Berkeley Federation of Teachers, Local 1078, AFL-CIO (Moore) (PERB 0658E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WILCIA SMITH MOORE,
Charging Party, 	Case No. SF-CO-310
v . 	PERB Decision No. 658
BERKELEY FEDERATION OF TEACHERS, 	February 22, 1988
LOCAL 1078, AFL-CIO
Respondent.
Appearances: 	Wilcia Smith Moore on her own behalf.
Before Hesse, Chairperson; Porter, Shank, and Cordoba, Members.
CASE HISTORY
HESSE, Chairperson: Charging party, Wilcia Smith Moore,
filed an unfair practice charge against respondent, Berkeley
Federation of Teachers, Local 1078, AFL-CIO (Union) , on
February 2, 1987. In her charge, she alleged that respondent
had violated sections 3543.2, 3543.5, and 3543.6 of the
Educational Employment Relations Act (EERA or Act) . The
charge was dismissed, in a letter attached hereto, on
September 29, 1987, and an appeal was timely filed.
On appeal, this Board reviews the record de novo, ~ and
JEERA is codified at Government Code section 3540 et
sea. . Unless otherwise indicated, all statutory references
herein are to the Government Code.
2Because our review of the file is de novo, we need not
address charging party's request to remove the regional
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYr1ENT 	RELATIONS 	BOARD
WILCIA 	SMITH MOORE,
Charging 	Party,
v.
BERKELEY 	FEDERATION OF 	TEACHERS,
LOCAL 	1078, 	AFL-CIO
Respondent.
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Case 	No. 	SF-C0-310
PERB 	Decision 	No. 	658
February 	22, 	1988
___________________ )
Appearances: 	Wilcia 	Smith 	Moore 	on 	her 	own 	behalf.
Before 	Hesse, 	Chairperson; 	Porter, 	Shank, 	and 	Cordoba, 	Members.
CAS.t.; 	H H:i'l'U.KY
HESSE, 	Chairperson: 	Charging 	party, 	Wilcia 	Smith 	Moore,
filed 	an 	unfair 	practice 	charge 	against 	respondent, 	Berkeley
Federation 	of 	Teachers, 	Local 	1078, 	AFL-CIO 	(Union), 	on
February 	2, 	1987. 	In 	her 	charge, 	she 	alleged 	that 	respondent
had 	violated 	sections 	3543.2, 	3543.5, 	and 	3543.6 	of 	the
1	Educational 	Employment 	Relations 	Act 	(EERA 	or 	Act). 	The
charge 	was 	dismissed, 	in 	a 	letter 	attached 	hereto, 	on
September 	29, 	1987, 	and 	an 	appeal 	was 	timely 	filed.
On 	appeal, 	this 	Board 	reviews 	the 	record 	de 	novo, 2 	and
lEERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statut 	references
herein 	are 	to 	the 	Government 	Code.
2secause 	our 	review 	of 	the 	file 	is 	de 	novo, 	we 	need 	not
address 	charging 	party's 	request 	to 	remove 	the 	regional

examines the charge to see if it states a prima facie case. 	In
other words, assuming for the purpose of analysis that the
facts alleged are true," is a violation of the Act stated?
In her charge, Mrs. Moore has identified sections 3543.2,
3543.5, and 3543.6 of the Act as the sections allegedly
violated. Sections 3543.5 (a)-(e), however, list unlawful
practices committed by employers, and the respondent is not her
employer . 	Thus, the allegation that section 3543.5 has been
violated must be dismissed because charging party has not named
her employer as the respondent.
As to the allegation that the Union violated section
3543.2, the mechanism by which this particular section has been
addressed by the Board and the courts is through alleging a
violation of either 3543.5 or 3543.6.4 	Section 3543.2 sets
forth the scope of representation. A failure by the Union to
bargain over those subjects would be a violation of section
3543.6(c). The charging party, however, lacks standing to
allege such a violation.
attorney. At this point, the case is out of the hands of the
regional attorney and is in the sole jurisdiction of the the
Public Employment Relations Board (Board ) itself.
3san Juan Unified School District (1977) EERB Decision
No. 12. 	(Prior to January 1978, the Board was known as the
Educational Employment Relations Board or EERB. )
Oakland Unified School District v. PERB (1980 ) 120
Cal . App. 3d 1007, wherein a change subject to negotiation under
section 3543.2 was found to violate, inter alia, section
3543.5(c) .
dissent, in postulating that an individual has
standing to file a refusal to bargain charge against the union,
2
examines 	the 	charge 	to 	see 	if 	it 	states 	a 	prima 	facie 	case. 	In
other 	words, 	assuming 	for 	the 	purpose 	of 	analysis 	that 	the
3	facts 	alleged 	are 	true, 	is 	a 	violation 	of 	the 	Act 	stated?
In 	her 	charge, 	Mrs. 	Moore 	has 	identified 	sections 	3543.2,
3543.5, 	and 	3543.6 	of 	the 	Act 	as 	the 	sections 	allegedly
violated. 	Sections 	3543.5(a)-(e), 	however, 	list 	unlawful
practices 	committed 	by 	employers, 	and 	the 	respondent 	is 	not 	her
employer. 	Thus, 	the 	allegation 	that 	section 	3543.5 	has 	been
violated 	must 	be 	dismissed 	because 	charging 	party has 	not 	named
her 	employer 	as 	the 	respondent.
As 	to 	the 	allegation 	that 	the 	Union 	violated 	section
3543.2, 	the 	mechanism by 	which 	this 	particular 	section has 	been
addressed 	by 	the 	Board 	and 	the 	courts 	is 	through 	alleging 	a
4
violation 	of 	either 	3543.5 	or 	3543:6: 	Section 	3543:2 	sets
forth 	the 	scope 	of 	representation. 	A 	failure 	by 	the 	Union 	to
bargain 	over 	those 	subjects 	would 	be 	a 	violation 	of 	section
3543.6(c). 	The 	charging 	party, 	however, 	lacks 	standing 	to
5allege 	such 	a 	violation. 	The purpose of our agency is to	The 	purpose 	of 	our 	agency 	is 	to
attorney. 	At 	this 	point, 	the 	case 	is 	out 	of 	the 	hands 	of 	the
regional 	attorney 	and 	is 	in 	the 	sole 	jurisdiction 	of 	the 	the
Public 	Employment 	Relations 	Board 	(Board) 	itself.
3san Juan 	Unified 	School 	District 	(1977) 	EERB 	Decision
No. 	12. 	(Prior 	to 	January 	1978, 	the 	Board 	was 	known 	as 	the
Educational 	Employment 	Relations 	Board 	or 	EERB.)
5The
2
4see,, 	Oakland 	Unified 	School 	District 	v. 	PERB 	(1980) 	120
Cal.App.3d 	1007, 	wherein 	a 	change 	subject 	to 	negotiation 	under
section 	3543.2 	was 	found 	to 	violate, 	inter 	alia, 	section
3543.S(c).
5The 	dissent, 	in 	postulating 	that 	an 	individual 	has
standing 	to 	file 	a 	refusal 	to bargain 	charge 	against 	the 	union,

insure the statutory rights of the parties, so that the
employer and the exclusive representative of the employees may
meet and negotiate on terms and conditions of employment as
defined in EERA.
The Board has recognized that the exclusivity of the chosen
employee organization in representing unit employees is crucial
to its ability to negotiate effectively and to stable
employment relations generally. (Hanford Joint Union High
School District (1978) PERB Decision No. 58.) While Hanford is
distinguishable in that the Board held that a non-exclusive
employee organization could not file a failure-to-negotiate
confuses the union's duty to bargain in good faith with its
duty to fairly represent all members of the bargaining unit.
The latter duty may encompass elements of the former, but only
within the context of standards set forth in Rocklin Teachers
Professional Association (Romero) (1980 ) PERB Decision No.
124. 	Here, charging party has specifically disavowed any
charge that the Union breached its duty of fair representation
and has alleged an independent violation of section 3543.6(c).
A search of fifty years of case law under the National Labor
Relations Act has revealed no case wherein an individual
employee had standing to charge a breach of the duty to bargain
in good faith that was not part and parcel of a charge of a
duty-of-fair-representation breach.
The standing requirement is basic, of course, to the notion
that this system we administer is called collective
bargaining. For an individual to have standing to allege an
independent breach of the duty to bargain in good faith would
not only undermine the union's authority, but would also likely
leave a union so open to attack such that no union would ever
want to be an exclusive representative and no employer would
ever want to enter a collective bargaining agreement.
The dissent's concern for the individual's rights is amply
addressed by holding the union to the duty of fair
representation. To require more from the union (or the
employer ), vis-a-vis the individual, would destroy collective
bargaining.
insure 	the 	statutory 	rights 	of 	the 	parties, 	so 	that 	the
cw~lvycL 	and 	the 	exclusive 	representative 	of 	the 	employees 	may
meet 	and 	negotiate 	on 	terms 	and 	conditions 	of 	employment 	as
defined 	in 	EERA.
The 	Board 	has 	recognized 	that 	the 	exclusivity 	of 	the 	chosen
employee 	organization 	in 	representing 	unit 	employees 	is 	crucial
to 	its 	ability 	to 	negotiate 	effectively 	and 	to 	stable
employment 	relations 	generally. 	(Hanford 	Joint 	Union 	High
School 	District 	(1978) 	PERE 	Decision 	No. 	58.) 	While 	Hanford 	is
distinguishable 	in 	that 	the 	Board 	held 	that 	a 	non-exclusive
employee 	organization 	could 	not 	file 	a 	failure-to-negotiate
confuses 	the 	union's 	duty 	to 	bargain 	in 	good 	faith 	with 	its
duty 	to 	fairly 	represent 	all 	members 	of 	the 	bargaining 	unit.
The 	latter 	duty 	may 	encompass 	elements 	of 	the 	former, 	but 	only
within 	the 	context 	of 	standards 	set 	forth 	in 	Rocklin 	Teachers
Professional 	Association 	(Romero) 	(1980) 	PERB 	Decision 	No.
124. 	Here, 	charging 	party has 	specifically 	disavowed 	any
charge 	that 	the 	Union 	breached 	its 	duty 	of 	fair 	representation
and 	has 	alleged 	an 	independent 	violation 	of 	section 	3543.6(c).
A 	search 	of 	fifty 	years 	of 	case 	law 	under 	the 	National 	Labor
Relations 	Act 	has 	revealed 	no 	case 	wherein 	an 	individual
employee 	had 	standing 	to 	charge 	a 	breach 	of 	the 	duty 	to 	bargain
in 	good 	faith 	that 	was 	not 	part 	and 	parcel 	of 	a 	charge 	of 	a
duty-of-fair-representation 	breach.
The 	standing 	requirement 	is 	basic, 	of 	course, 	to 	the 	notion
that 	this 	system 	we 	administer 	is 	called 	collective
bargaining. 	For 	an 	individual 	to 	have 	standing 	to 	allege 	an
independent 	breach 	of 	the 	duty 	to 	bargain 	in 	good 	faith 	would
not 	only 	undermine 	the 	union's 	authority, 	but 	would 	also 	likely
leave 	a 	union 	so 	open 	to 	attack 	such 	that 	no 	union 	would 	ever
want 	to 	be 	an 	exclusive 	representative 	and 	no 	employer 	would
ever 	want 	to 	enter 	a 	collective 	bargaining 	agreement.
The 	dissent's 	concern 	for 	the 	individual's 	rights 	is 	amply
addressed 	by holding 	the 	union 	to 	the 	duty 	of 	fair
representation. 	To 	require 	more 	from 	the 	union 	(or 	the
employer), 	vis-a-vis 	the 	individual, 	would 	destroy 	collective
bargaining.
3

charge against the employer, we note that charging party in
this case is not even a participant to the negotiations. 	A
charge of a refusal by the exclusive representative to bargain
in good faith must be brought by the employer, and cannot be
brought by an individual employee because the union's duty to
bargain is owed to the employer, not to the individual unit
members . 	The union's duty to bargain in good faith as the
exclusive representative carries with it the duty to fairly
represent the interests of charging party in bargaining with
the District. Under EERA, if the exclusive representative
fails to negotiate a matter within the scope of negotiations,
then it could be in breach of the duty of fair representation
in violation of section 3544.9, but in so alleging that a union
has violated that duty, a charging party must state facts that
the union took action that was arbitrary, discriminatory, or
motivated by bad faith. 	Such was not alleged here. Thus,
we conclude that the charging party's allegation that the Union
breached section 3543.2, actionable through section 3543.6(c),
must be dismissed for lack of standing.
Finally, charging party asserts independent violations of
he charging party alleges that she was denied
representation on an Education Code contract matter and that
the Union refused to file grievances, we note that, on app
charging party expressly states it is not her intention to
allege a violation of section 3544.9. Instead, she alleges
union leadership actions were the result of bad faith.
Therefore, we do not analyze the charge within the context of
the Union's duty to fairly represent all unit members.
charge 	against 	the 	employer, 	we 	note 	that 	charging 	party 	in
this 	case 	is 	not 	even 	a 	participant 	to 	the 	negotiations. 	A
charge 	of 	a 	refusal 	by 	the 	exclusive 	representative 	to bargain
in 	good 	faith 	must 	be 	brought 	by 	the 	employer, 	and 	cannot 	be
brought 	by 	an 	individual 	employee 	because 	the 	union's 	duty 	to
bargain 	is 	owed 	to 	the 	employer, 	not 	to 	the 	individual 	unit
members. 	The 	union's 	duty 	to 	bargain 	in 	good 	faith 	as 	the
exclusive 	representative 	carries 	with 	it 	the 	duty 	to 	fairly
represent 	the 	interests 	of 	charging 	party 	in 	bargaining 	with
the 	District. 	Under 	EERA, 	if 	the 	exclusive 	representative
fails 	to 	negotiate 	a 	matter 	within 	the 	scope 	of 	negotiations,
then 	it 	could 	be 	in breach 	of 	the 	duty 	of 	fair 	representation
in 	violation 	of 	section 	3544.9, 	but 	in 	so 	alleging 	that 	a 	union
has 	violated 	that 	duty, 	a 	charging 	party 	must 	state 	facts 	that
the 	union 	took 	action 	that 	was 	arbitrary, 	discriminatory, 	or
6	motivated 	by bad 	faith. 	Such 	was 	not 	alleged 	here. 	Thus,
we 	conclude 	that 	the 	charging 	party's 	allegation 	that 	the 	Union
breached 	section 	3543.2, 	actionable 	through 	section 	3543.6(c),
must 	be 	dismissed 	for 	lack 	of 	standing.
Finally, 	charging 	party 	asserts 	independent 	violations 	of
6Although
4
6Although t the 	charging 	party 	alleges 	that 	she 	was 	denied
representation 	on 	an 	Education 	Code 	contract 	matter 	and 	that
the 	Union 	refused 	to 	file 	grievances, 	we 	note	eal,that, 	on 	appeal,
charging 	party 	expressly 	states 	it 	is 	not 	her 	intention 	to
al 	a 	violation 	section 	3544.9. 	Instead, 	she 	alleges
union 	leadership 	actions 	were 	the 	result 	of 	bad 	faith.
Therefore, 	we 	do 	not 	analyze 	the 	charge 	within 	the 	context 	of
the 	Union's 	duty 	to 	fairly 	represent 	all 	unit 	members.

3543.6 by the Union. No facts are alleged that even
remotely constitute violations of 3543.6(a), (c), or (d). The
remaining section that charging party alleges has been violated
is 3543.6(b). This section protects employees against
discriminatory treatment, reprisals, interference, restraints,
and coercions by the union. " In alleging that a union has
violated section 3543.6(b), a charging party must state
sufficient facts to indicate the union interfered,
discriminated, or took reprisals against her because of the
exercise of rights protected by EERA.
Here, charging party has alleged racial discrimination by
7Section 3543.6 reads:
(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.
(c) Refuse or fail to meet and negotiate in
good faith with a public school employer of
any of the employees of which it is the
exclusive representative.
(d) Refuse to participate in good faith in
the impasse procedure set forth in Article 9
( commencing with Section 3548) .
B 	achers Professional Association (Romero)
(1980) PERB Decision No. 124.
5
7	3543.6 	by 	the 	Union. 	No 	facts 	are 	alleged 	that 	even
remotely 	constitute 	violations 	of 	3543.6(a), 	(c), 	or 	(d). 	The
remaining 	section 	that 	charging 	party 	alleges 	has 	been 	violated
is 	3543.6(b). 	This 	section 	protects 	employees 	against
discriminatory 	treatment, 	reprisals, 	interference, 	restraints,
8	and 	coercions 	by 	the 	union. 	In 	alleging 	that 	a 	union 	has
violated 	section 	3543.6(b), 	a 	charging 	party 	must 	state
sufficient 	facts 	to 	indicate 	the 	union 	interfered,
discriminated, 	or 	took 	reprisals 	against 	her 	because 	of 	the
exercise 	of 	rights 	protected 	by 	EERA.
Here, 	charging 	party has 	alleged 	racial 	discrimination 	by
7section 	3543.6 	reads:
It shall be unlawful for an employee	It 	shall 	be 	unlawful 	for 	an 	employee
organization to:	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.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	a 	public 	school 	employer 	of
any 	of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article 	9
(commencing 	with 	Section 	3548).
8Rocklin
5
Rocklin Te	Teachers 	Professional 	Association 	(Romero)
(1980) 	PERB 	Decision 	No. 	124.

the Berkeley Unified School District (District ) and the
Even if true, charging party has not charged the
District, she has charged the exclusive representative.
Charging party has already taken an appropriate course of
action by filing against the District with the California Fair
Employment and Housing Commission.
Read broadly, the charge could also be interpreted to
allege discrimination by the Union for its failure to pursue
charging party's case against the District for a contract under
the Education Code. Interpreted in such a manner, the charge
is still inadequate because there are no facts alleged to show
that charging party was treated differently from other
bargaining unit members because she engaged in activity
Furthermore, the charge does not
contain any facts that show the Union possesses the exclusive
means by which she can obtain the remedy. The Union is not
required by EERA to represent charging party in her effort to
secure a contract under the Education Code. Accordingly, the
failure of the Union to represent her in matters outside the
9As with the allegation of racial discrimination by the
employer, an allegation of racial discrimination by the Union
may be cognizable under other statutes. See 42 USC section
2000e-2(c) (Title VII, sec. 703(c) of the Civil Rights Act of
1964); California Government Code section 12940(c) (California
Fair Employment and Housing Act sec. 12940(c)).
10on appeal, charging party argues that she was a member
of an employee organization rival to the respondent. Charging
party did not so allege in her charge below, where the issue
must first be raised.
6
the 	Berkeley
	Unified
	School
	District 	(District)
	and
	the
Union. 9
--
	. 	a
union.
✓	
Even
	if
	true,
	charging
	party
	has 	not 	charged
	the
District,
	she
	has 	charged
	the 	exclusive
	representative.
Charging
	party
	has
	already
	taken
	an
	appropriate
	course 	of
action
	by
	filing
	against
	the
	District
	with 	the
	California
	Fair
Employment
	and
	Housing 	Commission.
Read
	broadly, 	the
	charge 	could
	also
	be
	interpreted 	to
allege 	discrimination
	by
	the
	Union
	for
	its
	failure
	to
	pursue
charging
	party's
	case
	against
	the
	District
	for
	a
	contract
	under
the 	Education
	Code.
	Interpreted
	in
	such
	a
	manner,
	the 	charge
is
	still
	inadequate 	because
	there 	are
	no
	facts
	alleged 	to
	show
that
	charging
	party
	was
	treated 	differently
	from
	other
bargaining
	unit
	members
	because 	she 	engaged
	in
	activity
lO
protected by EERA. .
	Furthermore; 	the
	charge
	does
	not
contain
	any
	facts 	that
	show
	the
	Union
	possesses 	the
	exclusive
means
	by
	which
	she 	can
	obtain
	the
	remedy.
	The
	Union
	is
	not
required
	by
	EERA
	to 	represent
	charging
	party 	in her
	effort 	to
secure
	a
	contract
	under
	the 	Education
	Code.
	Accordingly,
	the
failure
	of 	the
	Union
	to 	represent 	her 	in 	matters 	outside 	the
--
-o•	
- . 	a 	b 	EERA
	pr 	cecce.	
y	
~
9As
	with 	the
	allegation
	of
	racial
	discrimination
	by
	the
employer, 	an
	allegation 	of
	racial 	discrimination
	by 	the 	Union
may
	be 	cognizable
	under
	other
	statutes.
	See 	42
	USC
	section
2000e-2(c)
	(Title
	VII, 	sec.
	703(c) 	of 	the 	Civil
	Rights
	Act
	of
1964);
	California
	Government
	Code
	section
	12940(c)
	(California
Fair
	Employment 	and 	Housing 	Act
	sec. 	12940(c)).
lOon
	appeal, 	charging 	party 	argues
	that
	she
	was 	a 	member
of 	an 	employee
	organization 	rival 	to 	the 	respondent. 	Charging
party 	did 	not 	so 	allege 	in 	her 	charge 	below, 	where
	the 	issue
must
	first
	be
	raised.
6

collective bargaining setting are not violations of EERA.
ORDER
The unfair practice charge in Case No. SF-CO-310 is hereby
DISMISSED.
Member Shank joined in this Decision.
Member Porter concurs in the dismissal.
Member Cordoba's concurrence and dissent begins on page 8.
77
collective
	bargaining
	setting
	are
	not
	violations
	of
	EERA.
ORDER
The
	unfair
	practice
	charge
	in
	Case
	No.
	SF-C0-310
	is
	hereby
DISMISSED.
Member
	Shank
	joined
	in
	this
	Decision.
Member
	Porter
	concurs
	in 	the
	dismissal.
Member
	Cordoba's 	concurrence
	and
	dissent
	begins
	on
	page
	8.

Cordoba, Member, concurring and dissenting: 	I concur in
the dismissal of the unfair practice charge. I must dissent,
however, from that portion of the majority's opinion holding
that no individual has standing to assert a violation of
section 3543.6(c).
Since, as the majority opinion makes perfectly clear, "[nlo
facts are alleged that even remotely constitute violations of
3543.6(a), (c), or (d), " either directly or derivatively, there
is absolutely no need to make such a sweeping and potentially
dangerous holding. 	Even assuming for the sake of argument that
the circumstances in this particular case do not support a
finding of standing (which the majority makes no attempt to
do), this would not and does not justify the elimination of all
individual standing under this section. 	To do so jeopardizes
the few individual rights remaining under this Act.
The majority's conclusion that individual employees lack
standing to assert a section 3543.6(c) violation is premised on
the dubious proposition that the union's duty to bargain in
good faith is owed only to the employer. No authority even
arguably on point is cited in support of this position, nor
is any effort made to distinguish the union's duty to bargain
under EERA from its federal counterpart, section 8(b) (3 ) of the
National Labor Relations Act. This omission is surprising, for
this Board has previously looked to National Labor Relations
Board precedent for guidance on the nature and extent of a
1 Hanford is obviously inapposite.
8
Cordoba, 	Member, 	concurring 	and 	dissenting: 	I 	concur 	in
the 	dismissal 	of 	the 	unfair 	practice 	charge. 	I 	must 	dissent,
however, 	from 	that 	portion 	of 	the 	majority's 	opinion holding
that 	no 	individual 	has 	standing 	to 	assert 	a 	violation 	of
section 	3543.6(c).
Since, 	as 	the 	majority 	opinion 	makes 	perfectly 	clear, 	"[n]o
facts 	are 	alleged 	that 	even 	remotely 	constitute 	violations 	of
3543.6(a), 	(c), 	or 	(d)," 	either 	directly 	or 	derivatively, 	there
is 	absolutely 	no 	need 	to 	make 	such 	a 	sweeping 	and 	potentially
dangerous 	holding. 	Even 	assuming 	for 	the 	sake 	of 	argument 	that
the 	circumstances 	in 	this 	particular 	case 	do 	not 	support 	a
finding 	of 	standing 	(which 	the 	majority 	makes 	no 	attempt 	to
do), 	this 	would 	not 	and 	does 	not 	justify 	the 	elimination 	of 	all
individual 	standing 	under 	this 	section~ 	To 	do 	so 	jeopardizes
the 	few 	individual 	rights 	remaining 	under 	this 	Act.
The 	majority's 	conclusion 	that 	individual 	employees 	lack
standing 	to 	assert 	a 	section 	3543.6(c) 	violation 	is 	premised 	on
the 	dubious 	proposition 	that 	the 	union's 	duty 	to 	bargain 	in
good 	faith 	is 	owed 	only 	to 	the 	employer. 	No 	authority 	even
1arguably 	on 	point 	is 	cited 	in 	support 	of 	this 	position, 	nor
is 	any 	effort 	made 	to 	distinguish 	the 	union's 	duty 	to 	bargain
under 	EERA 	from 	its 	federal 	counterpart, 	section 	8(b)(3) 	of 	the
National 	Labor 	Relations 	Act. 	This 	omission 	is 	surprising, 	for
this 	Board 	has 	previously 	looked 	to 	National 	Labor 	Relations
Board 	ecedent 	for 	guidance 	on 	the 	nature 	and 	extent 	of 	a
1 	Hanford 	is 	obviously 	inapposite.
8

party's duty to bargain under EERA. See Westminster School
District (1982 ) PERB Decision No. 277 and Fremont Unified
School District (1980) PERB Decision No. 136. In this
instance, however, the NLRB's analysis runs directly counter to
that of the majority herein: the union's duty to bargain in
good faith is owed to the employees it represents as well as to
the employer. 	Independent Metal Workers (Hughes Tool Co. )
(1964) 147 NLRB 1573, 56 LRRM 1289. Accordingly, breach of the
union's duty of fair representation can constitute bad faith
bargaining in violation of section 8(b) (3). Ibid. See also
Bell & Howell v. NLRB (DC Circuit 1979) 598 F. 2d 136.
This Board previously has found that the duty of fair
representation owed by a union to those it represents does not
protect individuals from either negligence or the most
egregious lapses in judgment on the part of the union, nor does
it compel the union to pursue even the most meritorious claims
or requests. To now hold, as the majority proposes, that these
same individuals have no right whatsoever to charge the union
with a failure to bargain in good faith on their behalf renders
them even more powerless to protect their own interests.
99
party's 	duty 	to 	bargain 	under 	EERA. 	See 	Westminster 	School
District 	(1982) 	PERB 	Decision 	No. 	277 	and 	Fremont 	Unified
School 	District 	(1980) 	PERB 	Decision 	No. 	136. 	In 	this
instance, 	however, 	the 	NLRB's 	analysis 	runs 	directly 	counter 	to
that 	of 	the 	majority herein: 	the 	union's 	duty 	to bargain 	in
good 	faith 	is 	owed 	to 	the 	employees 	it 	represents 	as 	well 	as 	to
the 	employer. 	Independent 	Metal 	Workers 	(Hughes 	Tool 	Co.)
(1964) 	147 	NLRB 	1573, 	56 	LRRM 	1289. 	Accordingly, 	breach 	of 	the
union's 	duty 	of 	fair 	representation 	can 	constitute 	bad 	faith
bargaining 	in 	violation 	of 	section 	8(b)(3). 	Ibid. 	See 	also
Bell 	& 	Howell 	v. 	NLRB 	{DC 	Circuit 	1979) 	598 	F.2d 	136.
This 	Board 	previously has 	found 	that 	the 	duty 	of 	fair
representation 	owed 	by 	a 	union 	to 	those 	it 	represents 	does 	not
protect 	individuals 	from 	either 	negligence 	or 	the 	most
egregious 	lapses 	in 	judgment 	on 	the 	part 	of 	the 	union, 	nor 	does
it 	compel 	the 	union 	to 	pursue 	even 	the 	most 	meritorious 	claims
or 	requests. 	To 	now 	hold, 	as 	the 	majority 	proposes, 	that 	these
same 	individuals 	have 	no 	right 	whatsoever 	to 	charge 	the 	union
with 	a 	failure 	to 	bargain 	in 	good 	faith 	on 	their 	behalf 	renders
them 	even 	more 	powerless 	to 	protect 	their 	own 	interests.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
Sacramento, CA 95814-4174
916) 323-8015
September 29, 1987
Wilcia Smith Moore
Wilcia Smith Moore v. Berkeley Federation of Teachers.
AFL-CIO No. 1078, Case No. SF-CO-310
Dear Ms. Moore:
I am writing regarding the above-referenced charge, which
alleges that the Federation violated the Educational Employment
Relations Act (EERA, Government Code section 3540 et seq. )
through certain acts and/ or omissions.
To eliminate any extraneous issues from this case, 1/ I have
personally reviewed the entire case file. That review
indicates that Regional Attorney Peter Haberfeld identified
deficiencies in your charge in three separate documents that he
sent or delivered to you. (These documents are letters dated
May 22 and September 1, and a Discussion Outline dated August
13 that Mr. Haberfeld prepared in advance of a meeting that
you, Mr. Haberfeld and I conducted on that date. 	The
documents, identified as Attachments 1, 2, and 3 below, are
incorporated by reference. ) Mr. Haberfeld further informed you
that your charge would be dismissed unless you amended it by
September 25; I confirmed this due date in my letter to you
dated September 17 (see Attachment 5, which is hereby
incorporated by reference) . No amendment has been received as
of the date of this letter.
1/You have complained that Mr. Haberfeld mishandled your
case. Your most recent complaint about Mr. Haberfeld is set I	forth in the letter identified below as document number 4.
specifically responded to your most recent complaint in
document number 5 below, which is incorporated by reference.
0 STATE Of CALIFORNIA 	GroftOf OEUIC.ME.JIAN, ~
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
Heodqvorters Office
1031 18th Street
Socr-+o, CA 	9581~174
(916) 323-8015
September 	29, 	1987
Wilcia 	Smith Moore
Re:	Re : 	Wilcia 	Smith Moore 	v. 	Berkeley 	Federation 	of 	Teachers,
AFL-CIO 	No. 	1078, 	Case 	No. 	SF-C0-310
Dear 	Ms. 	Moore:
I 	am 	writing 	regarding 	the 	above-referenced 	charge, 	which
alleges 	that 	the 	Federation 	violated 	the 	Educational 	Employment
Relations 	Act 	(EERA, 	Government 	Code 	section 	3540 	et 	seq.)
through 	certain 	acts 	and/or 	omissions.
To 	eliminate 	any 	extraneous 	issues 	from 	this 	case,1/ 	I 	have
personally 	reviewed 	the 	entire 	case 	file. 	That 	review
indicates 	that 	Regional 	Attorney 	Peter 	Haberfeld 	identified
deficiencies 	in 	your 	charge 	in 	three 	separate 	documents 	that 	he
sent 	or 	delivered 	to 	you. 	(These 	documents 	are 	letters 	dated
May 	22 	and 	September 	1, 	and 	a 	Discussion 	Outline 	dated 	August
13 	that 	Mr. 	Haberfeld 	prepared 	in 	advance 	of 	a 	meeting 	that
you, 	Mr. 	Haberfeld 	and 	I 	conducted 	on 	that 	date. 	The
documents, 	identified 	as 	Attachments 	1, 	2, 	and 	3 	below, 	are
incorporated 	by 	reference.) 	Mr. 	Haberfeld 	further 	informed 	you
that 	your 	charge 	would 	be 	dismissed 	unless 	you 	amended 	it 	by
September 	25; 	I 	confirmed 	this 	due 	date 	in 	my 	letter 	to 	you
dated 	September 	17 	(see 	Attachment 	5, 	which 	is 	hereby
incorporated 	by 	reference). 	No 	amendment 	has 	been 	received 	as
of 	the 	date 	of 	this 	letter.
1/You have 	complained 	that 	Mr. 	Haberfeld 	mishandled 	your
case. 	Your 	most 	recent 	complaint 	about 	Mr. 	Haberfeld 	is 	set
forth 	in 	the 	letter 	identified 	below 	as 	document 	number 	4. 	I
specifically 	responded 	to 	your 	most 	recent 	complaint 	in
document 	number 	5 below, 	which 	is 	incorporated 	by 	reference.

Wilcia Smith Moore
September 29, 1987
Page 2
My review of the charge indicates that the charge does not
reflect a prima facie case of unfair practice. Additionally,
you have been given numerous opportunities to cure the
deficiencies in the charge, yet you have failure to do so.
Hence, I conclude that the charge must be, and hereby is,
DISMISSED.
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 (California Administrative
Code, title 8, section 32635(a)). To be timely filed, the
original and five copies of such appeal must be actually
received by the Board itself before the close of business
(5:00 p.m. ) or sent by telegraph, certified or Express United
States mail postmarked no later than the last date set for
filing (section 32135). Code of Civil Procedure section 1013
shall apply. The Board's address is:
Public Employment Relations Board
1031 18th street
Sacramento, CA 95814
If you file a timely appeal of the refusal to issue a
complaint, any other party may file with the Board an original
and five copies of a statement in opposition within twenty
calendar days following the date of service of the appeal
(section 32635(b) ).
Service
All documents authorized to be filed herein must also be
"served" upon all parties to the proceeding, and a "proof of
service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See section 32140 for
the required contents and a sample form. ) The document will be
considered properly "ser
deposited in the first-class mail postage paid and properly
addressed.
Extension of Time
A request for an extension of time in which to file a document
with the Board itself must be in writing and filed with the
Board at the previously noted address. 	A request for an
Wilcia
	Smith
	Moore
September
	29,
	1987
Page
	2
My
	review
	of 	the
	charge
	indicates 	that
	the
	charge
	does
	not
reflect
	a
	prima
	facie
	case
	of
	unfair
	practice.
	Additionally,
you
	have 	been
	given
	numerous
	opportunities 	to
	cure
	the
deficiencies
	in
	the
	charge, 	yet
	you
	have
	failure
	to
	do
	so.
Hence,
	I
	conclude
	that
	the
	charge
	must
	be,
	and
	hereby
	is,
DISMISSED.
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 	(California 	Administrative
Code,
	title
	8,
	section
	32635(a)).
	To
	be
	timely
	filed,
	the
original
	and
	five
	copies
	of 	such
	appeal
	must 	be
	actually
received
	by
	the
	Board
	itself
	before 	the 	close
	of
	business
(5:00 	p.rn.) 	or
	sent
	by
	telegraph,
	certified
	or 	Express 	United
States
	mail 	postmarked
	no
	later
	than
	the
	last
	date
	set
	for
filing
	(section
	32135).
	Code
	of 	Civil
	Procedure
	section
	1013
shall
	apply.
	The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board1031
	18th
	Street
Sacramento,
	CA
	95814
If
	you
	file
	a
	timely 	appeal 	of
	the
	refusal 	to 	issue
	a
complaint,
	any
	other 	party
	may
	file
	with 	the
	Board 	an
	original
and
	five 	copies 	of
	a
	statement 	in 	opposition 	within 	twenty
calendar
	days
	following 	the 	date
	of
	service
	of 	the 	appeal
(section 	32635(b)).
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
•served•
	upon
	all
	parties 	to 	the 	proceeding,
	and 	a
	•proof 	of
service•
	must 	accompany 	each 	copy
	of
	a 	document
	served
	upon 	a
party 	or
	filed
	with 	the
	Board
	itself.
	(See
	section
	32140
	forthe 	required 	contents
	and 	a 	sample 	form.)
	The 	document
	will
	be
considered 	properlyved" when personally delivered or	
•served"
	when
	personally 	delivered 	or
deposited 	in 	the
	first-class
	mail 	postage 	paid
	and
	properlyaddressed.
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 	theBoard
	at 	the 	previously 	noted 	address. 	A request 	for 	an

Wilcia Smith Moore
September 29, 1987
Page 3
extension must be filed at least three 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 (section 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,
JEFFREY SLOAN
General Counsel
By Jeffrey Sloan
Attachments :
(1) Warning letter of May 22, 1987
Outline for Discussion, August 13, 1987
(3 ) Warning Letter of September 1, 1987 to you from
Peter Haberfeld
(4) 	Your letter to me of September 2, 1987
(5 	My letter to you of September 17, 1987
(6) 	Lisa Standard's letter to you of September 17,
1987.
3306D
Wilcia
	Smith
	Moore
September 	29,
	1987
Page
	3
extension
	must 	be
	filed 	at 	least
	three
	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
	(section
	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,
JEFFREY
	SLOAN
General
	Counsel
By 
-
Jeffrey
	Sloan'
General Counsel
nsel	
General 	Cou
..
Attachments:
(1)	
Warning
	letter
	of
	May
	22,
	1987
(2)	
Outline 	for 	Discussion,
	August
	13,
	1987
(3) 	Warning
	Letter 	of
	September
	1,
	1987
	to
	you 	from
Peter 	Haberfeld
{4) 	Your
	letter
	to
	me
	of
	September 	2,
	1987
(5)	
My
	letter
	to
	you
	of 	September 	17,
	1987
(6)
3306D
Lisa 	Standard's
	letter
	to
	you
	of 	September
	17,1987.

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, California 94108
(415) 557-1350
May 22, 1987
Ms. Wilcia Smith Moore
Re: Wilcia Smith Moore v. Berkeley Federation of Teachers,
AFL-CIO, No. 1078 (SF-CO-310 )
Dear Ms. Moore:
On February 2, 1987, you filed an unfair practice charge
against the Berkeley Federation of Teachers, AFL-CIO No. 1078
( Union) , apparently intending to allege a violation of EERA
section 3543.6 (b) and section 3544.9. More specifically, the
charge describes your efforts, dating between 1983 and
November 1986, to obtain assistance from the Union in securing
a contract pursuant to Education Code section 44887. You have
alleged that: the union refused to assert your rights under the
Education Code and that the refusal was racially motivated; the
union took a similar case on behalf of Nancy Edwards to the
Court of Appeals but it was a weaker case than yours, and, as a
consequence, the Court found Edwards ineligible for the
Education Code section 44887 contract; the union misrepresented
the nature of the lawsuit when it referred to it as a
class-action suit; you were led to believe by this
misrepresentation that whatever benefits would be secured by
appeal before the union would consider asserting your rights.
The remainder of your charge describes district conduct which
allegedly took place subsequent to your request for a contract
pursuant to Education Code 44887. First, on October 31, 1986,
the District scheduled an evaluation of your job performance
despite its having undertaken an evaluation within the two
preceding years. 	Second, on October 29, 1986, the Writing
Proficiency class you were to teach was cancelled on the ground
ground that there were too few students enrolled. Fourth, you
have been denied timely pay for services until December 5,
1986. Fifth, the employer attempted to cause you to
"fraudulently accept payment from federal funds."
the filing of the Court Case No. 579654-4 in 1983, you have
been "subject to constant threats, harassment, and
Attachment 1
STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELA i"IONS BOARD
San Francisco Regional Office
177 Post Street. Suite 900
San Francisco, California 94108
(415) 557-1350 19B7MAY26 	C!Hli:33
PUBLIC EMPLOYHE'
RELATIONS BOARD
HEADQUARTERS OFFICE
1987 MAY 26 AMII: 33
May 	22, 	1987
Ms. 	Wilcia 	Smith 	Moore
Re: 	Wilcia 	Smith 	Moore 	v. 	Berkeley Federation 	of 	Teachers,
AFL-CIO, 	No. 	1078 	{SF-C0-310)
Dear 	Ms. 	Moore:
On 	February 	2, 	1987, 	you 	filed 	an 	unfair 	practice 	charge
against 	the 	Berkeley 	Federation 	of 	Teachers, 	AFL-CIO No. 	1078
(Union), 	apparently 	intending 	to allege a 	violation 	of 	EERA
section 	3543.6(b) 	and 	section 	3544.9. 	More 	specifically, 	the
charge 	describes 	your 	efforts, 	dating 	between 	1983 	and
November 	1986, 	to 	obtain 	assistance 	from 	the 	Union 	in 	securing
a 	contract 	pursuant 	to 	Education Code 	section 	44887. 	You 	have
alleged 	that: 	the 	union 	refused 	to 	assert 	your 	rights 	under 	the
Education Code 	and 	that 	the 	refusal 	was 	racially 	motivated: 	the
union 	took 	a 	similar 	case 	on 	behalf 	of 	Nancy Edwards 	to 	the
Court 	of 	Appeals 	but 	it 	was 	a 	weaker 	case 	than 	yours, 	and, 	as 	a
consequence, 	the 	Court 	found 	Edwards 	ineligible 	for 	the
Education Code 	section 44887 	contract; 	the 	union 	misrepresented
the 	nature 	of 	the 	lawsuit 	when 	it 	referred 	to 	it 	as 	a
class-action 	suit; 	you 	were 	led 	to believe by 	this
misrepresentation 	that 	whatever 	benefits 	would 	be 	secured 	by
Ms. Edwards would apply as well to you, a member of the class;	Edwards 	would 	apply 	as 	well 	to 	you, 	a 	member 	of 	the 	class;
and you were advised unfairly to await the outcome of the	you 	were 	advised 	unfairly 	to 	await 	the 	outcome 	of 	the
appeal 	before 	the 	union 	would 	consider 	asserting 	your 	rights.
Ms.
and
The 	remainder 	of 	your 	charge 	describes 	district 	conduct 	which
allegedly 	took 	place 	subsequent 	to 	your 	request 	for 	a 	contract
pursuant 	to 	Education 	Code 	44887. 	First, 	on 	October 	31, 	1986,
the 	District 	scheduled 	an 	evaluation 	of 	your 	job 	performance
despite 	its having 	undertaken 	an 	evaluation 	within 	the 	two
preceding 	years. 	Second, 	on 	October 	29, 	1986, 	the 	Writing
Proficiency 	class 	you 	were 	to 	teach 	was 	cancelled on 	the 	ground
that there was insufficient enrollment. Third, you continued	there 	was 	insufficient 	enrollment. 	Third, 	you 	continued
to be threatened with additional class cancellations on the	be 	threatened 	with 	additional 	class 	cancellations 	on 	the
ground 	that 	there 	were 	too 	few 	students 	enrolled. 	Fourth, 	you
have 	been 	denied 	timely pay 	for 	services 	until 	December 	5,
1986. 	Fifth, 	the 	employer 	attempted 	to 	cause 	you 	to
"fraudulently accept 	payment 	from 	federal 	funds." 	Six, since	Six, 	since
the 	filing 	of 	the 	Court 	Case 	No. 	579654-4 	in 	1983, 	you 	have
been 	"subject 	to 	constant 	threats, 	harassment, 	and
that
to
Attachment 1

Ms. Wilcia Smith Moore
May 22, 1987
Page 2
intimidation" and there have been attempts to get you to quit
your job. Seventh, subsequent to turning in a time sheet on
September 19, 1985, which demonstrated that you were eligible
for a contract under Ed. Code section 44887, the District took
away your fourth hour of teaching.
You have alleged that the conduct described above was motivated
by the District's racial bias against you. You are black, and
Nancy Edwards as well as Gary Green, two s
adult school teachers, are white. 	Green was given a contract
and Edwards left for a better job.
To state a prima facie violation, charging party must allege
and ultimately establish that the alleged unfair practice
either occurred or was discovered within the six-month period
immediately preceding the filing of the charge with PERB. 	EERA
PERB Decision No. 194.
Charging Party has alleged that the union breached the duty of
fair representation owed to her. While the charge fails to
allege that the union is the exclusive representative, such
fact is evident from the investigator in this case. The union
therefore owes a duty of fair representation to all unit
members.
The fair representation duty imposed on the exclusive
representative by EERA section 3544.9 extends to contract
administration (Castro Valley Teachers Association [McElwain] )
(1980 ) PERB Decision No. 149; SEIU Local 99 (Pottorff) (1982)
PERB Decision No. 203 ) and grievance handling (Fremont Teachers
Association King) (1980 ) PERB Decision No. 125; United Teachers
of Los Angeles (Collins) (1982 ) PERB Decision No. 258.
has ruled that a prima facie statement of such a violation
requires allegations that: (1) the acts complained of were
representative of all unit employees; and (2) the
representational conduct was arbitrary, discriminatory or in
bad faith.
1 	explicitly has followed decisions of the federal
courts and the National Labor Relations Board interpreting the
National Labor Relations A
(Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3rd. 608
Decision No. 106).
Ms.	
Wilcia	
Smith
	Moore
May
	22,
	1987
Page	
2
intimidation"
	and
	there
	have 	been
	attempts
	to get
	you
	to 	quit
your
	job.
	Seventh, 	subsequent
	to
	turning
	in
	a
	time
	sheet
	on
September
	19, 	1985,
	which
	demonstrated
	that
	you
	were
	eligible
for
	a
	contract
	under
	Ed.
	Code
	section
	44887,
	the
	District
	took
away
	your
	fourth
	hour
	of
	teaching.
You
	have
	alleged
	that
	the
	conduct
	described
	above
	was
	motivated
by
	the
	District's
	racial
	bias 	against
	you.
	You
	are 	black,
	and
Nancy Edwards
	as 	well 	as
	Gary
	Green,	imilarly situated	
two
	similarly 	situatedadult
	school
	teachers, 	are
	white.
	Green
	was
	given
	a
	contract
and
	Edwards
	left
	for
	a
	better
	job.
To
	state
	a
	prima
	facie 	violation,
	charging
	party
	must
	allege
and
	ultimately
	establish 	that
	the
	alleged 	unfair
	practice
either
	occurred 	or
	was
	discovered
	within
	the
	six-month
	period
immediately
	preceding 	the
	filing
	of 	the
	charge 	with
	PERB.
	EERA
section 3541.5; San Diegueto Union High School District (1982)	
3541.5;
	San
	Dieguito
	Union
	High 	School
	District
	(1982)
PERB
	Decision
	No.
	194.
section
Charging
	Party
has 	alleged
	that
	the
	union 	breached
	the 	duty
	of
fair
	representation
	owed
	to her.
	While
	the
	charge
	fails
	toallege 	that
	the
	union
	is
	the 	exclusive 	representative,
	such
fact
	is
	evident
	from
	the
	investigator 	in 	this
	case.
	The
	union
therefore
	owes
	a
	duty 	of
	fair
	representation 	to
all
	unit
members.
The
	fair
	representation
	duty
	imposed 	on
	the 	exclusive
representative
	by
	EERA
	section
	3544.9
	extends
	to 	contract
administration
	(Castro Valle 	Teachers 	Association
	[McElwainJ)
(1980)
	PERB
	Decision
	No.
	149;
	SEIU
	Local
	99
	Pottorff
	1982
PERB	
Decision
	No.	
203) 	and
	grievance handling
	(Fremont
	Teachers
Association
	Kin{)
	(1980)
	PERB
	Decision
	No. 	125;
	United 	Teachers
of
	LOS
	Angeles
	Collins)
	(1982)
	PERB
	Decision
	No.
	258. PERB	PERB
has 	ruled
	that
	a
	prima
	facie 	statement 	of
	such
	a
	violationrequires 	allegations 	that:
	(1)
	the
	acts
	complained
	of
	were
undertaken by the organization in its capacity as the exclusive	
by
	the 	organization 	in
	its
	capacity
	as 	the 	exclusive
representative 	of
	all
	unit
	employees; 	and
	(2) 	the
representational
	conduct
	was
	arbitrary,
	discriminatory 	or 	in
bad
	faith
..
1
undertaken
lpERB
(116
PERB
explicitly
has 	followed 	decisions 	of 	the 	federal
courts
	and
	the 	National 	Labor
	Relations
	Board
	interpreting 	the
National 	Labor 	Relations	ct's duty of fair representation.	
Act's 	duty 	of 	fair 	representation.
(Fire 	Fighters
	Union 	v. 	City 	of 	Vallejo 	(1974) 	12
	Cal.3rd.
	608
[116 Cal. Rptr. 507); and SEIU, Local 99 (Kimmett) (1979 ) PERB	
Cal.Rptr. 	507]; 	and 	SEIU, 	Local 	99 	(Kimmett) 	(1979) 	PERB
Decision 	No. 	106).

Ms. Wilcia Smith Moore
May 22, 1987
Page 3
This charges focuses on the union's conduct in processing or
failing to process a grievance. PERB has enunciated the
standard to apply to the Union's conduct in this context. 	In
United Teachers of Los Angeles (Collins) (1982) PERB Decision
No. 258, the Board stated:
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.
(slip op. at p.5. )
The union's obligation to represent fairly the interest of all
bargaining unit members does not extend beyond negotiation,
administration and enforcement of collective bargaining
agreements. San Francisco Classroom Teachers Association,
CTA/NEA (Chestangue) (1985 ) PERB Decision No. 554; California
State Employees' Association (Lemmons and Lund) (1985)
PERB Decision No. 545-S (union is not obliged by EERA section
3544.9 to pursue extra-contractual remedies for unit member.)
It may be that an employee organization will provide
representation concerning an Education Code matter as a benefit
of membership; however, it is not obliged under EERA to
represent unit members concerning infringements of
non-contractual rights and therefore may lawfully refuse to
Francisco Classroom Teachers Association, CTA/NEA (Chestangue),
supra .
PERB has held that a prima facie statement of unlawful
discrimination and/or retaliation requires allegations that:
employee; (2) the employee engaged in activity protected by
EERA; and (3) the employer would not have taken the adverse
engaged in activity protected by EERA code section 3543.
Novato Unified School District (1982) PERB Decision No. 210.
The allegations of the charge fail to set forth a prima facie
violation of EERA section 3543.6 (b) and/or section 3544.9.
First, all conduct occurring before August 2, 1986, is
time-barred by EERA code section 3541.5. The charge, as
the conduct complained of occurred. PERB Rule 32615 (a ) (5)
requires that a charging party, in order to state a prima facie
violation, set forth "a clear and concise statement of the
Ms.
	Wilcia
	Smith
	Moore
May
	22,
	1987
Page
	3
This 	charges 	focuses
	on
	the
	union's
	conduct
	in 	processing 	or
failing 	to
	process
	a
	grievance.
	PERB
	has 	enunciated
	thestandard
	to
	apply
	to
	the
	Union's
	conduct
	in
	this
	context.
	InUnited 	Teachers
	of
	Los
	Angeles
	(Collins}
	(1982)
	PERB
	Decision
No.
	258,
	the
	Board
	stated:
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.
(Slip
	op.
	at
	p.5.)
The
	union's
	obligation 	to
	represent
	fairly
	the
	interest
	of
	all
bargaining 	unit
	members
	does 	not 	extend
	beyond
	negotiation,administration
	and
	enforcement
	of
	collective
	bargainingagreements.
	San
	Francisco
	Classroom 	Teachers
	Association,
CTA/NEA
	(Chestangue)
	(1985)
	PERB
	uecision
	No.
	554; 	California
State
	Em
	lo ees'
	Association
	(Lemmons
	and
	Lund)
	(1985)
PERB
	Decision
	No.
	545-S 	union
	is
	not 	obliged
	by
	EERA
	section
3544.9
	to
	pursue
	extra=contractual
	remedies 	for 	unit
	member.)
It
	may
	be
	that
	an 	employee
	organization
	will
	provide
representation
	concerning
	an 	Education
	Code
	matter
	as
	a
	benefit
of
	membership;
	however,
	it
	is
	not 	obliged
	under
	EERA
	to
represent 	unit
	members
	concerning 	infringements 	of
non-contractual
	rights
	and
	therefore
	may
	lawfully 	refuse
	to
assert an employee's rights under the Education Code or to	
an 	employee's
	rights
	under
	the
	Education
	Code
	or
	to
pursue	pursue the Education Code matter in a particular manner.	
the 	Education
	Code
	matter
	in
	a
	particular
	manner. 	San	
San
Francisco
	Classroom
	Teachers 	Association,
	CTA/NEA
	(Chestangue),
supra.
assert
PERB
has 	held
	that
	a
	prima
	facie 	statement 	of 	unlawful
discrimination and/or
	retaliation
	requires 	allegations
	that:
(1)	
(1)the employer took adverse action against a certain	
the
	employer
	took 	adverse
	action against
	a
	certain
employee: 	(2)
	the
	employee 	engaged
	in 	activity
protected
	by
EERAt
	and 	(3) 	the 	employer
	would
	not
	have 	taken 	the 	adverse
action against the particular employee "but for" his/her having	
against 	the
	particular
	employee
	"but 	for"
	his/her
	havingengaged
	in activity 	protected
	by
	EERA
	code
	section
	3543.Novato 	Unified 	School
	District
	(1982)
	PERB
	Decision
	No.
	210.
action
The
	allegations 	of 	the 	charge
	fail 	to 	set 	forth
	a
	prima
	facie
violation 	of
	EERA
	section 	3543.6(b) 	and/or 	section 	3544.9.
First, 	all
	conduct 	occurring 	before
	August 	2, 	1986,
	is
time-barred
	by
	EERA
	code 	section 	3541.5.
	The
	charge, 	as
presently written, does not allege the date on which certain of	
written, 	does 	not 	allege 	the 	date
	on which
	certain
	of
the 	conduct 	complained 	of 	occurred.
	PERB
	Rule 	32615(a)(5)
requires 	that
	a
	charging 	party, 	in 	order 	to 	state
	a
	prima 	facie
violation, 	set 	forth 	"a 	clear 	and 	concise 	statement 	of 	the
presently

Ms. Wilcia Smith Moore
May 22, 1987
Page 4
facts and conduct alleged to constitute an unfair practice."
It is presumed, where conduct's date of occurrence is not
period immediately preceding the filing of the charge. Second,
the union is not required by EERA to represent Charging Party
in her effort to secure a particular contract under California
Education Code section 44887.
violation of EERA even if the refusal were motivated by racial
bias. That kind of discrimination would have to be remedied in
undertake an obligation owed towards Charging Party; Charging
Party exercised rights protected by EERA Code section 3543, and
conduct and the charging party's exercise of rights.
For the reasons stated above, the charge as presently written
does not state a prima facie case. If you feel there are any
factual inaccuracies in this letter or any additional facts
which would correct the deficiencies explained above, please
amend the charge accordingly. The amended charge should be
prepared on a standard PERB Unfair Practice Charge form clearly
labeled First Amended Charge, contain all the facts and
allegations you wish to make, and be signed under penalty of
perjury by the charging party. The amended charge must be
served on the respondent, and the original proof of service
must be filed with PERB. If I do not receive an amended charge
or withdrawal from before May 29, 1987, I shall dismiss your
charge. If you have any questions on how to proceed, please
call me at (415 ) 557-1350.
Sincerely,
PETER A. HABERFELD
Regional Attorney
PAH : cpm
Ms.
	Wilcia
	Smith
	Moore
May	
22.	
1987
Page
	4
facts
	and
	conduct
	alleged
	to 	constitute
	an
	unfair
	practice."
It
	is
	presumed, 	where
	conduct's
	date
	of
	occurrence
	is
	not
alleged, that the conduct occurred prior to the six-month	
that
	the
	conduct 	occurred
	prior
	to
	the 	six-month
period
	immediately
	preceding 	the
	filing
	of 	the 	charge.
	Second,
the
	union
	is
	not
	required
	by
	EERA
	to
	represent
	Charging
	Party
in
	her
	effort 	to
	secure
	a
	particular
	contract
	under
	California
Education
Code
	section
	44887. 	Its refusal to do so is not a	
Its
	refusal 	to
	do
	so
	is
	not
	a
violation
	of
	EERA
	even
	if
	the
	refusal
	were
	motivated
	by
	racial
bias.
	That
	kind
	of
	discrimination
	would
	have
	to
	be 	remedied
	inanother	another forum. Third, Charging Party has failed to allege a	
forum.
	Third,
	Charging
	Party
has
	failed
	to 	allege
	a
charge of discrimination or retaliation. There are no	
of
	discrimination 	or
	retaliation.
	There
	are
	no
allegations which suggest that: Charged Party failed to	
which
	suggest
	that:
	Charged
	Party
	failed 	to
undertake
	an
	obligation
	owed
	towards 	Charging
	Party;
	Charging
Party
	exercised
	rights
	protected
	by
	EERA
	Code
	section
	3543, 	and
there was a nexus or connection between the charged party's	
was
	a
	nexus
	or
	connection
	between
	the
	charged
	party's
conduct
	and
	the
	charging
	party's
	exercise 	of
	rights.
alleged,
charge
allegations
there
For
	the 	reasons
	stated
	above,
	the
	charge
	as
	presently
	written
does 	not
	state
	a
	prima
	facie 	case.
	If
	you
	feel 	there
	are
	any
factual
	inaccuracies
	in
	this
	letter
	or
	any
	additional
	facts
which
	would
	correct 	the 	deficiencies
	explained above,
	please
amend
	the 	charge
	accordingly.
	The 	amended
	charge
	should 	be
prepared
	on
	a
	standard
	PERB
	Unfair
	Practice
	Charge 	form
	clearly
labeled
	First
	Amended
	Charge,
	contain
	all
	the
	facts
	and
allegations
	you
	wish
	to
	make,
	and
	be 	signed
	under
	penalty
	of
perjury
	by
	the 	charging
	party.
	The 	amended
	charge
	must
	be
served
	on
	the 	respondent,
	and
	the
	original
	proof
	of 	service
must 	be
	filed
	with
	PERB.
	If
	I
	do
	not 	receive
	an
	amended
	charge
or
	withdrawal
	from
	before
	May
	29, 	1987,
	I
	shall
	dismiss 	your
charge.
	If
	you
	have 	any
	questions
	on
	how
	to proceed,
	please
call
	me
	at
	(415)
	557-1350.
Sincerely,
PETER A. 	HABERFELD
Regional 	Attorney
PAH:cpm

August 13, 1987
OUTLINE_EQR_DISCUSSION
Dear Ms. Moore:
I have prepared this outline (1) to facilitate the discussion
at our meeting on August 13, and (2) to clarify my tentative
analysis and conclusions about your case.
contains four parts:
1 . 	What does your unfair practice charge allege?
2. 	What new information did you provide in telephone
conversations with PERB staff which is not yet
included in the unfair practice charge?
3. 	What facts does the applicable law require to be
alleged in order for a complaint to be issued?
4. 	What are the apparent gaps in the unfair practice
charge as it is presently written?
On February 2, 1987, you filed an unfair practice charge
against the Berkeley Federation of Teachers, AFL-CIO No. 1078
(Union) . Although you did not allege a particular section of
the Government Code to have been violated, I have considered
your charge to constitute a claim that the Union failed to meet
its duty of fair representation and thereby violated EERA
sections 3544.9 and 3543.6(b).
Conceptually, your charge has two parts. First, you describe
your efforts, dating between 1983 and November 1986, to obtain
assistance from the Union in securing a contract from the
District pursuant to Education Code section 44887.
alleged that the Union refused to assert your rights under the
Education Code and that this refusal was racially motivated.
You argue that the racial discrimination is evident from the
Union's having taken a similar case on behalf of Nancy Edwards
all the way to the Court of Appeals even though it was weaker
than yours. Also on this point, you allege that Ms. Edwards
eventually secured section 44887 contracts. You suggested the
reason for this unequal treatment owes to you being black.
Attachment 2
August	
13,
	1987
Dear
	Ms.
	Moore:
I
	have
	prepared
	this
	outline
	(1)
	to
	facilitate
	the 	discussion
at
	our
	meeting
	on
	August
	13,
	and 	(2)
	to
	clarify
	my
	tentativeanalysis
	and
	conclusions
	about
	your
	case. 	This outline	
This
	outline
contains
	four
	parts:
1.	
What
	does
	your
	unfair 	practice
	charge
	allege?
2.	
What
	new
	information
	did
	you
	provide
	in
	telephone
conversations
	with
	PERS
	staff
	which
	is
	not 	yetincluded 	in
	the
	unfair 	practice
	charge?
3.	
What
	facts
	does
	the 	applicable
	law
	require 	to
	be
alleged
	in
	order 	for
	a
	complaint
	to	
be	
issued?
4.	
What
	are
	the 	apparent
	gaps 	in
	the 	unfair
	practice
charge 	as
	it
	is
	presently 	written?
WHAT DOES_YOUR_UNEAIR_PRACTICE_CHARGE_ALLEGE?
On
	February 	2,
	1987,
	you
	filed
	an
	unfair 	practice
	charge
against 	the
	Berkeley
	Federation 	of
	Teachers,
	AFL-CIO
	No.
	1078
(Union). 	Although
	you
	did 	not
	allege
	a
	particular 	section 	ofthe
	Government
	Code
	to
	have 	been
	violated,
	I
	have
	considered
your
	charge
	to
	constitute
	a
	claim
	that 	the
	Union
	failed 	ta
	meet
its
	duty
	of
	fair
	representation
	and
	thereby
	violated
	EERA
sections
	3544.9
	and
	3543.6(b).
Conceptually,
	your
	charge 	has
	two
	parts. 	First,
	you
	describe
your
	efforts,
	dating
	between
	1983 	and
	November
	1986,
	to 	obtain
assistance
	from
	the
	Union
	in 	securing
	a
	contract
	from
	the
District
	pursuant 	to 	Education
	Code
	section
	44887. You have	You
	have
alleged
	that
	the
	Union
	refused 	to
	assert
	your
	rights
	under 	theEducation
	Code
	and
	that 	this 	refusal
	was
	racially
	motivated.
You
	argue
	that
	the
	racial 	discrimination
	is
	evident
	from
	theUnion's 	having 	taken
	a
	similar 	case
	on
	behalf 	of
	Nancy 	Edwards
all
	the
	way
	to 	the
	Court
	of
	Appeals 	even 	though
	it
	was
	weaker
than 	yours. 	Also
	on
	this 	point,
	you
	allege 	that
	Ms.
	Edwards
and Mr. Green, both white, were assisted by the Union and	
Mr.
	Green, 	both 	white,
	were
	assisted
	by
	the
	Union 	and
eventually 	secured 	section
	44887
	contracts.
	You
	suggested 	thereason 	for 	this
	unequal 	treatment
	owes
	to
	you
	being 	black.
and
Attachment 2

Wilcia Moore
August 13, 1987
Page 2
Further, you allege that the Court of Appeals found Ms. Edwards
ineligible for the contract under Education Code section 44887
and that the Union thereafter refused to make efforts on your
behalf to secure such a contract. You were led to believe that
if Ms. Edwards' suit was successful, you would have benefited
from the decision. As it turned out, according to your
would not have applied to you because the lawsuit was not filed
as a class action.
that you be granted a contract pursuant to Education Code
forth by your unfair practice charge.
You were differentially scheduled for 	K: every 2 yrs
evaluation. 	4/10156- last eval
You were differentially treated
concerning class size.
You were differentially treated
concerning attendant workload.
You were threatened with class
cancellation .
Your writing proficiency class was
cancelled.
You were denied timely payment of
your salary until December 5, 1986.
You were threatened that you would
lose your fourth period class unless
you agreed to attempt funds from a
federal program in which you did not
participate.
Since the filing of the lawsuit in
1983, you were "subject to constant
threats, harassment and intimidation
to make ( you) quit."
Wilcia	
Moore
August
	13,
	1987
Page	
2
Further,
	you
	allege
	that
	the
	Court
	of
	Appeals
	found
	Ms.
	Edwards
ineligible
	for 	the 	contract
	under
	Education
	Code
	section
	44887and
	that
	the
	Union
	thereafter
	refused
	to
	make
	efforts
	on
	your
behalf 	to 	secure
	such
	a
	contract.
	You
	were
	led
	to 	believe
	that
if
	Ms.
	Edwards'
	suit
	was
	successful,
	you 	would
	have
	benefited
from
	the
	decision.
	As
	it
	turned
	out,
	according
	to
	your
allegations, even if Ms. Edwards had prevailed, the result	
even
	if
	Ms.
	Edwards 	had
	prevailed, 	the
	result
would
	not
	have
	applied 	to
	you
	because
	the 	lawsuit
	was
	not
	filed
as
	a
	class
	action.
allegations,
The
subsequent
section
described
The second part of your charge describes certain District	
second
	part 	of
	your
	charge
	describes
	certain
	District
conduct	conduct which allegedly took place subsequent to your request	
which
	allegedly
	took
	place
	to
	your
	request
that
	you
	be
	granted
	a
	contract
	pursuant
	to
	Education
	Code
section 44887. In my letter to you of July 28, 1987, I	
44887.
	In
	my
	letter
	to
	you
	of
	July
	28,
	1987,
	I
described i1 types of District conduct which are arguably set	
11
	types
	of
	District
	conduct
	which
	are
	arguably
	set
forth
	by
	your
	unfair 	practice
	charge. 	They are as follows:	
They
	are 	as 	follows:
You
	were
	differentially
	scheduled
	forevaluation.
You
	were
	differentially 	treated
concerning
	class 	size.
You
	were
	differentially 	treated
concerning
	attendant
	workload.
You
	were
	threatened 	with
	classcancellation.
Your
	writing 	proficiency
	class
	was
cancelled.
You
	were
	denied 	timely
	payment
	of
your
	salary 	until
	December
	5, 	1986.
7. 	You
	were
	threatened
	that
	you 	would
lose
	your
	fourth 	period
	class
	unless
you 	agr·eed
	to 	attempt 	funds
	from
	a
federal
	program 	in 	which 	you
	did 	not
participate.
Since 	the
	filing 	of 	the 	lawsuit 	in1983,
	you 	were
	"subject 	to 	constant
threats,
	harassment 	and
	intimidation
to
	make 	(you)
	quit.
0

Wilcia Moore
August 13, 1987
Page 3
See # 6
You were denied compensation when the
District placed you unlawfully on the
ISC payroll to the extent that the
District did not make contributions
to the employee retirement fund on
your behalf concerning the
ISC-compensated hours.
You were paid late eight times.
11. 	Your pay was split up, your payday
was changed, and part of the money
was paid on the 15th of the month and
the remaining portion at the end of
the month.
WHAT NEW INFORMATION DID YOU PROVIDE IN
TELEPHONE CONVERSATIONS WITH PERB STAFF WHICH
IS_NOI_YEI_INCLUDED_IN_THE_UNEAIR_PRACTICE_CHARGE?
During our telephone conversation of July 27, 1987, you
provided information which is not alleged in the unfair
practice charge. Specifically, you stated that: 	you
complained to union representatives Wanda Pruitt, Shirley Van
Bourg, (Jackis Ruby, Dorothy Lumberger, Don Hubbard, and Bonnie
Robinson concerning the i1 types of District misconduct set
forth above and on dates set forth in the charge, you requested
those individuals, in their capacities as representatives of
the Union, to represent your interests vis-a-vis the District.
WHAT FACTS DOES THE APPLICABLE LAW REQUIRE TO
BE_ALLEGED_IN_ORDER_EQE_A_COMPLAINI_IQ_BE__ISSUED?
The fair representation duty imposed on the exclusive
representative by EERA section 3544.9 extends to grievance
handling (Fremont_Teachers_Association_(Kina) (1980 ) PERB
Decision No. 125; United_Teachers_of_Los Angeles_(Collins)
(1982) PERB Decision No. 258). PERB has ruled that a prime
facie statement of such a violation requires charging party to
allege facts which suggest that (1) the acts complained of
were undertaken by the organization in its capacity as the
exclusive representative of all unit employees; and (2) the
representational conduct was arbitrary, discriminatory or in
bad faith.

Wilcia Moore
August 13, 1987
Page 4
PERB has applied these principles to mean that facts must be
presented which answer the following questions:
(1) 	What adverse District conduct was directed against
you?
(2) 	On what date did the District's adverse conduct
occur?
(3 ) 	On what date did you complain of such conduct to the
Union?
(4 ) 	To which union representative did you complain?
(5) 	What, if anything, did you request the union
representative to do on your behalf?
(6 ) 	Was the adverse District conduct grievable under the
collective bargaining agreement in effect between
the District and the Union? If so, under which
provision?
(7 ) 	What did the Union do or fail to do that you allege
to be arbitrary, discriminatory or in bad faith?
See Rocklin.Teachers_Professional_Association_(Bomero) (1980)
PERB Decision No. 124; Reed_District_Teachers_Associations
CIALNEA_(Reyes) (1983 ) PERB Decision No. 332; Los_Angeles_City
and_County_School_Employees_Union_(Local_29._Service_Employees
International_Union._eEL=CIQ___Scates_and_Pitts) (1983 ) PERB
Decision No. 341; California_School_Employees_Association
(Dyer) (1983) PERB Decision No. 342.
WHAT ARE THE APPARENT GAPS IN THE UNFAIR
PRACTICE_CHARGE_AS_II_IS_PRESENILY_WRIIIEN?
The allegations of the charge, as it is presently written, fail
to set forth a prima facie violation of EERA section 3543.6(b)
and section 3544.9. First, as stated in the warning letter of
May 22, 1987,
" The union is not required by EERA to
represent Charging Party in her effort to
secure a particular contract under
California Education Code section 44887.

Wilcia Moore
August 13, 1987
Page 5
Its refusal to do so is not a violation of
EERA even if the refusal were motivated by
racial bias. That kind of discrimination
would have to be remedied in another
form. " San_Ecancisco_Classroom_Teachers
Association._CIALNEA_(Chestangue) (1985)
PERB Decision No. 554; California_State
Employees_Association_(Lemmons_and_Lund)
(1985) PERB Decision No. 545-S (union is
not obliged by EERA section 3544.9 to
pursue extra-contractual remedies for unit
member; the union's obligation to
represent fairly the interest of all
bargaining unit employees does not extend
beyond negotiation, administration and
enforcement of the collective bargaining
agreement . )
Second, the unfair practice charge, as presently written,
merely lists the i1 alleged District adverse acts. To the
extent that the charge refers to conversations between you and
union representatives, it refers to discussions concerning your
request that the Union assist you in obtaining a contract from
the District pursuant to Education Code section 44887. The
charge does not in anyway suggest that you requested union
representatives on particular dates to assist you or represent
your interests concerning the other of the District's alleged
11 separate adverse acts.
More specifically, although the charge describes 11 types of
District adverse actions against you, there are no allegations
of fact in the charge which answer the following questions:
(1 ) 	On what date or dates did the District's adverse
conduct towards you occur?
(2 ) 	On what date or dates did you complain to the Union
concerning each of the District's alleged 11 separate
adverse acts?
(3) 	To which union representative did you complain of
each of the District's alleged 11 separate incidents
of adverse conduct?
(4 ) 	What, if anything, did you request the particular
union representative to do on your behalf with regard
to the District's alleged 11 separate adverse acts?

Wilcia Moore
August 13, 1987
Page 6
(5) 	Under which provision of the collective bargaining
agreement in effect between the District and the
Union were each of the District's alleged 11 separate
adverse acts grievable?
( 6 ) 	What, if anything, did the Union do or not do in
response to your request for assistance and that is
arbitrary, discriminatory or in bad faith?
SUMMARY_OF_TENTATIVE_CONCLUSIONS
1 . 	The allegation that you were denied fair representation
regarding your desire to secure a contract under Education
Code section 44887 does not appear to present a prima facie
case of unfair practice. 	This is because the right to
secure such a contract is grounded in the Education Code,
not the collective bargaining agreement. Hence, the
exclusive representative does not have the legal obligation
to represent you in such an action, and its failure to do
so did not violate the duty of fair representation.
2. 	The charge lists different types of district misconduct
which might arguably have violated the collective
bargaining agreement, and the union might have been legally
obligated to represent you in such matters. The charge,
however, does not disclose all of the facts necessary to
state a violation. It does not contain necessary
specifics, such as whether you complained to the union
about this conduct, when you might have lodged such a
complaint and asked for representation, who you complained
to, or what the union's response was. To allow PERB to
consider your allegations on these points, you must amend
the charge.
3. 	During our telephone conversations, you said that you had
complained to named union officials about the District's
conduct (referred to in the preceding paragraph) , that you
asked for representation, and that the union refused to do
anything. You stated that the dates on which these things
happened, and all other necessary information, are
contained in the charge. My review of the charge indicates
the charge does mention certain dates on which you
communicated with union officials; however, the allegations
contained in the charge indicate that your communication
with the union officials concerned your effort to secure a
contract from the District under Education Code 44887. 	In
other words, the charge currently does not contain
allegations suggesting that you complained about any of the
eleven types of misconduct listed above.

Wilcia Moore
August 13, 1987
Page 7
In our telephone conversation, you said that you were not
inclined to amend the charge because it contained all necessary
allegations. 	However, my tentative assessment is that the
necessary allegations are not contained in the charge. Hence,
to allow PERB to consider your allegations on these points, you
must amend the charge. The timelines for your completion of an
amendment (or for submission of any other factual material)
will be arranged in our meeting today and will be confirmed by
letter.
Sincerely yours,
Peter Haberfeld
Regional Attorney
Enclosures
2831D

PLATE UP LALIT VANIA 	GEUHUE VEURMEJIAN, VUTHIN
PUBLIC EMPLOYMENT REL . IONS BOARD
San Francisco Regional Office
177 Post Street. Suite 900
San Francisco, California 94108
(415) 557-1350
September 1, 1987
WILCIA SMITH MOORE
N
RE : 	Wilcia Smith Moore v. Berkeley Federation of Teachers,
AFL-CIO No. 1078, 	Charge No. SF-CO-310
Dear Ms. Moore:
On August 13, 1987, you, PERB General Counsel Jeffrey Sloan,
and I had a meeting regarding your case. 	As promised at the
close of our meeting, this letter: 	(1) summarizes the
allegations of the unfair practice charge filed by you in
February 1987; (2) explains which facts must be alleged,
according to applicable law, in order for a complaint to be
issued; (3) identifies the apparent gaps in the current charge;
(4 ) summarizes my conclusions regarding the current charge; (5)
identifies the information you provided on August 13, 1987,
which is not yet alleged in the charge, and which might state a
prima facie violation of EERA if it were so alleged; and (6)
concludes with a statement of the procedure you need to follow
in amending the charge.
Please note that this letter refines and incorporates the
points contained in the Discussion Outline that I prepared in
advance of our meeting. 	Section V (identifying the information
not yet alleged in the charge) and Section VI (Conclusion ) are
the most significant parts of this letter.
I . 	WHAT DOES YOUR UNFAIR PRACTICE CHARGE ALLEGE?
On February 2, 1987, you filed an unfair practice charge
against the Berkeley Federation of Teachers, AFL-CIO No: 1078
(Union) . Although you did not allege a particular section of
the Government Code to have been violated, I have considered
your charge to constitute a claim that the Union failed to meet
its duty of fair representation and thereby violated EERA
sections 3544.9 and 3543.6(b).
Attachment 3

WILCIA SMITH MOORE
September 1, 1987
Page 2
Conceptually, your charge has two parts. First, you describe
your efforts, dating between 1983 and November 1986, to obtain
assistance from the Union in securing a contract from the
District pursuant to Education Code section 44887. You have
alleged that the Union refused to assert your rights under the
Education Code and that this refusal was racially motivated.
You argue that the racial discrimination is evident from the
Union's having taken a similar case on behalf of Nancy Edwards
all the way to the Court of Appeals even though it was weaker
than yours. Also on this point, you allege that Ms. Edwards
and Mr. Green, both white, were assisted by the Union and
eventually secured section 44887 contracts. You suggested the
reason for this unequal treatment owes to you being black.
Further, you allege that the Court of Appeals found Ms. Edwards
ineligible for the contract under Education Code section 44887
and that the Union thereafter refused to make efforts on your
behalf to secure such a contract. You were led to believe that
if Ms. Edwards' suit was successful, you would have benefited
from the decision. As it turned out, according to your
allegations, even if Ms. Edwards had prevailed, the result
would not have applied to you because the lawsuit was not filed
as a class action.
The second part of your charge describes certain District
conduct which allegedly took place subsequent to your request
that you be granted a contract pursuant to Education Code
section 44887. 	In my letter to you of July 28, 1987, I
described 11 types of District conduct which are arguably set
forth by your unfair practice charge. Information provided by
you during our meeting of August 13, 1987, it became clear that
there was duplication in my list. Your charge describes 7,
rather than 11, types of adverse conduct by the District. They
are as follows:

WILCIA SMITH MOORE
September 1, 1987
Page 3
1 . 	You were differentially scheduled for
evaluation.
2. 	You were differentially treated
concerning class size and workload.
3. 	You were threatened with class
cancellation.
4 . 	Your writing proficiency class was
cancelled.
5 . 	You were denied timely payment of your
salary between September, 1985 and
December 5, 1986.
6. 	Since the filing of the lawsuit in
1983, you were "subject to constant
threats, harassment and intimidation to
make (you) quit."
7 . 	You were denied compensation when the
District placed you unlawfully on the
ISC payroll to the extent that the
District did not make contributions to
the employee retirement fund on your
behalf concerning the ISC-compensated
hours .
II. WHAT FACTS DOES THE APPLICABLE LAW REQUIRE TO
BE ALLEGED IN ORDER FOR A COMPLAINT TO BE ISSUED?
The fair representation duty imposed on the exclusive
representative by EERA section 3544.9 extends to grievance
handling (Fremont Teachers Association (King ) (1980 ) PERB
Decision No. 125; United Teachers of Los Angeles (Collins)
(1982) PERB Decision No. 258). PERB has ruled that a prima
facie statement of such a violation requires charging party to
allege facts which suggest that (1) the acts complained of
were undertaken by the organization in its capacity as the
exclusive representative of all unit employees; and (2) the
representational conduct was arbitrary, discriminatory or in
bad faith.

WILCIA SMITH MOORE
September 1, 1987
Page 4
PERB has applied these principles to mean that facts must be
presented which answer the following questions:
(1) 	What adverse District conduct was directed
against you?
(2) 	On what date did the District's adverse
conduct occur?
(3) 	On what date did you complain of such
conduct to the Union?
(4) 	To which union representative did you
complain?
(5) 	What, if anything, did you request the
union representative to do on your behalf?
(6 ) 	Was the adverse District conduct grievable
under the collective bargaining agreement
in effect between the District and the
Union? If so, under which provision?
(7 ) 	What did the Union do or fail to do that
you allege to be arbitrary, discriminatory
or in bad faith?
See Rocklin Teachers Professional Association (Romero) (1980)
PERB Decision No. 124; Reed District Teachers Association,
CTA/NEA ( Reyes ) (1983 ) PERB Decision No. 332; Los Angeles City
and County School Employees Union (Local 99, Service Employees
International Union, AFL-CIO) (Scates and Pitts) (1983 ) PERB
Decision No. 341; California School Employees Association
(Dyer ) (1983) PERB Decision No. 342.

WILCIA SMITH MOORE
September 1, 1987
Page 5
III. WHAT ARE THE APPARENT GAPS IN THE UNFAIR
PRACTICE CHARGE AS IT IS PRESENTLY WRITTEN?
The allegations of the charge, as it is presently written, fail
to set forth a prima facie violation of EERA section 3543.6(b)
and section 3544.9. First, as stated in the warning letter of
May 22, 1987,
"The union is not required by EERA to
represent Charging Party in her effort to
secure a particular contract under
California Education Code section 44887.
Its refusal to do so is not a violation of
EERA even if the refusal were motivated by
racial bias. That kind of discrimination
would have to be remedied in another
form. " San Francisco Classroom Teachers
Association, CTA/NEA (Chestanque) (1985 )
PERB Decision No. 554; California State
Employees Association (Lemmons and Lund)
(1985 ) PERB Decision No. 545-S (union is
not obliged by EERA section 3544.9 to
pursue extra-contractual remedies for unit
member; the union's obligation to
represent fairly the interest of all
bargaining unit employees does not extend
beyond negotiation, administration and
enforcement of the collective bargaining
agreement . )
Second, the unfair practice charge, as presently written,
merely lists the 7 alleged District adverse acts. To the
extent that the charge refers to conversations between you and
union representatives, it refers to discussions concerning your
request that the Union assist you in obtaining a contract from
the District pursuant to Education Code section 44887. The
charge does not in anyway suggest that you requested union
representatives on particular dates to assist you or represent
your interests concerning the other of the District's alleged 7
separate adverse acts.

WILCIA SMITH MOORE
September 1, 1987
Page 6
More specifically, although the charge describes 7 types of
District adverse actions against you, there are no allegations
of fact in the charge which answer the following questions:
(1 ) 	On what date or dates did the District's
adverse conduct towards you occur?
(2) 	On what date or dates did you complain to
the Union concerning each of the
District's alleged ll separate adverse
acts?
(3) 	To which union representative did you
complain of each of the District's
alleged 11 separate incidents of adverse
conduct?
(4) 	What, if anything, did you request the
particular union representative to do on
your behalf with regard to the District's
alleged ll separate adverse acts?
(5) 	Under which provision of the collective
bargaining agreement in effect between
the District and the Union were each of
the District's alleged 11 separate
adverse acts grievable?
(6) 	What, if anything, did the Union do or
not do in response to your request for
assistance and that is arbitrary,
discriminatory or in bad faith?
IV. 	SUMMARY OF CONCLUSIONS REGARDING THE CURRENT CHARGE
Before reviewing the additional information you provided, which
is not yet alleged in the charge, I emphasize the status of
your present charge.

WILCIA SMITH MOORE
September 1, 1987
Page 7
1. 	The allegation that you were denied fair representation
regarding your desire to secure a contract under Education
Code section 44887 does not appear to present a prima
facie case of unfair practice. This is because the right
to secure such a contract is grounded in the Education
Code, not the collective bargaining agreement. Hence, the
exclusive representative does not have the legal
obligation to represent you in such an action, and its
failure to do so did not violate the duty of fair
representation.
2 . 	The charge lists different types of district misconduct
which might arguably have violated the collective
bargaining agreement, and the union might have been
legally obligated to represent you in such matters. 	The
charge, however, does not disclose all of the facts
necessary to state a violation. It does not contain
necessary specifics, such as whether you complained to the
union about this conduct, when you might have lodged such
a complaint and asked for representation, who you
complained to, or what the union's response was. 	To allow
PERB to consider your allegations on these points, you
must amend the charge.
3. 	During our telephone conversations preceding the August
13, 1987 meeting, you said that you had complained to
named union officials about the District's conduct
(referred to in the preceding paragraph), that you asked
for representation, and that the union refused to do
anything. 	You stated that the dates on which these things
happened, and all other necessary information, are
contained in the charge. My review of the charge
indicates the charge does mention certain dates on which
you communicated with union officials; however, the
allegations contained in the charge indicate that your
communication with the union officials concerned your
effort to secure a contract from the District under
Education Code 44887. In other words, the charge
currently does not contain allegations suggesting that you
complained about any of the eleven types of misconduct
listed above.

WILCIA SMITH MOORE
September 1, 1987
Page 8
V. 	THE NEW INFORMATION YOU PROVIDED IN
CONVERSATIONS WITH PERB STAFF WHICH IS NOT YET
INCLUDED IN THE UNFAIR PRACTICE CHARGE
During our telephone conversation of July 27, 1987, you
provided information which is not alleged in the unfair
practice charge. Specifically, you stated that: 	you
complained to union representatives Wanda Pruitt, Shirley Van
Bourg, Stewart Weinberg, Dorothy Lumberger, Don Hubbard, and
Bonnie Robinson concerning the 7 types of District misconduct
set forth above and on dates set forth in the charge you
requested those individuals, in their capacities as
representatives of the Union, to represent your interests
vis-a-vis the District. At the meeting of August 13, 1987, you
provided more specific information in support of these
allegations.
A. Discrimination
(1) Beginning in approximately 1983, the District failed
and refused to grant you a contract which you believed you were
entitled to pursuant to Education Code section 44887. From the
date you first sought that contract to the date on which you
filed the unfair practice charge, you attempted to enlist the
union's support in securing a contract. However, despite your
efforts, the union refused to represent you.
As explained above, the collective bargaining agreement
does not require the District to grant you a contract under
Education Code section 44887. However, the District would
arguably violate the contract, specifically Article VI (Equal
Employment Opportunity and Non Discrimination), if the
District's denial of a contract under Education Code section
44887 was motivated by racial animus.

WILCIA SMITH MOORE
September 1, 1987
Page 9
(2) On August 13, 1987, you stated that the District's
denial of a contract was not racially motivated and therefore
you did not present that theory to the union at anytime
including November 5, 1986, the date on which you last demanded
union representation in your effort to secure an Education Code
section 44887 contract. You explained that ultimately you
suspected the union's failure to represent you was racially
motivated. And, you added that had the union been an advocate
of your position, the District would have awarded you a
contract and would not have treated you adversely in other
ways.
For the reasons stated above, the information you provided, if
alleged in an amended complaint, would not appear to state a
prima facie violation. The union's failure to file a grievance
alleging violation of Article VI by the District does not
appear to have been a breach of the duty of fair representation
owed to you.
B. 	Evaluation
(1) On August 13, 1987, you stated that the District
subjected you to a second evaluation within a two-year period.
You were first evaluated on April 14, 1986. 	On October 29,
1986, the employer began a new evaluation. The District's
conduct arguably violated Article XV (Evaluation Procedure ) in
three respects. First, an evaluation may only be undertaken
once every two years. Second, if an additional evaluation is
to be undertaken during that period, the employer is obligated
to justify such conduct in writing. That was not done.
District representative Insley made 11 unannounced visits to
your classroom. That is also arguably a violation of the
contractual evaluation policy. (If you choose to amend the
charge to include these allegations, please specify the
sections of Article XV which you have in mind. )
Third,

WILCIA SMITH MOORE
September 1, 1987
Page 10
Subsequent to October 29, 1986, you requested union
representative Dorothy Laumberger to accompany you to a
meeting. She refused. In January 1987, you requested that
union representative Wanda Pruitt accompany you in connection
with the evaluation. On January 13, 1987, you were informed by
the District that the union had refused Ms. Pruitt permission
to accompany you. You state that the union thereafter refused
to file a grievance on your behalf concerning the District's
alleged violation of the contractual evaluation policy.
(2) The above information, which you related to me on
August 13, 1987, might arguably state a prima facie violation
of EERA section 3543.6(b) and section 3544.9 if it is alleged
in an amended unfair practice charge. The facts disclosed
might well suggest the presence of the five elements which must
be alleged: 	the nature of the incident which occurred, the
date of the incident, the date on which you requested the union
to represent you concerning the incident, the contractual
provisions which were arguably violated by the District's
conduct, and the union's refusal to represent you.
C. 	Class Size
(1) On August 13, 1987, you stated that the District
violated Article XIII (Class Size ) of the contract when it
assigned more students to your class than were permitted under
the teacher-student ratio set forth in the contract. You
described this problem as commencing in approximately 1984 and
continuing to the present. You stated that you complained to
the union of the District's violation of the contract as late
as September 16, 1985. However, you indicated that subsequent
to that date you did not bring the problems of excess class
size and work load to the attention of the union.

WILCIA SMITH MOORE
September 1, 1987
Page 11
(2) The information provided by you on August 13, 1987,
does not appear to state a violation of the EERA. The union's
failure and refusal to file a grievance on your behalf alleging
violation of Article XIII occurred on September 16, 1985, when
you last requested and were denied representation. That
conduct occurred more than six months before the date of which
you filed the unfair practice charge and therefore it is
time-barred. 	As explained in the warning letter sent to you on
May 22, 1987, to state a prima facie violation, the charging
party must allege and ultimately establish that the alleged
unfair practice either occurred or was discovered within the
six month period immediately proceeding the filing of the
charge with PERB. EERA section 3541.5 (a ); San Diegueto Union
High School District (1982 ) PERB Decision No. 194.
D. 	Threat to Cancel Fourth Period Class
(1 ) During our conversation of August 13, 1987, you stated
that the union threatened that your fourth period class would
be canceled in the event you refused to accept payment with
"ICS" monies for teaching that class. According to Ms.
Laumberger and Mr. Hubbard, representatives of the union, if
you did not accept the money, the District would stop sending
students and eventually cancel the class.
(2 ) The facts concerning the union's threat do not appear
to state a violation of EERA sections 3543.6 (b) and 3544.9.
The conduct occurred in September, 1985, more than six months
prior to the date on which you filed the instant unfair
practice charge.

WILCIA SMITH MOORE
September 1, 1987
Page 12
E. Cancellation of Writing Proficiency Class
(1) On August 13, 1987, you stated that your writing
proficiency class was canceled by the District on
October 30, 1986. You indicated that such conduct violated
Article 18, specifically section 18.1 of the collective
bargaining agreement because the District is prohibited from
manipulating classes so as to prevent an employee from being
placed on another salary scale. The District's refusal to pay
you with general funds for the fourth period class enabled it
to avoid granting your contract pursuant to Education Code
section 44887 and also deprived you of a status which would
have led to placement on the teacher's salary scale.
You stated that you requested the union, specifically Ms.
Laumberger to represent you in a grievance against the District
concerning the cancellation. Her response was to say simply
that you were lucky you were not fired. 	The union refused to
represent you in this matter.
(2) The information you provided concerning the
cancellation of the writing proficiency class, if alleged in an
amended unfair practice charge, appears sufficient to support a
prima facie violation of the EERA. However, it may be that you
did not intend to cite Article 18 ( Retirement/Early Retirement)
as the basis on which you requested the union to grieve the
District's conduct. If you choose to amend the charge to
include allegations concerning the cancellation of the class,
please allege the specific section of the contract which you
believe to have been violated.

WILCIA SMITH MOORE
September 1, 1987
Page 13
F. Late Payment of Salary
(1) On August 13, 1987, you provided information concerning
the District's failure and refusal to pay you in a timely
manner . This conduct, according to your statement, occurred
between September, 1985 and December 5, 1986. You first
complained to the union of this conduct and requested
representation on September 16, 1985. You also complained and
requested representation on October 29 and 30, 1986. The
District's failure to pay you in a timely manner violated, in
your view, Article XIV (Teacher Compensation) .
(2) The information you have provided concerning the
District's failure to pay you in a timely manner, if alleged in
an amended unfair practice charge might well support issuance
of a complaint. The information appears to describe the
elements necessary for a prima facie statement of violation:
the nature of the incident which occurred, the date of the
incident, the date on which you requested the union to
represent you, the contract provision arguably violated, and
the date on which the union refused to assist you.
G. 	Threats/Harrassment
(1) On August 13, 1987, you stated that the District
threatened in other ways to harass you since the first day you
requested a contract pursuant to Education Code section 44887.
You described an incident which occurred when you were "locked
up in the library with a man from Visual Arts. " You also
described a more recent incident involving the employer's
refusal to discipline students in your class. You stated that
the latter type of incident occurred throughout the past year
and a half and that you specifically requested representation
from the union on September 4, 16 and 19, 1985, October 7 and
8, 1985, March, 1986, October 29 and 30, 1986, and in January,
1987. You stated that the District's conduct is arguably
prohibited by Article XVI, section 3.7 (Safety) .

WILCIA SMITH MOORE
September 1, 1987
Page 14
WILCIA 	SMITH
	MOORE
September
	l,
	1987
Page 	14
(2) The information you presented concerning the District's
refusal to discipline students and the union's failure and
refusal to address that wrong through the grievance procedure,
if alleged in an amended unfair practice charge, appears
sufficient to support issuance of a complaint. You have
related information which suggests the presence of the
necessary elements of the violation. (See above. ) However, if
you choose to amend the charge to contain allegations
describing this conduct, please verify whether Article XVI is
the section which arguably prohibits the District's conduct.
Article XVII (Safety Conditions) may be more appropriate.
H. Denial Of Benefits
(1) On August 13, 1987, you also stated that the District's
effort to you pay for the fourth period teaching with ICS money
rather than District funds, resulted in your being denied
several benefits, including but not limited to District
contributions on your behalf to the retirement fund. You
requested the union to represent you in this matter and urged
that the District conduct was prohibited by Article XIV
(Teacher Compensation ) of the contract. You indicated that you
requested representation from the union throughout the period
in which the District refused to pay you with District funds
for teaching the fourth period. 	pecifically, you complained
on September 4, 16 and 19, 1985, October 7 and 8, 1985, March,
1986, October 29 and 30, 1986, as well as in January, 1987.
(2) This information, if alleged in an amended unfair
practice charge, appears sufficient to support issuance of a
complaint. 	If you intend to amend this charge, note that you
must allege facts concerning the nature of the incident which
occurred, the date on which it occurred, the date on which you
requested the union to represent you by filing a grievance in
this matter, the specific contract provision arguably violated
by the District conduct, and the date on which the union
refused to assist you.
(2)
	The
	information
	you
	presented
	concerning
	the
	District's
refusal
	to 	discipline
	students
	and
	the 	union's
	failure
	and
refusal 	to
	address
	that
	wrong
	through
	the
	grievance
	procedure,
if
	alleged 	in
	an
	amended
	unfair 	practice
	charge, 	appears
sufficient 	to
	support 	issuance
	of
	a
	complaint.
	You
	have
related
	information
	which
	suggests 	the
	presence 	of
	the
necessary
	elements
	of
	the
	violation.
	(See
	above.)
	However,
	if
you
	choose
	to
	amend
	the
	charge
	to
	contain 	allegationsdescribing
	this
	conduct,
	please
	verify
	whether
	Article
	XVI
	is
the
	section
	which
	arguably
	prohibits
	the
	District's
	conduct.
Article
	XVII
	(Safety Conditions)
	may
	be
	more
	appropriate.
H.
	Denial
	Of
	Benefits
(1)
	On
	August
	13,
	1987, 	you
	also 	stated
	that
	the
	District's
effort 	to
	you
	pay
	for 	the 	fourth 	period 	teaching
	with
	ICS
	money
rather
	than
	District
	funds,
	resulted 	in
	your 	being
	denied
several
	benefits,
	including 	but 	not
	limited 	to
	District
contributions
	on
	your
	behalf
	to
	the 	retirement
	fund.
	You
requested 	the
	union
	to 	represent
	you
	in
	this
	matter
	and
	urged
that
	the
	District
	conduct
	was
	prohibited
	by
	Article
	XIV
(Teacher 	Compensation)
	of 	the
	contract.
	You
	indicated
	that
	you
requested 	representation
	from
	the
	union 	throughout
	the 	period
in
	which
	the
	District
	refused
	to
	pay
	you
	with
	District
	funds
for 	teaching 	the 	fourth 	period. 	S
Specifically,
	you
	complainedon 	September 	4,
	16
	and
	19, 	1985, 	October
	7
	and
	8,
	1985, 	March,
1986, 	October
	29
	and 	30, 	1986,
	as 	well 	as 	in
	January, 	1987.
(2) 	This 	information,
	if
	alleged 	in
	an
	amended
	unfair
practice
	charge, 	appears
	sufficient 	to
	support 	issuance
	of
	a
complaint.
	If
	you
	intend
	to
	amend
	this
	charge, 	note
	that
	youmust
	allege 	facts
	concerning
	the 	nature 	of 	the 	incident
	which
occurred, 	the 	date
	on 	which
	it
	occurred, 	the 	date
	on
	which 	you
requested 	the 	union
	to represent
	you 	by
	filing
	a
	grievance 	in
this
	matter, 	the 	specific 	contract 	provision 	arguably
	violated
by
	the
	District
	conduct, 	and
	the 	date
	on 	which 	the 	union
refused 	to 	assist
	you.

WILCIA SMITH MOORE
September 1, 1987
Page 15
I. 	Additional Incidents
(1) Finally, you described two other incidents. First, you
related information concerning the District's failure to keep
accurate records of your pay and deductions. As a consequence,
you had problems with the IRS. You complained to the union and
attorney Weinberg, refused to help you, stating "we all have
problems with the IRS." This conduct by the union occurred in
October, 1984.
(2) Even if this information were alleged in an amended
unfair practice charge, it would not be sufficient to support
issuance of a complaint. It occurred more than six months
prior to the date on which you filed the unfair practice
charge. For the reasons stated above, such an incident is
time-barred.
(3 ) Second, you described an incident involving a situation
which you believe was intentionally created by District
representative Insley. You had an altercation with a student
who was frustrated that a promise Insley had made to him could
not be put into effect. You were injured.
(4) However, as you stated on August 13, 1987, you did not
complain to the union of the incident involving the psychotic
student and Mr. Insley. Consequently, the union was not asked
to represent your interest by a filing a grievance and the
failure to do so cannot be considered a breach of the duty of
fair representation. Even if alleged in an amended unfair
practice charge, the information related by you concerning this
incident would not support issuance of a complaint.
VI . 	CONCLUSION
For the above reasons, the charge as presently written does not
state a prima facie case. 	However, if you amend the charge to
include the information set forth above in section V. B(1) ,
E(1), F(1), G(1), and H(1), a prima facie case might be
evident, and issuance of a complaint might be warranted.
WILCIA 	SMITH 	MOORE
September 	1, 	1987
Page 	15
I. 	Additional 	Incidents
(1) 	Finally, 	you 	described 	two 	other 	incidents. 	First, 	you
related 	information 	concerning 	the 	District's 	failure 	to 	keep
accurate 	records 	of 	your 	pay 	and 	deductions. 	As 	a 	consequence,
you had 	problems 	with 	the 	IRS. 	You 	complained 	to 	the 	union 	and
attorney 	Weinberg, 	refused 	to help 	you, 	stating 	"we 	all 	have
problems 	with 	the 	IRS. 11 	This 	conduct 	by 	the 	union 	occurred 	in
October, 	1984.
(2) 	Even 	if 	this 	information 	were 	alleged 	in 	an 	amended
unfair 	practice 	charge, 	it 	would 	not 	be 	sufficient 	to 	support
issuance 	of 	a 	complaint. 	It 	occurred 	more 	than 	six 	months
prior 	to 	the 	date 	on 	which 	you 	filed 	the 	unfair 	practice
charge. 	For 	the 	reasons 	stated 	above, 	such 	an 	incident 	is
time-barred.
(3) 	Second, 	you 	described 	an 	incident 	involving 	a 	situation
which 	you 	believe 	was 	intentionally 	created 	by 	District
representative 	Insley. 	You had 	an 	altercation 	with 	a 	student
who 	was 	frustrated 	that 	a 	promise 	Insley had 	made 	to 	him 	could
not 	be 	put 	into 	effect. 	You 	were 	injured.
(4) 	However, 	as 	you 	stated 	on 	August 	13, 	1987, 	you 	did 	not
complain 	to 	the 	union 	of 	the 	incident 	involving 	the 	psychotic
student 	and 	Mr. 	Insley. 	Consequently, 	the 	union 	was 	not 	asked
to 	represent 	your 	interest 	by 	a 	filing 	a 	grievance 	and 	the
failure 	to 	do 	so 	cannot 	be 	considered 	a 	breach 	of 	the 	duty 	of
fair 	representation. 	Even 	if 	alleged 	in 	an 	amended 	unfair
practice 	charge, 	the 	information 	related 	by 	you 	concerning 	this
incident 	would 	not 	support 	issuance 	of 	a 	complaint.
VI. 	CONCLUSION
For 	the 	above 	reasons, 	the 	charge 	as 	presently 	written 	does 	not
state 	a 	prima 	facie 	case. 	However, 	if 	you 	amend 	the 	charge 	to
include 	the 	information 	set 	forth 	above 	in 	section V.B(l),
E(l), 	F{l), 	G(l), 	and 	H(l), 	a 	prima 	facie 	case 	might 	be
evident, 	and 	issuance 	of 	a 	complaint 	might 	be 	warranted.

WILCIA 	SMITH
	MOORE
September
	1,
	1987
Page
	16
If
	you
	choose
	to
	amend
	the
	charge, 	the
	amended
	charge
	must
	(1)
be
	prepared
	on
	a
	standard
	PERB
	unfair 	practice
	charge
	form
clearly
	labeled
	First
	Amended
	Charge,
	(2) 	contain
	all
	the
	facts
and
	allegations
	you
	wish
	to
	make,	
(3)	
indicate
	theca"se
	numberwhere
	indicated
	on
	the
	form
	(even 	though
	you
	are
	not
	to
	write
in 	the
	box
	when
	originally 	filing
	a
	charge),
	(4)
	be
	signed
under
	penalty 	of 	perjury
	by
	the
	charging
	party,
	and
	(5)
	be
served
	on
	the 	respondent.
	Proof
	of 	service
	must
	be
	attached
	tothe
	original
	as 	well 	as
	to
	all
	copies 	of 	the
	amended
	charge.
For
	your
	convenience, 	blank
	charge
	forms,
	proof
	of
	service
forms,
	and
	a
	leaflet
	on
	"How
	to 	File
	an
	Unfair
	Practice
	Charge"
are
	enclosed.
I	
recognize
	that
	you
	may
	disagree
	with
	my
	assessment
	that
certain
	elements
	of
	you
	case
	do
	not
	contribute
	toward
	a
violation
	of 	the
	EERA.
	(I
	have
	pointed 	out
	five
	allegations
which 	do
	not 	appear
	to 	establish
	an
	unfair
	practice,
	either
because
	of
	limitations
	on
	the
	scope
	of
	the 	duty
	of 	fair
representation 	(section
	V.A,
	above, 	and
	see
	section
	IV)
	or
because 	the
	allegations
	appear
	to
be 	time-barred
	(sectionV.C(l), 	(D)(l),
	(I)(l), 	I(3).) 	If
	you
	disagree
	with
	my
assessment 	regarding
	any
	of 	these
	allegations
	and
	if
	you
	want
to
	test
	the
	validity
	of
	my
	assessment,
	you
	should
	include 	these
allegations
	in
	your
	amended
	charge
	as 	well.
	In
	that 	event,
	I
would 	most
	likely
	dismiss 	those
	particular 	allegations,
	and
	you
would
	have
	a
	right
	of 	appeal
	to
	the
	Board
	itself.
If
	I
	do
	not
	receive
	an
	amended
	charge 	or 	withdrawal
	from
	you
	on
or 	before
	September 	25, 	1987,
	I
	shall
	dismiss
	your
	charge.
	If
you 	have 	any
	questions
	on
	how
	to
	proceed, 	please
	call
	me
	at
(415) 	557-1350.
Sincerely yours,
-	
Jr-~-;-·
..
,·.,
PETER HABERFE.i1V
Regional 	Attorney
Enclosures

RELATION . ECARD
HEADCURRYERE OFFICE
1987 SEP 1 1 AK II: 43
SEPT 2, 1987
Mr Sloan,	~ .. _J~_,)
JI received Peters~ 	,~ ···v~
~letter today . Did,,_..,....~ 	. 	cE)~
you read it ? ~ 	2
There are Distortions
on evey page . I ~J
would like to ~ 	_:::z;_:,
request at this ~ 	~
time that PETER HABER FEL~ PErt R., 	H	ABER. F
-----BfBE REMOVED from myRE MOVED
Case . By Now even	~ 	. 	f3 '( 	f\roiu
Attachment 4
1987 SEP 	I I 	AM II : 43
Attachment 4
DEIL)

2	
G)
~you must KNOW
~	
}<.tvow
~	that he either	
~
	~
Can NOT on will NOT	
~	
/VbT	
~	
W~	
/Vol
. Do what you ask
D{)
	w~	
~
	~
~	him to do.	
~	
~-
.I~	I feel in all
~ 	~
,,
sincerity that I am
~	
d	
~
never going to get
~
	~
fair or even APPROPRIATE
~
	~	
APPRofRi'ATc
Consideration from
PETER HABER FIELD ., AND I
	pl:
f E
'K
	l--\
P,
	\:) E
~	
F; EL D 	• 	A
ND
J :rJ)ofl/r	DON'T THINK PETER MAKES MISTAKES ,	
TH1Nt<.	
PETE/2-
	Mftl(CS 	Mtsi-ttkES
}
I	I THINK His MESS-UPS ARE DELIBERATE A	
MEs~-ufs t
THI~/\	
H-
1
's	
,4Rt 	.DrltBERATf 	f+
STALL FOR TIME- TO DISCOURAGE AND TO	-S,Ftll 	FoR 	Ttne--10 	.oiscou.R1t3E 	ftND
	TO
FRUSTRATE ME .	
PfZVS,RATE 	ME
	..
-

IOTES UN
The august 13, MEETING
1- IT is impossible
for anyone who can
read to have read
my damage COMPLAINT
ant draw 	the
Conclusion that I
was Complaining
about A TEACHERS Ain . 	,
2 - ON the first Page
COMPLAINT
TO THE litter
(@) BOX XI ED. EMPI ( GOV ACT) I HAVE
CHECKED GOV. CODE 3543. 5
3543. 6 rand WRITTEN in 35 43, 2
	~S-l./..3~	
t	
~
	WR1,,€".A
✓	
--~35L/3,-1_
3543.5,
	35Lf3.s/ 	35 43. 6	
35"4£-3,t
.,
3
3-- at NO TIME DID I
OX 	No 	T1HE 	/)JJJ
MENTION AN EARLY RETIREMENT
/1E!vt/OAI
	AM	
EARly_ 	RtTtR..EMENT
OR THE EARLY RETIREMENT
	OR. 	THE 	£AR.Lfi 	RET!T21=MENT
ARTICLE X VITI ( IS THIS WISHFUL / HINKIn	A 	RI
f
(,
	/	
E:-X, 	v'.'.I
re	
~
S 	I	
1-l•·s
	W1sl-fHL	
/k,
••
,f
ILAM NOT RESPONSIBLE FOR WHAT	
A'M.._
	~oT
	Kt.SfoNS'l	
Bl£" 	Fol<..
	lJHA,
P	
F7t=rc1<_	ETER PRETENDS TO BE MISTAKES, OR	PRETE IV OS	
70	
Br: 	M 1'sr11kc
5./	
oP-
WHAT HE COPIED WRONG,	
vVHAT 	H-t 	COPltD 	hf126N4 	I
:r

~
4-	4 - NEVER - DID I OR WILL I	
Mvt12.	
-	
D,'p
.r 	(jR_	
MLL	
:1	
=-
CHANGE MY MINE	c
1111Nr;1=	
M/	
_f-11A/e ABOUT
A8our_
/HE	THE PAST BIGOTRY	
P11
sT	
Bi ~OTR
X, 	PREJUDICE	
PR£duDICE
AND ACT Of DISCRIMINATION	/I-ND 	A
	CT	
~	
,D
(SC
R
	'r
111iv- II
	-rl
0/v
. BIASED	
f3t'ASED ATTITUDES ,
A,r-1ruoes_.l 	OVERT	
,o
	v~-RJ
and COVERT RACISM
~	
COVERT	
RACISM	
,
of THE BERKELEY FEDERATION
H_	
T/ft
	BERkElE/	
r=tt)fa]cAT/ON
~ TEACHERS-	
TEA	
cJ-f	
12	
~s	
- 	AFT	A
1=T
LOCAL 1078, AFL-CIO
0LocPrL 	/078
	ltFL-CIO
/
AND I WILL NO LONGER	
AWD
	I	
W,!J	
!VO
	LO!V{;EJZ
BE POLITE ABOUT IT.	
l3 	E	
P6	
L,7E
	11
t3DLLT	
/r:
PETER ISN'T FOOLING
f 	\
PETER	
/ 	S tJT 	Foo	
L	
/N9
ANY BODY BUT HIMSELF
AN( 	(3oo;	
8uT
	H/MSELF
NOR DID His LITTLE	
t
✓
OR	
DtD
/
His
;
L1rrlF
f
"ALL OR NOTHING	
~	
/1-	
l 	L 	o
F R
	/V CJT
I-/ 	I
	Iv
	C2
FALLACY	4 	L 	L 	A C V 	TRICK	
TR 	l C
	l<:
question.", 1
" DiDH"NOT FOOL//o;[)H'Sf\loT
	FooL
UANYONE BUT PETER'
AN/OWE 	!3uT
	PE/ER_,:,

J
LITTLE TRICK question,
When Peter asked me
did I think the
Union 	discriminated
against ALL Blacks,
( ALL VOR NONE Fallacy )
my have beenanswer should
INTERPRETED To mean	
To
had Changed m
mine -8 frame heels
DISCRIMINATED against
I AM still being DISCRIMINATED
A GAINST.
:Jf~J~	That I said was :	
[,,Uμ_,LJ:
" The Union does mut DISCRIMINATE	
,,	
{l_	
~ 	~ 	~	
D	1
~CR,,,;,
tJ
11r~
against ALL BLACKS - THAT	
JI
L
{_
	BI
I/Cl<::: s 	-	
TH/IT
__ 	THE UNION like ALL	
1/fE
	UAiltJIV~	
ALL
_RACls~BIC-oTs	RACISTa BIGOTS likes to	
~	
_;z;::-
·- 	Surround itself with ".	
~·-
	.,--<,__..,....._..._._	
~-~	
w 	.-<-A,	
,,,,
_	SUBSERVIENT BLACKS.	S uB S
~RV
If=
NL
____
8 	L 	A
__
C l< 	S,
SINCE I CAN NOT AMEND MY CHARGE	S1PJGE 	CAt-1
	rvor
	ft~Erv'D	
1vty	
C/IAR~
WITH USE of LIES - DISTORTIONS	w, T1t	
US
c
	"6	
L ri s 	- 	Dcsn R1 ,
a·.,
s
' r

OVER
. SINCE I Ask you to BE
	SI	
Wcc
	I
	Its
k..
	yo	
CA_
	f 	(J	
flE
: .
~sure that I WOULD	
~	
_"_L. 	.
W.
CJ
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STATE OF CALIFORNIA 	GEOl'lGE DEUKMEJIAN, Go..,,"",
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Stree1, 9th Floor
San Francisco, 	California 	94108
(415) 557-1350
September 	17, 	1987
Wilcia 	Moore
RE: 	Berkeley 	Federation 	of 	Teachers, 	Case 	No.
SF-CO-310
Dear 	Ms. 	Moore:
This 	responds 	to 	your 	letter 	dated 	September 	2, 	which 	was
received 	on 	September.11.
Your 	letter 	accuses 	Mr. 	Haberfeld 	of 	bad 	faith 	and 	a 	wide 	range
of 	misdeeds 	and 	distortions. 	You 	have 	requested 	that 	he 	be
removed 	from 	your 	case. 	Indeed, 	in 	our 	telephone 	conversation
of 	September 	15 	you 	informed 	me 	that 	you 	would 	not 	respond 	to
his 	letter 	or 	file 	an 	amendment 	to 	the 	charge 	unless 	the 	case
were 	assigned 	to 	another 	attorney. 	Also, 	although 	your 	recent
letter 	to 	me 	indicates 	that 	you 	need 	more 	time 	to 	respond 	to
Mr. 	Haberfeld's 	letter, 	in 	our 	telephone 	conversation you
refuse 	to 	cooperate 	with 	me 	in working 	out 	a 	later 	due 	date
unless 	I 	promise 	to 	remove 	Mr. 	Haberfeld 	from 	the 	case.
I 	have 	fully 	examined 	your 	allegations. 	In 	conducting 	my
examination, 	I 	was 	mindful 	of 	the 	information 	that 	I 	have
obtained 	fr.om 	my 	lengthy 	discussions 	with 	you, 	from 	prior
correspondence 	between 	us, 	and 	from 	the 	two 	very 	comprehensive
letters 	that 	Mr. 	Haberfeld 	sent 	you. 	·
Read 	in 	light 	of 	all 	the 	information 	I 	have 	obtained, 	your
letter 	in 	no 	way 	persuades 	me 	that 	Mr. 	Haberfeld 	has 	erred 	in
his 	analysis 	or 	approach 	to 	the 	case. 	Rather, 	I 	believe 	that
you 	have 	misunderst~od 	the 	intent 	of 	his 	most 	recent 	letter,
which 	was 	to 	assist 	you 	in 	formulating 	an 	amended 	charge.
Based 	on 	your 	apparently 	immutable 	perception 	that
Mr. 	Haberfeld 	is 	intentionally 	attempting 	to 	undercut 	your
case, 	I 	do 	not 	expect 	you 	to 	accept 	this 	explanation.
Nevertheless, 	the 	reality 	is 	that 	the 	steps 	that 	Mr. 	Haberfeld
and 	I 	have 	taken 	to 	assist 	you 	in 	this 	case 	have 	been
considerable, 	and 	I 	have 	personally 	overseen Mr. 	Haberfeld's
work 	on 	this 	case 	since 	you 	initially 	brought 	the 	matter 	to 	my
attention.
Attachment 5

Wilcia
	Moore
September
	17,
	1987
Page	
2
These
	steps
	--
	including
	conducting	
a	
two-hour
	meeting
	with
you,
	drafting
	a
	long
	discussion
	outline
	to
	facilitate
	ourmeeting,
	and
	(in
	the
	most
	recent
	letter)
	organizing,
	digesting
and
	summarizing
	information
	for 	your
	benefit
	--
	truly
	exceed
any
	efforts 	that
	any
	member
	of
	my
	staff
	has
	made
	•to
	assist
	the
charging
	party 	to
	state
	in
	proper
	form"
	the
	elements 	of
	a
	prima
facie
	case 	(see
	PERB
	Regulation
	32620(b)(4)).
	I
	am
	sorry
	you
do
	not 	recognize
	the
	efforts 	that
	we
	have
	made
	on
	your
	behalf.
Also,
	lam
	compelled
	to
	respond
	with
	particularity
	to
	some
	of
your
	allegations.
	First,
	your
	accusation
	that
	Mr.
	Haberfeld
distorted
	the 	information
	that
	you
	provided
	to
	him
	in
	ourmeeting
	is
	inaccurate.
	In
	virtually
	all
	respects,
	my
	own
	notesof
	that
	meeting
	independently
	corroborate 	the
	factual
assertions
	contained 	in
	his
	letter.
	Furthermore,
	your
complaints
	about
	inaccuracies
	in 	his
	letter
	are
	in 	large
	part
based
	on 	a	
misreading 	of
	his
	letter.
	Second,
	to
	the
	extent
that
	you
	claim
	that
	the 	information
	in 	his
	letter
	which 	he
obtained
	prior 	to
	our
	last
	meeting
	is
	inaccurate,
	this
	claim
is,
	in
	my
	view,
	unfair.
	All 	of
	that
	information
	was
specifically
	provided
	to
	you
	in
	the 	Outline 	for 	Discussion
	that
formed
	the 	basis 	for
	our
	meeting.
	You
	were
	given
	time
	to
review
	the 	outline
	before 	our 	meeting,
	and
	to
	correct
	any
assertions 	in
	the 	outline
	which
	you
	considered
	to
	be 	wrong.
Third
	{and 	most
	importantly),
	even
	if
	the 	information
	he
recited
	were
	inaccurate,
	no
	prejudice
	has 	been
	caused.
	You
	are
still
	free 	to
	amend
	your
	charge 	to
	state
	the
	facts
	as 	you
understand
	them, 	and
	no
	adverse
	inference
	can
	or
	will
	be
	drawn
as	
a
	result
	of
	any
	misunderstanding.
For
	the 	foregoing 	reasons, 	the 	accusations 	in
	your
	letter
	are,
in
	my
	view, 	unfounded. 	There
	is
	accordingly
	no
	basis 	in
	law
	or
fact
	for
	my
	removing
	Mr.
	Haberfeld
	from
	the 	case.
The
	final 	issue
	is
	the 	request 	contained
	in
	your
	letter
	{at
	p.
6)
	for
	an
	extension
	of 	the
	September 	25 	due
	date
	for 	your
response
	to
	Mr.
	Haberfeld's
	letter.
	The
	period 	of 	time
	that
Mr.
	Haberfeld 	allowed 	for
	a
	response
	is
	well 	in 	excess 	of 	the
time
	ordinarily
	provided
	to 	charging
	parties 	to
	amend
	theircharges.I
lyour
	letter
	indicates 	that
	you 	had
	previously 	asked
	me
to 	ensure 	that 	the 	letter
	would 	be 	received 	before 	school
started. 	Neither
	Mr.
	Haberfeld 	nor
	I 	have 	any
	recollection 	ofyour 	making
	this 	request,
	and 	our 	notes
	do
	not 	reflect
	it
either. 	In 	any 	event,
	Mr.
	Haberfeld's 	other 	job

-
Wilcia 	Moore
September 	17, 	1987
Page 	3
Furthermore, 	I 	called 	you 	earlier 	this 	week 	in 	resporise 	to 	your
letter 	to 	find 	out 	how 	much 	more 	time 	you 	desired. 	You 	refused
to 	answer 	my 	question 	unless 	I 	promised 	to 	remove 	Mr. 	Haberfeld
from 	the 	case. 	I 	declined 	to 	make 	such 	a 	promise 	(the 	question
of 	how 	much 	time 	you 	need 	to 	amend 	your 	charge 	is 	properly 	and
logically 	separate 	from 	your 	complaint 	about 	Mr. 	Haberfeld).
Given 	this 	stalemate 	and 	your 	refusal 	to 	indicate 	how 	much 	more
time 	-- 	if 	any 	-- 	you 	required, 	the 	September 	25 	due 	date
stands.
As 	indicated 	in Mr. 	Haberfeld's 	September 	1 	letter, 	the 	charge
as 	presently written 	does 	not 	state 	a 	prima 	facie 	case. 	If 	you
wish 	to 	amend 	the 	charge 	in 	an 	effort 	to 	cure 	the 	deficiencies
outlined 	in 	his 	letter, 	you 	must 	file 	an 	amended 	charge 	by
September 	25. 	The 	amended 	charge 	must 	(1) 	be 	prepared 	on 	a
standard 	PERB 	unfair 	practice 	charge 	form 	clearly 	labeled 	First
Amended 	Charge, 	(2) 	contain 	all 	the 	facts 	and 	allegations 	you
wish 	to 	make, 	(3) 	indicate 	the 	case 	number 	where 	indicated 	on
the 	form 	(even 	though 	you 	are 	not 	to 	write 	in 	the 	box 	when
originally 	filing 	a 	charge), 	(4) 	and 	be 	signed 	under 	penalty 	of
perjury 	by 	the 	charging 	party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent, 	and 	proof 	of 	service 	must 	be 	attached
to 	the 	original 	as 	well 	as 	to 	all 	copies 	of 	the 	amended 	charge,
If 	you 	have 	any 	questions 	on 	how 	to 	proceed, 	please 	call 	me 	at
(916) 	323-8015.
Si?cerely yours,
..,, 	'
JEFFREY 	SLOAN
General 	Counsel
3226D
responsibilities 	precluded 	him 	from 	completing 	the 	letter 	in
advance 	of 	the 	date 	issued. 	Additionally, 	to 	ensure 	your
ability 	to 	make 	plans 	to 	complete 	an 	amended 	charge, 	I 	called
you 	on 	the 	day 	that 	Mr. 	Haberfeld's 	letter 	issued 	and 	left 	a
message 	on 	your 	answering 	machine 	which 	indicated 	that 	your
response 	would 	be 	due 	on 	September 	25. 	The 	first 	indication 	I
received 	of 	your 	dissatisfaction 	with 	that 	date 	was 	in 	your
most 	recent 	letter, 	received 	September 	11.

. t
STAT!
OF
CAUFOftNIA	
GEORGE
C>EUKMEJIAN,
Gowmor
/	
PUBLIC
	EMPLOYMENT RELATIONS 	BOARD
Heodquarten Office
\001 lilt+, $trNt
5,oo..an•ito,
CA
	9581'-"174
(91(.)
323-8015
September
	17,
	1987
Ms.
	Hilcia
	Moore
Re:
	Attached
	Letter
	From
	Jeffrey
	Sloan
	Dated
	Sept. 	17,
	1987
Dear
	Ms. 	Moore:
To
	avoid 	the
	possibility
	of 	delivery
	delays 	caused 	by
the
	certified
	mail 	process,
	I
	am
	sending
	a
	copy
	of 	the
above
	reference
	letter
	to
	you 	by
	reeular
	mail
	and
	the
	original
by
	certified
	mail.
Sinc_erely,
Lisa
	Standard
Secretary
Att.
/
Attachment 6