California School Employees Association (Lohmann) (PERB 0898E)

. . . .
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STEVE A. 	LOHMANN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-544
PERB Decision No. 	898
August 30, 	1991
Appearance: 	Steve A. 	Lohmann, 	on his own behalf.
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Steve A. 	Lohmann
(Lohmann) 	of a regional attorney's dismissal 	(attached hereto) 	of
his 	unfair practice 	charge. 	Lohmann alleged that 	the California
School 	Employees Association 	(CSEA) 	violated the 	Educational
Employment Relations Act 	(EERA) 	section 3543.6(c)1 by denying him
11EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
The 	regional 	attorney 	correctly 	characterized 	this 	case 	as 	an
allegation of 	a violation of 	the duty of 	fair representation
arising 	under 	EERA 	section 	3544.9 	and 	enforced 	under 	section
3543.6(b).
EERA 	section 	3544.9 	states:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting 	and 	negotiating 	shall
fairly represent 	each 	and 	every 	employee 	in
the appropriate unit.
EERA section 3543.6 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
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representation 	in dealing with 	the 	San Diego 	Unified 	School
District.2
The 	Board has 	reviewed the dismissal, 	and 	finding 	it to 	be
free of prejudicial error, 	adopts 	it as 	the decision of 	the Board
itself.
On appeal, 	Lohmann claims 	that CSEA made a 	commitment to
assist 	him and 	then 	failed to 	represent 	him at 	the 	factfinder's
meeting 	or provide 	further 	support 	for his 	appeal.
The 	Board has 	held that 	the 	exclusive 	representative 	is
under no 	obligation to 	represent 	cases 	involving 	extra-
contractual 	remedies.- 	(California 	School 	Employees Association
(Mrvichin) 	(1988) 	PERB Decision No. 	660, 	citing San Francisco
Classroom Teachers Association 	(Chestangue) 	(1985) 	PERB Decision
No. 	544.) 	In Mrvichin, 	the Board also 	found that even if 	the
exclusive 	representative has 	promised 	to 	appear 	at 	a 	hearing 	and
then 	fails 	to attend, 	without 	facts 	showing that the 	failure 	to
attend was 	motivated by bad 	faith, 	arbitrary conduct 	or
capriciousness, 	no prima facie case is 	stated. 	Further, 	in
California State Employees Association 	(Parisi) 	(1989) 	PERB
Decision No. 	733-S, 	the Board reaffirmed that an exclusive
representative has 	no duty to 	represent 	a unit member 	in 	a matter
(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.
2The 	case citation on page 	1 	of 	the warning letter,
footnote 	2, 	should read: 	Oxnard Educators Association
(Gorcey/Tripp) 	(1988) PERB Decision No. 	664.
N	2

outside 	the 	scope 	of 	representation, 	and 	expressly rejected 	the
argument 	that 	a duty of 	fair representation arises when the
exclusive representative undertakes 	to 	assist 	a 	unit member 	in a
matter outside 	the 	scope 	of 	representation.
In this 	case, 	the Merit System Rules procedure 	is
independent 	of 	the 	collective 	bargaining 	agreement's 	grievance
procedure and provides a 	separate remedy. 	As 	such, 	CSEA is 	under
no duty 	to represent Lohmann 	in this 	matter. 	Having 	initially
assisted him with his 	complaint, 	Lohmann 	failed to 	allege 	facts
sufficient to 	indicate that CSEA's 	failure 	to 	attend 	the
factfinding 	meeting was 	arbitrary> 	discriminatory 	or 	in bad
faith. 	It 	should also be noted that CSEA continued to meet with
Lohmann after 	the 	factfinding 	meeting, 	reimbursed him 	for 	the
factfinder's 	fees, 	and advised him how to 	comply with CSEA's
procedures 	in 	seeking 	litigation assistance.
Lohmann also 	contends 	there 	are 	significant 	factual
discrepancies which 	call 	for resolution through 	a hearing. 	In
footnote 	8 	on page 	4 of the warning 	letter, 	the regional 	attorney
noted 	that 	CSEA denied 	Lohmann's 	allegation 	that 	he 	requested
representation at the 	factfinder's 	meeting. 	A regional 	attorney
is 	not 	entitled to 	rule 	on the merits 	of 	a 	charge by resolving
conflicting claims. 	(Eastside 	Union School 	District 	(1984) 	PERB
No. 	466.) 	However, 	in this case, 	the regional attorney did not
resolve 	conflicting claims, 	as 	he did not rely on CSEA's
contention as 	a true 	statement 	of 	the 	facts 	in reaching his
determination.
w	3

The charge in Case No. 	LA-CO-544 	is hereby DISMISSED WITHOUT
LEAVE 	TO AMEND.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
. . . .
4

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 7, 	1991
Steve A. 	Lohmann
Re: 	Steve Lohmann v. 	California School Employees
Association. 	Unfair Practice Charge No. 	LA-CO-544,
First Amendment, 	DISMISSAL OF CHARGE AND REFUSAL
TO 	ISSUE 	COMPLAINT
Dear Mr. 	Lohmann:
The above-referenced charge was 	filed on August 22, 	1990. 	It was
placed in abeyance on January 	16, 	1991, 	and was officially taken
out of abeyance on May 	14, 	1991, 	essentially due to your
request.1 You allege 	in the 	initial 	charge that the California
School 	Employees Association 	(CSEA or Association) 	violated 	the
Educational Employment Relations Act 	(EERA), Government Code
section 3543.6(c)2 through 	its 	actions 	or omissions 	to 	act on
1At the time this 	case was placed in abeyance on January 	16,
1991, 	you 	indicated you were going to try and obtain some 	further
information about this case. 	On or about April 	1, 	1991, 	I
received your unsigned letter dated March 28, 	1991, 	which
indicated, 	in part,, that you wished to amend the charge. 	I 	left
a number of messages 	for you to call me. 	On or about April 	25,
1991, 	we talked and you repeated your desire to amend. 	You
requested 	that 	I 	provide you with 	information that would 	indicate
all 	the 	allegations 	you are making against CSEA 	(whether 	found 	in
your 	two 	unfair practice 	charges 	or 	in our telephone
conversations prior to the abeyance). 	You preferred not to
provide me with any additional 	information at 	that 	time.
2This 	case 	is 	being viewed as 	involving the union's 	duty 	of
fair representation 	(DFR). 	The duty 	is 	expressed 	in EERA 	section
3544.9 which provides 	that
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting 	and 	negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in
the appropriate unit.
Violations 	of 	the 	DFR are 	enforced 	through 	EERA 	section
3543.6(b). 	Also, 	the EERA section 3543.6(c) 	violation involves a
union's 	refusal 	or 	failure 	to meet 	and negotiate 	in good 	faith
with a public 	school 	employer. 	There are 	few facts 	in this
charge to indicate 	a violation of 	this 	type. 	For that 	reason,
this 	allegation will 	not be treated in detail. 	Furthermore, 	an
• '
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your behalf. 	At all times 	relevant hereto, 	you have been an
employee of the District working as 	a gardener.
Dismissal 	of Charge
LA-CO-544
June 7, 	1991
Page 2
I 	indicated to you 	in my attached 	letter dated May 	14, 	1991 	that
the original 	charge did not 	state a prima 	facie 	case. 	You were
advised 	that 	if 	there were 	any 	factual 	inaccuracies 	or 	additional
facts 	that would 	correct 	the deficiencies 	explained 	in that
letter, 	you 	should amend the charge accordingly. 	You were
further advised that unless you amended 	the 	charge 	to 	state 	a
prima facie case, 	or withdrew it prior to May 21, 	1991, 	the
charge would be dismissed.
On May 21, 	1991, 	you filed a First Amendment which you indicate
is 	in addition to your original 	charge.3 The amendment appears
to 	cover this 	entire matter generally criticizing CSEA for 	its
actions 	or omissions 	to act on your behalf 	(prior to your Merit
System Rules Complaint being ultimately denied on May 	18, 	1990,
and 	later 	in not pursuing 	litigation on your behalf) 	again
alleging that CSEA violated EERA section 	3543.6(c).•
The charge and First Amendment 	fail 	to 	state a prima 	facie 	case
for the following reasons. 	First, 	as noted in the attached
letter dated May 14, 	1991, 	all allegations of unlawful conduct
occurring prior to February 22, 	1990 	are untimely and will be
dismissed 	(EERA section 3541.5(a)). 	As 	a grievance was 	not or
could not be filed in this matter 	(May 	14, 	1991 	letter, 	p. 	3 ) ,
there 	is 	no 	statutory tolling.5
.!.
individual does 	not have 	standing to 	raise 	this 	type of
violation. 	Oxnard School District 	(Gorcey & Tripp) 	(1980) 	PERB
Decision No. 	667. 	Thus, 	this allegation is being dismissed.
3I 	also note that your companion case, 	against the 	San Diego
Unified School District, 	Unfair Practice Charge No. 	LA-CE-3020,
First Amended Charge, 	was 	appealed to the Board. 	On May 	21,
1991, 	the Board 	summarily affirmed the Regional Attorney's
dismissal 	of 	the charge 	that 	the District
discriminated/retaliated 	against 	you 	in handling your 	merit
systems appeal. 	(San Diego Unified School 	District 	(1991) 	PERB
Decision No. 	879)
4For the reasons 	indicated in Footnote No. 	2 	above, 	the
additional allegation 	(EERA section 3543.6(c)), 	is being
dismissed.
5Tolling only occurs 	if 	the Agreement provides 	for binding
arbitration, 	which in this case it does 	(Article XIII, 	section
5.D.l.b.), 	and only during the period it takes 	to exhaust the
grievance machinery. 	EERA section 3541.5(a).

Second, 	the above additional 	facts 	or arguments 	in the First
Amendment 	are 	insufficient 	to 	show clear 	evidence 	of 	CSEA's
unlawful motivation toward you, 	or bad 	faith conduct by the
union, 	even assuming CSEA owed you a duty 	in this 	case. 	As 	noted
in the attached letter dated May 	14, 	1991, 	it was not
inappropriate 	for you to 	file a Merit System Rules 	Complaint 	in
February 	1990 	regarding the 	entire December 	1989 	incident.
Pleading 	or 	raising 	a bare 	allegation without 	sufficient
supporting facts 	is 	insufficient 	for purposes 	of 	alleging a prima
facie case. 	California State University 	(Pomona) 	(1988) 	PERB
Decision No. 	710-H. 	Negligence or poor 	judgment by the union are
insufficient to violate the duty of 	fair representation. 	United
Teachers of Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258.
Dismissal 	of 	Charge
LA-CO-544
June 7, 	1991
Page 3
Third, 	as pointed out in the attached letter dated May 	14, 	1991,
it appears 	that CSEA does 	not owe you a duty of 	fair
representation in this 	matter, 	including pursuing your Merit
System Rules Complaint. 	This 	is because CSEA does not control
the exclusive means 	to obtain a remedy in such matters. 	See San
Francisco Classroom Teachers Association. 	CTA/NEA 	(Chestangue)
(1985) 	PERB Decision No. 	544 and California Faculty Association
(Pomerantsev) 	(1988) 	PERB Decision No. 	698-H.
I 	am therefore dismissing the 	charge 	and 	First Amendment without
leave to 	amend based on the 	facts 	and reasons 	contained 	above 	and
in my attached May 	14, 	1991 	letter.
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 Code of Regulations, 	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 	(California
Administrative Code, 	title 8, 	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 	(California Code 	of
Regulations, title 8, section 32635(b)).
Dismissal 	of 	Charge
LA-CO-544
June 7, 	1991
Page 4
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 California Code of Regulations,
title 	8, 	section 	32140 	for the required contents 	and a 	sample
form.) 	The document will be considered properly 	"served" 	when
personally delivered 	or 	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 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 	(California Code 	of
Regulations, title 8, 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,
JOHN W. 	SPITTLER
General Counse	Counsel l
By	By
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	William C. 	Heath, 	Deputy Chief Counsel
California 	School 	Employees Assn.
r.nl-lnsel

. . . . . .
STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 14, 1991
Steve A. 	Lohmann
Re: 	Steve Lohmann v. 	California School Employees
Association. 	Unfair Practice Charge No. 	LA-CO-544
WARNING 	LETTER
Dear Mr. 	Lohmann:
The above-referenced charge was 	filed on August 22, 	1990. 	It was
placed in abeyance on January 16, 	1991, 	and is now officially
being taken out of abeyance, 	essentially due to your request.
You allege 	that 	the California School 	Employees Association 	(CSEA
or Association) 	violated the Educational 	Employment Relations Act
(EERA), 	Government Code section 3543.6(c)2 through its actions or
1At the time this 	case was placed 	in abeyance on January 	16,
1991, 	you 	indicated you were going to try and obtain 	some 	further
information about this case. 	On or about April 	1,, 	1991, 	I
received your unsigned letter dated March 28, 	1991, 	which
indicated, 	in part, 	that you wished to amend the charge. 	I 	left
a number of messages 	for you to call me. 	On or about April 	25,
1991, 	we talked and you repeated your desire to amend. 	You
requested 	that 	I 	provide 	you with 	information that would 	indicate
all 	the 	allegations 	you 	are making against 	CSEA 	(whether 	found 	in
your 	two 	unfair practice 	charges 	or 	in our 	telephone
conversations prior to the abeyance). 	You preferred not to
provide 	me with 	any 	additional 	information at 	that 	time.
2This 	case 	is 	being viewed as 	involving the union's 	duty of
fair representation 	(DFR) 	under EERA because you 	are 	employed by
the 	San Diego Unified School District 	(District). 	The duty 	is
expressed 	in EERA 	section 	3544.9 which provides 	that
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the purpose 	of 	meeting and 	negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in
the appropriate unit.
----

omissions 	to 	act 	on your behalf. 	At 	all 	times 	relevant 	hereto,
you have been an employee 	of 	the 	District working 	as 	a 	gardener.
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 2
My 	investigation 	and 	the 	charge 	revealed 	the 	following
information.3 On December 	11, 	1989, 	you were 	involved 	in an
allegedly 	unfair 	interview 	for promotion 	in which 	you were 	not
selected. 	Around December 	12, 	1989, 	you contacted Steve Burrell,
a CSEA Field Rep. 	for assistance. 	He 	asked you to 	call 	him 	later
in the week and that he would 	look 	into 	the 	matter. 	On December
15, 	1989, 	you spoke to Mr. 	Burrell. 	He indicated he had spoken
to Darrel 	Rogers, 	Supervisor, 	as 	to why you did not get the 	job.
Mr. 	Rogers 	advised him that you did not do well 	on the 	interview,
but 	invited you and Mr. 	Burrell 	to meet 	and discuss 	the matter.
You declined to meet 	since you already 	spoke with Mr. 	Rogers.
You 	advised Mr. 	Burrell 	that you would 	contact 	Michael 	Cashman,
Director of Personnel, 	Mr. 	Rogers' 	supervisor. 	On December 	15,
1990, 	you then called Mr. 	Cashman and indicated that you had a
formal 	complaint 	and possible 	discrimination charge. 	He
requested 	that 	you 	submit 	a 	memorandum which he would 	review upon
returning 	from his 	vacation on January 2, 	1990. 	On December 	18,
1989, 	you 	learned that 	Bruce Bremmer was 	selected 	for the 	job on
December 	11, 	1989, 	before you were 	even interviewed 	for that
position. 	On January 2, 	1990, 	you sent a memorandum to
Mr. 	Cashman entitled 	"Denial 	of Merit 	System Rule 	rights
pertaining 	to promotion and discrimination." 	On February 	5,
1990, 	you and Mr. 	Burrell met with Mr. 	Rogers, 	Mr. 	Cashman and
Mr. 	James R. 	Rhetta, 	Director of Classified Personnel, 	to discuss
your claim. 	No 	resolution was 	reached.
Violations 	of 	the 	DFR are 	enforced 	through 	EERA 	section
3543.6(b). 	Also, 	the EERA section 3543.6(c) 	violation involves a
union's 	refusal 	or 	failure 	to meet 	and negotiate 	in good 	faith
with a public 	school 	employer. 	There are 	few facts 	in this
charge to 	indicate a violation of this 	type. 	For that reason,
this 	allegation will 	not be treated in detail. 	Furthermore, 	an
individual 	does 	not have 	standing to raise this 	type 	of
violation. 	Oxnard School 	District 	(Gorcey & Tripp) 	(1980) 	PERB
Decision No. 	667. 	Thus, 	this allegation is being dismissed.
3Factual 	information was 	also 	obtained 	from 	several
telephone 	conversations 	we had 	in January 	1991 	and 	from your
companion case, 	Lohmann v. 	San Diego Unified School District.
Unfair Practice Charge No. 	LA-CE-3020, 	First Amended Charge,
which was dismissed on March 	11, 	1991, 	and is 	currently on appeal
to 	the 	Board.

You discovered on or about February 	9, 	1990 	that 	the 	District
violated their administrative procedures. 	Since 	you desired to
file a complaint under the Merit System Rules, 	Mr. 	Burrell
assisted you on February 	9, 	1990, 	to the 	extent of having your
complaint typed at CSEA's office.4 That 	same day, 	Mr. 	Burrell
also called Mr. 	Rhetta, 	while you were there, 	regarding
procedures 	not being 	followed in your case. 	Mr. 	Rhetta 	suggested
that a meeting be 	scheduled to discuss 	this. 	Mr. 	Burrell 	stated
to you that he would discuss 	the matter with Mr. 	George Russell,
Assistant to the Superintendent for Personnel Services, 	to
determine 	if 	something could be worked out. 	You 	filed your
initial Merit System Rules Complaint on February 	15, 	1990 	and
revised 	it on February 20, 	1990. 	You contend that on February
15, 	1990, 	Mr. 	Rhetta advised you to file an administrative
procedures 	violation on a Merit System Rules 	complaint 	form,
knowing 	that 	it 	should have been filed as 	a 	grievance by the
union.
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 3
.
Next, 	you allege that Mr. 	Rhetta made his decision denying your
Merit System Complaint on February 22, 	1990. 	You essentially
contend, 	in part, 	that proper or standard procedures were not
followed in that 	(1) 	the District, 	in part, 	violated their
administrative procedures 	in December 	1989 and 	(2) 	Mr. 	Rhetta
incorrectly and/or knowingly advised you on February 	15, 	1990 	to
file 	this 	issue on a Merit 	System Rules 	complaint 	form 	instead of
as 	a 	grievance 	filed by the union. 	In your First Amended Charge
in your case against the District, 	Unfair Practice Charge No.
LA-CE-3020, 	you contend that in spite of Mr. 	Rhetta's 	incorrect
advice, 	"My union representative 	should have realized 	this was
not the correct procedure to 	follow in this matter. 	His
negligence 	resulted 	in this 	complaint 	not being 	handled 	in a
timely manner." 	(Article XIII, 	section 	6.M. 	of 	the Collective
Bargaining Agreement 	(Agreement) 	between the District 	and 	the
union, 	states 	that 	"Actions 	to challenge the Merit 	System,
procedures and policies of the District, 	. 	. 	. 	or to appeal the
District's 	adherence 	to 	or application of 	any 	of 	the
aforementioned 	shall 	not 	be 	undertaken 	through 	the 	grievance
procedure." 	(Emphasis added.) 	Thus, 	Mr. 	Rhetta's advice and
your 	Merit 	System Complaint 	in February 	1990 	regarding 	the 	entire
December 	1989 	incident do 	not appear to be 	inappropriate. 	You
also 	argue 	that 	only the union can 	file 	grievances 	over
violations 	of 	the District's 	administrative procedures. 	You
4The Association has 	indicated 	that 	in 	its 	experience,
. 	. 	. 	this complaint procedure is merely a process for rubber-
stamping 	employer 	actions."

point out that the Agreement at Article 	III, 	Employee
Organization Rights, 	Section 	11, 	Administrative Regulations and
Procedures, 	states 	that 	"The District will provide the Union one
(1) 	set of Administrative Regulations 	& Procedures 	and revisions
thereto." 	Section 	19, 	Rights Grievable, 	states that 	"Rights
granted by this Article 	III 	shall 	be 	grievable only by the
Union." 	This 	only means 	that 	should 	the union not be given one
set, 	only it can file a grievance. 	It does 	not mean that only
the union can grieve violations 	of 	the Administrative 	Regulations
& 	Procedures.)
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 4
Next, 	you allege that you appealed5 to Mr. 	George Russell, 	and he
"either knowing 	(sic) 	or negligently allowed this 	inappropriate
procedure to continue." 	After Mr. 	Rhetta's decision on February
22, 	1990, 	you tried on numerous occasions to reach your
representative, 	Mr. 	Burrell.
' In or about March 	1990, 	you asked
Ms. 	Tompkins 	if she was able to reach Mr. 	Burrell, 	in order to
prepare 	for 	an upcoming 	Merit 	System 	investigatory 	meeting with
the fact-finder. 	You requested copies of Mr. 	Burrell's 	notes of
the above-referenced February 5, 	1990 meeting. 	Ms. 	Tompkins
called you back and 	stated 	'There 	are 	no 	notes 	and there 	is 	no
way to reach Mr. 	Burrell.' 	You requested that Ms. 	Tompkins also
attend the meeting with the 	fact-finder. 	She 	advised you that
she would accompany you, 	but that 	she had never attended 	such a
meeting.7 On April 	16, 	1990, 	you called Ms. 	Tompkins and gave
her the April 	18, 	1990 	fact-finder's meeting date. 	Ms. 	Tompkins
advised you that 	she was 	unable to attend, 	but gave no reason.8
5You appealed to Mr. 	Russell on March 2, 	1990, 	and met with
him on March 28, 	1990.
6The Association has 	indicated that effective March 	1, 	1990,
CSEA Field 	Rep. 	Cherri 	Tompkins 	was 	temporarily 	assigned 	to 	this
bargaining unit, 	since Mr. 	Burrell went on a one-year leave of
absence. 	You previously 	suspected 	that 	the 	District 	somehow
caused Mr. 	Burrell's departure, 	but you have not been able to
provide me with any 	evidence to 	support 	this 	theory.
7On April 	14, 	1991, 	you in fact received the District's
notification 	of 	the 	fact-finder's 	hearing/meeting 	scheduled 	for
April 	18, 	1991. 	The procedure was 	to begin at 2:30 p.m. 	You
were 	scheduled to meet with the 	appointed 	fact-finder, 	Mr.
Raymond J. 	Blake, 	at 3:00 p.m. 	in Mr. 	Rhetta's office.
8The Association 	contends 	that 	you 	called 	to 	inform

Ms. 	Tompkins 	suggested that you call the 	local 	chapter President.
You were unable to reach the President as 	she was 	on leave. 	You
learned that the 	Interim President, 	Willy Surbrook, 	was 	also on
leave and would not return to work until 	the 	late 	afternoon on
April 	18, 	1990. 	Upon receiving Ms. 	Tompkins' 	letter on April 	18,
1990, 	you 	called her and 	indicated you had 	just 	received her
letter 	(which you 	contend outlined her reasons 	for not 	attending
the April 	18, 	1990 meeting with the fact-finder). 	You told her
that you were not notified of 	the meeting until April 	14, 	1990.
She told you that 	it did not 	seem right 	and 	there was 	nothing 	she
could do except to wish you good luck at the April 	18, 	1990
meeting. 	You attended the April 	18, 	1990 meeting alone and did
not request a 	continuance or postponement. 	You allege that
Mr. 	Blake, 	the Merit System Rules 	fact-finder, 	unfairly decided
your case. 	He 	"either knowing 	(sic) 	or negligently decided on an
Administrative Procedure violation when he no 	(sic) 	right or
authority to do 	so." 	You further allege that 	since Mr. 	Blake
took time to decide this 	matter, 	he 	increased his 	arbitrator's
stipend, 	which resulted 	in Mr. 	Lohmann being charged an unfair
amount. 9 	(The Merit 	System Rules 	for Classified Employees
provide at Article XI, 	section 5.d.(3) 	that if the appeal 	is
denied, 	the appellant and the Board of 	Education will 	share
equally in the cost of the fact-finder's 	stipend. 	Here, 	your
share was 	$213.86, 	which was 	in fact 	later refunded to you by the
union.)
Warning 	Letter
LA-CO-544
May 	14, 	1991
Page 	5
After Mr. 	Blake's decision, 	you called CSEA for the telephone
number of 	a union attorney. 	You were referred to 	Field
Representative, 	Jim Brown, Mr. 	Burrell's replacement, who
referred you to Patrick Prezioso, 	CSEA Field Director.
Ms. 	Tompkins of the April 	18, 	1990 meeting and to find out who
would pay your portion of 	the 	fact-finder's 	fee 	or 	stipend 	if
your appeal was 	denied. 	The Association acknowledges 	she was
aware you were pursuing 	a 	Merit 	System Complaint. 	Contrary 	to
your assertions, 	the Association denies Ms. 	Tompkins 	received any
request to attend a meeting 	in that regard. 	Ms. 	Tompkins 	sent
you a confirming letter dated April 	17, 	1990. 	The Association
points 	out 	that 	the 	letter concerns 	your 	failure to make a 	timely
request 	for 	financial 	assistance 	from the 	local 	CSEA chapter, 	as
Policy 605 	(Direct Assistance to Chapters) 	was 	not adhered to.
(You attached the April 	17, 	1990 	letter and only 2 of the 	3 	pages
containing 	Policy 	605 	to 	your unfair practice 	charge.)
9Mr. 	Blake 	submitted the 	fact-finder's 	Review and Advisory
Decision in favor of the District on April 23, 	1990.

Mr. 	Prezioso wanted to hear about your case and a May 4, 	1990
meeting was 	set up. 	On May 4, 	1990, 	you met with Mr. 	Prezioso,
Mr. 	Brown and Ms. 	Tompkins about your case, 	and provided them
with the available documentation. ° 	Mr. 	Prezioso indicated he
would try to get the union to reimburse you for the $213.86, 	and
that Mr. 	Brown would look into your case.
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 6
Next, 	you allege that on May 5, 	1990, 	you appealed the fact-
finder's 	decision 	to 	Superintendent Thomas 	Payzant 	and 	asked him
to look into the case.11 On May 	18, 	1990, 	in denying your
appeal, 	you allege that 	"He negligently allowed this violation12
of 	the Union Contract to go uncorrected. 	He 	stated in his
decision 'This was 	not a matter relative to 	a union contract but
dealt 	strictly with Administration of 	the 	Merit 	System Rules 	and,
as 	such, 	was totally in the hands of the fact-finder.'"
On May 31, 	1990, 	you met with Mr. 	Brown to review the case. 	He
stated that 	the 	District violated 	some 	of 	your rights 	and that he
would review the case, 	take it to the District again, 	or possibly
"continue the complaint to the State Board."13 Mr. 	Brown
indicated that 	the 	first 	step was 	to 	obtain reimbursement of 	the
$213.86 	(one-half the fact-finder's 	stipend). 	You were advised
to 	ask your 	local 	chapter to request reimbursement from the
union, 	which you 	did.14 You allege 	that you called Mr. 	Brown on
or about July 	26, 	1990 	for an update on your complaint. 	He
advised you that 	there was 	nothing more he 	could do, 	but was
still attempting to obtain the reimbursement. 	On August 	3, 	1990,
you 	asked Mr. 	Brown to 	indicate 	in writing the 	reason he was 	not
10The union contends 	that the May 	4, 	1990 	meeting concerned
your request 	for reimbursement of the 	fee.
11As requested, 	you provided 	a 	copy of 	your appeal 	to 	the
union before you 	submitted 	it to 	the 	District. 	Your appeal
stated at one point, 	regarding the April 	18, 	1990 meeting with
Mr. 	Blake, 	. . . 	"I 	could not get union 	(CSEA) 	assistance or
representative 	(sic) because of the short notice 	. 	. 	. 	."
12It 	is 	unclear which 	exact violation you 	are 	referring to
here.
13 It 	is 	unclear which 	"board" 	is being referred to here.
14The Association contends 	that you met Mr. 	Brown on May 	31,
1990 	to 	discuss 	possible 	reimbursement 	and 	the 	feasibility 	of
recommending your 	case 	for 	litigation.

pursuing the 	case. 	He advised you he 	could not do that. 	Later
in August 	1990, 	he 	indicated you were 	going to be 	reimbursed 	for
the 	fact-finder's 	fee. 	You met 	that 	afternoon and 	received 	the
union's 	$213.86 	check dated July 	24, 	1990. 	Upon asking Mr. 	Brown
again to 	indicate 	in writing 	the 	reason he would 	not pursue 	the
case 	further, 	he 	stated, 	'You 	had your day 	in court 	and 	it was
binding arbitration,' 	and 'Why did you go 	to the 	fact-finding
meeting 	alone?'15 You were unhappy with Mr. 	Brown's 	attitude,
specifically, 	his 	refusal 	to put 	in writing the 	reason your
appeal 	was 	not being 	continued. 	You 	then requested 	that 	Mr.
Brown ask Mr. 	Prezioso to 	call 	you. 	You allege that he called
you on August 	17, 	1990 	and you reiterated your request 	for a
letter 	indicating 	the 	reason 	CSEA was 	not 	pursuing 	your 	complaint
further. 	Mr. 	Prezioso refused to provide a 	letter, 	but did refer
you to your 	local 	chapter, 	as 	any 	further union action on this
matter needed 	to 	start 	there.
Warning 	Letter
LA-CO-544
May 	14 # 	1991
Page 	7
You 	contend 	that 	although 	you 	used 	best 	efforts 	to 	follow union
procedures, 	you were denied 	union 	representation 	in dealing with
the 	District. 	You were 	especially disturbed by CSEA's 	failure 	to
help you pursue 	a 	further appeal 	in your case 	in 	light 	of 	the
fact the union did 	not 	represent you at 	the April 	18, 	1990 	fact-
finding 	meeting.
The charge 	fails 	to 	state a prima 	facie case. 	First, 	EERA
section 	3541.5(a) 	provides 	that the Board 	shall 	not 	issue a
complaint 	based 	upon 	an 	alleged 	unfair 	practice 	occurring 	more
than 	six months prior to 	the 	filing of 	the 	charge. 	Therefore,
all 	allegations 	of 	unlawful 	conduct 	occurring prior 	to 	February
22, 	1990 	are untimely and will be dismissed.
15 In a letter dated August 21, 1990, Mr. Brown confirmed
your 	telephone conversation with him on 	Saturday, 	August 	19,
1990. 	You were 	advised 	to make 	a 	litigation request 	regarding
the 	fact-finder's 	decision to 	your 	local 	CSEA chapter. 	Further,
you were advised 	that 	if 	your 	request was 	denied, 	you 	could
appeal to the Association. 	Ms. 	Jan Henry, 	your Chapter
President, 	was willing to bring your request to the 	next meeting
of 	the Chapter's 	Executive 	Board 	for a 	second 	consideration. 	The
Association 	noted 	that 	your 	earlier 	litigation 	request was 	denied
after you 	failed to 	attend 	the 	local 	chapter meeting 	to 	explain
your case. 	Further, 	that as of September 20, 	1990, 	the date the
Association 	informally 	responded 	to 	this 	unfair practice 	charge,
you had not presented another 	request 	to 	your 	local 	chapter.

Second, 	you have generally alleged that, 	CSEA, 	the exclusive
representative denied you 	the 	right 	to 	fair 	representation
guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby 	violated 	section
EERA 3543.6(b). 	The duty of fair representation imposed on the
exclusive 	representative 	extends 	to grievance handling. 	Fremont
Teachers Association 	(King) 	(1980) 	PERB Decision No. 	125; 	United
Teachers of Los Angeles 	(Collins) 	(1983) 	PERB Decision No. 	258.
In order to 	state a prima 	facie violation of 	this 	section of 	the
EERA, 	a Charging Party must 	show that the Association's 	conduct
was 	arbitrary, 	discriminatory, 	or in bad faith. 	In United
Teachers of Los Angeles 	(Collins) 	Id., 	the Public Employment
Relations Board 	(PERB) 	stated:
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 8
f
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.
A union may 	exercise 	its 	discretion to
determine how far to pursue a grievance 	on
the employee's behalf as 	long as 	it does 	not
arbitrarily 	ignore a meritorious 	grievance 	or
process 	a grievance 	in a perfunctory 	fashion.
A union 	is 	also 	not 	required to process 	an
employee's 	grievance 	if the chances 	for
success are minimal.
In order to 	state 	a prima 	facie case of 	arbitrary conduct
violating the duty of 	fair representation, 	a Charging Party:
. 	. 	. 	must, at a minimum, 	include an
assertion of 	sufficient 	facts 	from which 	it
becomes 	apparent how or 	in what 	manner 	the
exclusive 	representative's 	action 	or 	inaction
was without a 	rational basis 	or devoid of
honest 	judgment. 	Reed District 	Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
Assuming CSEA owed you a duty 	in this 	case, 	based on the 	above
facts 	and allegations, 	the union acted properly 	in this 	matter.
Insufficient 	facts 	are alleged to 	indicate that 	the 	action or
inaction by the union was 	arbitrary, 	discriminatory, 	or 	in bad

faith. 	The 	fact-finder's 	stipend was 	ultimately refunded to you.
No 	grievance was 	filed 	or requested 	to be 	filed under the
Agreement 	regarding your 	failure 	to be 	selected 	for promotion.
Based upon all 	the above, 	your Merit 	System Complaint regarding
the December 	1989 	incident was 	an appropriate vehicle. 	The
inaction by CSEA to 	file 	a 	formal 	grievance 	involving this 	entire
matter, 	including an alleged violation of 	the District's
Administrative Regulations & Procedures, 	appears 	appropriate.
Next, 	if there was 	insufficient time to obtain representation for
the April 	18, 	1990 	fact-finding meeting, 	you could have, 	but did
not ask for a postponement. 	Next, 	CSEA did not refuse your
requests 	for 	litigation after 	the 	superintendent 	denied 	your
appeal. 	The union requested that you 	follow procedures 	and make
a 	formal request to bring 	litigation to your local 	chapter, 	which
you apparently 	failed to do.
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 9
Third, 	it is 	likely that CSEA in fact owes 	you no duty of 	fair
representation 	in this 	matter 	including pursuing your Merit
System Rules 	Complaint 	since 	CSEA does 	not 	control 	the 	exclusive
means 	to obtain a remedy 	in such matters. 	See 	San Francisco
Classroom Teachers Association r 	CTA/NEA 	(Chestangue) 	(1985) 	PERB
Decision No. 	544 	and California Faculty Association 	(1988) 	PERB
Decision No 	698-H. 	You were permitted to, 	and did file your own
complaint under the Merit 	System Rules. 	The decision of 	the
Superintendent 	in denying your appeal was 	the 	final 	level 	of
appeal. 	This procedure 	is 	independent of and wholly outside 	the
grievance procedure 	in the Agreement 	between CSEA and the
District. 	Also, 	the union has 	indicated that 	"CSEA does 	offer
services, 	such as 	litigation, 	in addition to those services 	for
which 	it has 	a duty of 	fair representation, 	but unless 	the
problem 	is 	personal 	and outside of 	the 	employment 	relationship,
all 	such 	services 	must be 	initially requested through 	the 	local
chapter." 	You 	failed to 	follow this 	procedure.
For these reasons, 	the charge 	as presently written does 	not 	state
a prima 	facie 	case. 	If 	there 	are 	factual 	inaccuracies 	in this
letter or any 	additional 	facts 	that 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 	must 	be 	signed 	under penalty 	of 	perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served 	on the 	respondent16	16 	and
16William C. 	Heath, 	Dep. 	Chief Counsel, 	CSEA, 	Post Office
Box 640, 	San Jose, 	California 	95106.

the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not receive an amended 	charge 	or withdrawal 	from you before
May 21, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Warning 	Letter
LA-CO-544
May 14, 	1991
Page 	10
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney