American Federation of State, County and Municipal Employees, Council 57 (Ross-Ezozo) (PERB 1370H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WANDA ROSS-EZOZO,
Charging 	Party,
v.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
DISTRICT 	COUNCIL 	57,
Respondent.
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) 	Case No. 	LA-CO-64-H
PERB Decision No. 	1370-H
January 3, 	2000
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Appearance: 	Wanda Ross-Ezozo, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Wanda Ross-Ezozo's 	(Ross-Ezozo) 	unfair practice
charge. 	Ross-Ezozo's 	charge 	alleges 	that 	the American Federation
of State, 	County and Municipal 	Employees, 	District Council 	57
breached 	its 	duty of 	fair 	representation 	in violation 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA).1
1HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Although Ross-Ezozo did not 	specify under what 	section(s) 	the
charge was 	filed, 	the Board has 	decided this matter under HEERA
sections 	3571.1 and 3578.
Section 3571.1 provides, 	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.
(e) 	Fail 	to represent 	fairly and impartially
all 	the employees 	in the unit 	for which it 	is
the 	exclusive 	representative.
Section 3578 provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative
shall 	represent all 	employees 	in the unit,
fairly and 	impartially. 	A breach 	of 	this
duty shall 	be 	deemed 	to have 	occurred 	if 	the
employee 	organization's 	conduct 	in
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the warning and dismissal
letters 	and Ross-Ezozo's 	appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-C0-64-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
(213) 736-3127
August 20, 	1999
Wanda 	Ross-Ezozo
3 6914 Jenna Lane
Palmdale, 	CA 93550
Re: 	Wanda Ross-Ezozo v. 	American Federation of State. 	County and
Municipal 	Employees, 	District 	Council 	57
Unfair Practice Charge No. 	LA-CO-64-H, 	First Amended Charge
DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE 	A 	COMPLAINT
Dear Ms. 	Ezozo:
In this 	charge 	filed on April 	13, 	1999 	by Wanda Faye Ezozo 	(also
known as Wanda Ross-Ezozo) 	against 	the American Federation of
State, 	County and Municipal Employees, 	Council 57 	(AFSCME), 	it is
alleged 	that 	AFSCME violated 	the 	duty 	of 	fair 	representation
(DFR) 	in its processing of a grievance after Ms. 	Ezozo was 	laid
off 	from the position of 	Hospital 	Lab Technician 	III 	in 	the
Department 	of Ophthalmology, 	Jules 	Stein Eye 	Institute at 	UCLA,
effective October 24, 	1997. 	This 	conduct 	is alleged to violate
Government Code section 3560 et. 	seq. 	of the HEERA.
I 	indicated to you, 	in my attached letter dated August 	12, 	1999,
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
August 	19, 	1999, 	the charge would be dismissed.
On August 	17, 	1999, 	I received your First Amended Charge. 	It
appears 	to provide 	additional 	facts 	responding 	to a key portion
of my letter dated August 	12, 	1999. 	My letter stated, 	in part,
The 	facts 	demonstrate 	that AFSCME processed the 	Ezozo
grievance 	(regarding 	seniority 	and 	casual 	employees)
all 	the way to binding arbitration, 	which was 	decided
in the University's 	favor on February 27, 	1999. 	The
facts 	do not 	demonstrate 	that AFSCME's 	conduct 	was
arbitrary, 	discriminatory or in bad faith. 	Mr. 	Keith
Uriarte 	of 	AFSCME 	executed 	the 	grievance 	form on
October 14, 	199 7. 	The grievance was 	taken over in or
about November 1997 by Mr. 	Battle at Step 2. 	It 	is
unclear whether 	the 	above 	race 	discrimination
allegations 	were brought 	to AFSCME's 	attention by Ms.
Ezozo at 	Steps 	I 	or II 	to allow for a possible
amendment 	to 	the grievance. 	Mr. 	Battle appealed to

Step III 	on February 19, 	1998. 	According to the
collective bargaining agreement, 	a grievance may be
filed by an 	individual 	employee 	or AFSCME. 	See Article
6, 	section A.I 	and 4. 	This would permit an employee 	to
raise 	in 	the 	grievance all 	the 	allegations 	he 	or she
wishes 	to. 	Also, 	it appears 	that 	the race
discrimination 	allegations 	may 	have 	not 	have 	been
brought to AFSCME by Ms. 	Ezozo until May 21, 	1998, 	at
the 	time 	the AFSCME Grievance 	Fact 	Sheet was 	executed
by Ms. 	Ezozo. 	Even if AFSCME had knowledge of 	the
alleged 	race discrimination allegations at 	Steps 	I 	and
II, 	a rational 	decision to not pursue, 	or possible
negligence 	in not pursuing this 	defense 	to 	the 	layoff
does not violate 	the DFR. 	Also, 	the 	fact 	one of 	the
grievants 	was 	Caucasian may have 	dissuaded AFSCME 	from
bringing 	this 	discrimination 	claim. 	A union 	is 	not
under an 	obligation 	to process 	a 	claim which 	it 	feels
it 	cannot win. 	Finally, 	it 	is unclear that this
discrimination 	claim was 	arbitrable 	since 	at 	least 	one
of 	the 	issues was not arbitrable. 	See Article 4,
section E.3 	above.
The 	facts 	regarding 	the offer of 	a 	50% position are
unclear because 	initially, 	Ms. 	Ezozo declined such a
position. 	Even if AFSCME was negligent 	in not
assisting Ms. 	Ezozo to obtain such a position, 	such
conduct does 	not violate 	the DFR. 	This 	is because no
bad 	faith has 	been demonstrated.
The 	First Amended Charge discusses 	three areas, 	the alleged
failure 	of AFSCME 	to arbitrate 	the 	claim of 	discrimination,
AFSCME's 	alleged 	failure 	to assist Ms. 	Ezozo in obtaining a 50%
position, 	and AFSCME's alleged failure 	to arbitrate 	the 	fact 	that
Ms. 	Ezozo's 	and Ms. 	Yadegaran's 	layoffs were unjustified since
they were 	replaced by 	casual 	employees.
The Amended Charge 	indicates, 	in part, 	that Ms. 	Ezozo met with
Mr. 	Battle after she 	received a copy of 	the October 14, 	1997
grievance. 	Ms. 	Ezozo believed the 	reasons 	for the 	layoff were
based on discrimination, 	and wished 	to 	raise 	the 	issue 	of
discrimination. 	Mr. 	Battle 	is alleged to have replied,
The 	union 	contract 	has 	no provisions 	for 	[her]
discrimination complaint, 	therefore, 	[Ms. 	Ezozo] 	cannot
file a grievance 	for discrimination. 	If 	[she] 	wanted
to file a complaint 	of discrimination, 	[she] 	would have
to do that on 	[her] 	own....
Ms. 	Ezozo's attorney, 	George Robertie, 	advised Mr. 	Battle that
Article 4 	of 	the 	contract, 	Nondiscrimination in Employment,
provided a vehicle 	for 	raising 	the discrimination issue. 	It 	is
asserted that Mr. 	Battle told Mr. 	Robertie, 	"[her] 	discrimination
complaint 	fits 	in with everything else 	and 	it would be brought
out 	in the 	step 	II 	grievance meeting." 	The 	reason Ms. 	Ezozo did

not 	physically 	file 	a discrimination 	complaint 	in 	the 	beginning
was 	that Mr. 	Battle advised her and Mr. 	Robertie 	that " [it] 	was
acknowledged and 	it 	would 	in 	fact 	be 	arbitrated along 	with 	the
mentioned 	grievances."
As 	noted in my letter dated August 	12, 	1999, 	Ms. 	Ezozo has
alleged 	that 	the 	exclusive 	representative 	denied her 	the 	right 	to
fair 	representation 	guaranteed by 	EERA section 	3544.9 	and 	thereby
violated section 	3543.6(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, 	Ms. 	Ezozo must show that
AFSCME'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.
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.]
I 	do not 	find 	the 	above 	conduct 	by AFSCME 	to be 	arbitrary,
discriminatory or in bad faith. 	Article 4, 	Nondiscrimination in
employment, 	section A.I prohibits 	discrimination on the basis 	of
race. 	Article 4, 	section E.3, 	discussed in my letter dated
August 	12, 	1999, 	provides that grievances alleging a violation of
W
	3

Article 	4 	and a non-arbitrable provision of 	the 	contract 	are not
eligible 	for appeal 	to Article 	7, 	Arbitration Procedure 	of 	the
agreement. 	The basis 	for the grievance was 	in part Article 	13,
section C.3, 	Selection 	for Layoff, 	which discusses 	indefinite
layoff procedures 	and order. 	Here 	the University's 	decision
under 	section 	C.3 	to 	retain employees 	less 	senior 	than 	the
grievants, 	was not 	subject 	to the Article 	7, 	Arbitration
Procedure 	of 	the 	agreement 	given the 	specific manner 	in which
this 	section 	is written. 	Accordingly, 	a grievance 	containing 	the
above Articles 	could not have been arbitrated. 	Also, 	as Ms.
Yadegaran, 	the co-grievant was 	Caucasian, 	it does not appear that
AFSCME's 	decision not 	to arbitrate 	the 	issue of 	alleged
discrimination was 	arbitrary, 	discriminatory or 	in bad 	faith.
The 	second 	area 	raised 	in 	the Amended 	Charge 	involves 	AFSCME's
alleged failure 	to assist Ms. 	Ezozo 	in obtaining a 50% position.
It 	is 	asserted 	that 	during the 	Step 	II 	grievance meeting,
management asked if 	she would accept a 50% position. 	Ms. 	Ezozo
initially declined as 	she 	felt 	that 	the 	reasons 	for offering 	the
50% position and not 	the 	100% position were discriminatory. 	As
Mr. 	Battle 	indicated that Ms. 	Ezozo should accept 	the 50%
position, 	she accepted it 	"with the understanding that Mr. 	Battle
would still 	arbitrate 	the 	offer of 	the 	50% position was 	based on
discrimination." 	Subsequently, 	management 	did not 	acknowledge
Ms. 	Ezozo's acceptance of the 50% position, 	and although she
requested an opportunity to 	file a grievance, 	Mr. 	Battle 	did not
"[give her] 	the opportunity 	[to] 	grieve this 	issue..." 	"From
that point 	on 	[her] 	phone 	calls were not 	returned and he
avoided." 	(sic)
It 	appears 	as 	if 	the University, 	during the grievance procedure,
offered Ms. 	Ezozo a 50% position to settle 	the grievance. 	Ms.
Ezozo wanted the 50% position, 	and to 	continue 	to process 	her
grievance, 	contending 	that 	this 	offer was based on
discrimination. 	This 	was 	apparently unacceptable. 	Based on
these 	facts, 	there 	is 	nothing to indicate 	that AFSCME's decision
not 	to 	file a grievance 	concerning 	the 	50% position was
arbitrary, 	discriminatory or in bad faith. 	In addition, 	Ms.
Ezozo's 	statement 	that 	she wished to accept 	the 	50% position and
continue 	to process 	a grievance was 	not 	an acceptance 	of 	the
settlement offer. 	Thus, 	there was no 50% position to obtain.
The 	third area 	raised 	in 	the Amended 	Charge 	concerns 	AFSCME's
alleged failure 	to arbitrate 	the 	fact 	that Ms. 	Ezozo's 	and Ms.
Yadegaran's 	layoffs 	were unjustified 	since 	they were 	replaced by
casual 	employees. 	It 	is asserted that Mr. 	Battle misled Ms.
Ezozo and Ms. 	Yadegaran to 	think he would arbitrate 	the 	fact 	that
the 	layoffs 	were 	not 	justified 	since 	they were 	replaced by 	casual
employees; 	and 	that 	"there was 	no need 	to physically 	file 	the
complaint." 	Unknown to the grievants, 	Mr. 	Battle made a decision
not 	to arbitrate 	this 	potential 	grievance and stated 	the 	reason,
44

"Mr. 	Uriarte 	[Ezozo's 	initial AFSCME Representative] 	wrote down
the wrong Article 	(Article 34B1.)."
Article 34, 	Positions, 	Section B, 	Casual 	Positions, 	subsection 1
provides,
Casual 	positions 	are 	positions 	established at 	any
percentage of 	time, 	fixed or variable, 	for less 	than
one(l) 	year, 	or are positions established at a fixed or
variable 	percentage 	of 	time 	at 	less 	than 	fifty percent
(50%) 	of 	full-time 	regardless 	of 	the duration of 	the
position.
The unfair practice 	charge 	asserts 	that 	from Ms. 	Ezozo's
understanding, 	this 	complaint 	should have been grieved under
Article 	8, 	Discipline and Dismissal. 	It also states 	that 	"Mr.
Battle was aware 	that Mr. 	Uriarte had file 	(sic) 	the grievance
inappropriately well 	within 	the 	time 	frame 	to 	correct 	or 	file
another grievance." 	When Ms. 	Ezozo first met Mr. 	Battle he
stated, 	"I don't know why Keith used this Article 	(34B1)."
There 	is no 	indication how Ms. 	Ezozo came 	to the understanding
that Article 	8 	was 	involved, 	nor explained how her layoff
violated this 	article. 	Two 	issues were 	in 	fact 	raised and 	taken
to 	arbitration, 	violation of 	layoff procedures 	and having
allegedly been 	replaced by new casual 	employees. 	But 	the
arbitrator 	found no violation of 	the 	alleged articles 	of 	the
contract, 	Article 13, 	section C.3 and Article 34, 	section B.I.
Thus, 	there is no evidence to show that AFSCME's above 	conduct
was 	arbitrary, 	discriminatory or 	in bad 	faith.
Therefore, 	I 	am dismissing 	the 	charge based on the 	facts 	and
reasons 	contained above, 	and in my August 	12, 	1999 	letter.
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with 	the Board must 	contain
the 	case name and number, 	and the original 	and five 	(5) 	copies 	of
all 	documents must 	be provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the close of business 	(5 p.m.) 	on the last day set 	for filing or
when mailed by 	certified or Express 	United States mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered to a 	common
carrier promising 	overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the last day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
5

A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together with a 	Facsimile 	Transmission Cover Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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 	firs:-class 	mail, 	postage paid and
properly 	addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c).)
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 Regs., 	tit. 	8, 	sec. 	32132.)
66

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 	marc S. HanS
Marc S. Hurwitz
Regional Attorney
Attachment
cc: 	Robert Battle of AFSCME.
7

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
(213) 736-3127
August 12, 1999
Wanda Ross-Ezozo
3 6914 Jenna Lane
Palmdale, 	CA 93550
Re: 	Wanda Ross-Ezozo v. American Federation of State. 	County and
Municipal Employees, 	District Council 57
Unfair Practice Charge No. 	LA-C0-64-H
WARNING 	LETTER
Dear Ms. Ezozo:
In this charge filed on April 	13, 	1999 by Wanda Faye Ezozo 	(also
known as Wanda Ross-Ezozo) 	against the American Federation of
State, County and Municipal Employees, Council 57 	(AFSCME), 	it is
alleged that AFSCME violated the duty of 	fair representation
(DFR) 	in its processing of a grievance. 	This conduct is alleged
to violate Government Code section 3560 et. 	seq. 	of the HEERA.
My investigation and the 	charge have revealed the 	following
information. 	Ms. 	Ezozo was an employee at UCLA since April 1985;
and a full 	time career/regular employee 	in the classification of
Hospital Lab Technician III since 1991. 	By letter dated
September 22, 	1997, 	two employees, Ezozo and Yadegaran,1 were
notified that 	they would be laid off 	from the position of
Hospital Lab Technician III in the Department of Ophthalmology,
at the UCLA Jules Stein Eye Institute, 	effective October 24,
1997, 	due to a reorganization and repositioning of activities.
Individual grievances were filed by AFSCME in October 1997,2
processed through the grievance procedure and on April 8, 	1998
appealed to binding arbitration by AFSCME. 	On May 19, 	1998,
AFSCME informed Ms. 	Ezozo in writing that if she wished her
grievance to be considered for arbitration, 	she had to fill out
1Although Ms. Ross-Ezozo and Ms. 	Yadegaran were both
grievants after being laid off 	from the position of Hospital 	Lab
Technician III in the Department of Ophthalmology, 	Jules Stein
Eye Institute at UCLA, effective October 24, 	1997, 	it is Ms.
Ezozo who filed this unfair practice charge against AFSCME. 	Ms.
Ezozo is black and Ms. 	Yadegaran is Caucasian.
2The Ezozo grievance was filed on October 14, 	1997 by AFSCME
Representative Uriarte. 	It was appealed to Step 2 on November 6,
1997 where AFSCME Representative Battle took over. 	After a
denial on February 12, 	1998, 	the grievance was appealed to Step 3
on February 19, 199 8. After a denial on March 25, 1998, the
grievance was appealed to arbitration on April 8, 	1998.

an 	Intent 	to 	Proceed 	form and a Grievance 	Fact 	Sheet. 	She 	was
also 	advised 	that 	she 	and/or 	her 	representative 	must 	appear
before AFSCME's 	Grievance 	Committee who will 	decide 	whether 	to
recommend 	that 	the 	grievance 	be 	heard before an arbitrator.
The 	grievances 	challenged 	the Department's 	decision 	to keep
several 	employees 	with less 	seniority 	than 	the 	grievants 	and
alleged that 	the grievants' 	positions were 	improperly being
replaced by 	casual 	positions. 	It 	was 	alleged that 	the 	layoffs
violated Article 	13, 	section C.3 	and Article 34, 	section B.I.
Specifically, 	it was alleged that,
1) 	Grievant 	laid off not 	in inverse order of 	seniority.
Less 	senior employees 	do not possess 	special 	skills,
etc., 	to a greater degree 	that grievant.
2) 	Grievant's position 	is 	replaced by a new casual
position.
Article 	13, 	Layoff and Reduction in time, 	section A,
Determination, 	provides 	that 	"The University shall 	determine when
temporary 	or 	indefinite 	layoffs 	or reductions 	in 	time 	are
necessary." 	Article 	13, 	section C, 	Selection for Layoff
provides:
1. 	If, 	in the judgment of 	the University, 	budgetary or
operational 	considerations make 	it 	necessary 	to 	curtail
operations, 	reorganize, 	reduce the hours of the
workforce 	and/or 	reduce 	the workforce, 	staffing levels
will 	be 	reduced 	in accordance with this Article. 	The
selection of 	employees 	for layoff 	shall be 	at 	the 	sole
discretion of 	the University.
2. 	The 	University shall 	review and, 	at 	its 	sole non-
grievable discretion, 	determine when some, 	any or all
casual 	employees 	will 	be 	laid off 	prior to 	laying 	off
career employees.
3. 	With regard to 	indefinite 	layoff 	only, 	the order of
indefinite 	layoff 	of 	employees 	in the 	same 	class within
a department 	shall 	be 	in 	inverse 	order 	of 	seniority,
except 	that 	the University may retain, 	at 	its
discretion, 	employees 	irrespective 	of 	seniority who
possess 	special 	skills, 	knowledge, 	or abilities which
are 	not possessed to 	the 	same degree by other employees
in 	the 	same 	class 	and which are 	necessary 	to perform
the 	ongoing 	function of 	the department. 	To 	the 	extent
permitted by 	law, 	the University may also 	consider
workforce 	diversity when making 	layoff 	decisions 	and
implementing 	layoff 	actions. 	All 	such exceptions 	and
the 	decision 	to make 	such 	exceptions 	shall 	not 	be
subject 	to Article 	7 	- 	Arbitration Procedure of 	this
Agreement. 	(emphasis added.)
22

Article 34, 	Positions, 	Section B, 	Casual Positions, 	subsection 1
provides,
Casual 	positions 	are 	positions 	established at 	any
percentage of 	time, 	fixed or variable, 	for less 	than
one(l) 	year, 	or are positions 	established at a fixed or
variable percentage 	of 	time 	at 	less 	than 	fifty percent
(50%) 	of 	full-time 	regardless 	of 	the duration of 	the
position.
The 	arbitration hearing was held on November 12, 	1998 by
Arbitrator Edna E.J. 	Francis. 	Each side had representation and
closed their cases with written, 	post-hearing argument. 	The
Arbitrator noted in her decision on February 27, 	1999, 	in part,
that Mr. 	Foerstel 	testified in part 	that 	in September 1997, 	the
new Division 	Chief 	for the 	Glaucoma Division caused a
restructuring 	of 	the 	manner patient 	care 	would be 	given and 	the
elimination of 	some positions, 	including the grievants 7
positions. 	The 	affected 	classifications 	and seniority
information were 	identified. 	Mr. 	Foerstel 	got 	together with the
supervisors 	of 	junior employees, 	discussed specific duties of
their positions, 	and determined whether any of the 	senior
employees 	whose positions 	had been eliminated were 	capable 	of
performing the duties 	of 	the junior employees' 	positions. 	One of
those positions, 	a 50% career position, 	was offered to Ms. 	Ezozo
and Ms. 	Yadegaran and 	they both declined the position.
The Arbitrator also found, 	in part, 	as 	follows,
While 	the 	record 	reflects 	that 	the Department
apparently 	failed 	to 	satisfy 	the 	procedural
requirements 	to 	submit 	to 	the Assistant Vice
Chancellor, 	Campus Human Resources, 	any request 	for
exceptions 	to 	retain an employee 	out 	of 	seniority and
based its decisions about 	the grievants' 	skills,
knowledge 	and 	abilities 	on 	somewhat 	limited 	information
(not 	even including an interview of 	the grievants), 	the
record does 	not 	reflect 	a violation of 	the Agreement.
Ironically, 	the primary provision of 	the Agreement upon
which AFSCME 	relies 	to support 	its 	grievance, 	Article
13C3, 	insulates 	the University from the 	challenge
mounted here 	by AFSCME. 	Article 	13C3 	both established
that 	the 	order 	or 	indefinite 	layoff 	of 	employees 	in 	the
same 	class 	with a department 	shall 	be 	in 	inverse 	order
of 	seniority and 	(in the next breath) 	that 	the
University may at 	its 	discretion make 	an exception 	to
that 	principle 	and at 	its 	discretion 	retain employees
irrespective 	of 	seniority who possess 	special 	skills,
knowledge, 	or abilities which are not possessed to 	the
same 	degree by 	other 	employees 	in 	the 	same 	class 	and
w
	3

which are 	necessary 	to perform the 	ongoing 	function 	of
the department. 	Most 	significantly, 	it 	then takes 	the
further 	step 	of 	providing 	that 	such 	exceptions 	and 	the
decisions 	to make 	such 	exceptions 	shall 	not 	be 	subject
to 	the arbitration procedure of 	the Agreement. 	Thus,
in the 	face of 	the language of Article 13C3, 	the
grievances 	seeking 	to 	invalidate 	the 	Department's
decision 	to 	retain 	employees 	less 	senior 	than 	the 	two
grievants 	cannot 	be 	considered at 	arbitration.
Finally, 	there 	is no evidence 	of any violation of
Article 	34B1 	of 	the Agreement 	pertaining 	to 	casual
positions, 	(emphasis 	in original.)
The Award 	states,
The 	University's 	decision 	to 	lay off 	Ross 	and Yadegaran
as 	Hospital 	lab Technician 	Ill's 	in 	the Department 	of
Ophthalmology effective October 24, 	1997, 	is
arbitrable. 	The University's 	decision 	to 	retain
employees 	with 	less 	seniority 	than 	Ross 	and Yadegaran
is 	not arbitrable. 	The 	layoffs 	of Ross 	and Yadegaran
did not violate Article 	13.C.3 	or Article 	34B.1 	of 	the
Agreement.
The unfair practice 	charge 	asserts 	that AFSCME arbitrarily
ignored a meritorious 	grievance 	and processed 	a 	grievance 	in a
perfunctory 	fashion. 	In October 1997, 	the Department 	claimed
that 	the 	layoff was 	necessary 	since 	the 	Ezozo 	job position was 	no
longer needed. 	Three days 	subsequent 	to Ms. 	Ezozo's 	layoff, 	the
Department 	reopened 	the 	same 	position and hired a Hospital 	Lab
Technician under 	"casual" 	employee 	statutes 	to accomplish the 	job
the Department 	claimed no 	longer existed. 	According 	to Ms.
Ezozo's 	Grievance 	Fact 	Sheet 	which she prepared 	for AFSCME 	on
May 21, 	1998, 	the Department had no budgetary problems. 	The
reorganization was merely 	to 	relocate 	her 	equipment 	closer 	to 	the
doctors' 	suite, 	from 	"A" 	floor to the second floor. 	Mr. 	Foerstel
advised Ms. 	Ezozo he was 	turning her position 	into a 	casual
position, 	and would permit her to keep her job 	if 	she agreed to
become 	casual 	and accept 	a 	reduction 	in pay. 	She 	refused and was
laid off 	effective October 24, 	1997. 	Mr. 	Foerstel hired a
technician 	for her position 	two weeks 	later.
During the arbitration, 	Ms. 	Ezozo asked Mr. 	Robert Battle of
AFSCME 	to 	offer evidence 	showing a violation of 	an article 	of 	the
contract but he 	refused to do so.3 Thus, 	the arbitrator did not
find a violation. 	Mr. 	Battle 	arbitrated 	facts 	indicating 	that
3It 	is 	unclear which article 	of 	the 	contract 	is 	being
referred to here. 	I 	note 	that Article 4 	covers Nondiscrimination
In Employment.
44

the 	Department 	did 	not 	follow 	their 	own policy by 	laying 	off
employees 	without 	using 	seniority and without 	the 	necessary
authorization 	from 	the 	Campus 	Human Resource Vice-Chancellor.
Mr. 	Battle refused Ms. 	Ezozo's 	request to present evidence of
discrimination. 	Mr. 	Battle agreed to Ms. 	Ezozo's 	request 	that he
obtain 	certain 	information 	from 	the 	Department 	to 	assist 	with 	the
case, 	but 	he never did so. 	Mr. 	Battle arbitrated both grievants
cases 	(Ezozo and Yadegaran) 	at 	the same time although Ms. 	Ezozo
believes 	they are two different 	cases. 	Ms. 	Ezozo at Step I 	of
the 	grievance procedure 	accepted a 	50% position.4 The University
never 	contacted her about 	this 	position. 	She brought 	this 	to Mr.
Battle's attention, 	but he did nothing about 	it. 	After
arbitration, 	she asked Mr. 	Battle 	if 	she could grieve the 	fact
she never got 	the 	50% position. 	Mr. 	Battle 	indicated he would
get 	back 	to 	her but 	he never did.
In Ms. 	Ezozo's May 21, 	1998 Grievance Fact Sheet, 	she believes
she was 	laid off under the 	guise 	of 	a 	reorganization, 	which was 	a
pretext 	for 	race 	discrimination. 	She 	had a 	"discriminatory
complaint" 	regarding her seniority but Mr. 	Battle did not allow
Ms. 	Ezozo 	to grieve 	the Department's actions as 	a discriminatory
complaint. 	Ms. 	Ezozo 	feels 	that 	her separation was 	due 	to her
race. 	Because of winning a race complaint 	in 1990, 	Tom Foerstel,
Administrator harassed Ms. 	Ezozo on a continual basis. 	Ms. 	Ezozo
was 	required 	to pass 	a written and skill 	evaluation 	test 	as 	a
Certified 	Ophthalmic 	Technician before 	she 	was 	reclassified as 	a
Hospital 	Lab Technician 	II. 	Her Caucasian peers 	in the
Department were not 	required to pass 	the 	test. 	Even though Ms.
Ezozo was 	laid off 	in the 	reorganization, 	her Caucasian peers,
with less 	seniority, 	were not. 	Ms. 	Ezozo had superior experience
over her 	Caucasian peers 	and 	did not 	have 	any performance
problems. 	She was 	only permitted to 	consider 	in exercising her
seniority in lieu of layoff, 	a 50% position. 	The 100% and 50%
positions 	had 	the 	same 	job duties.
I note 	that Article 4, 	Nondiscrimination in Employment, 	section
A.1 provides 	in part 	that 	the University 	shall 	not 	discriminate
against members 	of 	the bargaining unit 	on the basis 	of 	race.
Article 4, 	section E.3, 	Grievability/Arbitrability, 	provides,
Grievances 	which allege a violation of Article 	4-
Nondiscrimination 	in 	Employment 	and 	a 	non-arbitrable
provision of 	this Agreement 	shall 	be 	eligible 	to be
grieved 	in 	accordance 	with Article 	6-Grievance
Procedure,.. 	In no 	circumstance 	shall 	such grievance be
4This point 	is not clear. 	Mr. 	Foerstel 	testified at the
arbitration hearing that Ms. 	Ezozo declined a 50% 	career
position. 	Also, 	Ms. 	Ezozo testified that 	she 	initially declined
the 	50% position, 	but 	changed her mind at 	the Step 2 	grievance
meeting by 	expressing 	interest 	in 	it.
55

eligible 	for appeal 	to Article 	7 	- 	Arbitration
Procedure 	of 	this Agreement.
Article 4, 	section E.4 provides,
Grievances which allege a violation of Article 4 	-
Nondiscrimination 	in 	Employment 	and 	an 	arbitrable
provision 	of 	this Agreement 	shall 	be 	eligible 	to be
grieved/arbitrated 	in accordance with Article 	6-
Grievance 	Procedure 	and Article 	7-Arbitration 	Procedure
of 	this Agreement.
Based on the above 	facts, 	the 	charge 	fails 	to state a prima facie
violation of 	the 	DFR.
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).
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
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
66

Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
The 	facts 	demonstrate 	that AFSCME processed 	the 	Ezozo grievance
(regarding 	seniority and 	casual 	employees) 	all 	the way to binding
arbitration, 	which was decided 	in the University's 	favor on
February 27, 	1999. 	The 	facts 	do not demonstrate 	that AFSCME's
conduct was 	arbitrary, 	discriminatory or in bad faith. 	Mr. 	Keith
Uriarte 	of 	AFSCME 	executed 	the 	grievance 	form on October 	14,
1997. 	The grievance was 	taken over in or about November 	1997 by
Mr. 	Battle at 	Step 2. 	It 	is unclear whether the above 	race
discrimination 	allegations 	were 	brought 	to AFSCME's 	attention by
Ms. 	Ezozo at 	Steps 	I 	or II 	to allow for a possible amendment 	to
the grievance. 	Mr. 	Battle appealed to Step 	III 	on February 19,
1998. 	According to the 	collective bargaining agreement, 	a
grievance may be 	filed by an 	individual 	employee 	or AFSCME. 	See
Article 	6, 	section A.1 and 4. 	This 	would permit 	an employee 	to
raise 	in 	the 	grievance all 	the 	allegations 	he 	or 	she wishes 	to.
Also, 	it 	appears 	that 	the 	race discrimination allegations may
have not 	have been brought 	to AFSCME by Ms. 	Ezozo until May 21,
1998, 	at 	the 	time 	the AFSCME Grievance 	Fact 	Sheet was 	executed by
Ms. 	Ezozo. 	Even if AFSCME had knowledge of 	the alleged race
discrimination allegations at 	Steps 	I and II, 	a rational 	decision
to not pursue, 	or possible negligence 	in not pursuing this
defense 	to 	the 	layoff does not violate 	the DFR. 	Also, 	the 	fact
one 	of 	the 	grievants 	was 	Caucasian may have 	dissuaded AFSCME 	from
bringing 	this 	discrimination 	claim. 	A union 	is 	not 	under an
obligation to process 	a 	claim which 	it 	feels 	it 	cannot win.
Finally, 	it 	is unclear that 	this 	discrimination claim was
arbitrable 	since 	at 	least 	one 	of 	the 	issues was 	not 	arbitrable.
See Article 4, 	section E.3 	above.
The 	facts 	regarding 	the 	offer 	of a 	50% position are unclear
because 	initially, 	Ms. 	Ezozo declined such a position. 	Even if
AFSCME was 	negligent 	in not 	assisting Ms. 	Ezozo 	to 	obtain such a
position, 	such 	conduct does 	not violate 	the DFR. 	This 	is because
no bad 	faith 	has 	been demonstrated.
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 	have 	the 	case 	number written 	on 	the 	top 	right
hand corner of 	the 	charge 	form. 	The amended 	charge must be
77

served 	on 	the 	respondent's 	representative5 and 	the 	original 	proof
of 	service must 	be 	filed with 	PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before August 	19, 	1999, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3543.
Sincerely,	Sincerely, 	~ ~
·~) ~_:,3Marc S. 	Hurwitz
Regional 	Attorney
5AFSCME's 	representative 	is 	Robert 	Battle.
8
( !