American Federation of State, County and Municipal Employees (Shek) (PERB 1173H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN SHEK,
Charging 	Party,
v.
AMERICAN 	FEDERATION OF 	STATE,
COUNTY 	& MUNICIPAL EMPLOYEES,
COUNCIL 57,
Respondent.
Case No. 	SF-CO-46-H
PERB Decision No. 	1173-H
October 31, 	1996
Appearances: 	John Shek, 	on his own behalf; 	Beeson, 	Tayer &
Bodine by Joseph R. 	Colton, 	Attorney, 	for American Federation of
State, 	County & Municipal Employees, 	Council 57.
Before Garcia, 	Johnson, 	and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of John Shek's 	(Shek) 	unfair practice charge. 	As
amended, 	the 	charge alleged that 	the American 	Federation of
State, 	County & Municipal Employees, 	Council 	57 	(Federation)
breached 	the 	duty 	of 	fair 	representation mandated by 	section 	3578
of 	the Higher Education Employer-Employee 	Relations Act 	(HEERA)
and thereby violated section 3571.1(b) 	of 	the HEERA,1 when 	it
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government 	Code. 	Section 3571.1 provides, 	in relevant
part:
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failed to adequately pursue 	grievances 	against 	the 	University of
California at 	San 	Francisco.
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.
Section 3578 provides:
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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including Shek's 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	Shek's appeal, 	and the
Federation's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-46-H is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
22

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) 439-6940
August 5, 199 6
John Shek
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
John Shek v. 	American Federation of State. 	County and
Municipal Employees. 	Council 57
Unfair Practice Charge No. 	SF-C0-46-H
Dear Mr. Shek:
The above-referenced unfair practice charge, 	filed on March 27,
1996 and amended on July 22, 	1996, 	alleges that the American
Federation of State, 	County and Municipal Employees, 	Council 57
(AFSCME) 	failed to fairly represent John Shek with respect 	to his
termination from employment 	from the University of 	California,
San Francisco 	(University), 	and with respect to other matters.
This 	conduct 	is alleged to violate Government Code section 3571.1
of the Higher Education Employer-Employee Relations Act 	(HEERA).
I indicated to you, 	in my attached letter dated June 20, 	1996,
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 June
28, 	1996, 	the charge would be dismissed. 	After two extensions of
time to file an amended charge were granted, 	an amended charge
was filed on July 22, 	1996.
The amended charge alleges that AFSCME's 	failure to arbitrate the
November 1993 	grievance involving the assault by the patient
escort 	is not barred by the six-month statute of 	limitations
because, 	despite having learned of the forfeiture of his
arbitration on July 5, 	1995, 	Shek "tried to work with the Union
from July 10, 	1995 to December 17, 	1995." 	Shek claims that he
did not discover that AFSCME breached its duty of 	fair
representation until December 18, 	1995, 	when he filed a civil
suit alleging the breach. 	He further claims that processing of
the civil suit tolled HEERA's statute of limitations.
Shek forfeited arbitration of 	the grievance 	involving the assault
because he chose not 	to appear before AFSCME's review panel 	to
__ -_-_--

present 	argument 	for why 	the 	grievance 	should be 	arbitrated.
AFSCME's policy 	is 	that 	appearance before 	this panel 	is 	required
in all 	cases. 	Shek was 	informed 	that AFSCME would not 	arbitrate
the grievance 	on July 5, 	1996. 	The 	conclusory nature of 	the
claim that 	Shek 	did not 	discover 	the breach of 	the 	duty 	of 	fair
representation until much later, 	in light 	of 	these 	circumstances,
provides 	an 	insufficient 	basis 	on which to 	conclude 	that 	the
statute 	of 	limitations period 	did not 	commence until 	December 	17,
1995. 	(Regents 	of 	the University of California 	(1983) 	PERB Dec.
No. 	359-H 	[period 	commences 	when 	charging party 	reasonably 	should
have known of 	the 	conduct 	underlying 	the unfair practice].)
In addition, 	Shek's prosecution of 	a 	civil 	suit 	involving 	the
same 	claim contained 	in 	this 	unfair practice 	charge 	does 	not 	toll
the 	statute 	of 	limitations. 	(Regents 	of 	the University of
California 	(1990) 	PERB Dec. 	No. 	826-H.)
Dismissal 	Letter
SF-CO-46-H
August 5, 	1996
Page 2
The 	amended 	charge 	further asserts 	that 	the undersigned's 	June
20, 	1996 	letter 	fails 	to properly assess 	the allegations 	of 	the
charge and misses 	the 	core 	of 	the 	case. 	Although Shek's 	argument
in this 	regard 	could be better explained, 	the undersigned
understands 	it 	to be 	essentially as 	follows. 	The 	charge 	focuses
on the most 	recent disputes 	involving Shek's June 	30, 	1995
placement 	on 	investigative 	leave 	without 	pay and his 	subsequent
termination based on 	the 	same 	underlying 	circumstances. 	Shek has
claimed that 	the 	termination was 	in 	retaliation 	for his 	complaint
to 	the 	California Department 	of 	Health Services 	regarding 	the
University's 	improper X-ray procedures. 	Shek claims 	here 	that
AFSCME 	has 	demonstrated hostility 	towards 	him with 	regard 	to
these matters 	as 	demonstrated by AFSCME's 	(1) 	failure 	to 	follow
through on his 	earlier grievance 	involving the assault, 	(2)
unreasonable 	delay in processing his 	latest 	grievance, 	(3)
refusal 	to 	respond 	to his 	request 	that 	it 	require 	the
University's production of patient daily logs, 	and 	(4) 	lack of
good 	faith measured by the 	concept 	of 	the 	duty 	to bargain 	in good
faith.
AFSCME's 	failure 	to 	follow through 	on his 	grievance 	involving 	the
assault 	fails 	to 	support 	Shek's 	claim of 	hostility. 	AFSCME
processed 	this 	grievance 	through 	the 	steps 	leading up 	to
arbitration. 	As noted in the undersigned's June 20, 	1996 	letter,
Shek 	refused 	to present 	the merits 	of 	his 	case 	for arbitration
before AFSCME's 	review panel 	(thereby 	forfeiting 	his 	case)
because 	he 	assumed 	that 	the panel 	had already decided against
him. 	In light 	of 	this, 	little 	or no 	inference 	can be drawn of
AFSCME's 	personal 	animus 	toward 	Shek.

Dismissal 	Letter
SF-CO-46-H
August 5, 	1996
Page 3
AFSCME's delay in processing his 	latest grievance has not been
shown to be unreasonable. 	Shek's latest grievance was 	filed on
November 27, 	1995. 	AFSCME selected an arbitrator on May 17,
1996, 	although it has not yet made a decision whether to proceed
with the case. 	AFSCME gave notice to Shek of his right to appear
before the review panel on May 9, 	1996. 	A decision has not yet
made as to whether or not the case will be taken to arbitration.1
Shek contends 	that his arbitration must be held with 180 days
according to 	the AFSCME-University memorandum of understanding
(MOU). 	However, 	he has not provided the specific language of the
MOU supporting this 	contention. 	AFSCME requested arbitration
within 180 days and it has not been alleged that AFSCME has
forfeited the grievance due to a lack of 	timely processing.
Finally, 	the concepts of the statutory duty to bargain in good
faith and to provide information to the exclusive representative
do not apply to an individual 	employee making a claim of a breach
of the duty of fair representation. 	(See, 	e.g., 	Oxnard School
District 	(1988) 	PERB Dec. No. 	667.) 	Therefore, AFSCME's failure
to provide Shek with patient logs 	that may support his grievance
or its claimed lack of diligence in processing his grievance, 	as
evidenced by its 	"merely going through the motions" 	or engaging
in conduct analogous to surface bargaining, 	do not serve to
demonstrate that AFSCME has acted in an 	"arbitrary,
discriminatory, 	or bad faith" manner towards Shek. 	(Rocklin
Teachers Professional Association 	(1980) 	PERB Dec. No. 	124.)
Therefore, 	I am dismissing the charge based on the facts and
reasons set forth above and in my June 20, 	1996 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code 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
1 In a letter to the undersigned from AFSCME's attorney, 	Joe
Colton, 	dated July 29, 	1996, 	AFSCME indicates that Shek has been
informed that 	the 	review panel hearing has been rescheduled to
August 17, 	1996 and, 	by copying the letter to Shek, 	urges him to
attend.

Dismissal 	Letter
SF-C0-46-H
August 5, 199 6
Page 4
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 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

dismissal will become 	final when the time limits have expired.
Dismissal 	Letter
SF-C0-46-H
August 5, 199 6
Page 5
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By DONN GINOZA
Regional Attorney
Attachment
cc: 	Joe Colton

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(41 5) 439-6940
June 20, 1996
John Shek
Re: 	WARNING LETTER
John Shek v. 	American Federation of State, 	County and
Municipal Employees, 	Council 57
Unfair Practice Charge No. 	SF-CO-46-H
Dear Mr. Shek:
The above-referenced unfair practice charge, 	filed on March 27,
1996, 	alleges that the American Federation of State, 	County and
Municipal Employees, 	Council 57 	(AFSCME) 	failed to fairly
represent John Shek with respect 	to his 	termination from
employment 	from the University of California at San Francisco
(University) 	as well as other matters. 	This conduct is alleged
to violate Government Code section 3571.1 of the Higher Education
Employer-Employee Relations Act 	(HEERA).
Investigation of 	the 	charge revealed the 	following. 	Shek was
employed by the University as a Senior Radiologic Technologist
for over eight years. 	He had received consistently good
performance reviews. 	Shek was terminated on or about October 26,
1995.
On or about November 10, 	1993, 	during his break, 	Shek was
assaulted by Christopher Busby, 	a patient escort. 	Shek received
multiple contusions and lacerations. 	He filed a grievance over
the matter and was 	initially represented by AFSCME. 	The
University concluded that 	there was mutual provocation and took
some unspecified disciplinary action against Shek as a result of
the incident. 	For this reason, 	the University denied Shek's
claim for Worker's 	Compensation benefits. 	Shek requested that
AFSCME meet with the University regarding 	the proposed
discipline. 	AFSCME did not respond.
In an unrelated matter, 	Shek wrote to AFSCME in December 1993
complaining that he had not been provided a retroactive 	5% pay
increase 	following his 	taking and passing a 	"fluoro" 	test
required by the University. 	AFSCME did not 	follow through on his
request.
As a result of this matter and AFSCME's 	lack of response
regarding the assault, 	Shek became dissatisfied with AFSCME's
representation and informed AFSCME that 	in the 	future he would be
represented in this matter by his private attorney, 	Paul Davis.
__ 	-_-_--

Warning 	Letter
SF-C0-46-H
June 20, 	1996
Page 2
Davis 	complained to the University that a police report 	of 	the
assault 	incident 	indicated a possible 	criminal history for Busby
but the history was not provided to Shek. 	Through Davis, 	Shek
also claimed he had been threatened by Busby in the past. 	In a
letter dated December 29, 	1993, 	Davis demanded that Busby be
terminated. 	The University refused. 	Around the same time, 	Shek
requested that his 	shift be changed from the night 	to the day so
that he could avoid contact with Busby. 	He made two such
requests to the University in December 1993.
In a letter dated January 3, 	1994, 	Shek requested that AFSCME
provide assistance with respect to the University's refusal 	to
change his shift. 	Apparently because AFSCME's response was 	too
slow, 	Shek utilized Davis to obtain a transfer to another shift.
However, 	as a result of the change, 	Shek suffered a $2.00 per
hour reduction in pay.
Davis 	represented Shek in the processing of 	the grievance
involving the assault. 	A Step 2.meeting was 	scheduled for May 9,
1994. 	Davis demanded, 	for a second time, 	the presence of a
Campus Police officer at the meeting. 	At a Step 3 meeting, 	the
University claimed that 	the grievance had not been appealed on a
timely basis. 	Davis responded that the appeal was timely and
that 	the University had been at 	fault 	in sending its 	response to
the wrong address.
AFSCME elevated the grievance 	involving the assault 	to
arbitration by letter dated August 8, 	1994, 	but did so at this
time only to preserve Shek's timelines. 	AFSCME informed Davis
that 	the grievance would have to be reviewed by its Arbitration
Appeals Panel. 	In November 1994, 	Shek notified AFSCME that he
had chosen to have Davis 	represent him in the arbitration and
requested that the files be forwarded to Davis. 	In January 1995,
Davis wrote to AFSCME responding to a request for information
about the case. 	Davis also indicated that he was unable to
supply AFSCME with an arbitration date because of 	the
University's lack of 	cooperation.
By letter dated March 9, 	1995, 	Shek indicated that he was
refusing to attend a meeting with AFSCME 	to present 	reasons 	for
pursuing his grievance because he believed the outcome 	regarding
whether to arbitrate the matter had been predetermined. 	Shek
complained that he had been waiting 15 months 	for a decision on
whether AFSCME would arbitrate 	the grievance and asserted that 	it
was pointless 	for him to explain again why the case should be
pursued. 	Shek alleges 	that 	the Memorandum of Understanding 	(MOU)
between the University and AFSCME requires 	that grievances be
arbitrated within 180 days.

Warning Letter
SF-CO-46-H
June 20, 1996
Page 3
By letter dated May 8, 	1995, 	Shek wrote to AFSCME complaining
about being denied pay raises while others without 	significant
experience were being paid nearly as much as him. 	AFSCME did not
respond. 	He would later claim that 	the University discriminated
against him because he is Asian.
On or about June 22, 	1995, 	Shek reported to work as usual. 	At
that 	time he prepared to perform his 	customary assignment of
adult morning X-rays using a portable unit. 	Patient X-ray orders
are submitted by physicians on forms known as requisitions. 	Shek
proceeded to the 	station where he picked up his morning
requisitions for chest X-rays. 	On this occasion, 	however, 	a
physician 	instructed him that 	he 	needed an X-ray performed and
developed immediately. 	When Shek completed this priority job, 	he
could find no one 	to deliver the 	film for developing because 	the
nurses were in the process of changing shifts. 	Therefore, 	Shek
delivered the 	film himself and returned to deliver the prints 	to
the physician who had requested it. 	As he was attempting to
complete his normal morning run, 	he encountered a further delay
using the elevators. 	While detouring, 	he heard his supervisor,
Jim Buescher paging him over the 	intercom. 	Shek went 	to a
telephone but was unsuccessful 	reaching Buescher because 	the 	line
was busy. 	Since being paged in this manner is highly unusual,
Shek believed it was critical that he get 	in contact with
Buescher to respond to the page. 	Consequently, 	Shek decided to
use his pager to leave a message with Buescher to call 	the
telephone Shek was using. 	When Buescher did not return the page,
Shek paged him again. 	Still receiving no response, 	Shek went
back to his department.
Before reaching Buescher's office, 	he realized he had left his
requisitions and stopped to make a call 	to the receptionist at
the desk where he had left them. 	While he was on the telephone,
Buescher came out of his office and ordered Shek to drop
everything and come talk to him. 	Shek pleaded with Buescher to
give him five minutes to collect his films. 	Buescher insisted
that 	they talk. 	Buescher proceeded to repeatedly admonish Shek
for paging him since it was against department policy. 	Shek was
previously unaware of 	such a policy.
The following week, 	on June 29, 	Shek again reported to work in
the morning to perform X-rays with the portable unit. 	He
discovered that there were no requisitions at the 	front desk,
which was unusual. 	Along with the receptionist, 	Shek attempted
to find the resident physician, 	without success. 	Then the
receptionist 	remembered that 	there was a log sheet 	listing the
patients needing X-rays. 	Using this 	information, 	Shek performed
the X-rays.

Warning Letter
SF-C0-46-H
June 20, 1996
Page 4
When Shek returned to develop the films, 	Buescher saw him and
asked Shek where he had been. 	Shek responded that he had just
completed his morning X-rays. 	Buescher accused Shek of 	lying.
Buescher said he had possession of 	the requisitions and accused
him of X-raying patients without proper orders. 	Shek then
explained which patients 	he had X-rayed and 	insisted they were
the correct ones. 	Buescher then screamed at Shek and again
accused him of 	lying. 	Buescher telephoned a secretary attempting
to confirm his suspicions. 	The secretary was uncooperative.
Shek then was able to demonstrate that 	the patients he had
X-rayed matched the 	requisitions which Buescher had. 	Shek also
spoke with a hospital aide, 	Lenette, 	who confirmed Shek's story.
Buescher later attempted to solicit a statement 	from Lenette 	to
discredit Shek, 	but she refused to cooperate.
Later that day, 	Buescher told Shek that Parrish Scarboro,
Technical Director of the Department of Radiology, 	wanted to see
him. 	Scarboro asked Shek of his version of what happened on June
22. 	Shek felt uncomfortable with what he considered a vague
accusation and asked that Buescher be required to put 	the
information in writing. 	Shek then left to continue his work.
Sometime later, 	Buescher instructed Shek to return to see
Scarboro a second time. 	During this second discussion, 	Shek
leveled a number of accusations at Buescher because of what he
perceived as Buescher's unwarranted persecution of him. 	Shek
claimed that Buescher would schedule his 	lunch hour at 	the end of
the day so he could leave early to go to St. 	Luke Hospital where
he had another job. 	Shek also claimed that Buescher would call
in sick, 	but report to St. 	Luke's to work, 	and that Buescher also
scheduled himself 	for unnecessary overtime.
The next day, 	June 30, 	1995, 	Shek reported for work. 	As he went
to pick up his requisitions, 	he saw Buescher taking them. 	Shek
asked for them. 	Buescher refused. 	Shek told Buescher that 	the
requisitions were for Shek's patients not Buescher's. 	Buescher
responded that he was 	the supervisor. 	Shek told him it was
before his official duty time and that he was not under
Buescher's 	supervision until 	then. 	Shek reached for the
requisitions but Buescher slapped his hand away. 	Shek proceeded
to complete his morning rounds using labels assigned the
patients. 	These labels 	identified which patients needed X-rays
but did not 	indicate any special 	instructions, 	as would appear on
the requisitions. 	For example, 	although the X-rays Shek
performed were usually chest X-rays, 	on occasion they would be
for other parts, 	or, 	the requisition might indicate the need for
a greater dosage than normal. 	Later that day, 	Scarboro ordered
Shek home and placed him on an investigative leave. 	Shek claims
that 	Buescher ordered him to perform the X-rays without 	the
requisitions and only the labels. 	This, 	he claims, 	constituted

an abnormally hazardous practice 	in violation of State law
because if the patients did not 	in fact need chest X-rays 	it
would have been necessary to repeat an X-ray of 	those patients 	to
get 	the correct part of the body,
Warning Letter
SF-C0-46-H
June 2 0, 1996
Page 5
Shek would later report 	this 	incident 	to 	the Radiation Health
Branch of the California Department of Health Services.
Following discovery of this report, 	the University terminated
him. 	The University responded to the Department of Health
Services 	indicating that 	Buescher did make a practice of giving
labels 	to the responsible technologist doing portable procedures,
instead of the requisitions, 	but that Buescher would indicate on
the label whether an X-ray other than of 	the chest was ordered.
The University claimed that 	there was no evidence of procedures
having to be repeated, 	although it acknowledged the risk of error
in the transfer of information from the requisitions. 	The
University reported that 	the aberrant practice was 	stopped.
Shek alleges 	that under University policy, 	investigative leaves
may be for no longer than 15 days. 	He requested that AFSCME 	file
a grievance over this on July 26, 	1995. 	With the help of
Assemblyman John Burton's office, 	Shek was 	returned to work on
August 7, 	1995, 	but was denied all of the wages he claims were
due him. 	AFSCME would later tell him that he could be made whole
if he prevailed in a grievance described immediately below.
On or about October 26, 	1995, 	the University terminated Shek.
Shek would claim, 	among other things, 	that the termination was in
retaliation for his 	filing a complaint with the Department 	of
Health Services. 	Shek was represented by AFSCME in a Skelly
hearing with the University. 	On or about November 27, 	1995,
AFSCME 	filed a grievance on Shek's behalf 	challenging the
termination. 	The grievance alleges that 	the termination was
without just cause in violation of article 8, 	section A.1 of 	the
MOU. 	Shek alleges that the grievance was not filed within 3 0
days as required by the MOU.
AFSCME attended a step 2 meeting on the grievance, 	without a
successful resolution. 	The grievance was appealed to step 3 	and
again the University denied the grievance. 	Thereafter, 	AFSCME
filed an appeal 	requesting arbitration. 	Shek does not allege
1 The MOU does 	state 	that grievances must be filed 	"no later
than thirty 	(30) 	calendar days 	from the date the grievant or the
-Union first became aware of, 	or should have become aware of with
the exercise of reasonable diligence, 	the alleged violation of
the Agreement." 	(Emphasis added.)

Warning 	Letter
SF-C0-46-H
June 20, 1996
Page 6
that 	the University has objected to this grievance on grounds of
lack of timeliness.
On or about December 18, 	1995, 	Shek filed a civil suit against
AFSCME 	in the San Francisco County Superior Court alleging a
breach of the collective bargaining agreement, 	breach of the duty
of fair representation, 	and several other theories. 	On or about
December 26, 	1995, 	Shek filed a civil suit against the University
in the same court challenging his termination.
In a letter to Shek, 	dated May 9, 	1996, 	AFSCME informed Shek of
his right 	to appear before AFSCME's Executive Board on June 7,
1996 	to request that 	the matter proceed to arbitration. 	AFSCME
states 	in the letter that 	in all 	cases the employee must make a
presentation to the Executive Board before AFSCME commits to
arbitrating a grievance.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of 	the HEERA for the
reasons that follow.
Government Code section 3563.2(a) 	states that the Public
Employment Relations Board 	(PERB) 	"shall not 	. 	. 	. 	issue a
complaint 	in respect of any charge based upon an alleged unfair
practice occurring more than six months prior to the filing of
the 	charge." 	PERB has held that 	the six month period commences
to run when the charging party knew or should have known of 	the
conduct giving rise to the alleged unfair practice. 	(Regents of
the University of California 	(1983) 	PERB Dec. No. 	359-H.) 	The
charge was filed on March 27, 	1996. 	In order to be timely,
alleged violations must have occurred on or after September 27,
1995.
The claim that AFSCME breached its duty of 	fair representation
with respect to the matters 	involving the assault, 	denial of pay
raises, 	denial of shift change, 	and the extended involuntary
investigative 	leave are untimely because Shek knew or should have
known of 	the 	conduct giving rise to the alleged unfair practice
prior to September 27, 	1996.
The only allegation in the charge involving a breach of the duty
of fair representation that 	is 	timely concerns Shek's grievance
challenging the University's 	termination of his employment.
PERB has held that a breach of 	the duty of 	fair representation
occurs when a union's 	conduct 	toward a member of 	the bargaining
unit is arbitrary, 	discriminatory, 	or in bad faith. 	(Rocklin
Teachers Professional Association 	(1980) 	PERB Dec. No. 	124.) 	In

the context of grievance handling, 	PERB has defined the scope of .
the duty as 	follow:
Warning 	Letter
SF-C0-46-H
June 20, 1996
Page 7
. 	. 	. 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.
[Citations omitted.]
A union may exercise 	its discretion to
determine how far to pursue a grievance 	in
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or
process a grievance 	in a perfunctory fashion.
A union is also not 	required to process an
employee's grievance if the chances for
success are minimal. 	[Citations omitted.]
(United Teachers 	- 	Los Angeles 	(Collins)
(1982) PERB Dec. No. 258.)
In addition, 	in order to show a prima facie violation involving a
breach of the duty of fair representation, 	the charging party
must present 	facts which would justify a finding that 	the union
acted without a rational basis or in a way that 	is devoid of
honest judgment. 	(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) PERB Dec. No. 332.)
AFSCME 	filed a grievance on Shek's behalf 	challenging his
termination, 	processed it through the pre-arbitration steps, 	and
it appealed the case to arbitration. 	AFSCME has a practice of
requiring all 	employees 	seeking arbitration to make a
presentation to its Executive Board. 	The charge does not allege
that AFSCME has made any decision not to arbitrate the grievance.
The facts alleged in the charge, 	as well as the supplementary
allegations supplied by Shek, 	fail 	to demonstrate that AFSCME has
acted in an arbitrary, 	discriminatory, 	or bad faith manner with
respect 	to the processing of Shek's grievance challenging his
termination.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this 	letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the 	charging party. 	The
amended charge must 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 June 28, 1996, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Warning Letter
SF-C0-46-H
June 20, 1996
Page 8
Sincerely,
DONN GINOZA
Regional Attorney