California State Employees Association (Cohen) (PERB 0980S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SHARON A. 	COHEN,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SF-CO-20-S
PERB Decision No. 	980-S
March 12, 	1993
Appearance: 	Sharon A. 	Cohen, 	on her own behalf.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Sharon A. 	Cohen 	(Cohen) 	to a
Board agent's 	dismissal 	(attached hereto) 	of her unfair practice
charge. 	In her charge, 	Cohen alleged that 	the California State
Employees Association violated section 3519.5(b) 	of 	the Ralph C.
Dills Act 	(Dills Act)1 by engaging 	in numerous acts 	in violation
of 	her employee 	rights.
The 	Board has 	reviewed 	the warning and dismissal 	letters,
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	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.
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the 	original 	and amended 	charges, 	Cohen's 	appeal 	and the 	entire
record 	in 	this 	case. 	The Board 	finds 	the Board agent's 	dismissal
to be 	free 	of prejudicial 	error and adopts 	it 	as 	the decision of
the 	Board 	itself.
The unfair practice charge 	in Case No. 	SF-CO-20-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chair Blair and Member Carlyle 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
PERE
November 30, 	1992
Sharon A. 	Cohen
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Sharon E. 	Cohen v. 	California State Employees' 	Association
Unfair Practice Charge No. 	SF-CO-20-S
Dear Ms. 	Cohen:
The above-referenced unfair practice 	charge, 	filed on April 	8,
1992 	and amended on November 16, 	1992, 	alleges 	that 	the
California State Employees' 	Association 	(Association) 	breached
its duty of 	fair representation to Sharon E. 	Cohen. 	This 	conduct
is 	alleged 	to violate Government 	Code 	section 3519.5 	of 	the Ralph
C. Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated October 28, 	1992,
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 5, 	1992, 	the charge would be dismissed. 	I granted you
an extension to 	file an amended charge, 	which you 	filed on
November 16, 	1992.
The amended 	charge 	contains 	numerous 	allegations. 	Cohen also
submitted 	to 	the undersigned on November 	5, 	1992 	a 	ten-paged
single-spaced 	typewritten letter, 	together with 51 pages 	of
exhibits. 	This 	document 	contained essentially 	the 	same
allegations 	as 	those 	outlined in the 	amended charge. 	These
allegations 	are 	summarized as 	follows. 	Cohen alleges 	that
Association 	representative 	Sherry Hayes 	took 	certain documents,
including 	the 	original 	rejection 	from probation notice, 	the
supervisor's 	final probationary report, 	and Cohen's 	tele-
typewriter 	tape 	from the 	Skelly hearing, 	failed to 	return them,
and 	led 	Cohen 	to believe 	that 	the 	Pelican Bay State 	Prison
(Prison) 	maintained possession of 	the documents. 	The
Association, 	through Nancy Canadian, 	did provide 	copies 	of 	these
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documents 	in September and October 	1991. 	Cohen alleges 	that 	the
withholding 	of 	these 	documents 	demonstrates 	arbitrary and
discriminatory 	conduct. 	These allegations 	fail 	to demonstrate
the Association 	refused 	to process 	any of 	Cohen's 	grievances 	for
arbitrary, 	discriminatory or bad faith reasons. 	Canadian
provided 	Cohen an 	opportunity 	to 	discuss 	her pending 	disputes
with 	the 	Prison. 	Canadian 	independently 	reviewed 	those 	disputes
after Hayes 	left 	employment 	with 	the Association and 	stated 	the
Association's 	reasons 	for not 	continuing 	to 	represent 	Cohen 	in
her letter dated November 18, 	1991. 	Furthermore, 	the amended
charge 	fails 	to allege 	how the withholding 	of 	these 	documents
caused actual prejudice 	in the prosecution of 	Cohen's 	grievances.
Dismissal, etc.
SF-CO-20-S
November 30, 	1992
Page 	2
Cohen alleges 	that 	the Association made 	an agreement with the
Prison prior to her Skelly hearing, 	gave her a brief 	summary of
it, 	made 	some minor changes 	to her benefit, 	and then never gave
her a 	copy of 	the agreement. 	She 	further alleges 	that 	Hayes
concealed the 	existence 	of 	a 	Skelly hearing 	results 	document.
These allegations 	also 	fails 	to 	demonstrate arbitrary,
discriminatory 	or bad faith 	conduct. 	The 	agreement 	to which
Cohen 	refers 	is 	presumably the 	agreement 	by the 	Prison not 	to
reject 	Cohen 	from probation but 	extend her 	90 	days 	in which 	to
find other employment with the 	State. 	Cohen does 	not 	deny 	that
she 	comprehended the substance of 	the agreement. 	It 	is unclear
that 	Cohen was 	actually prejudiced by 	the Association's 	failure
to provide 	her 	a 	copy of 	the 	agreement 	or 	the 	Skelly hearing
results. 	For example, 	the Skelly results 	letter dated June 22,
1990, 	appears 	to merely to memorialize 	the agreement 	to hold the
rejection from probation action in abeyance. 	In addition, 	the
allegations 	that 	Hayes 	willfully 	concealed 	these 	documents 	are
conclusory.
Cohen alleges 	Hayes' 	conduct 	in not 	returning 	telephone 	calls
near 	the 	time 	she 	resigned 	from the Association demonstrates 	a
breach of 	the 	duty of 	fair representation. 	If 	this 	conduct 	were
considered 	an 	independent violation 	it 	would be 	untimely 	since
Hayes 	left 	in May or June of 	1991 	and six months prior 	to 	the
filing of 	the original 	charge was November 8, 	1991. 	(Gov. 	Code,
sec. 	3514.5(a).) 	Hayes herself 	is not alleged to have ever
refused 	to process 	a grievance 	for Cohen. 	It was 	Canadian who
reviewed 	the 	pending 	grievances 	and decided not 	to pursue 	them.
Cohen alleges 	that 	Hayes 	forfeited 	other grievances 	which 	she
claimed 	to be 	handling. 	Cohen does 	not 	allege any specifics 	to
(
•

identify the nature of 	these grievances, 	even assuming Hayes'
conduct was more than negligent. 	Therefore, 	it 	cannot be
demonstrated 	that 	the Association 	forfeited a meritorious
grievance 	for arbitrary, 	discriminatory 	or bad 	faith reasons.
(United Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Dec. 	No.
258.) 	Cohen lists 	35 	sections 	of 	the MOU that 	she maintains
involved grievances 	which Hayes 	had 	led her 	to believe 	she was
prosecuting. 	The 	claim that 	Hayes 	agreed 	to 	represent 	Cohen on
these matters 	is 	unsupported by 	clear and 	concise 	evidence. 	The
notes 	of 	Hayes 	conversations with Cohen 	indicate 	the 	efforts 	of 	a
sympathetic 	and 	concerned 	representative 	attempting 	to 	answer all
of 	Cohen's 	questions 	and provide advice. 	They do not 	support 	a
conclusion 	that 	Hayes 	agreed to 	file 	a grievance 	on every matter
discussed. 	For example, 	in one comment, 	highlighted by Cohen,
Hayes 	states, 	"I 	think either Sacramento 	finds you a job or you
have 	a hell 	of 	a good case with EEOC."
Dismissal, etc.
SF-CO-20-S
November 30, 	1992
Page 3
1 Finally, 	these
allegations 	would appear 	to be untimely as 	well.
Cohen also alleges misconduct by Gladys 	Perry, 	the 	supervisor of
Canadian and Hayes, 	including claims 	that 	Perry delayed in
replacing Hayes, 	screened out Cohen's 	telephone calls, 	took at
face value 	Canadian's assessment 	of her 	case, 	and stated that 	she
did not 	believe 	deaf people 	should live 	in rural 	regions. 	None
of 	the 	allegations 	demonstrate 	that 	the 	decision not 	to pursue
Cohen's 	grievances, 	which was made and 	communicated to 	Cohen by
Canadian, 	was made by the Association 	for arbitrary,
discriminatory or bad faith reasons. 	There 	is 	insufficient
evidence 	to 	support 	an 	inference 	that 	Perry predisposed 	Canadian
to terminate Cohen's 	case.
Therefore, 	for the 	facts and reasons 	state above and those
contained in my October 28, 	1992 	letter, 	I am dismissing your
charge.
Right 	to Appeal
Pursuant 	to 	Public 	Employment Relations 	Board regulations, 	you
1 Even 	if 	this 	could be 	construed as 	a promise 	to provide
representation before 	the 	Equal 	Employment 	Opportunities
Commission, 	PERB would not have 	jurisdiction to pursue an alleged
failure 	to 	represent 	Cohen 	in the matter. 	(American Federation
of State. 	County and Municipal 	Employees 	(Moore) 	(1988) 	PERB Dec.
No. 	683-S.)
I

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 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:
Dismissal, etc.
SF-CO-20-S
November 30, 	1992
Page 	4
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	Code of
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"
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.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which 	to 	file a document
with 	the Board 	itself, 	must be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the document.
The 	request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
I

Dismissal, etc.
SF-CO-20-S
November 30, 	1992
Page 5
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT G. 	THOMPSON
Deputy General 	Counsel
DONN GINOZA	NOZA
Regional Attorne	Attorney y
Attachment
cc: 	Robert L. Mueller

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350	
PERD
October 28, 	1992
Sharon A. 	Cohen
Re: 	WARNING LETTER
Sharon E. 	Cohen v. 	California State Employees' 	Association
Unfair Practice Charge No. 	SF-CO-20-S
Dear Ms. Cohen:
The 	above-referenced unfair practice 	charge, 	filed on April 	8,
1992, 	alleges that the California State Employees' 	Association
(Association) 	breached 	its 	duty of 	fair 	representation to 	Sharon
E. 	Cohen. 	This 	conduct is 	alleged to violate Government Code
section 3519.5 	of the Ralph C. 	Dills Act 	(Dills Act).
Investigation of 	the charge 	revealed the 	following 	facts. 	Sharon
Cohen began employment with the 	State 	of 	California, 	Department
of Corrections 	(Department) 	on November 	1, 	1989 	as 	a probationary
Office Assistant 	(Typing) 	at Pelican Bay State Prison 	(Prison).
In June 	1990, 	the Department gave notice to Cohen that 	it
intended 	to 	reject her during her probationary period. 	A
"Skelly" 	hearing was conducted on June 22, 	1990. 	Cohen was
represented by 	Sherry Hayes 	of 	the Association. 	During the
hearing 	the parties 	agreed 	to 	have 	the 	decision to 	reject 	during
probation held 	in abeyance 	and to 	grant 	Cohen a 	90 	day unpaid
leave of absence to allow her time to 	seek other 	employment. 	If
she were 	successful 	in 	finding employment, 	the Department agreed
to provide 	the 	"necessary personal 	transactions." 	According to 	a
letter from the Department to Hayes, 	dated March 	12, 	1991, 	the
Department 	agreed to reevaluate 	her case 	at 	the 	expiration of 	the
90 	day period. 	The 	letter also 	stated that one 	of the reasons
for 	the 	Department's 	agreement 	to 	hold 	their 	rejection 	in
abeyance was 	due 	to the 	fact 	that Cohen was 	on Worker's
Compensation at the time of the Skelly hearing. 	Therefore, 	the
Department 	agreed 	to 	commence 	the 	90 	day period 	from the 	date 	her
Worker's Compensation benefits 	ceased on January 	11, 	1991. 	The
Department's 	concession on this 	point 	appears 	to have been at
least partially 	in response to 	a July 	30, 	1990 	letter 	from Hayes
to 	the 	Department 	asserting 	that 	Cohen had 	filed 	a 	legitimate
claim 	for 	Industrial 	Disability Leave, 	which 	the 	Personnel
Department 	had 	never processed.
On March 	15, 	1991, 	Hayes 	filed a grievance on behalf of Cohen
alleging violations 	of 	the 	Memorandum of 	Understanding 	(MOU) 	for
Unit 	4. 	The grievance alleged violations 	of Article 	5, 	section
I 	(

5.6(15) 	and 	5.6(6). 	Section 	5.6 	incorporates 	various 	Government
Code provisions 	on wages, 	hours 	and working conditions. 	The
grievance 	specified 	that 	the 	Department 	violated 	Government 	Code
section 	19991.4 under section 5.6(15), 	which states:
Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 2
Unpaid 	Leaves 	of Absence
19991.4 	Provides 	that 	absence 	of 	an
employee 	for work-incurred
compensable 	injury or disease 	is
considered 	as 	continuous 	service
for purposes 	of 	salary adjustments,
sick leave, 	vacation or seniority.
The 	grievance 	also 	specified that 	the Department violated
Government Code 	section 	19877 under section 5.6(6), 	which 	states:
Industrial 	Disability 	Leave 	(IDL)
19877 	Authorizes 	[Department 	of 	Personnel
Administration] 	to adopt rules
governing 	IDL.
The 	narrative portion of 	the 	grievance 	asserts 	that 	the
Department 	is 	required 	to 	restore 	Cohen to 	employment 	because 	she
was 	placed 	on 	Industrial 	Disability Leave 	in June 	1990 	and 	is 	now
physically 	ready and 	able 	to 	return to work.
By letter dated March 	15, 	1991, 	Hayes wrote to Charles Marshall,
Warden of the Prison, 	requesting that Cohen's 	leave of absence be
extended 	from April 	15, 	1991 	until 	the grievance was 	resolved.
The 	Department 	in an undated 	letter 	extended 	the 	leave 	of 	absence
to May 	15, 	1991.
On March 27, 	1991, 	the Prison responded to the grievance
asserting that 	it was 	not 	required 	to 	restore Cohen to her
position because 	it 	could 	not 	reasonably 	accommodate 	Cohen's
physical disability, 	a hearing 	impairment, 	following denials 	of
the 	Prison's 	request 	for purchase of 	a TDD machine 	and 	its 	offer
of vocational 	rehabilitation, 	which 	it asserts 	Cohen did not
accept. 	Cohen disputes 	this 	assertion. 	The Prison further
asserted 	that 	it was 	not 	required to 	restore Cohen to work
following 	an 	Industrial 	Disability 	Leave 	because 	she 	did 	not
fulfill 	the 	requirement 	to participate 	in vocational
rehabilitation. 	Cohen also disputes 	this 	assertion. 	The Prison
also 	contended 	that 	Government 	Code 	section 	19991.4 	requires
placement 	in or 	assistance 	in 	locating alternative 	employment 	if
the 	employee 	cannot 	return to work due 	to 	a permanent disability,
only 	if 	the permanent disability was 	due 	to a 	compensable
(

permanent 	disabling 	injury. 	The 	Prison asserted 	that Cohen's
stress 	disability was 	not 	found by 	the 	State 	Compensation
Insurance 	Fund 	to 	be permanent 	and 	that 	her hearing disability
existed prior to her employment with the Prison. 	Finally, 	the
Prison 	claimed 	that 	it would not 	restore Cohen's 	back pay because
it would violate 	the agreement 	reached as 	a result 	of 	the 	June
30, 	1990 Skelly hearing.
Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 3
On May 	14, 	1991, 	Hayes requested an additional 	extension to June
17, 	1991 	of Cohen's 	leave of absence. 	Cohen alleges that the
Department terminated her leave of absence on June 	17, 	1991, 	but
failed 	to notify her of this until October 	1991. 	Sometime 	in May
1991, 	Hayes 	left 	employment with the Association and 	failed to
notify 	Cohen of 	her resignation. 	Cohen discovered this 	herself
in July 	1991. 	During this period, 	Hayes 	failed to return phone
calls 	or answer letters. 	Cohen contacted Hayes' 	replacement,
Nancy Canadian 	in September 	1991 	but was 	not 	able 	to meet with
her until November 	1991. 	Cohen had two meetings with Canadian.
By letter dated November 	18, 	1991, 	Canadian recounts her meetings
with 	Cohen and 	states 	that 	Cohen 	submitted 	a 	request with 	the
Department 	to 	set 	aside her resignation. 	The 	letter 	states 	that
Cohen voluntarily 	resigned 	in response 	to 	an offer by 	the
Department 	because 	her 	time 	for 	finding 	alternative 	employment
had 	expired. 	According to Canadian, 	Cohen accepted 	the 	offer
rather 	than 	suffer a rejection 	from probation, 	which the
Department had held 	in abeyance 	since July 	1990. 	Canadian
asserts 	that 	she 	advised Cohen that 	if 	she 	sought to 	rescind her
resignation, 	the 	Department would reject her 	from probation. 	For
further assistance, 	she referred Cohen to 	"the outside attorney
who 	is 	handling 	[her] 	discrimination 	complaint 	and tort 	claim
against 	[the Prison]" 	for any questions 	concerning her 	"appeal"
of 	the 	resignation. 	Canadian 	states 	that 	she 	informed Cohen that
the 	Department would not 	grant 	any 	further 	extensions 	of 	her
leave 	of 	absence.
The 	charge 	contains 	numerous 	allegations which are as 	follows.
The 	charge 	alleges 	that 	the Association 	failed 	to 	file 	grievances
and 	appeals 	which 	it asserted 	it had, 	and defaulted on those 	it
had 	filed, 	causing the Department to generate a 	"resignation"
notice. 	Hayes 	told Cohen that 	she had 	filed an appeal with 	the
State Personnel 	Board, 	when in fact 	she had not. 	The Association
agreed 	to 	represent 	Cohen 	in matters 	involving discrimination due
to disability, 	wrongful termination, 	rejection on probation,
supervisory harassment, 	medical 	leave of absence, 	Industrial
Disability Leave, 	and other matters. 	The Association failed to
advise 	her 	that 	some of 	these matters were 	not 	covered by the
grievance procedure 	and 	falsely 	led 	her 	to 	believe 	that 	they
were. 	The Association 	failed to advise her of 	all 	of her rights
(

concerning 	these 	matters 	and 	other matters 	such 	as 	Unemployment
Compensation, 	and 	failed to advise her of procedural 	requirements
of 	the 	State 	Compensation 	Insurance 	Fund 	and 	Department 	of 	Fair
Employment 	and Housing. 	The Association 	inadequately
investigated the 	facts 	of 	her 	case 	and hindered her ability to 	do
so 	independently. 	The Association withheld and/or 	concealed
documentation needed by Cohen. 	The Association 	failed 	to
adequately 	inform Cohen of 	the 	status 	of 	her case. 	The
Association refused to allow Cohen to use 	its 	appeal 	forms 	to
challenge 	the 	resignation letter. 	The Association promised to
find Cohen a private attorney to assist her and 	failed to do 	so.
The Association 	failed 	to 	inform her 	that 	it would 	not pursue 	her
case 	further. 	The Association engaged 	in collusion with a
private 	attorney who had 	represented 	her prior 	to November 	1991.
That attorney, 	whom Cohen located, 	failed to advise her of his
work for the Association and, 	after abandoning her, 	denied that
he 	ever 	represented 	her.
Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 	4
Based 	on the 	facts 	stated 	above 	the 	charge 	as 	presently written
fails 	to 	state 	a prima 	facie violation of 	the 	Dills Act 	for the
reasons 	that 	follow.
In order to 	state 	a prima 	facie 	case 	involving 	a 	breach of 	the
duty of 	fair representation, 	facts 	must be alleged 	in the 	charge
indicating 	how and 	in what 	manner 	the Association 	refused 	to
process 	a meritorious 	grievance 	for 	arbitrary, 	discriminatory 	or
bad 	faith reasons. 	In United Teachers 	of 	Los Angeles 	(Collins)
(1982) 	PERB Dec. 	No. 	258, 	the PERB stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a 	grievance does 	not
constitute a breach of the union's duty.
A union may 	exercise 	its 	discretion 	to
determine how far to pursue 	a 	grievance 	on
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
(

Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 5
. 	. 	. 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.
(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) PERB Dec. No. 	332, citing
Rocklin Teachers 	Professional 	Association
(Romero) 	(1980) PERB Dec. No. 	124.)
The 	charge 	fails 	to allege 	specific 	facts 	from which it can be
concluded 	that 	the Association 	failed 	to 	proceed with 	a
meritorious 	grievance 	for arbitrary, 	discriminatory or bad 	faith
reasons. 	The mere 	fact that 	the Association 	filed Cohen's 	March
15, 	1991 	grievance does not mean that 	it was 	required to proceed
with 	it 	through all 	stages 	of 	the grievance procedure.
Grievances 	may 	and 	often are 	filed 	for 	tactical 	reasons 	and
because the risk in filing a grievance 	is minimal. 	However, 	a
union may decide 	to withdraw a grievance 	later 	in the process 	if,
for 	example, 	facts 	come to 	light which cast doubt on the merits
of 	the 	grievance 	or 	if 	it 	is 	determined 	that 	the 	interpretation
of 	the 	collective 	bargaining 	agreement 	required 	to 	sustain 	the
grievance would 	establish an unwanted precedent. 	In this 	case,
according to Canadian's November 	18, 	1991 	letter, 	the Association
determined 	that 	proceeding with 	the 	grievance would 	be 	fruitless
because 	it 	believed 	that 	reneging 	on the 	original 	agreement 	to
extend 	the 	probationary period would 	result 	in 	the 	Department
proceeding 	to 	reject Cohen on probation. 	In the 	absence 	of 	facts
showing that 	its 	decision was made 	for 	arbitrary, 	discriminatory
or bad 	faith reasons, 	this 	reassessment 	of 	the merits 	of 	the
grievance 	does 	not 	establish 	a violation of 	the duty of 	fair
representation. 	(United Teachers 	of 	Los Angeles 	(Collins),
supra, 	PERB Dec. 	No. 	258.)
-
-
(
Although 	it would 	appear 	that 	Hayes 	abandoned Cohen when 	she 	left
employment with the Association, 	her departure 	is 	not 	shown to
have 	caused Cohen to 	forfeit any of her 	grievances 	due 	to 	the
lapse of time or other circumstances. 	(See Ruzika v. 	General
Motors Corp. 523 F.2d 306 	[90 LRRM 2497] 	(6th Cir. 	1975);
McKelvey, 	The Changing Law of Fair Representation 	(1985) 	pp. 	158-
163 	[forfeiture 	of 	grievance 	through procedural 	default 	as
arbitrary and perfunctory].) 	While Hayes' 	failure to notify
Cohen might be 	considered 	ill-advised, 	it 	amounts 	to negligence
at worst. 	(United Teachers of Los Angeles 	(Collins), 	supra, 	PERB
Dec. No. 	258.)
------ ----- 	- 	-

Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 6
Although 	the 	charge 	alleges 	that 	the Association 	failed 	to 	file
or 	otherwise 	forfeited 	grievances 	in addition 	to 	the 	one 	filed by
the Association, 	there are no 	specific 	facts 	supporting this
allegation.
The 	charge 	also 	alleges 	that 	the Association 	failed 	to 	advise
Cohen that 	several 	of her disputes were 	not 	covered by the MOU.
There 	is 	no duty under the Dills Act requiring an 	exclusive
representative 	to 	advise 	accurately 	an 	employee 	concerning 	rights
and duties pertaining to the 	exercise of 	legal 	remedies 	outside
of 	the 	collective bargaining agreement. 	While 	there may have
been 	extra-contractual 	legal 	remedies 	available 	to 	Cohen through
the 	State Personnel Board, 	State Compensation Insurance Fund, 	or
Department 	of 	Fair Employment 	and Housing, 	the Association owes
no 	duty 	of 	fair 	representation 	in regard 	to 	these potential
avenues 	of 	relief. 	(California 	Faculty Association 	(Pomerantsey)
(1988) 	PERB Dec. 	No. 	698-H.) 	Even assuming facts were alleged to
demonstrate 	that 	the 	Association promised 	to 	undertake
representation 	in these 	arenas, 	and then negligently 	forfeited
Cohen's 	rights, 	such conduct would not be within PERB's
jurisdiction, 	but her recourse, 	if any, 	would be in the State
courts. 	(See Lane v. 	I.U.O.E Stationary Engineers 	(1989) 	212
Cal.App.3d 	164 	[260 Cal.Rptr. 	634].)
The 	charge 	also 	alleges 	that 	the Association hindered Cohen's
ability 	to 	investigate 	facts 	or marshal 	documentation 	in 	support
of 	her grievance, 	failed to 	inform her of 	the 	status 	of her case,
breached 	its 	promise to 	find her a private attorney, 	and engaged
in 	collusion with 	a private attorney. 	The 	charge 	lacks
sufficient 	facts 	demonstrating how the Association's 	conduct 	in
this 	vein actually 	caused her to 	forfeit 	a meritorious 	grievance.
(Ruzika v. 	General Motors Corp.. 	supra, 	523 F.2d 306; 	McKelvey,
The Changing Law of Fair Representation, 	supra, 	pp. 	158-163
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 any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	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 must be 	signed under penalty of perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served 	on the 	respondent 	and
the 	original proof 	of 	service must be 	filed with 	PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or withdrawal 	from 	you before
(

r
Warning 	Letter
SF-CO-20-S
October 28, 	1992
Page 7
November 5, 	1992. 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(415) 	557-1350.
Sincerely,
DONN 	GINOZA
Regional 	Attorney