Berkeley Federation of Teachers (Lavan) (PERB 1193E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELAINE 	LAVAN,
Charging 	Party,
v.
BERKELEY FEDERATION OF TEACHERS,
Respondent.
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Case No. 	SF-CO-510
PERB Decision No. 	1193
April 29, 	1997
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Appearances: 	Elaine Lavan, 	on her own behalf; 	Van Bourg,
Weinberg, 	Roger & Rosenfeld by Stewart Weinberg, 	Attorney,
for Berkeley 	Federation of 	Teachers.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal by Elaine Lavan 	(Lavan) 	to a
Board agent's 	dismissal 	(attached) 	of 	the unfair practice 	charge
and refusal 	to 	issue a 	complaint. 	Lavan alleged that 	the
Berkeley 	Federation of Teachers 	(Federation) 	denied her the 	right
to 	fair 	and 	impartial 	representation guaranteed by 	section 	3544.9
of 	the Educational 	Employment Relations Act 	(EERA), 	in violation
of 	EERA section 3543.6(b),1 by failing to assist her in
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6 	states:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause 	or attempt 	to 	cause a public
school 	employer 	to violate Section 3543.5.
(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.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with a public 	school 	employer of
any of 	the 	employees 	of which it 	is 	the
exclusive 	representative.
(d) 	Refuse to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
investigating why 	she was 	not 	selected 	for 	certain positions 	with
the 	Berkeley Unified 	School 	District.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the Board agent's warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	Lavan's 	appeal,
and the 	Federation's 	response. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and therefore
adopts 	them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CO-510 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	( 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
December 4, 	1996
Elaine Lavan
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Elaine Lavan v. 	Berkeley Federation of Teachers
Unfair Practice Charge No. 	SF-CO-510
Dear Ms. Lavan:
The above-referenced unfair practice charge alleges the Berkeley-
Federation of Teachers 	(Federation) 	failed to fairly represent
you concerning a dispute with the Berkeley Unified School
District 	(District). 	This conduct is alleged to violate
Government Code section 3543.6(b) 	of the Educational Employment
Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated August 1, 	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 August 12, 	1996, 	the charge
would be dismissed.
On August 12, 	1996, 	I received a First Amended Charge. 	The
amended charge 	reiterates the initial allegations and adds the
following.
On April 8, 	1996, 	you contacted Federation Vice-President Doug
Abadie regarding your unfair practice charge. 	Mr. 	Abadie
informed you that 	the District was entitled to hire anyone it
chose for the Computer Literacy Instructor position, 	and that the
District was not 	required to provide you with an explanation as
to why you were not selected. 	Mr. 	Abadie also informed you
bargaining unit members do not 	receive preferential hiring status
when a position within the unit opens up.
Shortly after this conversation, 	you contacted Frank Brunetti,
Assistant Superintendent of Personnel 	to inquire as 	to why you
were not selected for the open position. 	Mr. 	Brunetti stated he
would speak to Principal Poe regarding the matter. 	After
speaking with Mr. 	Poe, 	Mr. 	Brunetti stated you were not selected

Dismissal 	Letter
SF-CO-510
December 4, 	1996
Page 2
because the hiring committee 	felt 	the other applicant was more
qualified for the position.
On September 25, 	1996, 	you met with Joan Anderson, 	a Consultant
with the Department of Fair Employment and Housing 	(DFEH)
regarding your discrimination complaint. 	During that meeting,
you discovered the District 	submitted a performance evaluation to
the DFEH which you had never seen. 	You do not state whether you
contacted the 	Federation regarding this discovery.
You further allege the District violated the following
contractual provisions: 	(1) 	Section 6.2 	regarding
discrimination in the workplace; 	(2) 	Section 7.2.1 regarding your
right to representation during the grievance procedure; 	(3)
Section 9.6.1 governing rehire rights; 	(4) 	Section 21.7 regarding
preferential consideration; 	and 	(5) 	Section 21.8 regarding the
posting of open positions.
Based on the above stated facts, 	the charge fails to state a
prima facie violation of the duty of 	fair representation.
The charge does not indicate you contacted the Federation
regarding a discrimination violation. 	Thus, 	it is unclear how
the Federation failed to fairly represent you regarding this
issue. 	Moreover, 	the duty of fair representation is limited to
contractually based remedies under the 	Federation's 	exclusive
control. 	(California Union of Safety Engineers 	(John) 	(1995)
PERB Decision No. 	1064-S.) 	Thus, 	as to a violation of Section
6.2, 	the Federation is not obligated to assist you in presenting
your case to the DFEH or any other administrative agency.
Section 7.2 	of 	the Agreement provides 	representation for
bargaining unit members during the grievance process. 	The charge
does not indicate you filed a grievance against the District, 	and
as such it 	is unclear how the Federation failed to fairly
represent you with regard to this section of the Agreement.
With regard to Section 9.6.1, 	you allege the District violated
this provision of 	the Agreement when it hired another teacher for
the position. 	Section 9.6.1 of 	the Agreement states 	in pertinent
part:
A teacher who has 	taught a class 	the previous
four 	(4) 	semesters to the satisfaction of the
District, 	shall have priority in teaching the
class 	(subject, 	time and location) 	the next
time it is offered.

Dismissal 	Letter
SF-CO-510
December 4, 	1996
Page 3
You allege the Federation allowed the District 	to violate this
provision of the Agreement 	in hiring another teacher. 	However,
this provision is not applicable 	in your situation as you had not
taught this class the previous four 	(4) 	semesters. 	Thus, 	the
Federation did not violate 	its duty of 	fair representation in
failing to file a grievance over the violation of this 	section.
Section 21.7 states bargaining unit 	teachers shall receive
preferential 	consideration for hourly assignments 	for which they
are credentialed. 	The charge fails to demonstrate, 	however, 	that
the District violated this provision of 	the Agreement and that
the Federation failed to make an honest and reasonable
determination regarding your complaint. 	Moreover, 	the charge
does not provide sufficient facts to determine whether this
provision of the Agreement applies 	in your situation.
Finally, 	you allege the Federation ignored the District's
violation of Section 21.8 which requires the District to post
notices of open positions. 	It is unclear, 	however, 	from the
charge how the District violated this provision and how the
Federation failed in its duty to represent you with regard to
your employment. 	In my August 1, 	1996 letter, 	I indicated that
you must, 	at minimum, 	present facts demonstrating how the
Federation's 	inaction was without rational basis or devoid of
honest judgement. 	The charge, 	as amended, 	fails to demonstrate
any of these facts, 	and as such must be dismissed.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained herein and in my August 	1, 	1996 letter.
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 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

Dismissal 	Letter
SF-CO-510
December 4, 	1996
Page 4
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. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 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 	(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. 	(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,
ROBERT THOMPSON
Deputy General 	Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Stewart Weinberg

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 1, 	1996
Elaine Lavan
Re: 	WARNING LETTER
Elaine Lavan v. 	Berkeley Federation of Teachers
Unfair Practice Charge No. 	SF-CO-510
Dear Ms. Lavan:
The above-referenced unfair practice 	charge alleges 	the Berkeley-
Federation of Teachers 	(Federation) 	failed to fairly represent
you 	concerning a dispute with the Berkeley Unified School
District 	(District). 	This conduct is alleged to violate
Government Code section 3543.6(b) 	of the Educational Employment
Relations Act 	(EERA).
Investigation of the charge revealed the following. 	Ms. 	Lavan
was 	employed as a Computer Application Teacher for the District.
During 1994-95, 	Ms. 	Lavan was off of work for six months due to a
physical 	attack that 	rendered her disabled.
On February 2, 	1996, Ms. Lavan attempted to return to work, but
was denied access to her class by Mr. 	Poe, 	the school's
principal, 	as a substitute was already in place. 	Ms. 	Lavan
contacted Shirley VanBorg, 	Federation Vice President, 	and
discussed the problem. 	Ms. VanBorg allegedly contacted Mr. 	Poe,
and Ms. 	Lavan was reinstated in her classroom.
During late March 1996, Ms. 	Lavan applied for the position of
Computer Literacy Instructor. During the April 2, 199 6,
interview for this position, 	Susan Krammer, 	Program Director for
Career Development, 	stated that Ms. 	Lavan had an absence problem
which might hinder her application for the position. 	Ms. 	Lavan
states 	she has never been warned or reprimanded regarding an
absence problem.
On April 4, 	1996, 	the District denied Ms. 	Lavan the Instructor
position, 	and allegedly offered her another Computer Literacy
Instructor position at the West Berkeley Senior Center. 	The
District allegedly retracted this 	offer two weeks 	later.

Warning 	Letter
SF-CO-510
August 1, 199 6
Page 2
On July 30, 	1996, 	I 	telephoned you regarding additional
information needed 	to process 	your 	charge. 	During 	our
conversation, 	you 	stated 	that 	after being denied 	the 	Computer
Literacy 	Instructor position, 	you 	contacted Doug Abadie,
Federation Vice 	President. 	You 	informed Mr. 	Abadie you were
concerned 	that 	the 	District 	had 	hired an 	outside 	teacher 	for 	the
position, 	as 	this 	outside 	teacher would be 	receiving additional
hours, 	making him eligible 	for contract 	status. 	Mr. 	Abadie
acknowledged your 	concerns 	and promised 	to 	speak with 	the
Federation 	President 	regarding 	this 	issue. 	After discussing 	the
matter with the 	Federation President, 	Mr. 	Abadie 	telephoned you
and 	informed you 	that 	it 	was 	unlikely 	the District 	would 	contract
another teacher, 	as 	there was 	no 	room in 	the District's 	budget
for 	this position. 	Feeling unsatisfied with Mr. 	Abadie's
response, 	you contacted District Superintendent, 	Frank Bernetti,
who responded similarly to Mr. 	Abadie.
Ms. 	Lavan 	states 	she was 	denied 	the 	new positions based on her
physical 	disabilities, 	and 	feels 	the 	Federation should have
investigated 	the 	hiring 	of 	the 	Computer 	Literacy 	Instructor.
Based on the above 	stated 	facts, 	the 	charge 	fails 	to 	state 	a
prima 	facie violation of 	the duty of 	fair representation, 	for the
reasons 	that 	follow.
Charging 	Party 	has 	alleged 	that 	the 	exclusive 	representative
denied 	Charging 	Party 	the 	right 	to 	fair 	representation guaranteed
by 	EERA section 	3544.9 	and thereby violated 	section 	3543.6(b).
In order to 	state a prima 	facie violation of 	this 	section of
EERA, 	Charging 	Party must 	show that 	the Association's 	conduct 	was
arbitrary, 	discriminatory or 	in bad 	faith.
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.]
In the 	instant 	charge, 	it 	is 	not 	clear how the 	Federation's
handling 	of 	her 	situation with 	the District 	is 	contrary 	to 	its
duty. 	Ms. 	Lavan does 	not allege 	the 	Federation failed to assist

Warning Letter
SF-CO-510
August 1, 199 6
Page 3
her in resolving these matters. 	Thus, 	the charge fails to state
a prima facie case.
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 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 August 12. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Kristin L. 	Rosi
Regional Attorney