California School Employees Association (Kotch) (PERB 0953E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARK A. 	KOTCH,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-541
PERB Decision No. 	953
October 5, 	1992
Appearances: 	Mark A. 	Kotch, 	on his own behalf; 	William C. 	Heath,
Attorney, 	for California School 	Employees Association.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on appeal 	by Mark A.
Kotch 	(Kotch) 	of 	a 	PERB 	Board agent's 	dismissal 	(attached hereto)
of 	his 	charge 	alleging that 	the California 	School 	Employees
Association 	(CSEA) 	violated 	section 	3543.6(b)'of 	the 	Educational
Employment Relations Act 	(EERA)1 by 	(1) 	failing or refusing to
represent 	and 	assist 	Kotch 	in a 	grievance 	involving 	Kotch's
1 E E R A 	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.
)
)
)
)
)
)
)
-======----------!

reemployment rights 	after a personal 	leave of 	absence; 	and 	(2)
requesting 	that 	the 	employer dismiss 	Kotch 	from 	employment.
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.2
The unfair practice charge in Case No. 	LA-CO-541 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
22Generally, 	a proof of 	service must be 	signed by an
individual over the age of 	18 who 	is 	not a party to the action.
(See PERB Regulation 32140.) 	Here, 	the proof of 	service attached
to Kotch's 	appeal 	is defective 	(i.e. 	Kotch signed the proof 	of
service). 	As CSEA filed a 	statement 	in opposition to Kotch's
appeal, 	the Board finds 	there is no prejudice to CSEA.
N2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 	19, 	1992
Mark A. 	Kotch
Re: 	DISMISSAL OF CHARGE AND REFUSAL 	TO 	ISSUE COMPLAINT
Unfair Practice Charge No. 	LA-CO-541, 	Mark Andrew Kotch v.
California 	School 	Employees 	Association
Dear Mr. 	Kotch:
The above-referenced charge was 	filed on June 20, 	1990. 	On
December 	21, 	1990, 	the charge was placed in abeyance and on
March 	5, 	1992, 	it was officially taken out of abeyance.1 You
allege 	that 	the 	California 	School 	Employees Association 	(CSEA,
union or Association) 	failed/refused to represent you 	in the
grievance process, 	failed to assist you in preparing a 	formal
grievance, 	and 	requested/sanctioned 	the Ocean View School
District 	(District) 	to take, 	or in taking, 	an arbitrary and
discriminatory 	personnel 	action 	against 	you by 	dismissing 	you
from employment. 	You allege 	that CSEA refused to protect
seniority within 	its 	rank and 	file by allowing 	the 	District 	to
replace you 	(a vested, 	permanent classified employee) 	with a
temporary 	employee. 	Further you allege that CSEA 	sought to 	change
the 	implementation and practice 	of 	the Collective 	Bargaining
Agreement 	(Agreement) 	and 	limit the rights 	of 	its 	membership.
This 	conduct 	is 	alleged to violate Government Code 	section
3543.6(a), 	(b) 	and 	(c) 	and section 3543.5(a) 	and 	(b) 	of the
Educational Employment Relations Act 	(EERA).2
1On February 24, 	1992 	(cert, 	mail), 	you filed a Notice of
Termination 	of 	Abeyance 	including 	exhibits 	and documents.
2This case is being viewed as 	involving, 	in part, 	the
union's 	duty of 	fair representation 	(DFR) 	under EERA. 	The duty
is 	expressed 	in EERA 	section 	3544.9. 	Violations 	of 	the DFR are
enforced 	through EERA 	section 	3543.6(b). 	EERA 	section 	3543.6(c)
involves 	a 	union's 	refusal 	or 	failure 	to meet and 	negotiate 	in
good 	faith with a public 	school 	employer. 	There are 	few facts 	in
this 	charge 	to 	indicate 	a violation of 	this 	type. 	For that
reason, 	this 	allegation will 	not be treated in detail.
Furthermore, 	an 	individual does 	not have 	standing to 	raise this
type of violation. 	Oxnard 	School 	District 	(Gorcey and Tripp)
(1988) 	PERB Decision No. 	667. 	Thus, 	this allegation is being
dismissed. 	In addition, 	as this 	charge is against CSEA, 	and a
union cannot 	commit 	a violation of 	EERA 	section 	3543.5(a) 	and
(b), 	this allegation is being dismissed as well.

Dismissal
LA-CO-541
June 	19, 	1992
Page 2
I 	indicated to you 	in my attached 	letter dated June 	11, 	1992 	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 June 	18, 	1992, 	the
charge would be 	dismissed.
I 	have 	not 	received 	either a 	request 	for withdrawal 	or an amended
charge. 	I 	am therefore dismissing the charge based on the 	facts
and reasons 	contained in my June 	11, 	1992 	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 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

Dismissal
LA-CO-541
June 	19, 	1992
Page 3
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 	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
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	William C. 	Heath, 	Deputy Chief Counsel, 	CSEA

STATE OF CALIFORNIA 	PETE WILSON, Governor
N
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 11, 	1992
Mark A. 	Kotch
Re: 	WARNING LETTER, 	Unfair Practice Charge
No. 	LA-CO-541, 	Mark Andrew Kotch v.
California 	School 	Employees 	Association
Dear Mr. 	Kotch:
The above-referenced charge was 	filed on June 20, 	1990. 	On
December 21, 	1990, 	the charge was placed in abeyance and on
March 	5, 	1992, 	it was officially taken out of abeyance.1 You
allege 	that 	the California 	School 	Employees Association 	(CSEA,
union or Association) 	failed/refused to represent you 	in the
grievance process, 	failed to assist you 	in preparing a 	formal
grievance, 	and requested/sanctioned 	the 	Ocean View School
District 	(District) 	to take, 	or in taking, 	an arbitrary and
discriminatory personnel 	action 	against 	you 	by 	dismissing 	you
from 	employment. 	You allege 	that CSEA refused 	to protect
seniority within 	its 	rank and 	file by 	allowing 	the 	District 	to
replace you 	(a vested, 	permanent classified employee) 	with a
temporary employee. 	Further you allege 	that CSEA 	sought 	to 	change
the 	implementation 	and practice 	of 	the Collective 	Bargaining
Agreement 	(Agreement) 	and 	limit the rights 	of 	its membership.
This 	conduct 	is 	alleged to violate 	Government Code 	section
3543.6(a), 	(b) 	and (c) and section 3543.5(a) 	and 	(b) 	of the
Educational Employment Relations Act 	(EERA).
2	10n February 24, 	1992 	(cert, 	mail), 	you filed a Notice of
Termination of Abeyance 	including 	exhibits 	and 	documents.
2This case is being viewed as 	involving, 	in part, 	the
union's duty of 	fair representation 	(DFR) 	under EERA. 	The duty
is 	expressed 	in EERA 	section 	3544.9. 	Violations 	of 	the 	DFR are
enforced 	through EERA 	section 	3543.6(b). 	EERA 	section 	3543.6(c)
involves 	a union's 	refusal 	or 	failure 	to 	meet and negotiate 	in
good 	faith with a public 	school 	employer. 	There 	are 	few facts 	in
this 	charge 	to 	indicate 	a violation of 	this 	type. 	For that
reason, 	this allegation will not be treated 	in detail.
Furthermore, 	an individual does 	not have 	standing to 	raise this
type 	of violation. 	Oxnard 	School 	District 	(Gorcey 	and 	Tripp)
(1988) 	PERB Decision No. 	667. 	Thus, 	this allegation is being

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 2
dismissed. 	In addition, 	as this charge is 	against CSEA, 	and a
union cannot commit a violation of 	EERA 	section 	3543.5(a) 	and
(b), 	this allegation is being dismissed as well.
My 	investigation and the 	charge 	reveal 	the 	following 	facts. 	You
were 	employed 	by 	the 	District 	as 	a permanent/classified 	gardener
from on or about April 	30, 	1984 to 	in or about June, 	1990. 	You
were a member of CSEA for more than five years. 	On June 	13,
1985, 	you injured your left wrist in the 	course of your
employment. 	On or about August 	25, 	1989, 	you requested an
unpaid, 	personal 	leave of 	absence 	from your position as 	a
gardener 	in 	(Grounds) 	Maintenance and Operations 	in order to
complete 	the requirements 	for an elementary 	credential 	(by
student teaching). 	The proposed 	leave period was 	from January 	2,
1990 through June 	1, 	1990. 	On or about August 30, 	1989, 	Asst.
Supt. 	Joseph D. 	Condon advised you 	in writing in part 	that 	"Under
the leave provisions 	of 	the 	...agreement, 	you have the right to
return to your position if 	it 	is 	unfilled, 	or to be placed on the
39-month reemployment 	list 	if 	no position 	is 	available." 	On or
about September 6, 	1989, 	Dick Calister, 	Director of Classified
Personnel, 	advised you in writing, 	in part, 	that 	"Provided a
vacancy 	exists 	in your classification at 	the 	expiration of 	your
leave, 	you have the right to return to your position at the 	same
step but with a 	recomputed anniversary date." 	(emphasis 	in
original.) 	The Board approved your request 	on September 	12,
1989.
You contend that based on past practice, 	there was 	no possibility
of 	a permanent 	classified 	employee 	being displaced while 	on a
personal/unpaid leave. 	Further, 	you and Robert Buss, 	Maintenance
and Operations 	Supervisor, 	had a hostile work relationship 	and he
harassed you at work on 	several 	occasions. 	You are 	a 	Caucasian
and 	the 	only member of 	that 	race to take 	a personal/unpaid 	leave
from a 	gardening position while 	you were 	employed 	at 	the
District. 	On March 	15, 	1990, 	while on leave, 	you executed the
Stipulations with Request 	for Award 	form 	(85 ANA 	157756) 	with the
Workers' 	Compensation Appeals 	Board. 	You were the only gardener
to 	settle 	such a 	claim while out on 	leave, 	during the time you
worked 	for the 	District. 	You 	contend 	that based 	on the
concurrent recommendations of Mr. 	Buss of the District, 	and Mr.
Parks 	for CSEA, 	you were 	replaced with a 	temporary 	employee 	on or
about April 1, 	1990.
On April 	9, 	1990, 	you wrote to Scott Shook, 	Director of
Maintenance 	and Operations, 	and 	indicated your 	intent 	to 	return
to work. 	You also made 	your 	intentions 	and 	expectations 	known 	in

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 3
your letter to Mr. 	Buss on May 	5, 	1990. 	Mr. 	Buss wrote to you on
May 21, 	1990 	and attached copies of Article 	7, 	section 7.9.3.43
of the 	1988-91 Agreement 	(effective July 	1, 	1988 	through June 	30,
1991) 	between the District and CSEA, 	and Personnel 	Commission
Rule 80.900.2.4 He advised you, 	in part, 	that all positions 	of
gardener were 	filled 	and 	that 	you 	may 	request 	that 	your 	name 	be
placed on the 	Reinstatement 	List. 	Upon there being 	an opening,
you would be 	considered along with other applicants, 	in the order
of eligibility/seniority, 	up to 39 months. 	On May 26, 	1990 you
wrote 	to Mr. 	Buss 	and 	indicated 	in part that 	the only reason you
took the 	leave was 	because you 	had a 	verbal 	agreement with Scott
Shook, 	that you would have a 	job at 	the 	conclusion of your 	leave.
You argued 	that 	a vacancy did 	in 	fact 	exist 	in Gardening. 	This
is 	because 	Scott 	Ingland was 	employed 	as 	a 	gardener although he
never took a written test, 	was 	incapable of taking one, 	and was
therefore unqualified 	for his 	current position. 	You 	also
believed that Mr. 	Buss was 	settling a personal 	grudge. 	You also
indicated that your 	letter 	initiated 	the grievance procedure, 	and
you 	forwarded a 	copy to CSEA, 	requesting their assistance 	as
well.
In your May 24, 	1990 	letter to your attorney, 	Wendy Hayward-
Marshall of Rose, 	Klein & Marias, 	you indicated, 	in part, 	"If
Ocean View feels 	my disability 	rating precludes 	a 	continuation of
employment, 	then I 	should at least be entitled to due process."
You 	indicated that 	"This 	latest action 	is 	part of 	a pattern of
harassment 	I've 	experienced 	since 	I 	filed 	the 	claim." 	You noted
that 	two 	other 	classified 	employees 	previously 	took unpaid
personal 	leaves 	from the District 	and were 	able 	to 	return. 	A
female gardener was 	permitted 	to 	miss 	a 	third 	consecutive 	summer
of work, 	but was 	hired back. 	A male 	custodian was permitted to
finish a 	six-month 	jail 	term and was 	also hired back. 	To your
knowledge, 	no 	certificated 	employee had been denied 	a 	rehire 	at
the 	end of 	a 	leave. 	You 	felt you were being 	retaliated 	against
3Section 	7.9.3.4 	states 	that 	"The 	granting of 	a 	leave 	of
absence without pay 	gives 	to 	the 	employee 	the right 	to 	return to
his/her position 	(same 	step 	- 	but with 	a 	recomputed 	anniversary
date) 	at the 	expiration of his/her 	leave provided a vacancy
exists 	in his/her classification."
4Rule 	80.900.2B 	states 	that 	"The 	granting of 	a 	leave 	of
absence without pay 	gives 	to 	the 	employee 	the 	right 	to 	return to
his/her position 	(same 	step--but with 	a 	recomputed 	anniversary
date) 	at 	the 	expiration of 	the 	leave provided a vacancy exists 	in
the 	classification the 	employee held 	at 	the 	time 	leave was
granted."

Warning 	Letter
LA-CO-541
June 11, 19 92
Page 4
by 	the 	District 	for having 	filed 	an 	injury 	claim 	and 	that 	this
was 	a punitive 	action taken by 	the 	District 	"to 	settle 	a personal
bias, 	and/or grudge." 	In addition, 	you felt that your leave was
distinguishable 	(possibly 	from 	the 	other 	leaves) 	as 	you 	settled
the workers' 	compensation case 	and 	completed work on a 	teaching
credential. 	A copy of your 	letter was 	sent 	to CSEA Field Rep.
Michael Parks.
By your letter dated June 	7, 	1990 to Mr. 	Buss, 	you filed a
grievance 	indicating that 	(1) 	the 	District violated Article 	7,
section 	7.9.3.4 	of 	the Agreement 	by 	hiring 	a 	permanent
replacement 	for you while you were out on 	leave. 	You 	indicated
that neither the previous, 	nor the present Classified Personnel
Directors 	ever 	construed 	this 	section to mean that 	"the 	District
has 	a right to deprive an employee of 	employment at the
conclusion of a personal 	unpaid 	leave, 	particularly where 	the
employee 	indicates 	a desire 	to 	return to 	employment and 	complys
(sic) 	with Sections 	7.9.4.2 and 7.9.4.3 .5"; 	that 	(2) 	the
personnel action 	is 	an abuse of discretion because 	it was
arbitrary and capricious. 	It 	is 	also a thinly veiled punitive
action, 	taking into account the past practice of the District,
particularly the 	intervention on behalf 	of 	Sabino 	Perez 	at 	the
end of his 	leave; 	and that 	(3) 	the action subverts 	the 	intent of
Article 	19, 	section 	19.7.1 	by in effect 	laying off the grievant,
while 	funding 	and work are 	still 	available.6
In your June 	15, 	1990 	letter to Dick Calister, 	of the District's
Personnel 	Commission regarding your PERS 	167 	form 	(Report of
Status Change or Separation), 	you indicated in part that you
returned to work on June 	4, 	1990 	only to be 	told that there was
no work available 	for you. 	You 	indicated that 	the provisions 	of
your 	leave did not 	contemplate 	the 	end of your 	employment 	as 	a
gardener, 	and reemployment 	"at whatever 	(if any) 	job was
available, when 	(you) 	returned... 	(You) 	had a reasonable
expectation of 	returning 	to 	employment 	as 	a Gardener based 	on the
common 	interpretation of 	the 	CSEA agreement. 	Past practice 	by
5Section 	7.9.4.2 	requires 	an 	employee 	to 	give 	notification
no 	less 	than 	15 days prior to the expiration of the 	leave, 	that
he or 	she 	intends 	to return to his 	or her position. 	Section
7.9.4.3 	makes 	failure 	to 	report 	for duty within 	3 	working days
after 	a 	leave 	has 	been cancelled/expired 	an abandonment 	of 	the
position, 	and the employee 	subject to termination.
6Section 	19.7.1 	provides 	in part 	that 	layoffs 	shall 	only
occur for a 	lack of work or 	lack of 	funds.

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 5
the district 	(OVSD) 	gives 	no 	indication, 	nor offers 	any precedent
for the type of personnel 	action taken against 	(your) 	interests."
In a letter dated June 	12, 	1990, 	to CSEA Field Rep. 	Michael
Parks, 	Joseph Condon, 	Asst. 	Supt., 	disagreed with CSEA's position
that you were 	entitled to 	a 	position 	in the 	classified 	service.
Supt. 	Condon pointed out that on August 30, 	1989, 	you were
advised you had the right 	to 	return to your position 	if 	it was
unfilled, 	which was 	consistent with 	the 	Collective 	Bargaining
Agreement and the Personnel Commission's 	Rules. 	He 	also pointed
out that on September 6, 	1989, 	you were advised by the Personnel
Commission 	that 	you 	could 	return 	to 	your position provided 	a
vacancy existed 	in your 	classification, 	at 	the 	expiration of 	your
leave. 	The District 	firmly maintained that 	at 	the 	end of 	your
leave, 	there was 	no vacancy in the 	classification/position of
Gardener. 	The 	District disagreed with 	CSEA's 	position that you
were 	entitled to 	return to 	employment 	as 	a 	Sweeper Operator as
this was 	not your classification at 	the 	time the 	leave was
granted.7 Also, 	there was 	no vacancy 	in the 	Sweeper Operator
classification 	since 	the 	District 	long 	ago 	decided 	not 	to 	fill
said position when it became vacant. 	The 	District maintained that
you were 	only 	entitled to 	have your 	name placed 	on a 	list which
would provide you reemployment as 	a Gardener, 	or a 	lower related
classification, 	without 	taking a Merit 	System examination.
By letter dated June 	15, 	1990, 	Mr. 	Parks provided you a copy of
the District's negative response. 	Mr. 	Parks 	advised you he
intended 	to 	argue your 	"reemployment" 	right to 	a vacancy as
opposed to 	your right 	to 	be 	considered 	for 	"reinstatement."
Reemployment rights 	guarantee you a position 	if 	one became
vacant. 	Reinstatement would 	only 	give you 	consideration along
with other eligible 	candidates. 	Both rights 	require 	that 	there
be a vacancy.
You 	indicate that this 	case 	involves 	the District's 	June 	4, 	1990
personnel action, 	the 	effective date 	of what you contend was 	your
dismissal. 	You notified the 	District 	of 	your 	intent 	to 	return to
work on April 	9 and May 9, 	1990. 	On May 24, 	1990, 	you received
an advance against your workers' 	compensation 	settlement and Mr.
Buss' 	termination notice. 	You also notified your attorney and
CSEA of this matter. 	On May 26, 	1990, 	you began the grievance
procedure. 	Thereafter, 	you spoke to Mr. 	Parks, 	and
representation 	for you by CSEA was 	denied based 	on 	a 	conflict 	of
interest. 	You contend that CSEA was 	in agreement with Mr. 	Buss'
7I 	note 	that 	Sweeper Operator 	and Gardener 	are 	both part 	of
the Gardening Series.

Warning 	Letter
LA-CO-541
June 	11, 	1992
Page 6
recommendation. 	You 	also 	indicate 	that 	CSEA urged 	the 	District
to 	fire you. 	A May 31, 	1990 	conference was 	set up. 	Thereafter,
you and Mr. 	Parks 	conferred at CSEA's Orange, 	California office
and Mr. 	Parks agreed to represent you. 	But on June 3, 	19 90, 	he
telephoned 	you 	and 	again denied 	representation, 	citing 	a 	conflict
of 	interest. 	When you attempted to 	return to work after 	your
approved/unpaid leave of absence 	(1/1/90 	through 	6/1/90), 	you
were 	denied work.8 You 	filed a 	grievance 	on or 	about 	June 	7,
1990. 	You 	contend that you met your obligations. 	You thought
you would return to 	the 	same position with 	a 	recomputed
anniversary date. 	You notified 	the union that 	you believed 	the
District's 	action was 	illegal, 	discriminatory, 	and in violation
of the collective bargaining agreement. 	You contend, 	in part,
that your unpaid 	leave of 	absence does 	not 	create 	a 	vacancy 	and
that 	you were dismissed without due process. 	You believe 	you
were dismissed 	in retaliation 	for 	settling a workers'
compensation claim against the District. 	Furthermore, 	you argue
that 	no precedent 	exists 	to 	fire a 	classified employee who was 	on
an unpaid 	leave. 	The 	contract has 	never been used 	to displace 	a
gardening 	series 	employee, 	or any other employee. 	You contend
that 	CSEA denied you representation during 	the 	grievance process,
citing a 	conflict of 	interest. 	Also, 	you contend the District
took the 	action at 	the urging of CSEA. 	According to Article 	5,
section 	5.8 	of 	the Agreement, 	a grievant 	shall be 	entitled on
request 	to 	representation by CSEA at 	all 	grievance 	meetings
beyond the 	first 	informal 	level. 	You 	contend that 	the personnel
action recommended by CSEA was 	arbitrary, 	capricious 	and
discriminatory under State and Federal 	Civil 	Rights 	Laws, 	and the
California Labor Code. 	Furthermore, 	you reached a 	negotiated
settlement with the District through the 	Dept, 	of 	Fair Employment
and Housing, 	which 	settlement was 	also approved by 	the 	Workers'
Compensation Appeals 	Board.
You 	argue 	that 	CSEA 	recommended 	an 	arbitrary 	and 	capricious
personnel 	action. 	You contend that 	the 	main reason Article 	7,
section 	7.9.3.4 	was 	never before 	used 	to 	displace 	an 	employee 	is
because 	its 	language, 	"provided a vacancy 	exists 	in his/her
position", 	is poorly written and provides 	insufficient
information 	should an employee be displaced. 	You 	contend 	it
provides 	no 	authority 	for the District 	to place 	a 	separated
employee 	on any type of 	list. 	You point 	out 	that 	section 	7.3.3.6
(industrial 	accident or 	illness 	leave) 	allows 	an employee 	to be
placed on a 	reemployment 	list 	for 	39 	months 	when all 	available
leaves 	of absence have been exhausted, 	and 	the 	employee 	is not
8 On June 4, 	1990, 	you, 	Mr. 	Parks and Mr. 	Buss met informally
at 	7:35 	a.m. 	to discuss 	your 	employment 	status.'

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 7
medically able 	to 	assume 	the duties 	of his/her position.
Similarly, 	section 	7.9.4.4 	(conditions 	of 	return 	from 	leave)
provides 	in part 	that when an employee's 	classification 	is
abolished during the absence, 	he/she 	shall 	be 	laid 	off 	for 	lack
of work and placed on the 	reemployment 	list 	for 	the 	class.9 	You
also 	contend 	that 	the 	California 	Education 	Code 	does 	not
contemplate 	that 	a 	temporary 	employee 	can block 	the 	return 	to
employment of a permanent classified employee. 	At the time of
your return, 	you contend that Scott 	Ingland, 	who was 	transferred
onto your crew, 	was 	still probationary,10 and therefore, 	as 	only
four permanent positions were occupied, 	there was 	one vacancy
(excluding Mr. 	Ingland's 	slot). 	Therefore, 	you see CSEA's
recommended course of 	action to 	the District 	as 	taking 	away your
due process 	rights 	under Education Code 	sections 	45302 	(demotion
and 	removal 	from permanent 	classified 	service 	for 	reasonable
cause) 	and 45304 	(written charges 	for suspension, 	demotion, 	or
dismissal).
9
You point to the case of Sabino Perez, 	Jr., 	a custodian and a
permanent 	classified employee at Meadow View School. 	Although he
had no 	formal authorization to be absent, 	his 	leave application
was 	denied, 	yet he was permitted to 	serve a 	jail 	term of 	about 	18
weeks 	and was 	then reemployed. 	You contend that Mr. 	Perez made a
deal with Mr. 	Buss to circumvent the District and the collective
bargaining agreement. 	No effort was made to replace Mr. 	Perez
even though you believe there was 	good cause 	as 	he was 	the only
classified 	employee at his 	site.11 You argue 	that you were 	not
9I 	disagree with your assumptions 	about 	section 	7.9.3.4 	for
several 	reasons. 	First the 	language 	in 	section 	7.9.3.4 	(part 	of
the 	conditions 	for granting leave without pay) 	has 	not been
declared 	invalid by 	court decision. 	Also, 	the 	sections 	at 	7.9.4
(conditions 	of return 	from leave) 	spell 	out 	the 	conditions 	for
returning 	for those 	on personal 	leave without pay. 	The 	sections
under 	7.9.4 	supplement 	those 	under 	7.9.3 	(conditions 	for 	granting
leave).
10Based on Article 	7, 	section 	7.1.5 	(leaves 	for probationary
employees) 	and Education Code 	45301 	(both 	sections 	refer to 	a 	six
month probation), 	as you were on leave for 5 months, 	you argue
that Mr. 	Ingland was 	not permanent.
n This 	example will 	not 	show disparate 	treatment by 	the
District 	since Mr. 	Perez was 	not a gardener and you have 	not
-	shown 	facts 	indicating 	that under 	circumstances 	substantially
similar to yours, 	that he was allowed to return. 	Even if 	this
did 	show disparate treatment by the District, 	you have 	alleged no

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 8
displaced due 	to business 	necessity but 	that Mr. 	Buss 	had a
hostile 	relationship with 	you. 	You 	contend 	that 	CSEA 	improperly
permitted Mr. 	Buss, 	without a showing of business 	necessity, 	to
retaliate against you 	for personal 	reasons.12
facts 	showing CSEA's causal^ role regarding Mr. 	Perez, 	as compared
to your 	situation.
Next, 	you contend that CSEA, 	through Mr. 	Parks, 	recommended a
discriminatory personnel 	action against 	you. 	Looking 	at 	the past
practice of the District, 	you believe it 	is 	apparent that CSEA
was 	in 	collusion with 	the 	District 	and 	that 	section 	7.9.3.4 	of
the Agreement 	"is merely a pretext to discriminate, 	as 	expressly
prohibited by California Labor Code 	132(a)."13
You 	allege CSEA agrees with the 	idea 	that 	your 	supervisor had 	a
right 	to 	retaliate 	against you, 	someone your 	supervisor did not
personally care 	for. 	You 	contend CSEA 	"got 	in bed" 	with 	the
12You have offered no 	facts 	to 	support an unlawful 	motive or
desire by CSEA to retaliate against you, 	or allow the 	District to
retaliate against you. 	Also, 	based on the 	facts presented, 	the
union did not 	cause Mr. 	Buss' 	alleged hostility toward you.
13There 	are no 	facts presented 	(beyond your 	conclusions) 	to
support 	the proposition that 	CSEA acted 	in collusion with 	the
District and/or urged the District to 	fire you or let you go. 	In
fact, 	it also appears that around June 	1990, 	CSEA attempted to
obtain employment 	for you at 	the 	District 	in another
classification 	(Sweeper Operator) 	until 	a vacancy occurred 	in
your gardening classification. 	It 	appears 	in this 	matter that
CSEA has 	opted 	for providing work 	for 	one 	of 	it's 	bargaining 	unit
members, 	instead of 	stopping 	the arguable vacancy 	created by your
voluntary leave, 	from being filled. 	Next, 	it is 	arguable that
CSEA's 	failure 	to 	argue 	that 	you 	suffered 	retaliation by 	the
District 	for filing a worker's 	compensation claim, 	is 	not
improper 	since your exclusive 	remedy 	for 	this 	type 	of 	claim 	is
indicated 	in Labor Code 	section 	132a. 	You were 	represented by
worker's 	compensation counsel 	and the 	union does 	not 	control 	the
exclusive means 	to obtain a remedy 	in 	such a matter. 	Thus, 	it
appears 	CSEA does 	not owe you a duty of 	fair representation
(DFR). 	See San Francisco Classroom Teachers Association. 	CTA/NEA
(Chestangue) 	(1985) 	PERB Decision No. 	544 and California FAculty
Association 	(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H.

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 9
District 	on the 	idea 	that 	they14 were 	above 	the 	law and 	could
discriminate 	against 	employees 	pursuing 	industrial 	injury 	claims.
You 	filed a race discrimination charge 	at 	the Dept, 	of 	Fair
Employment 	and 	Housing15	15 and 	a 	complaint with the Workers'
Compensation Appeals 	Board alleging 	a 	violation 	of 	Labor 	Code
section 	132a. 	The only other gardeners 	to 	take 	leaves 	during 	the
period you were 	employed 	at the 	District were 	Hispanic. 	You
indicate 	that you were the only gardener to be displaced. 	You
indicate 	in part 	that 	"CSEA apparently 	thought 	race 	based
personnel policy was 	consistent with 	its 	mission as 	bargaining
representative."
Next, 	you argue that 	"It does 	not matter 	if CSEA 	intended 	to
discriminate against KOTCH, 	only the 	effect of 	the 	controversial
personnel action can be weighed." 	(sic) 	You believe your due
process 	rights 	under Education Code 	sections 	45302 	(demotion and
removal 	from permanent 	classified 	service) 	and 	45304 	(written
charges 	for suspension, 	demotion or dismissal) 	were taken away
since 	CSEA would 	not 	file 	a 	grievance 	or 	represent 	you 	at 	the
administrative 	level. 	You contend you were 	successful 	in
litigating and now CSEA 	"must 	assume 	liability 	for 	the 	fruits 	of
their actions."
By your 	letter dated February 25, 	1992, 	you advised CSEA that you
learned on February 	21, 	1992 	that the District hired a gardener
for an open position on or about December 	1, 	1990. 	You claimed
that your name 	should be on a reemployment 	list, 	and you asked
why you were 	not 	notified 	of 	the position 	and what CSEA 	intended
to do 	about 	it. 	In 	several 	letters 	exchanged by you and CSEA 	in
March 	1992, 	issues 	involving your reemployment rights 	versus 	your
reinstatement/restoration rights were discussed. 	In your March 	9,
1992 	letter to CSEA, 	you indicate in part, 	"It is my fervent hope
that 	further 	litigation can be 	avoided, 	including any additional
Unfair Labor Practice 	charges 	against 	CSEA." 	These 	allegations
have not been made part of this 	unfair practice 	charge. 	If you
wish to 	formally raise this 	conduct, 	you may do 	so by 	filing
another unfair practice 	charge.
14It 	is 	not clear who 	"they" 	are but 	I 	assume you are
referring to 	the 	District.
15You obtained 	a negotiated 	settlement 	of 	$12,000 	through
the 	Department 	of 	Fair Employment 	and 	Housing 	on or 	about
October 	11, 	1991. 	You also executed a Workers' 	Compensation
Appeals 	Board Compromise and Release at 	that time.

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 	10
Based on the above 	facts, 	the 	charge 	and Notice of 	Termination of
Abeyance 	fail 	to 	state a prima 	facie violation of 	EERA.
You 	have 	alleged 	in part 	that 	the 	exclusive 	representative 	denied
you 	the 	right 	to 	fair representation 	guaranteed 	by 	EERA 	section
3544.9 	and thereby violated 	section EERA 	3543.6(b). 	The duty of
fair representation 	(DFR) 	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.
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.
You 	have 	alleged 	that 	CSEA would 	not 	represent 	you 	or 	assist 	you
in your grievance against the District, 	and that 	it

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 	11
requested/sanctioned 	the 	District's 	action 	leading 	to 	the 	loss 	of
your position. 	You have 	not 	clearly 	and 	concisely 	alleged 	facts
or 	shown that 	the union acted 	in an arbitrary, 	discriminatory 	or
bad 	faith manner. 	You were 	advised prior to your 	leave 	that 	you
could 	return 	"provided a 	vacancy 	exists 	in 	(your)
r	classification." 	The Agreement 	between CSEA6 and 	the 	District,
as well as 	the Personnel Commission's 	Rules 	support this. 	CSEA
did 	not 	contradict 	this 	by promising 	you 	that 	your 	job would 	not
be 	filled before 	the 	end of 	your 	leave. 	In possibly 	assisting
one 	of 	its 	other bargaining unit members 	to 	obtain 	a 	gardening
slot, 	and in not pursuing your grievance, 	CSEA was 	not acting
without 	a 	rational 	basis. 	You have 	not 	shown CSEA 	acted with 	an
unlawful motive or 	in bad faith. 	Also, 	there are 	insufficient
facts 	to 	show that CSEA acted 	in a discriminatory way 	or 	in
unlawful 	collusion with the District. 	Further, 	my conclusions 	are
supported by footnotes 	11, 	12 and 	13 above.
Mere negligence or poor 	judgment does 	not 	constitute 	a breach 	of
the union's 	duty. 	Pleading or raising a bare allegation without
sufficient 	supporting 	facts 	is 	insufficient 	for purposes 	of
alleging 	a prima 	facie case. 	California 	State 	University
(Pomona) 	(1988) 	PERB Decision No. 	710-H. 	Furthermore, 	PERB
regulation 32615 	(California Code of Regulations, 	title 	8,
section 32615), requires that a charge contain "a clear and
concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to 	constitute
an unfair practice." 	(emphasis 	added.) 	The Charging 	Party must
allege with specificity who, 	what, 	when, 	where and how the
union's 	activities were arbitrary, 	discriminatory or 	in bad
faith. 	Mere 	speculation, 	conjecture or legal conclusions 	are
insufficient.
16It 	is 	also noteworthy that Article 	15, 	section 	15.1
provides 	that 	"It 	is 	understood and 	agreed 	that 	the 	specific
provisions 	contained 	in this Agreement 	shall prevail 	over
District practices, 	policies, 	rules and regulations, 	and
procedures 	and 	over 	state 	laws 	to 	the 	extent 	permitted 	by 	state
law, 	and that 	in the absence of 	specific provisions 	in this
Agreement, 	such practices 	and procedures 	are discretionary with
the 	District." 	Section 	7.9.3.4 	permitted you to 	return only 	if 	a
vacancy 	existed 	in your 	classification. 	The 	language 	in 	this
section 	is 	paramount over other practices 	such as 	the 	one 	you
suggest, 	that 	no 	other gardener had been 	similarly displaced.
The 	parties 	to 	the Agreement 	could properly 	advise 	you 	before
your 	leave 	of 	Section 	7.9.3.4 	and 	then 	expect 	its 	full 	meaning 	to
be 	given effect.

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 12
Next, 	you allege 	that CSEA caused or attempted to 	cause 	the
District 	to violate 	EERA 	section 	3543.5 	in violation of 	EERA
section 3543.6(a). 	You have not 	stated a prima 	facie violation
of 	EERA 	section 	3543.6(a). 	You have not 	clearly and 	concisely
alleged 	facts 	to 	show that 	CSEA 	caused 	or 	attempted 	to 	cause 	such
a violation. 	Based on the above 	facts, 	it does 	not appear that
the 	union tried to 	make 	the 	District 	commit an unlawful
reprisal/discrimination against you. 	It appears 	the union's
motives 	and actions were not 	inappropriate. 	Also, 	the 	necessary
elements 	for 	such a violation are not present. 	To demonstrate 	a
reprisal/discrimination violation of EERA 	section 	3543.5(a), 	the
charging party must 	show that: 	(1) 	the 	employee 	exercised 	rights
under the EERA, 	(2) 	the employer had knowledge of 	the 	exercise of
those rights, 	and 	(3) 	the employer imposed or threatened to
impose reprisals, 	discriminated or threatened to discriminate, 	or
otherwise 	interfered with, 	restrained or 	coerced 	the 	employees
because of 	the 	exercise of 	those rights. 	Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.
Although 	the 	timing of the 	employer's 	adverse 	action 	in 	close
temporal proximity to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between the adverse 	action and
the protected 	conduct. 	Moreland 	Elementary 	School 	District
(1982) 	PERB Decision No. 	227. 	Facts 	establishing one or more of
the 	following additional 	factors must also be present: 	(1) 	the
employer's disparate treatment of the employee, 	(2) 	the
employer's 	departure 	from 	established procedures 	and 	standards
when dealing with the employee, 	(3) 	the employer's 	inconsistent
or contradictory justifications 	for its actions, 	(4) 	the
employer's 	cursory 	investigation of 	the 	employee's 	misconduct,
(5) 	the employer's 	failure to offer the 	employee 	justification at
the time 	it took action or the offering of 	exaggerated, 	vague, 	or
ambiguous 	reasons, 	or 	(6) 	any other facts which might demonstrate
the 	employer's 	unlawful motive. 	Novato 	Unified 	School 	District,
supra: 	North Sacramento School 	District 	(1982) 	PERB Decision
No. 	264. 	As presently written, 	this 	charge fails 	to demonstrate
any 	of 	these 	factors 	and 	therefore does 	not 	state 	a 	prima 	facie
violation of section 3543.S(a).1 J
17It 	appears 	that you have 	not 	shown that you 	engaged 	in
protected/union activity. 	PERB has 	held that 	filing 	an
individual 	complaint with the Calif. 	Dept, 	of Fair Employment and
Housing based on age, 	race, 	sex, 	or other prohibited

Warning 	Letter
LA-CO-541
June 11, 	1992
Page 	13
discrimination, 	is 	not protected conduct. 	University of
California 	(1987) 	PERB Decision No. 	615-H. 	Similarly, 	your
filing a workers' 	compensation claim is 	not protected 	conduct
under EERA. 	Retaliation by the 	District based 	on the workers'
compensation 	claim 	is 	properly handled 	under 	the 	Labor 	Code
statutes.
Next, 	based on the above, 	you have not clearly and concisely
alleged 	facts 	to 	show that 	the 	union caused 	or attempted 	to 	cause
the District 	to 	commit an unlawful 	unilateral 	change. 	The
actions 	and motives 	of CSEA 	in this 	matter do 	not 	appear 	to 	be
inappropriate. 	Also, 	the elements 	for an unlawful unilateral
change 	are not present. 	In determining whether 	a 	party has
violated 	section 3543.5(c) 	of EERA, 	the PERB utilizes 	either the
"per 	se" 	or 	"totality of the conduct" 	test, 	depending on the
specific 	conduct 	involved 	and 	the 	effect 	of 	such 	conduct 	on 	the
negotiating process. 	Stockton Unified 	School 	District 	(1980)
PERB Decision No. 	143. 	Unilateral 	changes 	are considered 	"per
se" 	violations 	if 	certain criteria are met. 	Those criteria are:
(1) 	the employer 	implemented a 	change 	in policy concerning 	a
matter within the 	scope of representation, 	and 	(2) 	the 	change was
implemented 	before 	the 	employer 	notified 	the 	exclusive
representative 	and 	gave 	it 	an opportunity 	to 	request
negotiations. 	Walnut Valley Unified School 	District 	(1981) 	PERB
Decision No. 	160; 	Grant Joint Unified High School 	District 	(1982)
PERB Decision No. 	196. 	In this 	case, 	section 7.9.3.4 	appears 	to
have 	been appropriately 	applied. 	In Marysville 	Joint 	Unified
School District 	(1983) 	PERB Decision No. 	314, 	the Board indicated
that 	established policy 	can be 	embodied 	in the 	terms 	of 	an
agreement 	(as here), 	or where the contract is ambiguous or silent
regarding a policy, 	it may be 	ascertained by 	looking at past
practice. 	But where the contractual 	language 	is 	clear and
unambiguous 	(as 	in section 7.9.3.4 here), 	it 	in not necessary to
go beyond the plain 	language of 	the 	agreement 	to 	obtain 	its
meaning. 	As 	in Marysville. 	it does 	not appear that the District
took action 	that was 	inconsistent with 	its 	contractual
obligations. 	Even if the District chose not 	to 	enforce 	its
contractual 	rights 	in the past 	(fill 	a position while 	the
employee was 	out on an approved leave), 	does 	not mean it was
forever prevented from doing so. 	Thus, 	you have not 	shown a
unilateral 	change 	violation.
For these reasons, 	your 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

8
Warning 	Letter
LA-CO-541
June 11, 	1992
Page 	14
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 	respondent1 	an	18 	d
the 	original proof 	of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge 	or withdrawal 	from 	you 	before
June 	18, 	1992, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney
18William C. 	Heath, 	Deputy Chief Counsel, 	CSEA.