Alum Rock Education Association (Kirkaldie) (PERB 1118E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAT KIRKALDIE,
Charging 	Party,
v.
ALUM ROCK EDUCATION ASSOCIATION,
CTA/NEA,
Respondent.
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) 	Case No. 	SF-CO-470
PERB Decision No. 	1118
October 4, 	1995
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Appearances: 	Pat Kirkaldie, 	on her own behalf; 	California
Teachers Association by Ramon E. 	Romero, 	Attorney, 	for Alum Rock
Education Association, 	CTA/NEA.
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by Pat 	Kirkaldie
(Kirkaldie) 	of a PERB regional attorney's dismissal 	(attached)
of 	her unfair practice 	charge1 against 	the Alum Rock Education
Association, 	CTA/NEA 	(Association). 	In her charge, 	Kirkaldie
alleged 	that 	the Association 	failed 	to 	adequately 	represent 	her
in violation of 	section 	3542.6 	of 	the 	Educational 	Employment
Relations Act 	(EERA)2 when it 	refused to pursue her grievances
1The charge 	consists 	of 	a 21-page 	statement 	of 	facts,
together with approximately 	788 	pages 	of 	exhibits.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6 provides, 	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

to arbitration; 	failed to 	investigate 	the 	expenditures 	of 	funds
received 	by 	the 	Alum Rock Union 	Elementary 	School 	District
(District) 	for salaries and services 	of program specialists;
and 	failed 	to 	investigate 	the District's 	illegal 	elimination
of program specialist positions.
The 	Board has 	reviewed the warning and dismissal 	letters,
Kirkaldie's appeal, 	the unfair practice charge, 	the Association's
response 	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 	in accordance
with 	the 	following 	discussion.
DISCUSSION
The 	Board 	finds 	that 	Kirkaldie's 	appeal 	is 	without
merit. 	The Board 	finds 	that 	the warning and dismissal 	letters
demonstrate 	that 	the 	regional 	attorney performed a 	thorough
review of 	the pertinent 	details 	and 	followed 	the 	relevant
PERB precedent 	and 	statutory 	law to 	correctly 	conclude 	that
Kirkaldie 	failed 	to demonstrate 	how the District's 	conduct
violated provisions 	of 	the 	collective 	bargaining agreement.
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of 	their exercise of 	rights
guaranteed by 	this 	chapter.
22

ORDER
The 	Board hereby AFFIRMS 	the 	regional 	attorney's 	dismissal
of 	the unfair practice charge 	in Case No. 	SF-CO-470.
Members 	Carlyle 	and Garcia 	joined 	in 	this 	Decision.
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3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
April 17, 1995
Pat Kirkaldie
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO 	ISSUE
COMPLAINT
Pat 	Kirkaldie v. 	Alum Rock Educators Association
Unfair Practice Charge No. 	SF-CO-470
Dear Ms. Kirkaldie:
The above-referenced unfair practice charge, 	filed on July 8,
1994 and amended on April 6, 	1995, 	alleges that the Alum Rock
Educators Association 	(Association) 	failed to properly represent
Pat Kirkaldie with respect 	to certain disputes with the Alum Rock
Union Elementary School District 	(District). 	This conduct is
alleged to violate Government 	Code section 3543.6 	of 	the
Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated March 20, 	1995,
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 March
28, 	1995, 	the charge would be dismissed. 	An extension of time
was granted for the filing of an amended charge.
An amended charge was filed on April 	6, 	1995. 	The amended charge
contains additional allegations 	regarding the District's
employment of Program Specialists. 	Documentation attached to the
amended charge indicates that, 	beginning in 1981, 	the District
agreed pursuant to a joint agreement among area school districts
and the Office of the Santa Clara County Superintendent of
Schools 	to employ Program Specialists under an integrated program
of special education. 	The agreement was renewed periodically by
the District as late as December 1993. 	Kirkaldie wrote several
letters to the District in 1993 	asserting that 	the District was
restricted to using funds 	received through the area plan for
Program Specialist salaries. 	The Director of the area plan
informed the District 	in June 	1994 	that the funding allocated for
Program Specialists were 	restricted to expenses 	associated with
Program Specialist 	staffing.

Dismissal 	Letter
SF-CO-470
April 17, 	1995
Page 2
In August 	1994, 	Kirkaldie filed charges with the state Department
of 	Fair Employment and Housing and the federal 	Equal 	Employment
Opportunities 	Commission alleging discrimination 	in the
District's reassignment of her. 	She also notified the
Association of the filings. 	Kirkaldie took a medical leave from
the District beginning in September 1994. 	On January 3, 	1995,
Kirkaldie wrote to the Association regarding the alleged misuse
of 	the area plan's 	funding for Program Specialists pointing to
expenditures on management salaries.
Kirkaldie cites California Education Code sections 	56220 and
56826, 	regarding state mandates 	for Program Specialist services
and use of 	funds exclusively for programs 	implemented through the
area plans.
The allegations 	in the amended charge 	indicate that 	Kirkaldie
continued during 1994 and 1995 	to press with the District and the
Association the issue of 	the District's 	failure to expend funds
received for Program Specialist 	services 	for the 	salaries of
Program Specialists. 	Kirkaldie also cites provisions of law
which arguably render the District's elimination of 	Program
Specialist positions illegal under the Education Code. 	However,
the amended charge 	fails 	to demonstrate how the District's
conduct also violated express provisions of the collective
bargaining agreement so as 	to substantiate a grievance. 	While
the District's conduct may have supported a civil lawsuit, 	the
Association's duty of fair representation does not 	impose a duty
to file such lawsuits, 	but is limited to enforcing provisions of
the collective bargaining agreement. 	(California Faculty
Association (Pomerantsev) 	(1988) 	PERB Dec. No. 	698-H.) 	Thus, 	the
amended charge fails to demonstrate elements necessary to state a
prima facie violation of 	the EERA.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained above and in my March 20, 	1995 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

Dismissal 	Letter
SF-CO-470
April 17, 	1995
Page 3
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
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 	Letter
SF-CO-470
April 17, 1995
Page 4
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By DONN GINOZ	NOZA	A
Regional Attorney
Attachment
cc: 	Ramon E. 	Romero

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
March 20, 	1995
Pat Kirkaldie
Re: 	WARNING LETTER
Pat Kirkaldie v. 	Alum Rock Educators Association
Unfair Practice Charge No. 	SF-CO-470
Dear Ms. Kirkaldie:
The above-referenced unfair practice charge, 	filed on July 8,
1994, 	alleges that the Alum Rock Educators Association
(Association) 	failed to properly represent Pat Kirkaldie with
respect to certain disputes with the Alum Rock Union Elementary
School District 	(District). 	This conduct is alleged to violate
Government Code section 3543.6 	of 	the Educational 	Employment
Relations Act 	(EERA).
Investigation of 	the charge revealed the 	following.1 Pat
Kirkaldie was 	first employed by the District as a Program
Specialist in the Special Education Department of 	the District 	in
1981. 	Kirkaldie's bargaining unit 	is exclusively represented by
the Association.
In June 1985, 	Steve Fiss, 	a Special Education program director
for the District, 	wrote to Jack Kingsbury, 	then the District's
Assistant Superintendent of Special Education, 	indicating that he
was assisting Joyce Roberts-Palmquist, 	an employee 	formerly under
his supervision at the Santa Clara County Office of Education, 	in
obtaining a management position in the District. 	In July 1985,
Roberts-Palmquist was successful 	in securing the position she had
sought, 	Coordinator of Special Education. 	The selection was made
without posting of a vacancy or engaging in the normal 	selection
process.
In September 1985, 	Kirkaldie made an informal written complaint
to Fiss regarding the 	"lack of affirmative action" with respect
to the hiring of Roberts-Palmquist. 	During a meeting with Fiss
at which Kirkaldie again raised her objections 	to the hiring
process, 	Fiss became furious with Kirkaldie and told her that if
she wanted to keep her position and get into management, 	she had
better not complain further about 	the hiring.
1 The charge consists of a 21-page statement of 	facts,
together with approximately 788 pages of exhibits.

Warning 	Letter
SF-CO-470
March 20, 	1995
Page 2
In May 1986, 	Kirkaldie complained to Fiss about Roberts-
Palmquist's 	lack of 	support 	for staff and again about 	the
District's 	failure to follow affirmative action/equal 	employment
opportunity laws.
In October 1986, 	prior to the time that Kirkaldie was scheduled
to interview for a curriculum Coordinator position, 	Fiss told
Kirkaldie that 	she would not be 	selected. 	When Kirkaldie
interviewed, 	Fiss, who was on the interview panel, 	rated
Kirkaldie before she had completed her responses 	to the
questions. 	Kirkaldie later complained to Fiss about his rating.
Kirkaldie was not selected for the position.
In May, 	June, 	and July 1987, 	Fiss threatened Kirkaldie with a
transfer to a 	classroom position and told her that 	she 	should
start looking for alternative employment. 	Later, 	on five
occasions between July and October 1987, 	Fiss informed her of his
plans to transfer one of several 	different employees 	into her
Program Specialist's position.
From September 1, 	1987 through June 1, 	1988, 	Kirkaldie was forced
to take a medical leave due to the stress of her relations with
Fiss. 	She encountered additional stress as a result of
indications 	that she might not be able to return to her Program
Specialist position.
In June 1988, 	Kirkaldie did return to her Program Specialist
position. 	In September 1988, 	she observed that the secretarial
staff were monitoring her movements, 	but not those of others.
Kirkaldie 	filed a grievance against 	Fiss with representation by
the Association challenging the surveillance.
In February 1989, 	Kirkaldie complained in writing to Fiss about
his 	retaliation following her complaint about his hiring
practices. 	Copies of the letter were sent to various officers
and representatives of the Association.
Privately retained counsel wrote a letter to Fiss 	in February
1989 	"regarding retaliatory attempts 	to move Kirkaldie out of her
Program Specialist position while Kirkaldie was 	on pregnancy
leave." 	Again in July 1989, 	she complained herself about
"retaliatory attempts" 	to remove her from her position. 	Copies
of the letter to Fiss were sent to Association representatives,
including David Oshige, 	Association Executive Director.
In August 1989, 	Kirkaldie complained to the District
Superintendent 	regarding the newly opened position of Director of
Special Education and how affirmative action policies were being

Warning Letter
SF-CO-470
March 20, 	1995
Page 3
violated for the benefit of one individual. 	Copies of the letter
were sent to Association representatives.
In August 1989, 	Brenda Smith was promoted to the position of
Director of Special Education. 	Fiss was promoted to Assistant
Superintendent of Educational 	Programs. 	Smith later told
Kirkaldie in a discussion about Kirkaldie's 	interest 	in Smith's
vacated position that 	it was 	"a good idea that she move outside
of the District."
In November 1989, 	Kirkaldie complained to Smith regarding the
District's plans 	"to eliminate Kirkaldie from her position" 	as a
Program Specialist. 	A copy of 	the letter was sent to Oshige and
Bill Empy, 	a California Teachers Association 	(CTA) 	staff person.
In May 1991, 	Kirkaldie met with Fiss to discuss the new created
Resource Teacher positions. 	Fiss 	stated that Resource Teacher
positions would be temporary and 	funded only for one 	to 	four
years. 	He also stated that the Program Specialist positions
would be 	eliminated.
In June 1991, 	Kirkaldie learned that Sue McBride, 	a Program
Specialist, 	would be chosen for a Resource Teacher position. 	She
later discovered in the copying room copies 	left by McBride,
including McBride's resume and questions 	to be asked by the
interviewing committee. 	No other applicant had access 	to these
questions. 	Kirkaldie later interviewed and the questions asked
were those left by McBride. 	McBride was chosen for the position.
Around the same time, 	Kirkaldie discovered District plans to
divert much of 	the 	funding directed toward Program Specialist
positions to Resource Teacher positions, 	resulting in the
eventual 	elimination of Program Specialist positions. 	Kirkaldie
claims that 	only she would be 	left without a position into which
to transfer. 	Kirkaldie complained in writing to Fiss and sent a
copy to Oshige and Empy.
In September and October 1991, 	Kirkaldie complained in writing to
the District 	regarding the alleged retaliation and sent 	copies 	to
Oshige. 	She 	stated her intention to prosecute discrimination
claims with the Fair Employment and Housing Department 	(FEHD) 	and
Equal Employment Opportunities Commission 	(EEOC).
In January 1992, 	Kirkaldie complained about the District plans to
transfer 	funds and eliminate the 	Program Specialist positions.
She later filed her discriminations 	claims and sent 	copies of
further complaints to Oshige. 	She repeated her complaints 	in
October 1992, 	again sending copies to Oshige and Empy. 	In
October she also complained about 	the District's plans 	to

Warning Letter
SF-CO-470
March 20, 	1995
Page 4
transfer her from her Program Specialist position. 	In November,
she complained in writing to Fiss about the District's plans 	to
eliminate the Program Specialist positions. 	She also complained
about the District's plans to promote McBride into a Resource
Specialist position so that the District 	could provide Kirkaldie
with McBride's vacated Resource Teacher position, 	and thus
resolve Kirkaldie's FEHD and EEOC claims.
On or about November 30, 	1992, 	Kirkaldie met with Oshige and
Colin Ford, 	Association Grievance Chairperson, 	regarding two
possible grievances 	challenging the District's 	failure to follow
hiring, 	transfer and reassignment provisions of the collective
bargaining agreement. 	Questions were raised regarding the
effectiveness of any remedy given the 	"process" nature of the
alleged violations. 	Ford asked Oshige to obtain legal advice
regarding these issues.
On or about December 9, 	1992, 	Kirkaldie filed a grievance with
Fiss and Smith regarding the District's plans to replace Program
Specialists with other staff members. 	At a meeting to discuss
the grievance on that date, 	Oshige implied that the Association
would not support her in her grievance and that so long as the
District 	transferred her to another position, 	she should be
satisfied 	"that she had a job."
Kirkaldie attempted unsuccessfully to have Oshige 	send out a
letter on her behalf reiterating her discrimination claims. 	She
complained to the Association president 	in writing about 	the
Association's failure to act.
In January 1993, 	Oshige and Fiss exchanged letters regarding
Kirkaldie's grievance. 	Kirkaldie again complained about the
District's plans 	to transfer her into McBride's vacated Resource
Teacher position and eliminate 	Program Specialist positions.
CTA attorney Ramon Romero responded to Kirkaldie's December
letter protesting the Association's 	failure to act. 	Kirkaldie
was not 	satisfied and responded reiterating the abuses 	on the
District's part. 	Two subsequent exchanges of letters between
Romero and Kirkaldie in February 1993 	failed to satisfy
Kirkaldie.
In March 1993, 	the District Superintendent threatened to
discipline Kirkaldie for having a manager copy a public document
for her. 	Kirkaldie had permission from the Superintendent's
secretary to copy the document.
In March 1993, 	Smith announced that she was recommending that the
Board of Trustees eliminate Program Specialist positions 	for the

Warning 	Letter
SF-CO-470
March 20, 1995
Page 5
1993-94 school year. 	Smith had led Kirkaldie to believe in
January that this would not happen. 	Fiss refused to meet with
Kirkaldie 	regarding the 	recommendation and referred her to Laura
Kidwiler, 	Assistant Superintendent/Human Resources Department.
She complained directly to the Board of Trustees, 	but 	received no
response.
In March 1993, 	Kirkaldie met with Kidwiler and Oshige to discuss
the elimination of the Program Specialist positions. 	Kidwiler
stated that 	the elimination was due to budgetary reasons and
failed to claim that services provided by the positions would
continue. 	Kirkaldie also complained to Fiss in writing about the
action but he failed to respond to her. 	Oshige received a copy
of this letter.
Kirkaldie's personal attorney, 	Lisa Aguiar, 	wrote a letter of
protest 	to the Board regarding the proposed cuts but 	received no
response.
In March 1993, 	the Board of Trustees voted to make reductions in
the 	Program Specialist program. 	Immediately thereafter,
Kirkaldie wrote 	to the Superintendent and Deputy Superintendent
asking certain questions 	regarding the elimination of 	the Program
Specialist positions. 	She received no response. 	She repeated
her questions 	in April and again received no response.
In May 1993, 	the Board of Trustees voted to eliminate two Program
Specialist positions.
From May through July, 	Kirkaldie attempted unsuccessfully to have
attorneys 	from the CTA intervene on her behalf.
She applied 	for a Resource Teacher-Curriculum Technology
position, 	but was denied in June 1993. 	She filed complaints with
the FEHD and EEOC regarding the District's actions.
In August 1993, 	the Superintendent recommended reinstatement of
the two Program Specialist positions, 	but the Board rejected the
recommendation.
In the same month, 	Smith informed Kirkaldie that she would be
assigned to a school site as a Resource Specialist, 	two other
former Program Specialists would be 	remain at the District office
with duties 	similar to those performed by Program Specialists and
that 	other special 	education employees would be paid overtime to
perform some of 	the duties of the eliminated positions.
On August 22, 	1993, 	Kirkaldie filed a grievance against these
actions. 	The grievance complained about the transfer of Program

Warning 	Letter
SF-CO-470
March 20, 	1995
Page 6
Specialist 	job 	duties 	to 	other 	employees 	which allegedly breached
Smith's prior assurances 	not 	to 	transfer the duties, 	as well 	as
the 	inequitable 	reassignment 	of 	the 	Program Specialists,
including 	the 	failure 	of 	Smith 	to 	give her written 	reasons 	for
the 	transfer, 	more preferable assignments 	to two 	other 	Programs
Specialists 	(Gallagher and Johnson), 	and retaliation. 	Kirkaldie
also pursued 	inquiries 	and complaints 	with the Board 	of 	Trustees,
which were 	ignored. 	Oshige 	informed 	Kirkaldie 	that 	it 	would help
her pursue her grievance 	to the Superintendent's 	level. 	He
acknowledged 	that 	the Association 	needed 	to place 	more 	emphasis
on dealing with 	transfer and 	reassignment 	issues 	and 	that
Kirkaldie's 	complaints 	to 	the 	CTA attorneys 	had put 	pressure 	on
him to act.
After 	elevating her grievance 	to 	the 	Superintendent's 	level,
Kirkaldie 	and Oshige met 	with 	the 	Superintendent's 	designees,
including Smith and Kidwiler. 	Kidwiler 	indicated 	that 	the
District 	was 	obtaining a 	legal 	opinion 	regarding 	the 	delivery of
Program Specialist 	services. 	Oshige 	requested budgetary
information 	regarding 	the 	subject. 	Oshige 	talked with Kirkaldie
after 	the meeting and questioned her as 	to why 	"she 	was
concerning 	herself 	with 	her protected 	concerted 	activities."
Around 	this 	time 	Kirkaldie 	had 	requested 	legal 	services 	regarding
possible violations 	of 	the Education Code. 	Oshige 	refused the
request. 	The District 	rejected 	the grievance.
On November 3, 	1993, 	Oshige 	indicated that he would recommend to
the Association's 	Executive Board 	that 	it 	take 	the 	grievance 	to
arbitration. 	The 	issue he believed to be viable was 	the
assignment 	of 	one 	of 	the District 	office 	Resource 	Specialist
positions 	to another employee, 	Jean Gallagher. 	Oshige 	stated
that 	the 	grievance 	would be pursued as 	an 	individual 	grievance
rather than an Association grievance. 	Kirkaldie 	complained 	to a
CTA representative 	about 	this 	decision.
On December 17, 	1993, 	Kirkaldie called Oshige about 	the
arbitration when 	he 	informed her 	that 	he 	had obtained 	additional
information 	as 	a 	result 	of 	a meeting with 	Kidwiler and 	Smith 	that
resulted 	in his 	decision 	to 	reverse 	his 	position 	regarding
arbitration. 	Kirkaldie had not been 	invited to 	this meeting.
Kirkaldie 	contends 	that 	Oshige would not 	have 	notified her of 	his
decision to 	change his 	recommendation at 	a January 3, 	1994
Association's 	Executive 	Board meeting had she not 	called. 	Oshige
stated that 	her 	individual 	grievance 	lacked merit. 	Kirkaldie
focused 	on 	the 	improprieties 	underlying 	the District's 	granting
of 	the District 	office position 	to Gallagher despite 	her 	lack of
appropriate 	credentials.

Warning 	Letter
SF-CO-470
March 20, 	1995
Page 7
On January 18, 	1994, 	Oshige informed Kirkaldie that the Executive
Board had approved his 	recommendation to drop her grievance.
Contrary to his earlier promise to advise Kirkaldie of 	the date
of 	the Executive Board meeting at which time her grievance would
be taken up, 	Oshige failed to provide Kirkaldie advance notice,
thereby depriving her of her opportunity to state her side of 	the
case to the Board.
During this conversation, 	Oshige stated that he believed that the
District had complied with the 	contract 	in making Kirkaldie's
assignment, 	but acknowledged Kirkaldie's argument that by
assigning Gallagher outside of her credentialed area 	the District
had provided more 	favorable treatment 	to Gallagher than to
Kirkaldie. 	However, 	Oshige believed that the District was
constrained 	from placing Gallagher 	in a 	teaching position similar
to Kirkaldie's because she was not a full-time employee. 	At this
point in the conversation, 	Oshige laughed. 	Kirkaldie asked for
Oshige's written recommendation to the Executive Board, 	a copy of
which she received on January 24, 	1994. 	The letter stated that
Program Specialist 	services were being provided by Special
Education staff on an overtime basis.
On January 18, 	Kirkaldie informed the Association that she would
appeal the Executive Board's decision.
Also on January 18, 	Kirkaldie requested the CTA legal 	staff
investigate 	if 	the District had committed an unfair labor
practice by failing to negotiate with the Association when it
eliminated the two Program Specialist positions, 	and then
assigned the duties to other bargaining unit members and non-
bargaining unit employees of the District. 	On February 4, 	Oshige
responded, 	refusing to pursue her grievance further and declining
her request 	for investigation of 	the potential unfair labor
practice.
In February 1994, 	Kirkaldie consulted with a State expert on
compliance with Special Education mandates, 	in particular, 	the
requirement 	that 	funds received by the District 	for Program
Specialist activities be spent 	for that purpose alone. 	She also
notified a CTA representative 	that a lawsuit would be 	filed
concerning the Association failure to represent her.
In April, 	she complained about the lack of representation to
Ralph Flynn, 	CTA Executive Director, 	and Beverly Tucker, 	CTA
Chief Counsel, 	and requested legal and financial assistance 	for a
lawsuit against the District. 	The Association asserts that 	it
has granted her request by providing 	financial 	assistance 	to
Kirkaldie's personal attorney, 	Lisa Aguiar, 	for expenses
associated with bringing her EEOC claim to court.

Warning Letter
SF-CO-470
March 20, 1995
Page 8
Also in April, 	the EEOC notified Kirkaldie of the existence of
prima facie evidence of discrimination. 	Conciliation efforts
were unsuccessful.
On or about June 30, 	1994, 	Kirkaldie spoke with Association
President Colin Ford who told her that Oshige stated that CTA was
assisting her with her 	"requested grievance actions" 	and that her
"grievance had not been appealed" 	to the Executive Board. 	The
Association contends 	that Kirkaldie 	failed to make a personal
appearance before the Executive Board on March 7, 	1994 	to argue
her appeal of the denial of the request for arbitration, 	and
therefore the appeal was not perfected.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of the EERA for the
reasons that 	follow.
Government Code section 3541.5(a) 	states that the Public
Employment Relations Board 	(PERB) 	"shall not . 	. 	. 	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."
PERB has held that 	the six month period commences 	to run when the
charging party knew or should have known of 	the conduct giving
rise to the alleged unfair practice. 	(Regents of the University
of California 	(1983) 	PERB Dec. No. 	359-H.) 	Since the charge was
filed on July 8, 	1994, 	the statute of limitations period began to
run on January 8, 	1994.
The only events 	occurring within the six month statute of
limitation period involve the Association's decision to not 	take
Kirkaldie's August 1993 grievance to arbitration, 	and events
thereafter. 	The charge specifically alleges that the Association
failed to represent Kirkaldie 	in her December 1992 	grievance
against 	Fiss and Smith regarding the elimination of 	Program
Specialist positions, 	the failure of the Association to provide
legal assistance in September 1993 	to research the legality of
the District elimination of Program Specialist positions, 	and
Oshige's decision to rescind his 	recommendation to take
Kirkaldie's August 	1993 	grievance 	to arbitration based on the
information he received in December 1993. 	These claims are
untimely and no 	complaint may issue with respect 	to them.
The allegation that 	the Association refused to take her August
1993 grievance to arbitration is timely, 	but fails to state a
prima facie violation for other reasons. 	PERB has held that
breach of 	the duty of 	fair representation occurs when a union's
conduct toward a member of the bargaining unit 	is arbitrary,

Warning Letter
SF-CO-470
March 20, 	1995
Page 9
discriminatory, 	or in bad faith. 	(Rocklin Teachers Professional
Association 	(1980) 	PERB Dec. No. 	124.) 	In the context of
grievance handling, 	PERB has defined the scope of the duty as
follows:
. 	. 	. 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 omitted.]
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. 	[Citations omitted.]
(United Teachers 	- 	Los Angeles 	(Collins)
(1982) PERB Dec. No. 258.)
In addition, 	in order to show a prima facie violation involving a
breach of the duty of fair representation, 	the charging party
must present 	facts which would justify a finding that 	the union
acted without a rational basis or in a way that is devoid of
honest judgment. 	(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) PERB Dec. No. 332.)
In the present case, 	the charge as presently written fails to
demonstrate 	that 	the Association abandoned a meritorious
grievance. 	Since an exclusive representative is not required to
process a grievance with a minimal chance of succeeding, 	the
charge must demonstrate as a threshold matter that the facts of
the case strongly support a violation of the terms of the
collective bargaining agreement.
A review of 	the provisions of 	the 	collective bargaining agreement
alleged in the grievance to have been violated2 does not 	suggest
a compelling case. 	None of the cited provisions, 	nor the
agreement as a whole, 	appear to prohibit District management from
making programmatic changes of the type involved here. 	The
breaching of prior assurances 	of an administrator not 	to transfer
2 The grievance cited the 	following provisions 	of 	the
contract: 1.4, 1.5, 1.7, 2.2, 2.3, 5.3.9, 8.3.3, 10.8, 11.1,
11.3, 14.2, 14.2.2, 14.2.9, 14.3.1 through 14.3.1.4, 14.3.4,
19.1, and 22.1.

Warning 	Letter
SF-CO-470
March 20, 1995
Page 10
Program Specialist duties also would not appear to be 	remediable
under the agreement. 	Similarly, 	there does not appear to be any
language in the contract that can remedy 	"inequitable"
reassignments, 	except if the claim is based on reprisals for
grievance filing.
Cases of retaliation require proof of unlawful 	intent.
Kirkaldie's case was not without weaknesses, 	such as the fact
that 	the person who apparently had the strongest 	feelings against
her was Fiss, 	as opposed to Kidwiler and Smith, 	who were
primarily responsible for the elimination of the Program
Specialists and her subsequent job assignment. 	The elimination
of 	the Program Specialists was also a decision that 	involved the
Board of Trustees, 	and it appears questionable whether Kirkaldie
could prove that 	its decision to eliminate an entire program was
targeted solely to harm her.
Moreover, 	the charge fails to demonstrate that the Association
refused to arbitrate the grievance for arbitrary, 	discriminatory,
or bad faith reasons. 	It is significant to note that Oshige
originally decided to recommend arbitration of the grievance. 	He
informed Kirkaldie that 	the reason for changing his mind was
based on factual 	information he received from Smith and Kidwiler
regarding the reassignments. 	While such a reason may only have
been a pretext and the decision may have actually been motivated
by some other bad faith reason, 	the facts alleged in the charge
appear to be insufficient to demonstrate that this was actually
the case.
Kirkaldie also alleges that the Association violated Government
Code section 3543.6(c) 	by failing to negotiate with the District
over the elimination of 	the Program Specialist positions and the
transfer of 	the work to other bargaining unit members and non-
bargaining unit employees of the District. 	Kirkaldie, 	as an
individual employee, 	lacks standing to raise this claim since
PERB has held that the duty to negotiate is a reciprocal 	one
between the exclusive representative and the public school
employer. 	(See Oxnard School District 	(Gorcey) 	(1988) 	PERB Dec.
No. 667.)
Kirkaldie 	further alleges 	that 	the Association violated section
3543.6(b) 	by discriminating against her by refusing to take her
grievance to arbitration. 	In support of this allegation, 	she
claims that the Association 	(1) 	provided perfunctory processing
of her grievance, 	(2) 	deviated from its policy of investigating
grievances to evaluate their merits, 	(3) 	failed to notify
Kirkaldie of grievance meetings when she had demanded to be
notified prior to the meetings so that she could attend, 	(4)
willfully misinformed the Association president 	that 	CTA was

- -
Warning Letter
SF-CO-470
March 20, 	1995
Page 11
assisting Kirkaldie with her grievance, 	(5) 	failed to provide
fair and equitable 	treatment 	to Kirkaldie as evidenced by the
actions/inactions and comments of Oshige to Kirkaldie, 	(6)
provided perfunctory assistance 	to Kirkaldie with regard to her
claims of retaliation, 	(7) 	acquiesced in District discrimination
against Kirkaldie, 	and 	(8) 	refused to address Kirkaldie's
inequitable reassignment. 	While such evidence might suggest a
retaliatory motive, 	these allegations are conclusory are not
adequately supported by the underlying 	facts alleged 	in the
charge.
Finally, 	Kirkaldie alleges that the Association violated section
3543.6(a) 	by causing or attempting to cause the District to
discriminate against her for the exercise of protected
activities. 	In support of this claim, 	Kirkaldie alleges, 	inter
alia, 	that the Association 	(1) 	refused to negotiate with the
District over the unilateral 	contracting out of 	Program
Specialist duties, 	(2) 	refused to enforce the contract provisions
regarding reassignments and involuntary transfers, 	(3) 	colluded
with the District in Kirkaldie's inequitable reassignment, 	and
(4) 	failed to investigate and arbitrate Kirkaldie's grievance.
Again, 	these allegations are conclusory in nature and not
adequately supported by the underlying 	facts alleged in the
charge. 	Furthermore, 	since there is no evidence that the
Association's 	conduct preceded the District's decision to
eliminate Program Specialist positions, 	these acts or omissions
in themselves do not demonstrate that 	the Association attempted
to cause the District to discriminate against her.
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
be signe-d under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal 	from you before March 28, 1995. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional Attorney