Capistrano Unified Education Association, CTA/NEA (La Marca) (PERB 1422E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JEFFRY PETER LA MARCA,
Charging Party, Case No. LA-CO-858-E
Vv. -PERB Decision No. 1422
CAPISTRANO UNIFIED EDUCATION February 26, 2001
ASSOCIATION, CTA/NEA,
Respondent.

Appearances: Jeffry Peter LaMarca, on his own behalf; California Teachers Association by
Robert E. Lindquist, Attorney, for Capistrano Unified Education Association, CTA/NEA.

Before Amador, Baker and Whitehead, Members.
DECISION

AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Jeffry Peter LaMarca (LaMarca) to a Board agent's dismissal (attached)
of his unfair practice charge. The charge alleges that the Capistrano Unified Education
Association, CTA/NEA (Association) breached its duty of fair representation, violating section
3543.6 of the Educational Employment Relations Act (EERA)', by failing to assist him ina
matter with his previous employer. |

After considering the entire record, the Board hereby adopts the dismissal and warning

letter as the decision of the Board itself.

' EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. LA-CO-858-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

STA
TE
OF
CAUFCR~ili'<
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1515
Clay Street, Suite 2201
Oakland, CA
946
i 2
(510)
622-1016
November
	13,
	2000
Jeffry
	Peter
	La
	Marca
17
	El 	VaqueroRancho
	Santa
	Margarita,
	CA
	92688-1959
Re:	
DISMISSAL
	OF
	CHARGE/REFUSAL
	TO
	ISSUE
	COMPLAINT
Jeffry
	Peter
	La
	Marca
	v.
	Capistrano 	Unified 	Education
Association,
	CTA/NEA
Unfair
	Practice
	Charge
	No. 	LA-CO-858
Dear
	Mr. 	La
	Marca:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	October
	20,
2000,
	alleges 	the 	Capistrano 	Unified 	Education
	Association,
CTA/NEA
	(Association)
1	
breached
	its
	duty 	of
	fair
	representation
by
	failing
	to
	assist
	you
	in
	a
	matter 	with
	your
	previous
	employer,
the 	Victor
	Elementary
	School
	District
	(Victor
	School
	District).
You
	allege
	this
	conduct
	violates
	Government
	Code
	section
	3543.6
of 	the 	Educational
	Employment
	Relations
	Act
	(EERA
	or Act).
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated
	November
	1,
	2000,
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
November
	8, 	2000,
	the
	charge
	would 	be
	dismissed.
I
	have
	not 	received
	either
	an
	amended
	charge 	or
	a
	request 	for
withdrawal. 	Therefore,
	I 	am
	dismissing 	the 	charge 	based 	on 	the
facts
	and
	reasons 	contained 	in
	my
	November
	1, 	2000,
	letter.
1
Charging 	Party 	alleges 	the 	California 	Teachers
Association
	(CTA)
	and the 	National 	Education Association
	(NEA)
also 	breached
	their
	duty 	of 	fair 	representation.
	However, 	mere
affiliation 	of 	the 	local 	organization with
	CTA
	or
	NEA
	is
insufficient 	to
	make 	CTA
	or
	NEA
	the 	exclusive 	representative, 	and
thus 	they 	are 	not 	liable 	for 	violations 	of 	the
	EERA. 	(Fresno
Unified 	School 	District
	(1982) 	PERB 	Decision No. 	208.)

Dismissal
	Letter
LA-CO-858
Page
	2
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
	Regs.,
	tit.
	8,
sec.
	32635(a)
.)
	Any
	document
	filed
	with
	the
	Board
	must
	containthe 	case
	name
	and
	number,
	and
	the
	original
	and
	five
	(5)
	copies
	of
all
	documents
	must 	be
	provided
	to
	the
	Board.
A
document
	is
	considered
	"filed"
	when
	actually
	received 	beforethe
	close 	of 	business
	(5
	p.m.)
	on
	the
	last
	day
	set
	for
	filing
	or
when
	mailed
	by
	certified
	or
	Express 	United
	States
	mail, 	as
	shown
on
	the
	postal 	receipt 	or
	postmark,
	or 	delivered
	to
	a 	common
carrier
	promising 	overnight
	delivery,
	as
	shown
	on
	the
	carrier's
receipt,
	not
	later
	than 	the
	last
	day
	set 	for
	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec.
	32135(a); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is
	also
	considered
	"filed"
	when
	received
	by
	facsimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing
	together
	with
	a
	Facsimile
	Transmission
	Cover
	Sheet
	which
meets
	the 	requirements 	of 	Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32135(d),
provided
	the
	filing
	party also
	places 	the
	original,
	together
	with
the 	required
	number
	of 	copies
	and
	proof 	of
	service, 	in
	the
	U.S.
mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135(b),
	(c)
	and
	(d);
see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and 	32130.)
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174
FAX:
	(916) 	327-7960
If
	you
	file
	a
	timely 	appeal 	of 	the 	refusal 	to 	issue
	a
	complaint,
any
	other 	party
	may
	file
	with 	the
	Board an
	original
	and
	fivecopies 	of
	a
	statement 	in 	opposition within 	twenty
	(20)
	calendar
days 	following 	the 	date 	of 	service 	of 	the 	appeal. 	(Cal.
	Code
Regs.,
	tit.
	8,
	sec. 	32635(b).)
Service
All 	documents 	authorized 	to
	be
	filed 	herein
	must
	also
	be 	"served"upon
	all 	parties 	to 	tne.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
	Regs.,
	tit.
	8,
sec. 	32140
	for 	the 	required 	contents 	and 	a 	sample 	form.) 	The
document 	will 	be 	considered 	properly 	"served" 	when 	personally

Dismissal 	Letter
LA-C0-858
Page 	3
delivered 	or 	deposited 	in 	the 	first-class 	mail, 	postage 	paid 	and
properly 	addressed. 	A document 	filed 	by 	facsimile 	transmission
may 	be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties 	to 	the 	proceeding. 	(Cal. 	Code 	Regs., 	tit. 	8, 	sec.
32135 (c) . )
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 	Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By
Kristin 	L. 	Rosi
Regional 	Attorney
Attachment
cc: 	Robert 	Lindquist, 	Esq.

STA
TE
OF
CALiFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional Office
i 5 i 5 Ciay Street, Suite
220i
Oakland, CA
9461
2
(510)
622-1016
November
	1,
	2000
Jeffry
	Peter
	La
	Marca
17
	El 	Vaquero
Rancho
	Santa 	Margarita,
	CA
	92688-1959
Re:	
WARNING
	LETTER
Jeffry
	Peter
	La
	Marca
	v. 	Capistrano 	Unified
	Education
Association,
	CTA/NEA
Unfair
	Practice
	Charge
	No. 	LA-CE-858
Dear
	Mr.
	La
	Marca:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	October
	20,
2000,
	alleges
	the 	Capistrano 	Unified
	Education
	Association,
CTA/NEA
	(Association)
1	
breached
	its
	duty 	of
	fair
	representation
by
	failing 	to
	assist
	you
	in
	a
	matter
	with 	your
	previous
	employer,
the 	Victor
	Elementary
	School
	District
	(Victor
	School
	District).
You
	allege
	this
	conduct
	violates
	Government
	Code
	section
	3543.6
of 	the 	Educational
	Employment
	Relations
	Act
	(EERA
	or
	Act)
. 2
Investigation 	of 	the 	charge
	revealed 	the 	following.
	Charging
Party
	has 	been
	employed 	by
	the 	Capistrano 	Unified
	School
	District
(District)
	as
	a
	Music
	Teacher,
	since
	1996.
	For
	the 	ten 	years
prior 	to
	1996, 	Charging
	Party
	was
	employed 	by
	the 	Victor
Elementary 	School
	District.
	During
	his
	employment
	with Victor
School
	District,
	Charging
	Party
	filed
	numerous
	complaints 	against
the 	Principal 	of 	his
	school 	and
	the 	Victor
	School
	District
itself.
	These 	complaints 	included 	alleged 	violations
	of
	state
1	
Charging 	Party 	alleges 	the 	California
	Teachers
Association
	(CTA)
	and
	the 	National 	Education Association
	(NEA)
also 	breached
	their
	duty 	of
	fair
	representation.
	However, 	mere
affiliation
	of 	the 	local 	organization with
	CTA
	or
	NEA
	is
insufficient 	to
	make
	CTA
	or
	NEA
	the 	exclusive 	representative,
	and
thus 	they 	are 	not
	liable 	for 	violations 	of 	the
	EERA.
	(Fresno
Unified 	School
	District
	(1982) 	PERB
	Decision
	No.
	208.)
2	
Charging 	Party 	also 	alleges
	a
	violation 	of 	the 	Ralph
	C.
Dills 	Act 	(Dills 	Act). 	However, 	as 	an 	employee 	of
	a
	school
district, 	Charging 	Party 	is 	covered 	only by 	the
	EERA. 	Thus,
should 	Charging 	Party amend
	this 	charge, 	this 	correction 	should
be 	made.

Warning
	Letter
LA-C0-858
Page
	2
and
	federal
	law.
	It
	appears
	none
	of
	the 	complaints
	resulted 	inaction
	taken
	against
	the
	Victor
	School
	District.
On
	April
	19,
	2000,
	the
	California
	Commission
	on
	Teacher
Credentialing 	sent
	Charging
	Party
	a
	letter
	stating
	it
	was
investigating
	Charging
	Party
	for 	alleged
	violations
	occurring
when
	Charging
	Party
	was
	employed by
	the 	Victor
	School
	District.
Charging
	Party
	does
	not
	explain 	the 	nature 	of 	those
	allegations,
nor
	does 	Charging
	Party provide
	PERB
	with
	a
	copy
	of 	the
allegations
	filed
	against
	him.
	It
	is
	Charging
	Party's 	beliefthat
	these 	charges
	were
	filed
	against
	him
	in
	retaliation
	for
	thecomplaints
	he
	filed
	over
	the
	last
	several 	years
	against 	the
Victor
	School
	District,
	and
	because
	of
	inflammatory
	statements
made
	on
	Charging
	Party's
	website.
On
	April
	22, 	2000,
	Charging
	Party 	sent
	an
	electronic
	message
	to
Association
	representatives
	Barbara 	Scholl
	and
	Chris 	Kirkland.
The
	message
	stated
	in 	relevant
	part:
CTA
	and
	NEA
	have
	caused
	enough 	harm
	by
refusing 	to
	help
	me 	-
	no
	legal 	assistance,negotiating
	pay
	cuts,
	the
	latest
	salary
schedule
	nonsense,
	etc.,
	etc.
	Now,
	they 	are
REQUIRED
	to
	help
	(and 	no,
	I
	will
	NOT
	drop
	my
charges 	against
	CUEA,
	CTA
	and
	NEA
	with
	PERBs,
the
	United
	States
	Department
	of
	Justice,
	and
United
	States
	Department
	of
	Labor
	for 	the
harm
	they
	have
	already
	done 	and
	their
	refusalto 	represent
	me
	in
	good
	faith.)
	As
	you
	will
see, 	the 	bastards
	from
	the 	Victor
	ElementarySchool
	District
	are
	at
	it
	again
	-
	guess
	my
HONEST
	website 	has
	finally 	hit
	too
	close
home.
I 	am
	aware
	that
	CTA
	was
	prepared
	to
	spend
over 	$48.000
	to
	defend 	the 	teacher 	that
	was
fired
	from
	CUSD.
	While
	I
	don't
	know
	the
details
	of
	that 	case.
	I 	demand
	that
	I
	receive
comparable
	legal 	services
	from
	CT.~/NK~.
	for
this 	latest
	vicious
	scam.
	Furthermore,
	I 	am
going
	to
	demand
	that
	CTA/NEA
	sue·the 	VictorElementary 	School
	District,
	on
	my
	behalf, 	for
the 	significant 	long-term pain
	and
	suffering
this
	has 	caused
	my
	family.
* 	* ' 	* 	* 	*
ANY 	REFUSAL
	ON
	CTA'S 	PART TO 	PROVIDE
REPRESENTATION 	IN 	THIS 	MATTER, 	AS 	WELL 	AS
REPRESENTATION 	IN GOOD 	FAITH 	(which, 	as
	I

Warning
	Letter
LA-CO-858
Page
	3
come
	to
	expect
	is
	the
	norm
	for
	CTA/NEA)
	will
result
	in
	immediate
	additional
	charges
	filed
with
	PERB's,
	the
	US
	Dept.
	of
	Justice
	and
	the
US
	Dept.
	of
	Labor.
The
	Association 	did
	not 	respond
	to
	this
	request
	for
representation.
	On May
	24, 	2000,
	the
	Commission
	on
	Teacher
Credentialing 	closed
	its
	investigation
	of
	Charging
	Party
	and
recommended
	that
	no
	adverse
	action
	be
	taken.
On
	September 	1,
	2000,
	Charging
	Party 	sent 	another
	letter
	to
	the
Association.
	This 	time,
	Charging
	Party 	requested 	the 	Association
filed
	a
	lawsuit 	against
	the 	Victor
	School
	District
	for
	its
	filing
of
	allegations 	against
	Charging
	Party.
	The
	Association 	did
	not
respond
	to
	this
	request.
Based on
	the
	above
	stated 	allegations,
	the
	charge
	as
	presently
written,
	fails
	to
	state
	a
	prima
	facie
	violation
	of 	the
	EERA,
	forthe 	reasons 	provided
	below.
Charging
	Party
	has
	alleged
	that
	the 	exclusive
	representative
denied 	Charging
	Party 	the
	right 	to
	fair
	representation
	guaranteed
by
	EERA
	section
	3544.9
	and
	thereby
	violated 	section
	3543.6(b).
Specifically,
	Charging
	Party 	alleges
	the 	Association
	breached
	its
duty
	by
	(1)
	failing
	to
	assist
	him
	with 	the
	Commission 	on
	Teacher
Credentialing 	investigation,
	and
	(2)
	by
	failing
	to
	file
	a
	lawsuit
against 	the 	Victor
	Elementary 	School
	District.
The
	duty 	of
	fair
	representation
	is
	limited 	to 	contractually-based
remedies 	under
	the 	union's 	exclusive 	control.
	(San
	Francisco
Classroom
	Teachers 	Association
	(Chestangue)
	(1985)
	PERB
	Decision
No. 	544
	(association
	not 	required 	to 	represent 	teacher 	in
Education
	Code
	proceedings).)
	As
	such,
	PERB
	will
	dismiss 	charges
based
	on
	a
	union's 	failure 	to
	pursue 	noncontractual
administrative 	or 	judicial
	remedies. 	(Id.) 	Since 	the
	employee
may
	retain 	private
	counsel
	for 	representation 	in 	thesenoncontractual 	matters, 	the 	union's 	refusal
	does
	not 	bar 	the
individual
	from
	seeking 	redress
	on
	his 	or 	her
	own.
	(California
State
	Employees
	Association
	(D~rzins)
	(1985)
	PERB
	Decision
	No.
546-8.)
Herein, 	Charging 	Party 	alleges 	the 	Association 	failed 	to 	assist
him
	in
	two
	noncontractual 	matters.
	As
	noted 	above,
	the
Association
	is
	not 	obligated 	to 	assist
	Charging 	Party with
matters 	before 	the 	State
	Commission 	on Teacher 	Credentialing, 	nor
is
	Charging 	Party 	obligated 	to 	file
	a
	lawsuit 	against 	the 	conduct
of
	a
	former 	employer, 	since 	the 	matters 	are 	clearly 	outside 	any
contract. 	Indeed, 	the 	Association 	does 	not 	even 	possess
	a
contractual 	relationship 	with 	the 	Victor 	Elementary 	School
District, 	and 	as 	such, 	any 	action 	against 	the 	Victor 	School

Warning 	Letter
LA-C0-858
Page 	4
District 	would 	be 	clearly 	extra-contractual. 	As 	such, 	this
charge 	fails 	to 	state 	a 	prima 	facie 	violation 	of 	the 	EERA.
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 	have 	the 	case 	number 	written 	on 	the 	top 	right
hand 	corner 	of 	the 	charge 	form. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service 	must 	be 	filed 	with 	PERB. 	If 	I 	do 	not 	receive 	an
amended 	charge 	or 	withdrawal 	from 	you 	before 	November 	8, 	2000, 	I
shall 	dismiss 	your 	charge. 	If 	you 	have 	any 	questions, 	please
call 	me 	at 	(510) 	622-1016.
Sincerely,
(~~~Kristin 	L. 	Rosi
Regional 	Attorney