Service Employees International Union, Local 790 (Rax) (PERB 1488E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GERALD WAYNE RAX,
Charging Party,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 790,
Respondent.
Case No. SF-CO-583-E
PERB Decision No. 	1488
July 	8, 	2002
Appearance: Gerald Wayne Rax, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Gerald Wayne Rax (Rax) of a Board agent's dismissal
(attached) of his unfair practice charge. The charge alleged that the Service Employees
International Union, Local 790 violated the Educational Employment Relations Act (EERA) 1
by failing to file a grievance regarding his termination.
The Board has reviewed the entire record in this matter including the original and
amended unfair practice charges, the warning and dismissal letters and Rax's appeal. Rax's
appeal reiterates arguments in support of his charge made to the Board agent and fails to
adequately address the Board agent's finding that the charge was untimely filed. 2 As the
1EERA is codified at Government Code section 3540 et seq.
2The Board notes that the untimeliness of the allegations in the charge was not the basis
for the Board agent's warning letter. As such, Rax's amended charge attempted only to
address the finding that his charge failed to state a prima facie case. Although the untimeliness

timeliness of the charge is not established, the Board's inquiry into whether the charge states a
prima facie case ends. It is therefore not necessary to determine whether Rax's allegations
constitute a prima facie violation of BERA. (Long Beach Community College District (2002)
PERB Decision No. 1475.) The Board therefore adopts the portion of the dismissal letter
which dismisses Rax's charge as untimely.
ORDER
The unfair practice charge in Case No. SF-CO-583-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neimajoined in this Decision.
of the allegations in the charge was not an issue in the warning letter, it was very clearly the
basis of the dismissal. Rax therefore has now had ample opportunity through the instant
appeal to refute the finding that his charge was not timely.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Clay Street, Suite 2201
Oakland, CA 94612
Telephone: (510) 622-1024
Fax: (510) 622-1027
July 17, 2001
Gerald Wayne Rax
P.O. Box 1541
Oakland, California 94604
..I
Re: 	Gerald Wayne Rax
v.
Service Employees International Union, Local 790
Unfair Practice Charge No. SF-CO-583-E
DISMISSAL LETTER
Dear Mr. Rax:
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 11, 2001. 	Gerald Wayne Rax alleges that the Service
Employees International Union, Local 790 (SEIU) violated the Educational Employment
Relations Act (EERA) 1 by failing to file a grievance regarding his termination.
I indicated to you in
my
attached letter dated May 11, 2001, 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 21, 2001, the charge would be dismissed.
Charging Party filed an amended charge on :May 22, 2001 alleging that SEIU acted in anarbitrary, discriminatory and bad faith manner by failing to file a grievance challenging his
termination, or at least to fully investigate the basis for a grievance. Rax alleged that theDistrict's refusal to retain him constituted a violation
of
the District's civil service rules. 	The
collective bargaining agreement permits a grievance to be filed challenging a violation
of
the
civil service rules.
Subsequent to filing
of
the amended charge, Charging Party also submitted additional
infonnation concerning the issue of the timeliness of the charge, as follows. 	Rax contacted
SEIU's chapter president in January 2000 to express his concerns about his employment
classification. He was told that his employer, San Francisco Community College District
(District), could work him in any capacity it chose. Rax contacted SEID again in Febniary
2000 to request assistance in changing his status from temporary exempt to permanent,
following notice of his success on the District's promotional examination. In April 2000, one
week after receiving his letter of termination, Rax complained about his situation to SEID. 	On
May 3, 2000, SEIU steward Patti Tamura spoke to Rax regarding the possibility of filing a
1 BERA is codified at Government Code section 3540 et seq. 	The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-C0-583-E
July 17, 2001
Page 2
grievance
to
challenge his termination. However, no grievance was filed. 	Rax contacted the
director
of
SEID in October 2000
to
complain about the lack
of
representation. Rax does not
indicate whether the director actually responded. Rather, he states only that the director "did
not think that there was any merit
to
[his] grievance.
11
Rax further alleges that
SETIJ
knew or should have known that the District's termination
of
him, despite his success on the promotional examination and the rules requiring that he be
upgraded to permanent status, constituted a grieveable violation.
The collective bargaining agreement permits an employee
to
file a grievance in his own name.
(Art. 10, "Grievance", sec. B.) To be timely a grievance must be filed within 20 days
of
the
alleged violation. Time limits may be waived by mutual agreement between the grievant and
the District's representative. 	(Art. 10, secs. E, G.)
EERA section 3541.5(a) provides that a complaint may not issue in respect
of
any charge
based on an unfair practice occun-ing more than six months prior to the filing
of
the charge.
The limitations period begins
to
run when the charging party knew or should have known
of
the conduct underlying the charge. (Fairfield-Suisun Unified School District (1985) PERBDecision No. 547.)
According to the facts stated above, Rax was aware
of
the basis for a possible grievance at the
time he first approached SEID in April 2000.	
SEW
was also aware
of
Rax's request to file a
grievance on May 3, 2000. Rax knew or should have known that he and SEID had only
20days in which to file a grievance following his termination that was effective the end
of
April
2000. The charge was not filed until April 11, 2001, which is more than six months after these
events.
Rax appears to rely on his subsequent renewed request that a grievance be filed that was
submitted to SETIJ on October 4, 2000. However, these subsequent events did not commence
the running
of
a new limitations period. (See Riverside Unified School District (1985) PERB
Decision No. 522.) Rax had sufficient information in May 2000 from which to conclude that
SEID was unwilling to prosecute a grievance on his behalf. The union's failure to act within
20 days should have put him on notice that it was unwilling
to
represent him. 	(See
International Union
of
Operating Engineers (Reich) (1986) PERB Decision No. 591-H
[limitations period commences when union assesses the merits
of
a grievance rather than when
charging party discovers legal basis for a charge J.)
Therefore, I am dismissing the charge based on the facts and reasons stated above, as
well as
those contained in my May 11, 2001 letter.

SF-CO-583-E
July 17, 2001
Page 3
Right to Appeal
Pursuant to PERB Regulations2, 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. 	(Regulation 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.
(Regulations 32135(a) and 32130.)
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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. 	(Regulation 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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-583-E
July 17, 2001
Page 4
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. 	(Regulation 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
ByDo~
Regional Attorney
Attachment
cc: P. Tamura
DNG

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
i 5 i 5 Ciay Street, Suite 220 I
Oakland, CA 94612
Telephone: (510) 622- l 024
Fax: (510) 622-1027
May 11, 2001
Gerald Wayne Rax
P.O. Box 1541
Oakland, California 94604
Re: 	Gerald Wayne Rax v. Service Employees International Union, Local 790
Unfair Practice Charge No. SF-CO-583-E
WARNING LETTER
Dear Mr. Rax:
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 11, 2001. Gerald Wayne Rax alleges that the Service
Employees International Union, Local 790 (SEID) violated the Educational Employment
Relations Act (EERA) 1 by failing to file a grievance regarding his termination.
Investigation of the charge revealed the following. 	Rax was employed by the San Francisco
Community College District (District) as a Senior Personnel Clerk until his termination on
May 4, 2000. He was assigned to work in the Human Resources Department of City College
of San Francisco.
SEID is the exclusive representative of a bargaining unit composed of classified employees in
the District.
Rax was initially hired in November 1999 and appointed as a temporary exempt employee. 	In
February 2000, Rax competed in a civil service examination and obtained a score making him
eligible for a permanent position.
The Director of Human Resources issued Rax a letter dated April 3, 2000 indicating that his
appointment as a Senior Personnel Clerk would end at the end of April 2000 because Rax had
reached the end of his six-month appointment.
On May 4, 2000, the Director was issued a personnel requisition, which he presented to Rax
for his signature. The form indicated that Rax had been "reclassified" as a School Aide III.
Rax refused to sign the document.
On October 4, 2000, Rax requested that SEIU file a grievance regarding his termination. 	Rax
indicated that he had recently met with a representative of the District and attempted to
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-583-E
May 11, 2001
Page 2
determine if his employment status was temporary exempt or provisional. The form he signed
at the time of his hire indicated he was temporary exempt. However, his termination letter
indicated that he was a provisional employee. Rax contended that he was temporary exempt.
Rax explained that he refused to sign the May 4 requisition form because of the "lack of
explanation as to [his] rights and responsibilities and/or misinformation." He closed his letter
by requesting that SEID advise him as to whether or not he was a member of the bargaining
unit, and if so whether his dispute was covered by the collective bargaining agreement. 	Rax
also requested that if he were covered that a grievance be filed on his behalf.
Based on the facts stated above, the charge as presently written fails to state a prima facie
violation of the BERA for the reasons that follow.
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 BERA, Charging Party must show that the Respondent'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 omitted.]
A union may exercise its discrntion 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.]
While it may appear troubling that SEIU failed to respond to Rax's letter requesting advice on
whether he had a potentially meritorious grievance, this alone is insufficient to state a prima

SF-CO-583-E
May 11, 2001
Page 3
facie violation involving a breach
of
the duty
of
fair representation. 	As the authorities note, it
must be shown that SEIU caused Rax to forfeit a meritorious grievance for arbitrary,
discriminatory or bad faith reasons. Though it is true that a union's failure to investigate the
merits
of
a grievance may demonstrate arbitrary, discriminatory or bad faith action, Charging
Party nevertheless bears the burden that he had a meritorious grievance in the first instance.
By letter dated April 16, 2001, the undersigned advised Rax
of
this deficiency, suggesting that
he examine a copy
of
the collective bargaining agreement to determine
if
there was language
that would have supported such a grievance. No response has been provided.
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 comer
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 May 21, 2001, I shall dismiss
your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
Donn Ginoza
Regional Attorney
DNG