California Faculty Association (Mirhady) (PERB 0746H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FARHAD 	MIRHADY,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case No. 	SF-CO-16-H
PERB Decision No. 	746-H
June 26, 	1989
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Appearances: 	Farhad Mirhady, 	on his own behalf; 	Reich, 	Adell &
Crost by Glenn Rothner, 	Attorney, 	for California Faculty
Association.
Before Porter, 	Craib and Shank, 	Members.
DECISION
PORTER, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by Farhad Mirhady 	(Charging
Party) 	of a Board agent's dismissal, 	attached hereto, 	of his
charge 	that 	the 	California 	Faculty Association violated 	section
3571.l(e) 	of 	the 	Higher Education Employer-Employee Relations Act
(HEERA)1 by 	failing to 	satisfy its 	duty of 	fair representation
with 	regard 	to Charging 	Party's 	challenge 	to 	San Francisco 	State
University's 	refusal 	to grant him tenure.
_______________ )
1
HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571.1 provides, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(e) 	Fail to represent 	fairly and 	impartially
all 	the 	employees 	in the unit 	for which 	it 	is
the 	exclusive 	representative.
HEERA

On appeal, 	Charging Party argues 	that his 	first amended
charge 	establishes 	a prima 	facie violation of 	section 3571.l(e),
contrary 	to 	the 	Board agent's 	finding and resultant 	dismissal 	of
the 	charge. 	Upon reviewing the 	entire 	record herein and 	finding
no prejudicial 	error, 	we hereby adopt 	the 	Board agent's 	dismissal
as 	the Decision of the Board 	itself.
ORDER
Based on the 	foregoing, 	the First Amended Unfair Practice
Charge 	in Case No. 	SF-CO-16-H 	is hereby DISMISSED without 	leave
to 	amend.
Members 	Craib and Shank 	join 	in this 	Decision.
22

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street Suite 900
San Francisco. California 94108
(415)557-1350
November 19, 1987
Farhad Mirhady
Re: 	Farhad Mirhady v. 	California Faculty Association
Unfair Practice Charge No. 	SF-CO-16-H
Dear Mr. Mirhady:
In the above-referenced charge, 	you allege that the California
Faculty Association 	(Association) 	violated section 3571.l(e) 	of
the Higher Education Employer-Employee 	Relations Act by 	failing
to satisfy its duty of 	fair representation with regard to your
protest of the San Francisco State University's decision
denying you tenure.
I 	indicated 	to you 	in my attached letter dated November 4,
1987, 	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 accordingly. 	You 	were 	further advised that unless you
amended the charge to state a prima 	facie case or withdrew the
charge prior to November 18, 	1987, 	it would be dismissed.
On Monday, November 16, 	1987, 	you submitted an amendment to the
above-referenced charge along with numerous documents. 	All of
those documents that were provided to the Association or 	that
refer 	to the issues you 	sought 	to be raised in arbitration were
provided to me along with the initial charge. 	Thus, 	this
information does not alter my conclusion as expressed in my
letter dated November 4, 	1987. 	Along with this amendment, 	you
additionally provided me with a 	large 	loose-leaf notebook
containing numerous documents such as 	faculty members' 	reports
on class evaluations, 	letters of recommendation from faculty
members and students, 	documents concerning your role as student
advisor, 	as a member of the School of Business Graduate
Council, 	as a member of the Affirmative Action Mentorship
Program, 	and as a member of the International Visitors Center,
published and unpublished papers 	in your 	field of 	study,
professional evaluations of your research, program schedules
for seminars you participated in or attended, 	a grant
application for undergraduate international studies, 	a new
course proposal, 	and letters 	concerning your initiative in
introducing computer 	usage.

Farhad 	Mirhady
November 19, 	1987
Page 	2
This documentation, 	while perhaps 	relevant 	to the 	University's
decision to deny you 	tenure, 	fails 	to add 	factual allegations
sufficient 	to demonstrate 	in what 	manner 	the Association
breached 	its 	duty of 	fair 	representation. 	As 	I 	indicated 	in my
previous 	letter, 	the 	conduct 	undertaken by the Association on
your behalf was not 	perfunctory. 	The 	fact 	that 	your
representative 	did 	not 	elect 	to 	introduce 	every 	favorable
document or 	raise 	every argument does 	not 	demonstrate 	conduct
falling 	short 	of 	that 	demanded by 	the 	duty of 	fair
representation. 	In addition, 	you have 	failed to allege 	facts
that 	your 	representative 	acted 	in a 	way that 	is 	arbitrary,
discriminatory, or 	in bad 	faith. 	I am therefore dismissing the
charge based 	on 	the 	facts 	and 	reasons 	expressed herein and
contained 	in my letter 	of November 	4, 	1987.
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 	(California Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original and 	five 	copies 	of such appeal 	must 	be 	actually
received by 	the 	Board 	itself before 	the 	close 	of business
(5:00 p.m.) 	or 	sent by telegraph, 	certified or Express United
States 	mail postmarked no 	later 	than 	the 	last 	date 	set 	for
filing 	(section 32135). 	Code of Civil 	Procedure 	section 	1013
shall apply. 	The 	Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal of 	the 	refusal 	to 	issue a
complaint, 	any other 	party may 	file 	with 	the 	Board an original
and 	five 	copies of 	a 	statement 	in opposition within 	twenty
calendar 	days 	following 	the date 	of 	service 	of 	the 	appeal
(section 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 	section 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.

Farhad 	Mirhady
November 19, 	1987
Page 3
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 	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 	(section 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,
John 	Spittler
Acting 	General 	Counsel
By CAROL A. 	VENDRILLO
Staff 	Attorney
Attachment
cc:

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, California 	94108
(415) 557-1350
November 4, 	1987
Farhad Mirhady
Re: 	Farhad Mirhady v. 	California Faculty Association
Unfair Practice Charge No. 	SF-C0-16-H.
Dear Mr. Mirhady:
I 	am in 	receipt of 	the above-captioned charge 	in which you
allege 	that 	the California 	Faculty Association 	(Association or
CFA) 	violated section 3571.l(e) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA) 	by failing to satisfy
its duty of 	fair 	representation with regard to your protest of
the San Francisco 	State University's decision to deny you
tenure.
My investigation has 	revealed the following 	facts. 	On or 	about
June 2, 	1986, you received notification of the University's
decision denying you tenure status. 	You contacted CFA
requesting that a grievance be filed on your behalf 	in order to
contest the University's decision. 	CFA accepted the grievance
for arbitration. 	In preparation for the arbitration, 	you
provided CFA with several documents 	outlining 	the various
procedural deficiencies made by the University in its 	tenure
review process. 	Initially, 	Paul Worthman, CFA Assistant
General Manager, was assigned as your representative.
Thereafter, 	Michael Egan became your representative. 	You
discussed 	the case with both Worthman 	and Egan 	and provided
them with your detailed 	assessment 	and analysis of 	the case.
In documents you have provided me, 	you set forth arguments you
wished CFA to make, 	requested the production of certain
documents 	in the University's 	control 	and 	identified witnesses
you 	felt would help you 	reverse the University's decision.
~

Farhad Mirhady
November 4, 	1987
Page 2
The arbitration hearing was conducted on February 5 	and 6, 	1987
before arbitrator William Levin. 	The 	arbitrator's 	authority
with respect to cases 	involving tenure is 	set 	forth in
paragraph 10.19(e) 	of the agreement between CFA and the
California State University. 	It states 	in pertinent part as
follows:
In cases 	involving...tenure, 	the arbitrator shall 	recognize
the importance of the decision not only to the 	individual
in terms of his/her 	livelihood, 	but also the importance of
the decision to the 	institution involved.
The 	arbitrator 	shall not 	find that 	an error 	in procedure
will 	overturn an appointment...or 	tenure decision on the
basis 	that proper procedure has not been followed unless:
1. 	there is clear and convincing evidence of 	a procedural
error; and
2. 	that 	such error was prejudicial 	to 	the decision with
respect to the grievant.
The normal 	remedy for such a procedural error will be to
remand the case to the decision level where the error
occurred for reevaluation, 	with the arbitrator having
authority in his/her judgment 	to 	retain jurisdiction.
An arbitrator shall 	not grant...tenure except 	in extreme
cases where it is found that:
1. 	the final campus decision was not based on reasoned
judgment;
2. 	but for that, 	it can be stated with certainty
that...tenure would have been granted; 	and
3. 	no other alternative except 	that 	remedy has been
demonstrated by the evidence as 	a practicable 	remedy
available to resolve the issue.
In general, 	you were dissatisfied with the manner 	in which Egan
presented your case before the arbitrator. 	You 	indicated that,
because the arbitrator 	arrived several hours 	late 	for 	the
arbitration, 	you believe that Egan rushed through his
presentation. 	In addition, 	Egan failed to present two
witnesses you believed would be quite helpful 	to your case,
Richard Axen, 	who would speak to the issue of procedural
irregularities in the tenure process, 	and Paul Rech, 	a member
of the merit award committee, 	who would atest 	to the fact that

Farhad Mirhady
November 4, 	1987
Page 3
you had been a serious contender for a merit award. 	In
addition, 	you are of the opinion that Egan should have
introduced evidence to discredit the University's 	reliance on
students' 	evaluations of your teaching 	ability based on the
fact 	that the data presented 	included the student evaluations
given to 25 part-time lecturers. 	Egan introduced 	into evidence
an analysis of 	this data you prepared using only full-time
lecturers in your comparison, 	however, Egan was critical of
your 	analysis because you did not 	rely on all of 	the data
provided.
After the arbitration hearing, 	you discussed the subjects 	to be
addressed in the brief with Egan. 	On one occasion, 	you were
given an outline of Egan's brief 	and were disappointed to 	see
that 	it consisted only of 	a 	replication of 	the contract
provisions at issue in the case. 	You were also disturbed by
the fact that Egan had to ask for 	an extension of time to 	file
his brief, 	and, once completed, you again felt that many
arguments had not been included. 	In general, 	you believe that
Egan was disinterested in you case and, 	therefore, 	failed to
represent you in an earnest and aggressive manner.
Based on the facts as described above, 	this charge does not
state a prima facie violation of the HEERA for the reasons 	that
follow. 	A breach of the duty of 	fair 	representation guaranteed
by section 3578 violates section 3541.l(e) 	of the HEERA. 	To
establish a prima facie violation of a breach of the duty of
fair 	representation, 	the charging party must set forth a clear
and concise statement of 	facts demonstrating 	that 	the employee
organization acted arbitrarily, 	discriminatorily or 	in bad
faith. 	California State Employees' Association (Dees) 	(1985)
PERB Decision No. 	496-H. 	The Board has 	ruled that the duty of
fair 	representation 	imposed on the exclusive 	representative
extends to the handling of contractual grievances. 	Thus, 	in
the processing of your grievance contesting the University's
tenure decision, 	the Association was bound by the duty of fair
representation.
In Vaca v. Sipes (1967) 386 U.S. 	171, 	the United States Supreme
Court held that a union may not process 	a meritorious grievance
in a perfunctory fashion. 	While your union representative did
not make every argument or call every witness you 	requested,
this conduct cannot be 	reasonably characterized 	as
perfunctory. 	Moreover, 	in order to demonstrate a breach of the
duty of 	fair representation, 	you must 	allege sufficient
evidence to support the finding that 	the union's handling of
your case contributed to an erroneous outcome. 	Hardee v. 	North
Carolina Allstate Service. 	Inc. 	(4th Cir. 	1976) 	537 F.2d 1255.
In this 	instance, 	the authority of the arbitrator to grant you
tenure is 	limited by contract to those "extreme cases" where it
-.

Farhad Mirhady
November 4, 	1987
Page 4
is found that the final campus decision "was not based on
reasoned judgment," where it can be stated "with certainty"
that tenure would have been granted and no other 	alternative
remedy is demonstrated by the evidence. 	No evidence that you
would have met this burden but for the Association's conduct
appears 	in the charge. 	When measured against this standard,
the alleged misconduct of CFA falls short of that necessary to
establish a duty of 	fair 	representation prima facie case.
Indeed, 	the courts have clearly held that the union's 	failure
to raise certain arguments on a grievant's behalf or the
failure to present certain evidence does not 	amount to a duty
of fair 	representation breach. 	Cannon v. 	Consolidated
Freightways Corp. 	(7th Cir. 	1975) 	524 F.2d 290; Franklin v.
Southern Pacific Transport Co. 	(9th Cir. 	1979) 	593 F.2d 899.
In sum, 	the conduct set forth above does not establish
arbitrary, 	discriminatory or bad faith conduct. 	The
Association representatives met with you, 	discussed the issues
to be raised, 	interviewed witnesses, 	requested and received
documents 	and prepared 	a 	legal brief which the arbitrator 	read
and referred to in his decision. 	The fact that your
representative did not elect to call each witnesses you
suggested, 	declined to make each argument you raised, 	failed to
agree with your assessment of the correct way to proceed are
differences 	in judgment that do not amount to breaches of the
duty of 	fair 	representation.
For these reasons, Charge No. SF-CO-16-H, 	as presently written,
does not state a prima facie case. 	If you feel that there are
any factual 	inaccuracies 	in this 	letter or 	any additional 	facts
which would correct 	the deficiencies explained above, 	please
amend the charge accordingly. 	The amended charge should be
prepared on a 	standard PERB unfair practice charge clearly
labeled First Amended Charge, 	contain all 	facts 	and allegations
you wish to make, 	and be signed under penalty of perjury by the
Charging Party. 	The amended charge must be served on the
Respondent and the original proof of service must be filed with
PERB. 	If I do not 	receive an amended charge or withdrawal 	from
you before November 18, 	1987, 	I shall dismiss your charge. 	If
you have any questions on how to proceed, 	please call me at
(415) 557-1350.
Sincerely,
Carol A. Vendrillo
Staff Attorney
3213t