California School Employees Association, Chapter 296 (Morrison) (PERB 1415E)

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STATE OF CALIFORNIA

DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MICHAEL MORRISON,
Charging Party, Case No. LA-CO-835-E
Vv. PERB Decision No. 1415
CALIFORNIA SCHOOL EMPLOYEES December 7, 2000
ASSOCIATION, CHAPTER 296,
Respondent.

Appearance: Michael P. Calof, Attorney, for Michael Morrison.

Before Dyer, Amador and Baker, Members.

DECISION

BAKER, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Michael Morrison (Morrison) from the Board agent's dismissal (attached)
of his unfair practice charge.

The charge alleged that the California School Employees Association, Chapter 296
breached its duty of fair representation in violation of section 3544.9 of the Educational

Employment Relations Act (EERA)! and thereby violated section 3543.6(b).?

' EERA 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.

° EERA section 3543.6 provides, in relevant part:

The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges and attachments, the warning and dismissal letters and
Morrison'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-835-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Dyer and Amador joined in this Decision.
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.
2

STATE OF
CALIFORNIA	
GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
i
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Sacramento Regional Office
1031
18th Street
Sacramento, CA
95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
July 11, 2000
Michael Morrison
38878 Ocotillo Drive
Palmdale, CA 93551
Michael Calof
5850 Canoga Avenue
Woodland Hills, CA 91367
Madalyn Frazzini
Deputy Chief Counsel
California School Employees Association
P.O. Box 640
San Jose, CA 95106
Re: 	Michael Morrison v. California School Employees Association, Chapter 296
Unfair Practice Charge No. LA-CO-835-E
DISMISSAL LETTER
Dear Parties:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 23, 2000. Mr. Morrison alleges that the California School
Employees Association (CSEA) violated the Educational Employment Relations Act (EERA)1
at section 3544.92 by failing to file a grievance in actions taken against him by the Palmdale
School District (District) on December 13, 1999 and January 7, 2000.
I indicated to Mr. Morrison in my attached letter dated June 23, 2000, that the above-
referenced charge did not state a prima facie case. Mr. Morrison was advised that,
if
there
were any factual inaccuracies or additional facts which would correct the deficiencies
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.
2 EERA section 3544.9 reads:
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.

LA-CO-835-E
July 11, 2000
Page 2
explained in that letter, he should amend the charge. Mr. Morrison was further advised that,
unless he amended the charge to state a prima facie case or withdrew it prior to June 30, 2000,
the charge would be dismissed. Mr. Morrison's representative, Michael Calof, requested and
received an extension
of
time in which
to
file an amended charge until July 10, 2000.
On July 10, 2000, an amended charge was filed. 	Previously undiscovered information
contained in the amended charge alleged that CSEA had treated Mr. Morrison arbitrarily byfailing to investigate the contents
of
the video tape. In order for there to be a breach
of
the
duty
of
fair representation, the union must have acted discriminatorily, arbitrarily, or in bad
faith. 	(Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124)
Mere negligence or poor judgement on the part
of
CSEA in giving Mr. Morrison the advice
to
resign prior to viewing the video tape does not amount to a breach
of
the duty
of
fair
representation. For these reasons, Mr. Morrison's charge will be dismissed.
Right to Appeal
Pursuant to PERB Regulations3, 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. 	(Regulation 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 iast 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.
(Regulations 32135(a) and 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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

LA-CO-835-E
July 11, 2000
Page 3
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. 	(Regulation 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 Regulation 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. (Regulation 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. (Regulation 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
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Andria K. Borba
Board Agent
Attachment
AKB

STATE
OF
CALIFORNIA	
GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
l(
,
'-"0¢~L.qE'{
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r1
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (9 l 6) 327-8384
Fax: (916) 327-6377
June 23, 2000
Mr. Michael Morrison
38878 Ocotillo Drive
Palmdale, CA 93551
Re: 	Michael Morrison
v.
California School Employees Association, Chapter 296
Unfair Practice Charge No. LA-CO-835-E
WARNING LETTER
Dear Mr. Morrison:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 23, 2000. You allege that the California School Employees
Association (CSEA) violated the Educational Employment Relations Act (EERA)1 at section
3544.92 by failing to file a grievance in actions taken against you by the Palmdale School
District (District) on December 13, 1999 and January 7, 2000.
Investigation
of
the above referenced charge disclosed the following information:
You are a janitor for the Palmdale Unified School District. John Martin is the President
of
CSEA, Chapter 296. Jim Braugh is a labor representative from Chapter 296.
In December 1999, you were informed you were being placed on Administrative Leave by the
District because a pornographic video tape had been found in one
of
the classrooms you were
responsible for cleaning. You were told you would be contacted to schedule a later meeting to
investigate the matter.
1 EERA is codified at Government Code section 3540 et seq. The text
of
the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 EERA section 3544.9 reads:
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.

LA-CO-835-E
June 19, 2000
Page 2
On January
7,
2000, you were scheduled
to
appear at an investigatory meeting with the
District. 	When you arrived at the District for the meeting, the receptionist asked you
if
you
wanted your union representative to be present at the meeting. 	You responded that you did not
believe you needed to have a representative present. The receptionist informed you that, in
these types
of
meetings, a union representative is usually present. 	You called your union local
and assessed them
of
the situation. Mr. Martin
of
CSEA was able to be present for the meeting
and the meeting was held with Mr. Martin as your CSEA representative.
At this meeting, the District asked you questions and asserted that they had a witness who had
seen you viewing the tape in the classroom. The District concluded that there would be a
formal investigatory hearing in the future to determine the validity
of
the charges. The
Superintendent
of
Personnel approached you at some point during the meeting and told you
that it would be very difficult for you to explain these charges to future employers.
After the meeting, you asked Mr. Martin for his advice on how to proceed. Initially, Mr.
Martin asked you why you had not attended CSEA membership meetings. You and Mr.
Martin had a short discussion concerning the conflict between your schedule and the scheduled
membership meetings. You then asked
:t-.1r.
Martin
if
you should try to get the police to take
fingerprints
off
the tape to prove that you had not handled the tape. Mr. Martin's response was
to advise you to consider resigning from your position as janitor to avoid further investigation
into the allegations. At some later point, you also had a conversation with Mr. Braugh
of
CSEA who told you that,
if
there was a hearing, it would be public record and you would never
be able to find another job in the District whether you had committed the act or not.
After considering the conversations you had with both District and CSEA representatives on
January 7, 2000, You resigned from your position the following Monday, January 10, 2000.
You allege that the representatives from CSEA did not inform you that the District had not
followed the proper procedures for disciplinary actions as prescribed in Chapter IX, section
l(B)(C)(D) and
(E)3
of
the Collective Bargaining Agreement between the District and CSEA.
3 Chapter IX, section 1
of
the Collective Bargaining Agreement reads:
(B) When a regular employee is to be suspended, demoted, or
dismissed specific written charges shall be prepared by the
administration, and presented for approval or rejection by the
Governing Board. The charges must be such that the employee
will know the complaints, and thereby be able to respond to them.
(C) When the for;mal disciplinary action has been approved by
the Governing Board, the action and the charges shall be reported
to the Personnel Director, who shall immediately notify the
employee and shall report the action to the Commission at its
next regular meeting.

LA-CO-835-E
June 19, 2000
Page 3
You were never informed by CSEA representatives
of
any possibility
of
filing a grievance
concerning the disciplinary action. You allege that, by not informing you
of
the grievance
procedure, the union violated their duty
of
fair representation. 	·
Your charge also states that representatives from CSEA failed to protect your rights as the
exclusive representative in an administrative hearing.
Discussion
You have alleged that the exclusive representative denied you the right to fair representation
guaranteed by EERA section 3544.9. In order to state a prima facie violation
of
this section
of
EERA, you must show that the Respondent'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 .... A union is also not
required to process an employee's grievance
if
the chances for
success are minimal.(citation omitted)
PERB has also held that, 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.]
(D) Notice to the employee shall include a copy
of
the charges
and a statement
of
his right to appeal,
if
any, together with a copy
of
the rules governing appeal and hearing procedures.
(E) Notwithstanding the procedures prescribed above, an
employee may be suspended prior to Board approval at the
discretion of the administration subject to later ratification by the
Board within two weeks. Requirements in regard to charges and
notifications must be met when the Board ratified the
administrative action.

LA-CO-835-E
June 19, 2000
Page 4
In this case, you have not put forth sufficient evidence to support a violation
of
the duty
of
fair
representation against the union because there is no evidence demonstrating the union's
actions were arbitrary, discriminatory or in bad faith. 	Mr. Martin attended the meeting
withyou and gave you his advice. 	The fact that you took action based on Mr. Martin's advice, even
if
the advice was uninformed, is not enough to substantiate a violation
of
the duty
of
fair
representation. There are no facts demonstrating any animus against you by CSEA and
therefore, the prerequisites
of
discrimination or bad faith have not been met.
The union's failure to inform you
of
the grievance process is not enough to substantiate a prima
facie case
of
arbitrary conduct violating the duty
of
fair representation. Based on the facts
presented in this case, it is not clear that the actions taken
by
the District against you were, in
fact, grievable. 	The District had not initiated a formal disciplinary action covered under
Chapter IX, section 1
of
the Collective Bargaining Agreement. 	You were put on paid
Administrative Leave pending further investigation. Had evidence been presented
demonstrating that the District had initiated a suspension, demotion, or dismissal then the
grievance procedure as outlined in the Collective Bargaining Agreement may have been
utilized.
In Bertha M. Chapple v. Teamsters Local 572 PERB concluded that the union's failure to file a
grievance concerning an employee's demotion was not unlawful where there as no contractual
grievance procedure. (Bertha M. Chappel v. Teamsters Local 572, ALJ Decision 1998). There
was no contractual grievance procedure concerning the actions taken by the District and
therefore CSEA did not violate its duty
of
fair representation.
Also, the conversation between you and Mr. Martin concerning your lack
of
participation in
CSEA membership meetings does not prove a prima facie violation
of
the duty
of
fair
representation. To substantiate a violation
of
the duty
of
fair representation, there must be
evidence indicating that your lack
of
participation in CSEA membership meetings resulted in
the union acting arbitrarily, discriminatory, or in bad faith. 	No information has been presented
to prove that the union would have acted differently had you attended CSEA membership
meetings.
Your allegation that CSEA violated their duty
of
fair representation by not representing you in
an administrative hearing is unsuccessful because the January 7, 2000 meeting was not an
administrative hearing.
Conclusion
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 shouldbe
prepared on a standard PERB urifair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
ofperjury by the charging party. 	The amended charge must have the case number writtenon the
top right hand corner of the charge form. 	The amended charge must be served on the

LA-CO-835-E
June 19, 2000
Page 5
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 7 days, I shall dismiss
your
charge.
	If
you have any questions, please call me at the above telephone number.
Sincerely,
Andria K. Borba
Board
Agent
AKB