Hart District Teachers Association (Mercado and Bloch) (PERB 1456E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARIO MERCADO,
Charging Party, Case No. LA-CO-801-E
V.
HART DISTRICT TEACHERS ASSOCIATION, PERB Decision No. 1456
July 31, 2001
Respondent.
CANDICE BLOCH,
Charging Party, Case No. LA-CO-802-E
v.
HART DISTRICT TEACHERS ASSOCIATION,
Respondent.

Appearances: Mario Mercado and Candice Bloch, on their own behalf; Charles R. Gustafson,
Attorney, for Hart District Teachers Association.

Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: These cases come before the Public Employment Relations
Board (PERB or Board) on appeal by Mario Mercado (Mercado) and Candice Bloch (Bloch) of

a PERB administrative law judge's (ALJ) proposed decision (attached) dismissing their unfair

practice charges and complaint. 1 The complaint alleged that the Association breached its duty
of fair representation when it settled grievances filed on behalf of Mercado and Bloch without
notice to them and without obtaining their consent. Mercado and Bloch also complained that
the Association failed to provide post-settlement information to them. Mercado and Bloch
alleged that this conduct constituted a violation of sections 3544.9 and 3543.6(b) of the
Educational Employment Relations Act (EERA).2
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges, the complaint, the briefs of the parties, the ALJ's proposed
decision, Mercado and Bloch's exceptions and the Association's response to the exceptions.
The Board finds the ALJ's proposed decision to be free from prejudicial error and adopts it as
the decision of the Board itself.
1On June 15, 1999, Mercado and Bloch filed unfair practice charges against the Hart
District Teachers Association (Association). On January 28, 2000, the Board's general counsel
consolidated the charges and issued a complaint against the Association.
2EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. 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
Section 3543.6(b) 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
2

ORDER
The unfair practice charges and complaint in Case No. LA-CO-801-E and Case
No. LA-CO-802-E are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
3

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARIO 	MERCADO,
Charging 	Party,
V.
HART 	DISTRICT 	TEACHERS 	ASSOCIATION,
Respondent.
)
)
)
)
)
)
)
)
)
____________________ )
)
CANDICE 	BLOCH,
Charging 	Party,
V.
HART 	DISTRICT 	TEACHERS 	ASSOCIATION,
Respondent.
Unfair 	Practice
Case 	No. 	LA-CO-801
)
)
)
)
)
)
)
)
)
____________________ )
Unfair 	Practice
Case 	No. 	LA-CO-802
PROPOSED 	DECISION
(11/29/2000)
Appearances: 	Michael 	Calof, 	Attorney, 	for 	Mario 	Mercado 	and
Candice 	Bloch; 	California 	Teachers 	Association, 	by 	Charles
Gustafson, 	Attorney, 	for 	Hart 	District 	Teachers 	Association.
Before 	Gary M. 	Gallery, 	Administrative 	Law 	Judge.
FINDINGS 	OF 	FACT
Two 	counselors 	contend here 	that 	the 	exclusive
representative 	breached 	its 	duty 	of 	fair 	representation when 	it
settled 	their 	grievances 	without 	notice 	to 	them 	or 	obtaining
their 	consent. 	They 	also 	complained 	about 	post 	settlement
failure 	to 	provide 	information.
These 	cases 	commenced 	on 	June 	15, 	1999, 	when 	Mario 	Mercado
(Mercado) 	and 	Candice 	Bloch 	(Bloch) 	filed 	unfair 	practice 	charges
against 	the 	Hart 	District 	Teachers 	Association 	(Association).
After 	investigation, 	and 	on 	January 	28, 	2000, 	the 	general 	counsel
of 	the 	Public 	Employment 	Relations 	Board 	(Board 	or 	PERB)

consolidated 	the
	charges
	and
	issued
	a
	complaint
	against 	the
Association.
	The
	complaint
	alleges
	that
	Mercado
	and 	Bloch
	are
counselors
	at
	the
	William
	S.
	Hart
	Union 	High
	School
	District
(District).
	On
	or
	about
	July
	30, 	1998,
	Mercado
	and
	Bloch
	jointly
filed
	a
	grievance
	against
	the
	District,
	alleging
	it
	had
	violated
the
	collective
	bargaining
	agreement
	(CBA)
	by
	promoting
	two
teachers
	into
	counseling
	positions 	instead
	of
	laterally
transferring
	Mercado
	and 	Bloch.
	The
	complaint
	further 	alleged
misrepresentations
	by
	Association
	representatives
	regarding
selection
	of
	an
	arbitrator.
	On
	January
	15, 	1999,
	the 	Association
settled
	the 	grievance 	with 	the
	District.
	On
	January
	19, 	1999,
John
	Pletta
	(Pletta)
	informed
	Mercado
	and 	Bloch
	of 	the
settlement.
	It
	is
	alleged
	that,
	contrary 	to
	its
	practice, 	the
Association 	did
	not
	consult
	with
	Mercado
	or
	Bloch
	before
finalizing
	the 	settlement.
The
	complaint
	further 	alleges 	that
	during 	February
	1999,
Mercado 	and 	Bloch 	sought
	information
	from
	Chapter
	Services
Consultant
	Laura
	Terman 	(Terman)
	regarding 	Bloch's 	willingness 	to
take
	a
	position 	at
	Valencia
	High 	School 	(Valencia) 	and
information 	about
	the 	settlement.
	It 	is
	alleged 	that
	Terman
refused 	to 	provide 	the 	information.
The
	complaint
	alleges 	that
	on March 	3, 	1999,
	Association
President 	Orval 	Garrison 	(Garrison) 	denied 	Mercado's 	request 	to
speak 	before 	the 	Association's 	Executive 	Council 	regarding 	the
handling 	of 	the 	grievance.
	The
	complaint 	alleges 	that 	the
forgoing 	conduct 	of 	the 	Association 	constitutes 	violation 	of 	its
2

duty 	of 	fair 	representation guaranteed by 	Educational 	Employment
Relations 	Act 	(EERA 	or Act) 	section 	3544.9, 1 	in 	violation 	of
section 	3543. 6 (b) . 2
The 	Association 	filed 	its 	answer 	on 	February 	22, 	2000,
denying 	any violation 	of 	the 	Act. 	A settlement 	conference 	did
not 	resolve 	the 	dispute. 	Formal 	hearing 	was 	held 	on 	July 	24 	and
25, 	2000, 	in 	Los 	Angeles, 	California. 	Post-hearing 	briefs 	were
filed 	on 	September 	15, 	2000, 	and 	the 	matter 	submitted 	for
decision.
FINDINGS 	OF 	FACT
Mercado 	and 	Bloch 	are 	employees 	within 	the 	meaning 	of
section 	3540.l(j). 	The 	Association 	is 	an 	exclusive
representative 	within 	the 	meaning 	of 	section 	3540.l(e) 	of 	an
appropriate 	unit 	of 	employees, 	including 	counselors. 	Mercado 	has
been 	a 	counselor 	within 	the 	District 	since 	1986. 	Bloch 	has 	been
a 	counselor 	for 	over 	six years 	in 	the 	District.
1All 	references 	are 	to 	the 	Government 	Code 	unless 	stated
otherwise. 	EERA 	is 	codified 	at 	section 	3540 	et. 	seq. 	Section
3544.9 	provides:
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.
2 Section 	3543.6 	provides 	that 	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.
3

Bob 	Lee 	is 	the 	District 	superintendent. 	Michael 	von 	Buelow
(von 	Buelow) 	is 	the 	assistant 	superintendent 	of 	personnel 	for 	the
District. 	Paul 	Priesz 	(Priesz) 	is 	the 	principal 	at 	Valencia.
Pletta 	is 	grievance 	chair 	for 	the 	Association.
Section 	14.4 	of 	the 	operative 	CBA provides:
Criteria 	in 	the 	following 	order 	shall 	be
utilized 	to 	determine 	which 	unit 	member 	may
receive 	a 	voluntary 	transfer: 	appropriate
credential, 	major/minor, 	previous 	teaching
experience 	in 	the 	subject 	area, 	and 	prior
evaluations. 	When 	qualifications 	are
relatively 	equal, 	needs 	of 	the
District/school, 	length 	of 	service 	to 	the
District, 	and 	length 	of 	service 	teaching 	in
the 	subject 	area 	shall 	be 	determining
factors. [JJ
A transfer 	is 	defined 	in 	the 	CBA 	as:
a 	change 	from 	the 	unit 	member's
assigned 	school 	to 	another 	school 	within 	the
District 	and 	within 	the 	same 	job
classification. 	Job 	classification, 	for
purposes 	of 	this 	Article, 	refers 	to 	a
teaching 	position, 	a 	counseling 	position, 	a
librarian 	position, 	a 	psychologist 	position,
or 	a 	school 	district 	nurse 	position.
3 The 	operative 	CBA 	expired 	June 	30, 	2000. 	Section 	14.4 	of
the 	preceding 	CBA provided:
Crite 	a 	for 	transfer, 	without 	order 	of
preference, 	shall 	include 	but 	not 	be 	limited
to: 	Training, 	major 	and/or 	minor 	fields,
credentials, 	degrees, 	evaluations, 	health,
co-curricular 	and 	other 	special 	competencies,
experience 	in 	and 	outside 	the 	District,
District 	affirmative 	action goals, 	particular
educational 	needs 	of 	a 	school 	or 	department
or 	the 	District, 	and, 	where 	practicable,
advice 	and 	counsel 	of 	appropriate 	faculty
personnel 	and/or 	departments.
4

Section
	33.4
	of 	the
	CBA
	provides:
The
	provisions
	of
	this
	Agreement 	and
	rules
which
	are
	designed
	to
	implement
	this
Agreement
	shall
	be
	applied
	equitably.
The
	events 	giving
	rise
	to
	these
	combined
	unfair 	practice
charges
	commenced
	in
	the 	spring
	of
	1998,
	when
	the
	District
	posted
an
	announcement
	of
	"Certificated
	Transfer
	Opportunity"
	for
	two
counselor
	positions 	at
	Valencia.
	The
	announcement
	stated 	that
each
	candidate
	must
	possess
	a
	valid
	pupil 	personnel
	services
(PPS)
	credential.
Bloch
	applied 	for
	the
	transfer.
	A
panel 	of
	District
employees,
	including 	Priesz, 	selected
	Kathy
	Stroh
	(Stroh) 	and
Kathleen
	Ferry 	(Ferry).
	Both 	had
	served 	as
	teachers 	in
	the
District,
	and 	had
	just
	completed
	the
	PPS
	training.
Bloch,
	believing
	she
	was 	more
	qualified,
	filed
	a
	grievance
on
	June
	25, 	1998.
	The
	Association 	also
	filed
	a
	grievance
	that
same
	day.
	By
	July
	9,
	1998,
	after
	discussion 	with 	the
Association, 	the
	District
	repeated 	the
	entire 	selection
	process,
including 	posting
	and
	interviewing.
	Mercado
	applied 	for
	one
	of
the
	positions 	at 	this
	time.
After 	the 	applicants
	were
	interviewed,
	Mercado 	and 	Bloch
were
	notified
	by
	Priesz 	that
	the 	persons
	selected
	were
	the
	same
as
	in 	the 	previous 	selection.
On
	July
	30, 	1998, 	Mercado 	and 	Bloch
	filed
	a
	joint
	Level
	1
grievance 	before 	Priesz. 	Their 	grievance 	contended
	that 	the
transfer 	provision
	was
	not 	followed 	in 	the 	selection 	of 	the
	two
counselors, 	citing 	sections 	14.4 	and 	33.4 	of 	the
	CBA. 	As 	remedy,
5

the 	grievants 	requested 	that 	the 	counseling 	positions 	be 	offered
to 	the 	two 	most 	qualified 	candidates, 	letters 	of 	reprimand 	be
given 	to 	Priesz 	and 	von 	Buelow, 	and 	a 	fine 	of 	$200 	be 	levied
against 	the 	District 	and 	paid 	to 	the 	American 	Cancer 	Society.
The 	District 	invited 	Garrison 	to 	review 	the 	selection
process, 	including 	the 	criteria 	used. 	Garrison 	told 	von 	Buelow
that, 	while 	the 	process 	and 	factors 	employed 	appeared 	to 	be
allowable 	by 	the 	CBA 4
1 	he 	did 	not 	think 	Mercado 	or 	Bloch would
accept 	the 	weight 	given 	to 	those 	factors.
The 	Association 	did 	not 	file 	a 	grievance 	on 	its 	own
behalf. 5 	Garrison 	told 	the 	two 	grievants 	he 	did 	not 	think 	they
had 	a 	strong 	case.
On August 	24, 	1998, 	von 	Buelow wrote 	to 	both 	Bloch 	and
Mercado 	in 	reply 	to 	their 	request 	for 	the 	reasons 	they 	were 	not
transferred 	to 	Valencia. 	While 	the 	scores 	for 	each 	were 	slightly
different, 	the 	essence 	is 	the 	same. 	Von 	Buelow 	stated 	in 	each:
As 	I 	am 	able 	to 	determine, 	the 	essential
reason 	is 	that 	you 	did 	not 	finish 	in 	the 	top
two 	in 	the 	selection process. 	Seniority did
not 	become 	a 	factor, 	because 	all
qualifications 	were 	determined 	not 	to 	be
equal.
Von 	Buelow 	then 	set 	forth 	six 	categories 	used 	by 	the
selection 	committee 	and 	the 	ratings 	each 	grievant 	received. 	The
4 Von 	Buelow 	testified 	that 	Garrison 	told 	him 	he 	thought
there 	might 	be 	enough 	"wiggle 	room" 	for 	the 	Dist 	ct's 	reading 	of
the 	transfer 	section.
5 Pletta 	testified 	that 	the 	Association 	filed 	a 	grievance 	on
the 	first 	selection process 	because 	there 	was 	a 	psychologist 	who
had 	interviewed 	for 	the 	position 	in 	the 	first 	go 	around.
6

categories 	were: 	interview, 	written 	response, 	credential,
experience, 	evaluations, 	and 	references.
Around August 	14, 	1998, 	Garrison 	requested 	that 	Bloch 	and
Mercado 	not 	contact 	him 	about 	the 	grievances. 	His 	reasoning 	was
that, 	since 	he 	sat 	on 	the 	grievance 	review 	team, 	he 	should 	remain
neutral 	while 	Pletta 	moved 	the 	grievance 	along.
Around August 	27, 	1998, 	Bloch 	sent 	a 	chronology 	of 	events 	to
Garrison. 	It 	listed 	by 	dates, 	her 	contact 	with 	the 	District 	or
the 	union. 	She 	noted 	that 	on August 	21 	she 	met 	with 	von Buelow
for 	over 	an 	hour 	and 	one-half. 	In 	their 	discussions, 	von Buelow
told 	her 	he 	would 	do 	everything 	in 	his 	power 	to 	help 	her 	achieve
her 	goal 	of 	being 	a 	high 	school 	counselor. 	He 	asked 	her 	if 	she
had 	any 	schools 	of 	preference, 	and 	she 	told 	him Hart 	High 	School
(Hart), 	Valencia 	or 	Stevenson Ranch 	High 	School 	(Stevenson
Ranch) . 6 	At 	some 	point, 	this 	same 	information was 	provided 	to
Pletta.
Bloch, 	Mercado 	and 	Pletta 	presented 	the 	grievances 	to 	the
grievance 	committee 	around 	the 	first 	week 	of 	October. 	They 	felt
the 	District 	had 	clearly misapplied 	the 	terms 	of 	the 	CBA.
The 	grievance 	committee 	agreed 	that 	the 	dispute 	should 	go 	to
arbitration. 	This 	recommendation was 	advanced, 	per 	protocol, 	to
6 In 	her 	chronicle, 	Bloch 	wrote 	that 	she 	did 	not 	understand
that 	von 	Buelow was 	actually 	offering 	her 	alternative
assignments.
7

the 	executive 	board. 7 	The 	executive 	board 	agreed 	to 	send 	the
grievance 	to 	arbitration.
The 	District 	and 	the 	Association 	requested 	the 	services 	of
the 	State 	Mediation 	and 	Conciliation 	Service 	on 	October 	191 	1998.
Seven 	days 	later 	the 	service 	sent 	the 	parties 	a 	set 	of
arbitrators 	for 	selection.
At 	the 	same 	time 1 	Garrison 	and 	Pletta 	were 	working 	on 	a
resolution 	of 	the 	grievance 1 	which was 	advanced 	to 	von 	Buelow on
November 	17 1 	1998. 	This 	effort 	to 	resolve 	the 	grievance 	was
never 	related 	to 	Bloch 	or 	Mercado 1 	despite 	numerous 	requests
about 	the 	status 	of 	the 	case. 	On 	five 	occasions 	between
November 	30 1 	1998 1 	and 	January 	11 1 	1999 1 Mercado 	wrote 	to 	Pletta
about 	the 	arbitration 	proceedings. 	On December 	1 1 	1998 1 	Pletta
advised 	Mercado 	that 	an 	arbitrator 	had 	been 	selected. 	On
December 	18 1 	1998, 	Pletta 	told 	Mercado 	the 	union 	was 	waiting 	for
a 	response.
7 The 	formal 	protocol 	is 	set 	forth 	in 	an 	internal 	union
statement 	called 	"Criteria 	for 	proceeding 	to 	binding
arbitration." 	Within 	the 	criteria 	is 	provided 	the 	following
statement:
In 	the 	event 	that 	the 	Executive 	Board votes
not 	to 	take 	the 	case 	to 	arbitration 1 	the
grievant 	shall 	have 	the 	right 	to 	appeal 	the
decision 	to 	the 	Executive 	Council 1 	adhering
to 	contractual 	timelines.
The 	same 	criteria 	also 	provides 	that:
The 	Association 	recognizes 	that 	it 	has 	the
right 	and 	duty 	fairly 	to 	represent 	all
members 	in 	good 	faith. 	The 	Association 	also
recognizes 	that 	it 	has 	the 	right 	to 	reject
pursuing 	grievance 	to 	arbitration 	if 	there 	is
a 	rational 	basis 	for 	the 	rejection.
8

On 	January 	15, 	1999, 	Garrison 	and von 	Buelow 	signed 	a
"Resolution 	to 	Grievance" 	which 	settled 	the 	Bloch 	and Mercado
grievances. 	The 	settlement 	consisted 	of 	three 	parts, 	the 	first
of 	which 	provided 	that 	Mercado 	would 	be 	offered 	a 	transfer 	to
Valencia, 	effective 	at 	the 	beginning 	of 	the 	1999-2000 	school
year. 	The 	second 	provided 	that 	Bloch 	would 	be 	offered 	a 	transfer
to 	the 	next 	comprehensive 	high 	school 	that 	was 	opened. 8
Finally, 	the 	District 	and 	the 	Association 	agreed 	to 	reopen
negotiations 	on 	section 	14.4 	to 	clarify 	the 	transfer 	article.
Garrison 	testified 	he 	settled 	the 	grievance 	because 	he
believed 	the 	terms 	were 	consistent 	with what 	the 	grievants 	wanted
and 	the 	District 	did 	not 	want 	to 	be 	"dragged" 	through
arbitration. 	He 	said 	he 	had 	to 	argue 	with 	the 	District 	to 	get
them 	to 	settle. 	Pletta 	told Mercado 	on 	January 	19, 	1999, 	that
the 	grievance 	had 	been 	settled.
Sometime 	thereafter, 	Terman 	told 	Bloch 	and 	Mercado 	that 	she
understood 	the 	Association 	had 	conferred with 	Bloch 	and 	Mercado
before 	resolving 	the 	grievance.
The 	findings 	hereafter 	relate 	to 	Mercado's 	and 	Bloch's
efforts 	to 	obtain 	information 	from 	the 	Association. 	Both
grievants 	were 	very 	upset 	that 	the 	grievance 	had 	been 	settled
without 	their 	knowledge 	or 	input.
On 	January 	27, 	1999, 	Mercado 	wrote 	to 	Terman 	requesting
information 	on 	the 	authority 	of 	the 	Association 	to 	resolve
8 Two 	schools 	were 	in 	the 	planning 	stage, 	one 	of 	which 	was
Stevenson 	Ranch.
9

grievances 	and 	information 	asked 	by 	Bloch 	regarding 	the
arbitration 	process. 	Terman 	responded 	with 	some 	material 	and
Mercado, 	on 	February 	3, 	1999, 	reiterated 	his 	request 	for
material.
On 	January 	29, 	1999, 	Terman 	sent 	to 	Mercado 	a 	response 	to
his 	January 	27 	request. 	Included was 	a 	copy 	of 	the 	grievance
procedures 	of 	the 	CBA, 	the 	Association 	constitution, 	bylaws 	an
the 	criteria 	for 	proceeding 	to 	binding 	arbitration. 	Included 	i
this 	provision 	is 	the 	right 	of 	the 	executive 	board 	to 	seek 	a
settlement 	of 	the 	grievance 	prior 	to 	arbitration.
d
n
Bloch met 	with 	Terman 	on 	February 	3, 	1999. 	During 	that
meeting 	Terman 	told 	Bloch 	that 	she 	understood 	Bloch would 	not
accept 	a 	counselor 	position 	at 	Valencia. 	Bloch 	wrote 	to 	Terman
two 	days 	later. 	She 	denied 	she 	would 	not 	accept 	such 	an
assignment 	and 	requested 	a 	meeting 	with 	the 	party who 	had
provided 	the 	incorrect 	information.
On 	February 	4, 	1999, 	Bloch wrote 	to 	Garrison 	requesting
information 	regarding 	the 	parties 	involved 	in 	selecting 	the
arbitrator, 	documentation 	regarding 	who 	was 	selected, 	and
documentation 	regarding 	possible 	dates 	for 	arbitration, 	dates 	of
meetings 	and 	names 	of 	participants 	who 	approved 	resolution 	of 	the
grievance 	and 	dates 	when 	he 	conferred with 	the 	grievants 	about
the 	potential 	settlement. 	This 	was 	requested 	by 	e-mail 	the 	same
date.
By 	separate 	letter 	that 	same 	day, 	Bloch 	requested 	from
Garrison 	the 	rationale 	for 	offering 	Mercado 	the 	job 	at 	Valencia
10

(per 	the 	agreement) 	when 	she 	ranked 	higher 	in 	the 	grievance
process 	and 	she 	was 	the 	original 	grievant.
Bloch 	also 	inquired 	of 	Pletta 	for 	documentation. 	Pletta
replied 	twice 	to 	such 	request, 	on 	February 	7, 	and 	again 	on
February 	17, 	1999, 	suggesting 	her 	request 	of 	him 	and 	Garrison 	be
directed 	to 	Terman.
Mercado 	complained 	to 	Terman 	on 	February 	8, 	1999, 	about 	the
cancellation 	of 	a 	meeting 	with 	a 	California 	Teachers 	Association
attorney 	following 	the 	cancellation 	of 	an 	earlier 	meeting 	on
January 	27. 	He 	expressed 	confusion 	of 	her 	role 	as 	a 	consultant
and 	reiterated 	his 	request 	for 	information 	outlined 	above.
That 	same 	day 	Terman 	notified Mercado 	that 	on November 	17,
1998, 	Pletta, 	Garrison 	and von 	Buelow met 	to 	select 	an 	arbitrator
and 	that 	William Rule 	was 	selected.
On 	February 	9, 	1999, 	Bloch 	again 	wrote 	to 	Garrison
expressing 	shock 	and 	dismay 	that 	the 	Association 	had 	settled 	the
grievance 	without 	her 	input. 	She 	requested 	rationale 	for 	seeking
resolution. 	She 	asked 	for 	copies 	of 	agendas 	and 	minutes 	of 	all
Association meetings 	from 	June 	1998 	through 	February 	1999, 	the
same 	information 	requested 	earlier 	and 	association 	by-laws 	or
contract 	language 	authorizing 	the 	Association 	to 	seek 	resolution.
On 	February 	17, 	1999, 	Terman 	sent 	Mercado 	copies 	of 	the
Association 	agendas 	and 	minutes. 	Terman 	testified 	that 	she 	did
not 	maintain 	the 	Association's 	operative 	documents 	in 	her 	office.
Rather, 	she 	had 	to 	rely 	on Garrison 	and 	Pletta 	to 	generate 	the
11

responses,
	she
	as
	the 	designated
	person,
	was
	to
	provide
	to
	Bloch
and 	Mercado.
On
	February
	25, 	1999,
	Bloch
	wrote
	to
	Garrison
	requesting
	the
opportunity
	to
	meet
	with 	the
	party
	or
	parties
	who
	incorrectly,
she
	asserted,
	provided
	Terman
	with 	information
	that
	Bloch would
not
	accept
	a
	counselor
	position 	at
	Valencia.
	She
	wanted
	his
assistance 	to
	clear
	up 	what
	she
	called
	an
	"untruth."
On
	February
	25, 	1999,
	Bloch wrote
	again
	to
	Terman
	correcting
the 	misinformation
	about
	her 	willingness 	to
	take
	a
	Valencia
position.
	She
	stated 	that
	she
	had
	written
	two
	letters
	to
Garrison 	with
	no
	response.
	She
	had
	written
	two
	letters
	to
	Pletta
and
	was
	directed 	to
	Terman.
	Bloch 	complained
	that
	she 	had
written
	two
	letters
	to
	Terman
	and
	she 	had
	not 	responded.
	She
again 	requested 	help.
On
	March 	5, 	1999, 	von
	Buelow
	offered
	Bloch
	a
	position 	in
	the
next
	new
	comprehensive
	high 	school.
	He
	requested
	a
	reply
	by
March
	17, 	1999. 	Bloch 	responded
	that
	since
	a 	new
	high 	school
would
	not
	be
	built
	for 	several 	years,
	she
	felt
	it
	premature
	to
accept 	the
	offer.
ISSUES
Did
	the 	Association 	breach
	its
	duty 	of
	fair
	representation
by
	(1)
	settling
	the 	grievance, 	or
	(2)
	by
	its
	responses 	to
Mercado's 	and
	Bloch's 	requests 	for 	information?
12

CONCLUSIONS 	OF 	LAW
The 	EERA 	contains 	a 	statutory 	expression 	of 	the 	duty 	of 	the
exclusive 	representative 	to 	fairly 	represent 	each member 	of 	the
unit. 	Section 	3544.9 	provides:
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.
In 	Castro 	Valley Unified 	School 	District 	(1980) 	PERB
Decision No. 	149 	(Castro 	Valley), 	PERB 	articulated 	its 	rule 	on
the 	duty 	of 	fair 	representation 	in 	the 	handling 	of 	grievances.
Citing 	Rocklin 	Teachers 	Professional 	Association 	(Romero) 	(1980)
PERB 	Decision No. 	124, 	PERB 	stated:
. 	a 	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.
Federal 	courts 	have 	held 	that, 	"Without 	any
hostile 	motive 	of 	discrimination 	and 	in
complete 	good 	faith, 	a 	union may 	nevertheless
pursue 	a 	course 	of 	action 	or 	inaction 	that 	is
so 	unreasonable 	and 	arbitrary 	as 	to
constitute 	a 	violation 	of 	the 	duty 	of 	fair
representation. 	A union may 	refuse 	to
process 	a 	grievance 	or 	handle 	the 	grievance
in 	a 	particular manner 	for 	a 	multitude 	of
reasons, 	but 	it 	may 	not 	do 	so 	without 	reason,
merely 	at 	the 	whim of 	someone 	exercising
union 	authority." 	[Ci tat ion.]
However, 	an 	employee 	does 	not 	have 	an
absolute 	right 	to 	have 	a 	grievance 	taken 	to
arbitration 	regardless 	of 	the 	provisions 	of
the 	applicable 	collective 	negotiations
agreement. 	[Citation.] 	An 	exclusive
representative's 	reasonable 	refusal 	to
proceed with 	arbitration 	is 	essential 	to 	the
operation 	of 	a 	grievance 	and 	arbitration
system. 	[Citation.]
13

An 	exclusive 	representative's 	duty 	of 	fair
representation 	does 	not 	contemplate
[t]he 	complete 	satisfaction 	of 	all
who 	are 	represented. 	A wide
range 	of 	reasonableness 	must 	be 	allowed
to 	a 	statutory bargaining 	representative
in 	serving 	the 	unit 	it 	represents
subject 	always 	to 	complete 	good 	faith
and 	honesty 	of 	purpose 	in 	the 	exercise
of 	its 	discretion.
The 	charging 	parties 	attempt 	to 	make 	their 	case 	for 	a 	breach
of 	the 	duty 	of 	fair 	representation 	by 	highlighting 	the
Association's 	posture 	on 	certain 	aspects 	of 	its 	case.
Initially, 	they 	find 	incongruous 	Garrison's 	settlement 	of
the 	grievance 	even 	though 	Pletta 	and 	James 	Seely 	(Seely), 	chief
negotiator 	for 	the 	Association, 	thought 	the 	grievance 	had 	merit.
Both 	the 	grievance 	committee 	and 	the 	executive 	board 	thought 	the
grievance 	had 	merit 	as 	both 	approved 	submitting 	the 	issue 	to
arbitration. 	Yet, 	the 	merits 	of 	the 	grievance 	were 	in 	question
before 	either 	committee 	passed 	upon 	the 	issue. 	Garrison,
Association 	president, 	expressed 	his 	opinion, 	at 	the 	time 	the
grievance 	was 	filed, 	that 	the 	grievance 	did 	not 	have 	much 	merit.
Further, 	the 	union 	itself 	did 	not 	file 	a 	grievance 	on 	the 	issue.
Finally, 	the 	executive 	board 	approved 	the 	settlement, 	after
Garrison 	had 	secured 	the 	agreement 	with 	von 	Buelow. 	Thus,
Garrison 	was 	not 	the 	only party 	involved 	in 	reaching 	and
approving 	agreement 	with 	the 	District.
Charging 	parties 	question 	Garrison's 	motives 	by 	finding
inconsistencies 	in 	his 	testimony 	regarding 	Bloch's 	preferences
for 	transfer. 	Garrison may 	have 	related 	his 	discussion 	with
14

Bloch 	to 	a 	time 	pre-dating 	the 	filing 	of 	her 	second grievance.
Nonetheless, 	she 	told 	Garrison, 	via 	the 	written 	journal 	presented
to 	him 	on August 	27, 	1998, 	that 	she 	had 	earlier 	told von 	Buelow
of 	her 	willingness 	to 	accept 	an 	assignment 	at 	Stevenson 	Ranch.
Charging 	parties 	question 	Garrison's 	priorities 	when 	he
testified 	that 	the 	Association 	was 	sensitive 	to 	the 	District's
desire 	not 	to 	be 	dragged 	through 	arbitration. 	On 	this 	point 	I
see 	no 	reflection 	of 	arbitrary 	behavior 	by 	Garrison. 	As 	noted
below, 	Garrison 	knew 	both Mercado 	and 	Bloch wanted 	to 	be 	high
school 	counselors. 	He 	knew 	both 	wanted 	to 	go 	to 	Valencia, 	but
that 	Bloch might 	be 	willing 	to 	take 	an 	alternative 	location. 	The
settlement 	he 	negotiated 	with 	the 	District 	allowed 	for 	both 	to
occur, 	with 	Bloch 	taking 	an 	assignment 	at 	a 	new 	school 	then
expected 	to 	be 	built.
Charging 	parties 	then 	assert 	that 	Garrison 	violated 	the 	duty
of 	fair 	representation 	by 	allowing 	the 	District 	to 	unilaterally
change 	the 	crite 	a 	for 	the 	transfer 	in 	violation 	of 	the 	contract
prohibition 	against 	discrimination 	and 	the 	Government 	Code
section 	against 	discrimination.
This 	argument 	is 	rejected. 	Garrison 	had 	the 	full 	backing 	of
the 	executive 	board 	to 	settle 	the 	grievance. 	That 	settlement
brought 	an 	end 	to 	the 	immediate 	dispute 	and 	salvaged 	the 	union's
right 	to 	bring 	to 	the 	table 	the 	question 	of 	the 	interpretation of
the 	transfer 	section. 	Also, 	the 	settlement 	gave 	to 	the 	grievants
almost 	what 	they 	wanted. 	Mercado 	was 	to 	get 	a 	counselor 	position
at 	Valencia. 	Consistent 	with 	what 	Bloch 	had 	expressed 	in August
15

to 	von 	Buelow, 	and 	to 	Garrison, 	she 	would 	receive 	a 	position 	at
Stevenson 	Ranch. 	As 	noted, 	the 	duty 	of 	fair 	representation 	does
not 	contemplate 	complete 	satisfaction 	for 	all 	represented. 	A
wide 	range 	of 	reasonableness 	must 	be 	allowed 	the 	representative,
subject 	to 	good 	faith 	and 	honesty 	of 	purpose. 	(Castro 	Valley.)
Charging 	parties 	allege 	the 	union's 	position 	that 	it 	got
what 	the 	grievants 	wanted 	is 	totally 	inconsistent 	with 	the 	record
in 	that 	Bloch 	never 	gave 	up 	her 	desire 	to 	be 	transferred 	to
Valencia 	as 	one 	of 	the 	two 	counselors 	to 	be 	selected 	in 	the
summer 	of 	1998. 	Garrison's 	testimony 	is 	inconsistent 	in 	that 	he
said 	he 	got 	that 	impression 	from 	conversations 	with 	Bloch, 	and
with 	her 	writing 	journal, 	both 	of 	which 	preceded 	her 	filing 	the
grievance 	leading 	to 	the 	unfair 	practice 	charge. 	This 	is 	a
misinterpretation 	of 	the 	facts.
Bloch's 	(and Mercado's) 	grievance 	on 	the 	second 	selection of
Stroh 	and 	Ferry was 	filed 	on 	July 	30, 	1998. 	Bloch's 	journal 	was
sent 	to 	Garrison 	on August 	27, 	1998. 	The 	journal 	post-dated 	the
filing 	of 	the 	grievance, 	and 	reflects 	a 	willingness 	by 	Bloch 	to
take 	an 	assignment 	other 	than 	to 	Valencia. 	Indeed, 	it 	reflects
her 	willingness 	to 	take 	an 	assignment 	to 	Stevenson 	Ranch.
Charging 	parties 	assert 	the 	settlement 	of 	the 	grievance 	to
give 	Bloch 	a 	counselor 	position 	at 	Stevenson Ranch 	was 	illusory.
Yet, 	at 	the 	time 	the 	settlement 	agreement 	was 	consummated,
Stevenson Ranch 	(and 	another 	school) 	was 	scheduled 	to 	be 	built.
The 	failure 	of 	citizens 	of 	the 	District 	to 	pass 	a 	necessary 	bond
derailed 	the 	projects. 	This 	does 	not 	render 	the 	term of 	the
16

agreement
	to
	be
	illusory
	at
	the
	time
	it
	was
	consummated.
	Bloch
thought
	the
	possibility
	of
	building
	a
	new
	school
	was
	certain
enough
	in
	August 	1998,
	to 	indicate
	a
	willingness 	to
	accept
	an
assignment
	to
	that
	school.
	Garrison's
	belief,
	as 	well 	as
	von
Buelow's,
	in
	January
	1999,
	regarding 	the 	school,
	was
	not
unjustified 	at 	that
	time.
Charging
	parties 	assert
	the
	union
	admitted
	its
	unfair
practice
	by
	Garrison's
	concession
	that
	settlement
	of 	the
grievance 	should
	have
	been
	preceded
	by
	consultation
	with
	Bloch
and 	Mercado,
	and 	by
	the
	union's 	denial 	of
	an
	opportunity
	to
appeal
	the 	settlement
	agreement
	decision 	to 	the 	executive 	board.
Even
	though
	Garrison 	did
	not 	secure 	permission
	to
	settle
	the
case 	before 	reaching
	agreement
	with 	the
	District, 	that 	factor
alone 	cannot
	rise
	to
	arbitrary
	conduct.
	Very
	clearly,
	Mercado
and
	Bloch wanted
	to
	be
	high 	school
	counselors.
	Just
	as
	clearly
Mercado
	wanted
	to
	go
	to
	Valencia
	and 	Bloch
	indicated
	a
willingness 	to
	go
	to
	Stevenson
	Ranch.
	Reaching 	agreement
	with
the
	District
	on
	behalf 	of
	Mercado 	and 	Bloch does 	not
	constitute
arbitrary
	conduct.
	The
	agreement 	gave 	Mercado 	and 	Bloch what
they
	wanted 	from
	the 	onset, 	to
	be
	high 	school 	counselors.
Mercado
	complains
	that
	he
	did 	not
	want
	to
	see 	the 	language
of 	the
	agreement
	subject 	to 	negotiations 	again.
	He
	was
instrumental 	in 	drafting 	the 	then
	existing
	language
	upon 	which
his 	grievance
	was
	based. 	Yet,
	that
	language
	is
	not 	Mercado's.
It
	belongs 	to 	the 	exclusive 	representative.
	The
	union 	obviously
felt 	the 	ambiguity of 	the 	provision 	gave 	"wiggle 	room"
	to 	the
17

District, 	and 	sought 	to 	revisit 	the 	provision 	at 	the 	negotiations
table 	to 	clarify 	the 	issue. 	Acknowledgment 	of 	this 	ambiguity 	was
expressed 	by Garrison 	before 	the 	second 	grievance 	was 	filed.
In 	defense 	of 	this 	complaint, 	the 	Association 	examines 	each
assertion 	in 	the 	pleading 	and 	finds 	the 	evidence 	does 	not 	support
the 	allegation, 	or 	if 	it 	does, 	the 	consequences 	do 	not 	meet 	the
arbitrary 	standard 	to 	find 	a 	violation.
The 	complaint 	alleges 	that 	on 	or 	about 	December 	1, 	1998,
Pletta, 	notified Mercado 	and 	Bloch 	that 	an 	arbitrator 	had 	been
selected 	for 	their 	grievance. 	This 	allegation 	is 	true. 	In 	fact,
an 	arbitrator 	had 	been 	selected by 	the 	District 	and 	the
Association 	on November 	17, 	1999.
The 	complaint 	alleges 	that 	on 	February 	26, 	1999, 	the
Association, 	acting 	through 	its 	agent 	Charles 	Gustafson
(Gustafson) 	indicated 	that 	the 	Association 	had 	not 	selected 	an
arbitrator. 	This 	allegation 	has 	not 	been 	established by 	any
evidence. 	Moreover, 	asserts 	the 	Association, 	both 	Mercado 	and
Bloch knew 	by 	that 	time 	that 	the 	grievance 	had 	been 	settled.
They were 	informed by 	Pletta 	on 	January 	19, 	1999. 	So 	what 	harm,
asks 	the 	union, 	could 	either 	charging 	party 	have 	suffered 	on
February 	29 	if 	Gustafson 	had 	told 	them no 	arbitrator 	had 	been
selected?
On 	or 	about 	January 	11, 	1999, 	it 	is 	alleged, 	Mercado
e-mailed 	Pletta 	and 	asked 	when 	they would 	be 	meeting 	regarding
the 	grievance. 	Pletta 	did 	not 	respond. 	The 	complaint 	alleges
that 	on 	or 	about 	January 	14, 	1999, 	Mercado 	called 	Pletta 	to 	see
18

if 	an 	arbitration 	date 	had 	been 	set. 	Pletta 	indicated 	that 	he
had 	not 	heard 	anything. 	On 	January 	15, 	1999, 	the 	Association
settled 	the 	grievance 	by 	signing 	a 	settlement 	agreement 	with 	the
District. 	On 	January 	19, 	1999, 	Pletta 	informed 	Mercado 	and 	Bloch
of 	the 	settlement. 	It 	is 	alleged 	that, 	contrary 	to 	its 	practice,
the 	Association 	did 	not 	consult 	with Mercado 	or 	Bloch 	before
finalizing 	the 	settlement.
The 	charging 	parties 	failed 	to 	present 	any 	evidence 	in
support 	of 	the 	contention 	that 	the 	union's 	past 	practice 	was 	to
consult 	with 	grievants 	prior 	to 	settling 	a 	grievance. 	Garrison's
testimony 	that 	their 	consent 	should have 	been 	obtained 	does 	not
reflect 	a 	past 	practice 	that 	obtaining 	such 	consent 	existed.
The 	arbitration 	protocol 	authorizes 	the 	Association 	to
reject 	further 	arbitration 	pursuits 	if 	there 	is 	a 	rational 	basis
for 	doing 	so. 	In 	Oakland 	Education Association, 	CTA/NEA 	(1984)
PERB 	Decision No. 	447, 	PERB 	noted 	that 	the 	union 	has 	an
obligation 	to 	explain 	its 	actions 	in 	refusing 	to 	process 	a
grievance. 	The 	question 	is 	whether 	the 	union's 	judgment 	had 	a
rational 	basis, 	or 	was 	arbitrary 	or 	based upon 	invidious
discrimination, 	not 	whether 	the 	judgment 	was 	correct.
(Sacramento 	City 	Teachers 	Assn 	(Fanning) 	(1984) 	PERB 	Decision
No. 	428; 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees, 	Local 	2620 	(1988) 	PERB 	Decision No. 	683-S.)
In 	this 	case, 	Garrison's 	settlement 	of 	the 	grievance 	was
based 	upon 	his 	understanding 	that 	both Mercado 	and 	Bloch wanted
to 	be 	high 	school 	counselors. 	Both 	had 	wanted 	to 	go 	to 	Valencia,
19

but
	Bloch 	had
	expressed 	(to
	von
	Buelow
	and
	related
	to
	both
Garrison
	and
	Pletta)
	a
	willingness 	to
	go
	to
	Stevenson
	Ranch,
	a
school 	under
	plans
	to
	be
	constructed.
	The
	terms
	of 	the
settlement
	agreement
	achieved 	both
	goals. 	Garrison's 	settlement
of 	the 	grievance
	had
	a
	rational 	basis.
	It
	is
	not
	arbitrary,
discriminatory,
	nor
	in
	bad
	faith.
The
	complaint
	further 	alleges 	that
	on
	or
	about 	February
	3,
1999, 	Mercado
	and 	Bloch
	met
	with
	Terman
	to 	discuss 	the
settlement.
	Terman
	indicated
	that
	she
	had
	been 	informed
	that
Bloch
	would
	not 	accept
	a
	position 	at
	the 	Valencia 	school.
	Bloch
denied
	that
	she
	had
	indicated
	she
	would
	not 	take
	a
	position
	at
Valencia
	and
	asked
	for 	the
	name
	of 	the 	person
	who
	had
	provided
that
	information 	to
	Terman. 	Terman
	refused 	to
	provide
	that
information.
	It
	is
	alleged
	that
	on
	February
	5, 	1999, 	Bloch 	wrote
Terman
	a
	letter
	indicating
	she 	wanted
	to
	meet
	with 	the 	person
	who
provided
	Terman
	with 	information
	that
	she
	would
	not 	take
	a
position 	at
	the 	Valencia 	school.
	Terman
	did
	not 	respond
	to 	the
letter.
	On
	February
	25, 	1999, 	and
	March
	3, 	1999, 	Bloch
reiterated
	her 	request 	to
	Terman. 	Terman
	did 	not 	respond
	to
	the
letters.
The
	complaint
	further 	alleges 	that
	on
	February
	8, 	1999,
Mercado
	requested 	the 	minutes 	and 	agenda
	of 	the 	Association's
meeting 	from
	Seely. 	Seely 	indicated 	that
	Terman would
	provide
the 	information,
	and
	that 	Garrison 	told 	Seely 	not 	to 	get 	involved
with
	Mercado 	and 	Bloch's 	grievance.
	Terman
	did 	not 	provide 	the
information.
20

It
	is
	alleged
	that
	on
	February
	19, 	1999,
	Mercado
	again
requested 	the 	information, 	explaining
	that 	California
	Teachers
Association
	legal
	counsel
	had
	indicated
	that
	there
	was 	no
	reason
why
	the 	information
	should 	not
	be
	provided.
	Pletta
	did
	not
respond
	to
	Mercado's
	request.
These
	allegations
	give
	rise
	to
	two
	essential
	issues.
	First,
was
	Terman's
	refusal
	to
	tell
	Bloch
	who
	informed
	Terman
	that
	Bloch
did
	not
	want
	to
	go
	to
	Valencia
	constitute 	arbitrary,
	capricious
or 	discriminatory
	conduct? 	Secondly,
	was
	the
	union's
	response
	to
Bloch 	and
	Mercado's
	request 	for
	information
	a
	violation
	of
	its
duty 	of
	fair
	representation?
As
	to
	the
	first
	question,
	Terman's
	position
	was
	that 	there
was
	no
	one
	else
	as
	a
	source 	of 	information 	regarding 	Bloch's
willingness 	to
	accept
	an
	assignment
	at
	Valencia.
	Thus,
	there
	was
no
	point 	in
	responding
	to 	the 	question 	raised
	by
	Bloch. 	Terman's
belief
	was
	based
	upon
	Bloch's
	own
	assertions,
	which 	Bloch
	denies
ever
	making.
Even
	if
	I
	were
	to 	find
	Terman's
	version
	less 	credible 	than
Bloch's, 	the
	consequence
	would
	not
	affect
	the
	outcome
	in
	this
case.
	Terman's
	beliefs 	after
	the 	settlement
	agreement
	was
consummated
	are 	irrelevant 	to 	the 	union's 	duty 	of
	fair
representation.
	She 	was
	not 	involved 	in 	the 	settlement
discussions, 	nor
	in 	the
	consummation
	of 	the 	settlement 	agreement.
Garrison 	never
	testified 	that
	he
	made
	the 	agreement 	with 	the
District 	to 	settle
	the 	grievance 	because 	he 	thought 	Bloch
	did 	not
want
	to
	go
	to 	Valencia. 	Rather, 	he 	was 	under 	the 	impression, 	as
21

reflected
	in
	Bloch
1 s
	August
	27
	journal 	entry,
	that
	she
	would
accept
	a
	position
	at
	Stevenson
	Ranch.
	More
	importantly,
	Terman
may
	have
	been
	mistaken 	as
	to
	Bloch
1 s
	desires
	regarding 	Valencia.
Such
	mistaken
	belief
	does
	not
	rise
	to
	a
	arbitrary,
	discriminatory
or
	bad
	faith
	treatment
	towards 	Bloch.
As
	to
	the
	second
	issue
	regarding 	providing 	information
	to
Mercado
	and
	Bloch,
	it
	is
	very 	evident
	from
	the 	record
	that
	Bloch
and
	Mercado 	were
	pressing
	all
	the
	parties
	for 	similar
information.
	Bloch
	was
	pressing
	Garrison
	and
	Pletta
	for
information
	that
	was
	similar 	to
	the 	information
	sought
	by Mercado
from 	Terman. 	Under
	such
	circumstances,
	it
	does
	not
	seem
arbitrary 	that
	the
	union
1 s
	response
	was
	to
	try
	to 	coordinate
	a
single
	response.
	Terman
	made
	responses
	to
	both
	Mercado
1 s
	and
Bloch
1 s
	requests 	for 	information.
	Terman
	did
	not 	maintain
Association 	records
	in
	her
	office.
	She
	relied
	on
	Garrison
	and
Pletta
	for
	compiling
	the
	documents. 	That
	they
	were
	not 	complete
to
	either
1 s
	satisfaction
	does
	dot 	give
	rise
	to
	arbitrary
	conduct.
Mere
	negligence
	is
	not
	a
	breach 	of 	the 	duty 	of
	fair
representation.
	(Service
	Employees
	International
	Union,
	AFL-CIO
(Scates)
	(Pitts)
	(1983)
	PERB
	Decision
	No.
	341.)
The
	complaint
	alleges 	that
	on 	March
	3, 	1999,
	Garrison 	denied
Mercado's 	request 	to
	speak 	before 	the 	Association's 	Executive
Council 	regarding 	the 	handling 	of 	the 	grievance.
	There
	is,
however, 	no
	evidence 	presented
	by 	charging
	parties 	to 	support
22

this 	allegation. 	Mercado 	made 	no 	reference 	to 	such 	action 	by
Garrison. 9 	Accordingly, 	the 	allegation 	is 	dismissed.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	discussion 	and
conclusions 	of 	law 	and 	the 	entire 	record 	in 	this 	matter, 	the
complaints 	and 	unfair 	practice 	charges 	in 	Case 	Nos. 	LA-CO-801 	and
LA-CO-802, 	Mario 	Mercado 	v. 	Hart 	District 	Teachers 	Association
and 	Candice 	Bloch v. 	Hart 	District 	Teachers 	Association, 	are
hereby 	dismissed.
Pursuant 	to 	California 	Code 	of 	Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision 	and 	Order 	shall 	become
final 	unless 	a 	party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	within 	20 	days 	of 	service 	of 	this 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
In 	accordance 	with 	PERB 	regulations, 	the 	statement 	of
exceptions 	should 	identify by 	page 	citation 	or 	exhibit 	number 	the
portions 	of 	the 	record, 	if 	any, 	relied 	upon 	for 	such 	exceptions.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32300.)
9 The 	protocol 	for 	arbitration 	includes 	the 	right 	of
grievants 	to 	appeal 	a 	decision 	by 	the 	executive 	board 	to 	not
proceed 	to 	arbitration. 	I 	do 	not 	see 	that 	provision 	overriding
the 	right 	of 	the 	Association 	to 	settle 	the 	case 	before 	going 	to
arbitration. 	Here, 	the 	executive 	board, 	initially approved
taking 	the 	dispute 	to 	arbitration.
23

A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5 	p.rn.) 	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.)
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.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on
a 	party 	or 	filed 	with 	the 	Board 	itself. 	(See 	Cal. 	Code 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140, 	and 	32135 (c).)
24