Redlands Teachers Association (Faeth and McCarty) (PERB 0072E)

)
______________ )
STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANDRA 	FAETH AND JUDY MCCARTY,
Charging 	Parties,
v.
REDLANDS 	TEACHERS 	ASSOCIATION,
Respondent.
)
)
) 	Case No. 	LA-CO-41
PERB 	Decision No. 72
September 	25, 	1978
)
)
)
)
)
)
Appearances: 	Thomas C. 	Agin, 	Director 	of California Pupil
Services 	Labor 	Relations 	for 	Sandra Faeth 	and 	Judy McCarty;
Edward B. 	Hogenson, 	Executive Director 	for Redlands Teachers
Association.
Before Gluck, 	Chairperson; 	Gonzales 	and Cossack Twohey, Members,
DECISION
This 	case 	is 	before 	the 	Public Employment 	Relations 	Board
(hereafter Board) 	on 	an appeal 	by the 	charging parties 	to the
attached 	hearing 	officer's 	dismissal 	of 	their 	unfair 	practice
charge. 	The 	charging 	parties 	alleged 	that 	the Redlands
Teachers 	Association 	(hereafter 	Association) 	failed 	to
represent 	them 	fairly, 	thereby violating 	sections 	3544.9 	and
3543.6(b) 	of 	the 	Educational Employment Relations Act.1 The
1/The Educational Employment Relations Act is codified at
Government Code 	section 	3540 	et 	seq.
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.

• 	• 	• 	• 	• 	• 	• 	• 	•
2
hearing 	officer 	found 	that 	the 	facts 	alleged 	by 	the 	charging
parties 	did 	not 	show a 	prima 	facie 	violation 	of 	the
Association's 	duty of 	fair 	representation. 	He 	dismissed 	the
charge, 	offering 	the 	parties 	the opportunity 	to 	amend 	the
charge 	or 	to 	appeal 	the 	dismissal 	to 	the 	Board 	itself. 	The
parties 	chose 	to file 	this 	appeal.
The 	Board 	has 	considered 	the 	charge 	and 	the 	dismissal 	in
light 	of 	the 	arguments 	on 	appeal. 	For 	the 	purpose of
considering 	the 	appeal 	of 	a dismissal 	for 	the 	failure 	to 	allege
a 	violation of 	the 	EERA, 	the Board 	assumes 	that 	the 	facts
alleged 	in 	the 	charge 	are 	true.2/ 	It 	affirms 	the 	hearing
officer's discussion3/ and 	conclusion 	that 	the 	unfair 	practice
charge 	should 	be 	dismissed.
Section 3543.6 (b) 	provides:
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.
2san 	Juan Unified 	School 	District 	(3/10/77) 	EERB 	Decision
No. 12.
3/Member Gonzales wishes to note that Ford Motor Co. v.
Huffman 	(1953) 	345 U.S. 	330 	[31 LRRM 2548], 	quoted by the
hearing 	officer 	in 	his 	proposed 	decision, 	involved 	only 	the
duty 	of 	employee 	organization 	negotiators 	to 	their 	unit 	and 	in
his 	opinion 	is 	not 	necessarily applicable 	to 	the
responsibilities 	of 	district 	negotiators.

ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by 	Sandra 	Faeth 	and
Judy McCarty 	against 	Redlands 	Teachers 	Association 	is 	dismissed
without 	leave 	to 	amend.
By 	Raymond 	J. 	Gonzales, 	Member-
, 	/
V
' 	I
3
Jerilou Cossack 	Twohey, 	Member

I
)
____________)
PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
FAETH AND MC CARTY,
Charging Party,
v.
REDLANDS TEACHERS ASSOCIATION,
Respondent.
)
)
)
Case No. LA-CO-41
)
)
) DISMISSAL WITH LEAVE
TO AMEND
Notice is hereby given that the above-captioned unfair practice charge
is dismissed with leave to amend. 	Any amendment shall be filed within twenty
(20) calendar days after service of this Notice, 	The dismissal is based on the
following grounds:
Charging parties, Sandra Faeth and Judy McCarty, have alleged that
respondent, Redlands Teachers Association (Association), has violated
Government Code section 3543.6(b) 1
1/ by breaching its duty of fair representation in
its handling of negotiations with the Redlands Unified School District.
As outlined in the charge, the facts in this matter are as follows:
In February 1977 the two charging parties approached
both the District and the RTA concerning a discrepancy
in the psychologist salary schedule which caused the
two charging parties to be paid at a rate significantly
less 	(based on relative experience) than the other
psychologists employed by the school system. 	The
District referred the charging parties to the RTA and
stated that any change would have to be made through
future negotiations between the RTA (the exclusive
representative) and the District.
1Gov. Code. sec. 3543.6(b) provides:
It shall be unlawful for an employee organization to:
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.

In April and May of 1977 the two charging parties
submitted a negotiations proposal to the RTA. This proposal would place all psycholo
salary scale by moving the charging parties to the
same experience compensation formula as the other
psychologists.
The proposal was accepted by unanimous vote of the
RTA Representative Council.
During the sunnier of 1977 the charging parties
approached RTA to permit them or a mutually agreeable
pupil personnel services employee to monitor the
negotiating process. 	The efforts met with no success.
In October 1977 the charging parties were told that no
information would be given until all negotiations were
completed.
In October of 1977 the negotiation process was apparently
completed and a meeting of RTA was held to ratify the,
contract. 	The contract included an agreement which would
rectify the discrepancy in the psychologists salary scale
to a small degree but would still leave the pay of the two
charging parties significantly behind the others.
At the ratification meeting Mike Karpman, a representative
of the psychologists, expressed the dissatisfaction of
the psychologists, especially the two charging parties,
with both the process and outcome of these negotiations.
The contract was ratified over these objections.
RTA did not invoke the impasse and factfinding provisions
of the Educational Employment Relations Act during the
negotiations leading to this contract.
Subsequent to the signing of the contract the charging
parties approached the RTA on several occasions 	(both
directly and through Mike Karpman) to discuss their
concern with the outcome of negotiations and to attempt
to find a remedy either present or future for the
continuing discrimination in salary. 	The general
response from RTA has been that the interests of these
two individuals had been more than adequately represented
and that no further action was warranted.
Although the National Labor Relations Act (NLRA)2 does not explicitly declare
the existence of a duty of fair representation, it has long been recognized that
2 29 U.S.C, sec. 151 et seq.
-2-

the NLRA imposes upon enployee organizations a duty to act fairly toward the
employees whom they represent. 	In Steele v. Louisville & N.R.R. 	(1944) 323 U.S. 192
[15 LRRM 708], the U.S. Supreme Court stated that the union's duty is to "exercise
fairly the power conferred, upon it in behalf of all those for whom it acts,
without hostile discrimination against them." 	In Miranda Fuel Co., Inc. 	(1962)
140 NLRB 181 [51 LRRM1584], the National Labor Relations Board (NLRB) adopted the
same standard that had been established judicially in Steele stating that:
J
Section 7 thus gives employees the right to be free
from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting
their 	employment.4
Similar language is found in Vaca v. Sipes (1967) 386 U.S. 171 [64 LRRM 2369],
where the Supreme Court noted that a "breach of the statutory duty of fair
representation occurs only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith. 5
" 	[Emphasis added.]
At the same time, the duty imposed by the courts and the NLRB leaves a
significant area of discretion to be exercised by the employee organization. 	In
the Steele case, the Court recognized that the duty of fair representation "does
not mean that the statutory representative of a craft is barred from making contracts
which may have been unfavorable effects as some of the members of the craft
6represented."
3 15 LRRM at 712. 	Accord, Wallace Corp. v. NLRB (1944) 323 U.S. 248 [15 LRRM
697, 701].
4140 NLRB at 185.
5 6 4 LRRM at 2376.
6 15 LRRM at 712.
-3-

Section 3544.9 of the Educational Employment Relations Act (EERA) provides
that an exclusive representative "shall fairly represent each and every enployee
in the appropriate unit."
The Public Employment Relations Board (PERB) had not yet interpreted this
section. 	Even though there is no parallel language in the NLRA creating a duty of
fair representation, federal precedent under the National Labor Relations Act
(NLRA) offers significant guidance. 	The California Supreme Court in Fire Fighters
Union v. City of Vallejo (1974) 12 Cal.3d 608, stated that where the NLRA does not
contain specific wording comparable to the state act, if the rationale that
generated the language "lies imbedded in the federal precedents under the NLRA"
and "the federal decisions effectively reflect the same interests as those that
prompted the inclusion of the [language in the EERA], 	[then] federal precedents
7
provide reliable if analogous authority on the issue."
The close similarity between section 3544.9 and the NLRB created duty of
fair representation is no coincidence—it is readily apparent that the rationale
that generated the EERA's duty of fair representation provision "lies imbedded
in the federal precedents under the NLRA." 	Therefore, it is appropriate to
consider federal precedent in determining whether charging parties have shown a
prima facie violation of the duty of fair representation.
The specific allegations to be inferred from the charge are that the
Association violated its duty to represent charging parties in good faith by:
(1) refusing to allow a pupil personnel services employee to monitor negotiations;
and (2) failing to achieve the specific benefits at the negotiating table that
were proposed by the psychologists. 	Charging parties have indicated in their
7 12 Cal.3d at 616, 617. 	Cf., Lerma v. D'Arrigo Bros 	Co. of Cal. (1978) 78
Cal.App. 3d 836 (Ct. of Appeal ruling that federal precedent [duty of fair
representation] is applicable to the Agricultural Labor Relations Act).
The PERB has on many occasions taken cognizance of federal precedent in inter-
preting various provisions of the EERA where the provisions are similar to the
language in the NLRA (e.g., Sweetwater Union High School (1976) EERB Decision No. 4 ) ,
-4-

unfair practice charge that their negotiations proposal was accepted by the
Association; that the Association negotiated with the District over that
proposal; and that the Association's efforts were at least partially successful.
Nowhere in the charge is there an allegation (expressed or implied) that the
Association discriminated against the charging parties or that the Association
acted arbitrarily or in bad faith.
In the absence of specific allegations of arbitrary, discriminatory, or bad
faith conduct, the Association's behavior, including its refusal to go to impasse
over the psychologist pay proposal appears to be well within the discretion accorded
the exclusive representative in negotiating a contract. 	As the Supreme Court noted
in Ford Motor Co. v. Huffman (1953) 345 U.S. 330 [31 LRRM 2548]:
Any authority to negotiate derives its principal
strength from a delegation to the negotiators of
a discretion to make such concessions and accept
such advantages as, in the light of all relevant
considerations, they believe will best serve the
interests of the parties represented. 	A major
responsibility of negotiators is to weigh the
relative advantages and disadvantages of differing
proposals 	.... 	Inevitably differences arise in
the manner and degree to which the terms of any
negotiated agreement affect individual employees
and classes of employees. 	The mere existence of
such differences does not make them invalid. 	The
complete satisfaction of all who are represented
is hardly to be expected. 	A wide range of reason-
ableness must be allowed a statutory bargaining
representative in serving the unit it represents,
subject always to complete good faith and honesty
of purpose in the exercise of its discretion.8
For the above reasons, the unfair practice charge filed by Sandra Faeth and
Judy McCarty does not state a prima facie violation of the duty of fair
representation. 	Consequently, the charge is dismissed with leave to amend within
8 31 LRRM at 2551.
-5-

twenty 	(20 ) 	calendar days. 	Any amendment must designate the specific section and
subsection of the EERA which are alleged to have been violated .
If the charging parties choose not to amend the charge, 	they may obtain
review of the dismissal by filing an appeal to the Board itself within twenty
(20) 	calendar days; after service of this Notice . 	Such appeal must be in writing,
must be signed by tie charging parties, 	and must contain the facts 	and arguments
upon which the appeal is based. 	Cal. Admin. 	Code tit. 	8, 	section 35007 (b) .
A copy of any appeal 	filed with the Board itself must concurrently be served
by the charging parties on the respondent, 	and the appeal filed with the Board must
include a statement that service upon the respondent has been accomplished. 	Cal .
Admin. 	Code 	tit. 	8, 	section 35007 (b) and 	(c ) .
Dated : 	May 24, 	1978 	WILLIAM P . 	SMITH
GENERAL COUNSEL
By -~-----~..=.;;;;..;;;......;;;;;;:;,,..__ _
Bruce Barsook
Hearing Officer
-6-

PROOF OF SERVICE BY MAIL - C.C.P . 	1013a
I declare that I am employed in the County of Sacramento, 	California. 	I am over the
age of 18 years and not a party to the within entitled cause; 	my business address 	is
923 - 12th Street, 	Suite 201, 	Sacramento, 	CA 95814. 	On May 24, 	1978 ______ _
NOTICE OF CANCELLATION OF HEARING AND
I 	served the 	NOTICE OF DISMISSAL WITH LEAVE TO 	AMEND) 	on 	the
b_e_l_ow	__l_i_s_t _ed_.p_a_r_t1_·e_s_______________by placing a true copy thereof
enclosed in a sealed envelope with postage thereon fully prepaid, 	in the U. S. Mail
at 	Sacramento, 	California 	addressed as 	follows:
----
_
--------------------------
Dr. Thomas c. Agin, 	Director
California Pupil Services Labor Relations
652 East ComnonwealthAve .
Fullerton, 	Ca . 92631
Sandra Faeth & Judy McCarty
c/o Redlands Unified School District
P . o. Box1008
Redlands, 	Ca. 	92373
Mr . Doug Wells, 	President
Redlands Teachers Association
336 Brookside Ave.
Redlands, 	Ca. 	92373
Mr. 	Edward B. 	Hogenson
649 East Foothill
Rialto, 	Ca. 	92376
I declare under penalty of perjury that the foregoing is true and correct, 	and that
this declaration was executed on May 24 , 	1978 	at Sacramento
-----
, California .
-------------
Mari e S. Macaulay
(Type or print name) 	(Signature)
CIH 1/78