California School Employees Association (Garcia) (PERB 1444E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARTHA D. GARCIA,
Charging Party, Case No. LA-CO-864-E

v. PERB Decision No. 1444

CALIFORNIA SCHOOL EMPLOYEES June 7, 2001

ASSOCIATION,

Respondent.

Appearance: Martha D. Garcia, on her own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Martha D. Garcia (Garcia) from a Board agent's dismissal (attached) of her unfair
practice charge.

Garcia's charge alleged that the California School Employees Association (CSEA)
violated section 3543.6 of the Educational Employment Relations Act (EERA)’ by failing to

represent her properly regarding her claims of sexual harassment.

' BRERA is codified at Government Code section 3540 et seq. Section 3543.6 provides,
in pertinent part, that:

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 unfair practice
charge, the warning and dismissal letters and Garcia's appeal. The Board finds the dismissal
letter to be free from prejudicial error and adopts it as the decision of the Board itself.2
ORDER
The unfair practice charge in Case No. LA-CO-864-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
2 Garcia offers for the first time on appeal new specific charge allegations contending
CSEA failed to file a grievance for her in "February/March 2000" as she requested. As her
charge was filed on November 27, 2000, events occurring in February or March of 2000 are
outside the six-month statute oflimitations contained in EERA and are hereby dismissed as
untimely.
2

STA
TE
OF
CALIFORNIA	
GRAY
DAVIS,
Governor
PUBLIC
EMPLOYMENT
RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay Street, Suite
2201
Oakland, CA
94612
1510)
622-1016
March
	2, 	2001
Martha
	D.
	Garcia
1051
	Site
	Drive,
	#96
Brea,
	CA
	92821
Re:
	Martha
	D.
	Garcia
	v.
	California
	School
	Employees
	Association
Unfair
	Practice
	Charge
	No. 	LA-CO-864
DISMISSAL 	LETTER
Dear
	Ms.
	Garcia:
In 	the 	above-referenced
	unfair 	practice
	charge
	Martha
	Garcia
alleges
	the
	California
	School
	Employees
	Association
	violated
	the
Educational
	Employment
	Relations
	Act
	(EERA
	or
	Act)	
§	
3543.6.
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	datedFebruary
	13, 	2001,
	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
	thecharge.
	You
	were
	further
	advised
	that,
	unless
	you 	amended
	the
charge
	to
	state
	a
	prima
	facie
	case
	or
	withdrew
	it
	prior 	to
February
	22, 	2001,
	the
	charge
	would 	be
	dismissed.
On
	February
	21, 	2001,
	my
	office
	received
	a
	letter
	from 	you
indicating
	the
	warning
	letter
	summarized
	the 	facts
	of 	the 	charge
incorrectly
	and
	requesting
	an
	opportunity 	to
	meet
	with
	me
regarding 	the 	charge.
	On
	February	
231 	2001,
	I
	left
	a
	message
	for
you
	indicating
	I
	was
	in 	receipt
	of 	your
	letter,
	and
	that
	you
should
	call
	me
	regarding
	this
	charge.
	You
	did 	not 	respond
	to
	my
message.
	Nor
	did
	you
	request
	an
	extension 	of 	time
	to
	file
	an
amended
	charge.
	I
	have 	not 	received
	either
	an
	amended
	charge 	or
a
	request 	for 	withdrawal. 	Therefore,
	I 	am
	dismissing 	the 	charge
based
	on
	the
	facts
	and
	reasons 	contained 	in
	my
	February 	13,
	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 	documenc
	filed 	with 	the 	Board 	must
	contain
the 	case
	name 	and 	number, 	and 	the 	original
	and 	five
	(5)
	copies 	ofa:: 	doc~ments 	must 	be 	provided 	to	
~~e	
Board.

LA-CO-864
Dismissal
	Letter
Page
	2
A
document
	is
	considered
	"filed"
	when
	actually
	received 	beforethe 	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
	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
	fivecopies 	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
11
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

LA-CO-864
Dismissal
	Letter
Page
	3
Board
	at
	the
	previously
	noted
	address.
	A
request
	for
	an
extension
	must
	be
	filed
	at 	least
	three
	(3)
	calendar
	days
	beforethe
	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	
~	T
Regional
	Attorney
Attachment
cc:
	David
	Dolloff

STA
TE
OF
CALIFORNIA
PUBL!C
EM?LOYMENT RELATIONS BOARD
San Francisco Regional
Office
1
51
5 Clay St;eet, Suite
2201
Oakland, CA
94612
(510)
622-1016
February
	13,
	2001
Martha
	D.
	Garcia
1051
	Site
	Drive,
	#96
Brea,
	CA
	92821
GRAY
DAVIS, Governor
Re:
	Martha
	D.
	Garcia 	v.
	California
	School
	Employees
	AssociationUnfair
	Practice
	Charge
	No. 	LA-CO-864
WARNING
	LETTER
Dear
	Ms.
	Garcia:
In 	the 	above-referenced
	unfair 	practice
	charge
	Martha
	Garcia
alleges
	the
	California
	School 	Employees
	Association
	violated
	the
Educational
	Employment
	Relations
	Act
	(EERA
	or
	Act)
	§
	3543.6 	by
failing
	to 	adequately 	represent
	Garcia 	regarding 	claims 	of 	sexualharassment.
	My
	investigation
	of 	the 	charge
	revealed 	thefollowing 	information.
Charging
	Party
	was
	employed 	by
	the 	Whittier
	Union 	High
	School
District
	(District)
	as
	a
	Clerk
	III
	in
	the
	Purchasing 	Department.
As 	a
	classified
	employee~
	Garcia
	was
	exclusively 	represented
	by
CSEA. 	CSEA
	and
	the
	District
	are
	parties
	to
	a
	collective
bargaining
	agreement,
	which 	does
	not 	include
	a
	Non-Discrimination
provision.
	Thus,
	allegations
	of 	discrimination, 	including 	sexualharassment, 	cannot
	be 	pursued 	through 	the 	grievance
	machinery
	inthe
	Agreement, 	and
	instead
	must 	be
	pursued 	through
	outside
mechanisms.
	The
	charge 	includes
	more
	than
	50
	type-written
	pagesand 	dozens
	of 	other
	attachments.
	The
	relevant 	facts 	are
summarized 	below.
In
	September 	1999,
	Garcia
	began
	receiving 	unsolicited
	sexualadvances
	from
	co-worker 	Jack 	Martinez.
	At
	this
	time, 	bothMartinez
	and
	Garcia
	were
	running
	for 	local
	CSEA
	officerpositions;
	Martinez
	for 	President
	and 	Garcia 	for
	2nd
	Vice-
President.
	The
	sexual 	harassment 	continued 	through 	the 	electionprocess, 	with 	both 	Martinez 	and 	Garcia 	being 	elected 	to
	CSEA
Board
	positions.
Throughout 	January 	and 	February 	2000, 	Martinez
	allegedlycontinued 	his 	harassment, 	which
	included 	sexual 	innuendos 	and
belittling
	comments.
	On
	February 	22, 	2000, 	Garcia 	reported 	theharassment 	to 	Jim
	Downs,
	her 	immediate 	supervisor. 	Garcia 	stated
that 	Martinez's 	conduct
	was
	"getting 	out 	of 	hand" 	and
	thatsomething 	needed 	to 	be 	done 	about
	it.
	Downs
	apparently 	agreed
with 	these 	statements, 	but 	Garcia 	states 	nothing 	was 	done.
Instead, 	Garcia 	states
	Downs 	began 	treating 	her 	differently 	and
not 	giving 	her 	credit 	for 	projects 	she 	completed.

LA-CO-864-E
Warning Letter
Page 2
LA-CO-864-E
Warning
	Letter
Page
	2
It
	appears
	that
	the
	alleged
	harassment
	went 	on
	for 	several
	more
months.
	On 	May
	16,
	2000,
	Garcia
	filed
	for
	Worker's
	Compensation
benefits,
	citing
	increased
	stress
	as
	the
	triggering 	factor
	of
	her
illness.
	The
	District
	informed
	Garcia
	that
	she
	would
	be
	required
to
	use
	sick
	leave
	until
	her 	claim
	was
	approved.
In
	late
	May,
	2000,
	Garcia
	received
	a
	Letter
	of
	Reprimand 	from
Downs,
	regarding
	a 	May
	15, 	2000,
	"incident."
	A
copy
	of 	the
letter
	is
	not 	provided
	in
	the 	charge, 	nor
	does
	Garcia
	provide
details
	regarding 	the
	May
	15
	incident.
During
	the 	Spring
	or 	early
	Summer
	of
	2000,
	Garcia 	informed
	CSEA
of 	the
	problems 	she
	was
	having
	with 	Martinez
	and
	Downs.
	Garcia
does
	not 	provide
	a
	date
	upon
	which
	she
	requested
	CSEA
	conduct
	an
investigation,
	but
	instead
	states 	that
	she
	believed
	Linda
Carroll,
	a
	unio~ 	job 	steward,
	was
	investigating
	the 	matter.
	Itis
	unclear
	what
	this 	belief
	was
	based
	on,
	as 	the
	charge
	does 	not
include
	any
	communication 	between
	Carroll
	and
	Garcia.
In
	June
	2000,
	Garcia
	met
	with
	Carroll
	and
	Leo
	Baca,
	CSEA
	1st
Vice-President.
	During
	this
	meeting, 	Garcia
	and
	Carrolldiscussed possible
	witnesses
	in
	her
	complaint
	against
	Martinez
and
	discussed 	the
	Letter
	of
	Reprimand.
	Carroll 	did 	nothing
	to
assist
	her
	in
	filing
	the 	sexual 	harassment 	complaint
	and
	forcedGarcia
	to
	draft
	the
	complaint
	herself.
On
	July
	18, 	2000,
	Garcia 	sent
	a
	draft
	of 	her
	complaint
	to
	CSEA
representative
	Melanie 	Schafer, 	asking 	Schafer 	not
	to 	share 	thecomplaint 	with 	her
	immediate
	supervisor.
	On
	July
	19, 	2000,
Schafer 	responded
	to 	Garcia's
	draft
	by
	stating 	that
	she 	shouldsubmit
	it
	to 	the
	District
	as
	soon
	as
	possible.
	Schafer
	also
stated
	she 	would
	speak 	with 	her 	Field 	Director,
	Joan 	Verhoef
regarding 	Garcia's 	confidentiality 	request.
On
	July
	24, 	2000,
	Garcia
	filed
	a
	sexual 	harassment 	complaint 	with
the
	Equal
	Employment
	Opportunity
	Commission
	(EEOC).
Additionally, 	Garcia 	sent
	an
	electronic
	message
	to 	Schafer
regarding 	"harassing"
	messages
	left
	on
	Garcia's 	voice 	mail.
	On
July
	26, 	2000,
	Shafer 	responded
	stating 	that
	Garcia 	should
consider 	getting
	an
	attorney 	to 	handle 	the
	EEOC
	complaint 	and
further 	stating 	that
	she 	would 	accompany
	Garcia 	to
	any
	interview
the 	District 	held 	regarding 	her 	internal
	complaint.
On
	July
	28, 	2000, 	Garcia 	sent
	a
	message
	to 	Shafer 	regarding 	heruse 	of 	sick
	and 	personal 	leave 	while 	on 	medical 	leave.
	On
	July31, 	2000, 	Shafer 	responded
	stating 	that 	the 	law
	required 	Garcia
to 	use 	her 	personal, 	sick
	and 	vacation 	leave 	before 	her 	Worker's
Compensation 	benefits 	kick 	in.

LA-CO-864-E
Warning
	Letter
Page
	3
On
	August
	28,
	2000,
	Garcia
	informed
	Shafer
	that
	the
	EEOC
	has
scheduled
	a
	mediation
	session 	for
	September
	21,
	2000.
	On
	that
same
	date, 	Shafer
	informed
	Garcia
	that
	she
	was
	unavailable
	on
that
	date,
	and
	as
	Garcia's 	attorney
	was
	also 	unavailable, 	the
mediation 	should
	be
	rescheduled.
	Additionally, 	Shafer
	stated
that
	CSEA's
	legal
	staff
	does
	not
	represent
	employees
	in
	EEOC
complaints
	and
	thus 	Shafer
	would
	be
	available 	to
	advise
	until
Garcia
	retained
	an
	attorney. 	Finally,
	Shafer
	stated 	that
	Garciashould
	provide
	the
	EEOC
	with
	a
	list
	of 	witnesses
	if
	Garcia
	wished
for
	them
	to
	be
	subpoenaed.
On
	August 	28, 	2000,
	Garcia
	sent
	a
	list
	of 	questions
	to
	Shaferregarding 	the
	filing
	of 	grievances.
	Specifically,
	Garcia
requested
	a
	grievance
	be
	filed
	over
	the
	harassment,
	and
	letter
	of
reprimand.
	On
	August
	29, 	2000,
	Shafer
	responded
	to 	Garcia's
questions
	by
	stating 	that
	a
	grievance
	cannot
	be
	filed
	regardingsexual 	harassment, 	as 	the
	contract
	does
	not
	contain
	any
	language
regarding
	harassment
	or 	discrimination,
	nor
	does
	the
	contract
allow
	employees
	to
	file
	against 	other
	employees.
	Finally,
Shafer
	informed
	Garcia
	that
	although
	a
	representative
	would
attend 	the 	mediation
	session
	with 	her,
	Garcia
	needed
	to 	get
	an
attorney
	who
	specialized 	in 	these 	matters.
After 	receiving 	Shafer's
	response, 	Garcia 	sent 	Shafer 	another
message
	stating
	she 	wanted
	a
	grievance
	filed
	against 	her
supervisor 	for
	harassment
	and
	discrimination.
	Shafer 	responded
that
	same
	day,
	again
	stating 	that
	CSEA
	could 	not
	file
	a
	grievance
against
	Downs
	for 	discrimination 	or
	harassment 	as
	the 	contractdid
	not 	allow
	for
	such
	grievances. 	Additionally, 	Shafer 	noted
that
	the 	timelines
	under 	the 	contract
	state 	that
	a
	grievance
	must
be
	filed
	within
20 	days
	of 	the 	act 	or 	condition
	which
	is
	the
basis
	of 	the 	complaint.
On
	August 	30, 	2000,
	Shafer 	informed 	Garcia
	that
	she 	needed
	a
	list
of 	witnesses
	who
	had 	seen 	the 	alleged
	harassment
	first
	hand.
Additionally, 	Shafer
	informed 	Garcia
	that
	she 	should
	file
	a
harassment 	complaint 	as
	soon 	as
	possible, 	to
	comply
	with 	the
District's
	policy.
	On
	that
	same
	date, 	Garcia 	sent 	Shafer
	an
	11
page,
	single-spaced
	message
	with 	the
	names
	of 	witnesses, 	both
friendly
	and
	hostile.
On
	September 	1, 	2000, 	Garcia 	sent
	a
	message
	to 	Shafer
	statingthat 	although 	she 	had 	met
	with 	an
	attorney,
	she 	did 	not
	want
	topay 	the 	retainer 	fee,
	and 	thus 	wanted
	CSEA
	to 	represent 	her 	atthe 	mediation.
	On
	September 	8, 	2000, 	Garcia 	sent
	a
	message
	toBarbara 	Miller, 	the
	CSEA
	representative
	who 	would 	be 	accompanying
Garcia 	to 	the
	EEOC
	mediation 	session. 	Garcia 	requested
information 	regarding 	the 	contacting 	of 	witnesses, 	however
	it
does 	not 	appear 	that 	Garcia 	requested 	the
	EEOC
	subpoena 	any
witnesses.
	On
	Miller's 	advice, 	Garcia 	sought 	statements 	from

LA-CO-864-E
Warning Letter
Page 4
LA-CO-864-E
Warning 	Letter
Page 	4
witnesses, 	including 	Carroll. 	However, 	it 	appears 	none 	of 	the
witnesses 	were 	willing 	to 	give 	statements.
On 	September 	20, 	2000, 	Garcia 	met 	with 	Miller 	to 	discuss 	the
mediation 	session 	scheduled 	for 	the 	next 	day. 	Garcia 	alleges
CSEA was 	not 	prepared 	to 	represent 	her 	at 	the 	mediation 	session
and 	that 	Shafer 	was 	not 	prepared. 	As 	Garcia 	was 	getting 	upset,
she 	called 	the 	EEOC 	and 	rescheduled 	the 	mediation 	session 	for 	a
future 	date.
On 	October 	2, 	2000, 	Garcia 	sent 	a 	message 	to 	Shafer 	regarding 	the
status 	of 	her 	witness 	statements. 	On 	October 	3, 	2000, 	Shafer
responded 	that 	CSEA 	would 	be 	sending 	letters 	to 	all 	the 	witnesses
requesting 	statements 	on 	Garcia's 	behalf.
On November 	16, 	2000, 	Garcia 	was 	informed 	by 	the 	District 	that
her 	employment 	would 	be 	terminated 	effective 	November 	28, 	2000,
as 	she 	had 	used 	all 	of 	her 	available 	sick 	and personal 	illness
leave. 	On November 	28, 	2000, 	Garcia 	was 	terminated 	from 	her
employment 	with 	the 	District.
The 	above-stated 	facts 	fail 	to 	state 	a 	prima 	facie 	violation 	for
the 	reasons 	that 	follow.
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).
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:

LA-CO-864-E
Warning Letter
Page 5
LA-CO-864-E
Warning
	Letter
Page
	5
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
Teachers
	Professional 	Association
	(Romero)
(1980)
	PERB
	Decision
	No.
	124.]
The
	duty 	of
	fair
	representation
	is
	limited 	to 	contractually-based
remedies 	under
	the 	union's
	exclusive
	control.
	(San
	Francisco
Classroom
	Teachers
	Association
	(Chestangue)
	(1985)
	PERB
	Decision
No. 	544
	(association
	not
	required
	to 	represent 	teacher
	in
Education
	Code
	proceedings).)
	A
contractually-based
	remedy
	is
one 	found
	in 	the
	collective
	bargaining
	agreement 	between
	the
District
	and
	the 	Association.
	As
	such,
	PERB
	will
	dismiss 	chargesbased
	on
	a
	union's
	failure
	to
	pursue
	noncontractual
administrative 	or
	judicial
	remedies.
	(Id.)
	Since
	the
	employee
may
	retain 	private
	counsel
	for 	representation 	in
	thesenoncontractual 	matters, 	the 	union's 	refusal
	does
	not
	bar 	the
individual
	from
	seeking 	redress
	on
	his 	or 	her
	own.
	(California
State
	Employees
	Association
	(Darzins)
	(1985)
	PERB
	Decision
	No.
546-S.)
Garcia
	alleges
	CSEA
	is
	obligated 	to 	provide 	her
	fair
representation 	in
	both 	the
	EEOC
	matter
	and
	the 	sexual 	harassment
complaints.
	However,
	as 	noted
	above,
	CSEA's
	duty
	is
	limited 	to
contractually-based
	remedies 	under
	their
	exclusive 	control.
	As
both 	the
	EEOC
	matter
	and
	the 	complaint 	procedure
	are 	outside
	CSEA
exclusive 	control, 	they
	do
	not
	owe
	Garcia
	a
	duty 	of
	fair
representation.
1	
(San
	Francisco
	Classroom Teachers
	Association
(Chestangue)
	(1985)
	PERB
	Decision
	No. 	544
	(association
	not
required 	to 	represent 	teacher 	in
	Education
	Code
	proceedings).)
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
1	
It
	appears
	Ms.
	Shafer 	attempted 	to 	inform 	Charging 	Party
of 	such 	representation 	rights
	when 	she 	informed 	her 	that
	a
grievance 	could 	not 	be 	filed 	as 	the 	allegations 	were 	outside 	the
contract.

LA-CO-864-E
Warning
	Letter
Page
	6
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
	22,
	2001,
	I
shall
	dismiss
	your 	charge.
	If
	you
	have 	any
	questions,
	please
ca
11
	me
	at
	(
51
0 ) 	6 2 2 - 1 0 2 3 .
Sincerely,
~
TAMMY
	SAMSEL
Regional
	Attorney