California School Employees Association (Dyer) (PERB 0342EA)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
THERESE
	M.
	DYER,
Charging
	Party,
v.
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION,
Respondent.
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Case 	No. 	SF-CO-180
Request
	for 	Reconsideration
PERB
	Decision
	No. 	342
PERB
	Decision
	No.
	342a
May
	22,
	1984
Appearances: 	John 	F. 	Henning,
	Attorney
	(Henning,
	Walsh 	&
Ritchie)for 	the
	Charging
	Party.
Before
	Hesse,
	Chairperson; 	Jaeger
	and
	Morgenstern,
	Members.
DECISION
JAEGER, 	Member: 	The
	Public
	Employment
	Relations
	Board
(PERB
	or 	Board), 	having 	duly 	considered 	Therese
	M.
	Dyer's
request
	for
	reconsideration,
	hereby
	denies
	that
	request.
DISCUSSION
Therese
	M.
	Dyer
	requests 	reconsideration 	of
	PERB
	Decision
No.
	342,
	in
	which
	the
	Board
	affirmed
	a
	Regional
	Attorney's
dismissal 	of
	her
	unfair 	practice
	charge
	alleging
	a
	breach
	of
the 	duty 	of
	fair
	representation
	by
	the 	California
	School
Employees
	Association
	(CSEA).l 	The 	gravamen
	of 	the
lpERB
	rules 	are 	codified 	at 	California 	AdministrativeCode,
	title
	8, 	section
	31001
	et
	seq.
	PERB
	rule 	32410(a), 	which
governs 	reconsideration 	requests, 	provides:
Any
	party 	to
	a
	decision 	of 	the 	Board
	itself
may, 	because 	of 	extraordinary 	circumstances,

file 	a 	request 	to 	reconsider 	the 	decision
within 	20 	days 	following 	the 	date 	of 	service
of 	the 	decision •••• 	The 	grounds 	for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the 	decision 	of 	the 	Board 	itself
contains 	prejudicial 	errors 	of 	fact, 	or
newly 	discovered 	evidence 	or 	law 	which 	was
not 	previously 	available 	and 	could 	not 	have
been 	discovered 	with 	the 	exercise 	of
reasonable 	diligence.
charge 	was 	CSEA's 	failure 	to 	appeal 	a 	Superior 	Court 	decision
dismissing 	a 	civil 	suit 	filed 	on 	Dyer's 	behalf 	against 	the
Laguna 	Salada 	Union 	School 	District 	(District). 	The 	Court 	had
concluded 	that 	the 	District's 	alleged 	violation 	of 	the
Education 	Code 	could 	be 	an 	unfair 	labor 	practice 	over 	which 	the
Board 	has 	initial 	exclusive 	jurisdiction. 	The 	Board 	found 	no
basis 	for 	concluding 	that 	CSEA's 	decision 	not 	to 	appeal 	the
Court 	decision 	was 	arbitrary, 	discriminatory 	or 	made 	in 	bad
faith.
Dyer 	bases 	her 	request 	for 	reconsideration 	on 	a 	claimed
change 	in 	the 	legal 	standard 	of 	the 	duty 	of 	fair
representation, 	citing 	Dutrisac 'v. 	Caterpillar 	Tractor 	Co.
(9th 	Cir. 	1983) 	F. 2d 	[113 	LRRM 	3532]. 	Dyer 	contends
that, 	under 	Dutrisac, 	supra, 	the 	"arbitrary, 	discriminatory, 	or
bad 	faith" 	standard 	articulated 	in Vaca 	v. 	Sipes 	(1967) 	386
U.S. 	171 	and 	followed 	by PERB 	in 	the 	underlying 	Decision, 	has
been 	replaced 	by 	a 	standard 	of 	"negligence." 	CSEA 	did 	not
respond 	to 	the 	request.
2

Dyer's 	interpretation 	of 	Dutrisac, 	supra, 	gives 	it 	a
meaning 	beyond 	that 	intended 	by 	the 	9th 	Circuit. 	Rather 	than
replacing 	the 	standard 	for 	adjudicating 	alleged 	violations 	of
the 	duty 	of 	fair 	representation 	enunciated 	by 	the 	U.S. 	Supreme
Court 	in Vaca, 	Dutrisac 	merely 	clarified 	the 	term 	"arbitrary,"
one 	part 	of 	the 	Vaca 	standard.2 	Thus, 	the 	Court 	found 	that
the 	negligent, 	"unexplained 	and 	unexcused" 	failure 	to 	perform 	a
"ministerial 	act," 	such 	as 	failing 	to 	file 	a 	timely 	grievance,
could 	support 	a 	finding 	of 	a 	breach 	of 	the 	duty 	of 	fair
representation. 	The 	Court 	distinguished 	such 	cases 	from 	those
in 	which 	the 	union's 	"failure" 	was 	essentially 	the 	consequence
of 	a 	judgmental 	decision. 	The 	Court 	noted 	as 	three 	common
examples 	of 	such 	cases 	those 	involving 	the 	union's 	evaluation
of 	merits 	of 	a 	grievance, 	its 	interpretation 	of 	the 	collective
bargaining 	agreement, 	and 	its 	decision 	as 	to 	the 	presentation
of 	a 	grievance.
Here, 	CSEA's 	"failure" 	to 	appeal 	the 	Superior 	Court
decision 	was 	the 	consequence 	of 	a 	conscious 	decision 	based 	on
the 	exercise 	of 	judgment. 	That 	decision 	was 	clearly 	not 	based
on 	an 	unexcused 	and 	unexplained 	failure 	to 	perform 	a
ministerial 	act.
2we 	limit 	this 	decision 	to 	the 	determination 	that 	the
Dutrisac 	decision 	does 	not 	justify 	granting 	Dyer's 	request 	for
·reconsideration. 	In 	so 	ruling, 	we 	do 	not 	imply 	either 	the
adoption 	or 	rejection 	of 	the 	Court's 	analysis.
3

In
	addition,
	Dyer
	raises
	a
	second
	theory
	by 	which
	CSEA
allegedly
	breached
	its
	duty
	of
	fair
	representation.
Specifically,
	Dyer
	argues
	that
	CSEA
	negligently
	advised
	her
that
	the 	proper
	forum
	for
	adjudicating
	her
	claim
	against
	the
District
	was
	in 	superior 	court
	and
	not 	before
	PERB.
Dyer's
	argument
	is
	without
	merit.
	CSEA's
	decision 	to
pursue 	Dyer's 	claim
	through
	a
	suit
	in
	superior 	court
	while
	a
charge
	was
	pending
	before
	PERB,3 	and
	the
	Court's
	subsequent
decision 	to
	defer 	to
	PERB's
	initial
	exclusive
	jurisdiction,
does
	not, 	in
	and
	of
	itself,
	state
	a
	prima
	facie 	violation 	of
the 	duty
	of
	fair
	representation.
	Quite
	the
	contrary.
California 	courts,
	not
	PERB,
	are
	empowered
	to 	enforce 	the
Education
	Code, 	and 	CSEA's
	attempt
	to 	obtain
	relief
	through
	the
judicial
	system
	of
	Dyer's 	claim
	that
	the
	District
	violated
	the
Education
	Code 	by
	unlawfully
	transferring
	her
	was 	an
appropriate 	exercise 	of
	judgment.
	That 	the
	court
	might
	dismiss
the 	case
	on
	administrative
	preemption 	grounds
	was 	a
	calculated
3The
	complicated 	~rocedural
	history 	of
	this
	case
	is
	noted
in 	the 	underlying 	Decision.
	Briefly,
	Dyer 	had
	filed
	a
	PERB
charge 	against
	the
	District
	(SF-CE-319)
	in
	October 	1979,
	prior
to
	CSEA's
	filing 	suit
	in
	San Mateo 	County
	Superior 	Court
	in
July
	1980.
	Dyer's
	private 	attorney
	withdrew
	that
	charge 	with
prejudice 	in
	November 	1981,
	prior 	to 	the 	Superior 	Court
dismissal 	of
	her
	suit
	in February 	1982.
	In 	July
	1982, 	a
	PERB
hearing 	officer
	denied 	Dyer's 	request 	to
	reopen 	case
	SF-CE-319
because
	it
	had 	been 	withdrawn 	with 	prejudice.
	Dyer
	did 	notappeal
	this 	determination 	to 	the 	Board
	itself.
4

risk
	concerning
	an
	issue
	where
	there
	is
	emerging
	precedent.4
Taking
	that 	risk 	certainly
	does
	not
	evidence
	a
	negligent
failure
	to
	perform
	a
	ministerial 	act,
	let
	alone 	demonstrate
arbitrary,
	discriminatory,
	or
	bad
	faith
	conduct.
Accordingly, 	Dyer's 	request
	for
	reconsideration
	is
	denied.
ORDER
The
	Board,
	finding
	no
	grounds
	for
	reconsideration
	of
	its
Decision
	No.
	342,
	DENIES
	petitioner's
	request
	therefor.
Chairperson
	Hesse
	and 	Member
	Morgenstern
	joined 	in
	this
Decision.
4see,
	e.g.,
	El
	Rancho
	Unified 	School
	District
	v.
	PERB
(1983) 	33
	Cal.3d 	946; 	Link 	v. 	Antioch 	School
	District7T983)
124
	Cal.App.3d 	43;
	FresrioUnified 	School
	District
	v.
	National
Education Assn. 	(1981) 	125 	Cal.App.3d 	259; 	San 	Diego 	TeachersAssn. 	v. 	Superior 	Court 	(1979) 	24
	Cal.3d
	l.
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