California School Employees Association (LaFountain) (PERB 0925E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TERRI 	PATRICIA 	LaFOUNTAIN,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-565
PERB Decision No. 	925
March 10, 	1992
Appearances: 	Terri Patricia LaFountain, 	on her own behalf;
Madalyn J. 	Frazzini, 	Attorney, 	for California School Employees
Association.
Before Camilli, 	Carlyle and Caffrey, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Terri 	Patricia
LaFountain 	(LaFountain) 	of 	a Board agent's dismissal 	(attached
hereto) 	of her charge that the California School 	Employees
Association 	(CSEA) 	failed to adequately represent her 	in
violation of 	section 	3543.6(b) 	of the Educational 	Employment
Relations 	Act 	(EERA). 1
JEERA	EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6(b) 	provides, 	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
)
)
)
)
)
)
)
)
)
____________ ;
1

The 	Board has 	reviewed the 	Board 	agent's 	warning 	and
dismissal 	letters, 	and, 	finding them to be 	free of prejudicial
error, 	adopts 	them as 	the decision of 	the Board 	itself.
In her appeal, 	LaFountain states, 	for the first time, 	that
she 	explained 	to 	the 	Board 	agent 	investigating her 	charge 	that
she had 	contacted PERB within 	six months 	of 	the 	incident 	at
issue, 	and was 	told by a 	secretary that 	she 	could 	file 	a 	claim
when 	she had a written answer 	from CSEA, 	and not before.2
PERB Regulation section 32635(b)3 states:
Unless 	good cause is 	shown, 	a 	charging party
may not present 	on appeal 	new charge
allegations 	or 	new 	supporting 	evidence.
There 	is 	no mention of 	such contact with PERB 	in
LaFountain's original charge, 	nor is 	it mentioned in the Board
agent's warning letter. 	On page 	6 	of the warning 	letter,
LaFountain 	is 	told that 	if 	there 	are 	any 	factual 	inaccuracies 	in
the warning 	letter or any 	additional 	facts 	which would 	correct
the deficiencies 	explained therein, 	she 	should amend 	the 	charge
accordingly. 	LaFountain's 	amended 	charge 	contains 	no mention of
any 	contact with 	PERB within the 	six-month 	time period 	at 	issue.
As 	neither the 	original 	charge 	nor the 	amended 	charge 	in
this 	matter 	allege 	contact with 	PERB within 	the 	relevant
guaranteed by this 	chapter.
2The warnin	warning	g an	andddismissa	dismissa	l letter	l 	letter	s adequat	s 	adequatel	e to addres	y 	addres	s thes 	the
remainin	remaining	g 	issueissues raised in LaFountain's appeal.	s 	raised 	in LaFountain's 	appeal.
33PER	PERBB Regulation	Regulationssarar	e codifie	e 	codifie	d adt a	Californi	t 	Californi	a 	a Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

six-month time period, 	these 	facts 	alleged on appeal 	constitute
new 	supporting 	evidence 	or 	factual 	allegations within 	the 	meaning
of PERB Regulation 	section 32635, 	supra- - . 	No good cause having
been 	shown, 	the 	Board finds 	that 	such new factual 	allegation or
supporting 	evidence 	may 	not be 	considered 	herein.
The 	original 	and amended unfair practice 	charge 	in Case
No. 	LA-CO-565 	is 	hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Carlyle 	and Caffrey 	joined 	in this 	Decision.
33

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
December 30, 	1991
Terri 	Patricia 	LaFountain
22321 	Espuella 	Drive
Saugus, CA 913 50
Re: 	Terri Patricia LaFountain v. 	California 	School 	Employees
Association. 	Unfair Practice Charge No. 	LA-CO-565, 	First
Amendment, 	DISMISSAL OF CHARGE AND REFUSAL 	TO 	ISSUE 	COMPLAINT
Dear Ms. 	LaFountain:
The above-referenced charge was 	filed on August 	1, 	1991. 	It
alleges 	that 	the 	California 	School 	Employees 	Association 	(CSEA)
did 	not 	uphold 	your 	rights 	and 	thereby 	committed 	an 	unfair
practice. 	I 	am treating this 	matter as 	a case alleging a
violation of 	the duty of 	fair representation in violation of 	the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3543.6(b).
I 	indicated to you 	in my attached letter dated December 	12, 	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 December 	19, 	1991, 	the charge would be dismissed. 	Prior
to the deadline, 	I 	granted you an extension until December 24,
1991, 	for my receipt of a First Amended Charge.
On December 24, 	1991, 	I received your letter 	(U.S. 	Express Mail)
entitled 	"First Amended Charge" 	with five attachments, 	copies 	of
various 	pages 	from 	the 	1989/90 	collective 	bargaining 	agreement
(Agreement) 	between the District and CSEA, 	and a 	Proof of 	Service
by Mail. 	You also 	enclosed a 	cassette 	tape 	labelled 	"July 	16,
1990 	L.A. 	County Hearing."1 Your letter 	(with 	its 	yellow
highlighting) 	appears 	to add 	some additional 	information or 	facts
(with argument) 	to your initial 	Unfair Practice Charge. 	Although
you have not used a correct PERB Unfair Practice Charge 	Form, 	I
am treating this 	as 	a First Amendment 	to your original 	charge.
1See 	Footnotes 	2 	and 	3 	on pages 	2 	and 	3 	of my 	letter dated
December 12, 	1991.
==--==--- 	---

Dismissal
LA-CO-565-E
December 30, 	1991
Page 2
Your First Amendment generally 	contends 	that 	the union violated
the duty of 	fair representation 	(DFR). 	During 	in or about March
1990, 	you were advised by union representatives, 	in part, 	that
you had no rights 	as you were a probationary 	employee, 	that one
employee 	could not grieve 	against 	another 	employee, 	and 	that
there was 	no help available 	for you through the union. 	See 	Page
2 	of Exhibit 	2 dated September 	12, 	1990 	attached to your First
Amendment. 	In No. 	7, 	page 	1 of the First Amendment, 	you contend,
in part, 	that 	the union 	ignored your grievance 	and 	failed to
speak with you 	in order to decide 	if 	the 	changes 	for 	success were
minimal 	or not. 	You 	further indicate that 	"The 	grievance 	form
was denied to 	(you)." 	When you filed a grievance 	(on May 	28,
1990), 	"(you were) 	denied a hearing from someone who was 	not
involved 	in any union dealings." 	(emphasis 	in original.) 	As 	you
followed 	the procedure on the 	form, 	you believe 	this 	fact 	alone
shows 	CSEA's 	inaction without a rational 	basis. 	You point to
possible violations 	of 	several Articles 	(Article V - 	Grievance,
Article VI 	- Evaluation, 	Article XXIII 	- 	Support of Agreement) 	of
the Agreement between the District and CSEA, 	and, 	in general,
blame CSEA 	for not protecting your rights. 	You believe you
should have received union help. 	You argue, 	in part, 	on page 2
of 	the First Amendment that 	you have 	not 	received 	any written
notification 	(or answer) 	from CSEA.2
Next, 	you appear to question when the 	six-months 	statute of
limitations 	begins 	to run. 	You contend that 	"The occurrence 	is
still 	in process 	until 	it 	is 	investigated or heard." 	(emphasis
in original.) 	You believe that 	"without 	any written 	form of 	an
answer 	from CSEA that 	is 	appropriate by the 	rulings 	in the
Agreement, 	the time frame has not began 	(sic)." 	Furthermore, 	you
believe 	that 	since you 	followed 	the Agreement 	and have 	not
received 	"any appropriate 	answer," 	the 	six 	month 	statute has 	not
begun to 	run. 	You 	contend that you 	contacted appropriate people
by September 	1990.
Your original 	Charge 	and the 	First Amendment do 	not 	state 	a prima
facie 	case 	for several reasons. 	First, 	as 	I 	indicated to you on
2It 	is 	unclear whether you 	are 	referring to 	notice 	of
corrective 	action on the union's part, 	or notice that they would
or would 	not 	assist you. 	You do 	allege 	that 	you were 	employed by
the District, 	spoke to a CSEA Field Rep., 	and were given
incorrect 	information. 	Thus, 	you contend that 	it was 	the union's
responsibility 	to 	correct 	the 	situation.
3You indicate, 	in part, 	that the State of California advised
you 	to 	file with PERB 	in July 	1991.

pages 	4-5 	of my letter dated December 	12, 	1991, 	as 	your charge
was 	filed on August 	1, 	1991, 	we may only consider alleged
unlawful 	conduct 	of 	the union occurring after on or 	about
February 	1, 	1991. 	You have 	still not alleged any unlawful
conduct by CSEA occurring on or after February 	1, 	1991. 	Thus 	the
charge 	and 	First Amendment 	are 	untimely 	and will 	be 	dismissed.
Contrary 	to your assertions 	regarding the 	statute 	of 	limitations,
as 	I 	indicated on December 	12, 	1991, 	in a case 	involving the duty
of 	fair representation, 	a 	claim accrues 	on the date when the
employee, 	in the exercise of reasonable diligence, 	knew, 	or
should have 	known that 	further 	assistance 	from 	the 	union was
unlikely. 	See 	International 	Union of Operating 	Engineers. 	Local
501 	(Reich) 	(1986) 	PERB Decision No. 	591-H. 	You knew in or about
March 	1990 	that CSEA would not be 	assisting you 	further.
Dismissal
LA-CO-565-E
December 30, 	1991
Page 3
4 Thus,
you had until 	the 	end of 	September 	1990 	to 	file 	a 	charge based
upon the 	union's 	conduct. 	You proceeded to 	file your own
grievance on May 28, 	1990. 	Also, 	during 	1990, 	you filed other
claims 	or appeals with other agencies.in
Second, 	even assuming your allegations 	are 	timely, 	you have 	still
not 	alleged 	sufficient 	facts 	indicating that 	the 	union's 	conduct
was 	arbitrary, 	discriminatory or in bad 	faith. 	It appears 	that
at most, 	the union's 	actions 	or inaction may constitute
negligence or poor 	judgment, 	which will 	not constitute a breach
of the duty of 	fair representation. 	See pages 	5 	and 	6 	of my
letter dated December 	12, 	1991.
Third, 	as I 	indicated on December 12, 	1991, 	at page 6 of my
letter, 	regarding your subsequent appeals 	to the County of Los
Angeles, 	and thereafter, 	it is 	very unlikely that CSEA's duty of
4 The union indicates 	that you wanted CSEA, 	in part, 	to bring
charges 	against another classified employee, 	Shirley Owen. 	You
were 	advised 	by CSEA that 	it would 	not 	assist 	in 	filing 	a
grievance 	against 	another 	employee.
5See 	Compton Community College 	District 	(1991) 	PERB 	Decision
No. 	915 	at pages 	4-6 	for the 	law on 	"continuing violations."
"Generally, 	a violation is 	a 	continuing one 	if 	the violation has
been revived 	by 	subsequent 	unlawful 	conduct within 	the 	six-month
statute of 	limitations." 	(citations 	omitted.) 	In this 	case,
there 	are 	no 	facts 	of unlawful 	conduct within the 	six 	month
period, 	prior to the 	filing of your charge. 	Also 	see Oakland
Education Association. 	CTA/NEA 	(Mingo) 	(1984) 	PERB Decision No.
447 where 	subsequent requests 	that the union file grievances, 	and
the union's 	refusal to file a grievance, 	did not 	constitute a
continuing 	violation.

fair representation applies. 	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 	(1988) 	PERB
Decision No. 	698-H.
Dismissal
LA-CO-565-E
December 30, 	1991
Page 4
I 	am 	therefore dismissing 	the Charge 	and 	First Amendment without
leave 	to 	amend based 	on the 	facts 	and 	reasons 	contained 	in this
letter and my December 	12, 	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 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)).
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).
Dismissal
LA-CO-565-E
December 30, 	1991
Page 5
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 .
Marc S. 	Hurwitz
Regional 	Attorney
Attachment
cc: 	Maureen C. 	Whelan, 	Esq.
CSEA

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
December 12, 	1991
Terri 	Patricia 	LaFountain
22321 	Espuella 	Drive
Saugus, 	CA 91350
Re: 	Terri Patricia LaFountain v. 	California School 	Employees
Association. 	Unfair Practice Charge No. 	LA-CO-565
WARNING 	LETTER
Dear Ms. 	LaFountain:
The above-referenced charge was 	filed on August 	1, 	1991. 	It
alleges 	that 	the California 	School 	Employees 	Association 	(CSEA)
did 	not 	uphold 	your 	rights 	and 	thereby 	committed 	an unfair
practice. 	I 	am treating this matter as 	a 	case alleging a
violation of 	the duty of 	fair representation in violation of 	the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3543.6(b).
My 	investigation and 	the 	charge 	revealed the 	following 	facts.
You were 	employed by the William S. 	Hart Union High School
District 	(District)1 from October 	1988 through March 30, 	1990.
You were an interpreter, 	as well as 	a part-time 	job developer on
the Job Training Partnership Act 	(JTPA) 	Program. 	You later
became a 	full-time 	job developer. 	Your 	job was 	to 	complete
documentation which 	allowed participants 	in 	the 	JTPA 	Program 	to
be paid 	for 	services. 	You were asked to 	forge documents 	in order
to 	insure 	that payments were made. 	You 	complained to management
but nothing was done. 	During the week of March 	19, 	1990, 	you
spoke with Margie Lombardi, 	the District's 	Personnel 	Director
regarding 	filing a 	grievance. 	She 	told you to 	speak to Marlene
Bost, 	past President of CSEA and Marilou Brolin, 	past 	field
representative of CSEA. 	Ms. 	Lombardi 	advised you that you had
"no 	rights 	under her 	supervision of 	the Personnel 	Commission."
These 	two 	union people 	indicated that you had no 	grievance 	rights
under the Agreement 	since you were 	a probationary 	employee.
After 	stating 	that you paid union dues 	each month, 	they directed
you 	to 	speak with Margaret Shelley, 	a CSEA Field 	Representative.
She 	confirmed 	the prior 	information 	and 	advised 	you 	to 	hold 	onto
your 	job until 	your probation period was 	completed. 	At 	that
point, 	she would help you.
1The District 	and the union are parties 	to 	a 	collective
bargaining agreement 	(Agreement) 	effective July 	1, 	1990 	through
June 30, 	1991.
®

Warning 	Letter
LA-CO-565
December 12, 	1991
Page 2
In or about March 	1990, 	you reported possible violations 	of 	the
JTPA contract 	(regarding JTPA procedures 	and personnel) 	to 	Dan
Hanigan, 	Asst. 	Superintendent, 	indicating a number of areas
needing investigation. 	On March 30, 	1990, 	you resigned your
position as 	a 	job developer. 	You indicated, 	in part, 	that due to
continued 	stress 	and harassment of 	co-workers, 	you were 	left 	in
the position of 	leaving. 	You did not wish to participate 	in
unlawful practices 	contrary to your moral 	standards. 	You 	allege
in 	the 	unfair practice 	charge 	that 	you 	resigned 	"after being 	set
up 	on a 	fraud 	situation which 	later proved 	to be 	not 	of 	(your)
doing but 	of 	a 	co-worker who 	then threatened 	(you) 	to 	either 	quit
or be 	fired." 	You 	earlier 	spoke 	to 	"administrative personnel
about 	(an) 	alcoholic 	co-worker and 	fraudulent behavior 	in 	(your)
office."
After resigning, 	you provided evidence of 	fraud to Los Angeles
County, 	the County's 	Department of Community and 	Senior Citizens
Services 	(CSCS). 	On or about May 14, 	1990, 	you were advised by
the 	County of 	the procedures 	for 	filing a 	complaint 	and 	the
appeal process. 	Based upon this advice, 	on May 28, 	1990, 	you
filed 	a 	grievance with the 	District 	alleging violations 	of 	the
Agreement, 	at Article VI, 	section 6.2. 	Section 6.2 provides 	that
"Probationary unit members 	shall 	be 	evaluated at 	least 	twice
during 	the probationary period. 	These 	evaluations 	shall 	occur at
approximately 	the 	seventh 	(7th and 	twenty-fourth 	(24th) 	workweeks
subsequent 	to probationary 	employment." 	You also 	alleged 	a
violation of Article V, 	section 	5.2.1 which provides, 	"Within ten
(10) 	days 	after the occurrence of the 	act or omission giving rise
to the grievance or within ten 	(10) 	days 	after the grievant
should 	have 	known 	or have 	been reasonably 	expected 	to have 	known
of the act or omission, 	the grievant 	should attempt to resolve
the 	grievance 	by 	an 	informal 	conference with the 	immediate
supervisor." 	On June 	1, 	1990, 	the District responded by
indicating that 	since you previously resigned, 	you were 	no 	longer
a 	member 	of 	the 	bargaining 	unit 	and did 	not 	have 	standing 	to 	file
a 	grievance pursuant 	to 	the Agreement between the 	District 	and
the union.
You 	allege that 	Los Angeles 	County 	(no date provided 	in the
charge) 	called a hearing 	for the purpose 	of 	hearing your alleged
facts.2	2 	You 	indicate that at 	this 	meeting 	(no date provided 	in
2At this point you refer to an enclosed tape. 	This will
confirm that 	no 	tape was 	received here with your unfair practice
charge. 	Furthermore, 	generally we 	review the 	facts 	alleged to

the charge), 	you learned that you had never been given any
information 	legall
' y due 	you 	from Los 	Angeles 	County 	concerning
grievance rights.
determine 	if 	a prima 	facie case has been alleged. 	We do not need
or request 	charging parties 	to provide this 	type of physical
evidence at this 	stage.
Warning 	Letter
LA-CO-565
December 12, 	1991
Page 3
You 	further allege that Jean Sisson, 	the CSEA local 	President,
then telephoned you 	to offer a hearing, 	but then cancelled the
meeting. 	On December 10, 	1991 you advised me, 	in part, 	this
occurred around the 	summer of 	1990. 	Furthermore, 	you were
advised 	that 	the 	union would 	stand behind you 	if 	criminal 	charges
were brought against one of your prior co-workers, 	Shirley Owen.
You 	allege 	that 	you 	later 	learned 	the 	Personnel 	Commissioner 	for
the 	District 	is 	the 	roommate 	of 	the 	co-worker you were 	attempting
to grieve against. 	Furthermore, Ms. 	Shelley, Field
Representative, 	told you 	(no date is provided in the charge) 	that
Steven Balentine, 	CSEA Field Director, 	instructed Ms. 	Shelley not
to 	assist you. 	You allege that this 	matter has 	gone to hearing
in 	Sacramento and the 	information has 	gone 	to the Labor
Department 	in Washington D.C. 	In 	1991, 	you were advised that
Sacramento would assist you 	"in hearing and audit 	findings 	and
4
ruling on attached wrongful 	discharge 	clause." 	Finally, 	you
3I note that on July 	16, 	1990, 	the CSCS heard your appeal of
a 	negative decision by the 	school 	district 	concerning 	your 	claims
involving 	issues 	of 	your alleged dismissal 	and program
mismanagement. 	By letter dated August 23, 	1990, 	CSCS advised you
of 	the 	hearing officer's 	decision and recommendations 	and
affirmed them. 	It was found, 	in part, 	that the termination
occurred 	as 	a 	result of your action of 	resignation. 	A hearing on
your 	"dismissal" 	was 	correctly denied by the 	school 	district.
Also, 	a referral was 	to be made for a more 	formal 	investigation
and 	report 	involving program mismanagement 	issues 	involving 	the
JTPA program. 	Thereafter, 	you appealed to 	the Chief
Administrative Office 	(CAO) 	and Board of 	Supervisors 	of 	the
County of Los Angeles. 	Thereafter, 	you appealed to the State of
California, 	Equal 	Employment Opportunity Office, 	Employment
Development Department 	(EDD).
4I 	am assuming you are 	referring 	to 	documents 	attached 	to
your unfair practice 	charge which you believe 	contain or describe
a wrongful 	discharge 	claim by you against 	the 	District. 	This
includes 	a 	letter dated May 	9, 	1991 	from EDD to you regarding
your allegations 	of program abuse 	in the 	Los Angeles 	County

allege that your rights 	through this 	union were 	not upheld, 	and
were denied 	you because 	of whom you were 	grieving 	against 	"and
the 	reasons 	around 	the 	issues 	involved not being discussed."
service delivery area. 	It indicates 	that on April 	4, 	1991 	you
indicated your 	concerns 	with 	an audit performed 	in 	this 	matter.
You 	appealed your 	"dismissal" 	through 	formal 	grievance
procedures. 	Your case was 	reviewed by the 	State 	Review Panel 	on
November 26, 	1990. 	Said Panel 	requested 	further review by the
Secretary of 	the 	Department 	of 	Labor. 	The 	case was 	returned 	for
final disposition by EDD. 	You were 	advised that 	EDD was
reviewing the prior audit to decide what action, 	if any, 	was
warranted. 	You 	sent me a 	letter dated August 	27, 	1991 	from EDD
to you which indicated that on May 23, 	1991, 	the Secretary of
Labor, 	U.S. 	Department of Labor, 	returned an appeal of your case
to 	EDD 	for 	further review and 	final 	disposition. 	Review of 	your
case, 	at that time, 	was still ongoing.
Warning 	Letter
LA-CO-565
December 12, 	1991
Page 4
The allegations 	in your 	charge do 	not 	state a prima 	facie 	case
for several reasons. 	First, 	as 	I 	indicated to you on
December 	10, 	1991, 	EERA does not allow a complaint to 	issue
regarding 	a 	charge 	based 	upon an alleged unfair practice
occurring more 	than 	six months 	prior to 	the 	filing of 	the 	charge.
It 	is 	the charging party's burden, 	as part of the prima 	facie
case, 	to prove the charge was timely filed. 	Furthermore, 	there
is 	no 	longer any 	equitable 	tolling of 	the 	six month 	limitations
period. 	The Regents 	of the University of California 	(1990) 	PERB
Decision No. 	826-H. 	This 	charge was 	filed on August 	1, 	1991
(cert. 	mail). 	Therefore, 	we may only consider alleged unlawful
conduct 	of 	the union occurring after on or about 	February 	1,
1991. 	Since you have alleged no allegations 	of unlawful 	conduct
by CSEA occurring on or after February 	1, 	1991, 	the charge 	is
untimely.
Also, 	one of your allegations 	is 	that around March 	1990,
representatives 	of 	CSEA 	indicated 	to you 	that you had 	no
grievance 	rights 	since you were a probationary 	employee. 	Viewing
this 	case as 	involving the duty of 	fair representation 	(DFR), 	a
claim accrues 	on the date when the 	employee, 	in the 	exercise 	of
reasonable diligence, 	knew or 	should have known that 	further
assistance 	from the union was 	unlikely. 	You 	received 	the union's
assessment 	in or about March 	1990. 	Therefore, 	you had until 	the
end of September 	1990, 	to 	file a charge based upon this 	specific
conduct. 	Therefore, 	this allegation is untimely. 	See

Warning 	Letter
LA-CO-5 65
December 12, 	1991
Page 5
International 	Union of Operating Engineers. 	Local 	501 	(Reich)
(1986) 	PERB Decision No. 	591-H. 	A number of allegations do not
specify the date of occurrence. 	Without 	said dates, 	we must
assume the allegations are outside the 	statutory period, 	and
therefore, 	dismiss them as untimely.
Second, 	assuming your allegations are timely, 	there 	is 	no
evidence 	indicating violations 	of the union's 	duty of 	fair
representation 	(DFR). 	The 	following information describes what
is 	needed to allege a prima 	facie 	case 	involving the 	DFR
guaranteed under EERA. 	The duty of 	fair representation 	imposed
on 	the 	exclusive 	representative 	extends 	to 	negotiating 	and
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 	section 	3543.6(b)of 	EERA, 	the 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:
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

Warning 	Letter
LA-CO-565
December 12, 	1991
Page 6
Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
As 	I 	indicated to you on December 	10, 	1991, 	the present charge
fails 	to 	state a prima case as 	it does 	not 	allege 	facts 	or 	show
that the union's 	conduct was 	arbitrary, 	discriminatory or 	in bad
faith. 	As 	seen above, 	mere negligence or poor 	judgment does 	not
constitute a breach of the union's 	duty. 	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. 	Furthermore, 	PERB regulation 32615 	(California Code of
Regulations, 	title 8, 	section 32615) 	requires that a charge
contain 	"a 	clear and 	concise 	statement of 	the 	facts 	and 	conduct
alleged 	to 	constitute 	an unfair practice." 	(Emphasis 	added.)
Charging Party must allege with specificity who, 	what, 	when,
where 	and how the union's 	activities 	were 	arbitrary,
discriminatory, 	or in bad faith. 	Mere speculation, 	conjecture or
legal 	conclusions 	are 	insufficient.
Third, 	it 	is 	likely that CSEA in fact owes 	you 	no duty of 	fair
representation as 	to your subsequent appeals 	to the County, 	and
thereafter. 	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 Associatio	- - n 	(1988) 	PERB
Decision No. 	698-H. 	It appears 	that the procedures you followed
in complaining or appealing to the County, 	the U.S. 	Department of
Labor, 	EDD, 	or others, 	are independent of, 	and wholly outside the
grievance procedure 	in the Agreement between CSEA 	and 	the
District. 	Thus, 	no duty of 	fair representation was owed to you
by CSEA.
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,
-and 	must 	be 	signed 	under penalty of 	perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served 	on the 	respondent5 and
5Maureen C. 	Whelan, 	Esq., 	California School Employees
Association, 	P.O. 	Box 640, 	San Jose, 	CA 95106-9986.

Warning 	Letter
LA-CO-565
December 12, 	1991
Page 7
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge 	or withdrawal 	from you 	before
December 	19, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Marc S. 	Hurwitz
Regional 	Attorney