Madera Unified Teachers Association (Freeman) (PERB 1719E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

_ LAUREL FREEMAN,
Charging Party, Case No. SA-CO-488-E
Vv. PERB Decision No. 1719
MADERA UNIFIED TEACHERS November 30, 2004
ASSOCIATION,
Respondent.

Appearances: Bennett & Sharpe, Inc. by Barry J. Bennett, Attorney, for Laurel Freeman;
California Teachers Association by Ballinger G. Kemp, Attorney, for Madera Unified Teachers
Association.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal filed by Laurel Freeman (Freeman) of a Board agent’s dismissal
(attached) of her unfair practice charge. The charge alleged that the Madera Unified Teachers
Association (MUTA) acted arbitrarily in its handling of Freeman’s grievance against the
Madera Unified School District (District) in violation of the Educational Employment
Relations Act (EERA)! by failing to represent Freeman appropriately in a dispute over the
transfer of two other teachers and Freeman.

The Board has reviewed the entire record in this matter, including the original and

amended unfair practice charge, the warning and dismissal letters, Freeman’s appeal and the

Association’s response. The Board finds the warning and dismissal letters to be free from

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

prejudicial error and adopts them as the decision of the Board itself, subject to the discussion
below.
DISCUSSION
Freeman states on appeal that the Board agent misread the facts of her case. She
acknowledges, however, that her charge alleging MUTA violated its duty of fair representation
by not taking her grievance to arbitration was incorrectly dismissed.
We do not agree that the facts were misread. Freeman asserts that the Board agent's
actions condone a "group mentality" representation. The Board agent has cited Castro Valley
Unified School District (1980) PERB Decision No. 149 (Castro Valley) noting it holds "a
union may reject even a grievance of arguable merit if a victory would damage conditions for
the bargaining unit as a whole."
In Castro Valley, PERB held that an employee does not have an absolute right to have a
grievance taken to arbitration and that an exclusive representative's reasonable refusal to
proceed with arbitration is essential to the operation of a grievance and arbitration system.
It is concluded that it is reasonable and prudent for an employee
organization representing teachers in a large District such as this
one to have standard conditions for its participation in the
grievance process which it applies to all unit members. 	Such
conditions facilitate the orderly and efficient processing of the
large number of grievances UTLA handles each year.
Such is the situation in this case. MUTA did represent Freeman and the other teachers
involved in this situation. It made a reasonable decision regarding the impact of its actions on
all the teachers and worked through the situation to do what it believed was best in
representing all three teachers.
Freeman and the two other teachers were enveloped in this personality conflict that had
gone on for years and the District believed had reached a level of impacting the instructional
2

program. To resolve this problem the District determined all three teachers would be moved to
separate schools.
While the MUTA president did meet with the District for discussions about this
situation, Freeman has not alleged facts that show collusion of MUTA and the District. The
teachers were all in the same bargaining unit and MUTA did not take sides among them and
worked to assure they were all three treated equally. Freeman believes she should have been
treated differently. Whether that is true or not is irrelevant as the actions taken by MUTA do
not rise to a prima facie case of violating the duty of fair representation.
ORDER
The unfair practice charge in Case No. SA-CO-488-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
3

STATE OF CALIFORNIA 	A ,,.. , ';D SCHWARZENEGGER, Governor	] 1
================"
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
July 27, 2004
Barry J. Bennett, Esquire
Bennett & Sharpe
925 "N" Street, Suite 150
Fresno, CA 93721-2221
Re: 	Laurel Freeman v. Madera Unified School District
Unfair Practice Charge No. SA-CO-488-E
DISMISSAL LETTER
Dear Ms. Freeman:·
· The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 16, 2004. Your client, Laurel Freeman, alleges that the
Madera Unified Teachers Association (MUTA) violated the Educational Employment
Relations Act (EERA)1 by failing to properly represent her.
I indicated to you in my attached letter dated May 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 May 26, 2004, the charge would be dismissed. You
were granted an extension oftime and I received your amended charge on June 29, 2004.
In that amended charge you continue to assert that the Association violated its duty of fair
representation by "collaborating" in the decision to transfer Laurel Freeman as well as two
other teachers from Howard school. You assert that it was the Association that "first came up
with the idea of transferring" her.
In the amended charge, you also allege that the Association "first came up with the idea of
transferring [Freeman], Wachtel, and Santoro, apparently so that they would not have to
represent [Freeman]." Freeman had sought that the Association pursue a grievance to
arbitration that included allegations of "verbal a_ttack" by the other two teachers.
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.
-

SA-CO-488-E
July 27, 2004
Page 2
(
As stated in my prior letter,
On March 24, the MUTA Executive Board met and considered
Freeman's request for arbitration. The board rejected Freeman's
request. According to the MUTA response to this charge, the
board did not believe there was credible evidence of a "verbal
attack" and did not want to take sides between bargaining unit
members or seek the discipline of bargaining unit members. The
board also did not believe that there was a credible denial of
representation allegation or foundation for a reprisal claim.
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).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section of EERA, Charging Party must show that the Respondent'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 omitted.]
A union may exercise its dis~retion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arl>itrarily 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 determining whether a union has violated its duty to represent PERB does not judge whether
a union's decision was, "correct" but whether its actions "had a rational basis, or was reached
for reasons that were arbitrary or based on invidious discrimination." International Union of
Operating Engineers, Local 501 (Reich) (1986) PERB Decision No. 591-H. Accordingly, a
union may reject even a grievance of arguable merit if a victory would damage conditions for
the bargaining unit as a whole. Castro Valley Unified School District (1980) PERB Decision
No. 149
As discussed in my prior letter, you have not set forth facts that demonstrate that the union's
actions, with regard to the transfer of the three teachers or the grievance filed by Ms. Freeman
were made for reasons that were irrational, arbitrary or that demonstrate bad faith.
Accordingly, I am dismissing the charge based on the facts and reasons contained herein and in
my May 19 letter. 	·

SA-CO-488-E
July 27, 2004
Page 3
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.
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 95814-1174
FAX: (916) 327-7960
ff 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).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	·

SA-CO-488-E
July 27, 2004
Page 4
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.)
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
B
b
y
Attachment
cc: 	Ballinger Kemp

=S=T=A=TE=O=F=C=A=L=I=F=O=RN=IA====.i...\ .~·=============='-(·~·· _,D SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
May 19, 2004
Barry J. Bennett, Esquire
Bennett & Sharpe
925 "N" Street, Suite 150
Fresno, CA 93721-2221
Re: 	Laurel Freeman v. Madera Unified Teachers Association
Unfair Practice Charge No. SA-CO-488-E
WARNING LETTER
Dear Mr. Bennett:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 16, 2004. Your client, Laurel Freeman, alleges that the
Madera Unified Teachers Association (MUTA) violated the Educational Employment
Relations Act (EERA)1 by failing to properly represent her. 	·
The charge states that Ms. Freeman has taught in the district since 1972. Prior to teaching at
Howard School she taught at Madison and Alpha schools where she served 12 years as a
MUTA representative. She transferred to Howard School in 1996. At that time, she was told
by the principal that other teachers might isolate her because of her district seniority.
Freeman states that she initially became a part of the leadership group at Howard in 1997. At a
meeting of that group, the principal asked what could be done to get the school moving
forward more assertively. Freeman addressed the "duty day" and expressed her surprise that
teachers did not have to sign in, and could come and go as they pleased. Other teachers were
upset by the remark and, over the next several years, she found herself excluded from some
teacher activities.
In May 2003, an-incident occurred in which the animosity against her was directed at her
students. According to the charge, teachers Debee Wachtel and Theresa Santoro were rude to
Freeman's students. This incident lead to a meeting between those two teachers and Principal
Beveridge. Other staff members and parents were in attendance. 	Freeman was asked to attend
but declined, stating "No, not with those two in there." A short time later Beveridge went to
Freeman's room, apologized to her and told her to avoid Wachtel and Santoro. Beveridge
expressed appreciation for Freeeman's efforts at Howard School.
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.

SA-CO-488-E
May 19, 2004
Page 2
(
On September 2, 2003, Freeman was told by MUTA steward Tom Greci that District Director
of Certificated Human Resources Carles Beckett and he had discussed the issues involving
Freeman, Wachtel and Santoro. Beckett told Greci that the District would move all three
teachers from Howard School.
On September 9, Principal Beveridge issued a memorandum to all teachers. He stated that the
interpersonal conflicts among some teachers must stop and that he no longer wished to mediate
or attempt to resolve the disputes which had "plagued" the school. He also stated that teachers
must work together professionally or their voluntary transfer would be arranged. In its
response to this unfair practice charge, WUTA states that Freeman, Wachtel and Santoro were
understood by other staff to be the reason for the memo.
Freeman states that, sometime in September, Beveridge told her that Beckett asked ifhe had
anything "on her" in his files. 	Beveridge said that he did not.
At two meetings in October 2003, a yearbook committee meeting and a staff development
meeting, there were disputes or verbal confrontations involving Freeman, Wachtel and
Santoro. Because of the confrontation at the October staff development meeting, Freeman did
not attend the November 4 staff development meeting. Freeman told this to Beveridge when
he went to her room and told her that the meeting was going to start. Beveridge did not order
her to attend.
On November 7, 200~/Beveridge asked Freeman to come to his office. Freeman asked
whether she needed union representation. Beveridge stated that would not be necessary. At
his office, Beveridge gave Freeman a Conference Summary Memo which states that they
discussed her failure to attend the November 4 staff development meeting. The memo directed
that Freeman attend future meetings.
-.-,·
.
On November 25, 2003, Freeman filed a grievance alleging that Beveridge had violated the
collective bargaining agreement by failing to prevent a "verbal attack" against her on October
28 and by violating her right to union representation when he met with her on November 7.
The grievance was denied by the employer and pursued by Freeman through the third step (the
employer's governing board).
On March 1, 2004, Freeman informed the union that she wished to pursue the grievance to
arbitration. Union President Greci informed her that the union would consider the request and
determine whether the matter would proceed to arbitration.
On March 18, Greci told Freeman that he had been called to a meeting with the District;
Freeman would be transferred from Howard School as would Santoro and Wachtel.2
2 Your charge states "the decision had been made between CTA and the District to
transfer me." However, without additional facts, it is not clear whether you allege the union
participated in the personnel decision or was merely informed of the personnel decision as
stated in the union's response to this charge, served on you May 7, 2004.

SA-CO-488-E
May 19, 2004
Page 3
On March 24, the MUTA Executive Board met and considered Freeman's request for
arbitration. The board rejected Freeman's request. According to the MUTA response to this
charge, the board did not believe there was credible evidence of a "verbal attack" and did not
want to take sides between bargaining unit members or seek the discipline of bargaining unit
members. The board also did not believe that there was a credible denial of representation
allegation or foundation for a reprisal claim.
Your charge alleges that MUTA violated its duty of fair representation by failing to proceed to
arbitration and "participating in the decision to move me without any notice to me and/ or my
consent."
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).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. 	(Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section of EERA, Charging Party must show that the Respondent'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 n9t
constitute a breach of the union's duty. 	[Citations omitted.]
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:
"... 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.)"
[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.]

SA-CO-488-E
May 19, 2004
Page 4
An arbitratiqn of arguable merit may be rejected by the union if the union believes it could
damage conditions for the bargaining unit as a whole. Castro Valley Unified School District
(1980) PERB Decision No. 149
Here, you have set forth insufficient facts to demonstrate that the union acted in bad faith when
it determined not to pursue the grievance to arbitration. Nor have you set forth facts that
establish that the union exercised bad faith, or acted without a rational basis, by "participating
in the decision"3 or acquiescing in the employer's decision to transfer Freeman.
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
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 PERE 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. If I do not receive an
amended charge or withdrawal from you before May 26, 2004, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
\-SSL 	h_(~
Bernard McMonigle
Regional Attorney
BMC
As stated, you have provided no facts demonstrating how the union "participated" in
the decision to transfer Freeman.