Alvord Educator's Association (Bussman) (PERB 2046E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN BUSSMAN,
Charging Party, Case No. LA-CO-1329-E
v. PERB Decision No. 2046
ALVORD EDUCATOR’S ASSOCIATION, June 30, 2009
Respondent.

Appearances: John Bussman, on his own behalf; California Teachers Association by John F.
Kohn, Attorney, for Alvord Educator’s Association.

Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION

WESLEY, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by John Bussman (Bussman) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the Alvord Educator’s
Association (AEA) breached its duty of fair representation in violation of the Educational
Employment Relations Act (EERA)’ by failing to properly represent him in a challenge to the
legality of certain contract provisions, and by failing to represent him regarding a change in
teaching assignments.

The Board has reviewed the dismissal and the record in light of Bussman’s appeal,
AEA’s response and the relevant law. Based on this review, the Board finds the Board agent’s

warning and dismissal letters to be a correct statement of the law and well reasoned, and

‘ EERA is codified at Government Code section 3540 et seq.

therefore adopts them as the decision
of
the Board itself, as supplemented by the discussion
below.2
DISCUSSION
Bussman's appeal for the first time alleges that AEA provided false information to
PERB, and provides supplemental details in support
of
the duty
of
fair representation claim
regarding the contract dispute. However, Bussman's appeal does not provide information
regarding the nature
of
the alleged falsities, nor does it demonstrate good cause why this
allegation, or the supplemental details in support
of
his duty
of
fair representation claim, were
not included in either the original or amended charge. PERB Regulation 32635(b)3 requires that
"[u]nless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." 	Therefore, the Board did not consider the new
allegation or new information on appeal.
The Board also rejects Bussman's argument on appeal that a September 17, 2007, email
from the California Teachers Association (CTA) indicates a renewed promise ofrepresentation
with respect to the alleged illegal contract terms so as to bring a duty
of
fair representation claim
against AEA within the six month statute
of
limitations. Specificaliy, Bussman appears to argue
that although the letter he received from AEA on January 30, 2007, denying representation on
this issue, is outside the statute of limitations, he believed AEA and CTA to be one and the same
entity. Thereby, the September 17 email from CTA should, for purposes
of
this unfair practice
In Long Beach Community College District (2009) PERB Decision No. 2002, theBoard held that the statute of limitations is not an affirmative defense but an element
of
the
charging party's prima facie case. The Board agent's warning letter at page 3 states that "The
statute of limitations has also been raised by the respondent as an affirmative defense in this
case." In light of the holding in Long Beach, the Board does not address this issue.
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

charge, be treated
as
if
it was from AEA, thus bringing his claim against AEA within the
limitations period. However, nothing in the email, or any other evidence presented by
Bussman, demonstrates a valid legal argument that CTA's statements or actions can be
imputed to AEA. Furthermore, the September
17
email does not, as Bussman claims,
demonstrate that he was being provided representation by either CTA or AEA as
of
that date,
in that it specifically rebukes Bussman for any assumption that his individual needs should
dictate further action, and indicates that any action CTA was taking to resolve problems
regarding the disputed contract terms was done on behalf
of
all affected bargaining unit
members, not Bussman individually. Therefore, the January 30, 2007, letter from AEA
denying Bussman representation regarding the disputed contract terms, starts the statute
of
limitations on that issue. 	Since this date
is
approximately one year prior to the filing
of
the
unfair practice charge, dismissal is proper.
ORDER
The unfair practice charge in Case No. LA-CO-1329-E is hereby dismissed WITHOUT
LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
3

STATE
OF
CALIFORNIA	
r-	
C 	ARNOLD SCHWARZENEGGER, Governor
============..,.;;;;:==============~
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
February 3, 2009
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta,
CA
92562
Re: 	John Bussman v. Alvord Educator's Association
Unfair Practice Charge No. LA-CO-1329-E
DISMISSAL LETTER
Dear Ms. Murthy:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the.Alvord Educator's Association (AEA or Respondent) violated the Educati_on.al
Employment Relations Act (BERA or
Act/
by violating its duty
of
representation.
Charging Party was informed in the attached Warning Letter dated November 25, 2008,
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 that 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 December 2, 2008,
the
charge would be dismissed.
On December 1, 2008 you requested and were granted an extension
of
time in which to file an
amended charge and, on December 31, 2008 you filed a First Amended Charge to include
allegations that AEA violated EERA by: (1) retaliating against a union member and (2)
mci~in_g
def3.:1natory
com111en_tsc1_~~1:1J.
Chc1_r_gi~~-
f~rtyct,!1~
~-a.~a.zj~~
~i~-~~pu~ation.
Factual Background As Amended
Bussman has been employed with the Alvord Unified School District (AUSD or District) as a
high school history/government teacher since 2001. His duties in that capacity "held the
consistent pattern
of
teaching require that he teach high school students generally on two
subjects per semester."
AEA is, and at all times relevant to this charge has been, the recognized employee organization
and exclusive representative for the certificated employees
of
the District. Craig Adams
(Adams) and Meg Decker (Decker) are AEA representatives.
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 vvvvw.perb.ca.gov.

LA-CO-1329-E
February 3, 2009
Page 2
In 2005-2006, the District and AEA were in negotiations for a new contract. In early October
2006, AEA announced that a contract had been reached between the parties, but did not
provide details of the contract to its members.
Prior to the ratification vote by the AEA membership, Bussman learned some details of the
contract. According to the charge, part of the contract was that teachers "with 3-14 years of
experience would have their salaries step level brought back two notches while those with 19
or more years or more of experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 11, 2006, Bussman questioned AEA representative Decker about the
contract. At all relevant times herein, Decker was a teacher at Norte Vista High School,
Department Chair of Social Studies at Norte Vista High School, Union official for AEA and a
bargaining spokesperson for AEA. Allegedly, Decker stated that Bussman "should not worry
about the inequity of the contract as it was this or just minimal increases." Decker stated that
"it was a good deal."
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years of experience while those working for the District would be
two steps behind."
On or about October 23, 2006, Bussman forwarded a letter to Decker and Adams expressing
his concerns about the contract.
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred to Barbara Kerr with
CTA."
On December 7, 2006, Kerr informed Bussman that "[CTA] could not intervene in elections:"
During the week of December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[w]ithout reason, [AEA] declined to
represent Bussman, which eventually resulted in Bussman seeking the assistance of CTA."
In or about March 2007, AEA advised Bussman and other AEA members "that a new contract
had been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations of the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA representatives.

LA-CO-1329-E
February 3, 2009
Page 3
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to kick [sic] [Bussman] out." Afterwards, a CTA representative advised AEA of the
"illegalities of both contracts" but AEA "continued to deny such violations and stat~d the vote
would continue."
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion of their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to pay
back their salary."
On or about April 13, 2007, CTA sent an e-mail message to Bussman. The e-mail stated in
pertinent part: "[Karen Bost] is prepared to give Marianne Reynolds some of the background
information related to the AEA bargaining and provide you with a legal referral to see her."
The amended charge next states the following:
This e-mail served as a direct affirmation by CTA to represent
Bussman in the dealings with AUSD on the modified salary
structure. The scope of CTA' s representation was made clear to
Bussman at the outset. Because of this communication to
Bussman, Bussman assumed that CTA was taking responsibility
for any and all matters related to AUSD bargaining without
limitations.
On or about April 20, 2007, Bussman was "advised of further disparaging remarks by
Respondents Adams and Decker."
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
and was advised later in the month that she would be filing a lawsuit on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
- oflegal-assistarice even though such was given on April 13; 2007."
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On July 31, 2007, Bussman sent a "strongly worded" e-mail message to CTA officials voicing
his displeasure with his lack of representation and received a telephone call from Reinhold the
same afternoon. Reinhold allegedly promised to notify AUSD of pending legal action on
Bussman's behalf.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."

LA-CO-1329-E
February 3, 2009
Page 4
On or about August 16, 2007, Bussman received a welcome letter from District Principal
Santos Campos advising him that
ifhe
had not yet received a notice
of
a schedule change, then
his schedule would remain the same. At the time Bussman received the August
16
letter, he
had not received any notice
of
a schedule change.
According to the amended charge, Social Science department members typically were told by
Decker prior to the end
of
the prior school year that they could expect the same class
assignments for the upcoming school year.
On or about August 23, 2007, Bussman received notice
of
a schedule change from the District.
According to the amended charge, Bussman had taught three sections
of
American
Government and two sections
of
AP US History for the past three years. His revised schedule
contained two sections
of
American Government, two sections
of
AP US History and one
section
of
US History. The amended charge states that "[a]lthough A.P. U.S. History and U.S.
· History both contain similar terms, they are completely different courses. There are different
textbooks, pacing guides, assignments, and tests for each
of
these classes."
The amended charge further states that although Bussman' s "new" schedule was not beyond
his capabilities, his 'new schedule required three classes to prepare for daily and "could have
easily been remedied to everyone's satisfaction."
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change but to no avail."
Discussion
1.	
Jurisdiction
Charging Party alleges that AEA representatives made defamatory comments about Charging
Party and "thereby damaged his reputation."
PERB 's jurisdiction is limited to the determination
of
unfair labor practice claims arising under ·
EERA and a few other public sector labor statutes. (California School Employees Association,
Chapter 245 (Waymire) (2001) PERB Decision No. 1448; Sweetwater Union High School
District (2001) PERB Decision No.
141
7.) PERB 's jurisdiction does not include, inter alia,
enforcement
of
the Americans with Disabilities Act, the U.S. Constitution, the Whistleblower
Protection Reporting Act, laws governing improper government activity, laws governing
sexual harassment, laws governing defamation, or laws governing the unemployment insurance
process. Thus, Charging Party's allegation that AEA representatives made defamatory
comments about him, damaging his reputation, are dismissed as being outside of PERB' s
jurisdiction.

LA-CO-1329-E
February 3, 2009
Page 5
2. 	Statute
of
Limitations
As amended, Charging Party continues to allege that AEA failed to properly represent him
"in
enjoining the passage
of
an illegal employment contract reached by AEA and AUSD." As
discussed in detail in the attached Warning Letter, in cases alleging a breach
of
the duty
of
fair
representation, the statute
of
limitations begins to run when the charging party knew or should
have known that further assistance from the union was unlikely. 	(California State Employees
Association (Chen) (2005) PERB Decision No. 1736-S.)
The charge was filed on January 22, 2008. AEA informed Charging Party onor about January
30, 2007 that it declined to represent him and as a result, Charging Party sought the assistance
of
CTA. 	Therefore, Charging Party knew on or about January 30, 2007 that further assistance
from AEA was unlikely. As such, the allegation that AEA failed to properly represent
him
with respect to the agreement negotiated by AUSD and AEA occurred outside
of
the statutory
time period and is dismissed.
Furthermore, the amended charge appears to allege a separate theory that AEA retaliated
against Charging Party for "raising concerns about the negotiations and the agreements
between AUSD and AEA." As stated in the attached Warning Letter, the limitations period
begins to run once the charging party knows, or should have known,
of
the conduct underlying
the charge. 	(Gavilan Joint Community College District (1996) PERB Decision No. 1177.)
Though unclear, it appears that Charging Party is asserting that the following actions are
evidence
of
AEA's retaliatory conduct toward Charging Party: (1) AEA initially denied
Charging Party access to a meeting and attempted to kick Charging Party out
of
the same
meeting on March 21, 2007; (2) AEA representative Adams "improperly and illegally
laid
blame on [Charging Party] to teachers who had to pay back their salary" on March 26, 2007;
and (3) on April 20, 2007, Charging Party was advised
of
"further disparaging remarks
by
[AEA representatives] Adams and Decker." Assuming that the conduct described above is
Charging Party's evidence
of
AEA's retaliatory conduct, Charging Party knew about
AEA's
conduct on or about April 20, 2007. Therefore, the allegation that AEA retaliated against
--
- -cliarging Party, as amended~ is nottimely
-and
is dismissed.-
The only conduct by AEA cited in the amended charge occurring within the six-monthstatute
oflimitations occurred on August 27, 2007 when Charging Party communicated with
AEA
officials "regarding the tardy assignment change but to no avail." This conduct is discussed in
greater detail below.
3. 	Duty
of
Fair Representation
As amended, the charge also appears to allege that AEA violated its duty
of
fair representation
when Charging Party communicated with AEA officials "regarding the tardy assignment
change but to no avail."

LA-CO-1329-E
February 3, 2009
Page 6
As stated in the attached Warning Letter, 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 exclusive
representative's action or inaction was without a rational basis or
devoid
of
honest judgment.
(Reed District Teachers Association, CTAINEA (Reyes) (1983) PERB Decision No. 332, p.
9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
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. (9th Cir. 1983) 749 F.2d 1270, at
p.
1274; see also, Robesky v. Ouantas
Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.)
In the amended charge, Charging Party states only that he communicated with AEA officials
"regarding the tardy assigrunent change but to no avail." Charging Party alleges no other facts
to demonstrate AEA abused its discretion or that its actions were without a rational basis or
devoid
of
honest judgment. (International Association of Machinists (Attard), supra, PERB
Decision No. 1474-M; United Teachers - Los Angeles (Wyler), supra, PERB Decision
No. 970.) As such, the charge fails to state a prima facie violation of the duty of fair
representation and is dismissed.

LA-CO-1329-E
February 3, 2009
Page 7
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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. 	(Cal. Code Regs, tit.
8,
sec. 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.
(Cal. Code Regs, tit.
8,
secs. 32135(a) and 32130; see also Gov. Code, sec. 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
PERB 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. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(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. (Cal. Code Regs, tit.
8,
sec. 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 Cal. Code Regs., tit.
8,
sec. 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.
(Cal. Code Regs, tit. 8, sec. 32135(c).)
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1329-E
February 3, 2009
Page 8
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
paiiy
regarding the extension, and shall be accompanied by
proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8, sec. 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,
TAMIR.
BOGERT
General
C.D1UJ.Sel
(
By 	,
Kafuarihe NV
Regional Atto 	e
Attachment
cc: John F. Kohn, Attorney

STATE
OF
CALIFORNIA 	ARNOLD 	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
November 25, 2008
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta, CA 92562
Re: 	John Bussman v. Alvord Educator's Association
Unfair Practice Charge No. LA-CO-1329-E
WARNING LETTER	\
Dear Ms. Murthy:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the Alvord Educator's Association (AEA or Respondent) violated the Educational
Employment Relations Act (EERA or
Act/
by violating its duty
of
representation.
Investigation
of
the charge revealed the following information.
Factual Background
Bussman has been employed with the Alvord Unified School District (District) as a high
school history/government teacher since 2001.
The AEA is, and at all times relevant to this charge has been, the recognized employee
organization and exclusive representative for the certificated employees
of
the District.
	In
2005-2006. the District and AEA were in negotiations for a new contract. In early October
2006, AEA announced that a contract had been reached, but did not provide details
of
the
contract to its members.
Prior to the ratification vote by the AEA membership, Bussman learned some details
of the
contract. According to the charge, part
of
the contract was that teachers "with 3-14 years
of
experience would have their salaries step level brought back two notches while those with 19
or more years or more
of
experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 11, 2006, Bussman questioned AEA representative Meg Decker (Decker)
about the contract. Allegedly, Decker stated that Bussman "should not worry about the
inequity
of
the contract as it was this or just minimal increases." Decker stated that "it was a
good deal."
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1329-E
November 25, 2008
Page 2
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years of experience while those working for the district would be
two steps behind."
On or about the week of October 23, 2006, Bussman forwarded a letter to Decker and another
AEA Representative, Craig Adams (Adams), expressing his concerns about the contract.
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred to Barbara Kerr with
CTA."
On December 7, 2006, Kerr stated that "[CTA] could not intervene."
During the week of December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[AEA] declined to represent
[Bussman] and in fact [was] very hostile towards him."
In or about March 2007, AEA advised Bussman and other members "that a new contract had
been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations of the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA.
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to give [sic] [Bussman] out." Afterwards, a CTA representative advised AEA of the
-- "illegalities of both contracts" but AEA-"continued to deny such violations and stated the vote-
would continue."
---- 	-
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion of their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to pay
back their salary."
On or about April 13, 2007, CTA agreed to provide Bussman with legal counsel and provided
him with the requisite authorization forms.
On or about April 20, 2007, Petitioner was "advised of further disparaging remarks by
Respondents Adams and Decker."

LA-CO-1329-E
November 25, 2008
Page 3
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
and was advised that she would be filing a lawsuit later in the month on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
of legal assistance even though such was given on April 13, 2007."
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."
On or about August 16, 2007, Bussman received a welcome letter from District Principle
Santos Campos advising him that if he had not yet received a notice of a schedule change, then
his schedule would remain the same. At the time Bussman received the August 16 letter, he
had not received any notice of a schedule change.
On or about August 23, 2007, Bussman received notice of a schedule change from the District.
On or about August 26, 2007, Bussman demanded that CTA file a "suit on his behalf due to the
contracts to Respondent CTA but [received] no response."
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change which obviously is in retaliation as it breaches the logical mind on
assignments considering other teacher's schedules." The charge further alleges that the
District "failed and continues to fail to give [Bussman] all the tools he needs to effectively
teach" all three of his classes.
In September 2007, CTA and their legal counsel Reinhold, responded to and advised Bussman
that "they are refusing to properly represent [him] as required."
1. 	Statue of Limitations
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department oflnsurance) (1997) PERB Decision No. 1197-S.) The statute
of limitations has also been raised by the respondent as an affirmative defense in this case.
(Long Beach Community College District (2003) PERB Decision No. 1564.)

LA-CO-1329-E
November 25, 2008
Page 4
On or about January 20, 2007, Charging Party was informed that AEA "declined to represent"
him on the violations in the contract and "in fact were very hostile towards him." In a duty
of
fair representation case, the statute
of
limitation begins to run when the charging party knew or
should have known that further assistance from the union was unlikely. 	(California State
Employees Association (Chen) (2005) PERB Decision No. 1736-S.) Charging Party knew on
or about January 20, 2007 that further assistance from AEA was unlikely. However, Charging
Party did not file his charge until January 22, 2008, approximately one-year after receiving
notice from AEA. Further, the charge does not explain Charging Party's failure to file within
the six month time-frame. As such, the charge as presently written, does not demonstrate that
the charge is timely filed.
2. 	Duty
of
Fair Representation
Even
if
the charge is timely filed, the charge does not present facts demonstrating AEA
violated its duty
of
representation to Charging Party.
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 mam1er the exclusive
representative's action or inaction was without a rational basis or
devoid of honest judgment.
(Reed District Teachers Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)

LA-CO-1329-E
November 25 1 2008
Page 5
C
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. (9th Cir. 1983) 749 F.2d 1270, at
p.
1274; see also, Robesky
v.
Ouantas
Empire Airways Limited (9th Cfr. 1978) 573 F.2d 1082.)
Charging Party appears to be asserting that AEA violated its duty
of
fair representation by
negotiating a contract which provided for preferential and differential treatment
of
teachers,
and allegedly violated the Education Code. However, the Board has specifically held that an
exclusive representative is not expected or required to satisfy all members
of
the unit it
represents, and the duty
of
fair representation does not mean that an exclusive representative
is
barred from making contracts which may have unfavorable effects on some members.
(California School Employees Association and its Chapter 107 (Chacon) (1995) PERB
Decision No. 1108.) Even poor judgment on the union's part would not be enough to establish
.a violation
of
its duty
of
fair representation. (Id.)
Charging Party alleges no other facts to demonstrate AEA abused its discretion or that its
actions were without a rational basis or devoid
of
honest judgment. (International Association
of
Machinists (Attard), supra, PERB Decision No. 1474-M; United Teachers - Los Angeles
(Wyler), supra, PERB Decision No. 970.) As such, the charge fails to state a prima facie
violation
of
the duty
of
fair representation.
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· PERB. ·If
an
amended ·charge orwithdrawalis not filed on
or
before December·2,··
2008, PERB will dismiss your charge.	
If
you have any questions, please call me at the above
telephone number.
· ·· · ·
··
Sincerclv.
Katharine~
Regional Attorney
KN