California School Employees Association (Mrvichin) (PERB 0660E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE V. MRVICHIN,
Charging Party,
v .
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Respondent.
Case No. LA-CO-413
PERB Decision No. 660
April 1, 1988
Appearances: George V. Mrvichin, on his own behalf; Marci B.
Seville, Attorney, for California School Employees Association.
Before Hesse, Chairperson; Porter, Craib and Shank, Members.
DECISION AND ORDER
This case is before the Public Employment Relations Board
(Board ) on appeal by Charging Party of the Board agent's
dismissal, attached hereto, of his charge that the California
School Employees Association violated sections 3543.6 and
3544.9 of the Educational Employment Relations Act. We have
reviewed the dismissal and, finding it to be free of
prejudicial error, adopt it as the Decision of the Board itself.
The unfair practice charge in Case No. LA-CO-413 is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD
STA.TE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GEORGE 	V. 	MRVICHIN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
)
)
)
}
)
)
)
)
)
)
___________________ )
Case 	No. 	LA-C0-413
PERB 	Decision 	No. 	660
April 	1, 	1988
George 	V. 	Mrvichin, 	on 	his 	own behalf; 	Marci 	B.
Seville, 	Attorney, 	for 	California 	School 	Employees 	Association.
Before 	Hesse, 	Chairperson; 	Porter, 	Craib 	and 	Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on 	appeal 	by 	Charging 	Party 	of 	the 	Board 	agent's
dismissal, 	attached 	hereto, 	of 	his 	charge 	that 	the 	California
School 	Employees 	Association 	violated 	sections 	3543.6 	and
3544.9 	of 	the 	Educational 	Employment 	Relations 	Act. 	We 	have
reviewed 	the 	dismissal 	and, 	finding 	it 	to 	be 	free 	of
prejudicial 	error, 	adopt 	it 	as 	the 	Decision 	of 	the 	Board 	itself.
The 	unfair 	practice 	charge 	in 	Case 	No. 	LA-C0-413 	is 	hereby
DISMISSED 	WITHOUT 	LEAVE 	TO 	AMEND.
By 	the 	BOARD

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 95814
(916) 322-3198
November 19, 1987
Mr. George Mrvichin
RE : 	Mrvichin v. California School Employees Association,
Unfair Practice Charge No. LA-CO-413, First Amended Charge
Dear Mr. Mrvichin:
You have filed a charge against the California School Employees
Association (CSEA) alleging that it violated the Educational
Employment Relations Act (EERA) by failing to properly
represent you in regard to grievances and unfair practice
charges. Specifically, you allege that CSEA: (1) failed to
represent you in a disciplinary meeting on December 11, 1986;
(2) rejected on January 13, 1987 as invalid, grievances you
filed against CSEA itself under the collective bargaining
agreement between CSEA and your employer; (3) failed to
represent you in some 50 grievances you have filed against the
employer between September, 1986 and June, 1987; (4) refused to
provide "satisfactory" representation in March, 1987; and
(5) failed to provide representation regarding an unfair
practice charge in August, 1983.
You were informed by the attached letter dated October 6, 1987,
from staff attorney Jorge A. Leon that your charge as
originally written did not state a prima facie case and that
unless you withdrew or amended the charge prior to
October 15, 1987 it would be dismissed. This deadline was
subsequently extended to October 22, 1987. On October 21, 1987
a first amended charge was filed. On October 22, 1987, this
case was transferred to the undersigned. The first amended
charge added the following information to each allegation.
1 . 	Failure to represent you in a disciplinary meeting on
December 11, 1986.
You assert in the first amended charge that CSEA
representatives attended the December 11, 1986 hearing and:
(1) dismissed your witnesses; (2) did not approach the case
with an open mind in an honest effort to achieve a fair result;

Mr. George Mrvichin
November 19, 1987
Page 2
(3) did not investigate the case with care and pursue all
evidence suggested by the Charging Party; (4) failed to treat
the Charging Party in the same way it has treated him in
similar grievances in the past; and (5) failed to adequately
present the case.
This information does not provide a factual basis for a finding
that CSEA violated its duty of fair representation. Rather,
these statements are Charging Party's conclusions rather than
evidentiary facts. For example, failing to do an adequate job
in presenting the case is the Charging Party's conclusion as to
CSEA's treatment of the grievance. To demonstrate a prima
facie case a Charging Party must present evidentiary facts
which support such conclusions. Los Angeles Unified School
District (1984) PERB Decision No. 473. Due to the lack of such
evidentiary facts, this allegation does not state a prima facie
case.
2. Rejection of grievances filed against the Association.
In the first amended charge you do not add any new facts but
realize that CSEA did not process your grievances against
itself with an open mind. Again, this is a factual conclusion
rather than a statement of evidentiary fact. Without these
facts a prima facie case is not stated and this allegation must
also be rejected based on this and the rationale contained in
Mr. Leon's October 6 letter.
3. 	Failure to represent you in 50 grievances against the
employer.
In the first amended charge you state that you have filed
approximately 50 grievances since December 1987 (sic) and that
these grievances were not treated at the state level and
received questionable treatment at the local level. As
explained in Mr. Leon's October 6 letter, CSEA reviewed these
grievances and determined them to be without merit. Other than
your conclusion that they received questionable treatment,
there are no evidentiary facts indicating that these grievances
were treated in an arbitrary, capricious, or bad faith manner
by CSEA. Absent such assertions, this allegation does not
state a prima facie violation of the EERA.
4. 	Failure to provide representation in a PERB unfair practice
charge from August 1986 through October 1987.
In the first amended charge, you assert that Charging Party was
forced to proceed with an unfair practice charge against his

Mr. George Mrvichin
November 19, 1987
Page 3
employer between August 1986 and March 1987 without
representation by CSEA. In addition, the amended charge
alleges that on September 18, 1987 you requested representation
on this matter from CSEA and that on October 5, 1987, it failed
to appear at the scheduled PERB hearing. You asserted during
the investigation that CSEA representatives Mr. Armas and
Mr. Fields promised that you would be at the PERB proceeding.
However, it would appear that CSEA is under no obligation to
represent employees in cases involving extra-contractual
remedies. 	San Francisco Classroom Teachers ' Association
(Chestangue) (1985) PERB Decision No. 544.
In Hawkins v. Babbock and Wilcox Co. (1980) (U.S. DC, N. Ohio)
105 LRRM 3458, 1 involving an employee who alleged that the
union should have advised him regarding administrative and
judicial remedies to alleged discriminatory conduct by his
employer, the District court ruled:
The National Labor Relations Act,
authorizing unions to represent employees in
the creation and administration of
collective bargaining agreements with
employers, together with the correlative
duty of fair representation, however, is
limited to the collective bargaining
agreement process. 	The union's duty
of fair representation is restricted to the
context of the collective bargaining
agreement and does not extend to legal
remedies available outside of the employment
context. See International Brotherhood of
Electrical Workers v. Foust, 442 U.S. 42,
101 LRRM 2365 (1979) ; Vaca v. Sipes, 386
U.S. 171, 64 LRRM 2369 (1967) ; Humphrey v.
Moore, 375 U. S. 335, 55 LRRM 2031 (1964) ;
Ford Motor Co. v. Huffman, 345 U.S. 330, 331
LRRM 2548 (1952) .
In the present case, the defendant union was
not under any duty to advise the plaintiff
of its legal rights outside the context of
PERB has followed decisions of the federal courts and
the National Labor Relations Board interpreting the National
Labor Relations Act involving the duty of fair representation.
Firefighters Union v. City of Vallejo (1974) 12 Cal. 3d 608 [116
Cal . Rptr. 507]; and see SEIU, Local 99 (Kimmett) (1979) PERB
Decision No. 106.

Mr. George Mrvichin
November 19, 1987
Page 4
the collective bargaining agreement. 	The
union had no duty to act as an attorney at
law advising the plaintiff of all possible
alternatives of legal recourse.
Similarly, a federal district court has stated:
In the typical fair representation case, it
is asserted that the union has breached its
duty to represent the employee fairly as
regards a employment contract. However, in
such cases it is expressly provided by law
that the union shall be the exclusive
representative of all the employees in the
unit for the purposes of collective
bargaining in respect to rates of pay,
wages, hours of employment, or other
conditions of employment. . 	Thus, in
the typical fair representation case, the
union has the right, derived from law or
from its constitution, to represent the
employee exclusively in certain classes of
cases . 	This right imposes a correlative
duty to perform diligently the duties of its
agency, and not to engage in conduct which
is arbitrary, discriminatory or in bad
faith. 	Vaca v. Sipes, supra. Such is not
the case here.
The statute provides that a petition for
certification of eligibility to apply for
adjustment assistance may be filed either by
a group of employees or by their union.
Therefore, [the union] had no
exclusive right, nor correlative duty to
file on behalf of plaintiffs in their
proposed class. 	Plaintiffs could have filed
for themselves. 	Lacy v. Local 287, United
Automobile, Aerospace, and Agricultural
Implement Workers of America (1979) (U.S.
DC, S. Dist. Ind. ) 102 LRRM 2847. 	(Emphasis
added. )
Section 3541.5 does not provide to employee organizations the
exclusive right of filing unfair practice charges. Indeed, as
you know, an individual employee can file an unfair practice
charge before PERB. Accordingly, the Association has no
correlative duty of fair representation to provide assistance
for an individually filed unfair practice.

Mr. George Mrvichin
November 19, 1987
Page 5
Even if CSEA promised to appear and then failed, you have not
alleged facts demonstrating the reason for its failure to
appear . 	Without facts showing that CSEA's failure was
motivated by bad faith, arbitrary conduct or capriciousness,
there is not a prima facie case stated.
5. 	Failure to provide representation regarding an unfair
practice charge filed with PERB in 1983.
The amended charge does not add any new material concerning
this allegation and therefore it is dismissed based on the
discussion in Mr. Leon's October 6, 1987 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 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 dismissal (California Administrative
Code, title 8, section 32635(a) ). To be timely filed, the
original and five copies of such appeal must be actually
received by the Board itself before the close of business
(5:00 p.m. ) or sent by telegraph, certified or Express United
States mail postmarked no later than the last date set for
filing (section 32135). Code of Civil Procedure section 1013
shall apply . 	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 copies of a statement in opposition within twenty
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 each copy of a document served upon a
party or 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.

Mr. George Mrvichin
November 19, 1987
Page 6
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 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.
Sincerely,
John Spittler
Acting General Counsel
BY fer-
Robert Thompson
Regional Attorney
Attachment
cc: Christina Bleuler
1367d

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 95814
(916) 322-3198
October 6, 1987
Mr. George Mrvichin
RE: 	Mrvichin v. California School Employees Association. Case
LA-CO-413
Dear Mr. Mrvichin:
You have filed a charge against the California School Employees
Association (CSEA) alleging that it violated the Educational
Employment Relations Act (EERA) by failing to properly
represent you in regard to grievances and unfair practice
charges. Specifically, you allege that CSEA: (1) failed to
represent you in a disciplinary meeting on December 11, 1986;
(2) rejected on January 13, 1987 as invalid, grievances which
you filed against CSEA itself under the collective bargaining
agreement between CSEA and your employer; (3) failed to
represent you in some 50 grievances which you have filed
between September, 1986 and June, 1987 against the employer;
(4) refused to provide "satisfactory" representation in March,
1987; (5) failed to provide representation regarding an unfair
practice charge in August, 1983.
My investigation revealed the following information. You are
employed as an Athletic Trainer by the Chino Unified School
District and have been so employed for some ten years. 	Your
duties include training and conditioning student athletes in
injury prevention, issuance of safety equipment to students and
administering first aid.
1 . 	Failure to represent you in a disciplinary meeting on
December 11, 1986.
On December 9, your employer directed you to attend a meeting
with Principal Carr. On December 10, you called CSEA Field
Representative Mr. Armas and asked that he represent you at the
meeting. Mr. Armas asked whether the meeting had to do with

Mr. George Mrvichin
October 6, 1987
Page 2
discipline. 	You stated that the District had not clearly
advised you. He told you that you that you should go to the
meeting and if you determine that it is disciplinary in nature,
to ask for representation at that point. You assert that in
this conversation, Mr. Armas said that you should be fired from
your position. Respondent asserts, in response, that Armas
actually said words to the effect:
This is the second time you've gotten in
trouble with the District about altering
forms . 	You were out of line. 	If you were
my employee I would have fired you.
Armas then called Ms. Isley, the Chapter President to find out
about whether the meeting was to be disciplinary. Having found
out that it was, he called Mr. Carr and arranged to have the
meeting scheduled for December 11, so he and Isley could
attend. 	They subsequently did attend the meeting and
represented you at that meeting.
2. Rejection of grievances filed against the Association
You filed three grievances against the Association on December
18, 1986 alleging that it failed to provide assistance, failed
to provide you with grievance forms, and failed to represent
you. On December 23, 1986, you filed three more grievances.
On January 13, 1987, Mr. Armas sent you a letter advising you
that the grievances were invalid inasmuch as the grievance
process is intended to be used for raising disputes with the
employer -- not the Association. Mr. Armas advised you that
the mechanism for raising disputes with the Association is
through Policy 606. You pursued the grievances to State
President Mr. Bill Regis and later up to the CSEA Board of
Directors through Mr. Wally Blice. At each step, CSEA advised
you that it would not accept your grievances and directed you
instead to use Policy 606.
3 . 	Failure to represent you in 50 grievances against the
employer .
Between September, 1986 and June, 1987, you filed some 50
grievances against the employer for various alleged contract
violations. CSEA did not assist you in filing any of these
grievances. 	You did not consult with CSEA prior to filing
these grievances. However, after they were filed, you asked

Mr. George Mrvichin
October 6, 1987
Page 3
that it assist you by providing representation. CSEA responded
that it had reviewed your grievances, that the grievances did
not present valid claims, and that therefore, it would not
represent you. For example, concerning the grievance which you
filed on December 10, 1986 regarding Kathleen Small, Mr. Armas,
on behalf of CSEA sent you a letter dated December 22, 1986
which states that the grievance had been reviewed, that it was
determined not to state a valid claim, and that you may appeal
Armas' determination through Policy 606. Mr. Armas went on to
explain that he had explained to you what a valid grievance
states and that your failure to follow his advice is creating
an undue workload for the Chino CSEA Chapter.
4. 	March, 1987 failure to provide "satisfactory"
representation.
The charge states that from about August, 1986 through March,
1987, the CSEA through Mr. Armas, "declined satisfactory
representation, which resulted in a violation of the PERB
timeline." The charge does not provide any further information
about this matter. Although questioned on this point, Charging
Party has not provided any further facts concerning the
allegation.
5. 	Failure to provide representation regarding an unfair
practice charge filed with PERB in 1983.
The instant charge was filed with the PERB on April 20, 1987.
In 1983, you filed an unfair practice charge against the
District. You requested that CSEA assist you in pursuing the
charge against the District. 	According to the instant charge,
"prior to August 1983 and since" then (August 1983) the
Association has denied you representation regarding the
charge. You and the District entered into a settlement
agreement which provided, in part, that the District would
conduct reevaluations of your work performance in December,
1983 and again in April, 1984. The District failed to conduct
the April, 1984 evaluation and, although the charge is not
clear on this point, it can be read to allege that you
requested, and CSEA refused assistance in April, 1984 as well.
ANALYSIS
Charging Party has alleged that the exclusive representative
denied Charging Party the right to fair representation

Mr. George Mrvichin
October 6, 1987
Page 4
guaranteed by EERA section 3544.9 and thereby violated section
EERA 3543.6(b) . The duty of fair representation imposed on the
exclusive representative extends to grievance handling.
Fremont Teachers Association (King) (1980) PERB Decision
No. 125; United Teachers of Los Angeles (Collins) (1983) PERB
Decision No. 258. 	In order to state a prima facie violation of
this section of the EERA Charging Party must show that the
Association's conduct was arbitrary, discriminatory, or in bad
faith. In United Teachers of Los Angeles (Collins), Id., the
Public Employment Relations Board (PERB) stated:
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.
A union may exercise its discretion to
determine how far to pursue a grievance in
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance
or process a grievance in a perfunctory
fashion. A union is also not required to
process an employee's grievance if the
chances for success are minimal.
In order to state a prima facie case alleging arbitrary conduct
violative of the duty of fair representation the Charging Party:
. 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. 	Reed District
Teachers Association, CTA/NEA ( Reyes) (1983)
PERB Decision No. 332, citing Rocklin
Teachers Professional Association (Romero)
(1980) PERB Decision No. 124.
Failure to represent you in a disciplinary meeting on
December 11, 1986.
The charge alleges that the CSEA failed to represent you at the
December 11, 1986 meeting. 	However, the charge also

Mr. George Mrvichin
October 6, 1987
Page 5
acknowledges at paragraph #12 of the factual statement of the
charge that Mr. Armas and Ms. Isley were in fact present at the
meeting to represent you. During the investigation of the
charge, you acknowledged that they were present. For these
reasons, this allegation does not state a prima facie case of
an EERA violation.
To the extent that the charge asserts that Mr. Armas' statement
that you should be fired is a violation of the EERA, that
allegation does not appear to present a prima facie for these
reasons . 	Armas' statement appears to be an expression of a
personal opinion. Standing alone, the statement does not rise
to the level of arbitrary, bad faith, or discriminatory
conduct. The charge does not present any information to
demonstrate that Armas' personal opinion in any way led CSEA to
fail to exercise the duties it has toward you nor that it led
CSEA to act in an arbitrary, bad faith, or discriminatory way
toward you. Further, there are no facts which demonstrate that
Armas in any way interfered with the relationship between you
and your employer. 	For these reasons, this allegation fails to
state a prima facie case of an EERA violation.
2. Rejection of grievances filed against the Association.
The Association refused to accept grievances which you filed
against the Association itself pursuant to the collective
bargaining agreement between the District and the Association.
Instead, it referred you to the internal dispute resolution
mechanism provided for in its Policy 606. The collective
bargaining agreement does not specifically provide that its
grievance mechanism shall be used for member grievances against
the Association. During the investigation, you asserted that
the agreement does not bar such grievances and that the
Agreement binds both the employer and the District. Thus, the
grievances should be allowed. Regardless of whether the
contract grievance procedure is properly used to lodge
grievances against the union by its members, the charge does
not demonstrate that the Association engaged in arbitrary,
discriminatory, or bad faith conduct. Although it rejected
your grievances, it provided you with an alternative mechanism
in order to air your grievances by referring you to Policy
606. For these reasons, this allegation does not state a prima
facie case of an EERA violation.

Mr. George Mrvichin
October 6, 1987
Page 6
3. 	Failure to represent you in 50 grievances against the
employer
You were notified by CSEA that it would not pursue the various
grievances which you filed against the District because the
grievances were determined to be unmeritorious. The CSEA
referred you to its grievance appeals committee in each
instance. You proceeded to file appeals on each of the
grievances, and the rejections were upheld at each procedural
step. 	The charge does not present any facts indicating that
CSEA's determinations were made for any reasons other than that
they had been determined to be unmeritorious. The charge does
not demonstrate bad faith, discriminatory, or arbitrary conduct
on the part of CSEA in refusing to pursue the grievances which
you filed. 	For these reasons, this allegation does not state a
prima facie case of an EERA violation.
4 . 	March, 1987 failure to provide "satisfactory"
representation.
CSEA's duty to its members is to refrain from arbitrary, bad
faith, or discriminatory conduct. During the investigation of
the charge you did not present any further factual information
regarding the allegation. As stated, the charge does not
present any concrete facts in support of the allegation that Even ifCSEA failed to provide "satisfactory" representation.
there were, there is no duty that it provide "satisfactory
representation. The charge fails to present information
showing that the CSEA acted in a bad faith, discriminatory, or
bad faith manner. 	For these reasons, this allegation does not
state a prima facie case of an EERA violation.
5. 	Failure to provide representation regarding an unfair
practice charge filed with PERB in 1983.
Government Code section 3541.5 (a) provides that the PERB shall
not issue a complaint:
[ijn respect of any charge based upon an
alleged unfair practice ocurring more than
six months prior to the filing of the charge.
The charge alleges that CSEA refused to provide representation
regarding the 1983 charge "prior to August 1983 and since."
The charge can also be read to state that CSEA failed to

Mr. George Mrvichin
October 6, 1987
Page 7
provide assistance in enforcing the settlement agreement in
April, 1984. This charge was filed in April, 1987, which is
more than six months following August, 1983 and more than six
months following April, 1984. The allegation does not state a
prima facie case of an EERA violation because it is not timely
filed. Moreover, assuming arguendo that the charge is timely
filed, it does not reveal that CSEA engaged in any arbitrary,
discriminatory, or bad faith conduct in refusing to participate
in an unfair practice charge which it had not filed. The
CSEA's obligation is limited to pursuing available contractual
remedies and does not extend to assisting employees in pursuing
remedies in other forums. 	California State Employees
Association (Darzins) (1985) PERB Decision No. 546-S.
For these reasons, the charge as presently written does not
state a prima facie case. If you feel that there are any
factual inaccuracies in this letter or any additional 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 October 15, 1987, I shall dismiss
your charge. If you have any questions on how to proceed,
please call me at (916) 323-8015.
Sincerely,
Jorge A. Leon
Staff Attorney
0925d