American Federation of Teachers, Local 2121 (Pearce) (PERB 0695E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN J. 	PEARCE,
Charging 	Party,
v.
AMERICAN FEDERATION OF TEACHERS,
LOCAL 	2121,
Respondent.
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) 	Case 	No. 	SF-CO-339
PERB 	Decision 	No. 	695
July 28, 	1988
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Appearances: 	John J. 	Pearce, 	on his own behalf; 	Robert J.
Bezemek, 	Attorney, 	for American Federation of Teachers, 	Local
2121.
Before Hesse, 	Chairperson; Porter, 	Craib, 	and Shank, Members.
DECISION AND 	ORDER
This 	case 	is before 	the Public 	Employment 	Relations 	Board
(Board) 	on 	appeal by 	the 	charging party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of his 	charge 	that the 	respondent
violated 	section 	3543.6(b) 	of 	the 	Educational 	Employment
Relations Act 	(EERA).1 While, 	inter alia, 	charging party
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Section 3543.6 	reads, 	in pertinent part, 	as 	follows
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.
)
. . . . 	. . 	. 	. . 	. . 	. . . . . 	. 	. . . . . .

alleged 	that 	respondent handled his 	grievance 	in 	a perfunctory
manner, 	we do not 	find 	the 	conduct 	of 	respondent 	in 	this 	case
to 	be 	perfunctory 	or 	arbitrary.2
The unfair practice 	charge 	in Case 	No. 	SF-CO-339 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD
2See 	also, 	Los Angeles 	City and 	County 	School 	Employees
Union, 	Local 99 	(Morgan) 	(1987) PERB Decision No. 	645.
22

STATE OT CALIFORNIA 	GEORGE 	DEUKMEJIAN.
PUBLIC EMPLOYMENT RELATIONS BOARD
Son Francisco Regional Office
177 Post Street Suite 900
SAN Francisco, CA 94108-4737
(413)557-1330
March 17, 	1988
John Pearce
Re: 	John Pearce v. 	American Federation of Teachers. 	Local
2121;
Unfair Practice Charge No. 	SF-CO-339
Dear Mr. Pearce:
In the 	above-referenced charge, 	you 	allege that 	the American
Federation of Teachers, 	Local 2121 	(AFT or Federation) 	breached
its 	duty of 	fair 	representation 	in violation of 	section
3543.6(b) 	of 	the Educational 	Employment Relations Act 	(EERA or
Act). 	On December 	17, 	1987, 	you submitted an amended charge in
this case. 	Specifically, 	you 	allege that the Federation 	failed
to 	subpoena 	documents 	regarding 	student 	retention 	rates 	and
hiring 	practices 	of 	the 	San 	Francisco 	Community College
District 	(District). 	You 	also 	assert 	that the Federation
failed 	to consult with 	the chairperson of 	the District's
mathematics department 	and 	accepted 	the math department's
version of 	the facts. 	The 	amended charge also contends 	that
AFT Staff 	Secretary Chris 	Hanzo 	failed 	to meet with you 	during
the 	seven month hiatus 	between 	the 	informal 	and 	formal 	steps 	of
the grievance machinery and 	failed 	to 	file 	a grievance based 	on
age discrimination.
For 	the 	reasons 	set 	forth below as well 	as 	for 	those 	set 	forth
in my letter 	to you dated November 25, 	1987, 	attached hereto,
the 	instant 	unfair 	practice 	charge does 	not 	allege 	sufficient
facts 	to 	sustain 	a 	claim that 	the Federation 	acted 	contrary to
its 	duty of 	fair 	representation.
The underlying dispute 	in 	this matter concerns 	the District's
failure 	to hire you 	for 	a 	full-time position 	in the math
department 	in the 	spring of 	1986. 	The basis 	for your opinion
that 	the District was 	obligated 	to do so 	rests 	on Article 	12 	of
the 	negotiated 	agreement 	between 	the District 	and AFT.
Article 	12 	permits 	upgrading 	of 	faculty members with 	less 	than
a 	full-time teaching 	load 	and, 	in paragraph D, 	states 	in
pertinent 	part 	as 	follows:
Employees 	of 	the District will 	be given
first 	consideration when 	additional 	hours
are 	available 	for 	assignment.

John 	Pearce
March 17, 	1988
Page 2
The upgrading 	procedure 	requires 	that 	part-time unit members
who 	are candidates 	for 	the positions offered be 	interviewed
prior to outside candidates. 	Thereafter, 	a subgroup of
qualified candidates 	is 	presented 	to 	the hiring 	committee 	from
which a 	selection 	is eventually made.
In your 	case, 	you were not 	among 	the qualified candidates
submitted 	for 	consideration to 	the hiring committee. 	You
approached 	the Federation and 	a grievance was 	filed on your
behalf. 	The 	instant unfair practice charge concerns 	the manner
in which 	the Federation handled your grievance 	and 	their
decision not 	to pursue this matter 	to 	arbitration.
In this 	amended charge, 	you claim that 	the Federation 	failed 	to
subpoena student 	retention 	rates 	or 	hiring 	data 	and 	thereby
violated 	its duty of 	fair 	representation. 	While there 	is 	no
provision 	in 	the contract 	entitling AFT to 	subpoena 	these
records, 	the Federation is entitled to 	information that 	is
necessary to enforce 	its 	contractual 	obligation with 	the
District. 	Stockton Unified School District 	(1980) 	PERB
Decision No. 	143. 	While the retention data you sought 	is
supportive of your 	claim that you 	are 	an 	instructor capable of
retaining 	a great percentage of 	students 	in your classroom
through the duration of 	the semester, 	the Federation's 	failure
to collect 	the 	retention data does 	not 	indicate that your
grievance was handled 	in a perfunctory manner. 	If the contract
provision 	required 	the District 	to 	select 	the 	inside candidate
with 	the best 	retention 	rates 	and 	the union 	failed 	to 	request
such 	information, 	then a 	strong case could be made to 	support
the contention that 	the union acted unlawfully. 	This 	is 	not
the case here 	and 	the Federation's 	failure to collect 	data you
deemed 	essential 	to your 	case does not equate with perfunctory
conduct.
Similarly, 	the hiring data you 	sought would 	allegedly have
demonstrated 	that 	the 	District 	had 	not 	hired 	inside 	instructors
to 	full 	time positions. 	While this data may have been helpful
to your 	case, 	the contract 	provision on which your grievance
was 	based does 	not 	restrict 	the District's 	right 	to hire
outside candidates 	but 	only 	requires 	that 	the District 	give
such qualified candidates 	first consideration. 	Thus, 	the 	fact
that 	the Federation 	failed to collect 	this data does 	not
constitute conduct 	that 	is 	arbitrary, 	discriminatory of 	in bad
faith.

John Pearce
March 17, 	1988
Page 3
Your claim that 	the Federation 	failed to meet with the
chairperson of 	the math department does not 	amount 	to conduct
violative of 	the duty to provided 	fair 	representation. 	There
is no 	requirement that the union conduct 	its 	investigation of 	a
grievance in a particular manner 	so 	long as the grievance
representation is not perfunctory. 	The allegations 	set 	forth
in the charge 	indicate that you met with Hanzo and discussed
your grievance with him on several 	occasions. 	You were
represented by 	AFT 	at 	the 	informal 	and 	formal 	stage 	of 	your
grievance. 	In sum, 	while you may have wished that Hanzo meet
with a certain individual, 	his failure to do so does not rise
to 	a duty of 	fair 	representation breach.
Your 	amended charge 	alleges 	that 	the Federation acted
unlawfully because 	seven months 	elapsed between the 	informal
and 	formal stages of the grievance procedure. 	While certain
delays 	in grievance handling may evidence perfunctory handling
of 	an employee's claim, 	those situations are those where some
harm results 	in the delay. 	San Francisco Classroom Teachers
Association (Bramell) 	(1984) 	PERB Decision No. 	430. 	In this
case, 	you have alleged no facts 	to support the claim that 	this
delay worked to your disadvantage. 	Absent 	any such showing,
delay in grievance processing does 	not meet 	the 	standard
necessary to demonstrate conduct violative of 	the Act.
The upgrading 	provision of 	the contract 	entitled you 	and other
teachers with 	less 	than a 	full-time 	load to 	"first
consideration". 	This does 	not mean that 	inside part-time
instructors must be 	selected over 	outside candidates.
Moreover, 	even if the contract provision is 	read to mean that
an 	inside candidate must be selected 	if 	he/she 	is as qualified
as 	an outside candidate, 	you were not among the subgroup of
qualified candidates whose names were 	submitted 	to 	the 	hiring
committee. 	In light of this, 	the facts you allege with regard
to 	the upgrading provision do not 	demonstrate how the
Federation's conduct was 	arbitrary, 	disciminatory or 	in bad
faith.
The 	restrictions 	imposed on the District's hiring 	process 	stem
from its contractual obligation. 	In other words, 	at a minimum,
it must 	be demonstrated 	that 	the District violated 	some
grievable contract provision in order 	for you to prevail. 	The
propriety of 	the Federation's 	conduct 	in declining 	to 	arbitrate

John Pearce
March 17, 	1988
Page 4
your grievance must be judged 	in 	light of 	those contractual
rights on which your claim rests. 	The Federation's 	appraisal
of your case necessarily must 	look to the applicable contract
provisions, 	the District's obligations thereunder and the
likelihood of proving 	that 	the District's conduct departed 	from
that contractually required. 	The Federation is not 	required 	to
pursue meritless claims. 	Los Angeles Unified School District
(1985) 	PERB Decision Mo. 	526. 	Based on the language of the
upgrading 	article and the facts 	surrounding the selection in
the spring of 	1986, 	I cannot conclude as a matter of 	law that
AFT's decision not 	to 	pursue 	your grievance to 	arbitration was
devoid of honest judgment.
Finally, 	the amended charge refers to the failure of the
Federation to pursue an age discrimination grievance on your
behalf. 	The contract between AFT and the District does not
permit such a grievance. 	Article 5, 	paragraph B states 	in
pertinent part:
The Grievance Procedure herein may not be
used 	for 	any claims 	arising hereunder 	for
which another administrative forum, 	such as
the Equal Employment Opportunities
Commission or Fair Employment Practices
Commission is provided by law.
In light of this language, 	it cannot be said that AFT's failure
to 	file 	an age discrimination grievance on your behalf was 	a
breach of the Federation's duty. 	Moreover, 	there is no
indication 	in your charge on what 	factual 	basis you believed 	an
age discrimination cause of 	action could be made out. 	For
these reasons, 	there is no merit to your allegation that the
Federation violated 	its duty of 	fair 	representation because 	it
failed to file such a grievance.
In sum, 	the conduct complained of 	fails to satisfy the
standards used to judge union conduct. 	While you may have
hoped 	that AFT had conducted 	its 	investigation otherwise or
that 	the Federation would have decided to 	arbitrate your
grievance, 	the facts as you have described them fail 	to cross
the 	line into the area of impermissible, 	and unlawful conduct.

John 	Pearce
March 17, 	1988
Page 5
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 	(California Administrative
Code, 	title 8, 	section 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
(5:00 p.m.) 	or sent by telegraph, 	certified or Express United
States mail 	postmarked no 	later 	than the 	last date set 	for
filing 	(section 32135). 	Code of Civil Procedure section 1013
shall 	apply. 	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 copies 	of 	a 	statement 	in opposition within 	twenty
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 each copy of 	a document 	served upon 	a
party or 	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 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 (section 32132).

John 	Pearce
March 17, 	1988
Page 6
Final Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have expired,
Sincerely,
John 	Spittler
Acting 	General 	Counsel
By Carol A. 	Vendrillo
Staff Attorney
Attachment
cc:

STATE OF 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Son Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 	557-1350
November 	25, 	1987
John 	Pearce
Re: 	John Pearce v. 	American Federation of Teachers. 	Local
2121;
Unfair 	Practice Charge 	SF-CO-339
Dear Mr. Pearce:
I 	am in 	receipt of 	the 	above-referenced charge 	in which you
allege that the American Federation of Teachers, 	Local 	2121
(AFT or Federation) 	breached 	its duty of 	fair 	representation 	in
violation of 	section 3543.6(b) 	of 	the Educational Employment
Relations Act 	(EERA or Act).
My 	investigation of 	this 	charge has 	revealed 	the 	following
facts. 	The Federation is the exclusive 	representative of 	all
certificated 	employees 	of 	the 	San Francisco Community College
District 	(District) . 	You are currently employed as a part-time
instructor 	in the mathematics department of 	the District 	and
have been so during 	all 	times 	pertinent herein. 	In the 	spring
of 	1985, 	you 	received an evaluation of your teaching
qualifications. 	Among 	those participating 	in 	the evaluation
process was 	the Chairperson of 	the math department,
Frank Cerrato. 	You were 	again evaluated 	in the Fall 	of 	1985.
In the Spring 	of 	1986, 	two 	full-time positions were 	available
in the department. 	You were not notified of 	these vacancies,
however, 	you 	submitted 	an 	application 	and were 	interviewed.
Prior 	to the 	interview which took place on April 26, 	1986, 	you
had 	a conversation with Guy de Primo, 	a member of 	the hiring
committee. 	You told de Primo that, 	unlike other District
employees, 	your 	interview was 	scheduled 	for 	the 	second week
rather 	than the first. 	According to you, 	de Primo said 	that
you were 	probably 	lucky because 	some 	things 	affect 	hiring
decisions 	that 	shouldn't, 	such as 	age. 	He said that those
interviewed during 	the 	first week 	are 	often 	forgotten by 	the
time the candidate 	is chosen. 	Article 	5 of 	the negotiated
agreement 	between 	the 	San Francisco 	Community College 	District
and 	the American Federation of Teachers Local 	2121 prohibits
discrimination 	based on 	age 	in 	Section 	5.A.

John 	Pearce
November 25, 	1987
Page 2
In preparation for your interview, 	you asked Leon Luez, 	a
member of 	the math department, 	to write a 	letter on your
behalf. 	He did so but you were disappointed 	in what Luez
wrote. 	He 	indicated that your performance 	in the classroom
that 	he had observed was 	satisfactory. 	You 	allege that Luez
was AFT treasurer 	at the time he wrote this 	letter 	and that
this 	fact 	later 	influenced 	the Federation's 	decision 	regarding
arbitration.
You were not 	selected 	for 	the 	instructor 	positions 	and you
approached the Federation to 	ask about 	the possibility of
filing 	a grievance. 	When you first 	spoke to AFT Staff
Secretary Chris Hanzo, 	he was very encouraging 	and told you he
thought your case had merit. 	You 	also 	allege that Hanzo said
that 	there were people 	in the Federation who did not 	think that
the union should get 	involved 	in helping part-time teachers 	get
upgraded to 	full-time 	instructors. 	He 	also 	told you that 	there
was 	no chance of winning your case 	at either 	the 	informal 	or
formal 	level 	and that you had to go to 	arbitration to win.
On a subsequent occasion, 	you spoke to Steve Levinson, 	a member
of AFT's grievance committee. 	You 	allege that Levinson was
very discouraging. 	He told you that 	filing 	a grievance would
only stir up 	ill will 	and 	that Cerrato could discredit you 	and
destroy your chances of 	getting 	a 	job anywhere. 	You 	state that
Levinson told you 	that 	the math department was 	very tight 	knit
and 	that 	the District 	prided 	itself 	on 	always 	going 	to 	the
outside to 	fill 	their 	full-time positions. 	You 	state that
Levinson's office 	is 	in the same building 	and on the same 	floor
as 	the math department 	and you 	feel 	that 	his 	attempt 	to
discourage you 	from challenging 	the 	math department was
affected by his 	friendship with 	these 	individuals.
The 	informal 	stage of 	the grievance was 	conducted on
June 9, 	1986. 	Hanzo attended 	as your 	representative. 	About
this 	time, 	you 	learned 	that 	the permanent vacancy was 	filled by
an employee who 	had 	been 	a 	full-time 	temporary employee 	the
previous year. 	The 	temporary portion was 	filled with 	someone
not 	previously an employee of 	the District. 	A third position
was 	added during 	the 	summer 	and was 	filled by 	someone who 	had
previously been a 	full-time temporary employee. 	Article 	12 	of
the 	negotiated 	agreement 	contains 	a 	provision 	regarding
upgrading. 	It provides that affirmative action, 	seniority, 	job
performance, credentials, 	training, 	experience in the field,
special 	job-related 	skills 	and District 	needs 	shall 	be
considered 	in all 	decisions 	regarding upgrading. 	It 	also

John 	Pearce
November 25, 	1987
Page 3
provides 	that employees 	of 	the District will 	be given 	first
consideration when 	additional 	hours 	are 	available.
After 	the 	informal 	level meeting, 	you state that you called
Hanzo on a monthly basis. 	You allege that Hanzo had become
guarded 	and 	unresponsive 	and would 	not meet with you 	to discuss
developments you believed were 	important. 	These 	facts 	included
a high student 	retention rate 	in your calculus class, 	an award
received by one of 	the professors who had written 	a
recommendation on your 	behalf 	and 	numerous 	letters 	of 	support
you had 	received 	from students. 	You 	state that Hanzo claimed
District 	representative Ron Lee was 	stalling. 	In 	any event,
the formal 	stage was not conducted until January 6, 	1987, 	seven
months 	after 	the 	informal meeting.
Hanzo again was your 	representative at 	the 	formal 	stage of 	the
grievance. 	You met with Hanzo 	about 	one hour 	before your
meeting with Natalie Berg. 	This was 	the 	first meeting with
Hanzo since June. 	You spoke to him about Edward Walsh, 	a
teacher 	in 	the math department who 	had 	criticized your 	teaching
abilities. 	You 	allege 	that Hanzo 	said 	that Walsh was 	a great
guy and that he was 	active 	in the union. 	The District's
response to the 	formal 	step of 	the grievance was 	to 	admit 	that
it 	had 	failed to properly notify you of 	the positions. 	The
remaining 	allegations 	raised 	in your 	grievance were denied.
Thereafter, 	Hanzo 	agreed 	to submit 	two grievances 	to
arbitration. 	Those 	concerned 	the 	evaluation 	and 	the upgrading
issues. 	Initially, 	he declined to submit 	those grievances
regarding 	an 	allegation of 	reprisal, 	age 	discrimination 	and
violations 	of 	the 	contractual 	provisions 	regarding 	personnel
files. 	You were 	able 	to convince Hanzo 	to 	include 	the 	reprisal
claim among 	the grievances 	submitted 	to 	arbitration, 	however,
he 	told you 	that 	the 	age discrimination claim was 	too 	hard 	to
prove.
On or about February 25, 	1987, 	you met with Hanzo 	in order 	to
provide him with documents 	related 	to your 	case. 	Among 	the
materials were 	a 	large number of 	letters 	of 	support 	from your
students. 	You believe Hanzo was 	impatient 	at 	having 	to copy
such a 	large number of documents. 	At 	this point, 	Hanzo began
discussing 	preparation 	for 	an 	appeal 	of 	a 	decision on 	the 	part
of AFT not 	to proceed with your 	case 	to 	arbitration. 	In 	sum,
you began to sense 	that 	it was 	a 	foregone conclusion that 	the
union would 	not 	take your 	case 	to 	arbitration.

John 	Pearce
November 25, 	1987
Page 4
On or 	about March 2, 	1987, 	Hanzo 	informed you that the
grievance 	committee meeting 	had 	been 	rescheduled 	for
March 	5, 	1987. 	This 	rescheduling 	posed 	some difficulty for you
since you 	had 	a 	three hour 	class 	the 	night 	before 	the meeting.
On or 	about March 4, 	1987, 	Hanzo called you 	and 	indicated 	it
was 	his 	recommendation 	that your 	case 	not 	be 	taken 	to
arbitration. 	On March 5, 	1987, 	you 	addressed the executive
board 	in order 	to 	appeal 	their 	decision earlier 	that 	afternoon
not 	to 	take your case to 	arbitration. 	You 	spoke to the board
for 	approximately 15 minutes. 	At 	that 	point, 	you were 	advised
by 	the AFT president 	that you 	should 	finish up your
presentation quickly. 	Based 	on your 	experience before 	the
board, 	you were not 	of 	the opinion 	that 	your 	appeal would be
given 	serious 	consideration. 	One member 	of 	the board,
Levinson, 	stated that 	full-time faculty members wonder what 	is
wrong with 	the 	part-time 	teachers who 	continue 	to 	return 	to 	the
District 	year 	after 	year.
On or 	about March 	11, 	1987, 	you 	received 	a 	letter 	from AFT
indicating 	that 	your 	appeal 	had 	been denied. 	You were 	directed
to 	telephone Roger 	Scott, 	a member 	of 	the 	grievance committee,
about 	possible ways 	to 	resolve your 	grievances. 	It 	is your
claim that 	Scott 	later 	told you 	that 	he was 	not 	a 	member 	of 	the
grievance committee that year. 	After 	several 	attempts, 	you
were 	able to contact Scott on or 	about March 	18, 	1987. 	You
indicate 	that 	Scott 	pointed 	out 	two 	legal 	weaknesses 	in your
case. 	He 	indicated 	that 	the District's 	failure 	to notify you
of 	the 	job 	opening 	had 	not 	caused you 	to 	suffer 	actual 	damage
since you 	learned 	of 	the 	job elsewhere 	and were 	interviewed.
Scott 	also 	told 	you 	that 	since you 	had 	not 	been 	a 	finalist 	in
the 	selection process, 	the 	legal 	remedy would not 	be 	immediate
promotion 	to 	a 	full-time 	position. 	Scott 	suggested 	three
avenues 	to 	pursue 	that 	might 	resolve 	your 	grievance. 	He
proposed 	a meeting with yourself, 	Cerrato, 	and one other
full-time math teacher. 	During 	this meeting, 	Scott 	suggested
that 	participants 	might 	review your 	qualifications 	and 	discuss
things 	in 	a more 	rationale manner. 	Scott 	also 	suggested 	that
you 	apply 	for 	a 	new 	full-time 	position 	then 	being 	offered 	by
the math department. 	He 	also 	suggested 	that you 	apply 	for 	jobs
elsewhere.
On or 	about March 	24, 	1987, 	Scott 	called you 	and 	said 	he 	had
met with Cerrato 	and Walsh 	the 	previous 	day. 	Scott 	proposed 	a
meeting, 	however, 	Cerrato 	refused to meet. 	You 	also 	allege
that 	Scott 	spoke 	to Walsh 	at 	this 	time 	and Walsh 	indicated
that, 	while you were unquestionably very bright 	in math, 	that

John Pearce
November 25, 1987
Page 5
did not make you a good teacher. 	Also on this date, 	you
received a 	letter 	from the District 	indicating 	that 	all
full-time positions 	for 	the 	fall 	of 	1987 had been canceled.
Based on the foregoing, 	the charge as presently written does
not 	state 	a prima 	facie violation of EERA for the 	reasons 	that
follow. 	Section 3544.9 	imposes on the employee organization
recognized or certified 	as 	the exclusive representative 	a duty
to 	fairly represent each 	and every employee 	in the bargaining
unit. 	The Board has concluded that 	a union breaches 	its duty
of 	fair 	representation 	if 	it 	acts 	arbitrarily, 	discriminatorily
or 	in bad faith. 	Rocklin Teachers Professional Association
(Romero) 	(1980) PERB Decision No. 	124. 	The Board has adopted
the 	ruling of the United States 	Supreme Court 	in Vaca v. 	Sipes
(1976) 386 U.S. 	171. 	In that decision, 	the Supreme Court
declared that 	a union may not 	arbitrarily ignore 	a meritorious
grievance or process 	it 	in a perfunctory fashion. 	In this case
the 	factual 	allegation 	relevant 	to the manner 	in which AFT
handled your grievance 	concerns 	the 	fact 	that Hanzo 	failed 	to
meet with you until 	the day of 	the formal meeting. 	This
allegation, without more, 	does not demonstrate that your
grievance was handled 	in 	a perfunctory manner.
In relying on the Vaca 	decision 	in cases 	arises under 	the EERA,
the Board has 	also held 	that 	an 	individual employee does 	not
have 	an absolute 	right 	to 	have his/her 	grievance taken to
arbitration. 	The Board will dismiss charges 	that 	the duty of
fair 	representation has 	been breached 	if a union has made 	a
honest, 	reasonable determination that 	a grievance lacks merit.
Modesto Teachers Association 	(Lagos) 	(1986) 	PERB Decision
No. 	576; Sacramento Teachers Association (Fanning) 	(1984) 	PERB
Decision No. 	428. 	In this case, 	your allegations do not
demonstrate that AFT's decision not 	to pursue your grievance 	to
arbitration was devoid 	of 	honest 	judgment. 	The 	fact 	that 	Hanzo
first 	believed your 	case 	had merit 	and 	thought 	otherwise
thereafter 	is not 	sufficient 	reason to question AFT's decision
not 	to pursue arbitration 	in your 	case. 	Hanzo's 	subsequent
impressions were consistent with 	those of 	Levinson who was
discouraging 	and pointed 	out 	the 	potential 	pit 	falls 	in your
case.
The major 	contention you 	raise discrediting 	the union's
assessment 	of your 	case concerns 	the 	animosity between the
full-time 	and part-time 	instructors. 	You have 	indicated 	that
within the mathematics department, 	membership in AFT is high.
You have made several 	suggestions 	as 	to why this 	internal
animosity affected AFT's 	decision 	to pursue your 	case 	to
arbitration. 	However, 	the fact that Luez was AFT treasurer 	at
the time he wrote the 	letter of 	recommendation is not 	linked 	in

John 	Pearce
November 25, 	1987
Page 6
any way 	to 	the Federation's 	decision 	regarding your
arbitration. 	Nor 	does 	the 	fact 	that Levinson 	told you of 	the
math department's 	propensity to 	fill 	full-time 	positions 	from
the 	outside 	relate 	to AFT's 	decision 	to 	pursue 	arbitration.
Finally, 	neither does 	the proximity of 	Levinson's office to the
math 	department.
In 	addition, 	my 	review of 	the merits of your 	case 	further
dispels your 	claim 	that 	AFT's 	decision 	not 	to 	pursue 	your
grievance to arbitration was 	arbitrary, 	discriminatory or
motivated by bad 	faith. 	AFT's 	analysis 	that your 	upgrading
grievance would 	be difficult 	to 	prove 	is 	not 	unfounded. 	The
contract 	provision upon which you 	rely 	appears 	in Article 	12,
paragraph D. 	In pertinent 	part, 	it 	states that employees of
the 	District will 	be 	given 	first 	consideration when 	additional
hours 	are available 	for 	assignment. 	Aside 	from the 	scheduling
of 	in-house 	applicants during 	the 	first week, 	a matter de Primo
thought was 	a disadvantage, 	you 	have 	alleged 	no 	facts
suggesting a breach of 	that provision. 	Moreover, 	Article 	12,
paragraph B, 	includes 	numerous 	factors 	to be considered 	in 	all
decisions 	involving 	upgrading. 	Given 	the 	arguable 	nature of
your 	contract 	claim, 	it 	is difficult 	to conclude that AFT's
decision 	not 	to 	pursue your 	case 	to 	arbitration 	lacked 	reasoned
judgment. 	In sum, 	I do not 	find 	from all 	the factual
allegations 	raised 	in 	this 	charge 	sufficient 	evidence 	to
indicate 	arbitrary, 	discriminatory, 	or 	bad 	faith conduct.
For 	these 	reasons, 	the charge 	as 	presently written does 	not
state 	a prima 	facie case. 	If you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the charge 	accordingly. 	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 December 	4, 	1987, 	I 	shall 	dismiss
your 	charge. 	If 	you have 	any questions 	on how to 	proceed,
please call me at 	(415) 	557-1350.
Sincerely,
Carol A. 	Vendrillo
Staff 	Attorney
3260t