Service Employees International Union, Local 99 (Cooke) (PERB 1306E)

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STATE OF CALIFORNIA
DECISION OF THE ;
PUBLIC EMPLOYMENT RELATIONS BOARD

JOSE ANTONIO COOKE, )

Charging Party, ) Case No. LA-CO-778
)
Vv. ) PERB Decision No. 1306
)
SERVICE EMPLOYEES INTERNATIONAL ) January 14, 1999
UNION, LOCAL 99, )
)
Respondent. )
)
Appearance; Jose Antonio Cooke, on his own behalf.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

CAFFREY, Chairman: This case is before the Public
.Employment Relations Board (Board) on appeal by Jose Antonio
Cooke (Cooke) of a Board agent's dismissal (attached) of his
unfair practice charge. In his charge, Cooke alleged that the
Service Employees International Union, Local 99 breached the duty
of fair representation guaranteed by section 3544.9 of the
Educational Employment Relations Act (EERA) and thereby violated

EERA section 3543.6(b)’.

‘REBRA is codified at Government Code section 3540 et seq.
Section 3544.9 states: .

The employee organization recognized or
certified as the exclusive representative for
the purpose of meeting and negotiating shall
fairly represent each and every employee in
the appropriate unit.

Section 3543.6 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, 	and Cooke'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.
ORDER
The unfair practice charge 	in Case No. 	LA-CO-778 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	7 	, 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
October 8, 	1998
Jose Antonio Cooke
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Jose Antonio Cooke v. 	Service Employees International Union,
Local 99
Unfair Practice Charge No. 	LA-CO-778; 	First Amended Charge
Dear Mr. Cooke:
The above-referenced unfair practice charge, 	filed September 1,
1998, 	alleges the Service Employees International Union 	(SEIU)
breached its duty of 	fair representation by failing to represent
you regarding your termination. 	You allege this conduct violates
Government Code section 3544.9 and 3543.6 	of the Educational
Employment Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated September 16,
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
September 23, 	1998, 	the charge would be dismissed. 	I later
extended this deadline to September 30, 	1998.
On September 30, 	1998, 	I received a first amended charge. 	The
amended charge addresses 	only your contention that 	SEIU owed you
a duty of 	fair representation at your termination hearing and
subsequent appeals. 	However, 	the amended charge fails to address
the statute of limitations issue noted in my September 16, 	1998,
letter.
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing a complaint 	in respect of any alleged unfair practice
charge occurring more than six months prior to the filing of 	the
charge. 	Facts provided demonstrate SEIU rejected your request
for representation in November 1995, 	nearly three 	(3) 	years ago.
As such, 	the charge is time barred and must be dismissed.
===----- 	--

Dismissal 	Letter
LA-CO-778
Page 2
Rather than addressing the statute of limitations argument,
Charging Party argues SEIU owes him a duty of 	fair representation
for the following reasons: 	(1) 	SEIU represented other employees
who had failed drug and alcohol 	tests and 	(2) 	the duty of 	fair
representation should extend to noncontractual 	remedies.
Charging Party also contends SEIU discriminated against him
because he signed a severance petition years ago.
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
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

Dismissal Letter
LA-CO-778
Page 3
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
By Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Janett Humphries, 	President

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
September 16, 	1998
Jose Antonio Cooke
Re: 	WARNING LETTER
Jose Antonio Cooke v. 	Service Employees International Union,
Local 99
Unfair Practice Charge No. 	LA-CO-778
Dear Mr. Cooke:
The above-referenced unfair practice charge, 	filed September 1,
1998, 	alleges the Service Employees International Union 	(SEIU)
breached its 	duty of 	fair representation by failing to represent
you regarding your termination. 	You allege this conduct violates
Government 	Code section 3544.9 	and 3543.6 	of 	the Educational
Employment Relations Act 	(EERA or Act).
Investigation of the charge revealed the following. 	Until
November 21, 	1995, 	Charging Party was employed by the Los Angeles
Unified School District 	(District) 	as a Permanent Light Duty Bus
Driver. 	At all times relevant herein, 	SEIU has been the
exclusive representative of classified Unit C, 	which includes the
Bus Drivers. 	In 1990, 	1993 and 1994, 	Charging Party filed an
application to become a 	"full member" 	of SEIU. 	Charging Party
contends SEIU 	"blocked" his application by intentionally
misplacing the applications. 	In 1994, 	Charging Party turned in
an application for full membership, 	and was accepted as a group
member instead of an agency fee payer.
On October 31, 	1995, 	Mr. 	Cooke was suspended by the District for
twenty-one 	(21) 	days as a result of a random positive drug test.1
On that same date, 	Charging Party contacted SEIU Local 99 and
requested to speak with a representative regarding his
suspension. 	He was 	informed that representatives were
unavailable and that his call would be returned. 	Representatives
1 Charging Party tested positive for cocaine use. 	Pursuant
to past practice and policy, 	the District may conduct random drug
tests on its drivers. 	(See, 	Los Angeles Community College
District 	(1996) 	PERB Decision No. 	1181; Los Angeles Community
College District 	(1998) 	PERB Decision No. 	1266.)
===--- 	--

from SEIU failed to return Charging Party's call. 	On November 3,
1995, 	Charging Party filled out a request 	for representation form
at the Local 99 	office. 	SEIU representatives did not respond to
his request at any time.
In early November 1995, 	Charging Party hired private attorney
Greg Humphries 	to represent him in administrative hearings with
the District's Personnel Commission. 	On November 13, 	1995, 	the
District held an Administrative Review regarding Mr. 	Cooke's
termination. 	At this meeting, 	he was represented by Mr.
Humphries. 	On November 27, 	1995, 	the District informed Charging
Party that 	the recommendation for dismissal would proceed to the
Board of Education without modification.
In early 1996, 	Charging Party filed a civil action against 	the
District 	in Los Angeles County Superior Court. 	Charging Party
was again represented by Mr. 	Humphries. 	During this civil
action, 	the District 	refused to provide Charging Party with
several pieces of information.
In May 1996, 	Charging Party testified in a PERB hearing regarding
a severance petition filed by District Bus Drivers. 	Charging
Party was not employed by the District during his testimony, 	and
the severance petition was denied by PERB.
On June 16, 	1997, 	Charging Party sought assistance from the
American Civil Liberties Union 	(ACLU). 	The ACLU referred
Charging Party to several 	other agencies 	and suggested he retain
private counsel. 	On August 18, 	1997, Mr. Humphries withdrew his
representational services, 	and Charging Party was substituted in
as his own counsel.
On August 28, 	1997, 	Charging Party sent two letters to SEIU,
requesting the union represent him in his 	civil 	case and in the
Personnel Commission appeals, 	pursuant to their duty of fair
representation. 	On October 21, 	1997, 	SEIU Interim Director, 	Paul
Smith, 	informed Charging Party that SEIU would not represent him
with regard to matters outside the collective bargaining process.
SEIU also refused to pay Charging Party's attorney's 	fees.
On May 5, 	1998, 	Charging Party again requested SEIU assistance in
his appeal of the Personnel Commission's decision. 	SEIU again
informed Charging Party that it would not represent him.
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 provided 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).
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

Warning Letter
LA-CO-778
Page 3
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.
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.]
Charging Party contends SEIU failed to represent him because of
his 	testimony in the 	PERB hearing and because of other alleged
protected activities.
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing a complaint 	in respect of any alleged unfair practice
charge occurring more than six months prior to the filing of an
unfair practice charge. 	PERB has applied the six-month bar to
cases alleging a breach of the duty of fair representation,
measuring the time that has elapsed between a specific event or
conduct and the filing of the charge. 	(Los Angeles County
Building and Construction Trades Council 	(1984) 	PERB Decision No,
439.)
The statute of limitations begins to run on the date the
employee, 	acting with reasonable diligence, 	knew or should have
known that 	further assistance or response 	from the union was
unlikely. 	(Los Rios Federation of Teachers 	(1991) 	PERB Decision

Warning 	Letter
LA-CO-778
Page 4
No. 	889.) 	Repeated union refusals to process a grievance over a
recurring issue does not start the limitations period anew.
(California State Employees Association 	(Calloway) 	(1985) 	PERB
Decision No. 	497-S.)
In the instant 	charge, 	Charging Party knew or should have known
as soon as late 	1995 	that SEIU would not 	represent him. 	SEIU did
not return Charging Party's phone calls, 	nor did they respond to
his request for representation. 	Moreover, 	in October 1997, 	SEIU
reiterated its 	refusal 	to represent Charging Party. 	As Charging
Party knew nearly two years ago that SEIU would not 	represent
him, 	the charge is time barred and therefore fails to state a
prima facie case.2
Even assuming the charge is not time barred, 	Charging Party's
allegations fail to state a prima facie case. 	As SEIU itself
noted, 	a union's duty of fair representation is limited to
contractually based remedies under the union's exclusive control.
As such, 	PERB has dismissed charges based on alleged union
failures 	to pursue noncontractual administrative or judicial
relief. 	(See, 	California Union of Safety Engineers 	(John) 	(1995)
PERB Decision No. 	1064-S 	(no duty of fair representation
obligations attaches to disciplinary matter before the State
Personnel Board).)
In the instant charge, 	Charging Party requested SEIU represent
him in a matter before the District's Personnel Board. 	Facts
presented demonstrate 	the 	Personnel 	Board 	in a noncontractual
body that regulates some disciplinary matters. 	All employees are
entitled to a Personnel Board hearing, 	pursuant to District
regulations, 	not the collective bargaining agreement. 	As such,
any employee may represent him or herself 	in front of 	the Board,
and may seek outside legal representation. 	SEIU is not obligated
to represent its bargaining unit members in this forum, 	and thus
SEIU's refusal 	to assist Charging Party in this forum is not a
violation of the EERA.
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
2 Although the May 1998 	request 	for representation falls
within the six month statute of limitations period, 	under
Calloway, 	the union's refusal 	is simply a restatement of its
earlier refusals. 	As such, 	the statute of limitations period
does not start anew.

Warning Letter
LA-CO-778
Page 5
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 with PERB. 	If I do not receive an
amended charge or withdrawal from you before September 23. 	1998.
I shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney