United Teachers of Richmond (Holford) (PERB 1604E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LORRAINE HOLFORD,
Charging Party, Case No. SF-CO-614-E

Vv. PERB Decision No. 1604

UNITED TEACHERS OF RICHMOND, February 25, 2004

Respondent.

Appearance: Amamgbo & Associates by C. Donald Amamgbo, Attorney, for
Lorraine Holford.

Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Lorraine Holford (Holford) from a Board agent’s dismissal (attached) of her
unfair practice charge. The charge alleged that the United Teachers of Riverside violated its
duty of fair representation under the Educational Employment Relations Act (EERA)' by
failing to arbitrate a grievance on behalf of Holford. The Board agent dismissed the charge for
failure to state a prima facie case of a violation of the duty of fair representation.

The Board has reviewed the entire record in this matter, including the original and
amended charge, the warning and dismissal letters and Holford’s appeal. The Board finds the

dismissal letter to be free of prejudicial error and adopts it as the decision of the Board itself.

'EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. SF-CO-614-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

.  ,,:
STATE OFCALIFORNIA ( '· GRAY DAVIS, Governor-------------- ---------------
PUBLIC EMPLOYMENT RELATIONS BOARD
September 20, 2002
Lorraine Holford
257 Stonewood Court
Vallejo, CA 94591
Re: Lorraine Holford v. United Teachers of Richmond
Unfair Practice Charge No. SF-CO-614-E, First Amended Charge
DISMISSAL LETTER
Dear Ms. Holford:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 1, 2002. Lorraine Holford alleges that the United Teachers
of Richmond violated the Educational Employment Relations Act (EERA)1 by breaching its
duty of fair representation.
I indicated to you in my attached letter dated August 16, 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 August 23, 2002, the charge would be
dismissed.
On August 20, 2002, I received a facsimile from you indicating that you wanted the West
Contra Costa Unified School District to be a party to the charge. I called you that day and
explained that you could file a separate charge against the District. On August 23, 2002, I
granted your request for an extension to file a first amended charge to August 26, 2002. On
August 26, 2002 you filed a first amended charge which alleges the following information.
You were a Project Assistant at Kennedy High School until the position was eliminated and
you took a teaching position at another school. The Project Assistant position was later
restored at Kennedy High School but another employee was hired.
On January 7, 2002, you filed a grievance, but did not hear from UTR. In February 2002 you
contacted UTR's Ron Gleason who indicated the grievance was not received. Several days
later Gleason told you that you would have to refile the grievance and Executive Director Jeff
Cloutier was assigned to your case. Cloutier met with you and indicated that Article 14 of the
collective bargaining agreement did not apply to the Project Assistant position. However, the
1 BERA 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-614-E
September 20, 2002
Page 2
collective bargaining agreement does not specifically exclude your position from coverage
under Article 14.
Article 14, Section 3.3
of
the parties' collective bargaining agreement provides:
In the event a teacher is involuntary transferred from a school and
the eliminated position is restored at the beginning
of
the
subsequent school year, the transferred teacher shall have the
right to return to his/her previous school.
The Assistant Superintendent, Linda Lester denied Holford's grievance at Level II. Lester
explained, in pertinent part:
Project Assistant positions are promotional positions within UTR.
The language in Article 14, Section 3 does not apply to these
positions. Although the Project Assistant position at Kennedy
High School was eliminated due to lack
of
funding, Ms. Holford
did not have to transfer from the school; she was still entitled to a
teaching position there. Therefore, this section
of
Article 14 does
not apply to her situation.
As to Article 14, Section 6.4, I don't know what position Ms.
Holford requested and was rejected. Project Assistants are
chosen by the school from an eligibility list which is developed
according to Article 45
of
the contractual agreement and kept by
Personnel Services. This list is also furnished to principals who
are seeking to fill openings for Project Assistant. It is not a
position for which a person may transfer. The school selects the
person from the list who best serves their needs. Therefore, the
reassignment language does not apply to this situation. Project
Assistants retain all
of
their transfer rights as teachers, including
all
of
the language
of
Article 14, but Article 14 does not apply to
Project Assistants as these positions are promotional positions.
Collins confirmed that he spoke with you and that the grievance was not presented to the
Grievance Committee. However, Collins indicated that your grievance was handled
by
the
Executive Director and heard by the Executive Board, which decided not to purse your
grievance to arbitration.
The above-stated information fails to state a prima facie violation for the reasons that follow.
As stated in the warning letter, 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 EERA, Charging Party

SF-CO-614-E
September 20, 2002
Page 3
must show that the Respondent's cunduct was arbitrary, di$criminatory or in bad faith. 	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.
UTR consistently told you that your grievance's chance of success was minimal. Although
you believe your position should not be excluded from Article 14 of the CBA, both the District
and UTR believe that it is properly excluded as a promotional position. 	Cloutier provided you
with a written explanation of UTR's reasoning on this matter. As both the District and UTR
agree that promotional positions are excluded from Article 14, UTR's determination not to
purse your grievance to arbitration was not arbitrary. 	Nor does the charge demonstrate that
UTR's delay in filing the grievance affected the outcome.
The charge's allegations that Cloutier withheld evidence of discriminatory motives are not
supported by facts. Rather it appears that Cloutier pursued the grievance on your behalf
despite his judgement that it lacked merit. 	Your allegation that the Grievance Committee did
not hear a presentation of your grievance on July 10, 2002 does not establish that UTR acted in
an arbitrary, discriminatory or bad faith manner as your grievance was presented to the
Executive Board, not the Grievance Committee for evaluation. The parties' agreement that the
contract language excludes promotional positions is a rational basis for denying your request
for arbitration. Thus, the charge must be dismissed.
Right to Appeal
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.)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CO-614-E
September 20, 2002
Page 4
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
theproceeding, 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).)
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.)

SF-CO-614-E
September 20, 2002
Page 5
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
___,.By wasa
Tam Sam
Regional Attorney
Attachment
cc: Jeff Cloutier

STATE OF CALIFORNIA 	( 	GRAY
DA
VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
l 330 Broadway, Suite 1532
Oakland, CA 94612-2519
Telephone: (510) 622-1023
Fax: (510) 622-1027
August 16, 2002
Lorraine Holford
257 Stonewood Court
Vallejo, CA 94591
Re: 	Lorraine Holford
v.
United Teachers
of
Richmond
Unfair Practice Charge No. SF-CO-614-E
WARNING LETTER
Dear Ms. Holford:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August
1,
2002. Lorraine Holford alleges that the United Teachers
of
Richmond violated the Educational Employment Relations Act (EERA)1
by breaching its
duty
of
fair representation. My investigation revealed the following information.
The West Contra Costa Unified School District employed Lorraine Holford as a Project
Assistant at the Kennedy High School. As such, Holford was exclusively represented
by
the
United Teachers
of
Richmond. On July
1,
2001, the District eliminated Holford's position and
during the next school year Holford began working as a teacher at a different school site. On
December 1, 2001, the Project Assistant position was reinstated at Kennedy High and another
teacher was offered the position.
On January 7, 2002, Holford filed a grievance against the District alleging the District violated
the involuntary transfer provision
of
the parties' collective bargaining agreement. 	Article 14,
section 3.3
of
the parties' CBA provides:
In the event a teacher is involuntarily transferred from a school
and the eliminated position is restored at the beginning
of
the
subsequent school year, the transferred teacher shall have the
right to return to his/her previous school.
Holford believed she should have had the right to return to Kennedy High as the Project
Assistant. 	On February 26, 2002, UTR's Executive Director Jeff Cloutier, told Holford he
doubted the viability of her grievance. Holford received contrary advice from Attorney
Weintraube. Cloutier disputed Weintraube's interpretation of the parties' contract and onMay 20, 2002, wrote the following explanation to Holford:
1 BERA is codified at Government Code section 3540 et seq. The text of the BERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CO-614-E
August 16, 2002
Page 2
(
In several phone conversations you sought and were given my
advice that a grievance under the involuntary transfer section of
the agreement stood virtually no chance of success, as this section
was not germane to your situation. The specific language has
been bargained to exclude those positions for which there is a
"eligibility" list and the practices of the parties excluded Project
Assistant positions from a guarantee of return to that position or a
similar position.
On May 22, 2002, Cloutier sent Holford the following analysis of her grievance:
As you are aware, you were reassigned from a Project Assistant
position to a classroom teacher. Your reassignment came about
as a result of an administrative decision due to the lack of funding
for your Project Assistant job at Kennedy High.
It appears the District was within their rights to abolish the
Project Assistant position based on the lack of funding. Further, I
believe the District acted within its authority to notify you that
you were on an "eligibility" list and, if interested, you were to
apply for any Project Assistant vacancies. My research and
reading of our agreement does not place you in any "involuntary
transfer" situation as described in our agreement. The specific
language on Page 30, Article 14, section 3, does not apply to your
situation.
On July 10, 2002, the UTR Executive Board rejected Holford's request to take her grievance to
arbitration. Holford alleges that UTR denied her its duty of fair representation by refusing to
take her grievance to arbitration.
The above-stated information 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 EERA section 3544.9 and thereby violated section 3543.6(b).
The duty of fair representation imposed on the exclusive representative extends to grievance
handling. (Fremont Teachers Association (King) (1980) PERB Decision No. 125; United
Teachers of Los Angeles (Collins) (1982) PERB Decision No. 258.) In order to state a prima
facie violation of this section of EERA, 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.)

(
SF-CO-614-E
August 16, 2002
Page 3
(
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, CTAJNEA (Reyes) (1983)
PERB Decision No. 332, p. 9, citing Rocklin Teachers
Professional Association (Romero) (1980) PERB Decision
No. 124.]
Although Holford disagrees with UTR's decision not to pursue a grievance to arbitration, the
charge does not demonstrate UTR acted in an arbitrary, discriminatory or bad faith manner.
UTR consistently explained that it did not believe Holford's grievance was meritorious. The
charge does not demonstrate UTR' s position was without a rational basis. UTR contends the
parties' CBA provision on involuntary transfers does not apply to Holford's situation as the
project assistant positions have eligibility lists and the parties' practice excluded such positions
from the involuntary transfer provision. Thus, the charge fails to state a prima facie violation.
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
comer of the charge form. The amended charge must be served on the respondent1s
representative and the original proof of service must be filed with PERB. If I do not an
amended charge or withdrawal from you before August 23, 2002, I shall dismiss your charge.
If you any questions, please call me at the above telephone number.
Sincerely,
Tammy Samsel
Regional Attorney