San Francisco Classroom Teachers Association, CTA/NEA (Linn) (PERB 0444E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BEVERLY LINN,
Charging Party, Case No. SF-CO-229
Ve PERB Decision No. 444

SAN FRANCISCO CLASSROOM TEACHERS
ASSOCIATION, CTA/NEA,

November 29, 1984

Respondent.

Appearances: Carroll, Burdick & McDonough by David P. Clisham,
Attorney for Beverly Linn; Kirsten L. Zerger, Attorney for San
Francisco Classroom Teachers Association, CTA/NEA.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.*
DECISION

This case is before the Public Employment Relations Board
on an appeal by Beverly Linn of the Board agent's dismissal,
attached hereto, of her charge alleging that the San Francisco
Classroom Teachers' Association, CTA/NEA, violated sections
3543.6(a), (b), (c) and 3544.9 of the Educational Employment
Relations Act (Government Code section 3540 et seq.).

We have reviewed the dismissal and, finding it free from
prejudicial error, adopt it as the Decision of the Board itself.

ORDER
The unfair practice charge in Case No. SF-CO-229 is

DISMISSED WITHOUT LEAVE TO AMEND.

By the BOARD

*Members Tovar and Burt did not participate in this Decision.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1 359 1, 1984
David P. Clisham
Kirsten Zerger
California Teachers Assn.
1705 Murchison Drive
P. O. Box 921
Bur lingame, CA 94010
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Beverly Linn v. San Francisco Classroom Teachers Association, CTA/NEA
Charge No. SF-CO-229
Dear Parties:
Pursuant to Public Employment Relations Board (PERB) Regulation
section 32620 (5), a complaint will not be issued in the above-referenced case
and the pending charge is hereby dismissed because it fails to allege facts
sufficient to state a prima facie violation of the Educational Employment
Relations Act (EERA) . 1 The reasoning which underlies this decision follows.
On March 29, 1984 Ms. Beverly Linn, charging party, filed an unfair practice
charge against the San Francisco Classroom Teachers Association CTA/NEA
(Association) alleging violation of EERA section 3543.6, subdivisions (a) , (b)
and (c). More specifically, charging party appears to allege that the
Association and the San Francisco Unified School District (District)
negotiated an interpretation of section 13.5.8 of the then-effective
collective bargaining agreement to elevate the interests of a co-worker, and
as a consequence, subjected her to foreseeably adverse consequences. This
assertion is described in more detail as follows. Charging party has slightly
more seniority than Ms. Corvino. As a consequence, it was Ms. Corvino, rather
than charging party, who has been involuntarily transferred on two occasions.
First, at the beginning of the September 1982 school year, MS. Corvino was
transferred from Longfellow Elementary School. Ms. Corvino was subsequently
transferred back on the 9th day of the semester . A subsequent transfer in
September 1983, led Ms. Corvino to file a grievance, contending that this was
the second time within two years that she had been transferred, and that such
conduct on the part of the District was in violation of article 13,
section 13.5.6, which provides:
1
References to the EERA are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 3.

David P. Clisham
Kirsten Zerger
June 1, 1984
Page 2
No employee shall be involuntarily transferred two
(2) years in a row without consent or special
circumstances equivalent to school closure or
elimination of program.
The District and the Association concluded that the contract provision
protected Ms. Corvino against these two transfers, reasoning that being sent
from Longfellow for nine days during 1982 met the definition of "involuntary
transfer" contained in the collective bargaining agreement. Charging party
complains that, as a consequence of the interpretation, she will now be
subjected to involuntary transfer in the subsequent school year.
On May 9, 1984 the regional attorney discussed the charge with charging
party's attorney, Mr. David P. Clisham. Mr. Clisham was invited to either
withdraw or amend the present charge to cure the present deficiencies. The
regional attorney explained that the charge, as presently set forth, fails to
state a prima facie violation of EERA section 3543.6, subdivisions (a) , (b)
and/or (c) . Mr. Clisham stated that, if he was able to find legal authorities
to support his position that, as stated, the charge states a prima facie
violation, he would submit them within one week's time. To date, no
communication has been received from Mr. Clisham subsequent to the telephone
conversation of May 9, 1984.
Charging party has alleged that the Association denied her the right to fair
representation guaranteed by section 3544.9, and thereby violated
sections 3543.6 (a) and (c). The fair representation duty imposed on the
exclusive representative extends to contract negotiations (Redlands Teachers
Association (Faeth) (9/24/78) PERB Decision No. 72; SEIU, Local 99 (Kimmett)
(10/19/79) PERB Decision No. 106; Rocklin Teachers Professional Association
(Romero) (3/26/80) PERB Decision No. 124; El Centro Elementary Teachers
Association (Willis) (8/11/82) PERB Decision No. 232) ; contract administration
(Castro Valley Teachers Association (McElwain) (12/17/80) PERB Decision
No. 149; SEIU Local 99 (Pottorff) (3/30/82) PERB Decision No. 203) and to
grievance handling (Fremont Teachers Association (King) (4/21/80) PERB
Decision No. 125; United Teachers of Los Angeles (Collins) (11/17/83) PERB
Decision No. 258). PERB has ruled that a prima facie statement of such a
violation requires allegations that: (1) the acts complained of were
undertaken by the organization in its capacity as the exclusive representative
of all unit employees; and (2) the representational conduct was arbitrary,
discriminatory, or in bad faith.
Charging party has objected to two aspects of the Association's conduct:
first, that the agreement regarding the definition of "involuntary transfer"
benefited Ms. Corvino at charging party's expense, and second, that charging
party was not properly informed of the agreement and its effects before it was

David P. Clisham
Kirsten Zerger
June 1, 1984
Page 3
reached. PERB has held that a union can settle a grievance based not only on
the remedy provided for the individual grievant but also upon consideration of
its effect on the unit as a whole. See, e.g., Castro Valley Teachers
Association (McElwain), supra (a refusal to take a grievance to arbitration
was not a violation of the duty of fair representation where the union weighed
the benefit to the unit as a whole against the benefit to charging parties) ;
Fremont Teachers Association (King), supra (no breach of the duty of fair
representation by union processing a grievance without permission of the
employee) . The duty of fair representation is met as long as there is some
consideration of the views of various groups of employees and some access is
provided for communication of those views. Kimmett, supra; El Centro, supra;
Waiters Union, Local 181 v. Hotel Assn. (D.C.Cir. 1974) 498 F.2d 998
[86 LRRM 2002].
Charging party has failed to state a prima facie violation of
section 3543.6 (b) . There are no facts alleged to support the claim that the
Association acted in bad faith and/or a discriminatory manner toward charging
party and other members of the unit. The parties' resolution of this
grievance is an appropriate part of the ongoing process of collective
bargaining. The parties' interpretation of the contract provision defining
"involuntary transfer" has narrowed the power of the District and extended the
protection of all unit members. Although charging party is next in line for
an "involuntary transfer," should one be necessary from the District's point
of view, she is eligible for the same benefit obtained by the interpretation
as Ms. Corvino: a short-term transfer will be regarded as one of the two
involuntary transfers which insulate an employee for a contractually-required
period. Additionally, the allegations reveal that charging party had an
opportunity to speak against the Association's interpretation of the contract
language and that the Association ultimately clarified the consequences which
would befall unit members. Accordingly, the allegations are dismissed and no
complaint will issue thereon.
Pursuant to Public Employment Relations Board regulation section 32635
(California Administrative Code, title 8, part III), you may appeal the
refusal to issue a complaint (dismissal.) to the Board itself.
Right to Appeal
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 Notice
(section 32635 (a) ) . To be timely filed, the original and five (5) copies of
such appeal must be actually received by the Board itself before the close of
business (5:00 p.m.) on June 21, 1984, or sent by telegraph or certified
United States mail postmarked not later than June 21, 1984 (section 32135).
The Board's address is:

David P. Clisham
Kirsten Zerger
June 1, 1984
Page 4
Public Employment Relations Board
1031 18th Street
Sacramento, CA 95814
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 (5) copies of a statement
in opposition within twenty (20) calendar days following the date of service
of the appeal (section 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 the
document filed with the Board itself (see section 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.
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 (section 32132) .
Final Date
If no appeal is filed within the specified time limits, the dismissal will
become final when the time limits have expired.
Very truly yours,
DENNIS M. SULLIVAN
General Counsel
By
PETER HABERFELD
Regional Attorney
cc: General Counsel