Oakland Education Association (Mingo) (PERB 0447E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RONALD T. MINGO,

Charging Party, Case No. SF-C0O-225

Vv. PERB Decision No. 447
OAKLAND EDUCATION ASSOCIATION, CTA/NEA, November 30, 1984

Respondent.

Appearances: Susan Kramer, Attorney for Ronald T. Mingo;
Priscilla Winslow, Attorney for Oakland Education Association,
CTA/NEA.

Before Hesse, Chairperson; Tovar and Burt, Members.

DECISTON AND ORDER

BURT, Member: This case is before the Public Employment
Relations Board (Board) on an appeal by Ronald T. Mingo of the
attached dismissal of his charge by a Board agent. [In that
charge, Mingo alleged that the Oakland Education Association,
CTA/NEA, violated section 3544.9 of the Educational Employment
Relations Act and thereby breached its duty of fair
representation by its failure to process the charging party's
grievance.

We have reviewed the dismissal and, finding it free from
prejudical error, we adopt it as the Decision of the Board
itself. In so doing, we note that the exclusive representative

has an obligation to explain its actions in refusing to process

a grievance and there is some conflict about whether an
adequate explanation was made in this case. 	We need not decide
the sufficiency of the respondent's actions here, nor remand
the case for hearing on that issue, since it is clear that the
charge was untimely.
Chairperson Hesse and Member Tovar joined in this Decision.
2

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
February 29, 1984
Howard Moore, Jr., Esq.
Susan Kramer
445 Bellevue Avenue, Third Floor
Oakland, CA 94610
Priscilla Winslow/Kirsten Zerger
Oakland Education Association/CTA
1705 Murchison Drive
P. O. Box 921
Burlingame, CA 94010
Re: 	REFUSAL TO ISSUE COMPLAINT AND DISMISSAL OF UNFAIR PRACTICE CHARGE
Ronald Mingo v. Oakland Education Association, CTA/NEA
Charge No. SF-CO-225
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) . The reasoning which underlies this decision follows.
On February 6, 1984, the regional attorney wrote to charging party pointing
out the deficiencies of the charge as written and solicited an amendment or
withdrawal by February 16, 1984 (letter attached and incorporated by
reference) . The letter warned that if no such response was received by the
deadline, the allegations would be dismissed and no complaint would issue. 	On
February 16, 1984, charging party's counsel Howard Moore, Jr. telephoned to
obtain an extension of the deadline until February 22, 1984. On February 23,
1984, this office received a letter from attorney Moore indicating that upon
further review he determined that an amendment was unwarranted. Accordingly,
the above-referenced charge is dismissed and no complaint will issue.
References to the EERA are to Government Code sections 3540 et seq.
PERB Regulations are codified at California Administrative Code, Title 8.

Howard Moore Jr./Susan Kramer
Priscilla Winslow/Kirsten Zerger
February 29, 1984
Page 2
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 March 20, 1984, or sent by telegraph or certified
United States mail postmarked not later than March 20, 1984 (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 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
f the appeal (section 32635 (b) ) .	o
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) .

Howard Moore Jr./Susan Kramer
Priscilla Winslow/Kirsten Zerger
February 29, 1984
Page 3
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

STATE OF CALIFORNIA 	GEORGE DEUKMEJAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 94108
(415) 557-1350
February 6, 1984
Howard Moore, Jr.
Susan Kramer
Re: Ronald Mingo v. Oakland Education Association, CIA/NEA
Charge No. SF-CO-225
Dear Mr. Moore:
On January 23, 1984 charging party Ronald Mingo filed an unfair practice
charge against the Oakland Education Association, CTA/NEA (Association)
alleging violation of EERA section 3543.6 (c).1 More specifically, charging
party alleges the following information. In September 1982, upon receiving
his first paycheck for the academic year 1982-83, Mr. Mingo discovered that he
had not been fully compensated for teaching typing classes at a high school
within the Oakland Unified School District. On or about September 30, 1982
Mr. Mingo formally demanded that the Association initiate and pursue a
grievance related to the salary claim on his behalf. On the same date the
Association
arbitrarily, discriminatorily and in bad faith,
without any just or reasonable cause or reason
whatsoever, refused to initiate
the grievance. The Association's justification for not filing the claim was
that it was not "grievable." On July 14, 1983, charging party
again demanded that the OFA initiate and pursue . . .
[his] salary claim pursuant to the grievance
procedure contained in the collective bargaining
agreement between the District and the OFA.
On August 1, 1983 the second request was denied by the Association again on
the ground that it was not "grievable."
1section 3543.6 (c) states that it shall be unlawful for an employee
organization to:
Refuse or fail to meet and negotiate in good faith
with a public school employer of any of the employees
of which it is the exclusive representative.

My investigation of the charge revealed the following. The Association
asserts that the charge must be dismissed for three reasons: (1) Charging
party's allegations are time-barred pursuant to EERA section 3541.5 (a) (1) .2
(2) Charging party's salary claim was not grievable under the contract. He
was paid according to the contract provision which entitles a half-time
employee to one half the salary paid to a full-time employee. Whether an
employee has half-time status is determined by whether or not he works half a
day. Salary is based on the half-time status and not the number of periods
taught. (3) Charging party's allegation that the Association's conduct was
arbitrary, discriminatory and in bad faith is conclusionary and not supported
by any factual allegation in the charge. Thus, it fails to meet the standard
of PERB Rule 32615 (a) (5) which states that an unfair practice charge must
contain,
a clear and concise statement of the facts and
conduct alleged to constitute an unfair practice.
Governing Legal Principles and Application to Allegations of the Charge.
Statute of limitations: To state a prima facie violation, charging party
must allege and ultimately establish that the alleged unfair practice either
occurred or was discovered within the 6-month period immediately preceding the
filing of the charge with PERB. EERA section 3543.5; Danzansky-Goldberg
Memorial Chapels, Inc. (1982) 264 NLRB 112 [112 LRRM 1108] ; American Olean
Tile Co. (1982) 285 NLRB No. 206 [112 LRRM 1080; A.F.C. Industries, Inc.
(Amcar Division) (1978) 234 NLRB 1063 [98 LRRM 1287], enf'd as modified
(8 Cir. 1979) 596 F.2d 1344 [100 LRRM 3074]. The National Labor Relations
Board cases cited here hold that the 6-month period commences on the date the
conduct constituting the unfair practice is discovered. It does not rum from
the discovery of the legal significance of that conduct.
Continuing violation: In some decisions interpreting the National Labor
elations Act, it has been found that a recurrence of unlawful conduct not be
barred on the ground that it concerns conduct which occurred, and was known to
harging party, more than six months prior to being filed as long as the
conduct recurred within the six-month period. In San Diegueto Union High
chool District (2/25/82) PERB Decision No. 194, PERB discussed the federal
cases, adopted the concept of a "continuing violation," but nevertheless
R
c
S
2EERA section 3541.5 (a) (1) states in pertinent part that the board
shall not do either of the following:
(1) issue a complaint in respect of any charge based
upon an alleged unfair practice occurring more than
six months prior to the filing of the charge; . .
2

dismissed the charge on the ground that the six-month limitation period had
been exceeded. In that case, a school district was charged with having
unilaterally changed a prior practice when it enforced on a daily basis a
policy that required teachers to sign-out before leaving campus.
Equitable tolling: PERB, in some instances, has ruled that pursuit by
the charging party of an alternate remedy "equitably tolls" the statute of
limitations. San Diegueto Union High School District, supra; Los Angeles
Unified School District (9/20/82) PERB Decision No. 237; Regents of the
University of California (Berkeley) (9/27/83) PERB Decision No. 353-H.
test is whether charging party has pursued a remedy "reasonably and in good
faith." PERB stated in San Diegueto Union High School District, supra,
The alternate chosen must represent a practical
ffort to resolve [the] dispute expeditiously.
an Diegueto Union High School District, supra.
e
S
Allegation is untimely: The charge does not state a prima facie
violation of FERA section 3543.6 (c) . Charging party alleges that the
Association refused on September 30, 1982 to file a grievance on his behalf.
Charging party filed its unfair practice charge on January 23, 1984. Over six
months had transpired since the occurrence of the conduct. The conduct alleged
in the instant charge is not found to constitute a "continuing violation."
Charging party alleges that on July 14, 1983 he sought a second time to
convince the Association to file a grievance regarding his salary claim and on
August 1, 1983, the Association refused again, offering the same reason.
Factually the charge is not distinguishable from that found
San Diegueto Union High School District, supra. time-barred in
Allegations required to set forth prima facie violation of EERA
section 3543.6 (b) : Charging party has alleged that the Association violated
his section 3544.9 right of fair representation and thereby violated
section 3543.6 (c). The fair representation duty imposed on the exclusive
representative extends to grievance handling (Fremont Teachers Association
(King) (4/21/80) PERB Decision No. 124; United Teachers of Los Angeles
(Collins) (1/17/83) PERB Decision No. 258). However, the exclusive
representative is extended considerable latitude concerning the performance of
its duty. A Union may refuse to handle a grievance in a particular manner for
a "multitude of reasons." (Castro Valley Teachers Association (Mcilwain)
(12/17/80) PERB Decision No. 159). In United Teachers of Los Angeles, supra,
the exclusive representative failed to prosecute properly a grievance of a
3DERA section 3543.6 (b) is the appropriate subdivision to allege when
seeking to remedy violation of rights guaranteed by section 3544.9. Redlands
Teachers Association (Faeth) (9/25/78) PERB Decision No. 72; Romero v. Rocklin
Teachers Professional Association (3/26/80) PERB Decision No. 124.
W

unit member. PERB, adopting the hearing officer's decision, held that no
breach of the duty of fair representation occurred and stated:
Whether a union has met its duty in . . . processing
grievances depends . . . upon the union's conduct in
processing or failing to process the grievance.
Absent bad faith, discrimination, or arbitrary
conduct, mere negligence or poor judgment in handling
a grievance does not constitute a breach of the
union's duty. (Cases cited.)
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. Reed District Teachers
Assn., CIA/NEA (Reyes) (8/15/83) PERB Decision
No. 332, citing Rocklin, supra.
No prima facie case: Charging party has failed to lay a sufficient
factual foundation for its claim that an unfair practice occurred. PERB
Rule 32615 (a) (5) ; Rocklin, supra. Here, charging party has not alleged facts
to support his conclusion that the grievance concerning salary was
meritorious. Nor has charging party provided facts to support his allegations
that the conduct of the Association was arbitrary, discriminatory and/or in
bad faith.
If you feel that there are facts which would correct the deficiencies
explained above, please amend the charge accordingly. 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 be served on the respondent and the original proof of
service must be filed with PERB. If I do not receive an amended charge or
withdrawal from you before February 16, 1984, I shall dismiss your charge. 	If
you have any questions on how to proceed, please call me at (415) 557-1350.
Sincerely yours,
Peter Haberfeld
Regional Attorney