California School Employees Association (Hare) (PERB 1089E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GRAYSON L. 	HARE, 	JR.,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN JUAN
CHAPTER #127,
Respondent.
Case No. 	S-CO-310
PERB Decision No. 	1089
March 13, 	1995
Appearances: 	Grayson L. 	Hare, 	Jr., 	on his own behalf; 	California
School 	Employees Association and 	its 	San Juan Chapter #127 	by
Arnie R. 	Braafladt, 	Attorney.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Grayson L. 	Hare, 	Jr.
(Hare) 	of a Board agent's partial dismissal 	(attached) 	of his
unfair practice 	charge 	for 	failure 	to 	state 	a prima 	facie 	case.
In his 	charge 	Hare 	alleged 	that 	the 	California 	School 	Employees
Association and 	its 	San Juan Chapter #127 	(CSEA) 	violated his
right 	to 	fair 	representation guaranteed under 	the 	Educational
Employment Relations Act 	(EERA) 	section 3544.9, 	thereby violating
section 3543.6(b).1
EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	EERA section 3544.9 	provides 	that:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
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__________ )

the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in
the appropriate unit.
EERA section 3543.6 provides, 	in part, 	that:
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 	original 	and amended 	charges, 	the
warning and dismissal 	letters, 	Hare's appeal, 	and CSEA's
opposition to 	the 	appeal. 	The Board finds 	the Board agent's
dismissal 	to be 	free 	of prejudicial 	error and adopts 	it 	as 	the
decision of 	the Board itself, 	consistent 	with the 	following
discussion.
JURISDICTION
PERB has 	jurisdiction over this 	case 	for 	the 	following
reasons: 	Hare 	is an employee within the meaning of 	EERA section
3540.1(j); 	CSEA is an employee organization under EERA section
3540.l(d) 	and is 	the exclusive representative, 	within the meaning
of EERA section 3540.l(e), 	of an appropriate unit of employees at
the 	San Juan Unified School 	District; 	the unfair practice 	charge
alleges a violation of EERA section 3543.6(b); 	it appears 	from
the 	file 	that 	the unfair practice 	charge was 	timely filed; 	and
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the 	disputed 	conduct 	was 	not 	subject 	to a 	grievance 	agreement
between 	CSEA and 	its members.2
HARE'S APPEAL
Hare 	filed a one-sentence appeal 	on January 5, 	1995, 	which
reads 	in full:
Now comes Grayson L. 	Hare Jr., 	charging party
herein, 	and appeals 	the dismissal 	dated
December 16, 	1994, 	of allegations that
demonstrate 	that 	respondent 	failed to perform
its 	duty 	of 	fair 	representation by refusing
to allow 	charging party 	to 	select 	an
arbitrator to handle 	his 	grievance 	in
accordance with provisions 	of 	the 	collective
bargaining 	agreement.
CSEA'S 	OPPOSITION TO APPEAL
CSEA filed a brief 	statement 	in opposition to 	the appeal,
stating 	that 	the 	rationale 	and 	legal 	authority 	for 	the 	dismissal
are 	sound, 	and 	that 	"no purpose would be 	served by CSEA
reiterating 	the 	analysis 	and opinion 	of 	the Deputy General
Counsel."
DISCUSSION
PERB Regulation 326353 governs appeals of a dismissal. 	It
provides, 	in pertinent part, 	that:
2Chair Blair and Member Carlyle decline 	to 	join 	in the
statement 	regarding PERB's 	jurisdiction. 	It 	is 	their view that
the 	jurisdictional 	provisions 	of 	EERA section 3541.5(a)(2) 	do not
apply 	to 	agreements 	between an 	employee 	and an 	employee
organization.
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
W
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(a) 	Within 20 	days 	of 	the 	date 	of 	service 	of
a 	dismissal, 	the 	charging party may appeal
the 	dismissal 	to 	the 	Board 	itself. 	The
original 	appeal 	and 	five 	copies 	shall 	be
filed 	in 	writing 	with 	the 	Board 	itself 	in 	the
headquarters 	office, 	and 	shall 	be 	signed by
the 	charging party 	or 	its 	agent. 	Except 	as
provided 	in section 	32162, 	service 	and proof
of 	service 	of 	the 	appeal 	on 	the 	respondent
pursuant 	to 	section 	32140 	are 	required.
The 	appeal 	shall:
(1) 	State 	the 	specific 	issues 	of procedure,
fact, 	law or rationale 	to which 	the 	appeal 	is
taken;
(2) 	Identify 	the page 	or part 	of 	the
dismissal 	to which 	each 	appeal 	is 	taken;
(3) 	State 	the 	grounds 	for 	each 	issue 	stated.
Hare's 	appeal 	does 	not 	comply with 	the 	requirements 	of 	PERB
Regulation 	32635. 	Hare 	is merely 	restating his 	argument
regarding 	the 	collective 	bargaining 	agreement 	that 	was 	considered
by 	the 	Board 	agent 	and 	discussed 	in 	the 	dismissal 	letter.
Further, 	the 	appeal 	does 	not 	identify which portions 	of 	the
dismissal 	are being 	challenged, 	nor does 	it 	state 	the 	grounds 	on
which 	reversal 	would 	be 	justified.
Since 	this 	appeal 	is 	inadequate 	and 	the 	Board 	finds 	no 	error
in 	the 	Board agent's 	analysis, 	the 	Board hereby affirms 	the
partial 	dismissal.
ORDER
The 	partial 	dismissal 	of 	the 	unfair practice 	charge 	in 	Case
No. 	S-CO-310 	is 	hereby AFFIRMED.
Chair 	Blair 	and Member 	Carlyle 	joined 	in 	this 	Decision.
A
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
December 16, 	1994
Grayson L. 	Hare, 	Jr.
Re: 	Grayson Hare v. 	California 	School 	Employees 	Association and
its 	San Juan Chapter #127. 	Second Amended Charge
Unfair 	Practice 	Charge No. 	S-CO-310
DISMISSAL 	LETTER
Dear Mr. 	Hare:
The 	above-referenced amended 	charge 	asserts 	that 	the 	California
School 	Employees Association and 	its 	San Juan Chapter #127
(Association) 	failed to 	comply with 	its 	duty of 	fair
representation 	contained 	in Government 	Code 	section 	3544.9 	in
violation of Government Code section 3543.6(b).
I 	indicated to you, 	in my attached letter dated December 5, 	1994,
that 	certain allegations 	contained 	in 	the 	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 these
allegations 	to 	state 	a prima 	facie 	case 	or withdrew them prior 	to
December 12, 	1994, 	the allegations would be dismissed.
I 	spoke 	with you on December 	16, 	1994 	and you 	indicated that 	one
statement 	in my December 5 	letter was 	incorrect. 	Your argument
was 	not 	that 	EERA section 3543 	grants 	an 	individual 	employee 	the
right 	to arbitrate his 	own grievance. 	Rather, 	you assert 	that
the 	collective bargaining agreement 	between Respondent 	and 	the
San Juan Unified 	School 	District 	gives 	an 	employee 	the 	right 	to
arbitrate his 	own grievance. 	And, 	Respondent's 	failure 	to abide
by 	the 	contract provisions 	is 	a violation of EERA.
The provisions 	of 	the 	collective bargaining agreement are 	in
conflict 	with respect,to whether an employee has 	the 	right 	to
arbitrate his 	own grievance. 	However, 	even if 	the agreement
provided 	such a 	right, 	the Respondent's 	refusal 	to allow the
employee 	to 	exercise 	the 	right 	does not 	state a prima 	facie
violation of 	EERA.

Dismissal 	Letter
December 16, 	1994
Page 	2
EERA section 3541.5 	(b) 	states 	that 	PERB 	shall 	not 	have 	the
authority to enforce agreements between the parties, 	unless 	one
party's violation of 	the agreement 	is 	also an unfair practice
charge. 	Thus, 	the 	failure of 	the Respondent 	to abide by these
provisions does not, 	of 	itself, 	constitute a violation of EERA.
To 	demonstrate 	a prima 	facie unfair practice 	would 	require 	a
showing 	that 	a provision of 	EERA was violated. 	The most 	likely
EERA provision is 	section 3543. 	However, 	as 	explained 	in the
December 	5 	letter, 	Respondent's 	conduct 	does not violate 	this
section.
Since 	I 	have 	not 	received either an amended 	charge 	or a 	request
for withdrawal, 	I 	am dismissing 	those allegations which 	fail 	to
state 	a prima 	facie 	case 	based 	on 	the 	facts 	and 	reasons 	contained
in my December 5, 	1994 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in 	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
(

Dismissal 	Letter
December 16, 	1994
Page 3
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 	(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	By/,
Robert Thompson
Deputy General 	Counsel
Attachment
cc: Arnie Braafladt
(

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916)322-3198
December 5, 	1994
Grayson L. Hare, Jr.
Re: 	Grayson Hare v. 	California School Employees Association and
its San Juan Chapter #127. 	Second Amended Charge
Unfair Practice Charge No. 	S-CO-310
WASHING 	LETTER
Dear Mr. Hare:
The above-referenced amended charge asserts 	that 	the California
School 	Employees Association and its San Juan Chapter #127
(Association) 	failed to comply with its duty of fair
representation contained in Government 	Code section 3544.9 	in
violation of Government Code section 3543.6(b).
I understand the facts of your case to be as follows. 	On March
26, 	1993 you filed a grievance with your supervisor alleging that
a posted open bus 	route had been 	improperly awarded to an
ineligible drive instead of yourself. 	In June 1993, 	after
exhausting the grievance procedure, 	you requested the Association
submit the issue to binding arbitration. 	In July 1993, 	the
Association's 	executive board 	informed 	the state association that
they wish to proceed to arbitration of your grievance.
On April 13, 	1994 you sent a letter to Association attorney
William Corman requesting a date and time to meet with San Juan
Unified School District 	Employer-Employee Relations Director
Michael 	Roberts 	to select an arbitrator. 	On the following day
you 	received a letter 	from Association Labor Relations
Representative Jack Metcalf, 	which was addressed to the
District's attorney. 	The letter indicated that 	the parties
needed to attempt 	to select a mutually agreeable arbitrator and
suggested Mr. 	Norman Brand. 	On April 29, 	Mr. Metcalf wrote to
you stating that he had met with Mike Roberts the previous day
and selected Mr. 	David Concepcion as the arbitrator for your
grievance. 	Mr. 	Metcalf's letter also informed you that he would
not proceed further with the arbitration until you had withdrawn
your unfair practice charge 	(Charge number S-CO-310).
-----==-- 	-

Warning 	Letter
December 5, 	1994
Page 2
On June 	10th Mr. 	Metcalf entered into an agreement with the
District which settled your grievance. 	Based on the settlement
and a modification of the contract language in Section 12.3.9(a),
Mr. Metcalf withdrew your grievance on July l, 	1994.
You assert 	that 	the Association failed to meet 	its duty of 	fair
representation to you by, 	among other things, 	refusing to allow
you to select the arbitrator for your grievance. 	Section 3543 	of
the Educational 	Employment Relations Act states 	in pertinent
part:
Any employee may at any time present
grievances to his employer, 	and have such
grievances adjusted, 	without 	the intervention
of the exclusive representative, 	as long as
the adjustment 	is reached prior to
arbitration pursuant to sections 3548.5,
3548.6, 	3548.7, 	and 3548.8 and the adjustment
is not inconsistent with the terms of a
written agreement then in effect; 	provided
that the public school employer shall not
agree to a resolution of the grievance until
the exclusive representative has 	received a
copy of 	the grievance and the proposed
resolution and has been given the opportunity
to file a response.
You argue that this provision grants an individual employee the
right 	to select an arbitrator for their own grievance. 	After
selection of the arbitrator, 	the matter is then "in arbitration"
and the Association then has 	full 	rights to represent the
grievant 	from that point 	forward.
Based on the facts described above, 	the allegation that the
Association failed to fulfill 	its duty of 	fair representation by
refusing 	to allow you to select an arbitrator for your grievance
does not 	state a prima facie violation of the EERA for the
reasons which follow.
Section 3543 gives 	individual 	employees a right to pursue
grievances 	and adjust 	them with their employer without
intervention of 	the exclusive representative as long as such
adjustment 	is 	completed before arbitration. 	Although no PERB
case defines the actual point at which arbitration begins, 	it
would seem logical 	that 	arbitration or the arbitration process
begins when the 	individual 	employee grievant requests 	the union
to pursue his/her grievance to arbitration. 	From that point on,
pursuit of 	the grievance is within the sole discretion of the

Warning 	Letter
December 5, 	1994
Page 3
union. 	See discussion and cases 	cited in Chaffey Joint Union
High School District 	(1982) 	PERB Decision No. 	202.
If 	the union chooses not 	to pursue the grievance to arbitration
the employee may not 	independently or, 	in conjunction with the
employer, 	hire an arbitrator. 	In a similar way, 	if the union
agrees to arbitrate a dispute, 	any processing of 	the grievance
from that point 	forward should be 	solely in the hands 	of 	the
union. 	This would include discussions with the employer over
selection of an arbitrator and determination of dates 	for the
arbitration. 	It also includes picking of appropriate witnesses,
tactics 	for the arbitration hearing, 	and presentation of the case
to the arbitrator. 	See United Teachers Los Angeles 	(Bracey)
(1987) 	PERB Decision No. 	616. 	Based on this interpretation of
EERA section 3543, 	the Association's refusal to allow you to
select an arbitrator for your grievance does not 	state a
violation of the EERA and therefore must be dismissed.
For these 	reasons 	the allegation that 	the Association failed to
perform its 	duty of 	fair representation by refusing 	to allow you
to select the arbitrator for your grievance, 	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 b	- -e 	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
December 12, 	1994, 	I shall dismiss the above-described allegation
from your charge. 	If you have any questions, 	please call me at
(916) 322-3198, extension 361.
Sincerely,
Robert Thompson
Deputy General 	Counsel
(
I