San Juan Teachers Association, CTA/NEA (Himes, et al.) (PERB 1322E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VALERIE HIMES, 	ET AL.,
Charging 	Parties,
v.
SAN JUAN TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
)
)
) 	Case No. 	SA-CO-410
PERB Decision No. 	1322
April 	8, 	1999
)
)
)
)
)
)
)
Appearances: 	Valerie Himes 	for Valerie Himes, 	et al.; 	California
Teachers Association by Ramon E. 	Romero, 	Attorney, 	for San Juan
Teachers Association, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by Valerie Himes, 	et al.
(Charging Parties), 	to a Board agent's dismissal 	(attached) 	of
the unfair practice 	charge. 	Charging Parties alleged that 	the
San Juan Teachers Association, 	CTA/NEA 	(Association) 	denied them
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 negotiating
1EERA is 	codified at Government 	Code section 3540 	et 	seq.
Section 3544.9 	provides 	that:
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 pertinent part:

provisions 	contrary 	to 	the 	interests 	of 	resource 	teachers 	and by
failing 	to 	communicate 	with and 	seek 	input 	from resource 	teachers
prior 	to 	negotiating new 	contract 	provisions 	affecting 	them.
It 	shall 	be unlawful 	for an employee
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, 	Charging 	Parties'
appeal 	and the Association'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. 	SA-CO-410 	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
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
November 16, 	1998
Valerie 	Himes
Re: 	Valerie Himes. 	et al. 	v. 	San Juan Teachers Association
Unfair Practice 	Charge No. 	SA-CO-410
DISMISSAL 	LETTER
Dear Ms. 	Himes:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment Relations Board 	(PERB or Board) 	on March 20,
1998. 	The 	charge 	alleges 	that 	the 	San Juan Teachers Association
(Association) 	denied the 	Charging Parties 	fair representation,
guaranteed by the Educational 	Employment 	Relations Act 	(EERA),
Government 	Code 	section 	3544.9, 	and thereby violated 	section
3543.6(b), 	by negotiating provisions contrary to the 	interests of
resource 	teachers 	and by 	failing 	to 	communicate 	with 	and 	seek
input 	from 	resource 	teachers 	prior 	to 	negotiating new 	contract
provisions 	which 	adversely affect 	them.
I 	indicated in my attached letter dated August 	6, 	1998, 	that 	the
above-referenced charge 	did not 	state 	a prima 	facie 	case.
Charging 	Parties were 	advised that 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts which would 	correct 	the
deficiencies 	explained in that 	letter, 	the 	charge 	should be
amended. 	Charging Parties 	were 	further 	advised 	that 	unless 	they
amended 	the 	charge 	to 	state 	a prima 	facie 	case 	or withdrew it
prior to August 	24, 	1998, 	the 	charge would be dismissed.
Charging 	Parties 	requested 	and were 	granted 	an 	extension 	of 	time
to 	file 	an amended 	charge. 	An amended charge was 	filed on
September 24, 	1998.
The 	information provided 	in 	the 	amended 	charge 	does 	not 	address
the 	first 	allegation in the 	charge, 	that 	the Association violated
its 	duty of 	fair representation when 	it 	negotiated provisions
which were 	adverse 	to 	the 	interests 	of 	resource 	teachers. 	When
we 	discussed the 	charge by phone, 	you clarified that 	the 	Charging
Parties 	are 	not 	challenging 	the Association's 	right 	to negotiate
contract 	provisions 	which may have 	unfavorable 	effects 	on 	some
members. 	Instead, 	Charging Parties 	assert 	that 	the Association
violated 	its 	duty of 	fair 	representation by 	acting 	in bad 	faith
when 	it 	deliberately and willfully concealed 	the 	nature 	of 	their
contract 	proposals 	regarding resource 	teachers 	and 	failed 	to 	seek
input 	from or communicate 	with resource 	teachers 	concerning 	these

SA-CO-410
Dismissal 	Letter
Page 	2
proposals 	during the bargaining process. 	Since you do not
challenge 	the 	first 	allegation, 	that 	allegation 	is 	dismissed 	in
accordance with the 	discussion 	in the 	attached 	letter.
In 	the 	amended 	charge 	you provide 	information 	regarding the
Association's 	bargaining 	conduct 	concerning 	the 	proposals
affecting 	resource 	teachers. 	The Association ultimately reached
agreement 	with 	the 	District 	on 	a 	contract 	for 	the 	1997-98 	school
year 	which 	included provisions 	which 	specifically 	affect 	resource
teachers. 	These 	included provisions which 	limit 	resource
teachers 	to 	a 	four year 	term and redefine 	the 	length of 	the
resource 	teachers' 	work day.
In January 1997, 	the Association conducted a meeting of 	its
bargaining unit 	members 	to 	develop 	its 	bargaining proposals 	for
the 	1997-98 	successor contract. 	Charging Parties 	contend that
proposals 	concerning 	resource 	teachers 	were 	not 	proposed or
discussed at 	this meeting. 	Charging Parties 	further allege 	that
the 	resource 	teacher proposals 	were 	not 	discussed 	at 	the
Association's 	monthly 	representative's 	meetings 	which were 	held
throughout 	the 	bargaining process.
On February 21, 	1997, 	Association President 	Steve Duditch sent 	a
letter 	to 	the 	District 	school 	board in which the Association
presented 	its 	"bargaining 	interests 	for the 	1997/98 	successor
agreement." 	The Association's 	proposal 	concerning resource
teachers, 	placed under Article 4, 	Transfers, 	stated, 	"Provide
language 	re: 	limited term assignments 	of bargaining unit
members." 	The 	District 	was 	then required to 	"sunshine" 	the
Association's 	proposals 	by making 	them available 	for public
review.
Charging 	Parties 	contend 	that 	this 	proposal 	was 	not 	sufficiently
clear 	to put 	resource 	teachers 	on notice 	that 	the Association
proposed 	to 	limit 	resource 	teachers 	to a 	specified term in the
position. 	Charging Parties 	assert 	that 	elsewhere 	in 	its
bargaining proposals 	the Association 	identified which groups 	of
employees would be 	affected by its proposals. 	However, 	Charging
Parties 	contend 	that 	the Association 	deliberately 	refrained 	from
specifying that 	the 	"bargaining unit 	members" 	in this proposal
refers 	only to resource teachers.
The 	District's 	summary minutes 	of 	the bargaining 	sessions 	between
the Association 	and 	the District 	indicate 	that 	the 	resource
teacher 	issue 	was 	first 	discussed at 	the bargaining 	table 	on
June 	26, 	1997. 	Charging Parties assert 	that 	the minutes 	show
that 	the Association wanted 	to 	eliminate 	the 	resource 	teacher
positions, 	but, 	failing that, 	make assignment to these positions
undesirable. 	The June 26, 	1997 minutes state, 	in part:
(

SA-CO-410
Dismissal 	Letter
Page 3
The 	next 	item was 	the 	resource 	teachers 	and
the five issues 	. 	. 	. 	selection process,
extra pay, 	identification of hours worked,
return rights, 	evaluation instrument, 	terms
of 	a s s i g n m e n t . . . .
SJTA feels 	the 	DRT 	[district 	resource
teachers] 	is not cost effective, 	and the site
is 	better able 	to determine 	and provide 	the
kind of 	service 	the 	current 	DRT 	are
performing. 	District 	resource 	teachers 	are
not 	needed.
The August 	13, 	1997 	summary minutes state:
* 	SJTA negotiators 	presented an 	extensive
draft 	for 	the 	conditions 	under which the
district 	resource 	teachers would work. 	The
draft 	eliminated 	extra-pay 	and 	continued 	with
term limits.
Finally, 	the September 19, 	1997 minutes list the 	following 	"key
points" 	concerning resource 	teachers:
* 	Position 	advertised
* 	Term 	limits
* 	No 	consecutive 	terms
* 	No 	extra pay
* 	No 	responsibility dollars. 	SJTA believes
going to the district 	has perks; 	i.e.
flexibility 	in work day. 	This 	last point 	is
most 	confusing 	as 	the 	association 	knew our
hours 	were 	from 	8:00 	to 	5:00 	and 	there 	is
little 	flexibility in these 	hours.
During the period of October 1-10, 	1997, 	the Association and the
District 	reached tentative 	agreement 	on 	the 	terms 	of 	the 	1997-98
collective bargaining agreement 	(CBA). 	Thereafter, 	Charging
Parties 	learned 	that 	the 	CBA contained provisions 	affecting
resource 	teachers. 	Charging Parties 	sought 	meetings with
Mr. 	Duditch and Tom Alves, 	the Association's Executive Director,
which were held on October 13 	and 15, 	1997, 	and resource 	teachers
met with the Association's 	executive board on November 4, 	1997.
In response to the resource teachers' 	questions, 	Association
representatives 	denied that 	it 	sought 	to 	eliminate 	the 	resource
teacher positions. 	The 	resource 	teachers were 	also 	told that
negotiations 	were 	complete, 	the Association 	and the 	District 	were
merely finalizing the 	contract 	language, 	and that 	further 	input
was 	not 	permitted.
(

SA-CO-410
Dismissal 	Letter
Page 	4
On October 21, 	1997, 	the Association sent 	a letter to the union
membership 	outlining 	the 	terms 	of 	the 	tentative 	agreement 	and
recommending 	that 	the 	members 	ratify the proposed contract. 	The
Association held 	informational 	meetings 	on October 	27 	and 28,
1997. 	The 	contract 	ratification vote was 	conducted on November
4, 	5 and 6, 	1997, 	wherein the contract was ratified.
As 	I 	previously discussed 	in 	the 	attached 	letter, 	the 	Board has
held 	that 	the 	duty of 	fair 	representation 	requires 	an exclusive
representative, 	when conducting contract negotiations, 	to
consider 	the views 	of 	employees 	and provide 	"some 	access 	for
communication of 	those views." 	(El 	Centro Elementary Teachers
Association 	(1982) 	PERB Decision No. 	232. 	In Oxnard Educators
Association 	(1988) 	PERB Decision No. 	681 	(Oxnard). 	however, 	the
Board determined 	that 	it 	was 	sufficient 	for 	a 	union 	to 	inform
union members 	of 	the 	terms 	of 	the 	negotiated 	tentative 	agreement
at 	a 	ratification meeting. 	By providing union members with an
opportunity to be 	heard during 	a 	ratification meeting, 	the 	Board
concluded that 	a union has 	met 	its 	duty of 	fair 	representation
obligation.
In California Sate Employees Association 	(Hackett) 	(1993) 	PERB
Decision No. 	1012-S, 	the Board rejected an allegation that 	the
union 	failed 	to provide 	the 	union membership with 	adequate
information 	to make 	an 	informed vote 	on 	the proposed 	agreement.
The 	Board ruled 	that 	a 	failure 	to provide 	adequate 	information
concerning 	the 	terms 	of 	the 	proposed agreement 	does 	not 	violate
the duty of 	fair representation. 	However, 	an intentional
misrepresentation of 	a 	fact 	or 	term of 	the 	contract 	in order 	to
secure 	member votes 	for 	ratification would violate 	the 	duty of
fair 	representation. 	(California 	State 	Employees Association
(O'Connell) 	(1986) 	PERB Decision No. 	596-S.)
As 	previously noted, 	Charging 	Parties 	learned of 	the 	negotiated
changes 	affecting resource 	teachers 	in October, 	prior to 	contract
ratification. 	Several 	resource 	teachers met 	with Association
representatives 	in October 	and 	expressed 	their 	concerns 	with 	the
proposed contract 	terms. 	However, 	the Association responded that
negotiations 	were 	complete 	and 	that 	further 	input 	was 	not
permitted. 	The Association also 	held 	two 	informational 	meetings
on October 27 	and 28, 	1997 prior to the ratification vote. 	Under
the 	rule 	in Oxnard, 	the 	opportunity to comment 	at 	the
informational 	meetings 	and vote 	against 	ratification of 	the
contract 	is 	sufficient 	to meet 	the 	duty of 	fair representation.
Furthermore, 	a union's 	failure 	to provide 	adequate 	information
concerning 	a 	tentative 	agreement 	during 	ratification proceedings
is 	not 	deemed a violation of 	the 	duty of 	fair representation.
Therefore, 	although the Association may not 	have 	been 	forthcoming

SA-CO-410
Dismissal 	Letter
Page 5
with 	information 	concerning 	the 	resource 	teacher provisions, 	this
does 	not 	violate 	the 	duty of 	fair representation.
Finally, 	while 	a union's 	intentional misrepresentation of 	fact 	in
order 	to 	ensure 	contract 	ratification would 	demonstrate 	bad
faith, 	the 	charge 	alleges 	only that 	the Association 	intentionally
concealed its proposals 	concerning resource 	teachers. 	The 	charge
does 	not 	allege 	facts 	which 	evidence 	the Association's
intentional 	misrepresentation 	of 	fact 	concerning 	the 	resource
teacher proposals. 	Accordingly, 	under PERB case law, 	the 	charge
fails 	to 	state 	a prima 	facie violation of 	the 	duty of 	fair
representation 	and must 	be 	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.
(

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Dismissal 	Letter
Page 6
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
Robin Wright Wesley
Regional Attorney
Attachment
cc: 	Ramon Romero

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
August 	6, 	1998
Valerie 	Himes
Re: 	Valerie Himes, 	et al. 	v. 	San Juan Teachers Association
Unfair Practice Charge No. 	SA-CO-410
WARNING 	LETTER
Dear Ms. Himes:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	on March 20,
1998. 	The 	charge 	alleges 	that 	the 	San Juan Teachers Association
(Association) 	denied the 	charging parties 	fair representation,
guaranteed by the 	Educational 	Employment 	Relations Act 	(EERA),
Government 	Code 	section 3544.9, 	and thereby violated section
3543.6(b), 	by negotiating provisions 	contrary to the 	interests of
the 	resource 	teachers 	and by 	failing 	to 	communicate 	with 	and 	seek
input 	from resource 	teachers 	prior to negotiating new contract
provisions 	affecting 	resource 	teachers.
Investigation 	of 	the 	charge 	revealed 	the 	following pertinent
information. 	The 	eleven charging parties 	in this 	case 	are
employed 	as 	resource 	teachers 	by 	the 	San 	Juan Unified 	School
District 	(District). 	During the period of October 1-10, 	1997,
the 	bargaining 	teams 	for the Association 	and the 	District 	reached
tentative 	agreement 	on the 	terms 	of 	the 	1997-98 	collective
bargaining 	agreement.
On October 10, 	1997, 	several 	resource teachers 	learned via the
grapevine 	that 	contract 	negotiations 	had been 	completed and 	that
the Association 	and 	the 	District 	had negotiated provisions 	which
affected resource 	teachers. 	Several 	resource 	teachers 	sent 	a 	fax
to 	the Association requesting a meeting to 	discuss 	the bargaining
process 	and 	the 	new contract 	provisions.
The president 	and the 	executive 	director of 	the Association met
with seven resource 	teachers 	on October 13, 	1997 	and held a
second meeting with 	six additional 	resource 	teachers 	on
October 15, 	1997. 	The Association representatives 	informed the
resource 	teachers 	that 	several 	provisions 	had been negotiated
concerning resource 	teachers, 	including provisions which would
limit 	resource 	teachers 	to a 	four year 	term and which redefined a
resource 	teacher's 	hours 	as working a professional 	day. 	When the
resource 	teachers 	expressed concerns 	at 	not 	being 	informed of 	or

SA-CO-410
Warning 	Letter
Page 2
consulted about 	the 	changed working conditions, 	the Association
representatives 	responded 	that 	the 	union was 	entitled 	to propose
contract 	terms without 	first 	seeking 	input 	from its 	members. 	The
resource 	teachers 	asked whether 	there 	was 	any opportunity to
modify the provisions at 	this point 	in the process. 	The
executive 	director 	informed 	the 	resource 	teachers 	that
negotiations 	were 	complete, 	the Association and the District 	were
merely drafting 	the 	language 	of 	the 	proposed 	agreement.
On October 21, 	1997, 	the Association sent a letter to the union
membership outlining the 	terms 	of 	the 	tentative 	agreement 	and
recommending 	that 	the members 	ratify the proposed contract.
On November 4, 	1997, 	eight resource teachers met with the
Association's 	executive 	board 	to 	express 	their 	concerns 	with 	the
new contract 	provisions 	and about 	the 	lack of 	input 	from resource
teachers 	in 	the bargaining process. 	The Association's 	executive
board refused to 	respond to 	the 	teachers' 	questions 	during the
meeting, 	but 	indicated that 	it 	would provide 	a written response
at a later date.
On November 4, 	5 	and 6, 	1997, 	the union membership voted to
ratify the 	new contract.
On December 11, 	1997, 	the Association's executive board issued a
written response 	to 	the 	questions 	submitted by the 	resource
teachers 	at 	the November 4 meeting.
Based on the 	facts 	stated above, 	the 	charge 	fails 	to 	state a
prima 	facie violation of 	EERA.
Initially, 	the 	charge 	alleges 	that 	the Association breached its
duty of 	fair 	representation by negotiating provisions 	contrary 	to
the 	interests of resource teachers. 	Under EERA, 	the duty of 	fair
representation 	imposed on 	the 	exclusive 	representative 	extends 	to
grievance handling, 	administration of 	the 	contract 	and contract
negotiations. 	(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 	the duty of 	fair representation, 	a 	charging party
must 	show 	that 	the 	exclusive 	representative's 	conduct 	was
arbitrary, 	discriminatory or 	in bad faith. 	(United Teachers 	of
Los Angeles 	(Collins), 	supra. 	PERB Decision No. 	258.)
To demonstrate 	a prima 	facie 	case of 	arbitrary conduct, 	the 	Board
has 	held 	that 	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
(

SA-CO-410
Warning 	Letter
Page 3
representative's 	action 	or 	inaction was
without 	a rational 	basis 	or devoid of 	honest
judgment. 	[citation omitted.] 	While 	the
Board recognizes 	that 	it 	may be 	difficult 	to
set 	forth with exactitude 	the 	irrational 	or
arbitrary nature 	of 	the 	union's 	conduct
toward unit membership, 	this 	requirement 	is
necessary 	in order 	to 	insure 	that 	the
bargaining agent, 	faced with the 	impossible
task of pleasing all 	of 	the people 	all 	of 	the
time, 	is 	afforded a broad range of discretion
and latitude. 	[Rocklin Teachers 	Professional
Association 	(Romero) 	(1980) 	PERB Decision
No. 	124.]
An 	exclusive 	representative 	is 	not 	required 	to 	satisfy all
members of 	the unit 	it 	represents, 	and the duty of 	fair
representation does 	not 	mean 	that 	an exclusive 	representative 	is
barred 	from making 	contracts 	which may have 	unfavorable 	effects
on some members. 	(Redlands Teachers Association 	(1978) 	PERB
Decision No. 	72, 	citing Steele v. 	Louisville & N.R.R. 	(1944) 	323
U.S. 	192 	[15 LRRM 708].) 	As the U.S. 	Supreme Court explained in
Ford Motor Co. 	v. 	Huffman 	(1953) 	345 U.S. 	330 	[31 LRRM 2548]:
Any authority to negotiate 	derives 	its
principal 	strength 	from a 	delegation 	to 	the
negotiators 	of 	a discretion to make 	such
concessions 	and accept 	such advantages 	as, 	in
the 	light 	of all 	relevant 	consideration, 	they
believe will best 	serve 	the 	interests 	of 	the
parties represented. 	. 	. 	. 	Inevitably
differences 	arise 	in 	the manner and degree 	to
which the 	terms 	of 	any negotiated agreement
affect 	individual 	employees 	and classes 	of
employees. 	The mere existence of 	such
differences 	does not make them invalid. 	The
complete 	satisfaction of 	all 	who 	are
represented 	is 	hardly to be 	expected. 	A wide
range 	of 	reasonableness must 	be 	allowed a
statutory 	bargaining 	representative 	in
serving the unit 	it 	represents, 	subject
always 	to 	complete 	good 	faith and honesty of
purpose 	in the 	exercise of 	its 	discretion.
The 	Board 	considered circumstances 	similar 	to 	the 	present 	charge
in Mount 	Diablo Education Association 	(1984) 	PERB Decision
No. 	422. 	In Mount Diablo, 	the union negotiated a provision which
altered the 	seniority rankings 	of 	teachers 	for purposes 	of
involuntary transfers. 	The 	effect 	of 	the 	contract 	change was 	to
lower 	the 	seniority rankings 	of 	a 	small 	number of 	unit 	members

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and, 	consequently, 	to advance 	the rankings of 	a different and
larger group of 	teachers. 	The 	charging party, 	a member of 	the
smaller group, 	was 	involuntarily transferred as 	a 	result 	of 	her
lowered 	seniority ranking. 	The 	charge 	included 	facts 	from which
it 	appeared that 	in negotiating the new provision, 	the union was
attempting 	to 	remedy an 	inconsistent 	practice 	which 	it 	deemed 	to
be 	unfair. 	The 	Board dismissed 	the 	duty of 	fair 	representation
charge, 	finding there was a rational basis 	for the union's
action.
In the present 	charge, 	the Association provided an explanation
for 	its position on the new contract 	provisions 	in a 	letter
responding to 	the 	resource 	teachers' 	questions 	dated December 	11,
1997. 	For example, 	the Association claimed that 	it 	agreed to
language 	which would 	end pay disparities 	between 	resource
teachers 	and 	the 	remaining members 	of 	the 	bargaining unit;
negotiated 	a 	professional 	day 	for 	resource 	teachers 	which 	is
comparable 	to 	other unit members; 	and relied on a national 	survey
which 	recommended 	that 	teachers 	in 	resource 	roles 	would benefit
from periodic 	and 	regular 	classroom experience. 	These 	statements
by the Association evidence 	a 	rational 	basis 	for 	the
Association's 	support 	for these provisions. 	Accordingly, 	absent
additional 	specific 	factual 	allegations 	which demonstrate 	the
Association acted 	in an arbitrary, 	discriminatory or bad 	faith
manner when 	it 	negotiated provisions 	contrary to 	the 	interests 	of
resource 	teachers, 	this allegation fails 	to state 	a prima 	facie
violation of 	the duty of 	fair representation. 	Therefore, 	this
allegation must 	be 	dismissed.
The 	charging parties 	also 	assert 	that 	the Association breached
its 	duty of 	fair 	representation by 	failing 	to 	communicate 	with
and 	seek 	input 	from resource 	teachers 	before 	reaching 	agreement
on the provisions 	affecting resource 	teachers.
The 	Board has 	held that 	the 	duty of 	fair representation
concerning 	contract 	negotiations 	requires 	an 	exclusive
representative 	to provide 	"some 	consideration of 	the 	views 	of
various 	groups 	of 	employees 	and 	some 	access 	for 	communication of
those views." 	(El 	Centro Elementary Teachers Association 	(1982)
PERB Decision No. 	232.) 	However, 	in Oxnard Educators Association
(1988) 	PERB Decision No. 	681 	(Oxnard). 	the Board, 	while
acknowledging 	that 	an employee's 	opinions 	might 	"carry greater
weight 	and 	influence 	if 	heard before 	the 	close 	of 	negotiations,"
held that 	notice 	of 	the 	terms 	of 	the proposed tentative 	agreement
and 	an opportunity 	to provide 	input 	during 	a 	ratification meeting
is 	sufficient 	to meet 	a union's 	duty of 	fair representation.
In Oxnard, 	late 	in the bargaining process 	the union and district
discussed 	a new proposal 	involving changes 	to 	the 	salary
schedule. 	The parties 	agreed that 	the details 	of 	the modified

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salary 	schedule 	would not 	be 	revealed 	to 	bargaining unit 	members
until 	the 	salary proposal 	was 	presented 	to 	and 	approved by the
school board. 	After learning of 	the 	school 	board's 	approval 	of
the 	salary proposal, 	the 	union 	and district 	reached tentative
agreement. 	Five days 	later the 	union held a ratification meeting
where unit 	members 	first 	learned of 	the 	details 	of 	the modified
salary 	schedule.
Based on these 	facts, 	the Board concluded that 	the 	charging
parties 	failed 	to 	show that 	the 	exclusive 	representative 	"acted
arbitrarily, 	discriminatorily or 	in bad 	faith" 	in 	failing to
inform unit 	members 	of 	the proposal 	or 	seek 	input 	prior to 	the
ratification meeting. 	The 	Board stated:
Constituent 	ratification 	serves 	as 	a 	check 	to
errant 	provisions 	with which 	the majority
does not agree. 	The 	essential 	ingredient 	to
this process 	is 	the provision of notice 	and
an 	opportunity 	for members 	to be 	heard before
the 	collective 	bargaining 	agreement 	becomes
final 	and binding. 	Here, 	there was a
ratification process. 	The 	record establishes
that 	Charging Parties 	received notice,
attended the 	ratification meeting, 	and knew
what 	the 	salary schedule provided 	for.
Charging 	Parties 	exercised 	their 	rights 	as
members 	and voted 	against 	ratification
because of 	the 	salary provision. 	There,
quite 	simply, 	were not 	enough members 	who
shared Charging Parties' 	concern. 	[Emphasis
added.]
In the present 	case, 	the 	charging parties 	similarly allege 	that
the Association 	failed to 	communicate 	with and 	seek 	input 	from
resource 	teachers 	before 	reaching agreement 	on 	the 	provisions
affecting resource 	teachers. 	The 	charging parties 	did learn of
the proposed 	changes 	and met 	with Association officials 	to
express 	their concerns prior to 	the 	ratification vote. 	As
discussed above, 	the Board's 	holding in Oxnard is 	directly on
point 	to 	the 	issue 	raised 	in 	the present 	charge 	and 	requires 	a
finding here 	that 	the 	charge 	fails 	to 	establish that 	the
Association's 	conduct 	was 	arbitrary, 	discriminatory or 	in bad
faith. 	Accordingly, 	this 	allegation must 	also be dismissed.
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
I

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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 have the case number written on the top right
hand corner of the charge form. 	The amended charge must be
served on the respondent's representative 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 24, 	1998, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, ext. 305.
Sincerely,
Robin E. Wright
Regional Attorney