Orange Unified Education Association and California Teachers Association (Rossmann, et al.) (PERB 1569E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN ROSSMANN, ET AL.,
Charging Parties, Case No. LA-CO-1086-E

Vv. PERB Decision No. 1569

ORANGE UNIFIED EDUCATION December 18, 2003

ASSOCIATION & CALIFORNIA TEACHERS
ASSOCIATION,

Respondent.

Appearance: John Rossmann, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by John Rossmann, et al. (Rossmann) of a Board agent’s dismissal (attached)
of an unfair practice charge. The charge (as amended) alleged that the Orange Unified
Education Association (OUEA) and the California Teachers Association (CTA) violated the
Educational Employment Relations Act (EERA)' by proposing and agreeing to collective
bargaining agreement (CBA) provisions in 2001 and 2002 regarding health benefits for retirees

and allegedly discriminatory salary increases. Rossmann alleged that this conduct constituted

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

a violation of the employee organizations' duties of fair representation (DFR), codified at
BERA section 3544.92.
The Board agent found that the allegedly discriminatory retiree benefit provisions
cited by Rossmann as evidence of a DFR violation were contained in a draft memorandum of
understanding (MOU) resulting from bargaining in March 2000. This draft MOU was never
ratified. The Board agent determined that the provisions challenged by Rossmann were
proposed by the District, not OUEA.
In September 2001, the U.S. Equal Employment Opportunity Commission issued a
determination that there was reason to believe the retiree provisions violated the Age
Discrimination in Employment Act. The Board agent noted that the alleged problems with
those provisions were thereafter eliminated when modified language was adopted in the final
MOU ratified by OUEA and the Orange Unified School District (District) upon completion of
negotiations in October 2001. In light of those facts, the Board agent applied settled standards
set forth in PERB case law and concluded that the union's alleged conduct was not arbitrary,
discriminatory or undertaken in bad faith (Rocklin Teachers Professional Association
(Romero) (1980) PERB Decision No. 124). The Board agent also found that the union did not
knowingly waive employees' statutory rights. Thus, the Board agent found the charge failed to
state a prima facie DFR violation.
2EERA section 3544.9 states:
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.
2

Regarding allegations relating to salary changes, the Board agent found that, although
not all bargaining unit members received the same percentage salary increases in the 2001 and
2002 agreements, there was no evidence OUEA and CT
A's
agreement to the varying increases
was motivated by animus toward bargaining unit members or was damaging to their rights.
Instead, the Board agent found the disparities resulted from bargaining that was shaped, inter
alia, by the District's stated objective to provide incentives for new teacher recruitment.
Therefore, the charge was dismissed.
ROSSMANN'S APPEAL
On appeal, Rossmann argues that the plain meaning
of
Section 3544.9 imposes
on
exclusive representatives a duty to represent all bargaining unit members fairly and provides
no exception to that rule. Rossmann, therefore, argues that the Board agent "usurped" the
authority
of
the Legislature by applying the principle that an exclusive representative is not
required to satisfy all bargaining unit members.
Rossmann also contends that the salary increase disparities created in the 2001 and
2002 contracts were designed to remedy unlawful disparities created in earlier negotiations
memorialized in a 1997 MOU, and that allegations regarding the 1997 negotiations should
have been considered, notwithstanding EERA's six-month limitations period. Rossmann
argues that, just as there is no statute
of
limitations for capital crimes in criminal law, there
should be no statute
of
limitations for duty
of
fair representation allegations.
Rossmann also asserts that individuals who file DFR charges with PERB are "at the
mercy
of
exclusive representatives to police violations
of
the law" and states "it's extremely
unlikely that members can discover in just 180 days that their union agent has violated the
law." He further asserts that requiring "specific 'smoking gun' documents" to prove animus
3

by an exclusive representative places an "impossible burden
of
proof'
on individual charging
parties who are alleging DFR charges against their unions.
DISCUSSION
The Board is attentive to the difficulties individuals may face when attempting to
prosecute unfair practice charges against institutions such as employers or employee
organizations. However, although it may in some cases be difficult for a charging party to
quickly develop factual allegations to support a DFR charge, the Board is constrained
by
the
statutory six-month limitations period for filing
of
PERB charges alleging violations
of
EERA.3 Absent an exception to the limitations period based on other Board powers, policy
arguments directed to the Board regarding the effect
of
the limitations period cannot change
this explicit statutory mandate.4
The Board also notes that Rossmann was not required to proffer "smoking gun
documents" evincing animus against unit members in order to state a prima facie DFR charge.
Factual allegations, taken as a whole, establishing that the respondent employee organization
3EERA section 3541.S(a)(l) provides, in pertinent part:
[T]he board shall not ... [i]ssue 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.
4Rossmann alleges that a CBA signed in 1997 contained salary provisions that
conflicted with rules governing the State Teachers Retirement System (STRS). He asserts that
allegedly discriminatory salary disparities contained in the 2001 and 2002 agreements were
related to the allegedly unlawful 1997 provisions. Therefore, he argues, the Board should
consider the allegations regarding the 1997 agreement as timely. However, Rossmann's
allegations regarding compliance with STRS regulations are beyond this Board's subject
matter jurisdiction. Moreover, even if the 2001 and 2002 negotiations and resulting contract
provisions are examined in the context of Rossmann' s allegations regarding the 1997 contract,
the Board finds no prejudicial error in the Board agent's determination that, under all the facts
of this case, the 2001 and 2002 salary provisions fell within the range of the union's reasonable
discretion.
4

acted arbitrarily, discriminatorily, or in bad faith will establish a prima facie DFR case. Thus,
if, as here, the charging party does not produce evidence
of
bad faith or discriminatory intent, a
prima facie case still may be stated
if
the factual allegations indicated the union's conduct was
arbitrary. (See Rocklin Teachers Professional Association (Romero) (1980) PERB Decision
No. 124 (Rocklin).) The Board's review
of
the allegations and materials submitted by
Rossmann revealed that the Board agent's dismissal
of
Rossmann' s charge for failure to state a
prima facie case was free
of
prejudicial error.
Regarding Rossmann's contention that the plain meaning
of
Section 3544.9 precluded
the Board agent's dismissal in this case, the Board notes that the standards governing
DFR
charges derive from long-settled case law
of
which the Legislature was aware when EERA was
enacted. (See Rocklin, supra, interpreting sec. 3544.9 in accordance with the standards
articuiated in the seminal U.S. Supreme Court decision in Vaca v. Sipes (1967) 386 U.S. 171
[64 LRRM 2369].) The Board agent correctly applied those standards to the facts
of
this case.
After reviewing the unfair practice charge and its amendments, attachments thereto,
the warning and dismissal letters, and Rossmann's appeal, the Board finds that the warning and
dismissal letters are free
of
prejudicial error and adopts them as the decision
of
the Board
itself.
ORDER
The unfair practice charge in Case No. LA-CO-1086-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
5

,
. 	(	STATE OF CALIFORNIA 	·
----------
PUBLIC EMPLOYMENt RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
October 3, 2002
John Rossmann, et al.
14661 Berkshire Place
Tustin, CA 92780
GRAY
DA
VIS, Governor
Re: 	John Rossmann, et al.
v.
Orange Unified Education Association & California Teachers
Association
Unfair Practice Charge No. LA-CO-1086-E
DISMISSAL LETTER
Dear Mr. Rossman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 27, 2001. That charge was amended on February 8,
April 29, and May 3, 2002. John Rossmann, et al. alleges that the Orange Unified Education
Association & California Teachers Association violated the Educational Employment
Relations Act (EERA) 1
by violating its duty
of
fair representation in negotiations regarding
health benefits and salary. I called you on this date, however there was no answer.
Investigation reveals the following.
I indicated to you in my attached letter dated September 20, 2002, 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 October 2, 2002, the charge would
bedismissed.
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 September 20, 2002letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review ofthis dismissal
of
the charge byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

LA-CO-1086-E
October 3, 2002
Page 2
(
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.
(Regulations 32135(a) and 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
Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 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. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to
theproceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 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. (Regulation 32135(c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Regulation 32132.)

LA-CO-1086-E
October 3, 2002
Page 3
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
General Counsel
By
_____________
_
Bernard McMonigle
Regional Attorney
Attachment
cc: Robert E. Lindquist, Attorney

STATE OF CALIFORNIA 	( 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
,q"'o~~EHf-.!!!(,.,..,,
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Sacramento Regional Office
I
031
I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
September 20, 2002
John Rossmann, et al.
14661 Berkshire Place
Tustin, CA 92780
Re: 	John Rossmann, et al.
v.
Orange Unified Education Association & California Teachers
Association
Unfair Practice Charge No. LA-CO-1086-E
WARNING LETTER
Dear Mr. Rossman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 27, 2001. That charge was amended on February 8,
April 29, and May 3, 2002. John Rossmann, et al. allege that the Orange Unified Education
Association & California Teachers Association violated the Educational Employment
Relations Act (EERA) 1 by violating its duty
of
fair representation in negotiations regarding
health benefits and salary. I called you on this date, however there was no answer.
Investigation reveals the following.
Health Benefits
Your first allegation is that OUEA violated its duty
of
fair representation on August 28, 2001,
when union negotiator Paul Collins signed a document titled Memorandum
of
Understanding
regarding Health and Welfare benefits (Exhibit B to your charge). That document appears to
permit a change in carriers from Health Net to Blue Cross and continue the remainder
of
the
health benefits as per the collective bargaining agreement which was in effect. The first page
also notes that the parties shall begin negotiations on the 2001-2002 collective bargaining
agreement on or before September 15, 2001.
The second page
of
Exhibit B describes health and welfare benefits as set forth in the
collective bargaining agreement between OUEA and the Orange Unified School District. 	In
relevant part, it states "All District plan participants over the age
of
65 may be placed
in
a
Medicare Risk HMO at the discretion of the District." This provision, which permits theDistrict to place current employees and retirees in a Medicare Risk HMO, was proposed by the
District during the 2000-2001 negotiations. In March 2000, the District implemented its final
1 BERA is codified at Government Code section 3540 et seq. The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1086-E
September 20, 2002
Page 2
offer in those negotiations. 	In October 2000, OUEA members ratified the District's final offer
including the health plan change for current bargaining unit members over the age
of
65.
Exhibit B, which you attached to your charge, is not signed by the employer. 	This document
was not ratified by the union or the employer.
On September 24, 2001, the U.S. Equal Employment Opportunity Commission issued a
"Determination" that the collective bargaining agreement between OUEA and the employer
contained a provision "which is age-based and denies to current employees who are 65 or over,
that is, over the age
of
eligibility for Medicare benefits, the same benefits, under the same
conditions that it offers to any current employee under the age
of
65". The agency found that
there was reason to believe that the provision violated the Age Discrimination in Employment
Act
of
1967.
From the information provided with your charge it appears that the employer and the union
were both put on notice, in August and September
of
2001 that there were significant legal
problems with the age provisions
of
the health plan in the current co
agreement
llective bargaining
2. This information was provided to the employer and the union when they were
engaged in reopener bargaining for the health plan.
On September 27, 2001, OUEA and the District both signed a document that became the MOU
regarding health and welfare benefits. It states that on September 20 a proposed MOU(presumably Exhibit B) was presented to the District Board and current board members had
raised objection to the requirement that active plan participants over the age
of
65 could be
placed in a Medicare Risk HMO at the discretion
of
the District. With this MOU the District
and OUEA agreed to revise the health and welfare benefits to remove the language permitting
the District to place current employees over 65 in a Medicare Risk HMO3 . Instead, they are
entitled to the same health benefits as other current employees.
2 In addition to the EEOC determination, you have submitted other materials to support
your contention that OUEA had knowledge that the age provision was illegal. Exhibit
Wis
a
January 2002 letter from Kay Sandell Lampson to fellow teachers which recounts that she had
received information from a federal agency which indicated that the District "had no legal right
to force 65 yrs & over active teachers into Medicare ... " and had passed this information on to
OUEA. 	She states that she spoke at three union executive council meetings asking that the
improper provisions be removed, after summer 2001 negotiations had begun. You have also
supplied some
of
the information which Ms. Lampson received from the federal government
(Exhibit X), and a letter from AON Consulting to the District
of
August 14, 2001. That letter
informed the District that no provider would administer its health plan because it does not offer
employees over 65 the same benefits as it provides for employees under 65.
On July 30, 2002, the U.S. Equal Employment Opportunity Commission issued Ms.
Lampson a Notice of Right to Sue. It appears from the fact that only the employer's attorney
was copied on the document, that this was an action that she had filed against the employer.
3 It also eliminated the requirement that employees pay Medicare premiums.

LA-CO-1086-E
September 20, 2002
Page 3
(
You contend that the OUEA actions with regard to health benefits for bargaining unit members
over 65 evidences a violation
of
its duty
of
fair representation. Your charge notes the OUSD
board members objections to Exhibit B and states, "Clearly, the provisions that discriminated
against over-65 OUEA Members (sic) originated from OUEA/CTA and were not "imposed" by
the District."
However, as described above, the facts do not demonstrate that the subject health care
provision originated with the OUEA. The provision resulted from a District proposal in 2000.
If
you allege that the union's ratification
of
the proposal in October 2000 is a violation, that
allegation appears to be untimely. EERA section 3541.5(a)(l) prohibits PERB from issuing a
complaint with respect to "any charge based upon an alleged unfair practice occurring morethan six months prior to the filing
of
the charge." The limitations period begins to
run
once the
charging party knows, or should have known,
of
the conduct underlying the charge. (Gavilan
Joint Community College District (1996) PERB Decision No. 1177.) The charging
party
bears
the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District
(1993) PERB Decision No. 1024; State
of
California (Department oflnsurance) (1997) PERB
Decision No. 1197-S.) Accordingly, any allegation regarding union actions in October 2000 is
untimely.
Additionally, the OUEA actions in August and September 2001 do not evidence a violation
of
the duty
of
fair representation. During that time, the OUEA and the District were in
negotiations over changes in health care. During those negotiations, prior to the EEOC"Determination", the union's chief negotiator signed one proposal that was not ratified
by
the
union or the employer. The document never became operative and thus never affected the
rights
of
any bargaining unit members. The negotiations continued until there was agreement
by OUEA and OUSD to change the health plans so that the age discriminatory application to
bargaining unit members was removed.
In order to state a prima facie violation
of
the duty
of
fair representation, Charging
Party
must
show that the Respondent's conduct was arbitrary, discriminatory or in bad faith. Rocklin
Teachers 	Professional Association (Romero) (1980) PERB Decision No. 124. The
Board
has
determined that a union may violate its duty
of
fair representation by agreeing in negotiations
to contractual language that violates certain statutory guarantees. 	Oxnard Educators
Association (Gorcey et al.) (1988) PERB Decision No. 664. In Oxnard Educators,_the Board
concluded that a prima facie case
of
a violation is set forth when a charging party alleges that1)
a union was advised that a contract proposal violated a statute, 2) the union acknowledged
the concerns, 3) the union provides no rationale for negotiating a provision in conflict with the
statute, 4) a request to correct the conflict is made to the union and refused, and 5) the union
"knowingly bargained away Charging Parties rights".
In this case, the health care negotiations of August/September 2001 did not result in thebargaining away of the statutory rights of Charging Parties. 	While an early proposal may have
been a violation if it had been adopted, it was not. Rather, before negotiations were completed

(
LA-CO-1086-E
September 20, 2002
Page 4
the right
of
employees to a health plan that is not age discriminatory was restored.
Accordingly, this allegation must be dismissed.
Salary
On September 27, 2001, OUEA and OUSD executed an agreement on a salary increase. 	Salary
increases were not uniform. 	Salary increases in some entry level positions received increases
greater than the 5.5% increase received by the more experienced bargaining unit members.
You contend that there was no financial or staffing reason for the salary discrimination. In
support
of
this allegation you state that the lack
of
a staffing reason is demonstrated
by
the
District approving a budget (Exhibit D) "establishing a uniform 5.9% salary increase for
Teachers." (Statement
of
Charge, page 3, emphasis in original). However, a review
of
Exhibit
D, a chart
of
District general fund expenditures, merely states that total funding for teacher
salaries will increase by 5.9%. It does not state or imply a District position that the increase
will be applied in a uniform manner to all levels on the salary scale.
Additional investigation reveals that the OUSD set forth its initial proposal for these
negotiations in the board agenda for May 24, 2001. That document states that the "District's
objective in the collective bargaining negotiations with Orange Unified Education Association
is to raise salaries to the greatest extent possible in order to recruit and retain the finest
teacher's"
and other staff. That agenda also sets forth the Teacher/Nurse salary matrix. 	The
percent increase offered by the District in its initial proposal varies from approximately 12%
for the newest and least educated teaching staff to less than 1% for teachers with the most
educational credits and greatest number or years teaching. This initial proposal reflects a
strong employer preference to increase salaries for recruitment and the newer teachers. 	This
preference was expressed by District negotiators to Union negotiators at the bargaining table4.
Investigation also reveals that the OUEA, in both oral and written communications with
bargaining unit members, took the position that the salary schedule needed to be made more
competitive to attract and retain teachers and that the salary schedule should be compacted to
increase career earnings. After an MOU on salary was reached on September 27, 2001, the
OUEA distributed a highlight sheet that stated in relevant part,
The parties have reached an Interim Salary Schedule retroactive
to July
1,
2001. All salary cells for credentialed certificate unit
members will be increased by 5.5%. Beginning cells in Column
I and 2 will receive a higher increase (see attached schedules).
4 Your Exhibit G is an October 2001 Orange Unified School District Assessment by
Sorenson Consulting. Your charge states that it demonstrates "that even prior to the September
27, 2001, raise, unit members on Column 2 of Step 1 were already paid a higher salary than the
competitive rate paid at that level in peer districts." However, the salary table to which you
refer shows OUSD lagging behind the competitive rate in most entry and new employee levels
as well as the experienced levels.

LA-CO-1086-E
September 20, 2002
Page 5
On April 29, 2002, you amended your charge to include another salary agreement between
OUSD and OUEA that was reached on April 23, 2002. The joint announcement by the
employer and union bargaining teams states that they reached agreement on a new three year
contract and that they "met cooperatively to craft restructured salary schedules as part
of
a new
agreement. It is the mutual goal
of
both teams to have the salary schedule equivalent to the
median teacher salary schedule
of
the
12
Unified School Districts in Orange County." A new
restructured salary schedule was attached. The announcement also stated that the new
schedules would provide uniform step increases.
You contend that the April 2002 agreement further discriminates against the more senior
teachers by freezing Column I salaries at nine years, Column 2 at ten years and other freezes
in the advanced years
of
Columns 3 and 4. You state " Implicit in these discriminatory salary
freezes is the declaration by Respondents that the added teaching experience
of
these senior
teachers is worth nothing, while a corresponding year
of
teaching experience by members in
other Steps and Column cells is worth thousands
of
added dollars in salary." You also state
that when this increase is combined with the September 2001 increase the result is unequal
percentages ranging from 3% to more than 13%5•
Your charge states that the information which you have provided establishes that the salary
agreements
of
September and April recommended for acceptance by OUEA "fails the Rational
Basis test" established by the courts to determine whether there has been a violation
of
the duty
of
fair representation. You contend that the settlements were irrational because there was no
economic or personnel foundation.
In your charge, you contend that the alleged discriminatory salary settlements are part
of
a
continuing course
of
conduct. You state that the OUEA seeks "To eliminate the 'troublesome'
veteran teachers who have consistently demanded fair representation and services from the
Associations ... "
and"
replace the demanding veteran teachers with docile new and
uncredentialed teachers who will not question or challenge the Associations' actions
...
". You
contend that salary and benefit discrimination is used to force veteran teachers to leave the
District and disband them "as a unified force".
According to your charge, this discriminatory course conduct by OUEA in negotiations has
been ongoing since 19976. Your charge states that since that time veteran teachers have filed a
5 The third amended charge also argues that it is misleading to state the salary matrices
in the tentative agreement as
if
the salary increases were based on a full year (2001-2002)
when the final matrices were negotiated in March 2002 . However, the salary matrix for
teacher/nurse salary schedule clearly states"% Increase Over 2000-2001 Schedule". 	It does
not state that the full% would be received during the 2001-2002. In fact the% table is
preceded by dollar amount tables which clearly state that part of the negotiated raise is
"Retroactive to 3/1/02". Accordingly, the percentage table does not appear deceptive or
misleading.
6 It should be noted that you were the OUEA President from June 1999 to early 2000.

LA-CO-1086-E
September 20, 2002
Page 6
(
charge at PERB against OUEA, sought recall
of
the OUEA President, and attempted to
decertify the OUEA. 	You contend that the result is continuing discriminatory conduct against
veteran teachers.
As a general rule, an exclusive representative enjoys a wide range
of
bargaining latitude. As
the United States Supreme Court stated in Ford Motor Co.
v.
Huffman (1953) 345 U.S. 330,
338:
Inevitably differences arise in the manner and degree to which the
terms
of
any negotiated agreement affect individual employees
and classes
of
employees. The mere existence
of
such
differences does not make them invalid. The complete
satisfaction
of
all who are represented is hardly to be expected. A
wide range
of
reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents, subject
always to good faith and honesty
of
purpose in the exercise
of
its
discretion.
Acknowledging the need for such discretion, PERB determined that an exclusive
representative is not expected or required to satisfy all members
of
the unit it represents.
(California School Employees Association (Chacon) (1995) PERB Decision No. 1108.)
Moreover, the duty
of
fair representation does not mean an employee organization is barred
from making an agreement which may have an unfavorable effect on some members, nor is an
employee organization obligated to bargain a particular item benefiting certain unit members.
(Ibid.; Los Rios College Federation
of
Teachers (Violett) (1991) PERB Decision No. 889.)
The mere fact that Charging Parties were not satisfied with the agreement is insufficient to
demonstrate a prima facie violation. (Los Rios College Federation
of
Teachers (Violett),
supra, PERB Decision No. 889.)
In sum, the fact that all members
of
the bargaining unit did not receive the same percentage
salary increase from the September 2001 negotiations does not evidence a violation
of
the duty
of
fair representation7 . As the U. S. Supreme Court has observed, union negotiators are given
wide latitude and "the final product
of
the bargaining process may constitute evidence
of
a
breach
of
duty only
if
it can be fairly characterized as so far outside a 'wide range
of
reasonableness ... that it is wholly 'irrational' or 'arbitrary'." O'Neill v. Air Line Pilots (1991)
499
u. s.
65.
7 Your allegation of discriminatory salary appears to be based only on different
percentages. Teachers in the most advanced salary cells actually received more in dollars than
did beginning teachers. For example, the salary for Column 1 Step 1 had the largest September
2001 percentage increase, 8.82%. That salary cell increased from $34,000 to $37,000.
Veteran teachers in Column 3 and Column 4 in Steps 15 through 30 all received more that
$3000 when the salary was increased by 5.5%. (Exhibit 2-B)

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September 20, 2002
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In this case, the employer's original proposal (described above) greatly favored the newer
faculty. 	The outcome
of
negotiations in September 2001 was that all bargaining unit members
would receive at least a 5.5% increase. Some
of
the new hires would receive a larger
percentage increase. There was discussion at the bargaining table that this would assist the
District as it attempted to hire new teachers. Although the settlement was not as beneficial for
some as others, it appears to have been well within the bounds
of
reasonableness established
by PERB and the courts.
Similarly, the agreement
of
April 2002 does not demonstrate a violation
of
the duty
of
fair
representation. Your Exhibit 1-B states that the OUEA and OUSD agreed that the salary
schedule goal was the "salary schedule equivalent to the median teacher salary schedule
of
the12 Unified Districts in Orange County. The District will pay for this increase retroactively to
March
1,
2002."8
Your amended charge
of
April 29, 2002 states that when the March 1 increase is combined
with that from the previous September the results are unequal percentages
of
increase.
	For
the
reasons discussed, this result does not evidence a violation
of
the duty
of
fair representation.
The second amended charge also alleges that it is discriminatory to freeze salaries in certain
cells. However, this allegation is again based on the erroneous assumption that each salary cell
must be increased by the same percentage. The freezing
of
some salary cells in pursuit
of
the
goal
of
comparable pay to similar districts is not outside the "wide range
of
reasonableness"
afforded union negotiators.
You have alleged that in addition to being arbitrary and unreasonable, the OUEA actions
complained
of
in your charge were retaliation for an earlier unfair practice charge, an attempt
to
recall certain union officers, and a decertification effort. However, you have provided no
factual basis to demonstrate that the OUEA was motivated in its negotiations by hostility or
bad faith toward any particular bargaining unit members who may have been involved
in
those
efforts.
For the reasons discussed, the allegations that the union violated the duty
of
fair representation
when it negotiated the salary increases
of
September 2001 and April 2002 must be dismissed.
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 that 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
comer
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
8 The new schedules were attached.

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September 20, 2002
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amended charge or withdrawal from you before October 2, 2002, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Bernard McMonigle
Regional Attorney
BMC