East Side Teachers Association, CTA/NEA (Hernandez) (PERB 1223E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RICHARD A. 	HERNANDEZ,
Charging 	Party,
v.
EAST SIDE TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
)
)
) 	Case No. 	SF-CO-525
PERB Decision No. 	1223
October 20, 	1997
)
)
)
)
)
)
)
Appearances: 	Richard A. 	Hernandez, 	on his own behalf; 	California
Teachers Association by Priscilla Winslow, 	Attorney, 	for East
Side Teachers Association, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by Richard A. 	Hernandez
(Hernandez) 	to a Board agent's dismissal 	(attached) 	of his unfair
practice 	charge. 	Hernandez alleges 	that 	the East 	Side Teachers
Association, 	CTA/NEA 	(Association) 	denied him the right 	to 	fair
and 	impartial 	representation 	guaranteed by 	section 	3544.9 	of 	the
Educational Employment Relations Act 	(EERA), 	in violation of
section 3543.6(b),1 by failing 	to assist 	him with a grievance
1BERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
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.
Section 3543.6 states, 	in part:
It 	shall 	be unlawful 	for an employee

related 	to 	teaching 	assignments.
organization to:
(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.
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, 	Hernandez' 	appeal,
and the Association's 	response. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	SF-CO-525 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	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
July 8, 	1997
Richard A. 	Hernandez
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Richard A. 	Hernandez v. 	East Side Teachers Association,
CTA/NEA
Unfair Practice Charge No. 	SF-CO-525
Dear Mr. Hernandez:
The above-referenced unfair practice charge, 	filed June 17, 	1997,
alleges 	the East Side Union Teachers Association 	(Association)
and the California Teachers Association 	(CTA) 	violated their duty
of fair representation. 	You allege this conduct violates
Government Code section 3543.6 	of 	the Educational 	Employment
Relations Act 	(EERA or Act) .
I indicated to you, 	in my attached letter dated June 26, 	1997,
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 July
3, 	1997, 	the charge would be dismissed.
On July 1, 	1997, 	I spoke with you regarding the June 26, 	1997,
letter. 	I again explained the deficiencies in the original
charge, 	and further explained PERB's statute of limitations. 	On
July 2, 	1997, 	I received a first amended charge. 	The first
amended charge states 	in its entirety:
See Attached Papers- 	Lisa Vieler 	(ESTA) 	and
Bill Empy 	(CTA) 	did not represent Richard
Hernandez properly in grievance procedure.
Lisa Vieler and Bill 	Empy did not 	enforce
article 8.3 	of 	collective bargaining
agreement. 	Lisa V. 	and Bill Empy gave Mr.
Hernandez wrong information year after year
and did not 	insist 	on arbitration based on
violation of article 	8.3.

Based on the 	facts 	contained in both the original and amended
charges, 	the charge fails to state a prima facie violation of the
duty of fair representation, 	and is therefore dismissed.
As noted in the June 26, 	1997, 	letter, 	Government Code section
3541.5(a)(1) 	prohibits the Board from issuing a complaint 	in
respect of any alleged unfair practice occurring more than six
months prior to the filing of the charge. 	As this charge was
filed on June 17, 	1997, 	all allegations occurring prior to
December 17, 	1996, 	are untimely and outside of PERB's
jurisdiction. 	The amended charge fails to provide any facts
demonstrating an allegation of unlawful 	conduct during PERB's six
month statute of limitations. 	Documents attached to the charge
demonstrate 	the 	final 	communication between the Association and
Charging Party took place on December 3, 	1996, 	outside of PERB's
jurisdiction. 	As such, 	the charge must be dismissed as untimely.
Assuming, 	however, 	the allegations are timely filed, 	Charging
Party still 	fails to state a prima facie case. 	Charging Party's
original and amended charges assert 	the Association provided the
"wrong" 	information regarding the legality of Charging Party's
assignment to teach CHD courses. 	Specifically, 	the original
charge alleges Ms. 	Vieler and Mr. 	Empey informed Charging Party
that the District could assign him to teach these courses. 	As
noted in my June 26, 	1997, 	letter, 	the collective bargaining
agreement 	did not prohibit 	the District 	from assigning you to
teach the CHD courses. 	While such an assignment by the District
may have violated the Education Code, 	the Association is not
obligated to notify you of a potential noncontractual 	remedy.
(University Council. 	AFT 	(Ninq-Ping Chan) 	(1994) 	PERB Decision
No. 	1062-H.) 	As such, 	the Association did not violate their duty
of 	fair representation in advising you of your contractual
rights.
On August 31, 	1996, 	a new collective bargaining agreement between
the District and the Association took effects. 	Article 8 of the
new Agreement states in pertinent part:
8.3 	Reassignments will not be arbitrary or
capricious. 	Such placements must conform to
Ed. 	Code and credential requirements.
8.5 	The District will make every effort 	to
balance teacher schedules so that equal
opportunity is afforded all unit members who
request to teach all levels of courses,
regardless of seniority.
The amended charge asserts 	the Association failed to inform you
of these provisions and failed to take your grievances 	to
arbitration based on these provisions. 	As noted in my June 26,
1997, 	letter, 	the charge fails to present evidence that you filed
a grievance that- would be governed by this contractual language.
Allegations presented in the original 	charge contend you filed a
I (

grievance regarding your 1994-95, 	1995-96, 	and 1996-97 schedules.
Each of these schedules were assigned prior to the effective date
of the contractual language quoted above, 	and as such would not
be governed by this 	contractual 	language. 	This was noted also in
Mr. 	Empey's December 3, 	1996, 	to Charging Party in which Mr.
Empey informed Charging Party that he 	could attempt 	to raise 	the
new contractual 	language during his grievance hearings and hope
the District would take the new changes 	into consideration. 	As
such, 	the Association could not have taken your grievances to
arbitration based on this 	contractual 	language as 	it did not
exist at 	the time your schedules were assigned or during the time
when your grievances were filed. 	Therefore, 	Charging Party's
allegation that 	the Association violated its duty of 	fair
representation is dismissed.
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
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: 	Priscilla Winslow

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
an Francisco, CA 94108-4737
15) 439-6940
PERO 	S
(4
June 26, 	1997
Richard A. 	Hernandez
Re: 	WARNING LETTER
Richard A. 	Hernandez v. 	East Side Teachers Association.
CTA/NEA
Unfair Practice Charge No. 	SF-CO-525
Dear Mr. Hernandez:
The above-referenced unfair practice charge, 	filed June 17, 	1997,
alleges the East Side Union Teachers Association 	(Association)
and the California Teachers Association 	(CTA) 	violated their duty
of fair representation. 	You allege this conduct violates
Government Code section 3543.6 	of 	the Educational 	Employment
Relations Act 	(EERA or Act).
Investigation of the charge revealed the following. 	You are
employed by the District as a high school 	instructor at Silver
Creek High School 	in the East Side Union High School District
(District). 	You are exclusively represented in your employment
by the East Side Teachers Association, 	CTA/NEA. 	The Association
and District are parties to a collective bargaining agreement
(Agreement) 	which expired on August 31, 	1996.
The charge alleges that for the last ten years, 	the District has
harassed you 	"for no apparent reason," 	and that 	the Association
has failed to represent you. 	Specifically, 	you allege the
Association processed a number of grievances on your behalf, 	but
failed to take any of the grievances to binding arbitration.
Additionally, 	you assert the Association gave you the wrong
information concerning your reassignment by the District.
Your 1994-95 schedule assigned you to teach three 	(3) 	Biology
courses and two 	(2) 	Introduction to Science courses. 	You were
also assigned to teach two 	(2) 	periods of Careers, 	Health and
Driver's Education 	(CHD). 	You believed the assignment to CHD was
outside your credentialed area and thus you requested the advice
of Association President, 	Lisa Vieler. 	Ms. Vieler informed you
that any credentialed teacher could be assigned to teach CHD.
•
'	------"--__J_('--
•

Warning Letter
SF-CO-525
June 26, 	1997
Page 2
Your 1995-96 schedule assigned you to teach three 	(3) 	Integrated
Science I courses and two 	(2) 	Integrated Science II courses.
However, 	on September 11, 	1995, Associate Principal Dorothy
Westerhoff reassigned you to teach all CHD courses. 	You again
contacted Ms. 	Vieler regarding this change. 	Although specific
dates are not provided, 	the charge indicates you filed a
grievance over this reassignment in September, 	1995, 	which was
processed at least through Level 	III of the grievance procedure.
Apparently, 	this grievance alleged the District violated the
transfer provisions of the Agreement.
Your 1996-97 	schedule again assigned you to teach five 	(5)
periods of CHD. 	In November, 	1996, 	you met with Association
Executive Director, 	Bill Empey, 	and other members of the
Association's 	grievance committee regarding your assignment 	to
CHD classes. 	On December 3, 	1996, 	Mr. 	Empey responded with the
Association's position on the matter. 	Mr. 	Empey explained that
your grievance alleged violations of Article 7, 	which provides
for transfers between school sites. 	As this was not the case in
your situation, 	Mr. 	Empey explained that your grievance may
likely be denied on this basis. 	However, 	Mr. 	Empey also provided
you 	further guidance regarding your grievance based on newly
negotiated contract 	language 	concerning the assignment 	of
teachers.
Finally, 	the charge asserts that over the last four years, 	the
Association has filed numerous grievances on your behalf, 	but has
failed to take any of these grievances to arbitration. 	The
charge, 	however, 	presents specific facts on only grievances
presented to the Association in 1993 and 1994.
Based on the above-stated facts, 	the charge as presently written,
fails to state a prima facie violation of the EERA, 	for the
reasons stated below.
Government Code section 3541.5(a)(1) 	prohibits the Board from
issuing a complaint 	in respect 	of any alleged unfair practice
occurring more than six months prior to the filing of 	the charge.
This charge was filed on June 17, 	1997. 	Therefore, 	all
allegations of unlawful conduct occurring prior to December 17,
1997,. are untimely and outside PERB's jurisdiction. 	As the
charge fails to present any facts or allegations within the last
six months, 	the charge is untimely and must be dismissed.
Assuming, 	however, 	Charging Party is alleging the Association
acted in violation of the duty within the last six months, 	the
charge still 	fails to state a prima facie case. 	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). 	The duty of fair
representation imposed on the exclusive representative 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 of 	this section of EERA, 	Charging Party must show that
the Association's conduct was arbitrary, 	discriminatory or in bad
faith. 	In United Teachers of Los Angeles 	(Collins). 	the Public
Employment Relations Board stated:
Warning 	Letter
SF-CO-525
June 26, 	1997
Page 3
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.]
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.]
Charging Party asserts 	the Association gave him misinformation
regarding his reassignment into CHD courses. 	It appears,
however, 	from the facts presented the Association was correct in
stating that 	the District's action did not violate the collective
bargaining agreement. 	While the District's action may have
violated the Education Code, 	the Association's duty of fair
representation is 	limited to contractually based remedies under
the union's exclusive control. 	(San Francisco Classroom Teachers
Association 	(Chestangue) 	(1985) 	PERB Decision No. 	544
(association not 	obligated to represent 	employee 	in Education
(

Code hearing).) 	Nor does a union have an obligation to notify an
employee that a noncontractual 	remedy exists. 	(University
Council. AFT 	(Ninq-Ping Chan) 	(1994) 	PERB Decision No. 	1062-H.)
As such, 	the Association's information and action did not violate
its duty of 	fair representation.
Warning Letter
SF-CO-525
June 26, 1997
Page 4
Charging Party also asserts 	the Association failed to take his
grievances to binding arbitration. 	The Association has exclusive
control over access 	to the arbitration step of the grievance
machinery, 	and thus can determine which cases it wishes to pursue
to arbitration. 	(San Francisco Federation of Teachers 	(Hagopian)
(1982) 	PERB Decision No. 	222.) 	In the instant allegation,
Charging Party alleges the Association refused to take his
grievances to arbitration as 	they believed the grievances lacked
merit and would result in a loss 	for the Association. 	As the
charge fails 	to present 	facts demonstrating such a position was
unreasonable or devoid of rational basis, 	the allegation fails to
demonstrate 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 July 3. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney