Fremont UD Teachers Association (King) (PERB 0125E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JANET 	KING,
Charging 	Party
v.
FREMONT 	UNIFIED 	DISTRICT 	TEACHERS
ASSOCIATION, CTA/NEA,
Respondent
Case No. 	SF-CO-42
PERB Decision No. 	125
April 21, 	1980
Appearances; 	Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& Roger) 	for Charging Party; 	Joseph R. 	Colton, 	for
Fremont Unified District Teachers Association, 	CTA/NEA.
Before Gluck, Chairperson; 	Gonzales and Moore, Members.
DECISION
This 	case 	is 	before 	the 	Public Employment Relations Board
(hereafter Board) 	on exceptions 	taken 	by Janet King 	to 	the
attached 	hearing 	officer's 	proposed 	decision 	dismissing 	her
charge 	against 	the 	Fremont 	Unified District 	Teachers
Association 	(hereafter 	FUDTA) 	alleging 	violations 	of 	Government
Code sections 3543, 	3543.6 (a) 	and 	(b), 	3544.9.1 	Ms. 	King
1 Government Code section 3543 provides:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
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excepts 	to 	the 	hearing officer's 	conclusion 	that 	she 	failed 	to
show 	that 	the FUDTA violated 	the 	EERA by 	filing 	a 	grievance
bearing 	her 	name 	without 	obtaining 	her 	permission, 	by 	failing
to provide 	her 	with 	a 	copy of 	the 	grievance 	in 	a 	timely
their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public 	school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 3544.7, 	no employee 	in that 	unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any employee 	may 	at 	any 	time 	present
grievances 	to his 	employer, 	and 	have such
grievances 	adjusted, 	without 	the
intervention of 	the 	exclusive
representative, 	as 	long as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 	3548.6, 	3548.7, 	and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
Government Code 	section 3543.6 	(a) 	and 	(b) 	provides:
It 	shall be 	unlawful 	for 	an 	employee
organization 	to:
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fashion, 	by 	allegedly denying 	her 	the 	right 	to represent
herself 	or 	to provide 	input on 	the 	grievance, 	and 	by 	allegedly
attempting 	to 	cause 	the District 	to discriminate 	against 	her.
(a) 	Cause or 	attempt 	to cause 	a public
school 	employer 	to 	violate 	Section 	3543.5.
(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.
Section 	3544.9 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.
^Section 	3543.5 	defines 	employer 	unfair 	practices,
The 	hearing 	officer 	found 	that 	the 	Respondent's 	actions 	did
not 	breach 	the 	duty 	imposed 	by 	section 	3544.9 	to 	fairly
represent 	all members of 	the 	unit, 	as 	there 	was 	no showing 	that
FUDTA acted discriminatorily, 	negligently, 	arbitrarily, 	or 	in
bad 	faith. 	Likewise, 	he 	found 	that 	there 	was 	no evidence 	to
show 	that 	FUDTA caused 	or 	attempted 	to 	cause 	the 	employer 	to
violate 	section 	3543.52 	by 	handling 	its 	grievance 	in 	the
manner 	it did. 	For 	this 	reason, 	he 	dismissed 	the
section 	3543.6 (a) 	charge. 	The 	hearing officer 	also found 	that
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Ms. 	King's 	claim that FUDTA's 	actions 	denied her 	right 	under
section 	3543 3 to represent 	herself 	was 	without merit. 	The
facts 	indicate 	that FUDTA 	filed 	the 	grievance 	on 	its 	own 	behalf
to 	enforce 	contract 	terms 	affecting 	all 	unit members. 	The
hearing 	officer 	concluded 	that 	the 	association 	was 	under 	no
obligation 	to permit 	the Charging Party 	to 	intercede 	in 	the
exclusive 	representative's 	decision 	affecting 	the 	enforcement
of 	the Association's 	contractual 	rights.
After 	careful 	consideration of 	the 	entire 	record, 	including
the 	proposed 	decision 	and 	the 	exceptions 	filed, 	the Board
affirms 	the 	hearing officer's 	findings of 	fact, 	including
credibility determinations, 	and conclusions of 	law, 	to the
extent 	modified 	herein.
DISCUSSION
In discussing 	the 	legal 	basis 	for 	a duty of 	fair
representation complaint, 	the 	hearing officer 	found 	that 	a
charge 	alleging 	a 	breach 	of 	the 	duty of 	fair 	representation
•3 Section 3543 provides in relevant part:
Public 	school 	employees 	shall 	also 	have 	the
right 	to refuse 	to 	join or 	participate 	in
the 	activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with the public school employer 	. 	. 	.
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could 	be 	brought either 	under 	section 3544.9, 	supra, 	or 	under
the 	unfair practice 	section 3543.6(b), 	supra.
This 	conclusion 	requires 	clarification. 	Section 	3544.9
imposes 	a 	duty on 	the 	exclusive 	representative 	to 	represent 	all
members 	of 	the 	unit 	fairly. 	Impliedly, 	EERA grants 	employees
the 	right 	to 	receive 	fair 	representation 	from 	their 	exclusive
representative. 	In Romero v. 	Rocklin Teachers Professional
Association, 	PERB Decision No. 	124, 	this Board discussed 	the
parameters 	of 	the 	duty of 	fair 	representation 	and 	concluded
that 	that 	duty 	is 	violated 	when 	an 	employee 	organization 	acts
arbitrarily, 	discriminatorily, 	or 	in bad faith. 	Thus, 	the duty
of 	fair 	representation 	established 	in 	section 	3544.9
encompasses 	a 	concomitant 	right of 	employees 	to 	be 	free 	from
arbitrary, 	discriminatory, 	or 	bad 	faith 	conduct 	from 	their
exclusive 	representative.
The 	provisions 	which 	make 	interference 	with 	guaranteed
rights 	unlawful 	are 	found 	only 	in 	section 	3543.5 	and 	3543.6,
each 	of which provides 	that: 	"It 	shall 	be 	unlawful 	for 	a
public school employer 	[employee organization] 	to 	. 	. 	."
(emphasis 	added). 	Thus, 	the obligation created by
section 	3544.9 	is 	actionable 	through 	section 	3543.6 which
defines 	the 	violation 	and 	is 	the 	source 	of 	protection of
statutory rights. 	As we 	stated 	in Kimmett v. 	SEIU, 	Local 	99
(10/19/79) PERB Decision No. 	106, 	at p. 	13:
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By 	imposing 	a duty of 	fair 	representation 	in
section 	3544.9, 	the Legislature 	clearly gave
employees 	a 	right 	to 	be 	represented 	fairly
by 	their 	exclusive 	representative. 	Conduct
breaching 	that 	duty 	therefore 	harms 	an
employee 	right, 	making violations of
section 	3544.9 	unfair 	practices 	under
section 3543.6(b).
In 	the 	instant 	case, 	under 	the 	facts presented,
section 	3543.6(b) 	is 	the 	appropriate 	section for 	filing 	an
unfair 	practice 	charge 	alleging 	a 	breach 	of 	the 	exclusive
representative's 	obligation 	under 	3544.9. 	The 	hearing 	officer
considered 	the 	elements 	of 	the 	breach 	of 	the 	duty of 	fair
representation 	which 	the 	charging 	party 	alleged 	and 	we 	affirm
his 	decision 	that 	the Association 	did 	not 	violate 	that 	duty.
In 	addition 	to 	her 	claim 	that FUDTA's 	filing 	and processing
its 	grievance 	breached 	the Association's 	duty of 	fair
representation, 	the Charging 	Party 	further 	alleges 	that FUDTA's
actions 	with 	respect 	to 	the 	grievance 	violated 	3543.6(b) 	by
interfering 	with 	her 	right 	to 	represent 	herself 	and 	with 	her
right 	to 	refrain 	from participating 	in 	the 	activities 	of 	the
organization. 	Both of 	these 	rights 	are 	guaranteed 	by 	3543,
supra. 	As 	to the 	right of 	self-representation, 	we affirm the 	'
hearing 	officer 	without 	further 	discussion. 	However, 	he 	did
not 	specifically 	address 	the 	right 	to 	refrain 	from
participation.
Allowing, 	arguendo, 	that FUDTA's 	actions prevented Ms. 	King
from 	refraining 	from participating 	in 	the 	activities 	of 	the
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employee 	organization, 	we would 	be 	compelled 	to 	conclude 	that
there 	was 	still 	no 	violation of EERA. 	By 	filing 	the 	grievance
in 	this 	case, 	the Association was 	enforcing 	an 	agreement
negotiated 	for 	the 	benefit 	of 	all 	members 	of 	the 	unit 	who went
out 	on 	strike. 	Certainly, 	all members of 	the 	unit 	have 	a vital
stake 	in 	the 	enforcement 	of 	agreements 	negotiated 	by 	their
exclusive 	representative. 	In 	the 	face 	of 	such 	compelling
interests 	of 	the majority of 	the 	employees 	the 	competing 	right
of 	an 	individual 	employee must 	be 	subordinated.4 	As 	the
Supreme Court 	stated 	in NLRB v. 	Allis-Chalmers Mfg. 	Co., 	(1967)
388 U.S. 	175 	[65 LRRM 2449], 	at p. 	180:
National 	labor 	policy 	has 	been 	built 	on 	the
premise 	that 	by 	pooling 	their 	economic
strength 	and 	acting 	through 	a 	labor
organization 	freely 	chosen 	by 	the 	majority,
the 	employees of 	an 	appropriate 	unit 	have
the 	most 	effective 	means 	of 	bargaining 	for
improvements in wages, 	hours, 	and working
conditions. 	The 	policy 	therefore
extinguishes 	the 	individual 	employee's 	power
to 	order 	his 	own 	relations 	with 	his 	employer
and 	creates 	a power 	vested 	in 	the 	chosen
representative 	to 	act 	in 	the 	interests 	of
all employees.
4See J. 	I. Case v. NLRB, 	(1944) 	321 U.S. 	332, 	[14 LRRM
501] ; 	NLRB v. Western Addition Community Organization
(Emporium-Capwell) 	(1975) 	420 U.S. 	50 	[88 LRRM 2660].
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ORDER	ORDER
In accordance with the hearing officer's decision and with	In 	accordance 	with 	the 	hearing 	officer ' s 	decision 	and 	with
the	the modification discussed herein, the Board hereby ORDERS the	modification 	discussed 	herein, 	the 	Board 	hereby ORDERS 	the
charge filed against the Fremont Unified Teacher's Association	charge 	filed 	against 	the 	Fremont 	Unified 	Teacher's 	Association
be	be dismissed.	dismissed.
By : /Harry /G2kick, CMu'r per son	Bv: /Harry /G2kick, 	CM..Ju'r re r ocn 	Barbara D. Moore, Member	Barbara
R
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,
......- Raympnd	aymond J. Goj*zales , Member	J. 	Goj*zale~ : 	Member7
8
D. 	Moore, 	Member-

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
JANET 	KING,
Charging 	Party,
vs.
FREMONT UNIFIED 	DISTRICT 	TEACHERS
ASSOCIATION, CTA/NEA,
Respondent.
Unfair 	Practice
Case No. 	SF-CO-42
PROPOSED 	DECISION
(8-4-78)
Appearances; 	Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	and Roger) 	for 	Charging Party; 	Joseph R. 	Colton 	for
Fremont Unified 	District 	Teachers 	Association, 	CTA/NEA.
Before 	Jeffrey 	Sloan, 	Hearing 	Officer.
STATEMENT OF 	THE 	CASE
On January 9, 	1978, 	Janet King 	filed 	an 	unfair
practice 	charge 	against 	the 	Fremont 	Unified 	District 	Teachers
Association 	(hereafter 	FUDTA or 	the Association).1 As
amended 	at 	the 	formal 	hearing 	in 	this 	case, 	the charge 	alleged
violations of sections 3543, 	3543.6(a), 	3543.6(b), and 3544.9
1-The 	representation 	file 	entitled 	Fremont Unified
School District, 	SF-R-53A, 	located 	in 	the San Francisco
regional 	office 	of 	the 	Public 	Employment 	Relations 	Board, 	shows
that 	the Association 	is 	the 	exclusive 	representative of
certificated 	employees 	within 	the 	Fremont 	Unified 	School
District, 	and 	is 	an 	"employee organization" 	under 	the meaning
of Government 	Code 	section 	3540.l(d). 	The Association 	is 	an
affiliate 	of 	the 	California 	Teachers 	Association/NEA.
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of 	the 	Educational 	Employment 	Relations Act. 2 The 	charge
alleged that on November 	28, 	1977, 	the Association, 	without 	the
2 T
Educational 	Employment 	Relations 	Act 	(hereafter
the Act 	or 	the 	EERA) 	is 	codified 	at Government Code 	section
3540 	et 	seq. 	All 	statutory 	references 	are 	to 	the Government
Code 	unless 	otherwise 	indicated.
he
Section 	3543 	states:
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public 	school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 	3544.7, 	no employee 	in that unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any 	employee 	may 	at 	any 	time 	present
grievances 	to his 	employer, 	and 	have 	such
grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 	3548.6, 	3548.7, and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution 	of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy 	of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
N	
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permission of Ms. 	King, 	filed 	a grievance 	on her 	behalf 	against
the 	Fremont 	Unified 	School 	District 	(hereafter 	District) 	for
violation of 	a 	"no 	reprisals" 	provision 	in 	the 	collective
bargaining 	agreement 	executed 	between 	FUDTA 	and 	the 	District.
The 	charge 	also 	alleged 	that 	the 	Association 	announced 	the
filing 	of 	the 	grievance 	at 	a public meeting, 	that 	the
Association 	declined 	to provide 	a 	copy of 	the 	grievance 	to
Ms. 	King 	or 	the 	six 	other 	individuals 	also 	affected 	by 	the 
w	3
(cont. 	of 	footnote 2)
Section 3543.6(a) 	states:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
(a) 	Cause or 	attempt 	to cause 	a public
school 	employer 	to violate 	Section 	3543.5.
Section 3543.6(b) 	states:
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.
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.
3 Fremont Unified 	School 	District 	is 	located 	in
Alameda County. 	It 	has 	45 	school 	sites 	and 	an 	average daily
attendance 	of 	29,621. 	California State Department 	of
Education, 	California Public School Directory 	(1978) 	pp. 	55-57
w
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3

disputed 	actions, 	and that FUDTA 	"[refused] 	to permit 	the
charging 	party 	and 	the 	six 	other 	persons 	to 	represent
themselves 	or 	in 	any way make 	decisions 	about 	the grievance
which 	[affected] 	their 	future." 	The 	charge 	alleged 	further
that 	the 	District 	offered 	to go 	to 	binding 	arbitration
concerning 	the 	grievance. 	The 	charge 	concluded 	that 	the 	action
of 	the Association was 	a 	"violation of 	the 	teachers 1 rights 	not
to participate 	in 	the 	activities 	of 	the 	FUDTA, 	...a violation
of 	their 	right 	to fair 	representation, 	...an effort 	to cause
the 	District 	to 	discriminate 	against 	the 	individuals, 	and 	...an
interference with 	the 	rights 	of 	teachers 	of 	the Fremont Unified
School District."
The Association 	answered 	the 	charge 	on 	January 	25,
1978, 	admitting 	that 	the 	disputed grievance 	was 	filed 	and 	also
admitting 	that 	the 	grievance 	was 	"appealed 	to 	arbitration."
The 	Association 	denied 	that 	it 	"declined" 	to 	supply 	a 	copy 	of
the 	grievance 	to 	the 	charging 	party, 	and 	also 	denied 	that 	its
filing 	of 	the 	grievance 	in question 	constituted 	an 	unfair
practice.
No 	settlement 	was 	reached 	during 	an 	informal
conference 	held 	between 	the parties 	and 	a 	hearing 	officer 	from
the 	Public Employment Relations Board 	(hereafter 	PERB), 	and 	a
formal 	hearing was 	held 	on March 	3, 	1978, 	at District offices
in Fremont.
FINDINGS 	OF 	FACT
Between October 	13 	and November 	6, 	1977, 	certificated
employees 	in 	the 	Fremont 	Unified 	School 	District 	were 	engaged
4

in 	a 	strike 	and 	other 	forms 	of 	concerted 	activities 	directed
against 	the 	District. 	Among 	those 	activities 	was 	a
seven-person 	sit-in on District 	property on November 	3. 	In 	the
midst of 	that 	sit-in, 	District 	Superintendent Wayne Ferguson
performed 	a 	citizen's 	arrest 	on 	the 	seven 	protesters 	(hereafter
the Seven or 	the 	defendants). 	One of 	those 	arrested was
charging 	party Janet King, 	who 	is 	a 	teacher 	in 	the 	District 	and
is 	the 	president 	of 	the 	Fremont Federation 	of Teachers. 4
On November 	8, 	1977, 	the Association 	and 	the District
signed 	a 	collective 	bargaining 	agreement. 	The 	agreement
contained 	a 	"no 	reprisals" 	clause 	that 	stated 	in 	relevant part:
The 	District 	covenants 	not 	to 	sue 	in any
court of law, 	before EERB, 	or before any
judicial body, 	any District 	employee,
student, 	the Association, Association
employee 	or 	Association officer(s) 	for 	any
conduct 	arising 	from 	concerted 	actions 	which
preceded 	agreement 	on 	this 	contract. 	The
District 	further 	covenants 	not 	to 	take 	any
punitive 	action 	or 	reprisal 	against 	any
District employee, 	student, 	the Association,
Association 	employee 	or 	Association
officer(s) 	for 	any 	conduct 	arising 	from 	the
concerted 	action 	which 	preceded 	agreement 	on
this contract. 	... 	(Article 	IV, 	section 1.)
On that 	same date, 	Barbara Mahon, 	the president of 	the
Association, 	had 	a conversation with 	the 	superintendent. 	She
asked 	him 	whether 	he 	intended 	to 	pursue 	the 	criminal 	charges
against 	the 	Seven. 	He 	replied 	that 	the 	Seven 	had 	"asked 	to be
4 The 	other 	individuals 	arrested 	during 	the 	sit-in
were Steve Brosamer, 	Jerry Caveglia, 	Jean Gerrans,
Mary Jane Holmes, 	John Kriege, 	and 	Sharon Maldonado. 	Five of
these 	individuals 	were members 	of 	the American Federation of
Teachers. 	One of them, Ms. 	Gerrans, was not. 	Ms. 	Gerrans was
a member 	of 	the Association. 	The 	record 	does 	not 	indicate
whether 	any of 	the 	AFT members 	also were members 	of 	the
Association.
5

arrested," 	that 	he would 	not 	drop the charges, 	and 	that 	he
"could 	not" 	because 	the 	prosecutor 	would 	continue 	them without
regard 	to Mr. 	Ferguson's personal wishes.
On November 	15, 	Mr. 	Ferguson 	signed 	a formal police
complaint 	against 	the protesters. 	The 	complaint 	charged, 	among
other 	allegations, 	that on November 	3, 	1977, 	the seven
protesters 	named 	above 	illegally 	disturbed 	the 	public 	peace,
committed 	an 	unlawful 	act, 	and 	failed 	to 	disperse 	upon 	the
command 	of 	a 	public 	officer.
On November 	16, 	the 	protesters 	were 	arraigned 	on 	the
above 	charges 	in 	the Municipal 	Court 	of 	Alameda County,
Fremont-Newark-Union 	City 	Judicial 	District. 	They were
represented 	by William Sokol 	of 	the 	law 	firm of Van Bourg,
Allen, 	Weinberg and Roger.
Ms. 	Mahon 	attended 	the 	court 	session 	where 	the
protesters were 	arraigned. 	After 	the 	arraignment, 	Ms. 	Mahon
attempted 	to 	talk 	to Mr. 	Sokol 	concerning 	the 	charges 	lodged
against 	them. 	Mr. 	Sokol 	told 	her 	that 	he 	was 	not 	free 	to 	talk
to 	anyone 	concerning 	the 	case, 	and 	that 	she 	"should 	get 	her
information elsewhere." 	Ms. 	Mahon also approached Ms. 	King
twice 	on 	that 	day 	in 	an 	attempt 	to 	engage 	in a discussion
concerning 	the 	ramifications of 	the 	arrests, 	but Ms. 	King was
occupied 	with other 	matters 	and 	told Ms. 	Mahon 	that 	they 	"would
have 	to 	talk 	later." 	Ms. 	King made 	no subsequent 	attempt 	to
call Ms. 	Mahon 	after 	these approaches. 	Ms. 	Mahon also
approached 	defendant 	Jerry Caveglia, 	and 	asked 	him whether 	the
seven 	defendants 	intended 	to 	file 	grievances 	against 	the
66

District. 	Mr. 	Caveglia responded 	that 	he 	did 	not 	know, 	and
that 	he 	would 	talk 	to his 	lawyer 	about 	it.
That 	same day, 	Jerry Caveglia asked Mr. 	Sokol 	during
lunch whether 	they were going 	to 	file 	a grievance. 	According
to Mr. 	Caveglia, 	Mr. 	Sokol 	responded 	that 	they should do
nothing 	at 	that 	time 	because 	they were 	in 	the midst of 	a 	legal
proceeding.
Ms. 	Mahon 	had 	lunch 	at 	the 	same restaurant 	as 	did 	the
defendants. 	She 	again approached Mr. 	Caveglia 	and 	asked 	him
whether 	the 	Seven 	were 	considering 	filing 	a 	grievance 	against
the District. 	Mr. 	Caveglia 	told 	her 	that 	the 	defendants 	did
not 	want 	anything 	done 	at 	that 	time 	"until 	the 	legal matter 	was
settled." 5 	Ms. 	Mahon 	said 	that 	the 	parties 	should 	try 	to
talk more 	about 	that 	issue, 	and Mr. 	Caveglia said 	that 	he would
"try to get 	[Ms. 	King] 	to call 	her."
Soon after 	the 	date of 	the 	arraignment, 	Ms. 	Mahon
reported 	to 	the 	Association's 	grievance 	committee 	that 	there
was 	a 	lack of 	interest on 	the part of 	the 	seven defendants, 	and
that 	the 	defendants 	had 	not 	seemed 	to 	want 	to 	discuss 	it.
5 M S . 	King testified 	that Mr. 	Caveglia had a
conversation with 	her 	immediately 	after 	he 	spoke 	with Ms.
Mahon. 	She 	further 	testified 	that 	he 	repeated 	to 	her 	what 	he
purportedly 	had 	told Ms. 	Mahon—that 	the 	defendants 	"didn't
want 	to 	do 	any, 	take 	any 	kind 	of 	action 	like 	that, 	including 	a
grievance, 	and 	that 	if 	and when that became maybe 	a 	feasible
action, 	that 	[they] 	would probably want 	to do 	it on 	[their]
own." 	The 	double-hearsay 	character 	of 	this 	testimony makes 	it
particularly untrustworthy. 	In addition, 	Mr. 	Caveglia did 	not
testify 	to have made 	the 	entirety of 	this 	statement 	to Ms.
Mahon. 	Ms. 	King's 	testimony 	is 	not 	credited 	to 	the 	extent 	that
it 	asserted 	that Mr. 	Caveglia 	said 	that 	the 	seven 	defendants
probably 	would 	want 	to 	file 	the 	grievance 	on 	their 	own 	behalf.
7
5

Members 	of 	the 	grievance 	committee 	later 	elicited 	the 	opinion
of 	CTA's 	general 	counsel 	as 	to whether 	they 	had 	a meritorious
grievance. 	The 	general 	counsel 	stated 	that 	they did. 	The
grievance 	committee 	recommended 	to 	the 	FUDTA executive
committee 	that 	the 	Association 	file 	a grievance 	against 	the
District.
Before 	the 	grievance 	committee 	filed 	the 	grievance,
George Curry, 	the grievance 	chairperson of 	the Association,
attempted 	to 	call 	some of 	the 	seven 	defendants 	to 	determine
whether 	they 	intended 	to 	file 	their 	own 	grievance.66 He
reached Mr. 	Caveglia. 	Mr. 	Curry asked 	him whether 	the 	Seven
intended 	to 	file 	a grievance. 	He 	did 	not 	state 	that 	the
grievance 	committee 	had plans 	to 	file 	a grievance 	on 	its 	own.
Mr. 	Caveglia 	told Mr. 	Curry 	that 	he 	did 	not 	know what 	the 	plans
of 	the 	Seven were, 	and 	that 	they would 	discuss 	the matter 	on
the 	following 	Monday.
The 	Association 	filed 	a grievance 	on Monday,
November 	28, 	1977.7 While 	there 	is 	some evidence 	that 	the
6Mr . 	Curry 	testified 	that 	he 	attempted 	to 	contact
all 	of 	the 	seven 	defendants. 	He 	stated 	that 	he 	reached 	two
individuals, 	and 	that 	he 	could only 	recall 	the 	identity of 	one
of 	these 	individuals, Mr. 	Caveglia. 	It 	is undisputed that Mr.
Curry called Mr. 	Caveglia. 	The 	hearing 	officer 	finds 	it
unnecessary 	to 	determine whether Mr. 	Curry 	in 	fact made 	the
other 	calls 	he 	testified 	to 	have made.
7 The 	contract 	clause 	stating 	the 	time 	limit 	within
which 	a 	grievance 	could 	be 	filed 	stated:
To be 	recognized 	at 	any procedural 	level 	a
grievance 	shall 	have 	been presented 	at 	the
appropriate 	level 	within 	30 	working 	days 	of
the 	act 	or 	omission giving 	rise 	to 	the
grievance. 	(Article XXI, 	section 	4.)
8

grievance 	was 	filed 	on 	behalf 	of 	the 	Seven 	and 	not 	as 	a
grievance of 	the Association, 	the 	weight of 	the 	evidence 	shows
that 	the 	grievance 	was 	filed 	on 	the 	basis 	of 	article 	XXI 	of 	the
collective 	bargaining 	agreement. 	Article 	XXI 	states 	in
pertinent 	part:
Under 	this 	provision 	the 	last 	date 	for 	filing 	a 	grievance 	based
on 	the 	superintendent's 	actions was 	either 	December 	20, 	1977,
or 	January 12, 	1978, 	depending 	upon whether 	the grievable 	act
was 	the 	superintendent's 	act 	of 	performing 	a 	citizen's 	arrest
or 	his 	signing 	of 	a 	formal complaint.
2. 	A grievance 	shall 	be 	a written 	complaint
by 	a member 	of 	the 	unit 	involving 	a
violation, misapplication or
misinterpretation of 	the Agreement.
3. 	"Grievant" means 	individual members 	of
the 	unit 	or 	the Association when processing
a grievance pursuant 	to section 	4 	of 	this
Article.
4. 	The Association may 	initiate 	a grievance
which 	affects 	a 	substantial 	number 	of
members of 	the unit. 	(Emphasis 	added.) [9]
(cont. 	of 	footnote 7)
8 It 	is 	noted that Ms. 	King 	testified 	that 	the
grievance 	had 	been 	filed 	as 	an Association grievance 	and 	had
not 	been 	filed 	on 	her 	behalf.
8 It 	is 	arguable 	that 	the 	grievance 	did not 	affect 	a
"substantial 	number 	of members of 	the 	unit." 	However, 	the
District 	did 	not 	reject 	the 	grievance 	on 	the 	ground 	that 	the
grievance 	properly 	could 	not 	be 	filed 	under 	this 	section.
Since 	the 	hearing 	officer 	has 	concluded 	that 	the 	Association
filed 	the grievance 	in 	its 	own behalf, 	it 	is 	irrelevant whether
the 	grievance 	in 	fact 	affected 	a 	"substantial 	number 	of members
of 	the unit."
9
[9]
9

The 	grievance 	was 	written 	on 	the 	letterhead 	of FUDTA.
It 	stated 	in pertinent 	part:
November 28, 	1977
MEMORANDUM 	OF 	GRIEVANCE
I.
We 	hereby make 	application 	for 	remedy 	of
Level 	II 	of 	the 	Fremont Unified 	School
District Grievance 	Procedure. 	This
grievance 	is 	being 	filed 	with Dr. 	Wayne 	S.
Ferguson, 	Superintendent, 	Fremont Unified
School District, 	as 	respondent 	consistent
with 	the 	contract 	between 	the 	FUSD Board 	of
Education 	and 	FUDTA/CTA/NEA.
II.
Specifics 	Giving 	Cause For 	This 	Complaint;
On November 	3, 	1977, 	Jerry L. 	Caveglia,
Steve J. 	Brosamer, 	Retta J. 	Gerrans, 	Sharon
E. Maldonado, Janet K. 	King, Mary Jane
Holmes 	and John F. 	Kriege, 	the 	injured
parties, 	were 	arrested 	by City of Fremont
Police Officers 	at 	the 	request 	of Dr. 	Wayne
S. Ferguson, Superintendent FUSD, for
alleged 	participation 	in 	concerted 	actions
which 	took 	place 	at FUSD offices 	on 	the
above date.
On November 	15, 	said 	superintendent 	signed 	a
formal 	police 	complaint 	against 	the 	injured
parties 	for 	the 	alleged 	actions.
III.
Specific 	Violations 	Being 	Grieved:
The District, 	through 	the 	actions of
Superintendent Dr. Wayne S. 	Ferguson, 	has
violated, 	misapplied, 	and/or misinterpreted
the 	contract between 	the 	parties 	which
guarantees 	[that 	no 	reprisals 	will 	be 	taken
against 	any 	District 	employee 	for 	conduct
arising 	from 	concerted 	actions 	which
preceded 	agreement on 	this 	contract].
10

IV.
Remedy Being 	Sought;
That 	[Superintendent Ferguson] 	shall
permanently 	withdraw 	and 	in 	all 	other 	ways
cease 	and 	desist 	pursuit 	of 	all 	criminal
charges 	which 	have 	been 	personally 	brought
by 	said Superintendent, 	and 	or 	under 	his
authority 	indication 	[sic] 	to pursue,
against 	those 	injured 	parties 	named 	in 	this
grievance.
/ s / Barbara Mahon,
FUDTA 	President
On November 	28, 	a 	teacher 	in 	the District 	told
Ms. 	King 	that 	the 	Association 	had 	announced 	on 	that 	day 	that 	it
had 	filed 	a 	grievance 	on 	behalf 	of 	the 	seven 	defendants.
On the 	following day, Ms. 	King 	spoke to Ms. 	Mahon 	and
Mr. 	Marcello, 	who 	is 	the Executive Director 	of FUDTA. 	She 	told
Mr. 	Marcello that 	the 	seven 	defendants 	were 	"upset" 	by 	the
filing 	of 	the grievance 	and 	by 	the 	fact 	that 	it 	had 	been 	done
without 	their 	knowledge 	or 	consent, 	that 	they had 	requested
that 	nothing 	be 	done of 	that 	nature, 	and 	that 	she 	wanted 	to 	see
what 	could 	be 	done 	to 	"amend 	the 	situation." 	Mr. 	Marcello
responded, 	in effect, 	that 	it was the Association's 	right 	to
file 	a grievance, 	that 	the 	grievance 	did not 	affect 	them, 	and
that 	the Association 	had made 	several 	unsuccessful 	attempts 	to
contact 	the 	defendants 	before 	filing 	the 	grievance.
During 	her 	later 	conversation with Ms. 	Mahon, 	Ms. 	King
attempted 	to 	explain 	to Ms. 	Mahon 	that 	the 	pendency of 	the
grievance 	could 	interfere with 	the 	defendants' 	court 	case. 	She
did 	not 	request 	the 	Association 	to 	drop 	the 	grievance. 	Ms.
Mahon said, 	in essence, 	that Ms. 	King 	should put 	her 	concerns
11

in writing 	to the grievance 	committee, 	that 	communications 	from
any of 	the 	defendants 	to 	the 	grievance 	committee 	would 	be
considered 	by 	it, 	and 	that 	the 	committee 	and 	the 	executive
board 	would 	determine 	on 	the 	basis 	of 	those 	writings 	whether 	to
proceed 	with 	the 	grievance.10	10
Ms. 	King 	never 	sent 	a statement 	to 	the 	grievance
committee 	outlining 	the 	reasons 	as 	to why 	the pendency of 	the
grievance was 	detrimental 	to 	her. 	Ms. 	King 	testified 	that 	she
did 	not 	attempt 	to 	"prod" 	the Association 	into 	dropping 	the
grievance 	because 	it 	had 	failed 	to 	send 	her 	a 	copy 	of 	the
grievance 	upon 	her 	initial 	request. 	There 	is 	no 	evidence 	that
10Ms . 	King 	testified 	that Ms. 	Mahon 	had 	told 	her
that 	the 	defendants 	"would 	not 	be 	allowed 	to 	have 	any 	influence
on 	the 	decision-making process 	of 	the 	organization 	as 	to 	how 	to
proceed 	or 	whether 	to proceed 	on 	the 	grievance." 	She 	clarified
this 	testimony by 	stating 	that Ms. 	Mahon 	effectively 	said 	that
the Association 	was 	going 	to proceed 	with 	the 	grievance 	without
regard 	to 	any 	request 	that Ms. 	King might make. 	Based 	on 	the
demeanors of Ms. 	King 	and Ms. 	Mahon, 	and 	in view of 	the 	record
as 	a whole, 	the 	hearing 	officer 	does 	not 	credit 	the 	testimony
that Ms. 	Mahon 	said 	that 	the Association would 	not 	allow the
defendants 	any 	influence 	as 	to 	"whether 	to proceed" 	with 	the
grievance. 	Ms. 	Mahon 	testified 	credibly 	that 	the grievance
committee 	and 	the 	executive 	board 	would 	give 	consideration 	to
the written concerns of 	the 	defendants. 	In addition, 	to the
extent 	that 	this 	testimony 	asserts 	that Ms. 	Mahon 	said 	that 	the
defendants 	would 	not 	be 	allowed 	to 	influence 	the 	decisions 	as
to how 	to pursue 	the 	grievance, 	the 	hearing officer 	does 	not
credit 	such 	testimony. 	First, 	this 	testimony 	is 	hearsay 	to the
extent 	that 	it 	seeks 	to 	assert 	that 	the Association 	in fact
would 	not permit 	the 	defendants 	to aid 	in 	determining 	"how" 	to
proceed 	with 	the 	grievance. 	This 	testimony has 	not 	been
corroborated 	sufficiently 	to 	deem 	it 	to 	be 	either 	reliable 	or
admissible. 	The 	hearing 	officer 	concludes 	from 	the 	record,
including Ms. 	King's 	demeanor, 	that 	she was 	confused 	by the
information 	that Ms. 	Mahon was 	attempting 	to give 	her. 	It 	is
concluded 	that Ms. 	Mahon 	in 	fact 	did 	not make 	this particular
statement.
12

any of 	the 	other 	six 	defendants 	requested 	that 	the Association
withdraw 	the 	grievance. 	The 	defendants 1 attorney never
conveyed 	his 	concerns 	to 	the Association.
On December 	1, 	1977, Ms. 	King wrote a letter 	to FUDTA
that 	stated:
Ms. Mahon:
Please 	send me 	a 	copy 	of 	the 	grievance 	filed
by FUDTA on November 	28, 	1977, 	against FUSD
superintendent 	Wayne 	Ferguson 	for 	violation
of 	the 	certificated 	employee 	contract
no-reprisal clause. 	...
This 	letter 	was 	received 	by FUDTA during 	the 	first
week of 	December. 	Mr. 	Marcello asked Mr. 	Curry 	to 	send 	a copy
of 	the grievance 	to Ms. 	King. 	Unbeknownst 	to the officers 	of
the Association, 	Mr. 	Curry neglected 	to do 	so 	at 	that 	time.11	11
After 	the grievance 	was 	filed, 	there 	was 	some movement
from 	within 	the 	Fremont 	community 	toward 	pressuring
Superintendent Ferguson 	to 	drop 	the 	criminal 	charges. 	On
December 	7, 	1977, 	a 	local pastor made 	a plea 	at 	a meeting of
the school board, 	calling 	on 	the 	trustees 	to ask 	the
superintendent 	to 	"drop 	the 	case 	against 	the 	seven 	teachers."
Witnesses 	for 	the 	charging 	party 	testified 	that 	it 	was 	possible
that 	the 	superintendent 	refused 	to 	drop 	the 	criminal 	charges
11Mr 	. 	Curry 	testified 	that 	he 	sent 	a copy 	of 	the
grievance 	to Ms. 	King 	during 	the 	first 	or 	second week of
December. 	Mr. 	Curry's 	testimony showed 	that 	he 	underwent
periods 	of 	confusion 	with 	respect 	to 	administering 	other
details 	of 	the Association's 	business. 	The 	hearing 	officer
therefore 	does 	not 	credit 	this 	particular 	testimony. 	It 	is
found 	that Mr. 	Curry did 	not 	send 	a copy 	of 	the 	grievance 	until
January, 1978.
13

because 	the 	pendency of 	the 	grievance 	rendered 	it 	impossible 	to
obtain 	a 	full 	"civil 	release." 	At 	the 	school board meeting 	the
superintendent made 	a 	statement 	to 	the 	effect 	that 	the 	trustees
did 	not 	intend 	to 	discuss 	the 	criminal 	case 	until 	the 	grievance
was 	settled. 	This 	statement 	has minimal probative 	value
insofar 	as 	it 	is 	intended 	by 	the 	charging 	party 	to 	show 	that
the District 	did 	not 	drop 	the 	criminal 	charge 	due 	to 	the
pendency 	of 	the 	grievance. 	No one 	knew what 	effect 	the
grievance 	would 	have 	on 	the 	defendants 1 ability 	to 	negotiate 	a
settlement, 	including 	the 	deputy district 	attorney who
negotiated with 	the 	defendants' 	lawyer. 	Some 	evidence
indicates 	that 	the 	charges 	were 	not 	dropped 	due 	to 	the
political 	climate 	in Fremont. 	For 	example, 	the superintendent
stated 	before 	the 	grievance 	was 	filed 	that 	he 	would 	not 	drop
the 	charges 	because 	the 	Seven 	had 	"asked 	to be 	arrested."
There 	is 	no 	evidence 	indicating 	that 	the
superintendent 	or 	the 	trustees 	would 	have 	dropped 	the 	charges
if 	the 	grievance 	had 	been 	dropped. 	The 	hearing 	officer
concludes 	that 	the 	charging 	party 	has 	not 	shown 	that 	the
superintendent's 	failure 	to 	drop 	the 	charges was 	due 	to 	the
pendency 	of 	the 	grievance. 12
12At 	no 	time 	did 	the 	charging 	party 	request 	FUDTA 	to
withdraw 	the grievance, 	nor 	did 	the 	charge 	filed 	in 	the 	instant
case 	ever 	so 	request.
14

The 	Association 	published 	an 	edition 	of 	its
newsletter, 	"The Signal," 	on December 	12. 	The newsletter
contained 	an 	article 	that 	stated:
FUDTA 	has 	filed 	two grievances 	on 	the 	basis
of 	the 	amnesty clause 	in our 	contract. 	One
is 	in behalf 	of 	the 	seven 	teachers 	arrested
at 	the District Office. 	We 	believe 	that
Ferguson's 	citizens 	arrest 	complaint 	should
be withdrawn 	as 	part 	of 	the 	no 	reprisal
section of 	the 	amnesty 	clause. 	(Emphasis
added.)
Ms. 	Mahon 	credibly 	testified 	that 	the 	statement 	that
the grievance 	was 	submitted 	"in behalf 	of" 	the 	Seven was 	an
error 	on 	the 	part 	of 	the 	writer 	of 	the 	article.
Shortly 	after 	the 	grievance 	was 	filed, 	the District
requested 	the 	Association 	to 	waive 	the 	steps 	of 	the 	grievance
procedure 	and 	to go directly 	to 	arbitration. 	The Association
suspended 	processing 	of 	the 	grievance 	for 	a period 	of 	time,
then continued with 	it. 	On January 18, 	1977, 	after 	it 	received
service 	of 	the 	unfair 	practice 	charge, 	the Association
requested 	the District 	to 	hold 	the grievance 	in 	abeyance. 	The
Association made 	this 	request 	because 	it 	was 	unclear 	as 	to
"where 	[it] 	stood" 	with 	respect 	to 	the grievance given 	that 	an
unfair 	practice 	charge 	had 	been 	filed 	because 	of 	it. 	In 	late
February, 	the matter 	was 	set 	for 	arbitration.
The 	Association 	has 	filed 	other 	grievances 	related 	to
the 	no-reprisals 	clause. 	As 	of 	the 	date of 	the 	hearing 	in 	the
instant 	case, 	none 	of 	those 	grievances 	had 	progressed 	as 	far 	as
arbitration. 	According 	to 	the 	credible 	testimony of 	an
Association witness, 	the 	specific 	issues 	addressed 	by 	those
15

grievances 	are 	distinct 	and 	"less 	clear" 	than 	those of 	the
grievance 	involved 	in 	this 	case.
The 	unfair 	practice 	charge 	was 	filed 	on
January 9, 	1978. 	The Association 	learned 	upon 	receipt of 	the
charge 	that 	Ms. 	King 	claimed 	she 	had 	not 	received 	a copy 	of 	the
grievance. 	FUDTA then sent 	a 	copy of 	the 	charge 	to 	her.
Six 	of 	the 	seven 	defendants 	went 	to 	trial 	on
February 1, 	1978. 	After 	the prosecution's 	case-in-chief, 	the
judge 	entered 	a 	judgment 	of 	acquittal. 	The 	seventh defendant,
Mr. 	Kriege, 	pled 	"no contest" 	to a lesser 	and 	included
offense.
ISSUES
1. 	Did 	the Association's 	filing 	and processing 	of 	the
grievance 	breach 	its 	duty of 	fair 	representation 	toward Ms.
King, 	thereby 	violating 	section 	3544.9?
2. 	Did 	the Association's 	filing 	of 	the 	grievance
violate Ms. 	King's 	right 	to 	represent 	herself 	or 	her 	right 	not
to 	participate 	in 	the 	activities 	of 	the Association, 	thereby
violating 	section 	3543?
3. 	Did 	the 	Association's 	filing 	and 	processing 	the
grievance 	cause 	or 	attempt 	to 	cause 	the District 	to violate
section 	3543.5, 	thereby 	violating 	section 	3543.6 (a)?
4. 	Did 	the Association's 	filing 	and 	processing 	the
grievance 	interfere 	with Ms. 	King's 	exercise of 	rights
guaranteed 	by 	the 	EERA, 	thereby 	violating 	section 	3543.6(b)?
16

DISCUSSION AND CONCLUSIONS 	OF 	LAW
1. 	Duty of 	Fair 	Representation
The 	exclusive 	representative 	for 	the 	purposes 	of
meeting 	and 	negotiating 	is 	required 	to 	represent 	fairly 	"each
and 	every 	employee 	in 	the 	appropriate 	unit." 	(Section
3544.9.) 	PERB has 	not 	yet 	set 	forth 	the 	parameters 	of 	the 	duty
of 	fair 	representation, 	nor 	has 	it 	determined whether 	an 	unfair
practice 	charge 	is 	the 	sole 	appropriate 	vehicle 	for 	processing
an 	alleged 	violation of 	the 	duty of 	fair 	representation. 	The
latter 	issue 	must 	be 	noted 	before 	proceeding 	to 	the merits 	of
the 	charge 	in 	this 	case.
At 	least 	two 	theories 	are 	equally 	arguable 	concerning
whether 	the 	unfair 	practice 	vehicle 	is 	the 	appropriate method
for 	PERB 	to 	evaluate 	a charged 	violation 	of 	the 	duty of 	fair
representation. 	First, 	violation of 	the 	duty of 	fair
representation may 	be 	considered 	to 	be 	an 	unlawful 	practice
under 	the meaning of 	section 	3543.6(b). 	In 	taking 	this
approach, 	it 	will 	be 	necessary 	for 	the 	charging 	party 	to prove
violations 	both of 	section 	3543.6(b) 	and 	section 	3544.9.
Section 3543.6 (b) 	states:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:... 	[i]mpose 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. 	(Emphasis 	added.)
In order 	to find a violation of section 3543.6(b), 	it
is 	necessary 	to 	find 	that 	an 	organization's 	interference 	with
employees 	occurred 	"because 	of" 	their 	exercise 	of 	rights
17

guaranteed 	by 	the 	EERA. 	This may 	create 	a 	serious 	problem 	in
proving 	a violation 	of 	the 	duty of 	fair 	representation, 	because
an exclusive 	representative's 	arbitrary, 	discriminatory or 	bad
faith 	actions 	toward 	employees 	in 	some 	instances may 	be
unrelated 	to employees' 	exercise of 	EERA rights. 	The 	following
hypothetical 	should 	be 	considered:
An 	individual 	employee 	has 	filed 	a 	clearly
meritorious 	grievance 	relating 	to 	her
working 	conditions. 	The grievance 	has 	not
been 	resolved 	satisfactorily 	short 	of
arbitration. 	Only 	the 	exclusive
representative 	may 	take 	a grievance 	to
arbitration. 	The 	exclusive 	representative
refuses 	to 	take 	the 	grievance 	to
arbitration. 	The 	organization's 	refusal 	is
based 	purely 	on 	personal 	animosity 	toward
the 	grievant 	that 	is 	completely 	unrelated 	to
any 	exercise 	of 	EERA 	rights.
In 	order 	to prove 	a 	violation of 	the 	duty of 	fair
representation by way of 	section 3543.6(b), 	it 	is 	necessary to
prove 	that 	the 	exclusive 	representative 	acted 	"because 	of" 	the
employees' 	exercise of EERA rights. 	In the 	hypothetical 	above,
it 	would 	appear 	impossible 	to make 	this proof 	unless 	the 	phrase
"exercise 	of 	rights" 	is 	defined more 	broadly than 	it 	seems 	to
read 	at 	first glance.
Section 	3543 	grants 	to 	employees 	the 	right 	to 	"form,
join, 	and participate 	in the 	activities of 	employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all matters 	of 	employer-employee 	relations."
It 	further 	guarantees 	to 	employees 	the 	right 	to 	represent
themselves 	individually 	in 	their 	employment 	relations 	with
their 	employer, 	"except 	that 	once 	the 	employees 	in an
18

appropriate 	unit 	have 	selected 	an 	exclusive 	representative 	and
it 	has 	been 	recognized 	... 	or 	certified 	..., 	no 	employee 	in
that 	unit 	may meet 	and 	negotiate 	with 	the 	public 	school
employer." 	Section 	3543.3 	states 	that 	a 	public 	school 	employer
or 	its 	designate
shall 	meet 	and 	negotiate 	with 	and 	only 	with
representatives 	of 	employee 	organizations
selected 	as 	exclusive 	representatives 	of
appropriate 	units 	upon 	request. 	...
Sections 	3544, 	3544.1 	and 	3544.713	13 provide 	the 	procedure 	by
13	13Section	section 	3544 	states:
(a) 	An 	employee 	organization may 	become 	the
exclusive 	representative 	for 	the 	employees 	of 	an
appropriate 	unit 	for 	purposes 	of meeting 	and
negotiating 	by 	filing 	a 	request 	with 	a 	public 	school
employer 	alleging 	that 	a majority 	of 	the 	employees 	in
an 	appropriate 	unit 	wish 	to 	be 	represented 	by 	such
organization 	and 	asking 	the 	public 	school 	employer 	to
recognize 	it 	as 	the 	exclusive 	representative. 	The
request 	shall 	describe 	the 	grouping 	of 	jobs 	or
positions 	which 	constitute 	the 	unit 	claimed 	to 	be
appropriate 	and 	shall 	be 	based 	upon majority 	support
on 	the 	basis 	of 	current 	dues 	deduction 	authorizations
or 	other 	evidence 	such 	as 	notarized membership 	lists,
or 	membership cards, 	or 	petitions 	designating 	the
organization 	as 	the 	exclusive 	representative 	of 	the
employees. 	Notice 	of 	any 	such 	request 	shall
immediately 	be 	posted 	conspicuously 	on 	all 	employee
bulletin 	boards 	in 	each 	facility 	of 	the 	public 	school
employer 	in 	which members 	of 	the 	unit 	claimed 	to 	be
appropriate 	are 	employed.
(b) 	The 	employee 	organization 	shall 	submit 	proof 	of
majority 	support 	to 	the 	board. 	The 	information
submitted 	to 	the 	board 	shall 	remain 	confidential 	and
not 	be 	disclosed 	by 	the 	board. 	The 	board 	shall 	obtain
from 	the 	employer 	the 	information 	necessary 	for 	it 	to
carry 	out 	its 	responsibilities 	pursuant 	to 	this
section 	and 	shall 	report 	to 	the 	employee 	organization
and 	the 	public 	school 	employer 	as 	to 	whether 	the 	proof
of majority 	support 	is 	adequate.
19

which 	employees may 	select 	an 	employee 	organization 	as 	their
exclusive 	representative 	for 	the 	purposes 	of 	meeting 	and
negotiating.
(cont. 	of 	footnote 	13)
Section 	3544.1 	states:
The 	public 	school 	employer 	shall 	grant 	a 	request 	for
recognition 	filed 	pursuant 	to 	Section 	3544 	unless:
(a) 	The 	public 	school 	employer 	desires 	that a
representation 	election 	be 	conducted 	or 	doubts 	the
appropriateness 	of 	a 	unit. 	If 	the 	public 	school
employer 	desires 	a 	representation 	election, 	the
question 	of 	representation 	shall 	be 	deemed 	to 	exist
and 	the 	public 	school 	employer 	shall 	notify 	the 	board,
which 	shall 	conduct 	a 	representation 	election 	pursuant
to Section 3544.7, 	unless 	subdivision 	(c) 	or 	(d)
apply; or
(b) 	Another 	employee 	organization 	either 	files 	with
the 	public 	school 	employer 	a 	challenge 	to 	the
appropriateness 	of 	the 	unit 	or 	submits 	a competing
claim of 	representation within 	15 	workdays 	of 	the
posting 	of 	notice 	of 	the 	written 	request. 	The 	claim
shall 	be 	evidenced 	by 	current 	dues 	deductions
authorizations 	or 	other 	evidence 	such 	as 	notarized
membership lists, 	or membership cards, 	or petitions
signed 	by 	employees 	in 	the 	unit 	indicating 	their
desire 	to be 	represented 	by 	the 	organization. 	Such
evidence 	shall 	be 	submitted 	to 	the 	board, 	and 	shall
remain 	confidential 	and 	not 	be 	disclosed 	by 	the
board. 	The 	board 	shall 	obtain 	from 	the 	employer 	the
information 	necessary 	for 	it 	to 	carry 	out 	its
responsibilities 	pursuant 	to 	this 	section 	and 	shall
report 	to 	the 	employee 	organizations 	seeking
recognition 	and 	to 	the 	public 	school 	employer 	as 	to
the 	adequacy of 	the 	evidence. 	If 	the 	claim 	is
evidenced 	by 	the 	support 	of 	at 	least 	30 	percent 	of 	the
members of 	an appropriate 	unit, 	a question of
representation 	shall 	be 	deemed 	to 	exist 	and 	the 	board
shall 	conduct 	a 	representation 	election 	pursuant 	to
Section 3544.7, 	unless 	subdivisions 	(c) 	or 	(d) 	of 	this
section apply; 	or
20

One 	of 	the most 	fundamental 	and 	far-reaching 	rights
guaranteed 	by 	the EERA, 	therefore, 	is 	the 	right of employees 	to
(cont. 	of 	footnote 	13)
(c) 	There 	is 	currently 	in effect 	a lawful written
agreement 	negotiated 	by 	the 	public 	school 	employer 	and
another 	employee 	organization 	covering 	any 	employees
included 	in 	the 	unit 	described 	in 	the 	request 	for
recognition, 	unless 	the 	request 	for 	recognition 	is
filed less 	than 120 	days, 	but more than 90 days, 	prior
to 	the 	expiration date of 	the 	agreement; 	or
(d) 	The public school employer 	has, within the
previous 	12 months, 	lawfully 	recognized 	another
employee 	organization 	as 	the 	exclusive 	representative
of 	any 	employees 	included 	in 	the 	unit 	described 	in 	the
request 	for 	recognition.
Section 	3544.7 	states:
(a) 	Upon 	receipt of 	a petition 	filed pursuant 	to
Section 	3544.3 	or 	3544.5, 	the 	board 	shall 	conduct 	such
inquiries 	and 	investigations 	or 	hold 	such 	hearings 	as
it 	shall 	deem necessary 	in order 	to 	decide 	the
questions 	raised 	by 	the petition. 	The 	determination
of 	that 	board 	may 	be 	based 	upon 	the 	evidence 	adduced
in the inquiries, 	investigations, 	or hearing; provided
that, 	if 	the 	board 	finds on 	the 	basis 	of 	the 	evidence
that 	a question of 	representation 	exists 	or 	a question
of 	representation 	is 	deemed 	to 	exist 	pursuant 	to
subdivision 	(a) 	or 	(b) 	of Section 3544.1, 	it shall
order 	that 	an 	election 	shall 	be 	conducted 	by 	secret
ballot 	and 	it 	shall 	certify 	the 	results 	of 	the
election 	on 	the 	basis 	of 	which 	ballot 	choice 	received
a majority of 	the 	valid votes 	cast. 	There 	shall be
printed 	on 	each 	ballot 	the 	statement: 	"no
representation." 	No 	voter 	shall 	record more 	than 	one
choice 	on 	his 	ballot. 	Any ballot 	upon 	which 	there 	is
recorded more 	than 	one 	choice 	shall 	be 	void 	and 	shall
not 	be 	counted 	for 	any purpose. 	If 	at 	any 	election 	no
choice 	on 	the 	ballot 	receives 	a majority of 	the 	votes
cast, 	a 	runoff 	election 	shall 	be 	conducted. 	The
ballot 	for 	the 	runoff 	election 	shall 	provide 	for 	a
selection 	between 	the 	two 	choices 	receiving 	the
largest 	and 	second 	largest 	number 	of 	valid 	votes 	cast
in 	the 	election.
21

select 	an 	exclusive 	representative 	for 	the 	purpose 	of 	meeting
and 	negotiating. 	Through the exercise of 	this 	right, 	public
school 	employees 	acquire 	the 	right 	of 	collective 	representation
and 	yield 	that 	of 	self-representation. 	In 	giving 	up 	the 	right
of 	self-representation, 	however, 	it 	does 	not 	follow 	that
employees 	have 	no 	right 	to 	complain 	of 	discriminatory 	or
coercive 	treatment, 	or 	other 	forms 	of 	invidious or 	ineffectual
representation 	at 	the 	hands 	of 	their 	representative. 	Rather,
because of 	employees' 	exercise of 	their 	right 	to select 	an
exclusive 	representative, 	they 	are protected 	by 	the 	unfair
practice 	provision 	of 	section 	3543.6(b) 	against 	discriminatory
treatment, 	reprisals, 	inteferences, 	restraints and coercions.
It may 	be 	argued 	that 	it 	is 	through 	use 	of 	this 	medium 	that
alleged 	violations 	of 	the 	duty of 	fair 	representation 	are 	to 	be
evaluated.
(cont. 	of 	footnote 	13)
(b) 	No election 	shall 	be 	held 	and 	the 	petition 	shall
be 	dismissed 	whenever:
(1) 	There 	is 	currently 	in effect 	a lawful written
agreement 	negotiated 	by 	the 	public 	school 	employer 	and
another 	employee 	organization 	covering 	any 	employees
included 	in 	the 	unit 	described 	in 	the 	request 	for
recognition, 	or 	unless 	the 	request 	for 	recognition 	is
filed less 	than 120 	days, 	but more 	than 90 	days, 	prior
to 	the 	expiration 	date of 	the 	agreement; 	or
(2) 	The public school employer 	has, 	within the
previous 	12 months, 	lawfully 	recognized 	an 	employee
organization 	other 	than 	the petitioner 	as 	the
exclusive 	representative 	of 	any 	employees 	included 	in
the 	unit 	described 	in 	the 	petition.
22

This essentially 	is 	the manner 	in which the duty of
fair 	representation was 	found 	to 	exist 	under 	the 	National 	Labor
Relations Act 	(hereafter NLRA), which has 	no specific statutory
guarantee of such 	a duty. 	See 	discussion 	infra at pages 	20 	and
21. 	The 	duty of 	fair 	representation under 	the NLRA is
enforceable 	through 	section 8(b)(l)(A) 14 of 	the National
Labor Relations Act 	(hereafter NLRA), 	under the theory that
section 7 of 	the NLRA grants 	to employees 	"the 	right 	to be 	free
from 	unfair 	or 	irrelevant or 	invidious 	treatment 	by 	their
exclusive 	bargaining 	agent 	in matters 	affecting 	their
employment." 	Miranda Fuel Co., 	Inc. 	(1962) 	140 NLRB 181 	[51
LRRM 1584] 	enforcement denied 	[2d Cir. 	1973] 	326 F.2d 	172 	[54
LRRM 2715].
1 4NLRA section 8(b)(l)(A) 	states:
It shall be an unfair labor practice for a
labor organization or 	its 	agents-
(1) 	to restrain or coerce 	(A) 	employees in
the 	exercise of 	the 	rights 	guaranteed 	in
section 7: 	Provided, 	That this paragraph
shall 	not 	impair 	the 	right of a labor
organization 	to prescribe 	its 	own rules with
respect 	to 	the 	acquisition or 	retention of
membership therein; 	or
See 	footnote 	15 	for 	the 	text of section 7 of 	the NLRA.
23

A second method of 	analysis, 	however, 	is 	equally
persuasive:
It may 	be 	argued 	that 	section 	3544.9 	prescribes 	a duty
of 	fair 	representation 	that 	is 	enforceable 	without 	regard 	to
the 	"unlawful practices" 	sections 	of 	the Act of 	which 	section
3543.6(b), 	supra, 	is a part. 	The term "duty of fair
representation" 	in 	section 	3544.9 	is 	identical 	to 	the 	term used
by 	the National 	Labor 	Relations 	Board 	(hereafter 	NLRB) 	to
describe 	the 	duty owed 	by 	the 	exclusive 	representative 	to
members 	of 	the 	negotiating 	unit 	being 	represented. 	However,
the 	EERA, 	unlike 	the NLRA, 	has 	a 	specific 	statutory provision
establishing 	a 	duty of 	fair 	representation. 	Given 	this
fundamental 	distinction, 	the 	first 	analysis 	above—used 	by 	the
NLRB 	in 	devising 	a 	duty of 	fair 	representation 	under 	the
NLRA—is 	not 	persuasive 	precedent 	to 	which 	PERB 	should 	adhere.
See 	Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d
608 	[87 LRRM 2453] .
Given 	its 	explicit 	prescription 	of 	a 	duty of 	fair
representation, 	the 	legislature must 	have 	intended 	section
3544.9 	to 	be 	actionable on 	its 	own 	terms. 	It 	could 	not 	have
intended 	section 	3544.9 	to 	create 	an 	effective 	exception 	to 	the
rule 	that 	a direct 	nexus must 	be 	shown 	between 	an
organization's 	interference 	and 	an 	employee's 	exercise 	of
rights 	in order 	to make out 	a violation of 	section 	3543.6(b).
Rather, 	the 	legislature 	sought 	to grant 	to 	PERB 	that which 	the
Congress 	did 	not 	grant 	the 	NLRB—a 	self-contained 	provision
24

establishing 	a 	duty 	of 	fair 	representation 	owing 	to 	employees
by 	their 	exclusive 	representative.
In 	construing 	section 	3544.9 	as 	establishing 	a
specific 	statutory 	duty 	of 	fair 	representation 	that 	is
enforceable 	independently 	of 	the 	unfair 	practice 	process,
employees 	do not 	need 	to 	demonstrate, 	whether 	by 	fact 	or 	legal
fiction, 	that 	an organization 	"... 	interfered 	... 	with 	them
because of 	their 	exercise of 	right 	guaranteed 	by 	[the 	EERA]."
(Section 	3543.6 (b).) 	Instead, 	the 	sole question would become
whether 	the 	exclusive 	representative 	has 	violated 	its 	statutory
duty 	of 	fair 	representation.
The 	hearing 	officer 	finds 	that 	both of 	the 	above
approaches 	are 	reasonable 	ones. 	In view of 	the 	hearing
officer's 	resolution 	of 	the 	alleged 	violation 	of 	the 	duty 	of
fair 	representation, 	however, 	it 	is 	found 	to be 	unnecessary 	to
determine 	which 	of 	the 	above 	theories 	should 	apply 	to 	this 	case.
PERB 	has 	held 	that 	the 	NLRB 	and 	federal 	court
precedents 	are 	persuasive 	guidance 	in 	analogous 	areas 	of 	law.
See Fire Fighters Union v. 	City of Vallejo, 	supra; 	Sweetwater
Union High School District 	(11/23/76) 	EERB Decision No. 	4. 	The
National 	Labor 	Relations 	Act 	does 	not 	prescribe 	specifically 	a
duty of 	fair 	representation. 	However, 	it 	has 	long been
recognized 	that 	the 	NLRA 	imposes 	on 	the 	exclusive
representative 	a 	duty 	to 	represent 	fairly 	the 	employees 	of 	the
negotiating 	unit 	it 	represents. 	Reference 	therefore 	is made 	to
decisions 	of 	the 	NLRB 	and 	the 	federal 	courts 	that 	have
addressed 	this 	issue.
25

The 	United 	States 	Supreme 	Court 	has 	held 	that 	the 	duty
of 	the 	exclusive 	representative 	is 	to 	"exercise 	fairly 	the
power 	conferred 	upon 	it 	in behalf 	of 	all 	those 	for 	whom 	it
acts, 	without 	hostile discrimination 	against 	them." 	Steele 	v.
Louisville & 	Nashville Railway 	(1944) 	323 U.S. 	192 	[15 LRRM
708]. 	In Miranda Fuel Co., 	Inc., 	supra, 	140 NLRB 181 	[51 LRRM
1584] , 	the NLRB 	adopted 	the 	standard 	that 	had been judicially
established 	in Steele. 	The 	Board 	found 	in 	section 	7 	of 	the
NLRA15	15 a 	grant 	to 	employees 	of 	"the 	right 	to 	be 	free 	from
unfair 	or 	irrelevant 	or 	invidious 	treatment 	by 	their 	exclusive
bargaining 	agent 	in matters 	affecting 	their 	employment." 	140
NLRB at p. 	185.
The 	United 	States 	Supreme 	Court 	enunciated 	its
still-current 	standard 	governing 	the 	duty 	of 	fair
representation 	in Vaca v. 	Sipes 	(1967) 	386 	U.S. 	171 	[64 	LRRM
2369]. 	The Court 	held 	that 	a breach of 	the 	duty of 	fair
15NLRA 	section 7 	states:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to form, 	join or 	assist
labor 	organizations, 	to bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other mutual 	aid 	or
protection, 	and 	shall 	also have 	the 	right 	to
refrain 	from 	any 	or 	all 	of 	such 	activities
except 	to 	the 	extent 	that 	such 	right may be
affected 	by 	an 	agreement 	requiring
membership 	in a 	labor 	organization 	as 	a
condition of 	employment 	as 	authorized 	in
section 8(a)(3).
26

representation 	occurs 	when 	a 	union's 	conduct 	toward 	a member 	of
the bargaining 	unit 	is 	"arbitrary, 	discriminatory, 	or 	in bad
faith."
The 	duty of 	fair 	representation 	has 	been 	held 	to
prohibit 	discrimination 	based 	on 	union membership 	or
activities. 	Thompson v. 	Sleeping Car 	Porters 	(4th Cir. 	1963)
316 	F.2d 	191 	[52 LRRM 2880]. 	See 	also Wallace Corp. 	v. 	NLRB
(1944) 	323 U.S. 	248 	[15 LRRM 6 9 7 ] . 1 6
The 	NLRB 	and 	the 	courts 	have 	granted 	wide 	latitude 	to
the 	exclusive 	representative 	in 	the 	negotiation 	of 	collective
bargaining 	agreements. 	See Steele, 	supra. 	On the other 	hand,
the 	degree 	of 	discretion 	given 	the 	exclusive 	representative 	in
the 	enforcement 	of 	collective 	bargaining 	agreements 	is 	somewhat
more 	restricted. 	The 	Supreme Court 	in Vaca proclaimed 	that 	a
violation of 	the 	duty would 	be 	found 	in 	arbitrary, 	capricious
or 	bad 	faith 	actions. 	But 	it 	also made 	reference 	to
16	16piscr	oiscr discrimination by an employee organization based
on 	organizational 	activities 	under 	the 	National 	Labor 	Relations
Act 	is 	explicitly forbidden by NLRA section 8(b)(2), 	which
states:
It 	shall 	be 	an 	unfair 	labor 	practice 	for 	a 	labor
organization or 	its 	agents-
(2) 	to cause or 	attempt 	to cause 	an employer 	to
discriminate 	against 	an 	employee 	in violation 	of
subsection 	(a)(3) 	or 	to discriminate 	against 	an
employee 	with 	respect 	to 	whom membership 	in 	such
organization 	has 	been 	denied 	or 	terminated 	on 	some
ground 	other 	than 	his 	failure 	to 	tender 	the 	periodic
dues 	and 	the 	initiation 	fees 	uniformly 	required 	as 	a
condition 	of 	acquiring 	or 	retaining membership;
27
• 	• 	• 	• 	•

"perfunctory" 	grievance 	processing 	in 	such 	a way 	as 	to 	create
the 	inference 	that 	"perfunctoriness" 	in 	handling 	grievances
would be 	held 	tantamount 	to 	arbitrariness, 	capriciousness 	or
bad 	faith. 	One 	commentator 	has 	stated 	that 	the 	Court's
phrasing 	of 	the 	standard 	"invite[s] 	the 	finding 	of 	a 	violation
when 	injury 	is 	caused 	by 	union 	carelessness 	without more."
Gorman, 	Labor Law 	(1976) 	p. 	720. 	Another 	commentator 	has 	urged
that 	the 	appropriate 	duty of 	fair 	representation 	should 	be
based 	on 	"reasonableness," 	defined 	as 	"fairness" 	as 	that 	term
has 	been 	used 	in 	the 	context 	of 	constitutional 	due 	process
cases. 	See 	Duty of 	Fair 	Representation 	and 	Exclusive
Representation 	in Grievance Administration 	(1976) 	Syracuse
L.Rev. 	1199, 	1230. 	A recent 	federal 	case 	has 	held 	extreme
negligence 	in grievance 	processing 	to be 	a breach of 	the 	duty
of 	fair 	representation. 	Ruzicka v. 	General Motors Corp. 	(6th
Cir. 	1975) 	523 F.2d 306 	[90 LRRM 2497]. 	Cf. 	Local 18, 	Int'l
Union of 	Operating 	Engineers 	(Ohio Pipeline 	Construction Co.)
(1963) 	144 NLRB 1365 	[54 LRRM 1235].
A typical 	case 	involving 	an 	alleged 	breach 	of 	the 	duty
of 	fair 	representation bases 	its 	claim either 	on 	a 	union's
refusal 	to process 	the 	grievance 	of 	a member 	of 	the 	bargaining
unit, 	or 	on a 	union's perfunctory handling of 	a grievance 	that
it chooses to accept. 	See, 	e.g., Vaca, 	supra; 	Holodnak v. 	Avco
Corp., Avco-Lycoming Div. 	(D.Conn. 	1974) 	387 F.Supp. 	191 	[87
LRRM 2337], 	modified 	(2d Cir. 	1975) 	514 F.2d 285 	[88 	LRRM
2950]; 	Figueroa de Arroyo v. 	Sindicato de Trabajadores
Packinghouse 	(1st Cir. 	1970) 	425 F.2d 281 	[74 LRRM 2028], 	cert.
28

denied 	(1970) 	400 U.S. 	877 	[75 LRRM 2455]. 	It 	is 	settled 	that
the 	union's 	duty of 	fair 	representation may 	be 	violated 	as much
by 	a union's 	acts 	of 	commission 	as 	by 	its 	failure 	to 	act. 	See,
e.g., 	Steele, 	supra, 	where the U.S. 	Supreme Court found a
violation 	of 	the 	duty of 	fair 	representation 	in 	a 	union's
negotiation 	of 	contractual 	provisions 	designed 	to 	give 	priority
in 	hiring 	and 	promotions 	to 	white 	employees 	over 	black
employees.
The 	hearing 	officer 	finds 	that 	the 	Association 	acted
within 	the 	scope 	of 	the 	duties 	prescribed 	by 	the 	duty of 	fair
representation, 	and 	that 	the 	Association 	did 	not 	intentionally
or 	negligently 	disregard 	the 	potential 	that 	the 	pendency of 	the
grievance 	would make 	settlement 	of 	the 	criminal 	case
impossible. 	The Association 	had 	the 	authority 	under 	article
XXI, 	section 	4 of 	the 	contract 	to 	file 	the 	grievance on 	its 	own
behalf. 	Its 	reason 	for 	pursuing 	the grievance was 	to 	enforce
the 	no-reprisals 	clause 	in 	the 	contract. 	It 	would 	appear 	that
the Association 	was 	under 	an obligation 	toward 	the 	negotiating
unit 	as 	a whole 	to 	assure 	that 	a grievance 	against 	the 	District
for 	breach of 	the 	no-reprisals 	clause 	would be 	filed, 	and 	the
record 	shows 	that 	the 	superintendent's 	arrest 	of 	the 	Seven was
the most 	clear 	violation of 	the 	no-reprisals 	clause. 	The
Association made 	adequate 	good 	faith 	efforts 	to 	reach 	the 	Seven
before 	determining 	to 	file 	the grievance. 	The Association was
not 	put 	on 	clear 	notice 	that 	the 	pendency 	of 	the 	grievance
barred 	settlement of 	the 	criminal 	charges. 	Further, 	the
Association 	did 	not 	intend 	harm 	to 	come 	to 	the 	charging 	party
29

or 	the 	other 	defendants 	through 	its 	processing of 	the
grievance. 	In view of these facts, 	it 	is held that the
Association did not 	violate 	its 	duty to 	represent Ms. 	King
fairly, 	and that 	it therefore did 	not violate section 3544.9.
As 	a corollary to 	the conclusion 	that 	the
Association's 	action in pursuing 	the grievance was 	done 	in good
faith and 	for 	legitimate reasons, 	it 	is 	found 	that 	the charging
party 	has 	failed 	to establish 	that 	the Association's
maintenance 	of 	the 	grievance 	was 	either 	extremely negligent,
arbitrary, 	capricious or bad faith. 	As a foundational matter,
there 	is 	no persuasive 	evidence 	that 	the pendency of 	the
grievance was 	the 	factor 	that 	caused 	the 	superintendent 	to
refuse 	to drop 	the 	charges. 	The 	superintendent 	said before 	the
grievance was 	filed 	in this 	case that 	he would 	not drop 	the
charges 	because 	the 	Seven 	had 	"asked 	to 	be 	arrested." 	The
newspaper 	article quoted above 	states 	that 	the 	trustees would
not 	seek 	to 	compromise the 	criminal charges 	until 	the grievance
was resolved; 	however, 	there 	is an equivalent quantum of
evidence 	indicating 	that 	the 	superintendent's motivation 	in
refusing 	to drop the grievance was political, 	notwithstanding
his 	statement 	that 	the charges 	"could not" 	be dropped. 	For
example, 	the 	same news 	article 	stated 	that 	"Ferguson said he
has personally been 	receiving 	community support 	for 	not 	bowing
the 	[sic] 	pressure 	to drop the case." 	Further, 	the brief of
the 	charging party 	indicates 	that 	the 	superintendent 	used 	the
impending grievance only as 	an 	"excuse" 	not 	to drop the
criminal complaint. 	While what 	the District would have done
30
'

--
but 	for 	the Association's 	filing 	of 	the 	grievance 	is 	open 	to
some 	speculation, 	it 	has 	not been 	demonstrated persuasively
that 	the 	charges 	would 	have 	been 	dropped 17	. 17 The 	fact 	that 	an
insufficient 	casual 	relation 	has 	been 	shown 	to exist 	between
the 	acts 	of 	the Association 	and 	the 	District's 	refusal 	to
settle 	is 	an 	initial 	serious 	failing of Ms. 	King's 	case.
Even assuming, 	arguendo, 	that 	it was proven that the
grievance 	precluded 	settlement 	of 	the 	criminal 	charges,
18	-
the
Association was 	not 	aware 	at 	the 	time 	the 	grievance 	was 	filed
that 	it 	may have 	had 	that 	effect, 	and 	thus 	it must 	be concluded
that 	the 	duty of 	fair 	representation 	was 	not 	violated 	as 	of
that 	time. 	Mr. 	Caveglia 	told Ms. 	Mahon 	that 	the 	Seven did 	not
want 	to 	file 	a grievance 	until 	after 	the 	criminal 	case 	was
disposed 	of, 	but 	neither 	the 	Seven 	nor 	their 	attorney 	attempted
to explain before 	the 	filing of 	the 	grievance 	that 	it might
jeopardize 	settlement of 	the 	criminal 	charges. 	In 	addition,
the 	day before 	the 	grievance 	was 	filed Mr. 	Caveglia 	told
Mr. 	Curry 	that 	he 	did not 	know what 	the 	plans 	of 	the 	Seven
were. 	Under 	these circumstances, 	it 	cannot be concluded that
the 	mere 	filing 	of 	the 	grievance 	constituted 	a 	breach 	of 	the
duty of 	fair 	representation.
17	17Itrt 	is 	noted 	that 	no California 	statute 	requires
that 	a 	full 	"civil 	release" 	be 	given 	to 	a 	complaining 	witness
as 	a prerequisite 	for 	dismissal 	of 	a criminal 	action. 	See
Penal 	Code 	section 	1385.
18 The 	remainder 	of 	the 	Discussion 	and 	Conclusions 	of
Law 	is written under 	the assumption, 	arguendo, 	that 	this
foundational 	showing 	had 	been made.
31

Three 	additional 	facts 	presented 	themselves 	after 	the
filing of the grievance: 	as of November 	29, Ms. 	King had
expressed 	her 	unhappiness 	to Ms. 	Mahon 	concerning 	the
grievance; 	as of December 	10, 	the Association knew of 	the
District's 	rationalization 	that 	it 	would 	not 	drop 	the 	criminal
complaint 	because of 	the pendency of 	the grievance; 	and 	the
Association 	failed 	to 	send Ms. 	King 	a copy 	of 	the 	grievance
upon her 	initial 	request. 	It 	is held, 	however, 	that these
three 	additional 	facts 	do 	not 	establish 	a 	violation 	of 	the 	duty
of 	fair 	representation. 	Ms. 	Mahon asked Ms. 	King 	to put 	in
writing 	her 	concerns 	as 	to 	the 	potential 	adverse 	effect 	that
maintenance of 	the 	grievance 	would 	have, 	and 	she 	stated 	that
the 	grievance 	committee 	and 	the 	executive 	committee 	of 	the
Association would 	consider 	those concerns. 	Ms. 	King 	failed 	to
make 	any 	request 	to 	either 	committee. 	While Ms. 	King may 	argue
that 	it would 	have been 	"futile" 	to put 	her 	concerns 	in
writing, 	the 	hearing 	officer 	does 	not 	find 	an 	adequate
evidentiary 	basis 	on 	which 	to 	justify 	that 	conclusion.19
Ms. 	King 	and Mr. 	Caveglia were 	sounded out on numerous
occasions 	as 	to 	their 	inclinations 	toward 	pursuing 	the
grievance, 	yet 	once 	the grievance 	was 	filed 	none of 	the 	Seven
asked 	the Association 	to 	drop 	the 	grievance, 	nor 	did 	the
attorney 	for 	the 	Seven 	ever 	contact 	the Association 	to 	express
1 9 It 	is 	noted 	that Ms. 	King's 	testimony that Ms.
Mahon 	said 	that 	the 	grievance 	would 	proceed 	without 	regard 	to
Ms. 	King's 	reasons 	has 	not 	been 	credited 	by 	the 	hearing
officer. 	See footnote 10, 	supra.
32

his 	concerns. 	It 	is 	noted that 	the charge, 	filed 	six weeks
after 	the 	grievance 	was 	filed 	and 	three 	weeks 	before 	the
criminal 	trial, 	did 	not 	allege 	that 	the 	charging party was
jeopardized 	because 	of 	the 	pendency 	of 	the 	grievance, 	nor 	does
it 	allege 	that 	the 	charging 	party 	requested 	the Association 	to
withdraw 	the 	charge. 20 For 	all 	of 	these 	reasons 	the 	hearing
officer 	concludes 	that 	the 	Association 	did 	not 	violate 	section
3544.9 	by 	failing 	to withdraw 	the 	grievance.
The 	hearing 	officer 	has 	concluded 	that Mr. 	Curry
neglected 	to 	send 	the 	grievance 	to Ms. 	King, 	and 	that 	the
Association, 	upon later 	learning 	that Ms. 	King 	had 	not 	received
a copy, 	sent 	her 	one 	immediately. 	However, 	even 	assuming 	that
negligence 	in 	handling 	a grievance 	is 	an 	adequate 	basis 	for
sustaining 	a 	charged 	violation 	of 	the 	duty of 	fair
representation, 	Ruzicka v. 	General Motors Corp., 	supra, 	it 	is
found 	that 	the Association's 	failure 	to 	send Ms. 	King 	a copy 	of
her grievance, 	without more, 	is 	insufficient to sustain the
charge. 	Mr. 	Curry was merely 	negligent 	in 	failing 	to 	send 	a
copy of 	the grievance 	to Ms. 	King; 	there 	is 	no evidence that
his 	failure 	to 	send 	the 	grievance 	was 	part 	of 	a design of 	the
Association; 	the Association 	cured 	the 	situation 	immediately
20 The 	gravamen 	of 	the 	charge 	is 	that 	the Association
allegedly 	filed 	the 	grievance 	"without 	permission of 	the 	seven
employees," 	that 	the Association 	"declined" 	to provide 	a copy
of 	the grievance 	to the defendants, 	that 	the Association
refused 	to permit 	the 	Seven 	to 	represent 	themselves 	"or 	in 	any
way make 	decisions 	about 	the grievance... 	." 	These 	allegations
are 	inconsistent 	with 	the 	contention 	that Ms. 	King 	requested
that 	the grievance 	be withdrawn.
33

once Ms. 	King 	informed 	it 	that 	she 	had 	not 	received 	the
grievance; 	and 	at 	any rate Ms. 	King was 	informed 	by 	another
teacher 	on 	the 	date 	that 	the grievance was 	filed 	that 	it 	in
fact 	had 	been 	filed. 	Given 	these 	facts, 	the Association's
initial 	failure 	to 	send 	a 	copy of 	the grievance 	was 	de
-
minimis. 	Whether 	viewed 	in 	isolation 	or 	together 	with 	the
other 	facts of 	this 	case, 	this 	factor 	does 	not 	allow a 	finding
that 	the 	Association 	breached 	its 	duty of 	fair 	representation
toward Ms. 	King.
While 	the 	duty of 	fair 	representation may 	be 	violated
by discrimination 	against 	nonmembers 	of 	an 	employee
organization, 	Thompson v. 	Sleeping Car Porters, 	supra, 	there 	is
no persuasive 	evidence 	showing 	that 	the 	Association's
maintenance 	of 	the 	grievance 	was 	grounded 	in such 	a motive.
The 	charging 	party 	did 	not 	establish 	that 	the 	officers 	of 	the
Association 	who 	were 	involved 	with 	the 	grievance 	had 	an
anti-Federation 	animus, 	nor 	can a 	reasonable 	inference 	of
animus 	be 	drawn 	from 	the 	facts 	presented. 	One 	of 	the 	seven
defendants 	was 	a member 	of 	the Association 	and was 	not 	a member
of 	the AFT, 	and 	thus 	any 	alleged 	discrimination was 	not
congruent with AFT membership. 	In 	addition, 	even assuming,
arguendo, 	the 	existence of animus, 	no nexus has been
established 	between 	such 	animus 	and 	the 	Association's
maintenance 	of 	the 	grievance.
Charging 	party 	appears 	to 	argue 	that 	the 	Association
could 	have 	been 	awarded 	a 	favorable 	arbitration 	decision 	before
the 	defendants 	went 	to 	trial 	if 	the Association 	had 	not 	delayed
34

in processing 	the case. 	Thus, 	she 	seems 	to argue, 	bu
----t for 	the
Association's 	intentional 	or 	reckless 	actions, 	the 	defendants
would 	not 	have 	had 	to 	stand 	trial. 	This 	contention 	is
groundless. 	The Association 	held 	the grievance 	in 	abeyance
because 	it 	was 	unclear 	as 	to 	"where 	[it] 	stood" 	with respect 	to
the 	grievance 	given 	that 	an 	unfair 	practice 	charge 	had 	been
filed 	concerning 	it. 	The 	fact 	that 	a new 	legal 	issue 	had 	been
raised 	because of 	the Association's 	pursuit 	of 	the 	grievance
was 	a 	reasonable 	basis 	for 	suspending 	processing 	of 	it 	until
the 	ramifications 	of proceeding 	had 	been 	evaluated. 	The
hearing 	officer 	declines 	to 	infer 	from 	the 	Association's
suspension of 	the 	case 	that 	the Association 	was motivated 	by 	a
desire 	to 	harm 	the 	defendants 	thereby. 	As 	indicated 	above, 	the
record 	shows 	that 	the Association's motive 	for 	maintaining 	the
grievance 	was 	to 	seek 	enforcement 	of 	the 	no-reprisals 	clause 	in
the 	contract 	for 	the 	benefit of 	all members 	of 	the 	negotiating
unit.
- -
In 	summary, 	the 	record 	shows 	that 	the Association
acted 	in good 	faith 	and 	with 	an 	adequate 	regard 	for 	the
defendants 	in 	filing 	and 	processing 	its 	grievance, 	and 	that 	its
actions 	therefore 	were 	neither 	extremely 	negligent, 	arbitrary,
capricious, 	discriminatory nor 	in bad 	faith. 	These 	facts
mandate 	the 	conclusion 	that 	the Association's maintenance 	of
the 	grievance 	did 	not 	violate 	section 	3544.9 of 	the 	EERA.
35

2. 	Alleged Violation of 	Section 	3543
The 	Charging 	Party 	appears 	to 	contend 	that 	her 	right
to 	represent 	herself 	was 	violated 	in 	two 	respects. 	She 	first
contends 	that 	the Association, 	contrary 	to her wishes, 	filed 	a
grievance 	"on 	her 	behalf." 	Second, 	she 	contends 	that 	the 	right
of 	self-representation 	was 	violated 	in 	that 	she 	was 	not
permitted 	"in 	any way 	to make 	decisions 	about 	the 	grievance
which affects 	[her] 	future." 	These contentions will be
addressed 	in order.
A. 	The 	filing of 	the grievance. 	The 	grievance 	in
question 	was 	filed 	by the Association 	on 	its 	own behalf. 	As
noted 	above, 	the 	applicable contract 	clause 	states:
3. 	"Grievant" means 	individual members 	of
the 	unit 	or 	the Association when processing
a grievance pursuant 	to section 	4 	of 	this
Article.
4. 	The Association may 	initiate 	a grievance
which 	affects 	a 	substantial 	number 	of
members of 	the unit. 	(Emphasis 	added.)
While 	the 	grievance 	itself 	stated 	that 	the 	defendants 	were 	the
"injured 	parties," 	it was 	signed 	by Ms. 	Mahon 	as president of
FUDTA 	and 	indicated 	on 	its 	face 	that 	it 	was 	"filed 	consistent
with 	the 	contract 	between 	the 	FUSD Board 	of 	Education 	and
FUDTA... 	." 	And 	although the Association's 	newsletter, 	"The
Signal," 	stated 	that 	the 	grievance 	was 	filed 	"in behalf 	of" 	the
seven 	teachers, 	testimony of Ms. 	Mahon indicated 	that 	the
statement 	was 	an 	error 	of 	the writer 	of 	the 	article. 	Ms. 	King
acknowledged 	in 	testimony 	that 	the 	grievance 	had 	been 	filed 	as
36

an Association 	grievance 	and 	had 	not 	been 	filed 	on 	her
behalf.21 Her 	letter 	to 	the Association 	of November 	29
corroborates 	this 	fact, 	as 	it 	requested dispatch of 	a 	copy of
the 	grievance 	"filed 	by 	FUDTA 	for 	violation 	of 	the 	certificated
employee contract 	no-reprisal 	clause. 	..." 	Moreover,
according 	to 	the 	credible testimony of Ms. 	King, 	Mr. 	Marcello
informed Ms. 	King 	in 	late November 	that 	the Association 	had
filed 	the 	grievance 	on 	its 	own 	behalf 	after 	having 	attempted 	to
elicit 	the 	defendants' 	inclinations 	toward 	filing 	the
grievance. 	In view of 	these 	facts, 	the 	hearing officer
concludes 	that 	the 	grievance 	was 	filed 	by 	the Association 	on
its 	own behalf.
It 	is 	arguable 	the Association's 	filing 	of 	the
grievance 	violated Ms. 	King's 	right 	to 	represent 	herself 	in
that 	its 	filing 	of 	the 	grievance 	precluded 	her 	from presenting
a grievance 	on 	her 	own behalf. 	The 	charging party does 	not
argue 	that 	this 	theory applies 	to 	this 	case. 	Assuming,
arguendo, 	that 	this omission 	is 	not a bar 	to consideration of
this 	argument, 	it 	nonetheless 	is 	found 	to be unpersuasive.
Before 	filing 	its 	grievance, 	the Association gave 	the
21 counsel for the charging party apparently sought
to minimize 	this 	testimony 	by 	stating 	that Ms. 	King 	understood
"as 	of February" 	that 	the 	grievance 	was 	filed 	on 	her 	behalf.
This 	qualification of 	her 	testimony 	is 	not 	clearly 	relevant,
nor 	is 	it 	admissible. 	Statements 	of 	counsel 	are 	not 	admissible
as 	testimony 	unless 	they 	are made 	under 	oath 	from 	the 	witness
stand, 	and Ms. 	King's 	counsel 	did 	not 	elicit 	testimony on
redirect examination 	to alter Ms. 	King's 	testimony.
37

defendants 	ample 	time 	to 	determine 	whether 	they 	intended 	to
file 	a grievance 	on 	their 	own 	behalf. 	While 	the 	grievance was
filed 	by 	the Association 	in 	advance 	of 	the 	last permissible
date 	of 	filing, 	this 	is 	not persuasive 	evidence 	that 	the
Association 	intended 	to 	"close 	out" 	the 	Seven 	from pursuing
their 	own 	grievance. 	The 	exclusive 	representative must 	be
given 	considerable 	discretion 	in 	determining 	the most
appropriate 	time 	upon which 	to 	file 	its 	grievances 	against 	the
employer. 	There 	is 	no persuasive 	evidence 	that 	the
Association's 	motives 	were 	ulterior 	in 	filing 	the 	grievance
when 	it did, 	and 	there 	is 	no credible 	evidence 	that 	the
defendants 	requested 	the 	Association 	not 	to 	file 	a grievance 	in
order 	that 	they 	could 	file 	one 	on 	their 	own.22 Charging
party 	therefore 	has 	not 	shown 	that 	the Association's 	filing 	of
the 	grievance 	violated 	her 	rights 	under 	section 	3543 	in 	this
respect.
B. 	Denial of 	the 	ability 	to make decisions 	concerning
the grievance. 	The 	only 	evidence 	addressing 	this 	issue 	is
testimony 	that 	the 	Association 	would 	not 	permit 	the 	defendants
2 2 As 	noted 	at 	footnote 	5, 	Ms. 	King 	testified 	that
Mr. 	Caveglia 	had 	a 	conversation with 	her 	immediately 	after 	he
spoke with Ms. 	Mahon. 	She 	further 	testified 	that 	he 	repeated
to 	her 	what 	he 	allegedly 	had 	told Ms. 	Mahon—that 	the
defendants 	"didn't want 	to 	do 	any, 	take 	any kind 	of 	action 	like
that, 	including a grievance, 	and that 	if 	and when that became
maybe 	a 	feasible action, 	that 	[they] 	would probably want 	to 	do
it 	on 	[their] 	own." 	As 	noted above 	at 	footnote 5, 	the hearing
officer 	does 	not 	credit Ms. 	King's 	statement 	that Mr. 	Caveglia
told Ms. 	Mahon that 	the 	defendants might want 	to 	file 	a
grievance 	"on 	their 	own."
38

to 	take 	part 	in 	the 	decision 	whether 	to 	carry 	forward 	with 	the
grievance. 	There 	is 	no obligation 	imposed 	by 	law on 	an
employee 	organization 	in 	these 	circumstances 	to 	grant
nonmembers 	the 	opportunity 	to 	decide 	whether 	the 	organization
should proceed 	on 	its 	own 	behalf. 	Charging 	party may 	contend
that 	she 	was 	entitled 	under 	the 	grievance 	procedure 	to 	take
part 	in 	the Association's 	decisions 	whether 	to 	file, 	and 	to
proceed, 	with the grievance. 	However, Ms. 	Mahon told Ms. 	King
that 	if 	she 	put 	her 	concerns 	in writing 	to 	the Association,
that 	the 	Association 	would 	consider 	them 	in 	determining 	whether
to 	continue 	with 	the 	grievance. 	This 	alternative 	was 	both
reasonable 	and 	fair. 	To permit 	any 	individual 	in a 	negotiating
unit 	free 	rein 	to 	intercede 	in 	the 	exclusive 	representative's
enforcement 	of 	its 	contractual 	rights 	would 	do 	fundamental
mischief 	to 	the 	principle 	of 	exclusive 	representation. 	The
hearing 	officer 	concludes 	that 	under 	these 	facts 	the
Association 	was 	under 	no 	obligation 	to 	permit 	the 	charging
party 	to 	take 	further 	part 	in 	its 	decision-making process.
It 	also may 	be 	argued 	that 	under 	section 	3543 	the
charging 	party 	was 	entitled 	to 	take part 	in 	determining 	the
Association's 	grievance 	strategy, 	and 	was 	denied 	that 	right 	by
the Association. 	It 	has been concluded, 	however, 	that the
Association's 	grievance 	was 	filed 	on 	its 	own 	behalf, 	and 	that
Ms. 	King 	had 	been given 	a 	reasonable opportunity 	to present 	her
own 	grievance. 	There 	is 	insufficient 	evidence 	on which 	to 	base
a 	finding 	that Ms. 	King 	requested 	to 	take part 	in 	the
processing 	of 	the 	grievance, 	and 	there 	is 	even 	less 	indicating
39

that 	the 	Association 	denied 	such 	a 	request. 	The 	charging 	party
therefore 	has 	not 	shown 	a 	violation of 	section 	3543 	based 	on
this 	theory.23
Moreover, 	the Association, 	after 	filing 	its 	grievance,
waived 	the 	initial 	steps 	of 	the 	grievance 	process 	and 	consented
to 	taking 	the 	case 	directly 	to 	arbitration. 	Section 	3543
grants 	to employees 	the 	right 	to 	adjust grievances 	only prior
to arbitration. 	There 	is 	no 	evidence 	that 	the Association
intended 	to 	interfere with Ms. 	King's 	right 	to 	represent
herself 	by 	going 	directly 	to 	arbitration, 	and Ms. 	King 	had 	not
expressed 	an 	interest 	in 	pursuing 	the 	grievance 	on 	her 	own
behalf. 	For 	these 	reasons, Ms. 	King's 	right to 	represent
herself 	was 	finally 	extinguished 	when 	the 	Association 	submitted
the 	grievance 	to 	arbitration. 	See 	Mount 	Diablo Unified 	School
District, 	Santa Ana Unified School District, 	Capistrano Unified
School District 	(12/30/77) 	EERB Decision No. 	44. 	This 	is 	an
additional 	factor 	establishing 	that 	no 	violation 	of 	section
3543 	has 	been 	established.
3. 	Alleged Violation 	of 	Section 	3543.6(a)
The 	charge 	alleged 	that 	the 	Association 	violated
section 	3543.6 (a) 	in that 	it made 	an 	"...effort 	to cause 	the
23 In view of 	this 	conclusion, 	it 	is 	unnecessary to
reach 	the 	issue 	whether 	the Association's 	right 	under 	the
contract 	to 	file 	a grievance 	affecting 	a 	substantial 	number 	of
members 	of 	the 	unit 	would 	deny Ms. 	King of 	the 	ability 	to press
this 	grievance 	without 	the 	intervention 	of 	the 	Association.
24Section 	3543.6(a) 	is 	set 	forth at 	footnote 	2,
supra.
40

District 	to discriminate 	against 	the 	[defendants]." 	The
hearing 	officer 	has 	concluded 	above 	that 	the 	Association 	acted
in 	good 	faith 	and 	without 	discriminatory motives 	in 	filing 	and
maintaining 	the 	grievance. 	Even 	assuming, 	arguendo f 	that 	the
District's 	pursuit 	of 	criminal 	charges may 	have 	been 	grounded
in 	discriminatory motives, 	the 	record 	shows 	that 	the
Association's 	pursuit of 	the grievance 	in question was made 	in
order 	to 	remedy 	a perceived 	violation 	of 	the 	contract. 	There
is 	no 	evidence 	that 	the Association 	attempted 	to 	cause 	the
District 	to 	discriminate 	against 	the 	defendants. 	The 	alleged
violation of 	section 	3543.6(a) 	therefore 	is 	dismissed.
4. 	Alleged Violation of 	Section 	3543.6(b)
As 	noted 	above, 	the 	hearing 	officer 	has 	concluded 	that
it 	is 	possible 	that 	a violation of 	the 	duty of 	fair
representation may 	be 	proven 	independently 	of 	section 	3543.6(b)
of 	the 	EERA. 	This 	portion 	of 	the 	Discussion 	and Conclusions 	of
Law proceeds 	under 	the 	assumption 	that 	a 	violation 	of 	the 	duty
of 	fair 	representation 	requires 	proof 	of 	a violation 	of 	section
3543.6(b) .
Section 	3543.6(b) 	prohibits 	discriminations 	and
reprisals, 	and threats 	thereof, 	in addition 	to 	its prohibition
of 	interference 	in 	the 	employee's 	exercise of 	rights 	guaranteed
by 	the 	EERA. 	The 	charging party 	only 	has 	alleged 	an
interference 	in her 	exercise 	of 	rights, 	and 	therefore 	the
alleged 	violation of 	section 	3543.6(b) 	is 	treated 	only as 	a
charge 	of 	interference 	and 	not 	as 	a charge 	of 	discrimination 	or
imposition of 	reprisals.
41

Ms. 	King 	alleged 	that 	the 	grievance 	interfered 	with
the 	settlement of 	her 	criminal 	case. 	This 	contention 	is
dismissed 	in 	the 	preceding 	discussion 	of 	section 	3544.9.
Any 	allegation 	that 	the Association 	denied Ms. 	King's
right 	not 	to participate 	in 	the 	activities 	of FUDTA 	and 	her
right 	to 	represent 	herself 	is 	disposed of 	in 	the preceding
discussion 	of 	section 	3543.
Any 	allegation 	that 	the 	Association 	interfered 	with
Ms. 	King 	in 	her 	exercise of 	EERA rights 	in that 	it 	encouraged
the 	District 	to discriminate 	against Ms. 	King 	is 	disposed of 	in
the preceding discussion of 	section 	3543.6 (a).
Since 	no 	other 	persuasive 	evidence 	of 	interference 	is
present 	in 	the 	record or 	has 	been 	argued, 	the 	hearing officer
concludes 	that 	the 	charging 	party 	has 	failed 	to 	show by 	a
preponderance 	of 	the 	evidence 	that 	the Association 	interfered
with 	her 	because 	of 	her 	exercise 	of 	rights 	guaranteed 	by 	the
EERA. 	The 	alleged 	violation of 	section 	3543.6(b) 	therefore 	is
dismissed. 25
25Board 	rule 	35027 	states:
The 	charging party 	shall prove 	the 	charge 	by
a preponderance 	of 	the 	evidence 	in 	order 	to
prevail.
The 	Board 	rules 	were 	amended 	effective July 	6, 	1978 •
Former 	Board 	rule 	35027 	now 	is 	found 	at Board 	rule 	32178.
42

PROPOSED ORDER
Based on the findings of fact, conclusions of law and
the entire record in this case, it is the proposed order that
the unfair practice charge filed by Janet King against the
Fremont Unified District Teachers Association alleging
violations of sections 3543, 3543.6 (a) and (b) , and 3544.9 is
DISMISSED .
The parties have twenty (20) calendar days after
service of this Proposed Decision in which to file exceptions
in accordance with California Administrative Code, title 8
Dated: Augus 	978
Jef
Hearing Officer
43	43
PROPOSED 	ORDER
Based 	on 	the 	findings 	of 	fact, 	conclusions 	of 	law 	and
the 	entire 	record 	in 	this 	case, 	it 	is 	the proposed order 	that
the 	unfair 	practice 	charge 	filed 	by 	Janet 	King 	against 	the
Fremont 	Unified 	District 	Teachers 	Association 	alleging
violations 	of 	sections 	3543, 	3543 . 6(a) 	and 	(b), 	and 	3544 . 9 	is
DISMISSED .
The 	parties 	have 	twenty 	(20) 	calendar 	days 	after
service 	of 	this 	Proposed 	Decision 	in which 	to 	file 	exceptions
in 	accordance 	with 	California 	Administrative, Code, 	title 	8,
part III, section 32300. If no party files timely exceptions,	part 	III, 	section 	32300 . 	If 	no party 	files 	timely exceptions,
this Proposed Decision will become final on August 28,	this 	Proposed 	Decision 	will 	become 	final 	on 	August 	28,
1978 and a Notice of Decision will issue from the Board.	1978 	and 	a 	Notice 	of 	Decision will 	issue 	from 	the 	Board.
--·· ..
Dated : 	August t 4, 1	1 _97~ --	~-' · 	-
By	By
frey SloanH ea rin g 	Offi ce r
'
_J	__J_	e .,..,ff,,..r_e_y ----,,,S.,..lo_a_n___