California School Employees Association (Professional School Bus Drivers Association) (PERB 0923E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD 	- ...
PROFESSIONAL 	SCHOOL 	BUS 	DRIVERS
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, 	CHAPTER 724,
Respondent.
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) 	Case No. 	LA-CO-557
PERB 	Decision No. 	923
February 	19, 	1992
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Appearances: 	Vicki L. 	Gilbreath, 	Attorney, 	for Professional
School Bus Drivers Association; 	William C. 	Heath, 	Attorney, 	for
California School 	Employees Association, 	Chapter 	724.
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by 	the Professional 	School
Bus 	Drivers Association 	(PSBDA) 	of a Board agent's dismissal,
attached hereto, 	of 	its 	charge that the California School
Employees Association, 	Chapter 724 	(CSEA), 	violated section
3544.9 	of the Educational Employment Relations Act 	(EERA).1
We have reviewed the dismissal, 	and, 	finding it to be 	free of
prejudicial 	error, 	adopt 	it as 	the decision of the Board itself.
1 EERA 	is 	codified at 	Government Code 	section 	3540 	et 	seq.
EERA 	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.
_______ )

DISCUSSION
In 	its 	appeal, 	PSBDA contends 	that CSEA had a duty to
represent 	its 	employees 	(or to provide 	justification 	for refusing
to do so) 	when PSBDA demanded, 	in its March 	11, 	1991 	letter, 	that
CSEA authorize 	PSBDA's 	retained 	counsel 	to 	continue 	"settlement
negotiations" 	with the 	San Diego 	Unified 	School 	District
(District), 	concerning the appropriate sum to be paid as back
wages 	and benefits 	in accord with a 	court 	order.2 PSBDA claims
that 	CSEA's 	silence 	in the 	face of 	such request 	constitutes 	a
breach of the duty of 	fair representation. 	However, 	the
negotiations 	to which PSBDA refers 	are a matter of 	compliance 	in
a 	lawsuit between PSBDA and the 	District. 	The 	lawsuit 	is 	outside
the 	scope of representation, 	and CSEA, 	therefore, 	owes no duty
with regard to the lawsuit in general, 	nor, 	particularly, 	the
compliance portion thereof. 	(Berkeley Federation of 	Teachers.
Local 	1078. AFL-CIO (Moore! 	(1988) 	PERB Decision No. 	658, p. 	6;
California School Employees Association 	(Lohmann) 	(1991) 	PERB
Decision No. 	898, p. 	2.)
In addition, 	PSBDA claims 	that 	its withdrawal 	of the
requested remedy of reimbursement of past attorneys' 	fees
incurred 	in 	its 	lawsuit 	against 	the 	District renders 	irrelevant
the Board agent's 	findings 	that: 	(1) 	the 	six-month time period
within which to 	file a charge had expired; 	and 	(2) 	CSEA owed no
duty to participate 	in the 	lawsuit. 	As 	stated above, 	because the
2
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1 PSBDA retained private 	counsel 	to bring a 	lawsuit 	against
the 	District 	to 	enforce a portion of 	the California 	Education
Code.
2

lawsuit 	is 	outside of the 	scope of 	representation, 	CSEA owed no
duty with 	regard 	thereto.
PSBDA 	further 	claims 	that CSEA's 	unsuccessful 	attempt 	to
intervene 	in the 	lawsuit 	constitutes 	discrimination against
PSBDA's 	members, 	as 	CSEA was 	"accepting 	some 	issues 	for 	some
members 	and 	ignoring other 	issues 	for 	charging parties." 	As 	CSEA
owed no duty to PSBDA or the employees 	in question, 	the 	facts
alleged 	fail 	to 	constitute 	a prima 	facie 	case of 	a breach of 	the
duty of 	fair representation. 	Furthermore, 	CSEA's 	conduct was not
arbitrary, 	discriminatory or in bad 	faith.
ORDER
The unfair practice charge 	in Case No. 	LA-CO-557 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Shank and Camilli 	joined 	in this 	Decision.
w	3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERD
July 23, 	1991
Vicki L. 	Gilbreath, Esq.
2445 Fifth Avenue, 	Suite 350
San Diego, 	California 	92101
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. LA-CO-557, Professional School Bus
Drivers Association v. California School Employees
Association
Dear Ms. 	Gilbreath:
I 	indicated to you 	in my attached 	letter dated July 	5, 	1991 	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 	that 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 it prior to July 	12, 	1991, 	the
charge would 	be 	dismissed.
On July 	12, 	1991, 	I received from you an amended charge. 	The
amended 	charge withdraws 	any. claim against CSEA for reimbursement
of attorney's 	fees and costs. 	The amended charge alleges 	as
follows, 	however, 	with respect to the letter of March 	11, 	1991,
that demanded that CSEA reimburse 	such 	fees 	and 	costs 	and 	commit
to paying them in the future:
Although not expressly 	stated 	in the 	letter
to CSEA, 	the clear and 	implied alternative
was 	for CSEA to 	fulfill 	its 	duty under
Government Code 	§ 	3543.3 	to meet and
negotiate with 	the 	DISTRICT 	concerning
recovery to CHARGING 	PARTIES 	of 	their back
wages and benefits, 	matters within the 	scope
of CSEA's 	exclusive 	representation.
It 	is 	alleged 	that CSEA did not 	respond to 	this 	aspect 	of 	the
letter. 	It 	is also alleged that CSEA has 	filed a motion to
intervene 	in PSBDA's 	lawsuit 	in order to assure 	a
nondiscriminatory 	seniority 	system, 	but CSEA has 	not undertaken
to 	represent 	PSBDA members.
The 	charge as 	amended 	still 	does 	not 	state 	a prima 	facie
violation of 	the EERA. 	CSEA's 	alleged 	failure to respond to 	the
alleged 	"implied 	alternative" 	demand, 	which 	admittedly was 	not
"expressly 	stated," 	does 	not 	show arbitrary, 	discriminatory or
a.
.

bad faith conduct on the part of CSEA. 	Similarly, 	it 	is not
apparent how CSEA's 	limited participation 	in PSBDA's 	lawsuit
represents arbitrary, 	discriminatory, 	or bad faith conduct. 	In
any case, 	for the reasons 	stated in my July 5 	letter, 	CSEA's duty
of 	fair representation does 	not extend to the 	lawsuit. 	I 	am
therefore dismissing 	the 	charge based on the 	facts 	and 	reasons
contained 	in this 	letter and in my July 	5 	letter.
Dismissal 	and Refusal 	to
Issue 	Complaint
LA-CO-557
July 23, 	1991
Page 2
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 Code of Regulations, 	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 	(California
Administrative Code, 	title 8, 	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 	(California Code 	of
Regulations, title 8, 	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 California Code of Regulations,
title 	8, 	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.
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 	(California Code 	of
Regulations, title 8, 	section 32132).
Dismissal 	and 	Refusal 	to
Issue 	Complaint
LA-CO-557
July 23, 	1991
Page 3
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 W. 	SPITTLER
General 	Counsel
By Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	William C. 	Heath, 	Deputy Chief Counsel
CSEA, 	San Jose

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 5, 	1991
Vicki L. 	Gilbreath, 	Esq.
2445 	Fifth Avenue, 	Suite 350
San Diego, 	CA 	92101
RE: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CO-55 7,
Professional 	School 	Bus 	Drivers Association v. 	California
School 	Employees Association
Dear Ms. 	Gilbreath:
In the above referenced charge, 	the Professional School Bus
Drivers Association 	(PSBDA) 	alleges 	that the California 	School
Employees Association 	(CSEA) 	refused to represent PSBDA members,
in alleged violation of Government Code 	section 	3544.9 	of 	the
Educational Employment Relations Act 	(EERA).
My investigation of this 	charge reveals the 	following 	facts.
CSEA 	is 	the 	exclusive representative of 	a unit of 	some of 	the
classified 	employees 	of 	the San Diego Unified School 	District
(District). 	The District did not recognize hourly bus drivers 	as
classified employees or as members of the unit. 	In 	1988, 	CSEA
rejected the 	request 	of hourly bus 	drivers 	for representation.
Ninety-two hourly bus 	drivers 	then associated themselves 	as 	PSBDA
and 	retained private 	counsel 	to bring a 	lawsuit 	against 	the
District 	under the Education Code 	for recognition as 	classified
employees. 	On November 	13, 	1990, 	PSBDA's lawsuit successfully
resulted 	in an order against 	the District.
On March 	11, 	1991, 	PSBDA demanded that CSEA reimburse PSBDA 	for
its 	past 	attorney's 	fees 	and costs 	and 	commit to paying 	the 	fees
and 	costs 	necessary to conclude 	the 	litigation. 	CSEA refused 	the
demand.
PSBDA 	filed 	its 	unfair practice charge 	against CSEA on May 	13,
1991.
Based on the facts 	stated above, 	the charge does 	not 	state a
prima 	facie violation of 	the 	EERA within the 	jurisdiction of 	the
Public 	Employment Relations Board 	(PERB), 	for the reasons 	that
follow.
Government Code 	section 	3541.5(a) 	forbids 	PERB to 	"issue a
complaint 	in respect 	of 	any charge based upon an alleged unfair

practice 	occurring more than 	six months prior to the 	filing 	of
the 	charge." 	In cases 	involving an alleged violation of 	the duty
of 	fair representation, 	the 	six-month 	limitation generally begins
to 	run when the 	employee 	or 	employees 	knew or 	should have 	known
that 	further assistance 	from the 	exclusive 	representative was
unlikely. 	International Union of Operating Engineers. 	Local 	501
(1986) 	PERB Decision No. 	591-H, 	at p. 	4. 	It appears from the
allegations 	that this 	occurred 	in 	1988 	(when CSEA allegedly
rejected the employees' 	request for representation), 	over two
years 	before the charge was 	filed. 	The 	later 	success 	of PSBDA in
obtaining a 	court 	order 	(exactly 	six months 	before 	the 	charge was
filed) 	does not cause the limitations period to run again. 	Id.
at pp. 	5-6. 	Nor is 	there any apparent reason why CSEA's 	refusal
in 	1991 	to pay 	for the representation 	it 	refused to provide 	in
1988 	should cause the 	limitations period to run again.
Warning 	Letter
LA-CO-557
July 5, 	1991
Page 2
Furthermore, 	the duty of 	fair representation does 	not 	extend to
the enforcement of rights under the Education Code. 	San
Francisco Classroom Teachers Association. 	CTA/NEA 	(1985) 	PERB
Decision No. 	544. 	The duty of fair representation normally
extends 	to the negotiation process 	and the grievance and
arbitration procedure, 	where the exclusive representative
possesses 	the 	exclusive means 	by which 	employees 	may obtain a
particular remedy. 	Id. 	It 	is 	evident that CSEA did not possess
the 	exclusive means 	to litigate the employees' 	rights 	under the
Education Code.
Finally, 	even if the duty of fair representation did apply, 	it 	is
not apparent how CSEA violated that duty. 	In order to 	state 	a
prima 	facie violation of 	that duty, 	a Charging Party must 	show
that 	the 	exclusive 	representative's 	conduct was 	arbitrary,
discriminatory, 	or in bad 	faith. 	In United Teachers 	of 	Los
Angeles 	(Collins). 	id., PERB stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	. 	. 	. 	does not constitute a breach
of the union's duty.
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. 	Reed District Teachers
Association. 	CTA/NEA 	(Reyes) 	(1983) 	PERB

Decision No. 	332, 	citing Rocklin Teachers
Professional Association 	(Romero) 	(1980) 	PERB
Decision No. 	124.
Warning 	Letter
LA-CO-557
July 5, 	1991
Page 3
PSBDA has 	not provided 	sufficient 	facts 	from which 	it 	is 	apparent
how either CSEA's 	refusal 	to represent hourly bus 	drivers 	(which
the 	District did 	not 	recognize 	as 	classified 	employees 	or unit
members) 	or CSEA's 	refusal to pay PSBDA's 	legal 	expenses was
without a rational basis, 	devoid of honest 	judgment,
discriminatory 	or 	in bad 	faith.
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 any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge
accordingly. 	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 must 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 	July
12, 	1991, 	I shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas 	J. 	Allen
Regional 	Attorney