Coachella Valley Federation of Teachers, California Federation of Teachers/American Federation of Teachers (Kok) (PERB 1302E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PHILIP 	A. KOK,
Charging 	Party,
V.
COACHELLA VALLEY 	FEDERATION OF
TEACHERS, 	CFT/AFT,
Respondent.
)
) 	Case No. 	LA-CO-746
PERB Decision No. 	1302
December 11, 	1998
)
)
)
)
Appearance : 	Philip A. 	Kok, on his own behalf.	own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Philip A. 	Kok
(Kok) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	In the 	charge, 	Kok alleged that 	the 	Coachella
Valley Federation of Teachers, 	CFT/AFT 	(Federation)1 failed to
assist 	him 	in processing 	a 	grievance 	to 	arbitration 	in violation
of 	section 3543.6(b) 	of 	the Educational 	Employment Relations Act
(EERA),2
'Kok'1Kok' 1Kok's original charge also named the Coachella Valley
Teachers Association, 	CTA/NEA 	(Association) 	as a respondent.
However, 	Kok's 	amended charge named only the 	Federation as
respondent. 	Accordingly, 	the Board agent's dismissal 	letter
noted that 	the Association was 	no 	longer a party 	to 	this 	case.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including Kok's 	original 	and amended unfair practice 	charge, 	the
Board agent's 	warning and dismissal 	letters 	and Kok's 	appeal.
The Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-746 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
(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
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 27, 199 8
Philip A. 	Kok
Re: 	Philip A. 	Kok v. 	Coachella Valley Federation of Teachers,
CFT/AFT
Unfair Practice Charge No: 	LA-CO-746, 	Amended Charge
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT
Dear Mr. Kok:
In this charge filed July 21, 	1997 by Philip A. 	Kok 	(Kok),
previously a teacher at Coachella Valley High School, 	it is
alleged that 	the Coachella Valley Federation of Teachers,
CFT/AFT 	(CVFT, 	Federation, 	or AFT) 	and the Coachella Valley
Teachers Association, 	CTA/NEA 	(CVTA, 	Association or CTA) 	failed
to assist you in processing a 1996 grievance to arbitration, 	in
violation of Government Code section 3543.6 of the EERA.
I indicated to you in my attached letter date July 28, 	1998, 	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 August 4, 	1998, 	the charge
would be dismissed.
On August 3, 	1998, 	you filed 	(certified mail) 	a "First Amended
Charge". 	You allege that by its conduct, 	AFT1 violated EERA
1Although the 	initial 	charge named AFT and CTA as
Respondents, 	the First Amended Charge only names the Coachella
Valley Federation of Teachers, 	CFT/AFT as the Respondent. 	There
has been no subsequent amended charge filed, 	and properly served,
re-naming the Coachella Valley Teachers Association, 	CTA/NEA.
Although you have sent me several 	letters which were not served
on the other parties, 	indicating your unhappiness with CTA, 	these
do not constitute properly naming CTA as a Respondent. 	Thus,
they are no longer a party to this case.
j
s

section 3543.6 (b) 	and 	(c).2 The essence of this 	case is 	that you
were 	a 	probationary 	teacher 	for 	the 	Coachella Valley Unified
School District 	(District). 	You learned in February 199 6 	that
the District 	chose 	to non-reelect 	you 	for the 	following 	school
year. 	After 	receiving your performance 	evaluation 	for the 	1995-
96 	school 	year, 	in May 1996 	you 	filed a grievance 	regarding 	the
evaluation. 	It 	was 	denied at 	several 	levels 	and you 	timely
requested arbitration at 	Level 	III.3 CTA decertified AFT and
became 	the new exclusive 	representative 	on June 28, 	1996. 	You
claim, 	in part, 	that you were unable to get 	this matter
arbitrated and 	that 	AFT 	failed 	to assist 	you.
I 	will 	summarize 	the 	relevant 	new 	information 	or arguments 	you
provided at 	this point. 	The District's May 22, 	1997 	letter
indicated 	that 	it 	contacted AFT and 	CTA and neither union was
interested 	in being 	involved. 	You argue 	that 	"the 	association,
knowing 	full 	well 	that 	grievance assistance was 	requested, 	does
not 	have 	the 	option of being 	interested or not. 	Unless 	they can
state 	a valid 	reason otherwise, 	they have 	an obligation 	to 	assist
and 	to pursue 	the 	grievance 	. . . " 	You 	argue 	that 	to 	avoid 	a
breach of 	the 	duty of 	fair representation, 	"a 	representative must
show some 	signs 	of 	inquiry 	into 	the matter, 	and some valid
response 	to the employee, 	showing some 	indication of
acknowledgement. 	In this case, 	the pertinent representative, 	who
is also 	the president 	of 	CVFT/AFT 	(AD) 	has made no response
despite being aware of 	the request (s)."4 You assert 	that
DeLaCruz 	was 	aware 	of your requests 	regarding arbitration, 	that
he 	consulted with Braithwaite 	on this matter, 	but 	did not 	assist
you.5
2An 	individual 	does 	not 	have 	standing 	to 	file 	a 	charge
alleging violation of EERA section 3543.6 (c). 	See Oxnard
Educators Association 	(Gorcey/Tripp) 	(1988) 	PERB Decision No.
664. 	Therefore, 	this allegation will be dismissed.
3You met 	the 	five 	day window to 	request 	arbitration as 	the
contract 	defines 	a day as 	a 	regular 	teacher work day exclusive 	of
summer school.
4It 	is 	not 	clear whether DeLaCruz 	received 	the 	alleged
requests 	or whether you provided him a 	return address 	to 	respond
to. 	I note that Braithwaite's 	October 15, 	1997 letter indicated
that 	he 	received 	three 	letters 	from you 	since your departure 	from
the High School, 	but 	that your letter dated October 9, 	1997, 	was
the 	first .time you 	included 	a 	return 	address.
5Attached 	to your charge 	against 	the 	District 	(Case No.
LA-CE-3822) 	are 	copies 	of 	certified mail 	return receipts 	showing
that various 	recipients 	signed 	for and received your 	letters. 	I
see 	no 	such 	card or 	signature 	for DeLaCruz; 	and you do not 	have
copies 	of 	any of 	the 	letters 	to AFT.
. . .
22

You argue, 	in part, 	that you received a threatening directive
from your employer in March 199 6 due to your protected activity.
At that 	time, 	Braithwaite of AFT and Mike Rosenfeld of CTA
indicated that 	the 	threat was 	real 	and should not be taken
lightly. 	You conclude that 	their insinuations and/or statements
were meant 	to coerce you 	from exercising your rights 	in violation
of EERA section 3543.6(b).
You refer, 	in part, 	to the issue of contract expiration and you
mention it was addressed in your charge against the District,
Case No. 	LA-CE-3822. 	I note your assertion in LA-CE-3822 that
the AFT contract did not expire in 1995.6 I disagree and the
District had no duty to arbitrate the grievance over your 1996
evaluation, 	as the AFT contract expired prior to 1996. 	See State
of California. 	Department of Youth Authority 	(1992) 	PERB Decision
No. 962-S.
Based on the above facts, 	the amended charge fails to state a
prima facie violation of the EERA. 	EERA section 3541.5(a)
provides 	that 	the Public Employment Relations 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." 	As 	the original 	charge was 	filed in July
1997, 	all allegations of unlawful conduct against AFT occurring
prior to January 1997 are untimely and will be dismissed. 	You
were no longer an employee of 	the District after the 1995-96
school year and CTA became the new exclusive representative in
June 1996. 	You assert that AFT did not respond to your contacts
after you filed for Level 	III arbitration in June 1996. 	As you
did not file the initial charge until July 21, 	1997, 	more than a
year after leaving the District, 	I conclude that you had actual
knowledge of AFT's 	inaction more than six months before filing
the charge; 	and thus, 	your allegations of unlawful conduct
against AFT are untimely and will be dismissed. 	See Lake
Elsinore School District (19 86) PERB Decision No. 563.
Even assuming the charge is timely, 	you have failed to state a
prima facie case for the following reasons. 	Although you sought
6In a telefax to me on August 24, 	1998, 	which does not
appear to have been served on the Respondent, 	you argue that the
AFT contract was orally extended for the 	1995-96 	school year and
you attach CTA's letter to you dated June 18, 	1997 which states,
in part, 	"The contract has 1990-93 on it but they continued to
roll 	it 	over." 	Based on my investigation, 	there is nothing to
support the 	"oral extension" 	theory, 	as the AFT contract expired
in 1995, 	prior to your 1996 grievance and the 1996
Decertification election. 	Also, 	by letter dated June 9, 	1997,
CTA advised you that binding arbitration was not available
because at the time you filed your grievance 	[in 1996] 	the AFT
contract 	had already expired.
w
	3

arbitration, 	there are no facts to demonstrate that you requested
that AFT represent you. 	I see no specific request of yours in
this 	regard which AFT refused. 	You requested to go to
arbitration, 	and you were advised by the District on May 22, 	1997
that 	the unions were not interested in being involved. 	You did
not 	continue 	to 	insist 	or pursue arbitration on your own with the
District, 	which was your right under the AFT contract. 	In
September 1997, 	the District 	removed the disputed negative
evaluation from your personnel 	file. 	Finally, 	it does not appear
that AFT was 	obligated to process 	this post 	contract-expiration
grievance to arbitration. 	Its actions or alleged inaction do not
appear to be arbitrary, 	without a rational basis, 	discriminatory,
or in bad faith.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained above, 	and in my July 28, 	1998 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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must contain
the case name and number. 	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 Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Attention: Appeals Assistant
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
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 Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be 	considered properly 	"served" 	when personally
44

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 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
By Marc S. 	Hurwitz
Regional Attorney
Attachment
cc: 	John Ennes, 	Field Representative, 	CFT/AFT

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
July 28, 199 8
Philip A. 	Kok
Re: 	Philip A. 	Kok v. 	Coachella Valley Federation of Teachers,
CFT/AFT and Coachell
Unfair Practice Charg
WARNIN__G 	LETTER -_-_-_-_-_-_
a Valley Teachers Association. 	CTA/NEA
e No. 	LA-CO-746
Dear Mr. Kok:
In this charge filed July 21, 	1997 by Philip A. 	Kok 	(Kok),
previously a teacher at Coachella Valley High School, 	it is
alleged that 	the Coachella Valley Federation of Teachers, 	CFT/AFT
(CVFT, 	Federation or AFT) 	and the Coachella Valley Teachers
Association, 	CTA/NEA 	(CVTA, 	Association or CTA) 	failed to assist
you in processing a 1996 grievance to arbitration, 	in violation
of Government Code section 3543.6 of the Educational Employment
Relations Act 	(EERA).
My investigation has 	revealed the following information. 	You
were hired as a probationary teacher for the Coachella Valley
Unified School District 	(District) 	in August 1994. 	In February
1996, 	you were notified that the District took action to non-
reelect you for the following school year. 	You received your
final performance evaluation for the 1995-96 school year on or
about May 13, 	1996. 	On or about May 16, 	1996, 	you filed a Level
I grievance regarding the evaluation, 	which was denied at Level I
on May 22, 	1996. 	The grievance claimed that your Principal, 	A.
Franco, 	did not 	follow the contractually agreed upon provisions
for evaluation of a teacher, 	resulting in an unsatisfactory
evaluation.1 Your exclusive representative at that 	time was the
Federation. 	On May 29, 	1996, 	you moved the grievance to Level
II, 	and it was denied on June 5, 	1996.
The District and Federation agreement 	(which had expired in 1995)
provides, 	in part, at Article 24, 	section 24.4 that,
If the grievant is not satisfied with the disposition
at Level Two,P. . . . M . .4 .	he/she may withi	4 . .. .	n fiv. . . J .F	
e 	(5) 	days following
the written decision by the Superintendent, 	submit the
grievance to the Superintendent, 	in writing, 	for the
1On or about September 8, 	1997, 	the District removed the
disputed negative 	evaluation 	from your personnel 	file.

arbitration of the dispute. 	[Level III]. 	Federation
representation may be requested by the grievant.
Within five 	(5) 	days, 	the Federation and/or the
grievant and the District 	shall 	request the State
Conciliation Service to supply a panel 	of 	five 	(5)
names of persons experienced in hearing grievances 	in
public schools. 	Each party shall alternately strike a
name until only one name remains. 	The remaining panel
member shall be the arbitrator. 	The order of 	striking
shall be determined by lot.
The 	fees and expenses of 	the arbitrator shall be borne
equally by the district, 	the Federation and/or the
grievant. 	All other expenses shall be borne by the
party 	incurring 	them.
According to the District, 	on or about June 12, 	1996, 	it received
an unsigned Level 	III request 	to move the matter to arbitration,
which request 	it shared with the Federation. 	You allege that
your Level III grievance, 	with a request for arbitration, 	was
signed and filed on June 12, 	1996. 	Attached to your charge
against the District, 	LA-CE-3822, 	is the June 12, 	1996 Certified
Personnel Grievance Form-Level 	3. 	The form indicates 	that 	if you
are not satisfied with the Level 	II disposition, 	the grievant may
file within five days after the Superintendent's written decision
for review at Level 	III. 	The form has the statement 	"I hereby
request arbitration of the dispute 	from the State Conciliation
Service." 	The form also provides, 	in part, 	that 	"Within five
days, 	the grievant and the District shall request 	the State
Conciliation Service to supply a panel of 	five names of persons
experienced in hearing grievances 	in public 	schools."
Thereafter, 	not hearing back from the Federation, 	the District
assumed the union did not wish to take the grievance to
arbitration.
On June 28, 	1996, 	the CTA became the new exclusive representative
for the unit,2 and you continued to contact the District on the
processing of your grievance. 	The District advised the
Association of your continued interest 	in the grievance. 	You
continued to write 	to the District 	requesting that 	the matter
proceed to arbitration. 	In January 1997, 	you wrote to both
unions and the District 	"asking for a written response to the
level III grievance, 	and in regards to arbitration." 	You wrote
to Supt. 	Colleen Gaines on January 30, 	1997. 	By letter from the
District dated. February 	7, 	1997 	you were advised as 	follows,
2On November 12, 	1996, 	CTA and the District agreed to a new
contract effective July 1, 	1996 through June 30, 	1999.
22
\

In regards to the status of your Level 	III grievance,
this 	information was submitted to the American
Federation of Teachers as per formal grievance
procedures under the contract. 	The Superintendent's
Response to your Level 	III grievance was the same as
Level I and II 	- 	'Proper procedures followed.
Grievance not valid.'*
The contract specifies that if a grievant is not
satisfied with the disposition of Level Two, 	he/she may
submit the grievance to the Superintendent, 	in writing,
for arbitration of the dispute. 	The fees and expenses
of 	the arbitrator shall be borne equally by the
District, 	the Federation, 	and/or grievant.
The above 	information was 	shared with AFT and the
assumption was that they did not care to take this
matter to arbitration. 	If you feel otherwise, 	please
contact 	this office so that we make arrangements to
take this matter to arbitration.
You contacted all the parties 	in writing in February 1997. 	You
also wrote to some of the above parties in March, 	April and May
1997 	"requesting a written response to the level-three grievance
and/or a request 	for arbitration." 	The District wrote to you on
May 22, 	1997 and stated,
As I stated in my letter of February 7th, 	if you wish
to go to arbitration, 	the following is the process you
need to follow: 	you must contact the California
Arbitration Board 	[State Conciliation Service], 	request
a list of arbitrators, 	pay the fee and provide the
District with a list. 	Upon receipt of the list, 	the
District 	and you will mutually agree upon arbitration
and set up a meeting with the arbitrator.
The District 	is under no obligation to take any further
steps in regards to this matter. 	I have contacted AFT
and CTA and neither union is 	interested in being
involved.
I note that at Article 24, 	section 24.2 of the Federation
agreement, 	there are consequences if the parties fail to meet the
timeliness specified in the formal grievance procedures. 	Also,
the Federation agreement at Article 24, 	section 24.4 provides
that If the, grievance at Level I and II is denied, 	the District
3You indicate that the Federation contract requires 	that the
Superintendent state in writing the rationale for the denial at
Level II, 	and that no rationale was given, 	nor were proper
procedures 	followed.
W
I
3

"shall state, 	in writing, 	the rationale for the denial." 	You
contend that no rationale was given.
By letter to Sylvia Gullingsrud of CTA dated June 3, 	1997, 	your
brother, 	Andrew J, 	Kok, 	Esq. pointed out that you had not
received a written response to your Level 	3 grievance. 	On your
behalf, 	he requested a written response and arbitration of this
matter. 	By letter to you dated June 9, 	1997, 	CTA indicated that
AFT was 	the 	"bargaining agent" 	when the grievance was 	filed and
appealed to Level 	II in May 1996. 	CTA was unsure if you or AFT
requested arbitration by a June 12, 	1996 deadline. 	CTA was
certified as 	the new exclusive representative on June 28, 	1996.
Next, 	CTA indicated that binding arbitration was not available,
because when you filed your grievance, 	the AFT contract had
already expired. 	Next, 	CTA bargained a new contract, 	making
changes in the evaluation and grievance articles. 	Next, 	CTA
believed that 	if 	the duty of 	fair representation was applicable
to you, 	AFT had the responsibility to advise you they were not
taking the grievance to arbitration at Level III. 	Under the CTA
contract, 	only the Association may take a grievance to
arbitration on behalf of a unit member. 	Finally, 	as you were no
longer employed at the District, 	and based on the above, 	CTA
indicated it would not take your case to arbitration.
You wrote to Kent Braithwaite, 	previously with AFT, 	on October 9,
1997. 	By letter dated October 15, 	1997, 	he indicated, 	in part,
that in 1996, 	he was no longer active as a union leader and was
not your representative, 	although he may have discussed your case
with you. 	He also indicated, 	in part,
The best I can remember, 	your grievance was represented
by the then 	(and current) 	CVFT President, 	Mr. DeLaCruz.
Mr. 	DeLaCruz has assured me that you were represented
to the fullest extent of your contract rights and the
law as well as to the best of his most excellent
abilities. 	Mr DeLaCruz has also assured me he informed
you in detail of how the union handled your grievance,
including the decision to pursue or not to pursue Level
3, 	whatever that decision may have been.4 I was not in
the decision-making loop. 	I am not now in the decision
making loop. 	I will not make any statement 	concerning
any CVFT decision....
4You indicated to me, 	in part on July 22, 	1998 by telefax
that you were 	"only told to file the level 3 grievance and 	'be
patient'." 	You also indicated 	"The decision 	[whether to pursue
Level 3], 	based on my knowledge and the fact that I was being
abused, 	was to seek arbitration. 	The union reps 	(sic) 	were
informed of this decision, 	and said, 	'be patient'."
4

Braithwaite also suggested you 	communicate 	in the 	future with
DeLaCruz.5
A brief summary of your complaint against 	the unions, 	attached to
this charge states,
In regards to the level 	III grievance, 	the union 	(AFT)
via K. 	Braithwaite and M. 	Rosenfeld 	[of CTA], 	was
contacted several 	times via mail over the course of
several months. 	No response was given. 	Again, 	it was
not until official assistance was given, 	did the union
respond.
They 	[CTA] 	stated, 	'you or the AFT would have had to
file for arbitration on or before June 12, 	1996.' 	This
was done 	(copies enclosed). 	And went on to say, 	'If a
duty of your fair representation was due you, 	it would
have been the AFT's responsibility to notify you they
were not taking your grievance to arbitration, 	(sic- 	no
end-quote). 	They did not do so, 	nor did they consult
me 	in any way which was necessary in order to
understand the 	issues. 	The union representative(s)
during the course of the 	'95-96 	school year was K.
Braithwaite and A. 	Cruz for AFT. 	However, 	the new
union representative, M. Rosenfeld 	[of CTA], 	was also
informed and could have assisted, 	and should have
responded as well.
All were aware that a level 	III grievance had been
filed, 	and they were subsequently contacted about 	the
status of it on a number of occasions.
I called you on July 21, 	1998, 	and asked you what contact you had
with the unions, 	and I requested copies of any correspondence
that you had. 	You indicated that you sent numerous 	letters to
them regarding your Level 	III grievance asking, 	"What's going
on?" 	You did not receive any response from either union until
you received the letter from CTA dated June 9, 	1997, 	discussed
above. 	You also advised me by telefax on July 22, 	1998 	that
other than the letters discussed above, 	you did not have anything
more. 	Copies of the correspondence you sent are unavailable
since, 	in part, 	the computer disc they were on may no longer be
available. 	You also indicated that during 	"the 1996-97 year",
To paraphrase, 	the correspondence to the CTA and the
- AFT/CWT was specifically addressed to
agents/representatives A. DeLaCruz, K. Braithwaite, and
5Your July 22, 	1998 telefax also indicates, 	"I had been and
continue attempting to communicate with all 	relevant parties,
including DeLaCruz."
s

[CTA's] 	M. 	Rosenfeld, 	all 	who received several 	notices
stating 	that 	employee would 	like 	to 	have 	an answer 	to
the 	Level 	III 	grievance, 	and would like arbitration as
promised by 	the 	employer 	(and guaranteed by 	contract).
Finally, 	you 	indicated that 	"There was 	no other 	communication
from any of 	the 	other representatives, 	despite what 	K.
Braithwaite 	contends 	in his 	letter."
A review 	of 	the 	facts 	indicates 	that 	the District 	was 	not
obligated 	to 	take 	the 	grievance 	to 	arbitration 	for 	several
reasons. 	In other words, 	you have no 	legal 	right 	to 	claim that
the District 	was 	obligated 	to arbitrate your 1996 	grievance.
First, 	your 	request 	at 	Level 	III 	for arbitration was 	untimely as
it was not 	filed within five 	(5) 	days 	following the written
decision by the Superintendent. 	You 	took seven 	(7) 	days 	to 	file.
At Article 24, 	section 24.2, 	of the AFT contract, 	it provides, 	in
part, 	that 	"Failure 	of 	the grievant and/or the Federation to meet
the 	timelines 	specified 	in 	the 	formal 	grievance procedures 	shall
render 	the 	grievance void and 	the 	denial 	for 	cause 	by 	the
grievant 	and/or the 	Federation." 	Thus, 	the 	failure 	to 	timely
file 	the 	request 	for arbitration 	renders 	the grievance void and
the District 	had no 	obligation 	to process 	your 	request 	for Level
III 	review.
Second, 	even if your request 	for arbitration was 	timely, 	by
operation of 	law, 	the District 	was 	not 	required to 	take 	the
grievance 	to arbitration as 	the 	agreement between 	the 	District
and the AFT, 	the exclusive representative until June 28, 	1996,
had expired in 1995. 	In State 	of California. 	Department 	of Youth
Authority 	(1992) 	PERB Decision No. 	962-S, 	PERB adopted the U.S.
Supreme Court 	rule 	in Litton Financial 	Printing Div, 	v. 	NLRB
(1991) 	501 U.S. 	190, 	115 L. 	Ed.2d 177 	[137 LRRM 2441] 	(Litton)
that 	arbitration 	clauses do not 	continue 	in effect 	after the
expiration of 	a 	collective bargaining agreement, 	except 	for
disputes 	that 	involve 	facts 	and 	occurrences 	that 	arose before
expiration, 	or 	that 	involved post-expiration conduct 	that
infringes 	on 	rights 	accrued or vested under the 	contract, 	or that
under normal 	principles 	of 	contract 	interpretation, 	survive
expiration of 	the agreement. 	In this 	case, 	the District had no
duty 	to arbitrate 	the 	grievance 	as 	the District's 	actions
occurred after the 	expiration of 	the AFT contract, 	the District's
conduct 	did not 	infringe 	on vested 	rights 	under 	the 	agreement,
and 	the agreement 	has 	no 	separate 	authority 	that 	under normal
principles 	of 	contract 	interpretation, 	require 	the 	continuation
of the. arbitration provisions.
Based on 	the 	above 	information, 	the 	charge 	fails 	to 	state 	a prima
facie violation 	of 	the 	EERA. 	You have 	alleged 	that 	CTA and AFT
denied you 	the 	right 	to 	fair 	representation guaranteed by 	EERA
section 3544.9 	and 	thereby violated 	section 3543.6(b). 	The duty
of 	fair representation 	is 	owed by 	the 	exclusive 	representative 	to
6

the employee. 	The charge against CTA does not state a prima
facie case as you ceased being an employee at 	the District before
CTA became the 	exclusive representative.
Next, 	even assuming CTA owed you a duty of 	fair representation
and/or AFT owed you a duty of 	fair representation, 	you have
failed to state a prima facie case for the following reasons.
The duty of 	fair representation imposed on the exclusive
representatives 	extends to grievance handling. 	(Fremont Teachers
Association (King) (19 80) PERB Decision No. 125; United Teachers
of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.) 	In order
to state a prima facie violation of this section of EERA, 	you
must show that the unions' 	conduct was arbitrary, 	discriminatory
or in bad faith. 	In United Teachers of Los Angeles 	(Collins).
the Public Employment Relations Board 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.
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 Decision No. 332, p. 	9, 	citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
You filed the above grievance and it 	is clear that the District
was not obligated to arbitrate it. 	The charge does not indicate
that you requested either union to represent you and the AFT
contract permits 	the grievant 	to go to arbitration without the
union. 	You requested to go to arbitration on your own. 	Also, 	on
May 22, 	1997, 	the District advised you that neither union was
interested in being involved. 	Based on the above, 	it does not
77

appear that 	the unions were obligated to process 	this untimely or
post 	contract-expiration grievance; 	and their actions or inaction
do not appear to be arbitrary, 	without a rational basis,
discriminatory, 	or in bad faith.
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 have 	the case number written on the 	top right
hand corner of 	the charge form. 	The amended charge must be
served on the respondents' 	representatives6 and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before August 4, 	1998, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3543.
Marc S. Hurwitz
Regional Attorney
6The CFT/AFT representative is John Ennes, 	Field
Representative, 	Hawaiian Gardens, 	CA, 	and CTA is represented by
Rosalind D. Wolf, 	Staff Counsel, 	Santa Fe Springs, 	CA.
8