Val Verde Teachers Association, CTA/NEA (Twyman) (PERB 1257E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CAROLYN TWYMAN,
Charging 	Party,
v.
VAL VERDE TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
Case No. 	LA-CO-756
PERB Decision No. 	1257
March 24, 	1998
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Appearance; 	Carolyn Twyman, 	on her own behalf.
Before Johnson, 	Amador and Jackson, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of Carolyn Twyman's 	(Twyman) 	unfair practice
charge. 	Twyman's 	charge alleges 	that 	the Val Verde Teachers
Association, 	CTA/NEA breached 	its 	duty of 	fair representation 	in
violation of 	sections 	3544.9 	and 3543.6(a) 	of 	the Educational
Employment Relations Act 	(EERA) 	and discriminated against 	her 	in
violation of EERA section 3543.6(b).1
EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
EERA section 	3544.9 	provides:
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 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:

The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	and Twyman's appeal. 	The Board finds 	the 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. 	LA-CO-756 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Jackson 	joined 	in 	this Decision.
(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.
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STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 24, 	1997
Carolyn Ann Twyman
12041 Brixton Ct.
Moreno Valley, 	California 	92557
Re: 	Carolyn Ann Twyman v. 	Val Verde Teachers Association,
CTA/NEA
Unfair Practice Charge No. 	LA-CO-756
DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Dear Ms. Twyman:
In this charge filed on December 4, 	1997 	(certified mail), 	you
allege that the Val Verde Teachers Association, 	CTA/NEA 	(WTA or
Association) 	violated the duty of fair representation in
violation of Government Code section 3543.6 of the Educational
Employment Relations Act 	(EERA).1
I 	indicated to you, 	in my attached letter dated December 16,
1997, 	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
December 23, 	1997, 	the charge would be dismissed.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my December 16, 	1997 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
1Although you alleged that 	the Association also violated
section 3519.5 of the Ralph C. 	Dills Act, 	and section 3571.1 of
the Higher Education Employer-Employee Relations Act, 	as you were
employed as a Counselor by the Val Verde Unified School District
(Val Verde or District), 	I am considering this a matter falling
only under the EERA.

LA-CO-756
Dismissal 	Letter
December 24, 	1997
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.)
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LA-CO-756
Dismissal 	Letter
December 24, 	1997
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 MARC S. 	HURWITZ
Regional Attorney
Attachment
cc: 	Charles R. Gustafson, 	Staff Counsel
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
December 16, 	1997
Carolyn Ann 	Twyman
12041 	Brixton Ct.
Moreno Valley, 	California 	92557
Re: 	Carolyn Ann Twyman v. 	Val 	Verde Teachers Association.
CTA/NEA
Unfair Practice 	Charge No. 	LA-CO-756
WARNING 	LETTER
Dear Ms. 	Twyman:
In this 	charge 	filed on December 4, 	1997 	(certified mail), 	you
allege 	that 	the 	Val 	Verde 	Teachers Association, 	CTA/NEA 	( W T A or
Association) 	violated 	the 	duty 	of 	fair 	representation 	in
violation 	of 	Government 	Code 	section 	3543.6 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA).1
The 	first 	page 	attached 	to your 	charge 	states 	as 	follows:
Please 	read attached documents. 	I 	had never
been 	told 	I 	needed 	to 	file with 	the 	PERB
board until 	September of 	1997. 	I was
recently 	informed 	that 	the 	charges 	stated 	in
the 	"pre-lawsuit" 	letter of Suzy Moore, 	that
I 	had 	to drop 	that 	cause 	of 	action because 	I
hadn't 	filed with 	the 	PERB. 	Is 	this 	true?
Can't 	you 	intervene 	or help?
My 	investigation and 	the 	charge 	revealed 	the 	following
information. 	From 1992 until 	1995, 	you served as a site
representative, 	an Executive Board Member, 	and on the Negotiating
Team for the W T A . 	In 	1995, 	while you were pregnant, 	you were
informed by 	the 	District 	that 	you would be 	transferred 	into 	a
teaching position. 	Specifically, 	in May 1995, 	your Principal 	at
Rancho Verde 	High School, 	Rob Nichols, 	advised you 	that 	he was
not 	planning 	to 	have 	counselors 	at 	the high 	school 	next 	year.
1Although you 	alleged 	that 	the 	Association 	also violated
section 3519.5 	of 	the Ralph C. 	Dills Act, 	and section 3571.1 	of
the 	Higher 	Education 	Employer-Employee Relations Act, 	as 	you were
employed as 	a 	Counselor by 	the Val 	Verde 	Unified 	School 	District
(Val Verde 	or District), 	I 	am considering this a matter 	falling
only 	under 	the 	EERA.

You 	advised Gary Trout, 	President 	of 	the W T A , 	and 	other members
of 	the 	Executive Board. 	But 	no action was 	taken. 	On or about
June 	1, 	1995, 	you spoke 	to Tony Leon of 	the 	California Teachers
Association 	(CTA) 	about 	this matter, 	and he advised you 	to
contact 	the Department 	of 	Fair Employment 	and Housing 	(DFEH). 	He
did 	not 	suggest 	that 	you 	contact 	the 	Public 	Employment 	Relations
Board 	(PERB), 	nor did he 	file 	a grievance on your behalf. 	You
filed a 	complaint 	at 	the DFEH 	in June 	1995. 	In August 	1995, 	you
sought 	a 	one 	year 	leave 	of 	absence 	from the 	District, 	and 	took
another 	counseling 	position 	at 	Lake 	Elsinore 	High 	School 	District
(Lake 	Elsinore) 	during the 	1995-96 	school 	year.
In April 	199 6, 	you 	filed a second complaint with the DFEH, 	in
part, 	for being 	displaced out 	of 	your position as 	a 	counselor.
In July 	1996, 	you 	filed another 	complaint 	because 	the District
did not 	give you your 	job when 	it was 	your 	intention 	to 	return 	to
your position. 	Your attorney, 	Suzy C. 	Moore, 	by letter to the
District dated May 29, 	199 6, 	demanded, 	in order to avoid
litigation, 	your 	reinstatement 	to your position as 	a 	Counselor,
and elimination 	of 	negative materials 	from your 	file. 	In August
1996, 	you were 	informed by 	the District 	that 	you were placed at
Vista Verde Middle 	School 	as 	a 	teacher 	in 	the 	on 	campus
detention/suspension 	room.
In 199 6, 	you kept Gary Trout 	advised about your situation. 	Trout
did not 	think 	these 	was 	anything 	the 	union 	could do 	and 	in 	fact,
the union 	took no action. 	In September 	1996, 	(while you were
still 	with Lake 	Elsinore), 	you 	requested another leave 	of 	absence
from Val 	Verde, 	but 	your 	request 	was 	denied. 	You 	contacted Tony
Leon of 	CTA. 	You 	feared 	the District 	could 	go 	after your
credential 	if you did not 	resign 	from Val 	Verde. 	Mr. 	Leon
recommended that you 	resign; 	and 	in September 	1996, 	you did
resign. 	At 	September 	199 6, 	you were aware 	that Val Verde kept
two male 	counselors 	in 	their positions 	and had hired 	(you believe
into your position) 	a new counselor, 	Mrs. 	Block, 	the wife of 	the
new middle 	school 	principal.
You obtained a new attorney 	in 	199 6, 	Steven Morris. 	Having
received one 	or more 	right 	to 	sue 	letters 	from DFEH, 	a 	lawsuit
was 	filed against Val 	Verde 	in 	199 6 	involving, 	among other
things, 	sexual harassment, 	pregnancy and sex discrimination, 	and
retaliation 	for union activities. 	By 	the 	letter dated
November 20, 	1997 to Lois Tinson, 	President, 	California Teachers
Association in Burlingame, 	California, 	you expressed, 	in part,
your 	dissatisfaction with 	the Association, 	and 	indicated 	that 	the
union did 	not 	fulfill 	its 	duty 	of 	fair 	representation.
You advised me 	on December 	11, 	1997 	that 	the 	issue 	of 	retaliation
for union 	activity was 	deleted 	from your 	lawsuit 	(as 	you had 	not
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previously 	filed a 	charge at 	PERB). 	You 	did not 	learn about 	PERB
until 	September 	1997.
Based on 	the above, 	the 	charge 	fails 	to 	state 	a prima 	facie 	case
within 	PERB's 	jurisdiction. 	EERA section 	3541.5(a)(1) 	provides
that 	the 	Board 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." 	It 	is 	your
burden, 	as 	the 	charging party 	to 	demonstrate 	that 	the 	charge 	has
been 	timely 	filed. 	(See 	Tehachapi 	Unified 	School 	District 	(1993)
PERB Decision No. 	1024.)
In 	cases 	against 	the union, 	the 	6 month statute 	for the duty of
fair 	representation 	runs 	from 	the 	date 	the 	union assessed 	the
merits 	of 	the 	case. 	See 	International 	Union of 	Operating
Engineers, 	Local 	501 	(Reich) 	(1986) 	PERB Decision No. 	591-H.
The 	above 	indicates 	that 	in 	1995 	and 	1996, 	you 	discussed with 	the
Association 	the 	adverse 	actions 	taken by Val 	Verde. 	You
indicated 	that 	suggestions 	were made by 	the union, 	or 	it 	took no
action 	on your behalf. 	You 	contacted Tony Leon 	of 	CTA as 	late 	as
September 	199 6. 	You obtained his 	suggestions at 	that 	time.
Thus, 	the 	6 month statute 	of 	limitations 	ran out 	after March
1997. 	This 	charge was not 	filed until December 4, 	1997, 	and is
untimely. 	In other words, 	all 	allegations 	of unlawful 	conduct by
the Association occurred more 	than 	6 months 	before 	the 	charge was
filed 	and 	are 	therefore 	being 	dismissed 	as 	untimely.
Your 	letter of 	dissatisfaction 	to 	CTA dated November 	20, 	1997
will 	not 	change 	this 	result; 	neither will 	your 	lack 	of 	knowledge
about 	PERB 	or 	the 	EERA. 	See 	California State 	Employees
Association 	(Darzins) 	(1985) 	PERB Decision No. 	546-S, 	where the
Board held 	that 	the 	6 	month period 	runs 	from the 	time 	the 	conduct
is 	discovered, 	not 	from the 	date 	of 	the discovery of 	the 	legal
significance 	of 	that 	conduct.
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 December 23, 	199 7, 	I
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shall 	dismiss your charge. 	If 	you have any questions, 	please
call me at 	(213) 	736-3543.
Sincerely,
Muc S. AtunitsMARC S. 	HURWITZ
Regional 	Attorney
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