Oakland Education Association (Bennett) (PERB 1128E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CELIA D. 	BENNETT,
Charging 	Party,
v.
OAKLAND EDUCATION ASSOCIATION,
Respondent.
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)
) 	Case No. 	SF-CO-465
PERB Decision No. 	1128
December 8, 	1995
)
)
)
)
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Appearances: 	Celia D. 	Bennett, 	on her own behalf; 	California
Teachers Association by A. 	Eugene Huguenin, 	Jr., 	Attorney, 	for
Oakland 	Education Association.
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's
dismissal 	(attached hereto) 	of 	an unfair practice 	charge 	filed by
Celia D. 	Bennett 	(Bennett). 	In her charge, 	Bennett alleged that
the Oakland Education Association 	(Association) 	breached 	its 	duty
of 	fair 	representation guaranteed by 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA), 	thereby violating
EERA section 3543.6(b),1 when 	it 	refused to 	file 	two grievances
1EERA 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.
EERA section 3543.6(b) 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee

on her behalf.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	Bennett's 	original
and amended 	charge, 	her 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-465 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia 	and Dyer 	joined 	in 	this 	Decision.
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.
22

STATE OF CALIFORNIA 	- 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
January 30, 	1995
Celia Bennett
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Celia D. 	Bennett v. 	Oakland Education Association
Unfair Practice Charge No. 	SF-CO-465
Dear Ms. Bennett:
The above-referenced unfair practice charge, 	filed on June 30,
1994 and amended on August 9, 	1994, 	alleges that the Oakland
Education Association 	(Association) 	breached its duty of 	fair
representation to Celia D. 	Bennett. 	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 December 27,
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
January 9, 	1995, 	the charge would be dismissed. 	You were granted
an extension of time to file an amended charge.
On January 20, 	1995, 	an amended charge was filed. 	The amended
charge 	contained new allegations 	concerning the Association's
refusal 	to file a grievance regarding Celia Bennett's work
assignments during the fall of 1993. 	However, 	as noted in the
December 27, 	1994 letter, 	these events occurred outside of the
statute of 	limitations period and therefore no complaint 	can
issue based on these allegations.
The amended charge also contains additional allegations 	regarding
the Association's 	failure to file a grievance on Bennett's behalf
during the spring of 1994. 	The undersigned has reviewed these
allegations but concludes 	that there is 	insufficient evidence to
demonstrate 	that the Association refused to file a grievance 	for
arbitrary, 	discriminatory, 	or bad faith reasons.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained in my December 27, 	1994 letter, 	as well as
those set forth above.

Dismissal 	Letter
SF-CO-465
January 30, 	1995
Page 2
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"
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 	Letter
SF-CO-465
January 30, 	1995
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
DONN GINOZA
Regional Attorney
Attachment
cc: 	A. Eugene Huguenin, Jr.

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
December 27, 	1994
Celia Bennett
Re: 	WARNING LETTER
Celia D. 	Bennett v. 	Oakland Education Association
Unfair Practice Charge No. 	SF-CO-465
Dear Ms. Bennett:
The above-referenced unfair practice charge, 	filed on June 30,
1994 and amended on August 9, 	1994, 	alleges that the Oakland
Education Association 	(Association) 	breached its duty of 	fair
representation to Celia D. 	Bennett. 	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. 	Celia D.
Bennett was 	employed by the Oakland Unified School District
(District) 	during the 1992-93 and 1993-94 school years as a
Teacher on Special Assignment 	(TSA) 	for the Youth Employment
Program. 	Her duties 	included serving as a Work Experience
Education 	(WEE) 	Teacher Coordinator/Team Leader and Project
Manager 	for the Summer Youth Employment and Training Program
(SYETP). 	Her duties as a WEE teacher included coverage of seven
schools in the District. 	The assignment to seven schools
constituted a change from her previous assignment. 	The District
informed Bennett of this change in a letter dated August 30,
1993." 	The letter indicated that the change was required due to
the District's reduction of WEE teachers. 	Her duties as Project
Manager for SYETP typically required her to work on that program
from February through October.
Bennett was 	instructed to 	"close out" 	the SYETP by October 15,
1993. 	Bennett objected to this directive believing that the
deadline would make it impossible for her to fulfill her
responsibilities as a WEE teacher.
Following receipt of the August 	30 letter from the District,
Bennett contacted Ward Roundtree, 	Executive Director of the
Association, 	to request his assistance in protesting the
District's assignment of duties. 	She contended that her rights
under Article XII, 	"Transfer/Consolidation Policy," 	section
10 (A) , 10(B), and 10(C) were violated. 	These provisions state as
follows:

Warning 	Letter
SF-CO-465
December 27, 	1994
Page 2
A. 	Teachers on Special Assignment 	shall be
given notice, 	in writing, 	of their
tentative assignments when the school
program is 	completed in June 	for the
ensuing school year.
B. 	TSAs 	shall be consulted individually
regarding any change 	in their assignment
due to unanticipated circumstances after
the initial assignment, 	and shall be
informed of any changes 	in writing. 	The
appropriate administrator shall 	hold a
conference with said teachers, 	to
discuss any change of assignment.
C. 	Schedules 	of TSA who are assigned to
more than one school 	shall be arranged
so that no TSA shall be required to
engage in an unreasonable amount of
inter-school travel. 	Such teachers
shall be notified of any changes 	in
their schedule by October 1, 	of each
school year, 	except in cases of
emergency.
Regarding Bennett's 	claim that 	the Article XII had been violated,
Roundtree told Bennett that 	they should wait to hear the
District's position. 	During a meeting on September 7, 	attended
by Bennett and Roundtree, 	Barbara Daniels, 	District Assistant
Superintendent, 	Adult and Vocational Education, 	stated that
Bennett's 	"top priority" 	should be to close out the SYETP.
Daniels wrote Bennett a letter dated September 14 	confirming the
"agreement" 	that closing out the SYETP was a priority. 	Daniels
also indicated that she was still 	in the process of 	clarifying
issues related to Bennett's 	"future responsibility" 	to SYETP.
On September 8, 	Bennett reported to two of her WEE sites because
students, 	parents and counselors were requesting her services.
By letter dated September 14, 	Daniels wrote to Bennett informing
her that Bennett was authorized to remove certain computer
equipment from a building in which it was located. 	This
equipment was being used by Bennett 	in connection with the SYETP.
On September 17, 	Bennett, 	accompanied by Roundtree, 	again met
with Daniels and two other District administrators, 	to discuss
the lack of space, 	clerical support, 	and a transportation
allowance as well as other issues 	regarding the WEE assignment.
Bennett 	complained that 	two other male WEE teachers had only been

Warning Letter
SF-CO-465
December 27, 	1994
Page 3
assigned two high schools each, 	while she had two high schools
and five alternative schools. 	Daniels responded that the
assignment of one of those teachers, 	Michael Gordon, 	would be
altered so that he would cover two days at one of 	the high
schools and Bennett would cover one day at the same school.
Bennett believed that this change did not help her, 	because 	"in
fact, 	more work had been added." 	Roundtree pursued the issue of
the change in Gordon's schedule during the meeting. 	Bennett
believed that Roundtree was dodging the alleged contract
violation. 	Bennett asserts that at this point she began to
believe that Roundtree's 	"personal 	friendship was 	overshadowing
his professional 	judgment and that he was 	only acting in a
perfunctory capacity" 	on her behalf. 	Daniels promised more
clerical support, 	which never materialized. 	Around this time,
Bennett began to suffer from work-related stress 	and her health
deteriorated.
By letter dated September 20, 	Bennett wrote a letter to Fred
Turner, 	Director of Student Services, 	complaining about his
harassment of her with regard to removal 	of 	the 	computer
equipment. 	Bennett complained about pressure 	from Turner not 	to
return the equipment 	that had been replaced through insurance,
but which exceeded the number of pieces actually lost 	in the
theft, 	unbeknownst to the administration. 	Turner had told
Daniels 	that 	the equipment belonged to his Vocational Educational
program. 	Bennett told Daniels 	in the September 17 meeting that
this was incorrect. 	In her letter to Turner, 	Bennett also
described a heated encounter the two had and demanded that Turner
treat her courteously in the future.
On September 27, 	after reporting to work, 	Bennett called
Roundtree to again complain about 	the poor working conditions
that were aggravating her health problems. 	These conditions
included the number of schools assigned, 	the amount of travel
required, 	inadequate work space, 	and lack of administrative
support. 	Bennett requested that Roundtree file a grievance
alleging a violation of Article XII, sections 10(A) , 	(B) , 	(C) ,
and 	(D). 	She also cited Article 4 	("Non-Discrimination") 	and
Article 7 	("Employee Rights"), 	sections 3 and 4 regarding
Turner's 	conduct towards her. 	The latter provisions prohibit
disciplinary action in the absence of just cause. 	Roundtree
declined to file a grievance, 	stating that she should not worry
about the WEE
assignment since her 	"top priority" 	was closing out 	the SYETP
program. 	Roundtree stated that Bennett 	should not be objecting
because she had 	"agreed to the assignment" 	and should not be
worried about her WEE assignment because her priority was 	the
SYETP work. 	He also stated, 	"You are retiring in June, 	what more
do you want?" 	Bennett now believed that Roundtree was more

Warning 	Letter
SF-CO-465
December 27, 	1994
Page 4
interested in appeasing the administration than in 	clarifying and
submitting a grievance on her behalf.
By letter dated September 28, 	Bennett complained to Daniels that
even with the adjustments to her work schedule, 	the WEE
assignment 	involving seven schools was too burdensome.
On September 29, 	Bennett was advised by her doctor not to return
to work due to her arthritic condition, 	and she took an extended
medical leave thereafter.
On March 3, 	1994, 	Bennett called the Association and spoke to Ben
Visnick, 	President. 	She requested an appointment to discuss a
letter from Daniels regarding her job assignment, 	which
apparently had been given to Beverlee Williams during Bennett's
absence. 	Bennett objected because Williams had received the
position without a posting of the vacancy by the District, 	and,
that in doing so, 	the District had increased her level of stress
and exacerbated her arthritic condition. 	She met with Visnick
that afternoon. 	Visnick suggested that Roundtree join the
meeting. 	Bennett objected because she believed that Roundtree
did not have her best interests at heart. 	Visnick responded that
perhaps Roundtree would not be 	interested in representing her
either. 	Bennett believed that Visnick had received negative
input 	from Roundtree regarding her disputes with the District.
On the same day, 	Bennett sent a letter of protest to Daniels
complaining about 	the situation> 	and specifically about 	the
assignment of Williams to the same job site from which she had
been ordered by Daniels to vacate. 	Daniels responded in a letter
to Bennett dated March 9, 	stating that Williams had not been
hired to fill her position and that 	if Williams had been assigned
to her job site, 	it was not a decision Daniels had made. 	A copy
of the letter was sent to Visnick.
On March 31, 	Bennett met with Visnick and insisted that a
grievance be 	filed. 	Visnick responded that 	she 	"should come back
to work and then they would have some reason to fight." 	Bennett
dismissed this as being irrelevant. 	Visnick then stated that she
was not being taken seriously by the District because she was
about 	to retire. 	Bennett stated that 	she would be changing her
retirement date so that 	that 	issue could not be used against her.
By letter dated April 4, 	Visnick wrote to Daniels attempting to
clarify the status of the position held by Williams and stating
Bennett's complaints regarding the Williams assignment. 	He asked
for confirmation of the configuration of employees being used to
cover Bennett's duties. 	Visnick also made reference to certain
objectionable conduct by Turner. 	Bennett 	called Visnick on April
15 	to ask if he had received a response to this letter. 	He

Warning Letter
SF-CO-465
December 27, 	1994
Page 5
answered that he had not but had been contacted by Turner.
Visnick 	offered to mediate an 	informal meeting between Turner and
Bennett. 	Bennett declined the offer.
Bennett called Visnick several 	times between April 	19 and 21.
Visnick responded on April 	22 	stating that he was 	still awaiting
an answer from Daniels. 	He also told her that a grievance had
not been filed because there was no basis for one.
In a letter to Visnick dated April 	18, 	Turner complained about
Visnick's 	reference to objectionable conduct on his part but
thanked Visnick for clarifying the basis 	for his 	remark and for
acknowledging communication problems 	that Bennett was having with
the Association. 	Turner stated his approval of Visnick's offer
to mediate the dispute between Bennett and himself.
On May 10, 	Bennett expressed to Visnick her dismay over the
Association's refusal to process a grievance regarding the
inequitable WEE assignment. 	She contended that the
the District's use of three certificated staff to cover her
duties 	in her absence proved that her original assignment was 	too
burdensome.
Bennett 	contends 	that 	the District's unreasonable WEE assignment
and lack of support, 	as well as the harassment of Turner, 	led to
her medical 	condition and her leave of absence. 	The leave of
absence resulted in her loss of approximately one year of
retirement service credit.
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 June 30, 	1994, 	the statute of limitations period began
to run on December 30, 	1993.
The charge alleges essentially that 	the Association refused to
file a grievance for her on two occasions. 	The first occasion
occurred at the beginning of the 1993-94 school year, 	when the

Warning Letter
SF-CO-465
December 27, 	1994
Page 6
District notified her of the inequitable WEE assignment. 	Bennett
raised this issue with Roundtree, 	as well as related issues
involving Turner. 	At least two meetings were held with Daniels
over these issues. 	During her September 27, 	1993 meeting with
Roundtree, 	Bennett was informed by Roundtree that he would not
file a grievance over these issues. 	Therefore, 	Bennett knew of
Association's alleged failure to file a grievance on this date.
Since this date is more than six months prior to the filing of
the charge, 	PERB lacks authority to issue a complaint with
respect to this alleged violation.
With respect 	to Visnick's refusal 	to file a grievance over the
reassignment of Bennett's work during her medical leave, 	an
analysis of the elements of a prima facie case is required. 	In
order to state a prima facie violation regarding lack of
grievance representation, 	the Charging Party must show that her
union refused to process a meritorious grievance 	for arbitrary,
discriminatory, 	or bad faith reasons. 	In United Teachers of Los
Angeles (Collins) 	(1983) PERB Dec. No. 258), PERB 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.
A union is also not 	required to process an
employee's grievance if 	the chances for
success are minimal.
It has also been stated that 	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 Dec. No. 332, p. 9, citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) PERB Dec. No. 124.)

Warning Letter
SF-CO-465
December 27, 1994
Page 7
With respect 	to Visnick's refusal 	to file a grievance over the
reassignment of Bennett's work during her medical leave, 	the
charge fails 	to allege sufficient 	facts 	from which it 	can be
concluded that 	a prima 	facie violation occurred under the
standards articulated above. 	There 	is insufficient evidence to
demonstrate that 	the Association failed to pursue a meritorious
grievance, 	or if it did, 	that it did so for arbitrary,
discriminatory, 	or bad faith reasons.
The Association is not required to file a grievance upon request
of an employee but 	is permitted discretion in whether to process
a potential grievance based on the strength of the case. 	Here,
it 	is not clearly established that 	the Association's 	reasons 	for
rejecting the grievance wree arbitrary, 	discriminatory or in bad
faith. 	The charge does not establish that the Association failed
to base its decision on a rational assessment of the merits of
the potential grievance. 	Visnick listened to Bennett's
complaints and made several attempts 	to investigate them in
communications with District representatives. 	While Bennett
suggests that Visnick received 	"negative input" 	from Roundtree,
there is no concrete evidence that such was received, 	or if
received, 	that it played a determinative role in Visnick's
handling of her case.
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
1 This 	conclusion is 	further bolstered by the questionable
basis 	for a meritorious grievance. 	The crux of the grievance is
that the manner in which the District reassigned Bennett's work
caused her emotional distress. 	However, 	because she was on
leave, 	the reassignment did not change Bennett's working
conditions, 	a basic element for a grievance of this kind. 	In
this context, 	Visnick's statement that the District would take
Bennett more 	seriously if she returned to work can be 	interpreted
as 	reflecting the reasonable proposition that no change in
"working conditions" 	could be claimed in a grievance while
Bennett was on leave. 	Alternatively, 	viewed solely as a
grievance based on the effect on an employee on leave, 	Bennett's
complaint 	lacks merit because the collective bargaining agreement
does not make the District responsible for this type of emotional
injury. 	Such injury, 	if compensable, 	is redressable in a private
lawsuit, 	to which the duty of fair representation does not
attach. 	(California Faculty Association 	(Pomerantsev) 	(1988)
PERB Dec. No. 698-H.)

Warning Letter
SF-CO-465
December 27, 1994
Page 8
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 January 9, 	1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
DONN GINOZA
Regional Attorney