Duarte Unified Education Association (Fox) (PERB 1220E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NICK 	FOX,
Charging 	Party,
v.
DUARTE 	UNIFIED 	EDUCATION
ASSOCIATION,
Respondent.
Case No. 	LA-CO-712
PERB Decision No. 	1220
September 26, 	1997
Appearances: 	Manshardt 	& Santa Romana by Patrick J. 	Manshardt,
Attorney, 	for Nick Fox; 	California Teachers Association by
Charles R. 	Gustafson, 	Attorney, 	for Duarte Unified Education
Association.
Before Johnson, 	Amador and Jackson, 	Members.
DECISION
AMADOR, 	Member: 	This 	case is before 	the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by Nick Fox
(Fox) 	to an administrative 	law judge's 	(ALJ) 	proposed decision
(attached). 	The ALJ dismissed the 	complaint 	and unfair practice
charge 	which alleged 	that 	the 	Duarte 	Unified Education
Association 	(Association) 	breached the duty of 	fair
representation 	guaranteed by 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	section 3544.9 	thereby violating section 3543.6(b)1 by
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government 	Code. 	Section 3544.9 	provides:
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.
Section 3543.6 	states, 	in pertinent part:
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refusing 	to 	represent 	Fox because 	of 	his 	religious 	objector
status, 	failing to 	speak on his behalf at 	a disciplinary meeting
and 	failing 	to 	return his 	calls 	regarding a grievance.
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 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	Fox's
exceptions 	and the Association's 	response. 	The Board 	finds 	the
ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
FOX'S 	APPEAL
Fox contends 	that 	the ALJ erred 	in making 	credibility
determinations 	that 	credited Ron Plessen's 	(Plessen) 	testimony
that 	he never 	told 	Fox the Association would not 	represent 	him at
the informal 	conference of February 15, 	1996, 	over Fox's
testimony. 	Fox also argues 	that 	the ALJ erred 	in determining
that Robin Whitlow's 	(Whitlow) 	failure 	to return his 	calls was
not arbitrary, 	discriminatory or in bad faith. 	Fox maintains
that 	the Association had an 	obligation 	to 	explain why 	it 	chose
not 	to process 	his 	grievance and 	failed to do 	so. 	(Oakland
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Education Association. 	CTA/NEA 	(Mingo) 	(1984) 	PERB Decision
No. 447.)
ASSOCIATION'S 	RESPONSE
The Association maintains 	that 	the 	evidence 	supports 	the
ALJ's 	credibility determinations. 	In addition, 	the Association
asserts 	Whitlow's 	failure 	to 	return 	Fox's 	telephone 	calls 	did not
breach 	the 	duty 	of 	fair 	representation because 	Fox 	failed 	to
request 	help 	from the Association prior 	to 	filing a 	grievance.
DISCUSSION
Fox 	contends 	that 	the ALJ erred by 	crediting 	Plessen's
testimony 	that 	he 	never 	told 	Fox 	the Association would not
represent 	him over 	Fox's 	contrary testimony. 	It 	is 	a well
established principle 	of 	PERB 	caselaw that 	the Board grants 	great
deference 	to 	the ALJ's 	credibility determinations. 	This
principle 	recognizes 	that 	the ALJ, 	who 	conducts 	the hearing and
observes 	the witness' 	testimony, 	is 	in a better position to make
accurate 	credibility determinations 	than the Board, 	who 	in an
appellate 	capacity, 	has 	only the benefit 	of 	the 	transcripts.
(Temple 	City Unified School 	District 	(1990) 	PERB Decision
No. 	841.) 	Absent any evidence 	in the record to support
overturning 	the ALJ's 	credibility determinations, 	the Board
defers 	to 	the ALJ's 	findings and rejects 	this 	exception.
(Whisman Elementary School District 	(1991) 	PERB Decision
No. 	868.)
Fox also 	contends 	that Whitlow's 	failure 	to 	return his 	calls
regarding 	the grievance was 	arbitrary, 	discriminatory or 	in bad
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faith because 	the Association never 	explained why 	it 	did not
process 	Fox's grievance. 	(Oakland Education Association, 	CTA/NEA
(Mingo), 	supra, 	PERB Decision No. 	447.) 	Fox did not allege in
the unfair practice 	charge, 	complaint 	or hearing 	that 	the
Association never 	explained why 	it 	did not process 	his 	grievance.
Under PERB Regulation 32635(b), 	the Board will not 	consider new
allegations 	on appeal 	absent 	good cause.2 Since 	Fox's 	appeal 	did
not 	contain a good 	cause 	explanation 	for his 	failure 	to 	raise
this 	allegation in the unfair practice 	charge, 	complaint 	or
hearing, 	the Board cannot 	consider this argument. 	(California
School Employees Association 	(Watts) 	(1993) 	PERB Decision
No. 	1008.)
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CO-712 	are hereby DISMISSED.
Members 	Johnson and Jackson 	joined 	in 	this 	Decision.
2PERB 	regulations are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32635
states, 	in pertinent part:
(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NICK FOX,
Charging 	Party,
v.
DUARTE 	UNIFIED 	EDUCATION
ASSOCIATION,
Respondent.
Unfair 	Practice
Case No. 	LA-CO-712
PROPOSED 	DECISION
(6/10/97)
Appearances: 	Patrick J. 	Manshardt, 	Attorney, 	for Nick Fox;
California Teachers Association by Charles 	R. 	Gustafson,
Attorney, 	for Duarte Unified Education Association.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	a teacher alleges his exclusive representative
violated 	its 	duty to provide 	him with 	fair 	representation. 	The
exclusive 	representative 	denies 	any violation of 	this 	duty.
On October 29, 	1996, 	teacher Nick Fox 	(Fox) 	filed an unfair
practice 	charge 	against 	the 	Duarte 	Unified 	Education Association
(Association), 	alleging the Association failed to represent him
fairly in his 	relations with his 	employer, 	the Duarte Unified
School District 	(District). 	On November 21, 	1996, 	the Office of
the 	General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board
(PERB) 	issued a complaint, 	alleging the Association's 	conduct was
inconsistent 	with 	its 	duty under 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA) 	and therefore
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violated EERA section 3543.6(b).1 On December 16, 	1996, 	the
Association 	filed an 	answer 	denying any violation. 	On December
17, 	1996, 	PERB held an informal 	settlement 	conference with the
parties, 	but the matter was not 	resolved.
PERB 	conducted 	a 	formal 	hearing on 	the 	complaint 	on March 	31
and April 	1, 	1997. 	After the 	filing of post-hearing briefs, 	the
matter was 	submitted for decision on May 28, 	1997.
FINDINGS 	OF 	FACT
At 	all 	relevant 	times, 	Fox was 	a public 	school 	employee
covered by EERA. 	At 	all 	relevant 	times, 	the Association was 	an
employee 	organization covered by EERA, 	and 	it was 	the 	exclusive
representative 	of 	the 	bargaining unit 	in which Fox was 	employed.
For the term July 1, 	1994, 	through June 30, 	1996, 	there was
a 	collective 	bargaining 	agreement 	in 	effect 	between 	the
Association and the District. 	Article 	5 	of 	the 	agreement
included 	an 	agency 	shop provision 	requiring unit 	members 	who 	were
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government 	Code. 	EERA is 	codified at 	section 3540 	and
following. 	EERA section 3544.9 provides 	as 	follows:
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.
In relevant part, 	EERA section 3543.6 provides 	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.
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not Association members 	to pay the Association a 	service 	fee.
Article 	5.3 	provided 	the 	following 	exception:
Any unit 	member who 	is 	a member of 	a
religious 	body whose 	traditional 	tenets 	or
teachings 	include 	objections 	to 	joining or
financially 	supporting 	DUEA/CTA/NEA 	as 	a
condition of employment; 	except 	that 	such
unit member shall pay, 	in lieu of 	a 	service
fee 	to one 	of 	the 	following non-religious,
organizations, 	charitable 	funds exempt 	from
taxation under Section 5.1 (c) (3) 	or Title 26
of 	the 	Internal Revenue 	Code:
5.3.1 	American 	Cancer 	Society
5.3.2 	American 	Heart 	Association
5.3.3 	City of 	Hope
As 	the designation 	"DUEA/CTA/NEA" 	indicates, 	the Association
(DUEA) 	is 	affiliated with the 	California Teachers Association
(CTA) 	and the National Education Association 	(NEA).
Fox was 	hired by the 	District 	as 	a probationary teacher 	for
the 	1995-96 	school year, 	and he 	thus became 	subject 	to the 	agency
shop provision. 	The Association encouraged Fox to become 	a
member but 	also 	informed him, 	in writing, 	of his 	rights under the
Article 	5.3 	exception. 	The Association 	set 	a deadline 	of
September 30, 	1995, 	for Fox to exercise those rights by providing
the Association with proof 	he 	had made payment 	to one 	of 	the
three 	designated charities.
Fox 	felt 	the Article 	5.3 	exception applied to him, 	because
he 	found 	the 	positions 	of 	the 	NEA on 	abortion and 	Catholic
schools 	to be 	inconsistent 	with his 	own beliefs 	as 	a 	Catholic.
Fox obtained 	from his pastor a 	letter of 	support, 	which the
Association accepted. 	Fox was also concerned, 	however, 	the
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charities 	designated 	in Article 	5.3 	might 	somehow be 	inconsistent
with his beliefs.
Prior to 	the 	September 	30 	deadline 	set 	by the Association,
Fox 	talked on 	the 	telephone 	with 	CTA Representative 	Robin Whitlow
(Whitlow). 	Whitlow, 	who had been raised Catholic herself,
empathized with 	Fox's 	concerns 	and 	attempted 	to 	accommodate 	them.
She promised 	to 	check with 	CTA attorneys 	on whether 	Fox could
make payment 	to 	some 	other charity. 	She 	also promised to 	talk to
the 	local Association about 	allowing Fox to 	submit 	a 	check 	to be
held by the Association for up to one month, 	while 	Fox researched
the designated charities. 	On September 28, 	1995, 	Fox did submit
a check to the Association, 	as what 	he understood to be
"collateral."
Whitlow was 	informed by CTA attorneys, 	however, 	that 	Fox
could not make payment 	to any other charity, 	and she 	so 	informed
Fox. 	Also, 	the 	local Association was unwilling to give 	Fox up to
one month to 	research the 	designated charities. 	On October 	5,
1995, 	the Association returned Fox's 	check and gave 	him a
deadline of October 15, 	1995, 	to choose one of the designated
charities. 	On October 12, 	1995, 	Fox made payment to one of those
charities 	(the American Heart Association).
Despite Whitlow's attempts to accommodate his 	concerns, 	Fox
testified he 	found her 	"no help," 	because 	he 	had to 	call 	her
several 	times 	and wait 	"days 	and days" 	to get 	a call 	back. 	He
testified, 	"It may have been just because 	she was busy. 	She was
just 	an extremely difficult person to get 	in touch with."
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For the 	1995-96 	school year, 	Fox was 	assigned as 	a 	seventh
grade 	science 	teacher 	at 	the 	District's Northview 	Intermediate
School 	(Northview), 	where his principal was Dr. 	Mary George.
Shortly after Fox started working at Northview, 	Dr. 	George 	told
him 	"our personalities were 	a misfit," 	and this 	appears 	to 	have
been true.
On February 8, 	1996, 	a parent 	filed a complaint 	against 	Fox.
Fox had 	sent 	the 	parent's 	daughter out 	of 	his 	classroom because
(as he testified) 	she was 	so 	"doused" 	in perfume that 	the 	smell
was 	"overwhelming." 	According to the complaint, 	however, 	the
daughter 	said 	she 	had been 	sent 	out 	simply because 	Fox 	"didn't
like her perfume." 	Dr. 	George 	informed Fox there would be 	a
conference on the parental 	complaint on February 15, 	1996. 	Dr.
George 	told Fox the 	conference was 	"very serious" 	and the
complaint 	"would probably go 	onto 	a 	higher 	level."
Fox was 	"scared" 	by what 	Dr. 	George had told him, 	so he made
a written 	request 	to Association Building Representative 	Ron
Giberson 	(Giberson) 	that 	"association counsel" 	be present 	at 	the
conference. 	Giberson referred the 	request 	to Association
President Roger Plessen 	(Plessen). 	Giberson told Fox in writing
that 	Plessen 	"said 	that 	he would 	call 	you 	and put 	you 	in 	touch
with 	a 	CTA attorney."
Fox 	testified that 	at 	some 	point 	he 	and 	Plessen 	spoke 	and
Plessen 	"basically said 	I 	was 	not 	a Union member and 	I 	could not
get 	representation 	from the Union." 	Fox could not 	remember
whether 	this 	conversation was 	on 	the 	telephone 	or 	in 	Plessen's
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classroom, 	nor could he 	remember when 	it 	took place, 	other than
that 	it was before 	the February 15 	conference. 	Fox testified he
did not 	ask anyone else 	for representation. 	In particular, 	he
testified he 	did not 	believe 	he 	contacted 	CTA Representative
Whitlow to 	see 	if 	he 	could be put 	in touch with a 	CTA attorney.
Fox attended 	the 	February 	15 	conference 	without 	representation.
At 	the 	conference, 	the 	situation was 	amicably resolved after Fox
explained what 	had 	really 	happened.
The 	unfair practice 	charge 	filed by Fox and the 	complaint
issued by PERB 	do not 	mention 	this 	February 	15 	conference 	or 	the
events 	surrounding 	it. 	The 	charge 	alleges 	Fox requested legal
representation from the Association on April 	26, 	1996, 	for a
meeting on April 	30, 	1996, 	and the Association 	"initially
declined 	. 	. 	. 	due to his status as a conscientious objector."
The 	PERB 	complaint 	similarly alleges 	Fox 	requested 	representation
on or about April 26, 	1996, 	for a meeting on April 	30, 	1996, 	and
on or about April 	26, 	1996, 	Plessen said the Association 	"would
not 	represent 	Charging Party due 	to 	Charging Party's 	status 	as 	a
religious objector."2 Fox testified, 	however, 	he did not 	think
Plessen 	or 	the Association 	ever 	indicated 	the Association would
not 	furnish representation for an April 	3 0 meeting.
Plessen 	testified to 	his 	own version of 	a 	conversation with
Fox that 	concerned the 	February 15 parental 	complaint 	conference.
Plessen 	testified he 	and Fox 	spoke 	at 	length on 	February 	13,
1996; 	Plessen thinks 	it was on the telephone. 	Plessen testified
2No motion to amend the 	complaint 	has been made.
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he 	advised Fox to 	contact 	CTA Representative Whitlow, 	who might
be 	able 	to provide 	him with a 	lawyer. 	Plessen 	further 	testified
he 	advised Fox to 	"seek 	counsel" 	with the District's 	deputy
superintendent 	for personnel/student 	services, 	Dr. 	Alan L.
Johnson, 	because 	it 	appeared 	from the 	conversation 	that 	Fox was
starting to get 	in trouble with Dr. 	George, 	who might be 	starting
to 	evaluate 	Fox negatively. 	Plessen's 	testimony was 	corroborated
in part 	by his 	contemporaneous 	handwritten notes, 	which appear 	to
read in part 	as 	follows:
Adv: 	1 	CTA
2 	Lawyer
3 	Counsel with Dr. 	J
Plessen testified he 	told 	Fox what 	he 	has 	told many teachers 	who
want 	representation: 	to call 	the CTA service center, 	where
Whitlow 	worked.
Plessen denied he 	told Fox that 	as 	a non-member he 	could not
get 	representation 	from the Association. 	Plessen described 	their
discussion of 	that 	issue as 	follows:
When approached by Mr. 	Fox on the 	subject 	and
he was 	asking 	for all 	kinds 	of 	things 	from a
lawyer to whatever, 	I 	indicated to him that 	I
would have 	to 	check our 	legal 	obligation 	to
him. 	Because as you know, 	a non-paying
member, 	if 	it goes to binding arbitration,
there might be legal 	implications. 	So I, 	at
several times, 	I 	said I have to check to see
what 	our obligation to him is.
I 	at 	no 	time 	said that 	he would not be
represented. 	I 	wouldn't be 	that 	dumb to 	say
something like 	that 	because we 	do have 	a
legal 	obligation.
Plessen appeared nervous 	on the witness 	stand, 	his hands
shaking visibly some 	of 	the time. 	Nervousness 	on the witness
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stand is understandable, 	however, 	and I do not conclude from
Plessen's 	nervousness 	that 	he was 	not 	telling the 	truth as 	he
remembered it. 	On the contrary, 	Plessen appeared to be a
conscientious witness. 	He was 	responsive 	to questions 	from both
attorneys, 	and he asked both attorneys 	to rephrase questions 	he
did not 	understand. 	He 	did not 	appear to be 	someone 	likely to
blurt 	out 	something he 	regarded as 	"dumb."
CTA Representative 	Whitlow 	testified 	that 	on 	February 	13,
1996, 	she had a telephone conversation with Fox, 	in response to a
phone message 	she 	received from Fox that 	day. 	The message 	stated
as follows:
(Referred by Roger.) 	Has 	to attend a
complaint 	meeting Thursday at 	4:15. 	Wants
CTA rep with him.
Whitlow testified 	that 	when 	she 	talked to 	Fox she 	told him she
had a 	scheduled meeting on February 	15 	and could not 	accompany
him. 	She 	testified 	she 	suggested Fox take 	the Association
building 	representative 	(Giberson) 	or one 	of 	some 	other
individuals 	she 	named. 	She 	specifically remembered 	suggesting a
particular woman, 	only to have 	Fox tell 	her the woman had become
an assistant 	principal. 	Whitlow assumed 	Fox would 	find 	someone
to 	accompany him. 	She 	testified 	she 	does 	not 	normally represent
employees at 	first-level parental 	complaint 	conferences, 	which
local 	representatives 	are 	trained to handle.
With regard 	to 	the 	events 	surrounding the 	February 	15
parental 	complaint 	conference, 	I 	credit 	the 	testimony of 	Plessen
and Whitlow over that 	of 	Fox. 	Fox's 	testimony about 	these 	events
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(that 	Plessen 	"basically" 	said Fox could not 	get 	representation,
and that 	Fox did not 	believe 	he 	(Fox) 	had contacted Whitlow about
getting representation) 	was relatively vague, 	and it was
inconsistent 	with the 	unfair practice 	charge 	he 	filed as 	to 	the
date 	and circumstances of 	the 	conversation with Plessen. 	The
testimony of 	Plessen and Whitlow, 	on the 	other hand, 	was more
detailed, 	and 	it was 	corroborated in part 	by contemporaneous
records 	(Plessen's notes 	and the phone message 	for Whitlow).
Fox may have 	felt 	understandably 	frustrated 	in his 	attempt
to get 	representation from the Association. 	He was, 	by his 	own
account, 	"scared" 	about 	the upcoming conference, 	and he 	found his
request 	for 	representation 	referred 	from Giberson 	to 	Plessen,
then 	from Plessen 	to Whitlow, 	and 	then 	from Whitlow back 	to
Giberson and other 	local 	representatives. 	Fox may have 	felt 	he
found 	the 	explanation 	for his 	frustration 	in Plessen's 	admitted
statement 	he would have 	to 	check on 	the Association's 	legal
obligation to Fox.3 I 	find, 	however, 	Plessen did not 	actually
tell 	Fox that 	as 	a 	conscientious 	objector he 	could not 	get
Association 	representation; 	I 	find Plessen actually referred Fox
3The 	relationship of 	an employee 	organization 	to 	a
conscientious 	objector 	is 	in 	fact 	somewhat 	unusual. 	EERA section
3546.3 	specifically states 	as 	follows:
. 	. 	. 	If such employee who holds
conscientious 	objections 	pursuant 	to 	this
section 	requests 	the 	employee 	organization 	to
use 	the 	grievance 	procedure 	or arbitration
procedure on the employee's behalf, 	the
employee 	organization 	is 	authorized to 	charge
the 	employee 	for the 	reasonable 	cost 	of using
such procedure.
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to Whitlow for such representation as might be 	available, 	and
Whitlow handled the 	referral 	in a normal 	fashion.
Between February and April 	1996, 	Fox and Plessen had several
more conversations, 	sometimes 	in Plessen's 	classroom. 	Since
Plessen was 	also a science 	teacher, 	Fox sometimes went 	to Plessen
to borrow a piece of 	equipment, 	but 	he 	also complained to Plessen
about being constantly harassed by his principal, 	Dr. 	George.
Plessen counseled Fox on how to deal with Dr. 	George, 	and on
Fox's 	career options.
The 	problems 	between Fox and Dr. 	George 	came 	to 	a head on
April 	26, 	1996, 	when the 	two had a conversation in the 	front
office of Northview, 	in the presence of 	students 	and staff. 	Fox
asked Dr. 	George 	for a 	laboratory key to replace 	one 	he 	had 	lost.
Dr. 	George refused, 	saying Fox would have 	to come 	to the 	office
whenever he needed a key. 	Fox objected to this 	arrangement, 	but
Dr. 	George 	insisted. 	The 	two then had a discussion about 	the
parental 	complaint 	procedure 	that 	Fox had experienced 	in
February. 	By Fox's account, 	Dr. 	George was confusing facts, 	and
Fox was trying to clarify them. 	At 	some point, 	Dr. 	George 	told
Fox not 	to interrupt, 	so he 	let her talk and then asked, 	"May I
speak now?" 	When Dr. 	George 	said nothing, 	Fox began to speak,
but Dr. 	George 	said, 	"I 	didn't 	say you could speak." 	Fox
responded, 	"Simon says, 	'May I speak?'" 	At that point, 	Dr.
George went 	to her office 	door and told Fox to go 	in.
By Fox's account, 	Dr. 	George screamed, 	"Get 	in here." 	The
only other witness 	to 	the 	event 	who 	testified described 	this
10

event 	somewhat differently. 	Donald La Plante 	(La Plante), 	a
teacher and Association officer who was present 	at 	the 	time,
testified Dr. 	George's 	tone was 	"relatively polite," 	although he
also 	said her words were 	"yelled loud enough" 	for everyone 	in the
front office to hear. 	He denied Dr. 	George's voice was 	in a
scream.
La 	Plante 	further testified Fox then 	stamped his 	foot 	and
yelled, 	"No." 	Fox did not 	describe 	his own behavior at 	this
point, 	other than to say, 	"I was not 	about 	to walk into a room
with a screaming person like 	that." 	Dr. 	George 	then apparently
got Dr. 	Johnson 	(the deputy superintendent) 	on the phone. 	La
Plante remembered Dr. 	George 	saying, 	"I 	have an insubordinate
employee;" 	Fox 	remembered her 	saying 	she 	had asked him 	into 	the
room and 	he 	had 	refused.
Dr. 	Johnson then came 	to Northview and met privately with
Fox. 	Fox explained the 	situation from his point 	of view; 	he 	said
Dr. 	George was 	a power-mad tyrant 	and he was going to 	sue her
from here 	to kingdom come 	for harassment. 	Dr. 	Johnson told Fox
that 	the 	following Monday there would be 	a meeting 	to 	resolve 	the
differences between Fox and Dr. 	George, 	at which Fox could have
representation.
Fox 	then prepared a written 	request 	for Association
representation. 	The 	request was addressed to Plessen, 	with a
"cc" 	to Whitlow, 	and it read as follows:
I 	am requesting 	legal 	representation 	from
DUEA/CTA/NEA for a meeting with Dr. 	Johnson
(Duarte School District) 	and Dr. 	George
(Principal, 	Northview Intermediate School) 	on
11

Monday, 	April 	29, 	1996 at 	9:00 	during my
second period conference. 	I 	had made a
written 	response 	to 	the 	union once before 	for
representation and did not 	receive 	it. 	I
have 	spoken to my counselor, 	and he 	said that
you have 	a 	"duty of 	fair 	representation" 	and
if you do not 	comply with my request, 	I want
you to know that 	I 	will be 	suing you 	for
"breach of 	duty."
Fox took two copies of 	the 	request 	to 	Plessen's 	classroom, 	where
Plessen was 	in 	front 	of 	his 	class. 	Fox gave Plessen a copy and
asked him to 	sign 	for it. 	Plessen refused to sign, 	but 	Fox still
left 	a 	copy of 	the 	request. 	Plessen then took action on the
request by calling Dr. 	George, 	reading her the request, 	and
explaining 	"we 	need to be 	represented." 	Plessen also 	called
Whitlow to 	ask who would represent 	Fox; 	Whitlow 	said 	she 	herself
would.
Fox himself 	also 	called Whitlow; 	a message 	he 	left 	for her
on April 	26, 	1996, 	stated in part, 	"His attorney has told him to
sue 	for breach of 	duty." 	Whitlow returned the 	call 	the 	same 	day.
She 	told 	Fox 	she 	had a 	calendar 	conflict 	on Monday but 	would
contact 	Dr. 	Johnson and reschedule 	the meeting 	so 	she 	could be
there. 	She did in fact 	call Dr. 	Johnson, 	and they rescheduled
the meeting for Tuesday morning, 	April 	30, 	1996. 	She 	informed
Fox and Plessen of 	the change. 	Before 	the meeting, 	Plessen gave
Fox 	a 	note 	confirming Whitlow would 	represent 	him.
Fox asked a friend, 	Harry Snyder 	(Snyder), 	to attend the
meeting with him 	for 	support. 	When Fox and 	Snyder 	arrived 	for
the meeting, 	Fox introduced Snyder to Whitlow. 	Whitlow was
surprised to 	see 	Snyder there, 	and she 	questioned whether Snyder
12

was 	an attorney. 	Fox thought Whitlow was 	being 	"paranoid" 	about
this; 	Whitlow testified 	she was 	concerned the District 	would only
allow Fox to 	have 	one 	advocate.4 Whitlow agreed Snyder 	could
attend 	the 	meeting.
Before 	the meeting, 	Whitlow talked to Fox; 	Snyder did not
listen 	in. 	Whitlow testified 	she 	advised Fox they were 	there 	to
hear the District's 	concerns, 	and it was better for them not 	to
speak or respond during the meeting, 	but 	rather 	to 	formulate 	a
response 	afterwards. 	Fox testified he 	did not 	recall 	being given
such advice. 	Whitlow testified that 	at 	a 	first 	meeting 	she
normally advises 	employees 	not 	to 	speak, 	and does 	not 	speak much
herself.
When the meeting began, 	it 	soon appeared it would be 	a
different 	and more 	formal meeting than Fox, 	Snyder and Whitlow
expected. 	In addition to Dr. 	Johnson and Dr. 	George, 	the
District 	had its 	attorney present. 	When Dr. 	Johnson started the
meeting, 	he 	said it was 	to review Fox's 	status with the District,
while 	Fox and Snyder had believed 	it 	would be 	to 	resolve
differences between Fox and Dr. 	George.
Fox 	attempted nonetheless 	to go 	through a 	list 	of 	issues
between himself 	and Dr. 	George and to question Dr. 	George 	about
them. 	Whitlow tried to quiet 	Fox with 	"discreet motions" 	Fox did
not 	acknowledge. 	Dr. 	George did not 	answer Fox, 	but 	spoke only
to 	the District's 	attorney. 	After Fox had gone 	through a 	few of
4I 	also 	note Whitlow had 	four days 	earlier 	received Fox's
phone message 	stating, 	"His 	attorney has 	told him to 	sue 	for
breach of 	duty."
13

his 	issues, 	Dr. 	Johnson said this was not 	the purpose of the
meeting, 	which thereafter 	focused on Fox's 	conduct 	and status.
Whitlow took notes 	throughout 	the meeting. 	Fox and Snyder
testified Whitlow 	said nothing 	in 	support 	or defense 	of 	Fox;
Whitlow testified she 	"did not 	speak a 	lot" 	but 	rather 	listened,
took notes, 	and attempted to have 	Fox not 	speak. 	Whitlow
testified she 	did ask what 	the District's 	next 	step would be, 	and
her notes 	appear to 	indicate 	someone asked, 	"What 	happens now?"
Fox 	testified Whitlow did not 	ask 	any 	such 	question.
At 	the end of 	the meeting, 	Dr. 	Johnson said the District
would make 	a decision on Fox's 	status. 	He 	also 	said there would
be 	a meeting that 	afternoon after 	school, 	when 	Fox would receive
his evaluation. 	By the end of 	the morning meeting, 	Fox and
Snyder felt 	the 	decision had been made 	to get 	rid of 	Fox.
Whitlow 	told 	Fox 	she 	suspected he 	would be 	placed on
administrative 	leave, 	and she 	told Fox he 	could call 	her.
At 	the meeting after 	school, 	Fox received not 	only his
evaluation but 	also 	a 	letter 	from Dr. 	Johnson stating Fox was
being placed on 	administrative 	leave 	for 	the 	remainder of 	the
school year. 	Fox did not 	immediately call Whitlow; 	in fact, 	Fox
did not 	remember trying to call Whitlow again until 	June, 	over a
month later. 	A phone message dated May 2, 	1996, 	however,
indicated Fox 	tried 	to 	call 	Whitlow that 	morning. 	Whitlow
testified she 	returned the 	call 	on May 6, 	1996, 	and she and Fox
discussed the possibility of 	filing a grievance. 	She 	told Fox
she 	had gone 	through 	the 	contract 	and had not 	found the 	basis 	for
14

a grievance, 	and she 	invited Fox to go 	through the 	contract
himself 	and get 	back 	to her about 	any possible grievance. 	Fox
testified he 	did not 	remember this 	conversation. 	Fox did not 	get
back 	to Whitlow again 	that 	month.
On May 8, 	1996, 	Fox went 	ahead and filed a grievance 	on his
own, 	without 	consulting or informing the Association. 	Fox's
grievance was addressed to Dr. 	Johnson, 	and it 	alleged Dr.
Johnson and Dr. 	George had 	"violated my rights 	to 	the 	grievance
process 	as 	outlined 	in Article 	4 	of 	the DUEA/DUSD 	agreement."
Dr. 	Johnson responded with a 	letter dated May 9, 	1996, 	stating in
part, 	"The grievance process 	has not been violated because no
grievance 	has been 	filed." 	Dr. 	Johnson advised Fox to 	"call 	your
DUEA representative" 	if he had questions. 	Fox did not, 	however,
call 	the Association at 	that point.
On May 24, 	1996, 	Dr. 	Johnson sent Fox a letter advising him
he 	"shall 	not 	be 	reelected as 	an employee" 	and his 	"employment
with the 	District 	will 	therefore 	end at 	the 	conclusion of 	the
1995-96 	school 	year." 	Fox did not 	contact 	the Association when
he 	received this 	letter.
Also on May 24, 	1996, 	Fox filed a Level II grievance, 	in
response to Dr. 	Johnson's May 9 	letter. 	The Level 	II grievance
stated in part 	as 	follows:
Article 	4.2.1 	states 	before 	filing a written
grievance, 	the grievant must attempt 	to
resolve 	it 	by an 	informal 	conference with the
grievant's 	immediate 	supervisor. 	I was never
given the 	chance 	to do 	so even though Dr.
Johnson said that Dr. 	George 	and 	I would try
to 	resolve 	our differences 	at 	the meeting of
April 30, 	1996. 	At this meeting, 	I wanted to
15

present 	evidence 	showing Dr. 	George had
created 	a 	hostile 	work 	environment 	and by
doing 	so, 	had violated her own code 	of 	ethics
as outlined in E 4319.21(a) 	of 	the District
Policy Handbook. 	Also, 	by creating a hostile
work environment, 	she 	had violated my right
to 	free 	speech which is 	in violation of 	the
district 	loyalty oath 	she 	signed 	and 	in
violation of Article 	20 	of 	the DUEA/DUSD
contract 	["Personal 	and Academic 	Freedom"].
Furthermore, 	Article 4.3.1 	states 	that 	the
immediate 	supervisor 	shall 	communicate 	a
decision to 	the 	employee 	in writing within
(10) 	days after receiving the grievance.
Dr. 	George has not 	responded to me at all.
Once 	again, 	my right 	to due process within
the 	grievance procedure 	has 	been violated.
Fox did not 	consult Whitlow about 	filing this 	Level 	II 	grievance,
but 	he did 	send her a 	copy by certified mail, 	which her office
received on May 28, 	1996.
Dr. 	Johnson denied the Level 	II 	grievance 	in a letter to Fox
dated June 	6, 	1996. 	The 	letter stated in part as 	follows:
Article 	4.2.1 	states 	in 	relevant 	part 	that
"Before 	filing a 	formal 	written grievance,
the grievant must 	attempt 	to 	resolve 	it 	by an
informal 	conferences 	[sic] 	with the
grievant's 	immediate 	supervisor". 	Such a
process presupposes 	that 	a grievance exists.
Neither your Level 	I 	nor Level 	II 	grievance
forms 	identifies 	a 	section of 	the 	current
collective 	bargaining agreement 	that 	has 	been
violated, 	mis-interpreted or mis 	applied
[sic]. 	This precondition must exist before
the 	meeting 	referred to 	in Article 	4.2.1 	can
occur. 	If you wish to file a proper
grievance, 	please 	identify the 	section of 	the
contract 	that 	has been violated. 	The meeting
referred 	to 	in Article 	4.2.1 	can 	only occur
after 	such an 	identification has 	taken place.
[Emphasis 	in original.]
The 	letter 	indicates 	copies were 	sent 	to Whitlow and Plessen,
among others.
16

The week of June 	10, 	1996, 	was Fox's last week as a District
employee. 	On June 10, 	1996, 	he called Whitlow and left a
message, 	saying, 	"He has not 	received a response 	from the
District." 	According to Fox, 	he called again on June 11, 	1996.
It 	is not 	clear exactly when Fox received Dr. 	Johnson's
June 	6 	letter. 	The 	letter was postmarked June 	7, 	1996, 	and was
addressed 	to 	Fox's 	old address 	in La Habra 	rather 	than his
current 	address 	in Monrovia. 	The 	envelope bears 	a 	forwarding
label 	with the 	date 	"06/10/96." 	Fox testified that when he
received the 	letter he made a note on the 	envelope; 	the note 	says
"recieved 	[sic] 	June 10, 	1996." 	Fox also testified, 	however,
that 	he prepared other notes 	the 	same week, 	and those notes 	say
he got the letter on Tuesday, 	June 	11, 	1996. 	At 	least one of
these 	two records 	is 	inaccurate 	as 	to the exact date of 	receipt,
but 	I 	credit 	Fox's 	testimony that 	he 	received the 	letter before
June 13, 	1996.
Fox called Whitlow again on June 	13, 	1996, 	and left 	an
"urgent" 	message 	to call 	him. 	According to Fox's 	testimony, 	and
the notes 	he 	says 	he prepared that week, 	Whitlow's 	secretary told
him Whitlow was 	out 	of 	town, 	but 	the 	secretary would talk 	to
Whitlow and 	then get 	back 	to 	Fox personally. 	According 	to 	Fox
and his notes, 	neither Whitlow nor her 	secretary ever 	called him
back.
Whitlow testified, 	on the 	contrary, 	that 	she 	left 	a message
for Fox on his 	answering machine on June 	11, 	1996. 	Whitlow also
testified she 	called Fox on June 	13, 	1996, 	and they discussed why
17

Fox had not 	received a response 	to his 	grievance, 	although
Whitlow 	"didn't 	have 	the 	document" 	and 	"wasn't 	aware 	of what
grievance 	he 	had 	filed."
With regard to the events of the week of June 	10, 	1996, 	I
credit 	Fox's 	testimony over that 	of Whitlow. 	Whitlow's 	account
of 	the June 	13 	conversation does not make 	sense 	in light 	of 	the
other evidence. 	Whitlow testified that 	at 	the 	time 	of 	the
conversation 	she 	"didn't 	have 	the 	document" 	and 	"wasn't 	aware 	of
what 	grievance 	he 	[Fox] 	had 	filed," 	but 	her office 	had received
Fox's 	Level 	II 	grievance by certified mail 	over two weeks
earlier. 	Whitlow also 	testified 	she 	and 	Fox discussed why Fox
had not 	received a 	response, 	but 	Fox had 	in 	fact 	received the
June 	6 	response 	letter by then. 	Also, 	since the June 	6 	letter
indicates 	copies were 	sent 	to Whitlow and Plessen, 	it 	appears
Whitlow 	should have 	known about 	the 	District's 	response 	by June
13 	even if, 	for some reason, 	Fox himself did not 	tell 	her.
Whitlow may be 	remembering 	another 	conversation 	with 	another
employee about 	another grievance, 	but 	I 	do not believe 	she had
such a conversation with Fox on June 	13, 	1996, 	as 	she 	testified.
Fox's memory and his 	records 	do not 	appear 	to be 	entirely
reliable. 	Nonetheless, 	it 	is hard to believe he would fail 	to
remember 	or 	record 	the 	event 	if 	Whitlow had 	in 	fact 	returned his
calls the week of June 10, 	1996, 	especially his 	"urgent" 	message
of June 	13, 	1996. 	I 	therefore 	find Whitlow did not 	return Fox's
calls the week of June 10, 	1996.
18

At 	the 	time of 	the hearing, 	Fox was unemployed. 	After
leaving the District, 	he 	sought 	employment with 	"under ten" 	other
school 	districts and had three 	interviews. 	In 	some 	of 	the
interviews 	it 	appeared to him 	"things 	shut 	down" 	when he 	had to
explain why he 	could not 	get 	a 	letter of 	reference 	from 	the
District. 	Fox also had two or three 	interviews with employers
other than school 	districts. 	Until 	a 	few weeks before 	the
hearing, 	Fox received unemployment benefits, 	and then he 	had a
computer 	job that 	lasted 	four days. 	He 	testified 	"pretty soon
I'm going 	to 	break 	into 	my 	retirement 	fund" 	and 	"[e]ventually,
I'm going to 	have 	to get 	a 	lesser 	job."
ISSUE
Did 	the Association violate 	its 	duty to provide 	Fox with
fair 	representation?
CONCLUSIONS 	OF 	LAW
As 	the 	charging party, 	Fox has 	alleged that 	the Association,
as 	his exclusive 	representative, 	denied him the 	right 	to 	fair
representation 	guaranteed by 	EERA 	section 	3544.9 	and 	thereby
violated EERA 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 	(UTLA 	(Collins)).) 	In order to establish a
violation of 	the 	duty, 	a 	charging party must 	show the 	exclusive
representative's 	conduct 	was 	arbitrary, 	discriminatory or 	in bad
faith. 	In UTLA 	(Collins), 	PERB stated:
19

. 	. 	. 	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 m i n i m a l . . . .
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. 	(Emphasis added.)" 	[Reed District
Teachers Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB Decision No. 	332, 	p. 	9, 	quoting Rocklin
Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB Decision No. 	124.]
In the present 	case, 	the complaint 	alleges 	three actions as
inconsistent 	with the Association's 	duty of 	fair 	representation:
1. 	Plessen's 	alleged statement 	that 	the Association would
not 	represent 	Fox due 	to his 	status 	as 	a 	religious 	objector.
2. 	Whitlow's 	alleged 	failure 	to 	speak on Fox's behalf 	at
the April 3 0 meeting.
3. 	Whitlow's 	alleged 	failure 	to 	respond to 	Fox's messages
the week of June 10, 	1996.5
5In his opening brief, 	Fox cites 	a 	fourth action: 	the
Association's 	failure 	to help Fox get 	a transfer. 	This 	action,
however, 	is not mentioned in the 	complaint 	or the underlying
charge. 	Furthermore, 	there 	is no evidence that 	Fox ever sought 	a
transfer; 	the only testimony is 	Plessen's 	acknowledgement 	"it 	is
20

possible" 	Fox talked to him about getting a transfer. 	There 	is
insufficient 	evidence 	to make 	any 	findings 	with 	regard 	to 	this
fourth action.
With regard to the 	first 	of 	these 	three alleged actions, 	I
have 	already 	credited 	the 	testimony of 	Plessen 	and Whitlow over
that 	of 	Fox; 	I 	find Plessen did not make 	the alleged statement
either in February 1996 	(as 	Fox testified) 	or in April 	1996 	(as
the 	complaint 	and underlying charge 	alleged).6
With regard to 	the 	second alleged action, 	the 	evidence 	shows
Whitlow 	said 	little 	or nothing 	in Fox's 	support 	or defense 	at 	the
April 	3 0 meeting. 	The evidence also shows Whitlow listened, 	took
notes, 	and attempted to have 	Fox not 	speak. 	Whitlow testified
without 	contradiction this was 	her normal 	practice 	at 	a 	first
meeting, 	and there 	is 	thus no evidence 	her conduct 	at 	the April
3 0 meeting was discriminatory. 	Furthermore, 	Whitlow's 	strategy
of 	listening rather 	than 	speaking has 	not 	been 	shown 	to be
without 	a rational 	basis 	or devoid of honest 	judgment. 	(Cf.
Lindsay Teachers Association 	(Gonzales) 	(1992) 	PERB Decision No.
935 	[no 	apparent 	violation of 	duty where 	exclusive 	representative
failed to 	advocate 	on behalf 	of 	probationary teacher 	at 	meeting
6If 	I 	were 	to 	find Plessen made 	the 	alleged statement 	in
February 1996 	(as Fox testified), 	I 	still could not 	find the
statement 	in 	itself 	constituted 	an EERA violation within 	PERB's
jurisdiction, 	because 	the 	statement 	would have 	been made more
than six months before October 29, 	1996, 	when Fox filed his
charge. 	EERA section 3541.5(a)(1) 	states PERB 	"shall not 	. 	. 	.
[i]ssue 	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 this 	limitation 	is
jurisdictional. 	(Calexico Unified School 	District 	(1989) 	PERB
Decision No. 	754; 	California State University, 	San Diego 	(1989)
PERB Decision No. 	718-H.)
21

at 	which 	teacher was 	informed 	she 	would not 	be 	rehired].)
Whitlow's 	strategy of 	not 	speaking may not 	have 	helped Fox 	any
more 	than his own strategy of 	speaking, 	but 	it 	has not been shown
that 	Whitlow's 	strategy was 	arbitrary or 	in bad 	faith.7
With regard to the 	third alleged action, 	I 	have 	already
credited Fox's 	testimony over that 	of Whitlow; 	I 	find Whitlow did
not 	return Fox's 	calls the week of 	June 	10, 	1996. 	The question
is whether Whitlow's 	failure was merely negligent 	at worst, 	or
whether it 	has been shown to be 	arbitrary, 	discriminatory or 	in
bad 	faith.
In his 	opening brief, 	Fox contends Whitlow's 	failure 	to
return his calls the week of June 	10, 	1996, 	was 	"motivated by a
discriminatory 	intent 	based on his 	status 	as 	a 	conscientious
objector." 	The preponderance 	of 	evidence 	does 	not 	support 	this
contention, 	however. 	Whitlow became aware of Fox's 	status as 	a
conscientious 	objector in September 1995, 	but her 	subsequent
course 	of 	conduct 	does 	not 	show any discriminatory 	intent 	based
on that 	status. 	On the 	contrary, 	Whitlow testified without
contradiction 	she 	empathized with 	Fox's 	concerns 	and 	attempted 	to
accommodate 	them. 	I 	have 	credited Whitlow's 	testimony that 	she
handled Fox's 	representation requests, 	both 	for 	the 	February 	15
parental 	complaint 	conference 	and for the April 	30 meeting, 	as
7It 	is 	true Whitlow never 	implemented the 	next 	step 	in her
strategy: 	to 	formulate with Fox a response 	to the District.
This may be 	explained, 	however, 	by Whitlow's 	failure 	to 	find a
basis 	for a grievance 	(as Whitlow testified) 	or by Fox's 	failure
to consult with Whitlow before 	filing a grievance 	on his 	own 	(as
both Fox and Whitlow testified).
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she 	normally handles 	such requests. 	Nothing Whitlow 	said or did
betrays 	a 	discriminatory 	intent.
On the other hand it 	does appear, 	as 	Fox himself put 	it,
Whitlow 	"was 	just 	an 	extremely difficult 	person 	to 	get 	in 	touch
with." 	Even 	in September of 	1995, 	when Whitlow was 	trying to
accommodate 	Fox's 	concerns, 	Fox 	found he 	had to 	call 	her 	several
times and wait 	"days and days" 	to get 	a call back. 	It 	appears
the 	situation may have been the 	same 	in June of 	1996. 	This
situation might 	evidence 	some negligence on Whitlow's part, 	or at
least 	an overburdened schedule, 	but 	it 	has not been shown to
evidence 	discrimination.
In his opening brief, 	Fox also contends Whitlow's 	failure 	to
return his calls the week of June 	10, 	1996, 	was arbitrary and in
bad 	faith. 	PERB has 	held an exclusive 	representative's 	failure
to 	respond to an employee's 	inquiries may be part 	of 	"a pattern
demonstrating a prima facie showing of an arbitrary failure 	. 	. 	.
to 	fairly represent." 	(American Federation of 	State, 	County and
Municipal Employees, 	International, 	Council 57 	(Dehler) 	(1996)
PERB Decision No. 	1152-H.) 	In the present case, 	however, 	I have
not 	found a 	larger pattern of 	conduct 	demonstrating 	a 	failure 	to
represent 	Fox 	fairly. 	PERB 	has 	also held that 	an exclusive
representative's 	failure 	to 	respond to 	an employee's 	inquiries,
standing alone, 	does not 	demonstrate a violation of 	the 	duty of
fair representation. 	(California 	Faculty Association
(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H; 	Reed District
Teachers Association. 	CTA/NEA 	(Reyes), 	supra, 	PERB Decision
23

No. 	332.) 	In the present case, 	where Whitlow's 	failure to return
Fox's calls the week of June 10, 	1996, 	now stands alone as
evidence 	the Association 	failed to represent 	Fox fairly, 	I
conclude 	Fox has 	not 	proved 	that 	the Association violated 	this
duty.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and upon the entire 	record in this matter, 	it 	is ordered
that 	the 	complaint 	and the 	underlying 	charge 	in Unfair 	Practice
Case No. 	LA-CO-712, 	Nick Fox v. 	Duarte Unified Education
Association, 	are hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
20 	days 	of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before 	the close of business 	(5 p.m.) 	on the 	last 	day
set 	for filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 	shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
24

concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each copy served on 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs
32300, 	32305 and 32140.)
THOMAS J. 	ALLEN
Administrative 	Law 	Judge
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