California State Employees Association (Mitchell) (PERB 0969S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARILYN MITCHELL,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-140-S
PERB Decision No. 	969-S
February 4, 	1993
Appearances: 	Marilyn Mitchell, 	on her own behalf; 	James W.
Milbradt, 	Statewide Arbitration Coordinator, 	for California State
Employees 	Association.
Before Caffrey, 	Carlyle and Blair, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Marilyn Mitchell 	(Mitchell)
to a Board agent's 	dismissal 	(attached hereto) 	of 	her unfair
practice 	charge. 	In her charge, 	Mitchell 	alleged that 	the
California 	State 	Employees 	Association violated 	section 	3519.5(b)
of the Ralph C. 	Dills Act 	(Dill Act)1 by engaging in numerous
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.
)
)
)
)
)
)
)
)
)
)
______________ )

acts 	in violation of her employee 	rights.
The 	Board has 	reviewed 	the warning and dismissal 	letters,
the 	original 	and amended charges, 	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. 	S-CO-140-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Blair 	joined 	in 	this 	Decision.
2
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 5, 	1992
Marilyn 	Mitchell
Re: 	Marilyn Mitchell v. 	State of 	California 	(Franchise Tax
Board), 	Case No. S-CO-140-S
DISMISSAL 	LETTER
Dear Ms. Mitchell:
On January 22, 	1992, 	you 	filed a 	charge alleging that 	the
California 	State 	Employees 	Association 	(CSEA or Association)
violated Government 	Code 	section 3519.5 	(the Dills Act) 	by
engaging 	in numerous 	acts 	in violations 	of your employee 	rights.1
Specifically, 	you allege 	that 	CSEA has 	imposed reprisals, 1
retaliated, 	discriminated, 	interfered with, 	restrained and used
coercion against 	you 	for your exercise 	of 	employee 	rights 	and
being active 	in 	the union.
I 	indicated 	to you, 	in my attached letter dated 	February 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. 	On March 	18, 	1992, 	you 	filed your First Amended Charge,
on March 31, 	1992, 	you 	filed a Second Amended Charge, 	on May 15,
1992, 	you 	filed a Third Amended Charge, 	on July 23, 	1992, 	you
filed a 	Fourth Amended Charge, 	on September 	1, 	1992, 	you 	filed
your Fifth Amended Charge, 	and on October 1, 	1992, 	you 	filed your
Sixth Amended 	Charge.
N
1
Your 	original 	charge 	contained 	approximately one 	hundred
and seventy-three 	(173) 	allegations.	
1
2Your 	amended 	charges 	contained numerous 	allegations 	and
more 	than 	600 	pages 	of 	supporting documents.
2

October 5, 	1992
Page 2
I 	have 	thoroughly 	reviewed your amended 	charges 	and all 	the
documents 	you submitted. 	I 	have 	summarized the 	central
3
allegations 	contained 	in your amended 	charges3 :
1. 	The Association violated 	its 	duty of 	fair
representation by 	refusing 	to 	discuss 	your
representation with you.
2. 	The Association violated 	its 	duty of 	fair
representation by 	refusing 	to allow you 	to
speak 	to 	the 	Civil 	Service Division Council
regarding your 	employment/union needs.
3. 	The Association violated its duty of 	fair
representation by 	failing 	to 	stop Association
4
staff 	from harassing you 	through 	the mail.
4. 	The Association violated its 	duty of 	fair
representation 	by 	allowing 	Representative
Doug Moffett 	to 	refuse 	to pursue 	a grievance
filed by you on February 15, 	1991.
5. 	The Association violated its 	duty of 	fair
representation by 	removing 	you 	from your
office as District Labor Council 	(DLC) 	786
President.
3Due 	to 	the 	length of 	your amended 	charges 	I 	have 	summarized
the 	central 	allegations, 	rather then address 	each allegation
separately as 	I did in my letter of 	February 28, 	1992.
Your 	First Amended Charge 	states:
The 	Union 	failed 	to 	stop my paid 	staff 	person 	from
harassing me 	through the mail, 	and also 	failed 	to 	stop
him 	from attempting 	to 	sabotage my 	representation by
sending me untimely notices, 	and notices 	of meetings
concerning my 	representation 	that 	I 	couldn't 	receive
until 	after the 	fact.
Although your 	charge 	contains 	the 	term 	"harassing", 	the 	factual
allegations 	in your 	charge 	fail 	to demonstrate 	that 	the
Association's 	conduct was arbitrary, 	discriminatory, 	or in bad
faith. 	Accordingly, 	that allegation is dismissed.

October 5, 	1992
Page 3
6. 	The Association 	is 	discriminating against 	you
because you 	are 	black.5
7. 	The Association violated its 	duty of 	fair
representation by 	refusing 	to 	provide 	you
with 	internal 	union 	information you 	requested
in 	retaliation 	for your 	filing an unfair
practice 	charge with 	PERB.
8. 	The Association violated its 	duty of 	fair
representation by denying you 	the 	right 	to use 	the
internal 	union processes 	to 	resolution 	on every 	level
open to 	you.
9. 	On September 22, 	1992, 	Association staff member
Gretchen 	Seagraves 	violated your 	rights 	by 	sending 	a
three 	(3) 	page 	fasimile transmission through the
Franchise Tax Board Management, 	to be given to another
Association Member, 	which you 	contend was 	defamatory to
you, 	read by others 	and was meant 	to 	injury your good
name and reputation, 	and bring you into disrepute.
10. 	The Association violated your rights by cutting off 	all
DLC 	President's mail 	to you before 	time.
As 	I 	informed you in my letter of February 28, 	1992, 	in order to
state a prima 	facie violation of 	an employee 	organization's 	duty
of 	fair representation, 	Charging Party must 	show that 	the
employee organization's conduct was arbitrary, 	discriminatory, 	or
in bad 	faith. 	United Teachers 	of Los Angeles 	(Collins) 	(1983)
PERB Decision No. 	258. 	In United Teachers 	of Los Angeles
(Collins). 	Id.. 	the Public Employment Relations Board 	(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.
5Your 	amended 	charge 	states 	"CSEA 	is 	discriminating 	against
me 	as 	a Black". 	Your amended 	charges 	fail 	to assert 	any other
facts 	regarding 	this 	allegation 	of 	racial 	discrimination 	to
demonstrate 	that 	the Association 	committed 	an unfair 	labor
practice on the basis of 	race. 	Accordingly, 	that allegation 	is
dismissed.

October 5, 	1992
Page 4
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:
. 	. 	. 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
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
The 	allegations 	that 	the Association violated its 	duty of 	fair
representation by 	refusing 	to 	discuss 	your 	representation with
you; 	by refusing 	to 	stop Association 	staff 	from harassing you"
through the mail; 	by allowing Representative Moffett 	to 	refuse 	to
pursue 	the grievance you 	filed on February 15, 	1991; 	by sending a
three 	(3) 	page facsimile transmission to another Association
Member, 	which you 	contend was defamatory to you, 	read by others
and was meant 	to 	injury your good name and reputation, 	and bring
you 	into disrepute; 	and by cutting off 	all 	DLC President's mail
to you before time, 	fails 	to assert 	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. 	In the absence 	of 	specific
allegations of arbitrary, 	discriminatory, 	or bad faith denial 	of
representation, 	you have 	failed to establish a prima 	facie
violation 	that 	CSEA breached 	its 	duty of 	fair 	representation.
Therefore, 	your allegations 	contained in the above listed-
allegations 	that 	the Association violated 	its 	duty of 	fair
representation 	shall 	be 	dismissed.
Your allegations 	that 	the Association violated 	its 	duty of 	fair
representation by refusing 	to allow you 	to 	speak 	to 	the 	Civil
Service 	Division 	Council 	regarding your 	employment/union needs;
by 	removing you 	from your 	office 	as 	District 	Labor 	Council 	786

October 5, 	1992
Page 5
President; 	and by denying you 	the 	right 	to use 	the 	internal 	union
processes 	to resolution on every level 	open to you, 	refer to
activities which are 	strictly 	internal 	union matters, 	which do
not 	have 	a substantial 	impact 	on the 	relationships 	of unit
members 	to their employers. 	The duty of 	fair representation
extends 	only to union activities 	that 	have a 	substantial 	impact
on the 	relationships 	of 	unit members 	to 	their employers 	and does
not 	apply to 	those 	activities 	which 	do 	not 	directly 	involve 	the
employer or which are 	strictly 	internal 	union matters. 	Service
Employees 	International Union, 	Local 99 	(Kimmett) 	(1979) 	PERB
Decision No. 	106; 	Rio Hondo College Faculty Association, 	CTA/NEA
(1986) 	PERB Decision No. 	583. 	Accordingly, 	those allegations are
dismissed.
Finally, 	your amended 	charges 	allege 	that 	the Association
violated 	its 	duty 	of 	fair 	representation by 	refusing 	to provide
you with 	internal 	union 	information you 	requested 	in 	retaliation
66
for your filing an unfair practice 	charge with the PERB 	. 	I 	have
been unable 	to 	find any authority 	that 	you have a 	right 	to 	the
information you requested 	from the Association, 	or that 	the
Association has 	a duty to provide you with the 	requested
information. 	Accordingly, 	that allegation is dismissed.
Even assuming 	that 	the Association had a duty to provide you with
the 	requested information, 	you have 	still 	failed to establish a
prima 	facie violation. 	The duty of 	fair representation does 	not
apply to 	those 	activities 	which are 	strictly 	internal 	union
matters. 	(See, 	Service Employees International Union. 	Local 	99
(Kimmett), 	supra.) 	However, 	when allegations of reprisal for
protected activity are present, 	if 	the allegations 	state 	facts
supporting 	retaliation by an 	employee 	organization, 	internal
union activities 	may be 	reviewed. 	Such an 	inquiry must 	go 	forth
66 The 	information you 	requested 	from the 	Association which
was not provided, 	included:
a. 	A copy of 	the 	Errors 	and Omissions
Insurance 	coverage 	and policies 	carried
by 	the Association;
b. 	A copy of 	the workers 	compensation
insurance 	coverage 	carried by 	the
Association; 	and
c. 	Information 	regarding 	the 	representation
matters 	of 	another Association member.

October 5, 	1992
Page 6
under Carlsbad Unified School District 	(19 79) 	PERB Decision No.
89 	and/or Novato Unified School District 	(19 82) 	PERB Decision No.
210, 	as 	to whether the employee organization's 	actions were
motivated by a 	charging party's 	exercise 	of 	protected 	rights.
California State Employees' Association (O'Connell) (19 89) PERB
Decision No. 	753-H.
Although your amended 	charges 	contain 	allegations 	that 	you
engaged 	in protected activity 	and 	the 	Association 	had 	knowledge
of 	such activity, 	your amended charges 	fail 	to demonstrate 	that
the Association's 	actions 	were motivated by your 	exercise 	of
protected rights. 	Therefore, 	those allegations must also be
dismissed.
Therefore, 	I am dismissing your charges 	based on 	the 	facts 	and
reasons 	contained in this 	letter and my February 28, 	1992 	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
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

October 5, 	1992
Page 	7
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.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By michael & Gash	
r.Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Bob Zenz

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 28, 	1992
Marilyn 	Mitchell
Re: 	Marilyn Mitchell v. 	California State Employee Association
Unfair Practice Charge No. 	S-CO-140-S
WARNING 	LETTER
Dear Ms. Mitchell:
On January 22, 	1992, 	you filed a charge alleging that the
California 	State 	Employees Association violated Government Code
section 3519.5 	(the Dills Act) 	by engaging in numerous 	acts 	in
violations of your employee rights.1 Specifically, 	you allege
that CSEA has 	imposed reprisals, 	retaliated, 	discriminated,
interfered with, 	restrained 	and used 	coercion against 	you of 	your
exercise of 	employee rights 	and being active 	in the union as 	a
Union Activist.
After a thorough review of all your allegations, 	I 	find that you
have 	failed to 	state 	a prima 	facie 	case 	that CSEA has 	violated
section 3519.5 	of the Dills Act.2
PERB Regulation 32615 	(California Code of Regs., 	tit. 	8, 	sec.
32615) 	requires 	that your charge contain a 	clear and concise
statement 	of 	the 	facts 	and 	conduct 	alleged 	to 	constitute 	an
unfair practice.
1Your charge 	contains 	approximately one 	hundred 	and 	seventy-
three 	(173) 	allegations.
2Due to the 	length of your charge, 	the allegations 	contained
in your charge are 	incorporated by reference, 	as 	if 	fully 	set
forth herein. 	My warning 	letter will 	address 	your allegations 	by
page number, 	with 	corresponding allegation number or 	letter,
where appropriate.

Warning 	Letter 	- 	S-CO-140-S
Page 2
The 	following allegations 	fail 	to 	state 	a 	clear and 	concise
statement 	of 	the 	facts 	and 	conduct 	alleged to constitute 	an
unfair practice:
P. 	1, paragraphs 1 and 2; P. 	2, paragraphs 3, 	5, 	9, 	10,
12 and 14; 	P. 	3, paragraph 3; 	P. 	4, paragraphs 9, 	10,
11, 12, 	13, 	14, 	15 and 16; P. 5, paragraphs 17, 	18, 	19,
20 and 22; P. 	6, paragraphs 23, 	24, 26 and 27; P. 	7,
paragraphs 28, 29, 30, 31, 32, 33, 34 and 35; P. 8,
paragraphs 36, 37, 38, 39, 40, 44, 46 and 47; P. 	9,
paragraphs 51, 	52, 53, 	58 and 59; P. 	10, paragraphs 61,
62 and 70; P. 	11, paragraphs 72, 73, 74, 75, 77, 78,
79, 80, 81 and 82; P. 	12, paragraphs 83, 84, 85, 86,
88, 89, 89 [sic] and 90; P. 	13, paragraphs 91, 92, 96,
98 and 99;
P. 	14, paragraphs 100, 	103, 	104 and 105; P. 	15,
paragraphs 106, 	107, 	109 and 110; 	P. 	16, paragraphs
111A, 	11IB, 	111C, 	11IE and 111G; 	P. 	17, paragraphs
111H, 	1111, 	111J(1), 	U 1 J ( 2 ) , 	111J(3), 	111J(4), 	111J(5)
and 	111J(6); 	P. 	18, 	paragraphs 	111J(7), 	111J(8),
111J(9), 	H U ( I O ) 	and 	111J 	[sic]; 	P. 	19, 	paragraphs
l l l K d ) , 	111K(2), 	111K(3), 	111K(4), 	111K(5), 	111K(6) /
111K(7), 	111K(8), 	111K(9), 	111K(1O) 	and 	111K 	[sic]; 	P.
20, paragraphs 111L, 111M, 111N, 	1110, 	111P and 112; 	P.
21, paragraphs 	113A, 	113B, 	113C, 	113D and 113E; 	P. 	22,
paragraphs 	113F, 	113G and 113H; 	P. 	23, 	paragraphs 	1131,
113J 	and 	113K.
In the 	absence of 	a 	clear 	statement of 	facts 	and 	conduct
constituting an unfair practice, 	the allegations 	in the above-
listed paragraphs 	fail 	to 	state 	a prima 	facie violation of 	the
Dills Act and will 	be dismissed.
The 	allegations 	contained 	in 	the 	following 	listed 	paragraphs 	fail
to 	set 	forth a date, 	or allege 	conduct which 	falls within the
Public 	Employment Relations 	Board's 	(PERB or Board) 	statute of
limitations:
P. 	1, paragraphs 	1 and 2; 	P. 	2, paragraphs 3, 	4, 	5, 	6,
7, 8, 9, 	10, 	11, 	12, 	13, 	14 and 15; P. 	3, paragraphs 1,
2, 4, 5, 	6, 	7 and 8; P. 	4, paragraphs 9, 	10, 	11, 	12,
13, 14, 	15 and 16; P. 	5, paragraphs 17, 	18, 	19, 20, 21
and 22; P. 	6, paragraphs 23, 	24, 	25, 	26 and 27; P. 	7,
paragraphs 28, 29, 30, 31, 32, 33, 34 and 35; P. 8,
paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
47, 48 and 49; P. 9, paragraphs 50, 51, 53, 54, 55, 56,
57, 58 and 59; P. 	10, paragraphs 60, 61, 62, 66, 67,

Warning 	Letter 	- 	S-CO-140-S
Page 3
69, and 70; P. 	11, paragraphs 71, 72, 73, 74, 76, 77,
78, 79, 80 and 81; P. 	12, paragraphs 85, 86, 87, 88,
89, 89 [sic] and 90; P. 	13, paragraphs 91, 92, 93, 94
and 99;
P. 	14, paragraphs 100, 	101, 	102, 	103, 	104 and 105; P.
15, paragraphs 106, 	107 and 110; 	P. 	16, paragraphs
111A, 	111B, 	111C, 	H I D , 	H I E , 	111F and 111G; 	P. 	17,
paragraphs 	1111, 	lllJ(l), 	111J(2), 	111J(3), 	111J(4),
111J(5) and 111J(6); P. 	18, paragraphs 111J(7),
111J(8), 	H U ( I O ) and 111J; P. 	19, paragraphs 111K(1),
111K(2), 111K(3) 111k(4), 111k(5), 1lik(6), 111k(7),	IIIK(2), 	IIIK(3) 	ll!K(4), 	IIIK(5), 	IIIK(6), 	IIIK(7),
111K(8), 	U 1 K ( 9 ) , 	111K(1O) 	and 	111K 	[sic]; 	P. 	20,
paragraphs 	111L, 111M, 111N, 	1110 and 112; 	P. 	21,
paragraphs 	113A, 	113B, 	113C, 	113D and 113E; 	P. 	22,
paragraphs 	113F, 	113G and 113H; 	P. 	23, paragraphs 	113I,
113J and 	113K.
In 	order to 	state a prime 	facie 	case 	a Charging Party must allege
and 	ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month period
immediately preceding the 	filing of the charge. 	San Dieguito
Union High School District 	(1982) 	PERB Decision No. 	194.
Government Code 	section 3514.5(a) 	states 	in relevant part:
Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right to 	file an
unfair practice charge, 	except that the board
shall 	not do either of the 	following: 	(1)
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, 	. 	. 	.
Your charge was 	filed with PERB on January 22, 	1992, 	which means
that 	any 	alleged 	unfair practice 	should 	have 	occurred 	during 	the
six-month 	statutory period which began on July 22, 	1991. 	The
allegations 	contained 	in the 	above 	listed paragraphs 	of your
charge either fails 	to 	set 	forth a date, 	or states a date which
is beyond the six-month statute of limitations, 	therefore, 	those
allegations 	must 	be dismissed.
Assuming your charge was 	timely, 	the 	following listed allegations
in your charge appear to allege 	that CSEA, 	the exclusive
representative, 	violated its 	duty of 	fair representation in
violation of 	section 3519.5(b) 	of the Dills Act:

Warning 	Letter 	- 	S-CO-140-S
Page 4
P. 	1, paragraphs 	1 and 2; 	P. 	2, paragraphs 3, 	4, 	5, 	6,
7, 8, 9, 	10, 	11, 	12, 	13, 	14 and 15; P. 4, paragraphs 9
and 16; 	P. 	5, paragraphs 21 and 22; 	P. 	6, paragraphs
2 4 ; 	P. 	8, paragraphs 38, 39, 40, 41, 42, 43, 44, 45,
4 6 , 	4 7 , 	48 and 49; P. 	9, paragraphs 50, 51, 53, 54, 55,
5 6 , 	5 7 , 	58 and 59; P. 	10, paragraphs 60, 61, 62, 63,
6 4 , 	6 5 , 	66, 67, 68, 69, and 70; P. 	11, paragraphs 71,
7 2 , 	7 3 , 	74, 75, 76, 77, 78, 79, 80, 81 and 82; P. 12,
paragraphs 83, 84, 85, 86, 87, 88, 89, 89 [sic] and 90;
P. 	13, paragraphs 91, 93, 94, 95, 96, 97, 98 and 99;
P. 	14, paragraphs 102, 	103 and 104; P. 	16, paragraphs
111A, 	111C, 	111D, 	11IF 	and 	111G; 	P. 	17, 	paragraphs
111H, 	111I, 	111J(3), 	111J(4), 	111J(5) 	and 111J(6); 	P.
18, paragraphs 111J(7), 	111J(8), 111J(10) and 111J; P.
19, paragraphs 	111K(1), 	111K(2), 	111K(3) 	111K(4),
111K(5), 	111K(6), 	111K(7), 	111K(8), 	111K(9) and
111K(10); P. 	20, 	paragraphs 	111L, 	1110, 111P and 112;
P. 21, paragraphs 	113A, 	113B, 	113C, 	113D and 113E; 	P.
22, paragraphs 	113F, 	113G and 113H.
The Dills Act does 	not 	contain a 	specific 	section specifying an
employee organization's 	duty of 	fair representation; 	such a duty
can be implied from the 	fact 	that 	the 	Dills Act provides 	for
exclusive representation. 	(Gov. 	Code, 	secs. 	3513(b) 	and 3515.5;)
Norgard v. 	California State Employees Association 	(1984) 	PERB
Decision No. 	451-S.
In order to 	state a prima 	facie violation of an employee
organization's 	duty of 	fair representation, 	Charging Party must
show that 	the 	employee 	organization's 	conduct was 	arbitrary,
discriminatory, 	or in bad 	faith. 	United Teachers 	of Los Angeles
(Collins) 	(1983) 	PERB Decision No. 	258. 	In United Teachers of
Los Angeles 	(Collins). 	Id., 	the Public Employment Relations Board
(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

Warning 	Letter 	- 	S-CO-140-S
Page 5
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:
. 	. 	. 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
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
The 	allegations 	contained 	in the 	above-listed paragraphs 	fail 	to
assert 	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. 	In the
absence of 	specific 	allegations 	of arbitrary, 	discriminatory, 	or
bad 	faith denial 	of 	representation, 	you have 	failed to 	establish
a prima 	facie violation that CSEA breached 	its duty of 	fair
representation. 	Therefore, 	your allegations 	contained in the
above 	listed-allegations 	that 	CSEA violated 	its 	duty of 	fair
representation shall 	be dismissed.
Your 	charge 	also 	contains 	the 	following 	listed allegations 	that
appear to 	allege 	that 	CSEA violated 	its 	duty of 	fair
representation by engaging 	in reprisals, 	acts 	of retaliation,
discrimination, 	interference, 	restraint and coercion for your
exercise of 	rights 	during 	internal 	union business 	and meetings:
P. 	1, paragraphs 	1 and 2; 	P. 	2, paragraphs 3, 	5, 	8, 	9,
10, 	11, 	14 and 15; P. 	3, paragraphs 1, 	4 and 8; 	P. 	5,
paragraph 17; 	P. 	6, paragraphs 25, 	26 and 27; 	P. 	7,
paragraphs 28 and 34; P. 	13, paragraphs 95, 	96, 	97, 	98
and 99;
P. 	14, paragraphs 100, 	101, 	104 and 105; P. 	15,
paragraphs 106, 	107, 	108, 	109 and 110; 	P. 	16,
paragraphs 	111A, 	and 111G; 	P. 	17, paragraphs 	111H,
111J(3), 	111J(4), 	111J(5) 	and 111J(6); 	P. 	20,
paragraphs 111O, 111P and 	112; 	P. 	23, 	paragraphs 	113I,
113J and 	113K.

Warning Letter 	- 	S-CO-140-S
Page 6
The 	duty 	of 	fair 	representation 	extends 	only 	to 	union activities
that have 	a 	substantial 	impact on the relationships 	of unit
members 	to 	their 	employers 	and does 	not 	apply 	to those 	activities
which do 	not directly 	involve 	the 	employer 	or which 	are 	strictly
internal union matters. 	Service Employees 	International Union,
Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106; 	Rio Hondo
College Faculty Association. 	CTA/NEA 	(1986) 	PERB Decision No.
583.
The 	allegations 	in the 	above-listed paragraphs 	refer 	to
activities which 	are 	strictly 	internal 	union matters 	and 	do 	not
have a 	substantial 	impact on the relationships 	of 	unit members 	to
their employers. 	Therefore, 	those allegations 	shall also be
dismissed.
However, 	when allegations 	of reprisal 	for protected activity are
present, 	if the allegations 	state 	facts 	supporting retaliation by
an employee organization, 	internal union activities 	may be
reviewed. 	Such 	an 	inquiry must 	go 	forth under Carlsbad 	Unified
School District 	(1979) 	PERB Decision No. 	89 	and/or Novato Unified
School District 	(1982) 	PERB Decision No. 	210, 	as to whether the
employee 	organization's 	actions were motivated by 	a 	charging
party's 	exercise of protected rights. 	California 	State
Employees' 	Association 	(O'Connell) 	(1989) 	PERB Decision No.
753-H.
To demonstrate a violation, 	you must 	show that you 	engaged in
protected 	activity, 	that the 	employee 	organization had 	knowledge
of 	such activity, 	and 	(3) 	the employee organization imposed or
threatened to 	impose 	reprisals, 	discriminated or threatened to
discriminate, 	or otherwise 	interfered with, 	restrained or coerced
the 	employees because of the 	exercise of 	those rights. 	Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89. 	Although
your charge 	contains 	some allegations 	of your 	engaging 	in
protected 	activity 	and 	knowledge 	of 	such 	activity 	by CSEA, 	your
charge 	fails 	to demonstrate 	that CSEA's 	actions were motivated by
your exercise of protected rights. 	Therefore, 	your allegations
must be 	dismissed.
For these reasons, 	your 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

Warning 	Letter 	- 	S-CO-140-S
Page 	7
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 	March
10, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Michael 6. GashMichael E. 	Gash
Regional 	Attorney