Mt. San Jacinto College Faculty Association (Vasek) (PERB 1147E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANTHONY GABRIEL VASEK,
Charging 	Party,
v.
MT. 	SAN JACINTO COLLEGE 	FACULTY
ASSOCIATION, 	CTA/NEA,
Respondent.
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) 	Case No. 	LA-CO-664
PERB Decision No. 	1147
March 	15, 	1996
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Appearances: 	Anthony Gabriel Vasek, 	on his own behalf;
California Teachers Association by Rosalind D. 	Wolf, 	Attorney,
for Mt. 	San Jacinto College Faculty Association, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Anthony Gabriel Vasek
(Vasek) 	of a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	Vasek 	filed an unfair practice 	charge 	alleging
that 	the Mt. 	San Jacinto College Faculty Association, 	CTA/NEA
(Association) 	breached the duty of 	fair representation mandated
by 	section 	3544.9 	of 	the 	Educational 	Employment 	Relations Act
(EERA) 	with regard to various grievances 	filed by him, 	conduct
which was 	alleged 	to violate 	EERA section 3543.6(b).1 After
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.

investigation, 	the Board agent 	dismissed the charge 	for failure
to establish a prima 	facie 	case.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge,
the warning and dismissal 	letters, 	Vasek's appeal, 	and the
Association's 	opposition to 	the appeal. 	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-664 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
EERA 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.
22

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
PERD
October 25, 	1995
Anthony Gabriel Vasek
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. LA-CO-664, Anthony Gabriel Vasek v. Mt. 	San
Jacinto College Faculty Association. 	CTA/NEA
Dear Dr. Vasek:
In the above-referenced charge, 	filed on July 5, 	1995, 	you allege
that the Mt. 	San Jacinto College Faculty Association, 	CTA/NEA
(Association) 	denied you the right to fair representation
guaranteed by Government Code 	section 3544.9 	of 	the Educational
Employment Relations Act 	(EERA) 	and thereby violated EERA section
3543.6(b).
I indicated to you, 	in my attached letter dated September 14,
1995, 	that the above-referenced charge did not state a prima
facie case within PERB's jurisdiction. 	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 September 25, 	1995, 	the charge would be dismissed. 	I
later extended that deadline.
On October 17, 	1995, 	you filed an amended charge, 	including 58
exhibits 	(A through N and 1 through 44). 	It is still not
apparent from the amended charge, 	however, 	how the Association's
grievance-related conduct since January 5, 	1995, 	was arbitrary,
discriminatory or in bad faith. 	You allege that on October 13,
1995, 	you were informed that the Association had reorganized and
enacted new policies 	to ensure 	that 	its members would be fairly
and adequately represented. 	It 	is not apparent 	from the
Association's alleged reorganization and new policies, 	however,
how its previous grievance-related conduct was arbitrary,
discriminatory or in bad faith. 	I am therefore dismissing the
charge, 	based on the facts and reasons contained in this letter
and my September 14 	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,
_-_-_-

LA-CO-664
October 25, 	1995
Page 2
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
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.)

LA-CO-664
October 25, 	1995
Page 3
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
THOMAS J. ALLEN
Regional Attorney
Attachment

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
September 14, 	1995
Anthony Gabriel Vasek
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-664,
Anthony Gabriel Vasek v. 	Mt. 	San Jacinto College Faculty
Association. CTA/NEA
Dear Dr. Vasek:
In the above-referenced charge, 	filed on July 5, 	1995, 	you allege
that the Mt. 	San Jacinto College Faculty Association, 	CTA/NEA
(Association) 	denied you the right to fair representation
guaranteed by Government Code 	section 3544.9 	of the Educational
Employment Relations Act 	(EERA) 	and thereby violated EERA section
3543.6(b).
My investigation of the charge reveals the following facts.
You are employed by the Mt. 	San Jacinto Community College
District 	(District) 	as a full-time faculty member, 	in a unit for
which the Association is the exclusive representative. 	On August
26, 	1994, 	you brought suit against the District and the
Association. 	On July 5, 	1995, 	you filed the present charge
against the Association, 	as well as a separate charge against the
District.
The present 	charge appears 	to allege five instances of
Association conduct within the 	six months before 	the 	charge was
filed 	(January 5, 	1995 to July 5, 	1995).
1. 	Until on or about January 16, 	1995, 	the Association failed
to inform you about the existence of EERA and PERB.
2. 	On or after January 19, 	1995, 	the Association failed to take
corrective action concerning the District's 	refusal 	to allow
you to speak at a faculty workshop.
3. 	In 	"Spring 1995" 	the Association failed to take corrective
action concerning your 	"oppressive 	teaching 	schedule."
4. 	On or about May 4, 	1995, 	the Association indicated that it
was 	"tempted" 	to take action concerning the docking of your
pay but ultimately 	"did nothing."
5. 	The Association 	"recently" 	again 	"did nothing" 	concerning a
disciplinary action taken against you.

LA-CO-664
September 14, 	1995
Page 2
Based on the facts stated above, 	the charge does not state a
prima facie violation of EERA within PERB's jurisdiction, 	for the
reasons that follow.
EERA section 3541.5(a)(1) 	states that PERB "shall not 	. 	. 	.
[i]ssue a complaint based upon an alleged unfair practice
occurring more than six months prior to the filing of the
charge." 	Because the present charge was filed on July 5, 	1995,
any Association conduct prior to January 5, 	1995, 	is outside
PERB's jurisdiction.
In the charge, 	you argue that this six-month limitation should
not apply to you because you 	"did not become aware of 	the
existence of the EERA and PERB" until January 16, 	1995. 	PERB has
held, 	however, 	that the six-month limitation is mandatory and
jurisdictional. 	(California State University. 	San Diego 	(1989)
PERB Decision No. 	718-H; 	Calexico Unified School District 	(1989)
PERB Decision No. 	754.) 	Your lack of awareness of EERA and PERB
thus 	cannot give PERB authority over Association conduct prior to
January 5, 	1995.
As Charging Party, 	you allege that the Association, 	as your
exclusive representative, 	denied you the right to fair
representation guaranteed by EERA section 	3544.9 	and 	thereby
violated section 3543.6(b). 	The duty of fair representation
imposed on the exclusive representative extends 	to grievance
handling. 	(Fremont Teachers Association 	(King) 	(1980) 	PERB
Decision No. 	125; United Teachers of Los Angeles 	(Collins) 	(1982)
PERB Decision No. 258.) 	It does not, 	however, 	extend to
extracontractual matters. 	(California State Employees
Association 	(Parisi) 	(1989) 	PERB Decision No. 	733-S.) 	PERB has
specifically held that the duty does not 	require an exclusive
representative 	to advise an employee accurately concerning rights
and duties pertaining to the exercise of legal remedies outside
of 	the collective bargaining agreement. 	(California State
Employees Association 	(Cohen) 	(1993) 	PERB Decision No. 	980-S.)
In the present case, 	it appears that information about the
existence of 	EERA and PERB was 	an extracontractual matter outside
the scope of the duty.
In order to state a prima facie violation of this duty, 	a
Charging Party must 	show that 	the 	exclusive representative's
conduct was arbitrary, 	discriminatory or in bad faith. 	In Unit
Teachers of Los Angeles 	(Collins). 	PERB stated in part: ed
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.

LA-CO-664
September 14, 	1995
Page 3
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.]
In the present case, 	it is not apparent from the charge what the
Association could and should have done 	through the grievance
process since January 5, 	1995. 	Specifically, 	it is not apparent
what you requested the Association to do, 	how the Association
responded to any request, 	and what the contractual basis 	for any
grievance would have been. 	Moreover, 	it is not apparent how the
Association's 	grievance-related conduct was 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
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 September 25, 	1995,
I shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3542.
Sincerely,
Thomas J. Allen
Regional Attorney