California School Employees Association, Chapter 413 (Gonzalez) (PERB 1212E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARGARITA GONZALEZ,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER 413,
Respondent.
Case No. 	LA-CO-734
PERB Decision No. 	1212
June 24, 	1997
Appearance: 	Margarita Gonzalez, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Margarita
Gonzalez 	(Gonzalez) 	of a Board agent's dismissal 	(attached) 	of
her unfair practice 	charge. 	In her charge, 	Gonzalez alleged that
the California School 	Employees Association, 	Chapter 413 	denied
her 	the 	right 	to 	fair 	representation guaranteed by 	the
Educational 	Employment Relations Act 	(EERA) 	section 3544.9 	and
thereby violated section 3543.6(b).1
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
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.
)
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________________ )

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..
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including Gonzalez' 	original 	and amended unfair practice 	charge,
the Board agent's 	warning and dismissal 	letters, 	and Gonzalez'
appeal. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	of 	prejudicial 	error and hereby adopts 	them as 	the 	decision
of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-734 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
22

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
April 8, 	1997
Margarita Gonzalez
Re: 	Margarita Gonzalez v. 	California School Employees
Association. 	Chapter 413
-----Unfair Practice Charge No. 	LA-CO-734
Dismissal 	and Refusal 	to Issue a Complaint
Dear Ms. Gonzalez:
In the above-referenced charge you allege the California School
Employees Association 	(CSEA) 	violated its duty of fair
representation. 	On March 28, 	1997, 	I issued a warning letter.
On April 2, 	1997, 	you filed your first amended charge. 	The first
amended charge indicates your telephone number is 	(790)744-7348.
On April 2, 	1997, 	I telephoned you at the 	(790) 	telephone number
which was not 	in service according to the recorded message. 	I
then called you at the 	(619) 	telephone number listed on your
original charge. 	I was able to contact you on April 3, 	1997, 	and
explained the amended charge did not correct 	the deficiencies
noted in the warning letter. 	My investigation revealed the
following information.
Your first amended charge states 	in its entirety:
In respond to your Warning Letter on 3-28-97
My concern is about: 	willful wanton inaction
of employee organization. 	(CSEA) 	The
following are provided to clarify, 	by use of
examples, 	the unjustify actions to refuse to
represent employee when I stay eligible 	for
representation but 	rather excessively and
made to suffer cruel and unusual punishment
to the extent contributed greatly ensue to
file 	this 	complaint 	on my own forward my
complaint. 	I am objecting to the use of
dishonest tactic in which 	(union) 	has
systematically frustrated the normal,
uniform, 	out of the ordinary/common/regular
process by 	"regressive" bargaining. 	This
social 	discourse between affected employee
and labor representative. 	One 	(1) 	(union)
not encourage dialogue between employee and
employer two 	(2) 	misconstrued as a callous
total 	disregard for and potential 	liability
three 	(3) 	unexpected interruptions of
/,_--- --
@

productive effort on the part of
representative. 	I, Margarita Gonzalez, 	as
the charging party, 	who have been deeply hurt
by the offending party- 	CSEA/Chapter 413 	less
than 7 months time, 	[sic]
LA-CO-734
Dismissal
April 9, 	1997
Page 2
On May 28, 	1996, 	the San Marcos Unified School District hired you
as a probationary employee. 	You worked as a noon-time supervisor
and a group leader. 	On July 29, 	1996, 	Dennis Stokes, 	Director of
Human Resources 	& Development, 	notified you by letter that your
employment with the District had been terminated.
On or about August 6, 	1996, 	you contacted CSEA. 	On or about
August 7, 	1996, 	you met CSEA Labor Representative, 	Jeanne Foster.
You indicated to Foster that you believed the District actions
were motivated by your union activities and/or your race. 	Foster
gave you the telephone numbers for EEOC, 	DFEH, 	agreed to contact
the District, 	and indicated she would get back to you. 	On August
7, 	1996, 	Foster met with Stokes who indicated you may be
receiving additional days of pay if a review of your timesheets
indicated as such. 	Stokes also provided your application for
union membership dated July 29, 	1996, 	to Foster. 	Foster
contacted you regarding the additional pay, 	discussed with you
the difference between resigning and termination. 	You did not
inform Foster of your decision at that time.
On August 8, 	1996, 	you submitted your resignation to the
District. 	On August 9, 	1996, 	Foster left a message or spoke with
you, 	and indicated the District was not accepting your
resignation because you were a probationary employee. 	Foster
also indicated you would receive a paycheck on August 31, 	1996,
if 	the District determined it 	owed you money based on hours
worked prior to your termination. 	Foster also told you she could
not do anything more for you.
On November 24, 	1996, 	you sent a fax to Foster. 	On December 3,
1996, 	Foster responded to your fax by telephone and reiterated
that 	she considered your case closed.
You have alleged that 	the 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)
(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
(

LA-CO-734
Dismissal
April 9, 199 7
Page 3
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.
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 charge does not present facts demonstrating CSEA acted in an
arbitrary, 	discriminatory, 	or bad faith manner. 	Although you
have provided 	facts 	indicating you spoke with CSEA Labor
Representative, 	Foster, 	you have not provided facts demonstrating
a prima facie 	case. 	The 	first amended charge indicated CSEA
refused to represent you, 	but failed to provide facts
demonstrating in what manner CSEA violated its duty of 	fair
representation. 	The facts 	indicate Foster met with you
immediately after you contacted CSEA, 	provided you with
information regarding your allegations of racial discrimination,
and met with the District 	representatives 	regarding possible
monies owed to you. 	Foster also contacted you with additional
information on August 9, 	1996, 	and responded to your November 24,
1996 fax on December 3, 	1996. 	The charge does not factually
demonstrate CSEA violated its duty of 	fair representation. 	Thus
your charge must be dismissed.
(

LA-CO-734
Dismissal
April 9, 	1997
Page 4
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must contain
the case name and number. 	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 Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Attention: Appeals Assistant
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
days following the date of service of the appeal. 	(Cal. 	Code
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 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 Regs., tit. 8, sec. 32132.)
(

LA-CO-734
Dismissal
April 9, 	1997
Page 5
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
Tammy L. Samsel
Regional Director
Attachment
cc: 	Madalyn J. 	Frazzini

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
PEAS
March 28, 	1997
Margarita Gonzalez
Re: 	Margarita Gonzalez v. 	California School Employees
Association. 	Chapter 413
Unfair Practice Charge No. 	LA-CO-734
Warning 	Letter
Dear Ms. Gonzalez:
In the above-referenced charge you allege the California School
Employees Association 	(CSEA) 	violated its duty of 	fair
representation. 	Your charge indicates messages may be 	left 	for
you at the following telephone number 	(619)744-7348. 	I 	tried to
contact you on March 17, 	1996, March 27, 	1997, 	and March 28,
1997. 	However, 	the telephone number indicated does not seem to
be connected to an answering service or machine. 	Thus, 	my
investigation has been limited to 	the allegation presented in
your charge.
Your charge states 	in its entirety:
I declare the following . 	. 	. Jeanne M.
Foster arbitrarily ignored the 	threatened
nature or dangerous description of the
termination letter, 	which constitute an
imminent danger for the protection of the
health, 	safety or welfare of the affected
employee. 	(Margarita Gonzalez, 	self). 	In
other words, 	Labor Relations Representative,
pretreatment of 	case value 	convey the 	idea
clearly would not be promoting 	the employee
right 	to ensure adequate 	communication
between employer and employee, 	including the
right to be free of discrimination. 	The
federal 	interpretive guidelines defines
dignity to mean that 	employer 	interaction
with employee affirm the 	rights 	(which assist
the 	employee to maintain and enhance employee
self-worth). 	Union inconsistent with this
activities, 	i.e. poor performance to provide
direct 	reporting when necessity arose 	to make
recommendations 	for revision to the
appropriate department where applicable. 	Her
instructions 	is offered with malicy and
------

selfish motives 	to the mutual advantage of
the employer and its employee, 	[sic]
LA-CO-734
Warning Letter
March 28, 	1997
Page 2
EERA § 3541.5(a) (1) 	provides the Public Employment Relations
Board shall not, 	"issue a complaint 	in respect of any charge
based upon an alleged unfair practice 	occurring more 	than six
months prior to the filing of the charge." 	It is your burden, 	as
the charging party to demonstrate 	the charge has been timely
filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.) 	You filed this charge on March 17, 	1997.
However, 	the charge does not include any reference to dates.
Thus, 	I cannot determine whether this charge is timely filed or
outside the jurisdiction of PERB.
PERB Regulation 32615(5) 	requires, 	unfair practice charges
include 	"a clear and concise statement 	of 	the facts and conduct
alleged to constitute an unfair practice."1 A charging party
should allege the 	"who, 	what, 	when, 	where, 	and how" of an unfair
practice. 	(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB
Decision 944.) 	Mere legal conclusions are insufficient. 	(See
State of 	California 	(Department 	of 	Food and Agriculture 	(1994)
PERB Decision No. 	1071-S.) 	The charge as presently written does
not provide 	facts 	indicating how CSEA violated its duty of 	fair
representation.
You have alleged that 	the 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)
(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
1PERB regulations are codified at 	California Code of
Regulations, 	title 8, 	section 31001 et seq.
(

LA-CO-734
Warning 	Letter
March 28, 	1997
Page 3
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.]
The charge does not present 	facts demonstrating CSEA acted in an
arbitrary, 	discriminatory, 	or bad faith manner.
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 April 4. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director