Valley of the Moon Teachers Association (McClure) (PERB 1165E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PEGGY J. McCLURE,

Charging Party, Case No. SF-CO-506

v. PERB Decision No. 1165

VALLEY OF THE MOON TEACHERS
ASSOCIATION, CTA/NEA,

August 13, 1996

Respondent.

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Appearances: Hugh N. Helm III, Attorney, for Peggy J. McClure;
California Teachers Association by A. Eugene Huguenin, Jr.,
Attorney, for Valley of the Moon Teachers Association, CTA/NEA.
Before Garcia, 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 Peggy J. McClure's (McClure) unfair practice
charge. As amended, the charge alleged that the Valley of the
Moon Teachers Association, CTA/NEA (Association) breached the
duty of fair representation mandated by section 3544.9 of the

Educational Employment Relations Act (EERA), and thereby violated

section 3543.6 (a) and (b) of the EERA,’ when it failed to

‘FERA is codified at Government Code section 3540 et seq.
EERA section 3543.6 provides, in pertinent part:

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

adequately pursue 	grievances 	against 	the 	Sonoma Valley Unified
School District.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including McClure's 	original 	and 	amended unfair practice 	charge,
the warning and dismissal 	letters, 	McClure's appeal, 	and the
Association's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself 	as modified by 	the
following 	discussion.
DISCUSSION
We 	take 	this 	opportunity 	to 	clarify 	two points 	in 	the Board
agent's 	warning 	letter.
First, 	despite 	the 	contrary 	inference 	one may draw from the
warning 	letter, 	the Board has 	never held that 	the 	EERA entitles
an 	exclusive 	representative 	to 	interfere with a member's
selection of private counsel. 	In fact, 	every public school
employee has 	the 	right 	to present grievances 	to 	the public
school 	employer without 	the 	intervention 	of 	the 	exclusive
representative. 	(EERA section 3543.) 	Nonetheless, 	the
Association's 	alleged 	criticism of McClure's 	attorney was 	not 	of
such a nature 	that 	it violated the duty of 	fair representation.
Second, 	as 	the Board agent noted, 	so long as a union
reasonably determines 	that a grievance has 	no merit, 	that union
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
22

is under no obligation to 	investigate 	or 	to arbitrate 	that
grievance. 	(Los Angeles Unified School District 	(1985) 	PERB
Decision No. 	526, 	proposed decision at 34, 	citing Washington-
Baltimore Newspaper Guild. 	Local 	35 	Communication Workers 	of
America 	(1979) 	239 NLRB 1321.) 	The key inquiry in this 	situation
is whether the union's 	interpretation of 	the 	collective
bargaining agreement 	is 	reasonable. 	(Id.) 	McClure has 	failed to
allege 	facts 	showing 	that 	the Association's 	interpretation of 	the
collective bargaining agreement was 	not 	reasonable. 	Accordingly,
McClure's 	allegations 	fail 	to 	state a prima 	facie 	case 	of
violation of 	the 	EERA.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-506 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia and Johnson joined 	in this Decision.
33

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
April 3, 199 6
Hugh N. 	Helm III
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Peggy J. 	McClure v. 	Valley of the Moon Teachers Association
Unfair Practice Charge No. 	SF-CO-506
Dear Mr. Helm:
The above-referenced unfair practice charge, 	filed February 21,
1996, 	alleges that the Valley of the Moon Teachers Association
(Association) 	failed to fairly represent Peggy J. 	McClure with
regard to several disputes she had with her employer, 	the Sonoma
Valley Unified School District 	(District). 	This conduct is
alleged to violate Government Code 3543.6(a) 	and 	(b) 	of the
Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated March 18, 	1996,
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 March
26, 	1996, 	the charge would be dismissed. 	I further extended this
deadline to April 1, 	1996.
An amended charge was filed on April 	1, 	1996. 	The amended charge
reiterates 	the original claims and adds the following.1
On or about August 24, 	1995, Ms. McClure contacted Sandra Lowe
regarding the placement of the full 	inclusion student into Ms.
McClure's 	classroom for the school year. 	Ms. 	Lowe stated she
1 The amended charge addresses only Ms. 	McClure's duty of
fair representation allegations and does not address 	the
deficiencies 	in her right to counsel 	or refusal 	to arbitrate
claims. 	Thus, 	as those allegations fail to state a prima facie
case and have not been amended, 	they are hereby dismissed for the
reasons stated in my March 18, 	1996 letter.

Dismissal 	Letter
SF-CO-506
April.3, 	1996
Page 2
would look 	into 	the matter and 	respond 	to Ms. 	McClure by August
28. 	Ms. 	McClure did not 	hear 	from Ms. 	Lowe and telephoned her on
August 	29. 	Ms. 	Lowe 	responded 	that 	she had discussed the matter
with District 	officials on August 25, 	and asked if Ms. 	McClure
had heard 	from Director 	of 	Human 	Resources 	Cindy Walker 	or
Principal 	Rosemary Haver. 	Ms. 	Lowe also asked whether Ms.
McClure was 	familiar with 	the Americans 	With Disabilities Act,
which protects disabled employees. 	Ms. 	McClure alleges 	that Ms.
Lowe's 	conduct 	in 	failing 	to 	return her phone 	call 	by August 	28
demonstrates 	a 	failure 	of 	the Association 	to act 	in 	good 	faith
and evidences 	the Association 	collusion with the District 	in 	this
matter.
On or about August 29, 	1995, 	Ms. 	McClure contacted CTA
representative 	Sharon Berry and 	informed her that Ms. 	Lowe 	had
been delinquent 	in contacting her. 	Ms. 	McClure also addressed
with Ms. 	Berry, 	the placement 	of 	the 	full 	inclusion student 	in
her classroom. 	Ms. 	Berry responded that 	there was 	nothing 	the
Association 	could do 	to 	stop 	the 	District 	from placing 	the 	child
in her classroom, 	and noted that Ms. 	McClure had rejected a
reasonable 	accommodation 	of 	a 	transfer 	to another 	school 	or
another grade level. 	Ms. 	McClure alleges 	that Ms. 	Lowe's and Ms.
Berry's 	failure 	to address 	a potential Article 	3.72 violation
demonstrates 	the Association was 	acting 	in bad 	faith 	and 	devoid
of honest 	judgment.
Ms. 	McClure also provides 	evidence which she 	states 	demonstrates
that 	the Association and 	the District 	have 	a practice 	of
promoting 	to 	supervisory positions, 	those 	"good" 	Association
representatives. 	Ms. 	McClure notes 	that Association
representative Micaela 	Philpot 	was 	promoted this 	year 	to 	a
Principal 	position and Association 	representative 	Bob 	Gossett 	was
promoted to a 	Principal's 	assistant position. 	Ms. 	McClure
alleges 	that 	these promotions 	demonstrate a pattern of 	collusion.
She 	further alleges 	that 	the Association's 	contract 	negotiating
team 	failed 	to vigorously 	represent 	bargaining unit 	members,
resulting 	in unusually 	low salaries.
Finally, 	Ms. 	McClure asserts that Ms. 	Lowe's failure to inform
Ms. 	McClure 	of 	her rights 	is part 	of an ongoing pattern of bad
faith and poor representation. 	As 	evidence of 	this pattern, 	Ms.
McClure refers 	to an incident 	in January of 	1995, 	where 	the
2 Article 	3.7 	of 	the 	collective 	bargaining 	agreement
states, 	"[t]he 	employer agrees 	not 	to discriminate against any
employee 	in any article 	specified 	in 	this Agreement 	because 	of
race, 	color, 	national origin, 	religion, 	creed, age, 	sex, marital
status, 	sexual 	orientation or disability.

Dismissal 	Letter
SF-CO-506
April 3, 	1996
Page 3
District 	was 	considering having Ms. 	McClure 	team teach a 	class.
Ms. 	McClure alleges 	that she had to pressure Ms. 	Lowe into
addressing 	the 	issue with the District, 	and although 	the 	issue
was resolved in Ms. 	McClure's 	favor, 	Ms. 	McClure is 	certain the
issue would not 	have been 	so 	resolved were 	it 	not 	for her
persistence 	that Ms. 	Lowe 	file a grievance.
As noted in the March 18, 	1996, 	letter, 	in order to state a prima
facie violation of 	EERA section 3543.6(b), 	a Charging Party must
show that 	the 	exclusive 	representative's 	conduct 	was 	arbitrary,
discriminatory, 	or 	in bad 	faith. 	(United Teachers 	of 	Los Angeles
(Collins) 	(1983) 	PERB Dec. 	No. 	258.) 	At a minimum, 	Charging
Party must 	demonstrate 	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. 	(Id.)
Ms. 	McClure asserts 	that Ms. 	Lowe's 	failure to return her phone
call, 	and her 	failure 	to 	inform Ms. 	McClure of her Article 3.7
rights 	amounts 	to bad 	faith and 	arbitrary 	conduct 	on 	the
Association's part. 	However, 	as 	stated in the attached letter,
mere 	negligence 	or poor 	judgment 	in 	the 	handling 	of 	a 	grievance
does not 	establish a violation of 	the duty, 	nor do differences 	in
grievance-handling 	tactics, 	or differing 	interpretations 	of 	the
collective bargaining agreement. 	(United Teachers 	of 	Los Angeles
(Buller) 	(1984) 	PERB Dec. 	No. 	438.) 	The amended charge fails to
state 	any specific 	facts which demonstrate 	that Ms. 	Lowe 	acted
without 	a rational 	basis 	or devoid of 	honest 	judgment. 	The
failure 	to 	return a phone 	call 	or the 	reluctance 	to 	file 	a
grievance where 	the Association honestly determines 	the 	case 	is
without merit, 	is 	insufficient 	to establish arbitrary,
discriminatory 	or bad 	faith 	conduct.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	set 	forth above and contained in my March 18, 	199 6,
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

Dismissal 	Letter
SF-CO-506
April 3, 	1996
Page 4
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.)
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

Dismissal 	Letter
SF-CO-506
April 3, 	1996
Page 5
By
Kristin L. 	Rosi
Regional 	Attorney-
Attachment
cc:

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
March 18, 199 6
Hugh 	N. 	Helm III
Re: 	WARNING LETTER
Peggy J. 	McClure v. 	Valley of the Moon Teachers Association
Unfair Practice Charge No. 	SF-CO-506
Dear Mr. Helm:
The above-referenced unfair practice charge, 	filed February 21,
1996, 	alleges that the Valley of the Moon Teachers Association
(Association) 	failed to fairly represent Peggy J. 	McClure with
regard to several disputes she had with her employer, 	the Sonoma
Valley Unified School District 	(District). 	This conduct is
alleged to violate Government Code 3543.6(a) 	and 	(b) 	of the
Educational Employment Relations Act 	(EERA).
Investigation of 	the 	charge revealed the 	following. 	Peggy J.
McClure is a public school 	teacher within the meaning of 	the EERA
section 3540.1 (j), 	and a member of the Valley of the Moon
Teachers Association. 	The Association is the exclusive
representative of the bargaining unit.
Prior to May 1995, 	Ms. McClure was diagnosed with reflex
sympathetic dystrophy, 	a condition which limits the strength and
mobility in her right arm, 	and which is susceptible to
aggravation when subjected to unusual 	stress.
In or about May 1995, Ms. McClure's then principal, 	Sandy
Zimmerman, 	mentioned to Ms. 	McClure and her fellow second grade
teachers 	that 	a 	full-inclusion student would be joining the
second grade the following school year. 	Ultimately, 	this student
was assigned to Ms. 	McClure's classroom.
On or about May 31, 	1995, Ms. McClure advised Ms. Zimmerman of
her medical 	condition and provided her with a letter from Ms.
McClure's physician that 	it would not be advisable 	for the full
inclusion student to be placed in her class. 	Ms. 	McClure alleges
the District responded by ordering Ms. 	McClure to retract the
medical 	letter and threatening her with termination.

Warning 	Letter
SF-CO-506
March 18, 199 6
Page 2
On or about August 21, 	1995, Rosemary Haver, Ms. 	Zimmerman's
replacement, 	notified Ms. McClure that the full inclusion student
would be placed in her classroom for the upcoming school year.
On or about August 24, 	1995, Ms. McClure contacted Association
representative Sandra Lowe to seek advice about the placement.
It is alleged that Ms. 	Lowe supported the District's placement
and urged Ms. McClure to transfer to another school. 	Ms. McClure
then contacted James Bertolli, 	the Association's Group Legal
Service attorney and Sharon Berry, 	a California Teachers
Association 	(CTA) 	representative, 	and requested representation on
this matter.
Ms. 	Berry advised Ms. McClure that there were no remedies under
the CBA for the District's placement. 	Ms. 	Berry further advised
that Ms. 	McClure had to accept the full inclusion student, 	accept
a transfer to another school, 	or risk facing disciplinary action
by the District. 	Mr. 	Bertolli advised Ms. McClure on her rights
under the Americans With Disabilities Act 	(ADA), 	and referred her
back to Ms. 	Lowe for all other CBA matters.
In or about September 1995, 	Ms. 	McClure accepted the full
inclusion student 	into her classroom. 	The student 	remained in
her class for only three days, 	during which it is alleged that
the student hit a classmate. 	It is also alleged that the
student's aide mishandled another student. 	As a result of 	these
events, 	the student's parents requested their son be transferred
to another teacher.
On or about October 2, 	1995, 	Cindy Walker, 	Director of Human
Resources, 	sent Ms. McClure a warning letter, 	which stated that
Ms. 	McClure had refused to collaborate, 	accommodate or modify her
curriculum and classroom to adequately meet 	the needs 	of 	the 	full
inclusion student. 	Ms. McClure was also reprimanded for an
alleged comment 	regarding the gender of 	the full 	inclusion
student's aide.
On or about October 6, 	1995, Ms. McClure retained attorney Hugh
Helm as private counsel to assist her in problems with the
District. 	Mr. 	Helm contacted the District regarding the warning
letter and urged Ms. 	McClure to seek representation from the
Association for potential 	CBA violations.
On or about November 5, 	1995, 	the parents of the full inclusion
student filed a "public charge" against Ms. McClure, 	requesting
her transfer or discharge. 	Ms. McClure contacted Ms. 	Lowe, 	and
requested assistance from the Association. 	Ms. 	Lowe agreed to
assist Ms. 	McClure on the matter, 	but informed her that she
believed it was a mistake to retain outside counsel. 	Ms. 	Lowe

Warning 	Letter
SF-CO-506
March 18, 	1996
Page 3
also 	stated 	that 	the Association 	could not 	file 	a 	grievance 	on
Ms. McClure's behalf 	unless 	she 	gave 	them written permission 	and
waived her 	rights 	to 	a 	CTA appointed Group 	Legal 	Services
attorney.
On December 5, 	1995, 	the Association ceased all 	communications
with Mr. 	Helm, 	stating that 	it was 	CTA policy not 	to communicate
with outside 	counsel 	retained by a bargaining unit 	member. 	On or
about December 20, 	1995, 	Mr. 	Helm contacted Ms. 	Berry seeking
clarification 	regarding 	this 	policy.
On or about December 21, 	1995, 	the District, 	the Association, 	Ms.
McClure, 	and 	the 	full 	inclusion 	student's parents met 	to discuss
what action would be 	taken against Ms. 	McClure.
On or about December 22, 	1995, 	Mr. 	Helm received a response 	from
Mr. 	Bertolli, 	which states 	in pertinent part 	that 	the 	CTA Group
Legal 	Services 	manual 	requires 	that 	in order to have 	legal
services 	through 	the 	CTA, 	she must 	chose 	a Group Legal 	Services
attorney. 	Mr. 	Bertolli also notes 	that 	the Association 	is
representing Ms. 	McClure's 	interests 	for matters 	concerning
wages, 	hours and terms of employment. 	Finally, 	Mr. 	Bertolli
notes 	that 	the Association 	is 	not 	obligated to work with 	legal
counsel 	that 	is 	independently 	retained by a unit 	member 	to
represent 	them 	in 	the 	grievance 	process 	or with 	regard 	to
contractual 	issues.
On or about January 2, 	1996, 	the District notified Ms. 	McClure
that 	it was placing 	the public 	charge 	in her personnel 	file. 	Ms.
McClure 	requested 	that 	the Association 	file 	a grievance 	on her
behalf 	over the placement of 	the public charge. 	Ms. 	Lowe
responded 	that 	she 	did 	not 	believe 	the 	placement 	violated 	the
CBA.
On or about January 16, 	1996, 	Ms. 	McClure notified Ms. 	Lowe of
ten potential 	CBA violations 	with 	regard 	to 	the placement 	of 	the
public 	charge 	in her personnel 	file. 	This 	resulted 	in 	the
January 17, 	199 6, 	filing of a grievance on Ms. 	McClure's behalf
by the Association. 	Included as part 	of 	the grievance was 	the
District's 	recognition of Mr. 	Helm as Ms. 	McClure's
representative.
On or about January 26, 	1996, 	Ms. 	McClure requested that 	she not
be named as 	the 	"grievant" 	by the Association. 	After this
notification, 	the Association amended 	to name 	itself 	as 	the
"grievant."
Ms. 	McClure alleges 	that 	the Association 	failed to 	fairly
represent heir 	rights, 	attempted to undermine her right 	to

Warning 	Letter
SF-CO-506
March 18, 	1996
Page 4
independent 	counsel, 	threatened not 	to 	take her grievance 	to
arbitration and 	intentionally withheld 	its 	services. 	Ms. 	McClure
also 	alleges 	that 	the Association 	discriminated against 	her 	for
retaining 	independent 	counsel 	and 	has 	arbitrarily 	retaliated
against 	her.
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.
Duty 	of 	Fair Representation
Ms. 	McClure alleges 	that 	the Association denied her 	the 	right 	to
fair 	representation 	guaranteed by 	EERA section 	3544.9 	and 	thereby
violated EERA section 	3543.6(b). 	The 	duty of 	fair representation
imposed 	on 	the 	exclusive 	representative 	extends 	to 	grievance
handling. 	(Fremont Teachers Association 	(King) 	(1980) 	PERB Dec.
No. 	125; 	United Teachers of Los Angeles 	(Collins) 	(1983) 	PERB
Dec. 	No. 	258.) 	In order to state a prima facie violation of 	this
section 	the 	EERA, 	a 	Charging Party must 	show 	that 	the 	exclusive
representative's 	conduct was arbitrary, 	discriminatory, 	or 	in bad
faith. 	In Unite
--------------------------·--·d Teachers 	of Los Angeles 	(Collins).id.. 	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.
A union may 	exercise 	its 	discretion 	to
determine 	how far 	to pursue 	a grievance 	on
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.
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. 	Reed District 	Teachers

Warning 	Letter
SF-CO-506
March 18, 	1996
Page 5
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(19 80) 	PERB
Decision No. 	124.
Ms. 	McClure alleges 	that 	the Association 	failed to 	fairly
represent 	her during 	the 	grievance procedure. 	As 	she 	fails 	to
highlight an incident 	of 	this 	failure, 	it 	is assumed that Ms.
McClure 	believes 	the 	totality 	of 	the Association's 	conduct 	to be
a violation of 	the duty of 	fair representation. 	However, 	Ms.
McClure 	has 	failed 	to 	demonstrate 	that 	the Association's 	conduct
was 	without honest 	judgment 	or devoid of 	rational basis. 	Mere
negligence by a union 	in handling a 	grievance 	does 	not 	constitute
a breach 	of 	the 	duty of 	fair 	representation. 	(California 	School
Employees Association 	(1984) 	PERB Dec. 	No. 	427). 	Without
- -specific 	allegations 	as 	to 	arbitrary 	or 	discriminatory 	conduct 	on
the Association's part, 	a 	complaint 	cannot 	issue.
Right 	to 	Independent 	Counsel
A. 	Non-Contract 	Litigation
Ms. 	McClure alleges 	that 	a 	contractual 	provision 	in 	the 	CTA Group
Legal 	Services manual violates 	the duty of 	fair representation.
The 	CTA Group 	Legal 	Services manual 	requires 	that 	a unit 	member
either 	chose 	an 	attorney 	affiliated 	with 	that 	program 	or 	waive
his 	or her right 	to an attorney 	from the 	CTA. 	However, 	this
waiver applies 	only 	to 	claims 	that 	fall 	outside 	the 	collective
bargaining agreement, 	such as Ms. 	McClure's potential Americans
With Disabilities 	claims. 	There 	is 	no duty of 	fair
representation 	owed 	to a unit member unless 	the 	exclusive
representative 	possesses 	the 	exclusive means 	by which 	such an
employee 	can 	obtain a particular 	remedy. 	(San 	Francisco
Classroom Teachers Association. 	CTA/NEA 	(Chestangue) 	(19 85) 	PERB
Dec. 	No. 	544.) 	Thus, 	an exclusive representative does not owe a
unit 	member a 	duty 	of 	representation 	in matters 	that 	do 	not
implicate 	the 	collective bargaining agreement. 	As 	such, 	the
Association's 	Group 	Legal 	Services manual 	does 	not violate 	the
duty 	of 	fair 	representation.
B. 	Contractual 	Grievances
Ms. 	McClure alleges 	that 	the Association failed to 	fairly
represent 	her by 	refusing 	to 	share 	information 	regarding 	her

Warning 	Letter
SF-CO-506
March 18, 	1996
Page 6
contractual 	grievances with Mr. 	Helm.1 Article 	5.4.2 	of 	the
collective bargaining 	agreement 	states 	that 	a unit 	member may be
represented 	in all 	stages 	of 	the 	grievance procedure 	by him or
herself 	or by a 	representative of 	the Association. 	It 	seems Ms.
McClure 	became 	dissatisfied with 	the 	Association's 	response 	to
her problems 	and sought 	the 	representation of Mr. 	Helm in 	the
grievance process, 	although the 	contract 	does not provide 	that
outside 	counsel 	may provide 	her 	representation.
Consistent 	with 	the prerogatives of 	an 	exclusive bargaining
representative, 	a union may object 	to an employee 	selecting
outside 	counsel 	or an agent 	of 	the 	employee's 	choice 	for
grievance 	representation. 	(United Teachers 	of 	Los Angeles
(Bracey) 	(1987) 	PERB Dec. 	No. 	616.) 	Further, 	an employee
organization's 	denial 	of 	a member's 	request 	for a particular
representative, 	without more, 	does not 	establish arbitrary,
discriminatory 	or bad 	faith 	conduct 	on 	the 	organization's 	part.
(Id.) 	Similarly, 	where an employee 	chooses 	self 	representation
or 	representation by an outside 	agent, 	the Association has 	no
obligation 	to provide 	representation 	or assistance. 	By 	retaining
Mr. 	Helm and having him participate 	in 	the 	grievance 	process 	and
by having him designated as 	her representative, 	Ms. 	McClure 	chose
to 	forego Association representation.2 As 	such, 	the Association,
by 	refusing 	to provide 	information 	regarding her grievance, 	has
not violated its 	duty of 	representation to Ms. 	McClure.
Failure 	to 	take 	grievance 	to arbitration
Ms. 	McClure's 	allegation 	that 	the Association threatened not 	to
take 	her grievance 	to arbitration 	is 	without merit. 	If 	an
Association determines 	that a grievance 	is not meritorious, 	there
is 	no duty to 	take 	the 	allegations 	to arbitration. 	(United
Teachers of Los Angeles 	(Glass) 	(1985) 	PERB Dec. No. 	526). 	The
contractual 	arbitration procedure 	belongs 	exclusively 	to 	the
contracting union, 	thus 	the 	decision to permit 	arbitration 	is 	a
decision uniquely within the province 	of 	the union. 	(Id.) 	Ms.
McClure 	does 	not 	allege any 	facts 	demonstrating why 	the
Association's 	conduct 	in 	refusing 	to 	utilize 	arbitration
1 Ms. 	McClure 	fails 	to specify what 	information the
Association refused to provide 	to her or to Mr. 	Helm, 	nor does 	it
provide 	the 	import 	of 	such 	information. 	Without 	such 	facts 	it 	is
difficult 	to ascertain 	the 	impact 	of 	the Association's 	conduct 	on
the pursuit 	of 	her grievance.
2 The Association 	is 	currently grieving 	the District's
recognition of Mr. 	Helm as Ms. 	McClure's 	representative 	for
contractual 	issues 	as 	a violation of Article 	5.4.2.

Warning 	Letter
SF-CO-506
March 18, 	1996
Page 7
provisions is arbitrary, 	discriminatory or in bad faith.3
Without such facts, 	this allegation fails to state a prima facie
violation.
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 March 26. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
Kristin L. Rosi
Regional Attorney
3 Ms. 	McClure does not state what 	form the alleged threat
took. 	Pleading or raising a bare allegation without sufficient
supporting facts 	is 	insufficient 	for purposes of alleging a prima
facie case. 	(California State University 	(Pomona) 	(1988) 	PERB
Dec. No. 710-H.)