California School Employees Association (Chacon) (PERB 1108E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ISMAEL T. 	CHACON,
Charging 	Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 	107,
Respondent.
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) 	Case No. 	LA-CO-643
PERB Decision No. 	1108
May 25, 	1995
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Appearance: 	Ismael T. 	Chacon, 	on his own behalf.
Before Carlyle, 	Johnson and Caffrey, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Ismael T. 	Chacon 	(Chacon)
of a Board agent's dismissal 	(attached) 	of his unfair practice
charge. 	In his 	charge, 	Chacon alleged that 	the 	California School
Employees Association and 	its 	Chapter 	107 violated his 	right 	to
fair 	representation guaranteed by 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA),1 and violated
section 3543.6(b)2 by 	failing 	to 	fairly represent 	him with
1EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	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.
2EERA section 3543.6 	states, 	in pertinent part:

respect 	to 	the El 	Rancho Unified School 	District's 	hiring 	of
substitute 	employees 	in 	certain job positions.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	Chacon's 	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-643 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Carlyle 	and Caffrey 	joined 	in 	this 	Decision.
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.
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STATE O F CALIFORNIA 	. 1 	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
Ismael T. 	Chacon
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-643, 	Ismael T. 	Chacon v. 	California School
Employees 	Association and 	its 	Chapter 	107
Dear Mr. 	Chacon:
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
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LA-CO-643
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
Attachment
cc: 	Arnie R. 	Braafladt, 	Staff Attorney
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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 19, 	1995
Ismael T. 	Chacon
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-643,
Ismael 	T. 	Chacon v. 	California School 	Employees Association
and 	its 	Chapter 	107
Dear Mr. 	Chacon:
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. 	In your charge, 	filed on October 14, 	1994, 	you
allege 	that 	in 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 	Lupe Marquez and Dina Navarro. 	At your request, 	Sol
Allen 	later provided 	the 	following 	summary 	of 	the 	discussion 	that
took place:
We discussed, 	again, 	the concerns you 	[Ismael
Chacon] 	and Lupe 	[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 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
, 	. 	,
STATE OF CALIFORNIA I

LA-CO-643
January 18, 	1995
Page 	2
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
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

LA-CO-643
January 18, 	1995
Page 3
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.]
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.
( 	(

LA-CO-643
January 18, 	1995
Page 	4
It 	is 	apparent 	that you 	feel 	that 	CSEA's 	agreement with 	the
District 	had unfavorable 	effects 	on you. 	It 	does 	not 	appear from
the charge, 	however, 	that CSEA's 	conduct was arbitrary,
discriminatory or 	in bad 	faith. 	As 	noted above, 	even poor
judgment 	on CSEA's 	part 	would not 	be 	enough to 	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
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