California Correctional Peace Officers Association (Kashtanoff) (PERB 1007S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PAUL NICOLAS KASHTANOFF,
Charging Party, Case No. SF-CO-24-S
Vv. PERB Decision No. 1007-S

CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,

July 29, 1993

Respondent.

ee ee ee ee ee ee ee

Appearance: Paul Nicolas Kashtanoff, on his own behalf.

Before Blair, Chair; Caffrey and Carlyle, Members.

DECISION AND ORDER

CARLYLE, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Paul Nicolas Kashtanoff
(Kashtanoff) of a Board agent’s dismissal (attached hereto) of
his unfair practice charge. In the charge, Kashtanoff alleged
that the California Correctional Peace Officers Association
violated section 3519.5(b) of the Ralph C. Dills Act (Dills Act)!
by violating its duty of fair representation.

The Board has reviewed the warning and dismissal letters,
the original and amended charge, Kashtanoff’s appeal and the

entire record in this case. The Board finds the Board agent’s

'The 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.

dismissal to be free of prejudicial error and adopts it as the
decision of the Board itself.
The unfair practice charge in Case No. SF-CO-24-S is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Blair and Member Caffrey joined in this Decision.
2

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
April 20, 1993
Paul Nicolas Kashtanoff
Re : 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Paul Nicolas Kashtanoff v. California Correctional Peace
Officers Association
Unfair Practice Charge No. SF-CO-24-S
Dear Mr. Kashtanoff:
The above-referenced unfair practice charge, filed on April 2,
1993, alleges that the California Correctional Peace Officers
Association (Association) failed to represent Charging Party in
proceedings before the State Personnel Board (SPB) . This conduct
is alleged to violate Government Code section 3519.5 (b) of the
Ralph C. Dills Act (Dills Act) .
I indicated to you, in my attached letter dated April 9, 1993,
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
April 19, 1993, the charge would be dismissed.
On April 19, 1993, an amended charge was filed. The amended
charge alleges that the Association's attorney, Mark Steinberg,
engaged in bad faith conduct in setting Charging Party's State
Personnel Board (SPB) case for hearing. The amended charge
contains allegations concerning background information involving
events prior to the initiation of the SPB proceedings. The
amended charge alleges that Steinberg failed to pursue sexual
harassment and discrimination charges based on San Quentin State
Prison's attempt to label Charging Party a homosexual. Steinberg
is also alleged to have failed to represent Charging Party's
interests vigorously in the SPB matter because he did not believe
that homosexuals should work at San Quentin. The amended charge
also alleges that an unnamed Association representative stated
that the Association was unwilling to represent Charging Party
because he was a homosexual.
As noted in the undersigned's April 9, 1993 letter, PERB does not

Dismissal, etc.
SF- CO-24-S
April 20, 1993
Page 2
have jurisdiction over the claims that the Association failed to
represent Charging Party properly in the SPB proceedings because
the Association's duty of fair representation under the Dills Act
only covers matters which may be raised through the grievance
procedure of the collective bargaining agreement, as opposed to
such extra- contractual proceedings as those before the SPB.
There is no showing in the charge or the amended charge that the
Association failed to pursue a meritorious grievance under the
collective bargaining agreement for arbitrary, discriminatory or
bad faith reasons.
Therefore, I am dismissing the charge based on the facts and
reasons contained above and in my April 9, 1993 letter.
Right to Appeal	
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"	
"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. 	·

Dismissal, etc.
SF-CO-24-S
April 20, 1993
Page 3
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	
ROBERT
Deputy General Counsel
By 	-	DONN-DONN GINOZA
GI~A--------
Regional Attorney	
Regional
Attachment
cc: Mark A. Steinberg

STATE OF CALIFORNIA	c~:1r=oRNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
i''~t1,EIH
PERS
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♦
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San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
April 9, 1993
Paul Nicolas Kashtanoff
Re: 	WARNING LETTER
Paul Nicolas Kashtanoff v. California Correctional Peace
Officers Association
Unfair Practice Charge No. SF-CO-24-S
Dear Mr. Kashtanoff:
The above-referenced unfair practice charge, filed on April 2,
1993, alleges that the California Correctional Peace Officers
Association (Association) failed to represent Charging Party in
proceedings before the State Personnel Board (SPB) . This conduct
is alleged to violate Government Code section 3519.5 (b) of the
Ralph C. Dills Act (Dills Act) .	
R~lph
Investigation of the charge revealed the following. Paul Nicolas
Kashtanoff was employed by the Department of Corrections and was
assigned to work at the San Quentin Correctional Facility.
Kashtanoff was separated from employment allegedly for
misconduct . 	Prior to the effective date of the dismissal,
Kashtanoff elected to retire from service. However, he appealed
the dismissal through the SPB. The Association agreed to
represent Kashtanoff at all settlement conferences during the
.proceedings .
By letter dated March 15, 1991, the Association notified
Kashtanoff of a scheduled settlement conference before the SPB on
April 8, 1991. By letter dated March 16, 1991, Kashtanoff
inquired of Mark Steinberg, attorney for the Association, if the
Association was still representing him. Kashtanoff indicates in
the letter that the Association had stated that they were	
were
representing him as "a courtesy. " He also states that he
believes that San Quentin is willing to work out a settlement
with him. The outcome of the April 8, scheduled conference is
not indicated in the charge.
By letter dated August 13, 1992, Steinberg informed Kashtanoff
that San Quentin was not willing to settle on Kashtanoff's terms.
Steinberg reminds Kashtanoff that it had agreed to represent him
"only in terms of a settlement" and that if he wished to proceed
beyond settlement negotiations he would have to retain his own
attorney or represent himself. Steinberg further advised
,

Warning Letter
SF- CO- 24 -S
April 9, 1993
Page 2
Kashtanoff that the matter is currently off calendar and would be
put back on calendar.
By letter dated August 13, 1992, Steinberg notified the SPB
administrative law judge that the case should be put back on
calendar due to the failure of settlement discussions to resolve
the matter. Kashtanoff telephoned Steinberg on August 14 to tell
him that he objected to the matter being placed back on calendar.
By letter dated August 17, 1992, Kashtanoff informed Steinberg
that he never authorized him to place the case back on calendar.
Kashtanoff further indicates that he still anticipates settling
the matter with San Quentin.
On August 17, 1992, Kashtanoff discussed his case with Steinberg
over the telephone. Steinberg told Kashtanoff that he believed
Kashtanoff had authorized him to place the matter back on
calendar. Steinberg indicated that he would resume
representation for the purpose of settling the case and that a
settlement conference with the SPB administrative law judge had
been scheduled for October 2, 1992.	
fo~
By letter dated August 18, 1992, Steinberg confirmed the points
of the August 17 telephone conversation and outlined the
objectives of the settlement conference, which included
modification of the date of separation in order to obtain health
benefits coverage and a change of the grounds for separation from
dismissal to some other ground.
By letter dated August 18, 1992, Mark Steinberg notified the SPB
that it would be representing Kashtanoff at the settlement
conference scheduled for October 2, 1992.
Kashtanoff did not agree to the terms of settlement offered by
San Quentin. He also did not agree with the settlement
objectives sought by the Association. Sometime in December 1992,
the Association withdrew from representation of Kashtanoff. 	The
Association did not appear at a settlement conference held on
January 4, 1993. Kashtanoff was required then to hire a private
attorney, at considerable personal expense.
Based on the facts stated above, the charge as presently written
fails to state a prima facie violation of the Dills Act 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

Warning Letter
SF- CO-24-S
April 9, 1993
Page 3
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.
Reed District Teachers Association, CTA/NEA
(Reyes) (1983) PERB Dec. No. 332, citing
Rocklin Teachers Professional Association
(Romero) (1980) PERB Dec. No. 124.)
There appears to be no claim that Kashtanoff requested
representation in a matter covered by the collective bargaining
agreement administered by the Association.
The claim in this case is that the Association abandoned
Kashtanoff during proceedings before the SPB. However, there is
no duty under the Dills Act requiring an exclusive representative
to represent employees in this forum. (American Federation of
State, County and Municipal Employees (Moore) (1988) PERB Dec.
No. 683-S; California Faculty Association (Pomerantsev) (1988)
PERB Dec. No. 698-H. ) If the Association does represent
employees in this forum, it is on a voluntary basis. 	Therefore,
no violation can be based on conduct involved in representing
employees before the SPB, even if the employee alleges harm as a
result of that representation.

Warning Letter
SF - CO-24-S
April 9, 1993
Page 4
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
Charge, contain all the facts and allegations you wish to make,
and must 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
April 19, 1993, I shall dismiss your charge. 	If you have any
questions, please call me at (415) 557-1350.
Sincerely,
DONN GINUZA	GlNu~A
Regional Attorney