California Teachers Association (Kaiser) (PERB 1498E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DIANE M. KAISER,
Charging Party,
v.
CALIFORNIA TEACHERS ASSOCIATION,
Res ondent.
Case No. SF-CO-607-E
PERB Decision No.
	1498
August 	27,
	2002
Appearances: Diane M. Kaiser, on her own behalf; Priscilla Winslow, Attorney, for California
Teachers Association.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal
by
Diane M. Kaiser (Kaiser)
of
a Board agent's dismissal (attached)
of
her unfair
practice charge. The charge alleged that the California Teachers Association (CTA) violated
the Educational Employment Relations Act (EERA) 1
by breaching its duty
of
fair
representation.
The Board has reviewed the entire record in this case including the original and
amended unfair practice charge, the warning and dismissal letters, Kaiser's appeal and
CTA's
response to the appeal. The Board agent properly dismissed the charge on the basis that CT A
is not the exclusive representative
of
the certificated bargaining unit in which Kaiser is
included. The Board finds the dismissal letter to be free from prejudicial error and adopts it as
the decision
of
the Board itself.
1EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. SF-CO-607-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA r 	( 	" 	GRAY
DA
VIS,
..;....
Governor	~------------.......,,.
	_________	
__
_
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103 l 18th Street
Sacramento,
CA
95814-4174
Telephone: (
9Ib)322-3198
Fax: (916) 327-63 77
May 30, 2002
Diane M. Kaiser
4572 Gertrude Drive
Fremont, CA 94536
Re: 	Diane M. Kaiser
v.
California Teachers Association
Unfair Practice Charge No. SF-CO-607-E
DISMISSAL LETTER
Dear Ms. Kaiser:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 4, 2002. Your charge alleges that the California Teachers
Association violated the Educational Employment Relations Act (EERA) 1 by breaching its
duty
of
fair representation.
I indicated to you in my attached letter dated April 22, 2002, 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 May 6, 2002, the charge would be dismissed.
	OnMay 4, 2002, you filed an amended unfair practice charge.
As amended, your charge makes following factual allegations. 	You are employed as a teacher
by the Fremont Unified School District at Grimmer Elementary School. During the 2000-2001
school year, you were assigned to teach grade 3.
The District's curriculum included the Packard Grant/Open Court Language Arts Program.
Teachers in certain grades were required to utilize this reading program. Maureen Smith, a
teacher, was designated as the "Literacy Coach" for the Open Court reading program at
Grimmer Elementary School. In or about early October 2000, Ms. Smith placed a memo in
each teacher's mailbox requesting information on their progress through the reading program.
When you did not respond to Ms. Smith's second memo, Principal Ed Tucker sent you a memo
directing you to respond by October 6, 2000.
On October 27, 2000, you met with Mr. Tucker to discuss your evaluation goals for the 2000-
2001 school year. During the meeting, Mr. Tucker threatened to assign you to a grade level
which did not utilize the Packard Grant/Open Court Reading Program, if you did not fully
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.

SF-CO-607-E
May 30, 2002
Page 2
implement the reading program. On one occasion, Mr. Tucker observed you utilizing a
publication that was not from Open Court. Mr. Tucker said he would be discussing the
teachers' progress in the program with Ms. Smith.
In October 2000, you requested assistance from the Association. You informed the
Association that Mr. Tucker was making excessive demands
of
you concerning the Open Court
reading program. 	You also asserted that Mr. Tucker was violating the collective bargaining
agreement by asking Ms. Smith to evaluate the performance
of
the teachers she visited in their
classrooms.
The Association requested that the District provide information concerning the duties
of
the
literacy coach and the information sought by the literacy coach.
On November 7, 2000, Bev Chernoff, District Coordinator
of
the Packard Grant/Open Court
Language Arts Program, explained in a letter to Greg Bonaccorsi, President
of
the Fremont
Unified District Teachers Association and Peg Tracey, Executive Director, that the Packard
Foundation required schools to provide certain information to evaluate the Open Court reading
program. 	She stated that the literacy coach was to assist teachers in achieving the goals
of
the
grant program and collect information utilized by the Packard Foundation. The information
collected by the literacy coach was not provided to the site principal, was not utilized for
teacher evaluations and the literacy coach was not an evaluator.
On January 18, 2001, Mr. Tucker "fraudulently authored Teacher Comments on [your] first
evaluation." The charge does not describe Mr. Tucker's comments or explain why they were
fraudulent. 	There is no indication that your evaluation included comments concerning your
progress in the Open Court reading program.
On March 14, 2001, you requested a "Level I Complaint Meeting" with Mr. Tucker. During
the meeting, you raised concerns about Mr. Tucker's interference with your professional
relationships with your students and their parents, your responsibility to evaluate your students,
repeated interruption
of
your classroom lessons, infringing on your preparation periods and his
unprofessional attitude toward you. Mr. Bonaccorsi attended the meeting as your union
representative.
Mr. Tucker agreed to refrain from engaging in the above complaints. However, approximately
two weeks later Mr. Tucker began engaging in the same conduct. You repeatedly notified
Mr. Bonaccorsi
of
Mr. Tucker's conduct. You allege that Mr. Bonaccorsi and Ms. Tracey
failed to correct the violations made by Mr. Tucker.
On March 30, 2001, Mr. Tucker made an impromptu 60 minute formal observation
of your
class. You allege that Mr. Tucker "seriously rnisrepresented the lesson observed in (your]
second evaluation." The charge does not describe any misrepresentation in your evaluation.
On April 2, 2001, Mr. Tucker handed you a memo dated March 30, 2001 which stated that
your grade level assignment for the 2001-2002 school year had been changed from grade 3 to

SF-CO-607-E
May 30, 2002
Page 3
grade 4/5. The memo stated that the change was required because you had not been providing
your students with the skills they needed for reading. 	Your charge alleges that Mr.
Tucker
had
never observed you teaching the Open Court reading program.
You informed both the Association and Mr. Tucker that you did not agree with the assignment
to teach grade 4/5.
You allege that Mr. Tucker sexually harassed you on numerous occasions. You notified the
Association
of
Mr. Tucker's conduct. The District's sexual harassment policy states, in part:
Employees or other individuals who feel aggrieved because
of
conduct they believe constitutes sexual harassment should
directly
or
through a representative inform the person engaging in
such conduct that such conduct is offensive and must stop.
Mr. Bonaccorsi refused your request, as your representative, to inform Mr. Tucker to stop
engaging in offensive conduct. However, Mr. Bonaccorsi told you that he had informed Beth
Robinson, Assistant Superintendent,
of
Mr. Tucker's harassing behavior. Your charge alleges
that you were forced to inform Mr. Tucker yourself to cease his offensive behavior.
	On
April 2, 2001, you requested that Mr. Tucker cease his abusive behavior.
Ms. Tracey informed you that she had referred your sexual harassment complaint to
anattorney. During your first conversation with attorney Margo Feinberg, Ms. Feinberg agreed to
represent you. During a subsequent phone conversation with Ms. Feinberg, she told
you
that
Mr. Bonaccorsi did not want her involved. Ms. Feinberg told you that you would have to
provide your own representation
of
your sexual harassment claims.
On April 23, 2001, the Association fiied a grievance on your behalf challenging your
assignment to teach grade 4/5. You and Mr. Bonaccorsi attended a Level I grievance meeting
with Mr. Tucker on May 18, 2001. At the meeting you provided Mr. Tucker with two
evaluation forms which included your corrections. Mr. Tucker denied your Level I grievance
on May 25, 2001.
You appealed your grievance to Level II before Cheryl Bushmire, Director
of
Certificated
Personnel. Following knee surgery, Mr. Tucker was unavailable to participate in the Level II
grievance meeting throughout the summer.
Article 6
of
the CBA states, in pertinent part:
6.10 In the event a grievance is filed or unresolved on or after
May 1 which,
if
left unresolved until the beginning
of
the
following school year, could result in harm to a party in interest,
the time limits set forth herein shall be reduced so that the
grievance may be exhausted prior to the end of the school term.

SF-CO-607-E
May 30, 2002
Page 4
By mutual agreement, the grievance procedure may be continued
during the summer.
In early August 2001, you asked Mr. Bonaccorsi to schedule the Level II grievance at the end
of
August during the Teacher Work Days. Mr. Bonaccorsi agreed. During the third
week
of
August, you left several telephone messages for Mr. Bonaccorsi concerning the grievance
meeting. 	When Mr. Bonaccorsi failed to respond, on August 28, 2001, two days before
Teacher Work Days were to begin, you sent a letter to Ms. Bushmire which stated in part:
Due to the delay in the Level II Grievance proceedings, as Ed
Tucker, site administrator
of
Grimmer Elementary School, was
unavailable throughout the summer, the difficulty
of
Greg
Bonaccorsi and myself coordinating our communications due to
vacations, meetings, etc., and the pending start
of
the 2001-2002
school year, I am submitting this memo to you.
You requested that Ms. Bushmire maintain your grade 3 teaching assignment until your
grievance was resolved.
You allege that Ms. Bushmire ignored your request and failed to timely schedule a Level II
grievance meeting prior to the start
of
the 2001-2002 school year. You also allege that the
Association breached its duty
of
fair representation by failing to timely schedule the Level II
grievance meeting.
You reported for work at the beginning
of
the 2001-2002 school year. You were absent from
work September 6, 2001 to April
1,
2002, due to illness or injury.
On December 6, 2001, you contacted CT A President Wayne Johnson requesting the
assignment
of
another union representative to assist you. Mr. Johnson responded in a letter
dated December 11, 2001, stating that Beverly Tucker, CTA Chief Legal Counsel, and
Jeannette Logue, CTA Assistant Executive Director, would investigate your concerns.
You sent several letters to CTA before Ms. Logue contacted you in mid-January 2002.
Ms. Logue told you she was too busy to schedule a meeting with you and she spent
approximately
15
minutes on the phone with you discussing your concerns. Ms. Logue said
that she probably would not assign another representative.
On January 25, 2002, you sent a letter to Ms. Logue summarizing your telephone conversation.
On February 20, 2002, Ms. Tucker sent you a letter indicating that CTA had completed its
investigation of your concerns. 	Ms. Tucker stated that CT A concluded that the Association
staff and officers had made every effort to represent you and that you had failed to cooperate
with Ms. Tracey and Mr. Bonaccorsi. Ms. Tucker informed you that CTA would not assign
you another representative.

SF-CO-607-E
May 30, 2002
Page 5
You state that the CBA provides that a unit member has a right to representative
of
his or her
choice. 	You contend that CTA breached this provision when it failed to provide you with a
representative
of
your choice. 	You also assert that CTA owes you a duty
of
fair representation
because the CBA describes the Association, the exclusive representative
of
the certificated
bargaining unit, as FUDTA/CT A/NEA.
As I explained in the attached letter, the Fremont Unified District Teacher's Association is the
exclusive representative
of
the members
of
the certificated bargaining unit. The Association
has a duty to fairly represent all members
of
the bargaining unit. Although not required to, in
many cases local unions choose to affiliate with other organizations such as CTA. However,
since CTA is not the exclusive representative, it does not owe a duty
of
fair representation to
bargaining unit members. (California Teachers Association, CTA/NEA (Torres) (2000) PERB
Decision No. 1386.) Accordingly, your allegation that CTA breached its duty
of
fair
representation when it refused to represent you, fails to state a prima facie case and is hereby
dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 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 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.
(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
FAX: (916) 327-7960
- PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-607-E
May 30, 2002
Page 6
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
General Counsel
By	
/U;Ut
:riobin W. Wesley
Regional Attorney
Attachment
cc: 	Priscilla Winslow

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
',
i	
\~
,	
'"	
•
	'0
,.
Sacramento Regional Office
I 031 I 8th Street
Sacramento, CA 95814-4174
Telephone: (9 I6) 327-8385
Fax: (916) 327-6377
April 22, 2002
Diane M. Kaiser
4572 Gertrude Drive
Fremont, CA 94536
Re: 	Diane M. Kaiser
v.
California Teachers Association
Unfair Practice Charge No. SF-CO-607-E
WARNING LETTER
Dear Ms. Kaiser:
GRAY
DA
VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 4, 2002. Your charge alleges that the California Teachers
Association violated the Educational Employment Relations Act (EERA) 1 by breaching its
duty
of
fair representation.
Your charge states in its entirety:
After the local chapter
of
the teacher's association (Fremont
Unified District Teacher's Association (F.U.D.T.A.)) failed to
correct the violations
of
my contract, I contacted the California
Teacher's Association in Burlingame, CA to appoint a
representative
of
my choice. My request was refused. Article 1
and Article 28 provide a unit member has a right/shall be
afforded an opportunity to select a representative. Attachments:
A, B, C, D, E, F, G, H, I, J.
Attached to the charge are
of
copies
of
letters to CT A requesting representation. Also attached
are copies
of
Articles 1 and 28
of
the collective bargaining agreement between the Fremont
Unified District Teacher's Association and the Fremont Unified School District.
Your charge fails to state a prima facie case.
The Fremont Unified District Teacher's Association was selected by the members
of thecertificated bargaining unit at the Fremont Unified School District to serve as their exclusive
representative to represent the employees in employment matters with the District. As the
exclusive representative, the Association has a duty to fairly represent bargaining unit
members. In providing additional services and resources to its members, the Association may
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.

SF-CO-607-E
April 22, 2002
Page 2
(
affiliate with other organizations such as CTA. However, CTA
is
not the exclusive
representative and it has no obligation to bargain with the District on behalf
of
the employees,
nor does it owe a duty
of
fair representation to bargaining unit members. 	(California Teachers
Association, CTA/NEA (Torres) (2000) PERB Decision No. 1386.)
Since CTA does not owe you a duty
of
fair representation, your charge alleging that CT A
breached its duty
of
fair representation when it refused to represent you 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 that 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 May 6, 2002, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
.if!~Regional Attorney