Chula Vista Elementary Educators Association (Larkins) (PERB 1575E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MAURA HOGAN LARKINS,
Charging Party,
V.
CHULA VISTA ELEMENTARY EDUCATORS
ASSOCIATION,
Respondent.
Case No. LA-CO-1091-E
PERB Decision No. 	15 7 5
December 	30, 	2003
Appearance: Maura Hogan Larkins, on her own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case comes before the Public Employment Relations (PERB or
Board) on appeal by Maura Hogan Larkins (Larkins) of a Board agent's dismissal (attached) of
her unfair practice charge. The charge alleged that the Chula Vista Elementary Educators
Association (Association) breached its duty of fair representation codified at Educational
Employment Relations Act (EERA) section 3544.91, thereby violating EERA section
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. EERA section 3544.9
states:
The employee organization recognized or certified as the
exclusive representative for the purpose of meeting and
negotiating shall fairly represent each and every employee in the
appropriate unit.

3543.6(b
)2,
by failing to pursue her grievances and by informing her employer that her pay
could be suspended because she had not reported to work.
LARKINS' APPEAL
Larkins argues on appeal that the Board agent failed to properly consider many
of
the
factual allegations in her charge. Larkins also submits that the Board agent failed to treat
factual allegations in the charge
as
true for purposes
of
determining whether the charge stated a
prima facie case under BERA. In addition, Larkins argues that the Board agent improperly
accepted as true factual assertions contained in a letter to the Board agent from California
Teachers Association President, Wayne Johnson (Johnson), describing the Association's
efforts to assist her and Larkins' alleged refusal
of
such assistance. Larkins argues that the
Board agent improperly relied on those factual assertions when dismissing the charge. 	Larkins
also provides detailed arguments regarding her factual allegations and her view
of
their proper
interpretation. Larkins also asserts that the Association violated its duty
of
fair representation
by failing to "notify her
of
the existence
of
PERB".
DISCUSSION
As requested by Larkins, the Board has thoroughly and carefully reviewed the detailed
factual allegations from the unfair practice charge and first amended charge in this case. 	After
considering Larkins' allegations, correspondence to the Board agent, the Association's
2EERA section 3543.6 provides, in 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.
2

response to the charge, and Larkins' arguments on appeal, the Board finds that the warning and
dismissal letters are free from prejudicial error and adopts them as the decision
of
the Board
itself, subject to the following discussion.
DISCUSSION
The Board agrees with Larkins that any material factual allegations contained in
correspondence submitted
by
the Association should not have been accepted as true where
disputed by Larkins. (See San Juan Unified School District (1977) EERB3 Decision No. 12.)
The Board, therefore, does not adopt the Board agent's discussion
of
Johnson's letter. In
reviewing the dismissal
of
Larkins' charge, the Board has not relied on facts contained in
communications from the Association, other than letters from the Association to Larkins which
Larkins placed at issue through attachment to the charge and discussion in her allegations.
With the exception
of
the Board agent's brief discussion
of
material facts derived from
Johnson's letter, the Board's review
of
Larkins' allegations indicates that the Board agent
accepted as true Larkins' material allegations. The Board agent correctly set forth the legal
standards governing an alleged violation
of
an employee organization's duty
of
fair
representation and correctly applied those standards to Larkins' factual allegations. The Board
agrees that Larkins alleged no specific facts demonstrating that the Association's actions were
arbitrary, discriminatory, undertaken in bad faith, lacked a rational basis, or were devoid
of
honest judgment.
Larkins contends on appeal that she should have been allowed to engage in discovery to
ascertain a detailed factual basis for her charge allegations before a determination was made as
3Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
3

to whether she had established a prima facie case. However, as charging party, Larkins bore
the burden
of
alleging facts which, taken as true, stated a violation
of
the Association's duty
of
fair representation. (See PERB Reg. 32615(a)(5)4; Los Angeles Unified School District (1984)
PERB Decision No. 473.) Where, as here, the charging party fails to set forth facts
constituting a prima facia violation
of
EERA, dismissal is required and no evidentiary
proceedings are initiated. (See PERB Reg. 326305
.)
There is no legal basis for Larkins to
obtain discovery through PERB by asserting generalized conclusions relative to which she
provided no detailed factual allegations. (See generally, King City High School District
Association, CTA/NEA; King City Joint Union High School District; et al. (Cumero) (1982)
PERB Decision No. 197, at p. 26.)
Larkins' claim that Association representatives failed to notify her
of
the existence
of
PERB does not provide a basis for a duty
of
fair representation (DFR) charge because the
4PERB's regulations are codified at California Code
of
Regulations, title
8,
section 31001 et seq. PERB Regulation 32615 provides, in relevant part:
(a) 	... The charge shall be in writing, signed under penalty
of
perjury by the party or its agent with the declaration that the
charge is true, and complete to the best
of
the charging party's
knowledge and belief, and contain the following information:
(5) A clear and concise statement
of
the facts and conduct
alleged to constitute an unfair practice.
5PERB Regulation 32630 provides:
If the Board agent concludes that the charge or the evidence is
insufficient to establish a prima facie case, the Board agent shall
refuse to issue complaint, in whole or in part. The refusal shall
constitute a dismissal of the charge. The refusal, including a
statement of the grounds for refusal, shall be in writing and shall
be served on the charging party and respondent.
4

Association owed her no duty to provide such notice. (See California School Employees
Association and its Chapter 77 (Vincelet) (2002) PERB Decision No. 1487.)
Larkins has recently submitted to the Board excerpts from a hearing before the
Commission on Professional Competence (CPC), a decision rendered by the CPC as well as,
her Petition for Writ of Mandate and supporting papers challenging the CPC decision. She
asserts that the transcript testimony undercuts the credibility of individuals named in her
charge before PERB. Larkins also states that the CPC transcripts support her contention that
the District's assistant superintendent was aware the Association was acting on behalf of an
individual who had accused Larkins of misconduct which resulted in her removal from the
classroom in February 2001.
PERB Regulation 32635 provides, in part: "Unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence." Larkins
submits these late-filed documents as evidence in support of factual assertion that already were
considered and assumed to be true by the Board agent and have been taken as true by the
Board itself. As noted, those allegations, taken as true, were insufficient to state a prima facie
case of a DFR violation by the Association. New documentation directed to the veracity of
those allegations is unnecessary and does not cure the defects in the charge. Therefore,
Larkins has not shown good cause for the Board to accept her late-filed documents on appeal.
Moreover, even if good cause were found, the documents would not change the outcome in this
case because the allegations they relate to already have been presumed true and found
inadequate. Therefore, the Board did not consider those documents in rendering this decision.
5

ORDER
The unfair practice charge filed by Maura Hogan Larkins in Case No. LA-CO-1091-E
is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
6

STATE OF CALIFORNIA 	r 	(	
,,	
GRAY
DA
VIS, Governor
--------------
	--------------
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I 18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 322-3198
Fax:
(916)327-6377
June 7, 2002
Maura Hogan Larkins
1935 Autocross CT
El Cajon, CA 92019
Re: 	Maura Hogan Larkins
v.
Chula Vista Elementary EA
Unfair Practice Charge No. LA-CO-1091-E
DISMISSAL LETTER
Dear Ms. Larkins:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 1, 2002. Your charge alleges that the Chula Vista
Elementary Educators Association breached its duty
of
fair representation guaranteed
by
the
Educational Employment Relations Act (EERA),1 Government Code section 3544.9, and thus
violated section 3543.6(b ), by failing to fairly represent you in your grievances against your
employer.
I indicated to you in the attached letter dated March 29, 2002, that the above-referenced charge
did not state a prima facie case. You were advised that
if
there were any factual inaccuracies
or additional facts 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 April 16, 2002, the charge would be dismissed. 	Your
requests for extensions
of
time to file an amended charge were granted. Your amended charge
was filed on May 28, 2002.
Your charge alleges that the Association failed to fairly represent you in your grievances
against your employer involving employment matters dating back to at least February 12,
2001. Your amended charge provides further clarification and argument in support
of
your
claim that the Association breached its duty
of
fair representation.
As discussed in the attached letter, to demonstrate that an exclusive representative breached its
duty
of
fair representation, a charging party must show that the respondent's conduct was
arbitrary, discriminatory or in bad faith. 	In United Teachers
of
Los Angeles (Collins), the
Board stated:
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
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.

LA-CO-1091-E
June
7,
2002
Page 2
(
arbitrarily ignore a meritorious grievance or process a grievance
in a perfunctory fashion. 	A union is also not required to process
an employee's grievance
if
the chances for success are minimal.
In order to state a prima facie case
of
arbitrary conduct violating the duty
of
fair representation,
a charging party:
"
...
must at a minimum include an assertion
of
sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid
of
honest judgment. (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.]
Your amended charge alleges that on February 12, 2001, Association President Gina Boyd
agreed to your removal from the classroom. Your charge does not provide any facts
in
support
of
this assertion.
You also allege that the Association refused to allow California Teachers Association
representatives to represent you. Again, your charge does not provide facts in support
of
this
allegation. Rather, in a letter dated December 13, 2001, CTA President Wayne Johnson
responded to your complaints about the Association's failure to represent you. Mr. Johnson
stated that, "The local Association president and grievance chairperson, as well as the local
CTA staff person have spent significant time representing you in meetings with district
representatives to resolve work related issues and process grievances on your behalf, even
when you have chosen not to attend meetings scheduled for these purposes."
On August 6, 2001, the Association's Board
of
Directors conducted a meeting to determine
whether to advance your grievance to arbitration. You were offered the opportunity to make a
presentation and provide evidence to the Association Board concerning the merits
of
your
grievance, rather than relying on Ms. Boyd to advocate on your behalf. You declined that
opportunity. 	The fact that you disagree with the Association's conclusions as to the merits
ofyour grievances does not demonstrate arbitrary, discriminatory or bad faith conduct.
Concerning the remaining grievances you filed yourself, the amended charge indicates that
Association representatives attended at least some
of
the grievance meetings with the District.
The Association's decision not to pursue arbitration
of
your remaining grievances because the
arbitration provisions had expired with the contract, does not demonstrate arbitrary,
discriminatory or bad faith conduct. The charge does not demonstrate a prima facie violation
of the duty of fair representation and is hereby dismissed.

LA-CO-1091-E
June
7,
2002
Page 3
Right to Appeal
(
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge byfiling 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
31001 et seq.

LA-CO-1091-E
June 7, 2002
Page 4
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. (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
ByR~s1£¥Regional Attorney
Attachment
cc: Michael D. Hersh

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (9 l 6) 327-8385
Fax: (916) 327-6377
March 29, 2002
Maura Hogan Larkins
193 Autocross CT
El Cajon, CA 92019
GRAY DAVIS, Governor
Re: 	Maura Hogan Larkins
v.
Chula Vista Elementary Educators Association
Unfair Practice Charge No. LA-CO-1091-E
WARNING LETTER
Dear Ms. Larkins:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February
1,
2002. Your charge alleges that the Chula Vista
Elementary Educators Association breached its duty
of
fair representation guaranteed
by
the
Educational Employment Relations Act (EERA),1 Government Code section 3544.9, and thus
violated section 3543.6(b ), by failing to fairly represent you in your grievances against your
employer.
Your charge makes the following factual allegations. You are employed by the Chula Vista
Elementary School District as a third grade teacher at Castle Park Elementary School. 	On
February 12, 2001, you attended a meeting with Assistant Superintendent Richard Werlin.
Association President Gina Boyd attended the meeting as your union representative. 	At the
meeting, Mr. Werlin informed you that two teachers had filed a complaint alleging that you
had behaved as
if
you were going to kill someone and they feared for their safety. Mr. W erlin
informed you that you were being removed from your classroom.
During this time, Ms. Boyd was running for reelection as union president. One
of
the teachers
who filed the accusation against you was a close friend
of
Ms. Boyd. You contend that
Ms. Boyd was afraid that your two accusers might be held liable for slander and she sought to
cover up the incident by telling you to "be quiet."
In March 2001, Mr. Werlin informed you that you had been cleared to return to school. 	On
March 27, 2001, while visiting your classroom you spoke with Mr. Werlin. Following the
meeting, Mr. W erlin accused you of irrational behavior and throwing pens at him.
You returned to your teaching assignment on April 16, 2001. On April 20, 2001, Mr. W erlin
telephoned you and told you that you were being removed from the classroom and placed on
paid administrative leave.
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.

LA-CO-1091-E
March 29, 2002
Page 2
In May 2001, the Association filed a grievance in your behalf concerning Mr. Werlin's
accusation in March 2001 that you were irrational.
A meeting
of
the Association's Board
of
Directors was scheduled for August 6, 2001 to
determine whether
to
advance your grievance to arbitration. Ms. Boyd invited you to make a
presentation
to
the Board. Ms. Boyd refused to tell you what she intended to say at the
meeting and refused to allow you to listen
to
her presentation in executive session. As result,
you did not attend the meeting. However, you asked Ms. Boyd to provide the Board with a
copy
of
a letter written by Association Executive Director Tim O'Neill. In his letter,
Mr. O'Neill stated that it was unfair for Mr. Werlin to consider grievances that involved him.
Mr. O'Neill was absent from the meeting and Ms. Boyd did not share his letter with the Board.
The
Board declined to take your grievance to arbitration.
In a letter to you dated August 23, 2001, Mr. O'Neill explained why the Board
of
Directors
decided not to arbitrate your grievance.
In August 2001 you were cleared
to
return to work. In September 2001, Mr. Werlin directed
you to attend a meeting scheduled for September 12, 2001 to discuss your teaching assignment
for the new school year. Mr. O'Neill attended the meeting
as
your union representative. You
did not attend the meeting.
Following the meeting, Mr. O'Neill wrote you a letter dated September 12, 2001, summarizing
the subjects he discussed with Mr. Werlin. Mr. O'Neill asked Mr. Werlin how the District
would ensure your ability to earn a full year's salary
if
you were assigned to a year-round
school at which the school year had already started. Mr. Werlin indicated that you could use
sick or personal leave or make up workdays during off-track time.
On September 26, 2001, the District notified you that you were being placed on unpaid status.
You contend that Mr. O'Neill suggested to the District that you did not need to be paid because
you were not working.
Your charge alleges that the Association failed to support seven grievances which you filed on
your own behalf and that the Union refused to advance these grievances to arbitration.
Based on the facts stated above, the charge fails to state a prima facie case.
The duty
of
fair representation imposed on an 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 EERA, a charging party must show that the respondent's
conduct was arbitrary, discriminatory or in bad faith. In United Teachers of Los Angeles
(Collins), the Board stated:

LA-CO-1091-E
March 29, 2002
Page 3
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 employee's grievance if the chances for success are minimal.
In order to state a prima facie case of arbitrary conduct violating the duty of fair representation,
a charging party:
" ... must at a minimum include an assertion of sufficient facts
from which it becomes apparent how or in what manner the
exclusive representative's action or inaction was without a
rational basis or devoid of honest judgment. (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.]
Your charge alleges that the Association refused to arbitrate your May 2001 grievance. 	You
were provided the reasons for the Association's decision in an August 23, 2001 letter. As
stated above, absent evidence of arbitrary conduct, a union may exercise its discretion to
decline to take a grievance or arbitration. Your charge does not demonstrate that the
Association's decision was arbitrary, discriminatory or bad faith.
Your charge also alleges that the Association failed to support seven grievances you filed on
your own behalf. Your charge does not identify the seven grievances, including when they
were filed, the subject of the grievances, when you requested union assistance and the
Association's response to your requests. Thus, there is insufficient evidence to demonstrate a
violation of the duty of fair representation.
Finally, your charge alleges that Mr. O'Neill suggested to the District that your pay be stopped.
The facts alleged in your charge do not support this contention. There is no evidence that
Mr. O'Neill's conduct at a meeting with Mr. Werlin to discuss your return to work, was
arbitrary, discriminatory or bad faith. 	Thus, this allegation must also 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

LA-CO-1091-E
March 29, 2002
Page 4
(
comer
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 April 16, 2002, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
diwesf!~
Regional Attorney