified that after he received Mr. 	McCall's
May 	8 	letter he 	called CAUSE 	President 	Riley to 	complain. 	He
said 	that Mr. 	Riley told him that 	CAUSE was 	having 	financial
problems 	"but 	they 	could have 	found 	the 	money 	if 	our 	association
would 	have 	supported 	them 	during 	the 	decertification."11 He 	said
he told Mr. 	Riley that the Union 	"should not take that type 	of
attitude." 	Mr. 	Riley denied that he 	linked the decision on the
arbitration to 	the Association's 	position 	in the decertification.
He 	said 	the 	only 	thing he 	remembered 	from the 	telephone
conversation was 	that Mr. 	Baima threatened to 	sue him if 	the
arbitration did 	not 	proceed.12
On August 2, 	1991, 	Mr. 	Baima put his threat of 	legal action
into writing. 	He wrote Mr. 	Riley that CAUSE had 	failed to
represent 	him 	in grievances 	causing him to 	suffer 	$87,000 	in
damages. 	"We 	can 	settle this 	by 	sending me a 	check for $5,000.00
by August 	12, 	1991 	or face 	[c]ivil litigation," 	he wrote.
On August 	5, 	CAUSE 	Field Director Miriam S. 	Doonan wrote to
the 	State's 	attorney handling 	the 	Baima 	grievances 	and 	asked 	to
have 	them re-set 	for arbitration. 	She 	suggested that 	the parties
secure 	the 	same 	arbitrator as 	previously 	scheduled.
12
11See testimony of Joseph Anthony Baima, Vol. 	1, 	p. 	11 of
the 	Reporter's 	Transcript.
12Se	See	e 	testimon	testimonyy o	of	f Cecil Riley, Vol. 	1, 	p. 	81 of the
Reporter's 	Transcript.
99

On August 	8, 	Mr. 	Baima wrote again to CAUSE President Riley,
that he had received a copy, of 	the Doonan letter but 	no
response yet 	from the CAUSE president. 	Mr. 	Baima wrote that he
considered the 	State blameless 	in the various 	delays 	and asked
Mr. 	Riley to respond to his 	letters by August 	15.
CAUSE 	Chief Counsel McCall 	replied on behalf 	of Mr. 	Riley 	in
a 	seven-page letter of August 	20. 	Mr. 	McCall wrote that although
he believed Mr. 	Baima 	"had been the 	subject of 	illegal 	actions"
by his 	Department, 	CAUSE was 	suspending efforts 	to take his 	cases
to arbitration. 	He wrote that Mr. 	Baima by his 	demand 	letter of
August 	2 	had 	created a 	state 	of 	litigation between himself 	and
the Union. 	"Because it is 	subject to litigation," 	Mr. 	McCall
wrote, 	"it would be 	impossible to proceed to arbitration in a
different 	forum 	for 	a determination as 	to 	liability 	or 	the 	extent
of damages." 	Mr. 	McCall wrote that 	"CAUSE will not proceed
further with the arbitration 	. 	. 	. 	until the issues you have
raised with 	your 	letter 	of August 	2nd 	are 	resolved."
Mr. 	McCall described as 	"ridiculous" 	Mr. 	Baima's 	claim that
CAUSE 	had 	caused 	him 	$5,000 	in damages 	by 	failing 	to pursue 	the
grievances. 	He 	said he had 	"asked 	for 	legal 	research 	on the
matter and 	[had] 	been provided legal counsel that 	in fact, 	it may
be 	a 	form of 	attempted bribery." 	He warned 	that 	he would be
discussing with CAUSE President Riley whether Mr. 	Baima's 	request
for money 	"should be presented 	to 	the 	Office 	of 	the 	District
Attorney 	for review." 	CAUSE did not 	cause Mr. 	Baima 	any damages,
he wrote, 	and would not 	"succumb to 	such 	ludicrous 	settlement
Stayednoting
10

demands 	out of 	fear of 	litigation." 	Whoever advised Mr. 	Baima 	to
make 	such a demand, 	made 	"a tactical error," 	he wrote.13
In his 	letter, 	Mr. 	McCall accused Mr. 	Baima of 	"constantly
and 	excessively 	calling 	the 	CAUSE 	office 	seeking 	updated 	reports
on the progress 	of your case." 	He advised Mr. 	Baima that,
because 	of 	the 	threatened 	litigation, 	he 	should not 	to 	attempt
further communication with Mr. 	Riley. 	Moreover, 	Mr. 	McCall
warned, 	he 	"would not guarantee a response" 	to 	future 	letters
like 	those Mr. 	Baima had most recently written.
. -
Mr. 	Baima, 	nevertheless, 	on December 12, wrote again to
Mr. 	Riley, 	repeating his 	demand that CAUSE pay him $5,000 	in
settlement 	of his 	grievances 	"or 	face 	civil 	litigation." 	He
accused CAUSE 	of violating 	its 	duty of 	fair representation. 	This
letter went unanswered and on January 	10, 	1992, 	Mr. 	Baima filed a
small 	claims 	lawsuit 	against CAUSE.
LEGAL 	ISSUE
Did CAUSE 	breach the 	duty 	of 	fair 	representation toward
Mr. 	Baima and 	thereby violate 	Dills Act 	section 	3519.5(b)?
CONCLUSIONS 	OF 	LAW
1 1The 	duty of 	fair representation 	requires 	an 	exclusive
representative 	to 	fairly 	and 	impartially 	represent 	all 	employees
13Mr. 	McCall 	also 	stated 	that he had granted the 	request 	of
CAUSE 	representative 	Miriam Doonan to 	be 	relieved 	of 	the
assignment. 	Mr. 	McCall wrote that Ms. 	Doonan believed she could
not 	"effectively communicate" 	any 	longer with Mr. 	Baima 	and he
agreed with her. 	However, 	he observed, 	"CAUSE only has 	a 	limited
number of 	staff persons 	able 	to handle 	a 	complex 	arbitration case
like yours." 	He 	left unresolved how the 	grievances would be
reassigned.
11
"

in the bargaining unit. 	The 	duty 	is 	breached when the 	exclusive
representative's 	conduct 	toward 	a unit member 	is 	arbitrary,
discriminatory or 	in bad 	faith. 	(Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No. 	124.)
Unlike the other two 	statutes 	administered by the PERB, 	the
Dills 	Act 	contains 	no 	specific 	statutory provision 	setting 	out
the duty.14 Nevertheless, 	PERB decisions have assumed the
existence of 	a duty of 	fair representation under the 	Dills Act.
(See, 	for example, 	California State Employees Association
(Lemmons 	and Lund) 	(1985) 	PERB Decision No. 	545-S and CSEA
(Darzins) 	(1985) 	PERB Decision No. 	546-S.) 	A breach of the duty
is 	an unlawful discrimination and a violation of 	Dills Act
section 3519.5(b). 	(See the rationale in Mt. 	Diablo Education
•Association 	(Quarrick 	and O'Brien) 	(1978) 	PERB Decision No. 	68.)
-...
Existence of the duty does not mean, 	however, 	that an
employee has 	"an absolute 	right to have 	a 	grievance 	taken to
arbitration 	. . . . 	An 	exclusive 	representative's 	reasonable
refusal 	to proceed with arbitration 	is 	essential 	to 	the 	operation
of 	a 	grievance 	and 	arbitration 	system." 	(Castro Valley 	Teachers
Association 	(McElwain and Lyen) 	(1980) 	PERB Decision No. 	149.)
An exclusive 	representative has 	no 	obligation to pursue 	a
grievance where 	the 	"potential 	success 	at 	arbitration was
14Duty of 	fair representation provisions 	are 	set 	out 	at
section 	3544.9 	of 	the Educational 	Employment Relations Act 	and
section 	3578 	of 	the 	Higher 	Education Employer-Employee 	Relations
Act.
12
,},	.. 	,i;,	 	d

doubtful." 	(Sacramento 	City 	Teachers 	Association 	(Fanning 	et
al) 	(1984) 	PERB Decision No. 	428.)
Mr. 	Baima argues 	that CAUSE 	acted in bad 	faith when it
cancelled the arbitration of his 	grievances 	on May 	8, 	1991.
Mr. 	Baima contends 	that CAUSE has 	never taken to arbitration any
grievance 	filed by a member of 	the 	fish and game wardens
association. 	He rejects 	outright 	the assertion that CAUSE 	could
not afford to carry his 	grievances 	to arbitration, 	contending
that 	CAUSE 	has 	adequate 	funds 	to 	carry 	forward 	litigation 	against
its members.
CAUSE argues 	that the 	election position of Mr. 	Baima 	and the
wardens 	association was 	irrelevant 	to 	its 	decision to postpone
the arbitration. 	CAUSE 	contends 	that 	it had represented
Mr. 	Baima 	throughout 	the decertification campaign and 	its
decision to delay was 	due 	solely to 	financial 	need. 	CAUSE 	argues
that 	its 	action was 	not 	arbitrary, 	discriminatory or 	in bad 	faith
and that Mr. 	Baima has 	failed to 	set out a prima 	facie violation.
As Mr. 	Baima points 	out, 	the contention that CAUSE 	cancelled
the May 	29 	arbitration for 	financial 	reasons 	is 	suspicious. 	Had
financial problems 	been the 	reason, 	one would have 	expected more
interest 	from CAUSE 	in the 	offer by 	the 	fish and 	game wardens
association to contribute toward the 	cost. 	Yet 	it was 	the
unrebutted 	testimony 	of 	Association 	President 	Tognazzini 	that
CAUSE officers 	ignored his 	offer to 	share 	in the 	cost 	of
Mr. 	Baima's arbitration.
13
•

But 	even if CAUSE 	is 	given the benefit of 	the doubt 	on the
shortage of 	funds 	argument, 	there 	is 	no 	justification for
Mr. 	McCall's August 	20 	suspension of 	all 	further processing of
the grievances. 	Just 	12 days 	earlier, 	CAUSE had again notified
the 	State 	that 	it was prepared 	to 	go 	forward with the 	Baima
grievances. 	But Mr. 	McCall, 	reacting to Mr. 	Baima's August 2
threat of 	legal 	action, 	cancelled all 	further action on the
grievances. 	Mr. 	McCall wrote that CAUSE would not proceed to
arbitration 	"until 	the 	issues 	you 	have 	raised with your 	letter 	of
August 	2nd are resolved." 	He 	even advised Mr. 	Baima not 	to
attempt 	further 	communication with 	CAUSE 	President 	Riley.
It 	should be noted that Mr. 	Baima's 	threat of a 	lawsuit
against CAUSE was 	not without 	some provocation. 	His 	demand
letter must be 	viewed accordingly. 	More 	than two years 	had
elapsed 	from the 	filing 	of 	the 	grievances 	during which 	time
Mr. 	Baima was 	given numerous 	excuses 	for why the 	cases 	could not
go 	forward 	faster. 	Then, 	just when Mr. 	Baima believed he 	finally
would have his 	grievances 	heard, 	he was 	again to be disappointed.
It 	seems obvious 	that his 	threat of a 	lawsuit was, 	at 	least 	in
part, 	an act of frustration.
In its brief, 	CAUSE offers no 	justification for Mr. 	McCall's
August 	20 	letter. 	Indeed, 	the brief acknowledges 	that CAUSE has
no 	intention of 	going 	forward with 	the 	arbitration 	in the 	face 	of
Mr. 	Baima's lawsuit. 	"CAUSE," 	the brief reads, 	"was and
continues 	to 	await 	the 	outcome 	of 	said 	litigation 	in order 	that
14

CAUSE can determine its rights and obligations, 	if any, 	with
respect to Mr. 	Baima."
A union cannot 	refuse 	to process 	a 	grievance because 	a
member has 	engaged 	in conduct 	the union considers 	disloyal. 	The
National 	Labor Relations 	Board 	(NLRB) 	and 	the 	federal 	courts will
find 	such action to be a breach of the duty of 	fair
representation.15 See, 	for example, 	Plumbers 	Local Union 598
(Columbia Mechanical Contractors Assn.) 	(1980) 	250 NLRB 	75 	[104
LRRM 	1400], 	where a union breached the duty of 	fair
representation when it 	refused to process 	a 	grievance because 	the
grievant 	has 	filed 	charges with public 	agencies.16
Cessation of 	all activity on Mr. 	Baima's 	behalf because of
his 	demand 	for money 	and 	threatened 	lawsuit was 	an arbitrary 	act.
It had nothing to do with the merits 	of Mr. 	Baima's 	grievances.
It 	grew 	solely out 	of 	the 	Union's 	anger that he had threatened
the Union. 	A union cannot 	refuse 	to represent 	an employee
because 	the union 	is 	angry with him 	for 	threatening a 	lawsuit.
If 	the 	lawsuit 	is without merit, 	the Union can challenge it 	in
the proper 	forum and 	seek appropriate 	remedies. 	But 	this 	cannot
be 	linked 	to 	the 	Union's 	separate 	duty 	to 	continue 	to 	represent
the 	employee 	in his 	relations with the 	employer. 	The Union has
incurred 	this 	duty 	through 	its 	role 	as 	exclusive 	representative
- . ALL -4 ..' :
16
15Morris, The Developing Labor Law, BNA, 	1983, Vol. 	2,
p. 	1331, 	and cases cited therein.
16 See also, 	Graphic Communications 	International Union,
Local 	388 	(Georgia Pacific Corp.) 	(1988) 	287 NLRB 	1128 	[128 LRRM
1176].
15

and 	it 	may 	not withhold 	representation of 	an employee 	because 	he
creates 	trouble 	for the Union.
Accordingly, 	I 	conclude that CAUSE violated the duty of 	fair
representation when Mr. 	McCall by letter of August 20, 	1991,
suspended all 	further processing of Mr. 	Baima's 	grievances. 	This
action was 	arbitrary 	and 	in bad 	faith 	and 	thereby 	violated 	Dills
Act section 3519.5(b).
REMEDY
The PERB in section 3514.5(c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and 	to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
The 	ordinary remedy 	in a duty of 	fair representation case 	is
an 	order 	that 	the 	respondent 	exclusive 	representative properly
represent 	the 	aggrieved 	employee. 	That 	remedy 	is 	insufficient
here. 	The 	letter written by CAUSE 	Chief Counsel 	McCall 	on
August 	20 	makes 	it 	clear that CAUSE has 	no 	interest 	in processing
Mr. 	Baima's grievances. 	This action, 	when coupled with the
two-year delay which preceded the 	letter, 	makes 	it 	extremely
unlikely 	that Mr. 	Baima 	could 	secure 	appropriate handling of 	his
grievances 	from CAUSE.
Mr. 	Baima has 	requested in his 	brief that CAUSE be ordered
to hire outside 	counsel 	to take his 	grievances 	to arbitration.
There 	is precedent 	for 	such a remedy. 	In circumstances where a
union has 	shown bad 	faith 	in the processing of 	grievances, 	the
16

NLRB 	finds 	it 	appropriate not 	only to 	compel 	the union to pursue
the 	grievances 	but 	also 	to 	require 	the union to hire 	outside
counsel to do it. 	See, 	for example, 	San Francisco Web &
Platemakers' 	Union No. 	4 v. 	NLRB 	(9th Cir. 	1986) 	794 F.2d 420
[122 	LRRM 	3000] 	where the 	Court 	enforced 	an NLRB 	order requiring
the hiring of outside counsel. 	At times 	this 	extends 	to a
requirement 	that 	the 	aggrieved 	employee 	may hire 	counsel 	of 	the
employee's 	own choice at the union's 	expense. 	(See Glass 	Bottle
Blowers Association 	(Owens-Illinois. 	Inc.) 	(1979) 	240 NLRB 324
[100 LRRM 1294, 	1296].)
I 	find 	it appropriate that Mr. 	Baima be permitted to hire
counsel 	of 	his 	own choosing at 	the 	expense of CAUSE 	for the
further processing of his 	grievances.17 This 	remedy 	is 	granted
because 	of 	the 	adamant 	opposition 	to 	further processing 	of 	the
grievances 	set out in Mr. 	McCall's August 20 	letter to Mr. 	Baima.
I 	believe Mr. 	McCall's 	statements 	in the 	letter demonstrate 	scant
likelihood that Mr. 	Baima's 	grievances will 	be 	fairly processed
in the absence of 	outside 	counsel.
It 	is 	further appropriate 	that 	the 	Union be directed 	to post
a 	notice 	incorporating the 	terms 	of 	the 	order. 	Posting of 	such 	a
notice, 	signed by an authorized agent of the Union, 	will provide
17The grievances which Mr. 	Baima 	can take 	forward at 	the
expense 	of 	CAUSE 	are 	the 	grievances which were 	set 	for
arbitration in May of 	1991. 	I 	believe that the most definitive
statement of 	exactly which grievances 	these 	are 	can be 	found 	in a
May 	14, 	1991, 	letter from Miriam Doonan to the arbitrator.
(Respondent's exhibit No. 	3 at p. 	54). 	The letter identifies the
relevant grievances as: 	"CAUSE 	(Baima) 	v. 	State 	(Department of
Fish and Game)/LR MISC 1072-87, 	3109-89/DPA #89-07-0035, 	49, 	50."
17

shall 	accompany 	each 	copy 	served 	on 	a 	party 	or 	filed 	with 	the
Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8, 	secs. 	3 2 300,
32305 	and 	32140.)
Dated: 	May 	8, 	1992
2
Ronald 	E . B l u b a u g h
Administrative 	Law 	Judge
21

posting 	shall 	be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be taken to 	ensure
that the Notice 	is not reduced in size, 	altered, 	defaced or
covered with 	any 	other material.
3. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with the Order to 	the
San Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the 	director's 	instructions.
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 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	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. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received
before the 	close of business 	(5:00 p.m.) 	on the 	last day 	set 	for
filing 	". 	. 	. o r when sent by telegraph or certified or Express
United 	States 	mail, 	postmarked not 	later than the 	last day 	set
for filing 	. . . " 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135;
Code Civ. 	Proc., 	sec. 	1013 	shall apply.) 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently with
its 	filing upon each party to 	this 	proceeding. 	Proof 	of 	service
20

employees with notice that 	the 	Union has 	acted 	in an unlawful
manner, 	is being required to cease and desist 	from this 	activity,
and will 	comply with the order. 	It effectuates 	the purposes 	of
the 	Dills Act that 	employees 	be 	informed of 	the 	resolution of
this 	controversy 	and 	the 	Union's 	readiness 	to 	comply with 	the
ordered remedy. 	(Placerville Union School 	District 	(1978) 	PERB
Decision No. 	69.)
Mr. 	Baima's 	request that CAUSE pay to him 	"the 	amount of
$7,000.00 	to 	reimburse him 	for 	attorney 	fees 	he paid 	to 	outside
counsel 	and 	costs" 	is denied. 	Attorneys 	fees 	are 	justified where
"there 	is 	a 	showing that the respondent's 	unlawful 	conduct has
been repetitive 	and 	that 	its 	defenses 	are without 	arguable
merit." 	(Modesto City Schools 	and 	High 	School 	District 	(1985)
PERB Decision No. 	518.) 	Mr. 	Baima was not represented at any
part of 	these proceedings 	by an attorney. 	His 	request 	for
attorney's 	fees 	appears 	intended to 	cover costs 	he 	incurred
outside 	the present hearing before the PERB. 	He has 	cited no
justification 	for 	such a 	remedy.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire record in the 	case, 	it 	is 	found that the
California Union of 	Safety Employees 	(CAUSE) 	violated 	section
3519.5(b) 	of the Ralph C. 	Dills Act 	(Act). 	The Union violated
the Act 	by 	failing 	to 	fairly 	represent 	Joseph Anthony 	Baima 	by
arbitrarily 	and 	in bad 	faith 	refusing 	to process 	his 	grievances
to 	arbitration.
18

Pursuant to 	section 3514.(c) of 	the Government Code, 	it
thereby 	is ORDERED that the Union, 	its 	officers 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Refusing to pursue 	to arbitration the transfer and
psychological 	examination 	grievances 	of 	Joseph Anthony 	Baima
which were 	authorized 	for arbitration by 	the CAUSE 	Labor
Relations Committee 	in June and December of 	1989.
2. 	Otherwise 	failing and/or refusing to 	fairly
represent 	Joseph Anthony 	Baima 	in his 	employment 	relations 	with
the State of California.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Effective 	immediately upon 	service of 	a 	final
decision in this 	matter, 	reactivate and pursue to arbitration the
transfer 	and psychological 	examination grievances 	of 	Joseph
Anthony 	Baima which were 	authorized 	for 	arbitration by 	the 	CAUSE
Labor Relations 	Committee 	in June and December of 	1989. 	In the
further processing of these grievances, 	CAUSE 	is 	to pay the
expense 	for Mr. 	Baima to hire outside counsel, 	should he desire,
to 	represent 	him 	in the 	arbitration hearing.
2. 	Within ten 	(10) 	workdays 	of the 	service of a 	final
decision 	in this 	matter, 	post 	at all work locations where CAUSE
customarily posts 	notices 	to members 	of 	State 	employee 	bargaining
Unit 	7, 	copies 	of the Notice attached hereto as 	an Appendix. 	The
Notice must be 	signed by an authorized agent of 	CAUSE, 	indicating
that the CAUSE will 	comply with the terms 	of this 	Order. 	Such
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