California Federation of Teachers (Malik) (PERB 1662E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ABDULLAH MALIK,
Charging Party, Case No. LA-CO-1167-E

Vv. PERB Decision No. 1662

J
CALIFORNIA FEDERATION OF TEACHERS, uly 16, 2004

Respondent.

Appearance: Abdullah Malik, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Abdullah Malik (Malik) of a Board agent’s dismissal (attached) of his
unfair practice charge. The charge alleged that the California Federation of Teachers violated
the Educational Employment Relations Act (EERA)’ by agreeing with the Compton
Community College District to the reclassification of employees.

The Board has reviewed the entire record in this matter, including the original unfair
practice charge, the warning and dismissal letters of the Board agent, and Malik’s appeal.

The Board finds the warning and dismissal letters to be free from prejudicial error and
adopts them as the decision of the Board itself, subject to the discussion below.

DISCUSSION
Malik states in one sentence that he is appealing the dismissal so he may keep pursuing

his case. He has provided no facts related to the who, what, when or how of his underlying

'EERA is codified at Government Code section 3540, et seq.

charge. It was dismissed because he did not provide any facts as to dates, or conduct giving
rise to his charge, even after the warning letter was issued.
PERB Regulation 32635(a)2 requires, in relevant part, that:
The Appeal shall:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
None of the requirements set forth in this regulation have been met. 	The appeal must
be denied.
ORDER
The unfair practice charge in Case No LA-CO-I 167-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 27, 2004
Abdullah Malik
4800 Clair Del Avenue
Long Beach, CA 90807
Re: 	Abdullah Malik v. California Federation
of
Teachers
Unfair Practice Charge No. LA-.CO-1167-E
DISMISSAL LETTER
Dear Mr. Malik:
mLD
SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 23, 2004. The Abdullah Malik alleges that the California
Federation
of
Teachers violated the Educational Employment Relations Act (EERA)1 by
violating its duty
of
fair representation.
I indicated to you in my attached letter dated April 19, 2004, 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 April 26, 2Q04, the charge would be dismissed.
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 April 19 letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. (Regulation 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.
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
31001 et seq.

LA-CO-1167-E
April 27, 2004
Page 2
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on 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 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 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
ofeach other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)

LA-CO-1167-E
April 27, 2004
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~	
h-
Bernard McMonigle
Regional Attorney
Attachment
cc: Karen Curtis

STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
April 19, 2004
Abdullah Malik
4800 Clair Del Avenue
Long Beach, CA 90807
Re: 	Abdullah Malik
v.
California Federation
of
Teachers
Unfair Practice Charge No. LA-CO-1167-E
WARNING LETTER
Dear Mr. Malik:
OLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 23, 2004. The Abdullah Malik alleges that the California
Federation
of
Teachers violated the Educational Employment Relations Act (EERA)1 by
violating its duty
of
fair representation.
Your charge states that the union agreed with the employer to a reclassification for "certain
unwanted union members". It is further alleged that this agreement deprives these employees
of
seniority and vacation and that the union took this action to favor employees hired through
nepotism. No dates or facts are provided to support these allegations.
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
Thus, the charging party's burden includes alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
Without dates
of
the alleged union violation it cannot be determined whether you charge is
timely filed. 	EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with
respect to "any charge based upon an alleged unfair practice occurring more than 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. (Gavilari Joint
Community College District (1996) PERB Decision No. 1177.) The statute
of
limitations is an
affirmative defense which has been raised by the respondent in this case. (Long Beach
Community College District (2003) PERB Decision No. 1564.) Therefore, charging party now
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.

LA-CO-1167-E
April 19, 2004
Page 2
(
bears the burden
of
demonstrating that the charge is timely filed. (cf. Tehachapi Unified
School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
Additionally, the charge does not demonstrate a violation
of
the duty
of
fair representation. 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.)
Without sufficient facts to support the allegation
of
a violation
of
the duty
of
fair
representation this charge 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
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.

LA-CO-1167-E
April 19, 2004
Page 3
If
I do not receive an amended charge or withdrawal from you before April 26, 2004, I shall
dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
~
Bernard McMonigle
Regional Attorney
BMC