Associated Pomona Teachers (PERB 0981E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
AUBREY SIZEMORE,
Charging 	Party,
v.
ASSOCIATED 	POMONA TEACHERS,
Respondent.
Case No. 	LA-CO-597
PERB Decision No. 	981
March 12, 	1993
Appearance: 	Aubrey Sizemore, 	on his 	own behalf.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Aubrey Sizemore 	(Sizemore)
to a Board agent's 	dismissal 	(attached hereto) 	of his unfair
practice 	charge. 	In his 	charge, 	Sizemore alleged that 	the
Associated Pomona Teachers violated section 3543.6(b) 	of 	the
Educational 	Employment Relations Act 	(EERA)1 by failing to pursue
his 	grievance 	to arbitration.
The 	Board has 	reviewed 	the warning and dismissal 	letters,
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6(b) 	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.

the 	original 	and amended charge, 	Sizemore's 	appeal 	and the 	entire
record in this 	case. 	The Board 	finds 	the Board agent's 	dismissal
to be 	free 	of prejudicial 	error and adopts 	it 	as 	the decision of
the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-597 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Hesse 	joined 	in 	this 	Decision.
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	2

STATE OF CALIFORNIA 	PETE W I L S O N , Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 27, 	1992
Aubrey 	Sizemore
Re: 	DISMISSAL AND REFUSAL 	TO ISSUE COMPLAINT
Unfair Practice Charge No. 	LA-CO-597
Aubrey 	Sizemore v. 	Associated 	Pomona 	Teachers
Dear Mr. 	Sizemore:
I 	indicated to you, 	in my attached letter dated October 	7, 	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 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless 	you amended 	the
charge 	to 	state 	a prima 	facie 	case or withdrew 	it prior 	to
October 	16, 	1992, 	the charge would be dismissed.
On October 	19, 	1992, 	I 	received from you an amended charge. 	The
amended charge does not, 	however, 	contain significant additional
factual 	allegations. 	It 	is 	still 	not apparent how the
Association's 	conduct 	in representing you, 	within the 	six months
prior to the 	filing of your charge, 	was 	arbitrary, 	discriminatory
or 	in bad 	faith. 	Therefore, 	I 	am dismissing the 	charge based on
the 	facts 	and reasons 	contained 	in my October 	7 	letter.
Right 	to Appeal
Pursuant to 	Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code 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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	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
(

Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CO-597
Page 2
If you 	file a timely appeal of 	the refusal 	to 	issue a complaint,
any 	other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code 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 Cal. 	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 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each 	other party regarding the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
~J_Ofl(LBy Thomas 	J.Allen
Regional 	Attorney
thomas J. alle
Attachment
cc: 	Charles R. 	Gustafson, 	Esq.
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 7, 	1992
Aubrey 	Sizemore
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-5 97
Aubrey 	Sizemore v. 	Associated 	Pomona 	Teachers
Dear Mr. 	Sizemore:
In the above-referenced charge, 	you 	allege 	that 	the Associated
Pomona Teachers 	(Association) 	denied you the 	right 	to 	fair
representation 	guaranteed by Government Code 	section 	3544.9 	of
the 	Educational 	Employment Relations Act 	(EERA) 	and 	thereby
violated section 3543.6(b).
My 	investigation of 	the 	charge reveals 	the 	following 	facts.
You 	are 	employed 	as 	a 	teacher by 	the 	Pomona Unified 	School
District 	(District) 	in a unit for which the Association is 	the
exclusive representative. 	On April 	23, 	1991, 	you were attacked
by a 	student. 	In your effort to 	stop the attack, 	you pushed the
student back, 	and 	in the process 	your hand 	struck the 	student 	in
the 	face.
You were 	told 	to 	meet with 	District 	Personnel 	Director 	Emmett
Terrell. 	Association Executive 	Director 	Tom 	Hollister 	attended
the meeting with you. 	At the meeting, 	Terrell placed you on paid
administrative 	leave. 	Hollister had 	nothing 	to 	say.
Three weeks 	later you 	and Hollister 	again met with Terrell.
Terrell 	assigned you to 	a different 	school. 	You voiced 	concern
about the 	school's bad reputation and 	stated, 	"I 	have a 	lot to
say about this." 	Hollister 	interrupted you, 	telling you to 	"just
don't 	say nothing." 	After the meeting with Terrell, 	you
expressed 	to 	Hollister 	your 	dissatisfaction 	and 	asked 	him 	to 	find
you a better position, 	but he 	just 	shook his 	head and 	laughed.
You met with 	members 	of 	the Association's 	Professional 	Rights 	and
Responsibilities 	(PR & R) 	Committee 	in mid-May of 	1991. 	The
Committee 	agreed with you 	that 	you had 	not 	been properly
represented. 	They 	yelled 	at 	Tom Hollister 	and 	told 	you 	that 	they
would 	get 	an 	attorney 	to 	defend 	you.
(

Warning 	Letter
LA-CO-597
10/7/92
Page 2
A 	few days 	later you 	received 	an 	anonymous 	threatening phone
call. 	The 	caller 	said he would 	"kick your ass." 	You recognized
the 	voice 	as 	that of Tom Hollister.
In August 	1991 	you met with Association attorney 	Robert
Lindquist, 	who 	asked whether the 	District had 	tried to do
anything else to you. 	When you 	said no, 	he told you to be
grateful and 	let 	it go.
On October 28, 	1991, 	you received a 	letter 	from Emmett Terrell,
giving you 	notice of an 	intent 	to 	suspend you 	for ten days
without pay. 	You went to Association President 	Sue Williams,
told her about your problems with Tom Hollister, 	and asked her 	to
represent you. 	She agreed, 	but when you and 	she met with Terrell
on or about November 	10, 	1991, 	she had nothing to 	say.
On January 	10, 	1991, 	you received a 	second notice of 	suspension.
You went back to 	Sue Williams, 	and 	she 	arranged 	a meeting 	for you
with the 	PR & 	R Committee 	about 	three weeks 	later. 	On March 	9,
1992, 	you 	received the 	following 	letter 	from the Committee:
After 	long and careful 	consideration, 	the
PR & 	R Committee has 	decided not 	to 	recommend
that we pursue an arbitration at 	this 	time.
We 	have 	been advised 	that 	such 	an action
would 	fail.
Although 	the 	committee 	believes 	the
timeliness of the discipline 	is 	very
questionable, 	we 	feel 	this 	matter would best
be 	addressed 	by 	the 	bargaining 	team 	at 	the
negotiating 	table.
Associated 	Pomona 	Teachers 	has 	supported you
and will 	continue to 	support you as 	a
bargaining unit member. 	Please 	inform us 	if
there 	is 	any 	additional 	action on this
matter.
Based 	on the 	facts 	stated above, 	the 	charge does 	not 	state 	a
prima 	facie violation of 	the EERA, 	for the 	reasons 	that 	follow.
As 	Charging Party, 	you have alleged that the Association, 	as
exclusive 	representative, 	denied you the right 	to 	fair
representation 	guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby
violated 	section 3543.6(b). 	The duty of 	fair representation
imposed 	on 	the 	exclusive 	representative 	extends 	to 	grievance
handling. 	(Fremont Teachers Association 	(King) 	(1980) 	PERB
(

Decision No. 	125; 	United Teachers of Los Angeles 	(Collins) 	(1983)
PERB Decision No. 	258.) 	In order to state a prima facie
violation of 	this 	section of 	EERA, 	a Charging Party must 	show
that 	the 	exclusive 	representative's 	conduct was 	arbitrary,
discriminatory or 	in bad 	faith. 	In United Teachers 	of 	Los
Angeles 	(Collins). 	the Public Employment Relations Board stated:
Warning 	Letter
LA-CO-597
10/7/92
Page 3
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a grievance does 	not
constitute a breach of 	the union's 	duty.
[Citations.]
A union may 	exercise 	its 	discretion 	to
determine how far to pursue 	a 	grievance 	in
the 	employee's behalf 	as 	long as 	it does 	not
arbitrarily 	ignore 	a 	meritorious 	grievance 	or
process 	a 	grievance 	in a perfunctory 	fashion.
A union is 	also not required to process 	an
employee's grievance 	if 	the 	chances 	for
success are minimal.
In order to 	state a prima 	facie 	case 	of 	arbitrary 	conduct
violating the duty of 	fair representation, 	a Charging Party:
" . . . 	must 	at 	a 	minimum 	include 	an 	assertion
of 	sufficient 	facts 	from which 	it becomes
apparent how or 	in what manner the 	exclusive
representative's 	action or 	inaction was
without a 	rational 	basis 	or devoid of 	honest
judgment. 	(Emphasis added.)" 	[Reed 	District
Teachers Association. 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
It 	is 	not 	apparent how the Association's 	decision not 	to pursue
arbitration was without a rational basis, 	devoid of honest
judgment, 	discriminatory or in bad faith. 	On the contrary, 	it
appears 	that 	the decision was 	based 	on advice 	that 	arbitration
would 	fail.1
1There are 	no 	alleged 	facts which 	indicate 	a 	connection
between 	Tom 	Hollister's 	alleged 	threatening phone 	call 	and 	the
decision of 	the 	PR & R Committee 	not 	to pursue 	arbitration.
Hollister had 	no 	apparent 	authority 	from 	the 	Committee 	or 	the
Association to make the alleged phone 	call. 	On the 	contrary, 	the
(

Committee 	had 	allegedly 	already 	yelled 	at 	Hollister 	for 	not
defending you properly, 	and Association President 	Sue Williams
later agreed 	to represent you herself. 	Furthermore, 	your alleged
problems 	with 	Hollister 	occurred 	more 	than 	six 	months 	prior 	to
the 	filing of 	your charge 	(on May 	18, 	1992) 	and are therefore
outside 	the 	six-month 	statute 	of 	limitations 	established by 	EERA
section 3541.5(a)(1).
Warning 	Letter
LA-CO-597
10/7/92
Page 	4
For these reasons the charge, 	as presently written, 	does not
state a prima 	facie case. 	If there are any 	factual 	inaccuracies
in 	this 	letter 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled First Amended Charge.
contain all 	the 	facts 	and allegations 	you wish to make, 	and
be 	signed 	under penalty 	of perjury by 	the 	charging party. 	The
amended 	charge 	must 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 October 	16, 	1992, 	I
shall dismiss 	your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
thomas J . allen
Thomas J. 	Allen
Regional 	Attorney
(