American Federation of State, County and Municipal Employees (Clark) (PERB 0982H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LINDA 	ELLEN 	CLARK,
Charging 	Party,
v.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
Respondent.
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) 	Case No. 	SF-CO-28-H
PERB Decision No. 	982-H
March 	15, 	1993
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Appearance; 	Peter A. 	Janiak, 	Attorney, 	for Linda Ellen Clark.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on an appeal 	by Linda Ellen Clark 	(Clark)
to 	the Board agent's 	dismissal 	(attached hereto) 	of 	her unfair
labor practice 	charge. 	The 	charge alleged that 	the American
Federation of 	State, 	County and Municipal 	Employees 	(AFSCME)
violated section 3571.1(e) 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA)1 by failing to pursue her
grievance against 	the University 	of 	California at 	Santa 	Cruz 	to
arbitration, 	thereby breaching 	its 	duty of 	fair 	representation.
HEERA	1HEERA 	is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3571.1 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(e) 	Fail 	to represent 	fairly and impartially
all 	the 	employees 	in the unit 	for which it 	is
the 	exclusive 	representative.

The 	Board has 	reviewed 	the 	Board agent's 	warning and
dismissal 	letters 	and, 	finding 	them to be 	free 	of 	prejudicial
error, 	adopts 	them as 	the decision of 	the Board 	itself 	consistent
with 	the 	following 	discussion.
DISCUSSION
On appeal, 	Clark contends 	that AFSCME's 	refusal 	to proceed
to arbitration was 	the 	failure 	to perform a ministerial 	act 	and,
as 	such, 	was a breach of 	the duty of 	fair representation. 	In
support 	of 	this 	contention, 	Clark cites Dutrisac v. 	Caterpillar
Tractor Company 	(9th Cir. 	1983) 	749 	F.2d 1270, 	1272. 	In that
case, 	the union had determined to proceed with arbitration, 	but
inadvertently 	filed 	the 	request 	for arbitration 	two weeks 	late.
The 	court 	found 	that 	the union breached 	its 	duty of 	fair
representation when 	it 	negligently 	failed 	to perform 	its
ministerial 	duty of 	submitting 	the 	grievance 	to 	arbitration 	in
a 	timely manner.
In the 	instant 	case, 	Clark states 	that AFSCME 	first agreed
to 	take her 	case 	to arbitration, 	but 	later determined that 	they
were 	not 	going 	to 	continue 	the matter 	to arbitration. 	Clark
alleges 	no 	facts 	suggesting 	that 	the 	failure 	to proceed was
purely inadvertent. 	Therefore, 	we 	cannot view AFSCME's 	conduct
as 	the 	failure to perform a ministerial 	act. 	Further, 	the 	case
before 	the 	Board does 	not present 	circumstances 	which would
compel 	the 	Board 	to 	adopt 	a new standard 	for a violation 	of 	the
duty of 	fair 	representation.
22

ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-28-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in this 	Decision.
33

STATE OF CALIFORNIA 	PETE 	WILSON, 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
PERS
November 24, 	1992
Peter 	Janiak
675 N. 	First Street, 	#450
San Jose, 	California 	95112
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Linda E. 	Clark v. 	American Federation of State, 	County and
----Municipal 	Employees
Unfair Practice Charge No. 	SF-CO-28-H
Dear Mr. 	Janiak:
The above-referenced unfair practice 	charge, 	filed on September
23, 	1992, 	alleges that the American Federation of State, 	County
and Municipal 	Employees 	(AFSCME) 	breached its 	duty of 	fair
representation to Linda E. 	Clark. 	This 	conduct 	is alleged to
violate Government 	Code 	section 3571.1(e) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated November 	12,
1992, 	that 	the above-referenced charge did not 	state a prima
facie 	case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts which would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew it prior 	to
November 20, 	1992, 	the charge would be dismissed.
I 	have 	not 	received either an amended 	charge 	or a 	request 	for
withdrawal. 	Therefore, 	I am dismissing the 	charge based on the
facts and reasons 	contained 	in my November 	12, 	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:
Dismissal, etc.
SF-CO-28-H
November 24, 	1992
Page 	2
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, etc.
SF-CO-28-H
November 24, 	1992
Page 3
Sincerely,
ROBERT G. 	THOMPSON
Deputy General 	Counsel
By
DOTIN GINOZA
Regional 	Attorney
Attachment
cc: 	Nadra F. 	Wilson

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350
November 12, 19 92
Peter 	Janiak
675 N. 	First Street, 	#450
San Jose, 	California 	95112
Re: 	WARNING LETTER
Linda E. 	Clark v. 	American Federation of State, 	County and
----	Municipal 	Employees
Unfair Practice Charge No. 	SF-CO-28-H
Dear Mr. 	Janiak:
The 	above-referenced unfair practice 	charge, 	filed on September
23, 	1992, 	alleges that the American Federation of State, 	County
and Municipal 	Employees 	(AFSCME) 	breached 	its 	duty of 	fair
representation to Linda E. 	Clark. 	This 	conduct is alleged to
violate Government 	Code 	section 	3571.l(e) 	of the 	Higher Education
Employer-Employee Relations Act 	(HEERA).
Investigation of 	the 	charge 	revealed 	the 	following 	facts. 	Linda
E. 	Clark was 	employed by the 	University of California
(University) 	in May 	1989, 	when she reported to the campus
internal 	auditor at 	Stevenson College 	that 	a 	fellow employee
appeared to be 	embezzling University funds. 	Thereafter, 	the
University began to 	harass 	Clark and to 	otherwise retaliate
against her. 	In 	1991, 	the University medically 	separated Clark
from 	employment.
Clark filed a grievance on July 	22, 	1991, 	alleging that the
medical 	separation was 	made 	in 	retaliation 	for her
"whistleblowing" 	activities. 	Clark processed her grievance
through Step 	3 	of 	the process 	and was 	denied by the University at
each 	level. 	Step 	4 	of the process 	involves 	arbitration. 	Under
the 	collective bargaining agreement, 	if AFSCME desires 	to proceed
with arbitration 	it 	must 	initiate 	the 	request. 	Clark requested
that AFSCME pursue 	her grievance 	in arbitration.
AFSCME 	initially 	indicated 	that 	it would pursue 	the 	grievance.
At 	that time, 	Clark had obtained a private attorney to represent
her 	in her Worker's 	Compensation 	case. 	AFSCME 	advised Clark 	that
she 	could not utilize 	her private 	attorney 	in the 	arbitration.
After AFSCME 	filed 	its 	notice 	of 	intention to 	arbitrate 	the
grievance, 	it advised Clark that 	it would not proceed. 	On

June 	3, 	1992, 	the University notified AFSCME that the grievance
had been dismissed. 	Clark asserts 	that while AFSCME 	deliberated
over whether to proceed with the grievance, 	her time 	for
scheduling 	an 	arbitration 	lapsed.
Warning 	Letter
SF-CO-28-H
November 12, 	1992
Page 2
Clark has 	filed 	a 	civil 	suit 	against 	the 	University 	and 	the
University 	has 	defended 	by 	asserting 	that 	Clark 	failed 	to 	exhaust
her remedies 	through the 	grievance procedure. 	She 	claims 	that
AFSCME's 	inaction has 	caused her to 	forfeit her civil 	suit.
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.
In order 	to 	state 	a prima 	facie 	case 	involving a 	breach of 	the
duty of 	fair representation, 	facts 	must be alleged 	in the 	charge
indicating 	how and 	in what manner the Association refused 	to
process 	a meritorious 	grievance 	for arbitrary, 	discriminatory or
bad 	faith reasons. 	In United Teachers 	of 	Los Angeles 	(Collins)
(1982) 	PERB Dec. 	No. 	258, 	the PERB stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a grievance does 	not
constitute a breach of 	the union's 	duty.
A 	union may 	exercise 	its 	discretion to
determine 	how far to pursue 	a 	grievance 	on
the employee's behalf as 	long as 	it does 	not
arbitrarily 	ignore 	a 	meritorious 	grievance 	or
process 	a 	grievance 	in a perfunctory 	fashion.
A union 	is 	also 	not 	required to process 	an
employee's 	grievance 	if 	the 	chances 	for
success 	are minimal.
In order 	to 	state 	a prima 	facie 	case 	of 	arbitrary 	conduct
violating the duty of 	fair representation, 	a 	charging party:
. 	. 	. 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.
Warning 	Letter
SF-CO-28-H
November 12, 19 92
Page 3
(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) PERB Dec. No. 	332, 	citing
Rocklin 	Teachers 	Professional 	Association
(Romero) 	(1980) PERB Dec. 	No. 	124.)
In this 	case, 	the charge 	fails 	to demonstrate that the AFSCME's
decision not 	to pursue Clark's 	grievance 	in arbitration was
without 	a 	rational 	basis 	or devoid of honest 	judgment. 	AFSCME
was 	entitled 	to 	exercise 	discretion 	in determining 	how 	far 	to
proceed with the grievances, 	and, 	based on the 	facts 	alleged, 	did
not 	ignore 	a meritorious 	grievance or handle 	it 	in a perfunctory
manner. 	(United Teachers of Los Angeles 	(Collins), 	supra, 	PERB
Dec. No. 	258.)
The power 	to 	arbitrate under a 	collective bargaining 	agreement 	is
held exclusively by the union. 	It may prohibit an employee 	from
obtaining her own representative 	for 	such proceedings. 	(Chaffey
Joint Union High School District 	(1982) 	PERB Dec. 	No. 	202;
Fremont 	Unified 	District Teachers Association. 	CTA/NEA 	(King)
(1980) 	PERB Dec. 	No. 	125; 	Lane v. 	I.U.O.E. 	Stationary Engineers
(1989) 	212 Cal.App.3d 	164 	[260 Cal.Rptr. 	634].) 	Therefore, 	the
fact 	that AFSCME 	refused 	to 	allow Clark to 	have her own 	attorney
represent her 	in the 	arbitration does 	not amount 	to a 	violation
of 	the HEERA.
The assertion that AFSCME, 	through 	its 	indecision over whether to
proceed with arbitration, 	caused Clark to 	forfeit 	her 	civil 	law
suit under the doctrine 	of 	exhaustion of 	administrative 	remedies
is 	a dubious 	legal 	conclusion. 	Even assuming arguendo 	that 	a
causal 	relation can be proven, 	a 	charging party 	claiming 	a 	breach
of 	the duty of 	fair representation must 	establish more 	than
negligence 	in the handling of 	a grievance 	to 	state a prima 	facie
violation. 	(Los 	Angeles 	City 	and County 	School 	Employees 	Union
(Scates) 	(1983) 	PERB Dec. 	No. 	341.)
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there 	are 	any 	factual 	inaccuracies 	in
this 	letter or any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend 	the 	charge
accordingly. 	The 	amended 	charge 	should be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First 	Amended
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Charge. 	contain all 	the 	facts 	and 	allegations 	you wish to 	make,
and 	must 	be 	signe	- d 	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
November 20, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(415) 	557-1350.
Warning 	Letter
SF-CO-28-H
November 12, 	1992
Page 	4
Sincerely,
DONN GINOZA
Regional 	Attorney