Oxnard Federation of Teachers (Torres) (PERB 1494E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EDWARD RUBEN TORRES,
Charging Party,
v.
OXNARD FEDERATION OF TEACHERS,
Res ondent.
Case No. LA-CO-1041-E
PERB Decision No. 	1494
July 	31, 	2002
Appearance: Edward Ruben Torres, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Edward Ruben Torres (Torres) of a Board agent's dismissal (attached) of
his unfair practice charge. The charge alleged that Oxnard Federation of Teachers (Federation)
violated the Educational Employment Relations Act (EERA)1 by breaching its duty of fair
representation in violation of Section 3546.3(b ).2 Torres alleged that the Federation violated
its duty of fair representation by failing to intercede with the Oxnard Union High School
1EERA is codified at Government Code section 3540 et seq.
2EERA 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.

District (District) on his behalf regarding alleged unfair treatment by his supervisors and the
District's subsequent termination
of
his employment. Following her investigation, the Board
agent dismissed the charge for failure to state a prima facie case.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, the warning and dismissal letters and Torres' appeal. The
Board finds the dismissal letter to be free
of
prejudicial error and hereby adopts it as the
decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1041-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Neimajoined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515 Ciay Street, Suite 220 I
Oakland, CA 94612
Telephone: (510) 622-1022
Fax: (510) 622-1027
December 5, 2001
Edward Ruben Torres
642 E. Clara Street
Port Hueneme, CA 93041
Re: 	Edward Ruben Torres v. Oxnard Federation of Teachers
Unfair Practice Charge No. LA-CO-1041-E
DISMISSAL LETTER
Dear Mr. Torres:
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 20, 2001. Edward Ruben Torres alleges that the Oxnard
Federation of Teachers violated the Educational Employment Relations Act (EERA) by
breaching its duty of fair representation.
I indicated to you in my attached letter dated July 30, 2001, 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 6, 2001, the charge would be dismissed.
On or about August 6, 2001, I granted you a one-week extension to file an amended charge.
On August 15, 2001, you requested Deputy General Counsel Robert Thompson disqualify me
from investigating your charge, citing my use of the term "Charging Party" and asserting that I
was not fairly investigating your charge. On August 17, 2001, Mr. Thompson informed you
that you did not follow proper PERB procedures in the filing of the request for disqualification.
Mr. Thompson further extended the deadline for filing an amended charge to August 20, 2001.
On August 20, 2001, you requested a further extension to file an amended charge, stating you
could not complete the amended charge while working on the disqualification request. 	Mr.
Thompson further extended this deadline to August 22, 2001. On August 22, 2001, you
telephoned me and requested an additional week to complete the amended charge. I granted
you another extension to August 27, 2001. On August 24, 2001, I denied your request for
disqualification.
On August 29, 2001, you filed a first amended charge. The amended charge reiterates facts
provided in the original charge and provides additional documentation and facts. 	As the

LA-CO-1041-E
December 5, 2001
Page 2
amended charge includes additional factual information, I will summarize the relevant facts
below.
You are employed by the Oxnard Union High School District as a Part-time, temporary teacher
at the Oxnard Adult School, where you taught English as a Second Language. As a certificated
employee, you are exclusively represented by the Oxnard Federation
of
Teachers.
On April 19, 2000, you sent a letter to Grace Tuazon, the principal's secretary at Oxnard Adult
School. The letter stated in relevant part:
Before I ask something
of
you, I'd like to share some background,
so you can better understand why I'm asking. You used to call
me to sub; and, since this proved so helpful at the end
of
the
month - since I only teach 12 hours - I thought: 	"I better be nice
to Grace, so that she'll call me as much as she can." So,
whenever you'd call, I'd try to let you know how much I
appreciated it, by saying things like: "Thank you for thinking
of
me, Grace!" And, I'd try to say it with genuine feeling so you
would understand that I really meant it.
Then something changed. You acted different, and started having
Rose or Cecilia call instead. At first I thought nothing
of
it. And
it certainly didn't bother me. After all, what does it matter who
makes the call? I'm grateful to be called.
Yet, despite this,
as
it continued, I started asking myself: 	"I
wonder how come?" And since I have no way
of
knowing why
you do what you do, unless you tell me, I said
to
myself: 	"I don't
know. But she must be feeling the need for distance, or she,
herself, would call like she used to." Then, to be on the safe side,
I concluded: 	"I better back off and not be so friendly or attentive.
I don't want her to stop calling because I'm not respecting her
nonverbal, or, maybe, even subconscious, cues for distance."
So I backed off, Grace, because I thought this is what you were,
maybe, subconsciously asking for. 	But, having done so, let me
share what this lead to by citing specific instances. Because I
interpreted your behavior as a request for greater distance and
less attentiveness·, it caused me to fell less certain about you how
to relate to you. And, as a consequence, there were times when
you walked by, or I past (sic) your desk, when I would have like
to have said: 	"Hi, Grace!" And talked a little bit. But, instead ofdoing so, I said nothing. Why? Because I was trying to give you
what I though you were requesting - by having others call me
instead of you - distance. Frankly, I didn't particularly like it. 	I

LA-CO-1041-E
December
5,
2001
Page 3
would have preferred to talk some. But I thought you were
asking for space, so I didn't do what I wanted. 	I did what I
thought you wanted, understand?
* 	* 	* 	* 	*
The truth is I was trying to give you what I thought your actions
were asking for, distance. 	Yet, after giving you what I thought
you were requesting, not only do you not call, nobody calls. So
obviously I misread your actions. And, quite possibly, you
misread mine, huh?
I said I had something to ask. Now that I've shared this, and you
can better understand what prompted my actions, please don't
harbor a grudge - and play with
my
income as a result
of
it.
Perhaps, it was a misunderstanding on my
part. But it certainly
wasn't disrespect, or a lack
of
gratitude for the help you send
mydirection whenever you are able, honest!
Yes, I've been distant. And it's been deliberate. But it isn't
because I started taking you for granted now that the other girls
were calling. As I've explained, I thought that the distance was
what you were asking for based on having them call me instead
of
you. But
if
I misread this, and offended you as a result
of
it,
I'm sorry. 	Truly, it was the last thing on my mind, particularly
when I like it so much when you call.
Ms. Tuazon took offense to the tone
of
the above quoted letter and turned it over to Principal
Pete Ortega. On April 24, 2000, you met with Mr. Ortega regarding the letter. During this
meeting, Mr. Ortega informed you that he, and Ms. Tuazon, considered the letter to be a form
of
sexual harassment, as the letter seemed to indicate a "relationship" between you and Ms.Tuazon, that did not exist. Additionally, Mr. Ortega explained to you how substitutes
arecalled so that you better understood the process.
On April 27, 2000, you sent a letter to Mr. Ortega requesting additional information and stating
the following with regard to Mr. Ortega's relationship with Ms. Tuazon:
My third request concerns you. And now don't you become
offended and think I am suggesting this is what I think you are
doing. Because I am making no such suggestion. I am simply
aware that you work much more closely with her than with me.
Therefore, I ask that you guard against the protective "Daddy-
Bear" syndrome. Had my intentions been mean spirited or
inappropriate I would have understood it. But since they are
clouded by financial duress, it occurs to me that her better

LA-CO-1041-E
December 5, 2001
Page 4
judgment may also have been clouded by emotional duress
stemming from a misinterpretation
of
what I was actually saying.
I mean, since she knew there was no relationship other than a
professional relationship, logically speaking, had her better
judgment not been eclipsed by the immediate shock
of
the
misunderstanding, she might have thought: 	"I must be
misreading this." And then I certainly wouldn't have given here
that in writing so she could give it to you, would
I?
	I mean, I
may have occasional lapses
of
better judgment, depending on the
circumstances, but I'm certainly not stupid enough to do
something like that. This in itself should set the matter straight.
On that note, then, I think this entire business needs to be
acknowledged as an honest misunderstanding on both our parts:
me for financial reasons and her for other ones, and them put (sic)
behind us. 	And I think you should be instrumental in helping this
to happen. Rather, than just supporting her, which is not to say
this is what I think you are doing. I'm saying guard against it
because you work so closely with her. Don't let this cloud your
judgment too. Because it's the last thing everybody needs.	
It
was
an honest mistake. And that's all it was. Thank you.
On April 28, 2000, Mr. Ortega issued you a disciplinary letter regarding the April 19, 2000,
letter. The disciplinary letter cautioned you to limit your conversations with Ms. Tuazon to
business only, and "avoid any further unbusinesslike contact with other personnel in the
school." You refused to sign this disciplinary letter, arguing that your conduct did not
constitute harassment.	
It
appears the matter was ultimately dropped, as the letter was
notplaced in your personnel file.
You contend this incident prompted Mr. Ortega to begin a campaign to discredit your teaching
performance. More specifically, you contend that Mr. Ortega ordered other administrators to
unfairly evaluate you, as your classes were observed on four occasions during the next eight
months. 	Although requested in my July 30, 2001, letter, you did not provide a copy
of anycontractual provisions regarding evaluations and observations, as such, it is impossible for me
to ascertain whether this conduct violates any contract or District policy.
On July 10, 2000, Assistant Principal John Grisafe observed your Beginning ESL class. 	On
July 13, 2000, Mr. Grisafe presented you with an evaluation and observation report. The
report states the following in the Recommendations section:
As mentioned in previous observations, Mr. Torres needs to vary
the instructional techniques he uses in his class. Shorter
instructional segments are strongly recommended. When using
the video, it should support the lesson at hand or the video subject
matter should be reinforced with further instruction. The
meaning of vocabulary in a lesson should be introduced,

LA-CO-1041-E
December 5, 2001
Page 5
reinforced, and checked for understanding through out the class
and for all the students. The four basic math functions are not
part
of
the ESL Beginning Low target topics.
You did not sign this observation report. On July 19, 2000, Mr. Grisafe observed your
classroom for a second time. On July 20, 2000, Mr. Grisafe sent you a note cautioning youagainst using the same techniques he had critiqued on July 13, 2000. On July 25, 2000, Mr.
Grisafe issued you a warning letter. The letter stated in relevant part:
When I stopped by your class on July 19, 2000, to check on your
enrollment, you where (sic) using the same technique as my last
observation. As you recall, one
of
the recommendation (sic)
of
that observation was to vary your technique. As I discussed with
you before, you needed to add two or three new techniques before
the end
of
the summer session. You need to vary the instruction
in your class. From what I saw Wednesday the 19 1\ 	it appears
that you are still not doing so.
In July 2000, you telephoned Federation Executive Director, Elaine Snyder. During this
conversation, you discussed with Ms. Snyder the two observations and the accompanying
memos. Ms. Snyder questioned how Mr. Grisafe could know what techniques you had used
during a two minute attendance count. You also discussed with Ms. Snyder the harassment
memo Mr. Ortega had prepared. Ms. Snyder refused to file a grievance over the harassment
memo, stating her belief that you should just follow the District's instructions regarding that
matter.
On August 16, 2000, Ms. Snyder accompanied you to a meeting regarding the July evaluations.
Although you both expected to meet with Mr. Grisafe, the meeting took place in Mr. Ortega's
office and was run by Mr. Ortega. It is unclear what the outcome
of
that meeting was,
but
it is
assumed that the evaluations remained in your personnel file.
On October 17, 2000, Mr. Grisafe observed your classroom again. 	On October 24, 2000, Mr.
Grisafe prepared an Evaluation and Observation Report which rated you as Satisfactory in four
of
seven categories. You were rated Need Improvement in the categories
of
Planning
Instruction, Assessing Student Leaming, and Understanding and Organizing Subject Matter.
In the recommendations section, Mr. Grisafe again noted that you needed to increase the
variety
of
techniques you used in class.
On October 25, 2000, Mr. Grisafe issued you a mandatory improvement plan, which identified
skills you needed to acquire. These skills included using additional instructional techniques
and checking for student understanding. Mr. Grisafe instructed you to prepare weekly lesson
plans that broke down, by 20 minute intervals, the lessons and technique you planned to use.
You were further instructed to tum in these lesson plans to Mr. Grisafe at the end of the week.
You refused to sign this improvement plan.

LA-CO-1041-E
December 5, 2001
Page 6
On November 3, 2000, you filed a written response
to
Mr. Grisafe's improvement plan. 	In
your response, you stated you belief that the District may not use prior evaluations in preparing
an improvement plan. You stated your belief that only the October 24, 2000, evaluation may
be considered in judging your performance, and as the October 24, 2000, observation was
better than the previous evaluation, you should not be subject to an improvement plan.
On November 20, 2000, you faxed a letter to Ms. Snyder regarding the October evaluation and
improvement plan. This letter references prior conversations you had with Ms. Snyder
regarding your work performance and evaluations. It appears from your correspondence that
Ms. Snyder instructed you to "go along" with the District's suggestions and fulfill the
requirements they asked you to fulfill. 	Additionally, you requested Ms. Snyder answer some
questions about the amalgamation
of
your evaluations. As stated in your original charge, Ms.
Snyder instructed you to follow their directions and stated she could not help you.
In November 2000, you spoke with the Federation's President regarding your evaluation and
improvement plan. However, the Federation again refused to assist you in this matter, stating
its belief that the District was acting within its contractual rights in issuing the evaluations and
improvement plan.
Beginning in December 2000, you complied with the District's improvement plan by supplying
Mr. Grisafe with lesson plans on a weekly basis. You continued to do so up until your
dismissal. However, you continued to discuss the matter with Ms. Snyder, who informed you
that the District's actions were consistent with relevant contractual provisions.
On January 11, 2001, Mr. Ortega observed your classroom. On January 17, 2001, Mr. Ortega
prepared an Evaluation and Observation Report that rated you Unsatisfactory in the categories
of
Engaging Student in Leaming, and Assessing Student Leaming. You were rated Needs
Improvement in the categories
of
Understanding and Organizing Subject Matter and Planning
Instruction. Mr. Ortega also made nine separate recommendations regarding your
performance. You refused to sign this report. During this meeting with Mr. Ortega, Mr.
Ortega referred to the May 2000 harassment incident and stated his belief that he knew
harassment when he saw it.
On January 18, 2001, Mr. Ortega sent you a letter regarding your employment. The letter
stated in relevant part:
After visiting your class on Thursday, January 11, 2001, I have
verified the initial evaluator's instructional concerns and
confirmed the lack
of
diversity in the utilization
of
different
instructional techniques.
Assessing student progress and checking for pupil understanding
remain major instructional concerns.

LA-CO-1041-E
December 5, 2001
Page 7
Although after repeated requests, you are now submitting lesson
plans, however, these lesson plans did not contain an objective.
The objective
of
each lesson is a critical element around which all
activities are developed and coordinated. In addition to an
adequate lesson objective, there was little evidence
of
any
teaching strategy recommended for Language Acquisition classes
such as TPR, the Natural Approach, or SDAIE Methodology.
Thus, due to limited instructional improvement, this letter is to
inform you that your services for the spring term
of
school year
2000-01 will not be required.
It appears you have no appeal rights under the contract as a temporary, part-time teacher. 	As
such, the Federation could not have filed a grievance on your behalf.
On January 24, 2001, you sent a letter to Ms. Snyder asserting the District was violating the
Civil Code by dismissing you for fraudulent reasons. Ms. Snyder did not respond to this letter.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie case
of
breach
of
the duty
of
fair representation, for the reasons provided below.
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b ).
In order to state a prima facie violation
of
this section
of
EERA, Charging Party must showthat the Respondent'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 omitted.]
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, CT A/NEA (Reyes) (1983)

LA-CO-1041-E
December 5, 2001
Page 8
PERB Decision No. 332,
p. 9,
citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
You contend the Federation acted arbitrarily and discriminatorily by refusing to represent you
with regard to your termination. However, as explained during our numerous conversations
and in my July 30, 2001, letter, the Federation may refuse to pursue a grievance
if
the union
makes an honest and reasonable determination that the grievance lacks merit. 	(AFSCME
Local 2620 (Moore) (1988) PERB Decision No. 683-S.) Herein, Ms. Snyder and other
Federation representatives were apprised
of
your situation and concerns, and determined that
the District's actions were consistent with the contract. Indeed, it does not appear that
in
your
communications with the Federation, you were able to point to a single contract provision that
prohibited the District's actions. As such, the charge fails to demonstrate the Federation's
rejection
of
your request was based on anything but an honest judgment regarding the
allegations.
You further contend the Federations actions were discriminatory. More specifically, you assert
the Federation discriminated against you because
of
your part-time temporary status.
	Youcontend:
I mean that whether a teacher is part-time or full-time, and
regardless
of
the contractual rights afforded by the district and
federation does not supersede nor negate those rights and
protections granted by the California Civil Code. The fact that a
teacher is part-time does not negate its lawful protection from
malice and fraud. 	Yet this is precisely the position the federation
took.
It appears you are contending the Federation discriminated against you by not upholding your
Civil Code rights prohibiting fraud and malice. However, the Federation does not owe you
such a duty. Since the duty
of
fair representation is limited to contractually based remedies
under the union's exclusive control, the Federation's duty does not extend to noncontractual
administrative remedies or judicial relief. (California Union
of
Safety Engineers (John) (1995)
PERB Decision No. I 064-S.) As such, the Federation is not obligated to represent you in
matters concerning civil rights violations or Education Code violations. 	(Greene
v.
Pomona
Unified School District (1995) 32 Cal.
,-<i~pp.
4 th 1216; San Francisco Classroom Teachers
Association (1985) PERB Decision No. 544.) As the charge fails to demonstrate the
Federation acted arbitrarily, discriminatorily or in bad faith, the charge fails to state a prima
facie case, and must be dismissed.

LA-CO-1041-E
December
5,
2001
Page 9
Right to Appeal
Pursuant to PERB Regulations, 1 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. (Regulation 32635(b).)
Service
1
,
\ll 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 Regulation 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. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
1 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1041-E
December
5,
2001
Page 10
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. (Regulation 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
___,__~'-------"-e-<.---'-._/4_~____,;,_._,_·
-	
By
Kristin L. Rosi
Regional Attorney
Attachment
cc: Lawrence Rosenzweig
KLR

STATE OF CALIFORNIA 	GRAY DA
VIS, Governor
PUBLIC ElVIPLOYMENT RELATIONS BOARD
:-.,
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R~(,'4,-,,_
~~	
San Francisco Regionai Office
l 515 Clay Street, Suite 2201
Oakland,
CA
946 l 2
Telephone: (510)
622-l
022
Fax: (5 l 0) 622-1027
"
".
,,
July 30, 2001
Edward Ruben Torres
642 E. Clara Street
Port Hueneme, CA 93041
Re: 	Edward Ruben Torres
v.
Oxnard Fed.
of
Teachers
Unfair Practice Charge No. LA-CO-1041-E
WARNING LETTER
Dear Mr. Torres:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 20: 2001. Edward Ruben Torres alleges that the Oxnard Fed.
of
Teachers violated the Educational Employment Relations Act (EERA)1 by failing to bargain
in good faith with the Oxnard Union High School District.
Investigation
of
the charge revealed the following. 	Charging Party was employed by the
Oxnard Union High School District (District) as a Part-time, temporary Teacher. As such,
Charging Party was exclusively represented by the Oxnard Federation
of
Teachers.
On April 19, 2000, Charging Party wrote a letter to his principal's secretary, Grace, apparently
asking for more substitute teaching hours. It appears Grace took offense to the tone
of
Charging Party's letter and turned the letter over to the principal. Charging Party's principal
began an investigation into the matter, suggesting the letter constituted unlawful harassment.
In May 2000, the principal drafted a letter
of
reprimand regarding Charging Party's letter.
Charging Party refused to sign the letter of reprimand, arguing his conduct did not constitute
harassment. It appears the matter was ultimately dropped, and no letter
of
reprimand was
placed in Charging Party's personnel file. 	Charging Party does not provide a copy
of
his letter
to Grace, nor does Charging Party provide a copy of the letter
of
reprimand he was requested
to sign.
Charging Party contends the principal then began a campaign to discredit his teaching
performance. During the next eight months, Charging Party's classes were observed four times
by the assistant principal, who noted several deficiencies in Charging Party's performance. 	It
is unclear whether such observations violate any contractual provisions, as Charging Party fails
1 BERA is codified at Government Code section 3540 et seq. The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1041-E
July 30, 2001
Page 2
to provide a copy
of
the relevant contractual provisions. 	At some unstated time during the
following months, Charging Party was placed on a mandatory improvement plan.
In July and August 2000, Charging Party spoke with Elaine Snyder, the Federation's Executive
Director regarding the alleged harassment Charging Party was subjected to. Ms. Snyder
refused to file a grievance on Charging Party's behalf and refused
to
speak to Charging Party's
principal, stating she believed Charging Party should just follow the District's instructions and
not make any more people mad.
In October 2000, Charging Party again spoke with Ms. Snyder about the harassment. 	Ms.
Snyder again stated she refused to assist Charging Party. In fact, Charging Party states,
I will say this for her, even though, by her own admission, it
wasn't right, she certainly was consistent in not helping me.
In November 2000, Charging Party spoke with the Federation's President. During this
conversation, Charging Party reiterated his request for representation regarding his negative
evaluations. However, the Federation again stated it believed the District was acting within its
contractual rights and refused to pursue the matter.
In December 2000, Charging Party again called Ms. Snyder regarding his negative evaluations
and the mandatory improvement plan. Ms. Snyder reiterated her earlier refusal
of
representation, stating that as a part-time temporary teacher, Charging Party did not have the
same contractual rights as other employees. Additionally, Ms. Snyder stated her belief that the
District's actions did not constitute a violation
of
the contract and, as such, the Federation
would not assist Charging Party.
On January 17, 2001, Charging Party was dismissed from his employment with the District.
On January 24, 200 I, Charging Party mailed a letter
to
Ms. Snyder regarding his termination.
Charging Party requested the Federation represent him in his appeal
of
the termination.
However, it appears the Federation did not respond
to
this letter.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation
of
the EERA, for the reasons provided below.
Initially, it must be noted that Charging Party alleges the Federation failed to bargain in good
faith with the District. However, Charging Party lacks standing to allege such a violation, as
the exclusive representative's statutory duty to negotiate is owed to the employer rather than to
employees. (Oxnard Educators Association (Gorcey et. al.) (1988) PERB Decision No. 664;
California State University (Wang) (1990) PERB Decision No. 813-H.) I will assume, instead,
that Charging Party wishes to allege the Federation breached its duty of fair representation
under Section 3543.6(b), and the charge will be analyzed as such.
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should

LA-CO-1041-E
July 30, 2001
Page 3
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
( 1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
In the case an alleged breach
of
the duty
of
fair representation, the statute
of
limitations begins
to run on the date the employee, acting with reasonable diligence, knew or should have known
that further assistance or response from the union was unlikely. 	(Los Rios Federation
of
Teachers (1991) PERB Decision No. 889.) Where a protracted course
of
conduct is involved,
the statute
of
limitations begins to run from the point at which any alleged injury to the union
member became fixed and reasonably certain. (Oakland Education Association (Freeman)
(1994) PERB Decision No. 1057.)
Herein, facts demonstrate that Charging Party knew
as
early as July 2000, that the Federation
would not assist him in this matter. Moreover, the Federation repeated its refusal in October,
November and December 2000. As such, Charging Party knew or should have known
in
the
fall
of
2000 that assistance or response from the union was unlikely. Therefore, Charging
Party's allegations occurring prior to January 20, 2001, are time barred,
as
they were filed more
than six months after the alleged unlawful conduct.
As such, only Charging Party's allegation that the Federation refused to assist him after his
termination is timely filed. 	Charging Party has alleged that the exclusive representative denied
Charging Party the right to fair representation guaranteed by EERA section 3544.9 and thereby
violated section 3543.6(b). In order to state a prima facie violation
of
this section
ofEERA,Charging Party must show that the Respondent's conduct was arbitrary, discriminatory or inbad 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 omitted.]
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.)"

LA-CO-1041-E
July 30, 2001
Page 4
[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.]
In analyzing whether an honest judgment has been made, PERB does not judge whether the
union's assessment was "correct," but only whether that judgment "had a rational basis, or was
reached for reasons that were arbitrary." (Sacramento City Teachers Association (1984) PERB
Decision No. 428.)
Facts provided demonstrate Ms. Snyder and other union officials listened to Charging Party's
requests on several occasions and engaged in numerous discussions with Charging Partyregarding his evaluations. Additionally, Federation representatives provided Charging Party
with clear and consistent reasons why they would not represent him or file a grievance on his
behalf. Although Charging Party does not agree with the Federation's rationale, such
disagreement does not rise to the level
of
a violation. As such, this allegation fails to state a
prima facie violation
of
the BERA.
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 that 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 have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative 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 6, 2001, I shall dismiss your charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L Rosi
Regional Attorney
KLR