University Council-American Federation of Teachers (Chan) (PERB 1062H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NING-PING 	CHAN,
Charging 	Party,
v.
UNIVERSITY COUNCIL 	- 	AMERICAN
FEDERATION OF TEACHERS,
Respondent.
Case No. 	SF-CO-36-H
PERB Decision No. 	1062-H
October 13, 	1994
Appearances; 	Ning-Ping Chan, 	on her own behalf; 	Leonard, 	Carder,
Nathan, 	Zuckerman, 	Ross, 	Chin and Remar by Margot A. 	Rosenberg,
Attorney, 	for University Council 	- 	American Federation of
Teacher\s.
Before Caffrey, 	Garcia and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Ning-Ping 	Chan
(Chan) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	Chan filed the unfair practice 	charge 	on
April 	7, 	1994, 	alleging that the University Council 	- 	American
Federation of Teachers 	(UC-AFT) 	violated 	its duty of 	fair
representation 	in handling a grievance 	for Chan. 	This 	conduct
was 	alleged 	to violate 	section 	3571.1 	of 	the Higher 	Education
Employer-Employee 	Relations 	Act 	(HEERA).1 After 	investigation,
1HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571.1 states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
)
)
)
)
)
)
)
)
)
)
______________ )

the Board agent 	dismissed, the 	charge 	for 	failure 	to 	state a prima
facie violation of 	HEERA.
(e) 	Fail 	to represent 	fairly and impartially
all 	the employees 	in the unit 	for which it 	is
the 	exclusive 	representative.
The Board has 	reviewed the 	entire 	record, 	and we hereby
affirm the Board agent's 	dismissal.
JURISDICTION
The Board has 	jurisdiction because: 	(1) 	Chan is 	an employee
and UC-AFT is 	an employee 	organization as 	defined 	in HEERA, 	and
(2) 	Chan's allegations were 	timely filed as unfair practice
charges.
CHAN'S 	REQUEST 	FOR REVIEW OF DISMISSAL
On June 	13, 	1994, 	Chan filed a 	"request for review" 	of 	the
dismissal. 	That 	letter refers 	to 	filing an 	"appeal" 	but 	fails 	to
identify the 	"specific issues 	of procedure, 	fact, 	law or
rationale 	to which the appeal 	is 	taken" 	as 	required by 	PERB
Regulation 32635 (a).2
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	PERB Regulation
32635(a) 	reads, 	in pertinent part:
The appeal 	shall:
(1) 	State 	the specific 	issues of procedure,
fact, 	law or rationale 	to which the appeal 	is
taken;
(2) 	Identify the page or part 	of 	the
dismissal 	to which each appeal 	is 	taken;
(3) 	State 	the grounds 	for each issue 	stated.
22

DISCUSSION
The warning and dismissal 	letters 	demonstrate 	that 	the 	Board
agent performed a 	thorough review of 	the pertinent 	details, 	and
followed 	the 	relevant 	PERB 	precedent 	to 	correctly 	conclude 	that
Chan failed to allege a prima 	facie 	case 	of 	a HEERA violation.
ORDER
The 	Board hereby AFFIRMS 	the 	Board agent's 	dismissal 	of 	the
unfair practice 	charge 	in Case No. 	SF-CO-36-H.
Members 	Caffrey and Johnson 	joined 	in 	this 	Decision.
33

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Poet Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
May 27, 	1994
Ning-Ping 	Chan
Re: 	DISMISSAL 	OF UNFAIR PRACTICE CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Ning-Ping Chan v. 	University Council 	- 	American Federation
of 	Teachers
Unfair Practice Charge No. 	SF-CO-36-H
Dear Ms. 	Chan:
The above-referenced unfair practice 	charge, 	filed on April 	7,
1994, 	alleges, 	inter alia, 	that the University Council 	- American
Federation of 	Teachers 	(UC-AFT) 	breached 	its duty of 	fair
representation 	to Ning-Ping 	Chan 	regarding 	a grievance 	concerning
her years 	of 	professional 	service at 	the 	University of 	California
at Berkeley 	(University). 	This 	conduct 	is alleged to violate
Government 	Code 	section 	3571.1 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated May 18, 	1994,
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 May
26, 	1994, 	the charge would be dismissed.
On May 24, 	1994, 	you 	filed a letter pointing out 	the 	factual
inaccuracies 	in my May 	18, 	1994 	letter and raising arguments
supporting 	the 	issuance 	of 	a complaint. 	Those matters 	which are
pertinent 	to 	the 	case will 	be 	summarized below.
The May 	18, 	1994 	letter 	states 	that 	the University 	informed Chan
in October 	1992 	that 	she would not be 	receiving a 	three-year
appointment. 	Chan points 	out 	that 	the University did not 	inform
her of 	this 	in October 	1992. 	The one-year appointment which she
accepted around 	that 	time 	was 	a position which 	the 	department
urgently needed 	to 	fill. 	Chan accepted the position out 	of
loyalty 	and did not 	question 	then the 	University's 	failure 	to
grant her a 	longer 	term appointment. 	Chan assumed that 	the 	one-
year position would be 	followed by a 	"long 	term position." 	She
now asserts 	that 	the 	University attempted 	to manipulate 	Chan 	into
accepting 	the 	one year position 	in order 	to aid 	its plan 	to deny
her a 	three-year appointment. 	Chan also assumed that 	by granting
--- 	- 	---

Dismissal, etc.
SF-CO-36-H
May 27, 	1994
Page 2
the 	one-year appointment 	the 	University 	had 	"implicitly"
performed 	the 	performance 	evaluation 	that 	the Memorandum of
Understanding 	(MOU) 	requires 	as 	a condition precedent 	to
receiving 	a 	three-year 	appointment.
In addition, 	Chan argues 	that 	the University withheld the basis
for 	its 	calculation of her years 	of 	service until 	it 	responded at
Step 	III 	of 	the grievance on October 14, 	1993. 	On this basis,
she 	alleges 	that 	UC-AFT was 	not 	faced with a 	timeliness 	problem
- - 	the grounds on which UC-AFT declined Chan's 	request 	for
arbitration. 	However, 	there 	is no evidence 	that UC-AFT ignored a
meritorious argument 	for timeliness based on the October 	14, 	1993
date, 	or if 	it did, 	that 	it did so for arbitrary, 	discriminatory
or bad 	faith 	reasons.
The May 	18, 	1994 	letter states 	that 	the 	charge 	fails 	to 	indicate
how UC-AFT representative Gross' 	decision to skip Steps 	I 	and II
of 	the grievance procedure harmed the preparation of 	Chan's 	case.
Chan argues 	that Gross' 	election to forego Steps 	I and II 	of 	the
grievance 	procedure 	deprived her of 	the 	opportunity 	early on 	to
confront 	and 	refute 	the University's 	reasons 	for denying her
service 	credit 	in 	certain 	disputed 	classifications.
The May 	18, 	1994 	letter states 	that 	the difference between Chan's
and Gross' 	calculation of years 	of 	service did not appear to be
crucial 	to the 	success of 	the grievance 	since Gross' 	incorrect
calculation 	resulted 	in more 	than the 	necessary six years 	of
service. 	Chan asserts 	that Gross presented Chan with her
calculation of 	the 	service 	credit 	five minutes before 	the 	Step
III meeting and 	included a 	0.5 	year of 	service 	in 	the 	title 	of
"Acting 	Instructor" 	which should not 	have been included. 	Because
this 	calculation was 	not 	supported by MOU language, 	the
University refuted this amount of 	time and, 	as a consequence,
Gross' 	calculation of 	6.33 years, 	without 	the 	0.5 year credit,
fell 	below the minimum six-year requirement. 	Had Gross 	included
service 	in those 	titles which Chan sought 	to include, 	the 	six-
year requirement would have been met. 	Thus, 	the difference
between Gross' 	calculation and Chan's 	calculation was material 	to
the 	outcome 	of 	the hearing. 	Chan further asserts 	that 	the
propriety 	of 	including 	the 	service 	comprising 	Chan's 	calculation
"is 	not 	subject 	to differences 	of 	opinion." 	Chan 	insists 	that
the MOU, 	to which Gross 	failed to refer 	in the Step 	III meeting,
irrefutably establishes her eligibility. 	However, 	Chan does not
include 	the 	language of 	the MOU proving 	this. 	She also does 	not
explain 	how UC-AFT 	could 	have 	avoided 	the 	timeliness 	problem in
arbitration based 	on an argument 	establishing 	an 	earlier date 	of
accumulation of 	the 	six years 	(incorporating 	those periods 	of
service which Chan believes Gross should have included), 	as
explained by Ed Purcell 	in his December 6, 	1993 	letter, 	wherein
_)

Dismissal, etc.
SF-CO-36-H
May 27, 	1994
Page 3
UC-AFT declined Chan's 	request 	for arbitration. 	Purcell 	noted
that 	an 	earlier date 	of 	accumulation would have put 	Chan 	on
notice 	of 	the 	contract violation at yet 	an earlier date, 	causing
an even greater 	lapse 	of 	time between 	the violation and 	the
filing of 	the 	grievance.
The May 18, 	1994 	letter states 	that 	the 	charge 	fails 	to specify
the 	grounds 	for 	concluding 	that UC-AFT breached 	its 	duty of 	fair
representation with 	respect 	to 	a potential 	grievance 	alleging
retaliation 	for Chan's union activities. 	Chan asserts 	that 	the
University retaliated, 	and continues 	to retaliate, 	against her
for union activity 	in violation of 	the MOU and 	that 	UC-AFT 	chose
to 	ignore her meritorious grievance as 	to this matter. 	The
University's 	retaliation was making a 	"fraudulent 	claim" 	that 	she
had 	"accumulated 	5.5 	years 	of 	service 	by December 	1991" 	and
suggesting 	that 	"she 	should quietly 	leave." 	No date 	is 	given as
to when 	the 	University made 	this 	fraudulent 	claim or when Chan
requested, 	and UC-AFT refused, 	to process 	the grievance based on
this 	conduct. 	Chan's 	letter appears 	to 	indicate 	that 	the
University's 	fraud 	occurred 	following 	a break 	in 	service 	which
ended on October 31, 	1992, 	which would make any allegation of a
breach of a duty of 	fair representation untimely. 	(Gov. 	Code,
sec. 	3563.2(b).) 	No additional 	information is provided to
establish 	that 	UC-AFT 	refused 	to process 	a meritorious 	grievance
based on 	retaliation 	for arbitrary, 	discriminatory or bad 	faith
reasons.
The May 18, 	1994 	letter states 	that 	the 	charge lacks 	evidence
that 	UC-AFT's 	refusal 	to arbitrate 	Chan's 	years-of-service
grievance was 	"without 	a 	rational 	basis 	or devoid of 	honest
judgment." 	Chan asserts 	that UC-AFT's 	decision to decline 	to
take her 	case 	to arbitration was 	compelled by Gross' 	earlier 	"bad
faith conduct" 	in representing her at 	Step 	III. 	She 	claims 	that
it 	is 	improbable that Gross' 	conduct, 	involving a list of 	factors
not 	repeated here, 	would suggest 	an honest 	or good 	faith handling
of her grievance. 	She also contends 	that Gross' 	conduct 	implies
that 	Gross 	engaged 	in 	complicity with 	the 	University 	to maintain
its 	fraudulent 	calculation of her years 	of 	service.
The May 18, 	1994 	letter states 	that 	the 	charge 	lacks 	evidence
concerning UC-AFT's 	improper withholding 	of 	evidence. 	Chan
claims 	that 	the University's 	conduct, 	including its October 14,
1993 	calculation of her years 	of 	service, 	its advertising of a
vacancy 	to 	teach a 	course 	for which 	she was 	qualified 	to 	teach,
and 	its 	failure 	to offer her a position, 	constitute a 	continuing
violation of 	the provisions 	regarding post-six-year appointments.
She 	claims 	that 	UC-AFT must 	know of 	a 	legal 	precedent 	that would
avoid 	the 	timeliness 	problems 	with 	the 	years-of-service
grievance, 	based on a continuing violation 	theory or on Chan's
(

Dismissal, etc.
SF-CO-36-H
May 27, 	1994
Page 	4
failure 	to discover 	the University's 	basis 	for 	calculating her
service 	credit until 	its October 14, 	1993 	letter.
The undersigned has 	considered 	the 	foregoing 	facts 	and arguments
and concludes 	that 	they 	fail 	to demonstrate 	that UC-AFT 	failed 	to
pursue 	a meritorious 	grievance 	for arbitrary, 	discriminatory or
bad 	faith 	reasons 	involving 	either a 	contract violation 	of 	Chan's
right 	to 	a post-six year appointment 	or 	retaliation 	for union
activities. 	The additional 	evidence does 	not 	establish 	that
UC-AFT 	ignored, 	for arbitrary, 	discriminatory or bad 	faith
reasons, 	a meritorious 	argument 	that 	Chan's years-of-service
grievance was 	timely. 	Gross' 	alleged misconduct 	is not 	shown to
have 	necessarily 	compelled 	Purcell's 	decision 	to 	reject 	the
grievance 	nor 	demonstrate 	that 	UC-AFT breached 	its 	duty by
forfeiting a meritorious 	grievance 	as 	a 	result 	of 	failing 	to make
certain arguments at Steps 	I, 	II, 	and III of the grievance
procedure.
Therefore, 	I 	am dismissing 	the 	charge based on the 	facts 	and
reasons 	set 	forth above and in my May 18, 	1994 	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
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"
(

Dismissal, etc.
SF-CO-36-H
May 27, 	1994
Page 5
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.)
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 DONN GINOZA
Regional Attorney
Attachment
cc: 	Margot Rosenberg
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
May 18, 	1994
Ning-Ping 	Chan
Re: 	WARNING LETTER
Ninq-Ping Chan v. 	University Council 	- 	American Federation
of 	Teachers
Unfair Practice Charge No. 	SF-CO-36-H
Dear Ms. 	Chan:
The above-referenced unfair practice 	charge, 	filed on April 	7,
1994, 	alleges, 	inter alia, 	that the University Council 	- American
Federation of Teachers 	(UC-AFT) 	breached 	its duty of 	fair
representation 	to Ning-Ping 	Chan 	regarding a grievance 	concerning
her years 	of 	professional 	service 	at 	the University of 	California
at Berkeley 	(University). 	This 	conduct 	is alleged to violate
Government 	Code 	section 	3571.1 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
Investigation of 	the 	charge 	revealed 	the 	following. 	Ning-Ping
Chan began 	teaching 	Chinese at 	the University of 	California at
Berkeley 	in the 	fall 	of 	1971. 	Over the next 	twelve 	or more
years, 	she 	taught 	Chinese 	for at 	least 	18 	quarters 	in the East
Asian Languages Department. 	This 	service qualified her 	for the
benefits under 	the Memorandum of Understanding 	(MOU) 	for 	the
bargaining unit 	of 	non-Senate 	instructors, 	represented by the
UC-AFT. 	During a portion of 	this 	instructional 	time 	she was 	also
pursuing 	an 	advanced 	degree.
On September 17, 	1991, 	Chan filed a grievance under the UC-AFT
MOU after she was 	notified 	that 	her medical 	benefits 	coverage had
lapsed due 	to a break in 	service. 	The 	charge does 	not 	indicate
how 	this 	grievance 	concluded.
Sometime 	in approximately October 	1992, 	the University also
informed 	Chan that 	she 	would not 	be 	receiving 	a 	three-year
appointment 	because 	she 	had only 5.5 	years 	of 	qualified 	service.
This 	constituted a violation of 	the UC-AFT MOU and 	the 	rights 	of
post-six-year appointees. 	The University also 	failed 	to 	conduct
a performance 	evaluation prior to November 	1992, 	as 	required by
the MOU. 	By a letter dated October 26, 	1992, 	Chan was 	offered a
one-year appointment, 	which she accepted.
In July 	1993, 	the University sent 	Chan a 	form requesting a
forwarding address, 	which Chan 	completed and returned. 	The 	form
was 	a Notice 	of 	Resignation Form, 	which the University apparently

Warning 	Letter
SF-CO-36-H
May 18, 	1994
Page 2
later asserted operated to deprive Chan of 	continuing employment.
Chan filed a grievance protesting these actions on May 18, 	1993
and amended it on August 6, 	1993. 	She was represented by Mary
Ruth Gross of UC-AFT.
The charge alleges 	that Gross elected to move the grievance
directly to Step III, 	eliminating additional time and a chance to
discredit the University's defense. 	However, 	the charge does not
indicate how the additional 	time would have aided Chan in the
preparation of her case.
The charge alleges 	that Gross 	failed to represent Chan
appropriately at 	the Step III meeting because Gross presented
Chan with her calculation of Chan's years of service only five
minutes prior to the meeting. 	Chan's figures were different but
she claims she lacked sufficient time to challenge Gross'
figures. 	In a letter attached to the charge dated September 29,
1993 	from Gross 	to University Labor Relations Manager Debra
Harrington, 	described as an addendum to the Step III meeting,
Gross 	submitted arguments which Chan desired to be raised
concerning specifically the 	inclusion of 	time taught 	in the title
of Associate while Chan was a graduate student, 	in the title of
an Acting Instructor, 	and during summer sessions. 	Gross
indicated a desire 	for additional time to discuss 	certain issues
with colleagues 	in UC-AFT and on that basis, 	according to
Harrington's reply letter dated October 5, 	1993, 	Harrington
agreed to hold off her Step III response pending receipt of the
additional 	information from Gross. 	Harrington provided the Step
III response in an October 14, 	1993 letter.
There continued to be a difference of opinion between Chan and
Gross concerning the calculation of years of service. 	It is not
clear that the difference was crucial however, 	since Gross'
lowest calculation was 	6.33 years through the end of the 	1992-93
year, 	or more than enough to have qualified Chan for a three-year
appointment at that time. 	In any event, 	when Chan requested that
the grievance be taken to arbitration, 	UC-AFT, 	through Labor
Consultant Edward Purcell, 	agreed to change its initial position
and to believe that all of the service in the title of Associate,
including summer session teaching, 	should count toward the six
year threshold. 	However, 	Purcell, 	in his December 6, 	1993 letter
to Chan, 	communicated UC-AFT's decision not to take the grievance
to arbitration because the grievance was not timely filed.
Based on the 5.5 years of service calculation, 	which Chan chose
not to dispute in October 1992, 	she accepted the one-year
appointment in reliance on the incorrect calculation. 	When that
term was completed, 	the University failed to offer her a three-
(

Warning 	Letter
SF-CO-36-H
May 18, 	1994
Page 3
year appointment 	and as 	a 	consequence 	Chan 	filed her grievance.
In her October 14, 	1993 	Step 	III response letter to Chan,
Harrington 	contended 	that 	the 	grievance 	was 	not 	timely 	filed
because 	it 	should have been 	filed within 	six months 	after 	Chan
was 	notified 	of 	the 	5.5 	year 	calculation.
Purcell 	explained that 	if 	Chan's 	calculation of years were 	relied
upon, 	her 	six year 	requirement 	would have been 	fulfilled 	in 	the
fall 	of 	1990, 	making the grievance several years 	late. 	If an
argument 	were 	advanced placing 	her 	eligibility 	for a 	three-year
appointment 	in 1992-93, 	UC-AFT believed that the October 26, 	1992
appointment 	letter 	constituted 	the 	first 	notice 	of 	a 	contract
violation.
The 	charge 	alleges 	that 	UC-AFT withheld 	information 	regarding a
"union affiliation definition until 	12-6-93." 	Purcell's 	December
6, 	1993 	letter notifies 	Chan that 	it 	is willing to offer her a
$1,000 	reimbursement 	of 	attorney's 	fees 	if 	she desires 	to
institute a 	court 	action on her own. 	He 	then indicates 	that 	if
he 	receives proof 	of attorney service billings, 	he will 	submit
her 	case 	to 	state 	and national 	affiliates 	with a 	request 	to
provide 	additional 	matching 	funds.
The 	charge 	alleges 	that 	UC-AFT refused 	to 	commence 	a 	"legal
action" 	against 	the University on her behalf.
The 	charge alleges 	that 	UC-AFT 	failed 	to 	file a 	complaint 	on her
behalf 	alleging 	that 	she 	had been denied a 	teaching 	load 	in
retaliation 	for union activities. 	The 	charge does 	not 	explain
the basis 	for 	this 	claim.
The 	charge 	alleges 	that 	UC-AFT 	failed to 	inform Chan of 	the
existence of 	the 	Public Employment Relations Board 	(PERB).
Based on the 	facts 	state 	above, 	the 	charge as presently written
fails 	to 	state 	a prima 	facie violation of 	the HEERA for 	the
reasons 	that 	follow.
PERB has 	held 	that 	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
Teachers Professional Association 	(1980) 	PERB Dec. 	No. 	124.) 	In
the 	context 	of 	grievance handling, 	PERB has defined the scope of
the 	duty as 	follow:
. 	. 	. Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a grievance 	does 	not
(

r
Warning 	Letter
SF-CO-36-H
May 18, 	1994
Page 	4
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. 	[Citations 	omitted.]
(United Teachers 	- 	Los Angeles 	(Collins)
(1982) 	PERB Dec. No. 	258.)
In addition, 	in order to show a prima 	facie violation 	involving a
breach of 	the 	duty of 	fair representation, 	the 	charging party
must 	present 	facts 	which would 	justify 	a 	finding 	that 	the union
acted without 	a 	rational 	basis 	or 	in a way that 	is 	devoid of
honest 	judgment. 	(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) 	PERB Dec. 	No. 	332.)
The 	charge 	fails 	to provide 	specific 	facts 	indicating 	that UC-AFT
failed 	to pursue 	a meritorious 	grievance 	for arbitrary,
discriminatory, 	or bad faith reasons. 	HEERA does not place an
absolute duty on UC-AFT 	to 	elevate 	a grievance 	to arbitration.
In its December 6, 	1993 	letter, 	UC-AFT articulated its 	reasons
for declining to take, the case to arbitration. 	There 	is no
showing 	that 	these 	reasons were without 	a rational 	basis 	or
devoid of 	honest 	judgment. 	The disputes which Chan had with
Gross 	concerning 	the processing 	of 	her grievance 	do 	not 	appear 	to
have 	adversely 	impacted UC-AFT's 	representation of 	Chan. 	Nor
does 	the 	conduct 	on Gross' 	part appear to have been arbitrary,
discriminatory, 	or in bad faith.
UC-AFT 	owes 	no duty of 	fair representation 	in regard 	to 	the
avenues 	of 	relief 	other 	than the grievance procedure.
(California Faculty Association 	(Pomerantsev) 	(1988) 	PERB Dec.
No. 	698-H.) 	Therefore, 	UC-AFT's failure to institute a legal
action 	on Chan's 	behalf 	and to notify Chan of 	the 	existence 	of
PERB 	fail 	to 	state a violation.
The 	allegations 	that 	UC-AFT failed 	to 	represent 	Chan 	regarding
alleged 	retaliation 	for union activities 	and withheld 	information
contain 	insufficient 	evidence 	from which to 	conclude 	that 	a
violation occurred. 	There 	is 	no 	showing 	that UC-AFT 	forfeited a
meritorious grievance 	for arbitrary, 	discriminatory, 	or bad 	faith
reasons.
(

Warning 	Letter
SF-CO-36-H
May 18, 	1994
Page 	5
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 May 26. 	1994. 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional 	Attorney
(