Riverside County Office Teachers Association (Mc Alpine, et al.) (PERB 1401E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

HUGH MCALPINE, et al., )

Charging Parties, ) Case No. LA-CO-817
)
Vv. ) PERB Decision No. 1401
)
RIVERSIDE COUNTY OFFICE ) August 31, 2000

TEACHERS ASSOCIATION, CTA/NEA, )

Respondent. )

Appearance: Allyn Auck, representative, for Hugh McAlpine, et
al.

Before Dyer, Amador and Baker, Members.
DECISION
DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of the unfair practice charge filed by Hugh McAlpine,
et al. (McAlpine). McAlpine's charge alleges that the Riverside
County Office Teachers Association, CTA/NEA, violated section

3543.6(b) of the Educational Employment Relations Act (EERA)*

“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 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.

and 	thereby breached 	its 	duty of 	fair 	representation under
section 3544.9.2
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal3 letters, 	and the appeal of McAlpine, 	et
al. 	The 	Board finds 	the warning and dismissal 	letters 	to be 	free
from prejudicial 	error and 	adopts 	them as 	the 	decision of 	the
Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-817 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members Amador 	and Baker 	joined 	in 	this 	Decision.
2Section 3544.9 	reads:
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.
3The Board notes 	that on page 4, 	line 	9 	of 	the dismissal
letter, 	the Board agent 	omitted the 	citation 	for the 	case of
South San Francisco Unified School 	District. 	This portion of
page 	4 	of 	the 	dismissal 	letter 	is 	hereby modified to 	read 	"South
San Francisco Unified School 	District 	(1990) 	PERB 	Decision
No. 83 0."
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
February 7, 	2 000
Allyn Auck
Re: 	DISMISSAL 	OF 	CHARGE/REFUSAL 	TO 	ISSUE 	COMPLAINT
Hugh McApline, 	et 	al.1 v. 	Riverside County Office Teachers
Association, 	CTA/NEA
Unfair Practice Charge No. 	LA-CO-817; 	First Amended Charge
Dear Ms. 	Auck:
The 	above-referenced unfair practice 	charge, 	filed November 	18,
1999, 	alleges 	the 	Riverside 	County Office 	Teachers 	Association
(Association) 	breached 	its 	duty of 	fair representation by
negotiating 	a 	2% 	reduction 	in 	the 	salary augmentation 	for 	Special
Education 	Instructors. 	You allege 	this 	conduct 	violates
Government 	Code 	section 3543.6 	of 	the 	Educational 	Employment
Relations Act 	(EERA or Act).
I 	indicated 	to you, 	in my attached 	letter dated December 	10,
1999, 	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
1 T h e 	following 	persons 	have 	filed 	a 	Notice 	of 	Appearance
naming Ms. 	Auck as 	their representative 	and wish 	to 	be 	considered
Charging Parties: 	Allyn Auck; 	Barbara Jackson Alvardo; 	Virginia
Hodgson; 	Scott Morgan; 	Bernice Meyer; 	Warren Peterson; 	Patricia
Trueba; 	Jolanda Karr; 	Michael Leivas; 	John Stocking; 	John Maurer;
Julie Ch'iu; 	Hergard Eberhard; 	Ronald Matthews; 	Kent Lewis; 	Kim
Gardner; 	Brenda Stockdale; 	Donna Abramson; 	Lynne Laumeister;
Barbara Herzberg; 	Coleen Tomazin; 	Marilynn Henry; 	Josie Curiel;
Mahlon Smith; 	Robert Riese; 	Sharon Brewer; 	Michell 	Jenkins;
Annette Carrozzo; 	Elizabeth Santore; 	Linda Pollard; 	Richard
McCausland; 	Anne Reyes; 	Alvin Butler; 	Audrey Anderson; 	Dennis
Sheahan; 	Jennifer Hayes; 	Thomas Seider; 	Joel Morgan; 	Caroline
Padilla; 	Stanley Bourgeault; 	Sally Hall; 	Cindee Adams; 	Peter Eck;
Roy Austin; 	Sharyl Williams; 	Susan Hohwieser; 	Rebecca Poyner;
Ernestine Ortiz;

Dismissal 	Letter
LA-CO-817
Page 2
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to
December 17, 	1999, 	the charge would be dismissed.
On December 	17, 	1999, 	Charging Parties 	filed a 	first 	amended
charge. 	With 	regard 	to 	the 	allegation that 	the Association
breached 	its 	duty 	of 	fair 	representation by 	negotiating 	away part
of 	the 	Special 	Education stipend, 	the 	charge adds 	legal 	arguments
without 	providing 	any additional 	relevant 	facts. 	Specifically,
Charging 	Parties 	contend 	the Association 	caused 	the 	District 	to
engage 	in 	regressive 	bargaining 	by 	rejecting 	a 	salary proposal
that 	would have 	kept 	intact 	Charging 	Parties' 	stipend.
Additionally, 	Charging 	Parties 	argue 	the Association 	disparately
treated 	them by 	reducing 	their 	stipend while 	increasing 	the
salaries 	of 	all 	other employees. 	Finally, 	Charging 	Parties
contend 	the Association 	entered 	into 	an 	agreement 	that 	went
"beyond 	the 	scope 	of 	the 	existing 	three 	year 	agreement 	without
publishing notice 	of 	the 	intent 	to 	ratify a 	successor agreement."
The 	amended 	charge 	also 	adds 	an 	allegation of 	discrimination by
the Association. 	Specifically, 	Charging Parties 	contend:
RCOTA 	President 	Michael 	Bochicchio 	stated 	in
an 	open 	Executive 	Board Meeting 	on December
3,. 1999, 	that 	"Whoever is doing this is 	in
big 	trouble!" 	when referring 	to 	the
activities 	of 	the 	charging parties 	and 	in 	the
presence of Martin Early, 	Vice President, 	a
fully 	credentialed 	Special 	Education 	Teacher,
thereby 	causing 	him 	to 	feel 	threatened 	with
discrimination 	and 	reprisals.
Based on 	the 	facts 	presented 	in 	the 	original 	and 	amended 	charges,
the 	charge 	still 	fails 	to 	state 	a prima 	facie violation of 	the
EERA, 	for 	the 	reasons provided below.
With regard to 	Charging Parties' 	initial 	allegations 	concerning
the Association's 	bargaining 	conduct, 	the 	amended charge 	still
fails 	to 	demonstrate 	the Association engaged 	in arbitrary or bad
faith conduct. 	Charging 	Parties 	allege 	the Association
disparately 	treated 	the 	Special 	Education 	teachers 	by 	reducing
their 	stipend while 	increasing 	the 	salaries 	of 	other 	teachers.
However, 	as explained in my December 10, 	1999, 	letter, 	an
exclusive 	representative 	is 	not 	expected or 	required 	to 	satisfy
all members 	of 	the unit 	it 	represents. 	(California 	State
Employees Association 	(Chacon) 	(1995) 	PERB Decision No. 	1108.)
Moreover, 	the 	duty of 	fair representation does 	not 	mean an
employee 	organization 	is 	barred 	from making 	an 	agreement 	which
may have 	an unfavorable effect 	on some members, 	nor 	is 	an
employee 	organization 	obligated 	to 	bargain 	a 	particular 	item
benefitting certain unit members. 	(Id.; 	Los 	Rios 	College

Dismissal 	Letter
LA-CO-817
Page 3
Federation of Teachers 	(Violett) 	(1991) 	PERB Decision No. 	889.)
As 	such, 	the Association's 	conduct 	in making an agreement 	that
favors 	some 	employees 	more 	than others 	does 	not 	violate 	the 	EERA.
Additionally, 	facts 	provided demonstrate 	the Association made 	all
members 	clear 	on 	its 	priorities 	and 	thoroughly 	explained 	their
decision 	to 	reduce 	stipends 	for 	Special 	Education 	teaches. 	While
some 	members 	may not 	agree with 	the Association's 	decision, 	such
disagreement 	does 	not 	rise 	to 	the 	level 	of 	unlawful 	conduct.
Charging 	Parties 	also 	contend 	the 	Association entered 	into 	an
agreement 	"beyond 	the 	scope 	of 	the 	existing 	three 	year 	agreement
without 	publishing notice 	of 	the 	intent 	to 	ratify a 	successor
agreement." 	It 	appears 	Charging 	Parties 	are 	complaining 	about
provisions 	in 	the 	new Agreement 	which 	Charging 	Parties 	claim
extend beyond 	the 	duration of 	the 	agreement. 	More 	specifically,
the 	new Agreement 	contains 	a 	duration 	clause 	which 	states 	the
Agreement will 	be 	in effect until 	June 	30, 	2001. 	The Agreement
also contains a provision at Article 	11, 	Wages, 	which states as
follows:
11.4 	The 	parties 	agree 	to 	the 	establishment
of 	a 	Benchmark Advisory Committee. 	The
committee 	shall 	be 	comprised of 	a
representative 	from both parties. 	One 	of 	the
management 	team members 	shall 	facilitate 	the
committee. 	The 	committee 	shall 	make 	[sic]
determination of 	benchmark 	adjustments 	to 	the
salary 	schedules 	Dl 	and D2 	which will 	now
include 	certificated 	bargaining 	unit 	members
to the median position by June 	30, 	2002.
It 	appears 	the 	parties 	agreed to 	set 	up 	an advisory committee
charged with 	recommending 	adjustments 	in 	the 	salary 	schedules,
with 	the 	ultimate 	goal 	of 	raising 	certificated bargaining 	unit
members 	to the 	median level 	in 	the 	County. 	This provision is
consistent 	with 	the 	Association's 	communications 	which 	stress
this same point. 	For example, 	on September 2, 	1999, 	the
Association 	distributed a 	newsletter which 	stated 	the 	following:
While 	the 	County remains 	"firmly 	committed"
to 	honoring 	last 	year's 	agreement 	to bring
County Office 	teachers 	to median 	among
teachers 	in the 	twenty-three 	districts 	in
Riverside 	County by 2001-2002, 	they insist
that 	funding 	uncertainties 	prevent 	them 	from
entering 	into 	a multi-year 	agreement 	to
restructure 	and enhance 	the 	teachers' 	salary
schedule.

Dismissal 	Letter
LA-CO-817
Page 4
As 	the 	provision 	is 	merely setting 	up 	an advisory 	committee 	whose
goal 	is 	to 	recommend 	salary adjustments 	such 	that 	teachers 	will
be 	at 	the median 	level by 2002, 	it 	is unclear how this provision
violates 	the 	EERA, 	or demonstrates 	bad 	faith on the Association's
part. 	Moreover, 	even assuming 	the 	provision 	somehow extended the
duration of 	the 	agreement 	beyond three years, 	the Association's
failure 	to publicly notice 	this 	clause 	is 	not properly
adjudicated as 	an unfair practice 	charge. 	(See, 	South 	San
Francisco 	Unified 	School 	District 	(PERB 	has 	no 	authority to 	find
a public 	notice 	violation 	in 	the 	context 	of 	an unfair practice
proceeding).) 	As 	such, 	this 	allegation fails 	to demonstrate 	the
Association breached 	its 	duty of 	fair 	representation.
Charging 	Parties 	also 	allege 	the 	Association 	forced 	the 	District
to bargain in bad 	faith, 	by allowing the District 	to 	engage 	in
regressive bargaining. 	More 	specifically, 	Charging 	Parties
contend the 	District's 	proposals 	which 	called 	for 	reductions 	in
the 	stipend 	for 	Special 	Education teachers 	is 	a 	regressive
proposal, 	and as 	such bad 	faith bargaining. 	Charging 	Parties
further 	contend 	the Association 	caused 	the 	District 	to 	engage 	in
regressive 	bargaining 	by rejecting 	a 	salary proposal 	that 	would
have kept 	intact 	Charging Parties' 	stipend. 	As 	such, 	it 	appears
Charging 	Parties 	are 	alleging 	the Association violated 	Government
Code sections 	3543.6(a) 	and 	(c), 	which state 	in relevant part,
that 	it 	is 	an unfair practice 	to:
(a) 	Cause 	or attempt 	to 	cause 	a public 	school
employer 	to violate 	Section 	3543.5.
(c) 	Refuse 	or fail 	to meet 	in good faith with
a public 	school 	employer 	of 	any of 	the
employees 	of which 	it 	is 	the exclusive
representative.
However, 	Charging 	Parties 	lack standing to allege 	allegations 	of
Government Code 	sections 	3543.6(c), 	and as 	such this 	allegation
must 	be dismissed. 	(See, 	California 	State University 	(Wang)
(1990) 	PERB Decision No. 	813-H.) 	Moreover, 	the charge fails to
provide 	any 	facts 	demonstrating 	the 	District 	violated 	the Act 	or
that 	the Association 	caused the 	District 	to violate 	the Act. 	As
such, 	the 	charge 	fails 	to 	state 	a prima 	facie violation of
section 3543.6(a).
Finally, 	Charging 	Parties 	allege 	that Martin Early, 	another
Special 	Education teacher and not 	a 	Charging 	Party, 	felt
threatened and 	intimidated by Mr. 	Bochicchio's 	statement 	that
Charging 	Parties 	were 	in trouble 	for 	filing 	the 	charge. 	On or
about January 14, 	2000, 	I 	spoke with Charging Party's
representative 	Allyn Auck 	regarding 	this 	allegation.
Specifically, 	I 	noted that Mr. 	Early denied Charging Parties'

Dismissal 	Letter
LA-CO-817
Page 5
allegation, 	and 	stated that 	he 	was 	not 	threatened or 	intimidated.
Ms. 	Auck stated that 	she had spoken with Mr. 	Early after 	the
union meeting 	and 	that 	Mr. 	Early was 	concerned about 	Mr.
Bochicchio's 	statement. 	Ms. 	Auck assured Mr. 	Early that 	the
Association would 	not 	take 	any 	adverse 	action 	against 	Charging
Parties. 	As 	such, 	Mr. 	Early was no 	longer intimidated.
However, 	a January 24, 	2000, 	declaration provided by Mr. 	Early
presents 	a different 	set 	of 	circumstances. 	Mr. 	Early states 	that
Mr. 	Bochicchio's 	statements 	were misquoted and pertained 	to
grievances 	filed with the District. 	Additionally, 	Mr. 	Early
states:
7. 	The 	statement 	in 	the Amended Charge 	also
misrepresents 	how 	I 	felt 	about 	Bochicchio's
jest. 	I 	did not 	feel 	intimidated and did not
feel 	threatened. 	I 	had no 	fear whatsoever of
reprisal 	from RCOTA.
Although 	Charging 	Parties 	were 	given 	an 	opportunity 	to 	address
this 	inconsistency, 	Charging Parties have not 	refuted Mr. 	Early's
own statements. 	As 	the charge 	alleges 	that 	Mr. 	Early 	felt
intimidated and Mr. 	Early refutes 	that 	allegation, 	the 	charge
fails 	to present 	facts 	demonstrating 	the Association 	interfered
with or threatened bargaining unit members. 	Moreover, 	there 	is
no perceptible 	impact 	on unit members 	rights. 	The quoted
statement 	was 	not 	heard by any 	Charging 	Party and 	indeed, 	no
Charging 	Party alleges 	they 	felt 	intimidated or 	threatened. 	As
such, 	this 	allegation fails 	to 	state 	a prima 	facie 	case 	of
interference.
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. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain
the case name 	and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually received before
the 	close of 	business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United States 	mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)

Dismissal 	Letter
LA-CO-817
Page 6
A 	document 	is 	also 	considered 	"filed" 	when 	received 	by 	facsimile
transmission before 	the 	close 	of business 	on the 	last 	day 	for
filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed 	by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date

Dismissal 	Letter
LA-CO-817
Page 	7
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By Kristin L. 	Rosi
Regional 	Attorney
Attachment
cc: 	Robert Lindquist

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(41 5) 439-6940
December 10, 	1999
Hugh 	McAlpine
Re: 	WARNING LETTER
Hugh McAlpine1 v. 	Riverside 	County Office 	Teachers
Association
Unfair Practice 	Charge No. 	LA-CO-817
Dear Mr. 	McAlpine:
The 	above-referenced unfair practice 	charge, 	filed November 	18,
1999, 	alleges 	the 	Riverside 	County Office 	Teachers Association
(Association) 	breached 	its 	duty of 	fair 	representation by
negotiating 	a 	2% 	reduction 	in 	the 	salary 	augmentation 	for 	Special
Education 	Instructors. 	You allege 	this 	conduct 	violates
Government 	Code 	section 	3543.6 	of 	the 	Educational 	Employment
Relations Act 	(EERA or Act).
Charging 	Parties 	are 	employed by 	the 	Riverside 	County Office 	of
Education 	(Office 	of 	Education) 	as 	Special 	Education 	Instructors
or 	Speech Therapists 	for 	disabled 	students.2 As 	credentialed
1 H u g h 	McAlpine 	is 	the 	Charging 	Party who 	signed the
charge. 	The 	charge 	also contains 	the names 	of 	45 	additional
employees 	who wish to be 	considered Charging 	Parties. 	However,
pursuant 	to PERB Regulation 32615(a), 	a 	charge must be 	signed by
the party or 	its 	agent. 	This 	charge 	is 	signed only by Mr.
McAlpine 	and 	does 	not 	include 	information 	necessary 	to 	elevate
Mr. 	McAlpine to the 	status of an 	"agent" 	for the 45 	named
employees. 	On November 18, 	1999, 	Mr. 	McAlpine informed me that
Allyn Auck would be 	serving 	as 	the 	representative. 	On November
19, 	1999, 	I requested Ms. 	Auck obtain the signatures of the 45
employees authorizing Ms. 	Auck as the Charging Parties'
representative. 	To date, 	I 	have not 	received such authorization.
As such, 	Mr. 	McAlpine is
the 	only Charging 	Party.
2 T h e r e 	are 	approximately 	75 	Special 	Education 	Instructors
and Speech Therapists 	in a unit 	of 	nearly 240 	instructors.
====-----

Warning 	Letter
LA-CO-817
Page 2
instructors, 	Charging 	Parties 	are 	exclusively represented by 	the
Association.
In 	1995 	and 	1996 	salary negotiations, 	the Association 	secured
additional 	salary allotments 	for 	Special 	Education 	Instructors.
In 	1997, 	salary 	schedules 	were 	combined and 	Special 	Education
teachers 	were 	placed 	on 	the 	same 	salary 	schedule 	as 	other
credentialed 	instructors. 	To 	compensate 	Special 	Education
teachers 	for 	their 	specialized 	instruction, 	Special 	Education
teachers 	received 	a 	$2,200 	stipend per year 	in additional
compensation.
Apparently, 	Special 	Education 	Instructors 	and Speech Therapists
were 	unhappy with 	the 	stipend pay, 	and voiced 	their disapproval
to 	the Association 	in 	the 	form of 	letters 	and 	survey responses.
In 	1998, 	during negotiations, 	the Office of Education and the
Association 	agreed upon 	an 	8% 	augmentation 	for 	Special 	Education
Instructors. 	Not 	surprisingly, 	Special 	Education Instructors 	and
Speech 	Therapists 	overwhelmingly 	supported 	this 	contract
modification.
In 	1999, 	the Association began contract 	negotiations 	for a
successor three year agreement. 	On September 2, 	1999, 	the
Association 	distributed 	a 	newsletter 	updating bargaining 	unit
members 	on the progress 	of 	negotiations. 	Included 	in the
newsletter was 	the 	following 	statement:
While 	the 	County remains 	"firmly 	committed"
to honoring 	last 	year's 	agreement 	to bring
County Office 	teachers 	to median among
teachers 	in 	the 	twenty-three 	districts 	in
Riverside 	County by 2001-2002, 	they insist
that 	funding 	uncertainties 	prevent 	them 	from
entering 	into 	a multi-year 	agreement 	to
restructure 	and enhance the 	teachers' 	salary
schedule.
County officials propose 	a 	1.14% 	cost-of-
living 	adjustment 	plus 	a 	1.59% 	benchmark
increase 	(3% total) 	for 1999-2000. 	They
propose 	that 	any 	additional 	salary 	increases
would be 	funded by making 	"adjustments" 	to
the 	current 	master's 	degree 	and 	special
education 	credential 	stipends.
Teachers 	remain 	opposed 	to 	any 	stipend
adjustments 	unless 	they are 	instituted within
the overall 	context of. a multi-year
restructuring 	of 	the 	salary 	schedule.

Warning 	Letter
LA-CO-817
Page 3
On 	September 	8, 	1999, 	the Association and Office of 	Education
reached 	a 	tentative 	agreement 	for 	a 	three-year 	successor
agreement. 	On September 27, 	1999, 	the Association distributed a
newsletter 	which 	explained 	the 	salary provisions 	of 	the 	new
agreement 	and 	the Association's 	decision 	to 	tentatively accept
the 	agreement:
The 	tentative 	agreement 	features 	a 	salary
settlement 	of 	1.14% 	COLA and 	2.59% 	benchmark
(4% total) 	for 1999-2000. 	In addition, 	for
2000-2001, 	the 	schedule will 	be 	increased by
the statutory COLA + 2.5% benchmark. 	. 	. 	In
the 	third year, 	the 	County has 	agreed to
provide 	COLA plus 	a 	sufficient 	benchmark
adjustment 	to 	bring 	County Office 	teachers 	to
the median 	salary level 	of 	all 	23 	school
districts 	in Riverside 	County.
During 	each of 	the 	three years 	of 	the
agreement, 	last year's 	8% 	augmentation to
recruit 	full-credentialed 	special 	education
teachers will be reduced by 2%. 	Thus, 	these
140 	teachers will 	receive a 	6% 	enhancement
for 1999-2000, 	a 4% enhancement 	for 2000-
2001, 	and a 2% 	enhancement 	in the 	final year
of 	the 	agreement. 	No 	further reduction of
the 	special 	education bonus 	is 	planned.
The 	County was 	insistent 	on 	this 	adjustment
to 	special 	education 	stipends 	and was willing
to use 	the 	dollars 	saved to 	fund an
additional 	0.5% 	benchmark 	increase 	for 	all
bargaining unit 	members. 	Even with the 	2%
reduction, 	fully-credentialed 	special
education 	teachers 	and 	speech 	therapists 	will
rank third 	in the 	county, 	well 	above 	the
median 	target 	for 	County Office 	teachers 	in
correctional 	education, 	ROP 	and alternative
education.
Overall, 	RCOTA calculates 	that 	the 	three-year
salary 	increases 	will 	push 	teacher's 	salaries
up by an additional 	12-13%.
Based on the 	above 	stated facts, 	the 	charge 	as presently written,
fails 	to 	state 	a prima 	facie violation of 	the EERA, 	for the
reasons 	provided 	below.
Charging 	Parties 	allege:

Warning 	Letter
LA-CO-817
Page 	4
After 	the 	overwhelming 	support 	for 	the
original 	8% 	augmentation to 	the 	salary
schedule 	for 	fully-credentialed 	Special
Education 	Teachers 	and 	Speech 	Therapists 	and
the 	subsequent 	dissatisfaction 	of 	unit
members with regard to 	its 	reduction, 	it 	is
clear 	that 	the 	negotiating 	team 	acted without
due 	consideration of 	the 	facts 	of 	recent
history 	and without 	rational 	basis 	and
therefore 	breached 	their 	duty 	to 	fairly
represent 	all 	employees.
A charging party should allege the 	"who, 	what, 	when, 	where, 	and
how" 	of 	an unfair practice. 	(United Teachers-Los Angeles
(Ragsdale) 	(1992) 	PERB Decision 944.) 	Mere 	legal 	conclusions 	are
insufficient. 	(See 	State of 	California 	(Department 	of 	Food and
Agriculture 	(1994) 	PERB Decision No. 	1071-S.) 	Herein, 	Charging
Parties 	state 	at 	the 	conclusion of 	their 	facts 	that 	the
Association acted without 	rational 	basis. 	However, 	such a
conclusion does 	not 	set 	forth 	facts 	from which 	it 	becomes
apparent 	how or 	in what 	manner 	the Association 	acted without
rational basis. 	As 	such, 	the mere conclusion that 	the
Association acted without 	rational 	basis 	is 	insufficient 	to 	state
a prima 	facie 	case.
Additionally, 	based on the 	facts provided, 	Charging 	Parties 	fail
to 	demonstrate 	the Association breached 	its 	duty of 	fair
representation. 	Charging 	Parties 	allege 	that 	the 	exclusive
representative 	denied 	Charging 	Party the 	right 	to 	fair
representation 	guaranteed 	by 	EERA 	section 	3544.9 	and 	thereby
violated section 3543.6(b).
As 	a general 	rule, 	an exclusive 	representative 	enjoys 	a wide
range 	of bargaining 	latitude. 	As 	the 	Supreme Court 	has 	noted 	in
Ford Motor Co. 	v. 	Huffman 	(1953) 	345 U.S. 	330, 	338:
Inevitably differences 	arise 	in 	the manner
and degree 	to which 	the 	terms 	of 	any
negotiated 	agreement 	affect 	individual
employees 	and classes of 	employees. 	The mere
existence 	of 	such differences 	does 	not 	make
them invalid. 	The 	complete 	satisfaction of
all 	who 	are 	represented is 	hardly 	to be
expected. 	A wide 	range 	of 	reasonableness
must 	be 	allowed 	a 	statutory bargaining
representative 	in 	serving 	the unit 	it
represents, 	subject 	always 	to good 	faith and
honestly of 	purpose 	in 	the 	exercise of 	its
discretion.

Warning 	Letter
LA-CO-817
Page 	5
Acknowledging 	the 	need 	for 	such discretion, 	PERB 	has 	noted 	that
an 	exclusive 	representative 	is 	not 	expected or 	required 	to
satisfy all 	members 	of 	the unit 	it 	represents. 	(California 	State
Employees Association 	(Chacon) 	(1995) 	PERB Decision No. 	1108.)
Moreover, 	the 	duty of 	fair representation does 	not 	mean an
employee 	organization 	is 	barred 	from making 	an 	agreement 	which
may have 	an unfavorable 	effect 	on some members, 	nor 	is 	an
employee 	organization 	obligated 	to 	bargain 	a 	particular 	item
benefitting certain unit 	members. 	(Id.; 	Los Rios 	College
Federation of Teachers 	(Violett) 	(1991) 	PERB Decision No. 	889.)
In 	the 	instant 	charge, 	the Association 	specified 	its 	bargaining
strategy by 	stating 	that 	they would not 	agree 	to 	any 	reduction 	in
Special 	Education pay without 	securing 	a 	three 	year 	agreement
that 	raised 	the 	overall 	salaries 	of 	all 	bargaining unit 	members
to 	the 	county median. 	Such a proposition is 	not 	devoid of 	honest
judgment 	or without 	rational 	basis. 	Moreover, 	the Association
specifically 	explained 	its 	decision 	to 	reduce 	the 	augmentation
prior 	to 	the 	ratification vote 	and 	fully 	explained 	their
rationale 	for accepting 	such a proposal. 	As 	such, 	nothing 	in the
charge 	indicates 	the Association 	acted without 	rational 	basis.
The 	mere 	fact 	that 	Charging 	Parties 	were 	not 	satisfied with 	the
agreement 	is 	insufficient 	to 	demonstrate 	a prima 	facie violation.
(Los Rios College Federation of Teachers 	(Violett), 	supra.)
Further, 	the 	fact 	that 	the Association should have 	known the
Special 	Education 	teachers 	would be 	dissatisfied 	is 	also
insufficient 	to 	demonstrate 	a 	breach of 	the 	duty of 	fair
representation. 	The Association 	is 	not 	obligated 	to 	negotiate 	a
specific provision 	for a group 	of unit 	members, 	nor did the
Association 	fail 	to 	explain 	their 	rationale 	in 	reducing 	the
augmentation. 	As 	such, 	the 	charge 	fails 	to 	state 	a prima 	facie
case.
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
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended charge 	must 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner of 	the 	charge 	form. 	The 	amended charge must 	be
served 	on 	the 	respondent's 	representative 	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 	17, 	1999, 	I
shall 	dismiss your charge. 	If you have 	any questions, 	please
call me at 	(213) 	736-3127.

Warning Letter
LA-CO-817
Page 6

Sincerely,

Kristin L. Rosi
Regional Attorney