California School Employees Association (De Lauer) (PERB 1523E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARILEE (MIMI) DE LAUER,
Charging Party, Case No. SF-CO-608-E
v. PERB Decision No. 1523
CALIFORNIA SCHOOL EMPLOYEES May 13, 2003
ASSOCIATION,
Respondent.

Appearance: Marilee (Mimi) DeLauer, on her own behalf.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Marilee (Mimi) DeLauer (DeLauer) of a Board agent’s dismissal
(attached) of her unfair practice charge. The charge and first amended charge alleged that the
California School Employees Association (CSEA) violated its duty of fair representation by
failing to assist DeLauer in obtaining a 90-day leave of absence from her employment with the
Sonoma Valley Unified School District (SVUSD)); failing to assist her in recovering her
permanent position when she returned after resigning and taking a vacation; failing to provide
her with workers’ compensation forms she requested; and failing to assist her in remedying a

hostile environment at the Santa Rosa Junior College (SRJC) where DeLauer

was a student. DeLauer contended that
CSEA's
alleged conduct violated its duty
of
fair
representation guaranteed
by
section 3544.9
of
the Educational Employment Relations
Act
(EERA) 1 and thereby violated EERA section 3543.6(b). 2
DeLauer had previously filed charges against SRJC which were rejected on grounds
that DeLauer, as a student, could not state a prima facie case under
EERA against SRJC.3 She
also filed a charge against the SVUSD based, in part, on events related to the allegations
in
the
instant case.4
1 EERA is codified at Government Code section 3540 et seq. EERA section 3544.9
provides:
The employee organization recognized or certified as the
exclusive representative for the purpose
of
meeting and
negotiating shall fairly represent each and every employee in the
appropriate unit.
2 EERA section 3543.6 provides, in pertinent part:
It shall be unlawful for an employee organization to:
(b) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter.
3 See Case No. SF-CE-2258-E, dismissal affirmed in Santa Rosa Junior College (2003)
PERB Decision No. 1511; Case No. SF-CO-609-E, dismissed April 26, 2002, no appeal filed.
4 See Case No. SF-CE-2268-E, dismissal affirmed in Sonoma Valley Unified School
District (2003) PERB Decision No. 1522.
2

The Board agent dismissed DeLauer's charge in the instant case on grounds that:
(1) DeLauer's allegations regarding CSEA's failure to assist her in obtaining a leave of
absence were not timely; (2) DeLauer's submission showed that her resignation was
unconditional and, under SVUSD policy, she was not entitled to reinstatement when returning
after her resignation; and (3) CSEA's duty of fair representation does not extend to complaints
filed by DeLauer against faculty at SRJC.
DE LAUER'S APPEAL
On appeal, DeLauer reasserts that CSEA failed to represent her regarding her requests
for leave and reinstatement, but that CSEA assisted another employee in securing a leave of
absence. She also reasserts that she believed her resignation to be conditional on preservation
of her seniority, salary level, and benefits upon her return to work. The Board finds that the
Board agent correctly disposed of those allegations and that the dismissal was free of
prejudicial error.
DeLauer also submits new, detailed allegations regarding interpersonal incidents
involving CSEA staff; describes occurrences which she contends created a hostile environment
at SRJC; reports derogatory comments made about her and privacy violations allegedly
attributable to CSEA; and reasserts that CSEA failed to assist her in remedying a hostile
environment at SRJC.
PERB Regulation 32635(b)5 provides: 	"Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." DeLauer has
failed to demonstrate good cause to allow presentation of her additional allegations and
5 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

documents on appeal because none
of
those materials contain information that she could not
have obtained, through reasonable diligence, prior to issuance
of
the Board agent's dismissal
letter. Accordingly, the Board has not considered any new allegations in resolving DeLauer' s
appeal.
The Board agent did not address DeLauer's contention that a CSEA official failed to
provide a workers' compensation form upon request. However, DeLauer did not specify when
this allegation occurred, so there is no indication whether the allegation was timely. Moreover,
the duty
of
fair representation arises from a union's status as exclusive representative for
purposes
of
collective bargaining and contract administration. Providing forms related to
proceedings in forums unrelated to the collective bargaining agreement does not fall within the
union's duty
of
fair representation. (See California School Employees Association (Garcia)
(2001) PERB Decision No. 1444; San Francisco Classroom Teachers Association, CTA/NEA
(Chestangue) (1985) PERB Decision No. 544.) DeLauer has offered no facts to support a
finding that CSEA had a duty to provide her with such forms. 	Accordingly, omission
of
this
issue in the warning and dismissal letters was not prejudicial.
After reviewing the charge and attached documents, amended charge and attached
documents, the warning and dismissal letters, and DeLauer' s appeal, the Board finds that the
warning and dismissal letters are free
of
prejudicial error and adopts them as the decision
of
the Board itself.
4

ORDER
The unfair practice charge in Case No. SF-CO-608-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
5

. ;-_
STATE OF CALIFORNIA { (', GRAY DAVIS, Governori
--------------.......---------------
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway Suite : 532
Oakland, CA 94612
Telephone: (510) 622-1023
Fax: (510) 622-1027
July 30, 2002
Marilee De Lauer
19357 Apple Valley Road
Sonoma CA 95476
Re: Marilee (Mimi) De Lauer v. California School Employees Association
Unfair Practice Charge No. SF-CO-608-E, First Amended Charge
DISMISSAL LETTER
Dear Ms. De Lauer:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 10, 2002. Marilee De Lauer alleges that the California
School Employees Association violated the Educational Employment Relations Act (EERA)1
by failing to represent her.
I indicated to you in my attached letter dated July 12, 2002, that the above-referenced charge
did not state a prima facie case. You were advised that, ifthere were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to July 19, 2002, the charge would be dismissed.
The warning letter indicated that CSEA did not violate its duty offair representation by failing
to obtain a permanent position for De Lauer after she resigned. The warning letter also
indicated CSEA did not violate its duty of fair representation by failing to help De Lauer
remedy a hostile environment at the Santa Rosa Junior College District because those issues
were outside the collective bargaining agreement between CSEA and the Sonoma Valley
Unified School District. On July 19, 2002, I received a first amended charge.
In or about January 2001, the SVUSD denied De Lauer' s leave ofabsence request. De Lauer
alleges CSEA helped another bargaining unit member to get a leave ofabsence request
approved but did not help her.
On January 30, 2001, De Lauer wrote to the SVUSD and stated, in pertinent part:
I have previously requested a leave ofabsence. At the time the
school board has denied my formal request due to the lack of a
thorough account ofpertinent information. Thus, based on the
Board's last decision I will tender my resignation with the intent
1 EERA is codified at Government Code section 3540 et seq. The text ofthe EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-608-E
July 30, 2002
Page 2
to return as follows: My leave is to continue my advance
· education to obtain a Liberal Arts Degree. Upon my return, I
wo.uld like to be able to have the following considerations that
have been granted similar what other employees
of
SVUSD
received.
Restoration
of
sick leave.
Migration
of
salary back to current level.
Reinstate seniority.
The SVUSD accepted De Lauer's resignation and did not hold De Lauer's bus driver position
open for her while she traveled to Italy.
The first amended charge alleges CSEA should have helped with the hostile environment at the
SRJCD because:
Both CSEA driver trainer/safety instructor, John Hill,
stepdaughter and CSEA president Hensic daughters are students
at the SRJC. Both
of
these students have/or have had the same
instructors that created a hostile environment for me and wrote
derogatory remarks on my records. One
of
the my instructors is
the head
of
the department for both
of
the CSEA members
children's majors, pharmacology and nursing, respectively. [sic]
The SRJCD disseminated false information regarding De Lauer. 	CSEA failed to help DeLauer with grievances at the SRJCD. 	The first amended charge alleges CSEA should have
helped with the grievances because:
Medical reports and my son's medical reports from my own
personal physician were obtained by CSEA members and
disseminated to SVUSD without my permission? A medical
personnel at my personal physician has children that attend
Prestwood Elementary. Her husband is a fireman and friends
with CSEA member Deely also a fireman. 	CSEA member school
bus driver Kirkwood has a husband that is a fireman and is
employed with SRJC? Kirkwood's husband has two CSEA
members that both work at Prestwood Elementary School?
The above-stated information fails to state a prima facie violation for the reasons stated below.
The charge alleges CSEA violated its duty
of
fair representation by failing to help with the
following matters: 	(a) obtaining approval
of
De Lauer's leave of absence request; (b) restoring
De Lauer's position; and (c) the hostile environment at the SRJCD. Each allegation is
addressed below.

I
SF-CO-608-E
July 30, 2002
Page 3
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by BERA section 3544.9 and thereby violated section 3543.6(b
).
The duty
of
fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation
of
this section
of
BERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith.
BERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect
to
"any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
De Lauer filed this charge on April 10, 2002, therefore the statute
of
limitations period extends
back to include events occurring on or after October 10, 2001. De Lauer knew that CSEA had
failed to help her get SVUSD approval
of
her leave request in January 2001, more than a year
before she filed this charge. Thus, the allegation that CSEA failed to help her obtain a leave
of
absence is untimely filed and outside the jurisdiction
of
PERB.
The charge fails to demonstrate CSEA violated its duty
of
representation by failing to obtain a
permanent position for De Lauer when she returned from her trip. As noted in the warning
letter, the SVUSD does not guarantee re-employment. 	Although De Lauer alleges her
resignation was conditioned on her position and benefits being restored, the charge does not
demonstrate the District accepted her resignation as conditional in nature. The District denied
De Lauer's request for a leave
of
absence on the same terms. Thus, the charge fails to
demonstrate CSEA acted arbitrarily by failing to help De Lauer obtain a permanent position
after she resigned.
The warning letter indicated that CSEA did not violate its duty
of
fair representation by failing
to help her remedy a hostile environment at the Santa Rosa Junior College District because
those issues were outside the collective bargaining agreement between CSEA and the Sonoma
Valley Unified School District. 	The first amended charge does not demonstrate why CSEA's
duty extends to "grievances" filed by De Lauer against the SRJCD where she is a student.
Although CSEA members may be tangentially connected to the SRJCD, CSEA's duty is
limited in scope. 	Thus, the charge fails to demonstrate a prima facie violation.
The first amended charge does not correct the deficiencies noted in the warning letter and
therefore the charge is dismissed.

SF-CO-608-E
July 30, 2002
Page 4
Right to Appeal
r
Pursuant to PERB Regulations,2 you 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. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business
(5
p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery,
as
shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b
).
)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CO-608-E
July 30, 2002
Page 5
Extension
of
Time
.
.('.
(
A request for an ~xtension
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. (Regulation 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,
ROBERT THOMPSON
General Counsel
--	
~	
f#nxu~
~	
By
TammySam 	1
Regional Attorney
Attachment
cc: Rita Hensic

STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1515
Cby
Street,
Su;'e
2201
Oakland, CA 946'!2
Telephone: (510) 622-1023
Fax: (510) 622-1027
July 12, 2002
Marilee De Lauer
19357 Apple Valley Road
Sonoma, CA 95476
(
Re: 	Marilee (Mimi) De Lauer
v.
California School Employees Association
Unfair Practice Charge No. SF-CO-608-E
WARNING LETTER
Dear Ms. De Lauer:
GRAY
DA
VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 10, 2002. Marilee De Lauer alleges that the California
School Employees Association violated the Educational Employment Relations Act (EERA) 1
by failing to represent her. My investigation revealed the following information.
CSEA exclusively represents the classified bargaining unit at the Sonoma Valley Unified
School District. De Lauer is a bus driver for the SVUSD and is a student at the Santa Rosa
Junior College District.
In January 2001, De Lauer was a permanent bus-driver and requested a 90-day absence to
study art in Italy. 	The SVUSD denied De Lauer's request and De Lauer resigned. 	De Lauer
resigned believing her salary and benefits would be restored when she returned. 	In May 2001
De Lauer returned to the SVUSD and learned her bus route had been taken over by another
employee. De Lauer is now a substitute bus driver. 	De Lauer alleges CSEA President Rita
Hensic refused to help her regain her permanent position with the SVUSD.
SVUSD Personnel Policy 4217.2 provides an employee's resignation once presented and
accepted by the Superintendent may not be withdrawn by the employee. Employees who have
resigned from the SVUSD may apply for vacant positions within the SVUSD. However, the
SVUSD does not guarantee re-employment into such positions.
In the fall semester
of
2001, De Lauer was enrolled at the SRJCD. De Lauer alleges during
this time SRJCD employees created a hostile environment and CSEA President Rita Hensic
failed to help her remedy the situation at the SRJCD.
De Lauer would like to regain her permanent position, salary, benefits, and "would like to
eliminate any traces of harassment, hostile work environment, including subliminal harassment
over FCC two-way radio and otherwise
...
"
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-608-E
July 12, 2002
Page 2
•
,r.
(
The above-stated information fails to state a prima facie violation for the reasons that follow.
BERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden
of
demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
De Lauer filed this charge on April 10, 2002, therefore, the statute
of
limitations period
extends back to include events occurring on or after October 10, 2001. 	De Lauer alleges
CSEA failed to help her regain her permanent position following her resignation. De Lauer
returned from her trip•and learned she could not return to her permanent position in May 2001,
several months beyond the statute
of
limitations period. Thus, the allegation that CSEA
violated its duty
of
fair representation by failing to help De Lauer regain her permanent
position is untimely filed and outside PERB's jurisdiction.
Even
if
timely filed the charge fails to state a prima facie violation for the reasons that follow.
Charging Party has alleged that the exclusive representative denied Charging Party the right to
fair representation guaranteed by BERA section 3544.9 and thereby violated section 3543.6(b
).
The duty
of
fair representation imposed on the exclusive representative extends to grievance
handling. 	(Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers
of
Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation
of
this section
of
BERA, Charging Party must show that the Respondent's
conduct was arbitrary, discriminatory or in bad faith. In United Teachers
of
Los Angeles
(Collins), the Public Employment Relations Board stated:
Absent bad faith, discrimination, or arbitrary conduct, mere
negligence or poor judgment in handling a grievance does not
constitute a breach
of
the union's duty. 	[Citations omitted.]
A union may exercise its discretion to determine how far to
pursue a grievance in the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an empioyee's grievance
if
the chances for success are minimal.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a Charging Party:
"
...
must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the

SF-CO-608-E
July 12, 2002
Page 3
. .r.
( (
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (Emphasis added.)"
[Reed District Teachers Association, CTA/NEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
In the grievance context, the duty of fair representation is limited to contractually-based
remedies under the union's exclusive control. (California School Employees Association
(Garcia) (2001) PERB Decision No. 1441.) A contractually-based remedy is one found in the
collective bargaining agreement between the District and the Association. As such, PERB will
dismiss charges based on a union's failure to pursue noncontractual administrative or judicial
remedies. (Id.) Since the employee may retain private counsel for representation in these
noncontractual matters, the union's refusal does not bar the individual from seeking redress on
his or her own. (California State Employees Association (Darzins) (1985) PERB Decision No.
546-S.)
The charge alleges CSEA failed to help De Lauer remedy a hostile environment at the SRJCD.
De Lauer's issues with the SRJCD are outside of the collective bargaining agreement between
CSEA and the SVUSD. Thus, CSEA did not violate the EERA by failing to help her with the
SRJCD.
Nor does CSEA's failure to help De Lauer regain her permanent position demonstrate a prima
facie violation. The SVUSD's policy indicates resignations may not be withdrawn. Nor does
the SVUSD guarantee re-employment. As such, the charge does not present any facts
demonstrating CSEA violated its duty of fair representation by failing to obtain a permanent
position for De Lauer after she resigned. Thus, the charge must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before July 19, 2002, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney