California School Employees Association and its Chapter 374 (Wyman) (PERB 1903E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SUSAN G. WYMAN,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 374,
Respondent.
Case No. LA-CO-1268-E
PERB Decision No. 	1903
May 	7, 	2007
Appearances: 	Wyman & Wyman Representational Services by Frank E. Wyman,
Representative for Susan G. Wyman; California School Employees Association by Sonja J.
Woodward, Attorney, for California School Employees Association & its Chapter 374.
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by Susan G. Wyman (Wyman) of a Board agent's dismissal (attached) of
her unfair practice charge. 	The charge alleged that the California School Employees
Association & its Chapter 374 (CSEA) violated the Educational Employment Relations Act
(EERA)1 by failing to handle a grievance properly and thus breaching the duty of fair
representation owed to her	N	
.2
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the amended charges, the Board agent's warning and dismissal letters, the appeal filed
by Wyman and CSEA's opposition to Wyman's appeal. The Board finds the Board agent's
EERA is codified at Government Code section 3540, et seq.
In addition to alleging violations of EERA, Wyman also alleged that CSEA violated
the Ralph C. Dills Act, the Meyers-Milias-Brown Act and the Higher Education Employer-
Employee Relations Act. However, the charge establishes that Wyman is in fact a school
district employee and the matter is appropriately governed by EERA.

warning and dismissal letters to be without prejudicial error and adopts them as the decision of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1268-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
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STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3008
Fax:(213)736-4901
January 11,2007
Frank E. Wyman, CEO
Wyman & Wyman Representational Services
PMB 349, 909 Armory Road
Barstow, CA 92311
Re: 	Susan G. Wyman v. California School Employees Association & its Chapter 374
Unfair Practice Charge No. LA-CO-1268-E
DISMISSAL LETTER
Dear Mr. Wyman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 11, 2006. An amended charge was filed on October 13,
2006. Susan G. Wyman alleges that the California School Employees Association & its
Chapter 374 (CSEA) violated the Educational Employment Relations Act (EERA)1 by
breaching the duty of fair representation owed to her by failing to handle a grievance properly.
I indicated to you in my attached letter dated December 8, 2006, that the above-referenced
charge did not state a prima facie case. This letter was re-sent to you via U.S. mail on
December 20, 2006, and the deadline for your response was extended. 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 January 2, 2007, the
charge would be dismissed.
On December 27, 2006, you amended the charge. In the amended charge you state that the
"record holds" that the grievance was denied due to untimely filing by CSEA and that this
demonstrates CSEA's purposeful failure to act, as well as willful, wanton, and knowing bad
faith and arbitrary conduct. 	However, as stated in my attached letter, CSEA admits that the
Level II Grievance was filed late. The District chose to proceed with the Level II meeting
despite the late request. This meeting occurred on November 11, 2006, without Mrs. Wyman
in attendance. You do not allege in the amended charge that this meeting between CSEA and
the District did not actually take place on November 11, 2006. Therefore, you do not allege
sufficient facts that demonstrate the grievance was denied due to Untimeliness. Further, you do
not allege any facts demonstrating how CSEA's conduct was willful, wanton, done in bad faith
or arbitrary, but merely state such as a conclusion.
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.
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LA-CO-1268-E
January 11,2007
Page 2
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 Dept, 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. Emphasis added.)
You allege that "[b]ut for Mrs. Wyman's physical handicap, CSEA would have filed a timely
grievance." You do not provide any factual support for that statement.
You allege that the "record holds" that the instant grievance did not reach Level III, because
Mrs. Wyman did not receive any letter informing her of CSEA's decision not to pursue
arbitration. Counsel for CSEA, Sonia Woodward, maintained in a telephone conversation on
December 6, 2006, that CSEA had made that decision and sent a letter to Mrs. Wyman
informing her of such. In a telephone conversation on January 8, 2007, Ms. Woodward said
she would look into obtaining a copy of the letter in order to re-send it to Mrs. Wyman.
You again allege that CSEA's failure to schedule an informal conference had a negative effect
on Mrs. Wyman's right to pursue her grievance, "because the written grievance as presented
failed to provide 'the decision rendered at the informal conference,'" as required by the
collective bargaining agreement. As stated my attached letter, the union's failure to schedule
the informal conference did not impact the grievance process because the District cooperated
-
with CSEA and participated in a Level II meeting on November 11, 2006. Further, CSEA's
failure to follow exactly the requirements of the grievance process outlined in the collective
bargaining agreement does not, without more, demonstrate conduct that can be considered
discriminatory, arbitrary, or in bad faith. 	(See San Francisco Classroom Teachers Association
(Bramell) (1984) PERB Decision No. 430.)
You allege that CSEA "purposefully allowed the grievance time frames to expire and then
vainly attempted to pursue Mrs. Wyman's concerns," but you do not provide any factual
support for this allegation. Thus, your contention that this action by CSEA was arbitrary,
discriminatory, and in bad faith is unsupported and merely conclusory.
You again allege that the Level I Grievance was not timely filed. However, as stated in my
attached letter, the District's own documents note that the Level I grievance was filed on
August 30, 2006. This was prior to the September 1, 2006 deadline, and therefore was timely
filed. The grievance was not "null and void" as you claim, because the District participated in
a Level II meeting on November 11, 2006, even after they denied the Level I Grievance for
violating procedure outlined in the collective bargaining agreement. 	Therefore, the grievance
did move forward past the first level.
You allege that the moves by CSEA in this case were without rational basis and devoid of
honest judgment, but do not explain how and why you believe CSEA was acting in an
irrational and dishonest manner. 	I left you a telephone message on January 4, 2007 to attempt
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LA-CO-1268-E
January 11,2007
Page 3
to discuss these deficiencies with you. You did not return my call. 	For all of the foregoing
reasons, the charge does not state a prima facie case and is accordingly dismissed.
Right to Appeal
-
Pursuant to PERB 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. 	(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 during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
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
(916)322-8231
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. 	A document may also 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.
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LA-CO-1268-E
January 11,2007
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,
ROBIN WESLEY
Acting General Counsel
By.
Valerie Racho
Board Agent
Attachment: Warning Letter

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-7697
Fax:(213)736-4901
December 8, 2006
Frank E. Wyman, CEO
Wyman & Wyman Representational Services
PMB 349, 909 Armory Road
Barstow, CA 92311
Re: 	Susan G. Wyman v. California School Employees Association & its Chapter 374
Unfair Practice Charge No. LA-CO-1268-E
WARNING LETTER
Dear Mr. Wyman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 11, 2006. An amended charge was filed on October 13,
2006. Susan G. Wyman alleges that the California School Employees Association & its
Chapter 374 (CSEA) violated the Educational Employment Relations Act (EERA)1 by
breaching the duty of fair representation owed to her by failing to handle a grievance properly.
CSEA is the exclusive representative of the classified bargaining unit at the Silver Lake
Unified School District (District). Ms. Wyman is an employee of the District within the
classified unit. 	My investigation revealed the following information.
On July 7, 2006, Ms. Wyman was interviewed for the position of Food Services Account
Technician. That position was awarded to an outside candidate. Article 17 of the collective
bargaining agreement (CBA) between the District and CSEA requires the District to provide
justification when an outside candidate is selected for a position over an internal candidate. On
August 11, 2006, Ms. Wyman made a written request to the District to provide such
justification.
On August 18, 2006, District Human Resources Director, Steven Desist, sent a memorandum
to Ms. Wyman providing the selection criteria for the Food Services Account Technician
position. The purported criteria used was a combination of test scores, interview scores, and
review of current job performance. 	The memo did not provide any justification for the specific
reason that Ms. Wyman was not selected for the position.
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.
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LA-CO-1268-E
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Page 2
On August 21, 2006, Ms. Wyman made a written request for representation to CSEA to file a
grievance on her behalf regarding the District's failure to provide justification for her non-
selection for promotion.
On August 30, 2006, CSEA filed a Level I Grievance with the District, suggesting as possible
remedies that: 1) the District resubmit a letter to Ms. Wyman containing "clear and
unambiguous" justification for Ms. Wyman's non-selection; 2) that the parties' MOU be
altered to reflect the "clear and unambiguous" standard for justification in non-selection of
internal candidates; and 3) that Ms. Wyman be made whole in all matters related to the issue.
On September 8, 2006, a meeting was held between Linda Johnson, President of CSEA
Chapter 374, Lacy Gillespie, CSEA Labor Relations Representative, Jill Kemock, Director of
Business Services for the District, and Ms. Wyman. Ms. Kemock raised a concern that a Level
I Grievance had been submitted before an informal conference was held with the grievant's
immediate supervisor as is required by the CBA at Article 15.3.
On September 12, 2006, the District denied the Level I Grievance on the grounds that there
was a failure to attempt resolution at an informal level with the grievant's immediate
supervisor.
On September 13, 2006, Ms. Wyman sent a letter to Rob Feckner, President of CSEA,
complaining that she had not been assigned a union steward, had not been consulted regarding
possible remedies, and had not approved the language of the grievance before it was filed on
her behalf.
On November 11, 2006, a Level II meeting was held with CSEA representatives and District
personnel. Ms. Wyman was not in attendance. Counsel for CSEA admits that the Level II
Grievance was filed late; however, the District cooperated in the meeting and the Grievance
was processed. At that meeting the District shared with CSEA Ms. Wyman's test and
interview scores for the Food Services Account Technician position.
On December 6, 2006, counsel for CSEA reported that the grievance in this matter is at Level
III. CSEA has decided not to pursue arbitration in this matter, and Ms. Wyman has been sent
written notification of this decision.
Discussion:
In addition to alleging a violation of the EERA at section 3543.6(b), Charging Party also
alleges a violation of the Ralph C. Dills Act (Dills Act) at section 3519.5(b), the Meyers-
Milias-Brown Act (MMBA), and the Higher Education Employer-Employee Relations Act
(HEERA) at section 3571.1(e). The Dills Act concerns the relationship between employees of
the state and employee organizations comprised of state employees. A state employee is
defined by the Dills Act as, with certain exclusions, "any civil service employee of the state,
and the teaching staff of schools under the jurisdiction of the Department of Education or the
Superintendent of Public Instruction[.]"
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The MMBA concerns the relationship between California's municipal, county, and local
special district employers and employees and the employee organizations that represent such
employees. The MMBA defines a "public employee" as "any person employed by any public
agency, including employees of the fire departments and fire services of counties, cities, cities
and counties, districts, and other political subdivisions of the state, excepting those persons
elected by popular vote or appointed to office by the Governor of this state."
HEERA concerns the relationship between higher education employers and employees and the
employee organizations that are comprised of higher education employees. 	A higher education
employee is defined by HEERA as "any employee of the Regents of the University of
California, the Directors of the Hastings College of Law, or the Trustees of the California State
University." (HEERA, § 3562(e).)
The charge does not establish that Ms. Wyman is either an employee of the state, a public
employee, or a higher education employee. The charge also does not establish that CSEA is
comprised either of state employees, public employees, or higher education employees.
Instead the charge indicates that Ms. Wyman is an employee of the District, a public school,
which is governed by EERA. 	Accordingly, the allegations that CSEA violated section
3519.5(b) of the Dills Act, the MMBA, and section 3571.l(e) of HEERA do not state a prima
facie case and are dismissed.
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 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
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December 8, 2006
Page 4
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.]
With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed
in Coalition of University Employees (Buxton) (2003) PERB Decision No. 1517-H that, under
federal precedent, a union's negligence breaches the duty of fair representation "in cases in
which the individual interest at stake is strong and the union's failure to perform a ministerial
act completely extinguishes the employee's right to pursue his claim." (Quoting Dutrisac v.
Caterpillar Tractor Co. (9 th Cir. 1983) 749 F.2d 1270 [113 LRRM 3532], at p. 1274; see also,
Robesky v. Quantas Empire Airways Limited (9 th Cir. 1978) 573 F.2d 1082 [98 LRRM 2090].)
In this case, the charge alleges that CSEA mishandled the grievance procedure in two ways:
first, by filing a Level I Grievance form before attempting an informal conference with Ms.
Wyman's immediate supervisor, in contradiction to the procedure outlined in the CBA; and
second, by filing the Level I Grievance after the ten-day deadline for doing so, in this case
September 1, 2006. Charging Party alleges that the Level I Grievance was filed on September
5, 2006, because that is the date stamped as "received" by District human resources. For the
reasons that follow, these allegations do not amount to a breach of the union's duty of fair
representation.
With regard to CSEA filing the grievance before attempting to schedule an informal
conference, this act did not have an effect on Ms. Wyman's right to pursue her claim, because
the grievance proceeded to the second level with the meeting that occurred on November 11,
2006. The charge fails to set forth any facts that demonstrate that CSEA's decision to file the
Level I Grievance before scheduling an informal conference was "without a rational basis or
devoid of honest judgment." (See Reed, supra.) CSEA claims its reason for doing so was
difficulty in scheduling time for the meeting while remaining within the required timeframe for
filing the grievance. 	The charge fails to demonstrate that CSEA's conduct was arbitrary,
discriminatory, or in bad faith.
Charging Party's assertion that the Level I Grievance was untimely filed is inaccurate. The
letter from the District dated September 12, 2006 denying the Level I Grievance noted that the
date the grievance was filed was August 30, 2006. Therefore, the grievance was filed before
the September 1, 2006 deadline. Further, the Board has held that the duty of fair representation
is not breached even if a union negligently forgets to file a timely grievance appeal. (Emphasis
added. See San Francisco Classroom Teachers Association (Bramell) (1984) PERB Decision
No. 430.)
In addition, the amended charge also alleges that Ms. Wyman has not been "properly
represented" by CSEA because Ms. Wyman has not approved or signed the grievance. The
Board has held that a union's failure to obtain a member's approval prior to settlement of a
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grievance does not constitute a breach of the duty of fair representation because that factor
alone does not amount to arbitrary conduct. (Hart District Teacher's Association (2001) PERB
Decision No. 1456.) Here, Ms. Wyman requested that CSEA pursue a grievance on her behalf
on August 21, 2006, and the union did so. Failure to obtain Ms. Wyman's approval of the
language used in the grievance form does not amount to a breach of the union's duty of fair
representation.
Charging Party also asserts that the union's second suggested remedy listed in the grievance is
in "open violation" of the CBA. CSEA suggested that the parties' agreement be altered to add
the words "clear and unambiguous" to the justification requirement when an internal candidate
is denied promotion in favor of an external candidate. The charge fails to demonstrate how
the union's inclusion of this bargaining language amounts to conduct that could be considered
arbitrary, discriminatory, or in bad faith. There are no facts suggesting that the inclusion of
such a proposal in Ms. Wyman's grievance had in any way interfered with her right to pursue
her claim.
Lastly, the amended charge expresses doubt that Linda Johnson is Ms. Wyman's "assigned
steward" and suggests that other stewards are available to provide representation, and that the
assistance rendered thus far by Lacy Gillespie has been "flawed." The Board has held that "the
duty of fair representation does not contemplate the complete satisfaction for all represented.
A wide range of reasonableness must be allowed the representative, subject to good faith and
honesty of purpose." (Hart, supra, citing Castro Valley Unified School District (1980) PERB
Decision No. 149.) The charge does not allege any facts to suggest that the conduct of Johnson
or Gillespie has been performed without good faith or honesty.
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 Second 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 December 18, 2006, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Valerie Racho
Board Agent
VR
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