California Association of Professional Scientists (Opong-Mensah) (PERB 1288S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KOFI 	OPONG-MENSAH,
Charging 	Party,
v.
CALIFORNIA ASSOCIATION 	OF
PROFESSIONAL 	SCIENTISTS,
Respondent.
Case No. 	SA-CO-205-S
PERB Decision No. 	1288-S
October 1, 	1998
Appearances: 	Kofi Opong-Mensah,. on his own behalf; 	Steven B.
Bassoff, 	Labor Relations Counsel, 	for California Association of
Professional 	Scientists.
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by Kofi 	Opong-Mensah
(Opong-Mensah) 	of a Board agent's dismissal 	(attached) 	of his
unfair practice 	charge. 	In the 	charge, 	Opong-Mensah alleged that
the 	California Association of 	Professional 	Scientists 	(CAPS)
violated section 3519.5(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1
by discriminating 	against 	him and 	failing 	to 	fairly 	represent 	him.
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.
)
)
)
)
)
)
)
)
)
)
______________ )

The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
Board agent's warning and dismissal 	letters, 	Opong-Mensah's
appeal and CAPS' 	response 	thereto. 	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. 	SA-CO-205-S 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Dyer and Jackson 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
July 16, 	1998
Kofi 	Opong-Mensah
Re: 	Kofi 	Opong-Mensah v. 	California Association of 	Professional
Scientists
Unfair Practice 	Charge No. 	SA-CO-205-S
DISMISSAL 	LETTER	-
Dear Mr. 	Opong-Mensah:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on January 13, 	1998. 	The
charge 	alleges 	that 	the 	California Association of 	Professional
Scientists 	(CAPS) 	violated the Ralph C. 	Dills Act, 	Government
Code 	section 3519.5(b), 	by failing to 	fairly represent you
concerning your 	termination 	in proceedings 	before 	the 	Superior
Court.
I 	indicated to you, 	in my attached letter dated May 11, 	1998,
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
May 19, 	1998, 	the charge would be dismissed.
At your request, 	the 	charge was placed in abeyance 	on May 26,
1998. 	I met with you on June 30, 	1998, 	to discuss the status of
this charge. 	On July 1, 	1998, 	the charge was withdrawn from
abeyance 	and you were 	notified 	that 	you 	should 	file 	an amended
charge by July 14, 	1998. 	On July 13, 	1998, 	I received an amended
charge.
On July 15, 	1998, 	we discussed the allegations 	in this charge.
You 	continue 	to 	allege 	that 	CAPS 	failed 	to 	adequately represent
you 	in your termination proceedings 	in the 	Superior 	Court 	and
refused 	to 	assist 	you 	in your 	claims 	for unemployment 	benefits
and non-industrial 	disability benefits 	(NDI). 	You claim that
CAPS' 	failure 	to represent you was discriminatory.
As 	I 	discussed 	in the 	attached warning letter, 	an exclusive
representative 	does 	not 	owe 	a 	duty of 	fair representation to 	a
bargaining unit 	member 	in a 	forum over which the 	union does 	not
exclusively control 	the 	means 	to 	a particular 	remedy.

SA-CO-205-S
Dismissal 	Letter
Page 	2
(California State Employees Association 	(Parisi) 	(198 9) 	PERB
Decision No. 	733-S.) 	This 	is 	because 	a unit member may seek
representation outside 	of 	the 	exclusive 	representative 	in extra-
contractual 	forums. 	Accordingly, 	the Board has held that 	the
duty of 	fair 	representation 	does 	not 	attach 	to 	an 	exclusive
representative 	in proceedings 	involving a 	"Coleman" 	hearing 	and
in 	filing a writ 	of 	mandate 	in 	the 	Superior 	Court 	to 	challenge 	a
denial 	of 	reinstatement. 	(California 	State 	Employees Association
(Carrillo) 	(1997) 	PERB Decision No. 	1199-S.) 	Nor does the duty
of 	fair 	representation 	require 	an 	exclusive 	representative 	to
assist 	you 	in obtaining unemployment 	benefits 	or NDI.
(California School Employees Association 	(LeFountain) 	(1992) 	PERB
Decision No. 	925.) 	Because 	CAPS does not 	owe you a duty of 	fair
representation in these 	forums, 	your charge 	fails 	to demonstrate
a 	prima 	facie 	violation of 	the 	Dills Act 	on 	the basis 	that 	CAPS
breached 	its 	duty of 	fair representation 	to you. 	Accordingly,
the 	charge must 	be 	dismissed.
Based upon 	the 	allegations 	in your amended charge, 	you may also
be 	alleging 	that 	CAPS 	discriminated against 	you 	in 	failing 	to
represent 	you.
To 	demonstrate 	that 	an 	exclusive 	representative 	discriminated
against 	a 	charging party 	in violation of 	Dills 	Act 	section
3519.5(b), 	the charging must show that: 	(1) 	the unit member
exercised rights under the Dills Act; 	(2) 	the exclusive
representative 	had knowledge 	of 	the 	exercise 	of 	those 	rights; 	and
(3) 	the 	exclusive 	representative 	imposed or threatened to 	impose
reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or 	coerced the 	unit 	member
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;
---------California Union of 	Safety Employee-- - 	---s 	(John) 	(1994) 	PERB Decision
No. 	1064-S.)
Although 	the 	timing of 	the 	exclusive 	representative's 	adverse
action 	in 	close 	temporal 	proximity to 	the 	unit 	member'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) 	disparate treatment 	of the unit member;
(2) 	departure 	from established procedures 	and standards 	when
dealing with the unit 	member; 	(3) 	inconsistent 	or contradictory
justifications 	for its actions; 	(4) 	cursory investigation of 	the
unit member's misconduct; 	(5) 	failure to offer the unit member

SA-CO-205-S
Dismissal 	Letter
Page 3
justification 	at 	the 	time 	it 	took action or the 	offering of
exaggerated, 	vague, 	or ambiguous reasons; 	or 	(6) 	any other facts
which might 	demonstrate 	the 	exclusive 	representative's 	unlawful
motive. 	(Novato Unified School District, 	supra; 	North Sacramento-.
School District 	(1982) 	PERB Decision No. 	264.) 	As presently-
written, 	this 	charge 	fails 	to 	allege 	facts which demonstrate 	that
CAPS 	refused 	to 	represent 	you because 	of 	your participation 	in
protected conduct. 	Therefore, 	your charge does 	not 	state a prima
facie 	case 	of 	discrimination 	in violation of 	the 	Dills Act.
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

SA-CO-205-S
Dismissal 	Letter
Page 4
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
Robin E. Wright
Regional Attorney
Attachment
cc: 	Steven B. 	Bassoff

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
May 11, 	1998
Kofi 	Opong-Mensah
Re: 	Kofi Opona-Mensah v. 	California Association of 	Professional
Scientists
Unfair Practice 	Charge No. 	SA-CO-205-S
WARNING 	LETTER
Dear Mr. 	Opong-Mensah:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board on January 13, 	1998. 	The
charge 	alleges 	that 	the 	California Association 	of 	Professional
Scientists 	(CAPS) 	violated the Ralph C. 	Dills Act, 	Government
Code 	section 	3519.5(b), 	by failing to 	fairly represent you
concerning your 	termination 	in proceedings 	before 	the 	Superior
Court.
Investigation 	of 	the 	charge 	revealed 	the 	following 	information.
You were 	employed by the 	Department 	of 	Food and Agriculture 	as 	an
Agricultural 	Chemist 	II. 	In April 	1996, 	you were notified that
you 	had been 	separated 	from your 	employment 	based 	on 	a 	charge
that you were absent without 	leave 	(AWOL).
A 	"Coleman" 	hearing was 	held before 	the 	Department 	of 	Personnel
Administration 	(DPA) 	in June 	1996 	to consider your reinstatement.
John Sikora, 	CAPS Labor Relations Consultant, 	represented you at
the 	hearing. 	Following the hearing, 	DPA issued a decision
denying 	your 	reinstatement.
At your request, 	CAPS 	agreed, to 	challenge 	the DPA decision with a
writ 	of mandate 	in Superior Court. 	Steven Bassoff, 	CAPS Labor
Relations 	Counsel, 	was assigned to the 	case. 	A hearing on the
writ 	of mandate was 	held in Superior Court 	on September 	19, 	1997.
The 	court 	denied the writ, 	in effect upholding the DPA decision
and 	denying 	your 	reinstatement.
Your 	charge 	alleges 	that 	Bassoff 	failed 	to 	fairly represent 	you
in the 	Superior Court proceedings. 	Specifically, 	you allege 	that
Bassoff 	failed 	to meet with you 	to discuss 	the 	case; 	ignored your
discovery questions 	and 	the 	materials 	you prepared 	for 	the 	case;
failed 	to 	use 	any of 	your proposed witnesses; 	refused your
request 	to 	obtain 	certain documents 	through discovery; 	failed to
rebut 	false 	statements made 	by opposing counsel; 	and 	failed to
introduce 	and argue 	certain 	facts. 	The 	charge 	also 	alleges 	that
I

SA-CO-205-S
Warning 	Letter
Page 	2
CAPS 	denied your request 	to 	appeal 	the 	trial 	courts' 	decision to
the 	court 	of 	appeal.
Based on 	the 	facts 	stated 	above 	your 	charge 	fails 	to 	demonstrate
a prima 	facie violation of 	the 	Dills Act 	on the 	basis 	that 	CAPS
breached 	its 	duty of 	fair 	representation 	to you.
Under the Dills Act, 	an exclusive 	representative, 	selected by the
bargaining unit members, 	is 	given the 	exclusive 	right 	to deal
with 	the 	employer 	in matters 	involving contract 	negotiations,
administration of 	the 	collective 	bargaining 	agreement 	and
grievance 	handling. 	Since 	the 	union has 	the 	exclusive 	authority
to deal with the employer over these matters, 	the Dills Act
imposes 	upon 	an 	exclusive 	representative 	a 	duty to 	fairly
represent 	all bargaining unit 	members 	in these 	areas.
However, 	an exclusive representative does 	not 	owe a duty of 	fair
representation 	to 	a unit 	member 	in 	a 	forum over which 	the 	union
does 	not 	exclusively control 	the means 	to 	a particular remedy.
(California State Employees Association 	(Parisi) 	(1989) 	PERB
Decision No. 	733-S.) 	This 	is because a unit member may seek
representation outside 	of 	the 	exclusive 	representative 	in extra-
contractual 	forums. 	Accordingly, 	the Board has held that 	the
duty of 	fair 	representation 	does 	not 	attach to 	an 	exclusive
representative 	in proceedings 	involving a 	"Coleman" 	hearing and
in 	filing 	a writ 	of mandate 	in the 	Superior Court 	to 	challenge 	a
denial 	of 	reinstatement. 	(California 	State 	Employees Association
(Carrillo) 	(1997) 	PERB Decision No. 	1199-S.) 	For this reason,
your assertion 	that 	CAPS 	failed 	to 	fairly represent 	you 	in either
the 	"Coleman" 	hearing or the 	writ 	of 	mandate before 	the 	Superior
Court 	fails 	to 	state 	a prima 	facie violation of 	the 	duty of 	fair
representation.
Even, 	assuming CAPS 	owed you 	a 	duty of 	fair representation
concerning the AWOL proceedings, 	the charge 	fails 	to state a
prima 	facie 	case. 	To 	state 	a prima 	facie violation of 	the 	duty
of 	fair representation under the Dills Act, 	a 	charging party must
show that 	the 	exclusive 	representative's 	conduct 	was 	arbitrary,
discriminatory or 	in bad 	faith. 	(Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision No. 	124.) 	Mere
negligence 	or poor 	judgment 	does 	not 	demonstrate 	a breach of 	the
duty of 	fair 	representation. 	(United Teachers 	of 	Los Angeles
(Collins) 	(1982) 	PERB Decision No. 	258.) 	To demonstrate
arbitrary conduct, 	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

SA-CO-205-S
Warning 	Letter
Page 3
judgment. 	(Emphasis added.)" 	[Reed District
Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional Association 	(Romero),
supra, 	PERB Decision No. 	124.]
You 	allege 	in your 	charge 	that 	Bassoff 	failed 	to 	fairly represent
you 	in 	the 	Superior 	Court 	proceedings 	by 	failing 	to 	meet 	with you
to discuss 	the 	case; 	ignoring your discovery questions 	and the
materials you prepared 	for 	the 	case; 	failing to use 	any of your
proposed witnesses; 	refusing your request 	to obtain 	certain
documents 	through discovery; 	failing to 	rebut 	false 	statements
made by opposing counsel; 	and 	failing 	to 	introduce 	and argue
certain facts.
However, 	the 	Board has 	held that 	a union's 	decision to 	conduct 	an
arbitration 	hearing 	contrary 	to 	the wishes 	of 	the 	charging party,
by 	failing 	to 	meet 	with 	the 	charging party before 	the 	hearing 	and
failing to present 	certain evidence, 	does not 	violate 	the duty of
fair representation. 	(United Teachers-Los Angeles 	(1992) 	PERB
Decision No. 	932.) 	Nor does 	a union's 	refusal 	to 	call witnesses
or 	subpoena 	records 	requested by 	the 	charging party demonstrate 	a
breach of 	the 	duty of 	fair representation. 	(California 	Faculty
Association 	(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H; 	Los
Angeles 	City and County School 	Employees Union 	(1987) 	PERB
Decision No. 	645.)
The 	charge 	fails 	to 	allege 	facts 	which demonstrate 	that 	Bassoff's
decision 	to 	conduct 	the 	hearing 	in 	a manner 	contrary to your
wishes was 	arbitrary, 	discriminatory or in bad 	faith.
Accordingly, 	the 	charge 	fails 	to 	state a prima 	facie 	case 	and
must 	be 	dismissed.
Based on the 	facts you provided and the above discussion, 	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 	have 	the
case number written on the 	top 	right 	hand corner of 	the 	charge
form. 	The 	amended 	charge 	must 	be 	served on 	the 	respondent's
representative 	and 	the original 	proof 	of 	service 	must 	be 	filed

SA-CO-205-S
Warning 	Letter
Page 	4
with PERB. 	If 	I 	do not 	receive 	an amended charge 	or withdrawal
from you before May 19, 	1998, 	I 	shall dismiss your charge. 	If
you have any questions, 	please call me at 	(916) 	322-3198,
ext. 3 05.
R o b i n E. Wright
Regional 	Attorney