San Bernardino Teachers Association. CTA/NEA (Cooksey) (PERB 1387E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DEBORAH NEWTON 	COOKSEY,
Charging 	Party,
v.
SAN 	BERNARDINO 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	LA-CO-808
PERB Decision No. 	1387
May 18, 	2000
Appearance: 	Deborah Newton Cooksey, 	on her own behalf.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the 	Public
Employment 	Relations 	Board 	(Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of Deborah Newton Cooksey's 	(Cooksey) 	unfair
practice 	charge. 	The 	charge alleges 	that 	the 	San Bernardino
Teachers Association, 	CTA/NEA breached 	its 	duty of 	fair
representation in violation of 	sections 	3544.9 	and 3543.6(a) 	of
the 	Educational 	Employment 	Relations Act 	(EERA) 	and discriminated
against her in violation of 	EERA section 3543.6(b).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 	3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
Section 3543.6 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:

The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters 	and Cooksey's 	appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-808 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Baker 	joined 	in 	this 	Decision.
(a) 	Cause or attempt 	to cause a public
school 	employer 	to violate 	Section 3543.5.
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916)327-8386
Fax:(916)327-6377
January 31, 2000
Dr. Deborah N. Cooksey, Ph.D.
Brenda Sutton-Wills, Esquire
California Teachers Association
11745 E. Telegraph road
Santa Fe Springs, California 90670-3676
Re: 	Deborah Newton Cooksey v. San Bernardino Teachers Association
Unfair Practice Charge No. LA-CO-808-E
DISMISSAL LETTER
Dear Dr. Cooksey:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 3, 1999. Your charge alleges that the San Bernardino
Teachers Association (Association) violated the Educational Employment Relations Act
(EERA)1 by improperly representing you..
I indicated to you in my attached letter dated January 13, 2000, 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 January 20, 2000, the charge would be
dismissed. 	You were granted an extension of one week.
I received your amended charge on January 28, 2000. In your amended charge, you contend
that your charge should be reconsidered. You note that in my letter of January 13, 2000, I
stated that a lawsuit for breach of contract by an employer is outside the duty of fair
representation. You also note that California Government Code section 3543.8 gives an
employee organization the right to sue on behalf of one or more of its members. 	However, the
fact that an employee organization has the right to file a lawsuit on behalf of one or more of its
members does not bring such lawsuits into the duty of fair representation. As stated in my
letter to you of January 13, 2000, the duty of fair representation is limited to contractually
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and the
Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-808-E
Dismissal Letter
Page 2
based remedies under the Association's exclusive control. (San Francisco Classroom Teachers
Association (Chestangue) (1985) PERB Decision No. 544.) 	The action which you seek by the
Association, filing a lawsuit over an alleged violation of your settlement agreement with the
District, is not within the duty of fair representation. 	Accordingly, this allegation must be
dismissed.
You also contend in your amended charge that the Association received notification in
February 1999 of an alleged violation of your settlement agreement and was free to grieve the
matter, including taking the matter to arbitration. You attached to your amended charge, a
copy of Article 24 of the grievance procedure. 	I note that the first section in the grievance
procedure defines a grievance which can be filed under the contractual procedure and states the
following:
A grievance is a written allegation by a unit member(s) or
Association that he/she/they has/have been adversely affected by
an alleged violation, misinterpretation, or misapplication of a
provision of this Agreement. 	[Emphasis added.]
Because the grievance procedure is limited to matters arising under the collective bargaining
agreement, it appears not to be an avenue upon which your settlement agreement with the
District may be enforced. Nor does the contract contain any provision which would bring the
settlement agreement under the collective bargaining agreement and the grievance procedure.
Accordingly, any allegation that the Association violated the duty of fair representation by not
filing a grievance based on the February 1999 alleged violation of the settlement agreement
must be dismissed.
For these reasons and the reasons discussed in my letter of January 13, 2000, this charge must
be 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 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-808-E
Dismissal Letter
Page 3
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-808-E
Dismissal Letter
Page 4
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
Bernard McMonigle
Regional Attorney
Attachment
cc: Brenda Sutton-Wills, Esquire
BMCrcke

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Voice: (916)327-8386
Fax: (916)327-6377
January 13, 2000
Dr. Deborah N. Cooksey, Ph.D.
Re: 	Deborah Newton Cooksey v. San Bernardino Teachers Association
Unfair Practice Charge No. LA-CO-808-E
WARNING LETTER
Dear Dr. Cooksey:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 3, 1999. Your charge alleges that the San Bernardino
Teachers Association (Association) violated the Educational Employment Relations Act
(EERA)1 by improperly representing you. We discussed this matter on January 12, 2000, and I
indicated that this letter was forthcoming.
Your charge states the following. In November 1997, you were represented by Association
representative Conrad Ohlson in negotiations over a settlement agreement and general release
between the San Bernardino City Unified School District (District) and yourself. 	According to
your charge, Mr. Ohlson led you to believe that you would be represented by the Association's
in-house attorney, Ron G. Skipper. However, it was Mr. Ohlson that represented you in
negotiations of the settlement. 	Your resignation and the settlement agreement were a result of
the District accusing you of working as a substitute for another school district while on sick
leave. 	However, you were actually on accommodation leave and were permitted by your
doctor to work at the other school district because it was a healthy work environment which
had not been available to you at the District.
At the time you signed the settlement, you believed that you would be "held harmless" and that
you would not be stigmatized for having resigned from the District. 	You state that Mr. Ohlson
had assured you that the record would indicate that you had resigned voluntarily. 	You
believed that the District would not give out negative information that could detrimentally
affect your future employment.
In May 1998, you received a letter from the California Commission on Teacher Credentialing
(Commission). 	The letter indicated that the Commission was in receipt of information that
you had resigned from the District after a statement of charges was issued alleging you had
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and the
Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-808-E
Warning Letter
Page 2
"committed acts which constituted immoral conduct, dishonesty, and evident unfitness for
service." 	The Commission invited you to submit information for its consideration. 	In
September 1998, you received another letter from the Commission which stated that its
committee of credentials had found probable cause to recommend the suspension of your
teaching credential for a minimum period often days. 	The letter presented you with options
which include an administrative hearing.
In your charge, you contend that the Association's "inaction at the critical moment when the
COTC notified me that the District had sent them charges against me, including false charges,
constitutes dereliction of duty to a member." 	When you contacted Mr. Ohlson with regard to
what you considered to be the District's breach of the settlement agreement, he merely stated
"they were not supposed to do that" and failed to take action.
In the spring 1998, you requested that the California Teachers Association (CTA) provide legal
services with respect to the action before the Commission. 	You were informed by CTA chief
counsel, Beverly Tucker, that you were ineligible for these legal services because you were not
a member. In our phone conversation of January 12, 2000, you indicated that CTA has since
provided you with representation before the Commission.
In February 1999, you became aware that the District had informed a vocational consultant that
you had resigned in lieu of termination and that the District would not consider you for a future
rehire. 	Again, you contacted the Association regarding what you considered to be a breach of
the settlement agreement. 	The Association responded to your request by offering to look into
your personnel file for derogatory information and suggesting that you seek legal counsel
regarding the matter.
According to your charge, you believe that the District has been allowed to violate the terms of
your settlement agreement because the Association has not acted expeditiously in your behalf.
You have been forced to use your own resources to pay for legal fees to enforce the settlement
agreement.
Government Code section 3541.5(a)(l) states that PERB 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." 	Your charge was filed on August 3, 1999. 	Any alleged violations
contained in the charge that occurred prior to February 3, 1999, are outside the six month
statutory limitations-period and must be dismissed: Accordingly, to the extent that your charge
alleges that you were not properly represented during the November 1997 negotiations over the
settlement agreement, the charge must be dismissed. Further, the allegations regarding the
Association's inaction upon learning of the action of the Commission on Teacher Credentialing
in the spring of 1998, also appears to be untimely and must be dismissed.

LA-CO-808-E
Warning Letter
Page 3
The duty of fair representation is limited to contractually based remedies under the
Association's exclusive control. 	(San Francisco Classroom Teachers Association (Chestangue)
(1985) PERB Decision No. 544.) Accordingly, an association's duty of fair representation
extends to collective bargaining negotiations and grievance handling. 	(Fremont Teachers
Association (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins)
(1982) PERB Decision No. 258.) The Association has no duty to represent an employee where
it does not have the exclusive right to act. (San Francisco Classroom Teachers Association
(Chestangue). supra. 	Teacher in a dismissal proceeding pursuant to the Education Code.)
It does not appear from the facts provided that the Association possesses exclusive control over
enforcement of the settlement agreement which was negotiated on your behalf in 1997, or of
the current proceedings before the Commission. Because these matters are outside the duty of
fair representation and you may represent yourself or seek private counsel for these
proceedings, the Association has not violated its duty of fair representation. Accordingly, your
charge must be dismissed.
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 January 20, 2000, I shall
dismiss your charge. 	If you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC:cke