California School Employees Association and its Chapter 168 (Gibson) (PERB 2128E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KIMY
L.
GIBSON,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 168,
Respondent.
Case No. SA-CO-544-E
PERB Decision No. 2128
August 25, 2010
Appearances: Timothy M. Cary & Associates by Paul 	Hamill, At
Gibson; Maureen C. Whelan, Attorney, for California School Employees Association & its
Chapter 168.
J.
	torney, for Kimy L.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Kimy
L.
Gibson (Gibson)
of
a dismissal
of
her unfair practice charge by
a Board agent. The charge alleged that the California School Employees Association & its
Chapter 168 violated sections 3544.9 and 3543.6(b)
of
the Educational Employment Relations
Act (EERA) 1 by settling grievances filed on Gibson's behalf without obtaining her consent.
The Board agent dismissed the charge for failure to state a prima facie violation under EERA.
\
1
✓
c have rev·ievved the entire record in this matter and find the vvarning and dismissal
letters (attached) well-reasoned, adequately supported by the record and in accordance with
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

applicable law. Accordingly, the Board hereby adopts the warning and dismissal letters as the
decision of the Board itself.
ORDER
The unfair practice charge in Case No. SA-CO-544-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
November 19, 2008
Paul Hamill, Attorney
Timothy M. Cary & Associates
3300 Cameron Park Drive, Suite 2000
Cameron Park, CA 95682
ARNOLD SCHWARZENEGGER, Governor
Re: 	Kimy L. Gibson v. California School Employees Association & its Chapter 168
Unfair Practice Charge No. SA-CO-544-E
DISMISSAL LETTER
Dear Mr. Hamill:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 25, 2008. Kimy L. Gibson (Ms. Gibson or Charging Party)
alleges that the California School Employees Association & its Chapter 168 (CSEA or
Respondent) violated section 3544.9
of
the Educational Employment Relations Act (EERA or
Act) 1 by breaching its duty
of
fair representation.
You were informed in the attached letter dated November 3, 2008 (Warning Letter), 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 November 13, 2008, the charge would
be dismissed. On November 14, 2008, during a telephone conversation, you verified that you
had in fact received the Warning Letter. At your request, I extended at that time the deadline
to file an amended charge to November 18, 2008.
No amended charge was filed with PERB by or on the November 18, 2008 deadline.
Therefore, this charge is being dismissed based on the facts and reasons set forth in the
Warning Letter.
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
'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.
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CO-544-E
November 19, 2008
Page 2
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. l 1020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimiie 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. 3263 5(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).)
Extension
of
Time
B 	dA
.a.
request tor
,...
an extension' 	•
or
r,
time,
'.
m•
wmcn1 • 1
w, n1e
£-1
a aocumentl
w1ti1
• 1
t11e
l oar 	llSeu.,·+ 	1+' muse+ h
ue
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. (Cal. Code Regs,
tit
8, sec. 32132.)

SA-CO-544-E
November 19, 2008
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
__
~-~----------
Yar01fPart#i
Regional Attorney
Attachment
cc: Maureen C. Whelan

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA .95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
November 3, 2008
Paul Hamill, Attorney
Timothy M. Cary & Associates
3300 Cameron Park Drive, Suite 2000
Cameron Park, CA 95682
ARNOLD SCHWARZENEGGER, Governor
Re: 	Kimy L. Gibson v. California School Employees Association & its Chapter 168
Unfair Practice Charge No. SA-CO-544-E
WARNING LETTER
Dear Mr. Hamill:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 25, 2008. Kimy L. Gibson (Ms. Gibson or Charging Party)
aUeges that the California School Employees Association & its Chapter 168 (CSEA or
Respondent) violated section 3544.9 of the Educational Employment Relations Act (EERA or
Act) 1 by breaching its duty of fair representation.
Background
Investigation of the charge revealed the following information. CSEA is the exclusive
representative of the classified employees of the Washington Unified School District (District).
At all times relevant herein, Ms. Gibson was a CSEA represented bargaining unit employee.
In January 2008, the District notified CSEA that it was planning to "restructure" the work, and
that it would be reducing or eliminating a number of classified unit position in the Spring and
Summer of 2008.
In June 2008, the District laid off approximately 12 classified employees due to lack of funds
and lack of work as determined by the Board of Education. On June 8, 2007, Ms. Gibson was
informed that her Publication Technician position was being reduced in hours for lack of work
and/or lack of funds. 	In response, CSEA filed the following: 	(1) a first-level grievance on
June 14, 2007; (2) a second-level grievance on July 6, 2007; and (3) a third-level grievance on
July 30, 2007. CSEA also communicated on numerous occasions with the District, objecting
to all of the layoffs and reduction of hours.
On July 16, 2007, CSEA filed Unfair Practice Charge Case No. SA-CE-2427-E alleging,
among other things, that the District took unilateral action with regard to: (1) layoffs and
reduced hours of bargaining unit employees; and (2) subcontracting out printing services
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-544-E
November 3, 2008
Page 2
traditionally performed by Ms. Gibson's job classification (i.e., publication technician) to
private third parties.
On November 28, 2007, the General Counsel
of
PERB issued a complaint against the District.
The District filed an answer to the complaint. PERB held an informal settlement conference
on January 15, 2008, but the case was not settled. The matter was scheduled for formal .
h eanng. 2	.
On January 2008, the District and CSEA drafted an "Agreement with CSEA to Settle
Litigation" (ATS). The ATS provided in relevant part that the parties agreed to the following:
A. 	The Board will take action to abolish the Publication
Technician position. Kimy Gibson will be issued a
layoff notice to be effective June 20, 2008. 	[Ms.]
Gibson will continue to work 3 hours per day until the
layoff is effective. Ms. Gibson may exercise any
bumping rights she may hold. She shall have all re-
employment rights pursuant to CSEA contract sections
20.16-20.19.
B.	
[Ms.] Gibson will receive back pay for the difference
between her former salary at
12
months/8 hours per day
and her current salary for
10
months/3 hours per day
retroactive to her layoff date summer 2007 and forward
until date
of
settlement
of
2007-2008 CSEA negotiations
(January 30, 2008) less statutory payroll deductions.
This backpay shall be reduced by the amount
of
wages
already paid by the [D]istrict for extra hours worked by
[Ms.] Gibson prior to January 30 (approximately 45
hours).
C. 	[Ms.] Gibson will receive back pay for the difference in
district health benefits contribution between 12 months/8
hour per day position and 10 months/3 hour per day
position retroactive to her layoff date summer 2007 and
forward until date
of
settlement
of
2007-2008 CSEA
negotiations.
D. 	[Ms.] Gibson will receive prorated sick leave and
vacation credit for the difference between 12 months/8
hours per day and 10 months/3 hours per day for the
same period as backpay.
A formal hearing was not held in this matter. PERB records show that on February 25,
2008, the charge was withdrawn and the formal hearing was removed from PERB's calendar.

SA-CO-544-E
November 3, 2008
Page 3
E. 	The District will apply to PERS to make employer
retirement contributions on behalf
of
[Ms.] Gibson for
the amount
of
backpay awarded for the period
of
backpay. PERS shall make the final determination as to
whether retirement credit is aiiowabie.
If
retirement
credit is denied, [Ms.] Gibson shall be refunded her
payroll deductions for the additional employee PERS
contribution for the back pay amount.
F. 	[Ms.] Gibson will receive a [D]istrict contribution toward
health benefits for two (2) additional months after the
effective date
of
her layoff pursuant to CSEA contract
section 20.23.
G.	
On January 23, 2008[,] the [D]istrict and CSEA settled
the grievance related to [Ms.] Gibson's letter
of
concern
and the case is closed.
H. 	All documents in [Ms.] Gibson's personnel file and in
any other [D]istrict files which do not relate to
employment application, payment
of
salary, evaluations
or attendance and leaves
of
absence shall be removed
and destroyed. The removal and destruction shall take
place with [Ms.] Gibson and a CSEA representative
present.
I.	
CSEA shall withdraw the following grievances/appeals
with prejudice: Gibson Re-class Appeal (December 2005
request-in abeyance); Gibson Extra Hours grievance
(filed 11/2/07 	Bogue hearing date not set yet); Gibson
Letter
of
Concern grievance (filed August 16, 2007 - J.
Henderson January 30, 2008 hearing).
J. 	CSEA shall withdraw with prejudice the unfair practice
[C]ase [No.] SA-CE-2427[-]E (filed July 16, 2007)[.]
K. 	CSEA will withdraw with prejudice the Effects
of
Layoff grievance (filed June 15, 2007 - pending decision
by arbitrator John Kagel).
	If
the decision is issued by
the arbitrator prior to ratification of the settlement, both
parties agree the decision will be disregarded and the
original grievance withdrawn. In the future[,] the
District agrees to comply with section 20.3 and provide a

SA-CO-544-E
November 3, 2008
Page 4
written explanation to CSEA for each unit position
proposed to be eliminated or hours reduced.
L. 	CSEA agrees to dismiss the below listed
grievances/unfair practice charges with prejudice:
1. Unfair Practice Charge [Case No.]
SA-CE-2427[-]E.
2. K. Gibson 2005-2006 Reclass
Appeal (appeal
of
December 2005
relcass [sic] request).
3. K. Gibson Extra Hours Grievance.
4. CSEA Grievance re Effects of
Layoff.
[Emphasis in original.]
In January 2008, the District and CSEA also drafted a "Tentative Agreement To Settle 2007-
2008 Negotiations" (TA) which provided in pertinent part:
As a result
of
good faith negotiation between the parties, the
[District] and CSEA
...
agree to settle 2007-2008 negotiations as
follows:
1.
COMPENSATION: The District shall increase the classified
unit salary schedule by 4.53% retroactive to July
1,
2007.
Employees shall be paid retroactively for salary owing prior to
the date checks are issued. No increase in district health
benefits contribution.
This tentative agreement is subject to ratification by CSEA
and the Board of Education.
On January 28, 2008, the CSEA Executive Board (E-Board) held a meeting to vote on the
ATS. Ms. Gibson was invited to attend, but she was told to arrive at a time later than when the
meeting actually started. When Ms. Gibson arrived for the meeting, it was already in session
and the matters pertaining to the ATS were being discussed by the E-Board members. It is
alleged that at the meeting, the ATS and its connection to the TA were explained to Ms.
Gibson. CSEA President Patrick Shandor, then called for a secret ballot on the ATS and told
Ms. Gibson that she could not vote due to the "conflict of interest (that it was her position that

SA-CO-544-E
November 3, 2008
Page 5
was being abolished, this it was her who was being laid off and that it was the PERB case that
she was involved in and her grievances which were being dismissed with prejudice)."
It is alleged that during the meeting, E-Board members had cast their ballots and gave it to
President Shandor. The charge alleges that President Shandor failed to read the ballots or read
out-loud the "ayes" and "nays" votes to the attendees at the meeting. In addition, the charge
states that President Shandoor did not have anyone "second count" the ballots to verify the
ballots. President Shandoor stated that the ATS had passed and that he would inform the
District that the ATS was ratified by the E-Board. During the meeting, President Shandor
folded the ballots and placed them in his pocket. Ms. Gibson requested that, per "the usual
practice," the ballots be counted out loud, be verified, and attached to the minutes. However,
President Shandoor refused. The facts in the record also show that Ms. Gibson voiced her
concern that the settlement was unfair, that she wanted CSEA to keep litigating her grievances,
and that she did not want to be laid off.
On January 3 0, 2008, Ms. Gibson was given a copy of the A TS that was jointly executed by
the District and CSEA.
On January 31, 2008, the District executed the TA.
On February 6, CSEA held a ratification vote on the TA for the collective bargaining
agreement.
DISCUSSION
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by EERA section 3544.9 and thereby violated section 3543.6(b).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section ofEERA, 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. it 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:

SA-CO-544-E
November 3, 2008
Page 6
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, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 9,
quoting Rocklin Teachers Professional Association (Romero) (1980) PERB Decision No. 124;
emphasis in original.)
I. CSEA's Alleged Action of"Tying" the ATS Agreement to the TA
It is alleged that CSEA and the District agreed that the terms of the TA were made contingent
upon the parties reaching the A TS agreement. It is also alleged that "if CSEA had not tied the
[ATS] onto the [TA], unit members would have received, at the most a 2.53% raise (instead of
the 4.53%, with the District saying it would need to keep the other 2% to help cover the legal
fees in dealing with the pending litigation cases)." Charging Party argues this conducts
violates CSEA.' s duty of fair representation to Ms. Gibson.
The facts in the record demonstrate that CSEA handled the contract negotiations separately
from the ATS. The ATS was approved by the E-Board on January 29, 2008, while the TA was
ratified on February 6, 2008, wherein the chapter voted to approve the TA. However, even
assuming that the agreement on the TA was "tied" to CSEA's approval of the ATS, the charge
fails to demonstrate a prima facie violation of the duty of fair representation for the reasons set
forth below.
As a general rule, an exclusive representative enjoys a wide range of bargaining discretion. As
the U.S. Supreme Court has noted:
Inevitably differences arise in the manner and degree to which the
terms of any negotiated agreement affect individual employees and
classes of employees. The mere existence of such differences does
not make them invalid. The complete satisfaction of all who are
represented is hardly to be expected. A wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents, subject always to
complete good faith and honesty of purpose in the exercise of its
discretion.
(Ford Motor Co. v. Huffman (1953) 345 U.S. 330, 338; see Redlands Teachers
Association (1978) PERB Decision No. 72.)
Acknowledging the need for such discretion in negotiations, PERB has enunciated a test for
breach of the fair representation duty in matters of contract negotiations which will "insure that

SA-CO-544-E
November 3, 2008
Page 7
the bargaining agent, faced with the impossible task
of
pleasing all the people all
of
the time, is
afforded a broad range
of
discretion and latitude":
A union's duty to fairly represent employees during negotiations
does not encompass an obligation to negotiate any particular item
and,
in
this case,
the
Charging
Party has
failed
to
demonstrate
that
the Association's failure to negotiate benefits violated any
affirmative duty it owed to the unit members. A prima facie case
alleging arbitrary conduct
...
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.
(Rocklin Teachers Professional Association, supra, PERB Decision No. 124, citing DeArroyo
v.
Sindicato de Trabaj adores Packing., AFL-CIO (1st Cir. 1970) 425 F .2d 281, cert. denied, 400
U.S. 877 (1970).)
Applying this test in Mount Diablo Education Association (1984) PERB Decision No. 422
(Mount Diab lo), PERB dismissed a charge that the union had breached its representation duty by
negotiating a contractual provision which eliminated a prior practice that had benefited a small
number
of
unit employees in favor
of
a new practice that benefited a larger number
of
employees. While a union may not make a negotiating decision "solely for the benefit
of
a
stronger, more politically favored group," PERB held that the existence
of
a rational basis would
permit the negotiating
of
the disputed change. (Ibid.; see also Service Employees International
Union Local 250 (Stewart) (2004) PERB Decision No. 1610-M [negotiation
of
contract
agreement that increased starting salary
of
newly hired mental health workers did not breach
duty
of
fair representation even though incumbent employees did not receive commensurate
salary increase]; United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision
No. 1453, adopting ALJ proposed decision; Riverside County Office Teachers Association,
CTA/NEA (McAlpine, et al.) (2000) PERB Decision No. 1401 [contract agreement which
reduced stipend
of
special education teachers while increasing salaries
of
other employees did
not breach duty of fair representation where union offered rationale basis for agreement].)
In general, PERB has held that because a union enjoys wide latitude in contract negotiations, it is
not required to satisfy all union members, is not barred from making an agreement that has an
unfavorable effect on some union members, and is not obligated to bargain an item that will
benefit certain unit members only. (Union
of
American Physicians & Dentists (2006) PERB
Decision No. 1846-S.)
Here, the argument that CSEA "sacrificed" Ms. Gibson in order to obtain better terms for other
bargaining units is insufficient to demonstrate a breach
of
the duty
of
fair representation. As
stated above, CSEA enjoys wide latitude in the representation of its members and courts and
PERB are reluctant to interfere with a union's decisions in representing its members.

SA-C0-544-E
November 3, 2008
Page 8
The facts in the record demonstrate that due to lack of funds and/or lack of work as determined
by the Board of Education of the District, the District took action to layoff and reduce the hours
of approximately 12 bargaining unit employees. Faced with this restructuring and impending
layoffs, CSEA took action and filed a number of contract grievances relating to the District's
action and also filed PERB unfair practice charge No. SA-CE-2427-E objecting to the layoffs.
The Union however, was mindful that the District's prerogative to reduce its operations includes
the authority to identify specific positions in specific locations to be eliminated, and such was not
a negotiable subject. (Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375.) Under this authority,
the District had the ability to layoff bargaining unit employees, including Ms. Gibson. Given
these prospects for challenging an impending layoff, it appears CSEA engaged in a prudent
manner by negotiating the effects of Ms. Gibson's layoff in order to achieve the following
benefit terms for Ms. Gibson, as set forth in the ATS: (1) full-time pay and benefits for seven
and one-half months effective June 20, 2008; (2) compensation totaling $18,000, which includes
salary and benefits as though she had been a full time (8-hour, 12-month employee) from July 2,
3007 to February 19, 2008; (3) two months of additional health insurance after her layoff in June
2008; (4) bumping and reemployment rights; and (5) a clean personnel file. 	Given the above, the
charge fails to demonstrate that CSEA did not have a rational basis or an honest judgment for
executing the ATS. Furthermore, there is no evidence from the charge that the ATS was based
on discrimination since other employees were also subject to layoff or reduction in hours. 	In
achieving this settlement for Ms. Gibson, the facts also fail to raise an inference of negligence or
bad faith.
II. Internal Union Matters
Charging Party argues that CSEA breached its representational duty because it hid the
existence of the A TS from the CSEA membership and the Board of Education, and instead
engaged in "back room dealings" with the District. Charging Party also contends that
President Shandor's action at the E-Board meeting "went well beyond mere negligence or poor
judgment." Specifically, President Shandor' s failure to read the ballots out loud and have
someone else double check to verify the votes constitutes a breach of the duty of fair
representation.
Internal union affairs are largely immune from scrutiny under the duty of fair representation
analysis. 	Under the standard enunciated in Service Employees International Union, Local 99
/Tr• 	,, /-Sr\l""'lr..'\. P"Rr-,,\ .i\..1mmetq \1 'i !'i) · .c 	o 0ec1s1onr--.. 	• • 	'l,.T
r'io. ~r.r
vo, a umon•
i 	1s•
a11oweei11 	J suostantiai1 	• 11
ieeway m•
its•
1foerna1• + 	1
procedures for developing negotiations strategy, selecting of a negotiations team, and final
contract ratification.
The facts in the record demonstrate that Ms. Gibson had an opportunity to address the E-Board
and request that CSEA continue to litigate her grievances. Further, as described above, this
matter involves an internal union matter that grants CSEA broad discretion in determining how
to proceed during E-Board meetings. Even if CSEA did not follow formal procedures for
ratifying the A TS, such does not constitute a per se breach of the duty of fair representation.
(See Kem High Faculty Association, CTA/NEA (Maaskant) (2007) PERB Decision No. 1885.)

SA-CO-544-E
November 3, 2008
Page 9
Therefore, even assuming the A
TS
was not revealed to Ms. Gibson prior to its ratification by
the E-Board, the charge fails to demonstrate that CSEA breached its duty
of
fair representation.
III. CSEA's Withdrawal
of
Meritorious Grievances
Charging Party lays out, in extensive detail and through examples, Charging Party's conviction
that the grievances 3 CSEA filed on behalf
of
Ms. Gibson had merit. Charging Party contends
that CSEA's withdrawal
of
these alleged meritorious grievances pursuant to an agreement with
the District constitutes a breach
of
CSEA' s duty
of
fair representation to Ms. Gibson.
When a union withdraws a meritorious grievance, it is not the sole determinant for inferring a
breach
of
its representational duty. Generally, PERB will dismiss charges that the duty
of
fair
representation has been breached by refusal to pursue a grievance
if
a union has made an
honest, reasonable determination that the grievance lacks merit. (Service Employees
International Union Local 616 (Jeffers) (2004) PERB Decision No. 1675-M.) In analyzing
whether an "honest judgment" has been made, PERB does not judge whether the union's
assessment was "correct," but only whether that judgment had a rational basis, or was reached
for reasons that were arbitrary or based upon invidious discrimination." (International Union
of
Operating Engineers, Local 39 (Siroky) (2004) PERB Decision No. 1618-M.) In addition,
PERB has held that a union has a wide range
of
reasonableness in which to represent
employees, even
if
not kindly disposed to the grievant. (United Teachers
of
Los Angeles
(Valadez, et al.) (2001) PERB Decision No. 1453.)
Here, it appears CSEA's decision to withdraw the grievances was reasonable and based on a
rational basis, since CSEA in consideration
of
withdrawing the grievances reached a settlement
agreement (i.e. the ATS) for Ms. Gibson with favorable terms. Furthermore, there are no facts
in the charge to demonstrate that had CSEA pursued the grievances in this matter, Ms. Gibson
would have recovered benefits above and beyond those which she received pursuant to her
contract.
Therefore, the charge fails to demonstrate that CSEA's conduct was arbitrary, discriminatory
or in bad faith.
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, 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
In particular, Charging Party discusses the grievances related to: (1) the District's
decision to partially layoff Ms. Gibson; and (2) the adjustment's to Ms. Gibson's work hours.
These grievances are addressed in the ATS.

SA-CO-544-E
November 3, 2008
Page 10
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 or withdrawal
is
not filed on or before November 13, 2008,
PERB will dismiss your charge.
If
you have any questions, please call me at the above
telephoi1e number.
Sincerely,
Yaron Partovi
Regional Attorney
yp