Mt. Diablo Unified School District (Quarrick and O'Brien) (PERB 0068E)

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STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT QUARRICK 	and 	THELMA 	O'BRIEN,
Charging 	Parties,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
ROBERT QUARRICK 	and 	THELMA O'BRIEN,
Charging 	Parties,
v.
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Respondent.
Case No. 	SF-CE-147
PERB Decision No. 	68
Case No. 	SF-CO-34
August 21, 	1978
Appearances: 	Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& 	Roger) 	for 	Robert Quarrick 	and Thelma O'Brien;
Robert A. Galgani, 	Attorney 	(Breon, Galgani 	& Godino) 	for
Mt. 	Diablo Unified School District; 	Francis R. 	Giambroni,
Attorney 	(White, 	Giambroni 	and Walters) 	for Mt. 	Diablo
Education Association, 	CTA/NEA.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, Members,
DECISION
Charging parties, 	members of 	the Mt. 	Diablo Unified School
District 	faculty, 	are 	appealing 	a 	hearing officer's 	dismissal
of 	two 	jointly 	filed 	unfair 	practice 	charges. 	One 	charge 	is
against 	the Mt. 	Diablo Unified School District 	(hereafter
District) 	and 	the other 	is 	against 	the Mt. 	Diablo Education
Association, CTA/NEA 	(hereafter MDEA), 	the exclusive
representative 	of 	the 	unit 	to which 	the 	charging 	parties 	belong.
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FACTS
The 	hearing 	officer's 	dismissal 	is 	based on 	his 	finding
that 	each of the charges, 	as amended, 	fails 	to state a prima facie
case of 	unfair 	practices. 	Consequently, 	for 	the purposes of
this 	appeal, 	the 	facts 	stated 	therein 	are deemed 	to be
true.1 They 	are 	summarized 	as 	follows:
(1) 	Charging 	parties 	initially 	filed
grievances 	alleging 	that 	the 	District 	had
involuntarily 	transferred 	them 	to 	new
assignments;
(2) 	Subsequently, 	charging parties
requested 	MDEA 	to 	submit 	their 	unresolved
disputes 	to 	binding 	arbitration 	in
accordance 	with Article V, 	section 	132 of
the 	agreement 	negotiated 	by 	the District 	and
MDEA;
1 See 	San Juan Unified 	School District 	(3/10/77) 	EERB
Decision No. 12, at p. 	W.
2Article 	V, 	section 	13 	of 	the 	contract 	between 	the
District 	and 	the MDEA reads 	as 	follows:
The 	Association may 	submit 	the 	grievance 	to
final 	and 	binding 	arbitration 	if 	either:
a. 	The 	grievant 	is 	not 	satisfied with 	the
disposition of 	the 	grievance 	at Step 	2 or
b. 	No written 	decision 	has 	been 	rendered
within 	ten 	(10) 	days 	after 	the 	first meeting
with 	the 	superintendent 	or 	designee.
In either 	case, 	such submission by the
Association must 	be made within 	fifteen 	(15)
days after 	receipt of 	the decision, 	in
writing, 	of 	the 	superintendent or 	his/her
designee. 	That 	demand 	shall 	identify 	each
aspect 	of 	the 	superintendent's 	decision with
which 	the 	grievant 	disagrees. 	The parties
shall 	select 	a mutually 	acceptable
arbitrator. 	Should 	they be 	unable 	to 	agree
on 	an 	arbitrator 	within 	fifteen 	(15) 	days of
the Association's 	submission 	of 	the
grievance 	to arbitration, 	submission of 	the
grievance 	shall 	be made 	to 	the California
State 	Conciliation 	Service 	with 	a 	request
that 	a 	list 	of 	arbitrators 	be 	submitted.
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(3) 	MDEA did 	submit 	the 	issue 	to
arbitration with 	the 	"understanding"3 it
would 	represent 	the 	charging 	parties 	in 	the
arbitration;
(4) 	Charging 	parties 	had 	been 	represented
"up 	to 	that point" 	by an attorney'4 and
preferred 	to 	continue 	that 	representation 	in
the 	arbitration 	hearing 	"as 	provided 	by
Article 	V, 	section 	9;"5
(5) 	MDEA 	indicated 	it 	was 	willing 	to pursue
the 	arbitration 	"so 	long 	as 	they 	[MDEA] 	were
the 	representatives;"
(6) 	The District 	said 	it would discuss 	the
matter 	only 	with 	MDEA.
Charging 	parties 	contend 	that 	the 	foregoing 	facts
constitute 	the 	following 	violations 	of 	the 	Educational
words 	and 	phrases 	in quotation marks 	are 	taken
verbatim 	from 	the 	charges.
4Both 	charging 	parties' 	original 	and 	amended 	charges
stated:
Both 	grievants 	had 	been 	represented 	by 	the
undersigned 	up 	to 	that 	point 	and 	indicated
that 	they 	preferred 	that 	representation 	to
continue 	as provided 	by Article 	5, 	section 	9
of 	the 	grievance 	procedures.
The 	undersigned 	on 	the 	original 	charge 	was
one R. 	Hemann, 	and 	the 	amended charge was
signed 	by one 	S.W., 	an 	attorney. 	The 	actual
identity of 	this 	individual 	is 	immaterial.
The 	rationale 	of 	this 	decision 	is 	equally
applicable 	to 	both 	individuals 	and 	the 	result
would 	be 	the 	same; 	whichever 	was 	the 	actual
representative.
5Article 	V, 	section 	9 	of 	the 	contract 	between MDEA and
the District, 	which 	reads:
The 	grievant 	may 	be 	represented 	by 	the
Association 	or 	any 	eligible 	representative
of his 	own choosing, 	whether 	or 	not 	that
representative 	is 	a 	teacher, 	at 	any formal
step of 	this 	procedure.

Employment 	Relations 	Act6 (hereafter 	EERA) 	by 	both 	the
District 	and 	MDEA:
(1) 	Rights 	under 	section 	3543,7 to represent
themselves;
Educational 	Employment Relations Act 	is 	codified 	at
Government Code 	sec. 	3540 	et 	seq. 	All 	statutory references
hereafter 	are 	to 	the Government Code 	unless 	otherwise 	specified,
7Gov. 	Code sec. 	3543, which states:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the public 	school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 	3544.7, 	no employee 	in 	that 	unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any 	employee may 	at 	any 	time 	present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without the
intervention 	of 	the 	exclusive
representative, 	as long 	as 	the adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 3548.6, 3548.7, and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
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(2) 	Rights under 	section 3543.1(a)8 in
that 	both 	charging 	parties 	are members 	of
another, 	nonexclusive 	employee organization
and 	"that 	the 	other 	organization 	is 	being
denied 	the 	right 	to represent 	its members;"
(3) 	The District 	has 	violated 	the 	charging
parties rights under 	3543.5(a)9 in that it
discriminated 	against 	the 	charging 	parties
by 	withdrawing 	from 	the 	arbitration;
8 Gov. Code sec. 3543.1(a), which states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative of 	an
appropriate 	unit 	pursuant 	to Section 	3544.1
or 	3544.7, 	respectively, only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the public
school 	employer. 	Employee 	organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join 	and may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from membership.
9Gov. Code sec. 	3543.5(a), which states:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	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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(4) 	MDEA violated 	the 	charging 	parties
rights under 	section 3543.6(a) 	and 	( b ) 1 0
because 	its 	action 	caused 	the District 	to
violate 	section 	3543.5(a) 	and MDEA thus
discriminated 	against 	the 	charging 	parties;
and
(5) 	MDEA violated 	its 	duty of 	fair
representation 	mandated 	by
section 	3544.9.H
DISCUSSION
The 	basic 	issues 	raised by the charges, 	as 	amended, 	may be
stated 	as 	follows:
(1) 	Do charging 	parties 	have 	a 	statutory
right 	to represent 	themselves 	in 	an
arbitration?
(2) 	May a nonexclusive 	representative
employee 	organization 	represent 	the 	charging
parties 	in 	the 	arbitration?
(3) 	May an 	individual who 	is 	not 	acting 	for
the 	exclusive 	representative 	represent
charging 	parties 	in 	the 	arbitration?
1 0 Gov. Code sec. 	3543.6(a) 	and 	(b) , which state
It 	shall be 	unlawful 	for 	an employee
organization 	to:
(a) 	Cause or 	attempt 	to cause a public
school 	employer 	to violate Section 	3543.5.
(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.
11Gov. 	Code sec. 	3544.9, which 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.

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(4) 	Was 	there 	a violation of 	the 	negotiated
agreement 	which 	also 	constitutes 	a 	violation
of 	the 	EERA 	subject 	to 	an 	unfair 	practice
charge?
(5) 	Did MDEA breach 	its 	duty of 	fair
representation 	towards 	the 	charging 	parties?
I. 	The 	Right 	to Self-Representation 	in Arbitration
Charging 	parties 	fail 	to overcome 	the 	clear 	meaning 	of
section 	3543. 	The 	pertinent 	portion of 	that 	section 	bears
repeating:
Any 	employee may 	at 	any 	time 	present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the
intervention of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	the 	arbitration...
On 	its 	face, 	the 	statutory 	right 	of 	self-representation
falls 	short 	of 	the 	right 	to 	resort 	to 	the 	arbitration process.
This 	legislative 	limitation 	is 	consistent with 	the 	practice 	in
the 	private 	sector 	and 	takes 	cognizance 	of 	the 	unique 	nature 	of
arbitration 	and 	its 	role 	in 	employer-employee 	relations.
Through 	arbitration, 	the 	very meaning 	of 	the 	negotiated
agreement may 	be 	decided. 	It 	is 	logical 	that 	its 	use 	be
restricted 	to 	the 	parties 	who 	negotiated 	that 	agreement 	and 	who
are, 	therefore, 	the most appropriate 	advocates of 	its
intentions."12
The 	frequent 	reference 	to 	arbitration 	as 	the 	quid 	pro quo
for 	the 	surrender 	of more 	dramatic means 	of 	seeking 	contract
enforcement 	testifies 	to 	its 	role 	in promoting 	stability 	in
12 Vaca v. 	Sipes 	(1967) 	383 U.S. 	171, 	191 	[64 LRRM 2369,
2377].

employer-employee 	relations 	through 	the 	orderly 	resolution 	of
contract 	disputes.13 That 	stability could 	be 	further
endangered 	if 	rival 	employee 	organizations 	were 	authorized 	to
use 	the 	arbitration 	process 	to harass 	the 	exclusive
representative 	or 	derogate 	the 	negotiated 	agreement.14 To
the 	contracting 	parties, 	arbitration 	entails 	financial
obligations 	potentially 	so 	substantial 	as 	to 	threaten 	the
security 	of 	the 	exclusive 	representative 	and 	the 	viability of
the 	public 	budget 	should 	the 	process 	be 	indiscriminately 	used
or 	abused.15 It 	is 	unreasonable 	to 	conclude 	that 	the
Legislature 	would 	impose 	on 	the 	exclusive 	representative 	the
onus 	of 	acceding 	to 	every demand 	for 	arbitration, 	or 	of
entrusting 	the 	integrity of 	the 	agreement 	to 	the 	offices 	of 	any
individual 	employee 	who prefers 	to 	"do 	it 	himself."
We conclude, 	therefore, 	that 	the 	right 	to represent oneself
provided 	for 	in 	section 	3543 	expressly 	excludes 	the 	right 	to do
so 	in an 	arbitration 	case.
II. 	The Right 	to be Represented by 	a Nonexclusive Employee
Organization
In 	another 	case 	involving 	the 	same 	negotiated 	agreement,
the 	Educational 	Employment 	Relations 	Board 	(now Public
Employment 	Relations Board, 	hereafter 	PERB) 	decided 	that 	a
13Steelworkers 	v. 	American Manufacturing Co. 	(1960) 	363
U.S. 	564, 	567 	[46 LRRM 2414, 	2415]
14 Hughes Tool Co. 	v. 	NLRB 	(5th Cir. 	1945) 	147 F.2d 	69 	[15
LRRM 	852]
15 See footnote 	12, 	ante, 	page 	7.
8
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nonexclusive 	employee 	organization 	loses 	the 	right 	to 	represent
its members 	in 	grievances 	once 	an 	exclusive 	representative 	has
been 	recognized 	or 	certified.16
While, 	in that case, 	the 	issue 	involved grievance
procedures 	prior 	to 	arbitration, 	the 	rationale 	is 	equally
applicable 	to 	the 	facts 	at 	hand. 	Charging parties' allegation
of a 	violation of 	section 	3543.1 (a) 	therefore 	fails 	to 	state 	a
prima 	facie 	unfair 	practice 	case.
III. 	The 	Right 	to Be Represented 	by 	an 	Individual
Charging 	parties 	may 	have 	anticipated 	the 	foregoing
result. 	It 	is 	their 	alternative position, 	advanced 	in the
appeal, 	that 	their 	individual 	representative must 	be 	considered
to 	be 	eligible 	to 	represent 	them 	irrespective 	of 	his
association 	with 	the 	nonexclusive 	organization. 	The 	argument
is 	apparently grounded 	on 	language 	found 	in 	another 	portion 	of
the 	first Mt. 	Diablo case.1 7
...Section 	3543 	would 	be 	primarily 	relevant
here 	if 	the Districts, 	instead of refusing
to process 	grievances 	filed 	by 	employee
organization 	representatives, 	had 	refused 	to
process 	grievances 	filed 	by 	individual
employees. 	Concerning
grievance-representation 	rights, 	Government
Code 	Section 	3543 	separates 	and 	treats
differently 	exclusive 	representative 	rights
on 	the 	one 	hand, 	and 	individual employee
rights, 	on 	the other. 	Unlike Government
Code Section 3543.1 (a), Government Code
16Mount 	Diablo Unified 	School District, 	Santa Ana Unified
School 	District, 	Capistrano Unified 	School 	District 	(12/30/77)
EERB Decision No. 	44.
l7Mount 	Diablo Unified 	School District, 	Santa Ana Unified
School District, Capistrano Unified School District, 	supra, 	at
page 	6.
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competing 	employee 	organization which 	is 	not
an exclusive 	representative. 	The 	cases
before 	us 	do not 	concern 	the 	right 	of 	an
individual 	to present 	a 	grievance 	under
Government Code 	Section 	3543, 	but whether 	an
employee organization, 	other 	than 	the
exclusive 	representative, may present 	a
grievance. 	This 	case 	therefore 	falls 	under
Section 3543.1(a) 	alone.
If so, 	their 	reliance 	is misplaced. 	In the earlier case, 	the
charging parties' 	right of 	self-representation 	in 	grievance
procedures 	prior 	to 	arbitration was 	never 	in question. 	The
contested 	issue 	was 	simply who could 	act 	as 	the 	charging
parties' 	representative. 	But we 	have 	already decided 	here 	that
the 	statutory 	right 	of 	self-representation 	does 	not 	extend 	to
the 	arbitration 	stage. 	Their 	representative's 	identity,
therefore, 	is irrelevant. 	His right, 	if any, 	to act as the
charging parties' 	advocate 	is 	born of 	their 	right. 	He cannot
derive 	from 	the 	charging 	parties 	what 	they 	themselves 	do 	not
have.
IV. 	The Alleged Contract Violation
In the original Mt. 	Diablo trilogy, 	the Educational
Employment 	Relations Board 	found 	that 	the 	District 	and MDEA did
not 	intend 	that 	the 	representation 	clause 	(Article V, 	Section
9) 	in 	the 	negotiated 	grievance 	procedure 	constitute 	a waiver 	of
their 	statutory 	right 	to 	bar 	the 	charging 	party 	from
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representation by other than the exclusive representative.18
While 	that 	finding 	related 	solely 	to 	the 	attempted 	selection 	of
1 8 Id. 	at page 11.
10

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a nonexclusive 	organization, 	the principle 	is 	the 	same 	in 	the
case 	at 	hand. 	Neither 	the 	District 	nor 	MDEA waived 	their 	right
to 	bar 	the 	selection of 	an 	individual 	representative.
1Beyond that, we are mindful that section 3541.5(a)19
specifically prohibits 	PERB 	from 	issuing 	a 	complaint 	based 	on
an 	allegation 	of 	breach 	of 	the 	negotiated 	agreement 	unless 	the
facts 	alleged 	independently 	constitute 	an 	unfair 	practice. 	The
allegations 	considered 	up 	to 	this 	point 	fall 	short 	of
satisfying 	this 	requirement.
V. 	The 	Duty of 	Fair 	Representation
A matter 	preliminary 	to 	the 	consideration 	of 	the 	charge 	that
MDEA 	violated 	section 	3544.9 should 	be 	addressed. 	Is 	an 	unfair
practice 	charge 	an 	appropriate 	vehicle 	for 	processing 	this
claim? 	Section 	3541.3(1) 	eliminates 	any doubt 	as 	to 	PERB's
jurisdiction 	in matters of 	this 	kind. 	The 	section 	reads:
19Gov. Code sec. 3541.5(b), which states:
The 	initial 	determination 	as 	to whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what remedy 	is necessary to
effectuate 	the purposes 	of 	this 	chapter,
shall 	be 	a matter 	within 	the 	exclusive
jurisdiction 	of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by
the board 	and 	shall 	include 	all 	of 	the
following:
(b) 	The board 	shall 	not 	have authority 	to
enforce 	agreements between the parties, 	and
shall 	not 	issue 	a complaint 	on 	any charge
based 	of 	alleged 	violation 	of 	such 	agreement
that 	would 	not 	also 	constitute 	an 	unfair
practice 	under 	this 	chapter.
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11

• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
The 	Board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties:
(i) 	To 	investigate 	unfair 	practice 	charges
or 	alleged 	violations 	of 	this 	chapter, 	and
take 	such 	action 	and make 	such
determinations 	in 	respect 	of 	such 	charges 	or
alleged 	violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this
chapter.
The word 	"chapter" 	refers, 	of course, 	to the Educational
Employment Relations Act 	in 	its 	entirety. 	Yet 	at 	first blush,
this 	section 	seems 	to 	preclude 	us 	from 	answering 	this
affirmatively. 	PERB's 	authority 	is 	"to 	investigate 	unfair
practices 	or 	alleged 	violations 	of 	this 	chapter...." 	(Emphasis
added.) 	These 	alternatives 	indicated 	by the 	use of 	the word or_
suggest 	that 	certain 	violations 	are 	not 	considered 	to 	be
"unfair 	practices." 	The 	commonly perceived 	unfair 	practices
are 	enumerated 	in 	the 	various 	subdivisions 	of 	sections 	3543.5
and 	3543.6. 	The duty of 	fair 	representation, 	however, 	is 	found
elsewhere 	in 	the 	statute.
However, 	the 	acts 	prohibited 	by 	section 	3543.5 	and 	3543.6
are 	described 	not 	as 	"unfair 	practices" 	but 	as 	"unlawful." 	No
definition of 	unfair 	practices 	appears 	in 	the 	chapter. 	It 	is
possible, 	therefore, 	that 	the 	range of 	actions which may be
deemed 	as 	unfair 	practices may 	have 	been 	left 	to 	PERB's 	own
determination 	and 	might 	include 	statutory 	violations 	other 	than
those 	in 	3543.5 	and 	3543.6.
This 	is 	the 	nature 	of 	the 	protection 	afforded 	employee
organizations. 	Section 3543.5 (b) 	makes 	it unlawful 	to 	"deny to
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'
employee 	organizations 	rights 	guaranteed 	to 	them 	by 	this
chapter." 	(Emphasis 	added.) 	By 	this 	omnibus provision, 	any
distinction 	between 	the 	unlawful 	acts 	specified 	and 	other
violations 	of 	the 	chapter 	is 	effectively erased. 	While 	no
directly 	comparable 	language 	is 	to be 	found which 	is 	applicable
to 	individual 	employees, 	we 	find 	that 	"omission" 	to be without
significance 	in 	this case. 	Individual 	employees 	are provided
with 	broad 	protection 	against 	unlawful 	employers' 	acts 	by
section 3543.5 (a) 	and 	employee organizations' 	acts by section
3543.6(a) 	and 	(b). 	The 	latter 	subsection seems 	broad enough to
shelter 	the 	allegations 	contained 	in 	the 	current 	charge.
Section 	3543.6(b) 	prohibits 	discrimination or 	threat 	of
discrimination 	against 	employees 	by 	an 	employee 	organization.
Charging 	parties 	specifically 	allege 	that 	MDEA 	violated 	its
duty 	to fairly 	represent 	each 	employee 	in 	the 	unit 	by
discriminating 	against 	them 	in 	denying 	their 	request 	because 	of
their 	membership 	in 	another 	employee organization. 	The 	right
to 	be 	fairly 	represented must 	be 	read 	into 	the 	section
3543.6(b) 	guarantee 	against 	discrimination 	or 	threat 	of
discrimination 	by an employee organization. 	Therefore, 	a
default of 	this 	kind 	in 	the performance of obligations 	under
section 	3544.9 	amounts 	to 	an 	infringement 	of 	section 	3543.6(b)
rights 	and 	is 	properly 	the 	subject 	of 	an 	unfair 	charge.
However, 	we 	find 	no 	basis 	for 	reversing 	the 	hearing
officer's 	order 	of 	dismissal. 	Since MDEA was 	under 	no
statutory 	obligation 	to 	permit 	the 	charging 	parties 	to
represent 	themselves, 	or 	to be 	represented by others, 	its
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refusal 	to 	accommodate 	the 	demand made 	upon 	it 	cannot 	in 	itself
constitute 	an 	act 	of 	discrimination 	or 	breach 	of 	the 	duty of
fair 	representation . 	Absent 	an 	allegation of 	fact 	indicating
that 	MDEA 	treated 	other 	requests 	for 	self-representation 	in
arbitration proceedings 	in 	a 	favorable 	manner, 	the 	charge 	is
merely 	an 	unfounded 	conclusion 	and 	is 	insufficient 	to 	support 	a
prima 	facie 	showing 	of 	discrimination .
Beyond 	that, 	charging 	parties 	acknowledge 	that 	MDEA offered
to, 	and 	actually did, 	submit 	their 	grievances 	to 	arbitration
and 	to 	act 	as 	their 	representative 	in 	the 	subsequent
proceeding . 	The 	charging 	parties 	turned MDEA 	away. 	Only 	in
the 	face 	of 	this 	uncompromising 	rejection of 	its 	services, 	did
MDEA decline 	to 	go 	further 	with 	the 	case. 	We 	find 	in 	this
unequivocal 	admission 	no 	basis 	of 	a 	charge 	of 	violation 	of
section 	3544 . 9.
Other 	charges 	against 	the 	District 	and MDEA 	are 	derivative
of 	those 	considered 	above 	and 	share 	their 	disposition.
ORDE R
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	IT 	IS ORDERED 	that :
The 	hearing 	officer ' s 	dismissal 	of 	the 	two 	charges 	filed
jointly by 	Robert 	Quarrick 	and 	Thelma 	O' Brien 	against 	the
Mt. 	Diablo Unified 	School 	District 	and 	the 	Mt . 	Diablo Education
Association, 	CTA~A, 	is 	sustained .
Harry 	Gluck, 	Chairperson 	Jerilou Cossack 	Twohey, 	Member
Raymond 	J. 	Gonzales, 	Member
I
/
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