California State Employees Association (Fox) (PERB 1099S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOYCE 	FOX,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-167-S
PERB Decision No. 	1099-S
May 4, 	1995
Appearance: 	Cathy R. 	Hackett 	for Joyce Fox.
Before Blair, 	Chair; 	Garcia and Caffrey, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on an appeal 	filed by Joyce 	Fox 	(Fox) 	of
a Board agent's 	dismissal 	(attached) 	of 	her unfair practice
charge. 	In her charge, 	Fox alleged that 	the California State
Employees Association denied her 	the 	right 	to 	fair 	representation
in violation of 	section 3519.5(b) 	of 	the Ralph C. 	Dills Act
(Dills Act)1 when it 	refused to 	finance her legal 	representation
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Dills Act 	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.

before 	the 	State 	Personnel 	Board and 	failed 	to 	file 	a grievance
or unfair practice 	charge 	against 	her employer.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the warning and dismissal 	letters, 	Fox's unfair
practice 	charge and her appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CO-167-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia and Caffrey 	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
January 24, 	1995
Joyce 	Fox
Re: 	Joyce 	Fox v. 	California State Employees Association
Unfair 	Practice 	Charge 	No. 	S-CO-167-S
DISMISSAL 	LETTER
Dear Ms. 	Fox:
On June 	21, 	1994 	you 	filed 	the above-referenced charge 	alleging
violations 	of 	Government 	Code 	section 	3519.5 	by 	the 	California
State Employees Association 	(CSEA). 	Specifically you allege 	that
you did not 	receive 	fair 	representation 	from CSEA, 	and were
discriminated 	against 	by 	that 	organization.
I 	indicated 	to you 	in my attached 	letter dated September 	21,
1994, 	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
September 28, 	1994, 	the charge would be dismissed.
You 	filed the First Amended Charge 	on October 12, 	1994. 	On
December 8, 	1994, 	accompanied by Cathy Hackett, 	you met with me
in my office 	to discuss 	this 	charge.
You 	contend 	in your 	amended 	charge 	that 	CSEA 	committed 	an unfair
labor practice by not 	filing 	an unfair practice 	charge 	or a
grievance 	against 	your 	employer. 	You 	allege 	that 	CSEA should
have 	taken 	these 	actions 	because 	your 	employer 	improperly
discriminated 	against 	you by 	refusing 	to 	honor 	a 	tentative
agreement 	involving 	a 	job 	transfer.
According 	to your 	charge, 	CSEA representative Gerri 	Conway
testified at 	a 	PERB unfair practice 	hearing 	that 	in June 	of 	1993
she 	had 	secured 	a 	tentative 	agreement 	on an adverse 	action which

Dismissal 	Letter
January 24, 	1995
Page 2
included your transfer, 	but 	that 	the 	transfer agreement 	was 	not
honored because 	of 	employer 	reaction 	to 	the 	distribution 	of 	a
leaflet 	at 	the building where you were 	employed. 	The 	leaflet 	was
highly 	critical 	of 	your 	supervisor. 	Conway testified 	that 	you
were aware 	of 	the 	leaflet and its 	distribution. 	Because 	of 	the
leaflet, 	state management 	withdrew from the 	settlement 	of 	the
adverse 	action which 	included 	said 	transfer.
You 	contend 	that 	CSEA's 	failure 	to 	file 	an unfair practice 	charge
or grievance, 	based on the above 	facts, 	was a reprisal 	and a
violation 	of 	CSEA's 	duty 	of 	fair 	representation because 	of 	your
membership 	in 	the 	State 	Employee's 	Caucus 	for Democratic 	Union.
CSEA was 	under no 	obligation 	to 	file 	an unfair 	labor practice
against 	your employer in this matter. 	As 	I 	explained 	in my
dismissal 	of your 	charge 	against 	the 	employer 	in 	PERB 	Case No.
S-CE-720-S, 	CSEA and the 	state 	employer are parties 	to a
collective 	bargaining agreement 	which 	contains 	a 	reprisal 	clause
and a grievance procedure 	which 	ends 	in binding arbitration.
For the 	reasons 	stated 	in that 	dismissal, 	an unfair labor
practice 	charge 	which would have 	been 	filed by 	CSEA would have
been 	deferred 	to 	the 	collective 	bargaining 	agreement 	by 	PERB.
You have 	also not 	demonstrated 	that 	CSEA violated 	its 	duty 	of
fair 	representation or 	taken an 	illegal 	reprisal 	against 	you by
not 	filing a grievance. 	In order to demonstrate 	a violation of
the union's 	duty of 	fair 	representation, 	the 	charging party must
demonstrate 	that 	the union acted without 	a 	rational 	basis 	or 	for
reasons 	that were* arbitrary or based on 	invidious 	discrimination.
(Sacramento City Teachers Association 	(1984) 	PERB Dec. 	No. 	42 8.)
Even 	a 	grievance with arguable merit 	may be 	rejected by 	the 	union
if 	the 	grievance 	could damage 	terms 	and conditions 	for 	the
bargaining unit 	as 	a whole. 	(Castro Valley Unified School
District 	(1980) 	PERB Dec. 	No. 	149.) 	Because you have supplied no
facts 	which demonstrate 	that 	the 	union acted without 	a 	rational
basis 	or 	for 	reasons 	that 	were 	arbitrary when 	it 	did not 	file 	a
grievance 	against 	the 	employer with whom 	it 	had worked 	out 	the
tentative agreement, 	you have not 	demonstrated a violation of 	the
union's 	duty of 	fair representation.
Additionally, 	you have not 	supplied sufficient 	facts 	to
demonstrate 	that 	CSEA took an 	illegal 	reprisal 	against 	you.
Membership 	in 	the 	State 	Employee 	Caucus 	for a Democratic 	Union
may be protected activity, 	but you have 	supplied no 	facts 	that
demonstrate 	such membership motivated 	CSEA 	to 	discriminate
against 	you. 	Further, 	CSEA had been representing you 	in your
adverse 	action and 	in 	the 	settlement 	negotiations 	even 	though 	the
duty 	of 	fair 	representation 	is 	not 	applicable 	in a non-
(

Dismissal 	Letter
January 24, 	1995
Page 3
contractual 	disciplinary proceedings. 	(Professional 	Engineers 	in
California Government 	(Lopez) 	(1989) 	PERB Dec. 	No. 	760-S.)
For the reasons given above, 	and in my September 21, 	1994 	letter,
your 	charge must 	be 	dismissed.
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
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.
' > ••
( (

Dismissal 	Letter
January 24, 	1995
Page 4
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
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Mark DeBoer
Cathy 	Hackett
BMC:mmh

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
September 21, 	1994
Joyce 	Fox
Re: 	Joyce 	Fox v. 	California State Employees Association
Unfair 	Practice 	Charge 	No. 	S-CO-167-S
WARNING 	LETTER
Dear Ms. 	Fox:
On June 	21, 	1994 you 	filed the 	above-referenced charge 	alleging
violations 	of 	Government 	Code 	section 	3519.5 	by 	the 	California
State 	Employees Association 	(CSEA). 	Specifically you allege 	that
you 	did 	not 	receive 	fair 	representation 	from CSEA, 	and were
discriminated against 	by 	that 	organization.
In May of 	1993 	you were 	given an adverse 	action by your employer,
the 	State 	of 	California. 	A Skelly hearing was 	scheduled 	for June
of 	1993. 	You were 	represented 	in 	that 	Skelly hearing by a
representative 	of 	CSEA. 	Shortly before 	the Skelly hearing, 	you
distributed 	fliers 	at 	the Department 	of 	Consumer Affairs
headquarters 	regarding working 	conditions 	of 	state 	employees 	at
the Medical 	Quality Board. 	At 	the 	time 	of 	the hearing, 	on or
about 	June 	29th, 	the employer 	representative withdrew an offer
for a 	settlement 	for 	the 	adverse 	action allegedly 	in 	response 	to
your distribution of 	the 	fliers. 	After the Skelly hearing, 	you
and your 	CSEA representative 	made preparations 	to 	appeal 	the
employer's 	decision to 	the 	State 	Personnel 	Board 	(SPB). 	An SPB
hearing 	was 	scheduled 	for November 	2nd.
By letter of October 28, 	1993, 	you 	informed Jerry Conway, 	a labor
relations 	representative 	for 	CSEA that 	you were 	releasing 	that
organization 	from assisting 	you 	with your appeal 	presentation.
The 	letter 	expressed dissatisfaction 	in 	the manner with which 	you
were 	being 	represented 	and 	informed 	CSEA 	that 	you would be
seeking 	outside 	legal 	assistance 	and 	requesting 	financial
assistance 	for that 	legal 	assistance. 	On January 6, 	1994 you
sent a letter to Bob Zenz, 	the general manager of 	CSEA. 	In that
letter 	you 	expressed dissatisfaction with 	the 	way you 	had been
represented by Jerry Conway at 	the 	Skelly hearing. 	You 	further
informed him that you had a hearing date 	of January 	19, 	1994 	for
your SPB 	case, 	and asked 	for 	$1,000.00 	to hire your own
representative.
Your 	charge 	alleges 	that 	CSEA has 	denied your 	request 	for 	funds
to hire private 	legal 	counsel. 	You also 	indicate 	that you have
'
' (

S-C0-167-S
September 21, 	1994
Page 2
not 	had your 	case 	set 	for a 	hearing with the 	SPB because 	of
delays 	in 	seeking 	representation.
In California State Employees Association 	(Parisi) 	(19 89) 	PERB
Dec. 	No. 	733-S, 	the Board determined that the duty of 	fair
representation does 	not 	extend 	to proceedings 	before 	the 	State
Personnel 	Board. 	The 	right 	of 	an employee 	to appear before 	the
SPB 	is 	an 	individual 	right 	and 	is 	not 	connected with negotiation
or administration of 	the 	collective bargaining agreement. 	An
employee may 	retain private 	counsel 	for 	representation 	in 	such an
extra-contractual 	forum. 	Because 	CSEA is 	under no 	obligation 	to
represent you before 	the 	State 	Personnel 	Board, 	a denial 	of
financial 	assistance 	to hire 	private 	counsel 	would also 	be
outside 	the duty of 	fair representation. 	Additionally, 	I 	am
aware 	of 	no 	obligation 	of 	an 	employee 	organization 	to provide
funds 	for outside 	legal 	counsel 	when an employee has 	rejected
representation by 	that 	organization.
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 additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	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
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 	September 28, 	1994,
I 	shall 	dismiss your charge. 	If 	you have any questions, 	please
call me at 	(916) 	322-3198 	extension 355.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
BMCrmmh
(