Saddleback Valley Educators Association, South Orange County Educators (Forslund) (PERB 0828E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SHARON S. 	FORSLUND,
Charging 	Party,
v.
SADDLEBACK VALLEY 	EDUCATORS
ASSOCIATION, 	SOUTH ORANGE COUNTY
EDUCATORS,
Respondent.
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) 	Case No. 	LA-CO-507
PERB Decision No. 	828
July 19, 1990
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Appearances: 	Sharon S. 	Forslund, 	on her own behalf; 	California
Teachers Association by Robert Einar Lindquist, 	Attorney, 	for
Saddleback Valley 	Educators Association, 	South Orange 	County
Educators.
Before Hesse, 	Chairperson; 	Craib and Cunningham, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Sharon S.
Forslund of 	a 	Board agent's 	dismissal 	(attached hereto) 	of 	her
charge 	that the 	Saddleback Valley 	Educators Association, 	South
Orange County Educators 	violated 	section 	3543.6(b) 	of 	the
Educational Employment Relations Act. 	(Gov. 	Code, 	sec. 	3 540 et
seq.) 	We have reviewed the dismissal 	and, 	finding 	it 	free of
prejudicial error, 	adopt it as the decision of the Board itself.
The unfair practice charge 	in Case No. 	LA-CO-507 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Craib and Cunningham 	joined 	in this 	Decision.
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______________ )

STATE OF 	CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, 	CA 	95814-4174
916) 322-3088
Office 	of 	the 	General 	Counsel
916/323-8015
April 	9, 	1990
Sharon 	Forslund 	(Daly)
Re: 	Forslund 	v. 	Saddleback Valley 	Educators 	Association.
South 	Orange 	County 	Educators
Unfair Practice Charge No. 	LA-CO-507
DISMISSAL AND/OR 	REFUSAL 	TO 	ISSUE 	COMPLAINT
Dear Ms. 	Forslund:
The 	above-referenced 	charge 	alleges 	that 	the 	Saddleback Valley
Educators 	Association, 	South Orange County Educators
(Association) 	failed 	to properly represent Ms. 	Forslund 	in an
arbitration 	involving 	a 	Saddleback Valley 	Unified 	School 	District
(District). 	The duty of 	fair representation is 	contained 	in
Section 	3544.9 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
and 	violation of 	this 	duty 	is 	cognizable 	through 	Section
3543.6(b) 	of the EERA.
I 	indicated 	to 	you 	in my 	attached 	letter dated March 	23, 	1990,
that 	the 	above-referenced 	charge 	did 	not 	state 	a 	prima 	facie
case. 	You were advised that 	if 	there were any 	factual
inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	furthered 	advised 	that 	unless 	you
amended that 	charge 	to 	state a prima 	facie case, 	or withdrew 	it,
prior to March 	30, 	1990, 	the 	charge would be dismissed. 	On March
27, 	you requested 	and 	received 	an extension of 	time within which
to 	file 	your 	amended 	charge. 	The 	amended 	charge was 	filed 	on
April 5, 	1990.
The 	amended 	charge makes 	essentially three allegations. 	First,
that 	the Association did 	not 	implement 	an arbitrator's 	award 	in
your behalf. 	Second, 	that the Association did not 	file
grievances 	on 	your 	behalf 	when 	the 	District 	discriminated 	against
you 	in making 	tentative 	assignments 	for the 	89-90 	school 	year.
Third, 	the Association 	impeded 	your acquisition of 	documents 	and
transcripts 	from 	the 	arbitration proceedings. 	These 	issues 	will
be discussed 	in 	order.

Sharon 	Forslund 	(Daly)
April 	9, 	1990
Page 	2
The 	allegation 	that 	the Association 	failed 	to 	implement 	an
arbitrator's 	award was 	raised 	in 	the 	original 	charge 	and
discussed at 	length 	in my March 23, 	1990, 	letter. 	You assert 	in
the 	amended 	charge 	that Ms. 	Kirkland 	did 	not 	ask the Association
Executive 	Board 	to purchase 	a 	transcript 	on December 	12.
However, 	a 	close reading of Ms. 	Kirland's memo of December 	12 	to
the 	Association 	Executive 	Board 	members 	(attached 	to 	the 	original
unfair practice 	charge) 	creates 	the 	clear 	impression that Ms.
Kirkland was 	requesting 	that 	they purchase 	the 	transcript. 	This
is 	especially 	true 	in 	light 	of 	the 	statement 	in this 	memo 	that
she 	had 	previously 	recommended 	to 	the 	Executive 	Board 	not 	to
purchase 	the 	transcript. 	If 	on December 	12 	she was 	of that 	same
opinion, 	there would have been no need 	for the memo. 	Second, 	you
indicate 	in 	the 	amended 	charge 	that 	the 	District did 	not 	create 	a
third 	chemistry 	class 	for you 	but 	rather 	created 	a 	fifth
chemistry 	class. 	The 	statement 	in my 	letter was 	a 	simple
recitation 	of 	the 	fact 	that 	after 	the Association 	complained
about your 	temporary 	schedule, 	a new schedule was 	issued which
contained 	an 	additional 	chemistry 	class 	which had 	not 	previously
been offered. 	Third, 	you 	assert 	that the Association was
obligated 	to 	file 	a 	grievance 	over your 	temporary 	assignment.1
As you are aware, 	Article 	12 	of the Collective Bargaining
Agreement 	between 	the 	District 	and 	the Association provides 	that
an 	employee 	without 	any assistance 	from the Association has 	a
right to 	file 	a 	grievance with the District. 	In addition,
[a]bsent 	arbitrary, 	discriminatory or bad
faith 	conduct, 	mere negligence or poor
judgment 	in 	handling 	a 	grievance does 	not
constitute 	a 	breach of 	the union's 	duty.
(Footnote 	and 	citations 	omitted.)
A prima 	facie 	case 	alleging 	conduct violative
of 	the duty 	of 	fair representation must, 	at 	a
minimum, 	set 	forth 	sufficient 	facts 	from
which 	it 	becomes 	apparent 	how or 	in what
manner 	the 	exclusive 	representatives 	action
or inaction, 	was arbitrary, 	discriminatory,
or 	in bad 	faith. 	(Citations 	omitted.)
Los 	Angeles 	City 	and 	County 	School 	Employees
Union. 	Local 99, Service Employees
International Union. 	AFLCIO 	(Scates) 	(1983)
PERB Decision No. 	341.
1As described 	in my March 	23rd 	letter, 	after you 	complained
to 	the Association regarding 	your assignment, 	the Association
suspended 	negotiations 	with 	the 	District. 	Shortly 	thereafter 	you
received 	a 	second 	schedule.

Sharon 	Forslund 	(Daly)
April 	9, 	1990
Page 3
The 	information provided 	in 	the 	amended 	charge 	does 	not
demonstrate 	sufficient 	conduct 	to 	find 	the Association's 	behavior
violative 	of 	the 	EERA.
The 	amended 	charge 	also alleges 	that 	the 	District discriminated
against 	you 	by 	providing 	you with 	a 	new 	assignment 	contrary 	to
the 	contractual 	provisions 	of 	the 	agreement 	between the 	District
and 	the Association. 	This 	allegation 	is presently 	contained 	in
the 	complaint 	issued 	in a 	companion case, 	Forslund v. 	Saddleback
Valley Unified 	School 	District, 	Unfair Practice Charge No. 	LA-CE-
2923. 	These 	allegations 	do 	not 	additionally 	state 	a prima 	facie
case 	of 	misbehavior by 	the Association 	and 	therefore 	must 	be
dismissed.
Finally, 	the 	amended 	charge 	alleges 	that 	the Association's
position 	concerning 	confidentiality 	of 	arbitration 	transcripts
and/or documents was 	arbitrary, 	discriminatory, 	or in bad 	faith.
For 	such behavior to violate 	the 	EERA, 	it must 	first be
demonstrated 	that 	the Association owed Ms. 	Forslund 	a duty of
fair 	representation with 	respect 	to 	providing 	documents 	and/or
information 	to 	her 	regarding 	her 	lawsuit 	against 	the 	District.
Although 	PERB has 	not addressed this 	identical 	question, 	it has
addressed 	similar questions. 	In California 	Correctional 	Peace
Officers Association (Pacillas) (1987) 	PERB Decision No. 	657-S,
the 	Board 	found 	that 	a 	union does 	not 	owe 	a 	duty of 	fair
representation to 	a 	member of 	the bargaining unit with regard 	to
extra-contractual matters. 	In that decision, 	the Board 	cited
Hawkins v. 	Babcock and Wilcox Company 	(1980) 	(U.S.D.C., 	N. 	Ohio)
105 	LRRM 	3438 	which held
The 	National 	Labor Relations Act, 	authorizing
unions 	to 	represent 	employees 	in the 	creation
and 	administration 	of 	collective 	bargaining
agreements with employers, 	together with a
correlative 	duty 	of 	fair 	representation,
however, 	is 	limited to the collective
bargaining process. 	Outside of 	the 	employer-
employee relationship, 	the union has 	no
authority to represent union members, 	nor
duty 	to 	advise 	those members 	of 	their extra-
contractual 	legal 	rights. 	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 	the 	employment
context. 	(Citations 	omitted.)
When Ms. 	Forslund 	requested 	copies 	of 	the 	arbitration 	transcript
and/or documents 	from the 	arbitration, 	the 	grievance 	and
arbitration procedure 	had 	been 	exhausted 	by 	issuance 	of 	an
arbitrator's 	ruling. 	It 	is 	clear that 	these documents were 	to be

Sharon 	Forslund 	(Daly)
April 	9, 	1990
Page 4
used 	in 	a 	lawsuit which 	she 	had 	filed against 	the 	District
regarding 	sexual 	discrimination. 	Such matters 	do 	not 	fall within
the 	collective 	bargaining 	process 	but,rather 	constitute 	extra-
contractual 	legal 	matters 	outside 	of 	the union's 	duty 	of 	fair
representation. 	Accordingly, 	there 	is no 	special relationship
which 	exists 	between 	the 	unit 	member 	and 	the 	employee
organization 	which 	exclusively 	represents 	that 	bargaining 	unit
with 	regard 	to providing 	of 	documents 	for 	these 	types 	of
hearings. 	Thus, 	even 	if 	it 	could be demonstrated that the
Association acted arbitrarily, 	capriciously, 	discriminatorily, 	or
in bad 	faith, 	such 	conduct would 	not 	violate 	the 	duty 	of 	fair
representation because 	no 	duty 	is 	owed with 	respect 	to 	these
matters. 	Accordingly, 	this 	claim must be dismissed.
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 	(California
Administrative Code, 	title 8, 	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 	(California
Administrative Code, 	title 8, 	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 California Administrative Code,
title 	8, 	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.

Sharon 	Forslund 	(Daly)
April 	9, 	1990
Page 	5
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 	(California
Administrative Code, 	title 8, 	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,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By .
Robert 	Thompson
Deputy 	General 	Counsel
Attachment
cc: 	Robert E. 	Lindquist
Christine 	Kirkland

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN, Govmo
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
322 	3086	(916)
Office 	of 	the 	General 	Counsel
916/323-8015
March 23, 	1990
Sharon 	Forslund 	(Daly)
Re: 	Forslund 	v. 	Saddleback Valley 	Educators 	Association.
South 	Orange 	County 	Educators
Unfair Practice Charge No. 	LA-CO-507
WARNING 	LETTER
Dear Ms. 	Forslund:
The 	above-referenced 	charge 	alleges 	that 	the 	Saddleback Valley
Educators 	Association, 	South 	Orange 	County 	Educators
(Association) 	failed 	to properly 	represent Ms. 	Forslund 	in an
arbitration 	involving 	a 	Saddleback 	Valley 	Unified 	School 	District
(District). 	The duty of 	fair 	representation is 	contained 	in
Section 	3544.9 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
and 	violation 	of 	this 	duty 	is 	cognizable 	through 	Section
3543.6(b) 	of 	the EERA.
My 	investigation 	revealed 	the 	following 	facts: 	Sharon 	Forslund
(Daly) 	is 	a 	science 	teacher 	at 	the 	Saddleback Valley 	Unified
School 	District. 	During 	1987, 	Ms. 	Forslund became 	involved 	in a
class 	scheduling 	dispute with 	the 	District 	at 	Mission Viejo 	High
School. 	A grievance was 	filed by 	the Association, 	and, 	on
October 	27, 	1987, 	the Association Executive Board directed that
the 	grievance 	be 	taken to 	binding 	arbitration. 	The 	arbitration
was 	initially 	scheduled 	for 	early 	1988 	but was 	postponed. 	It
occurred 	in 	the 	summer 	and 	fall 	of 	1988 	and required 	six-and-one-
half 	days 	of 	hearing 	spaced 	over 	three 	months. 	During 	this 	time
a 	number 	of 	settlement 	offers 	were 	exchanged 	between 	the
Association and the District; 	however, 	none proved fruitful. 	The
executive 	director 	of 	the 	South Orange 	County 	Educators,
Christine Kirkland, 	served as Ms. 	Forslund's Association
representative 	at 	the arbitration.

Sharon 	Forslund 	(Daly)
March 	23, 	1990
Page 	2
On December 	12, 	1988, 	Ms. 	Kirkland, 	asked the Association's
Executive 	Board 	to 	purchase 	transcripts 	from 	the 	arbitration
hearing 	to 	be 	used 	in preparation 	of 	the 	brief 	to 	the 	arbitrator.
The 	executive 	board decided 	not 	to purchase 	these 	transcripts. 	A
copy 	of 	Ms. 	Kirkland's 	brief 	was 	sent 	to Ms. 	Forslund 	on 	January
31, 1989.
On 	March 	9, 	1989, 	Arbitrator 	Paul 	Rothchild 	ruled 	in 	favor 	of 	the
grievant, 	Ms. 	Forslund, 	and 	ordered 	that 	she be reinstated 	to her
former 	science 	position 	at 	Mission Viejo 	High 	School 	with 	full
seniority 	and 	restoration 	of 	five 	chemistry 	classes 	to 	the 	extent
that 	student 	enrollment 	allowed 	such 	classes 	to 	be 	offered. 	The
arbitrator 	also 	wondered 	whether 	the 	grievant 	would 	be 	willing 	to
place 	herself 	in 	the 	hostile 	environment 	of 	Mission Viejo 	High
School, 	but 	that remained the grievant's 	decision. 	Finally, 	the
arbitrator 	maintained 	jurisdiction 	over 	the 	matter 	for 	120 	days
to 	assist 	the 	parties 	in 	interpretation 	and/or 	implementation 	of
the award. 	On March 	30, 	Ms. 	Kirkland wrote to Associate
Superintendent 	Ken Anderson 	informing 	him 	that 	Ms. 	Forslund
desired 	to 	remain at 	her present 	location, 	Trabuco Hills 	High
School 	and 	that 	it was 	likely 	that 	five 	chemistry 	classes 	would
be 	available the 	following 	September. 	It was 	Ms. 	Kirkland's
intent 	to 	have 	those 	chemistry 	classes 	assigned 	to Ms. 	Forslund.
On May 	17, 	1989, 	Mr. 	Anderson responded to Ms. 	Kirkland, 	stating
that 	it was 	not possible 	to 	give 	all 	five 	chemistry 	classes 	to
Ms. 	Forslund, 	but that 	she 	could keep the 	three 	chemistry 	classes
that 	she 	had been teaching 	in the 	school 	year 	1988-89. 	On 	May
22, 	Ms. 	Kirkland wrote to Mr. 	Anderson indicating that Ms.
Forslund 	should 	have 	five 	chemistry 	classes 	assigned 	to 	her 	at
Trabuco 	Hills 	High 	School 	for the 	school 	year 	1989-90. 	On 	the
same 	day 	Ms. 	Kirkland wrote 	to the 	arbitrator 	requesting 	his
services 	in 	the 	interpretation and 	implementation 	of 	the 	award.
This 	request was 	based 	on 	the District's 	position that 	Ms.
Forslund was 	not 	entitled 	to 	five 	chemistry 	classes 	at 	Trabuco
Hills, 	but, 	rather, 	that the award would only apply to her
teaching 	at 	Mission Viejo.
Under a 	tentative 	schedule 	issued by the 	District 	on May 	26, 	Ms.
Forslund was 	assigned to 	teach 	two 	chemistry 	classes 	and 	three
physical 	science 	classes 	for 	the 	1989-90 	school 	year 	at 	Trabuco
Hills. 	When Ms. 	Forslund 	complained to Assistant 	Principal 	Barry
Blade, 	he 	said 	she would 	not 	receive 	a 	new assignment 	until 	after
the 	contract 	negotiations 	with 	the 	Association were 	completed.
Ms. 	Forslund 	immediately 	complained 	to 	the Association 	regarding
the 	assignment. 	The Association 	informed 	the 	District 	that
negotiations 	for 	a 	new 	contract would 	be 	suspended until 	Ms.
Forslund's 	schedule was 	modified.

Sharon 	Forslund 	(Daly)
March 23, 	1990
Page 	3
In 	early 	June 	a 	new 	schedule was 	issued which assigned 	Ms.
Forslund 	to 	three 	chemistry 	classes 	and 	two 	earth 	science
classes. 	Ms. 	Kirkland telephoned Ms. 	Forslund 	at 	this 	time 	and
asked whether her 	schedule was 	satisfactory. 	Ms. 	Forslund
replied 	that 	it was. 	The Association asserts 	that 	Ms. 	Kirkland
also 	told 	Ms. 	Forslund 	that 	the 	arbitrator was 	awaiting 	a
response 	on whether 	he 	would 	be 	involved 	further, 	read 	her 	a
rough draft of 	a 	letter 	to the arbitrator 	(sent June 	2 1 ) , 	and
asked 	if 	she was 	comfortable with Ms. 	Kirkland 	sending 	it. 	Ms.
Forslund 	allegedly 	replied 	in 	the 	affirmative. 	Ms. 	Forslund
denies 	awareness 	of 	the 	letter prior to 	it being 	sent. 	On 	the
day 	school 	ended 	in June, 	a week 	after the District gave Ms.
Forslund 	her 	new 	schedule, 	she 	learned 	that 	there were 	five
chemistry 	classes 	(her three plus 	two taught by Ms. 	Fliegler) 	at
Trabuco 	Hills. 	She 	had 	been under 	the 	impression that 	there 	were
still 	only 	four, 	and 	that 	the 	additional 	chemistry 	class 	in 	her
new 	schedule 	had 	come 	from Ms. 	Fliegler's 	schedule. 	In 	reality
Ms. 	Fliegler 	maintained 	her 	two 	classes 	and 	an 	additional 	class
was 	created and given 	to Ms. 	Forslund.
On June 	21, 	Ms. 	Kirkland wrote to Arbitrator Rothchild 	indicating
that 	neither 	the Association 	nor 	the 	District 	felt 	that 	an
additional 	day 	of 	hearing was 	necessary to 	interpret 	the
agreement. 	In addition, 	the 	letter 	states 	that 	the parties
recently worked 	out 	an acceptable 	schedule1 for Ms. 	Forslund 	at
Trabuco 	Hills 	High 	School 	and 	that 	if 	the 	schedule 	is 	adhered 	to,
she 	did 	not 	anticipate 	need 	for 	further 	services 	of 	the
arbitrator on 	the 	matter.
On 	July 	4, 	Ms. 	Forslund wrote 	to Arbitrator Rothchild 	indicating
the 	events 	surrounding 	her 	initial 	assignment 	and 	then 	her
reassignment. 	After an explanation of these 	facts, 	she 	also
indicated 	that 	she 	was 	hoping 	that 	he would 	be 	able 	to 	say 	that
her 	interpretation of 	his 	award was 	correct. 	The 	letter 	also
indicates 	receipt 	of 	Ms. 	Kirkland's 	June 	21 	letter. 	On July 	7,
Ms. 	Forslund wrote to Ms. 	Kirkland 	indicating that her 	new
assignment 	of 	three 	chemistry 	and 	two 	earth 	science 	classes 	did
not 	change 	any one 	else's 	assignments. 	Originally, 	it 	appears
that 	she 	believed 	that 	there 	were 	only 	four 	chemistry 	classes
available 	and 	that 	they were 	being 	evenly 	split, 	two 	for her 	and
two 	for Katty Fliegler. 	However, 	when she was 	reassigned, 	Ms.
Fliegler did 	not 	lose 	her 	two 	chemistry 	classes 	but 	rather 	an
additional 	chemistry 	class 	was 	created and given to Ms. 	Forslund.
1This reference 	is 	to 	the 	change 	in the proposed 	schedule 	to
allow Ms. 	Forslund to 	teach three 	chemistry 	classes 	as 	opposed 	to
the 	previously 	scheduled 	two.

Sharon 	Forslund 	(Daly)
March 	23, 	1990
Page 4
She 	goes 	on to 	state 	that 	it 	is 	her 	belief 	that 	the 	arbitrator's
award 	is 	possible 	and 	that 	she 	is 	concerned 	that 	the 	arbitrator
should 	still 	clarify 	his 	award.2 On July 	12, 	Eddy 	Hidalgo, 	the
Tribunal 	Administrator 	for 	the 	American 	Arbitration 	Association
wrote 	to 	Ms. 	Kirkland 	indicating 	that 	they 	had 	received 	Ms.
Forslund's 	July 	4 	letter 	and 	requesting 	any 	comments 	or
contentions 	before 	July 	22, 	at which 	time 	all pertinent 	documents
would 	be 	forwarded 	to 	the 	arbitrator 	for 	his 	determination.
On August 	7, 	Ms. 	Kirkland wrote 	to Mr. 	Hidalgo concerning 	the
distribution of 	transcripts 	as 	previously 	requested 	by 	Ms.
Forslund's private 	attorney, 	Carrie McMillan, 	for use 	in Ms.
Forslund's 	sexual 	discrimination 	law 	suit 	against 	the 	District.
Ms. 	Kirkland agreed with Mr. 	Larson, 	the district's 	counsel 	in
that 	case, 	that 	"the 	arbitration process 	is 	expected 	to provide
the parties 	to 	the 	collective 	bargaining 	agreement 	a 	degree 	of
confidentiality 	that would 	seem 	to 	preclude 	distribution 	by 	the
arbitrator or by 	the AAA of 	any 	transcripts 	of 	the proceedings."
On September 7, 	Ms. 	Kirkland wrote to Ms. 	Forslund, 	responding to
an August 	31 	letter, 	concerning 	several 	different 	issues. 	With
respect 	to 	the Association's 	decision 	not 	to request 	an
interpretation of 	the arbitration award by 	the 	arbitrator, 	Ms.
Kirkland 	wrote 	the 	following:
As 	I 	reminded you on August 	23, 	I 	called when
your 	adjusted 	assignment 	was 	confirmed 	(three
chemistry 	and 	two 	earth 	science) 	to make 	sure
that 	you were 	comfortable with 	the
assignment, 	and to 	specifically 	notify 	you
that 	the 	arbitrator was 	awaiting 	a response.
I 	read 	to you a 	rough draft 	of 	the 	letter 	I
had prepare 	and 	asked 	if 	you were 	comfortable
with me 	sending 	it. 	You 	responded 	in the
affirmative. 	The Association 	President
Bonnie 	Frommelt wrote 	to Ms. 	Forslund on
September 	12 	indicating 	that 	the 	Executive
Board agreed with Ms. 	Kirkland's 	decision to
not 	seek an additional 	hearing 	from 	the
arbitrator 	and 	to 	hold 	the 	transcripts 	to 	be
confidential.
2Ms. Forslund received a 	copy of 	the 	arbitrator's 	award,
dated March 	9, 	1989, 	which 	indicated he would maintain
jurisdiction over the case 	for 	120 	days. 	She 	states 	that 	she was
unsure 	of how to 	count the days.

Sharon 	Forslund 	(Daly)
March 23, 	1990
Page 	5
Ms. 	Forslund has 	since 	received 	copies 	of 	the 	transcript.
Based 	on 	the 	facts 	described 	above, 	this 	charge does 	not 	state 	a
prima 	facie 	violation 	of 	the 	EERA 	for 	the 	reasons 	which 	follow.
Section 	3541.5(a) 	of 	the 	EERA 	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:
This 	charge was 	filed on November 	21, 	1989, 	and therefore 	only
Association behavior which occurred after May 	21, 	1989, 	can be
considered 	actionable 	for purposes 	of 	finding 	a 	violation 	of 	the
EERA.
Charging 	Party 	alleged 	that 	the 	exclusive 	representative, 	the
Association, 	denied Ms. 	Forslund the 	right to 	fair 	representation
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 	on
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.

Sharon 	Forslund 	(Daly)
March 23, 	1990
Page 	6
In 	order 	to 	state 	a 	prima 	facie 	case 	of 	arbitrary 	conduct
violating 	the duty 	of 	fair 	representation, 	a 	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 	rational 	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.
Although 	the 	charging party 	is 	extremely 	unhappy 	that 	her
present 	schedule 	is 	equivalent 	to 	that 	from 	the 	preceding 	school
year, 	despite 	having won an arbitration against 	the 	district,
this 	unhappiness 	does 	not 	translate 	into 	a 	violation of 	the 	EERA.
Charging 	party's 	primary 	concern 	appears 	to be 	that 	Ms.
Kirkland's 	June 	21 	letter, 	informing 	the 	arbitrator 	that his
services 	were 	no 	longer needed 	to 	clarify 	the 	award, 	was 	Bent
3
without 	her 	knowledge 	or permission. 	Given that 	the 	parties
agreed 	that 	Ms. 	Forslund had 	indicated 	to Ms. 	Kirkland 	that 	she
was 	satisfied with her present 	schedule 	at 	Trabuco 	Hills, 	it was
not 	unreasonable 	for 	the Association 	to 	have 	presumed 	that 	there
was 	nothing 	further 	to 	be 	gained 	from 	discussions 	with 	the
arbitrator. 	After Ms. 	Forslund discovered 	in mid-June 	the
additional 	chemistry 	class 	in her 	new 	schedule 	had 	been 	created
rather 	than transferred 	from Ms. 	Fliegler, 	she notified 	the
Association by 	letter dated July 	7, 	1989, 	that 	she 	felt 	that 	the
Arbitration 	award was 	possible. 	The 	arbitrator's 	jurisdiction
over 	this 	matter 	expired 	on July 	7. 	PERB has 	held 	that 	a 	union
does 	not 	breach 	its 	duty 	of 	fair 	representation when 	it 	files 	a
grievance 	bearing 	an 	employee's 	name 	without 	the 	employee's
permission, 	fails 	to provide her with 	a 	copy of 	the 	grievance 	in
a 	timely 	fashion, 	and denies 	her 	a 	right 	to provide 	input 	on 	the
grievance. 	Fremont Teachers Association 	(King), 	supra. 	At page
seven, 	the 	Board 	explained, 	"[b]y 	filing 	the grievance 	in this
case, 	the Association was 	enforcing 	an agreement 	negotiated 	for
the 	benefit 	of 	all 	members 	of 	the unit who went 	out 	on 	strike.
Certainly, 	all members 	of 	the unit have a vital 	stake 	in the
enforcement 	of 	agreements 	negotiated by 	their 	exclusive
3The 	June 	21st 	letter 	indicates 	that 	a 	copy was 	sent 	to 	Ms.
Forslund. 	She 	refers 	to 	receipt 	of 	the 	letter 	in her July 	4
correspondence 	to 	the 	arbitrator.

Sharon 	Forslund 	(Daly)
March 	23, 	1990
Page 	7
representative. 	In the 	face 	of 	such 	compelling 	interests 	of 	the
majority 	of 	the 	employees, 	the 	competing 	right 	of 	an 	individual
employee 	must 	be 	subordinated. 	[Citations 	omitted.] 	As 	the
Supreme Court 	stated in NLRB v. 	Allis-Chalmers Mfg. 	Co. 	(1967),
388 	U.S. 	175 	[65 	LRRM 	2449], 	at p. 	180
National 	labor 	policy 	has 	been 	built 	on 	the
premise 	that 	by 	pooling 	their 	economic
strength 	and 	acting 	through 	a 	labor
organization 	freely 	chosen 	by 	the 	majority,
the 	employees 	of 	an 	appropriate 	unit 	have 	the
most 	effective 	means 	of 	bargaining 	for
improvements in wages, 	hours, 	and working
conditions. 	The policy therefore
extinguishes 	the 	individual 	employee's 	power
to 	order 	his 	own 	relations with his 	employer
and 	creates 	a 	power 	vested 	in 	the 	chosen
representative 	to 	act 	in the 	interests 	of 	all
employees."
Accordingly, 	the Association's 	failure to notify Ms. 	Forslund 	of
the 	June 	21st 	letter prior 	to 	its 	mailing does 	not 	violate 	the
EERA. 	Even if 	such a duty 	existed, 	Ms. 	Forslund may have 	lost
her 	right 	to 	object 	to the 	letter 	by waiting 	until 	the 	expiration
of 	the 	arbitrator's 	jurisdiction to 	raise 	the 	matter with 	the
Association.
Forslund's 	secondary 	concern 	appears 	to 	be 	the 	Association's
failure 	to 	assist 	her 	in obtaining 	a 	copy 	of 	the 	arbitration
transcript 	from the 	arbitrator.4 Again, 	the Association's
actions 	do 	not 	appear to be 	arbitrary, 	capricious 	or 	in bad
faith.
Although Ms. 	Forslund 	is 	clearly dissatisfied with 	the
Association's 	behavior during 	the 	summer of 	1989, 	there 	are 	no
facts 	presented which 	make 	it 	appear 	that 	the 	Association 	acted
in an 	arbitrary, 	capricious, 	or bad 	faith manner during this
time. 	Without 	such 	facts 	there 	is 	no prima 	facie 	statement 	of
violation.
For these reasons, 	the charge 	as 	presently written does 	not 	state
a prima 	facie 	case. 	If 	there 	are 	any 	factual 	inaccuracies 	in
this 	letter 	or 	any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	above, 	please amend the 	charge
4The Association did 	not purchase 	a 	copy of 	the 	transcript.

Sharon 	Forslund 	(Daly)
March 23, 	1990
Page 	8
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 	must 	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 	March
30, 	1990. 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Robert 	Thompson
Deputy 	General 	Counsel