California School Employees Association (Marquez) (PERB 1097E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GUADALUPE B. 	MARQUEZ,
Charging 	Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 107,
Respondent.
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) 	Case No. 	LA-CO-642
PERB Decision No. 	1097
May 	3, 	1995
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Appearance: 	Guadalupe B. 	Marquez, 	on his own behalf.
Before Blair, 	Chair; 	Johnson and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Guadalupe B. 	Marquez
(Marquez) 	of a Board agent's 	dismissal 	(attached hereto) 	of his
unfair practice charge. 	In his 	charge, 	Marquez alleged that 	the
California School 	Employees Association and 	its 	Chapter 	107
violated 	his 	right 	to 	fair 	representation guaranteed under
section 3544.9 	of 	the 	Educational 	Employment Relations Act
(EERA), 	thereby violating EERA section 3543.6(b).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
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.
Section 3543.6 	states, 	in pertinent part:
(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 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	and Marquez' 	unfair
practice 	charge 	and appeal.
The 	Board 	finds 	the warning and dismissal 	letters 	to be 	free
of prejudicial 	error and adopts 	them as 	the decision of 	the Board
itself.
The unfair practice 	charge 	in Case No. 	LA-CO-642 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Johnson 	joined 	in 	this 	Decision.
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- STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 31, 	1995
Guadalupe B. 	Marquez
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-642, 	Guadalupe B. 	Marquez v. 	California
School 	Employees Association and 	its 	Chapter 	107
Dear Mr. Marquez:
In 	the 	above-referenced charge, 	you allege 	that 	the 	California
School 	Employees Association and its 	Chapter 	107 	(CSEA) 	denied
you the 	right 	to fair representation, 	in violation of 	the
Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated January 	19, 	1995,
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
January 26, 	1995, 	the charge would be dismissed. 	I later
extended the deadline to January 30, 	1995.
On January 31, 	1995, 	I 	received from you an amended charge. 	The
amended charge still 	does not allege 	facts, 	however, 	from which
it 	appears 	that 	CSEA's 	conduct was arbitrary, 	discriminatory or
in bad 	faith. 	I 	am therefore 	dismissing 	the 	charge 	for the
reasons 	contained 	in my January 	19 	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

LA-CO-642	. . . .
January 31, 	1995
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
BY _ ~
THOMAS J. 	ALLEN
Regional 	Attorney
By
Attachment
cc: 	Arnie R. 	Braafladt, 	Staff Attorney

STATE OF CALIFORNIA
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 19, 	1995
Guadalupe B. 	Marquez
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-642,
Guadalupe B. 	Marquez v. 	California School Employees
Association and 	its 	Chapter 	107
Dear Mr. Marquez:
In 	the above-referenced charge, 	you allege 	that 	the 	California
School 	Employees Association and its 	Chapter 107 	(CSEA) 	denied
you the 	right 	to fair representation, 	in violation of 	the
Educational 	Employment Relations Act 	(EERA).
My 	investigation of 	the 	charge 	reveals 	the 	following 	relevant
facts.
You are 	employed by the 	El 	Rancho Unified School 	District
(District) 	in a unit 	for which CSEA is 	the exclusive
representative. 	CSEA policy dictates 	that 	CSEA shall 	not 	approve
any modification of 	the 	collective 	bargaining 	agreement 	without
formal 	ratification. 	CSEA policy 	further 	states 	that 	individual
reclassifications 	shall 	not 	be 	considered modifications 	subject
to 	ratification 	"unless 	they would have 	a 	generalized 	effect 	on
the bargaining unit(s), 	as determined by the 	Field Director."
The 	policy 	also 	states 	that 	settlements 	resulting 	from grievance
procedures 	shall 	not 	be 	considered modifications 	subject 	to
ratification.
In your charge, 	filed on October 14, 	1994, 	you allege that 	in
late April 	or May 	1994 	you became 	aware 	of 	certain positions
which, 	with CSEA's agreement, 	were 	filled without being posted.
On May 25, 	1994, 	you attended a meeting 	that 	included District
Personnel Director Al Ogas, 	CSEA Representative Sol Allen, 	and
CSEA members 	Ismael 	Chacon and Dina Navarro. 	At 	Ismael 	Chacon's
request, 	Sol Allen later provided the 	following summary of 	the
discussion 	that 	took place:
We discussed, 	again, 	the concerns you 	[Ismael
Chacon] 	and Lupe 	[Guadalupe Marquez] 	had
expressed about 	the way 	in which Sam Serrano,
Gil Baca, 	Bill Gow and Ron Rulison were
"promoted" 	into higher-paying positions. 	Al
Ogas went 	through the 	circumstances, 	starting
with the promotion of Ron Sherman, 	which
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LA-CO-642
January 19, 	1995
Page 	2
created a 	"domino effect" 	as 	Gil 	Baca was
placed 	in Ron's 	former position, 	Sam Serrano
in Gil's 	former slot, 	and so on. 	Al
explained that 	all 	this 	had occurred by-
directives 	from John Sherman, 	the former
superintendent, 	and I explained how, 	after
these 	individuals 	had been 	ordered 	to work
out-of-class 	for over 18 months, 	CSEA brought
the 	issue 	to the negotiations 	table as 	a
potential 	complaint/grievance 	accusing 	the
district 	of violating 	their right 	to 	receive
equal pay for equal work, 	and how, 	to resolve
CSEA's 	complaint, 	the district 	agreed to
reclassify Mesrs. 	[sic] 	Serrano, 	Gow and
Rulison 	to 	the 	appropriate higher-level
positions 	recognizing 	the 	fact 	that 	they had
worked 	in 	the 	higher-level 	positions 	long
enough 	to 	have 	passed a probationary period
by then, 	and had been doing so without
receiving a single 	dime more 	for 	their
efforts. 	I am sure you would agree 	that 	this
was 	a 	just 	and 	fair way 	to 	compensate 	them
for their efforts.
Lupe asked 	if 	Ron Rulison had 	ever passed a
test 	for Maintenance Worker III. 	Al 	Ogas
explained that, 	as 	Ron had been working out-
of-class 	as a Maintenance Worker 	II 	for over
18 months already, 	a 	fact which the district
had already acknowledged, 	essentially Ron had
demonstrated 	through performing 	the 	duties 	of
a Maint. 	Worker 	II 	sufficient 	competence
which would mean no 	test 	would be given.
Also, 	it 	is important 	to note 	that this 	issue
was most unusual, 	as 	it arose 	from all 	three
unit members being 	forced to work out-of-
class 	and a grievance 	created by 	the
district's 	actions 	which CSEA moved 	to
resolve at 	the bargaining table.
Al 	Ogas 	assured us 	that 	the 	district 	had
changed 	its methods 	to prevent 	a 	reoccurrence
of 	these circumstances 	in the future, 	and
then explained 	the usual 	process 	for 	filling
vacancies, 	per the contract provision.
Al 	Ogas 	also 	responded to Lupe's and your
questions about 	the 	limits 	on the use of
substitutes 	in general, 	and that 	the district
and CSEA were 	in 	contact 	on 	limiting use 	of
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LA-CO-642
January 19, 	1995
Page 3
substitutes 	as 	provided by 	Education Code
Section 45103 	(refer 	to 	copies 	sent 	to Lupe
of 	this 	law by Labor Relations 	Representative
Danny Torres 	of 	the 	Rancho 	Cucamonga 	Field
Office on July 6, 	1994) .
Al also indicated that John Dominguez, 	Jr.
was 	a substitute who has 	filled 	in for
temporary vacancies 	of 	permanent 	unit members
in the warehouse as 	a 	custodian and has 	not
exceeded 195 days of 	service; 	Al went on to
say that 	the district was making 	sure 	to
"break" 	service of all 	of 	its 	substitutes 	so
as not 	to violate Section 45103 	of the Ed.
Code.
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 allege that CSEA, 	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 and
negotiations. 	(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, 	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:
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.
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, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
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LA-CO-642
January 19, 	1995
Page 4
An 	exclusive 	representative 	is 	not 	expected or 	required 	to
satisfy all members 	of 	the unit 	it 	represents, 	and the duty of
fair 	representative 	"does 	not mean that 	[an exclusive
representative] 	is 	barred 	from making 	contracts 	which may have
unfavorable 	effects 	on some members." 	Steele v. 	Louisville 	&
N.R.R. 	(1944) 	323 U.S. 	192 	[15 LRRM 708, 	712], 	quoted in Redlands
Teachers Association 	(1978) 	PERB Decision No. 	72.
It 	is apparent 	that you 	feel 	(1) 	that 	CSEA's agreement with the
District 	had unfavorable 	effects 	on you and 	(2) 	that 	CSEA should
at 	least 	have 	determined 	that 	the agreement had a generalized
effect 	on 	the 	bargaining unit and 	therefore 	subjected 	it 	to
formal 	ratification. 	It 	does not appear 	from the 	charge,
however, 	that either the agreement 	itself, 	or the determination
not 	to 	seek 	formal 	ratification, 	was arbitrary, 	discriminatory or
in bad 	faith. 	As 	noted above, 	even poor judgment 	on these
matters 	on 	CSEA's 	part 	would not be 	enough establish a violation
of 	its 	statutory duty.
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 January 26, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
(