California School Employees Association (Dyer) (PERB 0342E)

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STATE OF CALIFORNIA

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

THERESE M,. DYER,

Charging Party, Case No. SF-CO-180

Vv. PERB Decision No. 342

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION, September 2, 1983

Respondent.

Appearances: Therese M. Dyer, representing herself.

Before Gluck, Chairperson; Jaeger and Morgenstern, Members.
DECISION

JAEGER, Member: Therese M, Dyer excepts to the regional
attorney's administrative determination dismissing her
complaint against the California School Employees Association
(CSEA or Union) for a breach of the duty of fair representation
under section 3544.9 of the Educational Employment Relations
Act (EERA) .1

PROCEDURAL HISTORY

In August 1978, Dyer filed a charge with the Public

Employment Relations Board (PERB or Board) (SF-CO-65) against

Ifthe EERA is codified at Government Code section 3540
et seq. Section 3544.9 provides:

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.

CSEA because she was dissatisfied with the representation she
received in a dispute with Laguna Salada Union School District
(District) over a transfer and reassignment. In October of
1979, she filed another charge with PERB (SF-CE-319) against
the District in which she principally alleged violations of the
Education Code. The two charges were consolidated.
In July of 1980, CSEA filed a complaint for declaratory
relief in the Superior Court in San Mateo County (Civil
No. 244809). CSEA claimed that the District violated the
transfer requirements of the Education Code when they moved
Dyer to a new position which resulted in a reduction in her
hours.
While CSEA was pursuing its action in superior court the
charge before PERB was held in abeyance at the request of the
parties.
On October 26, 1981, the hearing officer sent out a letter
which indicated to the charging party that the unfair practice
issues might not be settled by the court action and that the
parties should proceed with the unfair practice hearing. He
then gave the charging party a third opportunity to clarify the
charge and requested that the charging party submit a statement
of issues and legal theories, including citations and other
authority, to support the charge. The charging party did not
respond to the hearing officer's letter; instead, on
November 12, 1981, Dyer's attorney submitted a "Notice of
Withdrawal" with prejudice.
2

On February 22, 1982, the San Mateo County Superior Court
dismissed CSEA's lawsuit on behalf of Dyer on the ground that
the conduct complained of arguably constituted an unfair
practice. The Court, therefore, declined to take jurisdiction
because the plaintiff had not exhausted her administrative
remedies before PERB.
After receiving oral and written argument, the PERB hearing
officer denied the charging party's request to reopen the
charge before PERB. Dyer then asked CSEA to further litigate
the Superior Court ruling that PERB preempted their
jurisdiction. 	In July 1982, the CSEA attorney informed Dyer
that CSEA did not intend to pursue litigation of the Superior
Court decision. He indicated that the ruling would stand
unless there was exhaustion of the administrative remedy before
PERB and that that requirement had been foreclosed by the
withdrawal with prejudice of the original unfair practice
charge against the District.
In September 1982, Dyer, on her own behalf, filed this
unfair practice charge (SF-CO-180) against CSEA charging that
the Union breached its duty of fair representation when it
refused to pursue to the appellate level the civil action it
had filed on her behalf against the District. The regional
attorney dismissed the charge and Dyer appealed the dismissal
to the Board.
3

DISCUSSION
The issue presented here is whether the complainant has
alleged facts which establish a prima facie violation of EERA.
In Rocklin Teachers Professional Association (Romero) (3/26/80)
PERB Decision No. 124, the Board, following precedent set by
the National Labor Relations Board and affirmed by the Supreme
Court in Vaca v. Sipes (1967) 386 U.S. 171, noted:
. . a breach of the duty of fair
representation occurs when a union's conduct
toward a member of the bargaining unit is
arbitrary, discriminatory or in bad faith.
Rocklin, supra, P. 7.
In Reed District Teachers Association, CTA/NEA (Reyes)
(8/15/83) PERB Decision No. 332, the Board cites Rocklin for
the prima facie requirements necessary to show that a union's
conduct was arbitrary and thus a violation of the duty of fair
representation.
A prima facie case alleging arbitrary
conduct violative of the duty of fair
representation 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 in
original.) (Citing Rocklin, supra. )
Reed, supra, P. 9
In the instant case, Dyer asserts no facts which would
indicate in any way that CSEA's decision not to appeal the
Superior Court's dismissal was discriminatory, made in bad

faith, or made "without a rational basis or devoid of honest
judgment. " Rocklin, supra.
ORDER
The complaint is therefore DISMISSED for failure to state a
prima facie case.
Chairperson Gluck and Member Morgenstern joined in this
Decision.

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
December 1, 1982 	(ATTACHED FOR INFORMATION ONLY)
Therese M. Dyer
Luis Saenz
California School Employees Association
P. O. Box 640
San Jose, CA 95106
Re: REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Over v. California School Employees Association, Charge No. SF-CO-180
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation section 32730,
a complaint will not be issued in the above-referenced case and the pending
charge is hereby dismissed because it fails to allege facts sufficient to
state a prima facie violation of the Educational Employment Relations Act
(EERA) . ! The reasoning which underlies this decision follows.
On September 13, 1982 Ms. Therese M. Dyer, on behalf of herself, filed an
unfair practice charge against the California School Employees Association
(CSSA) alleging violations of EERA sections 35449 (sic) and 34369 (b) (sic) .
More specifically, charging party alleged that she was employed by the Laguna
Salada Union School District (District), that CSEA was her exclusive
representative, and that CSEA breached the duty of fair representation owed to
her when it abandoned the civil action it had filed on her behalf against the
District.
My investigation of the charge revealed the following. On July 2, 1980, CSEA
filed a Complaint for Declaratory Relief in the Superior Court of California,
County of San Mateo (Civil No. 244809). In that lawsuit, CSEA challenged the
District's failure to transfer Ms. Dyer, a cafeteria cook-manager, to a
position within the District that would have assured her seven hours daily
employment, rather than the reduced hours she was working in her current.
assignment. CSEA asserted that her seniority status entitled her to such :
transfer, and that the employer's failure to respond to her request violated
References to the EERA are to Government Code section 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

Therese M. Dyer
December 1, 1982
Page 2
Education Code section 45308. Additionally, Ms. Dyer filed an unfair practice
charge with PERB claiming that the District's conduct violated the EERA.
On February 22, 1982, the San Mateo County Superior Court dismissed CSEA's
lawsuit on the ground that the conduct complained of arguably constituted an
unfair practice and therefore the Court was preempted by PERB, the
administrative agency empowered to decide issues arising under the EERA.
Ms. Dyer's unfair practice charge, however, had been withdrawn with prejudice,
on November 10, 1981, at the request of her private attorney,
Mr. William B. Peavey, Jr. Consequently, the Superior Court's dismissal
instructed Ms. Dyer to pursue what, by that time, had ceased to be a PERB
action.
CSEA lawyers concluded that they were precluded from exhausting administrative
remedies before PERB and therefore could not satisfy the Superior Court's
precondition to reactivating the civil suit. Further, they concluded that the
legal authority favoring preemption could not be overcome and consequently
that the Superior Court's ruling would not be reversed by the Court of
Appeal. CSEA has taken no further action in regard to this matter.
Whether CSEA's failure to pursue the civil matter constitutes a breach of the
duty of fair representation owed to Ms. Dyer depends on resolution of two
issues: (1) Was CSEA legally obliged to file and pursue the civil action -
alleging Education Code violations on charging party's behalf? (2) Was CSEA's
decision not to take further action reasonable?
The duty of fair representation, codified in EERA section 3544.9, has a
parallel under the National Labor Relations Act (NLRA) (29 U.S.C.
sections 151 et seq.) . There, the doctrine was fashioned by the courts as a
quid pro quo for the rights and powers granted by that statute to an employee
organization which, by reason of its majority status, is entitled to act as
the exclusive representative for the bargaining unit. International
Brotherhood of Electrical Workers v. Foust (1979) 442 U.S. 42 [101 LRRM 2363,
2367] (citing Steel v. Louisville & Nashville RR Co. (1944) 323 U.S. 192
[15 LRRM 708] ; Humphrey v. Moore (1964) 375 U.S. 335 [55 LRRM 2031]; Vaca v.
Sipes (1967) 386 U.S. 171 [64 LRRM 2369]). It follows that the union's
obligation does not extend beyond its duty to represent fairly the interests
of all bargaining unit members during the negotiation, administration and
enforcement of collective bargaining agreements. IBEW v. Foust, supra,
p. 2367. PERB has accepted this rationale. Kinmett v. Service Emolovees
International Union, Local 99 (10/19/79) PERB Decision No. 106.
CSEA has no obligation under the EERA to represent unit members concerning
infringements of non-contractual rights, such as those arising under the
Education Code. The individual unit member is free to secure representation

Therese M. Dyer
December 1, 1982
Page 3
from other sources. Here, the civil action was undertaken by CSEA on behalf
of charging party as a benefit of membership rather than as a part of the
obligation to protect her employment interests in its capacity as an exclusive
representative. Therefore, because CSEA had no obligation under the EERA to
initiate a civil action alleging violations of the Education Code, there is no
statutory impediment to abandoning such action. Consequently, CSEA did not
breach its duty of fair representation when it chose not to pursue the civil
suit subsequent to the Superior Court's dismissal.
Assuming that CSEA did have the duty to represent Ms. Dyer in the civil
action, the next question is whether such representation was undertaken
fairly. In Castro Valley Unified School District (12/17/80) PERB Decision
No. 149, PERB held that the exclusive representative could justify its refusal
to proceed to arbitration on an employee's grievance if the organization had a
reasonable basis for doing so. The Board explained its reasonableness
standard as follows:
. [t]he complete satisfaction of all who are
represented [ is not contemplated] . A wide range
of reasonableness must be allowed to a statutory
bargaining representative in serving the unit it
represents subject always to complete good faith
and honesty of purpose in exercise of its
discretion. Ford Motor Co. v. Huffman (1953)
345 U.S. 330 [31 LRRM 2548, 2551].
The facts involved in this case do not establish a prima facie violation of
this standard. (See Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369].)
First, CSEA's evaluation of the likelihood of success on appeal was reasonable
in light of California appellate cases requiring exhaustion of PERB remedies
before bringing suit. 	See, Council of School Nurses v. Los Angeles Unified
School District (1980) 113 Cal.App. 3d 666 [169 Cal.Rptr. 893] (PERB has
initial exclusive jurisdiction when employees seek to challenge provisions of
the collective bargaining agreement as being violative of the Education
Code) ; Leek v. Washington Unified School District (1981) 124 Cal.App.3d 483
(violations of the FERA other than unfair practices must first be heard by the
administrative agency) ; and Fresno Unified School District v. National
Education Association, et al. (1981) 125 Cal.App. 3d 259 (actions alleging
breach of collective bargaining agreement must be heard first by PERB) .
Second, it might be argued that CSEA should have filed a charge with PERS and
exhausted PERB remedies after the Superior Court dismissed the lawsuit. In
light of the fact that Ms. Dyer's own attorney had withdrawn this charge with
prejudice, however, CSEA's refusal to refile was not unreasonable.

Therese M. Dyer
December 1, 1982
Page 4
It thus does not appear that CSEA's conduct towards Ms. Dyer was "arbitrary,
discriminatory or in bad faith." Rocklin School District (3/26/80) PERB
Decision No. 124. Nor is there an indication that CSEA's judgment was
inconsistent with "complete good faith and honesty of purpose." 	The facts
alleged accordingly do not establish that CSEA breached the duty of fair
representation owed to Ms. Dyer. No complaint will be issued and the charge
is dismissed.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III) , you may appeal the
refusal to issue a complaint (dismissal) to the Board itself.
Right to Appeal
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 Notice
(section 32635 (a) ) . To be timely filed, the original and five (5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on December 21, 1982, or sent by telegraph or certified
United States mail postmarked not later than December 21, 1982 (section 32135) .
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 (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 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 the
document filed with the Board itself (see section 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

Therese M. Dyer
December 1, 1982
Page 5
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 (section 32132) .
Final Date
If no appeal is filed within the specified time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: General Counsel