California School Employees Association (Simeral) (PERB 0930E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TIMOTHY GALE 	SIMERAL,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-278
PERB Decision No. 	930
May 14, 1992
Appearances: 	Timothy Gale Simeral, 	on his own behalf; 	William C.
Heath, 	Attorney, 	for California School Employees Association.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by Timothy
Gale 	Simeral 	of 	a 	PERB 	Board 	agent's 	dismissal 	(attached 	hereto)
of 	his 	charge 	alleging that 	the California 	School 	Employees
Association violated 	section 	3543.6(b) 	of 	the 	Educational
Employment Relations Act 	(EERA)1 by mishandling a 	grievance
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for an 	employee
organization to:
(b) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
)
)
)
)
)
)
)
______________ 	!

regarding the timing of a bus 	run.
The 	Board has 	reviewed 	the 	Board 	agent's 	warning 	and
dismissal 	letters, 	and 	finding them to be 	free of prejudicial
error, 	adopt them as 	the decision of 	the Board 	itself.
The unfair practice charge 	in Case No. 	S-CO-278 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Caffrey 	and Carlyle 	joined 	in this 	Decision.
N	
2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 24, 	1992
Timothy 	Gale 	Simeral
Re: 	Timothy Gale Simeral v. 	California School Employees
Association
Unfair Practice 	Charge No. 	S-CO-278
DISMISSAL 	LETTER
Dear Mr. 	Simeral:
On January 24, 	1992, 	you filed a charge which appears to allege
that the California School 	Employees Association 	(CSEA), 	violated
its 	duty of 	fair representation guaranteed by Governmen	+ . 	t 	Code
section 	3544.9 	(EERA) 	and thereby violated EERA 	section
3543.6(b). 	Specifically, 	you alleged that CSEA violated its duty
of 	fair 	representation 	by mishandling a 	grievance you 	filed
regarding 	the 	timing of your bus 	run.
I 	indicated to you 	in my attached letter dated February 	21, 	1992,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were 	advised that 	if 	there were any factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge 	accordingly. 	You were 	further advised that unless 	you
amended the charge to 	state a prima 	facie case, 	or withdrew it
prior to February 28, 	1992, 	the charge would be dismissed.
On February 	24, 	1992, 	you telephoned me to discuss my letter of
February 	21, 	1992. 	During our conversation you 	informed me that
you did 	not 	agree with my 	conclusion that 	CSEA did 	not 	violate
its 	duty of 	fair 	representation. 	We 	also discussed your options
of 	amending 	your charge or appealing my dismissal 	to 	the 	Board,
if 	you decided 	not 	to 	amend 	your 	charge. 	Following our
discussion you 	stated 	that 	you would not 	amend the 	charge 	and
requested 	that 	I 	issue a dismissal 	letter to 	allow you the
opportunity to 	file an appeal with the Board. 	I 	am therefore
dismissing 	the 	charge 	based 	on 	the 	facts 	and 	reasons 	contained 	in
my February 21, 	1992 	letter.

Dismissal 	Letter 	- 	S-CO-278
Page 2
Right 	to Appeal
Pursuant to Public 	Employment Relations Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by filing an
appeal 	to the Board itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified 	or Express 	United 	States 	mail postmarked 	no 	later than
the last date 	set 	for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's address 	is:
Public 	Employment Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a timely appeal of the refusal to 	issue a 	complaint,
any 	other party may 	file with 	the 	Board an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty calendar days
following the date of 	service of the appeal 	(California Code of
Regs., 	tit. 	8, 	sec. 	32635(b)).
Service
All 	documents 	authorized to 	be 	filed herein must 	also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy of 	a document 	served upon a party or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample 	form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered 	or deposited 	in 	the 	first-class 	mail postage paid 	and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which 	to 	file 	a document
with 	the 	Board 	itself 	must 	be 	in writing and 	filed with 	the 	Board
at 	the previously noted address. 	A request 	for an 	extension must
be 	filed at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time required 	for 	filing the document. 	The request must
indicate good cause for and, 	if known, 	the position of each other
party regarding the 	extension, 	and 	shall be 	accompanied by proof
of 	service of 	the request upon each party 	(California Code of
Regs., 	tit. 	8 7 	sec. 	32132).

Dismissal 	Letter 	- 	S-CO-278
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will become 	final when the time 	limits have expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Michael E. 	Gash
Regional Attorney
cc: 	Forrest D. 	Fauchier
Field 	Director
California 	School 	Employees Association
2501 West Shaw Avenue, 	Suite 	107
Fresno, 	CA 	93711
Attachment
MEG:er

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 21, 	1992
Timothy Gale 	Simeral
Re: 	Timothy Gale Simeral v. 	California 	School Employees
Association
Unfair Practice Charge No. 	S-CO-278
WARNING 	LETTER
Dear Mr. 	Simeral:
On January 24, 	1992, 	you filed a charge which appears to allege
that the California School Employees Association 	(CSEA), 	violated
its 	duty 	of 	fair 	representation guaranteed 	by Government Code
section 	3544.9 	(EERA) 	and thereby violated EERA section
3543.6(b). 	Specifically, 	you allege that CSEA violated its duty
of 	fair representation 	by mishandling a 	grievance you 	filed
regarding the 	timing of your bus 	run. 	My 	investigation revealed
the 	following 	information.
In early December, 	1989, 	you applied for the Jerseydale Bus
Drivers 	position which was 	advertised at 	6.75 	hours 	per day. 	On
or about February 5, 	1990, 	you received a 	letter from
Administrative Assistant, 	Becky Rauch 	informing you that 	the
advertisement 	for 	the 	Jerseydale 	Run had been changed 	to 	a
Triangle/Junior High Run and 	a Mariposa Pines 	Run. 	From about
December, 	1989 until April, 	1990 you complained to CSEA
Representative, 	John Moseley and Director of Transportation, 	Joe
Babcock about the time 	it was 	taking to 	fill 	the position. 	In
April, 	1990 	you received the 	Triangle/Junior High Run which was
advertised 	for 	5.5 	hours per day. 	After working the
Triangle/Junior 	High 	Run 	for 	about 	two weeks 	you 	informed 	Bill
Loucks 	that 	it was 	taking more 	time 	than 	5.5 	hours 	to 	complete
the bus route.
On September 4 	1990, 	you wrote to Moseley and informed him that
you were 	starting 	a 	new 	school 	year 	and working well 	over the 	5.5
hours 	per day on your bus 	route. 	You 	also 	asked 	for assistance
to 	received payment 	for the 	hours 	you have worked over 	5.5 	hours
per day. 	On or about September 24, 	1990, 	you wrote Director
-----

Warning Letter - 	S-CO-2 78
Page 2
Babcock about 	your bus 	route 	and 	informed him 	it was 	taking
longer then the time advertised 	for the route.
On October 	12, 	1990, 	you had a meeting with Moseley, 	Babcock,
Barbara 	Parker and Bill 	Loucks 	about 	the 	time of your bus 	route.
It was 	decided at the 	end of 	this 	meeting that an independent
driver would do the run. 	On or about November 	1, 	1 9 9 0 , 	Dean
Fogh arrived at 	the Bus 	Garage 	to ride with you during your bus
route. 	You called Moseley and told him about 	Fogh 	and Moseley
told you to 	let him ride along.
In December, 	1990, 	you were 	informed by CSEA Chapter 609
President, 	John Stelling that 	the 	Executive Committee wanted to
meet with you. 	On or about February 	7, 	1991, 	you received a
letter 	from Superintendent 	Sam B. 	Hill 	informing you that there
was 	insufficient 	evidence 	to 	support 	your proposal 	to 	increase
the time allocated to the bus 	route 	from 5.50 	to 	6.25 	hours. 	He
also 	informed you that 	the 	consensus 	of 	opinion was 	that the
route 	could be 	regularly driven 	in 	5.75 	hours 	and that you would
be paid 	for the 	extra 	.25 	hours 	from the 	first date you 	started
driving the bus 	route 	in April 	1990. 	You were subsequently paid
for the 	extra 	.25 	hours 	from the date you 	first 	started driving
the bus route. 	On February 	19, 	1991 	you wrote a letter to
Moseley regarding your bus 	route 	and 	Moseley responded 	to 	your
letter on February 2 7, 	1991.
On May 	10, 	1991 	and June 26, 	1991 	you met with Babcock regarding
his 	refusal 	to 	approve the 	extra 	time you worked 	on your bus
route. 	On or about July 	10, 	1991, 	you filed a grievance
regarding this matter. 	On or about July 22, 	1991, 	your grievance
was 	denied.
On July 30, 	1991, 	a bus run to determine the length of time
necessary to drive a 	school 	bus 	over your route was held. 	Chris
Corea 	conducted 	the 	run and determined 	five 	hours 	and 	forty-five
minutes 	as 	the total 	time to drive the bus 	routes.
On or about August 	13, 	1991, 	Moseley sent a 	letter to
Superintendent Hill, 	which 	informed him that based on Corea's
letter your bus 	route would 	be 	5.75 	hours 	and 	your 	grievance
regarding 	that 	run would be 	closed.
Based on the allegations 	set 	forth above, 	I 	find that you have
failed 	to 	state 	a prima 	facie 	violation 	that 	CSEA violated 	its
duty 	of 	fair 	representation guaranteed 	by 	EERA 	section 	3544.9 	and
thereby violated EERA section 	3543.6(b).

Warning Letter - 	S-CO-2 78
Page 3
Charging Party has 	alleged that CSEA, 	the 	exclusive
representative denied Charging 	Party the 	right 	to 	fair
representation 	guaranteed by 	EERA 	section 	3544.9 	and 	thereby
violated 	section EERA 3543.6(b). 	The duty of 	fair representation
imposed on the 	exclusive 	representative 	extends 	to 	grievance
handling. 	Fremont Teachers Association 	(King) 	(1980) 	PERB
Decision No. 	125; 	United Teachers of Los Angeles 	(Collins) 	(1983)
PERB Decision No. 	258. 	In order to state a prima 	facie violation
of this 	section of the EERA, 	Charging Party must 	show that the
Association's 	conduct was arbitrary, 	discriminatory, 	or in bad
faith. 	In United Teachers of Los Angeles 	(Collins), 	Id., 	the
Public 	Employment Relations Board 	(PERB) 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a 	grievance does 	not
constitute 	a breach of 	the union's 	duty.
A union may 	exercise 	its 	discretion to
determine how far to pursue 	a grievance 	on
the employee's behalf as 	long as 	it does 	not
arbitrarily 	ignore 	a meritorious 	grievance 	or
process 	a 	grievance 	in a perfunctory 	fashion.
A union 	is 	also not 	required to process 	an
employee's 	grievance 	if the 	chances 	for
success 	are minimal.
In order to 	state 	a prima 	facie 	case of 	arbitrary 	conduct
violating the duty of 	fair representation, 	a Charging Party:
. 	. 	. must, at a minimum, 	include an
assertion of 	sufficient 	facts 	from which 	it
becomes 	apparent how or 	in what manner the
exclusive 	representative's 	action 	or 	inaction
was without a rational basis 	or devoid of
honest 	judgment. 	Reed 	District 	Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
Your 	charge 	as 	currently written 	fails 	to 	assert 	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. 	Therefore, 	your

Warning Letter 	- 	S-CO-278
Page 4
charge 	fails 	to 	state a prima 	facie violation of 	the duty of 	fair
representation.
For these reasons, 	the charge as presently written does 	not 	state
a prima facie case. 	If there are any factual inaccuracies 	in
this 	letter or any additional 	facts 	that would correct 	the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The amended 	charge 	should be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge. 	contain all 	the facts 	and allegations you wish to make,
and must be 	signed under penalty of perjury by the 	charging
party. 	The 	amended charge must be 	served on the 	respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge or withdrawal 	from you before
February 28, 	1992, 	I shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney