PERB Decision No. 2133E•United Faculty of Grossmont-Cuyamaca Community College District (Tarvin) (PERB 2133E)
United Faculty of Grossmont-Cuyamaca Community College District (Tarvin) (PERB 2133E)
PERB Decision No. 2133ECalperb21.09.2010
Gesamter Gesetzestext
STATE OF CALIFORNIA STATE OF CALIFORNIA DECISION OF THE DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD PUBLIC EMPLOYMENT RELATIONS BOARD JAMES FREDERICK TARVIN, JAMES FREDERICK TARVIN, Charging Party, Charging Party, v V.. UNITED FACULTY OF GROSSMONT- UNITED FACULTY OF GROSSMONT- CUYAMACA COMMUNITY COLLEGE CUYAMACA COMMUNITY COLLEGE DISTRICT, DISTRICT, Respondent. Respondent. Case No. LA-CO-1361-E Case No. LA-CO-1361-E PERB Decision No. 2133 PERE Decision No. 2133 September 21, 2010 September 21, 2010 Appearance: Appearance: James Frederick Tarvin, on his own behalf. James Frederick Tarvin, on his own behalf. Before Dowdin Calvillo, Chair; McKeag and Wesley, Members. Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members. DECISION DECISION c T McKEAG, Member: This case comes before the Public Employment Relations Board McKEAG, Member: This case comes before the Public Employment Relations Board (PERB or Board) on appeal by James Frederick Tarvin (Tarvin) of a dismissal (attached) of an (PERB or Board) on appeal by James Frederick Tarvin (Tarvin) of a dismissal (attached) of an unfair practice charge by a Board agent The charge alleged that the United Faculty of unfair practice charge by a Board agent. The charge alleged that the United Faculty of Grossmont-Cuyamaca Community College District (United Faculty) violated the Educational Grossmont-Cuyamaca Community College District (United Faculty) violated the Educational Employment Relations Act (EERA)1 by failing to adequately represent Tarvin in the grievance Employment Relations Act (EERA)' by failing to adequately represent Tarvin in the grievance process. Tarvin alleged that this conduct constituted a breach of the duty of fair representation process. Tarvin alleged that this conduct constituted a breach of the duty of fair representation in violation of EERA sections 3543.6(b) and 3544.9. in violation of EERA sections 3543.6(b) and 3544.9. factsThe Board agent found that Tarvin failed to plead sufficient facts to demonstrate the The Board agent found that Tarvin failed to plead sufficient to demonstrate the charge was timely. In addition, the Board agent found that even if the charge was timely, harge was timely. In addition, the Board agent found that even if the charge was timely, Tarvin failed to plead sufficient facts to demonstrate that United Faculty breached its duty of arvin failed to plead sufficient facts to demonstrate that United Faculty breached its duty of 1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. all statutory references herein are to the Government Code.
2 fair representation. Accordingly, the Board agent dismissed the charge for failure to establish fair representation. Accordingly, the Board agent dismissed the charge for failure to establish a prima facie case. a prima facie case. theWe have reviewed the entire record in this matter and find the warning and dismissal We have reviewed the entire record in this matter and find warning and dismissal letters were well-reasoned, adequately supported by the record and in accordance with letters were well-reasoned, adequately supported by the record and in accordance with applicable law. Accordingly, we adopt the warning and dismissal letters as a decision of the applicable law. Accordingly, we adopt the warning and dismissal letters as a decision of the Board itself, subject to the following discussion regarding Tarvin's appeal. Board itself, subject to the following discussion regarding Tarvin's appeal. DISCUSSION DISCUSSION p 32635(b PERB Regulation 32635(b) PERB Regulation )2 provides: "Unless good cause is shown, a charging party rovides: "Unless good cause is shown, a charging party may not present on appeal new charge allegations or new supporting evidence." (See, e.g., may not present on appeal new charge allegations or new supporting evidence." (See, e.g., Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School (2002) PERB Decision No. 1486.) The purpose of this regulation "is to require theDistrict (2002) PERB Decision No. 1486.) The purpose of this regulation "is to require the District charging party to present its allegations and supporting evidence to the Board agent in the first charging party to present its allegations and supporting evidence to the Board agent in the first instance, so that the Board agent can fully investigate the charge prior to deciding whether to instance, so that the Board agent can fully investigate the charge prior to deciding whether to issue a complaint or dismiss the case." (South San Francisco Unified School District (1990) issue a complaint or dismiss the case." (South San Francisco Unified School District (1990) PERB Decision No. 830.) PERB Decision No. 830.) Relevant to the instant appeal, the Board has denied finding good cause to consider Relevant to the instant appeal, the Board has denied finding good cause to consider new allegations presented on appeal when the evidence underlying the allegations was new allegations presented on appeal when the evidence underlying the allegations was available to the charging party prior to the dismissal of the charge and the appeal fails to available to the charging party prior to the dismissal of the charge and the appeal fails to explain vv1~1:y tl1e allegations could not l1ave been rr1ade to the Board ager1t during the explain why the allegations could not have been made to the Board agent during the investigation. (See e.g., California School Employees Association & its Chapter 183 investigation. (See e.g., California School Employees Association & its Chapter 183 PERB regulations are codified at California Code of Regulations, title 8,PERB regulations are codified at California Code of Regulations, title 8, ssec ection 31001, et seq. tion 3 1001, et seq. 2
3 (Richards) (2004) PERB Decision No. 1716; University of California (Lawrence Berkeley Richards) (2004) PERB Decision No. 1716; University of California (Lawrence Berkeley Laboratory) (1993) PERB Decision No. 998-H.) Laboratory) (I 993) PERB Decision No. 998-H.) Here, Tarvin's appeal contains a myriad of new facts and allegations. The timeframeHere, Tarvin's appeal contains a myriad of new facts and allegations. The timeframe for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter vvas for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter was issued on January 8, 2009, these allegations clearly predate the dismissal, and there is issued on January 8, 2009, these allegations clearly predate the dismissal, and there is nothing in the record to suggest they were not known to Tarvin prior to the dismissal of hisnothing in the record to suggest they were not known to Tarvin prior to the dismissal of his charge. Tarvin's appeal fails to explain why this new evidence could not have been charge. Tarvin's appeal fails to explain why this new evidence could not have been presented to the Board agent prior to the dismissal of his charge. Accordingly, since Tarvin presented to the Board agent prior to the dismissal of his charge. Accordingly, since Tarvin knew of this information prior to the issuance of the dismissal, we do not find good cause to knew of this information prior to the issuance of the dismissal, we do not find good cause to consider Tarvin' s new evidence and aliegations on appeal. ( Coalition of Universityconsider Tarvin's new evidence and allegations on appeal. (Coalition of University Employees (Hall) (2010) PERB Decision No. 2095-H.) Employees (Hall) (2010) PERB Decision No. 2095-H.) fileIn his appeal, Tarvin claims he should be excused from failing to file an amended In his appeal, Tarvin claims he should be excused from failing to an amended charge because he is not a lawyer, and he is unfamiliar with PERB process. The Board, charge because he is not a lawyer, and he is unfamiliar with PERB process. The Board, however, has ruled that ignorance of the law is no excuse and, therefore, insufficient tohowever, has ruled that ignorance of the law is no excuse and, therefore, insufficient to warrant a finding of good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB warrant a finding of good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB Decision No. 1780-M.) Decision No. 1780-M.) Last, Tarvin claims he should be excused from failing to file an amended chargeLast, Tarvin claims he should be excused from failing to file an amended charge because the warning letter was issued during the holiday season. Notwithstanding this barebecause the warning letter was issued during the holiday season. Notwithstanding this bare assertion, the charge fails to explain how the timing of the issuance of the warning letter assertion, the charge fails to explain how the timing of the issuance of the warning letter precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not warrant a finding of good cause. warrant a finding of good cause. 3
we Based on the foregoing, we do not find good cause to consider Tarvin's new Based on the foregoing, do not find good cause to consider Tarvin's new allegations and new supporting evidence and, therefore, do not consider this new information allegations and new supporting evidence and, therefore, do not consider this new information in adopting the warning and dismissal letters as a decision of the Hoard itself.in adopting the warning and dismissal letters as a decision of the Board itself. ORDER ORDER 4 The unfair practice charge in Case No. LA-C0-1361-E is hereby DISMISSEDThe unfair practice charge in Case No. LA-CO-1361-E is hereby DISMISSED WITHOUT LEAVE TO AMEND. WITHOUT LEA VE TO AMEND. Calvillo Chair Dowdin Calvillo and Member Wesley joined in this Decision. Chair Dowdin and Member Wesley joined in this Decision. 4
STATE OF CALIFORNIA STATE OF CALIFORNIA Governor ARNOLD SCHWARZENEGGER, Governor ARNOLD SCHWARZENEGGER, PUBLIC EMPLOYMENT RELATIONS BOARD PUBLIC EMPLOYMENT RELATIONS BOARD Los Angeles Regional Office Los Angeles Regional Office 3530 Wilshire Blud., Suite 1435 3530 Wilshire Blvd., Suite 1435 Los Angeles, CA 90010-2334 Los Angeles, CA 90010-2334 Telephone: (213) 736-7697 Telephone: (213) 736-7697 Fax: (213) 736-4901 Fax: (213) 736-4901 January 8, 2009 January 8, 2009 James Frederick Tarvin James Frederick Tarvin Re: College Re: James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College District District Unfair Practice Charge No. LA-CO-1361-E Unfair Practice Charge No. LA-CO-1361-E DISMISSAL LETTER DISMISSAL LETTER Dear Mr. Tarvin: Dear Mr. Tarvin: The above-referenced unfair practice charge was filed with the Public Employment Relations The above-referenced unfair practice charge was filed with the Public Employment Relations Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Charging Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) Employment Relations Act (EERA)' by breaching its duty of fair representation. Employment Relations Act (EERA) 1 by breaching its duty of fair representation. Charging Party was informed in the attached Warning Letter dated December 15, 2008, that Charging Party was informed in the attached Warning Letter dated December 15, 2008, that the above-referenced charge did not state a prima facie case. Tarvin was advised that, if there the above-referenced charge did not state a prima facie case. Tarvin was advised that, if there were any factual inaccuracies or additional facts that would correct the deficiencies explained were any factual inaccuracies or additional facts that would correct the deficiencies explained in that letter, Tarvin should amend the charge. Tarvin was further advised that, unless hein that letter, Tarvin should amend the charge. Tarvin was further advised that, unless he amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the charge charge would be dismissed. would be dismissed. undersigned message his On January 5, 2009, the undersigned left a voice-mail message with Tarvin to confirm his On January 5, 2009, the left a voice-mail with Tarvin to confirm receipt of the December 15, 2008 Warning Letter. On January 7, 2009, Tarvin spoke withreceipt of the December 15, 2008 Warning Letter. On January 7, 2009, Tarvin spoke with Sean McKee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter andSean Mckee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter and his understanding that because he did not file an amended charge within the prescribed time, his understanding that because he did not file an amended charge within the prescribed time, his case would be dismissed. Accordingly, the above-referenced unfair practice charge is his case would be dismissed. Accordingly, the above-referenced unfair practice charge is hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter. hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter. 1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and EERA is codified at Government Code section 3540 et seq. The text of the EERA and the Board's Regulations may be found on the Internet at the Board's Regulations may be found on the Internet at wwww.perb.ca.gov ww.perb.ca.gov ..
LA-CO-1361-E LA-CO-1361-E January 8, 2009 January 8, 2009 Page 2 Page 2 Right to Appeal Right to Appeal Pursuant to PERE Regulations,2 Charging Party may obtain a review of this dismissal of the Pursuant to PERB Regulations, " 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 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 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 contain the case name and number, and the original and five (5) copies of all documents must be provided to the Board. must be provided to the Board. A A document is considered "filed" when actually received during a regular PERB business day. 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, (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 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 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 of PERE 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, 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.) secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.) The Board's address is: The Board's address is: Public Employment Relations Board Public Employment Relations Board Attention: Appeals Assistant Attention: Appeals Assistant 1031 18th Street 1031 18th Street Sacramento, CA 95811-4124 Sacramento, CA 95811-4124 (916) 322-8231 (916) 322-8231 FAX: (916) 327-7960 FAX: (916) 327-7960 If Tarvin files a timely appeal of the refusal to issue a complaint, any other party may file with If Tarvin files 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 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).) days following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b ). ) Service Service All documents authorized to be filed herein must also be "served" upon all parties to the 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 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 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 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 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. may also be concmrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs, tit. 8, sec .. 32135(c).) (Cal. Code Regs, tit. 8, sec. 32135(c).) 2 PERB's Regulations are codified at California Code of Regulations, title 8, section PERB 's Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 2 1001 et seq. 3
LA-CO-1361-E LA-CO-1361-E January 8, 2009 January 8, 2009 Page 3 Page 3 Extension of Time Extension of Time A request for an extension of time, in which to file a document with the Board itself, must be A request for an extension of time, in which to file a document with the Board itself, must be in writing and filed with the Board at the previously noted address. A request for an extension in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for must be filed at least three (3) calendar days before the expiration of the time required for position of filing the document. The request must indicate good cause for and, if known, the position of filing the document. The request must indicate good cause for and, if known, the each other party regarding the extension, and shall be accompanied by proof of service of the each other party regarding the extension, and shall be accompanied by proof of service of the request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.) request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.) Final Date Final Date If If no appeal is filed within the specified time limits, the dismissal will become final when the no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired time limits have expired. Sincerely, Sincerely, TAMIR. BOGERT TAMI R. BOGERT General General Counsel Counsel By ______________ _ By Truc Nguyen True Nguyen Board Agent Board Agent Attachment Attachment cc: cc: Michael P. Baranic Michael P. Baranic
STATE OF CALIFORNIA STA'iill OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor ARNOLD SCHWARZENEGGER, Governor PUBLIC EMPLOYMENT RELATIONS BOARD PUBLIC EMPLOYMENT RELATIONS BOARD Los Angeles Regional Office Los Angeles Regional Office 3530 Wilshire Blvd., Suite 1435 3530 Wilshire Blvd., Suite 1435 Los Angeles, CA 90010-2334 Los Angeles, CA 90010-2334 Telephone: (213) 736-7697 Telephone: (213) 736-7697 Fax: (213) 736-4901 Fax: (213) 736-4901 PER-B December 15, 2008 December 15, 2008 James Frederick Tarvin James Frederick Tarvin Re: Re: James Frederick Tarvin v, United Faculty of Grossmont-Cuyamaca Community College James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College District District Unfair Unfair Practice Charge No. LA-CO-1361-E Practice Charge No. LA-CO-1361-E WARNING WARNING LETTER LETTER Dear Mr. Tarvin: Dear Mr. Tarvin: was The above-referenced unfair practice charge was filed with the Public Employment Relations The above-referenced unfair practice charge filed with the Public Employment Relations or Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Board (PERB or Board) on November 4, 2008. Mr. J arnes Frederick Tarvin (Tarvin Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College Charging Party) alleges that the United Faculty of Grossrnont-Cuyarnaca Community College or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union Employment Relations Act (EERA)' by breaching its duty of fair representation. Employment Relations Act (EERA) 1 by breaching its duty of fair representation. Background Background Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca Community College (District). The Union is the exclusive representative for the faculty at the Community College (District). The Union is the exclusive representative for the faculty at the District. District. Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed his disability to the District and to the Union. During this time, he did not request his disability to the District and to the Union. During this time, he did not request accommodation for his disability. accommodation for his disability. Upon disclosure of his disability, Tarvin met with the District representatives in a series of Upon disclosure of his disability, Tarvin met with the District representatives in a series of meetings Tarvin refers to as the "interactive process" in order obtain reasonable meetings Tarvin refers to as the "interactive process" in order obtain reasonable accommodation for his disability, According to the charge, the Union did not participate in the accommodation for his disability. According to the charge, the Union did not participate in the "interactive process." Further, the charge also alleges that Tarvin has been "denied access to "interactive process." Further, the charge also alleges that Tarvin has been "denied access to the grieving [sic] process, denied access to union lawyers" by the Union. the grieving [sic] process, denied access to union lawyers" by the Union. 1 EERA is codified at Government Code section 3540 et seq. The text of the BERA and 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 the Board's Regulations may be found on the Internet at www.perb.ca.gov www.perb.ca.gov.,
LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page 2 Page 2 Discussion Discussion I. I. Statute of Limitations Statute of Limitations EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any charge based upon an alleged unfair practice charge based upon an alleged unfair practice occurring more than six months prior to the filing occurring more than six months prior to the filing of of the charge." The limitations period begins to run once the charging party knows, or should the charge." The limitations period begins to run once the charging party knows, or shouldhave known, of the conduct underlying the charge. have known, of the conduct underlying the charge. (Gavilan Joint Community College District (Gavilan Joint Community College District ( 1996) (1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the 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; charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California (Department State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.) The statute of Insurance) (1997) PERB Decision No. 1197-S.) The statute of of limitations has also been raised by the respondent as an affirmative defense in this case. limitations has also been raised by the respondent as an affirmative defense in this case. (Long Long Beach Community College District (2003) PERB Decision No. 1564.) Beach Community College District (2003) PERB Decision No. 1564.) It is not clear from the charge filed whether the charge was timely filed and thus, whether It is not clear from the charge filed whether the charge was timely filed and thus, whether PERB has PERB has jurisdiction over the unfair practice. The charge filed with PERB does not provide jurisdiction over the unfair practice. The charge filed with PERB does not providethe the date of when Tarvin and the District engaged in the "interactive process." Further, the date of when Tarvin and the District engaged in the "interactive process." Further, the charge charge does not provide the dates of when Tarvin was "denied access to the grieving [sic] does not provide the dates of when Tarvin was "denied access to the grieving [sic] process, denied process, denied access to union lawyers." In order to determine whether the alleged unfair access to union lawyers." In order to determine whether the alleged unfairpractice was timely filed, practice was timely filed, the charge must provide dates of when the alleged unfair practice the charge must provide dates of when the alleged unfair practice occurred. occurred. In cases alleging a breach of the duty of fair representation, the six month statutory limitations In cases alleging a breach of the duty of fair representation, the six month statutory limitations period begins to run on the date when the charging party, in the exercise of reasonable diligence, period begins to run on the date when the charging party, in the exercise of reasonable diligence, knew or should have known that further assistance from the union was unlikely. (Los Rios knew or should have known that further assistance from the union was unlikely. (Los Rios College College Federation of Teachers. CFT/AFT (1991) PERB Decision No. 889; United Teachers of Federation of Teachers, CFT/AFT (1991) PERB Decision No. 889; United Teachers ofLos Los Angeles (2001) PERB Decision No. 1441.) Angeles (2001) PERB Decision No. 1441.) However, even if However, even if the charge was timely filed, the Charging Party has not demonstrated that the the charge was timely filed, the Charging Party has not demonstrated that the Union Union has violated the EERA for the following reasons. has violated the EERA for the following reasons. II. II. The Duty to Bargain and Scope of Representation The Duty to Bargain and Scope of Representation Tarvin alleges that the Union breached Tarvin alleges that the Union breached its duty of fair representation. EERA section 3544.9 its duty of fair representation. EERA section 3544.9 expressly imposes a expressly imposes a statutory duty of fair representation upon employee organizations, statutory duty of fair representation upon employee organizations, providing th'.'lt· providing that: [t]he employee [t]he employee organization recognized or certified as exclusive organization recognized or certified as exclusive representative for the purpose of meeting and negotiating shall representative for the purpose of meeting and negotiating shall fairly represent each and every employee in the appropriate unit. fairly represent each and every employee in the appropriate unit. In order to state a prima facie In order to state a prima facie violation of this section of EERA, the Charging Party must show violation of this section of EERA, the Charging Party must show that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United Teachers of Los Angeles Teachers of Los Angeles (Collins), the Public Employment Relations Board stated: (Collins), the Public Employment Relations Board stated:
LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page Page 33 Absent bad faith, discrimination, or arbitrary conduct, mere Absent bad faith, discrimination, or arbitrary conduct, mere negligence or poor judgment in handling a grievance does not negligence or poor judgment in handling a grievance does not constitute a breach of the union's duty. [Citations omitted.] constitute a breach of the union's duty. [Citations omitted. ] A union may exercise its discretion A union may exercise its discretion to determine how far to to determine how far to pursue a grievance in the employee's behalf as long as it does not pursue a grievance in the employee's behalf as long as it does not arbitrarily ignore a meritorious grievance or process a grievance arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory fashion. A union is also not required to process in a perfunctory fashion. A union is also not required to process an employee's grievance if the chances for success are minimal. an employee's grievance if the chances for success are minimal. With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed 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 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 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 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. 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 Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.) Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.) A. A. Duty to Union to Engage in the "Interactive Process" Duty to Union to Engage in the "Interactive Process" Tarvin alleges that the Union breached its duty of fair representation by refraining from Tarvin alleges that the Union breached its duty of fair representation by refraining from participation in the so-called "interactive process." Respondent asserts that the "interactive participation in the so-called "interactive process." Respondent asserts that the "interactive process" regarding accommodation of an employee's disability is a component of the Fair process" regarding accommodation of an employee's disability is a component of the Fair Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair representation. representation. The duty of fair representation extends to grievance handling. (Fremont Teachers Association The duty of fair representation extends to grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) However, the Board has long held that the duty of fair PERB Decision No. 258.) However, the Board has long held that the duty of fair representation is limited to contractually-based remedies under the union's exclusive control. representation is limited to contractually-based remedies under the union's exclusive control. (Capistrano Unified Education Association, CTA/NEA (La Marca) (2001) PERB Decision (Capistrano Unified Education Association. CTA/NEA (La Marca) (2001) PERB Decision No. No. 1422.) Accordingly, the duty of fair representation does not attach to an exclusive 1422.) Accordingly, the duty of fair representation does not attach to an exclusive representative in extra-contractual proceedings before agencies such as the Department of Fair representative in extra-contractual proceedings before agencies such as the Department of Fair Employment and Housing or the State Personnel Board. (California State Employees Employment and Housing or the State Personnel Board. (California State Employees Association (Carrillo) (1997) PERB Decision No. 1199-S; California Union of Safety Association (Can-illo) (1997) PERB Decision No. 1199-S; California Union of Safety Employees (John) (1994) PERB Decision No. 1064-S; see also SEITJ Local 790 (Hein) (2004) Employees (John) (1994) PERB Decision No. 1064-S; see also SEIU Local 790 (Hein) (2004) PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a civil service commission or in an ADA action).) civil service commission or in an ADA action).) As stated above, the duty of fair representation is limited to contractually-based remedies As stated above, the duty of fair representation is limited to contractually-based remedies under the exclusive control of the Union. In this case, Tarvin, has not specified the terms of under the exclusive control of the Union. In this case, Tarvin, has not specified the terms of the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the collective bargaining agreement addresses violations under the FEHA or that the "interactive collective bargaining agreement addresses violations under the FEHA or that the "interactive process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does not establish that the Union possesses exclusive control over the "interactive process" and that not establish that the Union possesses exclusive control over the "interactive process" and that
LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page 4 Page 4 the Union breached its duty of fair representation by its lack of participation in the "interactive the Union breached its duty of fair representation by its lack of participation in the "interactive process." process." E. B. Duty of Union to Provide Access to Grievance Process Duty of Union to Provide Access to Grievance Process In order to state a prima facie case of arbitrary conduct violating the duty of fair representatio In order to state a prima facie case of arbitrary conduct violating the duty of fair representati a Charging Party a Charging Party must at a minimum include an assertion of sufficient facts from which it must at a minimum include an assertion of sufficient facts from which it becomes becomes apparent how or in what manner the exclusive representative's action or inaction wa apparent how or in what manner the exclusive representative's action or inaction w without without a rational basis or devoid of honest judgment. (Reed District Teachers Association, 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 CTA/NEA (Reyes) (1983) PERE Decision No. 332, p. 9, quoting Rocklin Teachers Professional Professional Association (Romero) (1980) PERB Decision No. 124; emphasis in original.) Association (Romero) (1980) PERE Decision No. 124; emphasis in original.) n, on, sas 2 equires, inter alia, that an unfair practice charge requires, inter alia, that an unfair practice charge include a "clear and concise statement of the facts and conduct alleged to constitute an unfair include a "clear and concise statement of the facts and conduct alleged to constitute an unfair practice." The Charging Party's burden includes alleging the "who, what, when, where and practice." The Charging Party's burden includes alleging the "who, what, when, where andhow" of an unfair practice. how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994) (State of California (Department of Food and Agriculture) ( 1994) PERE Decision PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.) (Ibid.; Charter Oak Unified School District (1991) PERE Decision No. 873.) In addition, PERB Regulation 32615(a)(5) In addition, PERE Regulation 32615(a)(5" r ) In In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how the the Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).) Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).) Tarvin has not provided facts as to what he requested from the Union, when he made the Tarvin has not provided facts as to what he requested from the Union, when he made the request request and how his request was related to the grievance process. (State of California and how his request was related to the grievance process. (State of California (Department of Food and Agriculture), (Department of Food and Agriculture), supra, PERB Decision No. 1071-S.) Instead, Tarvin supra, PERB Decision No. 1071-S.) Instead, Tarvinhas only has only stated he was denied access to the grievance process. The instant charge fails to stated he was denied access to the grievance process. The instant charge fails to provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily, or in provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily, or in bad faith bad faith by denying him access to the grievance process. (Reed District Teachers by denying him access to t11e grievance process. (Reed District Teachers Association, CTA/NEA Association, CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has asserted a mere (Reyes), supra, PERE Decision No. 332.) Tarvin has asserted a mere legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School District, District, supra, PERB Decision No. 873.) supra, PERB Decision No. 873.) C. C. Duty of Union to Provide Access to Lawyers Duty of Union to Provide Access to Lawyers As stated above, the Charging Party has the burden of providing at minimum, sufficient facts As stated above, the Charging Party has the burden of providing at minimum, sufficient facts to determine in to determine in what manner the exclusive representative's action or inaction was without a Vv'hat 1nanner the c1~clusive represe11tati-ve' s actio11 or ir1actiori \Vas vvitl1out a rational basis or devoid of honest judgment. (Reed District Teachers Association, CTA/NEA rational basis or devoid of honest judgment. (Reed District Teachers Association, CT AJNEA (Reyes), (Reyes), supra, PERB Decision No. 332.) supra, PERB Decision No. 332.) In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how the Union denied him access to union lawyers. (Reed District Teachers Association, the Union denied him access to union lawyers. (Reed District Teachers Association, 2 PERB's Regulations are codified at California Code of Regulations, title 8, section PERE' s Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 31001 et seq. (
LA-CO-1361-E LA-C0-1361-E December 15, 2008 December 15, 2008 Page 5 Page 5 CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he made a CT A/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he made a request for a lawyer and that the Union has denied a request to have a union provided lawyer. request for a lawyer and that the Union has denied a request to have a union provided lawyer. Even assuming the duty of representation includes some responsibility Even assuming the duty of representation includes some responsibility to provide Tarvin with to provide Tarvin with legal representation, Tarvin does not establish that the Union's decision not to do so in this legal representation, Tarvin does not establish that the Union's decision not to do so in this case was arbitrary, discriminatory or made in bad faith. Tarvin has only stated he was denied case was arbitrary, discriminatory or made in bad faith. Tarvin has only stated he was denied ar-cess access to lawyers; which is a mere legal conclusion that is insufficient to state a prima facie ...., tr. 1..V 1.1 annrPrC'' vt JY.1.iJ' nrl,1'ch VVJ...1. .1. 1·s a mprp J..V.1.V ]p(Tal .1.v5 conclus1'on i. th \....LJ.. atl- 'S J.. 1J.J..1. "'suff1'c1'ent J.. .1.l- tr. LV ,.:>1.,UL,V c-te>tP a nrima _tJJ...1. far-iP -.l- case. (Charter Oak Unified School District, supra, PERB Decision No. 873.) ease. (Charter Oak Unified School District, supra, PERB Decision No. 873.) For these reasons For these reasons the charge, as presently written, does not state a prima facie case. If there the charge, as presently written, does not state a prima facie case. If there are any factual inaccuracies in this letter are any factual inaccuracies in this letter or additional facts that would correct the deficiencies or additional facts that would correct the deficiencies explained above, Charging Party may amend the charge. explained above, Charging Party may amend the charge. The amended charge should be The amended charge should be prepared on a standard PERB unfair practice charge prepared on a standard PERB unfair practice charge form, clearly labeled First Amended form, clearly labeled First Amended Charge, contain all the facts and allegations you wish to make, and be signed under penalty of 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 perjury by an authorized agent of Charging Party. The amended charge must have the case number written on the number written on the top right hand corner of the charge form. The amended charge must be top right hand corner of the charge form. The amended charge must be served on the served on the Respondent's representative and the original proof of service must be filed with Respondent's representative and the original proof of service must be filed with PERB. If an amended charge or PERB. If an amended charge or withdrawal is not filed on or before December 24, 2008, withdrawal is not filed on or before December 24, 2008, PERB will dismiss your charge. If you have any questions, please call me at the above PERB will dismiss your charge. If you have any questions, please call me at the above telephone number. telephone number. Sincerely, Sincerely, Truc Nguyen True Nguy<tJ.,f. Board Agent Board Agent TN TN
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STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD JAMES FREDERICK TARVIN, Charging Party, Case No. LA-CO-1361-E V. PERB Decision No, 2133 UNITED FACULTY OF GROSSMONT- September 21, 2010 CUYAMACA COMMUNITY COLLEGE DISTRICT, Respondent. Appearance: James Frederick Tarvin, on his own behalf. Before Dowdin Calvillo, Chair; McKeag and Wesley, Members. DECISION McKEAG, Member: This case comes before the Public Employment Relations Board (PERB or Board) on appeal by James Frederick Tarvin (Tarvin) of a dismissal (attached) of an unfair practice charge by a Board agent. The charge alleged that the United Faculty of Grossmont-Cuyamaca Community College District (United Faculty) violated the Educational Employment Relations Act (EERA)! by failing to adequately represent Tarvin in the grievance process. Tarvin alleged that this conduct constituted a breach of the duty of fair representation in violation of EERA sections 3543.6(b) and 3544.9. The Board agent found that Tarvin failed to plead sufficient facts to demonstrate the charge was timely. In addition, the Board agent found that even if the charge was timely, Tarvin failed to plead sufficient facts to demonstrate that United Faculty breached its duty of ' BRERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. 2 fair representation. Accordingly, the Board agent dismissed the charge for failure to establish fair representation. Accordingly, the Board agent dismissed the charge for failure to establish a prima facie case. a prima facie case. theWe have reviewed the entire record in this matter and find the warning and dismissal We have reviewed the entire record in this matter and find warning and dismissal letters were well-reasoned, adequately supported by the record and in accordance with letters were well-reasoned, adequately supported by the record and in accordance with applicable law. Accordingly, we adopt the warning and dismissal letters as a decision of the applicable law. Accordingly, we adopt the warning and dismissal letters as a decision of the Board itself, subject to the following discussion regarding Tarvin's appeal. Board itself, subject to the following discussion regarding Tarvin's appeal. DISCUSSION DISCUSSION p 32635(b PERB Regulation 32635(b) PERB Regulation )2 provides: "Unless good cause is shown, a charging party rovides: "Unless good cause is shown, a charging party may not present on appeal new charge allegations or new supporting evidence." (See, e.g., may not present on appeal new charge allegations or new supporting evidence." (See, e.g., Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School (2002) PERB Decision No. 1486.) The purpose of this regulation "is to require theDistrict (2002) PERB Decision No. 1486.) The purpose of this regulation "is to require the District charging party to present its allegations and supporting evidence to the Board agent in the first charging party to present its allegations and supporting evidence to the Board agent in the first instance, so that the Board agent can fully investigate the charge prior to deciding whether to instance, so that the Board agent can fully investigate the charge prior to deciding whether to issue a complaint or dismiss the case." (South San Francisco Unified School District (1990) issue a complaint or dismiss the case." (South San Francisco Unified School District (1990) PERB Decision No. 830.) PERB Decision No. 830.) Relevant to the instant appeal, the Board has denied finding good cause to consider Relevant to the instant appeal, the Board has denied finding good cause to consider new allegations presented on appeal when the evidence underlying the allegations was new allegations presented on appeal when the evidence underlying the allegations was available to the charging party prior to the dismissal of the charge and the appeal fails to available to the charging party prior to the dismissal of the charge and the appeal fails to explain vv1~1:y tl1e allegations could not l1ave been rr1ade to the Board ager1t during the explain why the allegations could not have been made to the Board agent during the investigation. (See e.g., California School Employees Association & its Chapter 183 investigation. (See e.g., California School Employees Association & its Chapter 183 PERB regulations are codified at California Code of Regulations, title 8,PERB regulations are codified at California Code of Regulations, title 8, ssec ection 31001, et seq. tion 3 1001, et seq. 2 3 (Richards) (2004) PERB Decision No. 1716; University of California (Lawrence Berkeley Richards) (2004) PERB Decision No. 1716; University of California (Lawrence Berkeley Laboratory) (1993) PERB Decision No. 998-H.) Laboratory) (I 993) PERB Decision No. 998-H.) Here, Tarvin's appeal contains a myriad of new facts and allegations. The timeframeHere, Tarvin's appeal contains a myriad of new facts and allegations. The timeframe for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter vvas for this new evidence generally ranges from 2004 to 2008. Because the dismissal letter was issued on January 8, 2009, these allegations clearly predate the dismissal, and there is issued on January 8, 2009, these allegations clearly predate the dismissal, and there is nothing in the record to suggest they were not known to Tarvin prior to the dismissal of hisnothing in the record to suggest they were not known to Tarvin prior to the dismissal of his charge. Tarvin's appeal fails to explain why this new evidence could not have been charge. Tarvin's appeal fails to explain why this new evidence could not have been presented to the Board agent prior to the dismissal of his charge. Accordingly, since Tarvin presented to the Board agent prior to the dismissal of his charge. Accordingly, since Tarvin knew of this information prior to the issuance of the dismissal, we do not find good cause to knew of this information prior to the issuance of the dismissal, we do not find good cause to consider Tarvin' s new evidence and aliegations on appeal. ( Coalition of Universityconsider Tarvin's new evidence and allegations on appeal. (Coalition of University Employees (Hall) (2010) PERB Decision No. 2095-H.) Employees (Hall) (2010) PERB Decision No. 2095-H.) fileIn his appeal, Tarvin claims he should be excused from failing to file an amended In his appeal, Tarvin claims he should be excused from failing to an amended charge because he is not a lawyer, and he is unfamiliar with PERB process. The Board, charge because he is not a lawyer, and he is unfamiliar with PERB process. The Board, however, has ruled that ignorance of the law is no excuse and, therefore, insufficient tohowever, has ruled that ignorance of the law is no excuse and, therefore, insufficient to warrant a finding of good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB warrant a finding of good cause. (Public Employees Union Local 1 (Coleman) (2005) PERB Decision No. 1780-M.) Decision No. 1780-M.) Last, Tarvin claims he should be excused from failing to file an amended chargeLast, Tarvin claims he should be excused from failing to file an amended charge because the warning letter was issued during the holiday season. Notwithstanding this barebecause the warning letter was issued during the holiday season. Notwithstanding this bare assertion, the charge fails to explain how the timing of the issuance of the warning letter assertion, the charge fails to explain how the timing of the issuance of the warning letter precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not precluded Tarvin from timely filing an amended charge. Accordingly, this claim does not warrant a finding of good cause. warrant a finding of good cause. 3 we Based on the foregoing, we do not find good cause to consider Tarvin's new Based on the foregoing, do not find good cause to consider Tarvin's new allegations and new supporting evidence and, therefore, do not consider this new information allegations and new supporting evidence and, therefore, do not consider this new information in adopting the warning and dismissal letters as a decision of the Hoard itself.in adopting the warning and dismissal letters as a decision of the Board itself. ORDER ORDER 4 The unfair practice charge in Case No. LA-C0-1361-E is hereby DISMISSEDThe unfair practice charge in Case No. LA-CO-1361-E is hereby DISMISSED WITHOUT LEAVE TO AMEND. WITHOUT LEA VE TO AMEND. Calvillo Chair Dowdin Calvillo and Member Wesley joined in this Decision. Chair Dowdin and Member Wesley joined in this Decision. 4 STATE OF CALIFORNIA STATE OF CALIFORNIA Governor ARNOLD SCHWARZENEGGER, Governor ARNOLD SCHWARZENEGGER, PUBLIC EMPLOYMENT RELATIONS BOARD PUBLIC EMPLOYMENT RELATIONS BOARD Los Angeles Regional Office Los Angeles Regional Office 3530 Wilshire Blud., Suite 1435 3530 Wilshire Blvd., Suite 1435 Los Angeles, CA 90010-2334 Los Angeles, CA 90010-2334 Telephone: (213) 736-7697 Telephone: (213) 736-7697 Fax: (213) 736-4901 Fax: (213) 736-4901 January 8, 2009 January 8, 2009 James Frederick Tarvin James Frederick Tarvin Re: College Re: James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College District District Unfair Practice Charge No. LA-CO-1361-E Unfair Practice Charge No. LA-CO-1361-E DISMISSAL LETTER DISMISSAL LETTER Dear Mr. Tarvin: Dear Mr. Tarvin: The above-referenced unfair practice charge was filed with the Public Employment Relations The above-referenced unfair practice charge was filed with the Public Employment Relations Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Charging Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) Employment Relations Act (EERA)' by breaching its duty of fair representation. Employment Relations Act (EERA) 1 by breaching its duty of fair representation. Charging Party was informed in the attached Warning Letter dated December 15, 2008, that Charging Party was informed in the attached Warning Letter dated December 15, 2008, that the above-referenced charge did not state a prima facie case. Tarvin was advised that, if there the above-referenced charge did not state a prima facie case. Tarvin was advised that, if there were any factual inaccuracies or additional facts that would correct the deficiencies explained were any factual inaccuracies or additional facts that would correct the deficiencies explained in that letter, Tarvin should amend the charge. Tarvin was further advised that, unless hein that letter, Tarvin should amend the charge. Tarvin was further advised that, unless he amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the amended the charge to state a prima facie case or withdrew it prior to December 24, 2008, the charge charge would be dismissed. would be dismissed. undersigned message his On January 5, 2009, the undersigned left a voice-mail message with Tarvin to confirm his On January 5, 2009, the left a voice-mail with Tarvin to confirm receipt of the December 15, 2008 Warning Letter. On January 7, 2009, Tarvin spoke withreceipt of the December 15, 2008 Warning Letter. On January 7, 2009, Tarvin spoke with Sean McKee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter andSean Mckee, PERB Regional Attorney, confirming Tarvin's receipt of the Warning Letter and his understanding that because he did not file an amended charge within the prescribed time, his understanding that because he did not file an amended charge within the prescribed time, his case would be dismissed. Accordingly, the above-referenced unfair practice charge is his case would be dismissed. Accordingly, the above-referenced unfair practice charge is hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter. hereby dismissed for the reasons stated in the December 15, 2008 Warning Letter. 1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and EERA is codified at Government Code section 3540 et seq. The text of the EERA and the Board's Regulations may be found on the Internet at the Board's Regulations may be found on the Internet at wwww.perb.ca.gov ww.perb.ca.gov .. LA-CO-1361-E LA-CO-1361-E January 8, 2009 January 8, 2009 Page 2 Page 2 Right to Appeal Right to Appeal Pursuant to PERE Regulations,2 Charging Party may obtain a review of this dismissal of the Pursuant to PERB Regulations, " 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 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 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 contain the case name and number, and the original and five (5) copies of all documents must be provided to the Board. must be provided to the Board. A A document is considered "filed" when actually received during a regular PERB business day. 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, (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 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 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 of PERE 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, 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.) secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.) The Board's address is: The Board's address is: Public Employment Relations Board Public Employment Relations Board Attention: Appeals Assistant Attention: Appeals Assistant 1031 18th Street 1031 18th Street Sacramento, CA 95811-4124 Sacramento, CA 95811-4124 (916) 322-8231 (916) 322-8231 FAX: (916) 327-7960 FAX: (916) 327-7960 If Tarvin files a timely appeal of the refusal to issue a complaint, any other party may file with If Tarvin files 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 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).) days following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b ). ) Service Service All documents authorized to be filed herein must also be "served" upon all parties to the 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 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 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 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 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. may also be concmrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs, tit. 8, sec .. 32135(c).) (Cal. Code Regs, tit. 8, sec. 32135(c).) 2 PERB's Regulations are codified at California Code of Regulations, title 8, section PERB 's Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 2 1001 et seq. 3 LA-CO-1361-E LA-CO-1361-E January 8, 2009 January 8, 2009 Page 3 Page 3 Extension of Time Extension of Time A request for an extension of time, in which to file a document with the Board itself, must be A request for an extension of time, in which to file a document with the Board itself, must be in writing and filed with the Board at the previously noted address. A request for an extension in writing and filed with the Board at the previously noted address. A request for an extension must be filed at least three (3) calendar days before the expiration of the time required for must be filed at least three (3) calendar days before the expiration of the time required for position of filing the document. The request must indicate good cause for and, if known, the position of filing the document. The request must indicate good cause for and, if known, the each other party regarding the extension, and shall be accompanied by proof of service of the each other party regarding the extension, and shall be accompanied by proof of service of the request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.) request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.) Final Date Final Date If If no appeal is filed within the specified time limits, the dismissal will become final when the no appeal is filed within the specified time limits, the dismissal will become final when the time limits have expired time limits have expired. Sincerely, Sincerely, TAMIR. BOGERT TAMI R. BOGERT General General Counsel Counsel By ______________ _ By Truc Nguyen True Nguyen Board Agent Board Agent Attachment Attachment cc: cc: Michael P. Baranic Michael P. Baranic STATE OF CALIFORNIA STA'iill OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor ARNOLD SCHWARZENEGGER, Governor PUBLIC EMPLOYMENT RELATIONS BOARD PUBLIC EMPLOYMENT RELATIONS BOARD Los Angeles Regional Office Los Angeles Regional Office 3530 Wilshire Blvd., Suite 1435 3530 Wilshire Blvd., Suite 1435 Los Angeles, CA 90010-2334 Los Angeles, CA 90010-2334 Telephone: (213) 736-7697 Telephone: (213) 736-7697 Fax: (213) 736-4901 Fax: (213) 736-4901 PER-B December 15, 2008 December 15, 2008 James Frederick Tarvin James Frederick Tarvin Re: Re: James Frederick Tarvin v, United Faculty of Grossmont-Cuyamaca Community College James Frederick Tarvin v. United Faculty of Grossmont-Cuyamaca Community College District District Unfair Unfair Practice Charge No. LA-CO-1361-E Practice Charge No. LA-CO-1361-E WARNING WARNING LETTER LETTER Dear Mr. Tarvin: Dear Mr. Tarvin: was The above-referenced unfair practice charge was filed with the Public Employment Relations The above-referenced unfair practice charge filed with the Public Employment Relations or Board (PERB or Board) on November 4, 2008. Mr. James Frederick Tarvin (Tarvin or Board (PERB or Board) on November 4, 2008. Mr. J arnes Frederick Tarvin (Tarvin Charging Party) alleges that the United Faculty of Grossmont-Cuyamaca Community College Charging Party) alleges that the United Faculty of Grossrnont-Cuyarnaca Community College or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union or Respondent) violated sections 3543.6(b) and 3544.9 of the Educational District (Union Employment Relations Act (EERA)' by breaching its duty of fair representation. Employment Relations Act (EERA) 1 by breaching its duty of fair representation. Background Background Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca Tarvin is a faculty member in the Mathematics department at Grossmont-Cuyamaca Community College (District). The Union is the exclusive representative for the faculty at the Community College (District). The Union is the exclusive representative for the faculty at the District. District. Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed Tarvin has an HIV-related disability, which he was aware of for five years before he disclosed his disability to the District and to the Union. During this time, he did not request his disability to the District and to the Union. During this time, he did not request accommodation for his disability. accommodation for his disability. Upon disclosure of his disability, Tarvin met with the District representatives in a series of Upon disclosure of his disability, Tarvin met with the District representatives in a series of meetings Tarvin refers to as the "interactive process" in order obtain reasonable meetings Tarvin refers to as the "interactive process" in order obtain reasonable accommodation for his disability, According to the charge, the Union did not participate in the accommodation for his disability. According to the charge, the Union did not participate in the "interactive process." Further, the charge also alleges that Tarvin has been "denied access to "interactive process." Further, the charge also alleges that Tarvin has been "denied access to the grieving [sic] process, denied access to union lawyers" by the Union. the grieving [sic] process, denied access to union lawyers" by the Union. 1 EERA is codified at Government Code section 3540 et seq. The text of the BERA and 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 the Board's Regulations may be found on the Internet at www.perb.ca.gov www.perb.ca.gov., LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page 2 Page 2 Discussion Discussion I. I. Statute of Limitations Statute of Limitations EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any charge based upon an alleged unfair practice charge based upon an alleged unfair practice occurring more than six months prior to the filing occurring more than six months prior to the filing of of the charge." The limitations period begins to run once the charging party knows, or should the charge." The limitations period begins to run once the charging party knows, or shouldhave known, of the conduct underlying the charge. have known, of the conduct underlying the charge. (Gavilan Joint Community College District (Gavilan Joint Community College District ( 1996) (1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the 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; charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024; State of California (Department State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.) The statute of Insurance) (1997) PERB Decision No. 1197-S.) The statute of of limitations has also been raised by the respondent as an affirmative defense in this case. limitations has also been raised by the respondent as an affirmative defense in this case. (Long Long Beach Community College District (2003) PERB Decision No. 1564.) Beach Community College District (2003) PERB Decision No. 1564.) It is not clear from the charge filed whether the charge was timely filed and thus, whether It is not clear from the charge filed whether the charge was timely filed and thus, whether PERB has PERB has jurisdiction over the unfair practice. The charge filed with PERB does not provide jurisdiction over the unfair practice. The charge filed with PERB does not providethe the date of when Tarvin and the District engaged in the "interactive process." Further, the date of when Tarvin and the District engaged in the "interactive process." Further, the charge charge does not provide the dates of when Tarvin was "denied access to the grieving [sic] does not provide the dates of when Tarvin was "denied access to the grieving [sic] process, denied process, denied access to union lawyers." In order to determine whether the alleged unfair access to union lawyers." In order to determine whether the alleged unfairpractice was timely filed, practice was timely filed, the charge must provide dates of when the alleged unfair practice the charge must provide dates of when the alleged unfair practice occurred. occurred. In cases alleging a breach of the duty of fair representation, the six month statutory limitations In cases alleging a breach of the duty of fair representation, the six month statutory limitations period begins to run on the date when the charging party, in the exercise of reasonable diligence, period begins to run on the date when the charging party, in the exercise of reasonable diligence, knew or should have known that further assistance from the union was unlikely. (Los Rios knew or should have known that further assistance from the union was unlikely. (Los Rios College College Federation of Teachers. CFT/AFT (1991) PERB Decision No. 889; United Teachers of Federation of Teachers, CFT/AFT (1991) PERB Decision No. 889; United Teachers ofLos Los Angeles (2001) PERB Decision No. 1441.) Angeles (2001) PERB Decision No. 1441.) However, even if However, even if the charge was timely filed, the Charging Party has not demonstrated that the the charge was timely filed, the Charging Party has not demonstrated that the Union Union has violated the EERA for the following reasons. has violated the EERA for the following reasons. II. II. The Duty to Bargain and Scope of Representation The Duty to Bargain and Scope of Representation Tarvin alleges that the Union breached Tarvin alleges that the Union breached its duty of fair representation. EERA section 3544.9 its duty of fair representation. EERA section 3544.9 expressly imposes a expressly imposes a statutory duty of fair representation upon employee organizations, statutory duty of fair representation upon employee organizations, providing th'.'lt· providing that: [t]he employee [t]he employee organization recognized or certified as exclusive organization recognized or certified as exclusive representative for the purpose of meeting and negotiating shall representative for the purpose of meeting and negotiating shall fairly represent each and every employee in the appropriate unit. fairly represent each and every employee in the appropriate unit. In order to state a prima facie In order to state a prima facie violation of this section of EERA, the Charging Party must show violation of this section of EERA, the Charging Party must show that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United that the Respondent's conduct was arbitrary, discriminatory or in bad faith. In United Teachers of Los Angeles Teachers of Los Angeles (Collins), the Public Employment Relations Board stated: (Collins), the Public Employment Relations Board stated: LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page Page 33 Absent bad faith, discrimination, or arbitrary conduct, mere Absent bad faith, discrimination, or arbitrary conduct, mere negligence or poor judgment in handling a grievance does not negligence or poor judgment in handling a grievance does not constitute a breach of the union's duty. [Citations omitted.] constitute a breach of the union's duty. [Citations omitted. ] A union may exercise its discretion A union may exercise its discretion to determine how far to to determine how far to pursue a grievance in the employee's behalf as long as it does not pursue a grievance in the employee's behalf as long as it does not arbitrarily ignore a meritorious grievance or process a grievance arbitrarily ignore a meritorious grievance or process a grievance in a perfunctory fashion. A union is also not required to process in a perfunctory fashion. A union is also not required to process an employee's grievance if the chances for success are minimal. an employee's grievance if the chances for success are minimal. With regard to when "mere negligence" might constitute arbitrary conduct, the Board observed 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 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 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 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. 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 Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, at p. 1274; see also, Robesky v. Quantas Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.) Empire Airways Limited (9th Cir. 1978) 573 F.2d 1082.) A. A. Duty to Union to Engage in the "Interactive Process" Duty to Union to Engage in the "Interactive Process" Tarvin alleges that the Union breached its duty of fair representation by refraining from Tarvin alleges that the Union breached its duty of fair representation by refraining from participation in the so-called "interactive process." Respondent asserts that the "interactive participation in the so-called "interactive process." Respondent asserts that the "interactive process" regarding accommodation of an employee's disability is a component of the Fair process" regarding accommodation of an employee's disability is a component of the Fair Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair Employment and Housing Act (FEHA) and thus is not within the scope of its duty of fair representation. representation. The duty of fair representation extends to grievance handling. (Fremont Teachers Association The duty of fair representation extends to grievance handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) (King) (1980) PERB Decision No. 125; United Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) However, the Board has long held that the duty of fair PERB Decision No. 258.) However, the Board has long held that the duty of fair representation is limited to contractually-based remedies under the union's exclusive control. representation is limited to contractually-based remedies under the union's exclusive control. (Capistrano Unified Education Association, CTA/NEA (La Marca) (2001) PERB Decision (Capistrano Unified Education Association. CTA/NEA (La Marca) (2001) PERB Decision No. No. 1422.) Accordingly, the duty of fair representation does not attach to an exclusive 1422.) Accordingly, the duty of fair representation does not attach to an exclusive representative in extra-contractual proceedings before agencies such as the Department of Fair representative in extra-contractual proceedings before agencies such as the Department of Fair Employment and Housing or the State Personnel Board. (California State Employees Employment and Housing or the State Personnel Board. (California State Employees Association (Carrillo) (1997) PERB Decision No. 1199-S; California Union of Safety Association (Can-illo) (1997) PERB Decision No. 1199-S; California Union of Safety Employees (John) (1994) PERB Decision No. 1064-S; see also SEITJ Local 790 (Hein) (2004) Employees (John) (1994) PERB Decision No. 1064-S; see also SEIU Local 790 (Hein) (2004) PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a PERB Decision No. 1677 (a union is not obligated to assist an employee with matters before a civil service commission or in an ADA action).) civil service commission or in an ADA action).) As stated above, the duty of fair representation is limited to contractually-based remedies As stated above, the duty of fair representation is limited to contractually-based remedies under the exclusive control of the Union. In this case, Tarvin, has not specified the terms of under the exclusive control of the Union. In this case, Tarvin, has not specified the terms of the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the the collective bargaining agreement. Therefore, Tarvin has not demonstrated whether the collective bargaining agreement addresses violations under the FEHA or that the "interactive collective bargaining agreement addresses violations under the FEHA or that the "interactive process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does process" is otherwise associated with the collective bargaining agreement. Hence, Tarvin does not establish that the Union possesses exclusive control over the "interactive process" and that not establish that the Union possesses exclusive control over the "interactive process" and that LA-CO-1361-E LA-CO-1361-E December 15, 2008 December 15, 2008 Page 4 Page 4 the Union breached its duty of fair representation by its lack of participation in the "interactive the Union breached its duty of fair representation by its lack of participation in the "interactive process." process." E. B. Duty of Union to Provide Access to Grievance Process Duty of Union to Provide Access to Grievance Process In order to state a prima facie case of arbitrary conduct violating the duty of fair representatio In order to state a prima facie case of arbitrary conduct violating the duty of fair representati a Charging Party a Charging Party must at a minimum include an assertion of sufficient facts from which it must at a minimum include an assertion of sufficient facts from which it becomes becomes apparent how or in what manner the exclusive representative's action or inaction wa apparent how or in what manner the exclusive representative's action or inaction w without without a rational basis or devoid of honest judgment. (Reed District Teachers Association, 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 CTA/NEA (Reyes) (1983) PERE Decision No. 332, p. 9, quoting Rocklin Teachers Professional Professional Association (Romero) (1980) PERB Decision No. 124; emphasis in original.) Association (Romero) (1980) PERE Decision No. 124; emphasis in original.) n, on, sas 2 equires, inter alia, that an unfair practice charge requires, inter alia, that an unfair practice charge include a "clear and concise statement of the facts and conduct alleged to constitute an unfair include a "clear and concise statement of the facts and conduct alleged to constitute an unfair practice." The Charging Party's burden includes alleging the "who, what, when, where and practice." The Charging Party's burden includes alleging the "who, what, when, where andhow" of an unfair practice. how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994) (State of California (Department of Food and Agriculture) ( 1994) PERE Decision PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.) (Ibid.; Charter Oak Unified School District (1991) PERE Decision No. 873.) In addition, PERB Regulation 32615(a)(5) In addition, PERE Regulation 32615(a)(5" r ) In In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how the the Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).) Union denied him access to the grievance process. (See PERB Regulation 32615(a)(5).) Tarvin has not provided facts as to what he requested from the Union, when he made the Tarvin has not provided facts as to what he requested from the Union, when he made the request request and how his request was related to the grievance process. (State of California and how his request was related to the grievance process. (State of California (Department of Food and Agriculture), (Department of Food and Agriculture), supra, PERB Decision No. 1071-S.) Instead, Tarvin supra, PERB Decision No. 1071-S.) Instead, Tarvinhas only has only stated he was denied access to the grievance process. The instant charge fails to stated he was denied access to the grievance process. The instant charge fails to provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily, or in provide sufficient facts to indicate that the Union has acted arbitrarily, discriminatorily, or in bad faith bad faith by denying him access to the grievance process. (Reed District Teachers by denying him access to t11e grievance process. (Reed District Teachers Association, CTA/NEA Association, CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has asserted a mere (Reyes), supra, PERE Decision No. 332.) Tarvin has asserted a mere legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School legal conclusion, which is insufficient to state a prima facie case. (Charter Oak Unified School District, District, supra, PERB Decision No. 873.) supra, PERB Decision No. 873.) C. C. Duty of Union to Provide Access to Lawyers Duty of Union to Provide Access to Lawyers As stated above, the Charging Party has the burden of providing at minimum, sufficient facts As stated above, the Charging Party has the burden of providing at minimum, sufficient facts to determine in to determine in what manner the exclusive representative's action or inaction was without a Vv'hat 1nanner the c1~clusive represe11tati-ve' s actio11 or ir1actiori \Vas vvitl1out a rational basis or devoid of honest judgment. (Reed District Teachers Association, CTA/NEA rational basis or devoid of honest judgment. (Reed District Teachers Association, CT AJNEA (Reyes), (Reyes), supra, PERB Decision No. 332.) supra, PERB Decision No. 332.) In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how In this case, Tarvin has not provided a "clear and concise statement of the facts" regarding how the Union denied him access to union lawyers. (Reed District Teachers Association, the Union denied him access to union lawyers. (Reed District Teachers Association, 2 PERB's Regulations are codified at California Code of Regulations, title 8, section PERE' s Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 31001 et seq. ( LA-CO-1361-E LA-C0-1361-E December 15, 2008 December 15, 2008 Page 5 Page 5 CTA/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he made a CT A/NEA (Reyes), supra, PERB Decision No. 332.) Tarvin has not alleged that he made a request for a lawyer and that the Union has denied a request to have a union provided lawyer. request for a lawyer and that the Union has denied a request to have a union provided lawyer. Even assuming the duty of representation includes some responsibility Even assuming the duty of representation includes some responsibility to provide Tarvin with to provide Tarvin with legal representation, Tarvin does not establish that the Union's decision not to do so in this legal representation, Tarvin does not establish that the Union's decision not to do so in this case was arbitrary, discriminatory or made in bad faith. Tarvin has only stated he was denied case was arbitrary, discriminatory or made in bad faith. Tarvin has only stated he was denied ar-cess access to lawyers; which is a mere legal conclusion that is insufficient to state a prima facie ...., tr. 1..V 1.1 annrPrC'' vt JY.1.iJ' nrl,1'ch VVJ...1. .1. 1·s a mprp J..V.1.V ]p(Tal .1.v5 conclus1'on i. th \....LJ.. atl- 'S J.. 1J.J..1. "'suff1'c1'ent J.. .1.l- tr. LV ,.:>1.,UL,V c-te>tP a nrima _tJJ...1. far-iP -.l- case. (Charter Oak Unified School District, supra, PERB Decision No. 873.) ease. (Charter Oak Unified School District, supra, PERB Decision No. 873.) For these reasons For these reasons the charge, as presently written, does not state a prima facie case. If there the charge, as presently written, does not state a prima facie case. If there are any factual inaccuracies in this letter are any factual inaccuracies in this letter or additional facts that would correct the deficiencies or additional facts that would correct the deficiencies explained above, Charging Party may amend the charge. explained above, Charging Party may amend the charge. The amended charge should be The amended charge should be prepared on a standard PERB unfair practice charge prepared on a standard PERB unfair practice charge form, clearly labeled First Amended form, clearly labeled First Amended Charge, contain all the facts and allegations you wish to make, and be signed under penalty of 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 perjury by an authorized agent of Charging Party. The amended charge must have the case number written on the number written on the top right hand corner of the charge form. The amended charge must be top right hand corner of the charge form. The amended charge must be served on the served on the Respondent's representative and the original proof of service must be filed with Respondent's representative and the original proof of service must be filed with PERB. If an amended charge or PERB. If an amended charge or withdrawal is not filed on or before December 24, 2008, withdrawal is not filed on or before December 24, 2008, PERB will dismiss your charge. If you have any questions, please call me at the above PERB will dismiss your charge. If you have any questions, please call me at the above telephone number. telephone number. Sincerely, Sincerely, Truc Nguyen True Nguy<tJ.,f. Board Agent Board Agent TN TN
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