San Francisco Classroom Teachers Association, CTA/NEA (Bramell) (PERB 0430E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
JAMES C. 	BRAMELL,
Charging 	Party,
v.
SAN FRANCISCO CLASSROOM TEACHERS
ASSOCIATION, CTA/NEA,
Respondent.
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) 	Case 	No. 	SF-CO-190
PERB 	Decision No. 	430
November 	13, 	1984
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Appearances; 	James C. 	Bramell, 	in his own behalf;
Priscilla Winslow, 	Attorney 	for 	San Francisco 	Classroom
Teachers Association, 	CTA/NEA.
Before Tovar, 	Morgenstern and Burt, 	Members.
DECISION
TOVAR, 	Member: 	James C. 	Bramell appeals the dismissal by a
regional 	attorney 	of 	the 	Public 	Employment 	Relations 	Board 	of
his 	charge 	that 	the 	San 	Francisco 	Classroom Teachers
Association, 	CTA/NEA 	(Association), 	breached 	its duty of fair
representation. 	For 	the 	reasons which follow, 	we 	reverse 	the
regional 	attorney's 	determination 	and 	remand 	the 	case 	to 	the
general 	counsel 	for 	further proceedings.
THE 	CHARGE
On April 	13, 	1983, 	Bramell filed an unfair practice charge
against 	the Association 	alleging 	violations 	of 	subsections
3543.6(a) 	and 	(b) 	and 	section 	3544.9 of 	the Educational
______ )

Employment 	Relations 	Act 	(EERA).1 The 	facts 	alleged 	in
support of 	his charge are 	as 	follows.
Bramell 	was 	discharged 	from 	his 	employment 	as 	an 	athletic
coach by 	school principal 	Phillip Lum on January 	4, 	1982. 	He
contacted 	the Association, 	which 	filed 	a grievance 	on 	his
behalf challenging 	the dismissal. 	A 	representative 	of 	the
Association 	accompanied 	Bramell 	at 	the 	first 	step of 	the
grievance procedure, 	which consisted 	of 	a meeting 	between 	the
grievant 	and 	the 	school principal. 	At 	the conclusion of 	this
meeting, 	Bramell 	spoke with the Association 	representative. 	He
expressed 	his 	belief 	that 	Principal 	Lum would 	not 	reverse 	his
decision 	and 	requested 	that, 	upon 	receipt 	of Lum's official
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Section 	3543.6 provides 	in 	relevant part 	as 	follows ..
It 	shall 	be 	unlawful 	for 	an employee
organization to:
(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.
Subsection 	3544.9 provides 	as 	follows:
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.
N
'
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written 	response, 	the Association 	should 	appeal 	to 	the 	second
level 	of 	the grievance procedure.
Upon 	receiving 	his copy of 	Lum's 	official denial 	of 	his
level 	one grievance, 	Bramell contacted 	the Association to
inquire 	into 	the 	status 	of 	its 	efforts 	to 	appeal 	his case 	to
the 	second 	level of 	the grievance procedure. 	He was 	informed
that 	no 	such 	efforts 	had 	been made. 	The Association
representative 	apologized 	for 	his 	failure 	to 	act 	on 	the 	request
Bramell 	had made 	at 	the 	close 	of 	the 	level 	one 	grievance
meeting 	and 	said 	that, 	because 	of 	the 	imminently 	approaching
deadline, 	he would 	request 	an extension of 	time 	from the
District 	in which 	to pursue 	the grievance 	at 	the 	second 	level.
This conversation occurred 	four 	days 	before 	the 	December 	3
deadline 	for 	filing 	as provided 	in 	the grievance procedure.
Despite 	this promise, 	the Association failed 	to 	request or
obtain 	the 	extension. 	Allegedly 	in an effort 	to cover 	up 	its
failure, 	the Association wrote to Bramell on January 	18, 	1983
stating 	that 	the grievance 	would 	not 	be 	pursued 	further 	because
it 	lacked merit.
Upon 	receipt 	of 	the Association's 	letter, 	Bramell contacted
the Association, 	objecting 	strenuously 	to 	its 	failure 	to 	assist
him. 	He 	subsequently met 	with 	three Association
representatives, 	explaining 	the 	basis 	for 	his contention that
the 	District 	had 	violated 	the 	contract 	in 	removing 	him 	from 	his
position.
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On January 	28, 	the Association wrote 	to 	the District
objecting 	to 	the manner 	in which 	the District 	hired 	a
replacement 	coach 	to 	fill 	the position 	from which Bramell 	had
been discharged. 	The 	letter 	stated 	the Association's 	belief
that 	the 	procedure 	used 	by 	the 	District 	violated 	their
collective 	bargaining 	agreement, 	and 	suggested 	that, 	pursuant
to that agreement, 	Bramell should have 	the position. 	The
letter did not, 	however, 	initiate a grievance.
The Association 	contends 	that 	it 	first 	learned 	of 	Bramell's
desire 	to 	have 	his grievance 	taken 	to 	the 	second 	step of 	the
procedure 	four 	days 	before 	the deadline 	for 	that 	action. 	It
maintains 	that 	it 	did 	in 	fact 	seek 	and 	obtain an 	extension 	of
this deadline 	from the District 	to January 	28, 	1983. 	It
asserts 	that 	it 	considered Bramell's grievance 	to 	be 	of
doubtful 	merit 	from 	the 	outset 	and 	that 	Bramell 	failed 	to
disclose 	to 	the Association 	any 	information 	indicating 	that 	his
termination was 	the 	result 	of 	protected 	activity 	or 	was
otherwise discriminatory. 	The Association explains 	that 	it did
not 	file 	a grievance 	in connection with 	the procedure 	used 	by
the 	District 	in 	selecting 	Bramell's 	replacement 	because 	Bramell
never 	requested 	that 	it do 	so 	and 	because 	it 	believed 	that,
even 	if 	the District were 	forced 	to 	reverse 	its 	hiring 	of
Bramell's 	replacement, 	this would 	not 	have 	restored Bramell 	to
the position.
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DISCUSSION
An 	exclusive 	representative 	violates 	its 	duty 	of 	fair
representation when 	its 	conduct 	towards 	a member 	of 	the
bargaining 	unit 	is 	arbitrary, 	discriminatory 	or 	in bad 	faith.
Rocklin Teachers 	Professional Association 	(Romero) 	(3/26/80)
PERB Decision No. 	124, 	citing Vaca v. 	Sipes 	(1967) 	386 U.S. 	171
[64 LRRM 	2369].
In Wright v. 	Interstate 	& Ocean Transportation 	(4th Cir.
1980) 	623 F.2d 	888 	[104 LRRM 2408], 	the court explained the
union's duty 	to 	avoid 	arbitrary 	conduct 	in 	representing
bargaining 	unit members:
To 	sustain 	a member's 	action against 	his
union 	. . . 	it 	is 	not 	necessary 	that 	the
union's 	breach 	be 	intentional. 	A union
representative could 	be 	so 	indifferent 	to
the 	rights 	of members 	or 	so grossly
deficient 	in 	his 	conduct purporting 	to
protect 	the 	rights 	of members 	that 	the
conduct 	could 	be 	equated 	with 	arbitrary
action. 	(Citations 	omitted.)
Significantly, 	the court's conclusion was that, 	while the
distinction 	is 	"in the final analysis, 	a determination of 	law,
underlying 	questions 	usually depend 	on 	jury 	findings 	of
fact 	. 	. 	. 	." 	Thus, 	the court reversed the summary judgment
entered 	below, 	finding 	that 	the 	employee was 	entitled 	to 	a
hearing 	on 	his claim 	that 	the 	union's 	failure 	to prosecute 	his
grievance 	was 	arbitrary.
In Miller v. 	Gateway Transportation 	(CA 7, 	1980) 	616 F.2d
272 	[103 LRRM 2591], 	the court found that an employee had
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stated 	a 	prima 	facie case 	where 	the 	charge 	stated 	that 	the
union 	had 	made 	virtually 	no 	effort 	to prosecute 	a grievance 	on
behalf 	of 	a discharged 	employee 	and 	where 	the 	union offered 	no
explanation.
In Ruzicka v. 	General Motors Corp. 	(CA 6, 	1975), 	523 F.2d
306 	[90 LRRM 2497], 	the court found a breach of the duty of
fair 	representation where, 	just as 	in the 	instant case, 	the
union 	in 	effect 	abandoned 	a grievance 	- 	and 	the grievant 	- 	when
it 	failed 	to 	either 	file 	an appeal 	to 	the 	next grievance 	step
or 	request 	an extension of 	time.
In 	the 	instant case Local 	166 officials
discussed 	Appellant's 	grievance 	among
themselves 	and with GM personnel, 	but
inexplicably 	neglected 	to 	take 	Appellant's
grievance 	to 	the 	third 	step of 	processing 	by
not 	filing 	a 	Statement 	of Unadjusted
Grievance 	with 	the 	appropriate 	GM official.
Having 	sought 	and 	been granted 	two
extensions 	of 	time 	to 	file 	the 	Statement 	and
at 	no 	time 	having 	decided 	that Appellant's
claim was without merit, 	the Local allowed
the 	final deadline 	to pass without 	filing
the 	Statement 	or 	requesting 	a 	further
extension. 	At 	this point 	the Local did 	not
inform either Appellant 	or 	GM that 	it 	had
decided 	either 	to continue 	or 	to 	stop
processing 	Appellant's grievance. 	Such
negligent 	handling 	of 	the grievance,
unrelated as 	it was 	to 	the merits 	of
Appellant's case, 	amounts to unfair
representation. 	It 	is 	a clear example 	of
arbitrary 	and perfunctory 	handling 	of 	a
grievance.
In 	accordance 	with 	the 	guidance provided 	by 	these 	federal
cases, 	this Board 	has described 	the 	elements 	of 	the prima 	facie
case 	necessary 	to 	show that 	an 	exclusive 	representative's
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conduct 	was 	arbitrary 	and 	thus 	in 	violation 	of 	the 	duty 	of 	fair
representation. 	In Reed District 	Teachers Association 	(Reyes)
(8/15/83) 	PERB Decision No. 	332, 	the Board 	stated that:
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 	rational 	basis 	or
devoid 	of 	honest 	judgment. 	[Citing 	Rocklin
Teachers Professional Association, 	supra;
emphasis 	in 	the 	original.]
Here, 	Bramell 	alleges 	that, 	after 	being 	represented 	by the
Association 	through 	the 	first 	step 	of 	the grievance procedure,
he 	told 	the Association 	that 	he desired 	to pursue 	the 	matter 	to
the 	second 	level. 	Although the Association 	took 	no 	action 	in
response 	to 	that 	request, 	no 	breach of 	the duty of 	fair
representation 	is 	described merely 	by 	declining 	to proceed 	or
by 	negligently 	forgetting 	to 	file 	a 	timely 	appeal. 	However,
the 	charge 	further 	alleges 	that 	when Bramell 	contacted 	the
Association 	to 	inquire 	into 	the 	state 	of 	its efforts 	on his
behalf, 	he 	received, 	in addition to an apology for the
Association 	representative's 	failure 	to 	act 	on Bramell's
instructions, 	an assurance 	that 	the Association would 	seek 	an
extension of 	time. 	Without explanation, 	the Association failed
to do this, 	and 	the December 	3 deadline passed. 	Not 	until
January 	18, 	substantially after 	these 	events 	had 	transpired,
did 	the Association 	issue 	a 	letter 	purporting 	to 	inform Bramell
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of 	its opinion 	that 	his grievance 	lacked merit. 	Bramell
alleges 	that 	this 	explanation 	from 	the Association 	was 	offered
pretextually 	in an effort 	to 	hide 	its 	failure 	to 	act 	as
promised, 	and 	the 	lengthy delay 	in 	issuance 	of 	the 	letter 	is 	a
factor 	which 	inferentially 	supports 	Bramell's 	allegation.
Further, 	when 	the Association 	learned 	of 	the 	hiring 	of 	a 	new
employee 	in Bramell's old position, 	it 	apparently 	felt 	that 	the
procedure 	used 	by 	the District 	in 	hiring 	that 	employee was
sufficiently 	improper 	to warrant 	writing 	a 	letter 	of 	protest.
Nevertheless, 	it 	filed no formal grievance asking 	that the
position 	be vacated, 	as Bramell desired. 	The Association
offers 	by 	way 	of 	explanation 	the claim 	that 	it 	didn't 	know
Bramell wanted 	such 	a grievance 	filed and, 	further, 	that 	the
mere 	vacating 	of 	the position would 	not guarantee 	that 	the
District would 	then 	select Bramell as 	the one to 	refill 	it. 	In
light 	of 	the 	repeated 	and 	energetic 	requests 	for 	Association
assistance made by Bramell 	in this, 	a discharge case, 	the
Association's claim 	that 	it 	was 	unaware 	that Bramell 	wanted 	the
position 	vacated 	suffers 	from questionable 	credibility. 	So,
too, 	while 	the 	vacating 	of 	the position would 	apparently not
necessarily 	result 	in the 	return of Bramell to the position, 	we
note 	that 	the 	vacating 	of 	the position was 	certainly one
prerequisite 	for 	that 	result.
The 	regional 	attorney 	examined 	each 	alleged 	act 	of 	the
Association 	in 	isolation. 	He found, 	and we would agree, 	that
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any one of 	these actions, 	by 	itself, 	would not 	breach the
Association's duty. 	The 	regional attorney, 	however, 	failed to
consider 	these 	actions cumulatively. 	We 	find 	that, 	in their
totality, 	the Association's actions present a pattern
demonstrating, 	at a minimum, 	an arbitrary 	failure to fairly
represent Bramell 	in 	his 	employment 	relationship with 	the
District.
The Association, 	we note, 	disputes this version of the
facts, 	maintaining, 	inter alia, 	that 	it did 	in fact seek an
extension 	of 	time 	as promised 	and 	that 	it 	considered 	the
grievance 	to 	lack merit 	from the outset. 	Of course, 	the
resolution 	of 	such 	factual 	disputes 	is precisely 	the 	function
of 	a 	hearing, 	and 	it 	is 	therefore to a hearing we direct 	the
parties.
ORDER
The dismissal 	of 	this charge 	is REVERSED and 	the case
REMANDED 	to 	the 	General 	Counsel 	for 	proceedings 	consistent 	with
this Decision.
Members Morgenstern 	and Burt 	joined 	in 	this 	Decision.
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