San Bernardino Teachers Association, CTA/NEA (Mitchell) (PERB 1384E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MARGARET-ANN 	MITCHELL,
Charging 	Party,
v.
SAN 	BERNARDINO 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	LA-CO-820
PERB Decision No. 	1384
May 11, 	2000
Appearance: 	Margaret-Ann Mitchell 	on her own behalf.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(Board) 	on appeal 	from a Board agent's
dismissal 	(attached) 	of Margaret-Ann Mitchell's 	(Mitchell) 	unfair
practice 	charge. 	The 	charge alleges 	that 	the 	San Bernardino
Teachers Association, 	CTA/NEA breached 	its 	duty of 	fair
representation 	in violation of 	sections 	3544.9 	and 	3543.6(a) 	of
the 	Educational 	Employment 	Relations Act 	(EERA) 	and discriminated
against 	her in violation of 	EERA section 3543.6(b).1
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 	3544.9 	provides:
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 provides, 	in relevant part:
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.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters 	and Mitchell's 	appeal. 	The Board 	finds 	the warning and
dismissal 	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. 	LA-CO-820 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer and Baker joined 	in 	this 	Decision.
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 2, 	2 000
Margaret-Ann 	Mitchell
Re: 	DISMISSAL 	OP 	CHARGE/REFUSAL 	TO 	ISSUE 	COMPLAINT
Margaret-Ann Mitchell 	v. 	San Bernardino 	Teachers
Association, 	CTA/NEA
Unfair Practice Charge No. 	LA-CO-82 0; 	First Amended Charge
Dear Dr. 	Mitchell:
The 	above-referenced unfair practice 	charge, 	filed December 	14,
1999, 	alleges 	the 	San Bernardino Teachers Association, 	CTA/NEA
(Association) 	breached its 	duty of 	fair representation 	in
handling your grievances. 	You 	allege 	this 	conduct 	violates
Government 	Code 	section Government 	Code 	section 3543.6(b) 	of 	the
Educational 	Employment 	Relations Act 	(EERA or Act).
I 	indicated to you, 	in my attached 	letter dated January 	12, 	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
January 19, 	2000, 	the charge would be dismissed.
On January 14, 	2000, 	you telephoned the San Francisco Regional
Office 	requesting 	additional 	time 	to 	file 	your 	amended 	charge.
In your message, 	you 	stated you did not 	have 	enough 	time 	to
compile 	information for the amended charge. 	On January 17, 	2 000,
a 	state 	holiday, 	you 	again 	contacted 	this 	office 	and 	requested an
extension. 	On January 18, 	2000, 	I 	granted you an extension until
January 26, 2 000.
On January 19, 	2 0 00, 	I received a first amended charge, 	sent
certified mail 	on January 15, 	2000. 	The 	first 	amended charge 	is
six 	(6) 	single-spaced typed pages, 	and alleges 	the 	charge 	is
timely 	filed 	and 	further 	contends 	the 	Association's 	refusal 	to
assist 	in 	the 	processing 	of 	Charging 	Party's 	grievance 	violates
the EERA.

Dismissal 	Letter
LA-CO-820
Page 2
In my January 12, 	2000, 	letter, 	I 	noted that with respect 	to duty
of 	fair representation claims 	under 	3544.9, 	the 	statute 	of
limitations period begins 	to 	run on the 	date 	the 	employee, 	in the
exercise 	of 	reasonable 	diligence, 	knew or 	should have 	known that
further 	assistance 	or 	response 	from the 	union was 	unlikely.
(Service 	Employees 	International 	Union, 	Local 	790 	(Patterson)
(1998) 	PERB Decision No. 	1254; 	Los Rios College Federation of
Teachers 	(1991) 	PERB Decision No. 	889.)
The instant 	charge was filed on December 14, 	1999. 	Thus, 	the
statute of 	limitations extends back to June 	14, 	1999, 	and all
incidents 	occurring prior to June 	14, 	1999 	are untimely. 	On or
about April 	23, 	1999, 	Charging Party was 	informed by Ms.
Reinhold, 	the Association's 	attorney, 	that 	she would not
recommend arbitration 	in this 	matter. 	This 	finding was
reiterated by letter on June 	11, 	1999. 	As 	such my January 	12,
2000, 	letter, 	stated Charging 	Party knew or 	should have 	known no
later than June 	11, 	1999, 	that 	the Association would not 	take the
grievances to arbitration. 	Based on this knowledge, 	I. stated the
charge 	was 	untimely 	filed.
Charging Party contends that 	she did not 	receive the
Association's 	Executive Board letter until 	June 	16, 	1999, 	and
thus 	the 	statute 	of 	limitations 	should not 	begin to 	run until
June 	16, 	1999. 	Additionally, 	Charging Party states 	that 	despite
the Association's 	unwavering position on her grievance, 	"it 	was
not a foregone conclusion 	. 	. 	. 	that the arbitration would be
dropped." 	Based on 	these 	facts, 	the 	charge 	timely 	filed.
' 	•
However, 	the 	charge 	still 	fails 	to 	state 	a prima 	facie violation
of 	the 	EERA. 	The 	only matter 	falling within the 	statute 	of
limitations 	is 	the Association's 	failure 	to pursue 	the 	grievance
to 	arbitration. 	Conduct 	by the Association occurring prior 	to
June 	14, 	1999, 	falls outside the 	statute of 	limitations 	and thus
will 	not 	be 	considered. 	The 	amended charge presents 	additional
facts 	in 	support 	of 	Charging 	Party's 	contention 	that 	her
grievance 	had merit. 	Specifically, 	Charging Party states 	with
regard to her 	six 	(6) 	day transfer:
It 	is 	my 	contention 	that 	we 	are 	assigned 	to
work 	sites 	as 	itinerant 	unit 	members 	upon
being hired, by the District 	and that 	once 	we
are given our assignments, 	that 	to be
transferred 	from one 	of 	our work 	sites 	to
another work 	site 	is 	covered under 	the
Contract 	under 	the 	section alluding 	to
Transfers.
There 	appears 	to 	be 	a 	significant 	dispute 	between 	the Association
and 	Charging 	Party with 	regard 	to 	the 	definition of 	"itinerant."

Dismissal 	Letter
LA-CO-820
Page 3
Charging 	Party contends, 	as noted above, 	that 	an itinerant
employee 	may be 	initially assigned 	to 	a 	work 	site 	or work 	sites,
but 	any 	change 	to 	an 	employee's 	work 	site 	after 	the 	initial
assignment 	must 	follow transfer procedures. 	To 	the 	contrary, 	the
Association and District 	assert 	the 	use 	of 	"itinerant" 	means 	that
employees 	so 	designated may be 	assigned 	to 	any work 	site 	at 	any
time.
The 	amended 	charge 	further 	contends 	the 	Association 	did 	not
support 	her grievance 	and did not 	support 	her 	interpretation of
the Agreement. 	Additionally, 	Charging Party states 	not 	all 	of
her questions 	were 	answered by 	the Association, 	despite 	receiving
three 	letters 	from CTA's 	administration 	regarding 	her 	grievance.
Finally, 	Charging 	Party states 	the Association has 	not 	provided a
"clear, 	legally-sound explanation" 	for their position.
Facts 	provided 	demonstrate 	the 	Association 	communicated 	its
position to Charging 	Party from the 	outset. 	On February 3, 	1999,
Mr. 	Ohlson 	represented Charging 	Party 	in 	a grievance 	meeting.
During and after 	this 	meeting, 	Mr. 	Ohlson 	represented 	that 	the
District's 	conduct 	fell 	within 	the Management 	Rights1 clause 	of
the Agreement 	and did not 	fall 	under 	the 	Transfer provision. 	Mr.
Ohlson's 	February 	15, 	1999, 	letter summarizing the meeting
indicated 	the 	District 	possessed 	the 	right 	to 	assign 	Charging
Party to another 	site 	for six days. 	Mr. 	Ohlson instead advocated
for 	an 	assurance 	from 	the 	District 	that 	Charging 	Party would
receive 	additional 	time 	to 	complete 	other work. 	Additionally,
Mr. 	Clark's September 20, 	1999, 	letter explains the Association's
position 	and 	attempts 	to 	respond 	to 	the 	questions 	posed 	in your
11 page letter.
Charging 	Party 	further 	contends 	the 	Association 	did 	not 	pursue
the 	legal 	theories 	she 	suggested. 	More 	specifically, 	Charging
Party 	states 	the 	Association 	did 	not 	pursue 	her 	discrimination
theory and did 	not 	present 	the 	District's 	"contradictory"
practice. 	As noted in my January 12, 	1999, 	letter, 	an exclusive
representative 	is 	not 	obligated to pursue 	all 	grievances 	and 	is
not 	obligated 	to 	pursue 	an employee's 	legal 	theories.
1 	Article 	V 	states 	in relevant 	part:
It 	is 	understood and agreed that, 	except 	as
limited by the 	terms 	of 	this Agreement, 	the
District 	retains 	all 	of 	its powers 	and
authority to direct, 	manage, 	and control 	to
the extent allowed by the law. 	. 	. 	In
addition, 	the District 	retains 	the 	right 	to
hire, classify, assign, evaluate . 	. 	.
employees.

Dismissal 	Letter
LA-CO-820
Page 	4
(University Council-AFT 	(Chan) 	(1994) 	PERB Decision No. 	1062-H.)
The Association 	stated 	it 	did not 	believe 	your 	reassignment 	was
discriminatory, 	and provided 	its 	reasons 	for this position. 	(See
Mr. 	Clark's 	letter dated September 20, 	1999.) 	Additionally, 	the
Association 	stated 	its 	belief 	that 	the Agreement 	was 	being
properly 	interpreted. 	Thus, 	the Association's 	failure 	to present
the 	legal 	arguments 	Charging 	Party wished pursued 	does 	not
demonstrate 	arbitrary, 	discriminatory or bad 	faith 	conduct.
Finally, 	Charging 	Party argues 	the Association has 	not 	provided a
"clear, 	legally sound explanation" 	for their position. 	As 	noted
in my January 12, 	2000, 	letter, 	this conclusion fails to
demonstrate 	the 	Association's 	position was 	arbitrary,
discriminatory or in bad 	faith. 	It 	does 	not 	appear that 	the
Association's 	position was 	without 	rational 	basis 	or 	devoid of
honest 	judgement. 	An exclusive 	representative 	is 	not 	obligated
to pursue 	all 	grievances 	and 	is 	not 	obligated to pursue 	an
employee's 	legal 	theories. 	(University Council-AFT 	(Chan) 	(1994)
PERB Decision No. 	1062-H.) 	Moreover, 	mere negligence or poor
judgment 	in the 	handling of 	a grievance 	does 	not 	establish a
violation of 	the 	duty, 	nor do 	differences 	in grievance-handling
tactics, 	or differing 	interpretations 	of 	the collective
bargaining agreement. 	(United Teachers 	of 	Los Angeles 	(Buller)
(1984) 	PERB Decision No. 	43 8.) 	Facts provided herein demonstrate
the 	parties 	reasonably disagreed over 	interpretation 	of 	the
Agreement. 	However, 	nothing herein demonstrates 	the
Association's 	position or 	actions 	were 	arbitrary or 	in bad 	faith.
As 	the 	charge 	fails 	to 	demonstrate 	the Association 	acted without
a 	rational 	basis 	or devoid of 	honest 	judgment, 	the 	charge 	fails
to 	state 	a prima 	facie 	case. 	The Association's 	reluctance 	to
file 	or pursue 	a 	grievance where 	it 	honestly determines 	the 	case
is without merit, 	is 	insufficient 	to establish arbitrary,
discriminatory or bad 	faith conduct. 	As 	such, 	this 	charge 	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 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

Dismissal 	Letter
LA-CO-820
Page 5
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
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 	(20) 	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.
i

Dismissal 	Letter
LA-CO-820
Page 6
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.)
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: 	Robert Lindquist

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
January 12, 	2 000
Margaret-Ann 	Mitchell
Re: 	WARNING LETTER
Margaret-Ann Mitchell 	v. 	San Bernardino 	Teachers
Association, 	CTA/NEA
Unfair Practice Charge No. 	LA-CO-82 0
Dear Dr. 	Mitchell:
The 	above-referenced unfair practice 	charge, 	filed December 	14,
1999, 	alleges 	the 	San Bernardino Teachers Association, 	CTA/NEA
(Association) 	breached its 	duty of 	fair 	representation 	in
handling your grievances. 	You allege 	this 	conduct 	violates
Government 	Code 	section Government 	Code 	section 3543.6(b) 	of 	the
Educational 	Employment Relations Act 	(EERA or Act).
Investigation of 	the 	charge 	revealed the 	following. 	You are
currently 	employed 	by 	the 	San 	Bernardino 	City Unified 	School
District 	(District)' 	as a Psychologist. 	As a Psychologist, 	you
are 	exclusively represented by the Association. 	The 	District 	and
Association are 	parties 	to 	a 	collective 	bargaining 	agreement
(Agreement) 	which expired on June 30, 	1999.
On January 26, 	1999, 	the District 	informed Charging Party that
she 	was 	being 	temporarily reassigned 	to 	a 	different 	school 	site.
The 	transfer was 	allegedly made 	to 	satisfy Statewide 	requirements
regarding the availability of 	Psychologists 	to all 	students, 	and
was 	to be 	in effect 	for only six 	(6) 	work days.
On February 3, 	1999, 	Charging Party and her Association
representative, 	Conrad Ohlson, 	met with Diane D'Agostino,
Coordinator of 	Psychological 	Services. 	During 	this 	meeting, 	Mr.
Ohlson 	and 	Charging 	Party presented 	Charging 	Party's 	concerns
about 	the 	worksite 	change 	and 	Charging 	Party's 	increased
workload. 	During this meeting, 	Ms. 	D'Agostino stated that
Charging Party's workload at Anderson, 	her original 	worksite,
could 	simply not 	get 	done 	in order 	for 	Charging 	Party 	to 	handle
the 	additional 	duties. 	The meeting did not, 	however, 	resolve
Charging 	Party concerns 	over 	the 	matter.

Warning 	Letter
LA-CO-820
Page 2
Additionally, 	it 	appears Mr. 	Ohlson instructed Charging 	Party not
to 	file 	a grievance 	over the 	issue, 	as 	it 	did not 	appear the
District 	violated 	the 	Agreement 	by 	assigning 	Charging 	Party 	to
another school 	for six days. 	More 	specifically, 	Mr. 	Ohlson
stated the Association's 	belief 	that 	as 	an 	"itinerant" 	employee,
the 	District 	could 	assign Charging 	Party 	to 	more 	than one 	school
site, 	pursuant 	to the Agreement.
On February 	10, 	1999, 	Charging Party filed her first 	grievance
regarding 	the 	change 	in worksite 	location. 	This grievance
alleged 	the 	reassignment 	to 	another worksite 	violated 	the
Agreement 	and 	increased Charging 	Party's 	workload. 	On 	that 	same
day, 	the grievance was denied at Level 	I 	by Ms. 	D'Agostino.
Additionally, 	on that 	same 	day, 	Charging 	Party filed a 	second
grievance 	over 	the 	reassignment. 	The 	second grievance 	alleged
the 	reassignment 	violated Article 	22 	of 	the Agreement 	regarding
instructional 	assignment.
On February 15, 	1999, 	Mr. 	Ohlson sent a letter to Ms. 	D'Agostino
regarding Charging Party's 	concerns. 	In this 	letter, 	Mr. 	Ohlson
reiterated 	the 	temporary nature 	of 	the 	assignment 	and 	reiterated
Ms. 	D'Agostino's 	assurance 	that 	Charging 	Party could put 	aside
her other work 	in order 	to 	complete 	the 	new work. 	Additionally,
Mr. 	Ohlson 	insisted 	that 	Charging 	Party not 	be 	required 	to 	work
additional 	hours 	to 	complete 	the work and 	that 	she 	be 	afforded
the 	same 	office 	time 	as 	other 	Psychologists.
On February 18, 	1999, 	Charging Party responded to Mr. 	Ohlson's .
letter. 	In this 	letter, 	Charging Party stated additional
theories 	she 	wished 	the Association to pursue 	and 	stated 	that 	she
wished the grievance 	to be processed to Level 	II. 	Additionally,
Charging 	Party 	informed Mr. 	Ohlson 	that 	she 	no 	longer wanted him
to 	represent 	her with 	regard to 	the 	grievances.
On February 23, 	1999, 	Charging Party's 	first grievance was
elevated to Level 	II. 	The Level 	II 	grievance argued the work
load issue had not 	be 	adequately addressed. 	On March 	15, 	1999,
the grievance 	was 	denied by the 	District, 	stating no violation of
Article 	19 had occurred. 	On March 4, 	1999, 	Charging Party's
second grievance 	was 	elevated to Level 	II. 	This grievance 	simply
stated 	"we would like 	further discussion." 	On March 	19, 	1999,
the 	second grievance 	was 	denied at 	Level 	II 	by the 	District,
stating the grievance was moot 	as of March 25, 	1999.
On March 30, 	1999, 	Charging Party filed a third grievance, 	this
time 	alleging 	the District 	violated students' 	rights 	by not
contracting 	out 	with 	another 	employee 	to 	handle 	the 	workload
assigned 	to 	Charging 	Party. 	This 	grievance 	was 	denied on April
4, 	1999 by Ms. 	D'Agostino.

Warning 	Letter
LA-CO-820
Page 3
In or about April 	1999, 	Charging 	Party requested the 	grievances
be 	elevated 	to 	binding 	arbitration. 	Although 	the Association
believed 	the 	grievances 	lacked merit, 	the Association 	contacted
attorney Marianne 	Reinhold and 	asked Ms. 	Reinhold 	to 	evaluate 	the
matter. 	On or about April 23, 	1999, 	Mr. 	Ohlson and Ms. 	Reinhold
met 	to discuss 	Charging 	Party's 	grievances. 	After 	this 	meeting,
Ms. 	Reinhold 	telephoned Charging 	Party and 	informed 	her 	that 	it
was unlikely 	an 	arbitrator would 	award 	in her 	favor, 	and 	that 	she
would not 	recommend 	arbitration 	in 	this 	matter.
Believing that Ms. 	Reinhold did not possess 	all 	the 	facts,
Charging 	Party sent 	Ms. 	Reinhold a packet 	of 	information, 	in an
attempt 	to 	change Ms. 	Reinhold's 	opinion regarding 	the 	likelihood
of success. 	On June 	11, 	1999, 	Ms. 	Reinhold informed Charging
Party 	that 	after 	considering 	all 	the 	information 	Charging 	Party
and 	the Association presented, 	she 	could not 	recommend
arbitration of 	the grievances.
On June 	14, 	1999, 	the Association informed Charging Party that 	it
would not 	pursue her grievances 	to arbitration, 	as 	it 	was 	"not
likely to 	result 	in a 	favorable 	decision 	from an arbitrator."
On July 10, 	1999, 	Charging Party sent 	a letter to Jim Clark, 	an
Executive Director of 	the 	California Teachers Association. 	In
this 	11 page, 	single-spaced letter, 	Charging Party complained
about 	the 	assistance 	she 	received 	from Mr. 	Ohlson 	and other
Association representatives. 	Specifically, 	Charging Party
reiterated her 	position 	on her 	assignment 	to 	another 	site 	and
criticized Mr. 	Ohlson and others 	for not 	raising 	the 	issues
properly and 	for not 	supporting 	the 	grievances.
On September 20, 	1999, 	Mr. 	Clark responded to Charging Party's
complaint, 	question by question. 	Mr. 	Clark's 	six page 	response
restates 	the Association's 	position on 	the 	assignment 	and
attempts 	to 	explain why 	the Association believes 	the 	District's
conduct 	to be within contract guidelines. 	Additionally, 	Mr.
Clark explained Mr. 	Ohlson's 	involvement 	in 	the 	grievance
process, 	stating that Mr. 	Ohlson is 	charged with the
responsibility of 	seeking 	legal 	assistance 	if 	requested.
Finally, 	Mr. 	Clark 	informed Charging 	Party of her 	rights 	to 	take
this 	matter up with his 	supervisors.
On September 21, 	1999, 	Charging Party sent 	a letter of 	complaint
to Carolyn Doggett, 	Mr. 	Clark's 	supervisor. 	In this 	letter,
Charging Party requested Ms. 	Doggett 	review Mr. 	Clark's 	response
for accuracy and review Mr. 	Ohlson's 	conduct. 	On September 27,
1999, 	Mr. 	Doggett 	responded to Charging Party's 	letter, 	affirming
the 	accuracy of 	Mr. 	Clark's 	letter and his 	investigation.

Warning 	Letter
LA-CO-820
Page 	4
On October 25, 	1999, 	Charging Party sent 	a 	letter to Deputy-
Executive Director, 	Ernest Ciarrocchi. 	In this 	letter, 	Charging
Party requested answers 	to 	five 	questions, 	including why
psychologists were 	considered 	"itinerant" 	employees. 	On October
26, 	1999, 	Mr. 	Ciarrocchi 	responded to Charging Party questions by
letter.
On December 10, 	1999, 	Charging Party sent 	an eight page, 	single-
spaced letter to Ms. 	Doggett 	and Mr. 	Ciarrocchi. 	This 	letter
apparently served as 	Charging 	Party's 	response 	to Mr. 	Clark's
September 	1999 	letter. 	The 	letter again reiterates 	Charging
Party's 	interpretation of 	the 	issue 	and 	complains 	about 	Mr.
Ohlson's 	handling of 	the matter.
Based on 	the 	above 	stated 	facts, 	the 	charge 	as presently written,
fails 	to 	state 	a prima 	facie violation of 	the EERA, 	for the
reasons 	provided 	below.
Government 	Code 	section 3541.5(a)(1) 	prohibits 	the 	Board 	from
issuing 	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. 	This 	limitations period 	is 	mandatory
and 	constitutes 	a 	jurisdictional 	bar 	to 	charges 	filed outside 	the
prescribed period. 	(University of California 	(1990) 	PERB
Decision No. 	826-H.) 	With respect 	to duty of 	fair representation
claims under 	3544.9, 	the 	limitations period begins 	to 	run on the
date 	the 	employee, 	in the exercise of 	reasonable diligence, 	knew
or 	should have 	known 	that 	further 	assistance 	or 	response 	from 	the
union was 	unlikely. 	(Service 	Employees 	International 	Union,
Local 	790 	(Patterson) 	(1998) 	PERB Decision No. 	1254; 	Los Rios
College 	Federation of 	Teachers 	(1991) 	PERB Decision No. 	889.)
The 	instant 	charge was 	filed on December 14, 	1999. 	Thus, 	the
statute of 	limitations 	extends back to June 	14, 	1999, 	and all
incidents 	occurring prior to June 	14, 	1999 	are untimely. 	On or
about April 	23, 	1999, 	Charging Party was 	informed by Ms. 	Reinhold
that 	she 	would not 	recommend arbitration 	in this matter. 	This
finding was 	reiterated by letter on June 	11, 	1999. 	As 	such,
Charging 	Party knew or 	should have known as 	late 	as 	June 	11,
1999, 	that 	the Association would not 	take 	the grievances 	to
arbitration. 	Based on this knowledge, 	the 	charge 	is untimely
filed.
Even 	assuming 	Charging 	Party did not 	know 	the 	Association would
deny arbitration until 	June 	14, 	1999, 	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

Warning 	Letter
LA-CO-820
Page 5
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:
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.]
The 	instant 	charge 	presents 	facts 	demonstrating 	the Association
disagreed 	with 	Charging 	Party 	over 	her 	grievances 	from 	the
outset, 	and 	informed Charging 	Party of 	this 	disagreement
throughout 	the 	process 	while 	still 	attempting 	to 	settle 	the
matter. 	It does not 	appear that 	the. Association's position was
without 	rational 	basis or devoid of 	honest 	judgement. 	An
exclusive 	representative 	is 	not 	obligated 	to pursue 	all
grievances 	and 	is 	not 	obligated to pursue 	an employee's 	legal
theories. 	(University Council-AFT 	(Chan) 	(1994) 	PERB Decision
No. 	1062-H.) 	Moreover, 	mere negligence or poor judgment 	in the
handling 	of 	a grievance 	does 	not 	establish 	a violation of 	the
duty, 	nor do differences 	in grievance-handling tactics, 	or
differing 	interpretations 	of 	the 	collective 	bargaining 	agreement.

Warning 	Letter
LA-CO-820
Page 6
(United Teachers of Los Angeles 	(Buller) 	(1984) 	PERB Decision No.
438.) 	As 	the 	charge 	fails 	to 	demonstrate 	the Association acted
without 	a rational 	basis 	or devoid of honest 	judgment, 	the 	charge
fails 	to 	state 	a prima 	facie 	case. 	The Association's 	reluctance
to 	file 	or pursue 	a grievance where 	it 	honestly determines 	the
case 	is without 	merit, 	is 	insufficient 	to establish arbitrary,
discriminatory 	or 	bad 	faith 	conduct.
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 	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 January 19, 	2 000, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional 	Attorney