Corona-Norco Teachers Association (Paloma) (PERB 0909E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ERMA M. 	PALOMA,
Charging 	Party,
V.
CORONA-NORCO TEACHERS ASSOCIATION,
Respondent.
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) 	Case No. 	LA-CO-562
PERB Decision No. 	909
November 	7, 	1991
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Appearances: 	Erma M. 	Paloma, 	on her own behalf; 	California
Teachers Association by Charles R. 	Gustafson, 	Attorney, 	for
Corona-Norco 	Teachers Association.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Erma M. 	Paloma
(Paloma) 	of a PERB Board agent's dismissal 	(attached hereto) 	of
her 	charge 	alleging 	that 	the 	Corona-Norco 	Teachers 	Association
(Association) 	violated 	section 3543.6(b) 	of the Educational
Employment Relations Act 	(EERA)1 by denying Paloma's 	request 	to
pursue 	a 	grievance 	against her 	employer to arbitration.
1EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.6 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for an employee
organization to:
(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.
)
______________ )

In her appeal, 	Paloma asserts 	that as 	a result of telephone
conversations with the PERB Board agent, 	it 	is 	her belief 	that
the Board agent 	is 	biased 	in favor of the Association. 	With
regard 	to 	Paloma's 	contention of 	bias 	on the part 	of 	the 	Board
agent, 	the Board finds 	no basis 	for such a claim. 	In addition,
Paloma 	asserts 	that 	the Association has 	never notified 	her 	in
writing of 	its 	denial of her request 	to pursue her grievance 	to
arbitration.2 She asserts 	that this 	is 	evidence that the
Association's 	conduct 	in denying her 	request was 	arbitrary,
discriminatory 	and 	in bad 	faith.
In his warning and dismissal 	letters, 	the Board agent
discusses 	Paloma's 	allegation that 	the Association violated 	the
duty of 	fair representation because: 	(1) 	the Association did not
inform Paloma of 	its decision in writing; 	and 	(2) 	the
Association's grievance chairman, 	Max Wallace, 	did not notify
Paloma 	that 	her 	request 	had been denied until 	after 	she 	had made
numerous 	calls 	and 	left messages with the Association. 	In his
warning 	and dismissal 	letters, 	the 	PERB Board 	agent 	correctly
finds 	that 	neither this 	conduct 	nor any other conduct 	alleged 	in
the 	charge 	constitute arbitrary, 	discriminatory or bad 	faith
conduct 	in violation of 	the duty of 	fair representation.
The 	Board has 	reviewed 	the 	Board 	agent's 	warning 	and
dismissal 	letters, 	and finding them to be 	free of prejudicial
error, 	adopt them as 	the decision of 	the Board itself.
2The Association's 	response 	asserts 	that 	it has 	already 	sent
a 	letter 	to 	Paloma 	explaining 	its 	decision.
22

The unfair practice charge in Case No. 	LA-CO-562 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
w
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' 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
September 18, 	1991
Erma M. 	Paloma
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CO-562, 	Erma M. 	Paloma v.
Corona-Norco 	Teacher's 	Association
Dear Ms. 	Paloma:
I 	indicated to you 	in my attached 	letter dated September 	4, 	1991,
that 	the 	above-referenced 	charge did not 	state 	a prima 	facie
case. 	You were 	advised that 	if 	there were any 	factual
inaccuracies 	or 	additional 	facts 	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 September 	11, 	1991, 	the charge would be dismissed.
On September 	16, 	1991, 	I 	received from you an amended charge.
The 	amended charge argues 	in part 	(1) 	that you were 	"transferred"
rather than 	"reassigned" 	from kindergarten to 	second 	grade 	and
(2) 	that Level 	Two grievances 	"automatically go to 	advisory
arbitration." 	Both 	of 	these 	arguments 	are 	contradicted by 	the
contractual 	language 	and other undisputed 	facts.
Although 	Section 	14.1 	of 	the 	collective bargaining 	agreement
defines 	"transfer" 	to 	include 	"any District action which results
in the change of a unit member's 	. 	. 	. 	grade level," 	it
immediately goes 	on to 	state as 	follows: 	"For the purposes 	of
this 	section, 	the 	'grade level' 	shall be K-6, 	7-8, 	or 9-12." 	In
changing 	from kindergarten to 	second grade, 	you thus 	remained 	in
the 	same 	"grade 	level" 	(K-6) 	and therefore were not 	"transferred"
within the meaning of the agreement.
Section 20.2(c) 	of the agreement provides 	in relevant part as
follows:
Level Three: 	In the 	event the grievant 	is
not 	satisfied with 	the 	disposition of 	the
grievance at Level II, 	the grievant may,
within ten 	(10) 	days 	following, 	submit a
written request 	to 	the Association that 	the
Association submit 	the 	grievance 	to 	advisory

Dismissal
LA-CO-562
September 18, 	1991
Page 	2
arbitration. 	The Association, 	by written
notice 	to 	the 	Superintendent within ten 	(10)
days 	after receipt of the grievant's 	request,
may 	submit 	the 	grievance 	to 	the 	advisory
arbitration. 	[Emphasis 	added.]
The use 	of 	the word 	"may" 	in this 	Section 	(rather than the word
"shall," 	for example) 	indicates that the 	submission of a
grievance 	to 	advisory arbitration 	is 	not 	automatic 	or mandatory
but 	rather discretionary. 	The 	letters 	attached 	to your 	original
charge 	show that 	in the past the Association has 	in 	fact
exercised 	its 	discretion not 	to pursue 	other grievances 	to
advisory 	arbitration.
In your amended charge, 	you also allege that Association
Grievance 	Chairman Max 	Wallace 	did not 	contact 	you about 	the
status 	of 	your grievance 	until 	after you yourself 	had made
numerous 	calls 	and left messages. 	It 	is 	still 	not apparent 	from
the charge, 	however, 	how this 	or any other part of the
Association's 	handling 	of 	your 	grievance 	amounted 	to 	arbitrary,
discriminatory 	or bad 	faith 	conduct 	in violation of 	the 	duty 	of
fair representation. 	I 	am therefore dismissing the charge, based
on the 	facts 	and 	reasons 	contained 	in this 	letter and in my
September 4 	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 Regs., 	tit. 	8,
sec. 	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 Code of Regs., 	tit. 	8,
sec. 	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
Regs., 	tit. 	8, 	sec. 	32635(b)).

Dismissal
LA-CO-562
September 18, 	1991
Page 3
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 Regs., 	tit. 	8,
sec. 	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
Regs., 	tit. 	8, 	sec. 	32132).
Final 	Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Thomas J. Alle.len	n
Regional 	Attorney
Attachment
cc: 	Deborah S. 	Wagner

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
September 4, 	1991
Erma M. 	Faloma
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-562,
Erma M. 	Paloma v. 	Corona-Norco Teacher's Association
Dear Ms. 	Paloma:
In the 	above-referenced 	charge, 	you allege 	that 	the Corona-Norco
Teacher's Association 	(Association) 	violated 	its 	duty of 	fair
representation, 	in alleged violation of Government Code 	section
3543.6(b) 	of the Educational Employment Relations Act 	(EERA).
My 	investigation of 	this 	charge reveals 	the 	following 	facts.
You 	are 	a 	certificated 	employee of 	the 	Corona-Norco 	Unified
School 	District 	(District), 	in a unit 	for which the Association
is 	the 	exclusive 	representative. 	For 	seventeen years 	you taught
kindergarten, 	and 	in 	1990-91 	you were on Track D. 	On April 	4,
1991, 	you were 	called to a meeting 	in your Principal's 	office,
where 	the presence 	of both the 	Principal 	and 	the Vice 	Principal
led you to believe 	that the meeting was 	"corrective." 	The
Principal 	informed you, 	without discussion, 	that you were being
reassigned 	to 	teach 	second 	grade 	on 	Track A 	for 	1991-92
On April 8, 	1991, 	you filed grievances 	alleging violations 	of
Sections 	14.1 	and 	14.5 	of 	the 	collective bargaining 	agreement
between the District and the Association. 	Section 	14.1 	provides
in relevant part, 	"At the elementary 	level a 	change of more than
two grades 	. 	. 	. 	will be discussed with the affected teacher
prior to any final decision." 	Section 	14.5 provides 	in 	full, 	"No
transfers 	or 	class 	assignments 	shall 	be made 	for disciplinary
reasons." 	In your grievance, 	you 	stated that you 	felt your
reassignment was 	"for disciplinary reasons" 	because 	(1) 	your old
assignment was 	going to 	a 	teacher 	about whom parents 	had voiced
concerns 	and 	(2) 	you had 	spoken out 	against the Principal 	on PTA
issues.
The District denied your grievances 	at 	Level 	One 	and Level 	Two.
In his 	Level One response, 	your Principal 	stated in part, 	"Your
assignment 	of 	second grade has 	been made 	solely upon your

Warning 	Letter
LA-CO-562
September 4, 	1991
Page 2
strenghts 	[sic] 	and we believe you will positively 	strenghten
[sic] 	our second grade team of teachers." 	On May 	6, 	1991, 	you
submitted a 	letter to the Association, 	requesting that 	it
"respond 	to 	me 	in writing" 	and 	"submit 	my 	grievance 	to 	advisory
arbitration."
Although you were not informed of the meeting, 	the Association's
Grievance Committee met on May 	13, 	1991, 	and decided not to
pursue your grievances 	to arbitration. 	In 	its 	response 	to your
unfair practice 	charge, 	the Association asserts 	that 	it 	found no
violation of 	Section 	14.1 	because a 	"move 	from kindergarten to
second grade 	is 	a move of two grades, 	not more than two grades
[emphasis original]." 	It also asserts that 	it 	found no provable
violation of 	Section 	14.5 	because there was 	no pending
disciplinary action against you, 	there was 	nothing 	to 	tie 	the
reassignment to your outspokenness 	on PTA 	issues, 	and there was
insufficient 	evidence 	in general 	to 	show that 	the 	reassignment
was 	for disciplinary reasons.
The Association did not 	inform you of 	its 	decision 	in writing.
Attached 	to 	your 	charge 	are 	copies 	of 	letters 	to 	two 	other unit
members, 	informing them 	(without explanation) 	that their
grievances 	would 	not be taken to arbitration. 	You 	identify 	these
two unit members 	as Caucasian; 	you identify yourself as Asian.
In its 	response to your charge, 	the Association asserts 	that 	it
"decided 	that 	instead of 	issuing the 	usual 	form 	letter 	telling
the employee her grievance would not be 	taken to 	arbitration, 	it
would direct the Grievance Chairman, 	Max Wallace, 	to meet
personally with Ms. 	Paloma 	and 	explain why 	the 	matter would 	not
be 	taken to 	arbitration."
Based on the 	facts 	stated above, 	the charge does 	not 	state a
prima facie violation of the EERA, 	for the reasons 	that 	follow.
As Charging Party, 	you allege that the Association, 	as 	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 	exclusive
representative'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-562
September 4, 	1991
Page 3
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.
It 	is 	not apparent 	from the 	charge how the Association's 	conduct
was without a rational basis, 	devoid of honest 	judgment,
discriminatory or 	in bad faith. 	It 	is 	true that the Association
did not 	respond to you 	in writing, 	as 	it did to other 	employees
(whose grievances also were not taken to arbitration), 	but there
is 	no prima 	facie 	showing that this 	conduct was 	based on an
illegitimate 	or 	impermissible 	reason.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there are any 	factual 	inaccuracies 	in
this 	letter 	or 	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,

Warning 	Letter
LA-CO-562
September 4, 	1991
Page 	4
and must 	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 you before
September 	11, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney