California School Employees Association (Davison) (PERB 1162E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GWENDOLYN DAVISON,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
_______Respondent.
Case No. 	S-CO-361
PERB Decision No. 	1162
June 26, 	1996
Appearances; 	Gwendolyn Davison, 	on her own behalf; 	Victoria Li
for 	California 	School 	Employees Association.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Gwendolyn Davison's 	(Davison) 	unfair practice
charge. 	As 	amended, 	the 	charge alleged that 	the California
School 	Employees Association 	(Association) 	violated 	section
3543.6 	of 	the Educational 	Employment Relations Act 	(EERA)1 by
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
EERA section 	3543.6 	provides:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause 	or attempt 	to 	cause a public
school 	employer to violate 	Section 3543.5.
(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.
)
)
)
)
)
)
)
)
)
)
__ )

failing 	to 	adequately 	represent 	its 	African American Membership
in 	the 	Stockton Unified School 	District.
The 	Board has 	reviewed the entire 	record 	in this 	case,
including Davison's 	original 	and amended unfair practice 	charge,
the warning and dismissal 	letters, 	Davison's appeal, 	and the
Association's 	response 	thereto. 	The Board 	finds 	the Board
agent's 	warning and dismissal 	letters 	to be 	free 	from prejudicial
error and adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-361 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with a public 	school 	employer of
any of 	the employees 	of which it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
22

STATE OF CALIFORNIA 	(' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 26, 	1996
Gwendolyn 	Davison
Re: 	Gwendolyn Davison v. 	California School 	Employees Association
Unfair 	Practice 	Charge 	No. 	S-CO-361
DISMISSAL 	LETTER
Dear Ms. 	Davison:
You 	filed 	the 	above-referenced 	charge on September 	25, 	1995,
alleging a violation of 	the 	Educational 	Employment 	Relations Act.
In the 	charge, 	you allege 	that 	the 	California School 	Employees
Association 	(CSEA) 	has 	failed to meet 	its 	duty of 	fair
representation.
I 	indicated to you, 	in my attached letter dated November 	15,
1995, 	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
November 22, 	1995, 	the 	charge would be dismissed. 	On November
17, 	1995, 	we discussed the 	charge and you were granted an
extension of 	time 	to 	amend.
You 	filed an amended charge 	on November 28, 	1995, 	which was 	again
amended on December 	8, 	1995. 	In your amended charge you again
submit material 	regarding custodian, 	Anthony Stovall, 	who
disagreed with 	a March 	1995 	assessment 	by his 	supervisor 	that 	he
was 	not properly performing his 	duties. 	The 	supervisor 	is 	also 	a
job steward. 	That 	steward, 	Joe 	Cruz, 	was also unavailable 	for a
March 7, 	1995, 	predisciplinary conference 	involving Lamar Ivy.
You attended the 	conference 	to 	assist 	Ivy. 	There 	is 	no
indication 	that 	there 	was 	an 	attempt 	to 	reschedule 	the 	meeting 	or
that 	your 	assistance 	as 	local 	union vice-president 	was
insufficient. 	Brian 	Caldeira 	asked Labor Relations
Representative, 	Richard Simms, 	to look into allegations of poor
representation made 	by Stovall. 	You 	also 	attach 	information
which indicates 	that 	CSEA Area Director, 	Karen Gardner, 	met with
you and several 	other 	local 	union members 	to 	discuss 	issues 	which
included replacing Cruz' as 	steward.

Dismissal 	Letter
S-CO-361
February 23, 	1996
Page 2
Attachment 	1 	to your 	amended charge 	contains 	a 	list 	of 	employees
whom you 	allege 	were 	not 	represented 	fairly 	and 	dates 	upon which
they were 	not 	properly represented. 	The 	list 	notes 	that 	the
incidents 	of 	improper representation did not 	occur 	in 	the 	six
months prior to 	the 	filing of 	the 	charge. 	Attachment 	2 	of your
amended 	charge 	contains 	signatures 	of 	local 	union members 	who
allege 	that 	the membership 	of 	Chapter 318 	is 	not 	being
represented fairly. 	With neither Attachment 	1 	or 2 	is 	there 	any
information 	about 	specific 	cases 	wherein 	the 	local 	chapter 	is
failing to 	represent 	individuals 	properly. 	Attachment 	3 	of your
charge 	contains 	two 	letters 	to you 	from individuals. 	One
individual 	is 	unhappy with 	current 	union 	leadership 	and 	the 	other
one 	appears 	to be unhappy with 	the 	fact 	that 	she 	has 	not 	been
reclassified.
In my letter of November 15, 	1995, 	I 	explained to you the duty of
fair 	representation 	and 	set 	forth 	how a 	charging party must
demonstrate 	that 	a union has 	violated 	its 	duty of 	fair
representation 	in grievance 	processing. 	We 	discussed 	this 	matter
on November 17, 	1995. 	As 	I 	stated in my prior letter, 	the
employee 	must 	show 	sufficient 	facts 	indicating how or 	in what
manner 	the 	exclusive 	representative's 	actions 	are 	without 	a
rational 	basis 	or devoid of 	honest 	judgement. 	(Reed District
Teachers Association 	(1983) 	PERB Decision No. 	332) 	The 	facts
which you 	have 	set 	forth 	in your 	amended 	charge 	are 	insufficient
to 	show that 	the 	Union has 	acted without 	a 	rational 	basis 	or 	in
bad 	faith 	in 	representing 	any 	specific 	members 	of 	the 	bargaining
unit. 	Accordingly, 	for the 	reasons 	set 	forth in my letter of
November 15, 	1995, 	and this 	letter, 	your charge must be
dismissed.
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

Dismissal 	Letter
S-CO-361
February 23, 	1996
Page 3
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.)
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
Bernard McMonigle
Regional Attorney
Attachment
cc: 	Victoria Li

STATE OF CALIFORNIA 	f 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
November 15, 	1995
Gwendolyn 	Davison
Re: 	Gwendolyn Davison v. 	California School Employees Association
Unfair 	Practice 	Charge 	No. 	S-CO-361
WARNING 	LETTER
Dear Ms. 	Davison:
You 	filed the 	above-referenced charge on September 25, 	1995
alleging a violation of 	the 	Educational 	Employment 	Relations Act.
It 	appears 	that 	you 	specifically allege 	the Union has 	failed to
meet 	its 	duty of 	fair 	representation.
Your charge 	reveals 	that 	you 	are 	the 	first 	vice-president 	for 	the
California School Employees Association, 	Chapter 318 	(CSEA). 	You
are 	a 	desegregation 	technician 	in 	the 	Stockton 	Unified 	School
District 	and 	CSEA 	is 	your 	exclusive 	representative. 	You 	allege
that 	the 	Union 	has 	excluded you 	from all 	committees 	except 	the
executive 	board 	and 	that 	there 	are 	no African-American
representatives 	on any of 	the 	committees 	except 	for 	the
entertainment 	committee. 	Nor were you 	selected to go 	to 	the
annual 	conference. 	You further 	allege 	that 	"Non-feasance by the
chapter president 	is 	a 	constant 	obstacle when it 	comes 	to
pertinent 	issues 	of 	importance 	to 	the membership" 	and you 	state
that 	this 	non-feasance 	particularly expresses 	itself 	in the
representation 	of African-American classified employees. 	You
contend 	that 	other procedures 	by 	the 	Union with 	regard 	to
meetings 	and protocol 	and 	the 	control 	of 	expenditures 	are
improper. 	You 	attached documents 	to your charge 	which appear to
contain 	complaints 	of 	members 	that 	they are 	not 	receiving 	fair
representation by CSEA.1 Attached to 	the 	charge, 	you have 	also
supplied 	several 	documents 	involving workplace 	problems 	of
Anthony Stovall 	although 	it 	is 	not 	clear how 	it 	would appear 	that
you are 	alleging that Mr. 	Stovall 	was 	not 	appropriately
represented.
Breach of 	the 	duty of 	fair representation occurs 	when 	a union's
conduct 	towards 	a member of 	the 	bargaining unit 	is 	"arbitrary,
discriminatory or 	in bad 	faith." 	(Rocklin Teachers 	Professional
1There is 	a 	two-page 	document 	which begins 	with 	"we 	have
purposely been 	excluded" 	and 	ends 	with 	"have 	not 	been 	called upon
to approve 	any of 	the" 	which appears 	to be 	incomplete 	and you may
have 	intended 	to 	attach another page 	which we 	have 	not 	received.

S-CO-361
November 15, 	1995
Page 2
Association 	(1980) 	PERB Dec. 	No. 	124.) 	The duty of 	fair
representation does 	not 	extend 	to 	activities 	which are 	strictly
internal 	union matters 	and which do 	not 	substantially 	impact 	the
relationship between the 	employee 	and employer. 	(Los Angeles
Community College District 	(Kimmett) 	(1979) 	PERB Dec. 	No. 	106.)
With respect 	to 	those 	matters 	which you 	have 	alleged 	in your
charge are 	improper committee assignments, 	protocol, 	etc. 	by the
Union, 	it 	would appear that 	they are 	internal 	union matters 	and
do 	not 	state 	a violation of 	the 	Educational 	Employment 	Relations
Act.
In California State Employees Association 	(O'Connell) 	(1988) 	PERB
Dec. 	No. 	753-H, 	the Board found that 	a union might be guilty of
illegal 	discrimination 	if 	its 	actions 	were motivated by a
charging party's protected activity. 	However, 	your 	charge 	fails
to 	show that 	you 	engaged 	in protected 	activity or 	that 	the Union
was 	motivated 	to unlawfully 	take 	action against 	you.
A union does 	owe 	an employee 	a 	duty of 	fair representation 	in
grievance processing. 	However, 	the 	employee must 	show sufficient
facts 	indicating how or 	in what 	manner 	the 	exclusive
representative's 	actions 	are 	without 	a 	rational 	basis 	or devoid
of 	honest 	judgment. 	(Reed District 	Teachers Association 	(1983)
PERB Dec. 	No. 	332.) 	With regard to the 	information you have
provided 	regarding 	the 	representation 	of Anthony 	Stovall 	and
others, 	there 	are 	insufficient 	facts 	to demonstrate that 	the
Union has 	acted without 	a 	rational 	basis 	or 	in bad 	faith.
Accordingly, 	this 	allegation must 	be 	dismissed.
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 November 22, 	1995, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 355.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney