San Jose Teachers Association (Allen) (PERB 1065E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PATRICIA L. 	ALLEN,
Charging 	Party,
v.
SAN JOSE TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
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) 	Case No. 	SF-CO-458
PERB Decision No. 	1065
November 	4, 	1994
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Appearances: 	Patricia L. 	Allen, 	on her own behalf; 	California
Teachers Association by Ramon E. 	Romero, 	Attorney, 	for San Jose
Teachers Association, 	CTA/NEA.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations Board 	(Board) 	on appeal by Patricia L. 	Allen 	(Allen) 	of
a Board agent's 	dismissal 	(attached hereto) 	of 	her unfair
practice 	charge. 	In her charge, 	Allen alleged that 	the San Jose
Teachers Association, 	CTA/NEA 	(Association) 	violated her right 	to
fair 	representation guaranteed under 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA) 	thereby violating
EERA section 3543.6(b).1
EERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
EERA 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, 	Allen's unfair
practice 	charge 	and appeal, 	and the Association's 	response
thereto. 	The Board 	finds 	the warning and dismissal 	letters 	to be
free 	of prejudicial 	error and adopts 	them as 	the 	decision of 	the
Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CO-458 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Garcia 	joined 	in this Decision.
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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
June 27, 	1994
Patricia L. 	Allen
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Patricia L. 	Allen v. 	San Jose Teachers Association. 	CTA/NEA
Unfair Practice Charge No. 	SF-CO-458
Dear Ms. 	Allen:
The above-referenced unfair practice 	charge, 	filed on April 	25,
1994 and amended on April 29, 	May 24, 	and June 16, 	1994, 	alleges
that 	the 	San Jose Teachers Association 	(Association) 	failed 	to
properly 	represent 	Patricia L. 	Allen with respect 	to 	certain
disputes 	with 	the San Jose Unified School 	District 	(District).
This 	conduct 	is 	alleged to violate Government 	Code 	section 3543.6
of 	the Educational 	Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 	10, 	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 June
20, 	1994, 	the charge would be dismissed.
I 	granted you 	an 	extension 	to 	file 	an amended 	charge 	until 	June
27, 	1994. 	I received an amended charge on June 17, 	1994 and
additional documentation on June 17, 	21, 	and 27, 	1994.
The 	undersigned 	has 	reviewed 	the 	additional 	information but
concludes 	that 	the 	evidence 	is 	insufficient 	to 	state a prima
facie violation 	for the reasons 	stated in the June 	10, 	1994
letter.
Therefore, 	I am dismissing 	the 	charge based on the 	facts 	and
reasons 	stated above and those 	contained 	in my June 	10, 	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

C
Dismissal, etc.
SF-CO-458
June 27, 	1994
Page 2
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"
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.)
(

Dismissal, etc.
SF-CO-458
June 27, 	1994
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 DONN GINOZA
Regional Attorney
Attachment
cc: 	Ramon E. 	Romero
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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
June 10, 	1994
Patricia L. 	Allen
Re: 	WARNING LETTER
Patricia L. 	Allen v. 	San Jose Teachers Association. 	CTA/NEA
Unfair Practice Charge No. 	SF-CO-458
Dear Ms. Allen:
The above-referenced unfair practice 	charge, 	filed on April 	25,
1994 and amended on April 	29 	and May 24, 	1994, 	alleges 	that 	the
San Jose Teachers Association 	(Association) 	failed to properly
represent 	Patricia 	L. 	Allen with respect 	to certain disputes with
the San Jose Unified School District 	(District). 	This 	conduct 	is
alleged 	to violate Government 	Code 	section 	3543.6 	of 	the
Educational Employment Relations Act 	(EERA).
Investigation of 	the 	charge 	revealed 	the 	following. 	Patricia 	L.
Allen has been employed as 	a 	teacher since 	1969. 	Allen's
bargaining unit 	is 	exclusively 	represented by 	the 	San Jose
Teachers Association CTA/NEA 	(Association). 	Allen underwent
breast 	cancer 	surgery 	in January 	1992 	and 	subsequently went 	on
disability 	leave 	for various periods 	thereafter. 	She was 	out 	for
portions 	of 	the 	spring 	1992 	semester. 	Allen did not 	receive 	a
classroom observation and 	evaluation during 	the 	1991-92 	school
year.
Allen 	asked Association 	Executive 	Director 	Brian McKenna 	on
several 	occasions 	during 	the period from April 	to June 	1992 	to
prepare 	a grievance 	on her behalf 	regarding the District's
failure 	to 	conduct 	the 	evaluation. 	McKenna 	informed Allen 	that
she 	did not 	have 	a basis 	for a grievance because Allen had been
on leave 	for portions 	of 	the year to 	receive 	chemotherapy
treatments.
Allen 	filed her 	own grievance 	challenging 	the 	District's 	failure
to 	conduct 	the 	classroom observation and 	evaluation. 	The
grievance was 	not 	resolved. 	Allen later requested 	"closure" 	of
the grievance 	in the spring of 	1992.
Allen 	filed 	for a 	summer 	school 	position 	in the 	summer of 	1992
but 	was 	rejected allegedly due 	to her disability. 	Returning 	to
work 	in the 	fall 	of 	1992, 	Allen again requested 	"closure" 	on the
grievance 	with 	respect 	to 	the 	classroom observation 	and
evaluation. 	Allen 	complained 	to McKenna about 	the District's

Warning 	Letter
SF-CO-458
June 10, 	1994
Page 2
failure 	to 	reach 	closure 	on the 	grievance. 	McKenna advised Allen
that 	her grievance was without merit.
Allen was 	on leave 	for surgery 	from November 18, 	1992 	through
January 6, 	1993. 	Patti Gregory, 	Hoover Middle School 	Principal,
instructed Allen 	that 	she 	would 	initiate 	the 	evaluation process
anew and 	conduct 	two 	observations. 	Gregory observed Allen 	in
March 1993, 	which resulted in a 	"good" 	written evaluation.
Gregory 	announced 	that 	she would 	conduct 	a 	second 	observation 	on
April 	29, 	1993. 	Allen objected. 	Allen alleges 	that 	the District
violated unidentified procedural 	provisions 	of 	the 	collective
bargaining agreement 	when 	it 	undertook 	the 	second evaluation.
Allen 	requested 	representation 	from the Association. 	She was
told 	that 	the District 	was 	entitled to 	conduct 	the 	second
observation but 	that 	the Association would 	file 	a 	grievance 	to
challenge 	the 	second evaluation if 	it were negative. 	McKenna
refused 	to personally attend 	the 	assessment 	conference 	held 	in
connection with the second evaluation. 	On March 23, 	1993, 	Allen
filed a 	complaint 	with 	the 	Equal 	Employment 	Opportunities
Commission 	(EEOC), 	alleging racial discrimination in the conduct
of 	the evaluations.
Gregory 	issued 	the 	second written evaluation on May 	5, 	1993.
Allen filed a grievance Against 	this 	evaluation on May 27, 	1993.
Gregory 	refused 	to 	revise 	the 	evaluation. 	She 	told an
Association 	representative 	not 	to 	assist 	Allen with 	the
grievance. 	Allen alleges 	that because 	she had filed a grievance,
the District 	began to 	collect 	complaints 	against 	her 	from
students 	between May 	1993 	and September 	1993. 	By letter dated
May 27, 	1993, 	Gregory issued Allen a letter of 	reprimand for
allegedly 	threatening 	students 	if 	they were 	disruptive 	during 	the
classroom observations. 	By letter dated May 27, 	1993, 	Ken
Yamasaki, 	Assistant Superintendent, 	issued a notice of
unprofessional 	conduct 	reiterating 	the 	accusations 	of 	Gregory.
Allen alleges 	that 	these 	acts 	occurred because 	she 	filed a
grievance 	and were unfair because 	she was 	not provided with an
opportunity 	to 	reform her 	conduct prior 	to 	the 	actions.
Allen 	requested 	that 	the McKenna 	file 	grievances 	against 	the
letter of 	reprimand and notice 	of unprofessional 	conduct. 	He
refused. 	Allen filed a grievance on June 21, 	1993 	challenging
the 	evaluation on procedural 	grounds 	as 	well 	as 	the 	letter of
reprimand and notice 	of 	unprofessional 	conduct. 	The Association
only provided assistance 	in typing 	the 	grievance. 	As 	of August
1993, 	the 	letter of 	reprimand and notice 	of unprofessional
conduct were no 	longer 	in Allen's personnel 	file. 	During the
summer of 	1993, 	McKenna 	told Allen that he had heard she had a
"discipline 	problem." 	Allen alleges 	that 	the 	reason McKenna 	told
her 	this 	was 	because he knew she was planning 	to 	complain to 	the
(

Warning 	Letter
SF-CO-458
June 10, 	1994
Page 3
Association Board 	of 	Directors 	about 	a physical 	confrontation
between McKenna and herself 	during a meeting 	in his 	office 	on 	in
June 	1993. 	Following a meeting about 	McKenna's 	proposed 	changes
to Allen's written response 	to her evaluation, 	McKenna ordered
Allen out 	of his 	office at 	closing time, 	Allen refused, 	and
McKenna 	then pushed Allen out 	of his 	office. 	Allen 	filed a
complaint 	with 	the police, 	which was 	rejected by the District
Attorney's 	office.
Allen alleges 	that 	McKenna 	concocted a 	series 	of 	events 	intended
to result 	in the District 	terminating her because 	she 	complained
about 	her unfair 	treatment 	and because 	she 	complained 	to 	the
Association Board 	of 	Directors 	about 	their 	confrontation 	in June
1993.
Allen 	alleges 	that 	a District 	principal 	issued her 	a 	third 	letter
of 	reprimand during 	the 	summer school 	session of 	1993 	three days
after her 	father died. 	There 	is no allegation regarding
McKenna's 	role 	in 	this 	action.
During the 	summer months, 	Allen retained the legal 	services 	of
Priscilla Winslow. 	Winslow communicated 	to 	the District 	on
Allen's 	behalf.
By letter dated September 17, 	1993, 	Association President Linda
Wilson 	informed Allen 	that 	the Association Board 	of 	Directors 	had
met 	to discuss 	her 	complaints. 	The Association outlined various
steps 	it 	intended 	to 	take 	to address 	some 	of her complaints,
including 	requesting 	that 	the Association 	assign Winslow 	to
represent 	her with 	regard 	to 	the 	letters 	of 	reprimand and notice
of unprofessional 	conduct.
On September 26, 	1993, 	McKenna attended a meeting regarding a
parent 	complaint 	about 	a student who had 	failed Allen's 	class.
McKenna wrote 	a 	letter 	to 	the District 	protesting 	the use 	of 	the
letter against Allen. 	The District 	later noted the 	complaint 	in
a 	15-day 	suspension 	issued 	to Allen.
On September 27, 	1993, 	Allen attended a meeting concerning the
summer 	session 	letter of 	reprimand. 	Association representative
Lora 	Traveler 	attended.
On September 30, 	1993, 	the District 	issued Allen a notice of
15-day suspension. 	The notice was based on three 	student
complaints 	and 	the parent 	complaint 	about 	the 	student 	who had
failed her 	class. 	McKenna 	"lured" 	Allen to 	the District 	offices
where 	the 	notice 	could be 	delivered. 	He 	insisted 	that Allen 	come
to 	the 	offices 	to view her personnel 	file. 	McKenna 	told her that
Gregory had 	"something 	terrible 	to give 	her." 	When Allen
(

Warning 	Letter
SF-CO-458
June 10, 	1994
Page 4
attempted to leave, 	McKenna told her to sit and wait or the
Association would no longer assist her. 	Association President
Mary Jo Pokriots, 	who was present until just before the notice
was delivered, 	was wearing black as though to tell her that
something negative was about to happen. 	Allen grieved the 15-day-
suspension.
Also, 	sometime in September 1993, 	the Association recommended to
its grievance committee that 	it proceed to arbitration on only
the grievance 	involving the 	15-day suspension and not proceed on
any of 	the other grievances 	filed by Allen. 	On September 28,
1993, 	the Association's grievance committee met without Allen's
knowledge and adopted this 	recommendation. 	The Association
promised Allen the assistance of an attorney, 	but asserts that
one was not present on September 30, 	1993, 	when she was issued
the 15-day suspension by the District.
McKenna later arranged for an appointment with Gregory to discuss
Gregory's planned evaluation process. 	At the meeting Gregory
indicated that Allen would be evaluated as 	though she were a
starting teacher.
Allen injured her hand on October 5, 	1993. 	Thereafter she went
on medical leave from October 6, 	1993 through June 17, 	1994.
On October 18, 	1993, 	McKenna called Allen into his office and
wrote a settlement proposal 	to the District which called for a
lifting of the 1 5-day suspension, 	Allen taking a medical leave
for one year, 	and certain terms 	for District-paid health benefits
and a partial 	salary. 	Allen alleges that she 	"left knowing that
the proposal was accepted by the District." 	The settlement
proposal, 	authorized by Allen, 	was later rejected by the
District.
The 	15-day suspension grievance was 	scheduled for arbitration on
March 28 and 29, 	1994. 	Allen was represented by Association-
appointed attorney Priscilla Winslow. 	Allen requested that 	the
arbitration be 	continued while she was on medical 	leave. 	The
request was denied. 	Allen wrote a letter to the District's
attorney stating that she would not attend because she was on
disability, 	she felt that by participating in the proceedings she
would be validating an otherwise unlawful suspension, 	and she
could not negotiate a settlement with the District wherein it
would not disavow any hidden agendas. 	When Allen failed to
appear at the arbitration, 	the Association voted to withdraw its
request 	for arbitration and notified the District. 	The District
then notified Allen on April 11, 	1994 that it intended to impose
the 15-day suspension.
(
•

C
Warning 	Letter
SF-CO-458
June 10, 	1994
Page 5
On April 	22, 	1994, 	Allen wrote 	to the Association to request 	that
it 	ask the District 	to 	reconsider 	its 	decision to 	implement 	the
15-day suspension. 	She proposed to drop her EEOC 	charges 	if 	the
District 	would 	rescind 	the 	15-day 	suspension. 	The Association
did not 	act 	on her request.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state 	a prima 	facie violation of 	the 	EERA for 	the
reasons 	that 	follow.
Government 	Code 	section 3541.5(a) 	states 	that 	the 	Public
Employment Relations Board 	(PERB) 	"shall not 	. 	. 	• 	issue 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."
PERB has 	held 	that 	the 	six month period 	commences 	to 	run when the
charging party knew or 	should have 	known 	of 	the 	conduct 	giving
rise 	to 	the alleged unfair practice. 	(Regents 	of 	the University
of California 	(1983) 	PERB Dec. 	No. 	359-H.) 	Since the charge was
filed on April 	25, 	1994, 	the statute of limitations period began
to run on October 25, 	1993.
The 	events 	alleged 	to 	support 	the 	claim that McKenna 	conspired
with 	the District 	to arrange 	for Allen's 	termination all 	occurred
prior to October 25, 	1993. 	The Association's decision to reject
all 	grievances 	except 	the 	15-day suspension was made 	on September
28, 	1993. 	Therefore, 	these claims are untimely and no complaint
may 	issue with 	respect 	to 	them.
The only allegations 	that are. timely relate to the Association's
withdrawal 	from arbitration and 	its 	failure 	to act 	on Allen's
subsequent 	request 	for 	reconsideration.
PERB 	has 	held 	that 	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 	follows:
. 	. 	. 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 	omitted.]
A union may exercise 	its 	discretion 	to
determine how far 	to pursue 	a grievance 	in
(

Warning 	Letter
SF-CO-458
June 10, 	1994
Page 	6
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.)
In the present 	case, 	there are 	insufficient 	facts 	to demonstrate
that 	the Association's 	decisions 	to withdraw 	from arbitration
after Allen 	failed 	in her attempt 	to 	reschedule 	the 	hearing 	and
not 	to 	act 	on her 	request 	for 	reconsideration were without 	a
rational basis, 	devoid of honest 	judgment, 	or otherwise made 	for
arbitrary, 	discriminatory or bad 	faith reasons.
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 June 20. 	1994. 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN 	GINOZA
Regional 	Attorney
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Sincerely,