San Jose Community College Faculty Association (Maestas-Flores) (PERB 1200E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARGARITA MAESTAS-FLORES,
Charging 	Party,
v.
SAN JOSE 	COMMUNITY COLLEGE
FACULTY ASSOCIATION,
Respondent.
Case No. 	SF-CO-513
PERB Decision No. 	1200
June 2, 	1997
Appearances: 	Marco E. 	Lopez, 	Attorney, 	for Margarita Maestas-
Flores; 	Law Offices of Robert J. 	Bezemek by Adam H. 	Birnhak,
Attorney, 	for San Jose Community College 	Faculty Association.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by Margarita Maestas-
Flores 	(Maestas-Flores) 	to a Board agent's 	dismissal 	(attached)
of 	the unfair practice 	charge and refusal 	to 	issue a 	complaint.
Maestas-Flores 	alleged 	that 	the 	San Jose 	Community 	College
Faculty Association 	(Association) 	denied her the 	right 	to 	fair
and 	impartial 	representation guaranteed by 	section 	3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA), 	in violation of EERA
section 3543.6(b),1 by improperly handling her grievance against
1EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
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.
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Section 3543.6 states, 	in 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.
the 	San Jose/Evergreen Community 	College 	District.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	Maestas-Flores'
appeal,2 and the Association's 	response. 	The Board finds 	the
warning and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and
therefore adopts 	them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CO-513 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
20n appeal, 	we note 	that Maestas-Flores 	apparently read
San Marcos 	Educators Association. 	CTA/NEA 	(Duran-Chugon) 	(1988)
PERB Decision No. 	711 	as 	conferring a 	three-month grace period
from the 	statute of 	limitations, 	and she argues 	that her charge
was 	timely filed. 	We disagree. 	In that 	case, 	the Board held
that 	three months 	is more 	than reasonable 	to discover that 	the
exclusive 	representative 	had 	failed 	to 	respond. 	The 	six-month
statute 	of 	limitations begins 	to 	run as 	soon as 	any reasonable
person would 	have 	known 	that 	further assistance 	from the 	union
was unlikely. 	(Id. 	at p. 	4.)
22

STATE. OF CALIFORNIA 	( 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
December 23, 	1996
Margarita Maestas-Flores
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Margarita Maestas-Flores v. 	San Jose Community College
Faculty Association
Unfair Practice Charge No. 	SF-CO-513
Dear Ms. Maestas-Flores:
The above-referenced unfair practice charge, 	filed on August 	5,
and amended on December 9, 	1996, 	alleges that the San Jose
Community College Faculty Association 	(Association) 	failed to
fairly represent Margarita Maestas-Flores with regard to certain
employment disputes with her employer, 	the San Jose/Evergreen
Community College District 	(District). 	This conduct is alleged
to violate Government Code section 3543.6 of the Educational
Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated December 3, 	1996,
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 which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
December 12, 	1996, 	the charge would be dismissed.
On December 9, 	1996, 	an amended charge was filed. 	The amended
charge contains the following new allegations: 	(1) 	Gee's meetings
with Kong in July 1995, 	concerning Maestas-Flores's grievance,
occurred despite Gee's 	conflict 	of 	interest 	in representing
Maestas-Flores, 	and Gee misrepresented the facts when he told
Kong that no other Association representative was available to
represent Maestas-Flores at that time; 	(2) 	the Association failed
to protect Maestas-Flores against discrimination by the District
because of her advocacy on behalf of minority women and students
in the Business Division; 	(3) 	the District colluded with the
Association in denying Maestas-Flores's 	1995 	grievance and failed
to address the issue of adequate breaks necessary due to Maestas-
Flores's work-related injury; 	(4) 	Linda Carbajal was unfair in
assigning classes 	to her for the fall 	1996 and in one case gave

Dismissal 	Letter
SF-CO-513
December 23, 	1996
Page 2
preference to the same 	faculty members Gee solicited to oppose
her 1995 grievance; 	and 	(5) 	Carbajal denied a class assignment to
Maestas-Flores for the spring 1997 semester. 	In addition, 	the
amended charge contains the legal arguments that 	the doctrine of
futility applies with respect 	to the issue of exhaustion of 	the
grievance procedure and that 	the charged conduct 	comes within the
doctrine of continuing violations.
The amended charge fails to cure the deficiencies noted in the
December 3, 	1996 letter. 	The conduct alleged in the original
charge with respect to the Association's 	failure to pursue the
1995 grievance is untimely. 	The conduct alleged in this case
does not demonstrate the existence of a continuing violation.
The Association's refusal to process the 1995 grievance is the
only conduct alleged in this 	case which implicates a breach of
the duty of fair representation. 	However, 	the Association's
subsequent conduct, 	referenced in the amended charge, 	does not
revive the earlier alleged violation. 	(See San Francisco
Classroom Teachers Association 	(Chestangue) 	(1985) 	PERB Dec. 	No.
544 	["intensification" 	of 	conduct on part of union].)
The allegations with respect to scheduling for the 1996-97 year,
although not stating specific dates, 	fail to state a prima facie
violation involving a breach of 	the duty of 	fair representation
on the part of 	the Association. 	There is no threshold showing
that Maestas-Flores 	requested representation from the Association
with respect 	to these matters and that the Association refused.
Even if requests had been made and refused, 	no continuing
violation would exist because 	in duty-of-fair-representation
cases 	each request 	for grievance 	representation and attendant
refusal must typically be analyzed on their own merits. 	There is
no claim that the Association has asserted that it will never
again represent Maestas-Flores 	in a grievance.
Futility is irrelevant 	to this case because deferral 	to
arbitration is not in issue.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons 	set 	forth above and those contained in my
December 3, 	1996 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
(

Dismissal 	Letter
SF-CO-513
December 23, 	1996
Page 3
after service of this dismissal. 	(Cal. 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 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	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 	(3) 	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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
(

Dismissal 	Letter
SF-CO-513
December 23, 	1996
Page 4
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By DONN GINOZA
Regional Attorney
Attachment
cc: 	Marco E. 	Lopez
Adam Birnhak

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
December 3, 	1996
Margarita Maestas-Flores
Re: 	WARNING LETTER
Margarita Maestas-Flores v. 	San Jose Community College
Faculty Association
Unfair Practice Charge No. 	SF-CO-513
Dear Ms. Maestas-Flores:
The above-referenced unfair practice charge, 	filed on August 5,
1996, 	alleges that the San Jose Community College Faculty
Association 	(Association) 	failed to fairly represent Margarita
Maestas-Flores with regard to 	certain employment 	disputes with
her employer, 	the San Jose/Evergreen Community College District
(District). 	This conduct is alleged to violate Government Code
section 3543.6 of the Educational Employment Relations Act
(EERA) .
Investigation of the charge revealed the following. 	Maestas-
Flores 	is 	employed as a full-time teacher with the District. 	She
teaches 	classes 	in the Division of Business and Arts at the
Evergreen Valley College. 	Her supervisor is Linda Carbajal, 	Dean
of the Division. 	Henry Gee has been the president of the
Association. 	Phillip Crawford has been a grievance officer for
the Association.
In March 1995, 	Maestas-Flores left a telephone message with Gee
requesting a meeting to discuss a potential grievance against
Carbajal. 	Gee did not respond to the call. 	Maestas-Flores then
wrote a memorandum to Gee. 	Gee informed her to contact Crawford.
On or about May 25, 	Crawford filed a grievance on Maestas-
Flores's behalf. 	Maestas-Flores's grievance alleged that
Carbajal 	(1) 	failed to assign the Business 7A class to her for
the 	fall 	of 	1995 and assigned it 	instead to a part-time
instructor, 	(2) 	permitted irregularities in her evaluation and
failed to acknowledge her contributions 	to the community,
college, 	and division's Hispanic population and 	(3) 	assigned her
to two consecutive classes 	that allowed for only a 10 minute
break between classes, 	when she required a longer break due to
the effects of a work-related, 	back injury.
The grievance requested the following remedies: 	(1) 	reassignment
for fall 	1995 	to include Business 7A and the elimination of more
(	_ 	____J 	__
•

Warning Letter
SF-CO-513
December 3, 	1996
Page 2
than two consecutive classes in the fall of 1995, 	(2) 	prior
notice to Maestas-Flores and peer team member, 	Leonard
Washington, 	of dates for evaluation team conferences, 	and 	(3)
destruction of evaluation documents 	leaked to the District
president and commencement 	of 	the new evaluation process void of
these prejudicial documents.
The grievance was 	rejected by Carbajal at 	the first 	level 	on or
about June 12. 	Crawford submitted the grievance to the second
level on or about June 29. 	However, 	on or about July 8, 	the
Association Executive Board voted to place grievance officer
duties in the hands of Gee. 	Because Gee reported to Carbajal for
instructional assignments, 	Gee indicated that he would designate
another representative for the grievance due to his potential"
conflict of interest.
Gee met with Ron Kong, 	Chancellor of the District, 	on two
occasions 	in July. 	He indicated to Kong that he was having
difficulty obtaining another representative 	for the grievance.
These meetings 	resulted in an agreement to extend the deadline to
July 28 	for the second step meeting. 	Gee notified Maestas-Flores
on July 24 	that he was designating Leonard Washington to be the
representative. 	Gee attended the second step meeting on July 28.
Kong rejected the grievance on the grounds that it was not filed
within 30 days as required by the grievance procedure. 	Maestas-
Flores 	complains 	that Gee met with Kong without 	consulting her or
presenting 	supportive documentation she had shared with Crawford.
During this period of time, 	Maestas-Flores hired a private
attorney, 	Daniel Cornell, 	to provide representation in the
grievance. 	On or about July 28, 	Cornell requested that the
grievance be elevated to arbitration. 	Kong informed Gee that he
believed the request to be premature.
On or about August 26, 	Maestas-Flores requested that Crawford
submit her grievance to arbitration. 	On or about September 7,
Maestas-Flores 	requested a meeting with the Association's
Executive Board. 	During the meeting, 	Gee acknowledged that he
did not have a copy of 	the grievance with him when he met with
Kong. 	Maestas-Flores also alleges that Gee acknowledged that he
did not 	follow the Board's directive to seek another
representative. 	The Board directed Gee and Maestas-Flores to
meet to prepare a summary of the grievance. 	Maestas-Flores
maintained her position that Gee's 	continued handling of her
grievance constituted a conflict 	of 	interest.
On September 28, 	Maestas-Flores met with Gee and Crawford. 	Gee
announced that he would oppose 	continued prosecution of Maestas-
Flores' 	grievance. 	Gee also indicated that he had solicited
r
(

Warning 	Letter
SF-CO-513
December 3, 	1996
Page 3
certain Business Division faculty to state their reasons 	for
opposing the grievance at 	the Executive Board meeting scheduled
the next day. 	Gee 	indicated that 	the 	faculty presentation would
be held in a 	closed session with the Board and he 	refused to
divulge their identities. 	He also refused to disclose
information he presented to Kong during his meetings 	on the
grievance.
At the Board meetings on September 29 and October 6, 	Maestas-
Flores was 	supported by 23 	faculty members and other community
members. 	Maestas-Flores again protested Gee's 	continued
participation in the grievance due to his conflict of interest.
The faculty members 	solicited by Gee met with the Board in closed
session. 	At the October 6 meeting, 	Gee transferred the Maestas-
Flores grievance to another Board member. 	The Board heard
complaints about 	the harassment and inequitable treatment of
minority women at the District and about Carbajal's 	refusal 	to
acknowledge Maestas-Flores's 	contributions 	to the minority
community in her evaluation.
By letter dated October 3, 	Cornell 	insisted that Gee remove
himself 	from the grievance process.
During the fall of 1995, 	Gee began a campaign for reelection as
president of the Association. 	He was opposed by Crawford. 	In an
October flyer to bargaining unit members Gee responded to a flyer
by Crawford accusing him of being all 	"talk and no action." 	In a
subsequent flyer, 	Gee referred to the Maestas-Flores grievance.
He asserted that he had handled the grievance by addressing only
those violations specifically alleged. 	He acknowledged that
there were other issues involved that were not 	stated in the
grievance and which were not 	covered by specific 	language 	in the
contract. 	He described these matters as ones involving
affirmative action issues. 	He indicated that the Board had
passed a resolution that the grievance continue with respect to
the matters 	raised therein.
By memorandum dated November 13, 	1995, 	Maestas-Flores wrote to
Gee demanding an explanation of 	the status of the grievance. 	Gee
failed to respond.
On May 13, 	1996, 	Carbajal denied Maestas-Flores' 	request for
scheduling of her lab class for the fall of 1996. 	Preferences
were given to part-time faculty members, 	who were solicited by
Gee to voice their opposition to Maestas-Flores's grievance 	in
the fall of 1995.
On July 8, 	1996, 	Maestas-Flores again requested a status report
from Gee on her grievance, 	but received no response.
(

Warning Letter
SF-CO-513
December 3, 	1996
Page 4
The Association responded to the charge by asserting that 	the
issues 	raised by the Maestas-Flores 	grievance have been partially
resolved. 	In a May 15, 	1995 memorandum, 	Carbajal gave Maestas-
Flores and Leonard Washington prior notice of the team meeting.
On or about September 26, 	Ken Fawson, 	Vice-President of
Instruction, 	granted Maestas-Flores's request for accommodation
with respect 	to break time. 	He limited her teaching load to four
class hours per day and granted her a 20-minute break after two
hours of classroom/laboratory activity for the fall 	of 1995.
Maestas-Flores was assigned to teach the Business 	7A class
beginning with the Spring of 	1996.
By letter dated November 15, 	1996, 	the undersigned requested that
Charging Party provide additional 	information to supplement 	the
charge, 	including a copy of the original grievance, 	the
provisions 	of 	the collective bargaining agreement alleged to have
been violated, 	and evidence that 	the grievance was 	timely filed
within the terms of the agreement's grievance procedure. 	No
response has been received.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of the EERA for the
reasons that follow.
Government Code section 3541.5(a) 	states that the Public
Employment Relations Board 	(PERB) 	"shall not 	. 	. 	. 	issue a
complaint 	in respect of any charge based upon an alleged unfair
practice occurring more than six months prior to the 	filing of
the charge."
PERB has held that 	the six month period commences 	to run when the
charging party knew or should have known of 	the conduct giving
rise to the alleged unfair practice. 	(Regents of the University
of California 	(1983) 	PERB Dec. No. 	359-H.)
The charge was filed on August 5, 	1996. 	Therefore, 	only those
acts or omissions by the Association on or after February 5, 	1996
are timely. 	The subject of the charge is the Association's
alleged failure to pursue the May 25, 	1995 grievance to
arbitration. 	The crucial date is November 13, 	1995, 	when
Maestas-Flores 	requested a report 	from Gee on the status of her
grievance. 	The charge alleges that Gee did not respond. 	The
charge does not 	indicate that Maestas-Flores 	inquired of any
other Association representatives 	regarding the status of her
(
(

Warning Letter
SF-CO-513
December 3, 	1996
Page 5
grievance at 	that 	time or followed up with her November 13
correspondence to Gee.1
From the allegations in the charge it must be concluded that 	if
the Association abandoned Maestas-Flores' 	grievance, Maestas-
Flores should have reasonably known of 	this 	fact within a short
period of time following her November 13, 	1995 letter of inquiry.
Based on the pattern of events alleged in the charge it may also
be concluded that a reasonable person would not have had to wait
until February 5, 	1996 to conclude that the Association did not
intend to respond to her request. 	(See San Marcos Educators
Association 	(Duran-Chugon) 	(1988) PERB Dec. No. 	711 	[three months
more than a reasonable amount of 	time to discover that exclusive
representative has failed to respond].) 	Therefore, 	the charge is
not timely filed.2
The events alleged to have occurred during the limitations period
do not cure the lack of timeliness. 	On May 13, 	1996, 	Carbajal
subjected Maestas-Flores to further inequitable treatment with
respect to scheduling for the fall of 1996. 	However, 	nothing on
this date involved conduct on the part of 	the Association. 	On
July 8, 	1996, 	Maestas-Flores repeated her request to Gee for a
status report on her grievance, 	referring to her November 13,
1995 memorandum to him. 	This request does not revive an
otherwise untimely unfair practice. 	(U.C.L.A. 	Labor Relations
Division 	(1989) 	PERB Dec. 	No. 	735-H 	[conduct within limitations
period must 	constitute unfair practice 	independent 	of 	original
conduct]; 	El Dorado Union High School District 	(1984) 	PERB Dec.
No. 	382) 	[same analysis with respect to claim of continuing
violation].)
Furthermore, 	even assuming that the charge was timely filed, 	it
fails to state a prima facie violation. 	PERB has held that
breach of 	the duty of 	fair representation occurs when a union's
conduct toward a member of the bargaining unit 	is arbitrary,
discriminatory, 	or in bad faith. 	(Rocklin Teachers Professional
Association 	(1980) 	PERB Dec. No. 	124.)
1The charge does allege that Gee's last action on the
grievance at the October 6 meeting of the Board was 	to transfer
the grievance to another Board member.
2To the extent that the charge is to be read as 	complaining
about Gee's participation in grievance on conflict of 	interest
grounds, 	this allegation preceded the refusal to arbitrate the
grievance and is untimely for the same reasons.
(
(

Warning Letter
SF-CO-513
December 3, 	1996
Page 6
In the context of grievance handling, 	PERB has defined the scope
of the duty as follows:
. 	. 	. 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.
[Citations omitted.]
A union may exercise 	its 	discretion to
determine how far to pursue a grievance 	in
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. 	[Citations omitted.]
(United Teachers 	- 	Los Angeles 	(Collins)
(1982) PERB Dec. No. 258.)
Stated differently, 	in order to show a prima facie violation
involving a breach of the duty of 	fair representation, 	the
charging party must present 	facts which would justify a 	finding
that 	the union acted without a rational basis or in a way that 	is
devoid of honest judgment. 	(Reed District Teachers Association.
CTA/NEA (Reyes) 	(1983) 	PERB Dec. No. 332.)
In the present case, 	there are insufficient facts to demonstrate
that 	the Association caused Maestas-Flores to forfeit a
meritorious grievance. 	The charge does not demonstrate that the
Association acted in an arbitrary, 	discriminatory, 	or bad faith
manner by failing to pursue Maestas-Flores's grievance to
arbitration. 	The evidence suggests that her grievance may not
have been timely filed, 	and as a result may not have been
meritorious. 	Maestas-Flores has not provided any evidence
establishing that 	it was timely filed. 	The charge also fails to
establish that 	language 	in the 	collective bargaining agreement
expressly prohibited the District's 	conduct which formed the
basis for Maestas-Flores's grievance. 	Therefore, 	it is not clear
that 	the Association caused Maestas-Flores 	to forfeit a
meritorious grievance.
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 additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	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

Warning Letter
SF-CO-513
December 3, 	1996
Page 7
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 December 12. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN GINOZA
Regional Attorney