Glendale Guild/American Federation of Teachers Local 2276 (Waszak) (PERB 2003E)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
LEON J. WASZAK,	LEON J. WASZAK,
Charging Party,	Charging Party,
VV..
GLENDALE GUILD/AFT LOCAL 2276,	GLENDALE GUILD/AFT LOCAL 2276,
Respondent.	Respondent.
Case No. LA-CO-1319-E	Case No. LA-CO-1319-E
PERB Decision No. 2003	PERB Decision No. 	2003
January 30, 2009	January 30, 2009
Appearance: Leon J. Waszak, on his own behalf.	Leon J. Waszak, on his own behalf.
Before Neuwald, Chair; Mckeag and Dowdin Calvillo, Members.	Before N euwald, Chair; McKeag and Dow din Calvillo, Members.
DECISION
NEUWALD, Chair: 	This case is before the Public Employment Relations Board	NEUWALD, Chair: This case is before the Public Employment Relations Board
(Board) on appeal by Leon J. Waszak (Waszak) of a Board agent's dismissal (attached) of his	(Board) on appeal by Leon J. Waszak (Waszak) of a Board agent's dismissal (attached) of his
unfair practice charge. 	The charge alleged that the Glendale Guild/AFT Local 2276 (Guild)	unfair practice charge. The charge alleged that the Glendale Guild/AFT Local 2276 (Guild)
breached its duty of fair representation, and thereby violated section 3 543. 6 of the Education	breached its duty of fair representation, and thereby violated section 3543.6 of the Educational
Employment Relations Act (EERA), 1 by refusing to file a grievance regarding Waszak' s late	Employment Relations Act (EERA)," by refusing to file a grievance regarding Waszak's late
performance evaluation and encouraging an individual to apply for a vacant tenure track	performance evaluation and encouraging an individual to apply for a vacant tenure track
position for which Waszak also applied.	position for which Waszak also applied.
al
The Board has reviewed the entire record in this matter, including but not limited to, the	The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charge, the Guild's position statement, the Board agent's	original and amended unfair practice charge, the Guild's position statement, the Board agent's
warning and dismissal letters, and Waszak' s appeal. Based on this review, the Board finds the	warning and dismissal letters, and Waszak's appeal. Based on this review, the Board finds the
Board	Board agent's warning and dismissal letters to be a correct statement of the law and well	agent's warning and dismissal letters to be a correct statement of the law and well
reasoned, and therefore adopts them as the decision of the Board itself	reasoned, and therefore adopts them as the decision of the Board itself.
1
EEERA is codified at Government Code section 3540 et seq.	ERA is codified at Government Code section 3540 et seq.

ORDER
2
The unfair practice charge in Case No. LA-CO-1319-E is hereby DISMISSED	The unfair practice charge in Case No. LA-CO-1319-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.	WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.	Members Mckeag and Dowdin Calvillo joined in this Decision.
2

ARNOLD SCHWARZENEGGER, Governor
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
\.-O'l\1,ENT Rt(-41i
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November 18, 2008
STATE OF CALIFORNIA 	ARNOLD
SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Regional	Sacramento Regional Office	Sacramento 	Office
1031 18th Street	103118th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
Telephone: (916) 327-8384	
Telephone: (916) 327-8384
Fax: (916) 327-6377	Fax: (916) 327-6377
November 18, 2008
Leon J. Waszak	Leon J. Waszak
235 South Avenue
66
Los Angeles, CA 90042
Re:	Re: 	Leon J. Waszak v. Glendale Guild/AFT Local 2276	Leon
J.
Waszak
v.
Glendale Guild/
Unfair Practice Charge No. LA-CO-1319-E	Unfair Practice Charge No. LA-CO-1319-E
DISMISSAL LETTER	DISMISSAL LETTER
Dear Dr. Waszak:
E
AFT Local 2276
_
the
You filed the above-referenced unfair practice charge with the Public Employment Relations	You 	charge with 	Relationsfiled the above-referenced unfair practice 	Public Employment
to PERB' sBoard (PERB or Board) on October 16, 2007. The charge was transferred
Board (PERB or Board) on October 16, 2007. The charge was transferred to PERB's
Sacramento office on September 26, 2008. The charge alleges that the Glendale Guild/AFT
Sacramento office on September 26, 2008. The charge alleges that the Glendale Guild/AFT
Local 2276 (Guild) breached the duty
of
fair representation, and thereby violated section
Local 2276 (Guild) breached the duty of fair representation, and thereby violated section
(EERA or Act), 1 when: 	(1) the Guild
3543.6 of the Educational Employment Relations Act (EERA or Act), " when: (1) the Guild	3543.6
of
the Educational Employment Relations Act
refused to file a grievance regarding a late performance evaluation and (2) the Guild	
refused to file a grievance regarding a late performance evaluation and (2) the Guild
to you.encouraged an individual to apply for a vacant position that you "assumed" belonged	
encouraged an individual to apply for a vacant position that you "assumed" belonged to you.
PERB sent you a Warning Letter dated October 15, 2008. You filed an amended charge on	PERB sent you a Warning Letter dated October 15, 2008. You filed an amended charge on
November 15, 2008.	November 15, 2008.
facts.	As 	charge must 	Regs., tit. 8, §the Warning Letter explained, a 	allege 	(Cal. Code
As the Warning Letter explained, a charge must allege facts. (Cal. Code Regs., tit. 8, $
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944	32615(a)(5);	32615(a)(5); United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944
Mere legal conclusions are not sufficient. (Ibid.; Charter Oak Unified School
(Ragsdale).) Mere legal conclusions are not sufficient. (Ibid.; Charter Oak Unified School	(Ragsdale).)
(1991) PERB Decision No. 873.) The facts alleged in the original charge showed that	DistrictDistrict (1991) PERB Decision No. 873.) The facts alleged in the original charge showed that
the Guild had a rational basis for not filing a grievance challenging the District's failure to	
the Guild had a rational basis for not filing a grievance challenging the District's failure to
issue you a timely performance evaluation. The amended charge does not allege any
issue you a timely performance evaluation. The amended charge does not allege any
additional/acts regarding this incident. Rather, the amended charge broadly asserts that the	
additional facts regarding this incident. Rather, the amended charge broadly asserts that the
colored by nepotism, conflicting interests, and political ideology."	"Guild's actions [were]	"Guild's actions [ were] colored by nepotism, conflicting interests, and political ideology."
to show that the	legal conclusions fail to provide the facts necessary 	Guild
These broad legal conclusions fail to provide the facts necessary to show that the Guild	These broad
944.)arbitrarily refused 	file a grievance. 	(Ragsdale, supra, PERB Decision No.	toarbitrarily refused to file a grievance. (Ragsdale, supra, PERB Decision No. 944.)
the amended charge alleges that you were denied a full-time position	Like the original charge,	Like the original charge, the amended charge alleges that you were denied a full-time position
because Roger Bowerman, the chairman of the hiring committee, "was prejudiced in favor of	because Roger Bowerman, the chairman
of
the hiring committee, "was prejudiced in favor
of
and that by "suppressing" your performance evaluation	the so-called 'successful' candidate"	
the so-called 'successful' candidate" and that by "suppressing" your performance evaluation
until after the hiring committee acted, Bowerman undermined your application. There are two	until after the hiring committee acted, Bowerman undermined your application. 	There are two
problems with this assertion. First, and most important, it appears that Bowerman is a
problems with this assertion. First, and most important, it appears that Bowerman is a
to
Department Chair and thus a District manager. Unlike the Guild, the District is not a party to	Department Chair and thus a District manager. 	Unlike the Guild, the District is not a party
1 	seq.	EERA is codified at Government Code section 3540 et 	The text of the EERA and
ERA 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	the Board's Regulations may be found on the Internet at www.perb.ca.gov.	
www.perb.ca.gov.

LA-CO-1319-E
November 18, 2008
Page 2
members," you have highlighted the following material:
Yo
LA-CO-1319-E
November
18,
2008
Page 2
athis action. Thus, PERB cannot issue a complaint against the District based on Bowerman's	this 	issue 	s	cannot 	on Bowerman'	action. Thus, PERB 	complaint against the District based
party whoalleged conduct. (See Cal. Code Regs., tit.
8,
§ 32615(a)(l) (charge must name
alleged conduct. (See Cal. Code Regs., tit. 8, $ 32615(a)(1) (charge must name party who
allegedly committed the unfair).) Second, even
if
Bowerman's conduct can somehow be
allegedly committed the unfair).) Second, even if Bowerman's conduct can somehow be
imputed to the
Guild-which
based on the alleged facts, it
cannot-it
is
difficult to determine
imputed to the Guild-which based on the alleged facts, it cannot-it is difficult to determine
how Bowerman hurt your job prospects by "suppressing" your performance evaluation. 	Again,
how Bowerman hurt your job prospects by "suppressing" your performance evaluation. Again,
Had Bowerman	the charge states that the evaluation was
so
negative that it made you "livid."
the charge states that the evaluation was so negative that it made you "livid." Had Bowerman
released the document before the committee acted, the document would have harmed, not	released the document before the committee acted, the document would have harmed, not
helped, your job prospects.	helped, your job prospects.
The amended charge also alleges that a Guild officer, Gordon Alexander, has violated federal
employment discrimination laws because he has "consistently" and publicly argued "that the
so-called 'baby boomers' [should] step aside and give way to the younger faculty." In support
submitted an article from a Guild Newsletter dated October 2007 .2
of
this allegation, you have	of this allegation, you have submitted an article from a Guild Newsletter dated October 2007.
"Talking	article	The article is a "profile" of Alexander. Under the article's subheading "Talking to younger	The
	is
a "profile" of Alexander. Under the article's subheading 	to younger
members," you have highlighted the following material:
exander is also concerned that the local
[As a Guild officer] Alexander is also concerned that the local	[
As
a Guild officer] Al
bring a new generation
of
active members into leadership.
	"I'm
bring a new generation of active members into leadership. "I'm
61, and our active core has been dominated by baby boomers,"	
61, and our active core has been dominated by baby boomers,"
[Alexander] explains. 	"Unless we involve younger members, we
[Alexander] explains. "Unless we involve younger members, we
will become much weaker." Alexander and other current officers	
will become much weaker." Alexander and other current officers
hold a monthly meeting with younger members, in which they	
hold a monthly meeting with younger members, in which they
listen to the issues they present, and in turn talk about the history	
listen to the issues they present, and in turn talk about the history
of the union.	
of
the union.
collective	Although PERB has jurisdiction over several California public sector 	bargaining
Although PERB has jurisdiction over several California public sector collective bargaining
statutes, including EERA, it does not have jurisdiction over federal employment discrimination	
statutes, including EERA, it does not have jurisdiction over federal employment discrimination
prohibitions or similar State statutes. (Union of American Physicians & Dentists (Menaster)
prohibitions or similar State statutes. (Union of American Physicians & Dentists (Menaster)
No. 1918-S.) The Board has long held that it lacks jurisdiction, for	(2007) PERB Decision	(2007) PERB Decision No. 1918-S.) The Board has long held that it lacks jurisdiction, for
or disability. (Alum Rock	over allegations
of
discrimination based on race, age,
example, over allegations of discrimination based on race, age, or disability. (Alum Rock	example,
Union Elementary School District (2005) PERB Decision No. 1748; Salinas City Elementary	
Union Elementary School District (2005) PERB Decision No. 1748; Salinas City Elementary
School District (1996) PERB Decision No. 1131.)	School District (1996) PERB Decision No.1131.)
are 	theThus, 	that 	comments 	a	to the extent 	Alexander's 	alleged to violate 	federal statute,
Thus, to the extent that Alexander's comments are alleged to violate a federal statute, the
allegations must be dismissed as outside
of
PERB's jurisdiction. (Ibid.) To the extent that
allegations must be dismissed as outside of PERB's jurisdiction. (Ibid.) To the extent that
unionAlexander's comments are alleged to violate EERA, no case has been found in which a
Alexander's comments are alleged to violate EERA, no case has been found in which a union
breached its duty of fair representation by encouraging younger members to become involved
breached its duty of fair representation by encouraging younger members to become involved
in union affairs.	in union affairs.
18,	You submitted the newsletter article to PERB on November 	2008. 	There is no
u submitted the newsletter article to PERB on November 18, 2008. There is no
evidence that you served a copy of the article on the Guild.	evidence that you served a copy of the article on the Guild.

LA-CO-1319-E
November 18, 2008
Page 3
be provided to the Board.
CONCLUSION
reasons 	the amended charge fails to	and the reasons discussed in the Warning Letter,	
For these reasons and the reasons discussed in the Warning Letter, the amended charge fails to	For these
allege that the Guild breached the duty
of
fair representation. Accordingly, PERB hereby
allege that the Guild breached the duty of fair representation. Accordingly, PERB hereby
dismisses	dismisses the amended charge.	the amended charge.
Right to Appeal
PERB Regulations,3 Charging Party may obtain a review
of
this dismissal
of
thePursuant to	Pursuant to PERB Regulations,' Charging Party may obtain a review of this dismissal of the
charge by filing an appeal 	Board itself within twenty (20) calendar days after service
of
	to the	charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
filed with the Board
must
this dismissal. (Cal. Code Regs, tit.
8,
§ 32635(a).) Any document
this dismissal. (Cal. Code Regs, tit. 8, $ 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
contain the case name and number, and the original and five (5) copies of all documents must
be provided to the Board.
during	A document is considered "filed" when actually received 	a regular PERB business da
A document is considered "filed" when actually received during a regular PERB business day.
A document(Cal. Code Regs, tit.
8,
§§
32135(a) and 32130; see also Gov.
Code,§.
11020(a).)
(Cal. Code Regs, tit. 8, $8 32135(a) and 32130; see also Gov. Code, $. 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business	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
PERB
together with a Facsimile Transmission Cover Sheet which meets the requirements of PERB
Regulation 32135(d), provided the filing party also places the original, together with the
Regulation 32135(d), provided the filing party also places the original, together with the 8, §§
required number
of
copies and
proof
of
service, in the U.S. mail. 	(Cal. Code Regs, tit.
required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8, $5
32130.)	32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, §§. 32090 and	
32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, $8. 32090 and 32130.)
The Board's address is:The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	1031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916) 322-8231	(916) 322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
issue
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the	
If
you file a timely appeal
of
the refusal to 	a complaint, any other party may file with the
calendar days	Board an original and five copies
	of
a statement in opposition within twenty (20)
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Cal. Code Regs, tit. 8, § 32635(b ).)
following the date of service of the appeal. (Cal. Code Regs, tit. 8, $ 32635(b).)
Service
"P
LA-CO-1319-E
November 18, 2008
Page 3
herein 	theAll 	filed 	upon all parties to	documents authorized to be 	must also be "served"
All documents authorized to be filed herein must also be "served" upon all parties to the
served	and	proceeding, and a "proof of service" must accompany each copy of a document served upon a	proceeding, 	a "proof
of
service" must accompany each copy
of
a document 	upon a
the required	party or filed with the Board itself. (See Cal. Code Regs., tit.	8, § 32140 for
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
contents.) The document will be considered properly "served" when personally delivered or
document
deposited in the mail or deposited with a delivery service and properly addressed. A document	deposited in the mail 	deposited with a delivery service and properly addressed. A	or
3 	title	PERB's Regulations are codified at California Code of Regulations, 	8, section
ERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.	31001 et seq.
y.

C
LA-CO-1319-E
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LA-CO-1319-E
November 18, 2008
Page 4
may also be concurrently served via facsimile transmission on all parties to the proceeding.may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
§ 32135(c).)(Cal. Code Regs, tit. 8, $ 32135(c).)
Extension of Time
A request for an extension
of
time, in which to file a document with the Board itself,
must
be
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	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	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
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
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)request upon each party. (Cal. Code Regs, tit. 8, $ 32132.)
Final Date
time	If no appeal is filed within the specified time limits, the dismissal will become final when the	
If
no appeal is filed within the specified 	limits, the dismissal will become final
when the
time limits have expired.	time limits have expired.
Sincerely,
TAMI R. BOGERT	TAMI
R.
BOGERT
General	General Counsel	Counsel
By~	By	
".
Harry J. Gibbons
Senior Regional Attorney	Senior Regional Attorney
i;y
J.
Gibb;nf
Attachment	Attachment
cc:	cc: 	Gordon Alexander	Gordon Alexander
\

ARNOLD SCHWARZENEGGER, Governor
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ST A
TE
OF
CALIFORNIA 	ARNOLD
SCHWARZENEGGER,
Governor
PUBLIC EMPLOYMENT RELATIONS
BOARD
Office	Sacramento Regional Office	Sacramento Regional
1031 18th Street	
1031
18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
Telephone: (916) 327-8384	Telephone: (916) 327-8384
Fax: (916) 327-6377	Fax: (916) 327-6377
October 15, 2008	October 15, 2008
Leon J. Waszak	Leon
J.
Waszak
235 South Avenue 66
Los Angeles, CA 90042
J.	Re: Leon J. Waszak v. Glendale Guild/AFT Local 2276	Re: 	Leon 	Waszak v. Glendale Guild/AFT Local 2276
Unfair Practice Charge No. LA-CO-1319-E	Unfair Practice Charge No. LA-CO-1319-E
WARNING LETTER	WARNING LETTER
DDear Dr. Waszak:
chargeYou filed the above-referenced unfair practice charge with the Public Employment Relations	You 	above-referenced 	practice 	Employment Relations	filed the 	unfair 	with the Public
Board (PERB or Board) on October 16, 2007. 	The charge was transferred to PERB's
Board (PERB or Board) on October 16, 2007. The charge was transferred to PERB's
Sacramento office on September 26, 2008. The charge alleges that the Glendale Guild/AFT
Sacramento office on September 26, 2008. The charge alleges that the Glendale Guild/AFT
Local 2276 (Guild) breached the duty
of
fair representation, and thereby violated section
Local 2276 (Guild) breached the duty of fair representation, and thereby violated section
3543.6
of
the Educational Employment Relations Act (EERA or Act),1 when: 	(1) the Guild
3543.6 of the Educational Employment Relations Act (EERA or Act), when: (1) the Guild
Guild	refused to file a grievance regarding a late performance evaluation and; (2) the	
refused to file a grievance regarding a late performance evaluation and; (2) the Guild
encouraged 	individual to apply for a vacant position you "assumed" belonged to you.	anencouraged an individual to apply for a vacant position you "assumed" belonged to you.
BACKGROUND
1. 	The Performance Evaluation
E
The Performance Evaluation
adjunct	You are employed by the Glendale Community College (College) as an 	professor. 	The
You are employed by the Glendale Community College (College) as an adjunct professor. The
Guild is the exclusive representative for your bargaining unit.	Guild is the exclusive representative for your bargaining unit.
In early 2007,2 the College began interviewing for a full-time, tenure-track, history professor.	
In early 2007," the College began interviewing for a full-time, tenure-track, history professor.
You applied for the position and were scheduled to interview on an unspecified date in March.	You applied 	position and were scheduled to interview on an unspecified date in March.	for the
Because you had been employed with the College for
13
years, "it had been assumed the
Because you had been employed with the College for 13 years, "it had been assumed the
position was [yours].'' Perhaps erring on the side
of
caution, you nevertheless wanted to
position was [yours]." Perhaps erring on the side of caution, you nevertheless wanted to
submit a current performance evaluation to the "screening committee."	submit a current performance evaluation to the "screening committee."
work.	Bowerman 	evaluating	Roger 	is the chair of your department and is responsible for 	your
Roger Bowerman is the chair of your department and is responsible for evaluating your work.
As your interview with the screening committee was approaching, Bowerman was "three	
As your interview with the screening committee was approaching, Bowerman was "three
1 ERA is codified at Government Code section 3540 et seq. The text of the EERA and	EERA is codified at Government Code section 3540 et seq. The text of the EERA and
d's Regulations may be found on the Internet at www.perb.ca.gov	
the Board's Regulations may be found on the Internet at www.perb.ca.gov.	the Boar 	.
All 	otherwise	All dates are in 2007, unless otherwise noted.	dates are in 2007, unless 	noted.	2

LA-CO-1319-E
October 15, 2008
Page 2
LA-CO-1319-E
October 15, 2008
Page 2
unfavorable you became "livid."
B
*T
W
"
time.	late 	the	months" 	with your evaluation. 	Mike Allen was the Guild President at 	You
months" late with your evaluation." Mike Allen was the Guild President at the time. You
some creative way	spoke to Allen about your late evaluation. Allen "suggested" that you "find
spoke to Allen about your late evaluation. Allen "suggested" that you "find some creative way
to submit the draft evaluation." You followed Allen's advice and, "persisted in getting" the	
to submit the draft evaluation." You followed Allen's advice and, "persisted in getting" the
"submitted" to the screening committee as a "point
of
information." It is	draft evaluation	draft evaluation "submitted" to the screening committee as a "point of information." It is
not	assumed that the draft evaluation was favorable, because otherwise you would 	have
assumed that the draft evaluation was favorable, because otherwise you would not have
"persisted"	"persisted" in submitting it.	in submitting it.
3
Allen's 	were	Although 	advice regarding the draft evaluation proved successful, you
lthough Allen's advice regarding the draft evaluation proved successful, you were
nevertheless displeased with Allen because he "took no action against the chair."4
evertheless displeased with Allen because he "took no action against the chair."
A
n
for	On March 22, the College rejected your application and hired another candidate 	the full-
On March 22, the College rejected your application and hired another candidate for the full-
time position. You "complained again" to the Guild about your belated evaluation. The
time position. You "complained again" to the Guild about your belated evaluation. The
College, however, issued you an evaluation on March 30, but the evaluation was so
College, however, issued you an evaluation on March 30, but the evaluation was so
unfavorable you became "livid."
you	During the first week of April, you submitted a rebuttal to the belated and unfavorable	During the first week
of
April, 	submitted a rebuttal to the belated and unfavorable
evaluation. On April 26, you gave a copy
of
the rebuttal to "Ms. St. Arna," the Guild's
evaluation. On April 26, you gave a copy of the rebuttal to "Ms. St. Ama," the Guild's
Guild's Executive Committee	"grievance officer." St. Arna discussed the rebuttal with the	
"grievance officer." St. Ama discussed the rebuttal with the Guild's Executive Committee
(committee) and "reported back" to you on May
3.
	According to St. Arna, the committee
(committee) and "reported back" to you on May 3. According to St. Ama, the committee
that
	"acknowledged" that the College had violated the "stated procedures" and "suggested"	
"acknowledged" that the College had violated the "stated procedures" and "suggested" that
College's alleged	you might be "reevaluated."5 St. Arna further reported that, despite the
you might be "reevaluated." St. Ama further reported that, despite the College's alleged
procedural violation, "no disciplinary action would be taken" against Bowerman for having	
procedural violation, "no disciplinary action would be taken" against Bowerman for having
issued a late evaluation.	issued a late evaluation.
Subsequently, 	exchanged 	continued to	you and St. Arna 	several e-mail messages in which you
Subsequently, you and St. Ama exchanged several e-mail messages in which you continued to
your "rejection	discuss the belated evaluation. 	You told
St.
Arna that the "larger issue" was
discuss the belated evaluation. You told St. Ama that the "larger issue" was your "rejection
from the full-time job" and that the belated evaluation "had prejudiced" your pursuit
of
that
from the full-time job" and that the belated evaluation "had prejudiced" your pursuit of that
6 St. Arna, however, "advised against filing a grievance." She also said that
if
you wanted	job.	job." St. Ama, however, "advised against filing a grievance." She also said that if you wanted
to pursue a "legal action beyond the scope
of
the grievance for a timeline violation," then you
to pursue a "legal action beyond the scope of the grievance for a timeline violation," then you
Because Bowerman was "late," it is clear there are certain evaluation "deadlines."
The charge, however, fails to allege whether the deadlines are set forth in the collective
bargaining agreement, the College's written policies, or in some other document. The charge
also fails to describe, or include copies of, the evaluation and grievance procedures.
ecause Bowerman was "late," it is clear there are certain evaluation "deadlines."
The charge, however, fails to allege whether the deadlines are set forth in the collective
bargaining agreement, the College's written policies, or in some other document. The charge
also fails to describe, or include copies of, the evaluation and grievance procedures.
"
4 	"against	The	he charge fails to allege exactly what "action" Allen could have taken "against the	charge fails to allege exactly what "action" Allen could have taken 	the
chair,"	chair," had he decided to act.	had he decided to act.
5 Without more information and a copy of the "procedures," it is difficult to tell
a late	whether the committee based its opinion on the fact that the College had issued
evaluation or because it had issued an unfavorable one.
ithout more information and a copy of the "procedures," it is difficult to tell
whether the committee based its opinion on the fact that the College had issued a late
evaluation or because it had issued an unfavorable one.
6
This reasoning is questionable. If the College had issued a timely evaluation, thethe	This reasoning is questionable. If the College had issued a timely evaluation,
screening committee would have reviewed an unfavorable evaluation, rather than the favorable
draft submitted by you.
screening committee would have reviewed an unfavorable evaluation, rather than the favorable
draft submitted by you.

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(a) A
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would have do so "at your own expense." By May
8,
it was "obvious" to you that the Guild
would have do so "at your own expense." By May 8, it was "obvious" to you that the Guild
had decided not to file a grievance.	had decided not to file a grievance.
2.2. 	The Successful Candidate for the Full-Time Position	The Successful Candidate for the Full-Time Position
Gordon Alexander was the Guild's "head negotiator" in December 2006. He continued in that	
Gordon Alexander was the Guild's "head negotiator" in December 2006. He continued in that
position until he became the Guild's President on May 15.	position until he became the Guild's President on May 15.
opinionIn December 2006, and again the following month, Alexander publicly expressed an opinion	In December 2006, and again the following month, Alexander publicly expressed an
history position. Among
about the type of individual the College should hire for the full-time history position. Among	about the type
of
individual the College should hire for the full-time
other things, Alexander said the College should look for "individuals who would serve
at
least
other things, Alexander said the College should look for "individuals who would serve at least
twenty years." You were "appalled" by Alexander's opinions because, among other things,	twenty years." You were "appalled" by Alexander's opinions because, among other things,
you believed he was encouraging age discrimination.	you believed he was encouraging age discrimination.
Although the charge' s factual allegations regarding this following incident are sketchy,
it
Although the charge's factual allegations regarding this following incident are sketchy, it
appears that the successful candidate for the full-time history position "was asked to apply for	
appears that the successful candidate for the full-time history position "was asked to apply for
the job by Alexander himself." You discovered this information on June 14. The charge
the job by Alexander himself." You discovered this information on June 14. The charge
asserts that by asking the successful candidate to apply, Alexander violated "his trust as a	
asserts that by asking the successful candidate to apply, Alexander violated "his trust as a
union official."	union official."
DISCUSSION
1. 	The Charging Party's Burden and the Applicable Statute of Limitations	1. 	he Charging Party's Burden and the Applicable Statute of Limitations
A charging party must provide a "clear and concise statement
of
the facts and conduct alleged
A charging party must provide a "clear and concise statement of the facts and conduct alleged
to constitute an unfair practice." (Cal. Code Regs., tit. 8, § 32615(a)(5).) This means the
to constitute an unfair practice." (Cal. Code Regs., tit. 8, $ 32615(a)(5).) This means the
charging party must allege the "who, what, when, where and how"
of
the underlying conduct.
charging party must allege the "who, what, when, where and how" of the underlying conduct.
(State
of
California (Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S,
(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 (Ragsdale).)	
citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944 (Ragsdale).)
Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak
Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak
Unified School District (1991) PERB Decision No. 873.)	Unified School District (1991) PERB Decision No. 873.)
Also, PERB is prohibited from issuing a complaint based on conduct that occurred more than
Also, PERB is prohibited from issuing a complaint based on conduct that occurred more than
six months prior to the filing
of
the charge. 	(Gov. Code,§ 3541.S(a)(l); Coachella Valley
six months prior to the filing of the charge. (Gov. Code, $ 3541.5(a)(1); Coachella Valley
Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
Cal.4th 1072.) The limitations period begins to run once the charging party knows, or should
Cal.4th 1072.) 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
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charge in this case was filed on October 16, 2007.	(1996) PERB Decision No. 1177.) The charge in this case was filed on October 16, 2007.
Thus, the statute
of
limitations prohibits PERB from issuing a complaint based on conduct that
Thus, the statute of limitations prohibits PERB from issuing a complaint based on conduct that
occurred before April 16, 2007.	occurred before April 16, 2007.
llen's Failure to Take Action Against the Chair	(a) Allen's Failure to Take Action Against the Chair
The charge alleges that Allen, the Guild President at the time, failed to take "action against the	
The charge alleges that Allen, the Guild President at the time, failed to take "action against the
chair" for being late with your evaluation. Your conversation with Allen occurred sometime
chair" for being late with your evaluation. Your conversation with Allen occurred sometime

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before March 22, which
is
the day the screening committed rejected your application. 	Thus,
ifbefore March 22, which is the day the screening committed rejected your application. Thus, if
it
is
assumed for the sake
of
discussion that the duty
of
representation required Allen to
"takeit is assumed for the sake of discussion that the duty of representation required Allen to "take
action against the chair" in March-an action Allen clearly failed to take-then Allen's	action against the chair" in
March-an
action Allen clearly failed to
take-then
Allen's
inaction falls outside the six-month statute of limitations. Thus, PERB is prohibited from	inaction falls outside the six-month statute oflimitations. Thus, PERB
is
prohibited from
issuing a complaint based on that incident.	issuing a complaint based on that incident.
(b) Alexander's Public Statements	(b) 	lexander's Public Statements
The charge also alleges that Alexander, the Guild's head negotiator at the time, made
controversial public statements in December 2006 and January 2007. To the extent that the
statements are alleged to show discrete, independent violations
of
EERA, a complaint based on
those statements is also barred by the statute
of
limitations.
The charge also alleges that Alexander, the Guild's head negotiator at the time, made
controversial public statements in December 2006 and January 2007. To the extent that the
statements are alleged to show discrete, independent violations of EERA, a complaint based on
those statements is also barred by the statute of limitations.
2.2. 	The Duty of Fair Representation	The Duty of Fair Representation
The remaining incidents occurred within the six-month statute
of
limitations. It must therefore
be determined whether those incidents constitute a breach
of
the duty
of
fair representation.
The remaining incidents occurred within the six-month statute of limitations. It must therefore
be determined whether those incidents constitute a breach of the duty of fair representation.
A union has exclusive control over the collective bargaining process, including exclusive
control over the grievance-arbitration procedures. As a quid pro quo for that exclusive control,
courts have imposed on unions the "duty
of
fair representation." (California State Employees'
Association (Nogard) (1984) PERB Decision No. 551-S, pp.1-2,
fn.l,
citing Vaca v. Sipes
(1967) 386 U.S. 171.)
A union has exclusive control over the collective bargaining process, including exclusive
control over the grievance-arbitration procedures. As a quid pro quo for that exclusive control,
courts have imposed on unions the "duty of fair representation." (California State Employees'
Association (Nogard) (1984) PERB Decision No. 551-S, pp.1-2, fn. 1, citing Vaca v. Sipes
(1967) 386 U.S. 171.)
The duty requires unions "to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4th
1213, 1219.) In Hussey, the court held that the duty
of
fair representation is not breached by
mere negligence and that a union is to be "accorded wide latitude in the representation
of
its
members
...
absent a showing
of
arbitrary exercise
of
the union's power." (Ibid.) Thus, it is
insufficient to show that the union's decision was flawed or even wrong. Rather, in order to
state a prima facie breach
of
the duty
of
fair representation, a charging party must allege facts
to show that the union's action or inaction was without a rational basis or devoid
of
honest
judgment. (International Association
of
Machinists (Attard) (2002) PERB Decision No. 1474-
M (Attard).) It is the charging party's burden to show how a union abused its discretion;
it
is
not the union's burden to show that it properly exercised its discretion. 	(United Teachers
of
Los Angeles (Wyler) (1993) PERB Decision No. 970.)
The duty requires unions "to refrain from representing their members arbitrarily,
discriminatorily, or in bad faith." (Hussey v. Operating Engineers (1995) 35 Cal.App.4th
1213, 1219.) In Hussey, the court held that the duty of fair representation is not breached by
mere negligence and that a union is to be "accorded wide latitude in the representation of its
members . . . absent a showing of arbitrary exercise of the union's power." (Ibid.) Thus, it is
insufficient to show that the union's decision was flawed or even wrong. Rather, in order to
state a prima facie breach of the duty of fair representation, a charging party must allege facts
to show that the union's action or inaction was without a rational basis or devoid of honest
judgment. (International Association of Machinists (Attard) (2002) PERB Decision No. 1474-
M (Attard).) It is the charging party's burden to show how a union abused its discretion; it is
not the union's burden to show that it properly exercised its discretion. (United Teachers of
Los Angeles (Wyler) (1993) PERB Decision No. 970.)
SSt. 	to	Ama's Decision not 	File a Grievance	(a) 	t. Ama's Decision not to File a Grievance	(a)
Between April 26 and May
8,
you and St. Arna, the Guild's grievance officer,
discussed-both
in person or via e-mail-whether you should file a grievance regarding the College's "timeline
violation." St. Arna "advised against" filing a grievance and told you that
if
you wanted to
pursue the matter you would have to do so "at your own expense." You disagreed with
St. Ama's reasoning. But, as will be explained below, it appears St. Ama had a "rational
basis" for not filing a grievance. 	(Attard, supra, PERB Decision No. 1474-M.)
Between April 26 and May 8, you and St. Ama, the Guild's grievance officer, discussed-both
in person or via e-mail-whether you should file a grievance regarding the College's "timeline
violation." St. Ama "advised against" filing a grievance and told you that if you wanted to
pursue the matter you would have to do so "at your own expense." You disagreed with
St. Ama's reasoning. But, as will be explained below, it appears St. Ama had a "rational
basis" for not filing a grievance. (Attard, supra, PERB Decision No. 1474-M.)

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For example, the College was
required-presumably
by the collective bargaining
agreement-
to issue an evaluation by a date certain. The College, however, had missed that date certain.
One option available to the Guild was to file a grievance demanding that the College issue an
evaluation. However, even
if
the Guild pursued that grievance all the way to arbitration,
it
could not obtain an evaluation by a "date certain" that had already passed. Rather, the Guild
probably would have obtained an order directing the College to issue an evaluation as
promptly as possible. Such an order was, however, unnecessary because by the time
you
and
St. Arna were discussing the problem, the College had already issued an evaluation. Thus,
if
the Guild
had
filed a grievance in April, the Guild arguably would have been pursing a remedy
it had already obtained.
For example, the College was required-presumably by the collective bargaining agreement-
to issue an evaluation by a date certain. The College, however, had missed that date certain.
One option available to the Guild was to file a grievance demanding that the College issue an
evaluation. However, even if the Guild pursued that grievance all the way to arbitration, it
could not obtain an evaluation by a "date certain" that had already passed. Rather, the Guild
probably would have obtained an order directing the College to issue an evaluation as
promptly as possible. Such an order was, however, unnecessary because by the time you and
St. Ama were discussing the problem, the College had already issued an evaluation. Thus, if
the Guild had filed a grievance in April, the Guild arguably would have been pursing a remedy
it had already obtained.
Also, in your discussions with St. Arna, you asserted that the "larger issue" was your "rejection
for the full-time job" and that your pursuit
of
that job was "prejudiced" when you were unable
to present a current evaluation to the screening committee. This argument suggests that you
envisioned a grievance remedy in which a second round
of
interviews was to be conducted.
	If
it
is
assumed that the language in the collective bargaining agreement might justify a second
round
of
interviews, it is unlikely that such a remedy would benefit you. After all, the
screening committee had rejected you during the original round
of
interviews, even though it
seen your favorable draft evaluation.
	If-as
result
of
a Guild
grievance-a
second
roundhad seen your favorable draft evaluation. If-as result of a Guild grievance-a second round
of
interviews was to have been held, then the screening committee would see an evaluation that
was
so
unfavorable to you that it made you "livid." Given the possibility that a second
round
of
interviews may have placed you in an even worse position, a "rational basis" for not filing a
grievance is readily apparent.
Also, in your discussions with St. Ama, you asserted that the "larger issue" was your "rejection
for the full-time job" and that your pursuit of that job was "prejudiced" when you were unable
to present a current evaluation to the screening committee. This argument suggests that you
envisioned a grievance remedy in which a second round of interviews was to be conducted. If
it is assumed that the language in the collective bargaining agreement might justify a second
round of interviews, it is unlikely that such a remedy would benefit you. After all, the
screening committee had rejected you during the original round of interviews, even though it
had
of interviews was to have been held, then the screening committee would see an evaluation that
was so unfavorable to you that it made you "livid." Given the possibility that a second round
of interviews may have placed you in an even worse position, a "rational basis" for not filing a
grievance is readily apparent.
(b) 	lexander and the Successful Candidate	AAlexander and the Successful Candidate
The charge alleges that Alexander breached the duty
of
fair representation when he encouraged
the ultimately successful candidate to apply for the full-time position. The duty
of
fair
representation is generally limited to contract negotiations (Rocklin Teachers Professional
Association (Romero) (1980) PERB Decision No. 124) and to grievance processing and related
issues
of
contract administration. 	(United Teachers
of
Los Angeles (Valadez. et al.) (2001)
PERB Decision No. 1453.) No cases have been found in which the duty has prevented union
officers from encouraging individuals to apply for vacant positions.
The charge alleges that Alexander breached the duty of fair representation when he encouraged
the ultimately successful candidate to apply for the full-time position. The duty of fair
representation is generally limited to contract negotiations (Rocklin Teachers Professional
Association (Romero) (1980) PERB Decision No. 124) and to grievance processing and related
issues of contract administration. (United Teachers of Los Angeles (Valadez, et al.) (2001)
PERB Decision No. 1453.) No cases have been found in which the duty has prevented union
officers from encouraging individuals to apply for vacant positions.
CONCLUSION
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, Charging Party may 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 an authorized agent of 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
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, Charging Party may 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 an authorized agent of 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

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PERB. If an amended charge or withdrawal is not filed on or before November 7, 2008, PERB	PERB.
If
an amended charge or withdrawal is not filed on or before November 7, 2008, PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Harry J. Gibbons	Harry J. Gibbons
Senior Regional Attorney	Senior Regional Attorney
HG