Rocklin Teachers Professional Association (Romero) (PERB 0124E)

PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
OF 	THE 	STATE OF CALIFORNIA
THOMAS A. 	ROMERO,
Charging 	Party,
v.
ROCKLIN 	TEACHERS 	PROFESSIONAL
ASSOCIATION,
Respondent.
)
) 	Case 	No. 	S-CO-28
PERB Decision No. 	124
March 26, 	1980
)
)
)
Appearances: 	Thomas A. 	Romero, 	in pro per; 	Delores
Kuchenriter, 	President, 	for Rocklin Teachers Professional
Association, CTA/NEA.
Before Gluck, Chairperson; 	Gonzales and Moore, Members.
DECISION
Thomas A. 	Romero 	(hereafter Charging Party) 	appeals 	from a
Public 	Employment 	Relations 	Board 	(hereafter 	PERB or 	Board)
hearing 	officer's 	order 	dismissing 	with 	leave 	to 	amend 	his
unfair 	practice 	charge 	against 	the 	Rocklin Teachers
Professional Association 	(hereafter Association). 	For 	the
reasons 	discussed 	below, 	the Board 	itself 	affirms 	the 	dismissal
of 	the 	unfair 	practice 	charge 	as 	amended 	and 	orders 	that 	the
Charging 	Party 	be 	permitted 	to 	further 	amend 	his 	charge 	to
conform 	to 	the 	instant 	decision.
)
)
)
)
)
)

FACTUAL 	SUMMARY
On September 	26, 	1978, 	the Charging Party filed an unfair
practice 	charge 	against 	the Association 	alleging 	violations 	of
sections 	3543.6(c) 	and 	3543.7 of 	the Educational Employment
Relations Act 	(hereafter EERA).1 	In 	support of his charge,
the Charging 	Party 	alleges 	that 	the Association 	failed 	to
negotiate 	with 	the 	employer 	as 	to employee 	benefits
notwithstanding 	a provision 	in 	the 	negotiated 	agreement 	which
provided 	for 	annual 	negotiations 	as 	to benefits.2 The
1 The 	EERA 	is 	codified 	at Government Code 	section 	3540 	et
seq. 	Unless 	otherwise 	noted, 	all 	statutory 	references 	are 	to
the Government Code.
Section 3543.6 (c) 	provides:
It 	shall be 	unlawful 	for 	an employee
organization 	to:
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith with 	a public 	school 	employer 	of
any of 	the employees of which 	it 	is 	the
exclusive 	representative.
Section 	3543.7 	provides:
The 	duty 	to meet 	and 	negotiate 	in good 	faith
requires 	the 	parties 	to begin 	negotiations
prior 	to 	the 	adoption of 	the 	final 	budget
for 	the 	ensuing 	year 	sufficiently 	in 	advance
of 	such 	adoption date 	so 	that 	there 	is
adequate 	time 	for 	agreement 	to be 	reached,
or 	for 	the 	resolution of 	an 	impasse.
2The 	Association 	was 	voluntarily 	recognized 	as 	the
exclusive 	representative 	of 	certificated 	employees 	on May 	5,
1976. 	A two-year 	negotiated 	agreement was 	effected 	in July
N
• 	• 	• 	• 	• 	• 	• 	• 	•
2

allegation 	that 	Respondent 	had 	violated 	section 	3543.7 	of 	EERA
was 	premised 	on 	the Charging Party's 	assertion 	that 	the 	final
budget 	deadline 	had 	passed 	without 	re-negotiation.
1977 	and 	expired 	in June 	1979. 	At 	the 	time of 	filing 	the
initial 	unfair 	practice 	charge, 	the parties were 	into 	the
second 	year 	of 	their 	negotiated 	agreement. 	Article 	I, 	section
4 of 	the 	agreement 	cited 	by 	the Charging 	Party provides:
Salaries 	and 	benefits 	shall be 	negotiated
annually. 	Negotiations 	on 	any other 	part of
said 	Agreement 	may 	be 	opened 	by mutual
consent.
On October 	4, 	1978, 	the 	hearing officer 	dismissed 	the
unfair practice 	charge 	with 	leave 	to amend. 	In 	so doing 	he
advised 	the Charging Party 	that 	section 	3543.6 (c) 	of EERA does
not provide 	a 	remedy 	for 	a member 	of 	a 	negotiating 	unit 	against
the 	exclusive 	representative 	but 	rather 	that 	section 	3543.6(b)
is 	the 	appropriate 	statutory 	vehicle 	for 	a 	unit member 	to
attack 	conduct 	of 	the 	exclusive 	representative 	said 	to 	be
violative 	of 	the 	duty of 	fair 	representation 	imposed 	by 	section
3544.9 	of 	EERA.3 He 	further 	held 	that 	the 	failure
3Section 3543.6 (b) 	of EERA provides:
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
3
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
3

to 	adhere 	to 	the 	time 	limitations 	imposed 	by 	section 	3543.7 of
EERA may be 	dealt with 	as part of 	the 	evidence 	of 	an 	unfair
practice charge 	arising under 	section 3543.5(c) 	or 3543.6 (c) 	if
such 	charges 	are 	alleged by 	an 	employee 	organization or 	an
employer 	respectively.
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
Section 	3544.9 	of 	EERA provides:
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.
Presumably 	in 	response 	to 	the 	hearing officer's 	decision,
the 	unfair 	practice 	charge 	was 	amended 	on October 	18, 	1978.4
Charging 	Party 	alleged 	that 	the 	Association 	violated
section 	3544.9 	and 	thus 	3543.6(b) 	of EERA by 	acting 	in an
arbitrary 	and 	bad 	faith manner 	and 	thereby 	failing 	to 	fairly
represent 	him. 	In 	support of 	the 	amended charge, 	Charging
Party 	added 	the 	allegations 	that 	the 	Rocklin 	School Board 	had
expressed 	its 	willingness 	to negotiate 	benefits 	in 	a 	resolution
issued 	on June 	29, 	1978, 	and 	that 	the 	final budget 	for 	the
Rocklin School 	District 	revealed 	a 	balance 	of 	approximately 	12
4Because 	the Charging Party 	did 	not 	appeal 	the 	hearing
officer's 	dismissal 	but 	rather 	amended 	and 	resubmitted 	his
unfair 	practice 	charge, 	the propriety of 	the 	hearing officer';
dismissal 	is 	not 	before 	the Board 	and we 	therefore make 	no
ruling 	on 	the 	basis 	for 	that 	determination.
•
4

percent of 	an approximate 	$2,230,000 	budget. 	He 	also
reiterated 	his 	claim 	that 	the 	contract 	reopener 	clause 	and 	the
failure 	to 	comply 	with 	the 	time 	limitations of 	section 	3543.7
are 	evidence 	of 	the Association's 	unlawful 	conduct.5
On October 	26, 	1978, 	the hearing officer 	issued a 	second
dismissal with 	leave 	to amend. 	The 	basis 	for 	this dismissal
was 	that 	the Charging 	Party 	had 	failed 	to 	allege 	facts
demonstrating 	that 	the 	Charging 	Party 	had 	been 	treated
differently 	from 	all 	other 	bargaining 	unit members.6
On November 	14, 	1978, 	the Charging Party 	appealed 	the
hearing 	officer's 	second 	dismissal 	with 	leave 	to 	amend 	advising
this Board 	that 	the 	thrust of 	his 	unfair 	practice 	charge 	was
not 	unequal 	or 	differential 	representation 	but 	rather 	concerned
the 	Association's 	failure 	to 	satisfy 	its 	representational
obligation 	to 	the 	bargaining 	unit 	as 	a whole. 	Respondent
failed 	to 	submit 	a 	timely 	response 	to 	the Charging 	Party's
appeal. 	In considering 	the Charging Party's 	appeal of 	the
5The 	Board 	finds 	that 	failure 	to comply with 	section
3543.7 	is 	correctly 	included 	as 	evidence of 	the 	unfair 	practice
charge 	asserted 	but 	that 	it 	is 	not 	an unfair 	practice 	in and of
itself.
6The 	hearing 	officer 	also 	determined 	that 	a 	bare
allegation of 	different 	treatment 	is 	insufficient 	to
demonstrate 	a 	breach 	of 	the 	duty of 	fair 	representation 	unless
accompanied 	by 	"an 	allegation of 	specific 	facts 	in 	support 	of
the 	general 	allegation 	of bad 	faith."
55

hearing officer's dismissal of 	the 	unfair 	practice 	charge, 	the
Board 	assumes 	that 	the 	facts 	as 	alleged 	are 	true.7
DISCUSSION
Although 	this Board 	has 	held 	that 	section 3543.6(b) 	is
violated 	by 	an exclusive 	representative 	that 	fails 	to 	satisfy
its 	duty 	to 	"fairly 	represent 	each 	and 	every 	employee 	in 	the
appropriate 	unit" 	as 	required 	by 	section 	3544.9 	of EERA
(Robert Quarrick 	and Thelma O'Brien v. 	Mt. 	Diablo Education
Association, CTA/NEA 	(8/21/78) 	PERB Decision No. 	68;
Sandra 	Faeth 	and Judy McCarty 	v. 	Redlands Teachers Association
(9/25/78) 	PERB Decision No. 	72; 	Jules Kimmett v. 	Service
Employees International Union, 	Local 99 	(10/19/79) 	PERB
Decision No. 	106) , 	the exact parameters of this duty have not
been fully defined. 	In 	this case, 	however, 	it 	is necessary for
the Board 	to 	articulate 	with 	some 	specificity 	those 	obligations
imposed 	on 	the 	exclusive 	representative 	by 	the 	duty of 	fair
representation. 	In so doing, 	the majority 	is guided by cases
involving 	the 	duty of 	fair 	representation 	as 	interpreted 	under
the National 	Labor 	Relations Act 	(hereafter NLRA) 	by 	the
National Labor 	Relations Board 	and 	the 	federal 	courts. 	(Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608 	[116
Cal.Rptr. 	507]; 	and see Jules Kimmett, 	supra, 	at note 8.)
7San 	Juan Unified 	School 	District 	(3/10/77) 	EERB 	Decision
No. 12.
6

In Vaca v. Sipes (1967) 	386 U.S. 171 [64 LRRM 2369], the
Supreme Court held 	that under 	the NLRA a breach of 	the duty of
fair 	representation occurs when a union's conduct toward a
member of the bargaining unit is arbitrary, discriminatory, or
in bad faith. 	In 	interpreting the standard set forth 	in Vaca,
the court in Griffin v. United Auto Workers 	(4th Cir. 	1972) 	469
F.2d 181 	[81 LRRM 2485] 	stated:
A union must conform 	its behavior 	to each of
these standards. 	First, 	it must treat all
factions 	and segments of 	its membership
without hostility or discrimination. 	Next,
the broad discretion of 	the union in
asserting the rights of 	its members must be
exercised 	in complete good faith and
honesty. 	Finally, 	the union must avoid
arbitrary conduct. 	Each of these
requirements represents a distinct and
separate obligation, 	the breach of which may
constitute the basis for civil action.
The court, 	expressly focusing on the 	arbitrary standard,
continued:
The 	repeated references 	in Vaca to
"arbitrary" union conduct reflected a
calculated broadening of 	the 	fair
representation 	standard. 	(Citations
omitted) 	. 	. 	. 	Without any hostile motive
of discrimination and 	in complete good
faith, 	a union may nevertheless pursue a
course of action or 	inaction that is so
unreasonable 	and 	arbitrary as 	to constitute
a violation of the duty of 	fair
representation.
Other 	courts have 	similarly concluded that arbitrary
conduct by the union 	in representing 	those within a particular
bargaining unit may constitute 	a breach of the duty of 	fair
7

representation. 	(See Sanderson v. 	Ford Motor Co. 	(5th Cir.
1973) 	483 F.2d 102 	[83 LRRM 2859]; Woods v. 	North American
Rockwell Corp. 	(10 Cir. 	1973) 	480 F.2d 644 	[6 FEP Cases 22];
Beriault v. 	Warehousemen's Union 	(9th Cir. 	1974) 	501 F.2d 	258
[87 LRRM 2070]; 	Robesky v. Quantas Empire Airways 	(9th Cir.
1978) 	573 F.2d 	1082 	[98 LRRM 2090].)
Based on 	the 	foregoing, 	this Board concludes 	that 	the 	basis
for 	the 	hearing officer's 	dismissal 	of 	the 	unfair 	practice
charge 	was 	erroneous. 	The Board 	finds 	that 	a 	standard which
prohibits 	only 	discriminatory 	and 	bad 	faith 	conduct 	cannot
ensure 	that 	an exclusive 	representative 	will offer
representation 	to 	all 	the employees 	it 	serves. 	Arbitrary
conduct 	by 	an 	exclusive 	representative may 	itself 	constitute 	a
violation 	of 	the 	duty 	of 	fair 	representative 	because 	the Board
believes 	that, without 	reliance 	on an 	arbitrary 	standard,
employee 	organizations 	would 	be 	permitted 	to make 	unreasonable
decisions 	as 	long 	as 	there 	were 	no evidence of 	deliberate
wrongdoing or disparate 	treatment 	(Beriault, 	supra).
Therefore, 	to 	the extent 	that 	the 	hearing officer's 	dismissal
was 	based 	on 	the Charging Party's 	failure 	to 	specifically
allege 	discriminatory 	treatment or 	bad 	faith 	conduct, 	the 	Board
is 	in 	disagreement.8
8 The 	Board 	is 	not 	in disagreement 	with 	the 	hearing
officer's 	conclusion 	that 	the Charging 	Party 	failed 	to 	allege
sufficient 	facts 	to demonstrate 	either 	discriminatory 	or 	bad
8

faith 	conduct on 	the part 	of 	the Association. 	The Board's
disagreement, 	as discussed 	infra, 	stems 	from the 	hearing
officer's 	conclusion 	that 	the 	duty of 	fair 	representation 	is
limited 	to 	instances of 	discriminatory or 	bad 	faith 	conduct.
However, 	the Board 	is 	not persuaded 	that 	the Charging Party
has 	alleged 	in 	his 	amended 	charge 	sufficient 	facts 	to establish
that 	the Association 	acted 	arbitrarily 	in 	refusing 	to 	negotiate
benefits. 	A union's 	duty 	to 	fairly 	represent employees 	during
negotiations 	does 	not 	encompass 	an obligation 	to 	negotiate 	any
particular 	item and, 	in 	this case, 	the Charging Party has
failed 	to 	demonstrate 	that 	the Association's 	failure 	to
negotiate 	benefits 	violated 	any 	affirmative 	duty 	it 	owed 	to 	the
unit members. 	A prima 	facie 	case 	alleging 	arbitrary 	conduct
violative 	of 	the 	duty of 	fair 	representation 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. 	(DeArroyo v. 	Sindicato de Trabajadores Packing
(1st Cir. 	1970) 	425 F.2d 281 	[74 LRRM 2028].) 	While 	the Board
recognizes 	that 	it may be difficult 	to 	set 	forth with
exactitude 	the 	irrational 	or 	arbitrary 	nature 	of 	the 	union's
conduct 	toward 	the 	unit membership, 	this 	requirement 	is
necessary 	in order 	to 	insure 	that 	the 	bargaining 	agent, 	faced
with 	the 	impossible 	task 	of pleasing 	all 	of 	the 	people 	all 	of
the 	time, 	is 	afforded 	a broad 	range of discretion 	and
99

latitude. 	The exclusive 	representative's 	obligation 	during 	the
collective 	negotiating 	process 	necessarily 	involves 	a 	high
degree of 	give 	and 	take, 	compromise 	and 	trade off 	and,
therefore, 	cannot 	be 	subjected 	to a standard more 	rigid 	than 	is
consonant 	with 	the 	realities of 	the 	bargaining process.
Because 	the 	task 	of bargaining 	demands 	a 	balancing of 	benefits
against 	burdens, 	a 	union 	should 	not be 	required 	to justify
every decision 	it makes 	at 	the 	bargaining 	table.9
While 	the Board 	is 	conscious of 	the 	need 	to 	respect 	the
exclusive 	representative's discretion, 	it must 	also afford
protection 	to 	those 	unit 	employees 	who 	can establish 	that 	their
representative's 	conduct 	has 	gone 	beyond 	the 	bounds 	of
reasonable 	latitude 	and 	has 	thereby 	failed 	to 	satisfy 	its
obligation 	to provide 	fair 	representation 	to 	those 	for 	whom 	it
is 	statutorily 	empowered 	to 	speak.10
9Based on 	these concerns, 	this Board 	advises 	that 	the
standard 	for 	the 	duty of 	fair 	representation 	as 	it 	arises 	in
the 	negotiating 	process may not 	be 	the 	same 	as 	that 	applied 	in
situations 	arising 	out 	of 	grievance 	situations 	involving 	the
enforcement of 	a contract. 	(Price v. 	International Brotherhood
of Teamsters 	(3rd Cir. 	1972) 	457 F.2d 605 	[79 LRRM 2865] .)
10	lO The 	Board notes 	that unit members 	are not 	precluded
from 	choosing 	to 	register 	their 	dissatisfaction with 	the
exclusive 	representative 	through 	the 	decertification process 	as
provided 	for 	in 	section 3544.5 	et 	seq. 	of EERA. 	To 	the extent
that 	the object of 	their 	dissatisfaction may, 	in certain
circumstances, 	also constitute a violation of 	the duty of fair
representation, 	it 	is 	the Board's view that these are 	simply
alternative remedies. 	An employee may desire 	to bring a 	duty
of 	fair 	representation 	charge without 	also wishing 	to 	exercise
his/her rights 	to 	seek decertification.
10

The 	facts 	alleged 	by 	the 	Charging 	Party 	cannot 	be 	read 	to
assume 	the 	absence 	of 	a reasonable 	explanation 	for 	the
Association's 	conduct. 	It 	is 	true 	that 	the Charging Party's
reference 	to 	the School Board 	resolution demonstrates 	the
employer's 	willingness 	to bargain at 	least as 	to benefits. 	We
do 	not 	know 	if 	the 	resolution 	indicated 	a willingness 	to
negotiate 	salaries. 	In any event, 	since the parties'
negotiated 	agreement 	included 	a 	wage 	and 	benefit 	reopener
clause, 	the 	employer's 	resolution adds 	nothing 	to bolster 	the
bare 	allegation 	that 	the 	exclusive 	representative 	acted
arbitrarily 	in 	choosing 	to 	forego mid-contract 	negotiations.
Similarly, 	the Charging Party 	also 	attempts 	to 	support 	his
claim by 	alleging 	that 	a 	budgetary 	surplus 	existed 	over 	which
the 	union 	could 	have negotiated. 	Since 	the 	exclusive
representative 	is 	under 	no obligation 	to bargain 	in 	each
instance where 	surplus 	funds are 	available, 	this 	assertion 	in
itself 	does 	not 	raise 	sufficient doubt 	as 	to 	the 	lack of 	a
rational basis 	for 	the 	union's 	decision. 	It 	is 	also noted 	that
the Charging Party's 	allegation 	is 	that 	the Association 	failed
to negotiate benefits. 	The 	reopener clause of 	the contract,
however, 	provides 	that 	"Salaries 	and benefits shall be
negotiated 	annually." 	While 	the 	significance 	of 	the Charging
Party's 	incomplete 	reference 	to 	the 	contract 	cannot 	be
ascertained 	by conjecture, 	it 	admittedly raises 	some questions
as 	to 	what 	the Association did 	negotiate or 	was 	willing 	to
11

negotiate. 	However, 	by failing to bring further 	relevant facts
before the Board, 	it 	is impossible to find a prima facie case
of 	arbitrary conduct on the part of the Association. 	The Board
cannot 	ignore the possibility that the Charging Party, 	by his
selection of 	issues, 	is expressing personal dissatisfaction
with 	the Association's 	representation rather 	than evidencing an
arbitrary disregard of 	the 	rights of all employees 	in the
unit. 	Essentially, the Charging Party's pleadings merely
suggest 	that 	the Association could have negotiated as 	to
benefits but did not do so. 	The charge does not establish any
basis 	for 	finding that such action was 	required. 	The failure
to negotiate becomes 	impermissible only where 	it 	is founded
on the duty or obligation to do so. 	Thus in South
San Francisco Unified School District 	(1/15/80) 	PERB Decision
No. 	112, 	the Board determined that an individual employee had
standing to assert a refusal to negotiate charge against his
employer 	because 	the allegation was premised on the employer's
duty to refrain from making 	unilateral changes without 	first
bargaining with the exclusive representative. 	While there 	is 	a
general obligation 	imposed on the exclusive representative by
the duty of 	fair 	representation to negotiate on behalf of 	the
employees it represents, here, the Charging Party's pleadings
fail 	to establish an obligation to negotiate as to any specific
subject, 	i.e., benefits. 	Absent a showing, by virtue of
specific factual circumstances, 	that the failure to negotiate
12

benefits 	was 	arbitrary, 	Charging 	Party 	has 	not 	established 	a
prima 	facie case 	of 	a 	section 	3544.9 	violation. 	Therefore, 	the
Board 	dismisses 	the 	amended 	charge 	for 	the 	reasons 	set 	forth
above 	granting 	the 	Charging Party 	leave 	to 	amend 	his 	charge
with 	specific 	factual 	allegations 	sufficient 	to 	establish 	that
the Association's 	refusal 	to 	negotiate 	benefits 	was 	irrational
or 	unreasoned.
ORDER
The 	Public 	Employment 	Relations 	Board ORDERS 	that 	the
hearing 	officer's 	dismissal 	of 	the 	unfair 	practice 	charge 	be
affirmed 	for 	the 	reasons 	set 	forth 	herein 	and 	that 	the 	Charging
Party 	be 	granted 	leave 	to 	amend 	his 	charge 	to 	conform 	to 	this
decision.
n
Babra N. MoorBY: 	Barbara D. Moore, Member 	Harry Clock, Chairman	Harr
Raymond J. 	Gonzales, 	concurring:
I 	concur 	with my 	fellow Board 	members 	in 	the 	disposition of
this 	case. 	I 	agree 	that 	a 	union may breach 	its 	duty of 	fair
representation 	through 	arbitrary 	conduct 	in 	negotiations 	on
behalf of 	unit 	employees, 	and 	allegations of 	discriminatory 	or
bad 	faith 	conduct 	are 	not 	therefore 	indispensable 	to 	a 	charge
alleging 	violation of 	Government 	Code 	section 	3544.9. 	I 	also
13

agree 	that, in this case, 	the Charging Party's 	facts have 	failed
to 	state 	a prima 	facie 	case, 	largely because of his 	incomplete
and 	selective 	presentation 	of 	relevant 	facts.
I 	also believe, 	however, 	that 	the Board 	should proceed with
caution 	in dismissing 	charges prior 	to 	a hearing. 	Such 	a
dismissal means 	that 	a 	charging 	party will 	have 	no opportunity
to 	develop relevant 	facts 	through 	the 	hearing process. 	And
under 	PERB's procedures 	in 	unfair practice proceedings, 	there
is 	no 	investigation of 	the 	allegations 	by 	this 	agency before
the 	initial 	decision 	is made 	on whether 	to dismiss 	the 	charge
for 	failure 	to 	state 	a prima facie case. 	Thus, 	under 	PERB
procedures, 	the 	charging party 	is heavily, 	if not 	totally,
dependent 	upon 	the 	hearing 	to 	obtain 	relevant 	and 	specific
facts. 	In sum, 	I believe PERB must exercise great caution 	in
dismissing 	this 	type of charge prior 	to 	a hearing, 	where 	a
charging 	party may 	have 	had 	only 	very 	limited 	access 	to
relevant 	facts, 	and 	considering 	that 	such 	a dismissal by 	the
Board 	is 	not 	appealable 	to 	the courts.
A final comment 	is 	to 	suggest 	the 	confusion, 	under 	this
decision, 	faced 	by a disgruntled 	unit member 	in 	deciding what
type of charges 	to 	file 	against 	the 	exclusive 	representative.
In 	South San Francisco Unified 	School District 	(1/15/80) 	PERB
Decision No. 	112 	(in which I dissented), 	the majority
inconsistently 	held 	that 	an 	individual 	employee 	had 	standing 	to
file a 	refusal 	to negotiate 	charge 	against 	the 	employer, 	even
14

though 	only 	the 	exclusive 	representative, 	and 	not 	the 	employee,
had the 	right 	to negotiate with 	the employer; 	the employee, 	the
majority held, 	would 	not 	instead 	be 	required 	to 	file 	a 	charge
against his 	union 	for 	failing 	to 	fairly 	represent 	him, 	even
though 	it 	has 	a 	statutory duty to do 	so. 	(Gov. 	Code
sec. 	3544.9.) 	The majority emphasized 	that 	"any person" may
file a charge. 	(Gov. 	Code 	sec. 	3541.5(a).)
Similarly 	in 	this 	case 	did 	a disgruntled 	unit member—
Romero—attempt 	to press 	a 	refusal 	to 	negotiate 	charge, 	only
this 	time, 	against his 	own 	union. 	The 	hearing officer
dismissed 	this 	original charge 	on 	the 	grounds 	that 	Romero
lacked 	standing; 	Government Code section 3543.6(c), 	the hearing
officer 	ruled, 	was 	the 	statutory vehicle 	for 	an 	employer 	to
file 	refusal 	to 	negotiate 	charges 	against 	an exclusive
representative, 	and 	the 	proper 	statutory vehicle 	for 	Romero was
Government Code 	section 	3544.9, 	setting 	forth 	the 	exclusive
representative's 	duty of 	fair 	representation. 	(Emphasis 	added.)
While 	the majority 	has 	sidestepped 	the 	implication 	of 	its
South 	San 	Francisco decision 	in 	this 	case 	by 	addressing 	only
the amended 	charge, 	under 	the 	South 	San Francisco holding,
Romero 	would 	have 	standing 	to 	file 	a 	refusal 	to 	negotiate
charge 	against his 	own 	union. 	One 	can 	only 	wonder 	why 	the
majority ORDER does 	not 	allow 	Romero 	to 	reinstate 	his 	original
refusal 	to 	negotiate 	charge 	against his 	union, 	since 	this was
15

Romero's 	first 	choice.1 The 	EERA clearly establishes 	the
duty of 	an exclusive 	representative 	to 	negotiate 	with 	an
employer. 	This 	would 	seem to be 	an 	easier 	allegation 	for
stating 	a prima 	facie 	case, 	as 	there 	is 	no need 	for 	the
charging 	party 	to 	creatively 	propound 	a 	standard 	of
arbitrariness 	and 	then 	allege 	facts 	with 	sufficient 	specificity
which, 	if proven, 	would 	show that 	union's duty not 	to be
arbitrary 	has 	been breached.
Raymond J. Gonzales Member
1 would like 	to observe 	that 	footnote 	4 	(p. 	4) 	of 	the
majority 	decision, 	added 	only after 	my dissent 	was 	submitted,
only 	underscores 	the 	"Catch 	22" 	in which 	the 	majority decision
has 	placed 	the 	Charging Party 	in 	this 	case.
Romero 	filed 	the 	duty 	of 	fair 	representation 	charge 	only
because 	the 	hearing 	officer 	dismissed 	his 	refusal 	to 	negotiate
charge 	and 	suggested 	he 	so 	file. 	If 	Romero 	had 	appealed 	this
dismissal, 	he 	would 	have 	lost his opportunity 	to amend. 	Yet,
by 	amending, 	he 	is 	now 	barred 	from appealing 	the 	dismissal,
even 	though 	the 	dismissal 	charge 	could 	presumably 	now 	go 	to
hearing 	under 	the 	South San Francisco decision. 	He 	is 	also
apparently precluded 	from 	returning 	to 	that 	charge 	by 	the
statute 	of 	limitations 	on 	the 	filing 	of 	unfair 	charges. 	Romero
now 	faces 	the 	uphill 	task of 	attempting 	to meet 	the 	difficult
pleading 	requirements 	of 	the 	denial 	of 	fair 	representation
charge 	set 	forth 	in 	this 	decision. 	The probability of 	easier
pleading 	requirements 	of 	the 	more 	traditional 	refusal 	to
bargain 	charge, 	not 	involving 	"arbitrariness," 	are 	beyond his
reach.
16

PUBLIC 	EMPLOYMENT RELATIONS BOARD
OF THE 	STATE OF CALIFORNIA
THOMAS A. 	ROMERO,
Charging Party,
v.
ROCKLIN TEACHERS 	PROFESSIONAL
ASSOCIATION,
Respondent.
)
)
) 	Case No. 	S-CO-28 	(78-79)
NOTICE OF DISMISSAL
WITH LEAVE TO AMEND
)
)
)
)
)
)
)
Notice 	is 	hereby given 	that 	the 	above-captioned unfair
practice charge 	is 	dismissed with leave 	to amend within 	twenty
(20) 	calendar days after service of this Notice.
The 	charge alleges 	that 	the 	respondent has 	violated
Government Code 	section 3543.6(c) 	and 3543.7 by failing 	to
negotiate benefits with 	the 	employer 	during 	the 	second year 	of
a 	two-year contract. 	According to 	the charge, 	the 	contract
contains 	a provision for a reopener on benefits 	during 	each
year of the contract. 	It is 	further alleged that 	the 	final
deadline 	for 	the adoption of the 	employer's budget has 	passed
for 	the 	1978-79 	fiscal year. 	The 	charging party has 	identified
himself as 	a certificated teacher.
Government Code section 	3543.6(c) 	provides 	a remedy
under which 	a public school 	employer may 	file 	an unfair
practice 	charge 	against 	an 	employee 	organization 	if that
organization refuses 	to negotiate in good faith. 	Government
-1-
)
__________ )

Code 	section 3543.6(c) 	does not provide a remedy for a member
of a negotiating unit 	to 	file 	a 	charge against 	the 	exclusive
representative of 	that unit. 	The 	statutory vehicle 	for a
negotiating unit member 	to attack 	the 	conduct 	of 	the 	exclusive
representative 	of 	that negotiating unit 	is 	through Government
Code section 3543.6(b). 	The charge must allege that 	the exclu-
sive representative has violated section 	3543.6 (b) 	by 	failing
to 	fairly represent unit members 	as 	is 	required by Government
Code section 	3544.9. 	See Robert Quarrick et. 	al. 	v. 	Mt. 	Diablo
Education Association 	(8/21/78) 	PERB Decision No. 	68. 	This
charge 	does not 	allege 	a violation of Government Code 	section
3543.6(b). 	A denial of the 	duty of fair representation can be
found only if 	the exclusive representative's 	conduct was 	arbi-
trary, 	discriminatory or in bad faith. 	Sandra Faeth and Judy
McCarty v. 	Redlands 	Teachers Association 	(9/25/78) 	PERB Decision
No. 	72. 	There is no allegation of facts 	in the present charge
to 	indicate 	that 	the respondent acted in a manner 	that was
arbitrary, 	discriminatory or in bad faith.
Finally, 	an alleged failure 	of a party to negotiate
within 	the 	timetable of section 	3543.7 	is 	a matter to be 	dealt
with as 	part 	of 	the evidence 	for proving a violation of section
3543.5(c) 	or 3543.6(c). 	Thus, 	the allegation of a violation of
section 	3543.7 	can be made 	only by an employee 	organization
against an employer or by 	an 	employer against 	an employee
organization.
For the 	foregoing reasons, 	the unfair practice 	charge
is 	dismissed in 	its 	entirety with leave 	to 	amend within 	twenty
(20) calendar days. -2-	-2-

This action is 	taken pursuant 	to PERB Regulation 32630(a).
If the charging party chooses 	to amend, 	the 	amended charge
must be 	filed with the 	Sacramento Regional Office 	of 	the 	PERB
within 	twenty 	(20) 	calendar days. 	(PERB Regulation 	32630(b).)
Such 	amendment must be 	actually received at 	the Sacramento
Regional Office of the 	PERB before the close of business
(5:00 p.m.) 	on October 	24, 	1978 in order to be timely filed.
(PERB 	Regulation 	32135.)
If the 	charging party chooses not 	to 	amend 	the 	charge,
it may obtain review of 	the 	dismissal by 	filing an appeal 	to
the Board itself within 	twenty 	(20) 	calendar days 	after 	service
of this Notice. 	(PERB Regulation 32630(b).) 	Such appeal must
be 	actually received by 	the Executive Assistant 	to 	the 	Board
before the close of business 	(5:00 p.m.) 	on October 	24, 	1978
in order to be 	timely filed. 	(PERB Regulation 	32135.) 	Such
appeal must be 	in writing, 	must be signed by 	the 	charging party
or its 	agent, 	and must 	contain the 	facts 	and arguments 	upon
which 	the 	appeal 	is based. 	(PERB Regulation 	32630(b).) 	The
appeal must be 	accompanied by proof of service upon 	all 	parties.
(PERB Regulations 	32135, 	32142 and 32630(b).)
Dated: 	October 4, 	1978
WILLIAM P. 	SMITH
General 	Counsel
Ronall 2 Pallaugh	By Ronald E. 	Blubaugh
Hearing Officer
-3-
V