California Faculty Association (Shvyrkov) (PERB 0951H)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VLADISLAV V. 	SHVYRKOV,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case No. 	SF-CO-22-H
PERB Decision No. 	951-H
September 4, 	1992
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Appearance: 	Vladislav V. 	Shvyrkov, 	on his own behalf.
Before Hesse, 	Chairperson, 	Caffrey and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by
Vladislav V. 	Shvyrkov 	(Shvyrkov) 	of 	a Board agent's 	dismissal
(attached hereto) 	of his 	charge alleging that the California
Faculty Association 	(Association) 	violated 	section 	3571.1 	of 	the
Higher Education Employer-Employee Relations Act 	(HEERA)1 by
failing 	and 	refusing 	to 	represent 	Shvyrkov 	in numerous 	grievances
in violation of 	the Association's 	duty of 	fair representation.
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571.1 	states, 	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.
(
e

The 	Board has 	reviewed 	the 	Board 	agent's 	warning 	and
dismissal 	letters, 	and finding them to be 	free of prejudicial
error, 	adopts 	them as the decision of the Board itself,
consistent with 	the 	following discussion.
SHVYRKOV'S 	APPEAL
Shvyrkov challenges 	the Board agent's 	"fairness." 	He
asserts 	that 	it was 	not 	fair 	for the 	Board agent 	to 	send 	copies
of 	his 	letters 	to the Association without 	giving him the
opportunity to 	read copies 	of 	the Association's 	letters 	sent 	to
the Board agent. 	Also, 	Shvyrkov asserts 	that certain 	statements
made 	by 	the 	Board agent demonstrate bias 	against him.
Shvyrkov 	also 	states 	there 	are 	approximately 	four
inconsistencies 	in 	the warning 	and dismissal 	letters 	regarding
the discussion of 	the numerous 	grievances.
With regard to the 	statute of 	limitations, 	Shvyrkov asserts
that he 	filed his unfair practice charge on November 23, 	1991, 	as
opposed 	to 	the 	Board 	agent's 	statement 	that 	the 	unfair practice
charge was 	filed on November 26, 	1991. 	Assuming that the unfair
practice charge was 	filed on November 23, 	1991, 	Charging Party
asserts 	that his 	letter to P. 	Worthman dated May 24, 	1991 	is
timely.2
DISCUSSION
Shvyrkov questions 	the fairness 	of the Board agent, 	but
fails 	to allege any 	facts 	demonstrating bias. 	Specifically,
2The Association did 	not 	file 	a response to Charging Party's
appeal.
22

there 	are 	no 	alleged 	facts 	that 	the Board agent 	sent 	copies 	of
Shvyrkov's 	letters 	to 	the Association without 	giving him the
opportunity to 	read the Association's 	letters 	sent 	to 	the Board
agent. 	PERB Regulation 	section 	32620w3 	specifically 	empowers 	a
Board agent to 	"make 	inquiries" 	and 	"facilitate 	communication and
the exchange of 	information between the parties." 	Further, 	PERB
3PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	et 	seq. 	PERB Regulation
32620 states:
(a) 	When a charge is 	filed, 	it shall be
assigned 	to 	a 	Board 	agent 	for processing.
(b) 	The powers and duties 	of 	such Board
agent 	shall be to:
(1) 	Assist the charging party to 	state 	in
proper 	form the 	information 	required by
section 32615;
(2) 	Answer procedural questions of 	each
party regarding the processing of 	the 	case;
(3) 	Facilitate communication and 	exchange of
information between the parties;
(4) 	Make 	inquiries 	and review the charge 	and
any 	accompanying materials 	to 	determine
whether an unfair practice has been, 	or is
being, 	committed, 	and determine whether the
charge 	is 	subject to deferral 	to arbitration,
or to dismissal 	for 	lack of timeliness.
(5) 	Dismiss 	the 	charge or any part thereof
as provided in 	section 	32630 	if 	it is
determined that the 	charge or the 	evidence 	is
insufficient 	to 	establish a prima 	facie 	case;
or if 	it 	is determined that a 	complaint may
not be 	issued 	in 	light of 	Government Code
sections 	3514.5, 	3541.5 or 3563.2 or because
a dispute 	arising under HEERA 	is 	subject 	to
final 	and binding 	arbitration.
(6) 	Issue a complaint pursuant to section
32640.
(c) 	The respondent 	shall be apprised of the
allegations, 	and may 	state 	its position on
the 	charge during the 	course 	of 	the
inquiries.
33

Regulation 	32620(c) 	requires 	that 	the 	respondent be 	apprised of
the 	allegations 	and be 	allowed to 	state 	its 	position during 	the
investigation. 	Here, 	it appears the Board agent was 	following
PERB 	regulations 	in 	facilitating 	communication between 	the
parties 	and 	apprising the Association of 	Charging 	Party's
allegations. 	Further, 	a March 9, 	1992 	letter from the Board
agent 	to 	Shvyrkov 	apprises 	him of 	the Association's 	response 	to
the unfair practice 	charge, 	and gives 	him an opportunity to
respond. 	Therefore, 	there appears 	to be no prejudice to
Shvyrkov.
Shvyrkov 	questions 	the 	Board agent's 	"fairness" 	and 	cites 	to
his 	statement 	that 	"[T]he Association was 	entitled 	to 	exercise
discretion 	in determining how 	far to proceed with 	the
grievances...." 	Shvyrkov alleges 	that this 	statement was 	one he
"expected to hear only 	from a person who was 	on the Association
payroll." 	As 	the 	Board 	agent was 	simply providing 	an accurate
statement of the 	law, 	this 	argument has 	no merit. 	(See
International Union of Operating Engineers, 	Local 	501 	(Irvin)
(1991) 	PERB Decision No. 	881-H; 	American Federation of State,
County and Municipal Employees. 	Council 	10 	(Smith) 	(1990) 	PERB
Decision No. 	859-H; 	United Teachers 	of Los Angeles 	(Collins)
(1982) 	PERB Decision No. 	258.)
Shvyrkov next 	asserts 	that the Board agent's 	statement 	that
there 	is 	no prima 	facie 	case 	even assuming the 	facts 	to be true
shows 	that the Board agent will 	not 	accept his 	allegations.
There is 	no rational basis 	for this 	conclusion. 	Rather, 	the
4

Board agent was 	merely making 	a 	conclusion based 	on the 	facts
submitted 	by 	the 	Shvyrkov.
With regard to the 	alleged 	inconsistencies 	in the 	Board
agent's warning and dismissal 	letters, 	it appears 	the Board agent
was 	attempting to 	cover all 	the possible 	facts 	and 	conclusions 	by
asserting 	alternative 	arguments 	based 	on the unfair practice
charge allegations. 	Therefore, 	these alleged inconsistencies 	are
without 	merit.
Finally, 	Shvyrkov's 	assertion that the unfair practice
charge was 	filed on November 23, 	1991 	is 	simply incorrect. 	The
unfair practice 	charge 	clearly 	states 	that 	the 	filing date 	is
November 26, 	1991. 	There 	is 	also a PERB date 	stamp 	indicating a
receipt of November 26, 	1991. 	Further, 	the proof of service
attached to 	the unfair practice 	charge 	shows 	that 	the unfair
practice charge was mailed on November 25, 	1991. 	As 	all of 	the
evidence 	demonstrates 	that 	the 	unfair practice 	charge was 	filed
on November 26, 	1991, 	this argument has no merit.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-22-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Carlyle 	joined 	in this 	Decision.
55

O)STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350	
PLAB
June 9, 	1992
Vladislav V. 	Shvyrkov
536 	Oasis 	Drive
Santa Rosa, 	California 	94507
Re: 	DISMISSAL OF 	UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Vladislav V. 	Shvyrkov v. 	California 	Faculty Association
Unfair Practice Charge No. 	SF-CO-22-H
Dear Mr. 	Shvyrkov:
The 	above-referenced unfair practice 	charge, 	filed on November
26, 	1991, 	alleges that the California Faculty Association
(Association) 	failed and refused 	to 	represent 	Charging Party 	in
numerous 	grievances 	against 	the California 	State 	University,
Sonoma 	(University). 	This conduct is alleged to violate
Government Code 	section 	3571.1 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
I 	indicated to you 	in my attached 	letter dated May 	21, 	1992 	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 May 29, 	1992, 	the
charge would 	be 	dismissed.
On June 	1, 	1992, 	I 	granted you additional time 	for you to respond
to my May 21, 	1992 	letter. 	I was under the 	impression that you
would be 	filing an amended charge. 	On June 2, 	1992, 	this 	office
received 	a 	document 	from you which 	included 	an 	unfair practice
cover 	sheet. 	However, 	it also contained an attached 	letter
addressed 	to 	the 	Public 	Employment 	Relations 	Board with 	the 	term
"Statement 	of 	Exceptions." 	The document we received 	appeared 	to
be 	a 	copy of 	an original. 	The 	filing did not have a proof 	of
service attached. 	I 	telephoned you on June 	3, 	1992 	in an attempt
to 	clarify whether you 	intended your 	filing 	to 	be 	treated 	as 	an
amended 	charge 	(and hence 	something 	for me 	to 	consider prior 	to
my 	final decision on the case) 	or as 	an appeal 	to 	the 	Board. 	You
were evasive in your answers, 	stating in the end, 	"I 	have no
answer." 	I 	then sent you a 	letter dated June 	3, 	1992,
summarizing 	our 	telephone 	conversation 	and 	advising you 	that 	if
you wanted me to 	consider the new allegations 	in the 	charge, 	you
should 	file a proof of 	service within one week. 	On June 	9, 	1992,
I 	received a 	copy of your 	letter dated June 	8, 	1992 	addressed to

. . " . . . . . . Mom
Dismissal, etc.
SF-CO-22-H
June 9, 	1992
Page 2
the Board. 	In the 	letter, 	you indicate that you will not be
filing a proof of 	service.
Therefore, 	to the extent 	that the June 	2 	filing contains 	any new
allegations, 	they will not be considered. 	In particular, 	the
allegation that 	Renteria 	informed 	you 	that 	the Association's
policy was 	to 	stop 	representing you 	in Grievances 	VI 	through X
appears to be a new allegation. 	Even if considered, 	you have
failed to 	allege whether 	the 	conduct 	occurred within 	six 	months
of the 	filing of 	the charge(s) 	and have 	stated the 	allegation 	in
a 	conclusory 	manner without 	specific 	supporting 	allegations.
In addition, 	I 	have considered the other allegations 	and
assertions of 	factual 	inaccuracies 	in my May 21, 	1992 	letter,
which you 	set 	forth 	in your June 	2 	filing. 	Even assuming these
facts 	to be true, 	I do not find that the charge demonstrates 	a
prima 	facie case.
I 	am therefore dismissing the 	charge based on the 	facts 	and
reasons 	contained in my May 	21, 	1992 	letter and the reasons 	set
forth above.
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 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(Cal. 	Code of Regs., 	tit. 	8, 	sec.
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 	(Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32635(b)).
.

( )
Dismissal, etc.
SF-CO-22-H
June 9, 	1992
Page 3
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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 W. 	SPITTLER
General 	Counsel
By
DONN GINOZA
Regional 	Attorney
IN GINGZA
Attachment
cc: 	Glenn Rothner
John Hein
:J::t:::l:/..:l	, < ffi 	U":t"ffU,W

O	STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, Suite 900
San Francisco, CA 94108-4737
(415) 557-1350	
PER
May 2 1 , 1992
Vladislav V. 	Shvyrkov
536 Oasis 	Drive
Santa Rosa, 	California 	94507
Re: 	WARNING LETTER
Vladislav V. 	Shvyrkov v. 	California 	Faculty Association
Unfair Practice Charge No. 	SF-CO-22-H
Dear Mr. 	Shvyrkov:
The above-referenced unfair practice 	charge, 	filed on November
26, 	1991, 	alleges that the California Faculty Association
(Association) 	failed 	and 	refused to 	represent Charging Party 	in
numerous 	grievances 	against 	the California 	State 	University,
Sonoma 	(University). 	This 	conduct 	is 	alleged to violate
Government Code 	section 	3571.1 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).
My 	investigation revealed the 	following 	facts. 	Vladislav V.
Shvyrkov, 	whose 	field is 	statistical 	science, 	was 	employed at the
University as 	a part-time 	lecturer at 	the 	University 	from 	1986
through the 	summer of 	1989. 	In January 	1989, 	Shvyrkov met an
undergraduate 	student named Glenn Savage. 	After arousing
Savage's 	interest 	in a certain research 	subject, 	Shvyrkov offered
to help prepare Savage, 	a computer programmer rather than
statistical 	scientist, 	to participate 	in the Third Annual
California 	State 	University 	Student 	Research Competition 	and
Conference. 	Shvyrkov provided books 	and 	other 	research 	materials
to Savage. 	After weekly meetings 	lasting 	for about two months,
Savage began to prepare 	an abstract with 	Shvyrkov's 	guidance.
Savage 	submitted 	the 	registration 	form 	for 	the 	conference 	and 	an
abstract, 	in which he used the word 	"we" 	to describe the work
done. 	Shortly thereafter, 	Shvyrkov received a memorandum 	from
Dean J. 	T. 	Doutt 	stating that 	the 	entry had been withdrawn.
Doutt 	had 	taken this 	action without 	first 	notifying 	Savage 	or
Shvyrkov. 	Doutt vowed not 	"to allow 	[Shvyrkov] 	to teach courses
for the 	University 	in the 	future" 	because 	Shvyrkov had
"manipulated" 	Savage 	into 	submitting 	an 	abstract which 	"could 	not
be 	accepted 	as 	being original 	student work."
On May 8, 	1989, 	Doutt 	cancelled Shvyrkov's 	teaching appointment
for the summer of 	1989. 	On May 9, 	1989, 	Shvyrkov filed a
grievance 	challenging this 	action. 	The Association, 	through
Michael 	Egan, 	provided representation to Shvyrkov. 	The grievance
was 	successful 	and 	the 	University restored 	Shvyrkov's 	summer
teaching 	appointment.

O
Warning 	Letter
SF-CO-22-H
May 21, 1992
Page 2
On May 30, 	1989, 	Shvyrkov received a letter of reprimand from
Dean Doutt concerning Savage's 	entry. 	Shvyrkov 	filed a 	second
grievance on July 	12, 	1989 	("Grievance 	II") 	challenging 	the
letter of 	reprimand. 	The Association provided 	representation 	in
this 	grievance through all 	steps 	of 	the grievance procedure, 	but
did not 	appeal 	the 	grievance 	to 	arbitration. 	Association
Representative 	Barbara 	Renteria 	ceased processing 	the 	grievance
around 	December 	1989.
The Association asserts 	that 	it 	informed 	Shvyrkov 	in March 	1990,
that 	it 	believed no 	contractual 	provision 	existed 	that would 	have
provided for the removal of the letter of reprimand. - Shvyrkov
claims 	that 	the Association 	failed 	to 	consider 	the 	theory 	that
the 	letter of reprimand violated Article 	10, 	section 	10.19(c)
which prohibits 	reprisals 	for grievance activity. 	Shvyrkov
indicated that 	the Association was 	put on notice 	of 	this 	claim
through 	a 	fourth grievance 	filed with Association representation
on December 	1, 	1989 	(challenging Dean Doutt's decision to 	cease
offering 	certain 	four-unit 	management 	courses 	during 	the
Intersession period, 	which Shvyrkov was 	eligible to teach) 	and
his January 	17, 	1990 response to the University's 	Level 	I
decision rejecting his December 	1, 	1989 grievance 	(see below).
It 	does 	not 	appear 	that 	Shvyrkov 	specifically demanded 	that 	the
Association consider Article 	10, 	section 	10.19(c) 	in connection
with Grievance 	II.
Shvyrkov 	also alleges 	that 	Renteria 	engaged 	in 	certain 	conduct 	in
regard to this 	grievance and 	subsequent ones 	(see below) 	which
demonstrates 	a violation of the duty of 	fair representation.
Shvyrkov 	asserts 	that 	at 	the beginning of 	her 	investigation 	of
the grievances, 	Renteria tried to persuade him to withdraw
Grievance II, 	as well as the others, 	and when this 	failed,
harassed him by 	stating that he would be 	sorry 	if 	he 	chose 	to
pursue the 	cases. 	He alleges 	that Renteria 	finally brought 	the
cases 	"to 	a dead 	end" 	when 	she presented 	"misleading 	information"
to him 	in a 	further attempt to 	convince him to withdraw his
grievances. 	She 	told Shvyrkov that 	Savage had 	informed her 	that
Shvyrkov had written his 	abstract. 	She 	also 	told 	Shvyrkov 	that
Professor G. 	Johnson had reviewed 	the 	student abstract 	and
ascertained 	that 	the 	abstract 	had been written by 	Shvyrkov.
Shvyrkov alleges 	that 	Ray Perth, 	who replaced Renteria when 	she
went 	on maternity 	leave, 	discovered 	the 	"misleading 	information"
presented by Renteria 	in February 	1990.
According to a 	letter authored by Dr. 	Duane Dove, 	Professor of
Management, 	and 	submitted to 	the undersigned by 	Shvyrkov,
Renteria 	replaced Michael 	Egan, 	as 	the Association 	representative
for Shvyrkov, 	and 	she 	lacked 	the 	experience 	and perspective 	to
pursue Shvyrkov's 	cases 	vigorously. 	When Perth 	replaced

O
Warning 	Letter
SF-CO-22-H
May 21, 1992
Page 3
Renteria, 	he revived Shvyrkov's 	grievances 	and actively pursued
them. 	During this period arbitration was 	scheduled. 	Renteria
then returned to replace Perth. 	Dove asserts 	that ultimately
Shvyrkov was 	presented with 	an unsatisfactory 	settlement 	offer
from the University on a 	"take 	it or 	leave 	it" 	basis. 	Dove's
letter also 	takes 	the position that 	Egan failed 	to make 	a 	minimal
investigation of 	the 	facts 	concerning 	authorship 	of 	the 	Savage
abstract 	and 	asserts 	that 	Savage 	told him that 	Egan never
interviewed 	him.
On October 	24, 	1989, 	Shvyrkov 	filed 	a 	third 	grievance 	("Grievance
III") 	with Association representation 	challenging the
University's 	failure 	to 	grant him reappointment 	in the 	fall 	of
1989. 	The theory of 	Shvyrkov's 	grievance was 	that the University
violated Article 12, 	section 12.7, 	which provides:
If a temporary employee applies 	for a
subsequent 	appointment and does 	not receive
one, 	his/her right to file a grievance 	shall
be 	limited to 	allegations 	of a 	failure 	to
give careful consideration. 	Such a grievance
would 	constitute 	an allegation of 	a
contractual 	violation and would not be 	a
"Faculty Status 	Matter" 	as defined 	in Article
10 of this Agreement.
Shvyrkov 	alleges 	that 	the decision was 	made personally by
Chairman W. 	Reynolds 	and not reviewed by a hiring committee, 	in
violation of 	the 	contract. 	The Association carried 	this
grievance 	through 	all 	preliminary 	steps 	of 	the 	grievance
procedure and appealed the case to arbitration in February 	19 90.
Shvyrkov 	filed 	additional 	grievances 	on December 	1, 	1989
("Grievance IV") and December 20, 	1989 ("Grievance V") with
initial representation by Renteria. 	These grievances, 	which
claimed denials 	of 	subsequent 	teaching appointments, 	were 	also
eventually 	appealed 	to 	arbitration.
On July 	18, 	1990, 	the Association received an offer from the
University to 	settle the grievances. 	This was promptly
communicated to 	Shvyrkov by Paul Worthman, 	Associate General
Manager of 	the Association. 	The 	settlement offer 	included 	salary
for the 	1989-90 	school year, 	removal 	of the 	letter of 	reprimand,
and 	"careful 	consideration" 	for 	subsequent appointments. 	In a
letter dated July 	30, 	1990, 	Shvyrkov rejected the 	settlement
offer 	stating that, 	inter alia, 	the amount of compensation was
equal 	to 	only 	25% 	of 	that 	to which he would have 	been 	entitled,
the 	University was 	demanding 	that 	he 	not 	seek 	employment 	for 	the
1990-91 	school 	year, 	he believed that Dean Doutt would 	still 	be
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capable 	of denying him an appointment 	in the 	future, 	and 	the
University's 	settlement 	offer 	constituted 	an 	acknowledgment 	that
it committed errors 	in his 	case. 	In December 	1990, 	Renteria
urged 	Shvyrkov to 	accept 	the 	offer. 	Renteria 	informed 	Shvyrkov
that 	if 	he 	refused 	the offer Worthman would 	cancel 	the
arbitration. 	Shvyrkov contends 	that this 	conduct 	as well 	as
Renteria's previous 	attempts 	to have him drop his 	grievances
demonstrates 	that 	Renteria had played a 	"double game" 	with 	the
University 	and 	"had orchestrated the whole process 	long before 	it
happened."
Shvyrkov 	appealed Worthman's 	decision not 	to 	arbitrate 	the
grievances 	based on his 	rejection of 	the 	settlement 	offer. 	The
Association's 	Representation Committee 	heard 	the 	appeal 	but
rejected it. 	In a letter dated April 	1, 	1991, 	Joan Edelstein,
the Chair of the Representation Committee, 	stated that the
Committee 	agreed with Worthman's 	decision not to 	arbitrate 	the
matter, 	stating that
there 	is 	little 	likelihood of prevailing 	in
arbitration on the merits of the dispute, 	and
less 	likely that 	an arbitrator would 	award
you full 	back pay. 	Given that 	[the
Association] 	was able to negotiate the
reprimand out of 	the 	file, 	obtain partial
back pay, 	and obtain a new and 	fair
consideration for future employment, 	we
concurred with 	the 	settlement 	and 	the
decision not to arbitrate.
In April 	1991, 	the Association, 	for reasons unknown to Shvyrkov,
persuaded 	the 	University 	to 	renew the 	July 	1990 	settlement 	offer
on the 	same terms. 	Shvyrkov again rejected the offer. 	On April
22, 	1991, 	the Association advised Shvyrkov to 	sign the 	settlement
agreement or it would, 	once again, 	withdraw the grievances 	from
arbitration. 	Worthman offered Shvyrkov the 	opportunity to
provide 	additional 	information to 	support his position. 	On May
24, 	1991, 	he wrote to Worthman asserting, 	as noted above, 	that
Renteria 	had 	engaged 	in a 	"double game" 	with 	the 	University 	and
had 	"orchestrated 	the whole process." 	Shvyrkov 	concluded with
criticism 	for Worthman's 	assertions 	that his 	cases 	were 	"weak,"
that 	the 	compensation offer was 	"significant", 	and that were
problems 	concerning 	the 	contract 	language 	covering personnel
files. 	This 	information did nothing 	to persuade 	the Association
to 	proceed with 	arbitration.
Shvyrkov 	returned 	the 	proposed 	settlement 	agreement 	with 	a 	change
which 	included a doubling of 	the amount 	of 	lost 	salary. 	On July
1, 	1991, 	the Association withdrew the grievances 	from
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Page 5
arbitration, 	and on the same date it withdrew the July 	12, 	1989
grievance 	challenging the 	letter of reprimand 	(Grievance 	II).
Shvyrkov 	filed additional grievances 	on September 	1, 	1990
("Grievance V I " ) , 	January 10, 	1991 	("Grievance VII"), April 24,
1991 	("Grievance VIII"), 	July 31, 	1991 	("Grievance IX"), 	and
October 30, 	1991 	("Grievance X " ) . 	Each of these grievances
challenged 	the 	University's 	failure 	to 	grant 	Shvyrkov 	an
appointment. 	The 	undersigned 	requested 	that 	Shvyrkov 	indicate
when requests 	for representation were made with 	respect 	to 	each
of these additional grievances, 	the description of the
controversy provided to the Association, 	and the 	nature 	of 	the
Association's 	responses. 	Shvyrkov responded 	stating 	that 	he
requested representation with regard to the 	September 	7, 	1990
grievance. 	This 	request was 	rejected by Renteria. 	Shvyrkov
forwarded the 	grievance 	to 	someone 	else 	in 	the Association and
received 	a reply 	letter dated November 	19, 	1990 	stating that 	the
Association assumed 	Shvyrkov was 	representing himself 	in 	the
matter 	and 	referred 	him 	to 	the 	University's 	Employee 	Relations
Office. 	Shvyrkov apparently did not pursue 	the matter.
Based on the 	facts 	stated above, 	the charge as 	presently written
fails 	to 	state a prima 	facie violation of 	the HEERA 	for the
reasons 	that 	follow.
Statute 	of 	Limitations
Initially, 	it must be noted that unfair practice 	charges 	must be
timely filed. 	Government Code section 3563.2(a) 	states, 	in
pertinent part:
Any employee, 	employee organization or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that the board
shall 	not 	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.
The charge was 	filed on November 26, 	1991. 	Claims 	arising prior
to May 	26, 	1991 	are therefore untimely and outside of 	PERB's
jurisdiction. 	(California 	State University, 	San Diego 	(1989)
PERB Dec. 	No. 	718-H; 	United Teachers - Los Angeles 	(Farrar)
(1990) 	PERB Dec. 	No. 	797.) 	It appears that the failure or
refusal to process Grievances VI, 	VII, 	and VIII 	occurred prior to
May 26, 	1991 	and must be dismissed as 	untimely.
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Duty 	of 	Fair Representation
In order' to 	state a prima 	facie case 	involving a breach of the
duty of 	fair representation, 	facts must be alleged 	in the 	charge
indicating how and 	in what 	manner 	the Association refused 	to
process 	a meritorious 	grievance 	for arbitrary, 	discriminatory or
bad 	faith reasons. 	In United Teachers 	of Los Angeles 	(Collins)
(1982) 	PERB Dec. 	No. 	258, 	the PERB 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.
A union may exercise 	its 	discretion to
determine how far to pursue a grievance 	on
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.
(Reed District Teachers Association. 	CTA/NEA
(Reyes) 	(1983) PERB Dec. No. 	332, citing
Rocklin 	Teachers 	Professional 	Association
(Romero) 	(1980) 	PERB Dec. 	No. 	124.)
In this 	case, 	the charge 	fails 	to demonstrate that the
Association's decision not to pursue Grievances 	II, 	III, 	IV, 	and
V through 	arbitration was without 	a 	rational 	basis 	or devoid 	of
honest 	judgment. 	The decision not to arbitrate 	the grievances
must 	be 	viewed 	in 	light 	of 	the 	settlement 	offer 	negotiated 	by 	the
Association and presented to 	Shvyrkov. 	This 	offer resulted 	in a
substantial, 	if not total, 	resolution of Grievance II, 	provided
partial 	compensation for 	lost teaching appointments, 	and 	a
promise 	to 	acknowledge 	and 	adhere 	to 	the 	contract 	regarding
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Page 7
future appointments. 	The evidence does 	not demonstrate that this
was 	negotiated 	in bad 	faith 	or was 	tantamount 	to 	refusing 	to
process 	a meritorious 	grievance. 	Although 	Shvyrkov was 	entitled
personnally to view this 	settlement as 	unsatisfactory, 	the
Association's 	refusal 	to proceed with 	arbitration has 	not 	been
shown to be arbitrary, 	discriminatory, 	or in bad faith. 	The
Association was 	entitled 	to 	exercise discretion 	in determining
how far to proceed with the grievances, 	and, 	based on the 	facts
alleged, 	did not 	ignore meritorious 	grievances 	or handle 	them in
a perfunctory manner. 	(United Teachers 	of Los Angeles 	(Collins),
supra, PERB Dec. No. 2 58.)
The 	charge does 	allege 	that 	Renteria 	acted 	in bad 	faith 	by 	first
seeking 	to 	have 	Shvyrkov withdraw his 	grievances 	and presenting
misleading 	information to 	him 	concerning 	her 	investigation 	to
further her purpose, 	however, 	these allegations 	are 	insufficient
to demonstrate that the Association breached 	its 	duty 	of 	fair
representation. 	This 	conduct occurred at 	the outset of 	the
grievances 	in the fall of 	1989. 	Subsequent to that time, 	Perth
replaced 	Renteria 	for a period of time 	and was 	successful 	in
moving the grievances 	forward. 	In addition, 	Shvyrkov responded
to Worthman, 	rather than Renteria, 	when the 	settlement offer was
first made 	in July 	1990 	and 	it appears 	to have been Worthman's,
rather than Renteria's, 	decision not to arbitrate the grievances.
Ultimately, 	the Association was 	in a position to proceed with
arbitration of all of the grievances, 	except Grievance II, 	which
it asserted to 	lack merit, 	but which would have been
substantially 	resolved through 	the 	acceptance 	of 	the 	settlement.
Therefore, 	Renteria's 	conduct had little or no 	impact on the
ultimate decision to withdraw the grievances. 	Moreover, 	the
allegation that 	Renteria 	"orchestrated the whole process" 	and
engaged 	in a 	"double 	game" 	with 	the 	University 	to 	compromise 	his
grievances 	is 	conclusory and 	lacking 	in 	supporting 	evidence.
Although 	it 	appears 	that 	the Association's 	refusal 	to process
Grievance 	IX and Grievance X may be 	timely, 	no 	facts 	are alleged
to demonstrate 	that 	the Association refused 	to process 	these
grievances 	(or, 	for that matter the untimely Grievances VI, 	VII
and VIII) 	for arbitrary, 	discriminatory or bad 	faith reasons. 	In
a 	letter dated May 	6, 	1992, 	the undersigned requested Shvyrkov 	to
provide 	evidence of when he made his 	requests 	for representation,
the 	evidence 	of 	a violation that 	he provided to 	the Association,
and the 	response he received to 	each of his 	requests. 	Shvyrkov
failed 	to 	respond with 	the 	evidence 	as 	to 	these 	grievances
necessary 	to demonstrate 	a breach of 	the duty of 	fair
representation.
For these reasons, 	the charge 	as presently written does 	not 	state
a prima 	facie 	case 	If there 	are any 	factual 	inaccuracies 	in
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Page 8
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 al
and must be 	signe	- l the 	facts and allegations you wish to make,
d 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 May
29, 	19921 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional 	Attorney
.._,
.