California Teachers Association, Solano Community College Chapter, CTA/NEA (Tsai) (PERB 2096E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ELIZABETH TSAI,
Charging Party,
V.
CALIFORNIA TEACHERS ASSOCIATION,
SOLANO COMMUNITY COLLEGE CHAPTER,
CTA/NEA,
Respondent.
Case No. SF-CO-720-E
PERB Decision No. 2096
February 4, 2010
Appearances: 	Galen T. Shimada, Attorney, for Elizabeth Tsai; Joseph R. Colton, Attorney, for
California Teachers Association, Solano Community College Chapter, CT A/NEA.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Elizabeth Tsai (Tsai) of a Board agent's dismissal of her unfair
practice charge. The charge alleged that the California Teachers Association, Solano
Community College Chapter, CTA/NEA (Association) violated the Educational Employment
Relations Act (EERA)1 by refusing to submit her grievance to arbitration. The charge alleged
that by this conduct the Association breached its duty of fair representation guaranteed by
EERA section 3544.9, and thereby violated section 3543.6(b).2 Additionally, the charge
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 EERA section 3543.6(b) provides that it is unlawful for an employee organization to:
Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.

alleged that the Association's refusal to submit the grievance to arbitration was retaliation
against Tsai in violation
of
EERA section 3543.6(b
).
	The Board agent dismissed the charge
for failure to state a prima facie case.
The Board has reviewed the dismissal and the record in light
of
Tsai' s appeal, the
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BACKGROUND
Tsai is employed as a librarian by the Solano County Community College District
(District). She is a member
of
the bargaining unit comprised
of
all regular and adjunct faculty
that is exclusively represented by the Association. The Association and the District are parties
to a collective bargaining agreement (CBA) that contains a grievance procedure which ends in
binding arbitration. The CBA states that an individual employee may file a grievance on their
own behalf, but only the Association may submit a grievance to arbitration.
EERA section 3544.9 states:
The employee organization recognized or certified as the
exclusive representative for the purpose
of
meeting and
negotiating shall fairly represent each and every employee in the
appropriate unit.
3 Tsai's request for oral argument is denied.
2

The CBA includes a provision that allows regular faculty, including librarians, to take
on additional overload/hourly assignments.4 In May 2007,5 Tsai and other librarians on staff
submitted requests for summer assignments/overload hours. Tsai was assigned her third
schedule choice (July 2 to July
12
from 7:30 a.m. to 4:00 p.m.). Her first choice was given to a
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committee chair, to file a grievance alleging a violation
of
CBA Article 19.301. After failing
to get a response from Duval, Tsai hired outside counsel who prepared and filed the grievance
on her behalf on May 23, 2007 (Tsai grievance).
In addition to the above issue, the grievance also alleged that Tsai's secondary request,
to work an additional four hour shift following the end
of
her assigned shift (for a total
of
12
hours each day), was denied by her supervisor, Jay Field (Field). According to the amended
charge, Field told Tsai that he was "not assigning any librarians to work a twelve hour day
during the summer."
On May 14, 2007, Tsai's co-worker, Librarian Quent Carter (Carter), filed a grievance
similar to the second issue in Tsai's grievance, alleging a violation
of
the same CBA provision.
4 CBA Article 19.301 (Regular Faculty) states:
A. Regular faculty will be contacted
fOi
each semester and
summer session to inquire
of
their interest in teaching
adjunct/hourly assignments. Interested regular faculty will have
first priority.
	If
two or more requests for the same class are
received from faculty within the teaching discipline, the
assignments will be distributed equitably to faculty by seniority
on a rotation basis. This section is not intended, however, to
allow a senior faculty member to select all available
overload/hourly assignments. The term 'class/hourly
assignments' shall include overload assignments in counseling
and library services.
5 Hereafter all dates refer to 2007.
6 During the prior year, Tsai received her first schedule choice.
3

Carter's grievance alleged that he had been denied his request to add a four hour shift to his
assigned regular shift because Field assigned the shift to adjunct staff instead
of
a regular
faculty member. Tsai's name was added to Carter's grievance before it was submitted
(Carter/Tsai grievance).
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District. Ultimately, the District denied both the Tsai grievance and the Carter/Tsai grievance.
Both Tsai and Carter made a request to the Association to submit the above grievances
to arbitration. On October 10, the Association submitted the Carter/Tsai grievance to
arbitration.
In a letter dated October 31, Duval informed Tsai
of
the Association Grievance
Committee's decision to deny her request to submit her grievance to arbitration. Regarding
Tsai's first grievance issue, Duval explained that the Association had investigated Tsai's
claims, including interviewing other librarians and staff, and determined the District had
followed a long-standing practice
of
assigning overload assignments, including summer hours,
by a system
of
seniority rotation. The Association concluded that because the District had
followed established practice, no violation
of
the CBA had occurred.
Duval's letter also made reference to Tsai's secondary issue, her claim the District
improperly denied her request that an additional four hour shift be added to her regular
assigned hours. The letter stated:
You also seem to allege that you were denied a twelve hour shift.
The Grievance Committee does not see [the] contract violation
you claim. It may be the case that you object to some
of
the
hours in this twelve hour block being awarded to adjunct faculty
rather than full [- ]time as required by Article 19.301, as you
signed another grievance that alleges this; however, you do not
clearly assert the same claim. Nonetheless, if you are concerned
with that issue and wished to raise it, be advised that the
Association intends to arbitrate a case that challenges that
incident in your department.
4

Tsai alleges the Association's refusal to submit her May
23
grievance to arbitration was
in retaliation for her filing the grievance on her own with assistance from outside counsel.
Tsai's charge states that she learned from other employees that Chapter President, Diane White
(White) disapproved
of
her seeking outside counsel. Furthermore, the closing paragraph
of
Duval's October
31
letter states:
In the future should you wish to pursue your rights under the
collective bargaining agreement, the Association's Grievance
Committee is ready to assist you. The Grievance Committee is
disappointed that the Association was denied the opportunity to
represent you in a matter which is obviously
of
great concern to
you
....
In addition, Tsai alleges that an Association newsletter dated November 30 directly
criticized her use
of
outside counsel when it stated, in part:
We have had a couple
of
instances
of
members filing grievances
without allowing anyone from the grievance team to review it.
While this is their right to file on their own, it makes it much
more difficult for us when the District comes to us with
questions. It also means that members without grievance
experience can and do overlook important filing requirements and
contractual issues. We strongly advise you to consult with the
Association before filing because it is almost always better to get
several people, often cooler heads, to look at a grievance and see
if
anything is being overlooked.
BOARD AGENT'S DISMISSAL
In dismissing the charge, the Board agent noted that a union is not required to advance
a grievance to arbitration
if
it reasonably believes the claim does not have merit. The Board
agent found the alleged facts showed the Association investigated Tsai's charge and
determined her grievance did not demonstrate a contract breach. Thus, the Board agent
concluded the charge failed to state a prima facie case of a breach of the duty of fair
representation.
5

The Board agent also found the charge failed to show that the Association's refusal to
forward Tsai's grievance to arbitration was in retaliation for the exercise
of
protected activity.
The Board agent determined that seeking legal representation from private counsel outside
of
the union is not a protected activity under EERA. However, the Board agent went on to
determine that even
if
protected activity had been shown, the allegations submitted by Tsai in
support
of
her reprisal argument were insufficient to demonstrate nexus.
TSAI' S APPEAL
In her appeal, Tsai argues that the secondary issue in the Tsai grievance is exactly the
same as that found in the Carter/Tsai grievance, but that she is unable to recover damages from
a favorable award under the Carter/Tsai grievance. Tsai concludes, therefore, the Association
breached its duty
of
fair representation by not pursuing both grievances.
Tsai also disputes the Board agent's determination that seeking legal counsel outside
of
the union is not protected activity under EERA, stating that EERA section 3543(b) permits an
employee to present grievances to the employer "without the intervention
of
the exclusive
representative." Further, Tsai argues that although none
of
the facts submitted in support
of
the reprisal claim may by themselves support a nexus, they are more than sufficient when taken
as a whole.
The Association opposed the appeal, arguing that the facts Tsai claims the Board agent
overlooked are actually conclusions unsupported by facts, and that the Association did not
breach its duty of fair representation.
DISCUSSION
Duty of Fair Representation
EERA section 3544.9 provides that "[t]he employee organization
...
shall fairly
represent each and every employee in the appropriate unit." The Board has determined that
6

this duty extends to grievance handling. (Fremont Unified District Teachers Association,
CTA/NEA (King) (1980) PERB Decision No. 125; United Teachers
of
Los Angeles (Collins)
(1982) PERB Decision No. 258 (UTLA (Collins).) However, a union is not required to process
a grievance to any level
if
it has a reasonable belief that the claim is meritless. (Los Angeles
Unified School District (1985) PERB Decision No. 526.) A union has broad discretion to
determine whether or not to pursue a grievance as long as its determination is not arbitrary,
discriminatory or in bad faith. 	(UTLA (Collins).)
In Rocklin Teachers Professional Association (Romero) (1980) PERB Decision
No. 124, the Board stated that in order to show a prima facie violation
of
this section
of
EERA,
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.
Tsai's grievance alleged that Field: (1) assigned overload hours to a regular staff
member with less seniority than Tsai; and (2) denied Tsai's request to work an additional four
hour shift following the end
of
her assigned shift ( for a total
of
12
hours). Regarding the first
issue, the charge demonstrated that the Association investigated Tsai's grievance and
concluded there was a practice
of
making overload assignments on a seniority rotation basis.
The Association informed Tsai it did not believe it would prevail on this issue.7 The Board
does not determine whether a union's assessment was correct, but only whether the
determination had a rational basis. (Los Rios College Federation ofTeachers/CFTIAFTI
Local 2279 (Deglow) (1997) PERB Decision No. 1241.) The Association investigated Tsai's
7 On appeal, Tsai does not appear to challenge the Association's determination not to
pursue her grievance with respect to the seniority issue. In fact, she informed the Association
that she was willing to drop any issues that were not consistent with the Carter/Tsai grievance.
7

first issue, including interviewing other staff, and ultimately concluded the District had not
violated the contract. Based on these facts, the charge does not demonstrate the Association's
decision, declining to submit this issue to arbitration, was without a rational basis.
Upon review
of
the second issue in Tsai's grievance (refusal to grant her a 12-hour
day), the Association found the claimed breach
of
contract in Tsai's grievance to be
ambiguous.8 Assuming it was similar to the issue described in the Carter/Tsai grievance, the
Association informed Tsai that the issue would be addressed when it submitted the Carter/Tsai
grievance to arbitration. A union has the discretion to decide in good faith that even a
meritorious grievance should not be pursued. (Los Rios College Federation
of
Teachers
(Deglow) (1996) PERB Decision No. 1133.) As the Association had already decided to
address this issue through the Carter/Tsai grievance, it was free to determine the best allocation
of
its resources. (Ibid.)
In her appeal, Tsai asserts that the secondary issue in her grievance is essentially
identical to the issue in the Carter/Tsai grievance, but that she will not be able to recover
damages under the Carter/Tsai grievance. However, the charge does not provide facts that
demonstrate how or why Tsai would be excluded from any remedy under the Carter/Tsai
grievance, which she signed as a named grievant. The Board has held that "[m]ere speculation,
conjecture or legal conclusions are insufficient" to support a prima facie case. (United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944; Regents
of
the University
of
California (2005) PERB Decision No. 1771-H.) Therefore, the charge fails to state a prima
facie case
of
a breach of the duty
of
fair representation.
8.Tsai's grievance alleged that her supervisor denied her request for the additional work
hours. 	In contrast, the Carter/Tsai grievance alleged the District breached the contract when it
assigned the hours to adjunct faculty rather than regular faculty.
8

Reprisal
EERA section 3543.6(b) states that it is unlawful for an employee organization to
"[i]mpose or threaten to impose reprisals on employees
...
because
of
their exercise
of
rights
guaranteed by [EERA]." In analyzing allegations
of
reprisal in violation
of
the duty
of
fair
representation, the Board follows the standard applicable to allegations
of
reprisal by an
employer under Section 3543.5(a). (Los Rios College Federation
of
Teachers/
CFTIAFT/Local 2279 (Deglow) (1999) PERB Decision No. 1350; Service Employees
International Union, Local 99 (Kimmett)
(l
979) PERB Decision No. 106.)
To demonstrate that an employee organization discriminated or retaliated against an
employee in violation ofEERA section 3543.6(b), the charging party must show that: 	(1) the
employee exercised rights under EERA; (2) the employee organization had knowledge
of
the
exercise
of
those rights; (3) the employee organization took adverse action against the
employee; and ( 4) the employee organization was motivated by the exercise
of
those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); California Union
of
Safety Employees (Coelho)
(l
994) PERB Decision No. 1032-S.)
Protected Activity
Tsai asserts the Association retaliated against her by refusing to advance her grievance
to arbitration because she obtained private counsel to assist her with her grievance. Tsai
contends EERA section 3543 confers a statutory right to private counsel.9
9 EERA section 3543 states, in relevant part:
(a) Public school employees shall have the right to form, join, and
participate in the activities of employee organizations
of
their
own choosing for the purpose of representation on all matters ofemployer-employee relations. Public school employees shall
have the right to represent themselves individually in their
employment relations with the public school employer,
...
9

EERA section 3543 grants public school employees a limited right to self
representation with their employer. Once an employee organization is recognized as the
exclusive representative, individual employees do not have the right to meet and confer with
the public school employer. (Oxnard School District (Gorcey and Tripp) (1988) PERB
Decision No. 667.) However, the statute provides that employees retain a right to present their
grievances to the employer without the intervention
of
the exclusive representative.
Nevertheless, the right
of
an individual employee to present grievances to their
employer is limited. For example, an employee may not be represented in the grievance
process by an employee organization other than the exclusive representative. (Mount Diablo
Unified School District, et
al.
(1977) EERB
10
Decision No. 44.) Furthermore, the Board has
held under a similar statute,
11
that the right to self representation does not include the right to
(b) An employee may at any time present grievances to his or
her employer, and have those grievances adjusted, without the
intervention
of
the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to
Sections 3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment
is not inconsistent with the terms
of
a written agreement then in
effect, provided that the public school employer shall not agree to
a resolution
of
the grievance until the exclusive representative has
received a copy
of
the grievance and the proposed resolution and
has been given the opportunity to file a response.
10
Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
11
The Ralph C. Dills Act (Dills Act) is codified at Section 3512 et seq. Dills Act
section 3515 states, in part:
Except as otherwise provided by the Legislature, state
employees shall have the right to form, join, and participate in
the activities of employee organizations of their own choosing
for the purpose of representation on all matters of employer
employee relations. . . . In any event, state employees shall
have the right to represent themselves individually in their
employment relations with the state.
Dills Act section 3515. 5 provides, in part:

be represented by private counsel. (State
of
California (Department
of
Consumer Affairs)
(2005) PERB Decision No. 1762-S.) Thus, EERA does not confer a protected right
of
representation by private counsel.
Therefore, although Tsai did not have a protected right to representation by private
counsel, she did engage in protected activity when she presented her grievance without the
intervention or assistance
of
the Association. (EERA § 3543(b).)
Knowledge and Adverse Action
The Association was aware that Tsai's private attorney prepared and filed her grievance
with the District when the Association was copied on the grievance. Furthermore, the
Association's refusal to arbitrate Tsai's grievance was adverse to her interests.
Nexus
Having found that Tsai engaged in protected activity, we must also examine whether
the charge alleged sufficient facts to establish a nexus between the protected activity and the
Association's refusal to pursue arbitration
of
Tsai's grievance.
In Metropolitan Water District
of
Southern California (2009) PERB Decision
No. 2066-M, the Board stated, "Typically, the closeness in time (or lack thereof) between the
protected activity and the adverse action goes to the strength of the inference
of
unlawful
motive to be drawn and is not determinative in itself." Tsai filed her grievance on May 23 and
was represented by private counsel at meetings through the first two levels
of
the grievance
Employee organizations shall have the right to represent their
members in their employment relations with the state, except that
once an employee organization is recognized as the exclusive
representative of an appropriate unit, the recognized employee
organization is the only organization that may represent that unit
in employment relations with the state
....
Nothing in this
section shall prohibit any employee from appearing in his own
behalf in his employment relations with the state.
11

procedure. Thereafter, Tsai requested that the Association arbitrate her grievance. After
investigation
of
her claims, the Association notified Tsai on October 31, that it would
not
advance her grievance to arbitration. These facts support a sufficiently close temporal
proximity between Tsai's own representation
of
her grievance throughout the grievance
procedure, and the Association's decision not to arbitrate the grievance.
However, while timing is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) departure
from established procedures and standards (Santa Clara Unified School District (1979) PERB
Decision No. 104); (3) inconsistent or contradictory justifications for its actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) a
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) failure
to offer justification at the time it took action (Oakland Unified School District (2003) PERB
Decision No. 1529) or the offering
of
exaggerated, vague, or ambiguous reasons (McFarland
Unified School District (1990) PERB Decision No. 786); or (6) any other facts that might
demonstrate uniawful motive. (North Sacramento School District, supra, PERB Decision
No. 264; Novato.)
Tsai's unfair practice charge fails to allege facts showing these or any other additional
factors sufficient to establish an improper motive by the Association.
12

Tsai contends the Association engaged in disparate treatment because it advanced an
identical grievance to arbitration, but not her own individual grievance. However, the
evidence does not support a determination that the Tsai grievance was identical to the
Carter/Tsai grievance. The Association pointed out in its October
31
letter, that Tsai's claim
was ambiguous. Tsai' s grievance alleged a denial
of
her request for additional work hours.
The Carter/Tsai grievance alleged the District improperly assigned the additional hours to
adjunct faculty rather than regular faculty. 	Thus, the charge does not demonstrate disparate
treatment
of
identical grievances.
The charge also asserts that nexus is established because the Association disapproved
of
Tsai obtaining private counsel. Tsai contends that three incidents when taken as a whole are
sufficient to demonstrate improper motive by the Association. The charge alleges that: 	(1) the
Association's October
31
letter denying Tsai's request to submit her grievance to arbitration,
essentially states that the Association is disappointed in Tsai for submitting a grievance
without the assistance
of
the Association; (2) unspecified comments by Tsai's co-workers
show that White disapproved
of
Tsai's use
of
outside counsel; and (3) a November 30
newsletter, which espoused the benefits
of
going through the Association for grievance
processing rather than handling complaints individually, "implicitly condem[s] Tsai and others
for failing to utilize the union" in presenting grievances. For each
of
these incidents, however,
the charge rests its claim on conclusions which either misstate the facts entirely, or fail to set
forth facts which bridge the gap between the Association's alleged conduct and the conclusion
of
unlawful motivation. Here again, PERB Regulation 32615 (a)(5)
12
requires that the charge
include at the very least "[a] clear and concise statement of the facts and conduct alleged to
12
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
13

constitute an unfair practice." Mere speculation or legal conclusions are not sufficient to state
a prima facie case. (United Teachers-Los Angeles (Ragsdale), supra, PERB Decision
No. 944.)
Furthermore, the facts
do
not show that the Association objected to Tsai's
representation by private counsel. Tsai and her attorney met at least twice with District
representatives to discuss her grievance. There is no evidence on record that the Association
attempted to intervene or otherwise objected when Tsai's attorney attended the grievance
meetings. As such, the charge fails to state a prima facie case
of
reprisal for the exercise
of
protected activity under EERA.
ORDER
The unfair practice charge in Case No. SF-CO-720-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
14