Corona-Norco Teachers Association, CTA/NEA (Rumrill) (PERB 1385E)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EMILY 	J. RUMRILL, 	ET AL.,
Charging 	Parties,
V .
CORONA-NORCO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
)
) 	Case No. 	LA-C0-814
PERB Dec isio 	No. 	1385
May 11, 2000
CO- 814
) 	n No. 1385
)
)
)
Appearances: 	Emily J. 	Rumrill, 	Representative, 	for Charging
Parties; 	Reich, 	Adell, 	Crost & Cvitan by Marianne Reinhold,
Attorney, 	for Corona-Norco Teachers Association, 	CTA/NEA.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations Board 	(Board) 	on appeal by Emily J. 	Rumrill 	(Rumrill)1
from the Board agent's 	dismissal 	(attached) 	of 	an unfair practice
charge.
On October 18, 	1999, 	Rumrill 	filed a charge alleging that
the Corona-Norco Teachers Association, 	CTA/NEA 	(Association),
violated the 	rights 	of 	six Speech 	& Language 	Pathologists 	(SLPs)
by its failure to bargain, 	in 1999, 	on the SLPs' 	behalf. 	Such
conduct 	by 	the Association was 	alleged 	to have violated 	section
3540 et seq. 	of the Educational 	Employment Relations Act 	(EERA).2
1The charge 	reveals 	that 	Rumrill 	is 	the 	representative 	for
Charging 	Parties.
2EERA is 	codified in Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government 	Code.
}
}
,n

More 	specifically, 	it 	is alleged that 	the Association denied the
SLPs 	the 	duty 	of 	fair 	representation guaranteed by 	EERA section
3544.9,3 and thereby violated section 3543.6(b).4 Following 	the
dismissal 	letter, 	in which the Board agent 	found 	that 	the 	charge
did not 	state a prima facie 	case, 	Rumrill 	filed the 	instant
appeal.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the unfair practice 	charge, 	the dismissal 	letter,
Rumrill's 	appeal 	and the Association's 	opposition. 	The Board
finds 	the dismissal 	letter to be 	free 	from prejudicial 	error, 	and
adopts 	it 	as 	the decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-814 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Amador and Baker 	joined 	in 	this 	Decision.
3Section 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.
4Section 3543.6 provides, 	in pertinent part:
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.
22

STATE OF CALIFORNIA 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
(213) 736-3127
January 6, 	2000
Emily J. 	Rumrill
Re: 	Emily J. 	Rumrill et al. v. 	Corona-Norco Teachers
Association, CTA/NEA
Unfair Practice Charge No. 	LA-CO-814
DISMISSAL AND REFUSAL TO 	ISSUE A COMPLAINT
Dear Ms. Rumrill:
This charge was filed October 18, 	1999 against the Corona Norco
Teachers Association, 	CTA/NEA 	(CNTA) 	by six senior, 	tenured
Speech & Language Pathologists 	(SLP's) 	regarding CNTA's failure
to bargain during 1999 	on SLP's behalf over STRS 	credit 	for
additional 	days worked by SLP's beyond their standard 196 	day
workyear. 	This 	conduct is alleged to violate Government Code
section 3540 et seq. 	of the EERA. 	The charge reveals that Ms.
Rumrill 	is the representative for Charging Parties. 	During my
telephone conversation with Ms. 	Rumrill on January 3, 	2000, 	she
agreed to waive the receipt of a Warning Letter. 	I indicated
that a Dismissal 	Letter would be sent 	instead.
My investigation has 	revealed the 	following information. 	There
are about 	twenty-three SLP's 	at 	the Corona-Norco Unified School
District 	(District). 	On February 21, 	1997 CNTA sent a memorandum
to all Support 	Personnel 	& Resource Specialists 	[comprising K-8
Counselors @ 196 day workyear, 	Speech & Language Pathologists @
196 day workyear, 	Nurses @ 191 day workyear, 	Psychologists @ 201
day workyear, 	Resource Specialists @ 185 day workyear, 	Other @
185 day workyear] 	concerning additional workdays for 1997-98 year
round schools. 	The survey was to be used to help the CNTA and
the District 	consider the 	feasibility of adding days 	to their
existing 	collective bargaining agreement 	for the upcoming 97-98
school year. 	CNTA indicated that with this information, 	it would
be able to open a dialogue with the District 	regarding extra days
for Support 	Personnel and Resource Specialists.
In 1999, 	the SLP's requested an increase in supplemental pay. 	On
May 12, 	1999, 	CNTA responded to SLP Carol Coleman,
During informal discussions with the District on
May 11, 	1999, 	the CNTA bargaining team presented your
request and its 	rationale to the District's bargaining
team. 	The District rejected the proposal 	to increase
the daily supplemental pay to that of 	the CNUSD
----~ 	--

Psychologists. 	They 	indicated 	that 	they believed 	that
the 	compensation package 	of 	CNUSD 	Speech 	and 	Language
Pathologists 	is 	superior 	to and very 	competitive 	with
that 	of 	Speech and Language 	Pathologists 	in 	surrounding
districts. 	There was 	an 	indication that 	this 	issue
could be 	explored 	in 	the 	future 	if 	there 	was 	data 	to
suggest 	that 	compensation was 	not 	competitive. 	This
issue 	could possibly be 	pursued by 	CNTA when 	the
contract 	is 	opened 	for 	future negotiations.
The 	contract 	between 	the District 	and CNTA at 	Article 	1, 	section
1.3 	did not provide 	for reopeners 	for the 	1999-2000, 	except
through mutual 	consent. 	On June 4, 	1999, 	CNTA sent a memorandum
to all 	potential 	extended year 	contract 	with STRS 	credit 	unit
members, 	with an attached 	list 	of 	Resource 	Specialists provided
by the District, 	regarding a meeting to discuss 	the 	issues
scheduled 	for June 	11, 	1999. 	Charging Parties 	assert 	that 	CNTA's
notice was 	only 	sent 	to 	185 	hour workyear unit 	members 	including
Michelle 	Dennis, 	a Visually Handicapped Specialist 	and Resource
Specialists, 	but not 	to SLP's 	or Nurses. 	SLP's assert 	that 	the
CNTA failed 	to 	send them the June 	4, 	1999 	memorandum on purpose.
At 	that 	time, 	CNTA and the District 	were 	discussing 	the
possibility 	of 	having 	the 	additional 	days 	worked by unit 	members
on year 	round multi-track 	extended year 	contracts 	be 	subject 	to
STRS 	credit. 	The 	discussions 	in June 	1999 	resulted 	in a
Memorandum of 	Understanding 	on June 	28, 	1999 	providing 	for STRS
Credit 	for additional 	days 	worked by Resource 	Specialists,
Visually Handicapped Specialists, 	Adapted P.E. 	Specialists, 	and
Motor 	and Mobility 	Specialists.
On June 	9, 	1999, 	CNTA wrote 	to 	the District 	in order to obtain a
corrected 	list 	to 	be 	used 	in 	contacting 	everyone 	affected by 	the
possible change, 	as follows,
You 	have 	faxed 	CNTA two 	lists 	of 	potential 	extended
year contract personnel. 	One 	list 	is 	for 	1999-2000
Resource 	Specialists, 	both Multi-track YRS 	Resource
Specialists 	and Single Track Resource 	Specialists. 	The
other 	list 	was 	for 	the 	seven Support 	Personnel 	on Multi
Track Schedules. 	We 	have 	received 	information 	that
indicates 	that 	some 	teachers 	who are 	working extended
contracts 	and 	fit 	this 	category have 	not 	received
notification of 	the June 	11, 	1999 meeting. 	Please
check your 	list 	and 	fax a 	corrected and updated 	list 	to
CNTA by 4:00 	Wednesday, 	June 	9 	so we may 	contact
everyone that may be 	effective 	(sic) 	by 	the possible
change....
On August 	2, 	1999, 	Charging 	Party JoAnn Ritchie 	complained to
CNTA that 	its 	failure 	to 	notify SLP's Nurses 	and others 	about 	the
June 	11, 	1999 meeting. 	Most 	SLP's were 	concerned as 	they put 	in
a 	considerable number of 	days 	beyond their regular 	19 6 	day
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workyear getting extra pay but 	no 	extra STRS 	credit. 	Ms. 	Ritchie
asked 	for 	copies 	of 	some 	CNTA minutes 	involving 	this 	matter,
whether 	CNTA 	requested 	from the District 	a 	list 	of 	all 	"potential
extended 	year 	contract 	unit 	members", 	and why 	CNTA excluded 	the
SLP's and others. 	On August 2, 	1999, 	Ms. 	Ritchie sent
information 	to 	CNTA hoping 	for 	SLP's 	to be 	added 	to 	those 	groups
already 	receiving 	extended year 	contract 	days 	for 	STRS 	credit.
CNTA responded 	to Ms. 	Ritchie 	on August 	27, 	1999 	indicating 	that
it 	had 	"contract 	clarification" 	meetings 	with 	the District 	where
it 	raised SLP's 	concerns 	but 	that 	a 	consensus 	was 	reached not 	to
increase 	the SLP's workyear 	for 	1999-2000, 	and that before a
proposed 	five 	day workyear 	increase 	was 	implemented 	for 	SLP's
effective 	the 	2000-2001 	school 	year, 	CNTA would meet 	with all
SLP's 	to 	discuss 	such an 	increase.1
Charging 	Parties 	assert 	that 	negotiating 	the 	STRS 	benefit 	for
SLP's 	was 	warranted as 	traditionally 	it was 	difficult 	to 	find
enough people 	to 	fill 	the 	SLP 	jobs. 	The 	SLP's 	contend that 	they
were 	improperly 	excluded 	during 	the 	regular 	negotiations 	and 	were
only 	discussed 	later 	during 	contract 	"clarification" 	talks 	caused
by SLP's 	complaining. 	SLP's point 	out 	that 	this 	issue 	has 	not
been brought 	to 	the members 	for 	a vote 	and 	that 	contract
negotiations 	can be 	re-opened any 	time 	based on 	the 	agreement 	of
the parties.
Based 	on 	the 	above 	information, 	the 	charge 	does 	not 	state 	a prima
facie violation.
Charging 	Parties 	have 	alleged 	that 	the 	exclusive 	representative
denied them the 	right 	to 	fair 	representation 	(DFR) 	guaranteed by
EERA section 	3544.9 	and 	thereby violated 	section 3543.6(b). 	The
DFR 	imposed 	on 	the 	exclusive 	representative 	attaches 	during
contract 	negotiations. 	To 	establish that 	the union did not
fairly represent 	employees 	in 	contract 	negotiations, 	it must 	be
shown 	that 	the 	CNTA's 	action was 	arbitrary, 	discriminatory or
made 	in bad 	faith. 	See 	Los Angeles 	Unified School 	District
(1986) 	PERB Decision No. 	599; 	Sacramento City Teachers
Association 	(1984) 	PERB Decision No. 	428 	at p.9.)
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
1My investigation has 	revealed 	that 	the 	District 	was 	willing
to make 	the 	STRS 	change 	only 	for employees 	with workyears 	which
were 	less 	than 	196 	days. 	Around April 	1999, 	CNTA acquiesced on
this point.
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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 	union 	is 	not 	required 	or 	expected 	to 	satisfy all 	members 	of
the bargaining unit 	it 	represents, 	and the duty of 	fair
representation 	"does 	not 	mean 	that 	[the 	exclusive 	representative]
is 	barred 	from making 	contracts 	which may have 	unfavorable
effects 	on some of 	the members...." 	Steele v. 	Louisville 	&
N.R.R. 	et al. 	(1944) 	323 U.S. 	192 	[15 LRRM 708, 	712], 	quoted in
Redlands 	Teachers Association 	(1978) 	PERB Decision No. 	72. 	As
noted 	in Redlands 	Teachers Association at p.5, 	quoting 	from Ford
Motor Co. 	V. 	Huffman 	(1953) 	345 U.S. 	330 	[31 LRRM 2548 at 2551],
"...A wide 	range 	of 	reasonableness 	must 	be 	allowed a 	statutory
bargaining 	representative 	in serving 	the unit 	it 	represents..."
Also, 	the 	exclusive 	representative 	is not under an obligation to
negotiate 	a particular 	item benefitting 	certain unit 	members.
See Los Rios 	College 	Federation of Teachers. 	CFT/AFT 	(Baker et
al.) 	PERB Decision No. 	877, 	cited in Los Rios College Federation
of Teachers 	(1996) 	PERB Decision No. 	1133. 	The negotiation of
provisions 	eliminating an advantage 	for a 	small 	group 	of
employees 	does 	not violate 	the DFR. 	Mount 	Diablo Education
Association 	(1984) 	PERB Decision No 422. 	Nor 	is 	the duty
breached 	when 	the 	parties 	negotiate 	provisions 	adversely
affecting particular 	employees. 	San 	Francisco 	Classroom Teachers
Association 	(1984) 	PERB Decision No 444.
The 	Charging 	Parties' 	allegations 	do not 	show that 	CNTA acted 	in
an arbitrary, 	discriminatory or bad 	faith manner. 	Even 	if 	the
SLP's were not notified of 	the June 	11, 	1999 meeting, 	it appears
that 	CNTA attempted 	to 	obtain 	corrected 	lists 	for 	notifying
employees 	from the District. 	Also, 	the 	facts alleged do not 	show
that 	CNTA's 	failure 	to garner a benefit 	for 	the 	SLP's 	was 	done 	as
retaliation 	for protected activity, 	or done 	for any 	other 	invalid
reason. 	Finally, 	CNTA's 	failure to provide 	the requested
minutes, 	and its 	failure to answer several 	questions, 	in and of
itself, 	does 	not 	indicate a violation of 	the DFR.
Accordingly, 	I 	am dismissing 	the 	charge.
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
44

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
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).)
UT
	5

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.)
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 Marc S. 	Hurwitz
Regional Attorney
Attachment
cc: 	Marianne Reinhold, 	Esq. of Reich, Adell, 	Crost & Cvitan, 	Los
Angeles, CA.