Orange Unified Education Association, California Teachers Association (Rossmann, et al.) (PERB 1307E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN ROSSMANN, 	ET AL.,
Charging Parties,
v.
ORANGE 	UNIFIED 	EDUCATION
ASSOCIATION, 	CTA,
Respondent.
Case No. 	LA-CO-780
PERB Decision No. 	1307
January 14, 	1999
Appearances; 	John Rossmann for John Rossmann, 	et al.; 	Geffner &
Bush by Nathan Kowalski, 	Attorney, 	for Orange Unified Education
Association, 	CTA.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations Board 	(Board) 	on appeal by John Rossmann,
et al. 	(Rossmann, 	et al.) 	of a Board agent's dismissal 	(attached)
of their unfair practice charge. 	In the charge, 	Rossmann, 	et al.
alleged that the Orange Unified Education Association, 	CTA
(Association) 	violated the Educational 	Employment Relations Act
(EERA) 	section 3543.6(b)1 by negotiating an agreement with the
1EERA 	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:
(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.

Orange 	Unified 	School 	District 	and 	intimidating 	bargaining unit
members.
The Board has 	reviewed the 	entire record 	in this 	case,
including Rossmann, 	et al.'s 	original 	and amended unfair practice
charge, 	the Board agent's warning and dismissal 	letters,
Rossmann, 	et al.'s appeal and the Association's response. 	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-780 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer 	and Amador 	joined 	in this 	Decision.
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
PERD
October 7, 	1998
John Rossman
Re: 	John Rossman. 	et. al. v. Orange Unified Education
Association, CTA
Unfair Practice Charge No. 	LA-CO-780
DISMISSAL/REFUSAL TO 	ISSUE A COMPLAINT
Dear Mr. Rossman:
I indicated to you, 	in my attached letter dated September 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
October 5, 199 8, the charge would be dismissed. On October 5,
1998, 	you filed a first amended charge.1
The original 	charge alleged the Orange Unified Education
Association 	(0UEA) 	violated its duty of fair representation. 	The
Warning Letter 	indicated the 	charge was untimely and failed to
factually demonstrate a prima facie violation. 	The Charging
Parties' 	first amended charge alleges PERB failed to include CTA
as a party to this charge. 	However, 	as indicated in both the
caption of this letter and the caption of the Warning Letter, 	the
Respondent is the Orange Unified Education Association, 	CTA.
The first amended charge alleges the charge is timely filed. 	The
first amended charge states in pertinent part:
1In the 	first amended charge, 	the Charging Parties 	complain
that they did not have enough time to address the September 28,
1998, 	Warning Letter. 	Although the Warning Letter includes my
telephone number, 	the Charging Parties did not call me to request
an extension of 	time. 	The Charging Parties also complain that
the Warning Letter issued before the September 22, 	1998, 	Initial
Letter's deadline for the Respondent 	to file a position
statement, 	and that they did not receive a copy of the position
statement. 	However, 	as noted in the September 22, 	1998 Initial
Letter, 	PERB Regulations do not 	require the Respondent to file a
position statement.

LA-CO-780
Dismissal 	Letter
Page 2
it was only on April 27, 	1998, 	that the
Charging Parties 	first 	knew of 	the existence
of a statutory union obligation under EERA to
fulfill 	the Duty of Fair Representation
toward members. 	Furthermore, 	in May, 	1998,
after the Charging Parties 	first 	learned of
this Duty and queried the Respondent Unions
about 	fulfillment of said Duty, 	the Unions
responded with deceptive answers which
delayed and diverted 	the 	Charging 	Parties
from immediate pursuance of an Unfair
Practice Charge, 	[emphasis in original.]
As previously indicated in the Warning Letter, 	the statute of
limitations is jurisdictional and the Charging Parties' 	lack of
knowledge regarding PERB, 	the Educational Employment Relations
Act 	(EERA or Act) 	or their rights does not give PERB jurisdiction
over an otherwise untimely filed charge. 	(See Mt. 	San Jacinto
College Faculty Association, 	CTA/NEA 	(1996) 	PERB Decision No.
1147; 	California State University. 	San Diego 	(1989) 	PERB Decision
No. 	718-H; 	Calexico Unified School District 	(1989) 	PERB Decision
No. 	754.) 	The Charging Parties' 	belated discovery of the legal
significance of 	the underlying conduct does not excuse an
otherwise untimely filing. 	(UCLA Labor Relations Division 	(1989)
PERB Decision No. 	735-H.) 	It is not the Charging Parties'
knowledge of the law which starts the statute of limitations
running. 	Rather it 	starts to run when the Charging Party knew or
should have known of 	the activities allegedly violating the EERA,
Therefore, 	in the instant charge, 	the statute of limitations
period began running when the Charging Parties knew or should
have known OUEA allegedly failed to 	fairly represent 	its
bargaining unit employees. 	The Charging Parties knew on June 23,
1997, 	that OUEA had negotiated an agreement which the Charging
Parties disliked. 	The Charging Parties also knew in September
1997, 	that the OUEA conducted a ratification vote which the
Charging Parties similarly disliked. 	Thus, 	the statute of
limitations period began to run on these allegations on June 23,
1997, 	and in September 1997. 	The Charging Parties did not file
their unfair practice charge until September 19, 	1998, 	and thus
acted outside the six-month statute of limitations period.
Therefore, 	these allegations are not within the jurisdiction of
PERB. 	Even if timely filed, the amended charge does not correct the
deficiencies noted in the Warning Letter. 	The first amended
charge fails 	to present facts demonstrating the Respondent acted
in an arbitrary, 	discriminatory, 	or bad faith manner. 	Thus,
these allegations are dismissed.

LA-CO-780
Dismissal 	Letter
Page 3
The first amended charge also alleges 	that OUEA violated its duty
of 	fair representation in May 1998. 	The amended charge alleges:
Among the Charging Parties are bargaining
unit members who were present at the May
1998, 	meeting during which a high-ranking
member of 	the California Teachers Association
legal 	department 	told members 	that they had
no basis 	for filing a grievance alleging that
the Unions 	failed to 	fulfill 	their Duty of
Fair Representation. 	We therefore further
amend our charge, 	still well within the six
month filing period, 	to include that the
Respondent Unions also violated their Duty of
Fair Representation by deceiving their
members about 	the obligations owed to members
under the precepts of 	the Duty of Fair
Representation. 	[emphasis in original.]
Although timely filed, 	this allegation fails to state a prima
facie violation of the EERA for the reasons 	that 	follow. 	As
stated in the Warning Letter, 	in order to state a prima facie
violation of this section of EERA, 	Charging Parties must show
that the Association's conduct was arbitrary, 	discriminatory or
in bad faith. 	In order to state a prima facie case of arbitrary
conduct violating the duty of 	fair representation, 	the Charging
Parties:
" . . . 	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.]
The charge does not provide facts demonstrating the union's
statements 	in May 1998 violated the EERA. 	The charge does not
demonstrate that .the Respondent deceived the Charging Parties by
indicating the Charging Parties did not have the right 	to file a
"grievance" 	regarding the union's duty of fair representation. 	A
grievance would necessarily stem from the 	collective bargaining
agreement 	(CBA) 	between the District and OUEA. 	The charge does
not provide facts 	indicating the CBA contained a duty of 	fair
representation provision under which the employees 	could file a
grievance against the union. 	Therefore, 	the union's statements
as described in the first amended charge appear to be accurate.

LA-CO-780
Dismissal 	Letter
Page 4
Even if CTA told the Charging Parties' 	that they did not have the
basis 	for an 	"unfair practice charge" 	alleging a violation of the
duty of fair representation, 	the charge fails to state a prima
facie violation. 	The exclusive representative does not owe a
duty of 	fair representation in regard to avenues of 	relief other
than the grievance procedure. 	(University Council 	- American
Federation of Teachers 	(1994) 	PERB Decision No. 	1062-H.)
Moreover, 	CTA's assessment of the Charging Parties' 	allegations
appears correct. 	By May 1998, 	when CTA spoke to the Charging
Parties, 	more 	than six months had elapsed from the time when OUEA
negotiated the agreement, 	and conducted the ratification vote.
An unfair practice charge alleging a duty of fair representation
violation filed in May 1998 would have been time-barred. 	Thus,
this allegation is dismissed.
For the foregoing reasons, 	as well as those stated in the Warning
Letter, 	the charge is 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
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

LA-CO-780
Dismissal 	Letter
Page 5
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
By Tammy L. Samsel
Regional Director
Attachment
cc: 	Nathan Kowalski
Jesus Quinonez

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
September 28, 	1998
John Rossman
Re: 	John Rossman. 	et. al. v. Orange Unified Education
Association. CTA
Unfair Practice Charge No. 	LA-CO-780
WARNING LETTER
Dear Mr. Rossman:
The above-referenced charge alleges 	the Orange Unified Education
Association 	(0UEA) 	violated the Educational Employment Relations
Act 	(EERA or Act) 	§ 3543.6(b) 	by negotiating an agreement with
the Orange Unified School District 	(District) 	and intimidating
bargaining unit members. 	My investigation revealed the 	following
information.
Charging Parties are members of 	the 	certificated bargaining unit
at 	the District and are exclusively represented by 0UEA. 	In 1997
the District and OUEA were negotiating for a collective
bargaining agreement. 	During the negotiations, 	the District
proposed that new hires and unit members with less 	than eight
years of experience would receive double-digit salary increases,
while unit members with greater experience would receive a lesser
salary increase. 	The salary increases for the more experienced
unit members would also be dependent upon veteran teachers
selling out their retirement benefits 	for payments below the
value of the benefits. 	From March 1997 through June 1997, 	OUEA
assured unit members 	it would not agree to such a proposal.
However, 	on June 23, 	1997, 	OUEA notified unit members it had
reached a tentative agreement 	(TA) 	with just such a provision.
Bargaining unit members protested this provision of the TA, 	and
OUEA responded by indicating the TA was legal and fair. 	OUEA
held an election to ratify the TA which included two options 	for
unit members to choose between: -The first option was to vote to
ratify the TA. 	The second option was as follows:
NO-I REJECT THE TENTATIVE AGREEMENT AND
AUTHORIZE THE ASSOCIATION TO CALL A STRIKE.
The voters ratified the TA. 	The Charging Parties allege that 	in
the past OUEA has held ratification elections and strike
elections 	separately. 	The charge also alleges OUEA failed to

LA-CO-780
Warning 	Letter
Page 2
provide 	the members 	with 	full 	and 	complete 	editions 	of 	the TA
prior to 	the vote.
The 	Charging 	Parties 	indicate 	they did not 	file 	a 	charge 	against
OUEA in September 	of 	1997 	because 	OUEA told 	the unit 	members 	that
the TA was 	neither 	illegal 	nor unfair. 	The 	Charging 	Parties
allege that on April 	27, 	1998, 	they learned that unions 	owe
employees 	a duty of 	fair representation. 	In May 	1998, 	unit
members 	told OUEA that 	OUEA owed 	them a 	duty 	of 	fair
representation, 	and OUEA responded by 	indicating 	the 	employees
did not 	have 	grounds 	for filing an unfair practice 	charge. 	The
Charging 	Parties 	relied on this 	statement 	and did not 	file 	a
charge 	for that 	reason.
The 	above-stated 	information 	fails 	to 	state 	a prima 	facie
violation 	for 	the 	reasons 	that 	follow.
EERA § 	3541.5(a)(1) 	provides 	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." 	It 	is your burden as 	the
charging party 	to 	demonstrate 	the 	charge 	has 	been 	timely 	filed.
(See Tehachapi Unified School District 	(1993) 	PERB Decision No.
1024.)
The 	Charging 	Parties 	filed 	the 	instant 	unfair practice 	charge 	on
September 19, 	1998. 	The alleged unfair practices 	occurred on
June 23, 	1997, 	when OUEA negotiated an agreement which the 	charge
characterizes 	as unfair, 	and 	in September 	1997 when OUEA
conducted a 	ratification vote. 	More 	than six months 	has 	elapsed
since 	the 	Charging 	Parties 	knew of 	the 	alleged unfair practices.
Thus, 	these allegations are untimely filed and outside 	the
jurisdiction of 	PERB.
The 	Charging 	Parties 	allege 	they did not 	know that 	OUEA owed 	the
bargaining unit members 	a duty of 	fair 	representation until 	April
27, 	1998. 	However, 	PERB has consistently held the statute of
limitations 	is 	jurisdictional 	and the Charging Parties' 	lack of
knowledge 	regarding 	PERB, 	the 	EERA or their rights 	does 	not 	give
PERB 	jurisdiction 	over an otherwise untimely filed 	charge. 	(See
Mt. 	San Jacinto College Faculty Association. 	CTA/NEA 	(1996) 	PERB
Decision No. 1147; California 	State University. 	San Diego 	(1989)
PERB Decision No. 	718-H; 	Calexico Unified School District 	(1989)
PERB Decision No. 	754.) 	Thus, 	the charge must be dismissed.
Further, 	even 	if 	considered timely filed, 	the charge 	fails 	to
state a prima 	facie violation of 	the duty of 	fair 	representation.
Charging 	Parties 	have 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Parties 	the 	right 	to 	fair 	representation

LA-CO-780
Warning Letter
Page 3
guaranteed by EERA section 	3544.9 	and 	thereby violated 	section
3543.6(b). 	In order to state a prima facie violation of this
section of EERA, 	Charging Parties must show that the
Association's conduct was arbitrary, 	discriminatory or in bad
faith. 	In order to state a prima facie case of arbitrary conduct
violating the duty of fair representation, 	the Charging Parties:
" . . . 	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.]
A union's duty to fairly represent employees during negotiations
does not encompass an obligation to negotiate any particular
item. 	(Rocklin Teachers Professional Association 	(1980) 	PERB
Decision No. 	124.) 	Although the Board recognizes it may be
difficult, 	in order to ensure that the bargaining agent is
afforded a broad range of discretion and latitude, 	it is
necessary for the Charging Party to set 	forth with exactitude the
irrational or arbitrary nature of 	the union's conduct 	toward the
unit membership. 	(Id.) 	An exclusive representative is not
expected or required to satisfy all members of the unit 	it
represents, 	and the duty of fair representation does not mean
that an exclusive representative 	is barred from making contracts
which may have unfavorable effects on some members. 	(California
School Employees Association and its Chapter 107 	(Chacon) 	(1995)
PERB Decision No. 	1108.) 	The instant charge fails to provide
facts demonstrating OUEA acted in an arbitrary, 	discriminatory or
bad faith manner. 	Thus, 	the charge does not 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 have the case number written on the top right
hand corner of 	the charge form. 	The amended charge must be
served on the 	respondent's 	representative and the original proof
of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before October 5. 	1998. 	I

LA-CO-780
Warning Letter
Page 4
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director