Victor Elementary Teachers Association (Janssen) (PERB 1017E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SHIRLEY A. 	JANSSEN,
Charging 	Party,
v.
VICTOR 	ELEMENTARY 	TEACHERS
ASSOCIATION,
Respondent.
Case No. 	LA-CO-606
PERB Decision No. 	1017
October 8, 	1993
Appearance; 	Shirley A. 	Janssen, 	on her own behalf.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Shirley A. 	Janssen
(Janssen) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	In her charge, 	Janssen alleged that 	the Victor
Elementary Teachers Association denied her 	the 	right 	to 	fair
representation 	guaranteed by 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	section 3544.9 	and thereby violated EERA section 3543.6(b).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
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.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	the unfair practice
charge and Janssen's 	appeal. 	The Board 	finds 	the Board agent's
dismissal 	to be 	free 	of prejudicial 	error and adopts 	it 	as 	the
decision of 	the Board itself.
DISCUSSION
Janssen 	indicates 	in her appeal 	that 	she 	failed 	to amend her
charge 	after 	the 	Board agent 	issued 	the warning 	letter because
her 	representative 	failed 	to 	inform her of 	the 	Board agent's
warning letter. 	Janssen 	then responds 	to 	specific 	elements 	of
the 	Board agent's 	warning 	letter and provides 	additional 	factual
information 	in support 	of 	her original 	charge.
PERB Regulation 326352 states, 	in pertinent part:
Unless good cause is shown, 	a charging party-
may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
In accordance with normal 	PERB procedures, 	Janssen 	filed a
"Notice of Appearance 	Form" 	with her charge 	in February 1993.
With that 	form, 	Janssen designated the 	representative 	she
authorized to appear on her behalf 	in this proceeding. 	The
failure 	of 	Janssen and her 	formally designated 	representative 	to
communicate 	in an 	effective 	and 	timely manner does 	not 	constitute
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

good cause under PERB Regulation 32635(b). 	Therefore, 	Janssen
may not present new allegations 	or evidence 	on appeal, 	and her
charge must 	be 	dismissed.
ORDER
The unfair practice 	charge 	in case No. 	LA-CO-606 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Hesse 	joined 	in 	this 	Decision.
W
	3

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
April 29, 	1993
Sol 	I. 	Pavlosky
Koppel 	and Associates
16130 	Kokanee 	Road
Apple Valley, 	California 92307
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CO-606, 	Shirley A. 	Janssen v. 	Victor
Elementary 	Teachers 	Association
Dear Mr. 	Pavlosky:
In the above-referenced charge, 	filed on February 16, 	1993,
employee 	Shirley A. 	Janssen alleges 	that 	the Victor Elementary
Teachers 	Association 	(Association) 	denied her membership 	and 	the
right 	to 	fair 	representation. 	This 	conduct 	is alleged to violate
Government 	Code 	section 3543.6(b) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
I 	indicated to you, 	in my attached letter dated April 	16, 	1993,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie 	case
within 	the 	jurisdiction 	of 	the 	Public 	Employment 	Relations 	Board.
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 April 26, 	1993, 	the charge
would be 	dismissed.
I 	have 	not 	received either an amended 	charge 	or a 	request 	for
withdrawal. 	Therefore, 	I am dismissing the 	charge based on the
facts 	and 	reasons 	contained 	in my April 	16 	letter.
Right 	to Appeal
Pursuant 	to 	Public Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked no 	later

LA-CO-606
April 29, 	1993
Page 2
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code of
Regs., 	tit. 8, 	sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all 	parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered 	or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file a document
with the 	Board 	itself, 	must be 	in writing and filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for filing 	the 	document.
The 	request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding 	the 	extension, 	and shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

LA-CO-606
April 29, 	1993
Page 3
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
By
THOMAS 	J. 	ALLEN
Regiona	Regional Attorney	l 	Attorney
Attachment
cc: 	Charles 	R. 	Gustafson

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERS
April 16, 	1993
Sol 	I. 	Pavlosky
Koppel 	and Associates
1613 0 Kokanee Road
Apple Valley, 	California 92307
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-606,
Shirley A. 	Janssen v. 	Victor Elementary Teachers Association
Dear Mr. 	Pavlosky:
In the above-referenced charge, 	filed on February 16, 	1993,
employee 	Shirley A. 	Janssen alleges 	that 	the Victor Elementary
Teachers 	Association 	(Association) 	denied her membership and 	the
right 	to 	fair representation. 	This 	conduct 	is 	alleged to violate
Government 	Code 	section 	3543.6(b) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).
My 	investigation of 	the 	charge 	reveals 	the 	following 	facts.
Until June 	16, 	1992, 	Janssen was employed by the Victor
Elementary School 	District 	(District) 	as a probationary employee,
in 	a bargaining unit 	for which 	the Association 	is 	the 	exclusive
representative. 	The 	collective bargaining agreement 	between 	the
District 	and 	the Association does 	not 	appear to address 	the
reemployment of probationary employees; 	Article III, 	Section
C.2.b(6)(b)2., 	specifically states 	that 	a grievance arbitrator
"shall 	have no power or authority to 	recommend or 	resolve" 	the
"failure 	to 	reemploy a probationary employees." 	Under Article
III, 	Section C.2.a, 	a grievance must be 	filed within 20 	work days
of 	the grievable event. 	Under Article III, 	Section A, 	the
grievance 	procedure 	does 	not 	apply 	to Affirmative Action matters,
for which 	there 	is 	a 	separate procedure.
On March 4, 	1992, 	the District decided not 	to reemploy
Janssen. 	Prior to 	that decision, 	the Association allegedly
failed 	to 	represent 	Janssen and 	"conveyed an evasive, 	deceptive
and ambiguous 	motive." 	During 	the week after the 	decision,
Association 	staff 	person 	Bill 	Riblet 	allegedly 	told 	Janssen 	that
she was 	"out" 	and 	that 	she 	"may as 	well begin applying at 	other
Districts."
Also 	on March 4, 	1992, 	Janssen applied for membership 	in the
Association, 	but 	dues were not 	deducted. 	Janssen 	inquired about

LA-CO-606
April 15, 	1993
Page 2
this at 	the District office on April 	10, 	1992, 	and learned that
no 	authorization had been 	received. 	Janssen's 	employment 	with
the District 	ended on June 	16, 	1992. 	Apparently her Association
membership application was 	nonetheless 	submitted 	during 	the
summer, 	since 	she did receive 	the September and October 	issues 	of
Association publications.
Janssen met 	during 	the 	summer with Association Vice
President 	Barbara Dew. 	Janssen 	sought 	and 	eventually 	obtained
copies 	of 	the District's 	seniority 	list 	and Affirmative Action
policy and procedures. 	On October 17, 	1993, 	Janssen met with Dew
and Association President David Hunter, 	but 	nothing happened as 	a
result 	of 	this meeting.
Sometime 	during Janssen's 	employment 	by 	the 	District 	she
received 	an 	evaluation 	that 	allegedly violated 	the 	collective
bargaining agreement, 	but no grievance was 	filed 	challenging 	the
evaluation. 	Janssen 	filed her unfair practice 	charge 	on 	February
16, 	1993, 	eight months after the end of her employment.
Based on the 	facts stated above, 	the 	charge does not 	state a
prima 	facie violation 	of 	the 	EERA within 	the 	jurisdiction of 	the
Public Employment Relations Board 	(PERB), 	for the 	reasons 	that
follow.
Charging Party Janssen has 	alleged that 	the Association, 	as
exclusive 	representative, 	denied Charging 	Party the 	right 	to 	fair
representation guaranteed by EERA section 	3544.9 	and 	thereby
violated section 3543.6(b). 	The duty of 	fair representation
imposed on 	the 	exclusive 	representative 	extends 	to 	grievance
handling. 	(Fremont Teachers Association 	(King) 	(19 80) 	PERB
Decision No. 	125; 	United Teachers of Los Angeles 	(Collins) 	(1983)
PERB Decision No. 	258.) 	In order to state a prima 	facie
violation 	of 	this 	section of 	the 	EERA, 	Charging 	Party must 	show
that 	the Association's 	conduct was arbitrary, 	discriminatory or
in bad faith. 	In United Teachers of Los Angeles 	(Collins), 	the
Public 	Employment 	Relations 	Board 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling 	a grievance 	does 	not
constitute 	a breach of 	the union's 	duty.
[Citations.]
A union may 	exercise 	its 	discretion 	to
determine 	how far 	to pursue a grievance 	in
the 	employee's 	behalf 	as 	long as 	it 	does 	not
arbitrarily 	ignore 	a meritorious 	grievance 	or
process 	a 	grievance 	in a perfunctory 	fashion.

LA-CO-606
April 15, 	1993
Page 3
A union 	is 	also not 	required 	to process 	an
employee's 	grievance 	if 	the 	chances 	for
success are minimal.
In order to 	state a prima 	facie 	case 	of 	arbitrary conduct
violating 	the duty of 	fair 	representation, 	a 	Charging 	Party:
" . . . 	must 	at 	a minimum 	include 	an assertion
of 	sufficient 	facts 	from which 	it 	becomes
apparent 	how or 	in what manner 	the 	exclusive
representative's 	action 	or 	inaction was
without 	a 	rational 	basis 	or devoid of 	honest
judgment. 	(Emphasis added.)" 	[Reed District
Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
Government 	Code 	section 3541.5(a(l) 	states 	that 	PERB 	"shall
not 	. 	. 	. 	[i]ssue a complaint 	in respect of any charge based upon
an alleged unfair practice 	occurring more 	than 	six months 	prior
to the 	filing of 	the 	charge." 	Because 	the present 	charge was
filed on February 16, 	1993, 	only alleged unfair practices
occurring on or after August 	16, 	1992, 	are within PERB's
jurisdiction.
The 	only event 	alleged 	in the 	charge 	to have 	taken place 	on
or after August 	16, 	1992, 	was Janssen's meeting with Association
officers Dew and Hunter on October 17, 	1992. 	Nothing happened as
a result 	of 	that meeting, 	and it 	is not apparent how the
Association's 	inaction at 	that point was 	without 	a 	rational
basis, 	devoid of honest judgment, 	discriminatory, 	or in bad
faith. 	By then, 	Janssen had not been a District 	employee 	or a
member of 	the bargaining unit 	for four months. 	The 	time 	for
filing a 	grievance 	with 	regard 	to 	any grievable 	event 	during
Janssen's 	employment 	had 	expired without 	the 	filing 	of 	a
grievance, 	so there was no grievance handling 	for the Association
to do.1 In fact, 	it 	is not apparent 	that 	there 	is anything
significant 	that 	the Association 	could 	have 	done 	for Janssen
after 	the District's 	decision not 	to 	reemploy her 	- - a 	decision
made on March 4, 	1992, 	more 	than eleven months before 	the 	charge
was 	filed. 	Furthermore, 	the Association's alleged refusal 	of
Janssen's 	request 	for membership 	apparently 	occurred and was
known to Janssen by April 	10, 	1992, 	more 	than 	ten months before
the 	charge was 	filed.
1The one 	grievable 	event 	appears 	to have 	been 	the 	evaluation
that 	allegedly violated 	the 	collective 	bargaining 	agreement.

LA-CO-606
April 15, 	1993
Page 4
For these 	reasons 	the 	charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there 	are 	any factual 	inaccuracies
in 	this 	letter or. additional 	facts which would 	correct 	the
deficiencies 	explained above, 	please amend 	the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First Amended Charge,
contain all 	the 	facts and allegations you wish 	to make, 	and
-	be 	signed under penalty of 	perjury by 	the 	charging 	party. 	The
amended 	charge must be 	served on 	the 	respondent 	and 	the. original
proof 	of 	service must be 	filed with 	PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before April 	26, 	1993, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
•
"