Lindsay Teachers Association (Gonzalez) (PERB 0935E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LETICIA GONZALEZ,
Charging 	Party,
v.
LINDSAY 	TEACHERS ASSOCIATION,
Respondent.
Case No. 	S-CO-267
PERB Decision No. 	935
May 22, 1992
Appearances: 	Leticia Gonzalez, 	on her own behalf; 	California
Teachers Association by Ramon E. 	Romero, 	Attorney, 	for Lindsay
Teachers Association.
Before Hesse, 	Chairperson; 	Camilli and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by Leticia Gonzalez
(Gonzalez) 	of a PERB Board agent's dismissal 	(attached hereto) 	of
her unfair practice charge. 	In her charge, 	Gonzalez 	alleged 	that
the 	Lindsay Teachers Association violated 	section 	3543.6(b) 	of
the Educational Employment Relations Act 	(EERA)1 by 	failing to
advocate 	on her behalf at 	a meeting at which 	she was 	informed 	she
would 	not be 	rehired 	and by 	failing 	to 	respond 	to her 	letters.
EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(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.
)
)
)
)
)
)
---~---_-____________ !

The 	Board has 	reviewed the Board agent's warning and
dismissal 	letters, 	and 	finding them to be 	free of prejudicial
error, 	adopts 	them as 	the decision of the Board itself.
The unfair practice 	charge 	in Case No. 	S-CO-267 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
N
	2

STATE Of CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088	
PERB
February 4, 	1992
Leticia 	Gonzalez
Re: 	Leticia Gonzalez v. 	CTA - Kings/Tulare Uniserve Unit, 	Inc.
Unfair Practice Charge Case No. 	S-CO-267
DISMISSAL 	LETTER
Dear Ms. 	Gonzalez:
On August 	30, 	1991, 	you filed a charge that the Lindsay Teachers
Association1 (Association or LTA) 	violated Government Code
section 3543.6(b) 	(the EERA). 	Specifically, 	you allege that the
Association violated 	it 	duty of 	fair representation by 	failing 	to
advocate 	for you during a meeting on March 	1, 	1991, 	when you were
informed 	that 	you would 	not be rehired 	for 	the 	1991-92 	school
year and by failing to respond to your letters 	of June 	12, 	1991
and August 6, 	1991.
I 	indicated to you 	in my attached 	letter dated October 	4, 	1991,
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 	further advised that unless 	you
amended 	the 	charge to 	state a prima 	facie case, 	or withdrew it
prior to October 	15, 	1991, 	the charge would be dismissed. 	You
requested 	additional 	time to 	file an amended 	charge. 	We 	agreed
to an extension of time until October 21, 	1991. 	On October 21,
1991, 	you 	filed your first amended charge. 	In addition, 	you also
submitted 	numerous 	unorganized 	notes 	and 	exhibits 	(totalling 	154
pages) 	in 	support of your amended charge.
Your 	amended 	charge appears 	to allege 	the 	following facts, 	which
I 	have 	summarized:
1your original 	charge 	named 	CTA 	- 	Kings/Tulare 	Uniserve
Unit, 	Inc. 	(CTA) 	as the employee organization. 	On October 23,
1991, 	pursuant 	to my telephone 	call you 	filed an amended charge
which 	named 	the 	Lindsay Teachers Association as 	the 	respondent.

S-CO-267
Page 2
1. 	On or about September 6, 	1990, 	Lindsay Teachers
Association 	(LTA), 	School Site Representative, 	Harry
Schein 	failed 	to 	inform you 	that 	the 	School's 	student
calendar was 	supposed to be bilingual.
2. 	On or about October 23, 	1990, 	LTA District
Grievance 	Representative 	Mike 	Green discouraged 	you
from grieving your 	concerns 	regarding 	your right 	to
disperse 	information to bilingual 	teachers 	by 	leading
you 	to 	believe 	that he would meet with 	Principal 	Mike
McQuary on this 	matter.
3. 	On or about February 	19, 	1991 	you attempted to
meet with 	LTA President 	Nichols 	concerning 	the
discriminatory problems 	against 	Bilingual 	Teachers 	and
the Bilingual Program at Jefferson. 	However, 	Ms.
Nichols 	refused to 	meet with you and 	suggested 	that 	you
speak with 	the 	school-site 	Bilingual 	Resource 	Teachers,
Irene 	Rosales 	and Rita 	Henry.
4. 	After your conversation with Ms. 	Nichols, 	you
contacted 	Jack Cottrell 	of 	Kings/Tulare 	Uniserve 	and
requested to remai. . . .
	-n anonymous. 	However, 	Cottrell
responded, 	"Don't give me this shit. 	. 	. 	that I 	[you]
not waste his time, 	etc. 	. 	." 	Cottrell also informed
you during 	this 	conversation that 	there was 	nothing he
could do. 	"That you couldn't 	force a principal 	to be a
good manager." 	You also 	asked Cottrell 	for the
telephone 	number of 	a 	CTA Attorney 	and he 	refused 	to
give it to you.
5. 	On or about April 	8, 	1991, 	during a telephone
conversation with LTA President, 	Judy Nichols 	you were
informed Schein had all 	copies 	of 	a 	letter 	from the 	LTA
dated March 	12, 	1991 	to the 	District 	Superintendent
protesting publication of 	the 	names 	of 	the 	laid 	off
teachers 	in the 	local 	newspaper on March 6, 	1991. 	You
also 	allege that Ms. 	Nichols 	requested that you
immediately 	request 	a 	copy 	of 	the 	LTA protest 	letter
from 	Stein and 	"post 	it 	as 	it was 	supposed 	to 	have been
done."
6. 	On or about April 	23, 	1991, 	you spoke with Stein
in the 	school 	parking 	lot 	and 	asked him 	if 	LTA 	could do
anything about 	the 	teacher 	lay-offs. 	He responded 	that
"LTA could not 	touch 	the 	District, 	especially with
first-year teachers."

S-CO-267
Page 3
Based 	on 	the 	allegations 	set 	forth 	above 	and 	the 	reasons
contained in this 	letter and my letter of October 4, 	1991, 	I 	find
that you 	have 	failed to 	state 	a prima 	facie 	violation that 	the
Association denied 	you 	the 	right 	to 	fair 	representation
guaranteed by 	EERA 	section 	3544.9 	and 	thereby violated 	EERA
section 3543.6(b).
In order 	to 	state 	a prime 	facie 	case 	a 	Charging Party must 	allege
and 	ultimately 	establish 	that 	the 	conduct 	complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month period
immediately preceding the 	filing of 	the 	charge. 	(San Dieguito
Union High School 	District 	(1982) 	PERB Decision No. 	194.)
Government Code 	section 	3514.5(a) 	states 	in relevant part:
Any employee, 	employee organization, 	or
employer 	shall have 	the right to 	file an
unfair practice 	charge, 	except 	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, 	. . .
Your charge was 	filed with PERB on August 	30, 	1991, 	which means
that 	any 	alleged unfair practice 	should 	have 	occurred 	during 	the
six-month 	statutory period which began on February 26, 	1991. 	The
allegations 	contained 	in paragraphs 	1-4 	above describe 	conduct by
the Association which occurred prior to February 26, 	1991. 	This
is beyond the six-month statute of limitations, 	therefore, 	those
allegations 	contained 	in your 	charge must 	be 	dismissed.
The 	allegations 	contained 	in paragraphs 	5 	and 6 	above appear to
allege 	that 	the Association denied you 	the 	right 	to 	fair
representation guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby
violated EERA section 3543.6(b). 	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 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) 	(198.3) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.)

S-CO-267
Page 	4
Your charge 	fails 	to 	state 	sufficient 	facts 	from which 	it 	becomes
apparent 	how or 	in what 	manner 	the Association's 	action or
inaction was without a rational 	basis 	or devoid of 	honest
judgment. 	Therefore, 	your charge 	fails 	to 	state a prima 	facie
violation of 	the duty of 	fair representation and 	I 	am dismissing
the 	charge based 	on the 	facts 	and 	reasons 	contained 	in this
letter and my letter of October 4, 	1991.
I 	have 	also 	considered the 	notes 	and 	exhibits 	you 	submitted 	in
support of your amended 	charge. 	This 	material was 	not organized
and I was unable to determine what connection, 	if any, 	this
material 	had 	in reference 	to your charge. 	PERB 	Regulation 	32615
(California Code of Regs., 	tit. 	8, 	sec. 	32615) 	requires that your
charge 	contain a 	clear and 	concise 	statement 	of 	the 	facts 	and
conduct alleged to 	constitute 	an unfair practice. 	Your notes 	and
exhibits 	fail to meet this 	standard, 	therefore, 	the allegations,
if any, 	contained 	in them are also 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 Code of Regs., 	tit. 	8,
sec. 	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 Code of Regs., 	tit. 	8,
sec. 	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 Code 	of
Regs., 	tit. 	8, 	sec. 	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 Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample form.) 	The
document will 	be 	considered properly 	"served" 	when personally

S-CO-267
Page 5
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 	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 	Code of
Regs., 	tit. 	8, 	sec. 	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 W. 	SPITTLER
General 	Counsel
By Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Jack Cathrell
Kings/Tulare Uniserve Unit, 	Inc.-CTA
1844 	South Mooney Blvd., 	Suite L
Visalia, 	CA 93277
Ramon E. 	Romero
California 	Teachers 	Assn.
P. 	0. 	Box 921
Burlingame 	CA 	94011-0921

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
October 4, 	1991
Leticia 	Gonzalez
Re: 	Leticia Gonzalez v. 	CTA - Kings/Tulare Uniserve Unit. 	Inc.
Unfair Practice Charge No. 	S-CO-267
WARNING 	LETTER
Dear Ms. 	Gonzalez:
On August 	30, 	1991, 	you filed a charge that the Lindsay Teachers
Association1 (Association) 	violated Government Code 	section
3543.5(b) 	(the EERA). 	Specifically, 	you allege that the
Association violated 	it duty 	of 	fair 	representation by 	failing 	to
advocate 	for you during a meeting on March 	1, 	1991, 	when you were
informed 	that 	you would not 	be 	rehired 	for the 	1991-92 	school
year and by failing to respond to your letters of June 	12, 	1991
and August 	6, 	1991. 	My investigation revealed the 	following
facts.
Charging Party was 	employed, 	since March 	1990, 	as a probationary
Bilingual 	Education teacher at 	the 	second grade 	level 	at
Jefferson School 	for the 	Lindsay 	Unified 	School 	District.
On or about March 	1, 	1991, 	in the presence of Union
Representative, 	Harry Schein, 	Charging Party was notified by
School 	Principal, 	Mike McQuary that 	she would not be rehired 	for
the 	1991-92 	school year.
1Your charge named CTA - 	Kings/Tulare Uniserve Unit, 	Inc.
(CTA) 	as 	the 	employee organization. 	The Lindsay Teachers
Association 	(Association) 	is 	the 	exclusive representative 	of 	an
appropriate 	unit 	of 	certificated 	employees 	of 	the 	Lindsay 	Unified
School 	District. 	Kings/Tulare UniServe Unit 	is 	a 	subdivision of
the 	California Teachers Association which 	is 	an affiliate 	of 	the
Association. 	Since CTA is 	not the exclusive representative, 	your
charge against CTA must be dismissed. 	However, 	rather than have
you 	file 	an amended 	charge 	against the Association, 	your 	charge
will 	be 	treated 	as 	if 	it was 	originally 	filed 	against 	the
Association.

S-CO-267
Page 2
Charging Party contends 	they met 	twice on March 	1, 	during which
time 	Harry Schein did not 	advocate on her behalf. 	Charging Party
also 	contends 	that when she asked 	Schein 	if 	he had 	any questions,
his 	only response was 	"No".
During the week of March 	5, 	1991, 	Charging Party delivered a 	copy
of 	a letter to her District Grievance Representative, 	Mike Green.
The 	original 	letter was addressed to Principal McQuary, 	dated
March 2, 	1991. 	The 	letter requested that Principal 	McQuary
rescind his 	decision not 	to rehire Charging 	Party 	for the 	1991-
92 	school 	year. 	Charging Party did not receive a 	response 	from
Union Representative 	Green.
On June 	12, 	1991, 	Charging Party again sent copies of the March
2, 	1991 	letter to Union Representative Green along with copies 	of
evaluation/comments 	made by 	Principal 	McQuary 	and 	Charging
Party's responses 	to those evaluations. 	This 	letter requested
that Green review the 	information and 	let 	her 	know as 	soon as
possible 	in writing 	if he could help. 	Green did 	not 	respond 	to
this 	letter.
On August 6, 	1991, 	Charging Party wrote to Jack Cathrell of CTA-
Kings/Tulare 	Uniserve Unit, 	Inc. 	Charging Party expressed her
concern regarding Green's 	failure 	to 	respond 	to 	her 	request 	for
union assistance. 	Charging Party also 	sent to Cathrell 	copies 	of
her March 	2, 	1991, 	letter to Principal McQuary and her responses
to 	her 	end-of-the year evaluation.
Charging 	Party also 	requested 	that Cathrell 	review the
information and 	let 	her know what he 	could do 	to 	help 	resolve 	her
situation. 	Cathrell did 	not 	respond 	to Charging 	Party's 	letter
of August 6, 	1991.
Based on the allegations 	set 	forth above, 	I 	do not 	find that you
have 	established 	a prima 	facie 	violation 	that 	the Association 	has
violated 	its 	duty 	of 	fair 	representation.
Charging 	Party 	has 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Party 	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

S-CO-267
Page 3
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.
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.
The 	facts 	alleged 	in your 	charge 	fail 	to 	assert 	sufficient 	facts
from which 	it becomes 	apparent how or 	in what 	manner 	the
Association's 	action or inaction, 	by 	failing to 	advocate 	in your
behalf during the meeting on March 	1, 	1991, 	or Green and
Cathrell's 	failure 	to 	respond to your 	letters2 was 	without 	a
rationale basis 	or devoid of honest 	judgment. 	In the 	absence of
specific allegations 	of arbitrary, 	discriminatory, 	or bad faith
2Your charge alleges 	that during the week of 	March 	5, 	1991
you 	sent Green a 	copy of your 	letter to 	Principal 	McQuary dated
March 2, 	1991. 	However, 	your charge 	fails 	to allege any facts
that 	you requested a 	response 	from Green 	at 	that 	time.

S-CO-267
Page 4
denial 	of representation, 	you have 	failed to 	establish a prima
facie 	violation that 	the Association breached 	it 	duty 	to 	fairly
represent you.
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
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
October 15, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely	. . .,
Michael E. 	Gash
Regional Attorney
MEG:erc