Reed District Teachers Association (Reyes) (PERB 0332E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CAROL 	FRIDIE 	REYES,
Charging 	Party,
v.
REED 	DISTRICT 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
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Case 	No. 	SF-CO-181
PERB 	Decision 	No. 	332
August 	15, 	1983
Appearances: 	Carol 	Fridie 	Reyes, 	in 	Pro 	Per; 	Kirsten 	L.
Zerger, 	Attorney 	(California 	Teachers 	Association, 	CTA/NEA) 	for
Reed 	District 	Teachers 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Morgenstern, 	Members.
DECISION
GLUCK, 	Chairperson: 	Carol 	Frid-ie 	Reyes 	appeals 	a 	regional
attorney's 	refusal 	to 	issue 	a 	complaint 	and 	his 	dismissal 	of
her 	unfair 	practice 	charges 	against 	the 	Reed 	District 	Teachers
Association, 	CTA/NEA 	(Association 	or 	RDTA).
PROCEDURAL HISTORY
On 	September 	17, 	1982, 	Reyes 	filed 	an 	unfair 	practice
charge 	alleging 	that 	the 	Association 	violated 	section 	3544.9
and 	subsection 	3543.6(b) 	of 	the 	Educational Employment
Relations 	Act 	(EERA)l 	by 	conspiring 	to 	write, 	in 	conjunction
lEERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	noted, 	all 	references 	are 	to 	the
Government 	Code.
Section 	3544.9 	reads:
The 	employee 	organization 	recognized 	or

with 	the 	Reed 	Union Elementary 	School 	District 	(District), 	a
collective 	bargaining 	agreement 	that 	denies 	individual 	teachers
the 	right 	to 	redress 	grievances. 	She 	claimed 	that 	the
Association, 	by 	so 	acting, 	was 	willfully 	negligent 	and 	under
the 	influence 	and 	authority 	of 	the 	District's 	superintendent
and 	that, 	as 	a 	consequence, 	she 	was 	left 	without 	proper
representation.
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the 	appropriate 	unit.
Subsection 	3543.6(b) 	reads:
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.
Attached 	to 	her 	charge 	is 	a 	statement 	dated
September 	10, 	1982, 	chronicling 	instances 	occurring 	between
March 	1980 	and 	September 	10, 	1982, 	in 	which 	the 	District
allegedly 	acted 	improperly 	against 	her 	and 	the 	Association
failed 	to 	provide 	her 	with 	representation. 	Included 	are 	the
following 	allegations:
March 	1980: 	The 	District 	decided 	to 	involuntarily 	transfer
her 	from 	a 	seventh 	grade 	mathematics 	class 	to 	a 	seventh 	and
eighth 	grade 	enrichment 	program 	but 	later 	reconsidered 	its
decision. 	It 	then 	granted 	her 	an 	"Opportunity 	Leave" 	to 	study
2

micro-computers 	pursuant 	to 	which 	she 	subsequently 	invested
approximately 	$10,000 	of 	her 	own 	money 	in 	equipment, 	training,
and 	materials.
September 	1980: 	Because 	the 	District 	did 	not 	purchase
computers, 	she 	was 	assigned 	to 	develop 	a 	mathematics 	laboratory.
March 	5-17, 	1981: 	The 	District 	offered 	her 	a 	year's 	salary
if 	she 	would 	resign 	without 	due 	process. 	She 	refused 	the 	offer
and 	received 	a 	"with 	reservation" 	evaluation. 	She 	informed 	the
Association 	of 	the 	District's 	action.
March-June 	1981: 	She 	pursued 	a 	grievance 	on 	the 	evaluation
through 	the 	second 	level 	without 	success. 	She 	was 	unable 	to
appeal 	to 	the 	third 	level 	because 	of 	illness 	and 	the 	District
refused 	to 	grant 	a 	time 	extension. 	She 	was 	"unable 	to 	counter
this 	decision 	and 	lacked 	RDTA 	representation."
March 	1982: 	She 	received 	an 	unsatisfactory 	performance
evaluation. 	She 	alleges:
The 	Reed 	District 	"illegally 	uses 	••• 	'The
Adversary Evaluation 	Process' 	without 	the
use 	of 	an 	unbiased 	third-party 	'Decision
Maker." 	The 	Reed 	District 	Administration 	at
present 	is 	the 	prosecutor, 	Judge 	and 	Jury
with 	the 	power 	to 	withhold 	the 	Teacher's
yearly 	salary 	increment 	based 	on 	their
subjective 	evaluations. 	In my 	case 	after
attempted 	bribery, 	a 	year's 	salary 	to
resign ••••
May 	28, 	1982: 	District 	informed 	her 	that 	she 	was 	being
reassigned 	to 	a 	substitute 	teaching 	position.
June 	8, 	1982: 	She 	filed 	a 	job-related 	stress 	claim which
the 	District 	denied. 	The 	District 	reversed 	its 	position on
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July 	6, 	after 	she 	retained 	counsel.
July 	16, 	1982: 	The 	District once 	again 	reassigned 	her 	for
the 	coming 	school 	year, 	the 	seventh 	such 	reassignment 	since
March 	1980.
August 	24, 	1982: 	The 	superintendent 	contacted 	her 	to
determine 	whether 	the 	District's 	and 	Reyes' 	attorneys 	could
work 	out 	a 	retraining 	program 	for 	her. 	An 	agreement 	between
the 	attorneys 	could 	not 	be 	reached.
September 	7, 	1982: 	She 	returned 	to 	work 	to 	find 	that 	her
"Fourth 	Amendment 	right 	to 	protection 	of 	property 	had 	been
abridged" 	by 	the 	District's 	opening 	of 	a 	locked 	cabinet 	and
removal 	of 	her 	personal 	property.
September 	10, 	1982: 	The 	Association 	agreed 	to 	take 	her
grievance 	based 	on 	a 	denial 	of 	salary 	and 	step 	increases 	to
arbitration.
On 	October 	11, 	1982, 	Reyes 	filed 	a 	"First 	Amended 	Charge"
alleging 	that 	the 	Association 	had 	violated 	subsection
3543.6(a)2 	as 	well 	as 	the 	previously 	stated 	sections, 	by
failing 	to 	utilize 	a 	grievance 	provision 	in 	the 	negotiated
agreement 	and 	by 	not 	responding 	to 	her 	September 	17, 	1982
written 	request 	for 	representation.
2subsection 	3543.6(a} 	reads:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
(a} 	Cause 	or 	attempt 	to 	cause 	a 	public
school 	employer 	to 	violate 	Section 	3543.5.
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The 	provision 	reads:
The 	Association 	shall 	have 	the 	right 	to 	file
a 	grievance 	for 	rights 	specifically 	granted
to 	it 	under 	the Agreement, 	but 	shall 	not
pursue 	a 	grievance 	on 	behalf 	of 	an
individual 	unless 	at 	the 	written 	request 	of
that 	individual.
The 	September 	17, 	1982 	letter 	reads:
Dear 	Nancy:
RDTA 	Executive 	Board's 	decision 	to 	sustain
Grievance 	in 	reference 	to 	the Grievance
filed 	by 	this 	employee 	was 	right 	and
reasonable. 	Your 	statement 	to 	the 	District
Teachers 	was 	objective. 	I 	appreciate 	your
time 	and 	your 	energy.
If 	only 	this 	action 	did 	address 	the 	Contract
breaches 	that 	are 	on 	going 	it 	would 	be 	fine,
but 	it 	does 	not. 	The 	Administration 	is
determined 	to 	use 	the 	weakness 	of 	the
Contract 	- 	the 	inability 	of 	the 	individual
to 	redress Grievance 	- 	to 	harass 	and 	breach
the 	Contract 	at 	will. 	Implicit 	in 	the
Contract 	of 	the 	District 	is 	the
CONSTITUTIONAL 	Fourth Amendment 	Right 	for
the 	protection 	of 	Personal 	Property ••• !
discussed 	this 	matter 	with 	you 	by 	phone.
Secondly, 	the 	breach 	of 	the 	contract 	clause
for 	Retraining. 	These 	two 	very 	important
issues 	require 	that 	I 	have 	further 	RDTA
representation 	and 	legal 	counsel. 	Please
let me 	know 	what 	help 	can 	be 	expected.
The 	amended 	charge 	includes 	a 	request 	that 	all 	documents
referred 	to 	in 	the 	original 	charge 	be 	attached 	and 	incorporated.
In 	dismissing 	Reyes' 	charges, 	the 	regional 	attorney
considered 	only 	the 	allegation 	that 	the 	Association 	breached
its 	duty of 	fair 	representation 	when 	it 	failed 	to 	respond 	to
her 	September 	17, 	1982 	letter. 	It 	was 	his 	position 	that 	the
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October 	filing 	was 	an 	amended 	charge 	rather 	than 	an 	amendment
to 	the 	original 	charge. 	Relying 	on PERB 	and 	NLRA 	precedent, 	he
found 	that 	the Association's 	refusal 	to 	respond 	to 	Reyes'
September 	17 	request 	was, 	at 	most, 	an 	act 	of 	negligence 	which
is 	an 	insufficient 	basis 	for 	finding 	a 	breach 	of 	the 	duty 	of
fair 	representation.
In 	her 	appeal, 	Reyes 	restates 	much 	of 	the 	original 	and
amended 	charges 	and 	adds 	a 	considerable 	number 	of 	new
allegations.
DISCUSSION
Two 	issues 	are 	presented 	by 	this 	appeal 	from 	the
dismissal: 	(1) 	Did 	the 	amended 	charge 	replace 	the 	original
charge? 	(2) 	Does 	the 	charge 	state 	a 	prima 	facie 	case?
The 	regional 	attorney's 	construction 	of 	the 	pleadings 	was
inappropriate. 	We 	do 	not 	assume 	that 	Reyes, 	who 	apparently 	is
not 	an 	attorney, 	understood 	the 	distinction 	between 	an
11 amendment 	to 	the 	charge II 	and 	an 	II amended 	charge. 11 	PERB' s
rules 	are 	silent 	on 	the 	differences 	and 	there 	is 	nothing 	in 	the
record 	to 	indicate 	that 	Reyes 	was 	informed 	of 	such 	distinctions
by 	the 	investigating 	regional 	attorney. 	Further, 	Reyes' 	amended
charge 	did 	specifically 	refer 	to 	all 	the 	documents 	included 	in
the 	initial 	filing 	and 	included 	the 	request 	that 	they 	be
incorporated. 	Accordingly, 	we 	consider 	the 	two 	pleadings 	as 	a
single 	charge.
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In 	deciding 	whether 	a 	charge 	which 	has 	been 	dismissed
without 	a 	hearing 	states 	a 	prima 	facie 	case, 	we 	deem 	the
essential 	facts 	alleged 	to 	be 	true. 	San Juan 	Unified 	School
District 	(3/10/77) 	EERB 	Decision No. 	12.3 	Reviewing 	the
allegations 	in 	this 	light, 	we 	are 	constrained 	to 	find 	that 	the
charge 	must 	be 	dismissed.
The 	charge 	essentially 	asserts 	two 	alleged 	violations 	of
EERA: 	the 	denial 	of 	Reyes' 	statutory 	right 	to 	be 	represented
in 	negotiations 	resulting 	from 	RDTA's 	alleged 	collusion 	with
the 	District, 	and 	to 	be 	provided 	with 	representation 	in 	certain
individual 	disputes 	with 	her 	employer. 	But, 	EERA 	subsection
3541.S(a) (1) 	prohibits 	the 	Board 	from 	issuing 	a 	complaint 	where
the 	alleged 	violations 	of 	the Act 	occurred 	more 	than 	six months
prior 	to 	the 	filing 	of 	charges. 	For 	this 	reason, 	much 	of 	the
contents 	of 	the 	charge 	cannot 	be 	reached.
The 	1981 	negotiations: 	The 	agreement 	became 	effective 	on
July 	1, 	1981, 	more 	than 	14 months 	prior 	to 	the 	filing 	of 	the
original 	charge. 	Even 	if 	the 	contract 	were 	to 	be 	considered 	as
constituting 	a 	continuing 	violation, 	we 	would 	not 	find 	grounds
for 	issuing 	a 	complaint. 	In Rocklin 	Teachers 	Professional
Association 	(Thomas A. 	Romero) 	(3/26/80) 	PERB 	Decision No. 	124,
the 	Board 	recognizing 	that 	the 	exclusive 	representative, 	when
3prior 	to January 	1, 	1978, 	PERB 	was 	known 	as 	the
Educational Employment 	Relations 	Board.
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faced 	with 	the 	difficult 	task 	of 	negotiating 	and 	pleasing 	all
of 	its 	constituents, 	should 	be 	afforded 	a 	broad 	range 	of
discretion 	and 	latitude, 	said:
The 	exclusive 	representative's 	obligation
during 	the 	collective 	negotiating 	process
necessarily 	involves 	a 	high 	degree 	of 	give
and 	take, 	compromise 	and 	trade 	off 	and,
therefore, 	cannot 	be 	subjected 	to 	a 	standard
more 	rigid 	than 	is 	consonant 	with 	the
realities 	of 	the 	bargaining 	process.
Because 	the 	task 	of 	bargaining 	demands 	a
balancing 	of 	benefits 	against 	burdens, 	a
union 	should 	not 	be 	required 	to 	justify
every 	decision 	it makes 	at 	the 	bargaining
table.
The 	Board 	was 	also 	cognizant 	of 	the 	need 	of 	unit 	members 	to
be 	protected 	from 	the 	arbitrary, 	discrimiatory 	or 	bad 	faith
conduct 	of 	its 	bargaining 	representative. 	It 	indicated 	that 	an
individual 	can 	establish 	a 	prima 	facie 	violation 	if 	he 	can
establish 	that 	the 	"representative's 	conduct 	has 	gone 	beyond
the 	bounds 	of 	reasonable 	latitude." 	Reyes' 	allegation 	is 	no
more 	than 	a 	bald 	assertion 	of 	wrongdoing. 	It 	provides 	no 	facts
which 	indicate 	that 	the 	Association's 	conduct 	exceeded 	those
bounds 	or 	that 	it 	acted 	under 	the 	influence 	of 	District
administration.
Events 	alleged 	in Reyes' 	September 	10, 	1982 	statement:
The 	only 	allegation 	reflecting 	an 	arguable 	breach 	by 	the
Association 	concerns 	her 	grievance 	of 	her 	evaluation 	of 	March
1981. 	She 	states, 	"I 	was 	unable 	to 	counter 	[the District's
grievance] 	decision 	and 	lacked 	ROTA 	representation." 	(Emphasis
added.) 	This 	event 	also 	occurred 	more 	than 	six 	months 	prior 	to
the 	filing 	of 	her 	charge.
8

Failure 	to 	respond 	to 	the 	September 	17, 	1982 	letter:
In 	Rocklin, 	supra, 	the 	Board 	noted:
A prima 	facie 	case 	alleging 	arbitrary
conduct 	violative 	of 	the 	duty 	of 	fair
representation 	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 	rationale 	basis 	or
devoid 	of 	honest 	judgment. 	(Emphasis 	added.)
There 	are 	no 	facts 	presented 	here 	which 	would 	justify a
finding 	that 	the 	Association's 	failure 	to 	respond 	to 	Reyes 	was
either 	without 	rationale 	basis 	or 	devoid 	of 	honest 	judgment.
Reyes 	merely 	asserts 	that 	the 	Association 	has 	not 	responded 	to
her 	request 	for 	representation. 	Yet, 	she 	acknowledged 	that 	the
Association 	was 	submitting 	her 	grievance 	to 	arbitration. 	We
cannot 	find 	in 	RDTA's 	failure 	to 	respond 	to 	her 	letter 	of
September 	17, 	standing 	alone, 	evidence 	of 	arbitrary,
discriminatory, 	or 	bad 	faith 	conduct 	on 	its 	part.
Failure 	to 	utilize 	contract 	grievance 	procedure: 	The
charge 	contains 	the 	bare 	allegation 	that:
RDTA 	has 	practiced 	unfair 	representation 	in
behalf 	of 	this 	employee 	by 	failure 	to
execute 	RDTA's 	negotiated 	contract: 	Section
IV 	[ (E) ] 	• 	• 	• 	•	..
Section 	IV(E) 	of 	the 	agreement 	establishes 	the 	Association's
right 	to 	file 	grievances 	over 	violations 	of 	rights 	granted 	to
it 	and 	proscribes 	its 	pursuit 	of 	grievances 	for 	breaches 	of
individual 	rights 	unless 	the 	individual 	specifically 	requests
such 	representation 	in 	writing. 	The 	provision 	is 	clearly 	a
limitation 	on 	RDTA's 	right 	to 	file 	grievances 	and 	does 	not
9

impose 	on 	it 	an 	absolute 	obligation 	to 	file 	and 	represent 	all
individuals, 	in 	all 	matters, 	whenever 	so 	requested. 	But, 	even
if 	we 	were 	to 	so 	interpret 	the 	provisions, 	the 	charge 	does 	not
detail 	any 	incidents 	occurring 	in 	the 	six 	months 	preceding 	the
filing 	of 	her 	charge 	which 	demonstrate 	that 	the 	Association
breached 	such 	a 	duty.
Allegations 	raised 	for 	the 	first 	time 	on 	appeal:
Certain 	"incidents" 	were 	presented 	for 	the 	first 	time 	in 	Reyes'
appeal 	from 	the 	dismissal 	of 	her 	charge. 	Some 	deal 	with 	events
which 	allegedly 	occurred 	prior 	to 	her 	filings, 	some 	with
incidents 	which 	allegedly 	occurred 	after 	her 	charge 	was
dismissed. 	Since 	we 	limit 	ourselves 	to 	the 	question of 	the
legal 	adequacy 	of 	the 	charge, 	we 	consider 	none 	of 	these
allegations 	here.
In 	summary, 	the 	Board 	finds 	that 	the 	facts 	set 	forth 	in 	the
charge, 	including 	the 	amendment 	thereto, 	fail 	to 	justify 	the
issuance 	of 	a 	complaint 	based 	on 	allegations 	that 	the
Association 	violated 	rights 	granted 	to 	the 	charging 	party 	by
the 	Educational Employment 	Relations 	Act.
The 	Board 	therefore 	ORDERS 	that 	the 	charge 	be 	dismissed 	and
no 	complaint 	shall 	be 	issued 	thereon.
Members 	Jaeger 	and 	Morgenstern 	joined 	in 	this 	Decision.
10

FUBUC cMPl0'/1\i::NT R;:':tATlONS 30ARD
San Francisco l\e~;ionol Office
177 Pc,st Street, 9th fk"lor
:ran Fr ;:i:1cisco, California 	94108
(~15) 557-1350
December 16, 1982
(ATTACHED 	FOR 	INFORMATION ONLY)
Carol Fridie Reyes
114 Jordan Avenue
Sa.ii Anselrr'.o, CA 94960
Kirsten Zerger
California Teachers Assn. CTA/NEA
1705 Murc..riison Drive
Burlinga'l!e, CA 94010
Na..,C"y Ccok, President
Reed District Teachers Association
c/o Reed Uni0i"1 Sch:::ol District
Karen Way
T::.buron, CA 949 20
Re: 	REFUSAL 'IO ISSUE ca-JPI.AINT P..ND DIS.MISSAL OF UNFAIR PPP.CTICZ Ct!A,..q'GE
Carol E'ridie Reves v. Reed District Teachers P...sscciation
Charge No. SF--<::0-181
D-=2:r Parties:
P·.Jrsuant to PLblic EmploYwent Relations Board 	(PZRB) 	Regulation s2etion 32730"
a oc:r.plaint will not be issued in the above-ref erencE-Cl case and the per:dbg
charge is hereb'f dismissed becauSe it fails 	to alle1
9e facts sufficient to sta-t.e
a pr:L--na facie vaiolation of the Educational Em~:>loym,~nt Relations Act 	(EE.:'A) .1
'I'he reasoning vmich under lies th is decision follows.
O;i Sept:e.'T'ber 17, 1982, r,!s. Carol Fridie Reyes, on behalf of r;,"'rself, 	fil.(":<."1 an
unEair practi~ ch3rge a.gainst the Reed District Te2chers Ass:::,:::ia~ion, CT'\/NEA
(A.ssociatlon) 	allegir.,:1 violations of EER.2\ sections 3544.9 an::1 3543.6 ('.J) • 	On
Cctober. 13, 1932: 	211 am"?!nc'.ed charge was filed whici.1 a11e•~ed, as w?.1_1, 	a
violation of EEr<A section 3543.6, subdivision 	(a}. 	Hor-e S?:Cifica.lly, c~Jc•.cgin~
party allE:ge:d that tin Association breached the duty of fair r.2presentatic:1.
a.-ied to he~ when it 	failed 	to reafDnd to her letter, dated Se;;:,tew.l:~r 17, 1952,
requestJ.ns "ft:rther PDTA representation and legal a:x::.1sel" cor:c:erninJ t•1;
iss:.Es: 	th2 P.~d U:.:i.icn Sch00l District's 	(District) 	failure to accc.:-J Lee
rct;.:-aining un-.:l2r Ac'.:icle X of th1= cnllective bargai:!'.ling agcce::sen:, and U:2
District's violaticn of what she regards as 2 contra:::tually-h:;lie-..: I:'o~trtL
F~n?-mn2nr: cighl:: 	to be frr~• of tmlc:w£ul scarch::,s ar:d ~2izur0s.
lR':'.fc~E: -,-.::2::; ;:8 the :::ER.I\ are to Go~12rcrn2nt C.:x12 Sic:Cr_i.o:s 351\t.i ct s•~,1-
mr:~ RP.~11..:l.:1t5_r;;,:c; a::-(; co:';ifi_c'<.1 at Cal_ifoni~ kin.i.nist-r2t.iv(~ (\.:::2, TL~],2 ,:; .

Carol Fridie Reyes
Nancy Cook
Decernber 16, 1982
Page 2
My investigation of t..,e charge revealed the folla,,;ing. 	Ms. Reyes is a member
of a collective bargaining unit represented by the Asscciation. 	She asserts
that she was involuntarily transferred to her present :position as fifth grade
teacher, 	that she has not taught at that or any other regular single grade
level during the previous five years, and that therefore she is eligible
for 	retraining under Article X of the collective bargaining agreement. 	On
September 17, 1982, Ms. Reyes wrote a letter 	{attached hereto) 	to Nancy CCOk,
President of the Asso::iation. 	She a:::mplained of ongoing contract breaches
which included, 	in her view, violations of her Fourth Amendment dghts,2
which she deems to be protections implied in the contract, as well as
Article X (Retraining).
The Association president, Ms. Nancy Ccok, acknowledges t..11at she received rut
failed 	to respono to charging party's letter of September 17, 1982. 	Ms. Ccok
explains that: 	(1) 	the Association had on September 15, 1982 voted to pursue
Ms. Reyes' 	grievance to advisory arbitration;3 	(2} 	concerns expressed by
charging party in her letter of September.17, 1982 appeared to be incorporated
in that matter; 	(3} charging party had engaged the services of a private
attorn....oy in her effort to arrive at san9 mutual agreement with the
superintendent's office concerning retraining; 	{4} 	charging party's letter
did not appear to request the filing of a new grievance; 	and 	(5) 	despite
subsequent contact with Ms. Reyes, no further 	request or 	inquiry was rr.ade
concerning the retraining or invasi_on of Fourth A-nendment rights •. 	Ms •.Cook
concluded therefore that charging party's letter did not request
representation in aa:iition to that already being provided in related matters.
Charging party concedes that she did not state or explain her request to the
Asscciatian oo any subsequent occasion and that she did not want a further
grievance to be filed on her behalf. 	Her notion, 	at the time, was that the
Asscciation's attorneys should pursue a civil suit a.~ her behalf~
4•Is. Reyes mntends that she returned to her. emplo-Jir.Emt on SeptelT'ber 7,
1982 am found her cxxnbination-locked cabinet opened and all the materials
missing.
3charging party believes that the District's conduct toward her, ·which
allegedly included in 110luntary tr.:msfers, failure. to reimburse her for
approximately $10,000 worth of retraining expenses she personally absorbe<l,
arrl negative evaluations, 	is motiv3t£d by a cesire to force her out of
eit1ployrrp....nt. 	Charging p::irty challer:ged that o::mduct at various st3ge;; of 	tl1e
parties' grievance procedure. 	On S<2pte.:-:lb2r 15, 1982, 	the Association's l::x.J.-:ird
voted to take her grie,,ance to advisory arbitratio:1.

Carol Fridie Reyes
Nancy Cook
Dece.ml::er 16, 1982
Page 3
In Castro Valley Unified School District 	(12/17/80) 	PERB Decision No. 	149,
PERB considered a charge that the exclusive representative of a particular
unit member violated its duty of fair 	representation. 	It referred to its
decision in Rccklin Schcol District 	(3/26/80} 	PERB Decision No. 124, wherein
it was held that, 	· 	·
A breach of the duty of fair representation occurs
when a union's conduct toward a rr.e.TTI.ber of the
bargaining unit is arbitrary, discriminatory, or 	in
bad fait.."L-i.
In the castro Valley case, 	the PERB held that,
[A]n employee does not have an absolute right to have
a grievance taken to arbitration regardless of the
provisions of the applicable collective negotiations
agreement •••• 	An exclusive representative's
reasonable refusal to proceed wit.½ arbitration is
essential to the operation of a grievance and
arbitration systei~. 	(Ernphasis added.)
The Board explained its reasonableness stanaard as follows:
• 	• 	• 	[t] he complete satisfaction of all woo are.
represented 	[is not o:>ntemplated]. 	A wide range of
reasonableness must be allowed to a 	statutory
bargaining representative 	in serving· the unit 	it
represents subject al·ways to cxmplete gocrl faith and
honesty of pJrp:ise in the exercise of its discretion.
Ford Motor Co. 	v. Huffman 	(1953) 	345 U .s. 	330
[ 31 LR.qt'1 2548, 	2551) •
The duty of fair" 	representation, codified in E:ERA section 3544.9, has a
parallel under the National Labor Relations Act 	(NLR..~) 	(29 u.s.c. section3 151
et seq.) 	(See Steele v. Louisville & Nash,,Ule R.R.Co. 	(1944) 	323 U.S. 	192
[15. LRR!.'1 708]; Humphrey v. M(>?_!'.'e 	(1964) 375 U.S. 	335 [55 LRRY! 2031.]; 	and ::{aca
v. Sipes 	(1967) 	386 U.S. 	171 	[64 LR.RM 2369J.) 	PERB has adopted this line of
cases. 	Kimnett v. Service Employees International Union, Local 99 	(10/19/79)
PERB Decision No. 	106. 	Negligence has been rejected as a basis for 	findin] a
breaei.11 of the duty of fair 	representation. 	In Cce v. Rubc2r Work2rs 	(CA 5,
1978) 	571 F .2d 1349 	[98 IJIB1•1 2304, 	2305), 	the rourt cited a distinctj_on m2de
by the U.S. SLipreme Court in Motorcoach Ernoloyees v. Lockridge 	(1971}
403 U.S. 	274 	[77 L.tt.~.M 2501], 	between "honest, mistak01 conduct'' and
"deliberate arii severely hostile and irrational 	treatrr.ent." 	In PDbes_'.:(,y v.
Quantas Empire Airways 	(CA 9 1973) 	573 F .2d 1082 	[93 LRR': 11 2090] 	it held 	th::it

unintentional cxmduct will breach the duty only if it 	is so egregioosr so far
short of minimum standards of fairness 	to the ernployee, and so unrelated 	to
union interest as to be arbitrary or arrount to "reckless disregard for 	t:he
rights of the irrlividual employee." 	In Florey v. Airline Pilots Association
(CA 8, 1978} 	575 F.2d 673 	[98 LR.-qr.,t 2543, 	25451, 	the oourt made clear that,
C3.rol Fridie Reyes
Nancy Ccok
D2cern....h.er 16, 1982
Page 4
improper union motivation 	is the very crux of the
fair 	representation doctrine and is an essential
element in all fair representation cases.
The facts 	involved in this case co not establish a prima facie violation of
PERB's reasonableness standard. 	Neither the facts alleged or my investigation
reveal that the Association's. failure to respond to charging party's letter
was more than an honest mistake, or that it consisted of "deliberate and
severely hostile ai-id irrational treatment" 	~.otorcoach Emplo~s, sUPra). 	The
facts alleged accordingly do not establish that the Asso.::iation breached the
duty of fair representation a11ed to Ms. Reyes. 	No a::mplaint will be issued
and the charge is dismissed.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, 	title 8 1 	part III}, you may appeal the
refusal to issue a complaint 	(dismissal) 	to the Board itself.
Right to Ap:ie2.l
You may obtain a reviE.w of this dismissal of the charge by filing an appeal to
the Board itself within twenty 	(20) 	calendar days after service of this Notice
(scetion 32635 (a)). 	To be timely filed, 	the odginaJ a,a five 	(5} copies of
sudl appeal must be actually rec-eived by the Board itself before the close of
rosiness 	(5:00 p.m.} 	on January 5, 1983 or sent by telegraph or certified
United States mail postmarked not later than January 5, 1983 · (section 32135).
The Board's address is.:
Public Employment Relations Board
1031 18th Street
Sacramento, CA 	95814
If you file a 	timely appeal of the refusal to issue a. ccmplaint, any other
party may file with the Board an original an:i five 	(5} 	copies of a statement
in or;;pcsition within twenty 	(20) 	calendar days follcwing 	the date of service
of the aweal 	(section 32635(b)).
Service
All documents authorized 	to be filed herein must also t2 "serv2d" u:-von all

parties to the proceeding, and a 	"proof of service" must accompany the
document filed with the Board itself 	(see section 32140 for 	the required
o::mtents and a sample form) • 	The ·document will be considered properly
"served" when personally delivered or deposited in the first-class mail.
postage paid and prop&ly addressed.
Carol Fr idie Reyes
Nancy cco:,
Deceml:er 16, 1982
Page 5
Extension of Time
A request for 	an extension of time in which to file a clocurr.ent 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 gcxx.l causa for and, 	if krown, 	the position of each other
party regarding the extension, and shall be acccznpanied by proof of service of
the request upon each party 	(section 32132}.
Final Date
If no appeal is filed within the sp:!Cified time limits, 	the dismissal will
beccme final when the time limits have expired.
Very truly yours,
DENNIS M. SULLI\72\N
General Counsel
/'/	/ 	.. ~
//fl~ ;t· / /. r... ...:trl,r 	u{ /~JJ\
By Fh'1't:f{ F..1\.BERF'f:i ,n
Regional Attorney
____ _;_,----:....----
cc: 	General Cotmsel

114 Jor, __ 1. AYenue
San anselmo, CA 94960
September 17,1982
NANCY COOK, PRESIDENT RDTA
REZD SCHOOL
1199 TIBURON:BLVD.
TIBURON, CA 94920
Dear Naney..:
ATTACHMENT- 	-
RDTA Executive Board's decision to sustain Grieunce in ~e!erence
to the Grie~ance tiled by this employee was riKht and reasonable.
li'Our statement to the District Teachers was ob;j_ee;tive. 	I 	appreciate
your time and your energy.-
If only this ac.tion did address the Contrac.t breaches 	that are
on going it would be fine, but it does not. 	,The Administration.1,p
·determined to use the weakness or the Contrac.t - 	the inability or
the individual to redress Grievance- to harass and breach the Cont~act.
at will. Implicit in' the"Con.trac.t or the District. is the CONSTITUTIOifAL
Fourth 4mendm.ent Right !or the protection or Personal Property •••
I discussed this matter w1 th you by phone. 	Sec.ondly, the breach of ths
contrac~_clause tor Retraining. 	These :tu two v.e~y important issues
require that I have · r_urther RDTA. represen.tation, and leg_al counsel.
Please let me know what help can. be expec.ted.
0