Alvord Educator's Association (Bussman) (PERB 2189E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOHN BUSSMAN,
Charging Party, Case No. LA-CO-1378-E
Vv. PERB Decision No. 2189
ALVORD EDUCATOR'S ASSOCIATION, June 29, 2011
Respondent.

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

Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by John Bussman (Bussman) of a dismissal (attached) of his unfair
practice charge by a Board agent. The charge alleged that the Alvord Educator’s Association
(Association) violated the Educational Employment Relations Act (EERA)! by failing to
represent him, retaliating against him, and defaming him. Bussman alleged that this conduct
constituted a violation of EERA sections 3543.3, 3543.5, 3543.6, 3544.9, and 3571.1.

The parties, facts, and issues in the present charge are identical to the parties, facts, and
issues in Alvord Educator’s Association (Bussman) (2009) PERB Decision No. 2046
(Bussman 1), with one exception: the present charge also alleges that the Association failed to

respond to Bussman’s December 2008 re-request for representation in litigation with the

‘ EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

Alvord Unified School District regarding the legality
of
certain contract provisions. Thus,
except for this single issue, the present charge is identical to the unfair practice charge filed by
Bussman against the Association in January 2008 and later dismissed by the Board in
Bussman
I.
The Board agent, relying on City
of
Porterville (2007) PERB Decision No. 1905-M
(Porterville), dismissed the previously adjudicated issues based on the doctrines
of
collateral
estoppel and res judicata. The Board agent also dismissed the remaining allegation as both
untimely and lacking merit. It is noteworthy, however, that subsequent to the dismissal
of
this
case, the Board-issued Grossmont Union High School District (2010) PERB Decision No. 2126
(Grossmont), in which the Board overturned Porterville to the extent it granted preclusive
effect to a dismissal
of
an unfair practice charge based solely on a Board agent's charge
investigation.
We have reviewed the entire record, and except for the application
of
the doctrines
of
collateral estoppel and res judicata as set forth in Porterville, we find the warning and
dismissal letters well-reasoned, adequately supported by the record and in accordance with
applicable law. Accordingly, the Board hereby adopts the warning and dismissal letters as the
decision
of
the Board itself, subject to the following discussion regarding reversal
of
Porterville and its impact on this case.
DISCUSSION
A. 	The Doctrines Of Res Judicata And Collateral Estoppel Do Not Apply In This
Case
As indicated above, the Board agent dismissed the previously adjudicated issues in this
case based on the doctrines of collateral estoppel and res judicata as set forth in Porterville.
Collateral estoppel is an aspect of the doctrine of res judicata. Under collateral estoppel, a
2

prior judgment between the same parties operates as an estoppel or conclusive adjudication
with respect to those issues that were actually litigated and necessarily determined in the prior
action. (State
of
California, Department
of
Personnel Administration (1991) PERB Decision
No. 871-S.)
In Grossmont, the Board explained that to be "actually litigated" for purposes
of
collateral estoppel, an issue must have been decided based on the presentation
of
evidence at a
hearing. 	Since a Board agent's review
of
a charge to determine whether it establishes a prima
facie case is not based on such a presentation
of
evidence, the Board concluded that a Board
agent's review
of
a charge, to determine whether it establishes a prima facie case
of
an unfair
practice, does not meet the "actually litigated" requirement for collateral estoppel.
Accordingly, the Board overruled Porterville to the extent it granted preclusive effect to a
dismissal
of
an unfair practice charge based solely on a Board agent's charge investigation.
The instant dismissal, however, was based, in part, on the preclusive effect
of
a Board
agent's dismissal in Bussman
I.	
In light
of
the Grossmont case, the doctrines
of
res judicata
and collateral estoppel no longer apply in this case. Accordingly, the portions
of
the warning
and dismissal letters that rely on these doctrines are hereby struck and are not incorporated into
the Board's decision in this matter.
B. 	Timeliness
Notwithstanding the reversal of Porterville, however, the previously adjudicated issues
must be dismissed. As explained in the warning letter, 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, knew or should have known that
further assistance from the union was unlikely. ( United Teachers
of
Los Angeles (Hopper)
3

(2001) PERB Decision No. 1441; Los Rios College Federation
of
Teachers, CFTIAFT (Violett,
et al.) (1991) PERB Decision No. 889.) Relative to this case, repeated union refusals to
process a grievance over a recurring issue do not start the limitations period anew. (California
State Employees' Association (Calloway) (1985) PERB Decision No. 497-S.)
In his timeliness analysis, the Board agent relied on Bussman I for the proposition that
the statute
of
limitations for the previously adjudicated issues began to run on January 30,
2007. As explained by the Board in Bussman
I:
The Board also rejects Bussman's argument on appeal that
a September 17, 2007, email from the California Teachers
Association (CTA) indicates a renewed promise
of
representation with respect to the alleged illegal contract
terms so as to bring a duty
of
fair representation claim
against AEA within the six month statute
of
limitations .
. . . However, nothing in the email, or any other evidence
presented by Bussman, demonstrates a valid legal
argument that
CTA's
statements or actions can be imputed
to AEA. Furthermore, the September 17 email does not,
as Bussman claims, demonstrate that he was being
provided representation by either CT A or AEA as
of
that
date, in that it specifically rebukes Bussman for any
assumption that his individual needs should dictate further
action, and indicates that any action CTA was taking to
resolve problems regarding the disputed contract terms
was done on behalf
of
all affected bargaining unit
members, not Bussman individually. Therefore, the
January 30, 2007, letter from AEA denying Bussman
representation regarding the disputed contract terms, starts
the statute
of
limitations on that issue. Since this date is
approximately one year prior to the filing
of
the unfair
practice charge, dismissal is proper.
Based on our review, we find Board's timeliness analysis in Bussman I is directly
applicable to the instant case and 	nothing in the record to warrant consideration
of an
alternative date. We, therefore, conclude that January 30, 2007, continues to be the date on
which the statute of limitations began to run for the previously adjudicated issues.
4

Accordingly, we find the Board agent's utilization of this date in his statute of limitation
analysis was appropriate and that the previously adjudicated issues were properly dismissed as
untimely.
ORDER
The unfair practice chargein Case No. LA-CO-1378-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Dowdin Calvillo joined in this Decision.
5

=ST=A=T=E=O=F=C=A=L=IF=O=RN=I=A======~j
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone:
(8
I 8) 551-2809
Fax: (818) 551-2820
November 19, 2009
John Bussman
2403 7 Senna Drive
Wildomar, CA 92595
Re: 	John Bussman
v.
Alvord Educator's Association
Unfair Practice Charge No. LA-CO-1378-E
DISMISSAL LETTER
Dear Mr. Bussman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 2, 2009 (original charge) and was amended on August 4 and
November 16, 2009. John Bussman alleges that the Alvord Educator's Association
(Association or AEA) violated sections 3543.3, 3543.5, 3543.6, 3544.9, and 3571.1
of
the
Educational Employment Relations Act (EERA or Act). 1 Mr. Bussman also alleges that the
Association violated section 45028
of
the California Education Code.
Mr. Bussman was informed in the attached Warning Letter dated November 5, 2009, that the
above-referenced charge did not state a prima facie case. Mr. Bussman was advised that,
if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in the November 5 Warning Letter, he should amend the charge. Mr. Bussman was
further advised that, unless he amended the charge to state a prima facie case or withdrew it
prior to November 16, 2009, the charge would be dismissed.
On November 16, 2009, PERB received an amended charge from Mr. Bussman. The
November 16 amended charge begins by correcting factual statements in the November 5
Warning Letter. The November
16
amended charge provides in relevant part:
December 21, 2006 - "President Kerr informed Mr. Bussman"
should read ["]Ms. Kyne informed Mr. Bussman.["]
August, 2006 - AEA President Gary Hardgrave along with Karen
Bost met with her 2 times (according to Hardgrave) or 3 times
(according to Bost) with [Alvord Unified School District
(District)] officials on behalf of Bussman and other impacted
AEA members in response to Bussman's letter filed with the
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB's Regulations may be found at www.perb.ca.gov.
Governor

LA-CO-1378-E
November 19, 2009
Page2 
[D]istrict by attorney Marianne Reinhold. These facts are
supported by the enclosed documentation.
September 17, 2007 	"Ms. Bost informed Mr. Bussman that [the
California Teachers Association (CTA)] was working with the
[D]istrict" should read ["]Ms. Bost informed Mr. Bussman that
AEA and CTA were working with the [D]istrict.["] Please
reference the letter dated September 17, 2007 sent to Bussman by
Ms. Bost. Ms. Bost claims that AEA President Hardgrave is an
active participant in representing impacted AEA members
including Bussman. "We" and "us" are the pronouns
of
choice.
"In the Fall
of
2008, Mr. Bussman did not receive teaching
materials should read ["]in the fall
of
2007. ["] Although Mr.
Bussman's job assignment was changed in both the fall
of
2007
and then again in the fall
of
2008, it was only in the fall
of
2007
that [the District] failed to provide as much as a Teacher's
Edition text for Bussman's newly assigned class.
August
1,
2008 - AEA attorney John Kohn makes the fraudulent
claim to PERB that AEA "continues to bargain the issue with the
[District]" has been completely omitted. August
1,
2008 should
read ["]AEA makes a fraudulent claim to PERB stating that they
are continuing to represent impacted members including Mr.
Bussman.["]
In the November
16
amended charge, Mr. Bussman also argues at length that the rationale in
the November 5 Warning Letter and the rationale in Alvord Educator's Association (Bussman)
(2009) PERB Decision No. 2046 is flawed. Nevertheless, as stated in the November 5
Warning Letter, with the exception
of
Mr. Bussman's allegation that the Association failed to
respond to his December 2008 request that it represent him in litigation with the District
regarding the legality
of
certain contract provisions, the above-titled charge consists
of
allegations previously litigated and decided on their merits by the Board in Alvord Educator's
Association (Bussman), supra, PERB Decision No. 2046.
A charging party is barred by the doctrines of collateral estoppel and res judicata from filing an
unfair practice charge that merely re-raises the same cause(s) of action and issue(s) previously
addressed and decided on the merits by PERB. (City
of
Porterville (2007) PERB Decision
No. 1905-M.) Mr. Bussman's opinion that the Board in Alvord Educator's Association
(Bussman), supra, PERB Decision No. 2046 did not decide the case on its merits and that the
Board's reasoning in Alvord Educator's Association (Bussman), supra, PERB Decision
No. 2046 is erroneous does not preclude the doctrine of collateral estoppel from barring the re-
litigation of issues raised in the above-titled charge that were previously raised and decided on
their merits by the Board in Alvord Educator's Association (Bussman), supra, PERB Decision
No. 2046. Accordingly, for the reasons stated above and in the November 5 Warning Letter,

LA-CO-1378-E
November 19, 2009
Page 3
all
of
the allegations in the above-titled charge are barred by the doctrine
of
collateral estoppel,
except for the allegation that the Association failed to respond to Mr. Bussman's December
2008 request that it represent him in litigation with the District regarding the legality
of
certain
contract provisions.
As stated in the November 5 Warning Letter, however, Mr. Bussman has not demonstrated the
allegation that the Association failed to respond to his December 2008 request for
representation in litigation with the District regarding the legality
of
certain contract provisions
is within EERA's six-month statute oflimitations. The Board in Alvord Educator's
Association (Bussman), supra, PERB Decision No. 2046, held that the statute
of
limitations
began to run on the issue
of
whether the Association violated EERA by failing to represent him
in litigation against the District challenging the legality
of
certain contract provisions on
January 30, 2007. Repeated union refusals to process a grievance over a recurring issue do not
start the limitations period anew. (California State Employees Association (1985) PERB
Decision No. 497-S.) Thus, Mr. Bussman's re-request for representation on that issue in
December 2008 does not start the statute
of
limitations period anew. (Ibid.)2
Further, as explained in the November 5 Warning Letter, even
if
this allegation was within
EERA' s six-month statute
of
limitations, the duty
of
fair representation does not apply to
extra-~-··-····-····
contractual forums. 	(California Teachers Association (Radford) (2005) PERB Decision
No. 1763
.)
Mr. Bussman asserts that the Association breached the duty
of
fair representation
by not representing him in litigation over whether specific contract provisions violate the
California Education Code. Pursuits
of
alleged violations
of
the California Education Code
involve extra-contractual forums that are outside the Association's exclusive control; i.e., do
not involve the Agreement's grievance procedure. Thus, Mr. Bussman has not established that
the Association breached the duty
of
fair representation by failing to respond to his requests to
represent him in litigation against the District over perceived violations
of
the California
Education Code. (Ibid.)
In the November
16
amended charge, Mr. Bussman does not provide any facts or argument
regarding the allegations in the original charge that the Association violated Government Code
sections 3543.3, 3543.5, and 3571.1. Accordingly, Mr. Bussman's allegation that these
Government Code sections were violated are dismissed for the reasons stated in the November
5 Warning Letter.
In the November 16 amended charge, Mr. Bussman alleges for the first time that the
Association violated California Education Code section 45028. Allegations regarding alleged
violations of the California Education Code fall outside of PERB' s jurisdiction.. (Los Angeles
Unified School District (2009) PERB Decision No. 2011.) Accordingly, Mr. Bussman' s
allegation that the Association violated the California Education Code is dismissed.
Mr. Bussman's assertion that the Board erred in holding that the statute oflimitations
began to run on that issue on January 30, 2007 is inconsequential at this time. The undersigned
is obligated to follow Board precedent.

LA-CO-1378-E
November 19, 2009
Page 4
Furthermore, the above-titled charge is hereby dismissed in its entirety based on the reasons
stated above and for the reasons stated in the November 5 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,3 Mr. Bussman 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,
§ 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit.
8,
§§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds, (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
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
Mr. Bussman 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 days following the date
of
service
of
the appeal. (Cal. Code Regs, tit. 8, § 32635,
subd. (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, § 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
3 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1378-E
November 19, 2009
Page 5
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
Sean McKee
Regional Attorney
Attachment
cc: John F. Kohn, Attorney

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone:
(8
I 8) 551-2809
Fax: (818) 5 51-2820
November 5, 2009
John Bussman
24037 Senna Drive
Wildomar, CA 92595
Re: 	John Bussman
v.
Alvord Educator's Association
Unfair Practice Charge No. LA-CO-1378-E
WARNING LETTER
Dear Mr. Bussman:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 2, 2009, and was amended on August 4, 2009. John Bussman
alleges that the Alvord Educator's Association (Association) violated sections 3543.3, 3543.5,
3543.6, 3544.9, and 3571.1
of
the Educational Employment Relations Act (EERA or Act). 1
Background
In January 2008, Mr. Bussman filed an unfair practice charge against the Association (LA-CO-
1329-E), alleging that the Association violated EERA by failing to represent him, retaliating
against him, and defaming him. 	PERB's General Counsel's Office dismissed Mr. Bussman's
charge for failure to state a prima facie case.2 Mr. Bussman appealed the dismissal
of
his
charge to PERB' s Board. In Alvord Educator's Association (Bussman) (2009) PERB Decision
No. 2046, the Board affirmed the dismissal
of
Mr. Bussman's charge in LA-CO-1329-E for
failure to state a prima facie case.
In Mr. Bussman' s August 4 amended charge, Mr. Bussman alleges in relevant part:
[I]
would like to reiterate that [the Association] put forth both
misleading and blatantly false information in the following case:
1 EERA is codified at Government Code section 3540 et seq. The text
of
the EERA and
PERB's Regulations may be found at www.perb.ca.gov.
2 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "adetermination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

LA-CO-1378-E
November 5, 2009
Page 2
LA-CO-1329-E. 	Although fully explained and documented, the
PERB decision failed to recognize all the facts involved. This
information is relevant to the charges filed in Case number LA-
CO-1378-E.
In addition, I would like to reiterate that in defense of the charges
filed in case number LA-CO-1329-E, [the Association] renewed
claims of representation which have proven to be false. 	I also
request that you take judicial notice of Adair v. Stockton USD in
your analysis of the events contained in case number LA-CO-
1378-E.
Facts as Alleged
Mr. Bussman is employed by the Alvord Unified School District (District) and is a member of
a bargaining unit exclusively represented by the Association. In the 2005-2006 school year,
the Association and the District reached a tentative collective bargaining agreement (CBA or
Agreement), but the Association did not provide the details of the tentative CBA to its
members. Later, some bargaining unit members, including Mr. Bussman, discovered that the
terms of the tentative CBA provided that bargaining unit members "with between three (3) and
fourteen ( 14) years of service would be 'shifted numerically back two steps' on the new
proposed salary schedule. 	[Association] members with nineteen (19) years of service or more
would not suffer the same fate. 	[Association] members with two (2) years of service would be
shifted back to year one."
On October 11, 2006, Mr. Bussman and two other bargaining unit members confronted
Association site representative Meg Decker about the tentative Agreement's salary schedule.
Ms. Decker responded by informing Mr. Bussman and the two other bargaining unit members
that the tentative CBA was "a good deal."
On October 13, 2006, a ratification vote on the tentative CBA was held. The tentative CBA
was "overwhelmingly passed" by unit members. In a letter dated October 23, 2006, Mr.
Bussman informed Association President Craig Adams and Ms. Decker that he was not pleased
with the CBA and the ratification process. Specifically, Mr. Bussman advised President
Adams and Ms. Decker that he believed the salary schedule was not equitable. Neither
President Adams nor Ms. Decker responded to Mr. Bussman's October 23 letter.
On November 7, 2006, Mr. Bussman contacted the Association's affiliate, the California
Teachers Association (CTA), and spoke with Karen Kyne and Bruce Matlock. Mr. Bussman
also sent Ms. Kyne a copy of his October 23 letter.
On November 10, 2006, Ms. Kyne contacted Mr. Bussman and informed him that he could
challenge the ratification vote. Ms. Kyne also provided Mr. Bussman with the e-mail address
of CTA President Barbara Kerr. On November 10, 2006, Mr. Bussman sent an e-mail message
to President Kerr but she did not reply.

LA-CO-1378-E
November 5, 2009
Page 3
On November 14, 2006, Mr. Bussman sent another e-mail message to President Kerr advising
her
of
the facts surrounding the CBA between the Association and the District and the
ratification vote. President Kerr responded to Mr. Bussman's November 14 e-mail message
and stated that she would "look into it."
On December 7, 2006, President Kerr informed Mr. Bussman that "CTA had no jurisdiction
over elections." Mr. Bussman responded by informing President Kerr that he was disappointed
with her decision and re-requested that CTA intervene. On December 17, 2006, President Kerr
advised Mr. Bussman that "CTA had appointed an intervention team to look into the matter."
On December 21, 2006, Mr. Bussman and others presented their concerns to the intervention
team. 	On January 15, 2007, President Kerr informed Mr. Bussman that the CBA between the
Association and the District violated the California Education Code. President Kerr then
advised Mr. Bussman that he "needed to point this out to [his] local representation before CTA
could represent [his] interests."
On January 30, 2007, Mr. Bussman presented Ms. Decker with a written request to "represent
[his] interests concerning the ed. Code violation." Ms. Decker refused to represent Mr.
Bussman and informed him that "nothing needed to be 'rectified' in terms
of
the [CBA]." Ms.
Decker then stated that the District "had made a mistake in 'overpaying' new employees." Mr.
Bussman informed Ms. Decker that "on the day the [CBA] was ratified she had explained to a
room full
of
people that new hires would be paid in respect to their actual years
of
experience.
That was the explained agreement between [the Association and the District]." On February 5,
2007, Ms. Decker again informed Mr. Bussman that the CBA did not violate the California
Education Code and that the Association "would not be representing [his] claim."
In early March 2007, President Adams "notifies members via The Podium that the total
compensation package for members was 5.28% for the 2005-2006 contract[.]" On March 11,
2007, the Association notified its members that a "new contract agreement had been reached
for the current year." Shortly thereafter, the District informed "new hires" that "they will be
paid at a rate
of
one additional year
of
service for the current school year, but will be frozen at
that level the following school year, thus, equalizing their rate
of
pay with teachers who had
been shifted back two years under the existing [CBA]."
During a town hall meeting on March 16, 2007, Mr. Bussman "pointed out that the majority
of
members had not received a 5.28% compensation increase for the 2005-2006 contract."
President Adams responded by explaining that "everything has been 'fixed' with the new
proposed schedule." On March 21, 2007, during a "site-rep" meeting, President Adams
reiterated that the CBA did not violate the California Education Code.
On March 26, 2007, Ms. Decker informed the "new hires" that "they will need to 'pay back' a
portion of their current salary." That same day a ratification vote was held on "the current
year's contract." The above-titled charge continues in relevant part:

LA-CO-1378-E
November 5, 2009
Page 4
[On March 27, 2007,] [Mr. Bussman's coworker] David Drake
informed [Mr. Bussman] that Ken Batdrof, a Norte Vista H.S.
teacher had called [President] Adams to inquire about this
agreement. 	Ken reported that [President] Adams blamed [Mr.
Bussman] numerous times in a disparaging manner as the person
responsible for the new hires having to return a portion of their
salaries ....
On April 20, 2007, Mr. Bussman's coworker Sharon Lazzarini informed Mr. Bussman that
President Adams and Ms. Decker "had made numerous disparaging remarks about [him] to
[District] representatives during the course of this year's bargaining sessions including [Mr.
Bussman' s] Principal, Santos Campos."
On May 1, 2007, Mr. Bussman met with CTA representative Marianne Reinhold. Ms.
Reinhold informed Mr. Bussman that "legal infractions had taken place." Ms. Reinhold also
advised Mr. Bussman that "she needed to interview more members before moving forward
with litigation." In the end of May, Mr. Bussman requested a status update from Ms.
Reinhold. In response, Ms. Reinhold informed Mr. Bussman that "a suit would be filed soon
against [the District], probably by the end of June."
Mr. Bussman made several attempts to contact Ms. Reinhold in the months of June and July
without success. On July 31, 2007, Mr. Bussman sent "an irate email to CTA officials about
the complete lack ofrepresentation that [he was] receiving. 	[Mr. Bussman] receive[d] a phone
call from Marianne Reinhold promising to notify [the District] of pending legal action by
August 1ot\ 2007. She promises [to] provide a time frame of action, giving the [D]istrict until
the end of August or the middle of September to rectify the situation." On August 10, 2007,
Mr. Bussman received a copy of a letter sent by Ms. Reinhold to the District informing the
District that its demand that newly hired teachers "repay the District what the District
improperly characterizes as an 'overpayment' of their salary" violates the law.
On August 19, 2007, Mr. Bussman sent an e-mail message to "CTA Officials" to document the
events of the summer." CTA did not respond to Mr. Bussman's August 19 e-mail message.
On August 23, 2007, Ms. Decker informed Mr. Bussman that his job assignment was changed.
On August 26, 2007, Mr. Bussman requested "CTA to file suit on [his] behalf concerning the
labor contract(s) as was promised." CTA did not respond to Mr. Bussman's request. On
August 27, 2007, Mr. Bussman requested that CTA provide him with legal assistance "in filing
the appropriate documentation in regards to retaliation in the workplace." CTA did not
respond to Mr. Bussman's August 27 request for legal assistance.
On August 28, 2007, Mr. Bussman spoke "to [Association President] Gary Hardgrave
concerning his meeting with Santos Campos and [Mr. Bussman's] schedule." During their
conversation, President Hardgrave informed Mr. Bussman that his schedule was not going to
change. Mr. Bussman then asked President Hardgrave if the Association would assist him file
"retaliation charges" against the District. On August 30, 2007, President Hardgrave informed
Mr. Bussman that he was not a victim of retaliation.

LA-CO-1378-E
November 5, 2009
Page 5
On September 12, 2007, Mr. Bussman sent a facsimile message to Ms. Reinhold demanding
that CTA take legal action on his behalf. In a facsimile message dated September 14, 2007,
Ms. Reinhold implied that Mr. Bussman is "a liar." On September 16, 2'007, Mr. Bussman
replied to Ms. Reinhold's September 14 facsimile message and "also ask[ed] CTA officials for
clarification on their position via email." On September 17, 2007, Ms. Bost informed Mr.
Bussman that CTA was "working with the [D]istrict in order to fix this problem."
In the Fall of 2008, Mr. Bussman did not receive teaching materials for "the new prep that [he]
was given." On October 30, 2008, Mr. Bussman sent a facsimile message to District
Superintendent Kathy Wright informing her that he had not received his teaching materials.
"Within three hours, Principal Santos Campus deliver[ed] a teacher's edition of the course text
book [to me]."
In April 2008, Mr. Bussman advised Ms. Decker of his preference to teach "five sections of
American Government." On August 14, 2008, Mr. Bussman was notified that his teaching
schedule was different than the one that he had requested. On August 19 and 22, 2008, Mr.
Bussman sent e-mail messages to Ms. Decker and Principal Santos inquiring into why his
teaching schedule had changed. Neither Ms. Decker nor Principal Santos responded to Mr.
Bussman's e-mail messages. On August 25, 2008, Mr. Bussman requested that District
Superintendent Wendel Tucker explain to him why his teaching schedule had changed. 	The
following day, Principal Santos advised Mr. Bussman why his teaching schedule had changed.
On November 13, 2008, Mr. Bussman attended a town hall meeting where he was informed
that the current CBA between the Association and the District "does nothing to rectify past
contract problems. [Mr. Bussman] [was] also informed that the issue had never been
bargained." On November 15, 2008, Mr. Bussman sent President Hardgrave an e-mail
message "in an effort to clarify the information given at the Nov. 13 th town hall meeting."
President Hardgrave never responded to Mr. Bussman's inquiry.
On December 15, 2008, Mr. Bussman sent "documentation of the whole series of events,
including [CTA attorney John Kohn's] recent claim made to PERB, to every member [of] the
[Association's] Executive Board." Mr. Bussman also asked for assistance. To date, the
Association has not responded to Mr. Bussman' s December 15 request for assistance.
The above-titled charge concludes in relevant part:
l. 	On August 1si, 2008, [CTA] attorney, John Kohn,
submitted to PERB that "the [A]ssociation continues to
bargain the issue with the employer." Thus, [the
Association] asserts that they are indeed representing
members in an effort to rectify violation of Ed. Code
45028. Mr. Kohn, [CTA] attorney, acknowledges the
clear violation in light of the recent Adair vs. Stockton
USD decision.

LA-CO-1378-E
November 5, 2009
Page 6
2. 	On November 13, 2008, [Association] President Gary
Hardgrave, contradicts Mr. Kahn's claim. [Mr.] Bussman
emails [President] Hardgrave in an effort to clarify [the
Association's] position, and [President] Hardgrave fails to
respond to [Mr.] Bussman.
3. 	[Mr.] Bussman waits one month for [President] Hardgrave
to respond, and then asks for assistance and representation
from [the Association's] full Executive Board. [Mr.]
Bussman's request contains full documented proof of his
claim. (NOTE: Please see enclosed copy of the letter and
documentation sent to [the Association] Executive Board
members dated December 15, 2008).
4. 	[Mr.] Bussman has patiently waited for a response and
representation from [the Association] for five and a half
months and has received neither. Due to the six month
statute of limitations about to expire, this Unfair Practice
Charge is being filed.
Discussion
1. 	Collateral Estoppel
Collateral estoppel is a legal doctrine that bars the relitigation of an issue if: (1) the issue
necessarily decided at the previous proceeding is identical to the one which is sought to be
relitigated; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the
party against whom collateral estoppel is asserted was a party or in privity with a party at the
prior proceeding. (Cook v. State (2005) 921 So.2d. 631.) · In Los Rios College Federation of
Teachers (Deglow) (1996) PERB Decision No. 1133, PERB held that the doctrine of collateral
estoppel prohibited a charging party from re-alleging that his exclusive representative had
breached the duty of fair representation to him when the same issue had been previously
litigated and was the subject of a final decision.
As previously stated, in Alvord Educator's Association (Bussman), supra, PERB Decision
No. 2046, Mr. Bussman alleged that the Association violated the Act by failing to represent
him "in a challenge to the legality of certain contract provisions, and by failing to represent
him regarding a change in teaching assignments." In Alvord Educator's Association
(Bussman), supra, PERB Decision No. 2046, Mr. Bussman also alleged that the Association
had violated the Act by retaliating against him and defaming him.
The parties, facts, and issues in the present charge are identical to the parties, facts, and issues
in Alvord Educator's Association (Bussman), supra, PERB Decision No. 2046, with one
exception: in the above-titled charge Mr. Bussman alleges that the Association failed to
respond to his December 2008 request that it represent him in litigation with the District

LA-CO-1378-E
November 5, 2009
Page 7
regarding the legality of certain contract provisions. Thus, except for this single issue, the
above-titled charge is identical to the unfair practice charge filed by Mr. Bussman against the
Association in January 2008 (LA-CO-1329-E), which was decided on its merits by the Board
in Alvord Educator's Association (Bussman), supra, PERB Decision No. 2046. Accordingly,
other than Mr. Bussman's allegation that the Association ignored his December 2008 request
for representation, the doctrine of collateral estoppel prohibits Mr. Bussman from re-litigating
the issues decided by the Board in Alvord Educator's Association (Bussman), supra, PERB
Decision No. 2046.
2. 	EERA's Six-Month Statute of Limitations
PERB Regulation 32615(a)(5)3 requires, inter alia, that an unfair practice charge 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 how" of an
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
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, knew or should have known that further assistance from the union was unlikely.
(United Teachers of Los Angeles (2001) PERB Decision No. 1441; Los Rios College
Federation of Teachers, CFTIAFT (1991) PERB Decision No. 889.) Repeated union refusals
to process a grievance over a recurring issue do not start the limitations period anew.
(California State Employees Association (1985) PERB Decision No. 497-S.)
In regards to Mr. Bussman's allegation that the Association failed to represent him in litigation
against the District challenging the legality of certain contract provisions, the Board in Alvord
Educator's Association (Bussman), supra, PERB Decision No. 2046, held that the statute of
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1378-E
November 5, 2009
Page 8
limitations began to run on that issue on January 30, 2007. Mr. Bussman's re-request for
representation on that issue in December 2008 does not start the statute of limitations period
anew. (California State Employees Association, supra, PERB Decision No, 497-S.) Since the
statute of limitations began to run on Mr. Bussman' s allegation that the Association breached
the duty of fair representation by refusing to represent him in litigation challenging the legality
of certain contract provisions on January 30, 2007, Mr. Bussman had until on or before July
30, 2007 to file an unfair practice charge against the Association. (Ibid.) As stated above, the
present charge was not filed by Mr. Bussman with PERB against the Association until June 2,
2009. Thus, PERB is prohibited from issuing a complaint against the Association alleging that
it breached the duty of fair representation by not representing Mr. Bussman in litigation to
challenge to the legality of certain contract provisions. Even if the above-titled charge was
filed within EERA's six-month statute of limitations, Mr. Bussman has failed to demonstrate
that the Association violated the duty of fair representation for the following reasons.
3. 	The Duty of Fair Representation
The Board has held that there is no obligation on the part of the exclusive representative to
provide representation for a member of the bargaining unit in extra-contractual matters not
under its exclusive control. (California School Employees Association (Mrvichin) (1988)
PERB Decision No. 661; California State Employees' Association (Darzins) (1985) PERB
Decision No. 546-S; San Francisco Classroom Teachers' Association (Chestangue) (1985)
PERB Decision No. 544.) In California Teachers Association (Radford) (2005) PERB
Decision No. 1763, the Board specifically held that an exclusive representative does not breach
the duty of fair representation by refusing to assist a bargaining unit member enforce the
California Education Code. Further, an exclusive representative does not breach the duty of
fair representation even if the exclusive representative undertakes representation in an extra-
contractual forum and the exclusive representative's representation is inadequate. (Service
Employees International Union, Local 99 (Wardlaw) (1997) PERB Decision No. 1219.)
Mr. Bussman alleges that the Association breached its duty to fairly represent him by ignoring
his requests that it pursue a claim against the District over perceived violations of the
California Education Code. 	Pursuits of alleged violations of the California Education Code
involve extra-contractual forums that are outside the Association's exclusive control, i.e., do
not involve the Agreement's grievance procedure. Thus, Mr. Bussman has not established that
the Association violated the Act by failing to respond to his requests to represent him in
litigation against the District over perceived violations of the California Education Code.
(California Teachers Association (Radford), supra, PERB Decision No. 1763.)
4. 	Remaining Allegations
Mr. Bussman also alleges that the Association violated Government Code sections 3543 .3,
3543.5, and 3571.1. However, Mr. Bussman provides no facts, theories, or arguments
regarding why he believes EERA sections 3543.3 or 3543.5 were violated by the Association.
Further, the.current record does not demonstrate that the Association violated these sections of
EERA.

LA-CO-1378-E
November 5, 2009
Page 9
Government Code section 3571.1 only applies to employees employed by the CSU System, the
UC System, and Hastings College of Law. (Gov. Code,§ 3560 et seq.) The current record
shows that Mr. Bussman is employed by the District. Thus, Mr. Bussman's rights stern from
Government Code section 3540 et seq., not Government Code section 3560 et seq.
Accordingly, Mr. Bussman does not have standing in this case to allege a violation of
Government Code section 3571.1.
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, Mr. Bussman may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled Second Amended
Charge, contain all the facts and allegations Mr. Bussman wishes to make, and be signed under
penalty of perjury by Mr. Bussman or an authorized agent of Mr. Bussman. The amended
charge must have the case number written on the top right hand comer of the charge form. 	The
amended charge must be served on the Association'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 16, 2009,4 PERB will dismiss the above-titled charge. 	Questions concerning this
matter should be directed to me at the above telephone number.
Sincerely,
Sean McKee
Regional Attorney
SM
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)