Fremont Unified District Teachers Association (Turney) (PERB 1443E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KATHLEENM. TURNEY,
Charging Party,
V.
FREMONT UNIFIED DISTRICT TEACHERS
ASSOCIATION, CTA/NEA,
Respondent.
Case No. SF-CO-574-E
PERB Decision No. 	14L+3
June 	7, 	2001
Appearances: Kathleen M. Tumey on her own behalf; Priscilla Winslow, Attorney, for
Fremont Unified District Teachers Association, CTA/NEA.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Kathleen M. Turney (Tumey) of a Board agent's dismissal (attached) of
her unfair practice charge.
The charge was evaluated as having alleged that the Fremont Unified District Teachers
Association, CTA/NEA (Association) violated Section 3543.6(a) and (b) of the Educational
Employment Relations Act (EERA) 1 by failing to represent Tumey properly in certain disputes
\·vith her employer and engaging in collusion '{l✓ ith her employer.
1 EERA is codified at Government Code section 3540 et seq. Section 3543.6 provides,
in pertinent 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, Tumey's appeaI2 and the Association's response. 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. SF-CO-574-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Whitehead joined in this Decision.
2 Tumey has provided the Board with copies of two of her previous PERB charges from
1986 which she offers as "evidence of previous collusion" between the District and the
Association. The 15 year old charges, which were settled, concerned distribution of contract
ratification materials, which is unrelated to the instant charge of collusion regarding the parties'
grievance procedure, except that the parties allegedly engaging in collusion are the same.
Although the Board takes official notice of these documents, the documents do not sufficiently
assist Tumey in establishing a prima facie violation of EERA by the Association.
2

ST A
TE
OF CALIFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite 2201
Oakland, CA
94612
(510)
622-1016
January
	22,
	2001
Kathleen
	M.
	Turney
6655
	Aitken 	Drive
Oakland,
	California
	94611
Re:	
DISMISSAL
	OF
	UNFAIR 	PRACTICE 	CHARGE/REFUSAL
	TO
	ISSUE
COMPLAINT
Kathleen
	M.
	Turney v.
	Fremont
	Unified
	District
	Teachers
AssociationUnfair
	Practice
	Charge
	No.
	SF-CO-574
Dear
	Ms.
	Turney:
The
	above-referenced
	unfair 	practice
	charge,
	filed
	on
	July
	24,
2000
	and
	amended
	on
	November
	21,
	2000
	and
	January
	22, 	2001,
alleges 	that
	the
	Fremont
	Unified
	District
	Teachers
	Association
(Association)
	failed
	to 	represent
	Charging
	Party 	regarding
certain
	disputes
	with 	her
	employer,
	the
	Fremont
	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
	8, 	2001,
that
	the 	above-referenced
	charge
	did 	not
	state
	a
	prima
	facie
case.
	You
	were
	advised
	that,
	if
	there
	were 	any
	factualinaccuracies 	or 	additional 	facts
	which 	would
	correct 	the
deficiencies 	explained
	in 	that
	letter,
	you
	should
	amend
	thecharge.
	You
	were
	further
	advised
	that,
	unless
	you 	amended
	thecharge
	to
	state
	a
	prima
	facie
	case
	or
	withdrew
	it
	prior 	to
January
	19, 	2001,
	the
	charge
	would 	be
	dismissed.
On
	January
	19, 	2001, 	an
	amended
	charge
	was
	received.
	The 	amended
charge 	contains 	further
	documentation
	of 	the 	dispute 	described 	in
the 	original
	charge. 	Although
	the
	amended
	charge 	includes
additional 	allegations 	related 	to
	a
	companion
	unfair 	practice
charge
	filed 	against 	the
	District,
	as
	it
	relates 	to 	the
	instant
charge, 	the
	amended
	charge
	raises 	the 	following
	new
	allegations:
(1)
	that 	the 	Association
	first
	11
ignored
11
	Charging
	Party's
allegations 	regarding 	the
	District's 	refusal 	to 	support 	her
discipline 	of 	the 	student 	caught 	cheating, 	as
	set 	forth 	in 	her
May
	22, 	2000
	grievance, 	but
	later 	"resurrected
	a
	defunct 	version"
of
	it
	during 	the
	2000-2001 	school 	year;
	(2)
	that 	the 	Association
failed 	to 	process 	her 	grievance(s) 	concurrently with 	thecomplaint 	process, 	favored 	by 	both 	the 	District
	and 	the
Association"; 	and 	(3)
	that 	the 	Association 	and 	the 	District"insisted" 	that 	Charging 	Party process 	her 	issues 	regarding 	classassignments 	as
	a 	complaint 	rather 	than
	a
	grievance. 	These

Dismissal
	Letter
SF-CO-574
January
	22,
	2001
Page
	2
allegations
	fail
	to
	cure 	the
	deficiencies
	identified 	in
	the
January
	8,
	2001
	letter.
With
	regard
	to
	the
	Association's 	refusal 	to
	treat
	the
	student
discipline
	dispute
	and
	class
	assignment
	issue
	as
	grievances
rather
	than 	as 	complaints, 	the
	charge
	as
	amended
	fails
	to
demonstrate
	that
	the 	Association
	caused 	Charging
	Party
	to
	forfeit
a
	meritorious 	grievance 	for
	arbitrary,
	discriminatory
	or
	bad
faith
	reasons.
	(United 	Teachers
	of
	Los
	Angeles
	(Collins)
	(1982)
PERB
	Decision
	No.
	258;
	Reed
	District
	Teachers
	Association,
CTA/NEA
	(Reyes) 	(1983)
	PERB
	Decision
	No.
	332;
	Rocklin 	Teachers
Professional 	Association
	(Romero)
	(1980)
	PERB
	Decision
	No.
	124.)
The
	reasoning
	for
	this
	conclusion
	is
	set
	forth 	in 	the 	January
	8,2001
	letter
	and 	need
	not
	be
	repeated 	here.
With
	regard
	to 	the 	collusion 	allegation,
	the
	charge
	as
	amended
also
	fails
	to
	cure 	the
	deficiencies
	identified
	in
	the 	January
	8,2001
	letter.
	The
	Association's 	"insistence"
	on
	the
	filing
	of
	a
grievance
	on
	the 	proper
	form
	does
	not 	demonstrate
	arbitrary,
discriminatory 	or
	bad
	faith
	conduct
	in 	light
	of
	all
	thesurrounding 	circumstances, 	nor
	an
	attempt
	to
	engage
	in 	collusion
with 	the
	District.
	Charging
	Party
	has
	not 	demonstrated
	that
	the
procedural 	hurdles
	she
	may
	have
	encountered 	before
	having
	her
grievances 	heard 	caused 	her
	any
	harm
	that
	justifies
	issuance 	of
	a
complaint.
	That
	harm
	was
	principally
	delay
	and
	not 	the
	inability
to 	obtain
	a
	forum
	for
	her 	claims.
Therefore,
	I 	am
	dismissing 	the 	charge 	based
	on
	the
	facts
	and
reasons
	set 	forth
	above 	and
	in
	my
	January
	8,
	2001
	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'sreceipt, 	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.)

Dismissal
	Letter
SF-CO-574
January
	22,
	2001
Page
	3
A
document
	is
	also
	considered
	11
filed
11
	when
	received
	by
	facsimiletransmission 	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
	11
served
11
upon
	all
	parties 	to 	the 	proceeding,
	and
	a
	11
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
	11
served
11
	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
	trsi-nsmission 	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
	shallbe 	accompanied 	by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code 	Regs.,
	tit.
	8, 	sec. 	32132.)

Dismissal 	Letter
SF-C0-574
January 	22, 	2001
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
By
Regional 	Attorney
Attachment
cc: 	Priscilla 	Winslow

STA
TE
•)F
CAUFORNIA
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite
2201
Oakland, CA
94612
1510)
622-1016
January	
81	
2001
,~~,:::,L::..2d:	
M,	
Turney
Drive
Oakland
1
	California
	94611
6655	
Aicken
Re:	
WARNING
	LETTER
Kathleen
	M.
	Turney v.
	Fremont
	Unified
	District
	Teachers
AssociationUnfair
	Practice
	Charge
	No.
	SF-CO-574
GRAY
DAVIS,
Governor
The
	above-referenced
	unfair 	practice
	charge,
	filed
	on
	July
	24,
2000
	and
	amended 	on
	November
	21, 	2000,
	alleges 	that
	the
	Fremont
Unified
	District
	Teachers
	Association 	(Association)
	failed 	torepresent
	Charging
	Party 	regarding
	certain
	disputes
	with
	her
employer,
	the
	Fremont
	Unified
	School
	District 	(District).
	This
~onduct
	is
	alleged 	to 	violate
	Government
	Code
	section
	3543.6
	of
the 	Educational
	Employment
	Relations
	Act
	(EERA).
Investigation
	of 	the
	charge
	revealed 	the 	following. 	Kathleen
	M.
Turney
	is
	a
	certificated
	employee
1
	employed 	by
	the
	District.
	She
is
	a 	member
	of
	a
	bargaining
	unit 	exclusively 	represented
	by
	the
Assoc~acion
	(Association).
Turney
1 s
	dispute 	with 	the
	District
	began
	in
	February
	2000 	when
she 	took
	disciplinary 	action 	against
	a
	student 	in
	her
	class
	for
cheating.
	Because
	the 	offense
	was
	not
	the
	student's
	first,
Turney 	suspended
	the 	student
	and
	recommended
	his 	transfer 	to
	a
continuation 	school.
	Sandra
	Prairie,
	Mission
	San
	Jose
	High
School
	Assistant 	Principal,
	determined
	that
	the 	cheating
	inquestion 	warranted
	a
	different
	suspension 	than 	the
	one
	given
	and
chat 	the
	transfer
	would
	not
	be
	appropriate.
	Turney
	believed 	that
management's
	refusal 	to 	support 	her
	disciplinary 	action 	violated
~er 	righcs 	as
	a
	classroom 	teacher.
In 	April
	2000,
	Principal 	Stuart
	Kew
	issued 	teaching 	assignments
:or
	che 	2000-2001
	school 	year.
	Turney 	was
	assigned 	classes
	she
asked 	not 	be
	assigned 	to 	her.
	They
	included 	three 	ninth 	grade
lish 	classes.
	Turney 	believed 	that 	this
	assignment
	was 	made
in 	retaliation 	for 	her 	earlier
	complaints 	against 	the 	vice
principal.
Beginning 	in 	February 	2000, 	Turney
	filed 	grievances 	over 	both
matters.
	The
	District 	initially 	treated 	these 	grievances 	as
complaints 	under 	the 	District
1 s
	complaint 	procedure, 	which
__:_
_
_:-_:::e.::_s	
:Loni 	che 	colleccive 	bargaining 	agreement's 	grievance
procedure. 	Turney 	obJected 	to 	this 	action 	on 	the 	District's 	part

Warning 	Letter
.SF 	C0-574
1 ::i.nuary 	8, 	2001
because 	it 	caused 	a 	substantial 	delay 	in 	the 	processing 	of 	the
grievances. 	When 	the 	grievances 	were 	elevated 	to 	the 	next 	level,
Slst~~~t 	admlnistrator 	delayed 	his 	investigation 	allegedly
causing 	the 	grievances 	to 	further 	languish. 	Additional
s__:neJ.u.i.ing 	and 	ocher 	procedural 	delays 	followed. 	Turney 	believes
that: 	if 	these 	grievances, 	particularly 	the 	one 	involving 	the
class 	assignment, 	had 	been 	addressed 	in 	a 	timely 	manner 	she 	might
have 	obtained 	a 	more 	suitable 	teaching 	assignment 	for 	the 	2000-
2001 	school 	year.
Turney 	complained 	about 	these 	matters 	to 	the 	Association. 	She
also 	raised 	issues 	concerning 	additional 	acts 	of 	harassment 	by
Kew 	and 	Prairie. 	Turney met 	with 	an Association 	representative
"' 	shorcly 	after 	filing 	her 	grievances. 	The 	Association
recommended 	that 	she 	pursue 	the 	two 	issues 	separately. 	The
Association 	advised 	Turney 	that 	the 	complaint 	about 	the 	class
assignment 	issue 	could 	not 	be 	addressed 	in 	the 	grievance
procedure 	because 	the 	contract 	afforded 	the 	administrators 	wide
discretion 	in 	making 	such 	assignments. 	Also, 	while 	Turney
2laimed 	chat 	the 	assignment 	violated 	seniority 	rules, 	the
Association 	advised 	her 	that 	seniority 	need 	only 	be 	considered 	in
~nvoluncary 	transfers 	between 	school 	sites 	and 	that 	Kew's 	action
did 	not 	involve 	such 	a 	decision. 	In 	this 	regard, 	it 	is 	noted
that 	Article 	21, 	section 	21.3.5 	states 	that 	seniority 	applies 	to
a 	"right:" 	or 	"benefit" 	under 	the 	agreement. 	But 	the 	contract
does 	not 	clearly 	establish 	that 	a 	particular 	teaching 	assignment
•~ 	:-~~ 	~~ 	2~t~tlement.
The 	Association 	agreed 	that 	the 	issue 	involving 	the 	lack 	of
support 	for 	her 	disciplinary 	action 	could 	be 	addressed 	through
the 	collective 	bargaining 	agreement. 	The 	Association 	represented
Turney 	at 	the 	Level 	II 	grievance 	meeting. 	The 	District 	denied
the 	grievance. 	Turney 	then 	requested 	that 	the 	Association
arbitrate 	the 	grievance. 	The 	Association 	grievance 	chair 	was
unable 	to 	make 	a 	decision 	within 	a 	time 	frame 	satisfactory 	to
Turney, 	and 	so 	she 	filed 	the 	instant 	unfair 	practice 	charge.
The 	Association 	also 	received 	a 	request 	by 	Turney 	to 	pursue 	the
class 	assignment 	grievance 	to 	arbitration. 	This 	matter 	was 	held
in 	abeyance 	by 	the 	Association 	for 	some 	unspecified 	period 	of
c:;_me.
~n 	the 	fall 	of 	2000, 	Kew 	engaged 	in 	further 	acts 	of 	retaliation
assigning 	Turney 	to 	an 	unsafe 	and 	unhealthy 	classroom 	and
:ssuing 	her 	a 	letter 	of 	reprimand 	chat 	was 	without 	justification.
~he 	gr~evance 	involving 	Prairie 	was 	partially 	resolved 	when 	the
Discrict 	agreed 	to 	assign 	a 	different 	evaluator 	to 	her. 	However,
the 	new 	evaluator 	was 	unfair 	to 	her 	and 	rejected 	her 	proposed
-::cacninq 	cioa1-s.

Warning 	Letter
r:0-574	~F
January 	8, 	2001
Page 	3
~~~ney 	further 	alleges 	that 	the 	Association 	promised 	to 	file 	an
unfair 	practice 	charge 	on 	her 	behalf 	with 	the 	Public 	Employment
Relations 	Board 	(PERB) 	to 	address 	the 	District's 	alleged
1	-~ 	i~~i~n, 	bu~ 	later 	reneged 	on 	the 	agreement.
Finally, 	Turney 	alleges 	that 	in 	the 	spring 	of 	2000 	the 	District
and 	the 	Association 	delayed 	distribution 	of 	the 	newly 	ratified
collective 	bargaining 	agreement 	and 	that 	this 	caused 	her
grievance 	processing 	to 	suffer. 	Turney 	claims 	that 	this 	conduct
demonstrates 	collusion 	between 	the 	Association 	and 	the 	District.
~ 	· 	~a~ts 	stated 	above, 	the 	charge 	as 	presently written
fails 	to 	state 	a 	prima 	facie 	violation 	of 	the 	EERA 	for 	the
reasons 	that 	follow.
In 	order 	to 	state 	a 	prima 	facie 	violation 	involving 	a 	breach 	of
the 	duty 	of 	fair 	representation 	with 	respect 	to 	grievance
processing, 	the 	charging 	party must 	show 	that 	the 	Association's
~~nduct 	was 	arbitrary, 	discriminatory 	or 	in 	bad 	faith. 	In 	United
Teachers 	of 	Los 	Angeles 	(Collins) 	(1982) 	PERB 	Decision 	No. 	258,
the 	Public 	Employment 	Relations 	Board 	(PERB) 	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.
[Ci tat ions.]
A union 	may 	exercise 	its 	discretion 	to
decermine 	how 	far 	to 	pursue 	a 	grievance 	in
the 	employee's 	behalf 	as 	long 	as 	it 	does 	not
arbitrarily 	ignore 	a 	meritorious 	grievance 	or
.i,J.Luce;:;s 	ct 	':::JL ic::vance 	_u1 	a 	perfunccory 	fashion.
A union 	is 	also 	not 	required 	to 	process 	an
employee's 	grievance 	if 	the 	chances 	for
success 	are 	minimal.
~n 	order 	co 	stace 	a 	prima 	facie 	case 	of 	arbitrary 	conduct
violating 	the 	duty 	of 	fair 	representation, 	a 	charging 	party:
11 	• 	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.) 11 	(Reed 	District
Teachers 	Association, 	CTA/NEA 	(Reyes) 	(1983)
PERB 	Decision No. 	332, 	p. 	9, 	citing 	Rocklin

Warning
	Letter
SF-CO-574
January
	8, 	2001
Page
	4
Teachers
	Professional 	Association
	(Romero)
(1980)
	PERB
	Decision
	No.
	124.)
The
	charge
	fails
	to
	demonstrate
	that
	the 	Association,
	by
	failing
--
	~'-'I:--~c.:.::,cu~
	~LuL:::Jj_;,::J
	Pd.LC/,
	caused
	her
	to
	forfeit
	a
	meritorious
gr1evance.
	An
	exclusive 	representative
	has
	discretion
	not
	to
pursue
	grievances
	which
	it
	does
	not
	believe 	will 	ultimately
prevail.
	In
	this
	case, 	the
	Association's 	decisions
	not
	to
	pursue
either
	of 	the 	grievances 	to
	arbitration
	are
	accorded
	deference
	by
PERB,
	unless 	the 	charging
	party
	can
	demonstrate
	that
	they
	were
~-~	
~31e
	i~
	good
	fait~.
=,1
	regard 	to 	the
	class
	assignment
	issue,
	as 	noted
	above,
	the
contract
	does
	not 	appear
	to
	clearly 	establish
	a
	right
	orentitlement 	to
	a
	particular
	teaching
	assignment. 	Charging
	Party
has 	not 	demonstrated
	that
	the 	Association 	acted 	in
	an
	arbitrary,
discriminatory 	or
	bad
	faith
	manner
	in
	not 	pursuing
	this
grievance.
Similarly 	in 	regard 	to
	the 	student
	disciplinary
	matter,
	Charging
Party
	has
	not 	demonstrated
	how
	the
	District's
	action, 	or 	lack
-.cCLc:;,
..
h,	
v ..:.0lac.ed
	any
	expre;::;s
	terms
	of 	the
	agreement.
rurcnermore, 	while
	there
	may
	be
	evidence 	of
	retaliation
	or
discrimination
	by
	the
	District
	for 	grievance 	processing,
	there
appears
	to
	be
	no
	provision 	of 	the 	contract 	granting 	protection
~a~inst
	such
	misconduct.
	The
	alleged 	delays 	in 	processing 	the
grievances, 	while
	possibly violating
	procedural 	requirementsunder
	the 	grievance 	procedure,
	also
	do
	not
	establish
	the
existence
	of
	any
	clearly
	meritorious 	grievance.
~harging 	Party 	claims
	that
	the 	Association 	has
	refused 	to
	file
	an
ur1fair
	praccice 	charge 	with
	this
	agency
	against 	the
	District
based
	on
	the 	alleged
	retaliation
	and
	discrimination 	for 	grievance
processing
	and
	other 	protected
	activity.
	However,
	the 	duty 	of
fair
	representation 	applies
	only
	to 	enforcing 	provisions 	of 	the
collective 	bargaining
	agreement 	and 	does 	not 	extend 	to
	filing
rb~rges 	with
	PERB
	or 	other 	administrative 	agencies.
	(See
American
	Federation 	of 	State,
	County 	and 	Municipal 	Employees(1988)
	PERB
	Decision
	No.
	683-S.)
?inally,
	Charging
	Party's
	claims 	of 	collusion 	appear 	to
	be
without 	merit.
	More
	is
	required 	to 	demonstrate 	collusion 	thancne 	mere
	coincidence 	of 	actions
	which
	leave 	the 	charging 	party~nsacisfied 	or 	unfulfilled.
	For 	example,
	if
	the 	Associationcaused 	or 	attempted 	to 	cause 	the 	District 	to 	violate 	Turney'sc.-Jncs 	under 	the
	EERA,
	the 	charge 	must 	demonstrate
	how 	and 	inwhat 	manner 	the 	Association's 	conduct 	led 	to 	this 	result.
~:sti~ 	~~ified 	Schoo 1
	District
	(1987) 	PERB
	Decision 	No. 	626; 	see

Warning
	Letter
~?	
__,0-S74
January
	8,
	2001
Page	
S
also
	American
	Federation
	of
	State
	County 	and
	Municipal
	Employees,Wdcers;
	\1988)
	PERB
	Decision
	No.
	697-H
	[failure
	to
	distribute
contract
	to
	all
	bargaining
	unit
	employees
	not
	a
	violation].)
	The
charge
	fails
	to
	do
	so.
For
	these 	reasons 	the
	charge, 	as
	presently 	written,
	does
	not
state
	a
	prima
	facie
	case.
	If
	there 	are
	any
	factual 	inaccuracies
-~
	chis
	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
j:-'-C1.-::....,_ce
	charge
	form,
	clearly
	labeled
	First
	Amended
	Charge,
contain
	all
	the
	facts
	and
	allegations
	you
	wish
	to
	make,
	and
oe
	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, 	2001,	
I
shall
	dismiss
	your
	charge.
	If
	you
	have 	any
	questions, 	please
ca
11
	me
	at
	( 5 1 0 ) 	6 2 2 - 1 0 2 4 .
-=
.=..1:1cerely,
DONN
	GINOZA
Regional 	Attorney
~