American Federation of Teachers, et al. (Kok) (PERB 1352E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PHILIP A. KOK, )

Charging Party, +) Case No. LA-CO-798
)
Vv. ) PERB Decision No. 1352
AMERICAN FEDERATION OF TEACHERS, ) September 29, 1999

COACHELLA VALLEY FEDERATION OF
TEACHERS AND CALIFORNIA TEACHERS
ASSOCIATION, COACHELLA VALLEY
TEACHERS ASSOCIATION,

Respondents. —

Appearances: Philip A. Kok, on his own behalf; California
Teachers Association by Robert E. Lindquist for Coachella Valley
Teachers Association.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

AMADOR, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Philip A. Kok (Kok) toa
Board agent's dismissal (attached) of his unfair practice charge.
Kok filed an unfair practice charge alleging that the American
Federation of Teachers, Coachella Valley Federation of Teachers
and the California Teachers Association, Coachella Valley
Teachers Association (CTA/CVTA) breached the duty of fair

representation in violation of section 3544.9 of the Educational

Employment Relations Act (EERA)* and/or interfered with his

“EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3544.9 provides:

The employee organization recognized or
certified as the exclusive representative for

exercise 	of 	rights under EERA section 3543, 	thus violating EERA
section 3543.6 (b),2 when they 	failed 	to assist him and 	inform him
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
2EERA section 	3543 	states:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose 	of
representation on all matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall 	also have 	the 	right 	to 	refuse 	to join
or participate 	in 	the 	activities 	of 	employee
organizations 	and 	shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the public 	school
employer, 	except 	that once the employees 	in
an appropriate 	unit 	have 	selected an
exclusive 	representative 	and 	it 	has been
recognized pursuant 	to 	Section 3544.1 	or
certified pursuant 	to Section 3544.7, 	no
employee 	in 	that 	unit may meet 	and negotiate
with 	the public 	school 	employer.
Any 	employee may at 	any 	time present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the 	intervention
of 	the exclusive representative, 	as long as
the 	adjustment 	is 	reached prior 	to
arbitration pursuant 	to Sections 	3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is not 	inconsistent with the 	terms 	of a
written agreement 	then in effect; 	provided
that 	the public 	school 	employer shall 	not
agree 	to a 	resolution of 	the grievance until
the 	exclusive 	representative has 	received a
copy 	of 	the 	grievance 	and the proposed
resolution 	and has 	been 	given 	the 	opportunity
to file a 	response.
EERA section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization 	to:
(b) 	Impose or threaten to 	impose 	reprisals
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of his 	legal 	rights.
After 	investigation, 	the Board agent 	dismissed the 	charge
for untimeliness 	and 	for 	failure 	to 	establish a prima 	facie 	case.
The Board has 	reviewed the entire 	record in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
Board agent's warning and dismissal 	letters, 	Kok's 	appeal 	and
CTA/CVTA'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-798 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
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 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LIFORNIA
OF THE
RELATIONS BOAR
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916)322-3198
LIFORNIA
OF THE
RELATIONS BOAR
July 13, 	1999
Philip A. 	Kok
Re: 	Philip A. 	Kok v. 	American Federation of Teachers, 	California
Teachers Association, 	Coachella Valley Federation of
Teachers, 	and the 	Coachella Valley Teachers Association
Unfair Practice Charge No. 	LA-CO-798
DISMISSAL 	LETTER
Dear Mr. 	Kok:
In this 	charge originally filed May 10, 	1999 by Philip A. 	Kok
(Kok), 	previously a 	teacher at 	Coachella Valley Unified School
District 	(District), 	it 	is 	alleged that 	the American Federation
of 	Teachers 	(AFT) 	and the California Teachers Association 	(CTA)
failed 	to 	assist 	you 	and 	inform you of 	your 	legal 	rights
including the 	right 	to file a writ 	of mandamus, 	in violation of
Government 	Code 	section 	3543.6 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 	21, 	1999,
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 July
8, 	1999,1 the 	charge would be dismissed.
I 	received 	a 	first 	amended 	charge 	and additional 	material 	on July
8 	and 12, 	1999, 	respectively. 	The 	first amended charge adds the
Coachella Valley Federation of 	Teachers 	(CVFT) 	and the 	Coachella
Valley Teachers Association 	(CVTA) 	as 	Respondents 	and makes
several 	arguments which I 	summarize here. 	First, 	the amended
charge 	argues 	that 	despite 	the 	lack of 	a written agreement
between the District 	and the 	CVFT, 	there was 	an oral 	agreement
extending 	the 	contract 	which 	should be given effect. 	Second,
Charging 	Party 	asserts 	that 	the 	CTA and AFT 	should 	have 	been
aware 	that 	Mr. 	Kok was 	seeking 	assistance 	in pursuit 	of his
grievance 	and arbitration. 	Third, 	although a grievance wasn't
1The 	Warning 	Letter mistakenly 	stated 	that 	the 	due 	date 	was
August 	4, 	1998. 	However, 	this error was 	corrected in a telephone
conversation and 	letter on July 1, 	1999.

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filed against 	the 	employee 	organizations, 	it 	should be 	implied
that 	the 	grievances 	against 	the 	employer 	included 	the 	employee
organizations. 	Fourth, 	"[i]t 	is 	contended that 	the employee
organizations 	animus 	towards 	employee 	[Charging 	Party] 	stemmed
from their perception of 	him as 	a 	'religious 	teacher." 	Fifth,
the present 	charge 	is 	timely because 	"[e]ver 	since 	the 	original
complaint 	was 	filed with 	the 	Public 	Employment 	Relations 	Board,
the matter has 	been 	in agency or 	judicial 	hands, 	which means 	the
time is tolled. "
Based on the 	facts 	and argument 	described above, 	the 	first
amended charge, does not 	cure 	the 	deficiencies 	described in the
Warning Letter 	and 	the 	charge 	is 	dismissed 	for 	the 	reasons
contained 	in 	the 	Warning 	Letter 	and 	below.
The 	lack of 	a 	written agreement 	between 	the 	District 	and 	the 	CVFT
is not 	crucial 	to 	this 	case. 	The 	central 	reason that 	this 	case
must be dismissed 	is 	untimeliness. 	The 	only Respondent 	that 	owed
a duty of 	fair 	representation 	to 	the 	Charging 	Party was 	CVFT. 	It
was 	clear 	in October 	1997 	that 	CVFT was 	not 	going 	to 	assist 	the
Charging 	Party 	in pursuit 	of 	his 	grievance 	or request 	for
arbitration. 	This 	charge was 	filed on May 10, 	1999, 	more 	than 18
months 	later.
Charging 	Party 	argues 	that 	the 	grievance 	filed 	against 	the
District 	should 	toll 	the 	statute 	with 	regard 	to his 	claim against
CVFT. 	There 	is 	no 	legal 	authority supporting such a 	finding. 	In
addition, the. filing of the grievance 	against 	the District 	did
not 	put 	the 	CVFT 	on notice 	that 	Charging 	Party was 	displeased
with its performance on his behalf. 	Thus, 	this argument 	is
without merit.
Charging 	Party also 	argues 	that 	the 	filing 	of previous 	charges
and claims 	with 	PERB 	and 	the 	courts 	should 	toll 	the 	statute.
However, 	the 	Public 	Employment 	Relations 	Board has 	found that 	the
Educational 	Employment 	Relations Act 	only permits 	tolling 	by 	the
filing of 	a grievance under a 	contract procedure 	that 	ends 	in
binding arbitration. 	(San Dieguito Union High School 	District
(1982) 	PERB Decision No. 	194. 	The 	type of 	equitable 	tolling that
Charging 	Party 	seeks 	was 	found by the 	Board to be 	inapplicable 	to
PERB proceedings 	in San Diego Unified School 	District 	(1992) 	PERB
Decision 885. 	Therefore, 	tolling is not 	appropriate under the
circumstances 	of 	this 	case.
Finally, 	Charging 	Party argues 	that 	the 	employee 	organization's
animus 	toward him was 	generated by his 	status 	as 	a 	religious
teacher. 	However, 	there are no 	facts which support 	this
conclusion. 	Charging 	Party must 	provide 	facts 	demonstrating 	a
prima 	facie violation, 	mere 	legal 	conclusions are 	insufficient.
State of 	California, 	Department 	of 	Food and Agriculture 	(1994)
PERB Decision No. 	1071-S. 	Thus, 	even if the charge was timely
filed, 	the 	charge 	fails 	to 	state 	facts 	which would demonstrate 	a
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violation by the 	Respondents. 	Therefore, 	I 	am dismissing the
charge based on 	the 	facts 	and 	reasons 	contained 	in 	this 	and my
June 21, 	1999 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 	(2 0) 	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.)
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,
w

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.)
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
Attachment
cc: 	Larry Rosenzweig
Robert 	Lindquist

I
STATE OF CALIFORNIA 	( 	( 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERD
LIFORNIA
OF THE
RELATIONS BOAR
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
LIFORNIA
OF THE
RELATIONS BOAR
June 21, 	1999
Philip A. 	Kok 	. 	•
Re: 	Philip A. 	Kok v. 	American Federation of 	Teachers
and 	California 	Teachers 	Association
Unfair Practice 	Charge No. 	LA-CO-798
WARNING 	LETTER
Dear Mr. 	Kok:
In this charge 	filed May 10, 	1999 by Philip A. 	Kok 	(Kok),
previously 	a 	teacher 	at 	Coachella Valley Unified 	School 	District
(District), 	it 	is alleged that 	the American Federation of
Teachers 	(Federation or AFT) 	and 	the 	California 	Teachers
Association 	(Association or 	CTA) 	failed to 	assist 	you 	and 	inform
you of your 	legal 	rights 	including the 	right 	to 	file 	a writ 	of
mandamus, 	in violation of Government 	Code 	section 3543.6 	of 	the
Educational 	Employment Relations Act 	(EERA).
My 	investigation has 	revealed the 	following 	information. 	On July
21, 	1997 you filed a unfair practice charge 	(LA-CE-3822) 	against
the District 	and an unfair practice 	charge 	(LA-CO-746) 	against
the Coachella Valley Federation of Teachers, 	CFT/AFT 	(CVFT). 	The
charge 	against 	the District 	was 	dismissed on August 	20, 	1998 	and
the charge against 	the CVFT was dismissed on August 	27, 	1998.
Both 	dismissals 	were 	appealed 	to 	the 	Public 	Employment 	Relations
Board 	itself. 	The 	Board upheld both dismissals 	on December 	11,
1998 	in PERB Decisions 	1303 	and 	1302 	respectively.
Although the 	facts 	of 	those 	cases 	were 	extensively described
therein, 	for convenience, 	I will 	summarize 	them here because they
relate 	to 	the present 	unfair practice 	charge. 	You were hired as
a probationary 	teacher by the 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. 	Your 	exclusive 	representative 	at 	that 	time was 	the
CVFT. 	On May 29, 	1996, 	you moved the grievance to Level 	II, 	and
it was denied on June 5, 	1996.

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2
The District 	and CVFT agreement, 	which had expired 	in 	1995,1
provided for arbitration at Level 	III. 	Your Level 	III grievance,
with a request 	for arbitration, 	was 	signed and filed on June 12,
1996. 	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."2 Thereafter, 	not hearing back from the
CVFT, 	the District assumed the CVFT did not wish to take the
grievance to arbitration.
On June 28, 	1996, 	the Coachella Valley Teachers Association
(CVTA) 	became the new exclusive representative for the unit,3
and you continued to contact 	the District 	regarding the
processing of your grievance. 	The District advised the CVTA 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 the CVFT, 	the CVTA,
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,
In regards to the status of your Level 	III
grievance, 	this information was submitted to
1You dispute 	that 	the agreement 	had expired and assert 	that
the 	contract had been orally extended at 	the bargaining table.
If 	the contract was expired the District would not be required to
take the grievance to arbitration. 	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 	involved 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.
2The expired agreement permitted an individual 	employee 	to
elevate the grievance to arbitration 	(Article 24, 	section 24.4)
3On November 12, 	1996, 	the Coachella Valley Teachers
Association and the District 	agreed to a new contract 	effective
July 1, 	1996 through June 30, 	1999.
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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.'4
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.
By letter to 	Sylvia Gullingsrud of 	CTA dated June 	3, 	1997, 	your
brother, 	Andrew J. Kok, 	Esq. 	pointed out 	that you had not
4You 	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

f 	(
4
• 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. 	CTA indicated that binding arbitration was not 	available,
because when you filed your grievance, 	the AFT contract had
already expired. 	CVTA bargained a new contract, 	making changes
in the evaluation and grievance articles. 	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 CVTA 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.5 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....
5You 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'."

(
5
Braithwaite 	also 	suggested you 	communicate 	in 	the 	future 	with
DeLaCruz.6
Based on the 	above 	information, 	the 	charge 	fails 	to 	state 	a prima
facie violation 	of 	the EERA for the 	reasons 	which 	follow.
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 	the 	employee. 	Neither
the 	CTA or the AFT, 	which are both statewide organizations, 	were
the exclusive 	representative at 	the District. 	As 	such, 	neither
can be 	charged with 	a 	violation of 	the 	duty of fair
representation.
While you were 	employed at 	the District, 	the 	Coachella Valley
Federation of Teachers 	(CVFT), 	an affiliate of AFT, 	was the
exclusive 	representative. 	As 	the 	exclusive 	representative 	it
owed all 	members 	of 	the bargaining unit 	a duty of 	fair
representation. 	The 	case 	against 	CVFT was 	already litigated 	in
your earlier unfair practice 	charge 	against 	them, 	LA-CO-756.
That 	case was 	dismissed and the 	dismissal 	was upheld by the 	Board
itself in PERB Decision No. 	1302.
Because 	the 	CVTA became 	the 	exclusive 	representative 	only 	after
you had ceased being 	employed by the District, 	it 	does 	not 	owe
you 	a duty of 	fair representation.
Even assuming AFT owed you a duty of 	fair representation, 	you
have 	failed to 	file 	the 	charge within 	the 	statute 	of 	limitations
period. 	Section 3541.5(a)(1) 	of 	the EERA prohibits 	the Board
from 	issuing 	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." 	The 	failure 	of 	the AFT to provide
legal 	advice 	including 	information 	regarding your right 	to 	file 	a
writ 	of 	mandate 	appears 	to have 	occurred 	shortly after your 	last
correspondence 	with AFT 	representative 	Kent 	Braithwaite 	in
October 1997. 	The present 	charge was 	filed on May 10, 	1999,
approximately a year 	and a half 	later.
In our discussion of 	June 	8, 	1999, 	you indicated that 	there was
case 	law 	indicating 	that 	the 	statute 	of 	limitations 	should be
tolled. 	However, 	my research determined that 	the 	statute 	and
case 	law provides 	for 	tolling only when 	a grievance 	raising 	the
issues 	of 	the 	unfair practice has been pursued. 	There 	is 	no
information 	indicating 	that 	any grievance 	was 	filed 	against 	AFT.
6Your July 22, 	1998 telefax also indicates, 	"I had been and
continue 	attempting 	to 	communicate 	with 	all 	relevant 	parties,
including DeLaCruz."
5

I
6
Finally 	tolling 	is 	limited 	to 	a grievance 	raising 	the 	issues 	in
the 	unfair practice 	charge 	which 	is 	filed under 	a 	procedure 	that
ends 	in 	binding 	arbitration.(North 	Orange 	County 	Community
College District 	(1998) 	PERB Decision No. 	1268 	(to toll 	the
statute 	the 	grievance 	must 	raise 	the 	issue 	contained 	in 	the
unfair practice charge), 	San Diego Unified,School 	District 	(1991)
PERB Decision No. 	885 	(equitable 	tolling 	inapplicable 	to 	PERB
proceedings.)) 	The 	facts 	of 	this 	case 	do not meet 	these
requirements.
Finally, 	even 	if 	the procedural 	impediments 	to 	this 	charge 	can be
overcome, 	the 	charge 	does 	not 	describe 	a prima 	facie violation of
the 	duty of 	fair 	representation. 	The 	duty of 	fair 	representation
imposed on 	the 	exclusive 	representatives 	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, 	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 	your 	own 	grievance 	and nothing 	indicates 	that 	you
requested AFT 	to 	represent you. 	In addition, 	the AFT contract
permits 	an 	individual 	grievant 	to go 	to 	arbitration without 	the
AFT. 	You requested to go to arbitration on your own. 	On May 22,
1997, 	the 	District 	advised you 	that 	neither union was 	interested
in being 	involved. 	Based on the above, 	it 	does not 	appear that
the AFT was 	obligated 	to process 	this 	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' 	representatives7 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.
Sincerely,
Robert 	Thompson
Deputy General 	Counsel
7The 	CFT/AFT representative 	is Lawrence Rosenzweig, 	Esq.
2450 Broadway, 	#550, 	Santa Monica, 	CA 90404 	and CTA is
represented by Robert E. 	Lindquist, 	Staff Counsel, 	P.O. 	Box 2153,
Santa Fe Springs, 	CA 90670.