Sacramento City Teachers Association (Marsh) (PERB 1458E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GEORGE RAYMOND MARSH, JR.,
Charging Party,
V.
SACRAMENTO CITY TEACHERS
ASSOCIATION,
Respondent.
Case No. SA-CO-448-E
PERB Decision No. 1458
August 28, 2001
Appearances: George Raymond Marsh, Jr., on his own behalf; California Teachers
Association by Diane Ross, Staff Attorney, for Sacramento City Teachers Association.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(Board) on appeal by George Raymond Marsh, Jr., (Marsh) of a Board agent's dismissal
(attached) of his unfair practice charge. The charge alleged that the Sacramento City Teachers
Association (Association) violated the Educational Employment Relations Act (EERA).1 The
charge did not state which section(s) of EERA the Association violated. However, based on
the information contained in the charge, as well as subsequent communications, the Board
agent addressed the charge as an alleged violation of the Association's duty of fair
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

representation, as set forth in BERA sections 3544.92 and 3543.6(b).3 The Association
allegedly violated BERA by failing to properly represent Marsh in a grievance against the
Sacramento City Unified School District.
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charge, and attachments, the warning and dismissal letters, Marsh's
appeal and the Association's response. The Board finds the Board agent's dismissal letter to be
free from prejudicial error and adopts it as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SA-C0-448-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
2EERA 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.
3Section 3543.6(b) provides:
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.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916)327-6377
April 30, 2001
Mr. George R. Marsh Jr.
4010 Adelheid Way
Sacramento, California 95821
Re: George Raymond Marsh, Jr. v. Sacramento City Teachers Association
Unfair Practice Charge No. SA-CO-448-E
DISMISSAL LETTER
Dear Mr. Marsh,
GRAY DAVIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 27, 2001. As Charging Party, you allege that the
Sacramento City Teachers Association (SCTA) violated the Educational Employment
Relations Act (EERA) 1 . The original charge did not state which section(s) ofEERA that
SCTA violated. However, based on the information contained in the charge as well as our
subsequent communications, I addressed the charge as an alleged violation ofSCTA's duty of
fair representation, which is set forth in section 3544.92 and enforced through section
3543.6(b)3.
I indicated to you in my attached letter dated April 18, 2001, that the above-referenced charge
did not state a prima facie case. You were advised that, ifthere 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 April 27, 2001, the charge would be dismissed.
I received your amended charge on April 27, 2001.
1 EERA is codified at Government Code section 3540 et seq. The text ofthe EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 EERA 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.
3 EERA section 3543.6(b) provides:
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 oftheir exercise of rights guaranteed by this chapter.

SA-CO-448-E
April 30, 2001
Page 2
Facts
The amended charge provides the following information.
From approximately March 30, 2000 to the present SCTA has failed to fairly represent you in
dealings with the Sacramento City School District. SCT A has failed to follow Article 4, the
grievance procedure,
of
the collective bargaining agreement by refusing to properly process
your grievance, and refusing to secure at the lowest administrative level solutions "which may
from time to time arise concerning the welfare and working relationships
of
those covered by
the agreement."
On June 7, 2001 you filed a grievance alleging that the you were being unfairly evaluated
regarding positive behavior plans, and that false information was placed in your personnel file
regarding the April 26, 2000 incident. On April 26, 2000, Vice Principal Richard Markwell
reprimanded you for filling out referrals in response to a fight between students earlier that
day.
In February 2001 you mailed to the regional and state offices
of
the California Teachers
Association certified letter asking for fair representation. You also phoned both the regional
and state offices
of
the CTA. You received no response to your certified mail or telephone
calls.
SCT A has failed and refused on or about March 6, 2000 to respond to your concerns regarding
the dissemination
of
false information by Principal Nancy Pequeno regarding a weapon
brought
to
school. 	SCT A has failed to process your grievance claim regarding the March 6,
2000 weapon on campus.
Discussion
The amended charge contains much
of
the same information contained in the original charge.
As with the original charge this amended charge fails to establish a prima facie violation
ofEERA.
The allegations you make against SCT A in this amended charge are the same made in the
original charge.
First, you allege that SCT A failed to represent you in regards to the grievance you filed in June
2000. Although the warning letter of April 1
gth
states that you filed the grievance in July 2000,
and the amended charge states that you filed in June 2000 the analysis is the same.
As Charging Party, you allege that the exclusive representative, SCT A, denied you the right to
fair representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125;

SA-CO-448-E
April 30, 2001
Page 3
United Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima facie violation
of
this section
of
EERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers
of
Los Angeles
(Collins), the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[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.
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a Charging Party:
"
...
must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid
of
honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
None
of
the information provided in the originai charge demonstrated that SCT A's actions
were without a rational basis or devoid
of
honest judgment. Also, in the amended charge you
provide no additional information demonstrating that SCTA's actions were without a rational
basis or devoid
of
honest judgment.
Second, in the amended charge you reassert that SCTA violated Article 4
of
the collective
bargaining agreement. 	EERA section 3541.S(b) states:
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation of such an agreement that would not also
constitute an unfair practice under this chapter.
You allege that SCTA failed to comply with Article 4 of the contract. However, as stated
above, you fail to present facts demonstrating a unfair practice under the EERA. Therefore
PERB does not have the authority to enforce the collective bargaining agreement in this
instance.

SA-CO-448-E
April 30, 2001
Page 4
Finally, you allege that SCT A failed to process a grievance in March 2000 regarding a weapon
on campus. This allegation was not addressed in the original warning letter, because it was not
contained in the original charge.
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department ofinsurance) (1997) PERB Decision No. 1197-S.)
For an allegation
of
the breach
of
the duty
of
fair representation, the statute
of
limitations
begins to run on the date the employee, acting with reasonable diligence, knew or should have
known that further assistance from the union was unlikely. (Los Rios College Federation
of
Teachers, CFT/AFT (Violett, et al.) (1991) PERB Decision No. 889.) 	·
You filed the amended charge on April 27, 2001. Because the assertion that SCTA failed to
process your on or about March 6, 2000 is a new allegation, the statute
of
limitations is
computed from the date
of
filing
of
the new allegation. Therefore for this alleged unfair
practice
to
fall within PERB's six month statute
of
limitations you must demonstrate that you
did not know that SCTA would not assist you with your concerns until after October 27, 2000.
In the amended charge you state that "the Union has failed and refused from on or about March
6, 2000 to respond to your concerns ... " However, you provide no facts which demonstrate that
you discovered that SCT A would not assist you with your March 6, 2000 grievance until or
after October 27, 2000. 	Thus you have not met your burden as charging party
of
demonstrating that this portion
of
the amended charge is timely filed within PERB's requisite
six month statute
of
limitations.
Therefore, I am dismissing the charge based on the facts and reasons contained above and in
my April 18, 2001 letter.
Right to Appeal
Pursuant to PERB Regulations
4,
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. (Regulation 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
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 i 00 1 et seq.

SA-CO-448-E
April 30, 2001
Page 5
(
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.
(Regulations 32135(a) and 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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 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 Regulation 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. (Regulation 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. (Regulation 32132.)

SA-CO-448-E
April 30, 2001
Page 6
Final Date
{
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
Byr?~
Marie A. Nakamura
Board Agent
~
Attachment
cc: Diane Ross
MAN

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4 l 74
Telephone: (916) 327-8384
Fax: (916) 327-63 77
April 18, 2001
Mr. George R. Marsh Jr.
4010 Adelheid Way
Sacramento, California 95821
Re: 	George Raymond Marsh, Jr. v. Sacramento City Teachers Association
Unfair Practice Charge No. SA-CO-448-E
WARNING LETTER
Dear Mr. Marsh,
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 27, 2001. As Charging Party, you allege that the
Sacramento City Teachers Association (SCTA) violated the Educational Employment
Relations Act (EERA)1. The charge does not state which section(s) of EERA that SCTA
violated. However, based on the information contained in the charge as well as our subsequent
communications, I am addressing this charge as an alleged violation of SCTA's duty of fair
representation, which is set forth in section 3544.92 and enforced through section 3543.6(b)3.
Facts
You have been a Special Day Class teacher at Will C. Wood Middle School in Sacramento
since 1995.
As background you provide the following information. In the Fall of 1998, prior to the
November election you attended a mandatory staff meeting at which a video advocating
support of the Democratic Party was shown. After the video you explained to those in
attendance that it was unlawful for the District to require employees to view the video. 	On the
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 EERA 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.
3 EERA section 3543 .6(b) provides:
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.

SA-CO-448-E
April 18, 2001
Page 2
morning after the meeting Lynette Tanaka, a union representative, met with you and explained
that she had inquired with SCTA and was told that the mandatory viewing of the video was not
unlawful. 	You assert that after the meeting in the Fall of 1998 at which the video was shown
SCTA has not given you any assistance.
Specifically you assert that SCTA has not represented you in regards to a grievance filed on
July 12, 2000. You filed the grievance in protest of a performance evaluation you received on
an improper form and a reprimand you received based on "unvalidated and inaccurate
information and based on filing of a form not required of any other teacher."
Before the events leading to the grievance, you discussed with Vice Principal Richard
Markwell the procedures for reporting fights to the Administration. On March 20, 2000, Mr.
Markwell came to your classroom and instructed you not to send any more students to the Vice
Principal's office for fighting unless it involved "blood and guts." When this conversation
began you stated that you would like a union representative to be present. Mr. Markwell
replied, "no, we are not going to do that." You did not think Mr. Markwell's comments
regarding "blood and guts" were in accordance with the collective bargaining agreement.
Therefore you discussed the conversation with Principal Nancy Pequeno and provided her as
well as SCT A documentation of the March 20 th meeting.
On March 28, 2000 you met with Mr. Markwell, Ms. Pequeno, and Larry Hopper, a union
representative to discuss Mr. Markwell's "blood and guts" comment. The comment was never
discussed. Instead the meeting focused on the how you treat fights in the classroom. During
the meeting you were told by Mr. Markwell and Ms. Pequeno that when a fight occurs in your
classroom you do not have to document the fight and send the students to the Vice-Principal's
office.
In March of 2000 you received a performance evaluation with an overall rating of
"satisfactory." However, for the category of "Develops and implements individual program
plans in terms of the child's ability and handicap in relation to the curriculum" you received a
rating of "needs improvement." In the July 12, 2000 grievance, you assert that this evaluation
was not on the proper form. 	You do not specifically grieve the rating of "needs improvement."
On April 26, 2000, you attempted to break up a fight. 	While you were trying to break up the
fight a student yelled, "let them fight." He then pushed you. For pushing you the student was
suspended for only one day. 	After the incident you filled out "referrals" for the students
involved. That same day Mr. Markwell came to your classroom and presented you with a
reprimand for using "referrals" and not "incident reports" to document the fight. 	Incident
reports are used to document especially egregious fights, but the one you broke up on April
26 th was not such an egregious incident. However, a copy of the reprimand was placed in your
personnel file.
Because of the reprimand of April 26, 2000 and the evaluation of March 2000, you filed a
grievance on July 12, 2000. The Level I meeting did not occur until November 15, 2000.
Prior the Level 1 meeting no one from the SCT A met with you to discuss your grievance and

SA-CO-448-E
April 18, 2001
Page 3
you were not allowed to present your side
of
the grievance during the Level 1 meeting.
Manuel Villarreal, SCTA Director told you, that the Level 1 meeting's purpose was not to hear
the Grievant's argument. You assert that Mr. Villarreal was incorrect because the contract
section 4.3.6 provides in part:
Conduct
of
the Level I Meeting:
a.
	The intent
of
the meeting is to focus on a solution to the
specific allegation(s), issue(s) or problem(s). The parties shall
attempt to define the issue, discuss interests, explore options, and
if
possible, agree to an outcome;
Because you were not afforded the opportunity to present your argument, you assert that
section 4.3.6 was not met.
As a result
of
the Level I meeting the Administration and SCTA suggested the following as a
draft compromise to your grievance:
1.
	The letter
of
reprimand shall be sealed and removed at a
time certain (January 26, the end
of
the first semester
of
the
school year 2000-2001) provided there are no future occurrences
of
a similar nature.
2.
	The evaluation form was changed to the correct form and
Mr. Marsh had been shown the evaluation on the appropriate
form before the deadline to file teacher evaluation for the
Sacramento City Unified School District, therefore, this has
become a moot point and the evaluation will stand as is.
You rejected this compromise.
On January 18, 2001, Mr. Villarreal sent you a letter explaining your options for responding to
the Level 1 finding. 	He presented three options:
1.
	Doing nothing and the decision will stand.
2. 	Requesting to go to Level 2 to have the matter heard
before a mediator based on the original grievance.
3. 	You also have the right to appeal on your own, without
the interference or involvement of SCTA, to the principal or
District designee if you are not satisfied.
On Febmary 1, 2001, Mr. Villarreal sent to you a letter regarding your request to proceed to
Level II. The letter stated that the "grievance rules do not provide for raising new issues that

SA-CO-448-E
April 18, 2001
Page 4
were not previously raised in the Level I form." 	Also, he informed you that under "SCTA's
policy you have a right to appeal or express your concerns to the SCT A board."
In response to the February 1
st
letter you sent to Mr. Villarreal a five-page letter.
	In
the letter
you state that although you were unhappy with the limited scope
of
the initial grievance, you
relied upon the experience
of
both Mr. Villarreal and Mr. Rogers to present your case in its
most favorable light. 	Also, you stated that the "union is fully aware
of
how outraged this
whole episode has made me." Because
of
your outrage and because Mr. Villarreal and Mr.
Rogers had your documentation, you urged them to present your case to the board and "try to
justify why they have been negligent for the past eight months in not doing their job."
To voice your concerns over the lack
of
representation offered by SCT
A,
you called both the
Regional and Statewide offices
of
the California Teacher's Association. Although you left
messages, no one from either office returned your call.
In addition to asserting that SCTA breached its duty
of
fair representation in its handling
of
your grievance, you also assert that SCTA is not supportive
of
you in your disputes with
students. SCT A is sending you "mixed messages" regarding the breaking up
of
fights. 	SCT A
President Tom Rogers told you in writing not to break up fights under any circumstances.
However, Article 11.1
of
the collective bargaining agreement states:
A teacher may use reasonable force, as is necessary, to protect
himsel£'herself from attack, to protect another person or property,
to quell a disturbance threatening physical injury to others, or to
obtain possession
of
weapons or other dangerous objects upon the
person or within control
of
a student.
In addition, in the charge you provide the following contract provisions with short
parenthetical comments as evidence
of
SCTA's lack
of
support:
4.2.4 	Grievance will be waived
if
not presented within 30 days
after occurrence. (I informed the Union
of
many matters in
violation
of
the contract, they failed to assist me in filing a
grievance.)
4.2.6 	Time allowances can be extended by mutual consent. (I
agreed to no such extensions.)
4.3.3
	If
a grievance has been filed, the meeting should be held
within 10 days after the grievance was filed (this did not happen.)
4.3.6 	The level 1 meeting should focus on a solution to the
specific allegations, issues, or problems. The parties should
attempt to define the issue, discuss interests, explore options, and,

SA-CO-448-E
April 18, 2001
Page 5
Discussion
if
possible, agree to an outcome. (the meeting did none
of
these
things.)
4.4.1 	A level 2 grievance needs to be filed within
10
days
of
receiving the level I decision. (I don't believe the union met this
deadline.)
4.4.1.1 "A description
of
the specific grounds
of
the grievance,
including names, dates, and places necessary for an
understanding
of
the grievance". (the union failed to describe the
specific grounds
of
the grievance.)
6.6 	"District level committees shall be formed on an ad hoc
basis to serve as the final authority for resolving disagreements
between the evaluator and the evaluatee which may arise over the
appropriateness
of
the evaluation criteria and / or ratings
of
less
than "satisfactory" .(this committee was never brought to my
attention by the union.)
11.1 	"A Teacher may use reasonable force, as is necessary, to
protect himself, herself from attack, to protect another person or
property, to quell a disturbance threatening physical injury to
others, or to obtain possession
of
weapons or other dangerous
objects upon the person or within control
of
a student."
(I was told in writing by the SCTA President, Tom Rogers, not to
break up fights under any circumstances. I was told by the school
Vice Principals, Richard Markwell and Mary DeSplinter, not to
block doorways, even in cases in which a student expressed his
intentions to leave the classroom in order to physically fight
another student. I was told by the VP, Richard Markwell not to
send students to the office unless a fight was "blood and guts".)
Your charge does not establish a prima facie violation
of
EERA. First, portions
of
the charge
do not provide a clear and concise statement
of
the facts and conduct alleged to constitute an
unfair practice. Second, where you do provide information to adequately allege an unfair
practice, the conduct does not constitute a violation
of
EERA. Third, PERB does not have
authority to enforce agreements between the parties.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how" of
an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision

SA-CO-448-E
April 18, 200 l
Page 6
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
You fail to establish that SCTA violated EERA by sending you "mixed messages" in regards to
breaking
up
of
fights. 	Although Tom Rogers told you not to break up fights under any
circumstances and the contract provides that teachers may use "reasonable force, as necessary,"
you do not demonstrate the "who, what, when, where and how"
of
an unfair practice. From the
information provided it is not possible to determine what section( s)
of
EERA was violated by
this contradiction.
As Charging Party, you appear to allege that the exclusive representative denied you the right
to fair representation guaranteed by EERA section 3544.9 and thereby violated section
3543.6(b
).
	The duty
of
fair representation imposed on the exclusive representative extends to
grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125;
United Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a
prima facie violation
of
this section
of
EERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. 	In United Teachers
of
Los Angeles
(Collins), the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[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.
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a Charging Party:
"
...
must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis' added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) ( 1980) PERB Decision
No. 124.]
You assert that SCT A violated its duty of fair representation by not arguing on your behalf or
allowing you to argue on your own behalf during the Level I meeting. However, you do not
show how Mr. Villarreal's action or inaction was arbitrary, discriminatory or in bad faith.
Although you did not approve of the resolution at Level I, a compromise was reached which

SA-CO-448-E
April 18, 2001
Page 7
addressed the issues in your grievance. Also, after the Level I meeting SCT A allowed you the
opportunity to decide
if
you wished to proceed
to
Level II and or
to
address the SCT A board
to
express your dissatisfaction with SCTA's representation
of
you. None
of
the information you
provide demonstrates that SCTA's actions were without a rational basis or devoid
of
honest
judgment.
Finally, you assert that SCT A did not follow the collective bargaining agreement section 4.3
.6
during the Level I meeting nor did they follow many other provisions
of
the contract. 	EERA
section 3541.5(b) states:
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation
of
such an agreement that would not also
constitute an unfair practice under this chapter.
In the instant charge, you specifically allege the SCTA failed to comply with the provisions
of
the collective bargaining agreement. However, as stated above you fail to present facts
demonstrating a unfair practice under the EERA. Therefore PERB does not have the authority
to enforce the collective bargaining agreement between SCT A and the District.
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
ser~ice must be filed with PERB.
	If
I do
not receive an amended charge or withdrawal from you before Friday, April 27, 2001, I shall
dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Marie A. Nakamura
Board Agent
MAN