California State Employees Association (O'Connell) (PERB 0596H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARTHA 	O'CONNELL,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Respondent.
Case No. 	SF-CO-14-H
PERB Decision No. 	596-H
December 16, 	1986
Appearance; 	Martha Maire 	O'Connell, 	on her 	own behalf.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	appeal 	by Martha
O'Connell, 	the 	charging party, 	of 	the decision of 	the Board's
regional 	attorney 	to 	dismiss 	the 	instant 	unfair practice 	charge
filed 	against 	the 	California 	State 	Employees' 	Association 	(CSEA).
FACTUAL 	ALLEGATIONS
On February 28, 	1986, 	O'Connell 	filed an unfair practice
charge 	claiming 	that 	CSEA violated 	section 	3571.l(e) 	of 	the 	Higher
Education 	Employer-Employee 	Relations Act 	(HEERA).11 	In 	general,
Charging 	Party's 	allegations 	refer 	to 	CSEA's 	failure 	to 	fund 	the
travel 	expenses 	incurred 	by 	individual 	grievants 	wishing 	to 	attend
1HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.
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the 	fourth-level 	grievance 	meetings 	at 	the 	chancellor's 	office 	in
Long Beach, 	California. 	O'Connell 	claims 	that 	CSEA's 	policy,
which 	declines 	to 	fund grievants' 	travel 	"in all but 	the most
extraordinary 	circumstances," 	deprives 	O'Connell 	and 	other
employees 	of 	their 	right 	to monitor 	the 	adequacy of 	the
representation 	provided by 	their 	exclusive 	representative.
The 	charging 	party 	also 	asserts 	that 	CSEA misrepresented 	its
position 	regarding 	union-funded 	travel 	to 	grievance 	meetings.
Specifically, 	the 	charge 	refers 	to an 	informational 	meeting held
at 	San 	Jose 	State 	University on August 	1, 	1985. 	Two members 	of
the 	union 	bargaining 	council 	met 	with 	CSEA members 	to discuss 	the
contract 	before 	the 	membership 	for 	ratification. 	During 	this
two-hour 	"informational" meeting, 	Melissa 	E. 	Miller, 	a member of
the 	CSEA chapter 	in 	San 	Jose, 	asked 	the 	two 	CSEA bargaining
council 	members 	about 	travel 	to the 	fourth-step 	grievance 	meetings
in Long Beach. 	According to 	the charge, 	the 	two council 	members
repeatedly assured 	those 	in 	attendance 	that 	CSEA would 	"pick 	up
the 	tab" 	for 	grievants 	traveling to Long 	Beach. 	The 	charging
party 	also 	asserts 	that 	the 	issue 	of 	attendance 	at 	such 	meetings
at 	the 	chancellor's 	office 	was 	a 	matter 	of 	great 	concern 	to
numerous 	members 	and had been 	mentioned 	as 	a 	reason 	for 	voting
"no" 	on 	the 	contract 	in 	flyers put out at both 	San 	Francisco
State 	and 	San 	Jose 	State.
DISCUSSION
The 	duty of 	fair 	representation 	set 	forth 	in HEERA 	section
3578 	is 	violated where an 	exclusive 	representative 	fails 	to 	fairly
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and 	impartially 	represent 	all 	employees 	in 	the 	unit 	and 	engages 	in
conduct 	that 	is 	arbitrary, 	discriminatory, 	or 	in bad 	faith.
California 	State 	Employees' 	Association 	(Dees) 	(1985) 	PERB
Decision No. 	496-H. 	In his dismissal 	of 	O'Connell's charge, 	the
regional 	attorney 	rejected 	the 	claim 	that 	CSEA's 	rule 	concerning
the 	funding of 	grievants' 	travel 	breached 	the union's 	duty of
fair 	representation. 	We 	are 	in 	agreement 	with his 	conclusion:
Charging 	party has 	not 	alleged 	sufficient
facts 	to 	support 	a 	claim 	that 	the 	failure 	of
the 	exclusive 	representative 	to 	finance 	a
grievant's 	trip 	to 	the 	fourth 	level 	conference
in 	all 	circumstances breaches 	its 	duty of 	fair
representation. 	In 	the absence 	of 	specific
allegations 	of 	arbitrary, 	discriminatory or
bad 	faith denial 	of 	representation, 	there 	is
no violation.
We are 	not 	in agreement, 	however, 	with 	the 	regional 	attorney's
consideration 	of 	that 	part 	of 	O'Connell's 	charge 	dealing 	with 	the
alleged 	misrepresentation. 	In 	private 	sector 	cases 	relied 	on 	by
the 	regional 	attorney, 	the misrepresentations made 	to employees
concerned 	bargaining 	gains 	that 	would have 	appeared 	in 	the
contract 	then before 	the members 	for 	ratification. 	Deboles 	v.
Trans World Airlines, 	Inc. 	(3rd Cir. 	1977) 	552 F.2d 1005 	[94 LRRM
3237] 	cert, 	denied 	(1977) 	434 U.S. 	837 	[96 LRRM 2514]; Anderson v.
United 	Paperworkers 	International 	Union 	(8th Cir. 	1981) 	641 	F.2d
574 	[106 LRRM 2513]; 	Meat 	Cutters Local 	17 	(Aero Restaurant, 	Inc.)
(1979) 	241 	NLRB 	22 	[100 LRRM 1481]. 	In 	those 	instances, 	evidence
presented 	in 	support 	of 	a 	violation 	of 	the 	duty of 	fair
representation 	involving 	the 	contract 	ratification 	process 	was
examined 	to 	determine 	whether 	the 	employees 	reasonably 	relied 	on
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the 	misrepresentation 	in 	deciding whether 	to 	vote 	for
ratification 	and 	whether 	a 	causal 	relationship 	existed between
the misrepresentation 	and 	the 	injury to 	the 	employee. 	Anderson,
supra, 	requires 	a 	showing 	that 	the 	vote 	to 	ratify would have been
different had 	the 	misrepresentations 	not been 	made 	and 	that 	the
employer 	would have 	acceded 	to 	the 	union's 	demands 	had 	the 	vote
been 	different.
Here, 	O'Connell 	does 	not allege 	that a misrepresentation was
made 	concerning a 	provision of 	the 	contract. 	Accordingly, 	we 	find
that 	the 	Anderson 	standard 	and 	the 	federal 	cases 	relied 	on by 	the
regional 	attorney are 	inapplicable 	to 	this 	case, 	particularly 	that
part 	of 	the 	test 	that 	would 	require 	a 	showing here 	that 	the
employer 	would have 	acceded 	to 	CSEA's 	demand 	that 	CSEA 	fund
grievants1 travel.
Our 	conclusion 	that 	the 	Anderson 	standard 	is 	inapposite,
however, 	does 	not end our analysis. 	Rather, 	we believe 	that a
prima 	facie 	case 	of 	a 	breach 	of 	the 	duty of 	fair 	representation
has been 	stated where 	it 	is 	alleged 	that 	the 	exclusive
representative 	knowingly misrepresented 	a 	fact 	in 	order 	to 	secure
from 	its 	constituents 	their 	ratification 	of 	a 	contract.
Because 	this 	Board has 	not, 	before 	today, 	entertained a 	duty
of 	fair 	representation 	claim 	concerning 	misrepresentation 	in 	the
context 	of a 	contract 	ratification 	vote, 	inquiries 	pertinent 	to
the 	Board's 	standard 	articulated 	above 	may 	not have 	been 	made 	by
the 	regional 	attorney. 	Indeed, 	considering 	the 	factual
allegations 	appearing 	in 	O'Connell's 	charge 	as 	true 	for 	purposes
of 	establishing 	a 	prima 	facie 	case 	(San 	Juan 	Unified 	School
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District 	(1977) 	EERB Decision No. 	1 2 ) , 2 we have 	little evidence
against 	which our 	legal 	standard 	can be 	judged. 	Accordingly, 	we
reverse 	the 	regional 	attorney's 	dismissal 	of 	O'Connell's 	charge
concerning 	the 	misrepresentation 	in 	the 	ratification 	process 	and
direct 	the 	regional 	attorney 	to 	reconsider 	the 	charged
allegations 	and 	conduct his 	investigation 	in 	accordance 	with 	the
legal 	standard 	noted 	above.
ORDER
Based on 	the 	foregoing, 	the 	Board AFFIRMS 	the 	regional
attorney's 	dismissal 	of 	that portion 	of 	the 	charge 	alleging 	that
the 	exclusive 	representative's 	discretionary 	travel 	funding 	policy
violates 	the 	duty of 	fair 	representation. 	As 	to 	the 	claimed
misrepresentation, 	we 	REMAND the 	case 	to 	the 	regional 	attorney 	for
processing pursuant 	to PERB 	Regulation 	32620 	et 	seq. 3
Members 	Burt 	and 	Porter 	joined 	in 	this 	Decision.
2Prior 	to January 	1, 	1978, 	PERB was 	known as 	the 	Educational
Employment 	Relations 	Board.
3PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq.
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