Sacramento City Teachers Association (Fanning, et al.) (PERB 0428E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
CHARLENE FANNING, 	et al.,
Charging Parties,
v.
SACRAMENTO CITY 	TEACHERS
ASSOCIATION,
Respondent.
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) 	Case No. 	S-CO-97
PERB Decision No. 	428
November 6, 	1984
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Appearances; 	McMaster & Lobel, 	by Loren E. 	McMaster 	for
Charlene Fanning, 	et al.; 	Priscilla Winslow for 	Sacramento City
Teachers Association.
Before Hesse, Chairperson; 	Tovar and Jaeger, Members.
DECISION
HESSE, 	Chairperson: 	Charlene Fanning and four 	other
employees 	(Charging Parties) 	of 	the Sacramento City Unified
School District 	(District) 	appeal 	the determination of a
regional 	attorney of 	the Public Employment Relations Board
(PERB) 	that a complaint should not 	issue on their 	charge 	that
the Sacramento City Teachers Association 	(Association) 	breached
its 	statutory duty to represent 	fairly 	all members of 	the
bargaining 	unit.1
1Section 	3544.9 	of 	the Educational 	Employment Relations
Act 	(EERA) 	(Gov. 	Code sec. 	3540, et seq.) 	provides in relevant
part:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting 	and 	negotiating 	shall
)
_______________ )

For 	the reasons 	set forth below, 	we affirm the regional
attorney's 	dismissal of the charge.
PROCEDURAL 	HISTORY AND FACTS
The Association 	is the exclusive 	representative 	for
teachers 	employed by 	the 	Sacramento 	City 	Unified 	School
District, 	including 	teachers 	in the Adult Education
Department. 	Adult Education teachers 	fall 	into two groups:
those who have 176-day contracts, 	and those who have 230-day
contracts. 	The former group of teachers, 	which includes
Charging Parties, 	is paid on a contract basis for 	176 days per
school year. 	Any work performed by 	these 	teachers 	beyond 	176
days 	is paid on a 	"per 	session" 	basis. 	The latter group of
teachers, 	known as 	"U contract" 	teachers, 	are also paid on a
contract basis, 	but the length of their 	school year 	is set at
230 	days.
A dispute 	arose because 	the 	176-day contract 	teachers 	(for
clarity, 	referred to hereinafter as per 	session teachers) 	were
fairly represent each 	and every 	employee 	in
the appropriate unit.
In Kimmet v. 	SEIU, Local 99 	(10/19/79) 	PERB Decision No.
106, 	PERB made allegations of a violation of section 3544.9
actionable through EERA section 3543.6(b). 	That section reads
in relevant part:
It 	shall be unlawful for 	an employee
organization to:
(b) 	Impose or 	threaten to 	impose 	reprisals
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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given 	the opportunity to work 	longer 	than 176 days per 	year.
The teachers who choose 	to do so, 	usually teaching 	through 	the
summer 	session, 	are paid 	two different rates: 	they are paid a
contract rate for 	176 days, 	and 	a 	"per 	session" 	rate for any
days thereafter. 	The per 	session rate 	is less 	than the
contract rate, 	when measured on a per day basis.
The per 	session 	teachers who work 	in excess of 176 	days
nearly always work 230 days, 	the same as 	the U contract
teachers. 	But 	the U contract teachers are paid on a 	contract
basis for 	the entire 230 days. 	Being paid on a contract basis
for 	230 days results 	in a higher 	earnings 	for 	the U contract
teachers 	than to the per 	session 	teachers. 	Because 	these 	two
groups of 	teachers perform 	identical work, 	and yet one group is
paid more 	than 	the other 	group, 	the per 	session 	teachers 	filed
a grievance with 	the District, 	asking that they receive 	the
same amount of money as 	the U contract 	teachers.
The District denied the grievance, 	and complied with 	the
appropriate contractual 	grievance procedure 	by 	forwarding 	the
grievance 	and 	its denial 	to the Association's grievance
committee. 	The Association's 	grievance committee 	studied 	the
matter 	and 	recommended 	to 	the Association 	Board 	of 	Directors
that 	the matter 	be sent 	to arbitration.
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	the exercise of 	rights
guaranteed by 	this 	chapter.
W
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On November 23, 	1982, 	the Association Board of Directors
voted not to take 	the 	grievance 	to arbitration. 	At 	this
session, 	which was open to all members, 	arguments were advanced
both 	in favor 	of and opposed 	to pursuing 	the grievance. 	The
Charging Parties, 	themselves, 	however, were not in attendance.
Although 	the 	Association 	recognized 	the desire of 	the per
session teachers 	to receive 	the same amount of money as 	the U
contract teachers, 	the grievance was not taken to arbitration
because 	the contract 	language providing 	for 	this dual method of
payment was 	felt to be unambiguous, 	and 	therefore 	the
Association was 	not 	likely to prevail 	at 	arbitration.
Furthermore, 	if the Association were to win 	the grievance for
the per 	session teachers, 	the resulting higher cost 	to the
District could 	bankrupt 	the 	program 	in question and could cause
a possible 	loss 	of 	jobs 	for 	both per 	session and U contract
teachers. 	Finally, 	the Association Board of Directors noted
that 	the U contract 	teaching positions were an anomaly, 	having
been 	grandfathered 	into 	the 	1976 	collective 	bargaining
agreement 	and were being phased out by 	the 	District 	through
attrition.
Of 	the 14 	members of the Board 	of Directors present and
voting at 	the meeting, 	two were U contract teachers. 	The vote
was 12 	to 2 	against taking the grievance to arbitration, 	with
the 	two U contract 	teachers voting with 	the majority.
In 	its letter of November 24, 	1982, 	to the Charging
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Parties, 	the Association stated that the decision was based
upon two 	specific 	requirements 	that needed 	to be met before 	the
Association would consent 	to appeal 	a 	denied grievance 	to
arbitration. 	These requirements were that: 	(1) 	there was
potential success of the grievance 	in arbitration; 	and 	(2)
there were no 	serious potential 	negative 	implications 	for 	other
bargaining 	unit members 	raised by the grievance. 	Neither
requirement was met by the 	Charging Parties' grievance. 	The
letter 	further 	stated that, 	although 	the Board had voted not 	to
refer 	the grievance to arbitration, 	Charging Parties could
appeal 	the decision at the next meeting.
At the November 	3 0 meeting of 	the Association Board of
Directors, 	the Charging Parties were present to appeal 	the
refusal to take 	their 	grievance to arbitration. 	The Charging
Parties were given an opportunity to speak at that meeting, 	and
at 	the end of 	the presentation by the 	Charging Parties, 	the
Association Board 	of Directors 	voted again whether 	to 	take 	the
grievance to arbitration. 	Again, 	the motion was defeated on a
vote of 12 	to 2, 	with the two U contract teachers again voting
with 	the majority.
After 	the Board 	of Directors voted 	for 	the 	second 	time not
to take the grievance to arbitration, 	Charging Parties 	sought
to convince 	the Board 	of Directors 	to negotiate a 	specific
proposal 	in 	a 	successor 	collective 	bargaining agreement with
the 	District 	that would 	result 	in 	the per 	session 	teachers
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being paid at 	a contract per 	diem rate 	for 	all days 	worked 	in
excess of 176 	days. 	This would result 	in any pay 	inequity
between 	the 	U contract and 	the per 	session 	teachers 	being
eliminated. 	This bargaining proposal was presented 	to 	the
Association Representative Council, 	a group of one
representative 	for 	every 	twenty teachers 	at any one 	site 	in 	the
District. 	The two U contract teachers who were on 	the
Association Board 	of Directors 	also served 	on 	the
Representative 	Council.
The Charging Parties' proposal 	was 	presented 	by 	their
representative, 	and argument was 	received both 	for 	and 	against
the 	insertion of 	the bargaining proposal 	into the Association's
bargaining package. 	At the conclusion of argument, 	a voice
vote was 	taken of the Representative Council as 	to whether 	or
not this proposal should be 	included 	in 	the package. 	The
proposal was turned down by a majority of those present, 	with
the two U contract teachers abstaining 	in 	the vote.
After 	notifying 	the Association 	that 	the Charging 	Parties
considered 	the Association's 	action 	to be 	a possible breach 	of
the duty of 	fair 	representation2 for 	failing 	to negotiate 	a
contract proposal favorable 	to 	the per 	sesssion teachers, 	the
Charging 	Parties 	were notified 	by 	the Association 	that 	the
Representative 	Council would 	reconsider 	its 	earlier 	decision 	on
the bargaining proposal. 	This 	reconsideration 	took place
2see	2see 	footnote 1, 	supra.
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May 12, 	1983. 	There is a 	factual dispute as to whether 	the
Charging Parties 	sought 	recognition 	to 	speak but were 	not
called upon, 	or 	whether 	they simply never 	sought 	recognition at
all. 	In any case, 	the Council again considered the motion to
include 	the Charging Parties' proposal 	in 	the bargaining
package, 	and again the voice vote was not favorable to 	the
Charging Parties. 	The two U contract 	teachers on 	the
Representative 	Council again 	abstained.
On May 25, 	1983, 	Charging Parties filed the instant charge,
alleging 	breach of 	the duty of 	fair 	representation.
DISCUSSION
The 	Board's 	standard 	in duty of 	fair 	representation cases
is 	that, 	in order 	for 	the charging party to state a prima 	facie
violation of that duty, 	it must state facts that tend to show
that the respondents acted arbitrarily, 	discriminatorily, 	or 	in
bad faith. 	(See 	Fremont Unified School District Teachers
Association 	(Janet King) 	(4/21/80) 	PERB Dec. No. 	125; Rocklin
Teachers Professional Association 	(Thomas A. 	Romero) 	(3/26/80)
PERB Dec. 	No. 	124; 	Laguna Salada Union School District 	(Therese
M. 	Dyer) 	(9/2/84) 	PERB Dec. 	No. 	342.) 	The regional attorney
dismissed this charge because, 	in his opinion, 	it failed to
allege 	facts 	sufficient 	to show 	that 	the Association's
decisions were arbitrary, 	discriminatory or made 	in bad faith.
In their 	appeal of the dismissal, 	the Charging 	Parties
allege 	that 	the 	regional 	attorney 	essentially 	failed 	to
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distinguish between two separate issues, 	that is, 	the
Association's 	refusal to take the grievance 	to arbitration, 	and
its refusal to negotiate or 	offer 	a proposal regarding contract
language 	favorable 	to Charging 	Parties.3 While 	the 	regional
attorney should have 	addressed 	these 	issues 	separately, 	we 	find
that his 	failure 	to do so did not prejudice 	the Charging
Parties since, 	for 	the reasons set forth below, 	we find that
their 	allegations do not state a 	prima 	facie violation of 	the
Act.
The Association's 	major 	reasons 	for 	refusing 	to pursue
arbitration, 	as advanced 	in 	its 	letter 	to 	the Charging 	Parties
on November 24, 	1982, 	were that the potential success at
arbitration was doubtful and 	that 	there were potential negative
implications 	for 	other 	bargaining 	unit members. 	Whether 	or 	not
this 	judgment by 	the Association was correct 	is not at 	issue.
Our 	inquiry 	focuses on whether 	the Association's 	judgment had a
rational basis, 	or was reached for 	reasons 	that were arbitrary
or 	based upon 	invidious discrimination. 	At no time did
Charging 	Parties allege 	facts which 	tend 	to show that 	the
decision 	reached 	by 	the Association was 	based upon any of 	these
3Charging 	Parties attempt 	in their 	appeal 	to discredit
the 	theory that, 	even 	if 	the Association were to win 	the
arbitration, 	such a 	"win" 	would bankrupt the program. 	This
attempt 	is made 	by filing an exhibit with 	their 	appeal 	showing
that the grievance, 	even if sustained, 	would have cost the
District only $20,000. 	As this is a factual matter, 	it is
inappropriate 	for 	the Board 	to consider 	any such 	exhibit 	on
appeal.
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unlawful motives. 	Therefore, 	PERB will not stand 	in judgment
as 	to 	the relative merits of the decision made by 	the
Association when 	it refused to 	take 	the 	grievance 	to
arbitration.44
The Charging Parties also appeal 	the 	regional attorney's
dismissal on 	the basis 	that he did not consider 	separately
whether 	the Association breached 	its duty of 	fair
representation when 	it failed 	to present negotiating 	proposals
favorable 	to Charging Parties 	in their 	bargaining package.
Under 	Redlands Teachers Association 	(9/25/78) 	PERB Decision No.
72, 	the standard 	for 	a duty of fair 	representation case 	in
presentation of contract matters was 	adopted 	from 	the 	standard
in contract interpretation cases. 	In other words, 	in order 	to
establish 	a case 	that 	the 	Association did not 	fairly 	represent
them in contract negotiations, 	Charging Parties must again show
that 	the Association's action was arbitrary, 	discriminatory or
made 	in bad faith.
When 	the Representative Council voted not to adopt 	the
Charging Parties' 	proposal, 	the arguments for and against the
proposal were given a 	full hearing. 	Although 	the Charging
Parties are 	treated differently 	in 	the collective bargaining
agreement from U contract teachers, 	the basis for 	this
difference 	is not based upon an 	invidious 	classification 	scheme
or motives hostile to the Charging Parties. 	Rather, 	this
4 See Vaca v. 	Sipes 	(1967) 	386 U.S. 	171, 	[64 LRRM 2369].
99

difference arises 	out of 	a negotiated 	response 	to 	ameliorate
the 	impact of 	the employer's 	decision 	to change 	staffing 	(that
is to phase out U contract positions). 	Although the Charging
Parties would have benefited 	from 	a 	change 	in contract language
raising 	their 	salaries, 	the Association had no obligation 	to
take such a proposal to the table, 	as long as 	it had legitimate
non-discriminatory and non-arbitrary 	reasons 	for 	refusing 	to do
so. 	The Board noted in Rocklin, supra, 	at page 9, 	that 	"A
union's 	duty 	to 	fairly represent 	employees 	during 	negotiations
does 	not encompass 	an obligation 	to negotiate any particular
item."
As 	the Charging Parties have not been able 	to show that 	the
two-tiered payment 	system was 	the 	result of 	an 	invidious
classification scheme, 	negotiated for 	improper purposes or 	in
an arbitrary manner, 	a prima facie case has not been shown.
ORDER
For 	the reasons cited herein, 	Charge No. 	S-CO-97 	is hereby
DISMISSED 	in 	its 	entirety without 	leave 	to amend.
Members 	Tovar 	and Jaeger 	joined 	in 	this 	Decision.
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