Sacramento City Teachers Association (Ferreira) (PERB 1503E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SHARON D. FERREIRA,
Charging Party, Case No. SA-CO-456-E

Vv. PERB Decision No. 1503

SACRAMENTO CITY TEACHERS November 1, 2002

ASSOCIATION,

Respondent.

Appearance: Sharon D. Ferreira, on her own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by Sharon D. Ferreira (Ferreira) of a Board agent’s dismissal (attached) of
her unfair practice charge. The charge alleged that the Sacramento City Teachers Association
(Association) violated the Educational Employment Relations Act (EERA).' Ferreira did not
identify a specific section of EERA violated by the alleged conduct, but the Board agent
treated her charge as a contention that the Association violated its duty of fair representation
under EERA section 3544.9

The Board agent dismissed the charge as untimely and for failure to state a prima facie

Case.

' EERA is codified at Government Code section 3540 et seq.

FERREIRA'S APPEAL
On appeal, Ferreira restates the allegations rejected by the Board agent as untimely and
for failure to state a prima facie case. Ferreira submits voluminous additional documentation
related to various performance evaluations
of
which she complained in her charge and attached
documents, all
of
which took place well outside the statutory limitations period.
PERB Regulation 32635(b 	provides, "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." Ferreira has
failed to show good cause for acceptance
of
the additional documents on appeal, as they simply
add detail to alleged incidents rejected by the Board agent as untimely and there is no
indication that the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal
of
the charge.
)2
Having reviewed the charge and attached documents, the amended charge and attached
documents, the warning and dismissal letters, and Ferreira's appeal, the Board finds the
warning and dismissal letters to be free
of
prejudicial error and adopts them as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SA-CO-456-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

STATE OF CALIFORNIA t
(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional
Office
103 l 18th Street
Sacramento, CA
95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 15, 2002
Sharon
D.
Ferreira
PO
Box 191152
Sacramento, CA 95819
Re: 	Sharon D. Ferreira
v.
Sacramento City Teachers Association
Unfair Practice Charge No. SA-CO-456-E
DISMISSAL LETTER
Dear Ms. Ferreira:
GRAY DA
VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 28, 2002. In your charge, you allege that the Sacramento
City Teachers Association (SCTA) violated the Educational Employment Relations Act
(EERA). 1 Though the charge does not expiicitiy state a legal theory, it appears from the
information included in the charge, as well as in our telephone conversation
of
February 25,
2002, that you are alleging that SCTA failed to meet its duty
of
fair representation to you in
violation
of
Government Code section 3544.9.
I indicated to you in my attached letter dated March
1,
2002, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to March 11, 2002, the charge would be dismissed.
I summarized the deficiencies in your charge in my earlier letter as follows:
The only SCTA conduct alleged to have occurred within the six
months period preceding the filing
of
the charge involves your
conversation with a SCTA representative in mid-October, at
which time he agreed to send you a copy
of
the settlement
agreement reached in March 2001 concerning your grievance.
Even assuming that allegations regarding the SCT A's agreement
to settle your grievance in March 2001 are timely, the charge as
written fails to allege "sufficient facts" to make it apparent that
SCT A's conduct was "without a rational basis or devoid
of
honest judgment." [Footnote and citation omitted.]
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.

SA-CO-456-E
March 15, 2002
Page 2
Your First Amended Charge was filed on March 11, 2002. However, the amended charge does
not cure the deficiencies in your charge that were discussed in my March 1, 2002 letter. 	The
amended charge, in addition to presenting information in a more legible format, adds
additional detail concerning evaluations that you received and considered unfair and without a
basis, and that you challenged through grievances with the assistance of the SCT A. The events
surrounding the evaluations all transpired during the period from 1991 through 1998. Thus,
the charge, even as amended, fails to allege any facts occurring during the six months prior to
the filing of the charge except those already considered in my earlier letter. The charge, even
as amended, fails to allege sufficient facts within the six months period prior to the filing of the
charge to establish a prima facie case that SCTA breached its duty of fair representation in
violation of EERA section 3544.9.
Therefore, I am dismissing the charge based on the facts and reasons discussed above as well
as those contained in my March 1, 2002 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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
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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-456-E
March 15, 2002
Page 3
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.)
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
General Counsel
By
Les Chisholm
Regional Director
L
Attachment
cc: Diane Ross

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
March 1, 2002
Sharon D. Ferreira
P O Box 191152
Sacramento, CA 95819
Re: Sharon D. Ferreira v. Sacramento City Teachers Association
Unfair Practice Charge No. SA-CO-456-E
WARNING LETTER
Dear Ms. Ferreira:
GRAY DAVIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 28, 2002. In your charge, you allege that the Sacramento
City Teachers Association (SCTA) violated the Educational Employment Relations Act
(EERA).1 Though the charge does not explicitly state a legal theory, it appears from the
information included in the charge, as well as in our telephone conversation of February 25,
2002, that you are alleging that SCTA failed to meet its duty of fair representation to you in
violation of Government Code section 3544.9.
As I indicated to you in our February 25 telephone conversation, the statement of your charge
is difficult to read and does not present a clear and concise statement of the facts giving rise to
the filing of the charge. My understanding is that you have been employed as a substitute
teacher by the Sacramento City Unified School District (District) since at least 1991, and your
position was included in the bargaining unit represented by the SCTA. Your disputes with the
District also date back to 1991, and you earlier filed a least one grievance, in 1998. That
grievance was submitted to arbitration by SCTA in June 1999, but the grievance was settled by
SCTA and the District in March 2001. However, SCTA did not provide you with a copy of the
settlement agreement until October 2001.
Pursuant to the settlement agreement, the parties agreed to seal an evaluation of you by Helen
Ingram, that you would not substitute at Tahoe Elementary School, and that you would b e
barred, due to evaluation concerns, from substituting at eight other schools.
The charge includes references to meetings and telephone conversations you had with
representatives of both SCTA and the District over issues with your employment in April, June
and October 2001. The charge also indicates that you filed for unemployment in mid-October
2001, and references a meeting with an unemployment appeals judge held in December 2001.
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.

SA-CO-456-E
March 1, 2002
Page 2
Discussion
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
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.) Your charge, as previously
noted, fails to present the required "clear and concise statement" of the "who, what, when,
where and how" of an unfair practice and is subject to dismissal for this reason.
The duty of fair representation imposed on the exclusive representative by BERA section
3544.9 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 ofthis section of BERA, 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.]
The only SCTA conduct alleged to have occurred within the six months period preceding the
filing of the charge2 involves your conversation with a SCTA representative in mid-October, at
2 EERA section 3541.5(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

SA-CO-456-E
March 1, 2002
Page 3
(
which time he agreed to send you a copy of the settlement agreement reached in March 2001
concerning your grievance. 	Even assuming that allegations regarding the SCTA's agreement
to settle your grievance in March 2001 are timely, the charge as written fails to allege
"sufficient facts" to make it apparent that SCTA' s conduct was "without a rational basis or
devoid of honest judgment." (Id.)
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 that 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
comer 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 March 11, 2002, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
L
Les Chisholm
Regional Director
filing of the charge." The limitations period begins to nm 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.)