Oakland Education Association (McKeel) (PERB 1383E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANTHONY McKEEL,
Charging 	Party,
v.
OAKLAND EDUCATION ASSOCIATION,
Respondent.
)
)
) 	Case No. 	SF-CO-565
PERB Decision No. 	1383
May 	11, 	2000
)
)
)
)
)
)
Appearances: 	King, 	King & Fishleder by George King, 	Attorney,
for Anthony McKeel; 	California Teachers 	Association by 	Priscilla
Winslow, 	Attorney, 	for Oakland Education Association.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations Board 	(Board) 	on appeal by Anthony McKeel 	(McKeel) 	from
the Board agent's dismissal 	(attached) 	of his unfair practice
charge.
On December 13, 	1999, 	McKeel 	filed an unfair practice charge
alleging 	that 	the 	Oakland 	Education Association 	(Association)
failed to 	represent McKeel 	in his 	appeal 	of 	a dismissal 	action by
the Oakland Unified School 	District. 	This 	conduct 	is 	alleged to
violate 	section 3543.6 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA).1 A warning 	letter 	issued on January 24, 	2000,2
EERA 	is 	codified in Government 	Code 	section 	3540 	et 	seq.
EERA section 3543.6 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to

indicating 	that 	the 	charge did not 	state 	a prima 	facie 	case.
McKeel 	filed an amended 	charge 	on 	February 4 	and a dismissal 	of
the unfair practice 	charge was 	issued 	on 	February 	9.
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 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	McKeel's 	appeal 	and the
Association's 	response. 	The Board 	finds 	the dismissal 	and
warning 	letters 	to be 	free 	from prejudicial 	error, 	and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-565 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Amador and Baker 	joined 	in 	this 	Decision.
2A11 dates 	refer to 2000.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
February 9, 	2 000
George 	King
King, 	King & Fishleder
1999 Harrison Street, 	Suite 	810
Oakland, 	California 	94612
Re: 	DISMISSAL 	OF 	UNFAIR 	PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
Anthony MeKeel 	v. 	Oakland 	Education Association
Unfair Practice 	Charge No. 	SF-CO-565
Dear Mr. 	King:
The 	above-referenced unfair practice 	charge, 	filed on December
13, 	1999, 	alleges 	that 	the Oakland Education Association
(Association) 	failed 	to 	represent Anthony McKeel 	in the 	appeal 	of
a 	dismissal 	action by 	the 	Oakland Unified 	School 	District
(District). 	This 	conduct 	is 	alleged to violate Government 	Code
section 	3543.6 	of 	the 	Educational 	Employment 	Relations Act
(EERA).
I 	indicated to you, 	in my attached letter dated January 24, 	2000,
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
February 3, 	2 000, 	the charge would be dismissed.
By letter dated February 4, 	2 000, 	Charging 	Party submitted a
letter 	attaching 	a 	copy of 	the 	decision by 	the 	Commission 	on
Professional 	Competence 	(Commission) 	upholding 	the 	District's
dismissal 	based on his 	conviction of 	an offense 	under Health and
Safety Code, 	section 11550, 	subdivision 	(a). 	In addition,
Charging 	Party 	contends 	that 	the 	undersigned has 	failed 	to
address 	the 	theory that 	the Association has 	treated 	its members
in 	a 	different 	manner 	from those 	non-member 	bargaining 	unit
employees 	who 	are 	paying agency 	fees 	but 	are not -being provided
representation before 	the 	Commission. 	While 	acknowledging 	the
precedent of 	the 	Public. Employment Relations Board 	(PERB) 	that
has 	declined 	to 	adopt 	the 	theory of 	Lane v. 	I.U.O.E. 	Stationary
Engineers, 	Local 3 9 	(1989) 	212 Cal.App.3d 164, 	Charging Party
asserts 	that 	PERB 	has 	not 	rejected 	that 	theory 	in 	the 	context
defining this 	case. 	In essence, 	he argues 	that where 	the
exclusive 	representative 	has 	voluntarily undertaken 	to 	represent
members 	in extra-contractual 	proceedings, 	it 	is 	obligated to
extend the 	same privilege 	to non-members.

Dismissal 	Letter
SF-CO-565
February 9, 	2 000
Page 	2
Notwithstanding 	Charging 	Party's 	novel 	theory, 	the 	undersigned
concludes 	that 	Charging 	Party has 	failed 	to 	assert 	a 	cognizable
legal 	theory under 	existing 	PERB precedent. 	While 	discriminatory
treatment 	is 	condemned 	in 	the 	application of 	the 	duty of 	fair
representation 	(see, 	e.g., 	San Francisco 	Federation of 	Teachers
(Hagopian) 	(1982) 	PERB Decision No. 	222), 	such precedent is in
apposite 	here 	because 	the 	underlying premise 	of 	an 	existing 	duty
of 	fair 	representation 	is 	not 	present 	in 	extra-contractual
proceedings 	such as 	the 	one 	involved here.
Charging 	Party's 	theory more 	closely approaches 	that 	identified
in California Union of 	Safety Engineers 	(John) 	(1994) 	PERB
Decision No. 	1064-S, 	where 	PERB found a prima 	facie violation of
discrimination based 	on 	the 	withholding 	of 	representation 	to 	a
member because 	of 	particular protected 	activity 	to 	which 	the
exclusive 	representative 	objected. 	Although exercising non-
membership is a protected right 	(Gov. 	Code, 	sec. 	3 543), 	the
charge 	fails 	to 	allege 	sufficient 	facts 	to 	demonstrate 	that 	the
Association's 	decision 	to 	extend 	representation 	only 	to 	members
would not 	have been made but 	for the non-members' 	choice 	to
refrain 	from joining 	the Association. 	(See Novato Unified 	School
District 	(1982) 	PERB Decision No. 	210; 	California State Employees
Association 	(O'Connell) 	(1989) 	PERB Decision No. 	753-H.)
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	set 	forth above 	as 	well 	as 	those 	contained 	in my January
24, 	2000 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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with 	the 	Board must 	contain
the 	case name and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be provided 	to 	the Board.
A 	document 	is 	considered 	"filed" 	when 	actually received before
the 	close of business 	(5 	p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express United 	States 	mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising 	overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on the 	last 	day 	for

Dismissal 	Letter
SF-CO-565
February 9, 	2000
Page 3
filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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 	(2 0) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)

Dismissal 	Letter
SF-CO-565
February 9, 2 00 0
Page 	4
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
DONN 	GINOZA
Regional 	Attorney
Attachment
cc: 	Priscilla Winslow

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
J a n u a r y 	2 4 , 	2 0 0 0
George 	King
King, 	King 	& Fishleder
1999 	Harrison Street, 	Suite 	810
Oakland, 	California 	94612
Re: 	WARNING LETTER
Anthony McKeel 	v. 	Oakland 	Education Association
Unfair Practice 	Charge No. 	SF-CO-565
Dear Mr. 	King:
The 	above-referenced unfair practice 	charge, 	filed on December
13, 	1999, 	alleges 	that 	the Oakland Education Association
(Association) 	failed to 	represent Anthony McKeel 	in the 	appeal 	of
a 	dismissal 	action by 	the 	Oakland Unified 	School 	District
(District). 	This 	conduct 	is 	alleged to violate 	Government 	Code
section 	3543.6 	of 	the 	Educational 	Employment 	Relations Act
(EERA).
Investigation of 	the 	charge 	revealed 	the 	following. 	Anthony
McKeel 	was 	employed by the District 	as 	a 	teacher. 	The
Association 	is 	the 	exclusive 	representative 	of 	the 	certificated
bargaining unit 	in the District. 	McKeel 	has 	been a dues paying
member of 	the Association.
Sometime 	in 	1999, 	the 	District 	dismissed McKeel 	from employment
because 	he 	had been 	convicted 	of 	driving 	a 	motor vehicle 	under
the 	influence 	of 	a 	controlled substance. 	McKeel 	appealed the
dismissal.
McKeel 	contacted 	the Association 	to 	request 	representation 	in 	the
matter. 	He 	spoke with John Grace, 	a staff member who had
represented him previously 	in 	a 	grievance 	against 	the 	District.
Grace 	referred him to 	another Association 	representative, 	Bruce
Cowell.
Cowell 	had McKeel 	sign a 	California 	Teachers 	Association 	(CTA)
agreement 	entitled 	"Individual 	Referral 	to 	Group 	Legal 	Services
Attorney." 	The 	agreement 	indicates 	that 	eligibility 	for 	the
referral 	is 	based on membership 	in CTA both 	at 	the 	time 	of 	the
request 	for 	representation 	and during 	the 	course 	of
representation. 	It 	also 	indicates 	that 	the 	group 	legal 	services
attorney 	is 	paid according 	to 	rates 	outlined 	in 	CTA's 	group 	legal
services 	manual, 	with the 	employee 	responsible 	for any additional
amounts. 	The manual 	sets 	ceilings on the 	amounts paid 	in for-
cause dismissal 	proceedings. 	McKeel 	alleges 	that 	he was 	"under

Warning 	Letter
SF-CO-565
January 24, 2 0 00
Page 	2
the 	impression" 	that 	the 	dismissal 	would be 	handled 	like 	his
previous 	grievance 	under 	the 	collective 	bargaining 	agreement.
Cowell 	then 	referred McKeel 	to 	panel 	attorney Dorothy Guillory.
Guillory proceeded 	to 	represent 	McKeel 	in 	the 	appeal 	before 	the
Commission on Professional 	Competence. 	However, 	the Association
notified McKeel 	that 	he 	was 	no 	longer 	eligible 	for 	free
representation under 	the 	CTA contract 	because 	he 	was 	no 	longer 	a
member of 	CTA. 	McKeel 	alleges 	that 	he 	continues 	to pay union
dues. 	A 	letter 	from Guillory 	to McKeel 	indicates 	that 	she
terminated 	representation 	after 	giving him 	the 	opportunity 	to
retain 	her privately.
McKeel 	alleges 	that 	Guillory's 	withdrawal 	occurred 	just 	days
before 	his 	dismissal 	hearing was 	to 	occur. 	He 	does 	not 	allege
that 	he was 	unable 	to 	reschedule 	the 	hearing.
McKeel 	contends 	that 	an unfair practice 	has 	been 	stated based on
the authority of Lane v. 	I.U.O.E. 	Stationary Engineers, 	Local 	39
(1989) 	212 Cal.App.3d 164.
Based on 	the 	facts 	stated above, 	the 	charge 	as presently written
fails 	to 	state 	a prima 	facie violation of 	the 	EERA for the
reasons 	that 	follow.
McKeel 	does 	not 	contend 	that 	the Association breached 	its 	duty of
fair 	representation by 	failing 	to process 	a 	grievance 	through 	the
grievance 	procedure 	of 	the 	collective bargaining 	agreement.1
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.) 	It does
not 	extend 	to 	rights 	or 	remedies 	that 	may be 	enforced outside 	of
the grievance procedure. 	(Los Angeles 	City and County School
Employees Union 	(Morgan) 	(1987) 	PERB Decision No. 	645 	[dismissal
of 	claim that 	an 	employee 	was 	poorly represented at 	a personnel
commission dismissal 	hearing]; 	California Union of 	Safety
Engineers 	(John) 	(1994) 	PERB Decision No. 	1064-S 	[same, 	re
disciplinary matter before 	State 	Personnel 	Board].)
1There 	is 	an allegation 	that 	McKeel 	believed he 	would be
represented 	as 	he 	had previously been 	represented 	in 	the
grievance procedure. 	However, 	whether this 	assumption was valid
rests 	in part 	on 	the 	threshold 	legal 	question 	of 	whether 	the
matter he 	sought 	to 	challenge 	was 	covered by the 	collective
bargaining agreement. 	He 	has 	provided no 	facts 	to 	demonstrate
that 	it was.

Warning 	Letter
SF-CO-565
January 24, 2 0 00
Page 3
Notwithstanding 	the 	latter principle, 	McKeel 	claims 	that 	the
Association 	undertook 	to 	represent 	him 	and 	then 	arbitrarily
withdrew 	from his 	case 	at 	a 	critical 	time. 	He 	asserts 	that 	this
constitutes 	an unfair practice 	under Lane v. 	I.U.O.E. 	Stationary
Engineers, 	Local 	39, 	supra. 	In Lane, 	a union member sued his
union 	in 	Superior 	Court 	alleging 	that 	his 	union 	hired 	an attorney
to 	represent 	him 	in appealing 	a 	dismissal 	for being 	under 	the
influence 	at 	the 	time he was 	involved in an accident. 	The
attorney performed 	negligently. 	After 	acknowledging 	that 	the
duty of 	fair 	representation arises 	from a 	union's 	status 	as 	an
exclusive 	representative, 	but 	then noting that 	"it 	is 	not 	the
case 	that 	the 	only duty 	ever 	imposed on 	labor 	organizations
arises 	out 	of 	its 	exclusive 	representation," 	the 	court 	held that
the 	employee 	stated 	a 	cause 	of 	action based 	either 	on his
contract 	with 	the 	union 	and 	an 	attendant 	duty 	of 	care 	associated
with that 	contract, 	or the 	fact 	that 	a duty of 	care was 	assumed
by the 	union once 	it 	voluntarily undertook 	representation. 	(Id.
at pp. 	170-171.)
PERB 	has 	never 	adopted 	the 	Lane 	theory as 	a 	basis 	for 	an unfair
practice 	charge. 	PERB has viewed such a 	theory as 	implicating 	a
cause 	of 	action 	in 	state 	court 	rather 	than 	a matter within 	its
jurisdiction. 	(California 	State 	Employees Association 	(Cohen)
(1993) 	PERB Decision No. 	980-S.) 	This 	follows 	logically from the
notion that 	such a breach of 	duty does 	not 	arise 	out 	of 	the
union's 	status 	as 	an exclusive 	representative, 	as 	noted in Lane.
(See California State Employees Association 	(Darzin) 	(21985) 	PERB
Decision No. 	546-S 	[union's 	refusal 	to represent 	in non-
contractual 	proceeding 	does 	not 	bar 	individual 	from 	seeking
redress 	on his 	own].)2
Since 	there 	appears 	to be 	no 	other 	theory on which 	to base 	an
unfair practice, 	the 	charge 	fails 	to 	state 	a prima 	facie
violation of 	the 	EERA.
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
2In other 	contexts 	implicating Lane, 	PERB has 	declined to
follow 	its 	reasoning. 	(See 	California Union of 	Safety Engineers
(Coelho) 	(1994) 	PERB Decision No. 	1032-S; 	Los Angeles Unified
School District 	(1994) 	PERB Decision No. 	1061; 	California Union
of Safety Engineers 	(John), 	supra, 	PERB Decision No. 	1064-S 	[no
representation 	actually undertaken; 	declining 	to 	address
applicability of 	Lane 	to 	extra-contractual 	proceedings].)

Warning 	Letter
SF-CO-565
January 24, 2 000
Page 4
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 	February 3, 	2000, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney