California State Employees Association (Morrow) (PERB 0614S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD S. 	MORROW,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION
Respondent.
Case 	No. 	S-CO-54-S
PERB Decision 	No. 	614-S
February 20, 	1987
Appearances; 	Howard 	S. 	Morrow on his 	own behalf; 	Howard
Schwartz, 	Attorney for 	the 	California 	State 	Employees'
Association.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
BURT, Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	Howard
S. 	Morrow 	(Morrow) 	to a proposed decision, 	attached hereto,
issued by a 	PERB Administrative Law Judge 	(ALJ). 	In 	that
decision, 	the ALJ dismissed 	charges 	that 	the 	California 	State
Employees' 	Association 	(CSEA) 	violated section 	3519.5(b) 	of 	the
State 	Employer-Employee 	Relations Act 	(Govt. 	Code 	sec. 	3512 	et
seq.) 	by 	its 	failure 	to pursue Morrow's 	pay 	inequity grievance.
The 	Board has 	reviewed 	the proposed decision 	in 	light 	of
Morrow's 	exceptions 	and 	CSEA's 	response 	thereto, 	and 	the 	entire
record 	in 	the 	case, 	and hereby adopts 	the proposed decision 	as
the 	Decision 	of 	the 	Board 	itself.
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In his 	exceptions, 	Morrow does 	not 	generally dispute 	the
facts 	found by 	the ALJ, 	but he 	reiterates 	his 	claim 	that 	CSEA
failed 	in 	it 	duty 	to 	represent him 	fairly. 	While 	we 	join 	with
the 	ALJ 	in 	finding 	that 	CSEA was 	less 	than 	straightforward 	in
its 	dealings 	with Morrow, 	for 	the 	reasons 	cited by the ALJ, 	we
cannot 	find 	that 	CSEA's 	conduct 	in 	failing 	to pursue his
grievance 	amounted 	to a 	breach 	of 	its 	duty of 	fair
representation.
ORDER
The 	unfair 	practice 	charge 	in 	Case 	No. 	S-CO-54-S 	is 	DISMISSED
WITHOUT 	LEAVE 	TO AMEND.
Chairperson 	Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD S. 	MORROW,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES' 	ASSOCIATION,
R e s p o n d e n t .
Unfair 	Practice
Case 	No. 	S-CO-54-S
PROPOSED 	DECISION
(11/4/86)
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Appearances; 	Howard S. 	Morrow on his 	own behalf;
Howard 	Schwartz, 	Attorney for 	the California 	State Employees'
Association.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union member 	alleges 	here 	that 	his 	union breached 	its
duty of 	fair 	representation when 	it 	failed 	to 	pursue 	his
complaint 	about 	a 	pay 	inequity. 	The union 	replies 	that 	there
was 	no 	meritorious 	action which 	could 	have 	been 	taken 	on 	behalf
of 	its member.
The 	charge which commenced 	this 	action was 	filed 	by
Howard S. 	Morrow on November 21, 	1985. 	It was dismissed on
February 28, 	1986, 	by the office of 	the General Counsel 	of 	the
Public Employment 	Relations 	Board 	(PERB or 	Board).
Subsequently, 	at 	the request of 	the General Counsel, 	the PERB
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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remanded 	the 	case 	back 	to 	the General 	Counsel 	for 	further
1
investigation.
On May 23, 	1986, 	the office of 	the General Counsel 	issued 	a
complaint 	alleging 	that 	the 	California 	State 	Employees'
Association 	(CSEA) 	had 	breached 	its 	duty of 	fair 	representation
toward Mr. 	Morrow. 	The union's 	action was 	alleged 	to 	have been
in 	violation 	of 	State Employer-Employee 	Relations 	Act 	section
2
3519.5 	(b). 	CSEA answered the charge on June 	6, 	1986,
specifically denying 	the 	various 	allegations 	in 	the 	complaint.
On July 17, 	1986, 	CSEA filed 	a motion to dismiss 	the
complaint on the grounds 	that Mr. 	Morrow, 	as 	a 	retired person,
1 The 	grounds 	for 	the 	remand 	are 	set 	out 	in California
State Employees' 	Association 	(1986) 	PERB Decision No. 	568-S.
2Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	State 	Employer-Employee Relations 	Act
(SEERA or Act) 	is 	found 	at 	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.
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was 	no 	longer 	a 	state 	employee3 and 	thus 	lacked 	standing 	to
file 	the 	charge. 	The motion was 	denied 	by 	the undersigned 	on
July 31, 	1986.
A hearing 	was 	held 	in 	Sacramento 	on 	September 	3 	and 	4,
1986. 	The parties made oral 	argument 	at 	the completion of 	the
presentation of 	evidence. 	Upon the preparation of 	a
transcript, 	the case was 	submitted 	for decision on
September 25, 	1986.
FINDINGS 	OF 	FACT
Mr. 	Morrow worked 	for more 	than 30 years 	in 	the 	State 	of
California 	printing 	plant. 	During 	the 	relevant 	period, 	he was
employed in state bargaining unit no. 	14, 	printing trades.
3 The definition of 	"State employee" 	is 	set 	out 	in
Government Code section 3513(c). 	It provides 	as 	follows
(c) 	"State employee" 	means 	any civil
service employee of 	the 	state, 	and the
teaching 	staff 	of 	schools 	under 	the
jurisdiction of 	the 	Department 	of 	Education
or 	the 	Superintendent 	of 	Public 	Instruction,
except managerial 	employees, 	confidential
employees, 	employees of 	the Department of
Personnel Administration, 	professional
employees 	of 	the Department 	of 	Finance
engaged 	in 	technical 	or 	analytical 	state
budget 	preparation 	other 	than 	the 	auditing
staff, 	employees 	of 	the Legislative Counsel
Bureau, 	employees of the board, 	conciliators
employed 	by 	the 	State 	Conciliation 	Service
within 	the 	Department 	of 	Industrial
Relations, 	and 	intermittent 	athletic
inspectors who 	are 	employees 	of 	the 	State
Athletic 	Commission.
W	
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Since 	the commencement 	of 	collective 	bargaining 	in 	1981, 	unit
14 	employees 	have 	been 	represented 	by CSEA.
On February 22, 	1982, 	a consent decree was 	filed in the
United 	States 	District 	Court 	for 	the 	Eastern District 	of
California 	in the case of Flemie Lubenko 	et 	al. 	v. 	Graphic Art;
International Union et 	al. 	The case 	involved 	allegations 	of
discriminatory hiring, 	promotion, 	and compensation practices
toward women working 	in 	the 	bindery 	at 	the 	state 	printing
plant. 	Under 	the decree, 	eight 	job classifications were to be
condensed 	into 	a 	new four-level 	job 	series 	of 	bookbinder. 	The
decree 	set 	out 	the 	pay 	relationship 	among 	the 	four 	levels 	of
bookbinder 	and 	provided 	for 	a 	temporary 	"grandfather" 	clause
that would 	prevent 	employees 	from 	incurring 	a 	pay cut 	as 	they
were moved 	into 	the new classes. 	The consent 	decree was 	to
last 	for 	three years. 	The decree 	provided 	a 	remedy for 	the
plaintiffs 	to 	seek 	redress 	of 	any 	alleged violations.
At 	the time the decree went 	into effect, 	Mr. 	Morrow held
the position of 	printing 	trades 	assistant 	II. 	Under 	the
decree, 	the position was 	reclassified 	as 	a bookbinder 	II,
range A. 	The 	salary for 	a bookbinder 	II, 	range A, 	was 	fixed
under 	the decree 	at 	75 	percent 	of 	the 	salary for 	a
bookbinder 	IV. 	The 	salary for 	a bookbinder 	II, 	range B, 	was
fixed 	at 	80 	percent 	of 	the 	salary for 	a 	bookbinder 	IV.
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The 	effect 	of 	the decree was 	to 	provide 	immediate 	pay
increases 	for 	a 	number 	of women working 	in the bindery. 	The
decree 	also 	provided 	affirmative 	action 	for 	the 	promotion of
women to 	higher classes 	in the bookbinder 	series. 	The
affirmative 	action provision was 	to 	remain 	in effect 	until 	the
percentage 	of women 	in 	the bookbinder 	IV class 	matched 	the
percentage 	of women employed 	as 	bookbinders.
Because 	of 	a 	history of 	job-aggravated 	back 	and 	hip
injuries, 	Mr. 	Morrow had worked 	in an office 	job for 	a 	time
prior 	to 	the consent decree. 	He took care of 	legislative
journals 	and 	files. 	He did 	the 	filing 	in the office 	and
sometimes 	answered the telephone. 	In May of 	1982, 	Mr. 	Morrow
was 	removed 	from his 	office 	job 	and 	assigned 	to work on 	a
bundling 	machine. 	He 	soon 	reinjured 	his 	back 	and was 	off work
for 	four days. 	When he 	returned, 	he was 	assigned 	to work on
various 	machines 	in 	jobs 	which 	sometimes 	involved 	lifting
paper. 	Although Mr. 	Morrow's pay class was 	that 	of 	a
bookbinder 	II, 	range A, 	some employees 	performing 	the 	same
duties 	as 	he were paid 	at 	the higher 	rates 	of 	bookbinder 	II,
range B, 	and bookbinder 	III.
Shortly 	after 	receiving 	his 	new duties 	in May of 	1982,
Mr. 	Morrow complained 	to 	CSEA 	representative 	Richard 	Byfield
about 	the 	5-percent 	pay 	inequity which 	he 	believed 	he was
suffering. 	Mr. 	Morrow 	asserted 	that 	if 	he was 	going 	to 	be
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required 	to 	perform the 	same duties 	as 	persons 	in 	the
bookbinder 	II, 	range B, 	classification he 	should 	receive the
same 	pay. 	Mr. 	Byfield 	responded 	that 	CSEA could do 	nothing 	as
long 	as 	the consent decree was 	still 	in effect.
In March of 	1983, 	Virginia Guadiana 	replaced Mr. 	Byfield 	as
the CSEA representative 	for unit 	14. 	Promptly, 	Mr. 	Morrow
renewed his complaint with her. 	Like Mr. 	Byfield, 	Ms. 	Guadiana
told Mr. 	Morrow there was 	nothing 	she could do while 	the
consent 	decree 	remained 	in effect. 	Ms. 	Guadiana 	testified 	that
she believed 	there was 	no violation of 	the consent decree 	as 	to
Mr. 	Morrow and there was, 	therefore, 	nothing 	that could be done
for 	him.
In 	late 	1984, 	with the expiration of 	the decree
approaching, 	Ms. 	Guadiana met with Mr. 	Morrow to prepare a
letter 	to 	the 	State Printer 	regarding Mr. 	Morrow's 	complaint.
A draft 	of 	the 	letter was 	sent 	to Mr. 	Morrow 	in early 	1985.
Accompanying 	it was 	a note 	in which Ms. 	Guadiana 	notified
Mr. 	Morrow that 	another CSEA representative, 	Bill Cook, 	would
be 	reviewing 	the draft 	letter. 	Mr. 	Morrow telephoned Ms.
Guadiana 	to 	advise 	her 	that 	he 	approved 	the 	letter 	and wanted
it 	to 	be 	sent. 	He 	later made 	other 	telephone calls 	to 	her 	but
was unable to 	reach her. 	Beginning 	in early 1985, 	Ms. 	Guadiana
was 	busy 	in 	collective 	bargaining with 	the 	state 	on 	behalf 	of
employees 	in unit no. 	14.
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On March 7, 	1985, 	Ms. 	Guadiana 	attended a meeting of 	the
Bindery Oversight 	Committee 	at 	the 	office 	of 	the 	State
Printer. 	The 	committee was 	established 	under 	the 	consent
decree 	to 	advise 	the 	State 	Printer 	regarding 	implementation 	of
the 	terms 	of 	the decree. 	Among 	those present 	at 	the meeting
were Don Male, 	the State Printer, 	and Bill Gregori, 	his
deputy. 	Although 	the meeting 	had 	not 	been 	scheduled 	to 	discuss
Mr. 	Morrow's complaint, 	Ms. 	Guadiana 	raised the issue.
Mr. 	Gregori 	responded 	that 	there 	had 	been 	no violation 	of
Mr. 	Morrow's 	rights 	and 	the 	state 	had 	accommodated 	him 	the 	best
that 	it 	could. 	Subsequently, 	on March 22, 	Mr. 	Gregori 	sent
Ms. 	Guadiana 	a 	note 	pointing 	out 	that 	under 	the 	consent 	decree
a 	printing 	trades 	assistant 	II, 	which Mr. 	Morrow had been, 	was
to become a bindery worker 	II, 	range A, 	as Mr. 	Morrow did.
Mr. 	Gregori's 	note concluded with 	the observation: 	"Everything
seems 	proper 	to me."
Mr. 	Morrow's 	return 	to 	physical 	labor 	in May of 	1982
further 	aggravated 	the deterioration of 	his 	hip. 	At 	his
doctor's 	insistence, 	he 	stopped working 	in August 	of 	1983.
Mr. 	Morrow 	filed 	a worker's 	compensation complaint 	in which 	he
prevailed. 	Through 	a combination of 	worker's 	compensation 	and
the use 	of 	sick 	leave, 	Mr. 	Morrow 	remained on 	the 	state payroll
until 	June 	30, 	1985, 	even though he was 	no 	longer working.
Beginning 	June 	30th, 	Mr. 	Morrow commenced 	a disability
retirement 	at 	age 	57. 	His 	retirement 	pay 	rate was 	fixed
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according 	to his 	final 	job classification of bookbinder 	II,
range A. 	The amount 	is 	less than it would have been if he had
succeeded with his 	complaint.
Ms. 	Guadiana was relieved of 	responsibility for unit 	14 	at
the conclusion of negotiations 	in June of 	1985. 	Prior to that
date, 	she sent Mr. Morrow's case file to Mr. 	Cook.
In August of 	1985, 	Mr. 	Cook consulted with Richard Weyuker,
CSEA's 	lead 	labor 	relations 	representative 	for 	the 	Sacramento
office. 	Mr. Weyuker, 	a lawyer, 	took over the Morrow case.
Mr. 	Weyuker concluded there were 	four conceivable 	actions which
might be attempted to assist Mr. 	Morrow. 	First, 	a grievance
could be 	filed alleging 	that Mr. 	Morrow had performed the 	same
work as persons 	in the bookbinder 	II, 	range B, 	classification
but was paid less. 	However, 	he concluded, 	this option was
impractical because the criteria 	for pay at 	range B required
specific qualifications 	set out 	in the consent 	decree4 and
Mr. 	Morrow had possessed none of 	them.
4In response to the consent decree, 	the State Personnel
Board established the 	following 	criteria 	for 	bookbinder 	II,
range B:
Range B. 	This 	range shall 	apply:
1. To those incumbents who on May 16, 	1982,
were placed in this class 	from the class of
Bindery Worker 	II under 	the conditions of
the February 19, 1982, Consent Decree; and
2. 	To those Bindery Worker 	II 	incumbents who
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on May 16, 	1982, 	were placed 	in the class 	of
Bookbinder 	III 	as 	a 	result 	of 	the February
19, 	1982, 	Consent Decree and, who without a
permanent break in service, 	and prior
(emphasis 	in the original) 	to February 19,
1985, 	move to the class of Bookbinder 	II.
Movement 	to 	this 	class 	may be by voluntary
or 	mandatory 	action.
Next, 	an out-of-class 	claim could 	be 	filed 	contending 	that
Mr. 	Morrow had worked 	in 	the wrong 	classification 	for 	the
duties 	he performed. 	But Mr. 	Weyuker discarded that option
because 	the 	duties 	performed 	by Mr. 	Morrow were within 	the 	job
description of 	bookbinder 	II, 	range A. 	The next 	possibility
was 	a grievance under 	the consent decree. 	But Mr. 	Weyuker
found 	that 	option 	impossible 	for 	a 	number 	of 	reasons. 	For 	one
thing, 	by the 	time the case came to Mr. 	Weyuker 	the consent
decree 	had 	expired. 	For 	another, 	the decree 	limited 	the
grievance procedure 	to plaintiffs 	and Mr. 	Morrow was 	not 	a
plaintiff.
Finally, 	Mr. 	Weyuker 	discussed with CSEA attorneys 	the
merits 	of 	going 	back into 	federal 	court 	to 	seek 	revision of 	the
consent 	decree. 	But 	that 	option was 	rejected because 	CSEA had
been 	a 	party to 	the original 	decree, 	was 	satisfied 	that 	the
decree 	had 	remedied 	the 	effects 	of 	past 	discrimination, 	and did
not want 	to disturb 	it.
Mr. 	Weyuker 	thereupon concluded 	that Mr. 	Morrow had been 	a
victim of 	circumstances 	and 	there was 	nothing 	CSEA could 	do 	to
help him. 	Mr. 	Weyuker decided not 	to 	send 	the 	letter which
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Ms. 	Guadiana 	had drafted because he believed 	it was 	pointless.
He 	concluded 	that 	the 	only 	reasonable 	option was 	to 	inform
Mr. 	Morrow that CSEA was 	unable to 	achieve his 	goal. 	On August
16, 	1985, 	Mr. 	Weyuker sent Mr. 	Morrow a 	letter advising him
5that 	CSEA could 	not 	help 	him. 	Mr. 	Morrow commenced 	the
present 	action 	following 	his 	receipt 	of 	the 	letter.
LEGAL 	ISSUE
Did 	CSEA 	refuse 	to 	process 	the pay complaint 	of 	Mr. 	Morrow
and 	thereby violate 	SEERA 	section 	3519.5 	(b)?
CONCLUSIONS 	OF LAW
The 	duty of 	fair 	representation 	requires 	an exclusive
representative 	to 	fairly 	and 	impartially 	represent 	all
employees 	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.
5The 	letter 	sent 	to Mr. 	Morrow by Mr. 	Weyuker was
somewhat 	less 	than 	forthright. 	Rather 	than explaining 	the
various 	roadblocks 	to 	the 	pursuit 	of 	any 	remedy 	as 	outlined 	at
the 	hearing, 	Mr. 	Weyuker 	attributed CSEA's 	inability to 	help
Mr. 	Morrow to the passage of 	time and to Mr. 	Morrow's 	recent
retirement. 	When 	asked why he did not 	outline 	in more detail
to Mr. 	Morrow the 	reasons 	for CSEA's 	action, 	Mr. 	Weyuker
explained 	that 	it would have 	raised for 	the 	first 	time remedies
never 	previously discussed with Mr. 	Morrow. 	It was 	simpler,
Mr. 	Weyuker said, 	to explain CSEA's decision 	in terms 	of 	the
passage of 	time 	and Mr. 	Morrow's 	retirement.
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Unlike 	the 	other 	two 	statutes 	administered 	by 	the 	PERB,66
SEERA contains 	no 	specific 	statutory provision 	setting 	out 	the
duty. 	Nevertheless, 	PERB decisions 	have 	assumed 	the existence
of 	a duty of 	fair 	representation under 	SEERA. 	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 	SEERA 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 	doubtful." 	Sacramento City Teachers Association 	(Fanning 	et
al.) 	(1984) 	PERB Decision No. 	428.
6 In 	addition 	to 	SEERA, 	PERB 	administers 	the Educational
Employment Relations Act, 	section 3540 	et 	seq., 	and the Higher
Education Employer-Employee Relations Act, 	section 3560 	et
seq. 	Duty of 	fair 	representation provisions 	are 	set 	out 	in
EERA 	section 	3544.9 	and 	HEERA 	section 	3578.
11

A 	breach 	of 	the 	duty will 	not 	be 	found where 	the 	exclusive
representative 	refuses 	to 	pursue 	remedies which 	are 	outside 	the
collective bargaining 	agreement. 	There 	is no duty, 	for
example, 	to pursue 	a Board of Control 	claim, 	California 	State
Employees' Association, 	supra, 	PERB Decision No. 	545-S, 	or to
file 	a 	lawsuit on behalf 	of 	a unit member, 	California 	State
Employees' 	Association, 	supra. 	PERB Decision No. 	546-S.
Nor will 	a 	breach of 	the duty be 	found where 	the exclusive
representative 	is 	guilty of 	"mere 	negligence 	or 	poor 	judgment
in handling 	a 	grievance." 	Los Angeles 	City and 	County 	School
Employees Union 	(Scates 	and Pitts) 	(1983) 	PERB Decision
No. 	341. 	See 	also, 	California School Employees Association
(Dyer) 	(1984) 	PERB Decision No. 	342a.
In his 	charge, 	Mr. 	Morrow sets 	out 	four 	failings 	by CSEA
which he 	believes 	constitute 	a 	breach of 	the duty of 	fair
representation. 	These 	are: 	failure 	to meet with the 	State
Printer 	on his 	complaints, 	failure to 	file 	a grievance on his
behalf, 	failure 	to 	send 	the 	letter drafted by CSEA
representative Guadiana, 	failure 	to 	return many of 	his
telephone calls.
With respect to Mr. 	Morrow's 	first contention, 	it 	is clear
that Ms. 	Guadiana did meet 	and discuss 	his 	grievances with the
State Printer. 	This occurred at 	a meeting on March 	7, 	1985.
Mr. 	Morrow's 	complaints were 	rejected by the 	state 	as 	being
without 	merit.
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Regarding 	the 	failure 	to 	file 	a 	grievance, 	CSEA 	initially
was 	convinced 	that 	it was 	powerless 	to 	act 	during 	the 	term of
the 	consent decree. 	Whether CSEA was 	correct 	in this
evaluation 	is 	not crucial. 	What 	is 	important 	is 	that 	the
evaluation was 	made 	in good 	faith 	and had 	a 	rational 	basis.
There 	is 	no evidence to 	the contrary. 	Later, 	when the consent
decree 	expired, 	CSEA again evaluated 	the possible 	success 	of
pursuing 	a grievance on Mr. 	Morrow's 	behalf. 	It concluded 	that
no 	remedy had 	been 	available 	at 	any time. 	The decision was
rational, 	not 	arbitrary. 	There was no evidence of
discrimination 	or 	bad 	faith 	toward Mr. 	Morrow.
Once 	CSEA determined 	that 	the 	filing 	of 	a 	grievance would
be 	fruitless, 	it was under no obligation to 	send the 	letter
drafted 	by Ms. 	Guadiana. 	She 	already had discussed 	the
substance 	of 	her 	letter 	in 	a meeting with 	the 	State 	Printer.
While Mr. 	Morrow doubtless would 	have 	felt 	better 	had 	the
letter 	been 	sent, 	CSEA concluded 	that 	it 	had no 	prospect 	of
achieving 	what 	he 	desired.
Finally, 	the 	duty of 	fair 	representation does 	not 	require
an exclusive 	representative 	to 	return 	all 	telephone 	calls 	made
by a unit member. 	Under 	some circumstances, 	the 	failure 	to
return 	telephone 	calls 	might 	be evidence 	of 	arbitrary,
discriminatory or 	bad 	faith conduct. 	But 	that was 	not 	the 	case
here. 	The 	record 	is 	replete with evidence of meetings 	and
conversations 	conducted 	by CSEA 	representatives 	with Mr.
Morrow. 	If 	CSEA had 	a 	failing 	it was 	not 	for 	lack of 	good
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faith concern about Mr. 	Morrow. 	It was 	for 	a 	lack of 	candor 	in
not 	informing 	him 	at 	the 	outset 	about 	the 	unlikely 	prospect
that 	he would be 	successful 	in his 	complaint. 	In 	any event,
there 	is 	simply no 	evidence 	that 	CSEA breached 	its 	duty of 	fair
representation toward Mr. 	Morrow.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law 	and 	the 	entire 	record 	in this matter, 	unfair practice
charge 	S-CO-54-S, 	Howard S. 	Morrow v. 	California 	State
Employees' 	Association, 	and companion complaint 	are hereby
DISMISSED.
Pursuant 	to 	California Administrative Code, 	title 	8,
part 	III, 	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 California
Administrative Code, 	title 8, 	part III, 	section 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 for filing 	. 	. 	. 	." 	See California Administrative Code,
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title 	8, 	part 	III, 	section 32135. 	Code of 	Civil 	Procedure
section 	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 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 	and 32140.
Dated: 	November 4, 	1986 Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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