United Faculty Association of North Orange County (Kiszely) (PERB 1343E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ELIZABETH KISZELY,
Charging Party, Case No. LA-CO-773
Vv. PERB Decision No. 1343

UNITED FACULTY ASSOCIATION OF
NORTH ORANGE COUNTY,

August 19, 1999

Respondent .

Appearances: Elizabeth Kiszely, on her own behalf; California
Teachers Association, by Rosalind D. Wolf, Attorney, for United
Faculty Association of North Orange County.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION AND ORDER

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Elizabeth Kiszely (Kiszely)
to a Board agent's dismissal (attached) of the unfair practice
charge. In the charge, Kiszely made a request for repugnancy
review of an arbitration award, and also alleged that the United
Faculty Association of North Orange County (Association) denied
her the right to fair and impartial representation guaranteed by

section 3544.9 of the Educational Employment Relations Act

(EERA), in violation of section 3543.6(b).*

‘FERA is codified at Government Code section 3540 et seq.
Section 3544.9 states:

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 states, in 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.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	Kiszely's appeal,2
and 	the Association's 	response.3 The 	Board 	finds 	the warning 	and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-773 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
2Kiszely's 6/27/99 	request 	to provide 	additional 	materials
is 	hereby denied.
3The Association made 	a 	request 	that 	the 	Board order Kiszely
to pay the Association's 	costs and attorney's 	fees, 	"to deter the
continuation of 	this pattern of vexatious 	litigation." 	The Board
has 	considered this 	request 	and declines 	to order sanctions.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor	f
*
PUBLIC EMPLOYMENT RELATIONS BOARD
4i Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198 	•
May 4, 	1999
Elizabeth 	Kiszely
142 	Orange Blossom
Irvine, CA 92 62 0
Re: 	Elizabeth 	Kiszely 	v. 	United Faculty Association of North
Orange 	County
Unfair 	Practice 	Charge 	LA-CO-773--First, 	Second 	& Third
Amended 	Charges
DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE 	A 	COMPLAINT
Dear Ms. 	Kiszely:
You 	have 	alleged 	that 	the 	United 	Faculty Association 	of 	North
Orange 	County 	(Association) 	denied you the 	right 	to 	fair
representation 	guaranteed by 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	section 3544.9 	and thereby violated section 3543.6(b).
The 	original 	charge 	in this 	case was 	a request 	for 	repugnancy
review of 	the 	"arbitration hearing on April 	15, 	1997, 	that
pertained 	to 	unfair practice 	charges 	LA-CE-3699 	and LA-CO-714.l
As 	I 	indicated 	to you 	in my attached 	letter dated December 	18,
1998, 	the 	above-referenced charge did not 	state 	a prima 	facie
case 	because 	your 	request 	was 	untimely and 	the 	Public 	Employment
Relations 	Board 	(PERB) 	lacked jurisdiction to do anything other
than dismiss 	it. 	Further, 	the December 18, 	1998 warning letter
noted 	that 	you 	failed 	to demonstrate 	that 	the Association acted
in an arbitrary or discriminatory manner, 	or in bad 	faith. 	You
were 	advised 	that 	if 	there were 	any 	factual 	inaccuracies 	or
additional 	facts 	which would 	correct 	the 	deficiencies 	explained
in the warning 	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 January 8, 	1999, 	the
charge would be dismissed. 	On January 7, 	1999, 	you filed your
first 	amended charge by certified mail. 	On February 	8, 	1999, 	you
filed a 	second amended charge. 	On March 	16th you 	filed your
third 	amended 	charge.
1Since 	a 	repugnancy review of 	the 	arbitrator's 	award 	is
based on 	the 	arbitration provisions 	of 	the 	collective 	bargaining
agreement 	(CBA) 	between the union and employer and deals 	solely
with alleged contract 	violations by the 	employer, 	this 	charge
against 	the Association was 	reviewed primarily as 	an 	alleged
violation of 	the 	duty of 	fair 	representation.
, 	'·

LA-CO-773
Dismissal 	Letter
Page 2
After 	investigation, 	I 	conclude 	that 	the original 	and amended
charges 	fail 	to 	state 	a prima 	face violation of 	the 	EERA within
the 	jurisdiction of 	PERB 	for 	the 	reasons 	that 	follow.
The 	Charge 	is 	Untimely
As 	stated 	in 	the warning 	letter, 	the 	Board's 	jurisdiction 	is
limited by a 	six-month 	statute 	of 	limitations 	period. 	EERA
section 3541.5(a)(1) 	provides 	the Board shall 	not 	"[i]ssue 	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." 	Your charge, 	which was 	filed on July 23, 	1998,
concerns 	the Association's processing 	of 	your grievance 	and
arbitration which took place 	from August 	23, 	1996 	through June 	3,
1997. 	This 	charge 	is outside PERB's 	jurisdiction because 	it 	is
untimely.
Not 	a 	Continuing Violation
In your 	first 	amended charge 	you 	assert 	that 	"[b]ecause 	this
retaliation 	[by the union] 	is 	on-going and because 	the 	issues 	the
union agreed to take 	to arbitration have not, 	in fact, 	been heard
in arbitration, 	the unfair practice 	charge 	is 	timely." 	(First
amended charge, 	Attachment A at p. 	1.) 	In the 	second amended
charge you 	state 	that 	the 	withholding of 	information by 	the
Association 	on 	how 	to 	correctly grieve 	violations 	of 	Title V,
affirmative action policies, 	etc., 	is 	"a continuing violation of
the 	terms 	of 	the 	CBA because 	of 	the 	disparate 	treatment 	and
unequal 	application of 	the 	contract 	that 	follow from it" 	(Second
amended charge, 	Attachment A at p. 	16.)
PERB has 	recognized 	"continuing violations" 	of 	certain 	types 	of
claims- to bring 	them within 	its 	jurisdiction even 	if 	the 	original
conduct 	was 	outside 	the 	six-month period. 	In San Dieguito Union
High School District 	(1982) 	PERB Decision No. 	194 	(San Dieguito),
the 	Board 	found 	that 	a 	continuing violation would only be 	found
where 	active 	conduct 	or grievances 	occurred within 	the
limitations 	period 	that 	independently 	constituted 	an 	unfair
practice. 	Examples 	of 	continuing violations 	include 	the monthly
withholding 	of 	union 	dues 	from the 	union 	since 	the 	failure 	of 	the
employer 	to 	transmit 	the 	dues 	to 	the 	union was 	repeated each
month upon receiving 	the 	union's 	request 	for 	the 	dues.(San
Dieguito at p. 	9, 	citing Beer Distributors 	(1972) 	196 NLRB 	165.)
A continuing violation 	is 	not 	found where 	the 	unlawful 	conduct
during 	the 	limitations 	period 	constituted 	an unfair practice 	only
by its 	relation to 	the original 	offense. 	(El Dorado Union High
School District 	(1984) 	PERB Decision No. 	3 82 at p. 	4.) 	Here the
conduct 	you 	complain 	about 	against 	the Association concerns 	the
handling of 	your grievance 	and arbitration of 	the 	original 	filing
(

LA-CO-773
Dismissal 	Letter
Page 3
of 	the 	unprofessional 	conduct 	notice 	and 	is 	not 	a 	continuing
violation.
The Association 	has 	not 	violated 	its 	Duty of 	Fair Representation
As 	previously stated in the warning 	letter, 	the duty of 	fair
representation extends 	to grievance 	handling. 	(Fremont 	Teachers
Association 	(King) 	(1980) 	PERB Decision No. 	125.) 	To demonstrate
a violation 	of 	that 	duty 	it 	must 	be 	shown 	that 	the Association's
conduct 	was 	arbitrary, 	discriminatory or in bad faith. 	Case
handling 	errors 	and 	simple 	negligence 	are 	not 	violations 	of 	the
duty. 	(American Federation of 	State, 	County and Municipal
Employees, 	Council 	10 	(Olson) 	(1988) 	PERB Decision No. 	682-H.)
The 	allegations 	in your 	amended charges 	regarding 	the
Association's 	conduct 	in processing 	the 	grievance 	similarly 	fails
to 	demonstrate 	that 	the Association 	acted 	in an arbitrary,
discriminatory or bad 	faith manner. 	You 	allege 	that 	the
Association 	acted 	in 	bad 	faith 	by 	concealing 	information 	from you
regarding how 	to 	grieve 	a 	statutory notice 	and how 	to 	grieve
violations 	of 	shared governance 	rights. 	The Association's
judgment 	in 	taking 	the 	statutory notice 	to 	arbitration does 	not
establish 	that 	the 	Association 	acted 	in 	an arbitrary,
discriminatory 	or 	bad 	faith manner.
As 	evidence 	of 	bad 	faith, 	you allege 	that 	the Association merely
went 	through 	the 	motions 	of 	taking your grievance 	to 	arbitration
and had deleted the 	substance 	of your issues. 	However, 	you
provide no 	facts 	to 	support 	such a 	finding. 	I 	see no reason to
disturb 	the 	earlier 	conclusion 	that 	the Association did not 	act
in 	an arbitrary, 	discriminatory manner or 	in bad 	faith 	in 	its
handling of 	your grievance.
In American Federation of 	State, 	County and Municipal 	Employees,
International, 	Council 57 	(Dehler) 	(1996) 	PERB Decision No. 	1152-
H,(AFSCME 	(Dehler)) 	the 	Board 	indicated 	isolated 	acts 	which did
not 	alone 	establish a violation of 	the 	duty of 	fair
representation, 	presented a pattern of 	conduct which, 	when
considered 	in 	its 	entirety, 	demonstrated a prima 	facie violation.
However, 	I 	do not 	find a pattern of 	bad 	faith 	from the 	totality
of 	the material 	you presented. 	The Association's 	conduct, 	when
considered 	in 	its 	entirety, 	does not 	demonstrate 	it 	acted 	in an
arbitrary, 	discriminatory, 	or bad faith manner. 	Although the
Association did not 	do everything as you would have 	liked, 	in
retrospect, 	the 	charge does not 	demonstrate 	the Association's
representatives 	were 	acting 	arbitrarily or 	in bad 	faith. 	The
Association 	took 	your 	grievance 	through binding 	arbitration 	and
hired outside 	counsel 	to represent 	you. 	Thus, 	under the analysis
set 	forth in AFSCME 	(Dehler), 	the Association's conduct, 	when
(

LA-CO-773
Dismissal 	Letter
Page 4
considered 	in 	its 	entirety, 	does 	not 	demonstrate 	a prima 	facie
violation of 	the 	EERA.
Association's 	actions 	are 	not 	bad 	faith
In your 	amended 	charges 	you allege 	that 	the 	warning 	letter did
not 	make 	reference 	to 	the 	evidence 	you presented about 	the
arbitration process. 	As mentioned previously, 	this 	is being
considered a 	duty of 	fair representation charge, 	not 	a 	repugnancy
review of 	the 	arbitrator's 	award, 	since 	a 	repugnancy review of
the 	arbitrator's 	award 	is 	based on 	the 	arbitration provisions 	of
the 	CBA between 	the 	union and employer and deals 	solely with
charges 	against 	the 	employer.
The 	following 	is 	my analysis 	of 	your 	claim that 	the 	arbitration
proceeding was 	unfair 	and 	that 	the Association 	acted 	in bad
faith. 	It 	is 	your belief 	that 	the Association acted 	in bad 	faith
because: 	(1) 	you were not given 	"formal" 	notice of the
proceeding; 	(2) 	the Arbitration was not processed through the
American Arbitration Association 	(AAA); 	(3) 	the tape of 	the
proceeding was 	not 	intelligible 	so no 	record was 	made 	of 	the
proceeding; 	(4) 	it was 	inappropriate 	for the Association to
stipulate 	to 	the 	threshold question of 	arbitrability of 	the
issue;2 (5) 	the Association did not 	let you use your own
attorney; 	(6) 	the Association did not give you copies of
documents that were presented to the arbitrator; 	(7) 	the
Association 	did 	not 	arbitrate 	the 	issues 	you had 	specified 	and
that your evidence 	and witnesses were 	suppressed; 	and 	(8) 	the
Association did not 	let 	you participate 	fully 	in planning 	the
strategy of your arbitration. 	In addition, 	you argue 	that 	the
Association 	acted 	in bad 	faith by not 	following 	up 	with 	the
District's 	continuing 	retaliation 	against 	you.
As 	discussed 	in greater detail 	in the warning 	letter, 	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
2The 	parties 	stipulated 	to 	arbitrate 	the 	following:
Is 	the grievance of Elizabeth Kiszely, 	dated October 8, 	1996,
arbitrable? 	If 	so, 	did the notice of unprofessional 	conduct
issued to Elizabeth Kiszely, 	dated June 27, 	1996, 	violate the
CBA? 	If 	so, 	what 	is 	the appropriate remedy?
(

LA-CO-773
Dismissal 	Letter
Page 5
Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
The 	facts 	alleged by you 	in 	the 	original 	and amended 	charges 	do
not 	demonstrate 	that 	the Association 	acted 	irrationally or 	in bad
faith. 	Accordingly, 	you do not 	state a prima 	facie case of 	a
violation of 	the 	duty of 	fair 	representation under EERA.
Violations 	of 	the 	CBA
In your 	amended 	charge 	you 	repeatedly express 	your 	concerns 	about
the Association's violations 	of 	the 	CBA, 	especially as 	they
relate 	to 	academic 	freedom and 	shared governance 	issues.
However, 	enforcement 	of 	CBA violations 	is 	expressly outside 	the
purview of 	PERB 	unless 	they are 	also 	an unfair practice 	under
EERA which has 	not 	been 	shown here.
Summary
Unfair 	Practice 	Charge 	LA-CO-773 	was 	not 	filed 	in a 	timely
manner; 	therefore, 	the Board lacks 	jurisdiction to issue a
complaint 	against 	the Association on your behalf. 	Therefore, 	it
is 	dismissed and no 	complaint 	will 	issue.
Further, 	the 	information you presented 	fails 	to 	state 	a prima
facie violation of 	the 	EERA. 	For these 	reasons 	the 	charge, 	as
presently written, 	does not meet 	the 	standards 	for a violation of
the 	duty of 	fair 	representation against 	the Association.
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, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express United States mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last day set 	for filing. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 8,
sec. 	32130.)
. . .
(

LA-CO-773
Dismissal 	Letter
Page 6
A document 	is 	also 	considered 	"filed" 	when 	received 	by 	facsimile
transmission before 	the 	close 	of 	business 	on the 	last 	day 	for
filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .) 	. 	•
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.)

LA-CO-773
Dismissal 	Letter
Page 	7
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	By 	~oj/4(&,
JANICE	JAN 	E 	F. 	HILL
Boa 	Agent
Attachment
cc: 	Rosalind Wolf
2Jj ~ ~ 2
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PEAD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
December 18, 	1998
Elizabeth 	Kiszely
142 	Orange Blossom
Irvine, 	CA 	92620
Re: 	Elizabeth Kiszely v. 	United Faculty Association of North
Orange 	County
Unfair 	Practice 	Charge 	LA-CO-773
WARNING 	LETTER
Dear Ms. 	Kiszely:
On July 23, 	1998, 	you filed Unfair Practice Charge
No. 	LA-CO-773, 	a request 	for repugnancy review of the
"arbitration hearing on April 	15, 	1997, 	that pertained to unfair
practice 	charges 	LA-CE-3699 	and 	LA-CO-714."l Since 	a 	repugnancy
review of 	the 	arbitrator's 	award 	is 	based 	on the 	arbitration
provisions 	of 	the 	collective bargaining agreement 	(CBA) 	between
the 	union 	and 	employer 	and deals 	solely with unfair practice
charges 	against 	the employer, 	this 	charge 	against 	the United
Faculty Association of North Orange 	County 	(Association) 	is 	being
reviewed 	as 	an 	alleged violation of 	the 	duty of 	fair
representation, 	not 	a request 	for repugnancy review. 	My
investigation 	revealed the 	following 	information 	relevant 	to 	this
charge.
You are 	an English 	Professor at 	the North Orange 	County Community
College 	District 	(District) 	and are 	exclusively represented by
the Association. 	During the 	1995-1996 	school year, 	you voiced
concerns 	regarding 	faculty rights. 	You believed the 	District
retaliated against 	you 	for those 	activities. 	As 	a result 	you
filed grievances 	and unfair 	labor practice 	charges 	against 	the
District.2 During 	1995 	and 	1996 	you 	filed 	four grievances
against 	the District. 	The Association did not pursue 	the 	first
grievance but 	informed you 	that 	you 	could pursue 	it 	on your own.
The Association 	took your 	second grievance 	through 	level 	III 	but
refused to take 	it 	to binding arbitration. 	You were 	informed
1 Unfair 	Practice 	Charge No. 	LA-CE-3699 	was 	addressed 	in
correspondence 	concerning 	charge 	number 	LA-CE-3965 	because 	it
involves 	the 	employer, 	North Orange 	Community College District,
and not 	the 	employee 	organization, 	United Faculty Association,
the 	subject 	of 	this 	charge.
2See Unfair Practice Charges Nos. 	LA-CE-3699, 	LA-CE-3837 and
LA-CE-3965.

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Warning 	Letter
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that 	your 	third 	claim, 	an 	academic 	freedom 	claim was 	not
grievable.
The 	fourth grievance 	was 	taken 	to binding 	arbitration on your
behalf 	by the Association. 	The 	arbitration hearing was 	held on
April 	15, 	1997, 	and the 	arbitrator's opinion and award was 	issued
on May 29, 	1997. 	The parties 	had stipulated to putting the
following 	three 	issues 	before 	the 	arbitrator:
Is 	the grievance of 	Elizabeth Kiszely, 	dated
October 8, 	1996, 	arbitrable? 	If so, 	did the
notice 	of 	unprofessional 	conduct 	issued to
Elizabeth Kiszely, 	dated June 27, 	1996,
violate 	the 	Collective 	Bargaining Agreement?
If 	so, 	what 	is the appropriate remedy?
The 	arbitrator 	found 	that 	the 	grievance 	was 	not 	arbitrable 	under
the 	CBA. 	You 	indicated that 	you had received a 	copy of 	the
arbitrator's opinion and award on June 	3, 	1997. 	The
Association's 	conduct 	during 	this 	grievance 	and 	arbitration 	is
the 	subject 	of 	this 	unfair practice 	charge.
On November 12, 	1996, 	you filed unfair practice 	charge LA-CO-714
alleging 	that 	the Association violated Educational 	Employment
Relations Act 	(EERA) 	section 3543.6(b) 	by denying your right 	to
fair representation. 	LA-CO-714 	was 	in abeyance 	from November 	15,
1996, 	until 	the 	filing of an amended charge on December 2, 	1997.
Your allegations 	against 	the Association 	in LA-CO-714 	contained
your complaints 	about 	the Association's 	treatment 	of 	you during
the three grievances; 	in addition, 	you complained in LA-CO-714 of
the Association's 	conduct 	relative 	to 	the 	arbitration proceeding
which 	is 	the 	subject 	of 	this 	charge. 	Pursuant 	to Board agent
warning and dismissal 	letters dated February 18, 	1998, 	and March
13, 	1998, 	respectively, 	your charge in LA-CO-714 against the
Association was 	dismissed. 	The 	Board adopted 	the 	dismissal
without 	leave 	to amend on June 	18, 	1998, 	in United Faculty
Association 	of 	North Orange 	County Community College 	District
(1998) 	PERB Decision No. 	1269.
On July 23, 	1998, 	you 	filed this unfair practice 	charge which
states: United Faculty/CTA 	(union) 	presented on my
behalf 	none 	of 	the multitude 	of 	evidence 	it
had--even when 	the 	arbitrator 	asked 	for 	it.
The union 	informed me 	I 	could not 	speak 	to
the merits 	of 	the 	case because 	the
arbitration was 	"bifurcated" 	to 	determine
only jurisdiction 	for hearing a grievance 	of
a 	statutory notice--and not 	the 	merits 	of 	the

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Warning 	Letter
Page 3
grievance. 	[Much of 	this 	information is 	the
basis 	for UPC 	#LA-CO-714.]
In your unfair practice charge No. 	LA-CO-714 you alleged, 	in
part: United 	Faculty's 	representation 	was
inadequate 	in 	that 	I 	was 	frequently not
informed 	and/or 	misinformed 	of 	information
pertinent 	to 	the 	processing of 	the grievance
and 	arbitration 	and 	to 	protecting 	the
violation of my rights. 	The 	representation
was arbitrary, 	discriminatory, 	and lacking in
good faith. 	Specifically, 	no 	rational basis
was 	provided 	for much of 	the misinformation 	I
received. 	A previous 	incident 	involving 	a
unit 	member and a notice 	of 	unprofessional
conduct 	received 	markedly 	different
treatment. 	The meeting and 	conferring 	that
took place 	in preparation 	for 	and during 	the
grievance 	and arbitration hearings was 	not 	in
good 	faith because 	there 	was 	no 	genuine
possibility 	for 	agreement. 	The 	district's
issuance 	of 	a 	statutory notice 	preempted 	the
grievance 	from being 	heard 	in 	any meaningful
way in the 	forum of 	arbitration. 	A tenured
faculty member's 	right 	to 	seek 	redress 	by
means 	of 	the 	grievance procedure 	was 	rendered
moot. 	A tenured 	faculty member's 	right 	to
participate 	in 	shared governance 	was 	ignored
in the proceedings.
As we 	have discussed, 	the 	above-stated allegations 	do not 	state 	a
prima 	facie violation within 	the 	jurisdiction of 	PERB 	for 	the
reasons 	that 	follow.
PERB 	Jurisdiction
Untimeliness
The 	Board's 	jurisdiction 	is 	limited by a 	six-month 	statute 	of
limitations period. 	EERA section 3541.5(a)(1) 	provides 	the 	Board
shall 	not, 	"[i]ssue 	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.)
On July 23, 	1998, 	you 	filed this unfair practice charge 	(LA-CO-
773) 	calling 	it 	a repugnancy review of 	the 	arbitrator's 	opinion

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Warning 	Letter
Page 	4
and award. 	However, 	there was 	no grievance 	filed against 	the
Association and no arbitrator's 	award against 	it. 	Thus, 	this 	is
an 	alleged violation 	of 	the Association's 	duty of 	fair
representation, 	not 	a 	request 	for repugnancy review of 	an
arbitrator's 	award.
The 	statute 	of 	limitations 	begins 	running on 	the 	day of 	the
alleged unlawful 	conduct; 	in this 	case, 	you are 	complaining about
the 	Association's 	processing 	of 	your 	grievance 	and 	arbitration.
Your grievance process began August 	23, 	1996 	and ended with 	the
receipt 	of 	the 	arbitration decision on June 	3, 	1997. 	This 	charge
was 	filed July 23, 	1998. 	More 	than a year passed between the
complained of 	conduct 	and the 	filing of 	this 	charge. 	Your unfair
practice 	charge 	is 	untimely and 	PERB 	lacks 	jurisdiction 	to 	do
anything other 	than dismiss 	it.
But 	even 	if your request 	had been timely, 	the unfair practice
charge 	should be 	dismissed 	for 	failing to 	state 	a prima 	facie
case.
Duty 	of 	Representation
You 	allege 	that 	the 	exclusive 	representative 	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 	imposed on 	the 	exclusive 	representative 	extends 	to
grievance handling. 	(Fremont 	Teachers Association 	(King) 	(1980)
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, 	Charging Party must 	show that
the Association's 	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.

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Warning 	Letter
Page 	5
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.]
As 	previously stated, 	the 	duty of 	fair representation extends 	to
grievance 	handling. 	A reasonable 	decision not 	to pursue 	a
grievance, 	regardless of the merits of the grievance, 	is not 	a
violation of 	the 	duty of 	fair representation. 	(California 	State
Employees' 	Association 	(Calloway) 	(1985) 	PERB Decision No. 	497-
H.) 	Nor 	are 	case 	handling errors 	and 	simple 	negligence
violations of 	the duty. 	(American Federation of State, 	County
and Municipal Employees, 	Council 	10 	(Olson) 	(1988) 	PERB Decision
No. 	682-H.)
The 	allegation 	regarding 	the 	Association's 	conduct 	in processing
the 	grievance 	similarly 	fails 	to 	demonstrate 	the Association
acted 	in an arbitrary, 	discriminatory or bad 	faith manner. 	The
Association appealed the 	District's 	denial 	of 	this 	grievance 	to
binding arbitration. 	One 	of 	the 	issues 	in this 	grievance was
whether a notice 	of 	unprofessional 	conduct 	issued pursuant 	to 	the
Education Code was 	arbitrable. 	You 	alleged 	the Association's
failure 	to explain to you 	that 	"statutory notices" 	were not
grievable 	is 	tantamount 	to bad faith. 	However, 	it 	appears 	that
whether the Association 	could grieve 	a 	"statutory notice" 	was
then an unsettled 	legal 	question; 	a question which 	the 	arbitrator
answered 	in the negative. 	In California School 	Employees
Association 	(Dyer) 	(1984) 	PERB Decision No. 	342a, 	the Board noted
when 	the 	union 	took 	a 	calculated risk 	concerning 	an 	issue 	where
there was 	emerging precedent, 	it did not 	engage 	in arbitrary,
discriminatory, 	or bad faith conduct. 	Thus, 	the Association's
judgment 	in 	taking 	the 	statutory notice 	to 	arbitration does 	not
establish 	the Association 	acted 	in an arbitrary, 	discriminatory
or bad 	faith manner.
In American 	Federation of 	State, 	County and Municipal 	Employees,
International, 	Council 57 	(Dehler) 	(1996) 	PERB Decision No. 	1152-
H, 	the 	Board 	indicated 	isolated acts 	which did not 	alone
establish a violation of 	the 	duty of 	fair 	representation,
presented 	a 	pattern 	of 	conduct 	which when 	considered 	in 	its
entirety demonstrated a prima 	facie violation. 	There 	the 	Board

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Page 6
noted the union failed to respond to the employer's 	inquiry after
indicating that it would do so, 	failed to schedule a level 2
meeting, 	failed to notify the employee or explain its actions to
her, 	and failed to respond to its specific written inquiries.
You allege the Association engaged in a similar pattern of
conduct.
However, 	your charge is factually distinguishable. 	The
Association's conduct, 	when considered in its entirety, 	does not
demonstrate it acted in an arbitrary, 	discriminatory, 	or bad
faith manner. 	Although it did not answer every question posed to
it involving the arbitration, 	the charge does not demonstrate the
Association's representatives were unresponsive to you. 	The
Association took your grievance through binding arbitration.
Thus, 	under the analysis set forth in Dehler. 	supra, 	the
Association's conduct, 	when considered in its entirety, 	does not
demonstrate a prima facie violation of the EERA.
The above-stated information fails to state a prima facie
violation of the EERA. 	The filing of your charge 	is untimely
therefore the Board lacks jurisdiction to issue a complaint
against the Association on your behalf. 	For these reasons the
charge, 	as presently written, 	does not meet the standards for a
violation of the duty of 	fair representation against 	the
Association.
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 	January 8. 	1999. 	I shall dismiss your charge.
If you have any questions, 	please call me at 	(916) 	322-3198 ext.
322.
Sincerely,
Janice F. Hill
Board Agent CKS