California Faculty Association (Bacon) (PERB 1051H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LEONARD A. 	BACON,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case No. 	LA-CO-42-H
PERB Decision No. 	1051-H
August 	16, 	1994
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Appearances; 	Leonard A. 	Bacon on his 	own behalf; 	Rothner,
Segall 	& Bahan by Glenn Rothner, 	Attorney, 	for California Faculty
Association.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	filed by Leonard A. 	Bacon
(Bacon) 	of a Board agent's dismissal 	(attached hereto) 	of his
unfair practice 	charge. 	In his 	charge, 	Bacon alleged that 	the
California 	Faculty Association 	(CFA) 	denied him the 	right 	to
fair 	representation 	in violation of 	section 3571.1 	of 	the Higher
Education Employer-Employee 	Relations Act 	(HEERA).1
THEERA 	is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3571.1 states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(e) 	Fail 	to represent 	fairly and impartially
all 	the 	employees 	in the unit 	for which it 	is
the 	exclusive 	representative.

The 	Board has 	reviewed 	the warning and dismissal 	letters,2
Bacon's 	original 	and amended 	charge and his 	appeal, 	CFA's
response 	thereto and the 	entire 	record 	in this 	case. 	The Board
finds 	the warning and dismissal 	letters 	to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision 	of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CO-42-H is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
2The 	warning 	and dismissal 	letters 	should 	reference 	HEERA
section 3571.1(e).
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 7, 1994
Professor Leonard A. 	Bacon
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-C0-42-H, 	Leonard A. Bacon v. California
Faculty Association
Dear Professor Bacon:
In the above-referenced charge, 	filed on November 2, 	1993, you
allege that the California Faculty Association 	(CFA) 	denied you
the right to fair representation. 	This conduct is alleged to
violate Government Code section 3571.1(b) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated December 28,
1993, 	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 which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
January 6, 	1994, 	the charge would be dismissed.
On January 5, 	1994, 	you filed 	(by certified mail) 	an amended
charge. 	The amended charge alleges in relevant part that,
contrary to the statement 	in my December 28 letter, 	your 4/19/91
grievance received a Level 	II response earlier than your 12/20/91
grievance. 	The amended charge speculates, 	"What CFA did was
switch the grievance that was up for arbitration, 	putting up the
least important one, 	and not informing me."
It does appear from the amended charge that there has been
misunderstanding and miscommunication on this subject, 	even
between the two of us.1 It does not appear from the alleged
facts, 	however, 	that CFA engaged in deliberate conduct that was
1Unlike you, 	I understood from CFA representative Donald W.
Nielsen in 1992 	that CFA had made a decision to arbitrate your
12/20/91 	"post-tenure review" 	grievance, 	and had so notified CSU,
but that the decision was not final or irrevocable. 	I believed
that you had the same understanding.

arbitrary, 	discriminatory, 	or in bad faith.2
LA-C0-42-H
January 7, 	1994
Page 2
The remainder of the amended charge consists of information that
either is not new or is not relevant to your allegation that CFA
violated its duty of 	fair representation within the six months
prior to the filing of the charge. 	I am therefore dismissing the
charge, 	based on the facts and reasons contained in this letter
and in my December 28 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. 	(Cal. 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 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
2It does not appear from any of the alleged facts how CFA
would be able to 	"switch" grievances on you and CSU, 	or how it
could hope to conceal 	from you which grievance was going to
arbitration, 	or why it would deliberately try to do either of
these things. 	It also does not appear why any of this is
especially significant, 	given that CFA has not decided against
arbitrating the 4/19/91 grievance that 	is 	important to you.
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delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
LA-C0-42-H
January 7, 	1994
Page 3
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of 	service of the request upon each
party. 	(Cal. 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,
ROBERT THOMPSON
Deputy General 	Counsel
By Thomas J. Allen
Regional Attorney
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Attachment
cc: 	Glenn A. Rothner, 	Esq.
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STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
December 28, 1993
Professor Leonard A. 	Bacon
Re: 	WARNING LETTER, Unfair Practice Charge No. 	LA-CO-42-H,
Leonard A, 	Bacon v. 	California Faculty Association
Dear Professor Bacon:
In the above-referenced charge, 	filed on November 2, 	1993, 	you
allege that the California Faculty Association 	(CFA) 	denied you
the right to fair representation. 	This conduct is alleged to
violate Government Code section 3571.1(b) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA).
My investigation of 	this 	charge reveals 	the following relevant
facts.
You are employed by the California State University 	(CSU) 	in a
unit 	for which CFA is the exclusive representative. 	You filed
grievances against CSU on April 19, 	1991 	(4/19/91) 	and December
20, 	1991 	(12/20/91). 	In July 1993, 	CFA sent you a settlement
offer from CSU, 	which you found unacceptable. 	In August 1993,
CFA informed you that your 	"first grievance" would go to
arbitration in December 1993. 	You understood that your 4/19/91
grievance was set for arbitration, 	when in fact it was your
12/20/91 grievance, 	which had received a Level II response
earlier than the 4/19/91 grievance. 	CFA had not made a decision
on the arbitration of your 4/19/91 grievance.
You allege that in June through October, 	1993, 	CFA was slow in
returning your calls, 	providing you with forms and information,
and meeting with you. 	You allege that you have additional
evidence against CFA, 	but you have not provided it to me.
Based on the facts stated above, 	the charge does not state a
prima facie violation of the HEERA, 	for the reasons that follow.
As Charging Party, 	you have alleged that CFA, 	as the exclusive
representative, 	denied you the right to fair representation
guaranteed by HEERA section 3578 	and 	thereby violated section
3571.(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.)
,·, 	__

LA-C0-42-H
December 28, 	1993
Page 2
In order to 	state a prima 	facie violation of 	this 	section of
HEERA, 	a Charging Party must 	show that 	the 	exclusive
representative's 	conduct was 	arbitrary, 	discriminatory or 	in bad
faith. 	In United Teachers of Los Angeles 	(Collins), 	the Public
Employment 	Relations 	Board 	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.
[Citations.]
A union may exercise 	its 	discretion 	to
determine how 	far 	to pursue a grievance 	in
the 	employee's behalf 	as 	long as 	it 	does 	not
arbitrarily 	ignore 	a meritorious 	grievance 	or
process a grievance 	in a perfunctory 	fashion.
A union is 	also not 	required 	to process 	an
employee's grievance 	if 	the 	chances 	for
success are minimal.
In 	order 	to 	state a prima 	facie 	case 	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, 	p. 	9, 	citing Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
At worst, 	it appears 	from the 	charge 	that 	CFA has not
communicated with you as well 	as 	it might have, 	and that 	it has
not been as 	responsive 	to your desires as you would like. 	It
does 	not 	appear that 	CFA has 	been negligent 	in representing you,
but 	even 	that 	would not 	be 	enough 	for a prima 	facie violation.
It 	certainly does not appear 	that 	CFA's 	conduct has been
arbitrary, 	discriminatory or 	in bad faith.
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 additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	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
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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 January 6, 	1994, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
LA-CO-42-H
December 28, 	1993
Page 3
Sincerely,
Thomas J. Allen
Regional Attorney
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