American Federation of Teachers (Leptich) (PERB 1074E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELISA MARIA 	LEPTICH,
Charging 	Party,
v.
AMERICAN FEDERATION OF TEACHERS,
LOCAL 	2121,
Respondent.
Case No. 	SF-CO-472
PERB Decision No. 	1074
December 	8, 	1994
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Appearance: 	Elisa Maria Leptich, 	on her own behalf.
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Elisa Maria Leptich
(Leptich) 	of a Board agent's dismissal 	(attached) 	of 	the unfair
practice 	charge. 	In the 	charge, 	Leptich alleged that 	the
American Federation of Teachers, 	Local 2121 	(AFT), 	breached the
duty of 	fair representation 	in violation of 	section 3544.9 	of 	the
Educational 	Employment 	Relations Act 	(EERA)1 and thereby violated
section 3543.6(b)2.
EERA	1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government 	Code. 	EERA 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.
2Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:

The Board has 	reviewed Leptich's appeal, 	the warning and
dismissal 	letters 	and the 	entire 	record 	in this 	case. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision 	of 	the Board 	itself
consistent 	with 	the 	following 	discussion.
DISCUSSION
Leptich appealed 	the 	Board agent's 	dismissal 	of 	her 	charge.
She 	claims 	that her August 25, 	1994 amended charge must be
considered as part 	of her appeal. 	However, 	the warning letter
specifically 	stated 	that 	the 	amended 	charge 	be 	received 	or
withdrawn before August 	12, 	1994. 	The warning letter directed
Leptich as 	follows:
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 August 12. 	1994, 	I shall dismiss your
charge. 	[Warning letter, 	p. 	4.]
On August 9, 	1994, 	an extension of time to file the first
amended charge was granted to August 26, 	1994.
The 	timeliness 	of 	an amended 	charge 	is 	governed by 	PERB
Regulation 321353, 	which reads:
All 	documents 	shall 	be 	considered 	"filed"
when 	actually 	received by 	the 	appropriate
(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.
3PERB 	regulations 	as 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

PERB 	office before 	the 	close 	of business 	on
the 	last date 	set 	for filing or when sent by-
telegraph 	or 	certified 	or 	Express 	United
States mail 	postmarked not 	later 	than 	the
last 	day 	set 	for 	filing and addressed 	to 	the
proper PERB office. 	[Emphasis added.]
Although 	Leptich 	allegedly 	claims 	her 	first 	amended 	charge 	was
served by mail 	on AFT and the Board on August 	25, 	1994, 	it was
never 	received by 	the 	Board agent.
Leptich appealed 	the 	dismissal 	and nine days 	after all
filings 	on the appeal 	should have been completed, 	she 	submitted a
"request 	for remandment." 	No good 	cause 	has been shown 	to 	excuse
the 	delay 	in 	filing 	the 	amended 	charge 	or 	to 	justify 	the 	request
for 	remand. 	The 	charge was 	not 	timely amended and the 	request 	to
remand this 	case 	to 	the Board agent 	is 	denied.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-472 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Garcia 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
September 1, 	1994
Elisa Maria Leptich, 	Ph.D.
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
Elisa Maria Leptich v. 	AFT Local 	2121
Unfair Practice Charge No. 	SF-CO-472
Dear Dr. 	Leptich:
I 	indicated to you, 	in my attached letter dated August 	2, 	1994,
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
August 	12, 	1994, 	the charge would be dismissed. 	Your subsequent
request 	for an extension of 	time 	to 	respond was 	approved, 	and 	the
deadline was extended to August 26, 	1994.
I 	have 	not 	received 	either 	an amended 	charge 	or a 	request 	for
withdrawal. 	Therefore, 	I am dismissing the 	charge based on the
facts and reasons 	contained 	in my August 	2, 	1994 	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
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

C
Dismissal 	Letter
SF-CO-472
September 1, 	1994
Page 2
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
By
Les 	Chisholm
Regional 	Director
Attachment
cc: 	Robert J. 	Bezemek
(
By-----~----

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
August 2, 	1994
Elisa Maria Leptich, 	Ph.D.
Re: 	WARNING LETTER
Elisa Maria Leptich v. 	AFT Local 	2121
Unfair Practice Charge No. 	SF-CO-472
Dear Ms. 	Leptich:
The 	above-referenced charge, 	filed with 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	on July 12, 	1994, 	alleges that
AFT 	Local 	2121 	breached 	its 	duty 	of 	fair 	representation 	toward
you 	in violation of Government 	Code 	sections 	3544.9 	and
3543.6(b).1
The 	facts 	pertinent 	to an analysis 	of 	this 	charge are as 	follows.
You were 	employed by the 	SFCCD 	for 	some 	20 	years but 	classified
as a part-time, 	temporary teacher without 	tenure. 	Your position
was 	included 	in a bargaining unit 	for which AFT Local 	2121 	(AFT)
is 	the 	exclusive representative. 	For the 	five-years preceding
the 	Spring 	1992 	semester your assignment 	was 	in 	the Recreation
Center 	for 	the Handicapped. 	While 	so employed, 	you had initiated
grievances 	and 	filed other 	complaints 	alleging 	illegal 	practices
by the 	department. 	In December 1991 you 	filed a 	complaint with
the 	SFCCD Affirmative Action Office 	alleging 	discrimination based
on handicap, 	physical 	or mental disability. 	On January 7, 	1992,
AFT 	filed 	a 	grievance 	protesting your 	reassignment 	to 	a 	different
program and alleging 	that 	the 	reassignment 	constituted 	reprisal
in violation 	of 	the written agreement 	between SFCCD and AFT.
That 	grievance was 	denied by SFCCD.
Following 	the 	Spring 	1992 	semester, 	you were not 	given an
assignment 	for the 	Fall 	1992 	semester and were, 	in effect,
terminated by SFCCD. 	AFT 	filed 	three 	additional 	appeals 	or
grievances 	on your behalf 	regarding both personnel 	file 	issues
1An identical 	charge 	(SF-CE-1725) 	has been 	filed against 	the
San Francisco Community College District 	(SFCCD), 	also known as
City College 	of 	San Francisco. 	Alleged violations 	of Government
Code 	section 	3543.5 	are 	properly analyzed 	in 	that 	case 	rather
than the 	instant 	charge. 	In addition, 	the 	facts 	alleged do not
warrant 	analysis 	under 	the 	Higher 	Education 	Employer-Employee
Relations Act 	(Government Code section 3560 	et 	seq.) 	or the Ralph
C. 	Dills Act 	(Government 	Code section 3512 	et 	seq.) 	as no party
to either 	case 	is under the 	jurisdiction of 	those provisions.

Warning 	Letter
SF-CO-472
August 2, 	1994
Page 2
and the 	termination itself, 	and you 	filed one 	"no 	reprisal"
grievance yourself. 	Under the written agreement, 	only the 	"no
reprisal" 	grievance 	over your 	termination 	could be 	taken 	to
binding 	arbitration by AFT.
SFCCD 	denied all 	grievances 	and appeals.2 By 	letter dated
September 1, 	1993, 	and with a two-plus pages 	explanation
attached, 	AFT advised you of 	a 	recommendation being made 	to 	its
executive board to not pursue 	the 	termination or 	"no 	reprisal"
grievance 	to 	arbitration.3 The 	executive 	board 	approved 	the
recommendation on September 	14, 	1993 	and you were 	so advised.
You 	currently have pending before 	the 	Unemployment 	Insurance
Appeals 	Board and Workers' 	Compensation Appeals 	Board 	(WCAB)
matters pertaining 	to your 	former employment 	with SFCCD. 	A WCAB
judge 	issued an order 	in 	February 	1994 	that 	the 	defendant 	in 	that
action produce a 	complete 	copy of 	your personnel 	file 	and other
information.
By letter dated May 6, 	1994, 	AFT advised you 	that your membership
had been 	terminated due 	to 	lack of 	eligibility. 	The 	letter
explained 	that membership 	in 	the 	local 	is 	open only to 	SFCCD
faculty and retired members 	and that, 	since all 	recourse 	to
appeal 	your 	termination had been exhausted, 	you 	are no 	longer
eligible. 	By letter dated May 17, 	1994, 	AFT indicated that 	it
does 	not 	belief 	the WCAB 	judge's 	order 	to 	require 	any production
of 	records 	on their part.
Discussion
The Educational Employment Relations Act 	(EERA) 	specifies 	as a
jurisdictional 	matter at 	Government 	Code 	section 	3541.5(a)(1)
that 	PERB 	shall not 	issue 	a 	complaint 	concerning 	"any 	charge
based upon an alleged unfair practice 	occurring more 	than 	six
months 	prior to the 	filing of 	the 	charge."
Your employment with the 	SFCCD was 	terminated 	in 	the 	Fall 	of 	1992
and grieved by AFT in November 	1992. 	The 	grievance procedure 	was
exhausted with AFT's 	decision 	in September 	1993 	not 	to pursue 	the
grievance 	to arbitration. 	Thus, 	even allowing tolling of all
2Copies 	of 	the SFCCD 	responses were provided to you by AFT.
3Earlier, 	an AFT attorney had written to you regarding an
assessment 	of 	the likelihood, 	or lack thereof, 	of prevailing 	in
an appeal 	such as yours.
(

Warning 	Letter
SF-CO-472
August 2, 	1994
Page 3
time prior to September 14, 	1993,4 any unfair practice 	charge
over the 	termination itself 	or AFT's 	discharge 	of 	its 	duty to
represent 	you 	concerning 	the 	termination, 	would have had to be
filed no later than. March 1994. 	As noted, 	this 	charge was not
filed until 	another 	four months 	had passed.
The 	duty of 	fair 	representation 	imposed 	on 	the 	exclusive
representative 	extends 	to grievance 	handling.5 (Fremont 	Teachers
Association 	(King) 	(1980) 	PERB Decision No. 	125; 	United Teachers
of Los 	Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.) 	In 	.
order to state a prima 	facie violation of 	this 	section of 	EERA,
Charging 	Party must 	show that 	the Association's 	conduct 	was
arbitrary, 	discriminatory or in bad 	faith. 	In United Teachers
of Los 	Angeles 	(Collins). 	the Public Employment Relations Board
stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
. 	judgment 	in handling a grievance does not
constitute a breach of 	the union's duty.
[Citations.]
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.
4EERA section 3541.5(a)(2) 	provides 	that 	the 	six-month
limitation 	is 	tolled 	"during 	the 	time 	it 	took 	the 	charging party
to 	exhaust 	the 	grievance machinery," 	referring specifically to
any 	grievance machinery 	included 	in an agreement 	between a public
school 	employer and 	exclusive 	representative.
5The 	duty of 	fair 	representation does 	not 	extend 	to a 	forum,
such as workers' 	compensation appeals, 	that has no connection
with collective bargaining, 	i.e., 	where an employee has
individual 	rights 	unconnected with 	negotiating 	or 	administering 	a
collective bargaining agreement. 	See, 	for example, 	Los Rios
College Federation of Teachers. 	Local 2279. 	CFT/AFT. 	AFL-CIO
(Deglow) 	(1993) 	PERB Decision No. 	992 and California State
Employees' 	Association 	(Parisi) 	(1989) 	PERB Decision No. 	773-S.
(
- 	- 	.. ---------

Warning 	Letter
SF-CO-472
August 2, 	1994
Page 	4
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.)
The 	facts alleged here, 	even if 	timely considered, 	would not
support 	a 	finding 	that AFT's 	conduct was 	arbitrary, 	"without 	a
rational 	basis 	or devoid of 	honest 	judgment."
The 	only, allegation which does 	fall within the 	six-month period
concerns 	the 	notice 	of 	your 	termination 	from membership 	from AFT
which came 	in May 1994. 	EERA section 3543.1(a) 	provides 	in
pertinent 	part 	that
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding who may
join and may make 	reasonable 	provisions 	for
the 	dismissal 	of 	individuals 	from membership.
A policy which 	requires 	that 	a person be 	employed within 	the 	unit
represented by an exclusive 	representative 	does 	not 	facially
violate 	the 	concept 	of 	"reasonable 	restrictions" 	on membership
and 	distinguishes 	the 	instant 	case 	from 	that 	considered by 	the
Board 	in 	California Association 	of 	Psychiatric 	Technicians 	(Long)
(1989) 	PERB Decision No. 	745-S.
Summary
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 August 	12. 	1994. 	I
(

Warning 	Letter
SF-CO-472
August 2, 	1994
Page 5
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	ext. 	359.
Sincerely,
Les 	Chisholm
Regional 	Director
(