California State Employees Association (Carrillo) (PERB 1199S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GLORIA A. 	CARRILLO,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-189-S
PERB Decision No. 	1199-S
May 14, 	1997
Appearance: 	Gloria A. 	Carrillo, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Gloria A. 	Carrillo's 	(Carrillo) 	unfair practice
charge. 	As amended, 	Carrillo's 	charge alleges 	that 	the
California 	State 	Employees 	Association violated 	section 	3519.5(a)
and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 when it 	failed to
adequately 	represent 	Carrillo 	in appealing 	her automatic
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Dills Act 	section 3519.5 	reads, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause or attempt 	to cause the state to
violate Section 3519.
(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.

resignation 	from the 	California Department 	of 	Transportation.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	Carrillo's 	original 	and amended unfair practice 	charge,
the warning and dismissal 	letters, 	and Carrillo's 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.2
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-189-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
20n appeal, 	Carrillo contends 	that 	the Board agent 	erred in
citing 	cases 	interpreting 	the 	Educational 	Employment 	Relations
Act 	(EERA). 	It is well established, 	however, 	that the Board's
analysis 	of 	discrimination and duty of 	fair 	representation
allegations 	is 	the 	same under the Dills Act as 	it 	is under the
EERA. 	(See, 	e.g. 	California Union of Safety Employees 	(John)
(1994) 	PERB Decision No. 	1064-S at pp. 	11-12; 	California State
Employees' 	Association 	(Lemmons and Lund) 	(1985) 	PERB Decision
No. 	545-S at p. 	2, 	warning letter.)
22

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) 439-6940
PERU
January 28, 	1997
Gloria A. 	Carrillo
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Gloria A. 	Carrillo v. 	California State Employees Association
Unfair Practice Charge No. 	S-CO-189-S
Dear Ms. Carrillo:
The above-referenced unfair practice charge alleges 	the
California State Employees Association 	(CSEA) 	violated its duty
of 	fair representation when it 	failed to adequately represent you
in your employment with the State of California. 	This conduct is
alleged to violate Government Code section 3519.5(b) 	of the Ralph
C. Dills Act 	(Dills Act or Act).
I indicated to you, 	in my attached letter dated January 10, 	1997,
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
January 17, 	1997, 	the charge would be dismissed.
On January 15, 	1997, 	I returned your voice mail message
requesting an additional unfair practice 	form and an extension of
time to file your amended charge. 	I granted your extension
noting the amended charge must be filed by January 21, 	1997. 	I
further explained the case law pertaining to the duty of 	fair
representation, 	quoting directly from pages 5 and 6 of my January
10, 	1997, 	letter. 	I also reexplained that CSEA did not owe you a
duty of 	fair representation with regard to noncontractual
administrative proceedings, 	in this case all proceedings under
Government Code section 19996.2 pertaining to your AWOL status.
I 	further informed you that even if 	CSEA did owe you a duty of
fair representation, 	the facts as you stated them did not
demonstrate CSEA violated that duty. 	I noted that you must
provide 	facts demonstrating CSEA acted arbitrarily,
discriminatorily or in bad faith. 	You informed me you would
provide further facts 	in your amended charge and that you would

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 2
consult your attorney with regard to taking legal 	action against
PERB for dismissing your charge. 	On January 21, 	1997, 	I again
extended the deadline to file an amended charge until January 24,
1997.
On January 24, 	1997, 	you filed an amended charge which restates
your original allegations and adds 	the 	following.1 The amended
charge begins with your assertion that you were not AWOL when you
received Caltrans' 	letters on October 18, 	1995. 	You allege you
left messages 	for your supervisor on numerous occasions
throughout your illness, 	in conformance with past practice. 	You
further note your supervisor did not respond to your messages,
although it seems he did not receive them until two weeks after
you began calling. 	The amended charge also states Caltrans
treated you poorly starting in May of 	1992, 	and forced you to
accept a mediocre position in May of 1995.
The amended charge further alleges 	that after receiving Caltrans
letter dated October 18, 	1996, 	you requested your doctor, 	Dr.
Melcher, 	respond to Caltrans' 	letter as your representative.
Although no letter is 	included in the amended charge, 	you state
Dr. 	Melcher contacted Caltrans and informed them you would not be
able to work until mid-December. 	It is your opinion that Dr.
Melcher's 	letter served to fulfill 	the requirement of a written
appeal pursuant to Government Code section 19996.2.2
1 Section 2 of the amended charge names both the employee
organization and your employer as Respondents in this case. 	The
amended charge 	further states you initially filed a charge
against both CSEA and your employer, 	the California Department of
Transportation 	(Caltrans). 	Section 2 of your original charge
names only CSEA as the Respondent in this case. 	Moreover,
Section 2 notes the charge can only name one 	(1) 	Respondent.
Thus, 	this charge deals only with your allegations against CSEA,
and will not be amended to include the Department of
Transportation. 	If you intend to file against the State of
California, 	you must do so on a separate unfair practice charge
form.
2 §19996.2 	states in pertinent part:
Absence without leave, 	whether voluntary or
involuntary, 	for five consecutive days is an
automatic resignation from state service as 	of
the last date on which the employee worked.
A permanent 	or probationary employee may within
90 days of the effective date of such
separation, 	file a written request with the
(

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 3
department for reinstatement; provided, 	that
if the appointing power has notified the
employee of his or her automatic resignation,
any request 	for reinstatement must be made
in writing and filed within 15 days of the
service of notice of separation. 	. 	. 	.
Reinstatement may be granted only if 	the
employee makes a satisfactory explanation
to the department as to the cause of his or
her absence and his or her failure to obtain
leave thereof, 	and the department finds that
he or she is ready, 	able, 	and willing to
resume the discharge of the duties of his or
her position, 	or if not, 	that he or she has
obtained the consent of his 	or her appointing
power to a leave of absence to commence upon
reinstatement.
With regard to CSEA's actions, 	you allege Mr. 	George did not
inform you a 	"Coleman" 	hearing was 	required before you returned
to work. 	You further assert that Ms. 	Seagraves inquired as to
your age when attempting to resolve the matter with Caltrans.
You contend such an inquiry is age discrimination. 	The amended
charge also asserts you did not 	inform CSEA that you did not want
to return to Caltrans, 	instead alleging you did not want to
return to your specific unit. 	The charge also states CSEA did
not tell you the 	"Coleman" 	hearing was to determine your fitness
to return to work.
Your further allege CSEA took too much time in sending your
retirement application forms and that Ms. 	Seagraves 	"screamed" at
you over the telephone, 	stating Caltrans did not want you to
return the department. 	The charge also contends that in
attempting to settle your problems with Caltrans, 	CSEA never
informed you that 	the 	settlement agreement 	they reached with
Caltrans was not a 	"draft". 	The agreement Ms. 	Seagraves
presented included a provision requiring you to drop all 	claims
pending against Caltrans in return for Caltrans removal of your
AWOL status and complete confidentiality in this matter. 	You
refused to sign the settlement agreement based in part upon the
inclusion of this provision, 	and returned the agreement to Ms.
Seagraves. 	Additionally, 	you assert CSEA failed to seek a writ
of mandate on your behalf, 	and that they coerced you into
agreeing not to return to Caltrans.
The amended charge also asserts 	that I 	failed to inform you as to
the necessary elements in a prima facie violation of the duty of
fair representation. 	You further allege that CSEA discriminated

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 4
against you in the handling of this 	issue based on your age and
in retaliation for a prior complaint you filed against a CSEA
employee. 	The amended charge states that in September, 	1992, 	you
complained about 	the negligent handling of a grievance by Karen
Cole, 	a CSEA representative. 	Ms. 	Cole apparently filed an unfair
practice charge on your behalf without your knowledge or consent.
You complained about this conduct to Mr. 	Guilamino and Yolanda
Solari. 	You further allege that upon meeting Ms. 	Seagraves for
the first time she remarked that she 	"knew" 	of you, 	citing the
numerous problems you had within your unit. 	Additionally, 	you
state that in 1992, 	CSEA representative Sandy Davidson told you
CSEA would not represent you unless you became a member of 	the
organization.
The amended charge also alleges 	that under Government Code
section 19996 you had a property interest 	in your position at
Caltrans, 	and were denied due process 	in not being able to seek
reinstatement. 	You also assert that dismissal under Government
Code section 19996 	requires your removal 	from all state
employment lists, 	making Ms. 	Seagraves contention that you could
be rehired by another State agency a lie. 	Your also cite Doyle
v. 	Miller 	(1953) 	114 Cal.App.2d 347, 	for the contention that you
could not be removed from your position without 	cause, 	and an
opportunity for a full hearing.
Finally, 	you allege CSEA stalled in handling your problems with
Caltrans and caused you to be out of work. 	You contend CSEA
acted in bad faith and in a negligent manner with regard to your
problems with Caltrans, 	and as such violated the duty of fair
representation.
Based on the above stated facts, 	and assuming your facts to be
true, 	the charge fails to state a prima facie violation of the
duty of fair representation, 	and therefore must be dismissed.3
As fully set forth in my January 10, 	1997, 	letter, 	and explained
during our telephone conversation on January 15, 	1997, 	CSEA does
not owe you a duty of 	fair representation in noncontractual
administrative proceedings. 	The duty of fair representation is
limited to contractually based remedies under the union's
exclusive control. 	Thus, 	PERB will dismiss charges based on
alleged union failures 	to pursue noncontractual administrative or
3 The amended charge also requests an additional 	extension
of 	time so that you may fully investigate the case law cited in
my January 10, 	1997, 	letter and to provide more information. 	As
I have already granted you two extensions and have 	fully cited
the applicable case law, 	your request for more time is denied.

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 5
judicial 	relief. 	(California Union of Safety Engineers 	(John)
(1995) 	PERB Decision No. 	1064-S 	(no duty of fair representation
obligation attached to disciplinary matter before SPB); 	San
Francisco Classroom Teachers Association 	(Chestangue) 	(1985) 	PERB
Decision No. 	544 	(association need not represent teacher in a
mental 	illness proceeding under the Education Code).)
To the extent 	that your charge alleges CSEA failed to fairly
represent you with regard to the 	"Coleman" 	hearing and the
subsequent settlement attempt, 	the charge fails to state a prima
facie case. 	Additionally, 	to the extent your charge alleges CSEA
failed to fairly represent you with regard to the filing of a
writ of mandate, 	the charge is dismissed.
The amended charge cites Government Code section 19996 and
subsequent case law under that section, 	for the proposition that
you were denied due process in the loss of your job with
Caltrans. 	However, 	you were not 	"terminated" under Government
Code section 19996, 	but instead 	"automatically resigned" under
Government Code section 19996.2. 	When the state exercises its
statutory authority under Government Code section 19996.2(a) 	to
treat an employee's unexcused absence 	from state employment 	for
five consecutive working days as an 	"automatic resignation", 	the
state must give notice to the employee of the facts supporting
the 	resignation and an opportunity to respond. 	(Coleman v.
Department of Personnel Administration 	(1991) 	52 Cal.3d 1102,
1122-23.) 	If the employee challenges the accuracy of the state's
factual basis, 	the state must, 	as soon as practicable, 	give the
employee an opportunity to present his or her version of 	the
facts in front of a neutral fact finder. 	(Id.) 	Pursuant to
Government Code section 19996.2, 	as quoted above	- 	, 	in order to
proceed to a 	"Coleman" hearing, 	the employee must file a timely
formal appeal of the resignation with the Department of Personnel
Administration and be ready, 	willing and able to report to work.
In the instant case, 	a "Coleman" hearing was not held, 	as you
were not ready, 	willing and able to report to work and continue
your prior job duties. 	Although you deny you were AWOL, 	stating
you telephoned your supervisor numerous times, 	such a factual
assertion does not alter the provision, 	its requirements, 	or
CSEA's duty thereunder.
As 	stated above, 	PERB will dismiss charges based on alleged union
failures to pursue noncontractual administrative relief.
Additionally, 	although CSEA chose to represent you prior to the
"Coleman" hearing, 	PERB's jurisdiction is limited to examining
CSEA's role as an exclusive representative. 	Thus, 	PERB cannot
pass judgment on CSEA's duties which may arise by virtue of its
fiduciary duty to its members outside the exclusive
representative 	setting. 	(California State Employees Association

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 6
(Parisi) 	(1989) 	PERB Decision No. 	733-S.) 	For this reason, 	your
assertion that 	CSEA failed to fairly represent you with regard to
the 	"Coleman" hearing, 	the settlement and the writ of mandate are
dismissed.
Assuming, 	however, 	CSEA owed you a duty of fair representation
following your automatic resignation, 	the charge fails to state a
prima facie violation.4 Charging Party has alleged that 	the
exclusive representative denied Charging Party the 	right 	to 	fair
representation guaranteed by Dills Act section 3519.5(b). 	The
duty of 	fair representation imposed on the exclusive
representative extends 	to grievance handling. 	(Fremont Teachers
Association 	(King) 	(1980) 	PERB Decision No. 	125; United Teachers
of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.) 	In order
to state a prima facie violation of this section of EERA,
Charging Party must 	show that 	the Association's 	conduct was
arbitrary, 	discriminatory or in bad faith. 	In United Teachers of
Los Angeles 	(Collins). 	the Public Employment Relations Board
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.
[Citations.]
A union may exercise 	its discretion to
determine how far to pursue a grievance in
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or
4 Page 8 of the amended charge alleges 	I failed to inform
you of the necessary elements of a prima facie violation of the
duty of fair representation. 	Such an allegation is untrue.
Pages 5, 	6, 	and 7, 	of my January 10, 	1997, 	letter fully set forth
the elements necessary for a prima facie violation, 	stating in
part at page 5:
In order to state a prima facie violation of
this section of EERA, 	Charging Party must
show that 	the Association's 	conduct was
arbitrary, 	discriminatory or in bad faith.
The letter goes on to explain the meaning of that standard,
citing numerous PERB cases. 	Moreover, 	during our January 15,
1997, 	telephone conversation, 	I explained in detail the elements
necessary to state a prima facie 	case and provided you with
relevant case cites.

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 7
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. 	(Emphasis added.)" 	[Reed District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 332, p. 9, 	citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
The amended charge and the original 	charge contain a number of
factual inconsistencies, 	including your assertion in the amended
charge that Mr. 	George never informed you a hearing was necessary
in order to return to work at Caltrans. 	Indeed, 	Caltrans letter
and your subsequent allegations demonstrate you were aware a
hearing was necessary under Government Code section 19996.2.
However, 	assuming your facts as true, 	you further allege CSEA:
(1) 	failed to explain the Coleman hearing process; 	(2) 	informed
you that Caltrans did not want you back; 	(3) 	failed to inform you
the settlement agreement was nonnegotiable; 	(4) 	coerced you into
seeking retirement benefits; 	(5) 	stalled in the handling of your
issues with Caltrans; 	and 	(6) 	discriminated against you based on
your age and in retaliation for your complaints against CSEA
representatives. 	With regard to allegations 1 through 6 above,
the charge fails to state a prima facie case.
The amended charge alleges CSEA stalled in the handling of your
problems with Caltrans and failed to keep you apprised of 	the
status. 	However, 	the charge fails to demonstrate CSEA's handling
of your problems was without a rational basis or devoid of honest
judgment. 	From the date you contacted CSEA in early December
until 	the date CSEA presented you a settlement agreement, 	less
than three months elapsed. 	Thus, 	although CSEA did not work fast
enough for your satisfaction, 	the charge does not demonstrate
CSEA's handling was devoid of honest judgment. 	You further
allege CSEA failed to file a timely appeal 	of your resignation
and failed to 	inform you that 	the statute of limitations was not
tolled during the negotiation process. 	As stated in my January
10, 	1997, 	letter, 	CSEA did not appeal the automatic resignation

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 8
as you did not wish to return to your unit. 	Moreover, 	even if
CSEA's conduct was negligent, 	such a finding does not result in a
violation of the duty of 	fair representation. 	A breach of the
duty of 	fair representation is not stated merely because a union
negligently forgets 	to file a timely appeal. 	(San Francisco
Classroom Teachers Association 	(Bramell) 	(1984) 	PERB Decision No.
430.) 	Mere negligence by a union in grievance handling does not
constitute a breach of the duty of 	fair representation.
(California School Employees Association 	(1984) 	PERB Decision No.
427.)
With regard to your allegation that 	CSEA coerced you into seeking
retirement benefits and failed to 	inform you the settlement
agreement was nonnegotiable, 	the charge again fails to state a
prima facie case. 	The amended charge alleges CSEA coerced you
into seeking retirement benefits 	in lieu of 	returning to your
position at Caltrans. 	However, 	neither the original charge nor
the amended charge present any evidence of such coercion. 	CSEA
merely suggested you 	consider retirement 	rather than returning to
a unit you had stated you wished to stay away from. 	Moreover,
you subsequent actions in travelling to the Public Employees
Retirement System's 	(PERS) 	office and the filing of the
appropriate paperwork do not demonstrate CSEA forced you 	into
accepting retirement. 	Additionally, 	the amended charge alleges
CSEA failed to 	inform you the 	settlement 	conditions were
nonnegotiable. 	Upon receiving the settlement agreement, 	you
chose not to sign it as you did not want to drop all 	charges you
had pending against Caltrans. 	Ms. 	Seagraves informed you that
because you failed to sign the settlement agreement, 	CSEA would
no longer represent you. 	The amended charge does not present any
facts demonstrating CSEA's refusal 	to continue to represent you
after your rejection of the settlement was arbitrary or in bad
faith.
You allege CSEA discriminated against based on your age and 	in
retaliation for your complaints against CSEA representatives. 	As
stated in the January 10, 	1997, 	letter, 	PERB lacks jurisdiction
over federal and state claims based on age discrimination, 	and
thus your allegation that 	CSEA discriminated against you based on
your age is dismissed.
With regard to your assertion that 	CSEA retaliated against you
based on prior complaints, 	the charge again fails to demonstrate
a prima facie case. 	To demonstrate a violation of Dills Act
section 3519.5(b), 	the charging party must show that: 	(l) 	the
employee exercised rights under the Dills Act; 	(2) 	the employee
organization had knowledge of the exercise of those rights; 	and
(3) 	the employee organization imposed or threatened to impose
reprisals, 	discriminated or threatened to discriminate, 	or

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 9
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; Department of Developmental
Services 	(1982) 	PERB Decision No. 228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Although the timing of 	the employee organization's adverse action
in close temporal proximity to the employee's protected conduct
is an important factor, 	it does not, without more, 	demonstrate
the necessary connection or 	"nexus" 	between the adverse action
and the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of the following additional 	factors must also be present:
(1) 	the employee organization's disparate treatment of the
employee; 	(2) 	the employee organization's departure from
established procedures and standards when dealing with the
employee; 	(3) 	the employee organization's inconsistent or
contradictory justifications for its actions; 	(4) 	the employee
organization's 	failure to offer the employee justification at 	the
time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(5) 	any other facts which might demonstrate
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this charge fails to demonstrate
any of these factors. 	The mere 	fact that Charging Party
complained about a CSEA representative five years ago, 	and Ms.
Seagraves acknowledgment 	that 	she had heard about Charging
Party's problems, 	do not demonstrate any of CSEA's actions or
inactions were retaliatory or discriminatory. 	Thus, 	the charge
fails to state a prima facie violation of Dills Act section
3519.5(b) .
Finally, 	Charging Party also asserts that in 1992, 	CSEA
representative Sandy Davidson refused to provide Charging Party
representation because she was not a union member. 	Such an
allegation must be dismissed as 	it 	falls outside PERB's statute
of limitations. 	Government Code section 3514.5(a)(1) 	states the
board shall not 	"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." 	As the alleged statement was
made five years ago, 	it is clearly outside of PERB's
jurisdiction.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained herein and in my January 10, 	1997, 	letter.

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 10
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.
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.)

Dismissal 	Letter
S-CO-189-S
January 28, 	1997
Page 11
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 Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Catherine Kennedy, 	CSEA

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) 439-6940
January 10, 	1997
Gloria A. 	Carrillo
Re: 	WARNING LETTER
Gloria A. 	Carrillo v. 	California State Employees Association
Unfair Practice Charge No. 	S-CO-189-S
Dear Ms. Carrillo:
The above-referenced unfair practice charge alleges 	the
California State Employees Association 	(CSEA) 	violated its duty
of 	fair representation when it 	failed to adequately represent you
in your employment with the State of California. 	This conduct is
alleged to violate Government Code section 3519.5(b) 	of the Ralph
C. Dills Act 	(Dills Act or Act) .
Investigation of the charge revealed the following. 	Prior to
March 1996, 	you were employed by the California Department of
Transportation 	(Caltrans) 	and were exclusively represented by
CSEA in bargaining unit 	1.
On or about October 12, 	1995, 	while hospitalized, 	you received
two letters from Caltrans, 	informing you that they considered you
to be absent without leave 	(AWOL) 	pursuant to Government Code
section 19996.2(a).1 The letters further stated you were not
1 §19996.2 states in pertinent part:
Absence without leave, 	whether voluntary or
involuntary, 	for five consecutive days is an
automatic resignation from state service as of
the last date on which the employee worked.
A permanent 	or probationary employee may within
90 days of the effective date of such
separation, 	file a written request with the
department for reinstatement; provided, 	that
if the appointing power has notified the
employee of his or her automatic resignation,
any request 	for reinstatement must be made
in writing and filed within 15 days of the

Warning Letter
S-CO-189-S
January 10, 	1997
Page 2
service of notice of separation. 	. . .
Reinstatement may be granted only if 	the
employee makes a satisfactory explanation
to the department as to the cause of his or
her absence and his or her failure to obtain
leave thereof, 	and the department finds that
he or she is ready, 	able, 	and willing to
resume the discharge of the duties of his or
her position, 	or if not, 	that he or she has
obtained the 	consent of his or her appointing
power to a leave of absence to commence upon
reinstatement.
authorized to be on medical 	leave and that you had failed to
inform Caltrans as to why you were not at work. 	Upon receiving
these letters, 	you contacted CSEA representative Charles George.
Mr. 	George informed you that he would contact CalTrans and
attempt to resolve the matter. 	Thereafter, 	Mr. 	George contacted
you and informed you that your AWOL status had to be resolved at
a formal hearing, 	to be scheduled when you were well enough to
attend. 	Such a hearing is 	frequently referred to as a 	"Coleman"
hearing.
On or about December 6, 	1995, 	you attempted to contact Mr. 	George
to schedule your formal hearing. 	After several attempts to
contact Mr. 	George, 	you were informed that he no longer worked
for CSEA. 	Upon learning this fact, 	you contacted Caltrans
Personnel 	Services and spoke with Lynn Brazelton about arranging
a hearing date. 	Mr. 	Brazelton informed you that you must have
CSEA representation at 	the hearing and scheduled the hearing for
the following day.
Following the scheduling of the hearing, 	you contacted CSEA
seeking representation and were 	informed that Gretchen Seagraves
would serve as your representative. 	Ms. 	Seagraves requested that
you meet with her prior to the hearing to discuss your situation.
During your meeting with Ms. 	Seagraves and her supervisor, 	Frank
Guiliamino, 	you were informed that the hearing served a purpose
only if you were fit enough to return to work. 	As you did not
appear well enough to return to work, 	Ms. 	Seagraves suggested you
not attend the hearing.
Also during the December 7, 	1995 meeting, 	Ms. 	Seagraves inquired
as 	to whether or not you wished to return to your particular
office, 	as you had encountered problems in this office prior to
your illness. 	You informed Ms. 	Seagraves that you did not want
to return to your department. 	Ms. 	Seagraves also suggested you
consider disability retirement, 	which you agreed Ms. 	Seagraves

Warning 	Letter
S-CO-189-S
January 10, 	1997
Page 3
should pursue. 	Ms. 	Seagraves stated she would propose to
Caltrans at the hearing, 	that the agency place you on Disability
Retirement and allow you to collect Non-Industrial Disability
(NDI) 	leave during your absence. 	The charge further alleges that
you assumed, 	however, 	that the hearing would not take place until
you were ready to return to work. 	Additionally, 	you allege you
were not 	informed that the hearing was a 	"Coleman" hearing, 	and
instead were 	informed that 	the hearing was 	to determine your
fitness 	to return to work. 	After meeting with Caltrans
representatives, 	Ms. 	Seagraves informed you that Caltrans agreed
to place you on Non-Industrial 	leave and would be 	filing the
appropriate paperwork regarding this decision.
On or about December 21, 	1995, 	you contacted the Employment
Development Department 	(EDD) 	to inquire about the status of your
disability payments. 	You were informed by an EDD representative
that Caltrans had yet to file the appropriate paperwork, 	still
considering you to be on AWOL status. 	On this same date, 	you
contacted Ms. 	Seagraves and informed her of EDD's response. 	Ms.
Seagraves 	looked into the problem and assured you that 	the
miscommunication would be taken case of as soon as possible.
On or about January 6, 	1996, 	Mr. 	Guiliamino telephoned you and
informed you that CSEA would be sending you the necessary
paperwork to apply for disability retirement. 	You were further
informed that 	the paperwork needed to be 	completed within 120
days from the date of harm. 	In mid-January 1996, 	you went to the
Public Employees Retirement System 	(PERS) 	office to file the
appropriate paperwork. 	A PERS 	employee suggested you apply for
both Disability Retirement and Service Retirement, 	stating the
Service Retirement would allow you to receive payments 	faster
than through Disability Retirement.
Following this period of time, 	you met with CSEA representatives
regarding your return to work at Caltrans. 	Ms. 	Seagraves
informed you that Caltrans did not want you back, 	and although
you insisted you had a right to return to Caltrans, 	you proposed
a settlement with your employer. 	You stated you would not seek
reemployment with Caltrans 	if Caltrans agreed to keep the
agreement out of your State personnel 	file and promised to place
you on NDI leave until your Disability Retirement was approved.
On or about mid-February 1996, 	you met with Mr. Guiliamino, Ms.
Seagraves and a CSEA attorney. 	During this meeting, 	the CSEA
attorney informed you that you should accept 	the 	terms 	Caltrans
had offered 	(NDI 	leave until your Disability Retirement was
approved), 	as your chances on appeal seemed slim. 	You allege you
did not know an appeal was necessary, 	as you believed CSEA to be
negotiating on your behalf without the 	"Coleman" 	hearing. 	You
(

Warning Letter
S-CO-189-S
January 10, 	1997
Page 4
also allege that an appeal was 	filed by CSEA after the statute of
limitations had expired, 	and without your knowledge.
During this meeting, 	you agreed that Ms. 	Seagraves should draft a
settlement agreement outlining the terms stated above. 	That is,
you agreed not 	to return to Caltrans provided no evidence of 	the
agreement appear in your personnel 	file and provided that
Caltrans return your personal 	items still at your worksite. 	CSEA
also provided you prior case law to consider in settling this
dispute with Caltrans. 	Ms. 	Seagraves drafted the settlement
agreement and 	forwarded a copy for you to sign. 	Upon reading the
agreement, 	you determined the terms were not favorable to you and
refused to sign the settlement. 	Instead, 	you made comments on
the settlement agreement and returned it to Ms. 	Seagraves. 	You
also requested Ms. 	Seagraves' 	assistance in seeking the return of
your leave credits yet to be paid out.
Approximately two weeks after returning the settlement agreement,
you received a letter from Ms. 	Seagraves 	informing you that CSEA
would no longer be representing you, 	as you failed to sign the
settlement agreement. 	In mid-March, 	1996, Mr. Guiliamino sent
you a letter stating the appeal of your 	"Coleman" 	hearing was
denied and informing you that 	CSEA would seek a writ 	of mandate
on your behalf. 	Such action was not taken by CSEA.
Based on the above stated facts, 	the charge, 	as presently
written, 	fails to state a prima facie violation of the duty of
fair representation for the reasons 	stated below.
Charging Party has alleged that 	the exclusive representative
denied Charging Party the 	right 	to fair representation guaranteed
by EERA section 3544.9 and thereby violated section 3543.6(b).
However, 	the duty of fair representation is limited to
contractually based remedies under the union's exclusive control.
Thus, 	PERB will dismiss charges based on alleged union failures
to pursue noncontractual administrative or judicial 	relief.
(California Union of Safety Engineers 	(John) 	(1995) 	PERB Decision
No. 	1064-S 	(no duty of 	fair representation obligation attached to
disciplinary matter before SPB); 	San Francisco Classroom Teachers
Association 	(Chestangue) 	(1985) 	PERB Decision No. 	544
(association need not represent teacher in a mental 	illness
proceeding under the Education Code).)
To the extent 	that your charge alleges CSEA failed to fairly
represent you with regard to the 	"Coleman" 	hearing and its
subsequent appeal, 	the charge fails to state a prima facie case.
When the state exercises 	its 	statutory authority under Government
Code section 19996.2(a) 	to treat an employee's unexcused absence

Warning Letter
S-CO-189-S
January 10, 	1997
Page 5
from state employment 	for five consecutive working days as an
"automatic resignation", 	the state must give notice to the
employee of 	the 	facts 	supporting the resignation and an
opportunity to respond. 	(Coleman v. 	Department of Personnel
Administration 	(1991) 	52 Cal.3d 1102, 	1122-23.) 	If the employee
challenges the accuracy of the state's factual basis, 	the state
must, 	as soon as practicable, 	give the employee an opportunity to
present his or her version of the facts in front of a neutral
fact finder. 	(Id.) 	Pursuant to Government Code section 19996.2,
as quoted above, 	in order to proceed to a "Coleman" hearing, 	the
employee must 	file a timely formal appeal of the resignation with
the Department of Personnel Administration and be ready, 	willing
and able to report to work. 	In the instant case, 	a 	"Coleman"
hearing was not held, 	as you were not ready, 	willing and able to
report to work and continue your prior job duties.
As stated above, 	PERB will dismiss charges based on alleged union
failures to pursue noncontractual administrative relief.
Additionally, 	although CSEA chose to represent you prior to the
"Coleman" hearing, 	PERB's jurisdiction is limited to examining
CSEA's role as an exclusive representative. 	Thus, 	PERB cannot
pass judgment on CSEA's duties which may arise by virtue of its
fiduciary duty to its members outside the exclusive
representative setting. 	(California State Employees Association
(Parisi) 	(1989) 	PERB Decision No. 	733-S.) 	For this reason, your
assertion that 	CSEA failed to 	fairly represent you with regard to
the 	"Coleman" 	hearing and the writ of mandate fail to state a
prima facie case.
Assuming, 	however, 	CSEA owed you a duty of fair representation in
the matters 	following your 	"automatic resignation" 	in October of
1995, 	the charge fails to state a prima facie case. 	In order to
state a prima facie violation of this section of EERA, 	Charging
Party must 	show that the Association's 	conduct was arbitrary,
discriminatory or in bad faith. 	In United Teachers
of Los Angeles 	(Collins), 	the Public Employment Relations Board
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.
[Citations.]
A union may exercise 	its discretion to
determine how far to pursue a grievance 	in
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or
process a grievance in a perfunctory fashion.
(

Warning Letter
S-C0-189-S
January 10, 	1997
Page 6
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. 	(Emphasis added.)" 	[Reed 	District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 332, p. 9, 	citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
The charge fails to demonstrate CSEA's conduct was without a
rational basis or devoid of honest judgment. 	CSEA provided you
with advice regarding the Coleman hearing and the proposed
settlement options. 	CSEA representatives negotiated with
Caltrans 	on your behalf and drafted a settlement agreement
containing terms you had agreed to, 	although a copy of the
settlement agreement was not provided with the charge. 	In late
February 1996, 	you rejected the settlement agreement CSEA drafted
and CSEA informed you that 	they would no longer represent you in
this matter. 	You do not assert 	facts demonstrating CSEA's
actions in representing you or their refusal 	to continue to
represent you after your rejection of the settlement was
arbitrary, 	discriminatory or in bad faith.2
Additionally, 	the charge points to CSEA's filing of the appeal
after the statute of limitations as evidence of CSEA's 	failure to
represent you. 	However, 	a breach of the duty of fair
representation is not 	stated merely because a union negligently
forgets to file a timely appeal. 	(San Francisco Classroom
Teachers Association 	(Bramell) 	(1984) 	PERB Decision No. 	430.)
Mere negligence by a union in grievance handling does not
constitute a breach of the duty of fair representation.
(California School Employees Association 	(1984) 	PERB Decision No.
2 Section 6(c) 	of the unfair practice charge states CSEA
also discriminated against 	Charging 	Party based on her national
origin and gender. 	PERB lacks jurisdiction over federal and
state claims based on such discrimination. 	Additionally, 	the
charge narrative does not 	include any facts demonstrating
discriminatory behavior on CSEA's part.
ii
I

Warning Letter
S-CO-189-S
January 10, 	1997
Page 7
427.) 	Moreover, 	the appeal to request a "Coleman" hearing is
predicated upon an employee's ability and willingness 	to return
to their prior position. 	As stated in the charge, 	you informed
CSEA that you did not want to return to Caltrans, 	and instead
would seek Disability Retirement. 	Such a decision makes a
written appeal 	for a 	"Coleman" hearing unnecessary. 	Thus, 	CSEA's
action in filing an untimely request 	for a 	"Coleman" 	hearing is
not arbitrary.
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 January 17. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Kristin L. 	Rosi
Regional Attorney